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
more prone and be soner moued to go on pylgremages to bye belles or vestementes or to gyue money for trentals makynge of chauntries kepynge of obites maynteynynge processions and suche other outward dedes wherby some worldely recreation or worldely laude and prayse or som good familiar chere and worldly thanke maye folowe then they be to releue pore folkes that haue nede wherby moste commonly neyther worldly prayse ne other worldly coÌ„moditie foloweth specially if it be secretly hyd in the bosome of the poore man as it oughte to be yet do not prechers encourage the people to releue their pore neyghbours that haue nede as they ought to do but suffre them to lye styll in suche outward dedes as though all were wel when it is ryght farre amys The nature of man is moche inclyned to be lauded and praysed and therfore the people wolde be continually instructed that such laude diminisheth gretly the rewarde that they shulde haue of god for theyr good dedes And they shoulde be instructed also that what good dede so euer they do they oughte to trust more in the grace and goodnes of god then in the dede howe great so euer it be Howe be it in whose default it is that it hath not ben so in late tyme paste I wyll not speke of at this time but commytte it to other but through whose default so euer it hath bene yf it coulde yet be refourmed and broughte into due course it were right expedient and nothynge more then it were I red ones a narration that there was a pore sycke man that lay bedred and had nothynge to succour hym selfe with all whervpon a neyghbour of his seynge his extreme necessitie moued with pitie appoynted one of his seruantes to see hym haue meate and drynke at certayne houres as nede required wherby the poore man was greatly releued a longe season So it hapned that on a tyme the seruaunt that was wonte to bryng hym meate had busynes so that he myght not come at the houre accustomed Wherfore the poore man was very angry bothe with the mayster and with the seruant sayenge they had no pitie on theyr poore neyghboure and that if they were in like case as he was they wold be lothe to be so serued them selfe and prayed our lorde that or that they dyed they myghte feele the peyne that he felte with those wordes the seruant came with meate And yet the passion of the man was so greatte that he coulde not forbeare but that he spake lyke wordes to the seruaunt Then the seruant was angrye and sayde that he sawe well that his maister and he both had loste al their coste and labour and so not contented with the pore man departed and tolde his mayster all the matter and that he thought it were wel done that he shoulde lette hym alone tyll he coulde mekely yelde hym thankes for his good dede The master answered and sayd I do not that I doo for any thanke that I loke for of hym that I gyue it to and sythe he gyueth vs no thankes for it our rewarde shall be the more of god And so he caused his seruaunt to doo as he hadde done before ¶ But yet though this manne toke it thus charitably it is verye lyke that mooste other men wolde in suche case haue withdrawen their good dede And surely suche chances wyll fall among if men shulde set their myndes moche to releue poore men As if a man lent money to a poore man at his nede and at the daye he asketh his money hit myght happe that yf he asked it twyse that some poore man wolde saye that he was very hasty in the askynge hauynge no nede to it with suche other vnsittyng wordes And wolde not this happely discourage some man to lende money to other poore men in their necessitie I trowe yes and yet it shulde not be soo Therfore suche demeanour wold be moche reproued in poore men And the ryche men wolde be also counsayled not to withdrawe their good dedes after their power for suche demeanour whiche in dede increaseth theyr rewarde greattely before god And yf preachers dyd encourage the people to suffre suche thynges al that they coude and yet some men wolde be the more slacke to helpe other poore men for suche demeanour howe wyll it be then thynkest thou if men be nothynge encouraged nor putte in mynde of suche sufferaunce but be comforted as welle by secrete counsell in confession as by preachynge to gyue money for sowles inpurgatorie or in suche other maner as before apperethe as thoughe that shulde suffyse vnto them wyl not then the Charitie to theyr neyghbours be lyghtly forgotten though it be vndoutedly the beste It is no doubte but it wyll And well I wote that in the time of that that is nowe called the olde catholycal preachyng the Charite to our neyghbours is nigh forgoten the abusions concernyng ê“dons pilgrimages purgatorie pompous buryals tythes offerynges and suche other haue be meruaylously multiplyed and increased and yet I haue harde but of very fewe in comparison that haue loked to the reformation of it our lorde amende it when his wyll shall be Amen 16. ¶ Also many prechers in tyme past haue tourned a great parte of the tale to the mayntenaunce of the lybertie of the church to the honour of preesthod to feare the censures of the churche though they be gyuen withoute cause and to obey al lawes made by the churche and to doo as priestes doo teache and not as they doo suffyseth to laye menne and suche other lyke that the people haue myslyked greately And whan religious men haue preched they haue moche perswaded suche thynges as haue ben for their syngular profite and commoditie so moche that it hathe rather diminisshed the deuotion of the people then increased it And therfore I am farre deceyued but that the most parte of all the defautes and discordes that be nowe in the temporaltie haue rysen through the defaut of the spiritualtie But yet I meane not that al such discordes be rysen by the defaute of spirituall menne that be nowe lyuynge For vndoubtedly they were begonne before theyr tyme by theyr predecessours but yet my meanynge is that the spirituall menne that nowe be are bounde before any other to helpe to refourme suche thynges al that they can And I truste that there be many dispoposed so to do if they had helpe 17. ¶ Also it is a greatte ouersyghte that priestes accompte a defaute in one prieste to sownde to the rebuke of an other prieste bycause they be all of one order And that yet they go not about to reforme them that so offende And so it is lykewise of religious menne and they gruge more in their hartis ageinst hym that maketh an euyl report of one that is of the same degree that they be of though it be trewe than they do agaynste theym that make an euyll report of an other that is not of the same degree
