for the church of Constantinople, differed from these. The Ambrosian form differed from the Roman, and the Roman from others. The Africans had peculiar forms of their own, differing from the Roman, as appears from some passages cited by Victorinus Afer and Fulgentius, out of the African liturgies, which Cardinal Bona1 owns are not to be found in the Roman.

Sect. 3. And express the ferent forms.

The like observation may be made

same creed in dif- upon the creeds used in divers churches. There was but one rule of faith, as Tertullian calls it, and that fixed and unalterable, as to the substance, throughout the whole church. Yet there were different ways of expressing it, as appears from the several forms still extant, which differ something from one another. Those in Irenæus, in Cyprian,' and Tertullian, are not exactly in the same method nor form of words. The creed of Eusebius and his church of Cæsarea differed from that of Jerusalem, upon which Cyril" comments; and that of Cyril's, from that in St. James's" liturgy. And to omit abundance more that might here be mentioned, the creed of Aquileia recited by Ruffin" differs from the Roman creed, which is that we commonly call the Apostles' creed. Now, the reason of all this difference could be no other but this, that all bishops had power to frame the creeds of their own churches, and express them in such terms as suited best their own convenience, and to meet with the heresies they were most in danger from: as Ruffin observes that the words, invisible and impassible, were added to the first article in the creed of Aquileia, in opposition to the Patripassian or Sabellian heretics, who asserted that the Father was visible and passible in human flesh, as well as the Son. And it is evident the bishops of other churches used the same liberty, as they saw occasion.

Sect. 4.

It were easy to confirm this observAnd appoint par- ation by many other instances of the like nature; but I shall only name

ticular days of fasting in their own churches.

one more, which is the power every bishop had to appoint particular days of fasting in his own church. This we learn from St. Austin's answer to Casulanus about the Saturday fast. Casulanus was very much troubled and perplexed about

4 Bona, Rer. Liturgic. lib. 1. c. 7. n. 3.

5 Tertul. de veland. Virg. c. 1. Regula fidei una omnino est, sola immobilis et irreformabilis, &c.

Iren. lib. 1. c. 2.

Cypr. Ep. 70. ad Episc. Numid. p. 190. It. Ep. 76. al. 69. ad Magnum. p. 183. ed. Oxon.

8 Tertul. ibid.

Euseb. Ep. ad Cæsariens. ap. Socrat. lib. 1. c. 8. 10 Cyril. Hierosol. Catech. 4.

"Liturg. Jacobi. Bibl. Patr. Gr. Lat. t. 2. p. 7.

12 Ruffin. in Symbol. Credo in Deum Patrem omnipotentem, invisibilem, et impassibilem.

13 Aug. Ep. 86. ad Casulan. Mos eorum mihi sequendus videtur, quibus eorum populorum congregatio regenda commissa est. Quapropter si consilio meo acquiescis: episcopo

Sect. 5. The independency of bishops most African churches.

it, because he observed in Africa some churches keep it a fast, and others a festival; nay, sometimes in the same church men were divided in their practice, and one part dined on that day, whilst another fasted. Now, to remove Casulanus his scruple, St. Austin gives him this answer: "3 That the best way in this case was, to follow those who were the rulers of every church. Therefore, if he would take his advice, he should never resist his bishop in this matter, but do as he did without doubt or scruple. Which plainly implies, that it was then in every bishop's power to order or not order this fast in his own church, as he saw most convenient. And indeed these privileges of bishops, and their absolute and independent power in all such matters, conspicuous in the were no where more fully reserved to them, than in the African churches, from the time of Cyprian, who frequently makes mention of this independent power; which extended not only to mere rituals, but to several momentous points of discipline; such as the case of rebaptizing heretics, admitting adulterers to the communion of the church again, and the question about the validity of clinic baptism. In these points Cyprian's opinion and practice differed from others of his fellow bishops: but yet he assumed no power of censuring those that acted differently from what he did, nor separated from their communion upon it; but left every one to give an account of his own practice to God the Judge of all. For the case of rebaptizing such as were baptized by heretics, he was entirely for it, as is sufficiently known to all; but he was not so zealous for it, as to exercise any judicial power of deposing or excommunicating those who practised otherwise; but declares he left every bishop to his liberty, to act according to his judgment, and answer for what he did to God alone. To this purpose he expresses himself in his letter to Pope Stephen," and that to Jubaianus," but most fully in his speech delivered at the opening of the great council of Carthage, which met to consider this very question. Let us every one now, says he, give our opinion of this matter; 16 judging no man, nor repelling any from our communion, that shall

