Jura cleri, or, An apology for the rights of the long-despised clergy proving out of antient and modern records that the conferring of revenues, honours, titles, priviledges, and jurisdiction upon ecclesiasticks is consistent with Scripture, agreeable to the purest primitive times, and justified by the vsance and practice of all nations / by Philo-Basileus Philo-Clerus.

CHAP. II. The Original of Ecclesiastical Courts.

IF we should trace up the Original of Ecclesiastical Courts, we shall find them grounded upon the counsel of the Apostle, 1 Cor. 6. where he advises the Christians, when any contentious Suits arise amongst them (as in all Societies such must be look'd for) that they should not to the dishonour of Religion, betake themselves to Pagan Tribunals for Justice, but let their brethren decide matters. But who these were, is a great Quaere, the 4. v. seemes to put it upon those that were least esteemed, which can∣not be the Preachers. But Theophylact carries the sence thus, that tis an answere to a tacit objection, that some would be apt to say there is not a wise man in the Church, that can Judge. Well, ad∣mit according to that opinion, there be not one prudent person found, yet rather appoint those that were never so contemptible, and little esteemed in the Church your Judges, then go to the Heathen Tribunals. But Ambrose on the place, is more express, that Ministers are appointed Judges. And if the Vote and pra∣ctise of Antiquity, which is commonly none of the worst Exposi∣tours may be taken, matters will be yet more clear; Many scat∣tered passages there are in Igratius, Tertullian, Cyprian, &c. look∣ing this way, but being under the Lash, they are fain to whisper only, and durst not speak out.

I shall not much stand upon those Canons, that pass under the name of the Apostles, where we read that the Bishops ought to meet e∣very 2 daye of the week, to judge causes, and a Tribunal is a∣scribed to them, with power of deciding all controversies. Nor yet upon that of Clemens Ep. ad Jacob. Fr. Dom. where tis express, If any of the Brethren have differences among themselves, let them not goe to the Heathens for Justice, but let the Presbyters of the Church decide it. Now both these, however censured by some as spurious in respect of the titles they bear, yet cannot be denied to be very ancient. And in the 2 Ep. of Marcellinus, Quaecunque contentiones inter Christianos ortae fuerint ad Ecclesiam deferantur, & ab Ecclesiasticis determinentur.

We have indeed but few genuine peices remaining, of those poor persecuted times, wherein the distressed Believers were glad to make hard shifts, and fearfull to do any thing that might cre∣ate jealousie in the minds of those cruel Tyrants, whereas openly to professe the declining of their Tribunals, had been crime e∣nough. Yet St. Hierom (a curious searcher into old records) saith, Priests from the beginning were appointed Judges of causes l. de 7 Ordin. Eccles. And when they could use freedome, then we have them speaking aloud. For St. Ambrose pleads the Apostolical Commission Ep. 24. secundum sacrae formam praeceptonis, qua eum Apostolus induebat. S. Austin seconds him, and saith this task was imposed upon Spiritual persons by St. Paul, to decide tu∣multuosissimas perplexitates causarum alienarum de negotiis saecula∣ribus, De Opere Monachatus. c. 29.

I shall conclude this with a testimony of Calvin, whom all know to be no friend to the Episcopal Hierarchy, yet even he ac∣knowledges 4 Instit. c. 11. §. 10. That the Primitive Christians, to prevent wrangling suits were wont to commit their differen∣ces to be decided by their Bishops: and this held till the Magi∣strate received the Gospel.

But that which carries the greatest weight with me, is the Universal Practise immediatly after the Scepters of the earth stooped to Christ: for I cannot imagine that so great a novelty would have been imbraced without any contradiction, and not have been reproved by so many Eminent Worthies just escaped out of the flames of persecution, the School of Holinesse. Tis

