What is there obtained without paying a fee They have fees for excommunication for absolution for institution and induction for letters of sequestration relaxation for licences to preach for subscription of a testimoniall for commutation of pennance for licence to marry without bannes c. The judgement it selfe in which is to be considered 1. the calling for the parties to law 2. Litis contestation 3. cognition of the cause 4. the sentence 5. such things as follow the sentence as execution or appellation These things are common to every court of contentious or litigious jurisdiction Here is to be observed that such a litigious kinde of pleading for things civill and temporall becommeth not the Church of God Nos scimus sayth the Bishop of Spalato quia 1. Cor. 11. contentioneâ— faciendi Ecclesia Dei consâ—etudinem non habit nisi postquam facta est pâ—ne tota temporalis pervenerint ad papatum inquieti theologiae expeâ—â—â— juristae Here also is to be remembred the longsomnesse of Ecclesiasticall suits depending in their Courts Now the Iudge Register Advocaâ—t Proctor are all agreed to prolong suits for their advantage and so as the Prophet sayth they wrap it up Mich. 7. 3. sayth the Defender of the last petition Where he doth also insinuate that suits have been prolonged aboue two yeares in their consistories Wee have seene what civill causes and after what manner they are handled Criminall causes are brought in judgement either by accusation when there is one to accuse or by denunciation as when the Churchwardens make their presentments into ther courts twice in the year and at the visitations or by inquisition when the judge of office doth inquire into offences What are the offences and crimes punishable in Ecclesiasticall Courts and what are these which they chiefly search out and punish we have declared in the table of Visitation CHAP. 5. Of Archdeacons Chancellors Commissaries Officials and Vicars generall NOW followeth the jurisdiction exercised by the Bishops Deputies and Archdeacons whereunto I will premit the rest of Sir Francis Bacon now Lord Chauncellour his censure For the second poynt which is the deputation of their authoritie I see no perfect and sure ground for that neither being somwhat different from the examples and rules of government The Bishop exerciseth his jurisdiction by his Chauncellor and Commissary Officialls c. We see in all lawes of the world officer of skill and confidence cannot be put over or exercised by Deputie except it bee specially contained in the Originall granted and in that case it is dutifull There was never any Judge in any court made a Deputie The Bishop is a Iudge and of a high nature Whence commeth it that he should depute considering that all trust and confidence as was sayd as personall and inherent and cannot and ought not to bee transposed Surely in this againe Ab initio non fuit ita But it is probable that Bishops when they gaue themselves too much to the glory of the world and became Grandoes in kingdoms and great Counsellors to Princes then did they delegate their proper iurisdictions as things of too inferiour nature for their greatnesse and then after the similitude of kings and Count Palatines they would have their Chauncellors and Iudges But that example of Kings and Potentates giveth no good defence For the reasons why kings administer by their Judges althoâ—gh themselves are the supreame Iudges are two The one because the offices of Kings are for the most part inheritance and it is a rule in all lawes that offices of inheritance are rather matters that sound is interest then in confidence forasmuch as they may fall upon women upon infants upon lunatickes and Idiots persons not able to exercise Iudicature in person and therefore such offices by all lawes might ever bee administred by delegation The second reason is because of the amplitude of their iurisdiction which is as great as either their birthright from their Aunâ—estours or their sword-right from God maketh them And therefore Moses that was governour over no great people and those collected together in a campe and not scattered in Provinces and Cities himselfâ— lâ—kewise of an extraordinarie spirit was neverthelesse not able to suffice and hold out in person to iudge the people but did by the advice of Ieâ—hro his father in law approved from God substitute Elders and Iudges how much more other Kings and Pâ—inces There is a 3 reason likwise not much from the present purpose and that is that Kings either in respect of the common-wealth or of the greatnesse of their own patrimonies are usually parties in suits and then their Iudges stand indifferent betweene them and the subiect But in the case of Bishop none of these reasons hold For first the office is Eâ—ective and for life and not patrimoniall or hereditarie An office worthy of science confidence and qualification And for the second reason it is true their jurisdiction is ample and spacious and that their time is to bee divided between their labours as well in the word and doctrine as government and iurisdiction But I doe not see supposing the Courts to be used uncorruptly and without any indirect course held to multiply