soever they should have grounds and causes so to doe Mary since when as the Discipline and governement provinciall diocesan ministred and exercised by the late Archbishop deceased and his Suffraganes was diversly handled disputed and controverted not to be agreeable but repugnant to the holy Scriptures necessarie also for the repressing of vice the increase of faith and Christian religion to be changed they herevpon iustly fearing that the most vertuous Christian Queene deceased vpon sundry cōplaints made in open Parliament against their many vniust greevances would have reformed the same their maner of governement they then presently vpon new advise and consulation taken boldly and constantly avouched the same their governement to have bene from the Apostles times and agreeable to the holy scriptures and therefore also perpetuall and still to be vsed in no case to be altered by any king or Potentate whatsoever By meanes of which this their enclyning to the popish opinion and holding their Iurisdictiō to bee de iure divino professedly mainteyning in the Homilie wherevnto also subscription is vrged that the King and all the Nobilitie ought to be subiect to excommunication there is now at length growne such a mayne position of having a perpetuall Diocesan and Provinciall governement in the church that rather then their Hierarchie should stoope they would cause the Kings Supremacie which he hath over their said Iurisdiction to fall downe to the ground In so much as by their supposition the King hath no authoritie no not by his supreame power to alter their sayd governement at all And to this end and purpose as it seemeth in their late canons have they devised and decreed this booke of ordination to be subscribed vnto Which subscription can not but quite and cleane overthrow the Kings supremacie and auncient iurisdiction in the most dangerous degree For if their Provinciall and Diocesan orders and degrees of Ministerie together with their iurisdiction be to bee vsed as established and derived vnto them by the holy scriptures how then can it be in the power and iurisdiction of the King to graunt or not to graunt the vse of Provinciall and Diocesan Bishopisme and iurisdiction Or how may the provinciall Bishops with their Diocesan Suffraganes be called the kings ecclesiasticall officers if their iurisdictions be not derived vnto them from the king For if they be called Gods Bishops or Bishops of Gods making how then may they anie more be called the kings Bishops or Bishops of the kings presenting nominating and confirming Nay besides who then can alter them who can restreyne them who can revoke or recall their power and iurisdiction who can resist them or what king of England may pluck his neck from vnder their yoke Nay how should the kings Supremacie as by the ancient Lawes of the Realme it ought remayne inviolable when his Royall person whole Nobilitie and Realme is subiect and lyable to the censure of the canon Law excommunication Which law the Provinciall and Diocesan Bishops to this day in right and by vertue of their Provinciall and Diocesan iurisdiction and none otherwise do stil vse practise and put in execution Besides if Bishops Provinciall and Diocesan as they be described in that book be commanded in the Scriptures and were in vse ever since the Apostles times then ought they to be in the Church of England though the King and his law never allowed nor approved of them But to hold this opinion as it will vphold the Popes supremacie because the generall reasons which vphold a Provinciall Bishop will vphold a Pope so will it once againe not only impeach the Kings supremacie but also be repugnant to the lawes and customes of the Realm By which supremacie lawes and customes only the provinciall diocesan Bishops have bene hitherto vpheld For seing the lawes and customes of the Realme doe make the Kings nomination presentation and confirmation the very essence and being of a Provinciall Diocesan Bishop with vs So that these offices ought to be held only from the authoritie gift and graunt of the King how ought not the kings nomination presentation authoritie and gift yea and the law it self in this case wholy cease if the order degree ministerie and iurisdiction of a provinciall and diocesan Bishop be founded in holy Scripture Vnlesse we shall affirme that that was in the Apostles times which was not or that that is to be found in holy Scripture which is not Namely that there were in the Apostles times and that there be in the holy Scriptures no Bishops but provinciall and dioceasan Bishops to bee found And that by the law of God and the Gospell every King and Potentate hath supreme power to suffer none but Provinciall Diosan Bishops to be in the Churches So that by subscription to allow that provinciall and Diocesan Bishops be Scripturely Bishops and that their iurisdiction and power is a Scripturely iurisdiction and power is to deny that their iurisdiction and power dependeth vpon the kings iurisdiction and power or that by the kings gift and authoritie they be made Bishops But how doeth subscription you will say to the booke of ordination approve the orders and degrees of provinciall diocesan Bishops to be by Divine right rather then by humane ordinance How Why thus it is evident saith the preface of that booke to all men diligently reading holy Scripture and ancient Authors that from the Apostles times there have bene these orders of Ministers in Christes Church Bishops Priests and Deacons Yea and by the whole order of prayer and of Scripture read vsed in the forme of consecrating of an Archbishop or Bishop it is apparant that the order of an Archbishop or Bishop consecrated by that booke is reputed taken to be of Divine institution And therfore seing the names of those orders of Ministers must necessarily be taken and vnderstood of such orders of Ministers as be sett forth and described in the body of that booke it must needes be intended that the Ministers by their subscription should approve the orders of Ministers mencioned in that booke to be of Divine institution and consequently that provinciall and diocesan Ministers or Bishops have not their essence and being from the nomination gift authoritie of the King Besides if we should vnderstand by the word Bishop him that hath the Ministrie of the word and Sacraments as the Pastor teacher and by the word Priest the Presbiter that is the Governing elder and by the word Deacon the provider for the poore then for the Ministers to subscribe to the booke of ordination would no way iustifie those officers or degrees of Ministers which are described in that booke but would indeed vtterly subvert and overthrow them Because the orders and degrees of a provincial diocesan Bishop of a Priest and Deacon mentioned in that booke be of a farr differing nature from those orders and degrees of Ministers which are mencioned
