power of the keies And though my Lord this question be no question if the high Commissioners by the first of the first of Elizabeth never had any power to fine or imprison for any crime within that statute and the cognisance of the high Commission as is declared by a statute made the first Session of this Parliament which statute makes wholely for me and against the high Commissioners and puts the former question out of question yet my Lord in favour of the high Commissioners and to my owne disadvantage I doe forbeare to take the benefit and advantage of the former statute and Declaration and granting to the high Commissioners a power to fine and imprison for crimes within the first of the first of Elizabeth according to the Commissioners practise before and at the time of my censure according to the wordes of their commission and the approbation both of the Exchequer who did imprison me for the 500. pounds fine estreated by the high Commissioners into the Exchequer and of this Court also which would not upon an habeas corpus deliver me from that imprisonement I doe in this sence and respect onely propose the former question whether for the breach of a Canon or Canonicall obedience unto the canons according to the lawes and customes of this land men are to be fetcht from the judgement and jurisdiction of the ordinary up to the high commission court and there to be fined and imprisoned or else whether they are to be left to the judgement and jurisdiction of the ordinary and he to proceed against them according to the power of the keys And though this question my Lord bee within the compasse and cognisance of the common Law and therefore ought to bee spoken unto by the worthy professors of this Honorab profession yet seeing it is in defence of the Episcopall or ordinary jurisdiction which the Bishops themselves have wrong'd and which at this time in this my case no common Lawyer will undertake to defend and that for this very reason as I conceive because they have mens persons in admiration for advantage sake Epist 16. as St. Iude speakes and do prefer the person of some Bishop before and above the Episcopall or Ordinary jurisdicton it self Therfore ut nequid detrementi capiat respublica Episcopalis vel ordinaria and to the intent that all men may know that I both truely love and reverence the Episcopall or Ordinary jurisdiction not onely above and beyond you the common Lawyers who will not according to your profession defend it but also above and beyond those Bishops who contrary to their callings have wrong'd it and also that I onely oppose the usurpation and presumption of some Bishops and not the Episcopall or ordinary jurisdiction it selfe I will endeavour to shew and that by seven reasons Thesis prima septem rationibus confirmaâ—a that the breaches of canons or of canonicall obedience unto the canons according to the Lawes custome of this land belong to the juridiction of the ordinary and not to the cognisance of the High commission court Ratio 1 My first reason my Lord is taken from the sence and meaning of this word Ordinary as it is expressed by Doctor Lyndewode in the first booke of his Prov. tit de constitut cap. Exterior habitus Verbo Ordinarij in these very words Nota quod haec dictio (c) Ordinarius dicitur quia habet ordinariam iurisdictionem in iure proprio non per deputationem Cokes institutes f. 96 Ordinarius principaliter habet locum de Episcopo aliis superioribus qui sunt universales in suis iurisdictionibus de iure communi solus Episcopus est ordinarius super omnes subditos suos sed sunt sub eo alij ordinarii hi vid. quibus competit iurisdictio ordinaria de iure privilegio vel consuetudine By which words my Lord it appeares though there be some other subordinate inferiour ordinaries under the Bishop in some parts of his Diocesse who have and hold under him in those parts an ordinary jurisdiction either iure privilegio vel consuetudine yet de iure communi over the whole Diocesse the Bishop only is Ordinary and onely hath a generall and an universall jurisdiction And this generall jurisdiction of the ordinary or Bishop extends not to all causes both Temporall and Ecclesiasticall but only to all causes meerely Spirituall so called not in respect of their owne nature but because they are assign'd to the Spirituall or Ecclesiasticall jurisdiction And those are of two sorts either civill Ecclesiasticall causes as Tithes Oblations Legacies Pentions and portions or else criminall causes and both these belong to the generall jurisdiction of the Ordinary for the former it appeares principally in two cap. of Lyndewodes Provinc and that in the very text first in his second booke tit de foro competenti cap. circumspecte agatis which though it be King Edw. 1. direction to his Judges or Justices or Commissioners concerning the Bishop of Norwich and other of the Clergy and bee extant among the Statutes 13. Edw. 1. yet seeing it treates of the spirituall jurisdiction of Ordinaries it is set downe by Lyndewode among the