oath Ibid. leg 9. 2. This oath is ministred propter inopiam probationum where other proofes fail Cod. lib. 4. tit 1. leg 3. And the Canon law saith In ipso causae initio non est à quaestionibus inchoandum They must not begin in the entrance of the suit with questions So in the case of iealousie between man and wife where no other evidence was the woman was charged with an oath or execration Numb 5. 21. But now a man convented is first put to his oath though other profes be at hand 3. VVhere one is pressed with this oath a partie and accuser should be given that he which is accused may referre juramentum may haue liberty to returne the like oath upon his accuser Cod. lib. 4. tit 1. leg 9. Iustinian giveth this reason Non debet respuere in persona sua quod placuit in persona adversarij Hee must not refuse to sweare in his own person seeing hee put his adversary to it ibid. leg 12. This course is held in the honorable Court of Chauncery that where that partie is examined upon his oath his adversary that putteth in the bill appeareth against him This standing forth of the accuser is approved by our Saviour Woman where are thine accusers Ioh 8. 10. The heathen Iudge had this equity to say unto Paul I will heare thee when thine accusers are com Act. 23. 35. The Canons are most pregnant this way Iulij 1. decr 1. that an accuser should bee produced in iudgement Non oportet quenquam iudicari aut damnari antequam accusatores suos presentes habeat None ought to be judged or condemned before he haue his accusers present Non ante accusatus supplicio deputetur quant accusator presentitur That the partie accused be not adiudged to punishment before his accuser be produced Wormatens c. 42. Necesse est secundum scripturarum documentum accusatorum accusatum simul adesse It is necessary according to the doctrine of the Scriptures that both the accuser and accused be present at once Nicol. 1. de Iudic. c. 10. No cause shall be admitted to any to determe Nisi personae appareant quae volunt personam criminosi impetere Vnlesse the parties appeare that will accuse the guiltie person Thus both by Scripture lawes imperiall Canons of bishops Councels provinciall and generall it is evident that no man ought to be condemned without an accuser wherein the course which is taken by the ministring of an oath Ex Officio faileth 4. Clergy men are priviledged not to be examined upon their oath Citra iniuriam questiones testimonium dicunt Cod. lib. 1. tit 6. leg 8. Theodos They must giue their testimony not forced therto by question As they are excepted by this law from torture of body so by the same reason from the forcing of their conscience especially the Bishop should not exact such a compulsiue oath of his Clergie Nullus Episcopus Clericos suos nisi forte quibus Ecclesiasticarum rerum dispensatio commissa fuerit sibi iurare compellat Caus 22. 5. 23. Placuit ut nullus Episcopus quenquam Clericorum iudicare aut condemnare presumet nisi accusatus legitimos accusatores habeat Wee think fit that no Bishop do iudge or condemne any of the clergie unlesse the party accused haue lawful accusers present This also is agreeable Inter decret ab Adrian collecta to the Apostle Against an Elder or a Presbyter receiue no accusation but under two or three witnesses 1. Tim. 5. 19. But now in Ecclesiasticall proceedings there is no respect had to the reverent calling of preachers but they are indifferently put to the oath neither is there an accuser produced 5. The Prophet Ieremy would haue us to sweare in iudgement Ierem. 4. 2. that is not rashly but deliberately and advisedly but they which are examined upon the oath can not sweare in iudgement because they know not the articles before to consider of them but they that sweare make a present and direct answer they know not to what This is also contrary to that decree Latran sub Innocent 3. c. 8. Contra quem facienda est iniquisitio c. exponenda sunt illi capitula de quibus fuerit inquirendum ut facultatem habeat defendendi seipsum c. He against whom inquisition is made must haue the points declared unto him whereof hee is to bee exaamined that he may haue power to defed himself Ergo the oath ex officio is not according to iudgement 6. VVe must sweare also in righteousnesse Ierem. 4. 2. But so doe not they which take the oath ex officio because they are forced to accuse and bretray their brethren which is against the law of charitie and righteousnes In which case a man should bee resolved to say with Ambrose prius est ut animam mihi quam fidem auferat I wil sooner loose my life then my faith 7. It is against the Law to force a man to produce witnesses against him self Nemo contra se cogitur testes producere Cod. lib 4. tit 20. leg 6. Ergo it is against the law for a man to be forced to be a witnesse against him selfe 8. By the ciuill law a witnesse produced against his will must not carcerali custodia detineri c. Be commited to prison nor deteyned aboue 15. dayes Cod. l. 4. 20. 15. But they which are produced to testifie against themselves are committed to prison and kept not onely 15. dayes but so many weeks and moneths till they submit themselves to the oath 4. The Scripture saith in the mouth of two or three witnesses shall every word stand 2. Cor. 13. 