provided to bee worne the Surplice may not be worne For the better manifestation whereof it is necessary that we set downe the wordes of the Statute of the parish booke and of the booke of the second of K. Edw. the sixth vnto which booke of king Edward for the vse of ornaments the Ministers be referred both by the parish booke statute of 1. Eliza. c. 2. the wordes of which statute are these Provided alwayes and be it enacted That such ornamentes of the Church and of the Ministers shall be retayned and be in vse as was in the church of England by authoritie of Parliament in the second yeare of the raigne of King Edward the 6. vntill other order shal be therein taken by authoritie of the Queenes Matestie with the advise of her Commissioners appointed and authorised vnder the great seale of England for causes Ecclesiasticall or of the Metropolitane of this Realme Thus farre the statute the wordes of the parish booke follow It is to be noted that the Minister at the time of the Communion and other times in his ministration shall vse such ornamentes in the Church as were in vse by authoritie of Parliament in the second yeare of King Edw. the sixth according to the act of Parliament in that case enacted and provided The wordes of which booke of the second of King Edward are these Vpon the day and at the time appointed for the ministration of the holy Communion the Priest that shall execute the holy ministerie shall put vpon him the vesture appointed for that ministration that is to say A white Albe playne with a vestiment or cope Afterward it is said thus Vpon Wensdayes and Fridayes the English Letany shal be said or song c. And though there he none to communicate with the Priest yet those dayes after the Let any ended the Priest shall put vpon him a playne Albe or Surplice with a Cope and say all things at the Altar c. From all which places it is plaine First that no Minister at any time vpon Wensdayes and Fridayes after the Letany ended was bound simplie to weare a surplice at the Altare for it was in his choyse to put vpon him a playne Albe or Surplice with a Cope Secondly that no Priest vpon the day and at the time appointed for the Ministration of the holy communion might put vpon him a Surplice but only a white Albe playne with a vestiment or Cope Thirdly that no Minister vpon Wensdayes and Fridayes when hee read the Letany did weare or was bound to weare an Albe or Surplice and Cope For it had bene in vayne and a thing ridiculouse for the booke to have willed the Minister after the Letany ended to put vpon him those ornamentes if in the time of reading the Letany hee had had them vpon his backe Fourthly that no minister at or in any of the times services aforesaid is bound to put vpō him a Surplice vnlesse therewithall he weare a Cope For the vse of ornamentes ought to be according to the act of Parliament And therefore where no Cope there by the act no Surplice where no Altar to goo vnto after the Letany ended there no Surplice to be put on after the Letany where a Communion with a white Albe plaine a vestiment or Cope there a cōmunion without a Surplice There is yet one other speciall observation before touched though for an other purpose worthy to be reiterated in this place against the vse of the Surplice at the communion reading the Letany and saying prayers at the Altar And that is this Namely for that as well the Statute 1. Eliza. as the parish booke hath revived and commaunded the vse of those ornamentes according to the Act of Parliament 2. Edw. 6. which were repealed and forbidden by the booke of the 5. and 6. of King Edward the sixth It is to be noted saith the booke of 5. and 6. of King Edw. 6. That the Minister at the time of the communion and all other times in his ministration shall vse neither Albe vestiment nor Cope but being an Archbishop or Bishop he shall have and weare a Rochet and being a Priest or Deacon he shall have and weare a Surplice only And here it is to be noted sayeth the parish booke that the Minister at the time of the communion and at all other tymes in his ministration shall vse such ornamentes in the church as were in vse by Authoritie of Parliament in the 2. yeare of the reigne of King Edw. the 6. according to the Act of Parliament in that case made and provided which were as the booke of K. Edw. saith an Albe with a vestiment or Cope at the communion and an Albe or Surplice with a Cope vpon Wensdayes and Fridayes after the Letany ended But by the Provinciall constitutions ratified and confirmed by Act of Parliament the parishioners are enioyned at their costes and charges to provide a Surplice and in vayne were this charge layde vpon them if so be the Minister were not bound by the law to weare it It is true and can not be denied that all parishioners are enioyned and that every Masse-priest is bound by the Provincials the one sorte to provide the other to weare a Surplice for and at the celebration of the Masse and for and in the vse of other popish services The reason of the vse of which Surplice by the popish Glosers and Provincials is yeelded to be this That the Priest must be clothed with white to signifie his innocencie and puritie and also ob reverentiam Salvatoris nostri totius caelestis curiae quam sacramento altaris consiciendo confecto non est dubium interesse But how doeth it follow either from the provincall or reason of the provinciall that a Minister of the Gospell is bound by the provinciall to weare a Surplice at the ministration of the word and Sacraments of the Gospell when the doctrine and service of the Gospell is contrarie and repugnant to the service and doctrine of the Masse And when by the statute the Provinciall is not to be vsed and executed but as it was vsed and executed before the making of the statute which was Anno 25. of King Henry the eight at what time the service of the Masse called the Sacrament of the Altar was only in request A Minister therefore of the Gospell by the Provinciall is no more bound to weare a surplice then by the Provincials other lawes of the Realme he is bound to say a Masse For the Provinciall appointeth a surplice to bee worne at the Masse and other idolatrous services all which services and which Masse as being blasphemous to the sacrifice of our Saviour Christ once made vpon the crosse repugnant to the holy worship of God is abrogated by the lawes of the Realme Now then it were to bee wished that all states were given to vnderstand by what equitie law or good conscience
