power of the keies And though my Lord this question be no question if the high Commissioners by the first of the first of Elizabeth never had any power to fine or imprison for any crime within that statute and the cognisance of the high Commission as is declared by a statute made the first Session of this Parliament which statute makes wholely for me and against the high Commissioners and puts the former question out of question yet my Lord in favour of the high Commissioners and to my owne disadvantage I doe forbeare to take the benefit and advantage of the former statute and Declaration and granting to the high Commissioners a power to fine and imprison for crimes within the first of the first of Elizabeth according to the Commissioners practise before and at the time of my censure according to the wordes of their commission and the approbation both of the Exchequer who did imprison me for the 500. pounds fine estreated by the high Commissioners into the Exchequer and of this Court also which would not upon an habeas corpus deliver me from that imprisonement I doe in this sence and respect onely propose the former question whether for the breach of a Canon or Canonicall obedience unto the canons according to the lawes and customes of this land men are to be fetcht from the judgement and jurisdiction of the ordinary up to the high commission court and there to be fined and imprisoned or else whether they are to be left to the judgement and jurisdiction of the ordinary and he to proceed against them according to the power of the keys And though this question my Lord bee within the compasse and cognisance of the common Law and therefore ought to bee spoken unto by the worthy professors of this Honorab profession yet seeing it is in defence of the Episcopall or ordinary jurisdiction which the Bishops themselves have wrong'd and which at this time in this my case no common Lawyer will undertake to defend and that for this very reason as I conceive because they have mens persons in admiration for advantage sake Epist 16. as St. Iude speakes and do prefer the person of some Bishop before and above the Episcopall or Ordinary jurisdicton it self Therfore ut nequid detrementi capiat respublica Episcopalis vel ordinaria and to the intent that all men may know that I both truely love and reverence the Episcopall or Ordinary jurisdiction not onely above and beyond you the common Lawyers who will not according to your profession defend it but also above and beyond those Bishops who contrary to their callings have wrong'd it and also that I onely oppose the usurpation and presumption of some Bishops and not the Episcopall or ordinary jurisdiction it selfe I will endeavour to shew and that by seven reasons Thesis prima septem rationibus confirmaâ—a that the breaches of canons or of canonicall obedience unto the canons according to the Lawes custome of this land belong to the juridiction of the ordinary and not to the cognisance of the High commission court Ratio 1 My first reason my Lord is taken from the sence and meaning of this word Ordinary as it is expressed by Doctor Lyndewode in the first booke of his Prov. tit de constitut cap. Exterior habitus Verbo Ordinarij in these very words Nota quod haec dictio (c) Ordinarius dicitur quia habet ordinariam iurisdictionem in iure proprio non per deputationem Cokes institutes f. 96 Ordinarius principaliter habet locum de Episcopo aliis superioribus qui sunt universales in suis iurisdictionibus de iure communi solus Episcopus est ordinarius super omnes subditos suos sed sunt sub eo alij ordinarii hi vid. quibus competit iurisdictio ordinaria de iure privilegio vel consuetudine By which words my Lord it appeares though there be some other subordinate inferiour ordinaries under the Bishop in some parts of his Diocesse who have and hold under him in those parts an ordinary jurisdiction either iure privilegio vel consuetudine yet de iure communi over the whole Diocesse the Bishop only is Ordinary and onely hath a generall and an universall jurisdiction And this generall jurisdiction of the ordinary or Bishop extends not to all causes both Temporall and Ecclesiasticall but only to all causes meerely Spirituall so called not in respect of their owne nature but because they are assign'd to the Spirituall or Ecclesiasticall jurisdiction And those are of two sorts either civill Ecclesiasticall causes as Tithes Oblations Legacies Pentions and portions or else criminall causes and both these belong to the generall jurisdiction of the Ordinary for the former it appeares principally in two cap. of Lyndewodes Provinc and that in the very text first in his second booke tit de foro competenti cap. circumspecte agatis which though it be King Edw. 1. direction to his Judges or Justices or Commissioners concerning the Bishop of Norwich and other of the Clergy and bee extant among the Statutes 13. Edw. 1. yet seeing it treates of the spirituall jurisdiction of Ordinaries it is set downe by Lyndewode among the provinciall constitutions of our Archbishops of Cant. Secondly in his 5. booke tit de paenis cap. aeternae Sanctio voluntatis And for the latter namely criminall causes it appeares both in the two chapters before alleaged and more especially in the first booke of Lyndewodes Provinc tit de constitutionib c. exterior habitus ver Inquirant upon which word Lyndewode shewes that there is triplex inquisitio generalissima generalis specialis vel singularis and each of these is twofold either praeparatoria or Solemnis praeparatoria est fine exactione juramenti solemnis est cum juramento and the one of these makes way and worke for the other The preparatory inquisition findes out and starts the game and the solemne inquisition persues and takes it And the most generall inquisition both preparatory and solemne belongs to a generall councell or to a provinciall Synode but the inquisition generall and speciall both preparatory and solemne belongs to the jurisdiction of the Ordinary And this generall inquisition hath three degrees for it is generall either in respect both of persons and of crimes or it is generall onely in respect of persons and speciall or singular in respect of crimes or lastly it is generall in respect of crimes and speciall or singular in respect of persons as the Ordinary shall thinke fit and the matter require Now my Lord the High Commission hath nothing to doe with the first of these causes namely civill Ecclesiasticall causes no nor a generall jurisdiction in the latter namely criminall causes and both these are evident by divers judgements at the common Law Hilary 8. Iacobi In the common Pleas in the case of Huntley and Clifford it was resolved that the High Commission had not power to meddle with civill Ecclesiasticall