more than probable then that by virtue of the Apostolical precept, of ending suits among themselves to prevent scandal (it being the main imployment of the Ministery to make peace between those that are at variance) in the Primitive times the whole management of differences was entrusted to the Clergy, as being persons of the greatest sincerity and ability. Now Constantine at his entrance upon the Government, finding it so, wisely con∣sidered how much the Authority, and Reverence of Religion did conduce to the expediting of Causes, and discovery of captious actions. For this was not done unadvisedly, sundry weighty rea∣sons being subjoyned, as will appear, if the Laws be perused. As first, because twas hoped it would tend much to allay the heat of wrangling, choak the malicious seeds of contentions, 2ly Be∣cause the Judgments of Bishops were lookt upon as true, uncor∣rupted, and piercing, whereby the Sophistry, tricks, and shifts of the Law might be prevented, and poor men, entangled in the tedious lasting snares of vexatious actions, might have a speedy issue put to their affairs. Now the good Emperour conceived they might well be intrusted with his own most important Nego∣tiations, and his Subjects estates, to whom God had committed the care of their precious Souls: therefore upon these prudential considerations, being satisfied in the usefulnesse and integrity of Spiritual persons, he made their Jurisdiction Authentick, giving it the Royal stamp, allowing no appeal from the sentence of the Bi∣shops, but making it as conclusive as his own, leaving it free to any 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Zozom. L. 1. c. 9. Niceph. L. 7. c. 46. who adds that this priviledge lasted to his time under Andronicus A. 1300. Valens and Valentiman, A. 365. enlarged it, and entrusted them with the rate of Commodities sold in the Markets. But their Jurisdiction has been in several Ages very various, sometimes en∣creased, sometimes clipt, as the Emperours were more or lesse favourable to the Church, who ever kept the Soveraignty in their own hands. Constantine was then the first that passed the Royall Grant in favour of the Clergy, permitting the cognizance of all civil matters even between Laymen to the Episcopal Tribunal, if either Party did require it, though the other denied his consent, and their appeal was to be obeyed by all the Magistrates, whenever

made, though the action was already commenced in another Court.

Arcadius and Honorius did a little retrench this unlimited power, yet still allowing it, by the joynt consent of both parties, and making the Bishops, as twere, Referees. L. siquis ex consensu. c. de Audientiâ Episcopal. and their deci∣sion to be binding and final without any appeal. This was af∣terwards ratified by Theodosius and Justinian l. Episc. c. eodem. Nay Justinian reposed so much confidence in them, that he made them Overseers of the Secular Judges, Novel. Const. 56. This then has been the avowed Catholick Practise of all ages, and Na∣tions where the Gospel has gaind footing. For the greatest enemies the Church had, could never yet deny, but that the Bishops have had their Tribunals for above these 1300 years erected by Con∣stantine, confirmed by Arcadius and Honorius, Theodosius, and Va∣lentinian 3, Only some curiously mince the matter, and allow them power to hear Causes, and to become Referees, and Um∣pires, by consent of both Parties; but yet they will not hear talk of any coercive Jurisdiction, though many Eminent Civilians attribute it to them: and Accursius interprets Audientia Episcopalis, a tearm frequent in the Code by Jurisdictio. Nay tis evident, there was no Case whatsoever, except only Capital (for Ecclesia sanguinis Iudicium non profert) but might be decided by the Episcopal Tribunal: and Constantine forbad the Greatest Prince in the Empire to revoke what once the Bishops had decreed, Euseb. Vit. Const. L. 4. c. 27. In processe of time the Magistrate having encroached upon, and almost outed the Clergy, Charles the Great revives that good old Law of Constantine, confirming the same Jurisdiction to all Bishops, re∣peating the Charter word for word Car. Mag. in Capit. l. 6. c. 28. And here methinks this very name, fills me with hopes, that Charles's are born for the good of the poor oppressed Church: and that God hath miraculously raised up to us, as true a Nursing Father, as ever bare that name, or our Island produced. And truly, who can expect lesse from the Son of such a Father, who dyed the Church's, Nay the Clergies Martyr: for if he could have dispensed with his Conscience, and Coronation Oath, to sacrifice them, and their Revenues to the coveruous fury of a prevailing Adversary, the 30. of Jan.

need not have been noted with such Black Letters in our Brittish Almanacks.

Notes

• Cod. Leg. 1. de Ep. Aud. Tit. 7.