in the Scriptures because they only agree in name and not in nature Wherfore seeing there be other orders and degrees of Bishops then Provincial Diocesan Bishops found in the holy Scriptures seeing also Kings and Princes being Vicarij Dei be commanded to authorise all things for the trueth and nothing against the trueth it seemeth necessarie that his Maiestie should not only restrayne the Provinciall and Diocesan Bishops from vrging subscription to this booke of ordination being so derogatory in their sence and construction to his supremacie as nothing can be more but also to keepe the Bishops them selves within the tether and compasse of the word of God For if the word of God doe approve amongst the Ministers of the Word and Sacraments a primacie of order only denyeth vnto them any primacie of iurisdiction and power in ecclesiasticall governement as the learned Protestants have proved against the Papists touching Peters supremacie then will it follow that ours also ought to bee reduced to the same compasse both for the Kings Maiesties safetie and the Churches good Least Princes giving them more then God alloweth them they shoud them selves loose that right and authoritie which they ought to reteyne in their owne Royall persons Now that it may not be obiected that we begge the question of Scripturely Bishops not having any primacie of iurisdiction power in ecclesiasticall government to let passe all particuler reasons of the Protestants against the Papists in this point it shall suffice in this place to produce for witnesses six forty Iurors against whoÌ„ no chalendge or exception can be taken Namely the said Thomas Crammer Archbishop of Canterburie Edward Archbishop of Yorke Iohn Bishop of London Cuthhert Dunèlmem Steven Winton Robert Cariolen Iohn Exon Iohn Lincoln Rowl and Coven Lichfield Thomas Elien Nicholas Sarum Iohn Banger Edward Herefordien Hugh Wigornen Iohn Roffen Richard Cicestren William Norwicen William Meneven Robert Assaven Robert Landaven Richard Wolman Archdeacon of Sudbur William Knight Archdeacon of Richmond Iohn Bell Archdeacon of Gloster Edmond Boner Archdeacon of Lecester William Skipp Archdeacon of Dorset Nicholas Heeth Archdeacon of Stafford Cuthbert Marshall Archdeacon of Notingham and Richard Curren Archdeacon of Oxford Together with William Cliff Galfrid Downes Robert Oking Radulf Bradford Richard Smith Simon Mathew John Fryn William Lukemaster William May Nicholas Wotton Richard Cox Iohn Edmonds Thomas Robertson Iohn Baker Thomas Baret Iohn Hase and Iohn Tyson Sacrae Theologiae iuris ecclesiastici civilis Professores All which Archbishops Bishops Archdeacons and Prelates having with one voyce and accord shewed vnto King Henry the eight that divers good Fathers Bishops of Rome did greatly reprove and abhorre as a thing cleane coÌ„trarie to the Gospell the Decrees of the church that any Bishop of Rome or elswhere should presume vsurpe or take vpon him the tytle and name of the vniversall Bishop or of the head of all Priestes or of the highest Priest or any such like tytle proceede further and in the end conclude and give vp their verdict thus For confirmation whereof it is out of all doubt that there is no mencion made neither in scripture neither in the writings of any authenticall Doctour or Authour of the Church being within the tyme of the Apostles That Christ did ever make or institute any distinction or difference to be in the preeminence of power order or iurisdiction betweene the Aposties them selves or betweene the Bishops them selves but that they were all aequall in power order authoritie and iurisdiction And that there is now and sith the tyme of the Apostles any such diverâ—â—tie or difference among the Bishops it was devised by the ancient Fathers c. For the said Fathers considering the great and infinite multitude of Christian men and taking examples of the ould Testament thought it expedient to make an order of degrees to be among Bishops and spirituall governours of the Church and so ordeyned some to be Paâ—riarkes some to be Primates some to be Metropolitanes some to be Archpishops some to be Bishops c. Which differences the said holy Fathers thought necessarie to enact and establish by their Decrees and constitutions not for that any such differences were prescribed and established in the Gospell or mencioned in any Canonicall writings of the Apostles or testified by any ecclesiasticall Writer within the Apostles tyme. And thus farre their verdict But let vs graunt that orders of Bishops Priestes and Deacons bee conteyned in the holy scriptures yet if those orders of Bishops Priests and Deacons which are established in the booke be not the same orders of Bishops Priestes Deacons which are authorised by the scriptures then through the aequivocation of these wordes Orders of Bishops Priestes and Deacons there being afalacie how should this forme and maner of subscription be lawfull viz. that the booke coÌ„teyneth nothing contrarie to the word of God that it lawfully may be vsed For only such orders of Bishops Priestes and Deacons ought to be acknowledged subscribed vnto vsed as by the holy scriptures are warranted And therefore such as are conteyned in the booke if so be they be divers froÌ„ those which are approved in the holy scriptures how should they without sinne be subscribed vnto and vsed Vnlesse we shall affirme that Ministers of the Gospell of God may rightfully approove of such orders of Ministers as the Lord and Law giver of the Gospell never allowed ne approoved And thus much have we spoken touching not subscription touching the not exact vse of the order and forme of the booke of common prayer and touchinge the not precise practise and wearing of the rites ceremonies and ornaments of the church Wherein if we have spoken otherwise then as for our speaking wee have warrant from the Kings lawes our earnest desire is that it may be shewed vnto vs wherein we haue erred For if there be any thing whereof we be ignorant we shal be willing to be taught the same and having learned it to yeald to the practise thereof In the meane time seing not to weare a Surplice in the ministration of Divine service not to make a crosse in Baptisme not to subscribe c. in it selfe is not a sinne against any commandement of God nor a thing scandalous vnto the people And seeing also the Parsons who refuse to weare and vse the same be in every respect men of good note condition fame qualitie and behaviour yea such as against whom no misdemeanor for doctrine or life which might aggravate their offence can iustly be obiected we may lawfully as we thinke conclude in their behalf that de aequitate misericordia iuris they ought to be respected and tolerated rather then for their refusall meerely standing vpon their consciences whether erroneous or not erroneous it skilleth not de rigore iuris if there be any such rigour to be suspended excommunicated or deprived yea and in so generall and doubtfull a case
my Lord of W if he were demanded answere that a Christian Magistrates sword is committed vnto him rather for quieting then for troubling for healing then for wounding of the weake consciences of his Christian subiects For in that that Princes and subiects meeting in the communion of Saints be therein brethren how should the person of a Christian Magistrate though in excellencie hâ— fâ—rr surmount the persons of all his subiects alter the nature of a Christian trueth in a Christian communitie And if it be a trueth in christian communitie that Christian brethren ought not to trouble the weake mindes of their Christian brethren in things indifferent doeth not a christian Magistrate sinne if he obey not this trueth but to let this passe where you demand whether M. Bilson speake in the person of a Magistrate or in the person of a brother I referre it to the iudgment of all men whether in that place of his booke his wordes immediatly going before and following after doe not as directly touch the Magistrates office as by any possible meanes they may For he in that place mainteyning the Magistrats authorite touching his lawfull requiring