had without cause devided them selves from the vnitie of the true church of Christ. Whereas in trueth the Church of Rome by hir Apostasie having cut hir selfe from the vnitie and vniversalitie of the doctrine and discipline of the true and mother church of Ierusalem is hir selfe become the most notable and prime sectarist and scismatick of all the world And of whose schismes our Diocesans so farre as they partake with hir can not be but guiltie Vnles then the Diocesans can approve them selves touching their vse of ceremonies and Diocesan governement to stand in vnitie with the true new Ierusalem in these dayes repaired departed from the old scismes and sectes of Rome we assure our selves that they shall never bee able to prove those ministers which stand not in vnitie either of iudgement or practise with them but be conscionably and so lawfully divided in these things from them for such division to be sectaries or scismatickes For it must be an vnlawful discession by inobedience from the vnitie of the first and mother church of Ierusalem and not a lawfull departure vpon conscienc efroÌ„ the vnitie of the daughterâ—church of England that maketh a sect or scisme For otherwise ought not all other Churches stande in vnitie of ceremonies and governement with the church of England or vnlawfully dividing them selves from the church of England must they not become scismatickes sectaries And how then are not almost all the christian and reformed churches in the world not onely almost but altogether scismatickes and heretickes For have they not divided them selves from all those rites ceremonies and ornaments yea from that maner of Diocesan governement which are yet reteyned in the Church of England My Lords I confesse that brevitie and perspicuitie are two commendable graces of the toung and of the penn such as in all mens speeches and writings are much to be affected But yet how long or tedious soever already I have bene I most humbly beseech your Honorable Lordshippes to licence me to passe on one steppe further especially the matter being of such importance as the same may not well bee passed over with silence It hath pleased Sir Edward Cooke Knight his Maixsesties Attornie Generall with all candor and charitie to confirme and satisfie by demoÌ„strative profes all such as were not instructed in these points following First that an ecclesiastical Iudge may punish such Parsons Vicars c. as shall deprave or not observe the booke of common prayer by admonition excommunication sequestration or deprivation other censures and processe in like forme as heretofore hath beene vsed in like cases by the Queenes Ecclesiasticall lawes though the act of primo Eliza had never insflicted any punishment for depraving or not observing the same Secondly seeing the Authoritie of an Ecclesiasticall Iudge is to proceed and to give sentence in ecclesiasticall causes according to the ecclesiasticall law that the Iudges of the common law ought to give faith credit to their sentence and to allow it to be done according to the ecclesiasticall law when the iudge ecclesiasticall hath given sentence in a case ecclesiasticall vpon his proceedings by force of that law For saith he cuilibet in sua arte perito est credendum Now then as these two pointes bee plainly taught and demonstrated vnto vs so also even by the same demonstrative reasons it is cleere that there must be first a depraving or not observing of the booke secondly that every sentence given by an Ecclesiasticall Iudge in a case of depraving or not observing of that booke must be given according to the ecclesiasticall law and vpon his proceedings by force of that lawe in like forme c. From whence it followeth that all sentences touching depravation or not observatioÌ„ of the booke be either voyd sentences by reason of nullitie or no good sentences by reason of iniquitie and iniustice if by the Iudges Ecclesiasticall vpon their proceedings the same sentences have not bene given by force and according to the same lawes in like forme as heretofore hath bene vsed in like cases by the Kings Ecclesiasticall Lawes or if the factes charged vpon the Ministers by the iudges ecclesiasticall by the letter intendement of the law be no depravations or not observations of the same booke And therefore to the end all questions touching these two poyntes might hereafter vtterly cease and bee quite buried your Lordshipps could not performe a more acceptable service to the King the Church and Realme then by an humble importuning his Maiestie to have it explaned by parliament both who by the letter and true meaning of the Statute bee depravers or not observers of the booke and also what lawes Ecclesiasticall may and of right ought to be called indeed and trueth the Kings Ecclesiastical Lawes For vnlesse aswell touching these pointes as touching the former pointes of Sir Edward Cooks it be throughly decided what is the binding and assured law how should the Ministers or others content and satisfie themselves with an vndoubted trueth And that this maner of controversie about the invaliditie of sentences of deprivation given by ecclesiasticall Iudges