with the Opinion of Learned men That the marriage with his Brothers wife was contrary to the Law of God and void The King not expecting the Popes sentence anno 1533. marries his beloved Anne but such love is usually too hot to hold for about two years after he cut off her head yet the King did not wholly renounce the Papacy but still expecting the Popes sentence The Pope for the reasons aforesaid not desiring to end the business The slow proceedings of the Pope but to expect advantage from time reduces the matter into several points or heads which he would have particularly disputed and at the time of the Kings marriage with Anne was not got further then the article of Attentates in which the Pope gave sentence against the King that it was not lawful for him to put away his wife by his own authority without the Ecclesiastical Judge For which cause the King in the beginning of 1534. denied the Pope his obedience commanding his Subjects not to pay any money to Rome nor to pay the ordinary Peter-pence This infinitely troubled the Court of Rome and they daily consulted of a remedy Some thought to proceed against the King with censures and to interdict all Christian nations all commerce with England But the moderate counsel pleased best to temporise with him and to mediate a composition by the French King K. Francis accepted the charge and sent the Bishop of Paris to Rome to negotiate a Pacification with the Pope where they still proceeded in the cause gently and with resolution not to come to censures if the Emperor did not proceed first or at the same time with his forces They had divided the cause into twenty three articles and then they handled whether Prince Arthur had had carnal conjunction with Queen Katherine in this they spent time till Midlent was past when the 19. of March news came that a Libel was published in England against the Pope and the whole Court of Rome and besides a Comedy had been made in presence of the King and Court to the great disgrace and shame of the Pope and every Cardinal in particular For which cause all being inflamed with choler ran headlong to give sentence which was pronounced in the Consistory the 24. of the same month That the marriage between Henry and Katherine was good that he was bound to take her to wife and that in case he did not he should be excommunicated But the Pope was soon displeased with this precipitation For six days His rash censure repented of after the French Kings letters came That the King was content to accept the sentence concerning Attentates and to render obedience upon condition that the Cardinals whom he mistrusted should not meddle in the business and that persons not suspected should be sent to Cambray to take information â—and and the King had sent his Proctors before to assist in the Cause at Rome Wherefore the Pope went about to devise some pretence to suspend the precipitate sentence and again to set the cause on its feet But the King so soon as he had seen it said It was no matter for the Utterly loses the obedience of England Pope should be Bishop of Rome and himself sole Lord of his Kingdom And that he would do according to the antient manner of the Eastern church not leaving to be a good Christian nor suffering the Lutheran Heresie or any other to be brought into his Kingdom From that time forward Henry the Eighth of a zealous Assertor of the No anger lost between the King Pope Papacy both by pen and purse became the first and greatest Opposer of it of all the Western Christian Princes for the Eastern Christian Princes except sometimes the Emperors of Greece and the Kings of Holy Land did seldom or never submit to the Papacy in her Spirituals yet did he afterwards seed to be reconciled to the Pope even by means of his Nephew Charls the Fifth Nor were the Popes much behind hand with him For besides Clement's petty Excommunication Paul the Third Anno 1538. thundred out such a terrible Excommunication against him as the like was never heard of which deprived him of his kingdom and his adherents of whatsoever they possessed commanding his Subjects to deny him obedience and Strangers to have no commerce in the kingdom and all to take arms against and persecute both him and his followers granting them their states and goods for their prey and their persons for slaves But the Popes anger ended in words whereas the Kings deeds took place against the Pope But what there was in all the Kings reign which might be called Reformation What was the Kings Reformation I do not understand For whatsoever the King took from the Pope except Peter-pence he ascribed to himself If the Pope would be Head of the Catholique Church the King would be Head of the Church of England If the Pope challenged Annates and First-fruits of the Bishops and Clergy the King would do no less If the Pope did give Abbots and Priors power being Ecclesiastical persons to make divers Impropriations to their benefit the King will take a power to take them all away and convert them into Lay-fees and incorporate them so into particular mens estates that they shall never return to the Church more Nor had he any love or desire of Reformation of the Church but only to the Church-lands for all the Rites Ceremonies and Religion of the Church of Rome was continued and that with such bloody cruelty that a Stranger going over Smithfield one day and seeing two men there executed one for denying the Kings Headship of the Church and another for subscribing to the Six Articles cryed out Bone Deus quomodo hic agunt vivi hic suspenduntur Papistae ibi comburuntur Antipapistae And so zealous did he continue herein that Pope Paul the Third after he had fulminated so dreadfully against him Hist Conc-Trid fol. 90 proposed him for an Example to be imitated by Charls the Fifth Although such was the temper of this Prince that he never spared man The exclusion of the Papai jurisdiction was an act of the King Kingdom and Church of England in his rage woman in his lust nor any thing which might be called sacred in his avarice yet so absolute was he that his Divorce was attested by both the Universities at home besides that at Paris abroad his freeing himself and the Nation from the jurisdiction of the Pope was not only assented to by a Synod and Convocation of all the Clergy of England but the English and Irish Nobility did make their submissions by an Indenture to Sir Anthony Sellinger then chief Governor of Ireland wherein they did acknowledge King Henry to be their lawful Soveraign and confessed the Kings Supremacy Bram. Vind. of the Church of England p. 43. in all causes and utterly renounced the Pope But Divorce banishing the Papal authority
Yet this can be no objection by those men who ascribe all infallibility to the Pope and that all his Acts and Decrees are to be received and obeyed by an implicite faith as Divine oracles Well but suppose these determinations of the Pope were not concerning matters of Faith as no doubt they were not then how comes the Pope because he is infallible in the Faith that he takes upon him to be Judge and Determiner of those things which no ways appertain to it but are as much where Christianity is not planted as where it is Object Yet it will be objected That if the Church be not Judge of what conduceth to the peace and safety of the Kingdom and Church then who shall and so farewell to all Government and peace in Church or State But before I answer this Quaere I would be resolved one Question or two Who shall be Judge whether the Pope or a General Council be superior Who shall judge whether in any Determination of the Popes it be concerning matter of Faith or not or whether it be determined in Gathedra or not In the many Schismes of the Papacy who should judg who was the true Pope or who shall judg whether Alexander the tenth be now the true Pope or who ever gave the Cardinals who were an humane institution many hundred years after our Saviour this power of Election of the Pope that whosoever they should so elect should be universal Bishop and St. Peters successor Although I might justly insist hereupon nor can these things upon these mens principles who maintain the Popes infallibility at least in my understanding be solved and so are they for all their boast of unity among themselves in as much confusion and dissention even in their very principles as other men yet am not I ashamed to give an account of my obedience both to my Church and King Answer I say that God hath made man a sociable intellectual and reasonable creature and endewed him with an immortal soule potentially capable of eternal happiness Nor will God be served by man having so made him only by a base servile feare and without the intellectual and rational faculties of the soule and therefore has engraven by nature in the heart of every man certain rules by which he is to direct his actions which are the first principles and foundations upon which I honor my Parents King and them who are set over me for my direction in order to my eternal good And although that out of the Church and not being preserved by humane Laws I can neither hope for safety in this world nor salvation in the world to come yet who he is from whom all humane Laws are derived or what is the Church in which I must hope for salvation there is no visible Judge under Heaven but only mens consciences to direct them viz. those directions which God either by nature has given to men or revealed supernaturally in the Scriptures Nor does a mans conscience thus informed leave him after it be informed who it is from whom he ought to expect protection and to whom he owes his obedience as well spirituall as temporal for though there be no visible means for men to hope for peace in Church or State yet does it not follow that by all men all things which may be commanded for the Laws of the Church and State are to be observed as the Laws of Church and State as if the Church command men to worship Images or any creature for the Creator which under the old Law it many times did nor do I understand how it can be excused in the Church of Rome or if men be commanded by higher powers immoral things as to dishonor them or their Parents or whenas temporal powers command things plainly derogatory to the ghostly power of the Church or the Church commands things contrary to the duty men owe to their King and Country which we daily see both the one and the other do which makes some men in their passion ultimately resolve their Temporal and Ecclesiastical obedience into the Church others into the secular power and many deny all obedience to either and set up themselves or something else in stead of either But though mens affections carrie them several waies yet ought not all reason therefore and conscience to forsake all men for although I ought not to judge either King or Church if they command any thing they ought not yet have I and every man else a conscience to direct them whether I ought to do all things whatsoever commanded by King or Church Nor ought men to be frighted out of their consciences viz. the Law of God by nature informing them or his Law supernaturally revealed by his grace directing them because a perverse company of Schismatical and seditious men have abused all Temporal and Ecclesiastical Laws and Powers by pretending conscience Nor will a blind obedience in all things to the Church of Rome cause unity and peace among Christians although it be so much magnified by them for let any man read the lives of H. 4. 5. 6. and 7. and Frederick 1. and 2. Emperors whenas the whole Empire was of the Roman Catholick Religion and see if ever greater broyles were in the Christian World and let them judge whether Obedience to the Popes by so great a part of the Empire were not the cause of them or whether all the Wars in Christendom caused by Boniface the eight and Julius the second were not against Christians in the communion and form of the Church of Rome But where secular or ecclesiastical Laws do plainly command things not plainly derogatory to Gods Law for where they do God is in all things to be obeyed before man so as it is doubtful whether they do repugne Gods Law or not then certainly the best way is to submit to them for a mans conscience wrong informed does not excuse him from any Article of his duty and if it may be the Laws do repugne Gods Law it may be they do not and in controverted and doubtful cases the Law is alwaies presumed to be on the Governors part Nor shall any mans conscience ever excuse him if the Laws either of Church or Country do command things repugnant to Gods word from the duty and obedience he owes to them in all things where they do not repugne it Nor does it free any man from his subjection to higher power but where he cannot submit he ought to suffer And no question that where two evils unavoidable happen the least is to be taken as if a man in the communion of the Church of Rome be reduced to that necessity of simply conforming himself to all things used in the Church of Rome although his conscience cannot digest many things or be excluded out of the visible Church of Christ he had better be of such a Church then of none at all Sure God never affixt such infallibility to men how great or good soever