of an oth vnto the supremacie both for coacting and correcting such as deny the lawfulnes of the same And for this purpose having cited the desperatenes of the Donatists who slew themselves rather then they would be forced to forgoe their fancies in the end saith thus How beit we grant that he w th woundeth a weak coÌ„science sinneth against Christ Whervpon also againe follow these words a litle after we may not for things indifferent trouble the Weake mindes of our brethren A Christian Magistrate then for of a christian Magistrate he speaketh sinneth against Christ if he trouble the weake mindes of his Christian brethren or wound their weake consciences for things indifferent And so this reply might suffice also vnto that exception made touching the rule and canon of the Archbishops and Bishops before rehearsed had not them selves in expresse termes more fully cleared this point For they make no maner difference or distinction betwene the preceptes and ordinances of Priestes and Bishops rightfully made by authoritie of their iurisdiction whether they be confirmed or not coÌ„firmed by the people or christian Magistrate But they affirme directly the same precepts and ordinances being once receyved by the common consent of the people and authorised by the lawes of Christian Princes that no other obedience is required to them but that men may lawfully omitt or doe otherwise then as is prescribed by the said Lawes and commandements of the Priests and Bishops so that they doe it not in contempt or despite of the said power and iurisdiction Yea moreover say they although men ought to repute think that all the said ends and intents be also very good expedient necessary aswell for a common order and tranquilitie to be had among the people as also for the better instruction inducement of the people vnto the observation of these things wherein consisteth indeed that spirituall iustice that spirituall honor and service which God requireth of vs yet surely men may not esteeme them bus as things indifferent and of no such necessitie but that men may vpon causes reasonable well omit and leave the same vndone so that it be not in case of contempt sclander And vnto these cases especially at this time above all times speciall regard is to be had even by the Provinciall or Ecclesiasticall law it selfe for seeing in every Diocesse there be not a few of the principall Pastours alleadging the holy Scriptures for the ground of their vpright consciences that refuse not vpon will but vpon conscience not vpon contempt or despite of the power of Bishops but vpon reasonable cause and without offence or slandering of their neighbours to subscribe and vse the ceremonies it is plaine by the same ecclesiastical law that they ought to be respected and tolerated Propter multitudinem vtique seueritâ—ti detrahitur supersedendum ergo correctioni vbi pacis perturbatio timetur Item vt scandalum vitetur lustos homines aliquando simulare oportet ob suam aliorum salutem vt scilicet grauiora vitentur Hoc ergo casu faciet quilibet Praelatus pro salute hominum quod iustè potest nec vltra existimet se habere quod faciat ne ad instar imperiti medici vno collirio omnium oculos curare conetur And vnto this also agreeth that which is alleadged by Panormitane in a case of the substraction of the fruits of an Ecclesiasticall benefice from a Clarke who by reason of sicknes and infirmitie is vnable to discharge his cure Quilibet clericus saith he dicitur miles Dei militat in Ecclesia And therefore he concludeth that Clerici non debent terreri nec inhumaniter tractari ne cum alij exemple huiâ—smodi essent deterriti inueniri forte non posset qui vellet clericatui inseruire ecclesiae militare hoc enim videtur turbare statum ecclesiasticum nedum praesentem sed etiam suturum And further saith he Potest adduei haec ratio multum notabilis in argumentum quod clericus non debet priuari beneficio suo sinc causa etiam per Romanum pontificem nam existente infirmitate sic impotentia seruiendi cum non subtrahi debeat beneficiam ne ex hoc turbetur status Ecclesiae ergo multo fortius vbi nulla subest causa rationabilis But in the case of refusing to subscribe or for the not vsing the rites ceremonies and ornaments for conscience there is no reasonable cause of deprivation therefore c. Furthermore if the canon had decreed that a Minister refusing to subscribe should bee punished by ecclesiasticall censure in this case the peyne of deprivation ought not to be inflicted because by this clause Ecclesiasticall censure is vnderstood interdiction suspention aâ—d excommunication which bee poenae multum fauorabiles in animarum remedium inductae and doeth not comprehend deposition deprivation or degradation quia illae poenae sunt multum odiosae Lastly were it so that the Synod had indeed decreed that a Minister for refusall to subscribe should be deprived from his ecclesiastical benefice were it so likewise that a Minister should indeed refuse not vpon conscience but vpon a selfe will dolo mâ—lo to subscribe in this case I answere that the Minister can not lawfully for this offence by this provinciall canon be deprived The reason is this Beneficia ecclesiastica secunduÌ„ antiquam ordinationem sunt perpetus habent fundationem â— lure communi which ancient ordinances being agreeable to the common law of the Realme confirmed by the high Court of Parliament can never be disanulled by the Synode Quia non potest inferior disponere nec contra ius commune nec contra legem superioris maximè in praeindicium tertij Considerations for the not exact and precise vse of the Booke of
or shall wilfully and obstinately standing in the same vse any other rite ceremonie order forme or maner c. By which Letter of the Statute it seemeth that the Minister is none otherwise punishable before the Kings Iustices vnlesse wilfully and obstinately standing in the same hee shall vse some other rite ceremonie order forme or maner of celebrating the Lords Supper then is mencioned c. And vpon this clause as hath bene heretofore generally conceaved certaine inditements exactly framed even by some Iustices of assises sitting vpon the bench against certaine Ministers for the not observation of the booke before other of the Queenes Iustices haue ben traversed and avoyded as being in this point erroneous and not agreeable to the intendement of the statute Yea and it hath bene the opinion of some great Lawyers who have bene since Iudges that it is almost impossible to frame an indightement against a Minister for the breach of the first parte of the former clause of the statute which is not traversable and avoydable Fift Quaere If a Minister bound to say common prayer in any parish church shall not refuse to vse but indeed shall vse the said common prayers in such order and forme as they bee mencioned in the said booke whether he be punishable before the Kings Iustices in maner and forme before expressed if he refuse to say any part chapter or section of the said booke which part chapter of section conteyneth no prayer For howsoever the whole booke be authorised yet the peyne seemeth in this case to have bene inflicted only for the omission of prayer and not for the omission of every part chapter or section of the booke Besides these questions and their reasons there bee other reasons to induce vs to be of opinion that a Minister before the Kings Iustices is not punishable in maner and forme above expressed for his refusing to vse all and every prayer and prayers rite and