⧠THE ADDICIONS OF SALEM AND BYZANCE LONDINI IN AEDIBVS THOMAE BERTHELETI REGII IMPRESSORIS ANNO DO M.D.XXXIIII ▪ Cum priuilegio The introduction BISAN I haue many tymes sith the makyng of our fyrst dialoge which is called Salem Byzāce remebred the Articles of the treatise that is called the tretise concernyng the Diuisyon betwixt the spiritualtie the tēporaltie whiche was the verye occasion of makynge of our sayd fyrst dialoge And I thynke verily that yf the abusions that be recited in the sayde treatyse and other lyke were refourmed great peace and quietnes wold shortly folowe amonge the people And therfore if thou woldest my frende Salem to encorage them that haue good zeale towarde a refourmation of suche abusions take the peyne to recyte some mo thynges that be mysused and ouer that woldest deuise some meanes howe they myght also be reformed I thynke it wolde do greatte good SALEM I shall my frende Byzance with good wyll do that in me is to accomplysshe thy desyre ¶ Of dyuers abusyons concernynge some of the seuen sacramentes and dyuers other thynges as here after foloweth The fyrste Chapytre SAL Many curates haue taken vppon them to saye that they be not bounde to minister the sacramentes to the people onles they be required and that speciallye the sacrament of extreme vnction whiche commonly is called anoyllynge And yet the truthe is that they are bounde to gyue a great diligence therto them self and specially to admonyshe theym that be aboute the sycke persone that they may haue knowledge when nede shall require And therfore if any dye without that sacrament for lacke of suche good diligence of the curate surely it is in hym a great offence 2. ¶ Also it hath ben a great default in many places that the curates wyll not synge masse nor dirige for none of their paryshens at theyr buryals no more than they wyll do for straungers that dyed within the parysshe excepte they haue money for theyr labour for sythe they haue of theyr paryshens theyr tythes offrynges and dyuers other profytes and commodities as curates customably haue Charitie wolde that they shulde burye them especially that be householders and theyr chylderne with dirige and masse freely without takynge any thynge for it but to saye masse and dirige for straungers they be not bounde therto but of their charite But yet to bury all them frely that dye within the paryshe they are bounde of duetie to do it ¶ Also it is greatte trouble and vexation to the people in many places that the sacrament of confirmation is taken fro the propre curates and is gyuen only to byshoppes For therby the people in some places be many tymes put to greatte labours and expences in gyuynge attendaunce to the bysshoppes And also many chylderne be therby in some countreyes longe vnconfyrmed and sometyme dye without it where if the curates myght confyrme theym as they myght fyrste they shulde be confyrmed with lesse labour and be in moche more greater suertie to haue the sacrament then they be nowe And sythe byshoppes haue taken that auctoritie to them selfe and no greatter consideration apperynge why they shulde do so then there dothe It myght happely cause some symple men to esteme that there is not suche necessitie in that sacrament as there is in dede For they may happely thinke that if there were the byshops wolde not put the children in suche ieoperdie to be so longe without it as they be ofte by that occasion and no greatter cause to moue them to it then they thynke there is ¶ The prohybitinge also of bysshops to graunt pardons hath letted greatly the deuocyon to pardons and the takynge of money for herynge of confessions and specially at pardons hathe also done right great hurt For there is a sayeng the mo confessions the greatter profyt Wherby it is ment that the profyte in heryng confessions is moche regarded And that hath made many tymes ryght short confessions and also as light as hasty absolutions which perauenture hath made some vnware and vnlerned persons to haue the lesse regarde to be confessed 5. ¶ And why shuld the power of absolution that was gyuen by Christe to all priestes be generally taken from them in any case and specially from curates that be admytted to be sufficiēt to haue cure of soules and be cōmytted only to byshops or to theyr deputies which deputies percase be not many tymes so sufficient as the curates be fro whome it is takē so that it semeth that the power of pristes is restrayned in that behalfe by the lawe of man without cause resonable and wolde therfore be reformed 6. ¶ Also it wolde be playnly declared where the curate may prohibite his parishens to be houseled where not And surely it semeth not to stand with charitie that if a paryshener at the tyme of his houselyng lacke money to pay his duetie that he shuld be therfore prohibit of houselynge And sure it is that great grudges haue ensued in tymes past vpon suche matters A prieste if he wyl may go to masse though he be in deedly synne and no manne can prohibite hym but if the curate onely by coniecture thynke his parysshener in deedly synne he wyll prohibite him 7. ¶ Also curious buildynges of spirituall men and the apparel therof whiche sometyme be apparelled with vaine stories stereth more theym that beholdeth it to vanitie and to a worldly loue then to any mekenes or deuotion And though it be right conuenient that byshops and other spirituall rulers haue conuenient dwellyng places after their degree yet all wolde be ordered to the honour of god and to the good example of the people ¶ Also it diminysheth the deuocion of priestes greattely in many places that there haue ben so many chapplens and seruynge priestes For they that be vniuersally conuersant amonge laye people and be bounde to obserue worldely attendaunce as lay men are can neuer haue their minde so perfitly to prayer deuotion as they that be curates or be continually resident in churches For lyke as there is a mery prouerbe in places of courte that the very walles teache the lawe and that euerye busshe in the countrey teareth away a pece so it maye be saide that the very walles of the churche teache deuotion and that worldly company driueth it awaye ageyne And whenne they be in youthe brought vp in suche worldly company it wyll be harde for them in age to sette their mynde to prayer and contemplation And surely if lay menne wolde be contented for preseruynge of deuotion in priestes to forbeare the seruyce and familyaritee of theym more then they haue done in tyme past and wolde here masse and diuine seruice whenne they myghte conueniently at their parysshe churches at the leste on holydays and when they may here none wold supply it with prayer or some other good werkes they shulde more please almyghty god therby and more shewe them selfe to honour the sacrament
