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heretic was not to give evidence against a bishop, as may be collected from those Canons which bear the name of the Apostles, one of which joins these two things together;' "Receive not an heretic to testify against a bishop; nor a single witness, though he be one of the faithful;" for the law saith," in the mouth of two or three witnesses shall every word be established." Athanasius pleaded the privilege of this law, when he was accused for suffering Macarius, his presbyter, to break the communion-cup; he urged, "that his accusers were Meletians, who ought not to be credited, being schismatics, and enemies of the Church." By the second council of Carthage, not only heretics, but any others, that were known to be guilty of scandalous crimes, were to be rejected from giving testimony against any elder of the Church. The first generalcouncil of Constantinople distinguishes the causes, upon which an accusation might be brought against a bishop; for a man might have a private cause of complaint against him, as that he was defrauded in his property, or in any the like case injured by him; in which case his accusation was to be heard, without considering at all the quality of the person or his religion. For a bishop was to keep a good conscience, and any man, that complained of being injured by him, was to have justice done him, whatever religion he was of. But if the crime was purely ecclesiastical, which was alleged against him, then the personal qualities of the accusers were to be examined; so that no heretics should be allowed to accuse orthodox bishops in causes ecclesiastical ;* nor any excommunicate persons, before they had first made satisfaction for their own crimes; nor any, who were impeached of crimes, of which they had not proved themselves innocent. The council of Chalcedon adds, "that no clergyman or layman should be admitted to impeach a bishop or a clerk, till his own reputation and character were first inquired into and fully examined." So

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Canon. Apost. c. 75.

Athan. Apol. ad Constant. tom. i. p. 731. 8 Con. Carth. ii. c. 6. Qui aliquibus sceleribus irretitus est, vocem adversus majores natu non habeat accusandi. Vid. Cod. Can. Afric. c. 8.

Con. Constant. Gen. i. c. 6.

Con. Chalced. c. 21.

careful were they in this matter not to expose the credit of the clergy to the malicious designs or wicked conspiracies of any profligate wretches, whom malice or bribery might induce to accuse them. Thirdly, in case of false accusation, whether public or private, the penalty against the offender was very severe. "If any clergyman," says one of the Apostolical Canons,' “ unjustly reproach a bishop, he shall be deposed; for it is written, "thou shalt not speak evil of the ruler of thy people." And by a canon of the council of Eliberis, for any man to charge a bishop, presbyter, or deacon, with a false crime, which he could not make good against them, was excommunication without hopes of reconciliation at the hour of death. Which was the usual penalty, that was inflicted by that council upon very great and notorious offenders; for which some have censured the Spanish Church as guilty of Novatianism, but without reason, as I shall show, when I come to discourse of the discipline of the Church. Here it may be sufficient to observe, that they thought this crime one of the first magnitude, since they refused to give the external peace of the Church to such offenders, even at their last hour. Many other instances of the like respect might here be added, but by these few the reader will be able to judge, with what candour and civility the clergy of the primitive Church were obliged to receive and treat one another. And it would have been happy for all ages, had they walked in the same steps, and copied after so good an example.

1 Canon. Apost. c. 47.

2 Con. Eliber. c. 75. Si quis Episcopum, Presbyterum, vel Diaconum falsis criminibus appetierit, et probare non-potuerit, nec in fine dandam ei communionen.

CHAP. II.

Instances of Respect showed to the Clergy by the Civil Government. Particularly of their Exemption from the Cognizance of the Secular Courts in Ecclesiastical Causes.

SECT. 1.-Bishops not to be called into any Secular Court to give their Testimony.

NEXT to the respect which the clergy showed to one another, it will be proper to speak of the honours which were done them by the civil magistrates, which were more or less, according as either the inclination and piety of the emperors led them, or as the state of the times required. These honours chiefly consisted in exempting them from some sort of obligations, to which others were liable, and in granting them certain privileges and immunities, which others did not enjoy. Of this kind was that instance of respect, which, by the laws of Justinian,' was granted to all bishops, "that no secular judge should compel them to appear in a public court to give their testimony before him, but he should send one of his officers to take it from their mouths in private." This law is also repeated in the Justinian Code, and there said to be enacted first by Theodosius the Great, a law of whose is still extant in the same words, in the Theodosian Code. But Gothofred will have it, that this law, as first enacted by Theodosius, meant no more than to exempt the clergy from being bound to give an account, to the civil magistrates, of what judgments or sentences they passed upon any secular causes, that were referred to their arbitration. And, indeed, it is evident, that the law-terms, "ad testimonium devocari," and "is μαρτυρίαν ἐπικαλεῖσθαι,” are taken in this sense by the Afri

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sed judex mittat ad eos 2 Cod. Justin. lib. i. tit. Nec honore, nec legibus 3 Cod. Th. lib. xi, tit.