rites ceremonie and ceremonies section and sections in such order and forme as they bee mencioned and set forth in the said booke In the preface to the booke it is confessed that nothing can almost so plainly be set forth but that doubts may arise in the vse and practising of the same and therefore for the appeasing of all such diversiâ—ie and for the resolution of all doubts concerning the maner how to vnderstand doe and execute the things conteyned in the booke it is provided that the parties that so doubt or diversly take any thing shalresort to the Bishop of the Diocesse who by his discretion shall take order for the quieting and appeasing of the same so that the same order be not contrarie to any thing contained in the said booke And in the two last clauses of the preface it is said that all Priestes and Deacons shall be bound to say daylie the morning evening prayer either privately or openly except they be lett by preaching studying of Divinitie or by some other vrgent cause And that the Curate that ministreth in any parish Church or Chappell being at home and not otherwise reasonably lett shall say the same in the parish Church or Chappell where hee ministreth From which places of the preface being part of the booke it is plainly to be gathered that the intent and meaning of the Parliament was not to have the Ministers to be punished before the Kings Iustices in maner and forme before expressed for refusing to vse all and singuler the prayers rites ceremonies and sections in such order forme as they be mencioned in the said booke if either vpon the Ministers doubts rysing in the vse and practise of these things the Bishop by his discretion did not take order for the quieting and appeasing of the same or if the Minister by preaching the word studying of Divinitie or by some other vrgent or reasonable cause were let so to doe And if no Minister in any of the cases before meÌ„cioned be punishable by the Kings Iustices in maner and forme aboue expressed then it is manifest by the provisoes following that the Archbishops and Bishops have no power and authoritie by vertue of this act to inquire and punish the default of any minister in these cases by admonition excommunication sequestration or deprivation And this not onely by the letter of the last provisoe ordeyned for corroboration of the Archbishops Bishopps and other Ordinaries power and authoritie but also by the provisoe next and immediately following that Provisoe is a matter most cleere and vndeniable Provided alwayes and be it enasted c. That all and singular Archbishops and Bishops c. shall have full power and authoritie by vertue of this Act aswell to inquire in their Visitation Synodes c. to take accusations and informations of all and every the thinges above mentioned done committed or perpetrated within the limites of their Jurisdictions c. And to punish the same by admonition excommunication sequestration or deprivation c. If then a Minister shall not doe commit or perpetrate any of the things above mencioned and so not be punishable by the Kings Iustices it followeth that the same minister is not punishable by the Ordinarie And this also by the next Provisoe is more playne by which it is enacted That What soever person offending in the premises shall for his offence first receyne punishment of the Orainarie shall not for the same offence est soones be convicted before the lustices And likewise receyving for the said first offence punishment by the Iustices he shall not for the same offence est soones receyve punishment of the Ordinarle No offence then punishable before the Iustices no offence punishable by the Ordinarie From all which premises it seemeth that the Queene the Lords and Commons never intended to impose such an exact and precise observation of the booke of common prayer vpon the Ministers as that in no place nor at any tyme they should omitt the reading saying or vsing of a chapter a prayer a section a rite or ceremonie vpon peyne of imprisonment c. before the Queenes Iustices or vppon peyne of deprivation before the ordinary And therefore the intent of the Parliament not beeing so much to binde the Minister to such an exact and precise observation as to seclude all orders and formes of prayers ministration of Sacramentes vse of rites and ceremonies not mentioned and set forth in the saide booke it seemeth very vnreasonable and much derogatorie to the authoritie of that Parliament that Archbishoppes and Bishoppes who were all secluded from that Parliament should by their extentions constructions and interpretations as it were invert the playne meaning of the Parliament and that ea qua sunt destinata in vnum sinem should by them bee converted to an other end But now if the Archbishops and Bishops at the abandoning of the Popes power out of the Realme have as we confesse they had an ordinarie iurisdiction by the statutes of the Realme reserved to their
of this act Now by what other words then by these of this provisoe could the Parliament more fully and clearly have expressed their mind that the same by the tenor and effect of this provisoe intended for ever wholy to seclude all Papall and foraine canons from being vsed and executed within this Realme For at the petition and submission of the clergie the Parliament having first enacted that neither they nor any of them from thencefoorth should presume to attempt alleadge clayme or put in vre any constitutions o◠ordinances Provincionall or Synodalles or any other Canons And againe at the petition and submission of the Clergie the same Parliament having committed to the view search examination and iudgement of the King and 32. persons such Canons constitutions and ordinances or the said Canons constitutions and ordinances provinciall and Synodall which as thertofore had bene made by the Clergie of this Realme And lastlie by this proviso the same Parliament having enacted that such Canons provinciall constitutions provinciall ordinances provinciall Synodalls Provinciall for the word Provinciall by the whole tenor and effect of this Act can not in this place but have reference to everie of these wordes shall still be vsed and executed c. till such tyme as they be viewed searched or otherwise ordered and determined by the said two thirtie persons c. Seeing these things I say be thus First submitted then afterwards committed and lastly provided and not one word sillable or lotter ayming at the continuance vse keeping or obedience of the popish canon law it can not bee averred by any vnlesse he be too too conceited opiniative that the Canon law or any part thereof made by the Pope without the Realme may lawfully at this day be attempted alleadged claymed or put in vre within the Realme by any Iudge Ecclesiasticall what soever yea and thus much also is confirmed by a statute 37. H. 8. c. 17. Howsoever therefore the Kings of England deryving their Ecclesiasticall Lawes from others being proved approved and allowed hereby and with a generall consent are rightly and aptly called the Kings Ecclesiasticall lawes of Englande in like maner as those lawes which the Normans borrowed from England were called the lawes of Normandie and as those lawes which the Romans fetching from Athens being allowed and approved by that state were called Ius ciuile Romanorum howsoever I say this be true nevertheles herevpon it will not follow that those Ecclesiasticall lawes thus borrowed and derived from others may then any more rightly and aptly be called the