provinciall constitutions of our Archbishops of Cant. Secondly in his 5. booke tit de paenis cap. aeternae Sanctio voluntatis And for the latter namely criminall causes it appeares both in the two chapters before alleaged and more especially in the first booke of Lyndewodes Provinc tit de constitutionib c. exterior habitus ver Inquirant upon which word Lyndewode shewes that there is triplex inquisitio generalissima generalis specialis vel singularis and each of these is twofold either praeparatoria or Solemnis praeparatoria est fine exactione juramenti solemnis est cum juramento and the one of these makes way and worke for the other The preparatory inquisition findes out and starts the game and the solemne inquisition persues and takes it And the most generall inquisition both preparatory and solemne belongs to a generall councell or to a provinciall Synode but the inquisition generall and speciall both preparatory and solemne belongs to the jurisdiction of the Ordinary And this generall inquisition hath three degrees for it is generall either in respect both of persons and of crimes or it is generall onely in respect of persons and speciall or singular in respect of crimes or lastly it is generall in respect of crimes and speciall or singular in respect of persons as the Ordinary shall thinke fit and the matter require Now my Lord the High Commission hath nothing to doe with the first of these causes namely civill Ecclesiasticall causes no nor a generall jurisdiction in the latter namely criminall causes and both these are evident by divers judgements at the common Law Hilary 8. Iacobi In the common Pleas in the case of Huntley and Clifford it was resolved that the High Commission had not power to meddle with civill Ecclesiasticall
the other to the freedome and liberty of all his free-borne Subjects who are not tyed to any lawes but to those onely whereunto they give their consents did prettily and wittyly invent and contrive this trimme and almost undiscernable alteration to cure these two deadly woundes for which Sir you did then deserve a better fee from the Commissioners than either from his Majesty or from his other free-borne Subjects But my Lord though Master Justice Heath hath with that one salve well cured those two sores yet therein he hath not rightly and truely exprest and discover'd the nature of canonicall obedience for Canonicall obedienee hath no reference to custome that 's customary obedience which is due to custome neither hath canonicall obedience relation to the laws in generall of what kind soever they bee but onely to that part and kind of law which is called the canon law for canonicall obedience is such obedience as the canons require and such obedience as the canons require is canonicall obedience they are convertible of the same circuit and circumference just even whatsoever is within compasse of canonicall obedience is within the compasse of the canons and whatsoever is without the compasse of the canons is without the compasse of canonicall obedience so that if I am bound by my canonicall obedience to preach the Arch-deacons visitation Sermon then I am thereunto bound by some canon and if not by some canon Thesis tertiae probatio then not by my canonicall obedience And that this is so that canonicall obedience is such obedience as the canons require I will now endeavour to prove by foure reasons such I hope as shall satisfie your Lordship this Court and all men that will be satisfied with reason and I hope shall silence them that will not with reason be satisfied Ratio 1 My first reason to prove that Canonicall obedience is such obedience as the canons require is drawne a vi virtute ipsius vocis Canonicae from the very sence and signification of this word Canonicall for as legall obedience is such obedience as the law requires Evangelicall obedience such obedience as the Gospell requires customary obedience such obedience as the custome requires arbitrary obedience obedience ad arbitrium praelati according to the praelates pleasure blind obedience such obedience as is requir'd of blind men and unreasonable obedience such obedience as is requir'd of unreasonable creatures so a vi virtute ipsius vocis canonicae from the very strength sence and signification of this word Canonicall Canonicall obedience must be such obedience as the canons require And this reason is further confirmed by an argument drawne (h) Hor argumenti genus quandoque acuminis quandoque virium multum quandoque utrumque habebit Eleganter itaque apud Terentium est Homo sum humani nihil ame alienum puto Rod. Agricola de Inventione lib. 1. cap. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist Secundo Topicor libr. His illud adiicere ridiculum putarem nisi eo Cicero uteretur quod coniugatum vocant Vt eos qui remâ—ustam faciant iuste facere quod certe non eget probatione Quntil Institut lib. 5. a conjugatis or denominativis a toprike place delivered by Aristotle and Quintilian and approved and put in practise by Saint Iohn 1. Ep. 3. chap. 7. ver there the holy Apostle saith Hee that dâ—th righteousnesse is righteous even as he is righteous that is as our Lord and Saviour Jesus Christ is righteous In which wordes Saint Iohn argueth from one conjugate to an other from doing of righteousnesse to being righteous and so after his example I argue he that doth the canons is canonicall he that performeth obedience to the canons performeth canonicall obedience And that this is true sence of this word canonicall appeares by the authority of William Lyndewode in the fifth booke of his Provincicall titulo de Haereticis cap. Reverendissime where he doth thus expound this word canonicall (i) Item eodem lib. tit de Purgatione canonica cap. statuimus verbo Canonice canonice id est secundum exigentiam Canonum canonice id est secundum ex gentiam canonum canonically that is saith hee according as the canons require And this my Lord is my first reason drawne a vi virtute ipsius vocis canonicae together with an argument drawne a Conjugatis or Denominativis a topicke place deliver'd by Aristotle and Quintilian and approved and put in practise by Saint Iohn and confirmed by the authority of William Lyndewode My second reason my Lord is taken from the generall consent of learned men not onely in our owne church and of our owne religion but also from those who though they are of our religion yet they are not of our Church I meane of our nationall Church nay from those that are neither of our church nor of our religion And this reason being drawne from the joynt consent of learned men ought to be of great force and authority according to that of vincentius Lerinensis quod abomnibus quod ubique quod semper tenetur illud pro certissima veritate habendum tenendum est I will begin my Lord with those that are furthest from home My first Man is Bellarmine a learned man in the judgement of those that are soundly and deepely learned on our side my most reverend diocesan and provinciall my Lords Grace of Cant. in his relation of the conference betweene his Grace and Master Fisher the Iesuiâ—e doth divers times highly magnifie him for his acute solid and profound discourse upon divers points of controversie sect 3. num 2. num 17. And Doctor Rainolds speaking of Bellarmine and Campian Stiles them nobile par Iesuitarum and prefers Bellarmine as far before Campian notitia rerum as he doth Campian before Bellarmine structura verborum This learned man in a particuler treatise immediately following his bookes of Justification the title whereof is de bonis operibus in particulari 10. chap. speaking of Canonicall houres doth there thus describe them canonicall houres saith he are such houres as are appointed by the canons to praise God and to pray unto God and these houres saith he are call'd canonicall because they are assigned deputed and appointed by the canons to that purpose And Petro soave Polano the learned authour of that excellent history of the councell of Trent in his sixt booke doth give the same reason of the same name Collegiate churches by their institution have this function among others to assemble themselves in the churches to praise God at the houres appointed by the canons which saith he are therefore call'd canonicall and Brentius a learned man of our owne religion in his Confessione wittenburgensi cap. 20. de Horis Canonicis doth give the very same reason of the same name that the two former doe Againe Gregory the great in the 11. booke of his Epistles and 51. Epist to Iohn Bishop of Panormum and received into the body
of the Canon Law writes thus Si quid de quocunque clerico ad aures tuas pervenerit quod te juste possit offendere facile non credas nec ad vindictam te res accendat incognita sed praesentibus Ecclesiae tuae senioribus diligenter est perscrutanda veritas tunc si qualitas rei poposcerit canonica districtio culpam feriat delinquentis Let a Canonicall punishment bee inflicted upon the offender for his offence now what 's this canonica districtio or canonica paena The most learned Bishop Bilson in that excellent treatise of his De perpetua Christi Ecclesiae gubernatione 11. cap. interpreting the former words of Gregory doth in these very words shew paena canonica 1. paena canonibus congruens A canonicall punishment that is a punishment agreeable to the Canons and so doth William Lyndewode in the 5. booke of his Provinciall tit de Paenis Cap. Evenit verbo Canonicas paena canonica id est paena a sacris canonibus approbata A canonicall punishment that is a punishment approved by the Canons and (k) Iohanes de vanquall in Breviario in sextum Decretalium fol 43. tit de supplenda praelatorum negligentia ultima conelusio Episcopum excommunicatum pro culpa sua punire potest Archiepiscopus paena canomica et arbitraria Probatur hic in fine tex glo fi et facit c. de causis de offi deleg si dicatur puniri debet paena arbitraria tum non canonica quia paena canonica dicitur quae est in canone iure expressa ut in l. siqua paena ff de verbo sig solutio Dicit Io. Mo. Archid. quod