must beare his owne burthen and that every man ought by his owne innocencie to purge himselfe bee other mens offences never so great or seeme his owne in his owne eyes never so small But we have therefore balanced the toleration of scandalous and vnlearned ministers with the molestation of learned and godly Ministers to the end your Lordshippes vnderstanding the number of sinnes and impieties every where daily abounding by the multitude of the former and the scarcitie of godlines in every place to be seene by the paâ—citie of the later your Lordshippes by your wisedomes might foresee and by your authorities prevent that pestilent contagion of ignorance of Gods revealed will which by this preposterous sufferance of the one violent progresse against the other is ready to infect the whole Church and by consequence to lay wast the common weale as a pray to the popish faction For is there not by this meâ—nes a way prepared and made ready for the greatest part of the people to revolt from the Gospell to poperie and so from their naturall and Christian Lord and King to a forein antichristian Pope For let the booke of God be once sealed vp from the people in English as in time of poperie it was sealed vp vnto our fathers in Latine and let the people by example of the wicked scandalous life of Ministers be drawne along in their owne naturall corruption who will not be ready to assist every Iesuite Seminarie wheÌ„ he shal preach poperie the very mistris and mother of all corruption rebellion The wearing of a whit Surplice and the feyned making of an ayrie crosse in Baptisme how litle the popish faction by the same wil be quieted and kept in awe the late outragious starting out in Wales and their madd combynings in other places may be a good caveat for your Lordshippes to consider whether their driftes bee not rather to enterprise a more publike disturbance then to continew them selves within the listes of that obedience wherevnto they were constreyned in the raigne of our late Soveraigne of blessed memorie Queene Elizabeth Your Lordships therefore could not but performe a most acceptable service first vnto God and his Church secondly vnto the King his Realme if your Lordships would be pleased to bee petitioners vnto his Maiestie that by his Regale and Supreame power there might bee an healing of the former errour and vncharitablenes of the Diocesans and other ordinaries For it can not be denied but that by their manner of proceedings they haue sinned against God in this that they have aequaled nay rather in some things preferred their owne Canons Decrees before the commaundement of God And therfore it cannot be but that they have herein as much as in them lay provoked the wrath of God against the King and his whole Realme if by the Kings zeale this their so grosse a sinne be not reformed My Lordes we are well advised what we speake herein before your Lordships for we speake nothing but what we prove thus Whosoever for not wearing a Surplice or for not crossing in Baptisme suspendeth or depriveth a Preaching Minister otherwise vnreproveable for life and doctrine and not suspendeth nor depriveth but tolerateth an vnpreaching minister scandalous in life ignorant of doctrine the same person preferreth in this thing the observation of his owne Canon and Decree before the commandement of God But some Diocesans and ordinaries for not wearing a surplice for not making a crosse in Baptisme do suspend and deprive preaching Ministers otherwise vnreprovable for life and doctrine and yet doe neither suspend nor deprive but tolerate vnpreaching ministers scandalous in life and ignorant of doctrine Therefore some Diocesans and Ordinaries in this thing preferre the observation of their owne canons and decrees before the commandement of God We could heape argument vpon argument vnanswerable to this purpose but we should then passe the boundes of an epistle and become over tedious vnto your Lordshippes Only therefore we most humbly beseech your Lordships in the behalfe of the faithful Ministers of Christ with patience to heare thus much viz. that for their dissenting in matter of ceremonie from the Diocesans they ought no more by the Diocesans to be traduced for factious sectaries or seditious scismatickes then the Diocesans them selves ought to be traduced for such maner persons by their owne dissenting from the Cardinals and Popes of Rome For there being as litle difference betweene a sect and a scisme as there is betwene a besome a broome there being also as smal oddes betweene faction and sedition as betweene an edifice and a building it followeth the Ministers dissenting from the Diocesans of England or the same Diocesans dissenting from the Cardinalls and Popes of Rome if neither of them be seditious scismatickes that neither of them can be factious sectaries When Paule was accused by Tertullus that he was found a pestilent fellow and a moover of sedition among all the Iewes thorough all the world the Apostle answered that they neither found him in the temple disputing with any man neither making vproare among the people neither in the Synagogues nor in the Citie Art not thou saith the chief Captaine speaking to Paule the Egyptian who before these dayes raysed a sedition and led out into the wildernes foure thousand men that were murtherers By which places it appeareth that a seditious or factious person by the holy scriptures is adiudged to be such a kind of person as who boasting himselfe rayseth leadeth or draweth away much people after him and vnto whom much people resort and obey yea and by the civile law not every one that omitteth some duetie commanded but such a one as gathereth people together or stirreth theÌ„ to make a tumult and shall drawe him selfe and his followers to some place of safetie to defende him selfe and them against an evident commandement and publike discipline only such a man I say by the civile lawe is to be punished as a seditious factious person For these kind of meÌ„ only are properly said seorsum ire partes facere Seditio then being quasi seorsum itio and faction quasi partium factio yea a sect also being sic dicta quia fit quasi sectio vel divisio and a scisme being illicita divisio per inobedientiam ab vnitate Ecclesiae facta vel illicita diâ—cessio eorum inter quos vnitas esse debet it followeth that whosoever by inobedience or tumultuouslie goeth not a part or maketh not a part from the vnitie of the Church but either in doing or suffering quietly submitteth him self to the lawes that he can neither be factious sectarie nor seditious scismaticke And indeed my Lords from hence is it that the Diocesans and whole Clergie of England ever since they made a separation from the vnitie of the Church of Rome have falslie bene named and reputed sectaries scismatickes as though they