Kings Ecclesiasticall lawes of Englande when once by and with a generall consent in Parliament they have bene disproved and disallowed Yea and when also they have bene vtterly adnulled and commanded never to be put in execution within the Realme of England From whence it seemeth to follow that whatsoever subiect shall take vpon him full and plenarie power to deliver iustice in any cause to any the Kinges subiects or to punish any crime and offence within the Kings Dominions by vertue of those lawes once by so absolute high an authoritie disanulled that the same person denyeth the Parliament to have full power to allow and disalow lawes in all causes to all the Kinges subiects and consequently that the high Court of Parliament is not a compleat Court for the whole and intyre body of the Realme Wherefore albeit we graunt as the trueth of the Kings law is vnto the Archbishops Bishops other Ordinaries that lawfully they may proceede to inquire in their visitations and Synodes and els where to take accusations and informations of all and every thing and things above mencioned done committed and perpetrated within the limites of their iurisdictions and authoritie and to punish the same by admonition suspension sequestration or deptivation though thus much had never bene provided by the statute nevertheles we desire to be resolved whether any minister ought to bee punished by these or any other censures and processe before the ordinarie for any offence mencioned in this act if for the same offence the same Minister by vertue of this act be not punishable before the Kings Iustices And therefore for example sake put this case viz. That a Minister for the not crossing of a childe vpon the forehead after baptisme is fully administred be indighted before some of the kings Iustices and afterward vpon a traverse before some other of the kings Iustices the same Minister be found to have ministred the same sacrament of Baptisme in such order and forme as in the booke is prescribed Notwithstanding the omission of this ceremonie after baptisme and that vpon such a traverse the indightment before the said second Iustices be found to be vnsufficient in law and the Minister by the same Iustices be adiudged not to be in danger of the penaltie of imprisonment c. because his such not crossing is no offence against the law we demand we say in this case whether the same Minister by the Bishops of the Diocesse may be suspended or deprived from his ministerie or from his benefice for the same his not crossing yea or no. Considerations against the deprivation of a Minister for the not vse of a Surplice in divine service IN the whole body of the statute there is not one syllable or letter frō the which any semblance of reason can be deduced that any Minister of the church for refusing to vse or for the not vsing of any ornament appointed by the statute or by the book to bee in vse should be punished with the peyne of deprivatiō For what soever punishment a Minister for the breach of the Statute may sustayne by the kings Iustices the same is only to be imposed for such offences as are specified before the last provisoe of the statute Ornamentes therfore of the church provided to be reteyned and to be in vse being not cōteyned in those premises or things mencioned before the second provisoe concerning the Archbishops and Bishops authoritie and for refusing whereof a Minister by the premises is punishable it followeth there being no punishmēt for refusing the vse of ornaments in the last provisoe that the not vse of ornamentes is not punishable before the kings Iustices And if there be no punishment appointed to be inflicted before the kings Iustices for the refusing to vse any ornament thē much lesse is there any punishment to be inflicted for the refusall of the vse of a Surplice For the Surplice is so farre from being commanded to be worne as an ornament in every service of the church as the same is not so much as once particularly mencioned either in the parish booke or in the statute Nay by the generall wordes both of the statute and the booke the Surplice is wholy secluded from being appointed to be an ornament of it selfe in some part of the service of the Church For if with the same in some part of the service there be not a Cope
grounded vpon the said statute bookes or Provincials sundry grave learned and godly Pastors and other Ministers for sundry yeares passed have bene deprived suspended or excommunicated from their benefices dignities promotions and ministeries for not vsing the surplice If the Archbishops Bishops and other ordinaries have heretofore proceeded lawfully in this case by any other right then statute lawe it were greatly to be wished a thing tending every way to their honor credite and reputation that the same their Iustice were made publikely knowne to the end all maner persons and states might rest them selves fully satisfied and well perswaded of the integritie of such their proceedings as wherof they now stand in doubt For our partes we acknowledge that the Queenes Highnes had authoritie by the statute with the advise of her Commissioners c. or Metropolitane to take other order for ornamentes But wee never yet vnderstood that any other order was taken accordingly and especiallie in any such sorte as that the Archbishops Bishops other Ordinaries might warrant their sentences of deprivation to be lawfull against the Ministers which refuse to vse the Surplice By the Advertisements wherevpon as it seemeth they did principally rely and by authoritie whereof they did chiefly proceed it is apparant that neither the letter nor intendement of the statute for the alteration of ornamentes was observed And that therefore the commaundement of wearing a Surplice in steed of a white Albe playne by the advertissementes was not duely made For though by her Highnes letters it doth appeare that she was desirous as the preface to the advertisemēts importeth to have advise from the Metropolitane cōmissioners that she might take order nevertheles that her Highnes by her authority with their advise did take order alter the ornamēts this I say doth no where appeare no not by the advertisements them selves Howsoever then the Metropolitane vpon the Queenes mandative letters that some orders might be taken had conference and communication and at the last by assent and consent of the ecclesiasticall commissioners did think such orders as were specified in the advertisements meete and convenient to be vsed and followed neverthelesse all this proveth not that these orders were taken by her Maiesties Authoritie For the Metropolitane and Commissioners might thinke agree and subscribe that the advertisementes were meete and convenient and yet might these advertisements be never of any valew as wherevnto her Highnes authoritie was never yeelded But be it graunted that the Surplice by the Advertisements or other canons hath bene duely authorized yet herevpon it can not bee concluded that an ordinary by his ordinarie Iurisdiction hath power to deprive a Minister from his benefice for not vsing a Surplice vbi non sertur in contra facientes aliqua poena constitutio est imperfecta modicum prodesse poterit quoad contra facientes there being thē no peine mencioned in the advertisementes to bee imposed vpon a Minister for the not vse of a Surplice how should a Minister for the not vse of a Surplice suffer the losse of his benefice which is one of the greatest peynes Herevnto happily it wil be answered