rulers and other vnder them haue taughte preched in tymes paste diuers thinges more specially for their owne syngular profite and honour then for the honour of god or welthe of the soules of the peple that yet they endeuour them selfe no more to ease the myndes of the people therin then they do For neyther do they make it appere to the people that they grudge therin without cause and so offende god therby ne yet refourme they not that that the people gruge at And nowe if any man wyll saye that good indiffereÌ„cie wolde that we shulde haue touched also defautes in the temporaltie more thenne we haue done to that I wyll saye thus that I am right farre deceyued but this be true that the worlde shall neuer come to a good peace and perfyte reformation tyll the spiritualtie eyther by their owne free wyll or els by a good diligent callinge on of the temporaltie be fyrste refourmed and that then they in charitie and in a pure loue to god and to the people putte to their handes to reforme suche thynges as they thynke to be mysused by temporall men whiche yf they do it is not to doubte but that they shall righte shortely brynge the matter to a good effecte For it is no lyttel thynge that spirituall men maye doo therin if they wyll and if they wyll in no wyse lay their handes to the matter I think verily that it wyll be harde to brynge the worlde to a good reformation but that it shall abyde styll out of order as it hath done in tyme paste ¶ Who is the higher iudge in suche corrections as be called spiritual corrections the kyng or the clergye The seconde Chapytre SAL If the partie in anye suite in the spiritual courte wyl appele the order of his appeale is appoynted by the statute made an .xxv. R. Hen. viii and the statute is that if he appele fro the archebyshoppe that he shall appele to the kynges maiestie in his chauncerye and that vpon euery suche appele a commission shall be directed to suche persons as the kynge shal name to determyne the cause without ferther appele And syth the kynge may appoynt commissioners to determyne the cause I holde it no great doubte but that the kynge hym selfe is the hyghe iudge vppon euery suche appeale BIZAN yea but my meanynge is in suche suytes where there is none appele taken but that the spirituall iuges gyue sentence ageynst the partie and appoynte him ê‘case to do vnreasonable penance whether he maye haue any remedye by the lawe of the realme SAL. What thynkest thou in that question BYZ. That he hath no remedy by the kinges lawe For if he obey not the sentence he shal be accursed And if he stande accursed .xl. dayes the kynge vpon the Certificat of the byshop is bouÌ„de of iustice to awarde a writte that is called a writ de excommunicato capiendo and thervppon shall he lye in prison tyll he haue aswel satisfied the churche of the contempte as of the wronge done to her For the statute of Circumspecre agatis is that corrections whiche pÌ„lates make for deedly synne as for fornicacion auoutrie suche other the spirituall iudge if he procede to the correction of the synne shall holde plee not withstandyng the kynges prohibition And by the statute of Sub qua forma yf bodyly penaunce be enioyned and the partie wyll freely redeme it for money he may doo it And so it semeth that the corrections of fornication auoutrie and suche other by the which terme suche other be vnderstande vserie simony yea and periury and sklaunder in some cases perteyne of very right to the prelates to correct And though they assigne vnreasonable penaunce yet I suppose there is no remedy but by appeale And yf the partie lese the aduaÌ„tage of his appele then he hath put hym selfe without remedy And ferthermore by the constitution ê“uynciall that is in the thyrde boke amonge the constitutions De immunitate ecclesie which begynneth Seculi principes It appereth that he that is in prison for that he is excommunicate oughte not to be delyuered tyll he haue made satisfaction as well to the churche as to the partie And so sythe the churche may assigne the satisfaction it semeth that the churche is the high iudge SA I perceyue thy conceyt wel but er that I answere the therin I shall shewe the my conceyte in a nother thynge that is to saye that as I suppose suche spirituall corrections as nowe be vsed for fornication auoutrie and suche other be not merely grounded vpon the lawe of god but by the law of man in this realme they ben done by the clergy by a custome of the realme except only the ê“ces of excoÌ„munication And if the kinges courte had vsed to haue holden ple also of fornication and auoutrie and such other the clergy could not of right haue compleyned of hit And I holde it no great doubte but that the parlyament myghte yet ordeyne that it shuld do so herafter But parauenture it was thought at the begynnynge of that custome that it was more ease for the people and lesse expences and parauenture more conueniente to haue suche smalle matters sued in the ordinariis courte then in the kynges courte and therfore it was then so suffered to be But if it shoulde happen to appere by experience that it were as good or better to the kynges subiectes to haue susue matters determined in his courtes as in the ordinaries It shoulde seme good to brynge suche corrections to the kynges courte For tho synnes may be corrected there as wel as in the spirituall courte For hit is here to be noted that although a man be enioyned in the spirituall court to do such compulsatorie penaunce as is there comonly vsed and he doth it yet he muste after that be confessed of the same offence take penaunce of his gostely father And so myght he do if he were fyrst corrected in the kinges court Neuertheles I speke not this to th entent that I wolde that suche suites shulde be broughte to the kynges courte but that hit maye appere that prelates holde plee therof by the custome of the realme and by the sufferaunce of the kynge and of his lawes and not by the iÌ„mediate auctoritie of the lawe of god BYSANCE If they may holde plee of suche thynges it is all to one effecte whether it be by the lawe of god or by the lawe of man SAL. Nay for if they haue it only by custome it may with a cause be taken fro theym and that maye happely cause them to take the better hede how they order theym selfe in hit And yf it were by the lawe of god then it might in no wyse be altered ¶ And as to the correction of heresie the kynge hath alwaye sene it doone in this realme excepte the tyme that the statute that was made in the seconde yere of kyng Henry the .iiii. concerning heresies stode in