causes for gaine of fees but that the Bishop might very well for causes of moment supply his iudiciall function in his owne person For wee see before our eyes that one Chauncellour of England dispatcheth the suits in equitie of the whole kingdome which is not by reason of the excellencie of that rare honourable person who now holdeth that place but it was ever so though more or lesse burthenous to the suiter as the Chauncellour was more or lesse able to give dispatch and if heed bee taken to that which was sayd before that the Bishops labour in the word must take up a principall part of his time so I may say againe that matter of state have ever taken up most of the Chauncellours time having been for the most part persons upon whom the Kings of this Realme have most relied for matters of Counsell And therfore there is no doubt but the Bishop whose circuit is lesse ample and the causes in nature not so multiplying where the helpe of references Certificates to and from fit persons for the better ripening of causes in their neere proceedings and such ordinary helps incident to jurisdiction may very well suffice his office Yet there is another helpe for the causes that come before him are those tithes legacies administrations and other testamentarie causes causes Matrimoniall accusations against Ministers tending to their suspension deprivation or degrading Symonie incontinencie heresie breach of Sabboth and other like causes of scandall The first two of these differ in mine opinion from the rest that is tithes and testaments for those be matters of profit and in their nature temporall though by favour and connivencie of the temporall jurisdiction they have beene allowed and permitted to the Court Ecclesiasticall
The one to the end the Clergie might sue for that that was their sustentation before their own Iudges and the other is a kinde of pietie and religion which was thought incident to the performance of dead mens wills And surely for these two the Bishop in mine opinion may with lesse danger discharge himselfe upon his ordinarie Judges And I thinke likewise it will fall out that those suits are in the greatest number But for the rest which require a spirituall science and discretion in respect of their nature or of the scandall it were reason in mine opinion that there were no audience given but by the Bishop himselfe he being assisted as was touched before But it were necessarie also he were attended by his Chauncellour or some other his officers being learned in the civill lawes for his better instructions in poynts of formalitie or the courses of the Court which if it were done then were there lesse use of the officiall Court whereof there is now so much complaint And causes of the nature aforesayd being drawn to the audience of the Bishop would represse frivolous suits and have a grave and incorrupt proceeding to such causes as shall bee fit for the Court. There is a third forme also not of jurisdiction but of forme of proceeding which may deserve reformation the rather because it is contrary to the lawes and customes of this land and state which though they doe not rule this proceeding yet may they be advised with for better directions and that is the oath ex officio wherein men are forced to accuse themselves and that is more are sworne unto blankes and not unto accusations and charges declared By the lawes of England no man is bound to accuse himselfe In the highest causes of treason torture is used for discoverie and not for evidence In capitall matters no delinquents answer upon oath is required no not permitted In criminall matters not capitall handled in the Starre-chamber and in causes of conscience handled in the Chauncerie for the most part grounded upon trust and secresie the oath of the partie is required But how where there is an accusation and an accuser which we call bills of complaint from which the complaint cannot varie and out of compasse of the which the defendant may not be examined exhibited into the court and by processe certified unto the defendant But to examine a man upon oath out of the insinuation of fame and out of accusations secret or undeclared though it have some countenance from the civil law yet it is so opposite ex Diametro to the sence of the common law as it may well receiue some limitation This wise Polititian maketh this overture supposing that the Bishops ample and spatious circuite will not be contracted and that these causes which in their owne nature are temporall wlll not be drawne from the ecclesiasticall Courts For such a reformation is not nor may not be 〈◊〉 at in these dayes at least Polititians will not hazard their places and hopes in seeking of it leâ—t Caesar â—tart But their is a day coming for the Antichrist and them also What we have spoken before against medling with civill causes their large Diocie and excluding the Presbyterie from the coÌ„mon governement here not mâ—lled with I need not to repeat Alwayes the reader may take up very solide reasons against the deputation of their authoritie The ordinary Iudges who under the Prince execute judiciall administration in name of others are the Bishops deputies to wit the Vicar