2. Hereunto agreeth the civill law vox unius vox nullius the voyce of one is the voyce of none Cod. l. 4. tit 20. l. 8. Constan And the canon law Vnius testis responsio omnino non audiatur one witnesse is not to bee heard Caus 4. q. 3. c. 2. If one witnesse is not to be accepted much lesse where no witnes is should any be condemned 10. The same party should not be both accuser and iudge our Saviour to whom as a iudge they presented the adulterous woman would not condemne her without accusers Ioan. 8. The Canons agree Nullus praesumat Cans 4. 44 c. 1. 2. accusator simulesse iudex Let none presume to be accuser and judge Fabian epist 1. Damasc ep 3. c. 7. Concill Oxoniens sub Steph. But in urging the oath ex officio the Iudge and Court are accusers VVherefore O most noble King 1. seing the oath ex officio should bee in waighty not common in civill rather then in criminall causes 2. seeing it should be used but when other proofes faile 3. And that an accuser should be produced 4. And the Ministers by law are priviledged 5. Seeing such cannot sweare in iudgement not knovving the articles obiected 6. nor in righteousnesse being forced oftentimes to accuse their brethren 7. Neither should a man be forced to
loue of the truth that they might be saved 2. Thes 2. 10. 11. Now the very God of peace sanctify thee throughout in thy person in all thy wayes works and I pray God that thy whole spirit soule and body may be kept blamelesse unto the comming of our Lord Iesus Christ even so Amen TO THE MOST CHRISTIAN and excellent Prince our gratious and Dread Soveraigne IAMES by the grace of God King of England Scotland France and Ireland c. Wee the Ministers and Preachers of the Church of England that desire Reformation wish a long prosperous and happy raigne over us in this life and in the next everlasting salvation MOst gratious and dread Soveraigne we little thought when first our humble Perition was exhibited to your excellent Maiesty it being both for the matter honest and for the manner peaceable should haue found so hard entertainment abroad as that this action of ours so Answ to the Petit. Epist. Ded. p. 4. l. 21. secretly orderly and lawfully enterprised should be by publick writing traduced as unduly and dishonestly attempted Our meaning was onely to intimate to your Majesty the state of our Church not to lay open the nakednes of our Mother to the scandall of the enemy nor to appeale to inferiour iudges to the preiudice of your Maiesty to whom the cognizance of this cause and deciding of this strife of right appertayneth We trust therefore that as Abraham composed the variance between Genes 13. Exod 2. his and Lots servants Moses between the Hebrewes Constantine among the Church Ministers so it will please your Majesty to be a iudge between us and to giue us leaue to defend iustifie our innocent cause As for us we say with the Apostles We cannot but speak the things which we haue seen and heard and approue that saying Act 4. 20. of Hierome Minoris peccati est sequi malum quod bonum putaris quam non audere defendere quod pro bono Dialog 1. advers Pelagian certo noveris Now then most noble King giue your faithfull subiects and unsained lovers of the trueth your princely leaue to iustify their honest and godly petition which hath been by some of our Brethren in their heate impugned In which their enterprise we humbly craue licence to propound certain generall observations which we referre to your Highnesse Christian consideration First whereas wee your Maiesties 1. Observation Opposition between the Kings iudgement the Censurers of Oxford humble Petitioners haue throughout conformed our desires and requests to your Maiesties iudgement who haue wished us to iudge of your future proiects according to your by-past actions and haue proportioned our suites after the rule prescribed in your Majesties book which you would Preface to Basil haue taken of all men as an image of your mind and a Discovery of that which may be looked for at your hands Yet our brethren to our understanding haue been bould in diverse points to oppose their indgement to your Maiesties 1. They count it an unsufferable Pag. 7. thing to permit any thing touching the government of the Church to be so much as questioned Whereas it hath pleased your Maiesty in your princely wisdome to permit and will a conference of the learned concerning such matters 2. They will not grant that these Pag. 10. articulated are the peccant humors of the Church and so consequently acknowledge none Your Majesty saith otherwise no kingdom lackes her own diseases and seemeth not to be ignorāt of corruptions stoln into the state 3 They justifie ceremonies traditions not warranted by the word as the crosse in baptisme the surplice interrogatories ministred to infants Confirmation But your Maiesty Basil p. 18. 