in prison or not he maye well examyne the truthe of the matter For truth ruleth in conscience what soo euer the order of the lawe be and therfore if the appelle in an appele of morder be founde gyltie the iudge of his owne knowelege knewe that he is not gyltie he may not gyue iugemeÌ„t agaynste hym but must rather resygne his office BIS I agree well there but I put case that the appelle in thy case be founde gyltie by false verdite the iuge by examination of wytnesse and by confessioÌ„ of the same iury also come to perfyt knowlege that the appelle is not gilty he may neuer the les in that case geue iugement and is bounde to do it for he toke the examination against the order of the law therfore he must remoue that knowlege bicause he is com to it of his owne wronge ageinst the order of the lawe euen so it is in this case The king ne yet his chanceler neither ought not to haue newli exaiÌ„ed the mater seing that it was sufficieÌ„tly tried proued before in the spiritual court therfore they must remoue put away the conscience that they haue gotten by that vnlawfull examination and beware that they doo not attempte soo farre ageynste the lawe an other tyme. SAL. Though the iudge in the sayde case of appele dyd ageynst the lawe to examyn new witnes yet it is not like to this case For in that case of appele the verdite is of recorde in the same court and it is giuen by auctorite of the same lawe that he sitteth as iuge to iuge vpon it is also tried after the order of the same law so that vpon that matter ther is no ferther trial wherfore I agre wel that he ought not to haue takeÌ„ ther any newe examination but in this case the sentence is giuen in an other court and after another lawe than the chauncellour is sette to iudge vppon For he is sette to iudge after conscience and not only after the order of the lawe spirituall nor temporall but in fewe cases and also the proces of excommunication is to punishe synne and to maynteyne vertue but what punysshement of synne and mayntenaunce of vertue is it if the kynge kepe hym that is no offender in prysone And therfore I thynke the kynge or his chauncellour may well take a newe examination in the matter and do therafter BIS I fele thy conceyte well but yet surely yf suche examination be vsed hit wyll be thoughte by many that the spirituall iurisdiction is therby greatly confounded and that the kynge and his lawes do littel in fauour of it SALEM I se well thou styckest soore to the matter and therfore to ease thy mynd somwhat therin I wyl moue the of two thynges BIS What be they SA One is this if the custome were that whan the excommunicate is in prison vppon the wrytte of Excommunicato capiendo that he shoulde be kepte styll in prison tylle he haue satisfied the churche whether he be ryghtwisely excommunicate or not were this a lawefull custome BIS I thynke naye SAL. And this pretence that thou styckest so moche vpon that there shoulde be no examination of the matter is of the same effect The secoÌ„de is if the parlyamente dyd put clerely away the wrytte of Excommunicato capiendo and lefte the matter in suche case that the ordinaries shulde iustifie al excommunicates by the censures of the churche in the beste maner they coude without any helpe of the kynge or of his lawes shulde the parlyament therby do any wronge to the keys of the churche BY. I thynke nay for the power of the clergie concernynge suche excommunications shulde neuer the les stond styll in her full strength But yet it shoulde breake a good laudable custome of the realme that was fyrst begon in fauour of the clerge of the spiritual iurisdiction SAL. thou sayste euen truth and my meanyng is not that I wolde haue that custome broken but that it shulde appere that thoughe hit were broken that yet no maÌ„ had cause to complaine as thoughe the lybertie of the churche were therby brokin or the keis violate wherfore me thinketh it more expedient for the clergie to take this matter as it is that is to saye that the kynge and his lawes be as well contente to haue suche rebelles as haue deserued punishment yet wyl not obey the keys of the church correctio as they be but yet that the kynge his lawes shoulde therfore in any case be compelled whether they wolde or not to punishe an Innocente it is not resonable thus it shuld seme to be the more indiffereÌ„t way more accordynge with iustice that the mater be examined before the king that if it appere thervpon that the partie offended not that he be deliuerid out of prison that the ordryng of the excoÌ„munication be thervpon lefte to the conscience of the byshop theÌ„ to charge the kinges conscience or his chauncellours eyther with kepynge of hym in prison And then to that thou hast said before that if such excoÌ„munications be taken that it wyl be thought by many that the kyng his lawes do litel in fauour of the spiritual iurisdiction I pray the be iuge therin thy self whether it be moch or litel that the kyng doth whaÌ„ he only vpon the certificat of the bishop taketh the ê‘tie leyeth him in prison there kepith him til he either satisfieth the church or els if he complaine that he hath wronge examineth the mater he being in prison how be it I think that the kiÌ„g in such case may if he se cause let the ê‘tie to bayl haÌ„ging the examination though the shereffe by the reson of the statute of westmÌ„ i. may not do it And nowe to our first matter If the kynge wolde iudge vppon Simony and vsury thynkest thou that he shulde offende the keys BYZANCE I thynke soo for symonye and vsurye be prohibited by the lawe of god and it belongeth to the clergi to declare what is the lawe of god and what not SA Though symonie and vsury be prohibite by the law of god yet that proueth not that princis may not therfore hold ple therof for takyng away of an other mannes goodes and also periurye be prohibyte by the lawe of god and yet princes holde plee therof and thoughe Symonye and vsurye be prohibite by the lawe of god yet it is not declared by the lawe of god what is symonie and vsery and what not And it semeth that princis takyng to them spirituall men as theyr counsailours maye doo that well ynough And if it were ordered that for symonye that the kynges courte shulde holde plee I suppose it wolde doo moche good For hit is not vnlyke but that manye offende therin and yet I here but of lyttell correction in that behalfe And therfore thoughe the kynge iudged vppon symonie and vserye I suppose he offended not