Cause And yet what they cannot prove my Lord I out of a desire of peace and concord with them will voluntarily grant unto them Concessio 1. retortio in adversarios Dabo ex supposito quod non dabo ex animo Let it then be custome what followes why this Then the Cause is a civill Ecclesiasticall Cause and not a criminall Cause and then it is and hath been all this while coram non judice and so the sentence and whole proceedings of the Commissioners are utterly voyd Concessio 2. retortio in adversarios Secondly be it custome then the Arch-deacon hath broken the custome and not I for the Commissioners in the first part of their first finall sentence extant in their Plea made an Order that I upon the Arch-deacons Mandate and a competent warning thereby to me given should preach a Sermon at the Arch-deacons next Visitation Now this Order is the custome or else it is not If this Order be not the custome then I being bound to observe the custome am not bound to observe this order or else being bound to observe this order I am not bound to observe the custome Let them chuse which they will they are faulty in either If this Order be the custome then the Arch-deacon and not I hath broken both Order and custome because he only sent an Apparitor with a postscript private letter or message to warne me to preach his Visitation Sermon but sent no mandate or processe or publike instrument for that purpose out of his Court by his Apparitor as he should have done both by the Order and custome and both these the Defendants confesse in their Plea and they shall be both shewed against them at large in my answer to to the fourth accessory Confutatio 1 Thirdly it is not custome for if it be custome then it is custome contrary to the 36. 49. and 52. Canons made 1. Iacobi that is about 39 years since and then it must be custome either before those canons were made or else only since If it were custome before those canons were made then it was before that time tried and obtained in some contradictory judgement for consuetudo non valet nisi sit obtenta in Contradictorio judicio Now can the Defendants shew any contradictory judgement before that time wherein this pretended custome was determined to be custome If they can let them shew it and I submit If they cannot idem est nen esse non apparere If it were not custome before the former Canons were made it cannot grow to be a custom since Nine and thirty years prescription is not sufficient to make a custome for consuetudo est cujus contrarium memoria hominum non existit and if this custome be but of 39. years standing there are divers men yet living which can remember the contrary Nay my Lord seeing a custome cannot grow in the time of opposition if we will make an exact computation we must from the former 39. years defalke full 16. years because so long this controversie hath been on foot and this custome oppos'd And then at the begining of this controversie there remains but 23. years since the making of the former Canons and since the begining of this pretended custome if it began since those Canons were made And then at begining of this controversie this pretended custome being but of 23. years standing could not be custome according to the former rule seeing at the begining of this controversie there were divers men then living who could remember the contrary Concessio 3 Confutatio 2 But in the fourth place my Lord let it be custome and a tried and determined custome in a contradictory judgement and that before those Canons were made yet by those Canons it is abrogated For cannot an Act of Parliament cut off a known custome of England tried and determined in a contradictory judgement at the Common Law There is I suppose no question of it and the reason as I conceive is because all the parties that have right in that custome are either personally or vertually present in Parliament and there by making a contrary Act give up their right to that custome and then by the same reason seeing none had right in the former custome but the Arch-deacons Bishops and Arch-bishops on the one side and the Incumbents under them on the other side and the three former were personally present in a provinciall Synod and the others vertually present in the Clerks of the Convocation and all on both sides by making the former Canons gave up their right to the former custome that custome is and must be abrogated by the former Canons Confutatio 3 But in the fift place my Lord it cannot be custome First because it is contrary to the Word of God as appears by my three first arguments Secondly because it is contrary to the whole course and tenour of the Canon Law in the body of the Canon Law in Lyndewodes provinciall in the Legantine Constitutions of Otho and Othobon and in our last Canons all which I have formerly shewed And lastly because it is contrary to naturall equitie and contra naturalem aequitatem nulla valet consuetudo etiamsi omnes homines de mundo aliter facerent saith the Canon Law Now this rule of naturall equity is deliver'd by our Saviour Luke 10 7. The labourer is worthy of his hire which is true e converso he that hath the hire is bound to performe the labour And this labourer is the Visiter and his labour is to Visit that is to preach and to correct and his hire for that labour is Procurations and all these I have formerly proved It is then contrary to naturall equitie for us to detain Procurations from the Visiter when he Visits us that is preacheth unto us and correcteth us It is likewise contrary to naturall equity for the Visiter to require Procurations when he doth not Uisit that is preach and correct It is most apparently contrary to naturall equitie for the Visiter to require Procurations of the Incumbents for Visiting them that is for preaching unto them and for correcting them and yet to impose upon them the Visitation Sermon the speciall part of that labour for which the Visiter requireth and receiveth his Procurations of the Incumbents And upon this ground the Canon Law affirms quod in procuratione ratione visitationis debita non currit praescriptio And then there can be no custome to binde the Incumbents either to pay Procurations or to preach the Visitation Sermon The third Argument There is one weake argument my Lord yet remaining and that 's this The Arch-deacon is tanquam oculus Episcopi and therefore may enjoyn the Ministers within his jurisdiction to preach his Visitation Sermon that thereby he may see and learn and know their sufficiency I do confesse my Lord that in the Canon Law the Arch-deacon is called oculus Episcopi and which is more vicarius