19. hath shewed us to ground our conscience onely upon the expresse Scripture and to discerne between the expresse will Commandement of God in his word and the invention and ordinance of man 4. They count them turbulent p. 14. that would not haue the Apocrypha read in the Church But your Maiesties iudgement is otherwise as to the apocrypha books I omit them because Basil p. 1. I am no Papist and indeed some of them are no wayes like the ditement of the Spirit of God 5. Your Majesties princely resolution Basil p. 43. is to see all your Churches within your Dominions planted with good Pastors Our brethren say it is impossible and that the defects of some p. 15. Ans men may be better supplied by other meanes then by preaching as by reading of Scripture and of homilies p. 16. p. 14. and of the service boke and that all Ministers were not preachers in the primitiue Church 6. Your Maiestie most truly affirmeth Basil p. 4. according to the Apostle that faith commeth by hearing the word preached Our brethren say that the P. 16. Ans reading of Scriptuers of Sermons and Homilies are the ordinary effectuall meanes to increase faith 7. Your Maiesties Christian motion to the Vniversity is that leases of their tithes impropriate be so demised as Ecclesiastical persons onely may be maintained inabled to execute their functions the Collegdes being provided for But our Brethren do charge the p. 19. Petitioners for this motion with lack of conscience 8. Your Majesties care is that the Basil p. 43. doctrine be preserved in purity according to Gods word The Petitioners for moving to haue an uniformity of Doctrine and all popish opinions abolished are challenged for shamelesse p. 13. suggestions 9. Your Majesties will is that the Basil 13. discipline bee likewise preserved in puritie according to the word of God The Petitioners humbly desire accordingly that the discipline may be administred according to Christs institution for this motion they are reproved p. 20. 10. Your Maiesty most princelike Basil praef professeth equally to loue and honour the learned and graue men of either opinion that like better of the single forme of pollicy in the Church of Scotland or of the many ceremonies in the Church of England Our brethren Epist. p. 5. count the Petitioners Shismaticks Hypocrites dishonest persons for misliking of some ceremonies and other abuses and wish the land were cleane purged of them 11. Your Maiesty giveth this honorable Basil praef 11. testimony of the godly ministers of Scotland that there is presently a sufficient number of good men of them in that kingdom But the Confuters p. 30. say There are not many men brought up among them in this last reformed age worthy of that wonted honorable maintenance 12. Your Majesty specially provideth for keeping holy the Lords day so that alwayes the Sabboths be kept holy and no unlawfull pastime bee used But our brethren seeme to urge the Ans p. 13 rest upon other holy dayes as strictly as upon the Lords day Whatsoeuer opinion is conceiued of our brethren and howsoeuer they are men of credit and estimation in
for your Maiesties poore subiects the Ministers of the Gospell wee haue greater cause to thinke our selues happy that we may poure out our complaints into your Christian bosome then Paul did for that he was suffered to answer before king Agrippa and we doubt Acts 26. 3. not but that your princely eares are open to heare us for our selues that would haue us heard for your selfe as Ambrose saith to Theodosius Ipse non audies eos quos pro Ambros epi. 29. ad Theodos te audire velis Will not you heare those whom you desire may be heard for you 2. Cens Augustine saith The very change of custome otherwise profitable hurteth by innovation Answ Neither should custome prevaile Custome no rule of truth against truth nor antiquity counterpoise the verity Innovation is not to be feared where reformation is effected for then neither Christs Gospell should haue taken place against the Iewes traditions nor Christianity against Paganisme or Protestancie against Poperie Augustine saith well even in the same place where he is alledged for custome Aut propter fidem aut propter mores vel emendari oportet quod perperam fiebat vel institui quod non fiebat For faith and manners that may be amended which was evill used and that may be a new instituted which was altogether omitted And Ambrose answereth Symmachus well that urged custome for certain Pagan rites Nulla aetas ad perdiscendū sera est crubescat senestus quae se emendare non potest non annorum canities est laudāda sed morum nullus pudor est ad meliora transire Old age should not be ashamed to amend and it is no shame to change for the better 3. Cens If the ceremonies were superstitious with what conscience did they subscribe in respect of the times c Ans 1. The Ceremonies which we desire to be removed as we iudge them not Of subscription all to be alike superstitious so neither do we hold them profitable or fit to be retained being divers wayes scandalous as shall afterward be shewed in particular 2. Some men by subscription did beare them as tollerable in their opinion for the time not as condemnable in themselues And do our brethren aske with what conscience they could doe this Did not the Apostles subscribe in their Epistle for the retaining of the Iewish rites of abstaining from strangled bloud not thereby simply giving them approbation but yeelding toleration for a time As Augustine doth fitly resemble it Sicut defuncta corpora necessariorum officijs deducenda erant quomodo ad sepulturam c. As the bodies of the dead must haue a time to be brought after a seemly manner to the graue and not to be straight wayes forsaken c. so they which desired the peace of the Church and were loath to depriue the same of their labours did thinke they might by their subscription and tolleration beare these ceremonies for a time as the Apostles did the Iewish though the case be not altogether alike the one being legall rites the other humane inventions yet neither apparantly impious the time and other circumstances considered 3. And yet divers which sue for reformation did refuse at all to thrust their neckes under this yoake of subscription But how little the subscription of some maketh for the allowance of these offensiue ceremonies shall further appeare in the defence of the preface Art 6. 