then they doo nowe whan they here masses of theyr chappleyns at home ¶ Also it hath bene a great ouersighte as it semeth in the clergie that they haue made so strayte lawes of irregularite as they haue done For it is hard for any prieste to eschewe them all And thervppon it foloweth that whan they falle into suche irregularitie and can not by and by be dispensed with for there is none at hande that hathe that power then neuer the lesse bicause they shuld not be noted they yet syng masse as they dyd before And that bryngeth some priestes into suche a largenes of conscience that they be the bolder to do lykewyse in other thynges and so by contynuall custome therin can lerne to lyue quietly in an euyll conscience Wherfore it were better that irregularitie in some poyntes were clerely put away than to driue them in euery light poynt to seke for dispensations For many men thynke that such dispensations not only in that case but in many other also serue rather for gettynge of money than for increasynge of vertue 10. ¶ And there is such a lyke thyng in religion For they professe the olde rules whiche although there be also some dispensations very strayte to be kepte in these dayes bycause the people be not vniuersally so stronge now as they were at the makynge of the sayde rules And when they see the reules dayly broken afore theym as well in other as in them selfe without correction it bryngeth in to theym a quiete harte in an euyll conscience a boldenes to offende and fynally a custome in synne wherby folowe many euyll examples to the people and yet they that doo it wyl be called holy and perfite And sure it is that it were better to haue an easy rule well kept than an harde rule broken without correction 11. ¶ Also it is a thyng greatly abused that clerkes do clayme to haue as high power and as moche lybertie in theyr possessions goodes as lay men haue in theirs For the truth is that they may take of the goodes that they haue for their ministration but onely a reasonable sustentation for theym selfe and for a conuenient sustenaunce for their householde and the resydue they are bounde to distribute amonge the pore And in this poynte the lawe of the realme is ouermoche fauourable to spirituall men For it suffreth them to make theyr wylles and bequestes of theyr goodes how so euer they come to them by tythes oblacyons or otherwyse as lyberally as any laye manne maye And thoughe that be agaynste the canons yet the clergie of this realme perceyuynge howe fauourable the lawe of the realme is to theym in that poynte hath made a constitution prouinciall accordynge to the lawes of the realme that no man shall hynder or let the probation of the same And surely both the sayd lawes wold be reformed For they haue ben a right special cause as I suppose that hath made so many to gruge at the goodes possessions of the clergie as there hath done ¶ Also many priestes fynde defaulte that some prestes be in extreme necessitie and haue nothynge to releue them selfe with whiche is not as they thynke conuenient to be suffered in priestis but they regarde but lyttell the pouertie of some lay manne Our lorde was pore hym selfe and his disciples to whome priestes be successours were poore also and yet somme priestes wene that it is not conuenient for any of them to be in pouertie I beseche our lorde sende vs many that be ryche in vertue and pore in spirite and then the worldly pouerte shal be the more esely borne I haue red of some byshops that haue made suche ê“uision that no prest shuld go abeggyng within his dioces but I haue not red of any such prouision for lay men But if some prouision were made to releue the great multitude of poore men that be nowe in extreme necessite I trow fewe thinges were more necessary to be gone about And ouer that if any preste be in suche extreme pouertie as they speake of it is moste specially through the defaute of spirituall men for they haue diuised titles for priestes in suche maner that they be of none effecte in the lawes of the realme And the cause therof is for they aske not counsaylle therin of them that be lerned in the sayd lawes ne as it semeth wyll not obeye the kynges lawe in that behalfe but make them titles after the groundes of other lawes And therfore priestes many tymes were as good to be without theyr titles as to haue theym in suche maner as they haue nowe 13. ¶ Also if the moste honest and most substanciall curates and priestes in the countrey were examined what increace of vertue hath rysen by visitations and scenes as they haue bene of late vsed It wolde appere vppon that examination that lyttell or none hath folowed therby but that the clergye some lay men also appere there and pay certain dueties and then do after as they dyd before And that the moste lightest persons in all the precincte of the visitation by meanes of rewardes shal be suffred to coÌ„tinu as they were wont to do And syth the hole clergie haue submytted theym to the kynges grace It semeth that he hathe good auctoritie to examyne howe suche visitacyons be vsed and to sette theym in suche order that vertue therby maye hereafter be increased and vice repelled and putte awaye And I suppose verayly that his grace is bounde in conscience to loke specially vppon it 14. ¶ More ouer euen now of late syth the statute made in the .xxi. yere of the reygne of oure soueraygne lorde the kyng that nowe is ageynst pluralities and none resideÌ„ces is risen this policy that a priest that intendeth not to be resident or that intendeth to haue mo benefyces than the prouisyon of the statute waranteth hym to haue wyll labour to some lorde spirituall or temporall to be his chappleyne nothyng purposynge to do hym seruice and the lord lyke wise nothynge desyrynge his seruice and knowyng also the entent why he dothe it wyll accept hym to his chaplen and so wylfully defraude the statute Is this trowest thou my frende Byzance no offence in the lorde and in the chappleyne ¶ BIZAVNCE I thynke verily yes and that the offence is greatter in the chappleyne thenne in the lorde yf there be no cause reasonable why he dothe hit And thoughe hit be more offence in the chappleyne yet is hit no lyttelle offence in the lorde that so wylfullye breaketh the intent and prouision of so good a statute For the prouiso of the statute was made bicause it was thought reasonable that lordes spirituall and temporall shulde haue chappleynes to do them seruice but here no seruice is regarded And surely by suche meanes and other lyke some priestes haue many benefyces where an other good honest priest that is better worthy to haue a cure then he hath neuer one ¶ Also thoughe the people be