paena expressa de terminata a Canonibus proprie dicitur canonica ut in dict lo. Siqua paena Illa tamen quae non est expressa determinata a canone datur tamen secundum moderationem canonum qualitate personae quantitate culpae consideratis dicitur proprie completive arbitraria eo quod iudex sua discretione supplet quod in canone non est expressum potest tamen talis paena dici canonica saltem inceptive quia per canones dirigitur iudex in moderatione Iohanes de vanquall Iohanes Molanus and Archidiaconus do all make this the difference betweene a canonicall and an arbitrary punishment that the one is expressed in the Canons the other is not but left to the discretion of the Prelate Paena Canonica dicitur quae in Canone jure est expressa determinata illa autem quae non est expressa determinata a canone est arbitraria Now to recollect the force and strength or this argument If canonicall houres bee so called because they are assigned deputed and appointed by the canons as in the judgement of Brentius Bellarmine and Petro Soave Polano they are and againe if a canonicall punishment bee such a punishment as is agreeable to the Canons such a punishment as is approved of the canons such a punishment as is expressed and determined in the Canons and if not expressed and determined in the Canons not a canonicall but an arbitrary punishment in the judgement of Bishop Bilson William Lyndewode Iohanes de vanquall Iohones Molanus and Archidiaconus Then by the same analogie canonicall obedience must bee such obedience as is assigned deputed and appointed by the canons such obedience as agreeable to the canons such obedience as is approved by the canons such obedience as is expressed and determined in the Canons otherwise it is not canonicall but arbitrary obedience and this is my second reason which being drawne from the joynt consent of learned men ought to be of great authority according to this former rule of Vincentius Lerinensis quod ab omnibus quod ubique quod semper tenetur illud pro certissima veritate habendum tenendum est My third reason my Lord Ratio 3. strikes the naile on the head and drives it home it is the very definition of canonicall obedience delivered by William Lyndewode in the first booke of his Provinciall tit de maioritate et obedientia cap. Presbyteri verbis in virtute obedientiae where he doth in the former words terminis terminantibus define canonicall obedience thus (l) Nota circa hanc materiam obedientiae quod obedientia quae homini debetur ab homine est debita minoris ad maiorem reverentia Vnde si mandatur id quod iustum est obediendum est si in iustum nequaquam si dubium tunc illud propter bonum obedientiae est explendum Lyndewode Prov. 1. lib. tit de Constitutionibus cap. Quia incontinentiae ver obedientiae Canonica obedientia est obedientia secundum canones constitutiones rite editas et publicatas canonicall obedience is such obedience as the canons and constitutions rightly made and published doe require Now this mans testimony and authority ought to bee of great esteeme for divers reasons first because he is the only glossator commentator upon the provinciall constitutions of our Archbishops of of Cant. Secondly because he was Doctor of both lawes and singulerly verst both in Church governement and in deciding of controversies and the efâ—re doubtelesse did well understand what this canonicall obedience was and unicuique in sua arte perito credendum especially if he be not Judge in his owne case as the Defendants against mee are Thirdly because hee was officiall to Henry Chichley Archbishop of Cant. to whom he did dedicate his provinciall and therefore in all likely hood he would not write any thing therein in the behalfe of the Rectors and Uicars of this kingdome to the prejudice of the Episcopall or Archiepiscopall authority or Sea of Cant. Lastly because he lived about 200. yeares since and was long dead before this controversie was on foote although this * It began at the Archdeacons Visitation Octob. 1624. and continued at his Uisitations Aprill 1625. and 26. and the last day of that Aprill 1626. Articles were exhibited in the High Commission against me and the 19. of Aprill 1627. I was by the Commissioners committed to prison and there continued two yeares and then being delivered on the 29. of Aprill 1629. I did that Tearme begin an Action in the Kings Bench Court against the Commissioners which this 24th day of March 1641. hath depended 12. yeares three quarters hath beene on foot full 16. yeares which is a larger portion of time than the tearme of two mens lives is valued at by the common law and and therefore certainely hee wrote the truth without all respect of persons without prejudice or partiality on either side and for these reasons his definition of canonical obedience standes good against all exception Besides that Canonicall obedience is such obedience as the canons require appeares by the opposite member of the division for the obedience now used in the Church of Rome is either canonicall that is such as the canons require and the Prelate by vertue