that vbi certa poena statuta est non debet Iudex ab ea recedere vbi vero non est statuta tunc est imponenda ad arbitrium Iudicantis And further that respectu poenae infligendae proper contemptum Iudicis non reperitur provisio regulariter à lege facta ideo Judex potest arbitrio suo poenam imponere Touching which answeres it may brieflie be replyed that the peyne spoken of in the civil law is generally vnderstoode of a pecuniarie peyne to be assessed and applied to the silke or more specially it may be vnderstood that among many corporall peynes the Iudge arbitrarily may choose which shall seeme to him most modicinable Now these kinde of peynes it is manifest that neither of them by the ordinarie Iurisdiction ecclesiasticall in the church of England can be imposed for contempt And as for that which to the same effect may bee alleadged out of the forein canonistes or forein canon law thus standeth the case The whole plott frame of the building of the canon law as before hath bene proved is cleane ruinated and wasted From whence it followeth that all the posts sommers walles plates rafters and roofe of that pallace with all the yron leaden and wooden implementes and vtensilles thereof be all likewise rotten and naught else but drosse canker And so from the Nullitie thereof it is to be inferred that an ordinary can not defend or practise his ordinarie Iurisdiction by that law against any of the Kings subiectes For all strange and forein law is both a strange power and a forein traytor to the Kings crowne and for that cause can not be pleaded in any of the kinges ecclesiasticall courtes without being in danger of loosing her head Howsoever then this rule in the romish consistories by the Romish law be true that an Ordinarie for inobedience or contempt may impose an arbitrary peyne where a statute or constitution hath appointed no peyne yet because this rule is an irregular enimy to the regiment of the kings Crowne it seemeth that the kings subiect is wronged whensoever an ecclesiasticall ordinary for contempt shal impose arbitrarily any peyne for the which peyne he hath not expresse warrant from the kings ecclesiasticall law Besides if the Romish canon law were the Kings ecclesiasticall law yet doth not the former exception prove that a Parson or Vicare may be deprived from his benefice by the ordinaries iurisdiction for the not vse of a surplice only the said exceptiō affordeth thus much viz. that if an ordinarie iudicially and canonically as they call it according to the sanctions not of the English but of the Romish church have admonished a Minister to weare a surplice the exception I say affordeth in this case thus much that his ordinary for contempt may impose an arbitrary peyne if so be nether by common right nor by constitutiue law there be an ordinarie peyne imposed But now so it is that this case falleth not out to be within the compasse of the peyne of deprivation for not wearing a surplice For it is contempt only and not the not wearing of a surplice that arbitrarily may bee punished in this case Why then though an ordinary be not able by the Kings Ecclesiasticall lawes to drawe in a Ministers deprivation principally and by the head for not wearing a surplice yet it seemeth that he may drawe in the same consequently as it were by the tayle namely by chardging him with wilfull periury or obstinat contempt for the which causes he may iustly be deprived Nay soft good Sir your conclusion is without premisses For who ever graunted that the Romish canon lawe was the Kings ecclesiasticall law howsoever then from part of mine answere made to the exception of contempt you
or in any other Court by other of the Kings Iustices would our lawes freecustomes of the Realme think you iustifie that the spirituall person enioyning still his spiritual function might in this case be mulcted with the losse of his benefice and yet the teÌ„poral person not to be punishable by the losse of his freehold The examples produced by you relieve no whit at all your case nay rather they stand on our side and make good our part For how long soever the Maister of the Rolles and Warden of the Fleete doe enioy their offices for so long time by your owne collection they ought to enioy their Freeholdes annexed to their offices yea and you assume in effect that they may not lawfully for contempt or any other cause be disseised of their freeholds so long as they be possessed of their offices Now then if from the identity of reason you would conclude that a Parson or Vicare for contempt lawfully deposed from his ministeriall function should in like maner lawfully loose his freehold annexed to his office as the Maister of the Rolles and Warden of the Fleete put from their offices should loose theirs we would not much have gainsaid your assertion For we hold it vnreasonable that a Parson or Vicar deposed from his ministeriall function should enioy that freehold or maintenance which is provided for him that must succeed in his ministerial charge But then your assertion would make nothing against vs. For so you must prove that your officers for contempt only may lawfully be put from their freeholds annexed to their offices and yet notwithstanding remaine the same officers still And then indeed froÌ„ some parity or semblance of reason you might have inferred that a Parson or Vicare for coÌ„tempt deprived of his free hold annexed to his function might notwithstanding such coÌ„tempt enioy his ministeriall function still But to dispute after this sort were idlely to dispute not to dispute ad idem For how doth this follow The Kings officer if for contempt he be displaced from his office can not withall but be displaced from his freehold which ioyntly with his office and in regard of his office he possessed Therfore a Parson or Vicare for contempt may lawfully be deprived from his benefice or freehold annexed to his ministeriall function and yet notwithstanding enioy his ministeriall function still And this is the maine point generall case for the most part of all the Ministers which at this day for contempt stand deprived For among all the sentences pronounced for contempt there is scarce one to be fouÌ„d which deposeth a Parson or Vicare from his ministerial office but onlie which depriveth him from his Church Parsonadge or Vicaradge Whereby the vnreasonablenes of certeine ordinaries in their processe of deprivatioÌ„s become so much the more vnreasonable by how much more vnreasonable it seemeth to be that any publicke officer should lawfully be continued in his publicke office and yet not be suffered to enioy any publick meanes to mainteine the same his office And thus much have we replied vnto your answere made vnto our pleadings that by the lawes and freecustomes of the Realme a Parson or Vicar being a freeman of the Realme may not for coÌ„tempt vnto his ordinaries admonitioÌ„ be deprived from his freehold if so be you grant that he may enioy his ministerial function still As touching the lawes of the church it hath ben already sufficiently demonstrated that there is then no contempt at all committed against an admonition wheÌ„ the partie admonished can alleadge any iust or reasonable cause of his not yeelding to his admonisher And if no contempt in such case be made then no deprivatioÌ„ from a benefice or deposition from the ministerie in such case ought to follow Considerations against subscription to the booke of the forme and maner of making and consecrating Bishops Priests and Deacons WHat the