like Law is according to the nature of the fact if any of these be committed upon any solemn Festival And if any one will purge let him bring a threefold purgation Of deteining the Duties of the Church by force Cap. 45. If a Dane shall resist by force any one desiring the rights or duties belonging to God let him be punished for breach of the Law An Englishman shall be assessed in a deeper mulct unless he purge himself with eleven men and be himself the twelfth man But if he wound any man let him make amends and pay a grievous mulct to the Lord and let his hands be bored through unless he shall redeem them from the Bishop But if he killed any one let him be outlawed and pursued by all Magistrates with all the harm that they lawfully may And if afterward that man so pursued be killed let it be confirmed and unpunished and no further enquired after Of a man breaking Holy Order 46. If any man violate his Order or Rule of living let him be fined according to the dignity of his Order or price of his head for punishment of the breach of the Law or forfeit all he hath Of Repairing the Church 63. All men by right ought to use their endeavor to repair the Church Of him who keeps a man Excommunicated or Outlawed 64. If any man shall unjustly keep any Fugitive from Gods law let him be restored to right and forgiven those things which did appertain to him and let him pay to the King the price of his head But if any one shall keep and hold any other excluded from the protection of Divine or Humane laws he shall endanger himself and all he hath The Conclusion of Canutus his Laws Now I beseech all men and in the name of Almighty God command every man that they be truly from their heart converted to God and with all care and diligence search out what is to be followed and what avoided And truly it does much conduce to our souls health that we love God and hold his precepts and admonitions and hear his word by his teachers For we shall bring forth these to be seen in that day wherein God shall come to give judgment upon all men according to those things they did whilst they lived And then at length shall that blessed Keeper bring the Flock committed to his charge into the Heavenly kingdom and the joys of Angels for those things which he had done in his life and also that blessed Flock follow that Pastor who hath wreathed it out of the hands of the Devil and give the gain to God And further we study that all men may so agree to please God that for the time to come we may avoid the flames of Hell-fire The Interpreters of Gods Law ought often to preach the benefit of Divine things and indeed it is their function and does much benefit all men to salvation And all men ought with a good mind diligently to hear and have Gods admonitions always fixed in their soul for their profit And lastly that every one by his words and deeds all he can holily and thankfully do well to the greater amplitude and glory of God his Lord for so at length we shall abundantly all of us obtain Gods mercy Let the name of the Lord be praised to whom be laud honor and glory for ever God Almighty be merciful to us all according to his will Amen Ecclesiastical Laws made by Good King Edovard Who began to reign Anno Salutis 1042. Of Clerks and their Possessions Cap. 2. LEt every Clerk and also Scholars and all their goods and possessions wheresoever they be enjoy the peace of God and his Church Of the Times and Dayes of the Kings Peace 3. From the coming of our Lord until eight days after Epiphany let the peace of God and his holy Church be all over our Kingdom also from Septuagesima until eight days after Easter also from the Ascension of our Lord until eight days after Whitsuntide also all the days in Ember-weeks also upon every Saturday from the ninth hour and all the day following until Munday also upon the Vigils of S. Mary S. Michael S. John the Baptist of all the Apostles and Saints whose solemnities are celebrated by Priests upon Sunday and All Saints upon the Kalends of November alwaies from the ninth houre of the Vigil and the following Solemnity Also in Parishes in which the Dedication is observed also in the Parishes of Churches where the proper Feast of the Saint is celebrated And if any one will come devoutly to the celebration of the Saint he shall enjoy peace going staying and returning Also to all Christians going to Church to pray be peace in going and returning In like manner at Dedications Synods to men coming to Chapters whether they be summoned or of themselves have any thing to do be highest peace Also if any man excommunicated flee to the Bishop for absolution let him freely in going and returning enjoy the peace of God and his Church But if any man shall do otherwise with him let the Bishop do justice therefore But if any arrogant man will not amend for the justice of the Bishop the Bishop may make the matter known to the King and the King may constrain the malefactor to make him amends whom he hath outlawed viz. first to the Bishop then to him and so they shall be two swords and the sword shall help the sword Of the Justice of the Church 4. Wheresoever the Kings Justice is or before whomsoever Pleas are holden if one sent of the Bishops coming there opens the cause of the holy Church it shall first be determined For it is just that God be every where honored before others Of all Tenents of the Church 5. Whosoever shall hold any thing of the Church or have a mansion upon the ground of the Church shall not be compelled to hold Pleas out of the Ecclesiastical Courts although he be outlawed unless which God forbid he shall have default of right in the Court Ecclesiastical Of Guilty men fleeing to the Church 6. Whosoever guilty or nocent shall flee to the Church for protection after that he hath gotten the entrance of the Church let him not be apprehended of any man pursuing him unless by the Bishop or his Minister but if in fleeing he enters into the House or Court of any Priest let him enjoy the same security and peace he should have had at the Church so as the house of the Priest and his Court stood upon the ground of the Church Here if the thief or stealer be what he hath evil gotten if it be at hand let him restore but if he hath wholly consumed it and hath wherewith to restore of his own let him make full satisfaction for the damage he brought to him who was damnified But if as is usual the Thief hath not wherewith to do it and by chance hath
Tribute or of St. Peter Cap. 20. Who shall deny the peny of St. Peter the peny let him pay by the Justice of the Church and thirty pence forfeiture and if he will be impleaded concerning it by the Justice of the King let him forfeit to the Bishop thirty pence and forty shillings to the King Of Religion and the publick Peace 51. First of all we Ordain above all things That one God be worshipped all over our Kingdom and the one Faith of Christ be always kept inviolate c. The Laws are Translated out of the Original set forth by Mr. Abraham Whelock in his Appendix to the History of Bede from page 150. to 107. Sir Ed. Coke in Caudrys Case cites a quare Impedit 7 Ed. 3. tit 19. where it is agreed that no man can make an appropriation of any Church having cure of souls being a thing Ecclesiastical and to be made by some person Ecclesiastical but he that hath Ecclesiastical Jurisdiction but William the first of himself without any other as King of England made appropriation of Churches with cure to Ecclesiastical persons wherefore it does follow he had Ecclesiastical Jurisdiction Here is nothing but argumentum à facto ad jus and a man may as well infer that Saul Jeroboam and Azariah did offer sacrifice and burn incense and therefore they had Sacerdotal power in them or that King John did give the Crown and received it again from him and therefore the Crown of England is holden of the Pope Ecclesiastical Laws made by Henry the first Who began to Reign in the year of Christ 1100. THese at last are the happy joys of the long wished for peace and liberty Proem by which the glorious Cesar Henry doth shine forth to his whole kingdom in Divine and Secular Laws written Institutes and Exhibitions of good Works Moderate Just Valiant Prudent whom God may make to command with happy auspices and healthful prosperity of body and minde with his famous wife Maud the second and their children for ever and the everlasting peace of this Nation His Epistle to all his Leigmen 1. Henry by the Grace of God King of Englishmen to all Barons and his Leigmen French English health Know that I by Gods mercy and the Common Counsel and consent of the Barons of the Kingdom of England am Crowned King of the Kingdom aforesaid and because the Kingdom was oppressed by unjust exactions I in respect of God and the love which I have towards you all first of all make the Church of God free so that I will neither sell nor let to farm nor after the death of an Archbishop or Bishop or Abbot will take any thing of the Demesns of the Church or her men until the successor be come in c. Of the propriety of Causes Cap. 5. In all Causes Ecclesiastical and Secular legally and in order to be handled some are Accusers some Defenders some are Witnesses some are Judges In every discussion of honesty fitting men are to be joyned together and that without any exaction until the quality of the Causes and the intention of the Accused the manner of Witnesses and election of Judges be weighed with upright scrutiny Let there be no foreign Judgements nor celebrated by their improper Judge in place or time nor in a doubtful case or the party accused being absent the sentence being pronounced notandum that for all if the accused had competent warning and lawful leave of answering and defending he be not denied or impleaded or outlawed or circumvented by some stealth or judged by deceit If he be satisfied in the Witnesses Judges and Persons If he consent to the Judges or hurt