ties the Bishop to give them competent allowance Quibus ipse cum indiguerint congrue necessaria ministret and it shewes that the Bishop is bound so to doe by the law of naturall equity because they are his coadintors cooperators non solumin praedicationis officio verum etiam in audiendis confessonibus panitentiis iniungendis ac caeteris peragendis quae ad salutem pertinent animarum and it concludes si quis hoc neglexerit adimplere districtae subiaceat ultioni If any Bishop shall not preach the word heare confessiones injoyne penance Parochiatim through his whole diaecesse either in his owne person or else substitute others under him to doe so for him and give them a good allowance for it he is severely to be punished And thus my Lord whereas our Archdeacons Bishops and Archbishops make it the incumbents duty out of canonicall obedience to Preach the visiters visitation Sermon I have proved that canonicall obedience is such obedience as the canons require and that the canons bind every visiter every Archdeacon Bishop and Archbishop to preach his owne visitation Sermon at the publicke meeting of the Deaneries also in his owne person or by deputies to preach parochiatim in every incumbents cure through his whole Diocesse and I will now conclude this first particular with the repetition of the first part of my former syllogisme Canonicall obedience is such obedience as the canons require But the Canons binde every visiter every Archdeacon Bishop and Archbishop to Preach his owne visitation Sermon Ergo. By Canonicall obedience every visiter every Archdeacon Bishop and Archbishop is bound to preach his owne visitation Sermon Thesis Pro ∣ batio 5 6 I now proceede to my other two particulars That the Canons bind licensed Preachers to preach at their owne cures only and forbid me and such as I am that are not licensed preachers to preach or expound any Scripture in our owne cures or else where And for brevities sake I will handle them both together and so vna fidelia duos parietes de albare And in the first place my Lord I must put a difference betweene the auntient and moderne canons The auntient canons gave power to every Presbyter that had cure of soules to preach the word and to doe all other offices of his calling in his owne cure In the fift booke of Lyndewodes Provinciall tit de Haereticis cap. Reverendissime Thomas Arundell Archbishop of Cant. speakes thus Curatum perpetuum missum intelligimus a jure ad locum populum curae suae We understand saith he that a perpetuall curate is sent by the Law to the place and people of his charge and who this perpetuall curate is Lyndewode in his glosse upon those words doth in these words shew Perpetuus curatus sicut Episcopus in sua Diaecesi rector vicarius in sua parochia quilibet perpetuo intitulatus ad beneficium cui imminet cura animarum So that then even by the Law it selfe every Rector and Uicar was a licensed Preaher in his owne cure as well as the Bishop was in his owne Diocesse and might doe all functions belonging to the office of a Presbyter in his owne Parish without any licence from the Bishop as well as the Bishop in his Diaecesse may doe all the Offices of a Bishop without any license from the Archbishop And to that purpose in the first booke of Lyndewodes Provinciall tit De officio Archipresbyteri cap. Ignorantia sacerdotum I finde this canon made by Iohn Peccan Archbish of Cant. Praecipimus ut quilibet sacerdos plebi praesidens quater in anno per se vel per alium dilucide exponat subditis suis articulos fidei decem mandata decalogi duo praecepta evangelij vid geminae charitatis septem opera miserecordiae septem peccata mortalia sua cum progenie septem virtutes principales ac septem gratiae sacramenta But our moderne canons our canons made in King Iames his raigne hath altered this point and permits not any incumbent to Preach or expound any Scripure no not in his owne cure untill hee be first made a Licensed Preacher so that our Church according to those canons hath two sorts of incumbents some that are licensed (g) Saint Chrysost on 1. Cor. 1.17 saith Evangelizare perpaucorum est baptizare autem cuiuslibet modo sungatur sacerdotio and a little after Siquidem presbyteris qui simpliciores sunt hoc manus tradimus ut baptizent verbum autem ut doceant non nisi sapientioribus hic sapientia labor quamobrens alibi inquit qui bene praesunt presbyteri duplici honore digni sunt maxime qui laborant in verbo Quilibet sacerdos cum ordine accipit potestatem consecrandi baptizandi praedicandi absolvendi ab omnibus peccatis sed interdicitur exercitium illius potestatis donec concedatur de licentia eius qui potest quare reservare non est non concedere potestatem absolvendi sed minuere potestatem Itaque non caute Sotus est loquutus Compendium Navarri de irregularitate cap. 28. pag. 337. tit De casibus reservatis preachers others that are not These licenses are onely granted either by one of the Vniversities or by a