matter it now appeared that the said Mr. Huntley in the moneths and yeares articulate especially since the 27 of March 1625. had beene by the said Mr. Archdeacon divers times willed or required to Preach a Uisitation Sermon and had time sufficient to provide himselfe that Mr. Huntley without all due respect of Mr. Archdeacon or the canonicall obedience hee ought unto him with words of scorne and contempt refused to performe that duty as was justified out of his owne answers both in words and writing that Mr. Doctor Kingsley hereupon appealed to the Lord Archbishop of Cant. his Grace who is immediate Ordinarie and Metropolitane to them both for redresse herein that his Grace upon notice thereof wrote a particular letter to said Mr. Huntley the true copy whereof after the originall shewed to Mr. Huntley was left with him and therein advised and required Mr. Huntley to prepare himselfe to preach a Uisitation Sermon he having time enough given him to prepare himselfe for that purpose which commandement of his Grace the said Mr. Huntley slighted and utterly refused to performe that duty and not desisting after such refusall came unsent for or uncalled for to Mr. Archdeacon aforesaid being in his Uisitation amongst the Clergie and sitting there to heare causes very malepartly and unreverently charged him the said Mr. Archdeacon of falsehood or injustice and in a very arrogant and irrespective manner laid downe an hundred pounds in gold upon the table and offered to lay wagers with him the said Mr. Docter Kingsley the Archdeacon that he had done him the said Huntley wrong or the like in effect without any due respect of the said Archdeacon his person or place and to the encouragement of other refractary persons as was there also proved to the Court for which his grosse abuses and contempts the Court held him well worthy to be punished and so much the rather because the court was of opinion and so proncunced that the said Mr. Huntley was by the Lords Grace of Cant. his Ordinary the Archdeacon aforesaid injoyned to doe no more then what by Law and custome according to his canonicall obedience hee was tyed to performe yet neverthelesse the court at this time reserving to themselves their further censure as occasion should be offered for the present only ordered him the said Mr. Huntley upon the commandment of the Archdeacon of Cant. upon a competent warning to bee given him to Preach a Sermon at the next Uisitation to be holden by Mr. Archdeacon of Cant. and afterwards before the Clergy in the said Uisitation to acknowledge his fault in conceptis verbis as shall be prescribed by any three or two of the Commissioners Judges of the Court unto whom it is now referred to set down the same he is juditially admonished and required to appeare here personally in this place the second court day of the next tearme to certifie of his due performance thereof accordingly whereupon afterwards namely one the 19. of Aprill Anno Dom. 1627. at Westminster aforesaid in the County of Middlesex aforesaid the aforesaid George Huntley then and there being publikely called appeared personally And being then there by the foresaid most Reverend father in Christ Lord the Lord George by Divine providence Archbishop of Cant. primate of all England and Metropolitane Richard of Durham Iohn of Rochester Lewis of Bangor Thomas of Coventry and Lichfield William of Bath and Welles Theophilus of Landaffe Robert of Bristoll respectively Bishops Dudley Digges and Henry Marten Knights Iohn Donne Walter Balcanqnall William Kingsley Thomas Worrall professors of Divinity Edmond Pope Hugh Barker Doctors of Law Commissioners aforesaid demaunded whether hee the said George had performed the foresaid order made the foresaid eigth day of February Ann. Dom. 1626. foresaid as is aforesaid or no to wit whether he had Preached his Uisitation Sermon according to the requisition and command of the foresaid Archdeacon of Cant. and made his submission conceptis verbis before the Clergie as was injoyned him by the foresaid Court of high Commission aforesaid he the said George Huntley then and there acknowledged that he had done neither and then and there alleaged frivolous matter in excuse thereof to witt that Mr. Archdeacon aforesaid had not warned him by a lawfull processe to Preach But it appeared to the said Court of high Commission by affidavit made that the foresaid Master Archdeacon had given him sufficient warning by a publike officer and a competent time to provide himselfe to Preach a Uisitation Sermon and he being a man sufficiently qualified by his gifts of learning for that purpose not withstanding contemptuously refused to performe his duty therein and also that he the said George Huntley refused to performe his submission conceptis verbis as was enjoyned unto him The said Court of High Commission unamimi consensu prononuced him guilty of a great affront and contempt not onely to the said Mr. Archdeacon and the Lord Archbishop of Cant. primate of all England and metropolitane and his the said Huntleys immediate Ordinary unto whom the said Huntley is tyed by oath to performe canonicall obedience but also against his Majesties supreame power and authority in matters and causes Ecclesiasticall and this Court unto whom the same by Letters Patents under the great Seale of England is delegated and committed and therefore the said Court of high Commission held the said George worthie to be punished and first fined him in five hundred pounds to his Majesties use committed him to the new prison namely to the custody of Brian Wilton then warden of the new prison and there ordered him to remaine untill he shall give sufficient bond with suerties in a competent summe to his Majestie use aswell for the payment of his fine as it shall bee mitigated as for the performance of his submission heretofore enjoyned him c. Now these two parts of the High Commissioners first finall sentence containe the whole originall matter for which alone the High Commissioners aforesaid did fine me five hundred pounds and imprisoned me on the 19 day of Aprill 1627. and kept me in prison two whole yeares And for which alone without any other crime or fault afterward objectd against mee in any new articles or in any additionalls or superadditionalles to the first articles the Commissioners did on the 25 day of Iune 1629. by a sentence wherin they charge me with grievous and enormous crimes excesses and delicts mentioned in the foresaid articles in which articles there is never a crime charged upon me deprive and degrade me and thereupon kept me a prisoner untill the 10 day of May 1633. And for which alone on their last court day in Hilarie Terme 1630. they did excommunicate me because I would not deliver up my orders diaconatus presbyteratus And for which alone yet neither certified into the Exchequer by the h High Commissioners together with the fine aforesaid nor legally seene nor understood by the Barons