generall for the universitie of causes belonging to voluntarie jurisdiction 2. The officiall principall for the universitie of causes belonging to contentious jurisdiction 3. The Commâ—ssary for certainâ— causes within a certaine part of the Diocie The persons having judiciall admininistration not brought in by any law have it eyther by Royall composition or privilege or prescription of time By prescription of time as 1. some in exempt jurisdictions 2. Archdeacons whose office constitute by law is to enquire in the repairing and covering of Kirks their implements in ecclesiasticall enormities to be punished to refer to the ordinary matters or greater moment to induct into benefices 2. jurisdiction as they haue it by prescription It is â—xerced eâ—ther by themselves or by their Officials 〈◊〉 Byshop hath a two fold power one of order another of jurisdiction The power of order he committeth to his Suffragane Bishop as ordaining of ministers and Deacons Bishoping of children dedication of Churches and church yards etc. Their jurisdiction is eyther voluntary or contentious The voluntary he coÌ„mitteth when he is absent to his Vicar generall the contentious he commiteth to his Chauncelour and Comâ—â—ssarie The Vicar generall then in absence of the Bishop may visite the Diocie or any part thereof give certificates into the Kings Courts of bastardie and of excommunicates commit administrations give licence to eate flesh upon forbidden dayes doe all that may be done by the Bishops voluntarie jurisdiction whereof we haue entreated already D. Field sayth that Bishops had Vicars generall that might doe all things almost that perteyne to the Bishops iurisdiction And Lindwood sayth that they might not onely enquire into but also punish and correct offences The other deputies of the Bishop may be also called his Vicars yet are they designed 〈◊〉 distinct name because they haue a distinct office to wit the Chancelour and the Commissarie The Chauncelour is the Bishops principall officiall deputed for his principall Consistorie The Commissarie is the Bishops officiall also but in some remote part onely or some places exempted from the Archdeacon and he is called in the Canon law Officialis foraneus id est extraneus sayth Canisius This distinction betwixt the Chauncellour and Commissarie is made cleare in Cowells interpreter as followeth Officialis in the Canon law is especially taken for him to whom any Bishop doth generally commit the charge of his spirituall iurisdiction And in this sence one in every Diocie is Officialis principalis whom the statutes and lawes of this kingdome call Chancellour Anno 32. Henr. 8. c. 15. the rest if there be more are by the Canon law called Officiales foranei gloss in Clement 2. de rescriptis but with us termed Commissaires Commissarij as in the statute of Henr. 8. sometimes Commissarij foranei The difference of these two poynts you may read in Lindwood tit de sequestra c. 1. But this word Officiall in our statutes and common law signifieth him whom the Archdeacon substituteth in the executing of his iurisdiction as appeareth by the statute above mentioned and many others places Againe Commissarius is a title of Ecclesiasticall jurisdiction at least so farre as his commission permitteth him in places of the Diocie so farre distant from the chiefe citie as the Chauncellour cannot call the subiects to the Bishops principall Consistorie without their too great molestation This Commissarie is of the Canonists termed Commissarius or Officialis foraneus Lindw
allegeance but not with the oath of supremacie for feare of troubling his tender conscience The statute of the supremacie was explained the same year of Qu. Elizabeths raigne in an admonition added to the injunctions as followeth That her Maiestie neither doth nor ever will challenge any other authority then was challenged and lately vsed by the noble kings of famous memory king Henry the 8. and king Edward the 6. which is and was of ancient time due to the Imperial crown of this Realme that is under God to have the soveraignty and rule over all manner of persons born within these her realmes dominions and countries of what estate soever they be either Ecclesiasticall or temporall so as no other forraigne power shall or ought to have superiority over them In this admonition the subjects are made to understand that her Maiestie did not claime power to minister divine offices in the Church as to preach the word and minister the sacraments They have been too simple who have construed the statute in such a sense For no wise man will thinke that kings and Queens will take upon them either the paines or worldly discredit to preach the word minister the sacraments intimate to the congregation the sentence of excommunication The statute doth make no mention of divine offices in the Church but of jurisdiction Ecclesiasticall which is and was in time of papistrie exercised at visitations and in Ecclesiasticall courts This explanation therefore of the admonition annexed to the Injunctions and ratified by Parliament in the fift yeare of Qu. Elizabeth derogateth nothing from the former statute but onely summeth it in more generall tearmes