is not a controversie now first moved but that the same hath bene long since handled and discussed is a matter yet remayning I doubt not vpon publike record For whereas sentences were given in the tyme of King Edward the sixt for the depriving of Steven Gardener from the Bishoprick of Wincester Bonner from the Bishopricke of London Heath from the Bishoprick of Worcester Day from the Bishopricke of Chester Tunstall from the Bishopricke of Durham Vessay from the Bishopricke of Exeter wherein many grave and learned commissioners were imployed as the Archbishop Cranmer Ridlie Bishop of London Goodrick Bishop of Elie Sir William Peeter and Sir Thomas Smith the Kings Secretaries Sir Iames Hales one of the Iudges of the Law Maister Gosnell Maister Goodrick Maister Lisley Maister Stamford men notably learned in the common lawes of this Realme Mai. Leveson and Mai. Oliver Doctors of the Civill Law nevertheles the same sentences were in the tyme of Queene Mary revoked and disannulled without Perliament within the space as myne Authour sayth of three dayes by vertue of other Commissioners for faultes found in the processes viz. that the former Commissioners had proceeded ex officio without authoritie contrary to the Kings Ecclesiastical Law sometimes quod iuris ordo non fuerit servatus c. sometimes that the Interrogatories were ministred to divers persons without knowledge of the defendants c. sometimes that some of the witnesses were examined privately without oath sometimes that their exceptions and appellations were not admitted but their persons committed to prison pendente appellatione c. And therefore most honorable Lords it is to be considered if the like or greater and more notorious defaultes and enormities bee to bee found in any sentence of deprivation given ex officio by a Diocesan governour at this day whether the same sentence
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
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
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
might gather that by the Romish canon lawe the deprivation of a Parson or Vicare for contempt may bee drawne in by the tayle though not by the head nevertheles we stil denie that any Parsons or Vicares deprivation directly or indirectly by the head or by the tayle either for contempt or periury pretended to be committed for inobedience to canonicall admonition can iustly be inflicted by the kings Ecclesiasticall lawes First wee affirme as earst hath bene said that aswell the branch as the budd the tayle as the head of the Romish canon law is cleane cutt of from the body of the kings ecclesiasticall law Secondly that the oath of canonicall obedience exacted by the ordinary from the Parson or Vicare hath ever bene exacted hetherto onely by vertue of the foraine canon lawe and not so farre as we can learne by any the kings ecclesiasticall lawes And therefore periury against a Parson or Vicare for refusing to weare a surplice at his ordinaries command by the kings ecclesiasticall lawes can not be obiected For where there is no lawfull oath taken there no lawfull punishment for the breach of the same oath can be inflicted by meanes whereof one halfe of the tayle before spoken of is disiointed And as for the other halfe viz. that for contempt of the ordinaries iurisdiction a Parson or Vicar having promised reverently to obey his Ordinary and other chief Ministers vnto whom the governement and charge is committed over him Following with a glad minde and will their godly admonition and submitting them selves to their godlie iudgementes that a Parson or Vicar I say may lawfully for contempt be deprived from his benefice if he refuse to put vpon him a Surplice at his Ordinaries admonition and vpon his Ordinaries iudgment this might have some colour if the Ordinaries admonition and iudgment by the holy scriptures could be proved to be a godly admonition and a godly iudgement or if the former rule were a rule aswell drawne from the Kings ecclesiasticall law as from the forain canon law or if there were no certeyne peyne by the Kings ecclesiasticall law appointed for contempt or that among divers certeyne peynes deprivation were one But seeing the same rule is none of the Kings ecclesiasticall rules and that admonition suspension and excommunication not deprivation by the Kings ecclesiasticall lawes be certeyne and ordinarie peynes to be inflicted for contempt it followeth by the Kings ecclesiasticall laws that an Ordinarie may not arbitrarily at his pleasure for such contempt inflict the peyne of deprivation Nay were it true that the Romish and forein canon law touching this point of punishment by deprivation for contempt were in force within the Realme of England yet we affirme even by the same law that a Parson or Vicare for the not wearing of a Surplice in divine worship at his Ordinaries commaundement is no more by his Ordinarie to be deprived from his benefice having a reasonable cause to refuse the wearing of a Surplice then is a Bishop to be deprived by an Archbishop from his Bishopricke for not putting in execution some of his provinciall Decrees when as the same