of the Exchequer my Lord chiefe Baron sir Humphrey Daverport and the other Barons of the Exchequer refusing to grant me a certiorarj to the High Commition Court to command them to certfie the cause to permit mee to pleade to the foresaid fine did the 10. of May 1633. commit me to the Fleet in execution of the foresaid fine there detained me a full yeare untill I to procure my liberty paid the fourth part of the said fine to Mr. Motershed pecunijs numeratis and stal'd the other three parts to the Kings use And for which and also for a Petition delivered at the Counsell Table to crave justice therein according to his Majesties mandate under sir Edward Powels hand to my Lord chiefe Justice sir Iohn Bramston and the other Judges of the Kings Bench court dated the 29. of December 1635. and delivered with mine owne hand to the said Judges in open Court the first day of Hilary Tearme 1635. I was by my most reverend Diocesan and provinciall William Lord Archbishop of Cant. his Grace and other right Honorable Lords of his Majesties most honorable privie Councell on the third day of February 1636. committed to custodie of the Warden of the Fleet by a warrant wherein no cause of commitment was exprest and there detain'd a prisoner by him untill Trinity Tearme 1639. and then upon an habeas corpus issuing out of the Kings Bench Court I was brought to that court in Trinity Tearme 1639. and the foresaid warrant for my commitment returned and then I was presently bayled and thereby tyed to appeare in court divers daies both that Tearme and the Tearme thence next following and because none of the Kings Counsell in all that time came in against me I was on the last day of that Michaelmas Tearme 1639. delivered from the said baile and imprisonment by the joynt consent of all the Reverend Judges then of that court As I formerly had beene in the same court Termino paschae 1629. after the first two yeares imprisonment upon the foresaid originall matter returned to an habeas and fully debated by Counsell on both sides and Mr Justice Bertley then the Kings Sergeant in open court professing himselfe fully satisfied And for the former originall matter onely may for nothing at all in the judgement of the Law even for the foresaid sentence of deprivation and degradation charging mee with grievous and enormous crimes excesses delicts mentioned in the said Articles and those Articles not given in evidence nor found by the Jury in the speciall verdict betweene Allen and Nash entred upon record in the Kings Bench court termino Sancti michaelis 8. Car. rot 508. my Lord chiefe Justice of that court sir Iohn Bramston did for himselfe and his brethren Termino Trinitatis 1637. affirme the foresaid sentence and deliver his opinion against me for the intruder Robert Carter Whence it followeth that if the Commissioners aforesaid first finall sentence against me the 500 pounds fine thereby imposed upon me the two yeares imprisonment thereby sustained by me be just legall then all the other sentences censures and punishments following and depending thereupon may be just and legall But if the former the only ground of all the rest be unjust and illegall then all the other must of necessity be unjust and illegall And whether the former be just or unjust let the indifferent reader judge impatially upon the perusall of the following argument MY Honoured Lord cheife Iustice and my Honored Iudges the first thing in this Controversie concerning the points of the Canon law in question whereunto cheifly I am to speake is the very stating of the controversie it selfe between me my adversaries And for that purpose in the first place I humbly desire your Lordship the Court to observe that the defendants charge me with faults of severall degrees some principall and especiall others inferiour and accessory· The Principall and Especiall are two as appeares by their first finall sentence alleaged in their plea wherein they say that upon the opening of the cause they found the aforesaid George Huntley charged in the said Articles with these two perticulers principally (a) This word specialiter in this sence is 3. times used in the defendants plea. twice in the first part of their first finall sentence and once in the Commission of 14. Articles obiected against me 12. doe expresly mention my refusall to Preach the Visitation sermon as a fault or prepare the way theieunto and the fourth saith that I offered two or three peeces to the Arch-deacon to procure one to preach that sermon only the sixth and thirteenth Articles doe not mention it or especially first that he refused to preach a visitation sermon at the Arch-deacons of Cant. Doctor Kingsleys command contrary to his Canonicall obedience and secondly that he raised an opinion amongst the Clergy that the said Arch-deacon had no power to command him the said Huntley or any other incmbent to preach the said visitation Sermon The Inferiours or Accessories are foure first that the said Huntley came unsent for or uncal'd for to Master Arch-deacon aforesaid he being in his visitation amongst the Clergie and sitting there to heare causes Secondly that the said Huntley did then and there very malepertly and irreverently charge the said Arch-deacon of falsehood or injustice thirdly that the said Huntley did at the same time and place in a very arrogant irrespective manner lay downe an hundred pounds in Gold upon the table and offered to lay wagers with him the said arch-deacon that he had done him the said Huntley wrong or the like in effect and fourthly and lastly that the said Huntley refused to performe his submission conceptis verbis as was enioyned him by the Commissioners and therein gave a great affront and contempt both against his Maiesties supreame power and authority in matters and causes Ecclesiasticall and also against the high commission court to whom the same by letters patents under the great seale of England is delegated and committed And for these six particulers the defendants confesse that they imprison'd me two yeares namely from the nineteenth day of Aprill 1627. to Aprill 1629. In which moneth upon my appearance in this court the first day of that Easter Terme 1629. to save my baile you Master Iustice Heath then the Kings Attourney Generall were first call'd for by the Court in the Kings behalfe against me and you came and confest that you had nothing to say against me and then Master Iustice Bertley being then the Kings Sergeant whose (b) Master Iustice Bertley at this time was in the custody of the Sheriffe of London absence I much lament whose presence I much desire was called for by the court for the same purpose against mee and hee came and confest that he had formerly spoken twice against mee upon the matter return'd to the habeas corpus which was the very same for substance that is now pleaded