or contradict It is not altogether so in Ecclesiastical business as Secular in Secular business after that any is called shall come and begin to plead in the Court it is not lawful to go back before the Cause be determined although they shall agree but in Ecclesiastical business it is lawful to go back in the Cause aforesaid If a man suspect a Judge or think himself oppressed surely Judges ought not to be so nisi quos impetitus Elegerit Neither may any one be heard or give judgement before that they be chosen and he who refuses to consent to the elected let no man communicate with him until he obey but if in judgement there arises dissention among the parties of which a strife comes forth let the sentence of the more prevail It is Enacted in the Cause of Faith or of any Ecclestastical Order he ought to judge who neither takes reward nor is of another Law and will do nothing without an accuser For God and our Lord Jesus Christ did know Judas to be a Thief but because he was not accused therefore he was not rejected and whatsoever he acted among the Apostles for the dignity of his Office remained firm As also Clerks ought not to receive Laiks Accusers so ought not Laicks to receive Clerks to be Accusers of Clerks in their Accusations and Informations and Witnesses ought to be legitimate and present without any infamy or suspition or manifest spot because they cannot rightly accuse Priests who cannot be Priests nor of their Order nor is it needful to Judge a man before he hath had lawful Accusers present and accepts a place of defence to wash out his crimes And it is our pleasure as often as many crimes are objected to Clerks by Accusers and they cannot make good one of the first of which they are accused they shall not be admitted to the rest And a Bishop shall not be condemned unless by seventy two Witnesses nor the Archbishop be judged of any A Presbyter-Cardinal Note the preheminence of a Bishop in England at this time above a Cardinal shall not be condemned unless by forty four Witnesses a Deacon-Cardinal shall not be condemned unless by twenty six Witnesses nor a Sub-Deacon under seven nor let the greater despair for the force of the lesser men and there always the Cause may be Pleaded where the Crime is admitted If a man stricken will he may plead his cause before his Judge and if he will not before his Judge he may hold his peace and as for men stricken as often as they desire respit let it be granted And every man which objects a crime let him write that he will prove it and if before he be changed he will not follow he is convinced no crime is to be accounted But if he will prosecute if he shall not prove what he objects let him undergo the penalty which he brought the Apostle says Against a Presbyter a writing is not to be received without two or three approved witnesses how much more against Bishops if these things be observed of Presbyters and other faithful men If any one will accuse any of the Clerks in an accusation of Fornication according to the precept of St. Paul two or three testimonies are required from him but if he
if any one do erect in his ground a Mill of new and after the Parson of the same place demandeth Tithe for the same the Kings Prohibition doth issue in this form Quia de tali molendino hactenus decimae non fuerunt solutae prohibemus c. Et sententiam Excommunicationis si quam hac occasione promulgaveritis revocetis omnino The Answer In such case the Kings Prohibition was never granted by the Kings assent nor never shall which hath decreed that it shall not hereafter lie in such cases Where a Suit for one offence may be prosecuted both in Court Spiritual and Temporal Also if any cause or matter the knowledge whereof belongeth to a Court Spiritual and shall be definitively determined before a Judge Spiritual and does pass into a Judgment and shall not be suspended by an Appeal and after if upon the same thing a Question is moved before a Temporal Judge between the same parties and it be proved by witness or instruments such an Exception is not to be admitted in a Temporal Court The Answer When any one case is debated before Judges Spiritual and Temporal as above appeareth upon the case of laying violent hands upon a Clerk it is thought notwithstanding the Spiritual Judgment the Kings Court shall discuss the same matter as the party shall think expedient for himself In what case only the Kings Letter shall be sent to discharge an Excommunication Also the Kings Letter directed unto Ordinaries that have wrapped those that be in subjection unto them in the sentence of Excommunication that they should assoil them by a certain day or else that they do appear and shew wherefore they have excommunicated them The Answer The King decreeth that hereafter no such Letter shall be suffered to go forth but in case where it is found that the Kings liberty is prejudiced by such Excommunication Clerks in the Kings service shall be discharged of their Residence but shall be corrected by their Ordinary Also Barons of the Kings Exchequer claiming by their priviledge that they ought to make answer to no complainant out of the same place extend the same priviledge unto the Clerks abiding there called to Orders or unto Residence and inhibit Ordinaries that by no means or for any cause so long as they be in the Exchequer or Kings service that they call not them to Judgment Ans It pleaseth our Lord the King that such Clerks as attend in this service if they offend shall be correct by their Ordinaries like as other but so long as they are occupied about the Exchequer they shall not be bound to keep residence in their Churches This is added of new by the Kings Council The King and his Ancestors since time out of mind have used that Clerks which are imployed in his service during such time as they are in his service shall not be compelled to keep residence at their Benefices And such things as be thought necessary for the King aad Commonweal ought not to be said to be prejudicial to the liberty of the Church Distresses shall not be taken in the High-ways nor in the antient Fees Cap. 9 of the Church Also the Kings Officers as Sheriffs and other do enter into the Fees of the Church to take Distresses and sometimes they take the Parsons beasts in the High-way where they have nothing but the land belonging to the Church The Answer The Kings pleasure is that from henceforth such Distresses shall neither he taken in the Kings High-way nor in the Fees wherewith Churches in tiimes past have been endowed Nevertheless he willeth Distresses to be taken in possession of the Church newly purchased by Ecclesiastical persons They that abjure the Realm shall be in peace as long as they be in the Church or High-way Also where some flying unto the Church abjure the Realm according to the custom of the Realm and Laymen or their enemies do pursue them and pluck them from the Kings High-way and they be hanged or headed and whilst they be in the Church are kept in the Church-yard with armed men and sometime in the Church so straitly that they cannot depart from the hallowed ground to empty their belly and cannot be suffered to have necessaries brought unto them for their living The Answer They that abjure the Realm so long as they be in the common way shall be in the Kings peace nor ought to be disturbed of any man and when they be in the Church their Keepers ought not to abide in the Church-yard except necessity or peril of escape do require so And as long as they be in the Church they shall not be compelled to flee away but they shall have necessaries for their living and may go forth to empty their belly And the Kings pleasure is that Thieves or Appellors whensoever they will may confess their offences unto Priests but let the Confessors beware that they do not erroniously inform such Appellors Religious Houses shall not be charged by compulsion with Corodies Pensions Resort or taking in of Horses and Carts Also it is desired that our Lord the King and the Great men of the Realm do nor charge Religious houses or Spiritual persons for Corodies Pensions or Sojourning in Religious houses and other places of the church or with taking up of horses or carts whereby such houses are impoverished and Gods service diminished and by reason of such charges Priests and other Ministers of the Church deputed unto Divine service are oftentimes compelled to depart from the places aforesaid The Answer The Kings pleasure is that upon the contents in their Petition from henceforth they shall not be unduly charged And if the contrary be done by Great men or other they shall have remedy after the form of the Statutes made in the time of King Edward Father to the King that now is And the like remedy shall be done for corodies and pensions exacted by compulsion whereof no mention is made in the said Statutes A Clerk excommunicated may be taken out of the Parish where he dwelleth Cap. 12 Also if any of the Kings tenure be called before their Ordinaries out of the Parish where they continue if they be excommunicate for their manifest contumacy and after forty days a Writ goeth out to take them and they pretend their priviledge that they ought not to be cited out of their Town and Parish where their dwelling is and so the Kings Writ that went out to take them is denied The Answer It was never yet denied nor shall be hereafter The examination of a Parson presented to a Benefice belongeth to a Spiritual Judge Also it is desired that Spiritual persons whom our Lord the King doth present unto Benefices of the Church if the Bishop will not admit them either for lack of learning or for other cause reasonable may not be under examination of Lay-persons in the cases aforesaid as it is now attempted contrary to the Decrees canonical but that they may sue unto a
Court in the conusance of Heresie but onely for the punishment of Heresie adjudged in the Ecclesiastical Court and all men know that it is the Temporal not Ecclesiastical power although it may be executed or pronounced by Ecclesiastical persons that punisheth men for Spiritual Crimes The Pope cannot alter the Laws of England The Judges say that the Statutes which restrain the Popes provisions 11 H. 4. 37. 11 H. 4. fol. 69. 76. to the Benefices of the Advowsons of Spiritual men were made for that the Spiritual durst not in their just Cause say against the Popes provisions so as those Statutes were made in affirmance of the common Law Excommunication made by the Pope is of no force in England and the same being certified by the Pope into any Court in England ought not to 14 H. 4. fol. 14 c. be allowed neither is any Certificate of any Excommunication available in Law but that which is made by some Bishop in England for the Bishops are by the common Laws the immediate Officers and Ministers of Justice to the Kings Court in Causes Ecclesiastical If any Bishop do Excommunicate any person for a cause that belongeth 14 H. 4. 