To challenge no more then was challenged and lately used by the noble kings of famous memory K. Henry 8. and Edward 6. is to challenge to be head of the Church to have all jurisdiction Ecclesiasticall flowing from the possessour of the Crowne as from the head and fountaine Mr. Fox in his Acts Monuments relateth that in the 34. of K. Henry the 8. it was enacted That the king his heirs and successors kings of that Realme shall bee taken accepted and reputed the onely supreme head on earth of the Church of England and shall have and enjoy annexed and united to the Imperiall crowne as well the title and stile thereof as all honours dignities preeminences iurisdictions priviledges authorities immunities profits and commodities to the sayd dignitie of supreme head of the same Church belonging and appertaining and that they shall have full power authority from time to time to visit represse redresse reforme and amend all such errors abuses offences contempts and enormities whatsoever they be which by any manner of spirituall authority or iurisdiction might or may lawfully be reformed repressed ordered redressed corrected or amended In a rescript of Edward the sixth it is thus written to Cranmer Archbishop of Canterburie Seeing all manner of authoritie and iurisdiction as well Ecclesiasticall as secular doth slow from our regall power as from a supreme head c. we give unto you power by these presents which are to endure at our good pleâ—sâ—re to give and promove to the sacred orders even of the Eldership or as they use to speake Priesthood any within your Diocie Anno 1. Edw. 6. cap. 12. an act was made That the Bishop should bee maâ—e by the Kings letters patents and not â—y election of Deane and Chapter and that they should make their proces and writings in the Kings name and not under their own names and that their seales should be the Kings armes This act repealed in the 1. of Queen Mary was revived in the 1. of K. James It was objected to Bishop Farrar in the dayes of the same yong king Edward that hee deserved deprivation because hee constituted his Chancellor by his letters of commission omitting the kings majesties stile and authority and that he had made collations and institutions in his owne name and authority without expressing the kings supremacie His answer was that howbeit there was some default of formalitie in the commission yet his highnes stile and authority was sufficiently expressed in the sayd commission Neither did the sayd Chancellor offer to visit but in the Kings name and authority to the sayd Bishop committed And as to the other poynt that hee made his collations and institutions in his owne name not by his own authority nor by any others save the kings authority expressing in them the kings supremacie with the Bishops own name and seale of office Whitgift sometime Bishop of Canterburie sayth We acknowledge all jurisdiction that any court in England hath or doth exercise be it civill or Ecclesiasticall to be executed in her Majesties name and right and to come from her as supreme Governour And againe in another place The Prince having the supreme government of the Realme in all causes and over all persons as she doth expresse the one by the Lord Chancellor so doth she the other by the Archbishops Dr. Bancroft who was afterward made Bishop of London and at last Bishop of Canterbury in a Sermon made at Pauls Crosse anno 1589. maketh her maiesty a petie Pope and assigneth unto her not some of the Popes power but all honours dignities preeminences iurisdictions privileges authorities profits and commodities which by usurpation did at any time appertaine unto the Pope belike relating the words of the act made in the 34. Henry 8. Our Bancroft Mr. Spottiswood pretended Archbishop of Saintandros at the pretended deposition of N. in the high commission sayd likewise I say unto you N. the king is now Pope and so shall be To be supreme governour in all causes Ecclesiasticall then is not onely to be an avenger with the sword as Bilson would make the Iesuits beleeve in his book of obedience but also to be judge in matters of errour and heresie superstition and idolatry and all other causes Ecclesiasticall and as a supreme governour to communicate this power to auy naturall borne subject In the Parliament holden at Perth anno 1606. where a number of the Nobility consented to the restitution of the Bishops to their 3 estate and old privileges that they might get the other prelacies erected in temporall Lordships it was declared in the second act That the whole estates of their bounden dutie with most hartie and faithfull affection humbly and truely acknowledge his Maiestie to be soveraigne Monarch absolute Prince iudge and governour over all persons estates and causes both spiritnall and temporall within his sayd Realme He is then not onely governour but judge also over all causes But the nature of the supremacie may be yet better conceived when we have taken a view of the particular rights of the supremacie and of the power granted to the high commission The Kings supremacie considered particularly consisteth either of things which are granted onely by statute or restored by statute as due of right to the Royall Crowne Granted first by