the keyes thoughe happely as the lawe of his realme is nowe he shulde offende his lawes BY. Well I wyl take a respyte to be auysed er that I shewe the my full mynde in this matter and I praye the lette me now fele thy conceyt yf a manne be accursed for that he wyl not obey a decre in a cause of matrimonie and he is in prisone for it vpon the writte De excommunicato capiendo and offereth a sufficient caucion to obeye the churche shall it be accepted SALEM yea as welle in that case as in any oother case and hit shall be valued after the substance of hym that is in prison And if he wyll yet when he is oute of prison disobey the decree and not marye wherby he forfaiteth his caucion than he may vpon a new information made to the kynge in his chancerie be taken agayne by a newe writte De excommunicato capiendo fourmed speciallye vpon the case and be kepte in prison tyl he obey the decree And so he may be in all cases where he is delyuered vpon a caucion and kepeth not his promise BYZANCE Well I am content in this matter but I pray the whether may the kynge in any case denye a writ of Excommunicato capiendo whan it is vppon the certificat of the byshoppe requyredde SALEM yea and that maye be proued thus It apperethe in the regestre that if the kynge at the certificat of the byshop haue awarded forth a writ de Excommunic ca. after the kyng before the partie is takē is enformed that the partye appealed before the sentence or that a prohibition was delyuered and not withstandynge the iudge proceded whervppon an attachement is hangynge before the kyng or elles it appereth that the plee perteyneth clerely to the kynges courte in al these cases the kynge shall graunte forthe a Supersedeas commandynge that the partie shal not be arrested and thervpon it foloweth that if no wrytte be forthe it may be denied whan it is asked and that if the partie be arested before the Supersedeas came that the kynge maye for the same causes delyuer hym oute of prison vpon a speciall wrytte de excommunicato deliberando BISANCE There is no writte de excommunicato liberando in the regestre but where the byshop certifieth the kynge that the parti hath satisfied the church SA All writtes that be grauntable by the law can not be in the regestre the specyall matters proue that he ought to be deliuered out of prison for the time and so a writte may be fourmed vppon the matter wel inough to delyuer hym howe be it he shall remayne yet accursed vnder such maner as he dyd before may be taken ageyne if nede be and that is in fauour of the spiritual iurisdiction For I trow therin is no tēporel lawe more fauorable to the spiritual iurisdictiō thē the lawes of this realme be yet if suche fauour be haply broken somtyme a defaute is founde therat by the clergie as thoughe the holle liberte of the clergie were broken therby where no lybertie is broken at all euen vpon suche a poynte was the sayd cōstitution Seculi principes made For the constitution in the begynning reciteth that whenne suche excommunicate persons be vpon the sygnification of prelates accordynge to the custome of Englande taken and put in prisone that then the prelates bycause they refuse to take a gage wherby the partye offreth to stande to the cōmaundmentis of the churche and to obey the lawe be commaunded to delyuer the partie oute of prison whiche as it is sayde there the prelates maye not nor ought not to do as thei say before due satisfactiō made and thervppon the sayde constytution sayth farther that soo lay men vsurpe the keyes of power and counnynge to the confoundynge of the iugement of the church where the truth is the churche hath gyuen no iudgement that the partye shal be commytted to prisone for it hath no power so to do but onelye to excommunicate the party for the sinne and thervppon the kyng accordyng to his lawes hath delyuered the party out of prison that he imprisoned him selfe bycause the bysshoppe hath refused a resonable caucion And yet it foloweth in the said constitution Wherfore we ordeyne that the excommunicate persones so taken in our prouince and so goinge out of prisone agaynste the lyberties and customes of the churche of Englande shall be to theyr more confusion shewed excommunicate with ringynge of belles and lyghtyng of candelles c. And so that that in the begynnynge of the sayde constitution is called the custome of Englande as it is in dede and is the very cōmon lawe of the realme that a persone excōmunicate shall be layde in prysone by the kyng vpon the certificat of the byshop is after called the libertie and custome of the churche of Englande wherby the constitution meneth that he that goth so out of prisone for that the byshoppe refuseth his caucion and they that let hym out also breken the libertie of the clergie of Englande and vsurpeth the keys of power and cunninge where in dede neyther theyr libertie ne keys be touched but the custome of the realme wherby they clayme their libertie is obserued And if they coud proue the custome of the realme wherby they claim that libertie broken yet they ought not cōplain as though their libertie were only brokē For it is no more their libertie then it is the libertie of al the people of Englāde For al the people of Englāde make the churche of Englāde it hurteth al the people and not only the clergie to haue any one laudable custome of the realme broken And yet the meanynge of that constitution is that that going out of prison hurteth the clergie only And suche singularite hath done moche hurte and wyll do as longe as it contynueth ¶ And farthermore the cause why the said cōstitutiō sayth that prelatis may not nor ought not deliuer the imprisoned by the kinges writte De cautione admittenda the writte is that thoughe as the kynge is informed the partie hath offered to the byshop a sufficient gage that he shall obeye the commandement of the churche after the fourme of the lawe and that the bishoppe refuseth to take hit c. The kynge by that terme Lawe meneth the lawe of his realme whiche is that the partie excommenged shall make amendis to the churche for the synne onely and no satisfaction to the partie For that perteyneth to the kynges lawe And the lawe of the churche is that satisfaction shal be made also to the partie And for mayntenaunce of that satisfaction to be had by auctoritie of the spirituall lawe the sayde Constitution was made to putte the partie in feare to goo out of prisone by the kynges writte And all this riseth vpon the variance of the lawes wherby greatte grudges expenses yea and moche vnquietnes haue ensued and wyl do as longe as it and other thynges lyke