Bishop or an Archbishop He that is licensed by one of the Vniversities must be licensed under their Scale onely he that is licensed by a Bishop or any Archbishop must be licensed under their hand and Scale And at the time of his licensing the Bishop that licenceth him is to see him subscribe to the three Articles for the conformity of Religion extant in the 36. canon Otherwise the Bishop that licenseth him is to be suspended for a tweluemoneth by the 36. canon And such a license is qualification to hold two benefices by the 41. canon And he that is thus licensed is bound to preach in his owne cure once every Sunday only by the 45. canon He that is not thus licensed is no licensed preacher is forbidden to preach or expound any Scripture in his owne cure or elsewhere by the 36. 49. 52. Canon Now my Lord can the Archdeacon or any other Prelate by canonicall obedience command a licenced preacher to preach either twice a sunday in his owne cure or once in the weeke daies either in his owne cure or at the visitation or elsewhere He cannot by canonicall obedience which is such obedience as the canons require command him beyond the Canons If he doe he brings in uncanonicall praetercanonicall or ultracanonicall obedience the first part or kinde of Arbitrary or blinde obedience and therein he goes contrary to the nineteenth of the 25. of Hen. 8. which in submission to the Kings supreame Ecclesiasticall Jurisdiction limiteth the whole Clergie of this Land to the Canons of this land he incrocheth upon the royall prerogative of the Crowne hee withdrawes his submission from his Majestie he presumes to make Canons within his owne jurisdiction for that by the
AN ARGVMENT upon a generall Demurrer joyned and entred in an Action of false Imprisonment in the Kings Bench Court termino Trinitatis 1631. rot 1483. parte tertia betweene George Huntley Clerke plaintife and William Kingsley Archdeacon of Canterbury and others Commissioners Defendents as it was prepared to have beene uttered in Court by the said George Huntley but was not permitted by the Judges of that Court because as they pretend the said Action or Plea or Demurrer was discontinued termino Sancti Michaelis 1632. Published by the said George Huntley to shew whose duty it is to preach the visitation Sermon and thereby principally to vindicate the auntient Iurisdiction of the Crowne over the State Ecclesiasticall against the usurpation and presumption of the High Commissioners whereunto hee is bound to the utmost of his power by the oath of supremacy and secondly to cleare his own innocency and to recover his former credit and good name much blemished by their scandalous and opprobrious sentences whereunto he is tyed iure naturali A discovery also and confutation of the foresaid pretended discontinuance with a true copy of so much of the two parts of the High Commissioners first finall sentence as is pleaded by the Defendants and as conteines the whole matter to justifie the said Huntleys nine yeares three quarters imprisonment at severall times his five hundred pounds fine deprivation degradation and excommunication Both placed before the Argument the one to remove the foresaid rub of the pretended discontinuance and to open a faire and cleare passage fâ—r the Argument the other to shew the state of the controversâ—e and ground of the Argument out of the defendants owne words against which the Law admitts no exception Dicere viva voce in curia per judices non permissus Dicere in scriptis ex prelo per juramentum cogor London Printed for George Huntley and are to be sold be Michaell Sparkes in Green-harbour in the Little Old-baily 1642. The discovery and confutation of the foresaid pretended discontinuance THe true cause of the pretended discontinuance mentioned by Master Noy Atturny Generall in his motion Termino Michaelis 1632. was this That the Plaintiffe Huntley beganne his Action by originall and drew up the imparliances by Bill and so had discontinued his Action by originall in drawing up the imparliances by bill and had not begun any action by bill and so had no Action at all either by bill or originall depending in Court against the Defendants hereupon the Court granted the order following Dies Sabbati prox post Crastinum Animar Anno octavo Car. Reg. Huntley vers Kingsley alios Nisi causa ostensafuerit in contr die Iovis prox post Crastin sancti Martini actio Discontinuetur ex motione Attorn Gralis per curiam I presently got a copy of the foresaid order but I could not get my Counsell to shew cause to the contrary within the time limited in the Order neither was I permitted within that time to shew cause to the contrary my selfe and thereupon the Defendants Atturney Mr. Barker entred upon the foresaid Rolle the following discontinuâ—nce in these words Recordatur percuriam 27. die Novem. Anno Reg. Dmini Regis nunc Angliae 8º quod istud placitum non habet Deum continuationis â—er islud rotulum ultra non post predict Octab. sancti Michaelis Ideo â—lacitum illud ad requi sitionem