reckoned up onely for the fashion of others not their mentioned they take a severeâ— account As for example Mucket doth adde these following Delay of Baptisme at the point of death contempt of Episcopall confirmation not bowing the knee at the Letanie and at the name of Iesus reproaches against the Liturgie the government of the Church c. Profanation of the Chalice and the plate Profanation of the Church-yards with Markets or Faires with weapon shewing with dancing c. In the Admonition to the Parliament it is said Now great sins either not at all punished as blasphemie usurie drunkennesse c. or else slieghtly passed over as with pricking in a blanket or pinning in a sheet as Adulterie Whoredome c. Again such as are no sins as if a man conforme not himselfe to Popish orders and ceremonies if he come not at the whistle of him who hath no authoritie to call wee meane Chanscellours Officials and all that rable are grievously punished not onely by Excommunication Suspension Deprivation and other as they terme it spirituall coertion but also by banishing imprisâ—ning reviling taunting c. So howbeit the offences which are abovementioned in the Table belong to Ecclesiasticall enquirie in respect of the slander they are taken from the lawfull iudicatorie of the Church and transferred to the Bishop to enquire as he thinketh good And therefore it is but pro froma that they are here set downe Simonie is one of the number and yet what Simonie is committed and how that may be dispensed with wee have already manifested Where is horrible blasphemie so rife It were longsome to goe through all the particulars But this I cannot passe vvith silence anent the prophanation of the Lords day howbeit it bee not heere expressed The Bill for the better observation of the Sabboth 27 Elizabeth being â—assed by both houses of Parliament was notwithstanding gainesaid and withstood by none so much as by certaine Euangelicall Bishops and whiâ—h as there men generally conceived was onely stayed from being made a Law by the Queene upon their counsell and perswaasion When the Bshop doth visite he doth not visite every parish by it selfe as our Presbyteries wont to doe but all the Parishes in the bounds of foure or five rurall Dâ—anries at once When his lordship commâ—th to some principall Kirk of one of the Deanries then the Ministers Church-wardens and Sidemen within the bounds of those Deanries are to repaire to that place The Parishes which perhaps have just matter of complaint against their dissolute Minister of Church wardens are not warned to be present at this Visitation The Bishop being set on high and the rest standing before him the Church-warden touching the book and kissing it is enjoyned at an appointed day to make known to the Bishop or his Vicar such offences as in a book of Articles given them are expressed For he hath his Chancellour or Vicar and Arch-deacon to assist him At the appointed time the Church-wardens come and giue up their bills of presentments the names and dwelling places of the delinquents The delinquents are sent for if they can round over the matter with the bishop or his chancellour or vicar there is no more of the matter but if not then is the delinquent enjoyned to take an oath suppose there be no evidence of the crime but onely a slanderous report and bruit and if he free not himselfe by an oath he shall be holden as guiltie yea further he must have sixe or eight besides to sweare at a set day their oath of credulity that they perswade themselues he hath sworn the truth and thus hee is purged by canonicall purgation Thus are they very careful when the matter is not rounded over For as Lindwood Canterburies principall Officiall who wrote about 200. yeares since saith Vigilare non curant proelati quamplures ut obseruentur statuta nullam utilitatem bursalem inducentiâ— Many Prelates are not vigilant and carefull to have statutes observed which bring no purse profite with them Many abuses and corruptions are in their Vâ—sitations no doubt which have not as yet come to my knowledge but you must be content good Reader with the little that I have delivered In contentious jurisdiction are to be considered either the persons or the causes judged or judgement it selfe The persons either the ordinarie judge or else his surrogate or the parties the pursuâ—r and defâ—ndant and they doe plade either by themselves or by others as by the advice of advocates or the diligent travels of their Procurators The things judged are either of publike or private interest of publike as I contribution for reparations of the Church fabrick and Church-yard dike and for acquiring any other thing which is lâ—cking in the Kirk or 2 punishment some Ecclesiasticall offence or contumely It is true every Church ought to be carefull to hold up the fabrik of the Church and to furnish it with all necessarie utensils but if the Parishioners who ought to bee contributories be slack they ought to bee pursued for the money in the Kings Courts not in Church consistories If a man holding land which usually payd a pound of waxe to the Church do withhold it the Churchwarden may