Bishop hath any reasonable impediment not to execute the same decree For this Rule contemptus fit ex ce ipso quòd dum possunt hoc facere illud tamen exequi contradicunt is of no more efficacie â—gainst a Minister subiect to a Bishop then it is against a Bishop subiect to an Archbishop For as Episcopus est ordinarius omnium Presbyterorum suae Dioceseos so is Archiepiscopus ordinarius omnium Episcoporum suae provinciae And therfore as it may be said quod praecipitur Rectori seu Vicario ab Episcopo imperatur ei quod imperatur necesse est fieri ab eo si non fiat poenam habet so likewise vbi preceptum Archiepiscopi est factum Episcopo ibi necesse est vt obediat vnde verbum praecipimus habet vim sententiae definitiuae aswell by an Archbishop against a Bishop as by a Bishop against a Parson or Vicare For as haec dictio praecipimus vsed by a Bishop to a Parson or Vicare importat aliquid de voluntate authoritate Episcopi faciendum vel non facienduÌ„ so by the same word vsed by an Archbishop to a Bishob tenetur Episcopus cui praecipitur quòd praeceptum adimpleat voluntate authoritate Archiepiscopi In like sort then as a Bishop to save him selfe both from contempt the penaltie of contempt may alleadge and plead against an Archbishop that he did not therefore obey and execute his Metropolitanes commandement by reason of absence out of his Diocesse sicknes or other reasonable impediment even so every Parson and Vicare to avoid contempt may pleade for his innocencie against the admonition of a Bishop that Iustam habet excusationem quare illud non debeat vel non possit vel nolit facere Non enim potest dica sponte negligere qui potestateÌ„ faciendi quod incumbit non habet Et negligens dicitur qui desidiosus vel inconsiderains est ad ea quae agere debet cum non subsit rationabile impedimentum contemnere dicitur qui sine causa non facit quod preceptum est Et contemnere videtur Jdem esse quod aspernari vel non curare hoc est verum quando non subest causa Wherevpon Linwood concluding that propter inobedientiam possunt subditi corum benesicjs priuari quia graviter pecat qui obedientiam infringot hoc verum est saith he si sponte sine causa hoc siat Let vs then for examples sake only suppose that the Bishop of Chichester commanded by the Archbishops grace of Canterbury to proceed to the deprivation of M. N. Vicare of P. in the Diocesse of Chichester for his not coÌ„formity in wearing a surplice should notwithstanding his commandement spare the said Vicare his deprivation and being convented before his Metropolitane to answere this contempt should for his excuse alleadge that he had received letters of speciall grace in behalf of the said Vicare from the Kings Maiestie by which he was required to respite the said Vicare and to assigne him a longer day Suppose this I say for examples sake to be true I demand in this case whether the Kings letters directed to the Bishop were not a reasonable impediment and iust cause to save the Bishop from the penalty of contempt which by the canon lawe is the losse of his Bishoprick for the not execution of the Archbishops provinciall Mandate If all the Advocates of the Archbishops consistories must needs grant that his Highnes letters were a iust excuse to exempt the Bishop from the penalty of contempt how much more iustly and reasonably may those Advocats conclude that the same Vicare was to be excused from contempt against the Bishops admonition when for his defence he alleadged and was ready by his oath to have avowed the testimony of his owne conscience rightly
as he was perswaded grounded vpon the holy commandement of the most high God that he durst not for feare of wounding his owne conscience and displeasing God to weare the surplice in any part of Divine worship For if the request of an earthly king superior to an Archb. be a reasonable excuse to save a BB. from contempt against an Archb. How much more ought the authoritie and precept of an heavenly king be a iust and reasonable impediment to save a minister from contempt against a Bishops admonitiō Vnlesse then a Bishop will avow and be able out of holy writ to iustifie that a Ministers conscience especially a Ministers conscience who walketh as Zakarias did in all the commandements and ordinances of the Lord without reproofe can not be any iust or reasonable excuse or impediment why he ought not or may not or will not in Divine worship weare a surplice being thervnto admonished by his ordinary vnles I say the Bishop out of holy writ be able fully to prove that such a Ministers conscience is no iust or reasonable cause to stay him from wearing a surplice in Divine worship in this case I say that even by the Romish canon law it self there can no contempt be charged vpon such a Minister for not obeying his ordinaries first second third admonitions the reasons whereof even out of the same canon law have bene alleadged before in the first parte of these cōsiderations But to leave the foraine canon law and all the rules thereof as being no branches of the Ecclesiasticall lawes of England let it be granted that before the statute of 25. H. 8. c. 19. some canon or constitution Synodall