communication, if, after he has twice admonifh'd him, the criminal obftinately persists in the violation of fuch liberty, or offers no excufe, especially when the injury is important and notorious; I fay, if the injury be impor tant and notorious; because, tho' it be manifeft, and yet trifling, the prelate ought to remember the decree of the Council of Worms, formerly mention'd; which orders, that no perfon fhall be excommunicated for a trivial caufe: I add, that the bishop may lawfully inflict this punishment for the injury done, as well to the estates as perfons of the clergy, because private men are oblig'd to refpect both alike. If a perfon is convicted of a defign upon the life of an ecclefiaftic, he incurs excommunication ipfo facto, without previous admonition; which is not neceffary in this cafe, every one being fufficiently forewarn'd in law not to attempt the life of a clergyman; fo that whoever strikes a clergyman, is as much excommunicated as if fentence were actually paffed against him, and publifh'd. Nevertheless, I must not forget to take notice, that cafes of felf-defence ought always to be excepted; for if it be decided that a prieft, who, going to celebrate mafs, kills a man in his own defence, cum moderamine inculpata tutela, is not only exempt from the breach of the canon againft homicide, but from the very imputation of fin; fo that he may approach the altar with unwash'd hands, and legally celebrate I 2 mafs; mafs; and all this because self-defence is au thoriz'd by a law of nature, not made, but implanted in our very beings, and from which no other law can derogate; we have the fame reason to make this exception at another time in favour of the laity, who, being not so ftrictly oblig'd as the clergy to fubmit to the canons, are more at liberty to obey this law of nature. It ought alfo to be confider'd, in regard to the conduct of a private person, who violates the ecclefiaftical liberties with relation to eftates, that if his attempt be barely injurious, he deferves the ecclefiaftic cenfures; but with this precaution before-mention'd, that such cenfures be preceded with two admonitions. Now if the criminal, after the faid admonitions, offers no plea in excufe for his conduct, and actually perfifts in his attempt, it ought certainly to be deem'd injurious; but on the other hand, if he protests against the admonition, pretending to have acted jure proprio, and by virtue of fome title, be it what it will, then the ecclefiaftics, whom it concerns, fhall not fummon fuch laymen before the ecclefiaftical court, but before the fecular tribunal, which fhall judge of the validity of the pretended title; for 'tis a rule in law, that the plaintiff or profecutor bring his action in that court to which the defendant belongs. Thus for example; if a Venetian has any demand upon a citizen of Bergamo, he must bring his action against him at Bergamo, and not cite him to appear at Venice. If indeed fo much time is spent in proving the title as renders the fuit tedious, then excommunication may be publish'd; but if it be publifh'd before fuch proteftation, all the confequences of it ought to be fufpended, for the delinquent cannot be deem'd contumacious while his injury does not appear; and if not contumacious, he cannot be fubject to excommunication. 'Tis needless to dwell longer upon these confiderations, which are not fo much as controvertible, if the jurifdiction of the judge, which uses to be difputed, be not refus'd, or call'd in question. If a fovereign prince breaks in upon ecclefiaftical liberty, we have already observ'd, that diftinction ought to be made between eftates and perfons; if a feizure be made of eftates, there fhould be another diftinction between the tenths and other ecclefiaftical eftates. Every thing relating to the tenths fhall be refer'd to its proper head, and the power of a prince to feize them, fhall be the fubject of the tenth chapter. Therefore, if a prince lay hands, not upon the tenths, but other eftate of the clergy, and seize it for the good of the publick; for inftance, if he make ufe of the Church-lands for building a wall, making ditches about a city, or trenches for the paffage of a river, or canal, or any thing elfe for the publick good and fafety; tho' fuch fovereign refuse, after the Pope's admonition, to refore thofe lands, whatever cenfure he may deferve in other cafes, he incurs none in this, because it falls under the law of neceffary defence, which, I have already fhewn, is excepted out of this queftion. But if a fovereign prince ufurp the eftates of the clergy, with no other view but to fill his own coffers, to furnish him diverfion, to pamper his luxury, or to maintain the fplendor and vain pomp of his court; notwithstanding all that has been faid to prove that the authority of the Pope over princes is purely fpiritual, and confequently that they are accountable to God's tribunal only for their crimes; yet, for all this, I say, that fuch prince deferves excommunication, because the power given to the Pope by Chrift himself to feed the chriftian flock, includes in it an obligation to defend the ecclefiaftics in the peaceable enjoyment of their temporal maintenance, that they may be the better prepar'd to perform the offices of the priesthood, and to distribute that bread, which is the chief and truly celeftial nourishment. It cannot be deny'd that the use the prince makes of the estate of the clergy which he feizes, may either diminish, or augment the nature of his crime. We read that Herod, king of the Jews, fent fome of his confidents to the tombs of David and Solomon, to carry away the facred treafures, which were there repofited; and a fudden flafh of fire came out out of the tomb and confum'd them, But king Hyrcanus, who, fome time after, took three hundred talents out of those tombs, to. buy a Peace from the king of Egypt, came to no harm, nor thofe whom he fent with that commiffion. God was pleas'd to make it appear by this variety of fuccefs, that the end and defign which a perfon proposes is always more to be regarded than the action itself, because the former renders the latter either good or evil. Very pertinent to this purpose, 1 remember a laudable action of Pope John IV. whose Memory I therefore revere. This Pope made no fcruple to ftrip all the Churches of Rome of their moft precious ornaments, for redeeming a number of chriftian flaves from the infidels, remembring from the Revelations, that those animated ftones were the truly precious ftones, which were to go towards the building of the heavenly Jerufalem. A prince may be faid to make an attempt against ecclefiaftical liberty, with refpect to perfons, when he molefts the Clergy, either in the exercise of their functions, or in actions which they do, not as priests, but as ordinary perfons. If a prince disturbs a clergyman in his prieftly character or functions, he deserves excommunication (provided two admonitions be given in the first place) for 'tis faid, Touch not my anointed: Now, by the word anointed, all thofe are understood who are anointed, or confecrated by divine ordination. But this point deserves parti I 4 |