or shall wilfully and obstinately standing in the same vse any other rite ceremonie order forme or maner c. By which Letter of the Statute it seemeth that the Minister is none otherwise punishable before the Kings Iustices vnlesse wilfully and obstinately standing in the same hee shall vse some other rite ceremonie order forme or maner of celebrating the Lords Supper then is mencioned c. And vpon this clause as hath bene heretofore generally conceaved certaine inditements exactly framed even by some Iustices of assises sitting vpon the bench against certaine Ministers for the not observation of the booke before other of the Queenes Iustices haue ben traversed and avoyded as being in this point erroneous and not agreeable to the intendement of the statute Yea and it hath bene the opinion of some great Lawyers who have bene since Iudges that it is almost impossible to frame an indightement against a Minister for the breach of the first parte of the former clause of the statute which is not traversable and avoydable Fift Quaere If a Minister bound to say common prayer in any parish church shall not refuse to vse but indeed shall vse the said common prayers in such order and forme as they bee mencioned in the said booke whether he be punishable before the Kings Iustices in maner and forme before expressed if he refuse to say any part chapter or section of the said booke which part chapter of section conteyneth no prayer For howsoever the whole booke be authorised yet the peyne seemeth in this case to have bene inflicted only for the omission of prayer and not for the omission of every part chapter or section of the booke Besides these questions and their reasons there bee other reasons to induce vs to be of opinion that a Minister before the Kings Iustices is not punishable in maner and forme above expressed for his refusing to vse all and every prayer and prayers rite and rites ceremonie and ceremonies section and sections in such order and forme as they bee mencioned and set forth in the said booke In the preface to the booke it is confessed that nothing can almost so plainly be set forth but that doubts may arise in the vse and practising of the same and therefore for the appeasing of all such diversiâ—ie and for the resolution of all doubts concerning the maner how to vnderstand doe and execute the things conteyned in the booke it is provided that the parties that so doubt or diversly take any thing shalresort to the Bishop of the Diocesse who by his discretion shall take order for the quieting and appeasing of the same so that the same order be not contrarie to any thing contained in the said booke And in the two last clauses of the preface it is said that all Priestes and Deacons shall be bound to say daylie the morning evening prayer either privately or openly except they be lett by preaching studying of Divinitie or by some other vrgent cause And that the Curate that ministreth in any parish Church or Chappell being at home and not otherwise reasonably lett shall say the same in the parish Church or Chappell where hee ministreth From which places of the preface being part of the booke it is plainly to be gathered that the intent and meaning of the Parliament was not to have the Ministers to be punished before the Kings Iustices in maner and forme before expressed for refusing to vse all and singuler the prayers rites ceremonies and sections in such order forme as they be mencioned in the said booke if either vpon the Ministers doubts rysing in the vse and practise of these things the Bishop by his discretion did not take order for the quieting and appeasing of the same or if the Minister by preaching the word studying of Divinitie or by some other vrgent or reasonable cause were let so to doe And if no Minister in any of the cases before meÌ„cioned be punishable by the Kings Iustices in maner and forme aboue expressed then it is manifest by the provisoes following that the Archbishops and Bishops have no power and authoritie by vertue of this act to inquire and punish the default of any minister in these cases by admonition excommunication sequestration or deprivation And this not onely by the letter of the last provisoe ordeyned for corroboration of the Archbishops Bishopps and other Ordinaries power and authoritie but also by the provisoe next and immediately following that Provisoe is a matter most cleere and vndeniable Provided alwayes and be it enasted c. That all and singular Archbishops and Bishops c. shall have full power and authoritie by vertue of this Act aswell to inquire in their Visitation Synodes c. to take accusations and informations of all and every the thinges above mentioned done committed or perpetrated within the limites of their Jurisdictions c. And to punish the same by admonition excommunication sequestration or deprivation c. If then a Minister shall not doe commit or perpetrate any of the things above mencioned and so not be punishable by the Kings Iustices it followeth that the same minister is not punishable by the Ordinarie And this also by the next Provisoe is more playne by which it is enacted That What soever person offending in the premises shall for his offence first receyne punishment of the Orainarie shall not for the same offence est soones be convicted before the lustices And likewise receyving for the said first offence punishment by the Iustices he shall not for the same offence est soones receyve punishment of the Ordinarle No offence then punishable before the Iustices no offence punishable by the Ordinarie From all which premises it seemeth that the Queene the Lords and Commons never intended to impose such an exact and precise observation of the booke of common prayer vpon the Ministers as that in no place nor at any tyme they should omitt the reading saying or vsing of a chapter a prayer a section a rite or ceremonie vpon peyne of imprisonment c. before the Queenes Iustices or vppon peyne of deprivation before the ordinary And therefore the intent of the Parliament not beeing so much to binde the Minister to such an exact and precise observation as to seclude all orders and formes of prayers ministration of Sacramentes vse of rites and ceremonies not mentioned and set forth in the saide booke it seemeth very vnreasonable and much derogatorie to the authoritie of that Parliament that Archbishoppes and Bishoppes who were all secluded from that Parliament should by their extentions constructions and interpretations as it were invert the playne meaning of the Parliament and that ea qua sunt destinata in vnum sinem should by them bee converted to an other end But now if the Archbishops and Bishops at the abandoning of the Popes power out of the Realme have as we confesse they had an ordinarie iurisdiction by the statutes of the Realme reserved to their