tuo in hac re noli resistere, et quod facit ipse, sine ullo scrupulo vel disceptatione sectare.

14 Cypr. Ep. 72. ad Steph. p. 197. Qua in re nec nos vim cuiquam facimus, aut legem damus, cum habeat in ecclesia administratione voluntatis suæ arbitrium liberum unusquisque præpositus, rationem actus sui Domino redditurus. 15 Ep. 73. ad Jubaian. p. 210.

16 Con. Carth. ap. Cypr. p. 229. Superest ut de hac ipsa re singuli quid sentiamus, proferamus; neminem judicantes, aut a jure communionis aliquem, si diversum senserit, amoventes. Neque enim quisquam nostrum episcopum se episcoporum constituit, aut tyrannico terrore ad obsequendi necessitatem collegas suos adigit; quando habeat omnis episcopus pro licentia libertatis et potestatis suæ, arbitrium proprium; tamque judicari ab alio non possit, quam ned

think otherwise. For no one of us makes himself bishop of bishops, or compels his colleagues by tyrannical terror to a necessity of complying; forasmuch as every bishop, according to the liberty and power that is granted him, is free to act as he sees fit; and can no more be judged by others, than he can judge them. But let us all expect the judgment of our Lord Jesus Christ, who only hath power both to invest us with the government of his church, and to pass sentence upon our actions. Thus far Cyprian, in full and open council, declares for the independent power of every bishop, tacitly reflecting upon the bishop of Rome, who pretended to excommunicate those who differed in opinion and practice from him, which Cyprian condemns as a tyrannical way of proceeding.

For the next point, that is, the case of admitting adulterers to communion again, Cyprian says his predecessors in Africa were divided upon the question; but they did not divide communion upon it: for though some bishops admitted adulterers to penance, and others refused to do it, yet they did not censure each other's practice, but preserved peace and concord among themselves," leaving every one to answer to God for his actions. I know indeed some learned persons" interpret this liberty of the African bishops so, as to make it mean no more than a liberty to follow their own judgment, till such times as the church should determine the matter in dispute, by making some public decree about it. But I must own, I cannot but think Cyprian meant something more, because he pleads for the same liberty even after the decrees of a plenary council; as we have seen in his preface to the council of Carthage.

As to the third question, about the validity of clinic baptism, that is, whether persons who were only sprinkled with water in their beds in time of sickness, and not immersed or washed all over the body in baptism, were to be looked upon as complete Christians; Cyprian for his own part resolves it in the affirmative. But yet, if any bishops were otherwise persuaded, that it was not lawful baptism, and upon that ground gave such persons a new immersion, he professes 19 that he prescribes to none, but leaves every one to act according to his own judgment and discretion. This was that ancient liberty of the Cyprianic age, of which I have discoursed a little more particularly in this place, be

cause it shows us what was then the uncontested power and privilege of every bishop in the African church, which is not so commonly understood in these latter ages.

CHAPTER VII.

OF THE POWER OF BISHOPS IN HEARING AND DETERMINING SECULAR CAUSES.

Sect. 1. Bishops commonly chosen arbitrators of men's differences

church.