14. not to him the King may write to the Bishop and command him to assoyl and absolve the party If any person of Religion obtain of the Bishop of Rome to be exempt St. 2. H. 4. Cap. 3. from obedience regular or ordinary he is in case of a Premunire which is an offence as hath been said contra Regem coronam dignitatem ejus Upon complaint of the Commons of the horrible mischiefs and damnable customs which there were introduced by the Church of Rome that no St 6. H. 4. Cap. 1. person Abbot or other should have any provisions of Archbishoprick or Bishoprick which should be void till he had compounded with the Popes Chamber to pay great and excessive sums of money as well for the first fruites of the same Archbishoprick or Bishoprick as for the other less services in the said Court and that the said sums or greater part thereof be paid beforehand which sums passed the double or treble of that that was accustomed of old time to be paid c. It was therefore Enacted That they and every of them that did pay greater sums then had of old time been accustomed to be paid into the said Chamber should incur the forfeiture of as much as they may forfeit to the King No person Religious or Secular of what estate or condition that he St 7. H. 4. Cap. 6. were by colour of any Bulls containing Priviledges to be discharged of Tythes appertaining to Parish-Churches Prebends Hospitals Vicaredges Purchased before the first year of King R. 2. or after not executed should put in execution anysuch Bills so Purchased or any such Bulls to be Purchased in time to come upon pain of a Premunire In the Reign of Hen. 5. In an Act of Parliament made in the third year of Henry 5. it is Declared 〈…〉 H. 5. â—â—â— 4. â— That whereas in the time of H. 4. father to the said King the seventh year of his Reign to eschew many discords and debates and divers other mischiefs which were like to arise and happen because of many provisions then made or to be made by the Pope and also of licence thereupon granted by the said King among other things it was Ordained and Established That no such Licence or Pardon so granted before the same Ordinance or afterwards to be granted shall be available to any Benefice full of any Incumbent at the day of the date of such Licence or Pardon granted Nevertheless divers persons having provisions of the Pope of divers Benefices in England and elsewhere and Licenses Royal to execute the same Provisions have by colour of the same Provisions Licenses and acceptations of the said Benefices subtilly excluded divers persons of their Benefies in which they had been incumbents by a long season of the collation of the very Patrons Spiritual to whom duely made to their intent to the final destruction and enervation of the Estates of the same Incumbents The King willing to avoid such mischiefs hath Ordained and Established That all the Incumbents of every benefice of Holy Church of the Patronage Collation or presentation of Spiritual Patrons may quietly and peaceably enjoy their said Benefices without being inquieted molested or any way grieved by any colour of such provisions licencies and acceptations and that all licences and pardons upon and by such provisions made in any manner should be void and of no valour and if any feel himself grieved molested or inquieted in any wise from henceforth by any by colour of such provisions licenses pardons or acceptations that the same molesters grievers or inquesters and every of them have and incur the pains and punishments contained in the Statutes of Provisors before that time H. 4. St. 2 H. 5. Cap. 7. Lollardy Was made for extirpation of Heresie and Lollardy whereby full power and authority was given to the Justices of Peace and Justices of Assize to enquire of those that hold Errors Heresies or Lollardry and of their maintainers c. and that the Sheriff or other Officer c. may Arrest and apprehend them A man should undertake a very hard task that goes about to maintain that all Humane Laws did never transgress their limits nor encroach upon things that were not properly in their conusance and this Law ill suits with the temper of these times The King by consent of Parliament giveth power to Ordinaries to enquire St. 2 H. 5. Cap. 1. of the Foundation Erection and Governance of Hospitals other then such as be of the Kings Foundation and thereupon to make correction and reformation according to the Ecclesiastical Law nor could any other Power grant such Ordinances In the Reign of Henry the sixth 8 H. 6. fol. 3. Excommunication made and certified by the Pope is of no force to disable any man within England and this is by the ancient Common Laws before any Statute was made concerning forein Jurisdiction The King onely may grant or licence to Found a Spiritual Corporation 9 H. 6. fol. 16. The Pope wrote Letters in derogation of the King and his Regality 1 H. 6. fol. 1â— and the Church-men durst not speak against them but Humfrey Duke of Glocester for their safe keeping put them into the fire In the Reign of Edward the fourth The Pope in the Reign of King Ed. 4. granted to the Prior of St. Johns H. 7. f. 20. to have Sanctuary within his Priory and this was pleaded and claimed by the Prior but it was resolved by the Judges that the Pope had no power to grant any Sanctuary within this Realm and therefore by Judgement of Law it ought to be disallowed There it appeareth that the opinion of the Kings Bench had been oftentimes Ed. 4. 3. that if one Spirital
Monarchy Aristocracy Democracy I answer that God hath made Man upright but he hath sought out many inventions Therefore let Aristocracies Democracies answer for themselves anciently there was no Government in the world but Monarchy nor does God ever command obedience to others and the very Athenians for above 800 years could find a Government under Kings hereditarily before any footsteps of Aristocracy or Democracy was ever heard of in the world nor did they ever transgress the bounds of Europe unless in the Carthaginian State and when the Magi usurped in Persia It was Pride in the Romans and Grecians who not only esteemed all the world barbarous besides themselves and all Kings to be of the kinde of ravenous beasts but were the first inventers of these Aristocracies and Democracies and made all Power in Government to be Artificial and Political not only in the exercise which is true but also in the cause This Jus Politicum was of a more large extent with the Grecians then the Jus Civile was with the Romans For the Grecians esteemed that to be Jus Politicum which is common to all Men conjoyned with any society the Romans called that Jus Civile which is proper to any City So to buy and sell was by the Grecians called Politick the Romans called not those things Civil unless to sell by such a measure and at such a time the Romans called the Cloaks and other habits of vestments used by themselves and other people civil But let any Man judge whether these Men Mr. Hobbs White and Grotius being Christians and two of them very learned Men do reasonably not only to reject all precepts and examples of Sacred writ and all Testimonies of the consent of the present World and Testimonies of all most antient Histories from the examples of those most unreasonable Men besides the case between them is as unlike as can be For though they agree that this Jus Politicum or Civile is so as well in the cause as exercise and all power to be originally with the people yet by the people did neither Romans nor Grecians understand a company of Men in a rout or promiscuous parity but they who were Civitate donati nor did ever the People of Athens or Rome acquire their Dominion from the people subject to them by do or dedi and not dabo or faciam as these men feign all power to be originally deduced but by rapine extorting it from their rightful Kings in whom it undubitably was If it be questioned how originally this power came into the world if not Annot 3 by the Pacts of Men or consent of Families I answer Rem teneo modum nescio for the manner of it how it came originally I am not bound to give an account where the Scriptures and most antient Historians do not confirm it it is enough that I having proved it to be natural and Gods Ordinance it was never otherwise especially having the practice of the present world and the Records of all prophane and sacred History 14. It is true indeed that the Humane Laws and the exercise of Regal Not only Kings but Kingdoms have their being from God and by the Law of Natore Power is Politick Voluntary and Artificial but that these Laws are received and exercised in those places where they ought to be which makes Kingdoms is expresly said by the Prophet Dan. cap. 4. in three places The most Highest ruleth in the kingdoms of men and giveth it to whom it pleaseth him ver 7. And it was Nebuchad-nezzars punishment for his pride that he should have his dwelling with the beasts of the field untill he knew that the most Highest ruleth in the kingdoms of Men and giveth it to whomsoever he will ver 25 and 32. So that it is evident not only Kings but Kingdoms not only their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their Right but also Government is from God immediately and that this is a Declaration of the Law of Nature not only long before God by the Prophet Daniel speaks this were Kingdoms upon the earth but also no Kingdom or King which at the time that this was spoken that did receive or believe Gods Revelation of himself in the Scriptures Kingdoms therefore or the exercise of Regal Power is Gods Ordinance as well where the Scriptures are received as not and due by the Law of Nature and by consequence the obstinate resistance of Kings in their Government by their subjects is a violence upon the Law of Nature 15. Sir Francis Bacon in his life of Henry 7. relates that Perkin Warbeck How many waies Regality comes to pass by the often affirming himself to be Richard Duke of York second son of Ed. 4. did at last believe himself to be so indeed The violent and frequent usurpations of usurpers in this Island and some other Northern and European Region hath invested such a habit in Men that renouncing reason as well as all faith and belief of God in the Scriptures they with much confidence affirm nothing but possession or possession and submission of Subjects to be requisite with Kings Both which do no more make a rightful King then a Mans Deseisin Abetting or Intruding into the signiory of another and the Tenants attorning to him does make him rightful Lord of the Mannor But neither humane Laws nor Man nor any thing under Heaven can endue any Creature with a power over anothers life and fortune who is of the same kind with himself and without which there can be no supreme power and by consequence no society among Men. There are but four waies by which Regality can happen First When it is immediately and expresly given by God as it was to Saul David Solomon Hazael Cyrus c. Or Secondly derived from him who had Regality truly vested in him but this derivation must not be from the Election Adoption or the will of him who was invested with the Regal Power which at highest cannot amount higher then a humane Law which by the 3 para of this chap. cannot create Regal Power It must therefore be derived by Primegeniture which is derived from a higher cause then humane Laws for jura sanguinis nullo jure civili dirimi possint Or Thirdly by Lot which we have shewed to be by the Law of Nature Or Lastly Jure Primi Occupantis if its Occupant be capable thereof for Man being a sociable creature by Nature and society according to Aristotle being contained in many divided parts therefore in the society of Men there must be unum quid quod imparet alterum Lib. 1. cap. 5. Pol. quod pareat But whether Aristocracy and Democracy be unum quid that may jure imperare to me is a question neither of them being any Institution of God or from the Law of Nature but brought in by unjust usurpation and violence and against the universal consent and practice of the world for above Three