of this act Now by what other words then by these of this provisoe could the Parliament more fully and clearly have expressed their mind that the same by the tenor and effect of this provisoe intended for ever wholy to seclude all Papall and foraine canons from being vsed and executed within this Realme For at the petition and submission of the clergie the Parliament having first enacted that neither they nor any of them from thencefoorth should presume to attempt alleadge clayme or put in vre any constitutions o◠ordinances Provincionall or Synodalles or any other Canons And againe at the petition and submission of the Clergie the same Parliament having committed to the view search examination and iudgement of the King and 32. persons such Canons constitutions and ordinances or the said Canons constitutions and ordinances provinciall and Synodall which as thertofore had bene made by the Clergie of this Realme And lastlie by this proviso the same Parliament having enacted that such Canons provinciall constitutions provinciall ordinances provinciall Synodalls Provinciall for the word Provinciall by the whole tenor and effect of this Act can not in this place but have reference to everie of these wordes shall still be vsed and executed c. till such tyme as they be viewed searched or otherwise ordered and determined by the said two thirtie persons c. Seeing these things I say be thus First submitted then afterwards committed and lastly provided and not one word sillable or lotter ayming at the continuance vse keeping or obedience of the popish canon law it can not bee averred by any vnlesse he be too too conceited opiniative that the Canon law or any part thereof made by the Pope without the Realme may lawfully at this day be attempted alleadged claymed or put in vre within the Realme by any Iudge Ecclesiasticall what soever yea and thus much also is confirmed by a statute 37. H. 8. c. 17. Howsoever therefore the Kings of England deryving their Ecclesiasticall Lawes from others being proved approved and allowed hereby and with a generall consent are rightly and aptly called the Kings Ecclesiasticall lawes of Englande in like maner as those lawes which the Normans borrowed from England were called the lawes of Normandie and as those lawes which the Romans fetching from Athens being allowed and approved by that state were called Ius ciuile Romanorum howsoever I say this be true nevertheles herevpon it will not follow that those Ecclesiasticall lawes thus borrowed and derived from others may then any more rightly and aptly be called the Kings Ecclesiasticall lawes of Englande when once by and with a generall consent in Parliament they have bene disproved and disallowed Yea and when also they have bene vtterly adnulled and commanded never to be put in execution within the Realme of England From whence it seemeth to follow that whatsoever subiect shall take vpon him full and plenarie power to deliver iustice in any cause to any the Kinges subiects or to punish any crime and offence within the Kings Dominions by vertue of those lawes once by so absolute high an authoritie disanulled that the same person denyeth the Parliament to have full power to allow and disalow lawes in all causes to all the Kinges subiects and consequently that the high Court of Parliament is not a compleat Court for the whole and intyre body of the Realme Wherefore albeit we graunt as the trueth of the Kings law is vnto the Archbishops Bishops other Ordinaries that lawfully they may proceede to inquire in their visitations and Synodes and els where to take accusations and informations of all and every thing and things above mencioned done committed and perpetrated within the limites of their iurisdictions and authoritie and to punish the same by admonition suspension sequestration or deptivation though thus much had never bene provided by the statute nevertheles we desire to be resolved whether any minister ought to bee punished by these or any other censures and processe before the ordinarie for any offence mencioned in this act if for the same offence the same Minister by vertue of this act be not punishable before the Kings Iustices And therefore for example sake put this case viz. That a Minister for the not crossing of a childe vpon the forehead after baptisme is fully administred be indighted before some of the kings Iustices and afterward vpon a traverse before some other of the kings Iustices the same Minister be found to have ministred the same sacrament of Baptisme in such order and forme as in the booke is prescribed Notwithstanding the omission of this ceremonie after baptisme and that vpon such a traverse the indightment before the said second Iustices be found to be vnsufficient in law and the Minister by the same Iustices be adiudged not to be in danger of the penaltie of imprisonment c. because his such not crossing is no offence against the law we demand we say in this case whether the same Minister by the Bishops of the Diocesse may be suspended or deprived from his ministerie or from his benefice for the same his not crossing yea or no. Considerations against the deprivation of a Minister for the not vse of a Surplice in divine service IN the whole body of the statute there is not one syllable or letter frō the which any semblance of reason can be deduced that any Minister of the church for refusing to vse or for the not vsing of any ornament appointed by the statute or by the book to bee in vse should be punished with the peyne of deprivatiō For what soever punishment a Minister for the breach of the Statute may sustayne by the kings Iustices the same is only to be imposed for such offences as are specified before the last provisoe of the statute Ornamentes therfore of the church provided to be reteyned and to be in vse being not cōteyned in those premises or things mencioned before the second provisoe concerning the Archbishops and Bishops authoritie and for refusing whereof a Minister by the premises is punishable it followeth there being no punishmēt for refusing the vse of ornaments in the last provisoe that the not vse of ornamentes is not punishable before the kings Iustices And if there be no punishment appointed to be inflicted before the kings Iustices for the refusing to vse any ornament thē much lesse is there any punishment to be inflicted for the refusall of the vse of a Surplice For the Surplice is so farre from being commanded to be worne as an ornament in every service of the church as the same is not so much as once particularly mencioned either in the parish booke or in the statute Nay by the generall wordes both of the statute and the booke the Surplice is wholy secluded from being appointed to be an ornament of it selfe in some part of the service of the Church For if with the same in some part of the service there be not a Cope