4. Cens If they be indifferent c. then the Magistrate may command and we must obey Where is then their pretended obedience c. Answ Concerning the indifferencie of Some Ceremonies urged not indifferent Epist. 118. c. 8. these ceremonies 1. It will bee hard to shew that they are all indifferent Augustine hath this rule of things indifferent Quod neque contra fidem neque bonos more 's iniungitur indifferenter est habendum That which is not enioyned against Faith and maners must be held as indifferent Such Ceremonies then as haue no warrant in the word and so against faith as the Crosse in Baptisme and are offensiue to the brethren and so against charity as the Surplice how can they be sayd to be indifferent 2. VVere they indifferent in their owne nature yet the scandall that is given to the Church of God doth take away the indifferent use of them As S. Paul saith he would not eate flesh while the world standeth if it offend his brethren 1. Cor. 8. 13 and it is no small danger to wound the conscience of the brethren the Apostle saith they sinne against Christ 3. And if these ceremonies were indifferent in their owne nature yet to him that cannot be so perswaded they are not indifferent For whatsoever is not of faith that is of a Rom. 14. 23. ful resolutiō without doubting is sin For this were as Ambrose saith to be strenuum operibus affectu infidum To bee stong in action and unstable in affection VVherefore if either these ceremonies be not at all indifferent in their owne constitution or not so in the perswasion of the heart it is no disobedience to forbeare and refuse though they are commanded for the Apostles resolution is to be followed to obey God rather The Magistrate must not Act. 4. 19. be resisted and yet that which is against the conscience may without disloyaltie be refused as Ambrose excellently resolveth Volens nunquam ius deseram coactus repugnare non novi potero flere potero gemere Orat. in Auxentium I will never willingly forsake that which is right I cannot resist though provoked this I can do even to weep and waile Lastly seeing these ceremonies are confessed by our brethren to be indifferent then is it in your Maiesties power to take them out of the way Then seeing the removing of these ceremonies wil be no offence of conscience to those that hold them indifferent and yet the retaining of them wil grieue the consciences of many good Christiās that take them not to be such we humbly beseech your excellent Maiesty to take away these occasions of stumbling and we doubt not but your Maiesty is resolved with the Apostles to lay upon your people no other burdens beside necessarie things Act. 15. 28. Like to Theodosius the Emperour of whom Ambrose saith Malluit sibi homimines religione quam metu constringere in obit Theodos Hee had rather binde men unto him by religion then by feare Positiue abuses 5. Cens These men should not be suffered Vntruth 1. wee do not calumniate the state Vntrutht 2. There are many things positiue in the church worthy of blame to calumniate the State wherein there is nothing positiue worthy of blame Answ As touching the abuses in the Church some of them are in the very cōstitution as of Non-residents pluralities dumb ministers faculties excōmunication by Chancellors Officials and such like as shall afterward appeare in particular VVere there nothing herein positiue that is worthy of
the publick use of the keyes be committed to Pastors as the private 5. And seeing presbyters in citties haue dealt with the censures the Pastors of the country should not be excluded 6. Neither is the frequenting of Synods any hinderance to the Ecclesiasticall presbytery 7. 8. 9. Nor any other inconvenience need to be feared VVe trust your Maiesty will follow the example of David to distribute the offices indifferently among the sonnes of Aaron 1. Chronicl 24. 4. that a Theodoret. lib. 5. c. 37. few onely haue not the preeminence and the rest bee despised Theodosius the Emperour when hee was excommunicate a levi homuncione of a light cockbrain fellow because hee granted not the thing which he requested would not enter into the Church before hee had been of the same party absolued As we condemne the malepartnesse of the Priest no such authority beeing giuen to any one in the world to censure Kings so thus far wee wish that good Emperour to be followed that the censures of the church may be reverēced being first restored to the originall institution We aske nothing but what your Maiesty hath given hope of that discipline 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 43. B. Bilson p. 320. Perpet gov be preserved in puritie according to the word and which some of the greatest opposites to this cause haue granted We take the