subsequent minute that it was before and therefore the state of Humane affairs being every day variable and putting on a new face to morrow which they had not neither to day nor yesterday which cannot be certainly foreseen by any man or men no more then any Master of a Ship can foresee what winds will blow to morrow or next day or whether it will be serene or stormy weather whether deep or Rockey Seas Yet if no prudent Mariner will venture himself and those under his command to Sea without sufficient provision against all the contingencies which may happen and be prevented Then sure no man or men not vainly blinded with ambition will undertake to manage the Government of a Nation without sufficient means to protect themselves and Subjects from all future storms and confusions which may either arise from within the Nation or be caused from without Yet will it not follow that every day there should be new Laws made for Nihil semel perfectum inventum there is nothing which is perfect so soon as begun and many mischiefs and inconveniencies may be begun and yet be prevented before they can be brought to perfection But then it must be presupposed that there may be remedies used which must of necessity be that there be a present and coercive power in being which may suppress and dissolve those mischiefes and inconveniences by making new Laws if the old ones will not remedy them and this is no new thing but is and alwaies was in all governments that ever were whether Monarchy Aristocracy or Democracy A Parliament is a Politick body compounded of Heterogenial or Of what parts a Parliament is compounded Inst 4. pag. 1. dissimilar parts viz. the King the Lords spiritual and temporal in one distinct house and of a house of Commons another distinct house Since there has been so much contest about the power and jurisdiction What creates the Lords house and cause of Parliament and since it being compounded of unlike parts and some of these unlike parts nay pieces of those parts have assumed the name of Parliament We will examine all the parts of it and see whether it be not all made and created by the King and into him only can be ultimately resolved he being principium caput finis of it First For the Lords spiritual they are all parts of the Lords house and sit there by succession in respect of their Counties or Baronies parcell of their Bishopricks but all Bishopricks were originally of the Kings foundation and donative per traditionem baculi viz. the crosier annuli viz. Inst 4 par 1. the ring whereby he was married to the Church King Henry the first being requested by the Bishop of Rome to make them Eligible refused it but King John by his Charter bearing date 5 Iunii an 17. granted that the Com. Lit. Sect. 648. pag. 344. Bishopricks should be Eligible so that the foundation donation and election to Bishopricks was only and immediately caused by the King and in this capacity by virtue of the Kings Writ out of the Court of Chancery does every Bishop sit as a member of the upper house of Parliament So that Inst 4 par 1. 4. the Lords spiritual did immediately hold their Bishopricks of the King and were members of the upper house only by vertue of the Kings Writ Secondly That the Lords Temporal are created immediately by the King is so manifest that I think no man will question it and that every Temporal Lord is impowred to sit as a Member of the Lords house by vertue of the Kings Writ issuable ex debito justitiae out of the Chancery See Inst 4. part pag. 1. 4. All the Judges of the Realm Barons of the Exchequers of the Coif Temporal Assistants of the Lords house the Kings learned Council and the Civilians Masters of the Chancery all called to give their assistance and attendance in the Upper house of Parliament but have no voices in Parliament How their Writs differ from the Barons see Inst 4. part page 4. In every Writ of Summons to the Bishops there is a clause requiring Spiritual Assistants or Procuratores Cleri them to summon these persons to appear personally at the Parliament which is in these words Premonientes Decanum Capitulum Ecclesiae vestrae Norwicensis ac Archidiaconos totumque Clerum vestrae Dioces quod iidem Decani Archidiaconi in propriis personis suis ad dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero divisim habentes praedict die loco personaliter intersint ad consciendum hiis quae tunc ibidem de communi Concilio dicti Regni nostri Divina favente clementia contigerit ordinari So that not only the Lords Spiritual and Temporal but their Assistants are only created by the Kings Writ or immediately by the Kings authority But since there is so much contest about the House of Commons and The House of Commons are not the Representatives of the Free people of the Nation men say they represent the Freeborn people of this Nation and are the Supreme Authority of the Nation We will therefore enquire into the cause and see what may be the Freeborn people and whether a House of Commons as it now stands can be their Representative and whether being their Representative they may be the Supreme Authority of this Nation First What are the People If any man had said the people of Rome or the people of Athens or the people of Carthage c. a man had understood them and only them of Rome Athens or Carthage c. who were civitate donati But in England the case is much otherwise for with us there is no civitate donatus in one more then another but all men are alike born free and so by consequence every man as a freeborn man of England has as much right to his freedom one man as another I say therefore if every man of England has not a like vote and power in electing Members for the House of Commons then cannot the House of Commons be the Representative of the Nation for Plus valet contemptus unius quâm consensus omnium But it is most manifestly evident that the House of Commons are not elected by the equal consent of the freeborn people of England for not only two parts of three have not Forty shillings a year yet are as freeborn as they who have and as liable to penalty for transgressing Laws made in Parliament as they who do elect but many men have double votes in the election in Corporations where they send Burgesses and yet have like power with the Forty-shillings-men in electing a Knight of the Shire and such a place as Rising-Chase and Old Sarum c. have a like power in this House with the County of York and the Bishoprick of Durham sends none
often gone out of the Church and Priests houses having restored the thing taken away let him abjure the Province and not return and if by chance he shall return let no man presume to entertain him unless he have leave from the King Of breaking the Peace of the Church If any one shall violently infringe the Peace of the Church the Justice Cap. 7. belongs to the Bishops but if one guilty in avoiding their Judgement or arrogantly contemning it shall despise it let the complaint thereof be brought to the King within forty days and let the Kings Justice make him give Security and Pledges if he can get them until he first give God afterward the Church satisfaction But if within one and thirty days either by his friends or acquaintance or by the Justice of the King he cannot be found out the King shall Outlaw him by the word of his own mouth i. e. he shall be excluded out of all protection of the King But if after he shall be found and can be retained let him be restored alive to the King or his head if he shall defend himself Lupinum enim gerit caput which in English is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This is the common and general Law concerning all men Outlawed Of the Tithes to be restored to the Church of Sheep and Hoggs 8. The tenth sheaf of all kinde of corn is due to God and therefore to be restored to God And if any one hath a company of Mares let him restore the tenth colt to God he who hath but one or two for every single colt one single peny In like maner who hath many Cowes the tenth calf who hath but one or two for every calf one single halfpeny and who make Cheese give to God the tenth but if he make none milk the tenth day In like maner the tenth Lamb the tenth Fleece the tenth Cheese the tenth Butter and the tenth Hogg Of Bees In like maner the tenth of the profit of Bees as also of under-Wood In some these two Chapters are joyned of Meadow and Waters and Mills Parks Warrens Fishponds tender Sprouts and Gardens and Merchandize and all other things which God shall give the tenth part is to be restored to him who gave the nine parts together with the tenth who shall have detained it let him be compelled to restitution by the Justice of the Bishop and King if need be For these things St. Augustine hath Preached and are granted by the King Barons and People but afterwards by the instinct of the Devil many have detained it and Priests careless of growing rich did not care to take pains to get them because they had sufficient means of living For in many places now there are three or four Churches where then there was but onely one and so they began to be diminished Of them who are judged to be brought to Judgment or Water by the Cap. 9. Justice of the King In that day wherein Judgment ought to be done let the Minister of the Bishop and his Clerks come thither and in like manner the Justice of the King with Legal men of that Province who may see and hear that all things be rightly done and whom the Lord by his mercy will save let them be quit and freely depart and whom the iniquity of the fault the Lord shall not condemn let the Justice of the King do justice upon them But the Barons who have their jurisdiction of their men let them see that they do so concerning them as they incur not displeasure with God and offend not the King And if a Suit does arise concerning men of other Baronies in their Courts let the Justice of the King be present because without it the Suit cannot be determined If any of the Barons hath not Justice in the Hundred where the Plea shall be holden it shall be determined at the next Church where the Judgment of the King shall be saving the Right of those Barons Of Romescot 10. Every one who shall have Thirty pence of current money in his house of his own property by the Law of England shall pay a Peter penny and by the Law of the Danes half a Mark But that penny ought to be summoned upon the Feasts of the Apostles Peter and Paul and collected at the Feast which is called To the Bonds so that it be not detained beyond that day If any one shall longer detain it let complaint be brought to the justice of the King because this penny is the Alms of the King and it is justice he cause this penny to be restored and the forfeiture of the Bishop and King But if a man hath more houses let him restore the Peter-penny for that wherein he resides upon the feast of Peter and Paul the Apostles Of the Office of the King and of the Right and Appendixes of the 17. Crown of the Kingdom of Britain And the King because he is the Vicar of the highest King and to this purpose ordained that he may both govern and rule the terrene kingdom and people of the Lord and above all things the holy Church and that he defend the same from wrong-doers and destroy and root out workers of mischief Besides these Sir Ed. Coke in Cawdries Case instances in King Kenulph for that King Kenulph by his Letters Patents with the consent and councel of his Bishops and Senators of his Kingdom did give to the Monastery of Abingdon in the County of Berks and to one Ruchnius then Abbot of the said Monastery c. a certain portion of his Country c. and that the said Ruchnius c. should be ever free from Ecclesiastical right or jurisdiction and that the Inhabiters of it from thenceforth be kept under the yoke of no Bishop or their Officials but in all events of things and discussions of causes they be subject to the Decree of the Abbot of the Monastery aforesaid And that this Charter was above * * Counting to the time Sir Ed. Coke wrote 850 years since which was in the year 755. and after confirmed by Edwin of Britain King and Monarch of Englishmen and this Grant did continue until the dissolution of the Abby by Henry the 8. So that the Kings of this Nation have not only of antient time been Nursing fathers to Gods Church and have exercised their Regal power over the persons of all their Subjects in all cases but have even dispensed with and conferred Episcopal jurisdiction But this was only matter of fact and done but only in one place nor was it ever established by a Law before the Statute of Lollard and by Henry the Eight and the First of Eliz. Yet it was afterward as shall appear in the next Chap. used by divers Kings and often adjudged by the Judges before Henry the Eighth CHAP. III. Ecclesiastical Laws made by William the First who began to reign in the year of Christ 1067. THat Nations and Kingdoms