grounded vpon the said statute bookes or Provincials sundry grave learned and godly Pastors and other Ministers for sundry yeares passed have bene deprived suspended or excommunicated from their benefices dignities promotions and ministeries for not vsing the surplice If the Archbishops Bishops and other ordinaries have heretofore proceeded lawfully in this case by any other right then statute lawe it were greatly to be wished a thing tending every way to their honor credite and reputation that the same their Iustice were made publikely knowne to the end all maner persons and states might rest them selves fully satisfied and well perswaded of the integritie of such their proceedings as wherof they now stand in doubt For our partes we acknowledge that the Queenes Highnes had authoritie by the statute with the advise of her Commissioners c. or Metropolitane to take other order for ornamentes But wee never yet vnderstood that any other order was taken accordingly and especiallie in any such sorte as that the Archbishops Bishops other Ordinaries might warrant their sentences of deprivation to be lawfull against the Ministers which refuse to vse the Surplice By the Advertisements wherevpon as it seemeth they did principally rely and by authoritie whereof they did chiefly proceed it is apparant that neither the letter nor intendement of the statute for the alteration of ornamentes was observed And that therefore the commaundement of wearing a Surplice in steed of a white Albe playne by the advertissementes was not duely made For though by her Highnes letters it doth appeare that she was desirous as the preface to the advertisemēts importeth to have advise from the Metropolitane cōmissioners that she might take order nevertheles that her Highnes by her authority with their advise did take order alter the ornamēts this I say doth no where appeare no not by the advertisements them selves Howsoever then the Metropolitane vpon the Queenes mandative letters that some orders might be taken had conference and communication and at the last by assent and consent of the ecclesiasticall commissioners did think such orders as were specified in the advertisements meete and convenient to be vsed and followed neverthelesse all this proveth not that these orders were taken by her Maiesties Authoritie For the Metropolitane and Commissioners might thinke agree and subscribe that the advertisementes were meete and convenient and yet might these advertisements be never of any valew as wherevnto her Highnes authoritie was never yeelded But be it graunted that the Surplice by the Advertisements or other canons hath bene duely authorized yet herevpon it can not bee concluded that an ordinary by his ordinarie Iurisdiction hath power to deprive a Minister from his benefice for not vsing a Surplice vbi non sertur in contra facientes aliqua poena constitutio est imperfecta modicum prodesse poterit quoad contra facientes there being thē no peine mencioned in the advertisementes to bee imposed vpon a Minister for the not vse of a Surplice how should a Minister for the not vse of a Surplice suffer the losse of his benefice which is one of the greatest peynes Herevnto happily it wil be answered that vbi certa poena statuta est non debet Iudex ab ea recedere vbi vero non est statuta tunc est imponenda ad arbitrium Iudicantis And further that respectu poenae infligendae proper contemptum Iudicis non reperitur provisio regulariter à lege facta ideo Judex potest arbitrio suo poenam imponere Touching which answeres it may brieflie be replyed that the peyne spoken of in the civil law is generally vnderstoode of a pecuniarie peyne to be assessed and applied to the silke or more specially it may be vnderstood that among many corporall peynes the Iudge arbitrarily may choose which shall seeme to him most modicinable Now these kinde of peynes it is manifest that neither of them by the ordinarie Iurisdiction ecclesiasticall in the church of England can be imposed for contempt And as for that which to the same effect may bee alleadged out of the forein canonistes or forein canon law thus standeth the case The whole plott frame of the building of the canon law as before hath bene proved is cleane ruinated and wasted From whence it followeth that all the posts sommers walles plates rafters and roofe of that pallace with all the yron leaden and wooden implementes and vtensilles thereof be all likewise rotten and naught else but drosse canker And so from the Nullitie thereof it is to be inferred that an ordinary can not defend or practise his ordinarie Iurisdiction by that law against any of the Kings subiectes For all strange and forein law is both a strange power and a forein traytor to the Kings crowne and for that cause can not be pleaded in any of the kinges ecclesiasticall courtes without being in danger of loosing her head Howsoever then this rule in the romish consistories by the Romish law be true that an Ordinarie for inobedience or contempt may impose an arbitrary peyne where a statute or constitution hath appointed no peyne yet because this rule is an irregular enimy to the regiment of the kings Crowne it seemeth that the kings subiect is wronged whensoever an ecclesiasticall ordinary for contempt shal impose arbitrarily any peyne for the which peyne he hath not expresse warrant from the kings ecclesiasticall law Besides if the Romish canon law were the Kings ecclesiasticall law yet doth not the former exception prove that a Parson or Vicare may be deprived from his benefice by the ordinaries iurisdiction for the not vse of a surplice only the said exceptiō affordeth thus much viz. that if an ordinarie iudicially and canonically as they call it according to the sanctions not of the English but of the Romish church have admonished a Minister to weare a surplice the exception I say affordeth in this case thus much that his ordinary for contempt may impose an arbitrary peyne if so be nether by common right nor by constitutiue law there be an ordinarie peyne imposed But now so it is that this case falleth not out to be within the compasse of the peyne of deprivation for not wearing a surplice For it is contempt only and not the not wearing of a surplice that arbitrarily may bee punished in this case Why then though an ordinary be not able by the Kings Ecclesiasticall lawes to drawe in a Ministers deprivation principally and by the head for not wearing a surplice yet it seemeth that he may drawe in the same consequently as it were by the tayle namely by chardging him with wilfull periury or obstinat contempt for the which causes he may iustly be deprived Nay soft good Sir your conclusion is without premisses For who ever graunted that the Romish canon lawe was the Kings ecclesiasticall law howsoever then from part of mine answere made to the exception of contempt you