predcti Georgij Huntley discontiâ—uatur The foresaid discontinuance enrred upon the said roll is neither grounded upon the pretended cause of discontinuance mentioned in â—he Atturney Gralls motion nor upon the foresaid Order of the Court but onely on my request and I was so farre from requesting â—ny such thing that I offered 40 pound nay 100 pound to have the foresaid error reformed And the foresaid Order mentions no error or cause of discontinuance but onely supposeth one and what can it suppose but onely that which Master Atturney Generall mentioned in his foresaid motion and that 's onely this because I began my said Action by originall and drew up the imparliances by bill in these words Petunt licentiam jnde ulterius interloquendi ad billam predictam and this I doe sixe times mention in the plea for so many Termes the Judges gave the defendants to put in their Plea and that being onely an error in forme and not specially and particularly set downe and expressed by the parties demurring together with their demurrer as appeares by the said Record rolle and the originall paper booke under both our Counsells hands which I have to shew cannot discontinue the Action Plea or Demurrer nor hinder the hearing of the cause nor bee the ground of a writt of error nether suspend nor reverse a Judgement but is to reformed and amended by the Judges even after demurrer joyn'd and entred as appeares by the 5. chapter of the 27. of Eliz. which runnes thus Bee it enacted by the Queenes most excellent Majestie c. That from henforth after Demurrer joyned and entred in any action or suit in any Court of Record within this Realme the Judges shall proceede and give judgement according as the very right of the cause and matter in Law shall appeare unto them without regarding any imperfection defect or want of forme in any writt returne plaint declaration or other pleading processe or course of proceeding whatsoever except those only which the party demurring shall specially perticularly set downe and expresse together with his Demurrer And that no judgement to be given shall be reversed by any writt of error for any such imperfection defect or want of forme as is aforesaid except such onely as is before expressed And bee it further enacted that after Demurrer joyn'd and entred the Court where the same shall bee shall and may by vertue of this Act from to time amend all every such imperfections defects and wants of forme as is before mentioned other then those onely which the party demurring shall specially and particularly expresse and set downe together with his Demurrer as is aforesaid A true Copy of so much of the two parts of the High Commissioners first finall sentence as it is pleaded by the Defendants Doctor Kingsley and the rest followes ANd upon opening of the cause the foresaid George Archbishop of Cant Richard of Durham Iohn of Rochester Thomas of Coventrey and Lichfield Theophilus of Landaffe Robert of Bristoll Bishopps and some other of the Commissioners aforesaid found the aforesaid George Huntley especially charged in the Articles with two perticulars first for refusing to Preach a Uisitation Sermon at the requisition and command of the Archdeacon of the Diocesse contrary to his Canonicall obedience and secondly for setting up an opinion and maintaining it before the rest of the Clergie of the Diocesse that the Archdeacon of the Diocesse had no power to require or command him or any other Minister to preach a Sermon at his Uisitation with many other abusive behaviours about that
to the Commentators and glossators upon the text And in the first place I produce these three Iohanes Andreas in apparatu suo super sextum decretalium Helias Regnier in his casus literales notabilia super sextum decretal And the third is anonymus quidam the title of whose worke is casus longi super sextum decretalium compilati in alma unversitate Pictavensi and I joyne these three together because they write upon the same text and use the very same words upon the text The text they write upon is the text last cited ex sexti decretal lib. 3. tit 20. de censibus exact procurat cap. 1. cap. Romana parag Sane Sane archiepiscopus visitationis officium impensurus proposito verbo dei quaerat de vita conversatione ministrantium in ecclesiis And upon this text they all give this glosse in these very wordes Hic quaeritur quid primo debet facere Archiepiscopus visitans Respondetur quod primo debet praedicare verbum dei deinde debet inquirere de vita moribus habitantium ibidem videl clericorum laicorum and it seemes that Johanes Andreas was the first authour of those wordes and that the other two and the glosse in the last and best edition of the body of the canon law put out by Gregory the thirteenth borrowed them from him For I finde them in the glosse of that edition but in the glosses of former editions I finde them not But howsoever that prove this is certaine that this their glosse is uncontradicted by any that ever I saw and I have seene as many as I could