causes and therefore none might sue before them for Tythes Legacies Oblations Pentions or Portions First because this would bee a meanes to take away all Ecclesiasticall proceedings from the Ordinary Secondly because their sentences and Decrees are finall and no appeale lieth from them so that it might be very mischeivous if they should hold plea of all manner of Ecclesiasticall causes Thirdly because the first of Elizabeth giveth them power only in enormities 1. in hainous horrible and exorbitant crimes In the Exchequer in Ailemers case it was resolved that the High Commission might not meddle to punish one for working upon holy dayes 44 Eliz. rot 1255. in the Common Pleas in the case of Tailer and Masse a prohibition was granted where one was convented before the high Commission for giving irreverend speeches of a Minister for carrying his corne on holy daies and for not suffering the Parson and parishioners to goe through his yard upon Rogation weeke and for not giving them a repast in the perambulation as hee had used to doe and for whistling and knoeking upon the doore of the parson and saying hee did it to make the parson musick for the marriage of his Daughter for this ought to be before the Diocesan But my Lord there is one case at the common Law which I more esteeme than the three former because in this very point it conteines not only the resolution of all the reverend Judges then of this Court but also a reall confession of the High Commissioners themselves my very adversaries and that 's this mire owne case for the high Commissioners did at first Pasohae 1627. committ me to prison for breach of canonicall obedience in refusing to Preach the Archdeacons Uisitation Sermon after two yeares imprisonment when upon an habeas corpus I was set at liberty by the court paschae 1629. because that matter was coram non judice then trinitatis 1629 in their second finall sentence upon the same Articles wherein there is no crime objected against mee they charge me with grievous and enormous crimes mentioned in the Articles that so they might make the matter coram judice and within the cognisance of the High Commission So that by the canon and common Law and by the reall confession of my very adversaries the breaches of Canons or of Canonicall obedience unto the Canons belongs to the Jurisdiction of the Ordinary and onely grievous and enormous crimes to the cognisance of the High Commission court Ratio 2 My 2. reason my Lord is taken from the custome practise over England for it is the generall custome uniforme practise over all Eugl. for the Church wardens to make their presentments at the Ordinary or episcopall jurisdiction not at the High Commission Court therfore the breaches of Canons or of canonicall obedience unto the canons belongs to the jurisdiction of the Ordinary not to the cognisance of the high commission court And this reason being the generall custome uniforme practise over all England time out of minde both of all the Church-wardens in making their presentments of all the ordinaries in receiving them is the Common Law of the Land being in use nono Hen. 3. is confirmed by the 1. chap. of Magna Charta under the name of the Rights Liberties of the Church for as Lyndewode in the fifth booke of his provinc tit de sententia ex communicationis cap. cum saepius verbis Ecclesiasticae libertatis Saith Ecclesiastica libertas inter caetera consistit in libero exercitio Iurisdictionis Ecclesiasticae And this custome Ecclesiasticall liberty jurisdiction hath lately been cleer'd by the resolution of all the reverend Judges then of the 3. Honorable Courts of Common Law as appeares by his Majesties Proclamation dated at Lyndhurst 18. August 13. Caroli wherein they affirme that the Bishops Archdeacons other Ecclesiasticall persons may keepe their visitations as usually they have done then they may receive all presentations from the churc-wardens as usually they have done then they now have a generall jurisdiction as formerly they have had And this their resolution is fully warranted by the fift proviso of the 2. cha of the 1. of Eliz. for that proviso and paragraph gives power to all Archbishops Bishops to every of their Chancellours Commissaries Archdeacons and other ordinaries aswell to inquire in their visitations synods and elsewhere within their jurisdiction at any other time and place to take accusations and informations of all and every the things above mentioned done committed or perpetrated within the limits of their jurisdictions authority to punish the same by admonition excommunication sequestration or deprivation other censures and processe inlike forme as hath heretofore been used in like cases that is cases of Ecclsiasticall cognisance by the Queenes Ecclesiasticall lawes not by a commission as some would have it but by the Queenes Ecclesiasticall lawes Which last words doe approve of such a jurisdiction as the ordinaries at that time did exercise according to the Ecclesiasticall lawes of the land at that time both before and since that time the Ordinaries did do exercise a generall jurisdiction according to the Ecclesiasticall lawes of the land without a commission as appeares upon record in their owne Courts the Canons Ecclesiasticall lawes of the land doe approve of that generall jurisdiction of the Ordinaries as appeares by the body both of Lyndewodes provinciall of the legantine constitutions of Otho and Othobon and also by tenne of our last Canons made primo Iacobi namely by the 109. to the 119. so that in this second reason the Common and Canon and Statute Law doe concurre and all three shew that the breaches of Canons or of canonicall obedience unto the canons belong to the jurisdicton of the ordinary and not to the cognisance of the High Commision Court Ratio 3 My third reason my Lord is taken from his Majesties Letters Patents confirming the canons of our Church made primo Iacobi for therein after he hath in the first place confirmed those canons with his Letters Patents out of his supreme Ecclesiasticall jurisdiction and in the second place charged all his loving subjects of both Provinces to keepe and observe all those Canons in every point wherein they doe or may concerne every or any of them and in the third place charged all Archbishops Bishops and all others that exercise any Ecclesiasticall jurisdiction within this Realme to see and procure that all within their jurisdictions doe observe the foresaid canons in the former manner then in the fourth place he gives power to the said Archbishops Bishops and to all others that exercise any Ecclesiasticall jurisdiction within this Realme to inflict all the punishments mentioned in those canons upon the violators of those canons so that by his Majesties owne gift grant primo Iacobi The breaches of canons or of canonicall obedience unto the canons are assigned