WE have hitherto considered such offices of the episcopal function, as belonged to all bishops by the laws of in the primitive God and the canons of the church. Besides these there was one office more, imposed upon them by custom, and the laws of the state; which was the hearing and determining secular causes, upon the continual applications and addresses that people made to them. For such was the singular character and repute of bishops, and such the entire confidence men generally reposed in them for their integrity and justice, that they were commonly appealed to, as the best arbitrators of men's differences, and the most impartial judges of the common disputes that happened among them. Sidonius Apollinaris' often refers to this custom: and Synesius calls it part of his own episcopal office and function. St. Ambrose testifies for himself that he was used to be appealed to upon such occasions; and St. Austin' says of him, that he was often so much employed in hearing causes, that he had scarce time for other business. And this was St. Austin's case also, who frequently complains of the burden that lay upon him in this respect. For not only Christians, but men of all sects applied to him: insomuch that, as Possidius notes in his Life, he often spent all the morning, and sometimes the whole day, fasting and hearing their causes; which, though it was a great fatigue to him, yet he was willing to bear it, because it gave him frequent opportunities of instilling the principles of truth and virtue into the minds of the parties that applied themselves to him.

And it is to be observed, that though there be no express text in the New Testament, that commands bishops to be judges in secular causes, yet St.

faciat. It. p. 188.

Sect. 2. The original of this custom. What

meant by the word St. Paul, 1 Cor. vi. 4

ἐξουθενημένοι τη

Nemini præscribentes, quo minus statuat quod putat unusquisque præpositus: actus sui rationem Domino redditurus.

Sidon. lib. 3. Ep. 12. lib. 6. Ep. 2 et 4.

2 Synes. Ep. 105. p. 399.

3 Ambros. Ep. 24. ad Marcellum.

4 Aug. Confess. lib. 6. c. 3.

5 Aug. Ep. 110 et 147. It. de Opere Monach. c. 29.

6 Possid. Vit. Aug. c. 19.

Austin was of opinion, that St. Paul, in prohibiting men to go to law before the unbelievers, did virtually lay this obligation upon them. For he says once and again,' that it was the apostle that instituted ecclesiastical judges, and laid the burden of secular causes upon them. By which he means, that the apostle gave a general direction to Christians to choose arbitrators among themselves; and that custom determined this office particularly to the bishops, as the best qualified by their wisdom and probity to discharge it. And this is very agreeable to St. Paul's meaning, 1 Cor. vi. 4, as some very learned and judicious critics understand him. For though all the common translations render the words, ἐξουθενημένους ἐν τῇ ἐκκλησίᾳ, persons that are least esteemed in the church; yet Dr. Lightfoot observes, that they may as well signify persons of the greatest esteem. For the original word, ovde, vnuevo, signifies only private judges, or arbitrators of men's own choosing; such as were in use among the Jews, who called them idurai, and non-authentici, not because they were of the meanest and most contemptible of the people, but because they were the lowest rank of judges, and not settled as a standing court by the sanhedrim, but chosen by the litigants themselves to arbitrate their causes. Such private judges the apostle directs the Christians to choose in the church, and refer their controversies to them: which is not any injunction to choose judges out of the poorest, and meanest, and most ignorant of the people, but rather the contrary, persons that were well qualified by their wisdom and authority to take upon them to be judges, and end controversies among their brethren. Now because none were thought better qualified in these respects than bishops, the office of judging upon that account was commonly imposed upon them, and they in decency and charity could not well refuse it. This seems to be the true original of this part of the episcopal office and function. But what was thus begun by cus

Sect. 3.

shops confirmed by

This power of bi- tom, while the civil governors were the imperial laws. heathens, was afterward confirmed and established by law, when the emperors became Christians. Eusebius' says, Constantine made a law to confirm all such decisions of bishops in their consistories, and that no secular judges should have any power to reverse or disannul them; forasmuch

7 Aug. Ser. 24. in Psal. cxviii. Constituit talibus causis ecclesiasticos apostolus cognitores, in foro prohibens jurgare Christianos. Id. de Oper. Monach. c. 29. Quibus nos molestiis affixit apostolus, &c.