or Provinciall had bene made or since have bene made by the Clergie of the Realme in their cōvocation assembled by the Kings writ that a Parson or Vicare for periurie or contempt ecclesiasticall should bee deprived of his benefice neverthelesse it seemeth that the same is a voide canon and a void constitution Because it is contrary or repugnant to the lawes and customes of the Realme By which lawes and customes no free man of the Realme can be dispossessed of his franck tenement for contempt or periury in any of the kings temporall Courts All Parsons and Vicars then canonically instituted inducted being not subiects at this day to any forain power but being freemen of the Realme in as large and ample maner as any Layickes the Kings other subiects be it seemeth that a Parson Vicare by the lawes and customes of the Realme being a Freehoulder should for none other cause loose his Freehould then for the which like cause a Layicke may loose his Yea and because no Layicke by the laws customes of the Realme may bee put from his Freehould for contempt no though the same cōtempt be committed against the kings Proclamation or any decree made in his high Courte of Chancerie by so much the more vnreasonable it seemeth to be that a Parson or Vicare for contempt against his ordinaries admonition should bee deprived from his benefice by how much a contempt against the Kings commaundement is more heinous then is a contempt against the ordinaries admonition You mistake the cases as it seemeth you vnderstand not the law The Freehold of a layick and the Freehold of an ecclesiasticall person be not of one nature The former belongeth vnto him by a title invested in his person but the latter apperteyneth vnto a Church-man in the right of his Church If then the Churchman be displaced from his Church it followeth by a necessary cōsequence that he must likewise be discharged from his freehold For he being in the eye of the law dead vnto his Church can no more enioy the freehold which he held in the right of his Church then can a dead Layick any longer holde a Franktenement in right of his person And for your better satisfaction herein I would have you to consider that the like course of Iustice is kept and ministred against certeine officers in the common weale which officers so soone as for any iust cause they shall be put frō their offices doe withall and forthwith loose such their freeholdes as iointly with their offices and in regard of their offices they held The Maister of the Rolles and Warden of the Fleete having their offices graunted for terme of life though other of them by the same graunt be seised of a freehold the one of the house called the Rolles the other of the house called the Fleete nevertheles if the first bee put from his Mastership and the second from his Wardenship neither can the one nor the other by the law and iustice of the Realme reteyne either of those houses as his Freehold For as the houses were iointly with their offices in respect of their offices granted So their offices being once taken from thē they must withal by necessary consequence forgo those their houses w ch for the time they held as their freeholds Well if this be all that may gaynesay our position then be not our cases mistaken neither yet have we so ignorantly vrged applied the law and free customes of the Realme as you would beare vs in hande For though we grant whatsoever you have excepted to be true yet can not the same be a barre against our pleading For wee have hetherto pleaded no more in effect but thus viz. that a Parson or Vicar during his ministeriall function being in the eye of the law no dead but a living person and a free man of the Realme ought no more for a contempt vnto his Ordinaries admonition by any law of he Realme bee dispossessed from the freehold which in right of his function he enioyeth then can a Layicke for contempt vnto the Kings commandement be disseised of his And what if the Freeholdes of a Layick of an ecclesiastical person be as you say they be diversly possessed the one by right of church the other by right of person what doeth this I say impugne our saying that no Freeholder for cōtempt of the Kings cōmandment may be punished with losse of his freehold whē the great Charter of England telleth vs that a freemā shall not be amerced for a small fault but after the quantity of the fault And for a great fault after the maner therof saving to him his contenement or freehold If then vnto every freemā punishable by the law though his fault be great his Contenement or Freehold ought to be reserved it seemeth much more reasonable to follow that no Churchman being a freeman of the Realme may for contempt be punished with losse of his Contenement or Freehold And that you may consider against our next conference more deeply of this matter let me put this case vnto you viz. That a Churchman and a temporall person both freemen of the Realme for one and the selfe same contempt against the king were punishable by the great Lordes in the starre chamber
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
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