very welpursue before a civill judge Suchlike if the Church be uncovered or the churchyard unclosed Church officers may not impose taxations Of privat interest in causes of 1. matrimony 2. succâ—ssion to the goods of the deceased 3. Ecclesiasticall rights Of matrimonie either by action or for supporting or dissolving of it By action either to conciliate knit as when we sue at law that matrimonie may be celebrate and consummate according to the contract or that after the celebration the mutuall marriage duties may be performed which is called Actio directa or when we intend actioÌ„ of lactication of maâ—â—mony against another who falsely pretendeth a matrimonial contract to our prejudice which is called Actio contraria For supporting or upholding of matrimonie as when aftâ—r the marriage we sue for the money promised in dowrie with the Bride For dissolving of matrimonie either for a precontract matrimoniall of either of the parties with some other or perpetuall and incurable frigiditie or consanguinitie or affinitie by lawfull or unlawfull copulation or adulterie or for rigorous dealing in which case separation from the bedd and boâ—rd but not from the bond is granted Such matrimoniall causes as are meere civill belong not to Ecclesiasticall courts as debts and dowries promised in marriage are not properly demandable in Ecclesiasticall courts Matrimonie as it is a civill contract may be ordered by civill lawes seeing upon it dependeth the right of inheritances providing that nothing bee done repugnant to these conditions which God in his word hath superadded to that contract as to determine within degrees prohibited or polygamie to bee lawfull So farre as it is divine in that God conjoyneth and interveneth as third person and setts downe conditions both
of conjunction and dissolution in the word the Church is to see that that order and these caveats bee observed which are contained in the word For it may fall out that both in binding up of marriage they may commit incest and in dissolving without a just cause may offend also It is the Churches duty to prevent and remove such offences But of other lawes civil and municipal they are not executors These lawes which are divine are of a mixt nature These which are civill belong onely to the civill Magistrate The Churches part is transferred to the cognisance of officials to whom it doth not belong And therfore Beza concerning this abuse writeth thus Sed quorsum hoc ad officiales promotores procuratores totam denique illam procorum colluviem quae Ecclesiam Dei iâ—mprideÌ„ devastat quorsum hoc ad illa non Ecclesiae tantuÌ„modo Christianae verumetiaÌ„ universi mundi de But what maketh this sayth he for officialls promoters Proctors and all that filth of swine which now a long time doth waste the Church of God What is this to these shamefull staines not onely of the Christian Church but also of the whole world Further beside the Churches part which is to take heed to offences and breach of Gods law they have taken the Canon law for the rule of their proceedings both in spousalls mariages and divorces And thirdly have taken in debts and dowries goods and chattels which are accessorie to marriage to judge upon and this must be called Ecclesiasticall cognisance Lastly these causes are of such weight that they are not to be committed to the skill or conscience of one base officiall It is observed by the author of the Assertion for Christian policie that mens inheritances many times hang in suspence upon question of lâ—gitimation or illegitimation of their children to be allowed or disallowed by the Canon law and that many Knights Esquires and Gentlemen doe complaine and bewaâ—le the stealing away and mariages of their daughters neeces neere kinswomen or wards Couples have been married and lived together 4 6 or moe yeares as man and wife and upon a new and sudden dislike and discontentment or upon a surmised precontract pretensedly proved by two suborned witnesses by vertue of the Canon law the husband was adiudged no husband the wife no wife Another example he relateth of one solemnly maried to a wife and after by reason of a precontract solemnly divorced from the same wife and compelled by censures of the Church to marry her for whom sentence of precontract was adjudged and yet authorized by the same consistorie about ten or twelve yeares after the divorce to resummon recall and rechallenge his first wife she having a testimoniall out of the same consistorie of her lawfull divorce and being againe solemnly maried to another husband Licences of mariage have been granted out of their Ecclesiasticall Court with a blanke So the partie licenced was enabled if it had been their pleasure to marry another mans wife or his wives sister Many moe grosse absurdities are there alledged by thâ— learned authour which the Reader will sâ—arce beleeve But I omit them and many other things which might be sayd anent the particulars set down in this Table Succesâ—â—on to the goods of the deceased is either or him who hath made his testamâ—nt or who hath died intestate The first 〈◊〉 her universall when the plea is for proving or improving the testament exhibited or