church for their absolution And this article is also holden for lawe in this realme to this daye For in case that the iuge spirituall wyl not assoyle the parti without restitution where by the lawes of the realme he ought to do it the kynge may vppon a contempte commaunde hym to doo it And if he wyll nedely procede to compell restitution a prohibition lyth And that is the very cause why an excoÌ„mengement certified before the kynges iustice by the pope was neuer alowed in this realm bycause the kynge myght not write to Rome to make the absolution in case that by his lawes the ê‘tie ought to haue it ¶ Also an nother article is that the churche shall not defende goodes that be forfayte ¶ Also that plees of det belonge to the kingis court though an othe be made ¶ Also that the sonne of a bonde man shal not be made prest without liceÌ„ce of the lorde These three laste articles be holdeÌ„ for law in this realm to this day And yet it is saide that saint Thomas resisted theym ¶ And as to the thyrde artycle of the said thre laste articles the lawe is this as I take it that if the sonne of a bond man be made priest without the lordes licence that yet he is a bondman as he was before and the lorde may compell him to do him seruice as to a priest belongeth before any other And though the truth were that saint Thomas resisted these articles al that he coulde and that he is yet neuertheles canonised as a saint that proueth nothyng those articles to be vnlaufull For yf he in his conscieÌ„ce thought them vnlaufull that suffiseth to hym as I haue said before ¶ And more ouer if all the clergie of christendome wolde prohibite the saide articles or any article of the law of this realme that is not against the law of god nor the law of reson that prohibitioÌ„ shuld not be of effect in this realme And ther be dyuers other artycles in bokes legendis wherin he resisted the lawe of the realme without cause if it be as the saide bokes doo testifie whiche I remytte to the iudgement of theym that wyll take the peyne to rede them And ouer that in the bokes of some pardoners that haue gone about for saynt Thomas be conteyned many and dyuers friuolous and vntrue thynges for procurynge of money as it is of this article that ne had saynt Thomas ben no man shuld haue sette his chylde to scole nor haue eaten in his house pygge gose nor capon but he shulde haue payed a fyne to the kynge And dyuers other thynges be thus imagyned wherby the people be greattely illuded and deceyued and saynt Thomas right highly displesed For he loueth no vntruth and yet they haue bene suffered to passe ouer frome yere to yere without correction doste thou not thynke my frende Bysaunce that suche thynges wolde be reformed BYZAN Forsoth I thinke it right expedient that rulers and gouernours loke well vpon suche matters But yet somme men wyll parauenture thynke that it is not conuenient for lay men to speake of suche highe thynges as pertayne to great clerkes and hygh lerned men And I haue harde some men say my selfe that before laye men spake of suche high matters the worlde was in good peace and quietnes and that sith they medled therwith the worlde was neuer well but ful of trouble diuision and stryfe And therfore it wyll perauenture be better for the and me to let these matters passe tyll our lorde shall put the rulers in mynde to loke vpon them and se theim refourmed then to speke any more of them and lyttyll effecte or none to folowe of our spekyng SAL. The more that the rulers here of the gruges that be amonge the people the more wyll they regarde theym and wyll the rather sette to theyr assistaunce to helpe to auoyde them sythe they be as well to the high displeasure of almighty god as to the great hurte of the common welth of all the people And I thynke verilye that a common welth shal neuer ryse as longe as these gruges continue And therfore I trust our spekyng shal not be clerely in vain sithe some causis of the said grudges diuisions may happly be put in mynde therby whiche elles shoulde not haue ben remembrid And ther be many presidentes by the which it appereth that laye menne haue reasonned in ryghte hight matters Fyrste when the statute of .xxv. of Edward the third that is called De aduocationibus was made was it not as thou supposest argued reasoned whether the parliament might set remedy in suche cases where the pope made collatioÌ„s or reseruatioÌ„s to any benefices within this realm And who resoned that matter as thou thinkest but the lordes temporal the coÌ„mons verily none For the lordes spirituall durst not therin resist the pope And no more they durst when the questioÌ„ was asked in the parlyament Anno .xvi. Rich. ii whether the pope myghte translate a byshop in this realme without the kynges assent whervnto the bishops made a protestation that it was not theyr intente to saye but that the pope myghte make suche translacions by the lawes of the churche but they sayde it was agaynst the kyng and his crowne if he dyd it And the comons sayd that they wolde sticke with the kinges right in it vnto the deth And the lordes temporal saide that they wolde be with him with al their power And it t s not to thynke that these aunsweres were made sodenly without great reasonyng before And who shoulde reasone hit but the lordes temporalle and the commons and specially they that were lerned in the lawes of the realme ¶ Also sithe it is recyted in the writ De excommunicato deliberando that the king at the peticion of the bishop coÌ„maÌ„ded the shyreff to iustifie suche a certein person by his body as a maÌ„ excoÌ„municate coÌ„teÌ„pning the keis of the church til he satisfied the church c. with diuers other thynges coÌ„monly vsed to be put into the sayde writte whiche be here omytted are not they then that be lerned in the lawes of the realme specially they that shall be of the kynges counsell boundeÌ„ to aduertise the king what is a contemnynge of the keyes of the churche and what not so that he shulde not in such case do any thynge agaynst the keys of the churche I trowe no man wyl say but they be For els the kynge shulde happely be enforced to gyue credence to spiritual men in maters concernyng their iurisdiction ageynst his owne It is not therfore conuenient for any man to say that lay men ought not to reson the power of the churche For if it dimynishe the right of the crowne waste the substaunce of the realme prohibite the laboure or lyuynge of the people they may well speake of it And also ar bounde to speake of it specially they that be lerned in the lawes of the realme