Item Whereas Commissions be newly made to divers Justices that 6. they shall make enquiries upon Judges of the holy Church whether they made just proces or excessive in Causes Testimentary or other which notoriously pertaineth to the cognizance of holy Church the said Justices have enquired and caused to be Indicted Judges of the holy Church in blemishing of the Franchise of the holy Church That such Commissions be repealed and from henceforth defended saving the Article in Eyre such as ought to be No Scire facias shall be awarded against a Clerk for Tythes Item Whereas Writs of Scire facias have been granted to warn Prelates 7. Religious and other Clerks to answer Dismes in our Chancery and to shew if they have any thing or can any thing say wherefore such Dismes ought not to be restored to the said Demandants and to answer as well to us as to the party to such Dismes That such Writs from henceforth be not granted and that the proces hanging upon such Writs be annulled and repealed and that the parties be dismissed from the Secular Judges of such manner of Pleas saving to us our right such as we and our ancestors have had and were wont to have of reason In witness whereof at the request of the said Prelates to these present Letters we have set our Seal Dated at London this 8th of July the year of our Reign of England 18. of France the 5th In the Reign of Ed. 3. 16 Ed. 3. tit Excom 4. An Excommunication by the Archbishop albeit it be disannulled by the Pope or his Legats is to be allowed neither ought the Judges to give any allowance of any such sentence of the Pope or his Legat. It is often resolved that all the Bishopricks within England were founded In the Reign of Ed. 3. by the Kings Progenitors and therefore the Advousons of them all belong to the King and at first they were Donative and if that any incumbent of any Church with cure die if the Patron present not within six moneths the Bishop of that Dioces ought to collate to the end the Cure may not be destitute of a Pastor if he be negligent by the space of six moneths the Metropolitan of that Dioces shall confer one to that Church and if he also leave the Church destitute by the space of six moneths then the common Law gives to the King as Supream within his own Kingdom and not to the Bishop of Rome power to provide a competent Pastor for that Church The King may not onely exempt any Ecclesiastical person from the Jurisdiction 17 Ed. 3. 23. of the Ordinary but may grant him Episcopal Jurisdiction And thus it appears there the King had done of antient time to the Arch-Deacon of Richmond This resolution is not grounded upon any Custom or Law but onely upon a particular fact of a King à facto ad jus non valet argumentum All Religious or Ecclesiastical Houses whereof the King was Founder are by the King exempt from Ordinary Jurisdiction and onely visitable and 20 E. 3. Excom 9. 19. Ed. 3. corrigible by the Kings Ecclesiastical Commission This resolution too is onely grounded upon matter of Fact and what man will warrant all the Facts of Kings not to be repugnant to the Laws of God and man Yet shall not these men in other things of much less moment allow the Kings Proclamations to be Legal nor any thing less then the Commons Law or Acts of Parliament The Abbot of Bury was exempted from Episcopal jurisdiction by the Kings Charter This is nothing neither but matter of Fact 20 Ed. 3. tit Excom 6. The King presenteth to a Benefice and his presentee was disturbed by one who had obtained Bulls from Rome for which offence he was condemned 21 Ed. 3. 40. fol. 40. to perpetual imprisonment c. Tythes arising out of any parish the King shall have for that he having the Supream Ecclesiastical jurisdiction is bound to provide a sufficient Pastor 22 Ed. 3. l. 1. Ass pl. 75. that shall have the cure of souls of that place which is not within any parish And by the common Laws of England it is evident that no man unless he be Ecclesiastical or have Ecclesiastical jurisdiction can have inheritance of Tithes The King shall present to his free chappels in default of the Dean by 27 Ed. 3. fol. 84. lapsin respect of his supream Ecclesiastical jurisdiction And Fitz Herbert saith that the King in that case does present by laps as Ordinary Fitz nat Br. 34. Au Excommunication under the Popes Bull is of no force to disable any man within England and no suit for any cause though spiritually rising in 30 Ed. 3. lib. Ass pl. 19 c. this Realm ought to be determined in the court of Rome In an Attachment upon a Prohibition the Popes Bull of Excommunication of the plaintiff was adjudged insufficient 21 Ed. 3. tit Excom 6. 33 Ed. 3. tit Agel de Roy. 38 Ass pl. 20. Reges sacro Oleo uncti sunt Spiritualis jurisdictionis capaces A Prior which is the Kings Debtor and ought to have Tithes of another spiritual person may chuse either to sue for substraction of his Tithes in the Ecclesiastical court or in the Exchequer Fitz Herbert in his N. B. fol. 30. holceth that before the St. 18 Ed. 3. Cap. 7. the right of Tithes were determinable at the temporal courts at the election of the party And the courts of divers Manors of the Kings and other Lords in antient times had the probate of last Wills and Testaments and it appeareth by 11 H. 7. fol. 12. That the probate of Wills and Testaments did not appertain to the Ecclesiastical courts but that of late time they were determinable there The King by his Charter did translate Canons secular into regular and 38 Lib. Ass pl. 22. 46 Ed. 3. Proem 6. religious persons Nicholas Moris elected Abbot of Waltham which was exempt from ordinary Jurisdiction sent to Rome to be confirmed by the Pope who not having regard to the said Election gave to the said Nicholas the said Abby with all the said Spiritualities and Temporalities the Bull was adjudged against the Laws of England and the Abbot for obtaining the same was fallen into the Kings mercy whereupon all his Possessions were seised into the Kings hands Where the Abbot of Westminster had a Prior and Covent who were Regular 49 Ed. 3. lib. ass pl. 8. and mort in Law yet the King by his Charter did divide that Corporation and made the Prior and Covent a distinct and capable body to sue and be sued by themselves It was Enacted by the whole Parliament That as well they who obtained St. de 25 Ed. 3. de Provisoribus provisions from Rome as they that put them in execution should be out of the Kings Protection and that a man might do with them as enemies to the King c.
12. twenty nine Abbots and Priors for so many then were Lords of Parliament It is declared That where by divers sundry old authentique Histories and Chronicles it was manifestly declared and expressed that this Realm of England is an Empire and has been so accounted in the world governed by one Supreme Head and King having the dignity and Royal estate of the Imperial crown of the same unto whom a Body Politique compact of all sorts and degrees of people divided in terms and by names of Spirituality and Temporality been bound and ought to bear next to God a natural and humble obedience He being also institute and furnished by the goodness of God with plenary whole and entire power preheminence authority prerogative and jurisdiction to render and yield justice and final determination to all manner of folk resiants or subjects within this his Realm in all causes matters debates and contentions happening to occur insurge or begin within the limits thereof without restraint or provocation to any Forein Princes or Potentates in the world The body Spiritual whereof having power when any cause of Law Divine happened to come in question or of Spiritual Learning that it was declared interpreted and shewed by that part of the said body Politique called the Spiritual body then being usually called the English Church which always hath been reputed and also found of that sort that both for knowledge integrity and sufficiency of number it has been always thought and was also at that houre sufficient and meet of it self without the intermedling of any exterior person or persons to declare and determine all such doubts and to administer all such offices and duties as to the the rooms Spiritual did appertain For the due administration whereof and to keep them from corruption and sinister affection the Kings noble Progenitors and Antecessors of the Nobles of this Realm have sufficiently endowed the said Church both with honor and possessions And the Laws Temporal for trial of Property of Lands and Goods and for the conservation of the people of this Realm in unity and peace without rapine and spoil was and yet is administred adjudged and executed by sundry Judges and Ministers of the other part of the said Body Politique called the Temporalty And both their Authorities and Jurisdictions do conjoin together in the due administration of Justice the one to help the other This Statute does moreover affirm that Ed. 1. Ed. 3. Rich. 2. H. 4. and other Kings did make divers Laws Ordinances Statutes c. for the entire and sure conservation of the prerogatives liberties and preheminences of the said Imperial Crown and of the Jurisdictions Spiritual and Temporal of the same to keep it from the annoyance as well from the See of Rome as from other Forein Potentates and does make all Causes determinable by any Spiritual jurisdiction to be adjudged within the Kings authority All First-fruits and all contributions to the See of Rome by any Bishop St. 25. H. 8 cap. 20. were forbidden upon pain of forfeiture of all the goods and cattals for ever and all the Temporal lands and possessions of every Archbishoprick or Bishoprick during the time that he or they who offend contrary to the said Act shall possess and enjoy the said Archbishoprick or Bishoprick And that if any presented to the See of Rome by the King to a Bishoprick and he be there delayed he may be consecrated by an Archbishop in England and that an Archbishop presented to the See of Rome to be there consecrated and there letted may be consecrated by two Bishops of England And because the Pope hereof informed did not redress and reform the said exactions nor give answer to the Kings mind therefore the said Statute did prohibit any man to be presented to the See of Rome for the dignity of an Archbishop or Bishop or that any Annates or First-fruits be paid to the Bishop of Rome and that upon the avoidance of any Archbishoprick or Bishoprick the King his heirs and successors