deputed to the Episcopall or ordinary jurisdiction and not reserved to the jurisdiction of the crowne or cognisance of the high commission Ratio 4 My fourth reason my Lord is taken from his Majesties commission granted to and pleaded by the commissioners which gives unto them onely a particular and a limited jurisdiction consisting in certaine Ecclesiasticall causes and certaine particuler offences against certaine particular lawes and not a generall jurisdiction in and over all Ecclesiasticall causes and offences as large and spatious as the canons and Ecclesiasticall lawes themselves And this will appeare my Lord by a particular enumeration of all the severall branches of the commission it selfe But this would bee a great labour and will be altogether needlesse whether the Defendants can shew any such branch of their commission or not for if they cannot shew any such branch of their Commission then doubtlesse the labour will bee needlesse seeing the proofe lies on their side no proofe being made sufficet neganti ut neget dummodo non probetur in contrariū And if they can shew any such branch of their commission then it shall suffice to confute that branch when the defendants or their counsell shal produce it I confesse my Lord that the Commission dated 11. Iacobi extends as far as the canons ecclesiasticall lawes themselues in cases concerning the reformation of Ministers for it gives in expresse termes power and authority to the commissioners to punish a Minister for any fault committed in his owne cure or else where that is punishable by the Ecclesiasticall lawes of the Land but I am sure my Lord that there is no such branch in the commission pleaded by the Defendants and therefore in that very respect if in no other an information lies good against the commissioners and this court hath rightly assigned me for a prosecutor in an information against the commissioners for going beyond their commission And if there were any such branch in their commission that branch under favour were void because it is contrary to the sence and meaning to the scope and drift to the very letter and text of the 1 of the 1 Eliz. the statute whereupon their commission is grounded as shall now appeare by my next and Ratio 5 Fifth reason which is taken from the 1 of the 1 Eliz. and from the 19 of the 25. of Hen. 8. reviv'd in the first of Eliz. and therefore whatsoever the 1 of the 1 Eliz. doth particularly and expressly establish by reviving the 19 of the 25. of Hen. the 8. It is to bee presumed that it doth not in the same statute afterwards by generall tearmes abrogate for that were to make that statute like the high commission sentence against me to be at variance with it selfe and to have our part contrary to another why then my Lord seeing the first of the first of Eliz. by reviving the 19 of the 25. of Hen. 8. doth particularly and expressly allow unto the ordinary with in his diocesse a generall jurisdiction in reference to the canons and Ecclesiasticall lawes of this land It is not to bee supposed that in the following parts of that statute the Parliament did afterwards by generall tearmes take that away from the ordinary and therefore those insuing generall words which enables the King to nominate commissioners and by his commissioners to reforme and correct all manner errors heresies schismes faults offences enormities which by any manner of power or authority may be reformed doe not make voide the the former statute and generall jurisdiction of the ordinary but only shew that be the fault never so great so that the ordinary by vertue of his subordinate jurisdiction cannot sufficiently punish it yet it may be sufficiently punished by the Kings supreame jurisdiction within the land without going to the Pope out of the land for by that paragraph that is invested in the crowne which by the former paragraph was abolished and extinguisht in others and in the former paragraph all forraigne usurped power onely and not the ordinary jurisdiction is extinguisht So that by those former generall wordes such grear grievous and enormous crimes onely as the ordinary by vertue of his subordinate jurisdiction cannot sufficiently punish may be brought to the high Commission court and there fully punisht and yet the former statute and generall jurisdiction of the ordinary remaine whole and intire namely that breaches of Cannons or of Canonicall obedience unto the Canons belong to the jurisdiction of the ordinary and that be within his diocesse hath power to punish any fault punishable by the Ecclesiasticall lawes of this land And this interpretation My Lord is warranted first by the very title of that statute which is an act to restore unto the crowne the ancient jurisdiction over the state Ecclesiasticall and for abolishing all forraigne power repugnant to the same not for abolishing the ordinary jurisdiction which is subordinate unto it but for abolishing all forraigne power repugnant to the same And the abolishing of the one and the restoring of the other is the whole and sole cause and occasion of that statute as is more fully exprest in the beginning of that statute where the Lords Spirituall and Temporall and the Commons do all acknowledge that from the 25. yeare of Henry the 8. at which time all forraigne usurped power was by divers good lawes and statutes abolisht and the ancient Ecclesiasticall jurisdiction fully restor'd and united unto the Crowne they were kept in good order and were disburdened of divers great and intollerable charges and axactions untill such time as the aforesaid good laws an Statutes made since the 20. yeare of Henry the eight by one act in the first and second of Philip and Mary were all cleerely repeal'd whereby as they there complaine they were againe brought under an usurped forraigne power and yet remaine in that bondage to their intolerable charges if some releife be not had and provided and thereupon they supplicate that both the foresaid statute of repeale may be repealed and the foresaid good laws and Statutes for abolishing all forraigne usurped power and for restoring the ancient Ecclesiasticall jurisdiction unto the Crowne may be revived In all which there is not any one word spoken against the Ordinary jurisdiction but onely against forraigne usurped power and this being the onely greivance and the totall occasion of that law must direct us in the interpretation of that law for occasio legis indicat mentem legislatoris sensum legis Secondly by the oath of Supremacy extant in the same statute and made for the same purpose namely to abolish all forraigne power repugnant to the jurisdiction of the Crowne not to abolish the ordinary jurisdiction which is subordinate unto it Thirdly by those generall wordes wherein the Kings jurisdiction is exprest namely by these wordes all errors heresies schismes faults offences enormities which last word doth and must qualifie all the rest and doth shew that by those wordes