effecte For if a man before that statute had bene delyuered by the ordinaries to the laye courte for heresye he myght not haue bene putte in execution withoute a wrytte fro the kynge but with a wrytte fro the kyng after the olde custome of the realme he myghte then laufully haue bene put in execution But yet as I take hit the kyng was not then vpon euery request made for such a wryt bounde forthwith to graunte it but that he myghte take a respite to se the proces thervpon to graunte the wrytte or not to graunt it as he sawe to stonde with iustyce but as it semeth there were some that were not content that the execution shulde be delayed in suche case tyll the kynges wrytte came but that he so delyuered shoulde forthwith be put in execution and after the said statute of secundo of Henry the fourth was made by what conueyance I can not fully telle but it is not vnlyke but that the clergy laboured it wherby it was enacted that in suche case the party so deliuered shulde be put in execution no mencion made that any suche wrytte shulde be sued for to the kyng by whiche statute the parties so delyuered were sometyme put in execution without any suche wryt and sometyme labour was made not withstandynge the sayde statute to haue suche a wrytte to saue all thynges vpright and that the kynge shoulde take no displeasure But that was not done for necessitie but of policie For the statute was in the lawe sufficient warrāte withoute wrytte Vnder this maner diuers haue ben put in execution for heresie whervpon haue rysen great murmours and grudges amonge the people whan somme haue affirmed that dyuers so putte in execution for heresy were no heritikes Wherfore the sayde statute of Hen. the fourth was repelled by the statute in the .xxv. yere of kynge Henry the .viii. as reason and conscience wolde it shoulde and thervpon it is ordeyned that if he that is laufullye conuicte for herysy refuse to abiure or after abiuration fall in relaps and be duly accused or presented and conuicte that then he shal be commytted to the laye power to be burned c. The kynges writte De heretico comburendo fyrste had and opteyned for the same And so the olde lawe is therin reuyued And as me semeth it appereth euidētly that in that execution the kynge is iugge For it can not be done without his writ whiche neuertheles he is not alwaye bounde to graunte when it is asked but as vpon the sight of the proces and sentence he shall thinke the sentence to stande with reason and conscience For the statute is not that the kynge shall graunte the writte but that the partie shal be burned the kingis writ De heretico comburendo fyrste had and opteyned for the same ¶ And therfore if the thinge that he is cōuicted for be no heresie as it may be in some cases after the clergie bicause it is ageynste the cannons and yet be none in dede bycause tho cannons be ageynst the custome of the realme and that in tēporall thynges then may the kynge denye the writte And then as to that treatise that thou spekest of called Circumspecte agatis I littel regarde it For many men say it is no statute but that it hath been so named to be by the prelates And so it is sayde in the nyntene yere of kinge Edwarde the thyrde that it was And hit is the more lyke to be soo bycause the same Treatyse in maner worde for worde is putte in a constitution prouincial as a thyng taken out of the kynges aunsweres and in all the statute bokes that go abrode among the lerners of the lawes of this realme it appereth not that that treatyse shoulde be taken oute of the kynges aunsweres as to the reders wylle appere Neuertheles if it can be found amonge the kynges recordes that it is a statute I wylle take no exception to it ne yet to Sub qua forma nor Articuli cleri For as me semeth it maketh no greatte matter to the question that we be in hande with nowe that is to saye whether be hygher iuge in spiritual corections after the olde groundes of the lawe the kynge or the clergye whether they be statutes or not For if a man be excommunicate and so continewe .xl. days the custome is that he shal vpon the Certifycat of the byshop made therof to the kynge be taken and put in prison as thou hast sayd before But then thou knowest well that if the partye so beinge in prisone make surmys to the kynge that he hathe offered sufficiente caucion or gage to satisfie the churche and they wyll not receyue it that then the kynge shal commaunde the bishop that he takynge an able caucyon shal se the partie deliuerd out of prison and if he obey not the writte than the kynge may delyuer the partie oute of prison And ouer that if he wyll he maye as men thinke put the bishop to aunswere to the contempte For disobeyinge his wrytte and then shall the matter be determined in the kinges chauncerie and there it shall comme in tryall whether the gage were sufficiente or not BYZ. But whether shall that sufficiencye be estemed as thou thynkest accordynge to the penance assigned by the byshop or accordynge to the offence SAL. It maye be that there is no penaunce yet geuen or parauenture he is accursed vppon a contempte for not apperance But if the penance be gyuen he wyll not do it wherfore he is accursed and thervpon he is in prison vpon the wryt De excommunicato capiendo and thervpon he offereth a gage I thynke that there the sufficiencye of the gage shall be taken accordynge to the offence for the penaunce maye be vnreasonable BIZAN And yf the kynge take vppon hym to trye the greatnes or lyttelnesse of the offence by his lawes than he taketh vpon hym the keys of the churche SALEM Naye for that may be valued as welle by the kynges lawes as it may by the bysshop yf the partye wyll redeme his penaunce for money But if the kynge wold for the refusing of his Caution take vpon him to make the absolution hym selfe then myghte hit be sayde he medled with the keyes But sythe he dothe no more but compelle the bysshoppe to make absolucyon accordynge to his lawes It can not be sayde that he medleth with the keys BY. The proces of a contempte that thou spekest of hath not ben sene And ouer that the prelates compleyne that if the byshop refuse to take the caucion that thenne an other wrytte shall go to the shyreffe to delyuer the partie out of prisone as thou haste sayde before and in that wrytte they say there is no mencyon made that eyther the churche or the partie shall be satisfyed And that is the princypalle cause why the sayde Constitution Seculi principes was made SALEM Thoughe the proces of a contempte hath not ben sene in the same