reason or cause should be that subscription vnto this booke of consecration ordination of Bishops Priests and Deacons hath bene of lâ—te yeares so hotly and egerly pursued by the Lords of the Clergie is a misterie perhaps not of many of the laytie well vnderstood And how soever vnder colour of the maintenance of obedience to the statute of the Realme whereby this booke is confirmed the same subscription may seeme to be pressed nevertheles if the maine drift and reason of this pressure were well boulted out it is to be feared that not only the vnlawful supremacie of an Archbishop is sought to be advaÌ„ced above the lawfull supremacie of our Soverayne Lord King Iames but also that the Synodals Canons and Constitutions made by the Clergie in their convocation are intended if not to be preferred above yet at leastwise to be made equall to the common law and statutes of the Realme By the ancient lawes and customes of the Realme one parcell of the Kings iurisdiction and imperiall Crowne hath evermore consisted in graunting ecclesiasticall iurisdiction vnto Archbishops Bishops and other Prelats For the maintenance of wich imperiall iurisdiction and power against the vsurped supremacie of the Bishop of Rome divers statutes not introductorie of new law but declaratorie of the old in the time of King Henry the eight King Edward the sixth and of our late most Noble Queene deceased have bene made and enacted Yea and in a book entituled The Institution of a Christian man composed by Thomas Archbishop of Canterburie Edward Archbishop of Yorke all the Bishops divers Archdeacons Prelates of the Realme that then were dedicated also by them to King Henry the eight it is confessed and acknowledged that the nomination presentation of the Bishopricks apperteyned vnto the kings of this Realme And that it was and â—halbe lawfull to Kinges and Princes and their Successors with consent of their Parliaments to revoke and call againe into their owne handes or otherwise to restreine all the power and iurisdiction which was given and assigned vnto Priests Bishops by the lycence consent sufferance and authoritie of the same Kings and Princes and not by authoritie of God and his Gospell whensoever they shall have grounds and causes so to doe as shal be necessarie wholesome and expedient for the Realmes the repressing of vice the increase of Christian faith and religion Ever since which time vntill of late yeares the late Archbishops of Canterbury with the counsel of his colledge of Bishops altered that his opinion which some times in his answere made to the admonition to the Parliament he held it was generally and publickely maintained that the state power and iurisdiction of Provinciall and Diocesan Bishops in England stood not by any Divine right but meerly and altogether by humaine policie and ordinance alone And that therefore according to the first and best opinion and iudgment of the said Archbishops Bishops c. the same their iurisdiction might be taken away and altered at the will and pleasure of the kings of England when
of conscience vpon so slender a ground of periury or contempt vpon persons every way so peaceable well qualified and wherein no scandall hath ensued we suppose it can not bee shewed among all the decrees and sentences recorded among all the Popish canonists that ever any Popish ordinaries in any age have vsed the like iudiciall rigour against any their Popish Priests It is to be noted that the foraine canon Law is none otherwise in any part of this Treatise intended to be the Kings Ecclesiasticall law then only vpon a false supposition of the Archbishops and Bishops Because the same law is yet vsed practised in their Consistories notwithstanding it hath bene long since abolished by Act of Parliament God saue King IAMES Faultes escaped in printing In the Epistle Fol. 2. pag. 1. lin 12. say we for say we Fol. 4 pag. 1. l. à fine 9. efrom for from Fol 6. pag. 1. l. à fine 3. Wincester for Winchester In the Booke Pag. 11. l. à fi 11. appointed for appointeth Pag 11. l à fi 6. appointed for appoonteth Pag. 12. the 8. line is superfluous Pag. 19 l. 7. expcessed for expressed Pag. 22 l à si 10 ad in marg 1. Mar ses 2. 6. 3. Pag. 24. l. 14. fift for fifth Pag. 24. l à fi 11. decretall for Decretalls Pag. 35. l. 11 provincalls for Provincials Pag. 36. in fine in marg diceat for dicent Pag. 37. in marg 25. is to be added to H. 8. c. Pag. 39 l à fi 10 preceptum for praeceptum ibid in mar cc. for c. Pag. 40. in mar casti for cousti contemp for contem Pag. 42. l. vlt he for the. Pag. 43 l. 17. à si enioyning for enioying Pag. 46. l. 8. Ardbishops for Archbishop Pag. 47. in f. in mar Dioceson for Diocesan Pag. 48. l. 12. Dioocasan for Diocesan Cap. 29. Act. 24. Act. 21. 38 Act. 5. 36. 37. Cod. de seditio li. 1. a Glos lind de heret c. 2 verb. sectam b Glos lind de Magis ca. 1. verb. scismatum Isa 22. 11. By whole Clergie wee meane the Archb BB. other learned of the clergie heretofore vsually assembled in convocation by the Kings writ The articles of religion 1562. were agreed vpon in convocation by the whole clergie of the Realm vide 13. Eliz. ca 12. Par in pareÌ„ noÌ„ habet im perium and therefore Yorke not subiect to Canterbury b sf de li. posthu l. cum quidá c â—f de poen l. interpretatione de poe dist l. â—poenae Lyud de celeb miss c. vle verb. animabuâ— Lind. de coÌ„cesâ—i preb â—â—esurientis verb procurantes d mag char cap. 14. Panor in 〈◊〉 querenti de verb. siguif nu 5. e Panor in c. multa de preb nu 10. ca. statut de cleâ— lib. 6. g Panor c. inquisition de sent excom nu 3. k Panor in cad aures de aeta cual â— Panor in c. per tuas ex iii. nu 3. 4. desimo L. Bald. de nihiâ—urand l vide Simon de Graph. de casibus conscientiae pa. 359. Exacting the oath 1. Part. 33. The institutioÌ„ of a christian maÌ„ dedicated to K. H. 8. fol. 57. 58. Answer Reply Fol. 57. 7. Constit oâ— c. ecclesias ne dig traâ— ad sir. glossa ibid verb â—â—â—ltitudinis 8. Panor in 1. de cler â—grot 〈◊〉 dist faperversuÌ„ extra de t. aegrot 〈◊〉 totum â—ag chart 〈◊〉 H. 8. c. 〈…〉 â—9 â—liza c. 2 â— 6. The second part of the right vse of the Church Obiection Answere Obiection Answere 2 K. 12. 4. 5 Note that the Lordes only not Lordes spirituall and temporall are mencioned spirituall Lordes therefore were not of this Parliament For by divers statutes when only Lords are mencioned temporall Lordes are included and spiritual Lords excluded Sir Edward Cooke de iure reg eccle fol. 9. The order where morning evening prayer c. fol. 1. Obiection Answere Lind de celebra Missae c. lâ—â—theamina The Bishop by his ordinary iurisdictioÌ„ hath no authority to deprive a minister for not wearing a Surplice ff Si quis ius diceat non obte l 1. l 2. si quis in iuâ— vocat Foraine canoÌ„ law abolished 25. H 8. c. 19. A Bishop by the forrain canon lawe hath no iurisdiction An ordinarie by the Kings ecclesiastical law cannot impose an arbitrarie peyne for not wearing a Surplice Obiection Answere a Lind. de constitut ec quia incontinentiae verb praecipimus b verb. praecipimus ex de conc praeb c. quia c. vlt. de elect Lind de casti quia verb neglexerit Lind. de sen ten excom verb. contemp glos in verb contempseâ—it c. 1. de appell li. 6. Luke 1. Answer Reply Cooke de lure regis eccle fol. 8 fol. 53. fol. 55. Do. Sutclif Doct. Bilson 2. part of the right vse of y e Church If Diocesan Bishops bee scripturely Bishops theÌ„ may they stand without y â— King Dioceson Bishops hither to vphelde only by the lawes of the Realme fol. 59. 60.