Lightfoot, et Lud. de Dieu, in 1 Cor. vi. 4.

9 Euseb. de Vit. Constant. lib. 4. c. 27.

10 Sozom. lib. 1. c. 9.

11 Selden, Uxor Hebr. lib. 3. c. 28. p. 564.

12 Extravag. de Elect. Judicii Episcop. ad Calcem Cod. Theod. t. 4. p. 303. Quicunque litem habens, sive possessor, sive petitor erit, inter initia litis, vel decursis temporum curriculis, sive cum negotium peroratur, sive cum jam cœ

as the priests of God were to be preferred before an other judge. And Sozomen" adds, that he gav leave to all litigants to refer their causes to the d termination of bishops, whose sentence should stan good, and be as authentic as if it had been the d cision of the emperor himself: and that the govern ors of every province and their officers should b obliged to put their decrees in execution. There i a law now added at the end of the Theodosian Code which some take for this very law of Constantine men tioned by these authors. Selden himself reckons it a genuine piece; but I think Gothofred's argu ments are stronger to prove it spurious. For i grants bishops such a power, as neither Eusebius nor Sozomen mention, and all other laws contradict viz. That if either of the contending parties, the possessor," or the plaintiff, was minded to bring the cause before a bishop, either when it was before a secular court, or when it was determined, he might do it, though the other party was against it. Whereas all laws and history are against this practice: for no cause was to be brought before a bishop, except both parties agreed by way of compromise to take him for their arbitrator. In this case the bishop's sentence was valid, and to be executed by the secular power, but not otherwise. So that either this was not the genuine law of Constantine, to which Eusebius and Sozomen refer, or else it was revoked and contradicted by all others. Gothofred produces a great many contrary laws. I shall content myself with a single instance.

Sect. 4. Yet not allowed in criminal causes; in causes,

but when the litia bed

to take them for arbitrators.

In the Justinian Code 13 we have two laws of the emperors Arcadius and Honorius about the same matter, which may serve to explain the law of Constantine. For there any bishops are allowed to judge, and their judgment is ordered to be final, so as no appeal should be made from it; and the officers of the secular judges are appointed to execute the bishop's sentence. But then there are these two limitations expressly put in: first, that they shall only have power to judge, when both parties agree by consent to refer their causes to their arbitration. And, secondly, where the causes are purely civil, and not criminal causes, where perhaps life and death might be concerned. For in such causes, the clergy were prohibited by

perit promi sententia, judicium eligit sacrosanctæ legis antistitis, ilico sine aliqua dubitatione, etiamsi alia pars refragatur, ad episcopum cum sermone litigantium dirigatur. Vid. Gothofred. Comment. in loc.

13 Cod. Justin. lib. 1. Tit. 4. Leg. 7. Si qui ex consensu apud sacræ legis antistitem litigare voluerint, non vetabuntur. Sed experientur illius in civili duntaxat negotio, more arbitri sponte residentis judicium. Ibid. Leg. 8. Episcopale judicium ratum sit omnibus, qui se audiri a sacerdotibus elegerint; eamque eorum judicationi adhibendam esse reverentiam jubemus, quam vestris deferri necesse est potestatibus, a quibus non licet provocare, &c.

the canons of the church," as well as the laws of the state, from being concerned as judges. Therefore bishops never suffered any criminal causes to come before them, except such as were to be punished with ecclesiastical censures.

Sect. 5.