as he was perswaded grounded vpon the holy commandement of the most high God that he durst not for feare of wounding his owne conscience and displeasing God to weare the surplice in any part of Divine worship For if the request of an earthly king superior to an Archb. be a reasonable excuse to save a BB. from contempt against an Archb. How much more ought the authoritie and precept of an heavenly king be a iust and reasonable impediment to save a minister from contempt against a Bishops admonitiō Vnlesse then a Bishop will avow and be able out of holy writ to iustifie that a Ministers conscience especially a Ministers conscience who walketh as Zakarias did in all the commandements and ordinances of the Lord without reproofe can not be any iust or reasonable excuse or impediment why he ought not or may not or will not in Divine worship weare a surplice being thervnto admonished by his ordinary vnles I say the Bishop out of holy writ be able fully to prove that such a Ministers conscience is no iust or reasonable cause to stay him from wearing a surplice in Divine worship in this case I say that even by the Romish canon law it self there can no contempt be charged vpon such a Minister for not obeying his ordinaries first second third admonitions the reasons whereof even out of the same canon law have bene alleadged before in the first parte of these cōsiderations But to leave the foraine canon law and all the rules thereof as being no branches of the Ecclesiasticall lawes of England let it be granted that before the statute of 25. H. 8. c. 19. some canon or constitution Synodall or Provinciall had bene made or since have bene made by the Clergie of the Realme in their cōvocation assembled by the Kings writ that a Parson or Vicare for periurie or contempt ecclesiasticall should bee deprived of his benefice neverthelesse it seemeth that the same is a voide canon and a void constitution Because it is contrary or repugnant to the lawes and customes of the Realme By which lawes and customes no free man of the Realme can be dispossessed of his franck tenement for contempt or periury in any of the kings temporall Courts All Parsons and Vicars then canonically instituted inducted being not subiects at this day to any forain power but being freemen of the Realme in as large and ample maner as any Layickes the Kings other subiects be it seemeth that a Parson Vicare by the lawes and customes of the Realme being a Freehoulder should for none other cause loose his Freehould then for the which like cause a Layicke may loose his Yea and because no Layicke by the laws customes of the Realme may bee put from his Freehould for contempt no though the same cōtempt be committed against the kings Proclamation or any decree made in his high Courte of Chancerie by so much the more vnreasonable it seemeth to be that a Parson or Vicare for contempt against his ordinaries admonition should bee deprived from his benefice by how much a contempt against the Kings commaundement is more heinous then is a contempt against the ordinaries admonition You mistake the cases as it seemeth you vnderstand not the law The Freehold of a layick and the Freehold of an ecclesiasticall person be not of one nature The former belongeth vnto him by a title invested in his person but the latter apperteyneth vnto a Church-man in the right of his Church If then the Churchman be displaced from his Church it followeth by a necessary cōsequence that he must likewise be discharged from his freehold For he being in the eye of the law dead vnto his Church can no more enioy the freehold which he held in the right of his Church then can a dead Layick any longer holde a Franktenement in right of his person And for your better satisfaction herein I would have you to consider that the like course of Iustice is kept and ministred against certeine officers in the common weale which officers so soone as for any iust cause they shall be put frō their offices doe withall and forthwith loose such their freeholdes as iointly with their offices and in regard of their offices they held The Maister of the Rolles and Warden of the Fleete having their offices graunted for terme of life though other of them by the same graunt be seised of a freehold the one of the house called the Rolles the other of the house called the Fleete nevertheles if the first bee put from his Mastership and the second from his Wardenship neither can the one nor the other by the law and iustice of the Realme reteyne either of those houses as his Freehold For as the houses were iointly with their offices in respect of their offices granted So their offices being once taken from thē they must withal by necessary consequence forgo those their houses w ch for the time they held as their freeholds Well if this be all that may gaynesay our position then be not our cases mistaken neither yet have we so ignorantly vrged applied the law and free customes of the Realme as you would beare vs in hande For though we grant whatsoever you have excepted to be true yet can not the same be a barre against our pleading For wee have hetherto pleaded no more in effect but thus viz. that a Parson or Vicar during his ministeriall function being in the eye of the law no dead but a living person and a free man of the Realme ought no more for a contempt vnto his Ordinaries admonition by any law of he Realme bee dispossessed from the freehold which in right of his function he enioyeth then can a Layicke for contempt vnto the Kings commandement be disseised of his And what if the Freeholdes of a Layick of an ecclesiastical person be as you say they be diversly possessed the one by right of church the other by right of person what doeth this I say impugne our saying that no Freeholder for cōtempt of the Kings cōmandment may be punished with losse of his freehold whē the great Charter of England telleth vs that a freemā shall not be amerced for a small fault but after the quantity of the fault And for a great fault after the maner therof saving to him his contenement or freehold If then vnto every freemā punishable by the law though his fault be great his Contenement or Freehold ought to be reserved it seemeth much more reasonable to follow that no Churchman being a freeman of the Realme may for contempt be punished with losse of his Contenement or Freehold And that you may consider against our next conference more deeply of this matter let me put this case vnto you viz. That a Churchman and a temporall person both freemen of the Realme for one and the selfe same contempt against the king were punishable by the great Lordes in the starre chamber