power of the keys to be common to al that haue pastorall charge of soules in their degree And so wee conclude this matter with that sentence of Hierom which wee desire our reverend Bishops to think uppon sicut presbyteri c. as presbyters know that by the custome of the Church they are made subiect to him that is set over them ita Episcopi se noverint magis consuetudine quam dispensationis dominicae veritate presbyteris esse maiores in commune debere Ecclesiam regere So let Bishops know that rather by custome then any divine dispensation they are greater then presbyters and ought to governe the Church in common in 1. c. ad Titum citatur distinct 95. c. 5 And Hierome againe saith Episcopi sacerdotes se esse noverint non dominos honorent Clericos quasi Clericos ut ipsis a clericis quasi Episcopis honos deferatur scitum est illud oratoris Bomitij cur ego te habeam ut principem cum me non habeas ut senatorem If Bisbops will be counted as chiefe and principall they must admit their Pastors to bee as Senators and of their Councell Hierom. ad Nepotian 4. Against extorting of unreasonable fees Obj. 1. There are severe lawes made already in that behalfe p. 24. Answ Notwithstanding the severe canons provided against the extorting of unreasonable fees who knoweth not what intollerable exactions are used in Ecclesiasticall Courts The time was when the Cod. lib. 9. tit 27. Leg. 3. Gratian. Iudge ought to take nothing for his sentence when nothing was to be exacted of the innocent party Colon. p. 13. c. 7. speciem aequitatis non habet quod ab Innocentibus absolutis quippiam expensarum nomine exegatur when nothing was to bee taken of the poorer sort a pauperibus non valentibus solvere nihil recipiatur append Basil c. 10. It is not aboue 250. yeares since when this order was taken by Iohn Stratford of Canterbury Liuwood de censen c. Saeva that ministers should pay for their letters of orders but 6 pence for their letters of institution but 12 pence It hath bin decreed that none should exact ultra statuta Caus 16. q. 1. c. 62. leo Extr. com l. 3. tit 10. c. 1. patrum beyond the rates appointed and should take lesse then the custome not more But how the world is changed who can be ignorant what large fees are payed for sentence innocents not spared the pore not pittied for probates of testaments double required to that which the statute aloweth for acquittances Executors some ten some twenty yeares after are forced to pay some forty some fifty Shillings some more Letters of institution are growen from twenty Shillings in the beginning of Queen Elizabeths reigne to foure or fiue pound Letters of orders taxed in many places after the same rate Archdeacons in their visitation haue exacted twelue pence sixteen pence yea two Shillings for the article books not much more aboue three pence And not long since when the fifth of August was commanded to be solemnised for the Kings deliverance in some dioceses the Church-wardens were urged to pay twenty pence for copies of the letters It were too long to reckon up al the exorbitant courses of these Ecclesiasticall courts and officers which since the canon made in the convocation anno 1597. haue been more intollerable then before and seing convocation canons are no more regarded wee desire that their exactions may be restrayned by parliament statutes that some of the ancient lawes may bee revived against such as either the law of Theodosius to be punished fourefould or the decree of Innocent the 3. Extorta restitu it Cod. lib. 9. tit 27. l. 6. tantundem pauperibus eroget to restore what is exacted and to giue so much to the poore or of Benedict the 12. that they pay twice so much within two moneths or Decr. Greg. lib. 3. c. 49. c. 8. Extrav com lib. 3. tit 10 c. 1. can 24. els be suspended from their office or the decree of the 8. generall Councell concerning such enormities aut corrigatur aut deponatur that if they bee not amended they should be deposed 5. Of farming of iurisdiction Censure IT is of it selfe a matter indifferent neither good nor evill but as it is used p. 24. Answ And doe our brethren hold the farming of Ecclesiasticall Iurisdiction to be so indifferent a thing How is it possible when some Chancellours and officials pay 20. some 30. some 50 poūd yearly for their place registers some an hundred some 200 pound some more but that they should extort in their office and by unreasonable and intollerable exactions make up their hard rents Is this thing neither good nor evill VVe wonder that men professing the Gospell should bee thus besotted and blinded seeing the papall Hierarchie hath detested such corruptions Lateranens par 1. c. 15. quidam pro certae pecuniae quantitate jurisdictionem Episcopalem exercent qui de caetero praesumpserit sic facere officio suo privetur Episcopus conferendi hoc officiū potestatē amitttat both the officer that farmeth his office shall bee deprived and the Bishop loose the gift So was it also decreed Coloniens sub Adulph med 3. c. 3. Non licet praelatis officia sua pro pecunia alicui committere that no prelates should let out their offices for mony 6. Of the restraint of marriage at certaine times Obiect IT is falsely called a popish canon it was anciently used in the Church Laodicen c. 52. and being rightly used is commendable c. Ans to