may grant to the Prior and Covent or Dean and Chapiter of the Cathedral Churches or Monasteries where the See of such Archbishoprick or Bishoprick shall happen to be void a Licence under the Great seal as of old time hath been accustomed to proceed to Election of an Archbishop or Bishop of the See so being void with a Letter missive containing the name of the person which they shall elect and choose and for default of such Election the King by his Letters Patents may nominate an Archbishop or Bishop and that every Archbishop Bishop to whose hands any such presentment or nomination shall be directed shall with speed invest and consecrate the person nominated and presented by the King his heirs and successors And if any Archbishop or Bishop Prior and Covent Dean and Chapiter shall for the space of twenty days next after such Licence or Nomination come to their hands neglect or shall execute any Censures Excommunications Interdictions c. contrary to the execution of any thing contained in this Act that then they incur the penalty of a Praemunire An act concerning the exoneration of the Kings subjects from exactions St. 25. H. 8. cap. 21. and impositions before that time paid to the See of Rome and for having Licences and Dispensations within this Realm without suing further for the same The King shall be reputed Supreme Head of the Church of England St. 26. H. 8. cap. 1. and have authority to reform and redress all Errors Heresies and abuses in the same Every Archbishop and Bishop disposed to have a Suffragan may elect 26 H. 8. c. 14. discreet Spiritual persons being learned and of good conversation and present them under their seals to the King making humble request to his Majesty to give to one of the two such title name stile and dignity of Bishop of such of the Sees as the King shall think fit and that every such person to whom the King shall give any such stile and title of the Sees abovenamed viz. the Towns of Thetford Ipswich Colchester Dover Gilford Southampton Taunton Shaftsbury Molton Marlborough Bedford Leicester Glocester Shrewsbury Bristow Penrith Bridgwater Nottingham Grantham Hull Huntington Cambridge and the Towns of Perth and Barwick S. Germans in Cornwal and the Isle of Wight shall be called Bishop Suffragan of the same See whereunto he shall be named and that every Archbishop and Bishop for their own peculiar Diocese may and shall give to every such Bishop Suffragan such Commissions as have been accustomed for Suffragans heretofore to have or else such Commissions as by them shall be thought requisite reasonable and convenient And that no Suffragan shall use any ordinary jurisdiction or Episcopal power otherwise nor longer time then shall be limited by such Commission upon pain of the penalties mentioned in the Statute of Provisions made the 16. of Rich. 2. The King shall have authority to name Thirty two persons sixteen
of them or by any Generall Councell wherein the same was declared heresie by expresse and plaine words of Scripture or such as should be determined Heresie by the high Court of Parl. with the assent of the Clergy in their Convocation This Statute revives the 23 H. 8. 9. 24 H. 8. 12. 25 H. 8. 20. 25 H. 8. 21. 26 H. 8. 14. 28 H. 8. 16. So much of the Act of the 32 H. 8. 38. concerning precontracts of Marriages and touching degrees of Consanguinity as by the 2 Ed. 6. 23. was not repealed the 37 H. 8. 17. the 1 Ed. 6. 1. This Act repeales the Statute of the 1 2. Ph. M. 6. the 1 2 Ph. M. 8 except those things touching the Premunire in the said Statute It repeales the 5 R. 2. 5. the 2 H. 4. 15. the 2 H. 5. 7. made for the punishment of Heresies by fire and faggot This statute repeales the statute of the first of Mary and the 2 and revives Stat. 1 Eliz. cap. 2. the statute of the 5 6 of Ed. 6. for the uniformity of Prayer and administration of the Sacraments with the alteration or addition of certain Lessons to be used every Sunday of the yeere and the forme of the Letany altered and corrected and two sentences only added in the delivery of the Sacrament to the Communicants If any Parson Vicar or other whatsoever Minister that ought or should say or sing Common-Prayer mentioned in the said Booke in such Cathedrall or Parish-Church or other places where he should Minister the same in such manner and forme as is mentioned in the said Booke refuse to doe the same or use any other forme or shall preach declare or speake any thing in derogation of the said booke or any thing therein contained or any part thereof and shall thereof be lawfully convicted according to the Lawes of the Land by the Verdict of 12 men or confession or notorious evidence of the fact shall forfeit to the Queene c. for the first offence the profits of one whole yeere next after such conviction of all his spirituall Benefices and suffer imprisonment for the space of six moneths without Bayle or Mainprize If any such person once convicted concerning the Premisses shall after such conviction offend and be thereof lawfully convict shall suffer imprisonment for the space of one whole year and be deprived ipso facto of all his spirituall promotions and that it shall be lawfull for all Patrons and Donors of such Spirituall promotions to present or collate to the same as if the person or persons so offending were dead If any person be convicted the third time of the premisses he shall ipso facto be deprived of all his spirituall promotions and shall suffer imprisonment during life Any person that shall offend and be convicted inform aforesaid concerning any of the premisses not being beneficiall or having any spirituall promotion shall for the first offence after such conviction suffer imprisonment for the space of one whole year without Bail or Mainprise and for the second offence after lawfull conviction shall suffer imprisonment during life If any person shall doe or speak any thing in derogation of the book of Common-prayer or disturb or interrupt any Parson Vicar or other Minister in any Cathedrall or Parshi Church or Chappel in the celebration of the Common-prayer or ministration of the Sacraments or shall compell or cause any other Service to be celebrated being thereof lawfully convict shall for the first offence forfeit to the Queen c. the summe of one hundred Marks and for the second offence the summe of four hundred Marks and for the third offence he shall forfeit all his Goods and Chattels and suffer imprisonment during life If any person shall for the first offence be convict of the premisses in form aforesaid and shall not pay the sum to be paid by virtue of his conviction that instead thereof he shall suffer imprisonment for the space of 6. moneths without Bail or Mainprise and he that shall not pay for the second conviction shal suffer imprisonment for the space of 12. moneths without Bail or Mainprise Every person shall having no lawfull or reasonable excuse to be absent diligently and faithfully endeavour to resort to the usuall places where Common-prayer and such Service of God shall be used upon Sundayes and other dayes appointed to be kept holy and there abide orderly and soberly during the time of Common-prayer Preaching and other Service of God upon pain of punishment by censures of the Church and twelve pence to be levied by the Church-wardens to those of the poor of the Parish by way of distress The Ordinaries and all other Officers Ecclesiasticall as well in places exempt as not exempt within their Diocess have power and authority by this Act to correct and reform and punish by Church censures all who shall offend within their Jurisdictions The Justices of Oyer and Determiner or Justices of Assise in open and generall Sessions have power to hear determine and punish these offences yet so that every Arch-bishop and Bishop in their severall Diocesses by virtue of this Act may associate or joyn themselves with the said Justices No person shall be molested for any offences abovesaid unlesse he be indicted at the next generall Sessions next after such offences are committed All Lords of Parliament for their third offence shall be tried by their Peers Chiefe Officers of Cities and Boroughs have the like authority to hear and determine the offences aforesaid as the Justices of Assize and Oyer and Determiner have Arch-Bishops Bishops their Chancellors Commissaries Arch-Deacons and other Ordinaries having any peculiar Ecclesiasticall Jurisdiction have by virtue of this Act power in their Visitations Synods and elsewhere within their Jurisdictions to enquire and take the accusations and informations of all the offences aforesaid and to punish the same by Admonition Excommunication Sequestration or Deprivation and other censures in like form as heretofore has been used by the Queens Ecclesiasticall Laws Any person offending in the premisses and punished therefore by the Ordinary having a testimoniall thereof under the Ordinaries Seal shall not for the same offence be convicted before the Justices and likewise punished for the first offence by the Justices he shall not again receive punishment of the Ordinary Such Ornaments of the Church and of the Ministers shall be reteined Anno 5 Eliz. cap. 1. and be in use as was in this Church of England by authority of Parliament in the 2 year of the Reign of Ed. 6. untill other Order shall be taken by authority of the Queen with the advice of the Commissioners appointed and authorised under the Great Seal of England for causes Ecclesiasticall or of the Metropolitan of the Realm It was enacted That whatsoever person inhabiting in the Queens Dominions who by word or deed should maintain that the Bishop of Rome had any authority or jurisdiction in any of the
School-master presuming to teach any thing contrary to this Act and being thereof lawfully convict shall be disabled to be a Teacher of Youth and shall suffer imprisonment without Bayl ot Mainprise for the space of a year No Ordinary or their Ministers shall take any thing for the allowance of any Schoole-master All offences aforesaid and all offences against the first Eliz. 1. 5 Eliz. 1. 