'Justin. Novel. 123. c. 7. Nulli judicum licebit Deo amabiles Episcopos cogere ad judicium venire pro exhibendo testimonio; quosdam ex personis ministrantium sibi, &c. 3. de Episc. leg. 7. Imperator Theodosius dixit, Episcopus ad testimonium dicendum flagitetur. 39. de Fide Testium. leg. S.

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can fathers in the fifth council of Carthage, where it was agreed, "to petition the emperors, to make a decree, that, if any persons referred a civil cause to the arbitration of the Church, and one of the parties chanced to be displeased with the decision or sentence, that was given against him, it should not be lawful to draw the clergyman, who was judge in the cause, into any secular court, to make him give any testimony or account of his determination." This was not intended to exempt clergymen in general from heing called to be witnesses in a secular court, but only to free them from the prosecutions of vexatious and troublesome men, who, when they had chosen them for their arbitrators, would not stand to their arbitration, but prosecuted them in the civil courts, as if they had given a partial sentence against them. And though it was contrary to the law to give them any such trouble, because, as I have showed in another place, all such determinations were to be absolutely decisive and final without appeal; yet it is probable some secular judges in Afric might give encouragement to such prosecutions; which made the African fathers complain of the grievance, and desire to have it redressed, in the forementioned canon, to which Gothofred thinks the law of Theodosius refers. But whether the law of Theodosius be thus to be limited, is a matter that may admit of further inquiry. Gothofred himself confesses that Justinian took it in a larger sense; and that is enough for me to found this privilege of bishops upon, that they were not to be called into a secular court, to give their testimony there in any case whatsoever.

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SECT. 2.-Nor obliged to give their Testimony upon Oath, by the Laws of Justinian.

Another privilege of this kind, which also argued great respect paid to bishops, was, that when their testimony was

'Con. Carth. v. c. 1. It. Cod. Can. Afr. c. 59. Et Con. vulg. dict. Africanum. c. 26. Petendum ut statuere dignentur, ut si qui fortè in ecclesiâ quamlibet causam, jure apostolico ecclesiis imposito, agere voluerint, et fortassè decisio Clericorum uni parti displicuerit; non liceat Clericum in judicium ad testimonium devocari eum, qui cognitor vel præsens (forsan præses) fuerit. Et nulla ad testimonium dicendum Ecclesiastici cujuslibet persona pulsetur. Book ii. chap. vii. sect. 3 and 4.

taken in private, they were not obliged to give it upon oath, as other witnesses were, but only upon their word, as became the priests of God, laying the Holy Gospels before them. For the same law of Justinian,' which grants them the former privilege, enacted this in their favour and behalf also. And in pursuance of that law probably the council of Tribur, some ages after, decreed, "that no presbyter should be questioned upon oath, but instead of that only be interrogated upon his consecration, because it did not become a priest to swear upon a light cause." But it does not appear, that this indulgence was granted to bishops before the time of Justinian. For the council of Chalcedon exacted an oath in a certain case of the Egyptian bishops; and the council of Tyre* required the same of Ibas, bishop of Edessa.. And there are many other instances of the like nature.

SECT. 3.-Whether the single Evidence of one Bishop was good in Law against the Testimony of many others.

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Constantine the Great granted many privileges to the clergy; but there are some that go under his name, which were certainly never granted by him. As his famed donation to the bishops of Rome, which Baronius 5 himself gives up for a forgery, and De Marca and Pagi' prove it to be a spurious fiction of the ninth century, invented most probably by the same Isidore Mercator, who forged the Decretal Epistles of the ancient bishops of Rome. There are other privileges fathered upon Constantine, which, though not such manifest forgeries as the former, are yet by learned men reputed of a doubtful nature; such as that, which is comprised in a law under the name of Constantine at the end of the Theodosian Code, where all judges are

'Justin. Novel. 123. c. 7. Propositis SS, Evangeliis, secundum quod decet Sacerdotes, dicant quod noverint, non tamen jurent. Con, Tribur. c. 21. Presbyter vice juramenti per sanctam consecrationem interrogetur ; quia Sacerdotes ex levi causâ jurare non debent, &c, act. iv. tom. iv. p. 518.

Baron. an. 324. n. 118.

Con. Chalced. * Con. Tyr. in Act. ix. Con, Chalced. p, 629. Marca de Concord, lib. vi. c.6. n.6.

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Cod. Th. lib. xvi. tit. 12. de

'Pagi Critic. in Baron. an. 324. n. 13. Episc. Audient. leg. 1. Testimonium etiam ab uno licet Episcopo perhibitum, omnes judices indubitanter accipiant, nec alius audiatur, cum testimonium Episcopi à quâlibet parte fuerit repromissum,