selfe case yet the proces of a contempte hathe benne sene in lyke cases for disobeyinge the kynges wryttes and that that is all vppon one lyke reason shall be taken of one lyke lawe And to that other point that thou hast moued If the kynge vpon the refusell of the gage delyuer the ê‘tie out of prison without satisfienge the partie or the chyrche eyther I praye the shewe me thy mynde what wronge hath the churche therby BIS It hath wronge for this cause For the lawe of the churche is that if a man be accursed he shall neuer be assoylled but that he shall fyrste make an othe that he shall obey the commaundement of hym that shall assoyle hym and that before he be assoyled he shall make amendis to the parties greued if he be able and if he be not able than he shall make an othe that he shall do it whan he is able And by that wrytte De caucione admittenda he is delyuered out of prison and neyther the churche ne the partie satisfied SA And though he be so yet neither of theÌ„ hath wronge For he is yet accursed as he was before and may er he be assoyled make suche othe as shall be resonable but that othe that thou haste remembred before is clerely agaynste the lawes of the realme But yf the kynge in that case pretended that when the partie were so delyuered out of pryson that he shulde also be discharged of the execution then had the clergie some colour to complaine but nowe haue they none at all And as to makyng amendes to the partie It standeth not with the custome of the realme that the clergie shulde haue power to make any amendes to the partie but only that they in certayne cases maye gyue penaunce for the synne And therfore for beatyng of a clerke the amendes for the trespas shall be made in the kynges court and for the layenge of violente handes on the clerke amendes shall be made in the spiritual courte but yet they may assigne no peine pecuniarie onles the partie frely wyl redeme his bodily penauÌ„ce with money without compulsion And therfore there is one thynge in the sayd Treatise called Circumspecte agatis that maketh me the more to doute whether it be a statute or not BYZ. What is that SAL. It is recited there that for fornication auoutrie and suche other there is sometyme assigned by prelates bodily peyne and somtyme pecuniarie peyne I knowe not one case where prelates for correction of synne may assigne pecuniarie peyne And therfore I thynke verily the parlyamente wolde neuer haue made that recytalle And thus it appereth sufficientely that by that deliuerye out of prison after the refusinge of the said caution the clergie hath no cause to say that the churche or partie haue any wronge BYZAN Welle admytte hit be therin as thou sayste yet it can nat be sayde but that the custome of the realme is broken by it SALEM Why what callest thou the custome of the realme in such case BIZAN That the kynge shall kepe in prysone suche as be excommunicate by the prelates tyll they haue satisfied the churche as well of the contempt as of the wronge And that the custome is suche it appereth pleinly by the sayde writ De excoÌ„mun cap. For by that writ the kyng coÌ„mandeth the shireffe to iustifie hym that is excoÌ„municate by the body tyll he haue satisfied the churche of the contempt wronge as is saide before And whaÌ„ he is deliuered without suche satisfaction the writ is not obserued ne yet the custome of the realme SA The writte is as thou sayste but that is put into the writ rather to put the partie in a fere to enduce hym to submyt him the rather to his ordinarie than it is to shew the plainnes of the lawe or of the custome of the realme and that appereth by the said writ de Caucione admitten For by that writ the king noteth vnto the bishop that if he refuse to take a resonable caucion of the ê‘tie that he wyl in that case do that to hym perteyneth to do And so it appereth that the kyng hath some other thing to do in the matter then to kepe the partie styl in prison And surely if the custome were precisely that the kynge shulde kepe the partie in prison tyll he had satisfied the church it were far vnresonable For it may be that the ordinarie iudged hit for symonye vsurye or periurye or suche other that was none shoulde the kynge then be bounde to kepe the partie stylle in prisone and to do penaunce where he is not giltie it semeth not reasonable BYZ. If the kynge iudge what is symony and vsury and what not dothe he not take vpon hym to iudge vppon thinges mere spiritual and so confundeth the keyes of the churche SAL. Thou muste always consyder that as I haue sayde before the lettynge oute of prisone of one that is excoÌ„municate hurteth not the keys for that he shal be accursed styll when he is out of prison as he was fyrste and all that the kyng dothe therin is to see whether he may with conscience kepe the party any lenger in prison or not And I trowe thou wylt agree that yf the kynge be so instructed that he thinketh in his conscience that it is no symony or vsuri that the partie lyeth fore that he maye not with conscience kepe hym any lenger in prison And I praye the let me knowe what thou thynkest therin BYZ. Verily thou haste brought me in doute of the matter and therfore I praye the shewe me what is the veray lawe and custome of the realme concernynge a man that is so in prisone vpon a writte de excommunicato capiendo as the thinketh SAL. I take the custome and the lawe of the realme to be this that he shall not be delyuered out of prisone oneles the ordinarye certifye the kynge that the imprisoned hath satisfied the churche or elles that the partie offer a sufficiente Caucion to satisfie the churche and the ordinarie refuseth hit or elles that the kynge or his Chaunceler be so throughly enformed in the matter that it appereth vnto them that the partie maye not with iustice and conscience be kepte any lenger in prison As if the sentence were gyuen for a thynge mere temporall or that so playne and so sufficient witnesse be broughte in that it moueth the kynge and his chaunceler to beleue that the fyrste wytnesse were vntrue or that the examinour entered the sayinge of the wytnesse otherwyse then the witnes testified BYZ. And if there be suche witnes yet their sayeng shall not be beleued ne the kynge may not put in trial agayn that is ones tried after the order of the spiritual lawe SA To auoyde the excoÌ„ication I agre well he maye not put the fyrste proufe in triall agayne as thou sayest but to order the kynges conscience to know whether he maye ryghtwysely kepe the partye any lenger