13 Eliz. 2. c. are inquirable into by the Justices of peace and other Justices named in the said Act within a year and day after such offences committed Justices of Oyer and Terminer of Assiize of Goale-delivery in their limits Justices of Peace in their Quarter-sessions have power to hear and determine the offences aforesaid except Treason and Misprision of Treason Every person guilty of any offence against this Statute other then Treason Misprision of Treason which shall before he be indicted or at his Arraignment before Judgement submit and conform himself before the Bishop of the Diocess where he shall be resident and before the Justice of Peace where he shall be arraigned or tried having not before made like submission shall upon his recognition of such submission in open Assises or Sessions in the County where such person shall be resident be discharged of all the said offences The forfeitures of the moneys limited by this Act shall be divided into three equall parts whereof one third part to the Queen to her use another for the relief of the poor in the Parish where such offence is committed to be delivered by warrant of the principle Officers in the receipt of the Exchequer without further warrant from her Majesty the other third part to such person as will sue for the same in any court of Record in which no Essoin or Protection or Wager of Law shall be allowed He that shall forfeit such summes as are specified in this Act and be not able or shall not pay the same within 3. moneths after Judgement shall be committed to prison and there remain untill he have paid the said summes or conform himself to goe to Church He that usually on Sunday shall have in his house the Divine Service as it is established and be thereat usually present and not obstinately refuse to come to Church and shall at least four times in the year be present at the Divine Service in his Parish Church or in some open Church or Chappell of ease shall incur no damage nor danger by this Act. Every Grant Conveyance Bond Judgement and Execution of covetous purpose to defraud the Queen or any other person shall be holden utterly void Tryall of a Peer for any Treason or misprision of Treason by this Act shall be by his Peers This Act nor any thing contained therein is said not to extend to take away any or abridge the authority or jurisdiction of the Ecclesiasticall Censures for any cause or matter but that Arch-Bishops and Bishops and other Ecclesiasticall Judges may do and proceed as before the making of it All Jesuits made within or without the Realm since the Nativity of St. Stat. 27 Eliz. cap. 2. John the Baptist in the first year of the Queen shall within 40. dayes next after the Session of Parliament if they be not wind-bound depart out of England and other the Queens Dominions If any Jesuit Seminary Priest or other such Priest Deacon or Religious or Ecclesiasticall person whatsoever born within the Dominions of the Queen and made since the feast of the Nativity of St. John in the first year of the Queen or hereafter to be made by any Authority from the Church of Rome shall after the said forty dayes after the Session of Parliament other then in such speciall cases as in this Act is expressed be found in any of the Queens Dominions every such person shall be adjudged a Traitor All they which shall receive any such Jesuit or Priest after such time shall be adjudged a felon without benefit of Clergy If Any Subject of England then being or after shall be of or brought up in any Colledge of Jesuits or seminaries already erected or to be erected out of the Realm shall not within six moneths next after Proclamation in that behalf made in London under the broad Seal return into this Realm and within two dayes after before the Bishop of the Diocesse or two Justices of the peace of the County where he shall arrive submit himself to her Majesty and her Lawes and take the Oath set forth in the first year of her Reign That then every such person which shall otherwise return shall be taken and deemed as a Traitor Whosoever shall any wayes send relief to any Jesuit or seminary beyond the seas or give any maintenance to any Colledge of Jesuits or Seminaries shall incur the danger of a Premunire None during the Queens life shall send his or her Child or other person except Merchants or such only who serve in their Trade as Merchants or Mariners beyond the Seas without the Queens speciall licence or under four of the Councells hands upon the penalty of one hundred pounds Every offence committed against this Act may be heard and determined as well in the Kings Bench as also in any County within this Realm or any of the Queens Dominions where the offence shall be committed or where the offendor shall be apprehended This Act shall not extend to any Jesuit c. before mentioned as shall within the said 40. dayes or within 40. daies after he come into the Realm submit himself to some Arch-bishop or Bishop of this Realm or to some Justice of Peace within the County where he shall arrive and doe thereupon truly and sincerely before the Arch-bishop Bishop or Justice of Peace take the said Oath set forth the first of Eliz. and under his hand confesse afterward to continue in due obedience to the Queens Lawes made or to be made in causes of Religion Peers shall be tried by their Peers for any offence made Treason Felony or Premunire by this Act. Any person being a Subject of this Realm which shall after the said 40. daies know any such Jesuit or Priest c. and shall not discover the same to some Justice of Peace or Higher Officer within 12. dayes every such person shall be fined and imprisoned according to the Queens pleasure and every such Justice of Peace or higher Officer which shall not discover the same within 28. dayes to some of the Queens Councell or to the President or Vice-president of the Queens Councell established in the North or Marches of Wales then he or they so offending shall forfeit 200 Markes Such of the Privy Councell President or Vice-president abovesaid to whom such information shall be made shall thereupon deliver a note in writing subscribed by his own hand to the party by whom he shall receive such information testifying that such information was made to him All such Oaths Bonds and Submissions as shall be made by force of
shall retain in service see or livery any person which shall forbear to goe to some usuall place of Divine service by the space of a moneth shall forfeit for every such moneth he knowing the same the summe of ten pounds This Act shall not extend to punish any person for maintaining relieving or harbouring his Father or Mother wanting without fraud any other habitation or sufficient maintenance or the ward of any person committed by authority to the custody of any by whom they shall be so relieved maintained or kept The Sheriff or other Officer upon lawfull Writ Warrant or Processe to him awarded to take or apprehend any Popish Recusant standing excommunicated for recusancy may break open the house where any such person excommunicated shal be or raise the power of the County for apprehending such person Every offence committed against this Act may be heard and determined before the Justices of the Kings Bench and Justices of Assize And all offences other than Treason shall be enquired heard and determined before the Justices of Peace in their next Generall and Quarter-sessions No attainder of Felony by this Act shall extend to forfeiture of Dower or corruption of blood The Defendant in any action commenced or brought against him by virtue of any thing in this Act may plead to the generall Issue by an Evidence that shall prove his doings or proceedings warrantable by this Law This Act nor any thing contained therein is said not to extend to take away or abridge any authority or jurisdiction of Ecclesiasticall censures No person shall be charged in any penalty by force of this Act which shall happen for the wifes offence in not receiving the Sacrament during her Marriage nor any woman shall be charged with any penalty for not receiving during Marriage In all cases where the Bishop or Justices of Peace by virtue of this Act may take of any Subject not a Nobleman this oath above mentioned The Lords of the Privie Councell or any 6 of them where of the Lord Chancellor Lord Treasurer or principle Secretary to be one have authority to require the same at any time of any Noble-man or Noble-woman being above the age of 18. years and if such Noble-man or Noble-woman other then the woman married refuse the same they shall incurre the penalty of a Premunire Where any person shall pass out of the Cinque-Ports or any member thereof to any parts beyond the seas to serve any foreign Prince State or Potentate the Lord Warden of the Cinque-Ports for the time being or any person by him appointed have power to take bond and minister this oath to such passengers If any man discover any Recusant or other person which shall entertain or Stat. Annn. 3 Jac. cap. 5. relieve any Jesuit Seminary or Popish Priest or shall discover any Mass to have been said and the persons which were present and the Priest or any that were present within three daies shall not only be freed from any penalty but shall have the third part of the forfeiture of all such summes of money goods and chattels which shall be forfeited for such offence if the forfeiture exceed not 150 l. if it doth exceed 150 l. then the discoverer to have 50 l. and the discoverer after conviction of the offendor shall have a certificate from the Judges or Justices of Peace before whom such conviction shall happen to be directed to the Sheriffe or other Officer that shall seize the goods commanding him to pay the same accordingly No Popish Recusant shall come into the house where the King or the Heir apparent shall be unlesse commanded by the King or by Warrant from the Lords of the privy Councell upon penalty of one hundred pound the one moity to the King the other to the discoverer who will sue for the same in any Court of Record where no Essoine Protection or Law Gager shall be allowed All convicted Popish Recusants dwelling in London or within five miles within three moneths after the Session of Parliament shall depart out of it and not dwell within ten miles and deliver up their names to the Lord Major if they dwell in London and if such Recusant shall dwell within ten miles of London to deliver up his name to the next Justice of Peace within fourty dayes after the Session of Parliament upon the penalty of one hundred pounds the one halfe to the King the other to him who will sue as aforesaid All Recusants which shall dwell or remain in London or within ten miles thereof shall within ten dayes after indictment or conviction depart out of the said compass and deliver up their names to the Lord Mayor In case the said Recusant shall dwell in any County within ten miles of London then within ten daies after conviction or indictment shall give up his name to the next Justice of peace the person offending shall forfeit one hundred pounds the one halfe to the King the other to the Informer as aforesaid Tradesmen Recusants who have no other habitation may continue within London and the compass of ten miles This Act repeals that branch of the 35 Eliz. cap. 2. touching licence of Recusants to remove or pass above five miles from their place of abode The King or three or more of the Privy Councell under their hands may licence a Recusant to travell out of the compass of five miles So may four Justices of Peace of the County with the privity of the Bishop of the Diocesse in writing or of the Lieutenant or any of the Deputy Lieutenants the party taking his corporall oath that he truly informes them of the cause of his journey and making no causless stayes No convict Recusant shall practise the Common Law as a Councellor Clerk Atturney or Solicitor nor shall practice the Civill Law as Advocate or Proctor nor practise Physick nor be an Apothecary nor shall be Judge Minister Clerk or Steward of any Court nor keep any Court nor shall be Register or Town-clerk or other Minister or Officer in any Court nor shall bear Office as Captain Lieutenant Corporall Sergeant Auncient-bearer or other Office in Camp Troop Band or Company of Souldiers nor bear any office in any Ship Castle or Fortresse of the Kings upon penalty of one hundred pounds to be forfeited as aforesaid No popish Recusant convict or having a Wife convict shall bear any publick office in the Common-wealth Every married woman being a Recusant convict her husband not being convict shall forfeit 2. third parts of her Joynture and Dower during her life and be made uncapable of being Executrix or Administratrix to her husband Every Popish Recusant convict shall be deemed as a person excommunicated so long as he continues not conformable and not come to Divine service and receive the Sacrament and take the oath appointed by this Parliament in the first chap. Yet such Recusant may sue for such of his Lands Tenements c. and for the profits thereof which are not