Archâ—episcopall and Episcopall seas shall therevpon thinke that lawfully by their ordinary iurisdiction onely without regard of any Authoritie graunted vnto them by the statute they may proceed ex officio to punish these defaultes then we pray their Lordships to resolve vs by what law besides this statute they may so proceed First this booke before 5. and 6. of Edward the sixth was never alive and being once dead by the statute of Queene Mary was but restored to life by the Queenes statute of Reviver Before this statute theÌ„ was revived these offences were no offences for where no lawe was there could be no offence Besides we have some reason to conceave thus well of the Ordinaries that they should be more prudent discreete then to iustifie their criminall processe ex officio by a plenarie power or a soveraigne pleasure And to say that ex officio by vertue of the popish canon Law they may lawfully proceed to suspension excommunication or deprivatioÌ„ of any Minister of the Gospell for the not observation of the booke of common prayer we assure our selves that so to say were to say amisse yea and more then ever they will be able to proove First the whole forme order of common service administration of Sacramentes vse of rites and ceremonies as they be mencioned and set forth in the booke of common prayer by all the groundes rules of that popish law is adiudged to be erroneous scismaticall and hereticall And therefore the refusing to vse the same booke or any parte thereof is so farre from being punishable by the same law as by the same law it is a matter worthy of high prayse and commendation for a Minister to refuse to vse it Againe what a vaine part were it for an ordinarie to plead the popish canon law for the validitie of his proceding ex officio when as the whole body and every title chapter and versicle of the same law at the petition and submission of the Clergie hath long since bene for ever adnulled made voide and of no value by an act of Parliament In regard whereof and in regard also that every ordinaries processe ex officio may be aswell iustifiable in respect of him selfe as aequall toward the Kings subiects it much every way importeth him that his proceedings ex officio be tempered hereafter with better morter and grounded vpon a surer foundation then be the maximes principles of that law Namely it behooveth that they bee founded and established vpon the Kings either ecclesiasticall or temporall lawes and statutes of which sorte of the Kings lawes we may bouldly and honestly say that the Popish and foraine canon law is none which saying also of ours we briefly proove thus The Clergie of the Realme aswell for their successors as for themselves having like humble and obedient subiects to the King promised in verbo sacerdotij that they would never from thence forth presume to attempt alleage claime or put in vre or enact promulge or execute any new canons costitutions or ordinances provinciall or other c. It was enacted by authoritie of Parliament according to the said submission and petition of the Clergie that neither they nor any of them from thence forth should presume to attempt alleadge claime or put in vre any constitutions or ordinances Provinciall or Sinodalls or any other canons All canons then by these wordes or any other canons of what sort or degree soever whether domesticall and homebread or strangbread and foraine canons before that time made were once vtterly forbidden to be attempted alleadged claimed or put in vre by which meanes they were once concerning their practise and execution with vs adnulled and made void And therefore so many of them as at that time were not or since that time have not bene revived and reauthorized ought not to be attempted alleadged claymed or put in vre at this day It remaineth then to be discussed what canons constitutions ordinances Provinciall or Synodall or what other canons were at that time or have at any time sithence bene recommanded reestablished vnto which point from the whole scope plaine letter of the statute we answere that only such canons constitutions and ordinances provinciall or Synodall may be attempted alleadged claimed and put in vre as were made before that time by the Clergie within the Realm were not contrariant nor repugnant to the lawes statuts and customes of the Realme nor to the domage or hurt of the Kings prerogative Royall And that therefore all canons decrees decretall sextes clementines extravagants and all other whatsoever constitutions and ordinances Papall being strangers and aliens from the common wealth of England and not begotten by the Clergie within the Realme are forbidden at this day to be attempted alleadged claimed or put in vre The reasons of which our answere drawne from the letter of the statute be these The Parliament having enacted as before is mencioned did neverthelesse according to an other branch of the petition of the Clergie not only give to the King 32. persons by him to be nominated c. power and authoritie to viewe search and examine the said constitutions and ordinances Provinciall and Synodall before that time made by the Clergie of this Realme but also enacted that such of them as the Kings highnes and the said 32. persons should deeme adiudge worthy to be continued and kept should be from thence forth kept obeyed and executed within this Realme All canons then made before that time without the realme being secluded by the Parliament from the view search and examination of the King and 32. Persons though he and they had deemed and adiudged the said canons to have bene continued kept and obeyed yet notwithstanding the same Canons ought not to have bene kept obeyed and executed For only such canons by the King and 32. Persons ought to have ben deemed adiudged worthie to be continued kept for the continuance and keeping wherof power authoritie by Parliament was given to the King and 32. Persons But such canons constitutions and ordinances Provinciall or Sinodall only and not Papall were committed c. Therefore Papall being once disclaymed and disauthorised by Parliament and not againe committed by Parliament to view search and examination were never by intendement of Parliament to bee continewed kept and obeyed within this Realme And this againe most pregnantly is confirmed vnto vs by the last provisoe of this act the wordes whereof are these Provided also that such canons constitutions ordinances and Synodalls Provinciall being already made which be not contrariant or repugnant to the lawes statutes and customes of the Realme nor to the domage or hurt of the Kings prerogative Royall shall now still be vsed and executed as they were before the making of this act till such time as they be viewed searched or otherwise ordered and determined by the said 32. persons or the more part of them according to the tenor and effect