the very Letter and text of some Commissions that I have seene have this power that they may punish a Minister for any fault committed in his owne cure or else where that is punishable by the Ecclesiasticall lawes of this land By which words my Lord it appeares that first there must bee some fault Secondly that that fault must be against some law Thirdly that it must bee against some Ecclesiasticall law of the land or else that Honorable Court by the very Letter and text of the largest commissions that I ever saw have no power to punish a Minister And though this their Commission my Lord doth much outstrip the first of the first of Eliz. the statute whereon it is grounded for that statute extends not to every fault punishable by the Ecclesiasticall lawes of this land for then it would swallow up all the ordinary jurisdictions over England but onely to greivous and enormous crimes punishable by the Ecclesiasticall lawes of the land as the Counsell on both sides in the speciall verdict betweene Allen and Nash have confest and the wordes of the statute as I before have shewed doe necessarily enforce Yet in this case of mine to shew mine owne innocency and the goodnesse of my cause not to make a precedent in other mens cases I will give the defendants free leave and liberty to exceed both the statute and their Commission I will not coope them up and confine them within the lists and limits of the Ecclesiasticall lawes as the most indulgent and munificent Commissions that ever I saw doe yea and must doe unlesse they will make their Commission as well Temporall as Ecclesiasticall no my Lord I will not require an Ecclesiasticall law let them produce an law canon civill common statute or divine nay my Lord I will once againe deale more Nobly and generously more heroically and munificently with that Honorable court with those Augustins Hieromes Gregories Ambroses with those Nazianzens Chrysostomes Origens Basils with those reverend right reverend most reverend Prelates and Patriarchs of our church I will not require a whole law noe not a full period of a law Let them onely produce some colon nay some comma of law onely nay my Lord I will once againe deale more Nobly and generously more heroically and munificently with that Honorable court I will not require a whole colon no nor a whole comma of law neither that were too too an Herculean labour for that Honorable Court for those Canonists Civilians and Divines for those commissaries chancellours Arch-deacons Deanes Bishops Arch-bishops let them onely produce 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some shaving some scraping some paring some shred peece particle or fragment of Law nay let them onely produce 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unum unum apicem one jot one apex one tittle one pricke or point of law of any law my Lord and I doe most willingly and most instantly submit And now my Lord as the defendants doe pretend a fault so likewise they doe pretend a law the pretended fault is my refusall to Preach the Archdeacons Visitation Sermon the pretended law is the Law of Canonicall obedience They say that my refusall to preach the Arch-deacons visitation sermon at the Arch-deacons command is a breach of Canonicall obedience And now my Lord we are come to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ad statum causae ad caput controversiae for this Canonicall obedience is the whole and sole ground and foundation and supportation of the whole sentence against mee and it cannot be understood and determined whether my refusall to preach the visitation sermon be a breach of canonicall obedience or not unlesse it be first knowne and understood what this Canonicall obedience is so that in the first place my Lord there is a necessity imposed upon mee breiflly to present unto your Lordship what this Canonicall obedience is The high Commissioners in the first part of their finall sentence as it was given in their owne Court make Law custome and Canonicall obedience three different and distinct thinges For therein they say that the Archdeacon in injoyning Huntley to preach his visitation sermon hath commanded him no more than the said Huntley was bound to doe by law custome and by his Canonicall obedience and herein by making Canonicall obedience a third and distinct thing from law and custome they shew that they onely use the name of Canonicall obedience but intend arbitrary or blind obedience that is a generall and universall obedience to all the Arch-deacons commandes though they swarve both from law custome whereby they make every Arch-deacon Bishop and Arch-bishop a law-maker within his owne jurisdiction and every of their commands binding and compulsive though fortified neither by law nor Custome But your Lordship as it seemes not content herewith steps a degree further and makes Canonicall obedience not onely a third and distinct thing from law and custome but also a thing opposite and contrary to law and custome for termino trinitatis 1637. when when your Lordship delivered your opinion in the speciall verdict betweene Allen and Nash your Lordship said that if the Arch-deacon did owe me an 100. pounds by bond he might by vertue of my Canonicall obedience command mee to deliver up that bond the money not being yet paid Or he might command me by vertue of my Canonicall obedience to send him a yoke of fat oxen a couple of good Coach-horses or a score of fat weathers which I am sure is not onely beyond but contrary to law and custome and more than either his Majesty or any of his royall predecessours did ever chalenge of any freeborne subject either by the oath of allegiance or oath of supremacy whether your Lordship have altered this your opinion or no I know not the high Commissioners I suppose have altered theirs For certaine it is that the former wordes of the first part of their first finall sentence as it was given in their owne Court are altered in the defendants plea wherein they make Canonicall obedience not a third and distinct thing from law and custome as before but a subordinate relative and a proportionable thing to law and custome by changing these their former wordes law custome and his canonicall obedience into these law and custome according to his Canonicall obedience And this alteration as I suppose proceeded from the acute and polite wit of you Master Justice Heath at that time the Kings Attourney Generall and Commissioners counsell who seeing that the Commissioners by the former wordes did make canonicall obedience a third and distinct thing from law and custome that thereby they did under the name of canonicall obedience chalenge arbitrary and blind obedience to and for every Arch-deacon Bishop and Arch-bishop that thereby they made themselves all lawmakers within their severall jurisdictions and that so at once by two wordes they gave two deadly woundes one to his Majesties supreame jurisdiction who under God is the onely lawmaker within this land