But they had commonly civil causes Bishops sometimes more than enough flowing in upon

made their presby

laymen, their substi

ters, and sometimes them. So that they were forced sometates in this affair. times to let part of this care devolve upon some other person, whose integrity and prudence they could confide in. This was commonly one of their clergy, a presbyter or a principal deacon. St. Austin, when he found the burden of this affair begin to press too hard upon him, substituted Eradius his presbyter" in his room. And the council of Taragone speaks not only of presbyters, but deacons also," who were deputed to hear secular causes. And Socrates says," Sylvanus, bishop of Troas, took the power wholly out of the hands of his clergy, because he had found some of them faulty in making an unlawful gain of the causes that were brought before them; for which reason he never deputed any one of them to be judge, but made some layman his delegate, whom he knew to be a man of integrity, and strict lover of justice. I leave the learned to inquire, whether lay chancellors in the church had not their first rise and original from some such occasion as this, whilst bishops deputed laymen to hear secular causes in their name, still reserving the proper spiritual and ecclesiastical power entirely to themselves.

CHAPTER VIII.

OF THE PRIVILEGE OF BISHOPS TO INTERCEDE FOR

and interest

ing to the

magistrates.

CRIMINALS.

I HAVE observed in the foregoing Of the great power chapter, that bishops were never albps in interced-lowed to be judges in capital or criminal causes, because they were not to be concerned in blood: they were to be so far from having any thing to do in the death of any man, that custom made it almost a piece of their office and duty to save men from death, by interceding to the secular magistrates for criminals that were condemned to die. St. Ambrose often made

Concil. Tarracon. can. 4. Habeant licentiam judicandi, exceptis criminalibus negotiis.

4

use of this privilege, as the author of his Life observes; frequently addressing himself to Macedonius,' and Stilico, and other great ministers of the age, in behalf of poor delinquents, to obtain pardon for them. St. Austin did the same for the Circumcellions, when they were convicted and condemned for murdering some of the catholic clergy: he wrote two pathetic letters to the African magistrates, Marcellinus Comes, and Apringius, desiring that their lives might be spared, and that they might only be punished with close custody and confinement, where they might be set to work, and have time allowed them for repentance. The council of Sardica seems to speak of it as the duty of all bishops, to intercede for such as implored the mercy of the church, when they were condemned to be transported or banished, or any the like punishment. And the custom was become so general, that it began to be considered as a condition in the election of a bishop, whether he were qualified to discharge this part of his office as well as others. Sidonius Apollinaris instances in such a case, where it was made an objection by the people against the election of a certain bishop, that being a man of a monkish and retired life, he was fitter to be an abbot than a bishop: he might intercede, they said, indeed with the heavenly Judge for their souls, but he was not qualified to intercede with the earthly judges for their bodies. He was not a man of address, which they then thought necessary to discharge this part of the office of a bishop. They might perhaps judge wrong, as those in St. Jerom did, who pretended that clergymen ought to give splendid entertainments to the secular judges, that they might gain an interest in them; whom St. Jerom justly reproves, telling them, that any judge would pay a greater reverence to a pious and sober clergyman, than to a wealthy one, and would respect him more for his holiness than his riches. However, this shows what was then the common custom, and how great an interest bishops generally had in the secular magistrate, who seldom rejected any petitions of this nature. Socrates notes, that even some of the Novatian bishops enjoyed this privilege, as Paulus' of Constantinople, and Leontius of Rome, at whose intercession Theodosius the emperor pardoned Symmachus, who had been guilty of treason, in making a panegyric upon Maximus the tyrant, but was, after his death, fled for sanctuary to a Christian church.

5 Sidon. lib. 7. Ep. 9. p. 443. Hic qui nominatur, inquiunt, non episcopi, sed potius abbatis complet officium: et intercedere magis pro animabus apud cœlestem, quam pro corporibus apud terrenum judicem potest.

Hieron. Ep. 2. ad Novatian. p. 15. Quod si obtenderis te facere hæc, ut roges pro miseris atque subjectis: judex sæculi plus deferet clerico continenti, quam diviti, et magis sanctitatem tuam venerabitur quam opes.

Socrat. lib. 7. c. 17.

• Id. lib. 5. cap. 14.