departed is in Helle onles it be proued by scripture that it is so as it is of Cayme Iudas and some other more stronger he offendeth that wyll opinatiuely saye that he whome the churche hath canonised is in helle But though it be agreed that it is an offence to say that he that the churche hath canonised for a saynt is no saynt yet why it shuld be herisi to say he is no saint sith it may be true as he saith and as the said glose affirmeth that it may be I se no reson For they them self that haue canonised him knowe not ne can not know assuredly that he that is so canonised is in heuen but that they haue a good truste that he is so For the wytnesse maye deceyue them as is said before And accordyng to the same effecte it is sayde Extra de senten excommunicationis a nobis secundo that the iugement of god is so knytte to the truthe that it neuer deceyueth ne can not be deceyued but the iugemēt of the church foloweth oft times the opinion of men so it may be vntrue deceiue and also lightly be deceyued And more ouer one of the principal intentes of suche canonisatiōs is when any opinion riseth amonge the people that suche a man is a saynt and that some begyn to honour hym and some haply saye they doo not welle to sette the mattier in suche an order that there shall be no scismes thervppon amonge the people But yf any opinion ryse amonge the people that any is holye and blessed and myracles be doone than it is suffered that the people maye honour theym yf they be not prohybite by the superiours not withstondynge the sayde Chapitre Audiuimus ¶ And vnder this maner kyng Henry the syxte and mayster Iohn̄ Shorn̄ be suffered to be worshypped which be not canonysed And what a canonisation trowest thou had the apostels and such other holy men in the begynnynge of the churche BISAVNCE I trowe none but that the holy goste wytnessed in the hartes of all the people that they were holy and blessed and that suffised without any ferther canonisation SALEM Surely it is as thou sayste but of some other newe sayntes it hath not benne alwaye so but whanne somme hath holden one veray holy an other hath douted at it And therfore to kepe the people in a good quyetnes in that behalfe Canonysacyons haue benne made not that the people shoulde be bounde therby to beleue their holynes as to an artycle of the faythe but to gyue theym occasyon the rather to agree therin in one sythe so many great clerkes haue allowed the wytnesse in profe of his holynesse as there hathe doone ¶ And therfore though it were admytted that he were an herityke that wold obstinately holde opinyon that the churche gathered to gether in the holye gooste maye erre in a thynge that is of the fayth that this is of the same effect for as moch as the canonisation of a sayncte perteyneth to the Faythe bycause that in the inquery of his fayth and of his moralle vertues and of his doynge myracles stondethe all the mattier hit maye be aunswered that the cases be not lyke for two causes First for that such a canonisation is not appoynted by the lawes to the holle clergie ne to the generall counsell but to the see of Rome onely and vndoubtedly that see may erre deceyue and be deceyued For that see maketh not the churche Seconde in such a canonisation it suffiseth if the wytnes affyrme that he was a man of a true faith without rehersynge all the articles of the faithe in speciall And therfore the determination of the articles of the faith foloweth not thervppon And that the churche maye not erre in thynges that be of the faithe I take it to be vnderstonde where any great dout ryseth concernynge the faith And that that dout is commytted to the churche wherby I vnderstonde mooste proprely the generall Counsayle that they then may not erre And therto I can ryghte well agree For it is not to thynke that our lorde that is the very truthe wolde leue his people without a dewe meane how to come to knowlege of the truthe for that wyll not leaue any one particular person in suche doubt but that he may come to the knowledge of the truthe yf he wyll fully put his trust in hym And therfore it is sayd 2. par xx Cum ignoremus quid facere debeamus hoc solum residui habemus vt oculi nostri ad te dirigantur that is to say Lorde when we be ignorant and wotte not what to do this only remayneth to vs for our comfort that we lift our eien vp to the as who saythe that suffiseth vnto vs so that we shall not erre But in suche a canonisatyon though all the hole clergie dyd it they might erre For it is but mater in dede and more stronger these of Rome may erre therin BYZ. This maner of resonynge is daungerous For hit myghte lyghtely induce the people to sette at nought the order and decrees of theyr superiours SAL. As to that thou knowest well that no man hath power to make lawes to bynd other but he haue auctoritie therto of god And yf it can be proued that the clergie haue auctorite of god to canonise a saint and that they be all heritikes that beleue it not it must be obeyed our lorde forbeade it shulde be otherwyse But if it can not be proued that they haue that auctoritie by the lawe of god but that they haue hit onely by a custome and sufferaunce of Princis thenne the reasonynge of hit shall doo good to cause the matter be knowen as it is And yet maye the sayntes that in tyme paste haue benne taken for holye and blessed be styll so taken ¶ And thenne also shall hit not be taken for herysye that is none in dede but the verye trewe intente of canonysations shal be knowen ¶ And I suppose farther that it were no greatte mattier whether any were canonysed hereafter or not yf the people wolde be quyete withoute it and not be soo newe fangle to pylgrymages as somme haue benne in tyme paste and thenne to kepe the people in quietenesse and in good ordre in all thynges kynges and princis are moste specyally bounden to before any other BYSANCE Pryncis canne not determyne who hathe a ryghte faythe and who hathe not ne what is a Myracle and what not ¶ SALEM To examyne all the partycular artycles of the faythe is not necessarye in Canonysations as I haue sayde before and what is a miracle and whatte not Pryncis and theyr counsaylles maye haue knoweledge sufficiently And therfore as me meth it pertayneth mooste specially to theym to order and appoynte suche canonysacyons atte a generalle Counsaylle rather then to any other takyng the clergye to them as theyr counsaylours in that behalfe But for as moch as Princis haue in tyme past lyttell regarded suche small matters beyng
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
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