Archdeacon to warne me to preach that sermon And then my Lord how have I transgrest either the Archdeacons mandate or the order of the High-commission Court or what authority had that apparitor or publik officer to warne mee to preach that Uisitation Sermon just none at all as appeares by the 138. canon made 1. Iacobit where it is said all apparitors shall by themselves faithfully execute their offices neither shall they by any colour or pretence whatsoever cause or suffer their mandates to bee executed by any messengers or substitutes In which words my Lord it appeares that an apparitor doth then faithfully execute his office when he doth faithfully execute his mandates that is neither goe beyond nor come short of his mandates so that the apparitours have no power to warne or summon any man with out such a mandate No nor the Bishop Chancellour Archdeacon Officiall nor any other Ecclesiasticall Judge as appears by this 120 Canon No Bishop Chancellour Archdeacon Officiall or other Ecclesiasticall Judge shall suffer any generall Processes of Quorum nomina to be sent out of his Court except the names of all such as thereby are to be cited shall be first expressely entred by the hand of the Regester or his deputy under the said Processes and the said Processes and names be first subscribed by the Judge or his deputy and his seale thereto affixed So that whensoever any Bishop or any other Ecclesiasticall Judge will cite any man to appear before him he must send out by his Apparitor a mandate or processe and therein the name of the party to be cited must be first entred by the Regester or his deputy and then subscribed by the Judge or his deputy and his seale thereto affixed And if any Ecclesiasticall Judge whatsoever shall by his Apparitor without such a processe or mandate Summon any man to appeare before him the party is not bound to appeare and though he do not appear yet he is not culpable of any contumacy as appears by this 122 Canon When any Minister is complained of in any Ecclesiasticall Court belonging to any Bishop of this Province for any crime the Chancellour Commissary Officiall or any other having Ecclesiasticall jurisdiction to whom it shall appertaine shall expedite the cause by processes and other proceedings against him and upon contumacy for not appearing shall suspend him First then after complaint made against any one the Judge must cite the party by processe to appeare before him if the party obey not the processe he is then contumacious but without processe there is no contumacy If your Lordship shall aske me what authority the Apparitour pretended when he warned me to preach the said Visitation Sermon I answer that he pretended a processe or mandate from the Archdeacon and it is true my Lord that he had a processe and mandate from the Archdeacon and yet no processe or mandate from him He had a processe or mandate to warne me to appeare at the Archdeacons Visitation and there to pay my procurations due to him for Visiting and that processe or mandate was a publicke instrument out of the Archdeacons Court made in the Archdeacons name under the seale of his Office and the hand of a publicke Notary But he had no such mandate or processe to warne me to preach the Archdeacons Visitation Sermon but only an * In this particular Doctor Kingsley and the Commissioners are more Popish and presumptuous than the Pope himselfe For the Pope sends out only his Bulls Diplomaes or Mandates formally and regularly made sign'd and seal'd with out any postscript according to this old proverb Mittit plumbum exigit aurum But these together with their Mandates or Processes send out their said Postscripts and thereby they will abrogate the Word of God the Articles Statutes Canons his Maiesties Letters Patents royall Prerogative and oath of Supremacie Iust as the Pope presumeth to do with his Bulls And for the violation of these Postscripts they will Fine Imprison Deprive Degrade and Excommunicate which is a Popery pride and presumption more than papall apocryphall uncanonicall anticanonicall antidiplomaticall antiprerogative antisuprematicall postscript in these very words You are to warn George Huntley Parson of Stouremouth to preach at the time and place above mentioned And this postscript set under the processe after the test and Regesters hand was made in no mans name subscribed with no mans hand confirmed with no mans seale and is contrary to the Canons both for forme and matter for matter to the 49 Canon which forbids me being no licensed preacher to preach or expound any Scripture in mine own Cure or else-where for forme to the 120 Canon which forbids any thing to be written under a generall processe of Quorum nomina such as that was but only the names of the parties to be cited and those names must first be entred by the Regester or his deputy under the processe and then subscribed by the Judge or his deputy Here were not only names but also new matter namely the preaching of the Visitation Sermon and yet neither names nor matter either entred by the Regester or his deputy nor subscribed by the Judge or his deputy Unto this warning thus given by the Apparitour by vertue of his vicious postscript I gave only this answer that on the morrow I would send my answer in writing to Master Archdeacon and on the morrow I sent this letter to Master Archdeacon and he received it and it was read in the High-Commission Court by Doctor Ducke one of the Advocates for the Office against me the 19 day of Aprill 1627. when the second part of the first finall sentence was given against me and I Fined five hundred pounds and first imprisoned To the Right worshipfull Mr Doctor Kingsley Archdeacon of Cant. give these Sir I Marvell that being a member of the High-Commission you should not better observe the order of that Honorable Court Their order is that you must command me to preach a Visitation Sermon and that I must obey your command and this they say is the custome And therfore as I must obey according to custome so you must command according to custome What the custome in this point is Sir George Newmans answer ad septimum articulum declares who there deposeth that for these thirty years of his own knowledge the Archdeacon of Canterbury for the time being hath sent Processe by his Apparitor to command the Ministers to preach at his Visitation Do you observe this custome command me by Processe to preach at your Visitation and I will preach a sermon for your Visitation as effectually as I can Your Apparitor shewed me Processe and no Processe Processe to command me to appeare at your Visitation no Processe to command me to preach at your Visitation When you conceive meanly and not evilly of me you conceive as I my selfe do and both aright yet if I may speak it without arrogancie I am not so stupid and obtuse but