upon a diligent search finde in Pauls Church-yard Duck-lane and some other by-corners My fourth authour is Johanes de vanquall Coloniensis Doctor utriusque juris in his Breviary on the sixt book of the Decretals in his conclusions upon the text last cited conclusione 2. where he thus writes Spectat ad officium visitatoris primo discutere statum clericorum qualiter baptismum alia sacramenta administrent qualiter se habeant in ecclesia vita Et si omnia recte inveniat deo gratias agat sin autem aliter inveniat ignaros instruat haec nocte qua venit expediat sequenti die de mane plebi vocatae debet praedicare verbum dei docendo fidem and quod mortalia vitent se continue in bonis operibus exerceant This glosse is agreeable to the former text and binds the visiter ex debito ex officio to preach at his visitation and there to teach both Clergy and laity My fift man is Cardinall Hostiensis in the third booke of his summe tit de Censibus exactionibus procurat Expounding the text last mentioned His wordes are these Archiepiscopus in secunda visitaione illos visitet qui in prima non fueriut visitati imprimis verbo dei proposito quaerat de vita conversatione ministrantium Praecipit autem dominus noster universis episcopis aliisque praelatis ordinario jure exceptis religiosis visitantibus ut hanc formam studeant observare ut omnia haec leguntur in authentica Domini In which words my Lord this is very observable that Hostiensis saith it is expresly set downe in the very text of the canon law even in the Popes authenticke Epistle that every Arch-deacon Bishop and Arch-bishop is first to preach his owne visitation sermon and then to correct and reforme the parties visited And if this much be expresly set downe in the very text what need we any more glosses to prove that which is cleere and evident in the very text and if any glosse shall contradict a plaine text we may lawfully reject it and conclude that it is mala glossa quia corrumpit textum Now upon the other text before alleaged out of the Decretals lib. 3. tit 39. De censibus exactionibus procurationibus cap. 23. parag Porro The wordes whereof are these Porro visitationis officium exercentes non quaerant quae sua sunt sed quae sunt Jesu Christi praedicationi exhortationi correctioni reformationi vacando ut fructum referant qui non perit I produce these three glossators Petrus de Anchorano Cardinall Zabarell and Abbot Panormitan Petrus de Anchorano upon the former text sayes Praelati tunc sunt procurandi cum personaliter visitant Et debent tunc consilium Lateranense servare praedicationi exhortationi reformationi vacare Cardinall Zabarell upon the same text gives us this glosse Octavo nota quod debet visitans instare praedicationi exhortationi correctioni quid a clericis exquirere debeat quid eos docere traditur in decretis causa decima quaestione prima cap. placuit Abbot Panormitan upon the former wordes sayes visitator debet praedicare ex munere and he further adds Quid debeat facere praelatus tempore visitationis vide bonum textum in decretis causa decima quaestione prima cap. placuit There are two thinges my Lord in these three glossâ—tors to be observed The first is that they doe expresly affirme that it is the visiters duety to preach his owne visitation sermon The other is that for fuller information in that point they doe referre us to two canons The first is the tenth canon of the second Lateran Councell mentioned by Petrus de Anchorano The other is the first canon of the second (f) Brachara metropolis in provincia Gallaeciae The city Braga or Bracha in Portugall ex Binnio Bracharen Councell conteined in the decrees the tenth cause the first question the Chapter Placuit mentioned by Zabarell and Panormitan And these two canons lay a greater burden upon the visiter than to preach his owne visitation sermon at the publicke meeting of the deaneries or at a generall chapter and visitation of many parishes For the first canon of the second Bracharen Councell contained in the chapter placuit binds every Bishop to goe over his whole diocesse parochiatim and in every parish to teach both clergy and laity The clergy how to doe their owne dueties in their owne Churches and the laity how to understand the Articles of the Christian faith and how to lead a godly life and then that canon concludes Et sic postea Episcopus de illa ecclesia proficiscatur ad aliam And if any Bishop eitheir through multitude of businesse or bodily sicknesse or want of knowledge or through other occasions cannot in his owne person preach the word of God Parochiatim through his whole diaecesse Then the other canon the tenth canon of the second Lateran Councell binds him assumere viros idoneos potentes opere sermone qui plebes sibi commissas vice ipsius cum ipse per se idem nequeat sollicite visitantes verbo aedificent exemplo To take unto himselfe able men powerfull in deed and word who carefully visiting the people committed to him may in his steed when he himselfe cannot edifie them by word and example And it