or in any other Court by other of the Kings Iustices would our lawes freecustomes of the Realme think you iustifie that the spirituall person enioyning still his spiritual function might in this case be mulcted with the losse of his benefice and yet the teÌ„poral person not to be punishable by the losse of his freehold The examples produced by you relieve no whit at all your case nay rather they stand on our side and make good our part For how long soever the Maister of the Rolles and Warden of the Fleete doe enioy their offices for so long time by your owne collection they ought to enioy their Freeholdes annexed to their offices yea and you assume in effect that they may not lawfully for contempt or any other cause be disseised of their freeholds so long as they be possessed of their offices Now then if from the identity of reason you would conclude that a Parson or Vicare for contempt lawfully deposed from his ministeriall function should in like maner lawfully loose his freehold annexed to his office as the Maister of the Rolles and Warden of the Fleete put from their offices should loose theirs we would not much have gainsaid your assertion For we hold it vnreasonable that a Parson or Vicar deposed from his ministeriall function should enioy that freehold or maintenance which is provided for him that must succeed in his ministerial charge But then your assertion would make nothing against vs. For so you must prove that your officers for contempt only may lawfully be put from their freeholds annexed to their offices and yet notwithstanding remaine the same officers still And then indeed froÌ„ some parity or semblance of reason you might have inferred that a Parson or Vicare for coÌ„tempt deprived of his free hold annexed to his function might notwithstanding such coÌ„tempt enioy his ministeriall function still But to dispute after this sort were idlely to dispute not to dispute ad idem For how doth this follow The Kings officer if for contempt he be displaced from his office can not withall but be displaced from his freehold which ioyntly with his office and in regard of his office he possessed Therfore a Parson or Vicare for contempt may lawfully be deprived from his benefice or freehold annexed to his ministeriall function and yet notwithstanding enioy his ministeriall function still And this is the maine point generall case for the most part of all the Ministers which at this day for contempt stand deprived For among all the sentences pronounced for contempt there is scarce one to be fouÌ„d which deposeth a Parson or Vicare from his ministerial office but onlie which depriveth him from his Church Parsonadge or Vicaradge Whereby the vnreasonablenes of certeine ordinaries in their processe of deprivatioÌ„s become so much the more vnreasonable by how much more vnreasonable it seemeth to be that any publicke officer should lawfully be continued in his publicke office and yet not be suffered to enioy any publick meanes to mainteine the same his office And thus much have we replied vnto your answere made vnto our pleadings that by the lawes and freecustomes of the Realme a Parson or Vicar being a freeman of the Realme may not for coÌ„tempt vnto his ordinaries admonitioÌ„ be deprived from his freehold if so be you grant that he may enioy his ministerial function still As touching the lawes of the church it hath ben already sufficiently demonstrated that there is then no contempt at all committed against an admonition wheÌ„ the partie admonished can alleadge any iust or reasonable cause of his not yeelding to his admonisher And if no contempt in such case be made then no deprivatioÌ„ from a benefice or deposition from the ministerie in such case ought to follow Considerations against subscription to the booke of the forme and maner of making and consecrating Bishops Priests and Deacons WHat the reason or cause should be that subscription vnto this booke of consecration ordination of Bishops Priests and Deacons hath bene of lâ—te yeares so hotly and egerly pursued by the Lords of the Clergie is a misterie perhaps not of many of the laytie well vnderstood And how soever vnder colour of the maintenance of obedience to the statute of the Realme whereby this booke is confirmed the same subscription may seeme to be pressed nevertheles if the maine drift and reason of this pressure were well boulted out it is to be feared that not only the vnlawful supremacie of an Archbishop is sought to be advaÌ„ced above the lawfull supremacie of our Soverayne Lord King Iames but also that the Synodals Canons and Constitutions made by the Clergie in their convocation are intended if not to be preferred above yet at leastwise to be made equall to the common law and statutes of the Realme By the ancient lawes and customes of the Realme one parcell of the Kings iurisdiction and imperiall Crowne hath evermore consisted in graunting ecclesiasticall iurisdiction vnto Archbishops Bishops and other Prelats For the maintenance of wich imperiall iurisdiction and power against the vsurped supremacie of the Bishop of Rome divers statutes not introductorie of new law but declaratorie of the old in the time of King Henry the eight King Edward the sixth and of our late most Noble Queene deceased have bene made and enacted Yea and in a book entituled The Institution of a Christian man composed by Thomas Archbishop of Canterburie Edward Archbishop of Yorke all the Bishops divers Archdeacons Prelates of the Realme that then were dedicated also by them to King Henry the eight it is confessed and acknowledged that the nomination presentation of the Bishopricks apperteyned vnto the kings of this Realme And that it was and â—halbe lawfull to Kinges and Princes and their Successors with consent of their Parliaments to revoke and call againe into their owne handes or otherwise to restreine all the power and iurisdiction which was given and assigned vnto Priests Bishops by the lycence consent sufferance and authoritie of the same Kings and Princes and not by authoritie of God and his Gospell whensoever they shall have grounds and causes so to doe as shal be necessarie wholesome and expedient for the Realmes the repressing of vice the increase of Christian faith and religion Ever since which time vntill of late yeares the late Archbishops of Canterbury with the counsel of his colledge of Bishops altered that his opinion which some times in his answere made to the admonition to the Parliament he held it was generally and publickely maintained that the state power and iurisdiction of Provinciall and Diocesan Bishops in England stood not by any Divine right but meerly and altogether by humaine policie and ordinance alone And that therefore according to the first and best opinion and iudgment of the said Archbishops Bishops c. the same their iurisdiction might be taken away and altered at the will and pleasure of the kings of England when
had without cause devided them selves from the vnitie of the true church of Christ. Whereas in trueth the Church of Rome by hir Apostasie having cut hir selfe from the vnitie and vniversalitie of the doctrine and discipline of the true and mother church of Ierusalem is hir selfe become the most notable and prime sectarist and scismatick of all the world And of whose schismes our Diocesans so farre as they partake with hir can not be but guiltie Vnles then the Diocesans can approve them selves touching their vse of ceremonies and Diocesan governement to stand in vnitie with the true new Ierusalem in these dayes repaired departed from the old scismes and sectes of Rome we assure our selves that they shall never bee able to prove those ministers which stand not in vnitie either of iudgement or practise with them but be conscionably and so lawfully divided in these things from them for such division to be sectaries or scismatickes For it must be an vnlawful discession by inobedience from the vnitie of the first and mother church of Ierusalem and not a lawfull departure vpon conscienc efroÌ„ the vnitie of the daughterâ—church of England that maketh a sect or scisme For otherwise ought not all other Churches stande in vnitie of ceremonies and governement with the church of England or vnlawfully dividing them selves from the church of England must they not become scismatickes sectaries And how then are not almost all the christian and reformed churches in the world not onely almost but altogether scismatickes and heretickes For have they not divided them selves from all those rites ceremonies and ornaments yea from that maner of Diocesan governement which are yet reteyned in the Church of England My Lords I confesse that brevitie and perspicuitie are two commendable graces of the toung and of the penn such as in all mens speeches and writings are much to be affected But yet how long or tedious soever already I have bene I most humbly beseech your Honorable Lordshippes to licence me to passe on one steppe further especially the matter being of such importance as the same may not well bee passed over with silence It hath pleased Sir Edward Cooke Knight his Maixsesties Attornie Generall with all candor and charitie to confirme and satisfie by demoÌ„strative profes all such as were not instructed in these points following First that an ecclesiastical Iudge may punish such Parsons Vicars c. as shall deprave or not observe the booke of common prayer by admonition excommunication sequestration or deprivation other censures and processe in like forme as heretofore hath beene vsed in like cases by the Queenes Ecclesiasticall lawes though the act of primo Eliza had never insflicted any punishment for depraving or not observing the same Secondly seeing the Authoritie of an Ecclesiasticall Iudge is to proceed and to give sentence in ecclesiasticall causes according to the ecclesiasticall law that the Iudges of the common law ought to give faith credit to their sentence and to allow it to be done according to the ecclesiasticall law when the iudge ecclesiasticall hath given sentence in a case ecclesiasticall vpon his proceedings by force of that law For saith he cuilibet in sua arte perito est credendum Now then as these two pointes bee plainly taught and demonstrated vnto vs so also even by the same demonstrative reasons it is cleere that there must be first a depraving or not observing of the booke secondly that every sentence given by an Ecclesiasticall Iudge in a case of depraving or not observing of that booke must be given according to the ecclesiasticall law and vpon his proceedings by force of that lawe in like forme c. From whence it followeth that all sentences touching depravation or not observatioÌ„ of the booke be either voyd sentences by reason of nullitie or no good sentences by reason of iniquitie and iniustice if by the Iudges Ecclesiasticall vpon their proceedings the same sentences have not bene given by force and according to the same lawes in like forme as heretofore hath bene vsed in like cases by the Kings Ecclesiasticall Lawes or if the factes charged vpon the Ministers by the iudges ecclesiasticall by the letter intendement of the law be no depravations or not observations of the same booke And therefore to the end all questions touching these two poyntes might hereafter vtterly cease and bee quite buried your Lordshipps could not performe a more acceptable service to the King the Church and Realme then by an humble importuning his Maiestie to have it explaned by parliament both who by the letter and true meaning of the Statute bee depravers or not observers of the booke and also what lawes Ecclesiasticall may and of right ought to be called indeed and trueth the Kings Ecclesiastical Lawes For vnlesse aswell touching these pointes as touching the former pointes of Sir Edward Cooks it be throughly decided what is the binding and assured law how should the Ministers or others content and satisfie themselves with an vndoubted trueth And that this maner of controversie about the invaliditie of sentences of deprivation given by ecclesiasticall Iudges is not a controversie now first moved but that the same hath bene long since handled and discussed is a matter yet remayning I doubt not vpon publike record For whereas sentences were given in the tyme of King Edward the sixt for the depriving of Steven Gardener from the Bishoprick of Wincester Bonner from the Bishopricke of London Heath from the Bishoprick of Worcester Day from the Bishopricke of Chester Tunstall from the Bishopricke of Durham Vessay from the Bishopricke of Exeter wherein many grave and learned commissioners were imployed as the Archbishop Cranmer Ridlie Bishop of London Goodrick Bishop of Elie Sir William Peeter and Sir Thomas Smith the Kings Secretaries Sir Iames Hales one of the Iudges of the Law Maister Gosnell Maister Goodrick Maister Lisley Maister Stamford men notably learned in the common lawes of this Realme Mai. Leveson and Mai. Oliver Doctors of the Civill Law nevertheles the same sentences were in the tyme of Queene Mary revoked and disannulled without Perliament within the space as myne Authour sayth of three dayes by vertue of other Commissioners for faultes found in the processes viz. that the former Commissioners had proceeded ex officio without authoritie contrary to the Kings Ecclesiastical Law sometimes quod iuris ordo non fuerit servatus c. sometimes that the Interrogatories were ministred to divers persons without knowledge of the defendants c. sometimes that some of the witnesses were examined privately without oath sometimes that their exceptions and appellations were not admitted but their persons committed to prison pendente appellatione c. And therefore most honorable Lords it is to be considered if the like or greater and more notorious defaultes and enormities bee to bee found in any sentence of deprivation given ex officio by a Diocesan governour at this day whether the same sentence