particular when the suit is for to obtain a cerâ—ain legaâ—ie The sâ—cond is either properly when no testament is made or by way of inâ—estate as when there is none who will take upon them the burthen of executorie In either of the cases the action is either to obtaine the administration of the goods and that eitheâ— simply or with the later will annexed that it may be fulfilled or witâ— the tutorship and to the use of the Minâ—râ— or else the action is against him that ingyreth himselfe into the administration and intrometteth with the goods of the deceased not being inabled with any warrant Causes testamentarie and their appendicles are meere civill and temporall and therefore do not belong to spirituall Courts It is by the grant of Kings not by Ecclesiasticall right that Church consistories have medled with such causes Because Bishops were supposed to bee men of good conscience and that they would be carefull to see the later will of the deceased performed then others therefore they were reserved to Episcopal audience and cognisance of Ecclesiasticall Courts But this respect was not founded upon Gods word For we must not looke so much to conscience as to a lawfull calling or else all civill causes pleaded before a Iudge should be referred to Church-men because of their supposed good conscience And the truth is it is but supposed indeed For a Bishop or pastor that will medle in matters impertinent to his calling hath but a bad conscience Such a man will never make conscience of it more then another religious Christian. And what conscience they made of the matter may bee seene in that they transferred that which was committed to their trust to a base Officiall who hath as bad a conscience as the Bishop himselfe and badder if badder may be And as for skill in deciding such causes no man will deny but the civill judges are more able to cognosce and determine in them then Church-men By the common law sayth Lindwood these causes were not committed unto the Church but by the free grant of Princes And therefore in the lawes alledged by him approbation and insinuation of testaments are forbidden Clergiemen Et ratio redditur in juribus illis allegatis quia opprobrium est clericis si peritos ostendere velâ—â—t rerum for â—enseâ—â—â— May not matters of legacies and bequests of goods as well as of lands bee determined in remporall Courts Cannot the Iudges in temporal courts discerne upon proofes and other presumptions whether the testator was of perfect memorie or distracted as they doe in questions of lunacie madnesse or idiocie in men living Can they not define of two wills which is the first which is the later will whether the legacie remaine or bee recalled whether it bee pure or conditionall If a creditor may recouer his debt due by the testator in the teÌ„porall Court what should hinder a legatarie to recover his legacie in the same Court This poynt is made cleare and amplified in the Assertion of true and Christian Church policie To conclude then probates of wills committing of Administrations sequestrations of the goods of the intestate recovering of legacies taking up of inventaries c. belong not to a Church Consistorie and it is a very great abuse that such Consistories should be called Church consistories and that spirituall censures should bee put in execution by them Ecclesiasticall dues and rights are 1. tithes which are either Praediall Personall or Mixt. Praediall tithes are such as come of the
satisfactions For remeâ—d of corporall pennance the offendour may obteine a redemption for some peeee of money and this is called commutation of pennance and so the sheete pennance is turned into a purse pennance If the corporall pennance be ordeined to a spirituall end as they say to afflict the body or outward man for humbling of the soule how can it be exchaÌ„ged in a pecuniarie mulct which hath no such operation with it especially with the greater sort or did they ever read of the like but in the dark dayes of poperie Buriall they deny to such as are strangled for felonie usurers and others excommunicated by their offiâ—ialls and Chancellours The censures and punishments peculiar to ecclesiasticall persons are not all of one nature For some arise upon their medling with causes civill howbeit abusiuely called ecclesiasticall as the sequestration of the fruits of a benefice and giving them for a time to the custodie of another for to defend some mans right or to chastice the cotumacie of the owner which sequestration if any man violate he is to incurre the greater excommunication by the old constitutions of the English Church sayth Muckâ—t But seeing the originall of it is but temporall it belongeth nothing to Ecclesiasticall Consistories Deprivation is the removing of a beneficed man from his benefice A benefice is a mans freehold and therfore seing his livelihood consisteth it he ought not to be removed from it at the pleasure or judgement of one man There is no difference betwixt deposition and degradation but that deposition is verball inflicted by the sentence of the judge degradation is real as when the Ecclesiastical person is denuded or unclothed of the garments ensigns of his order in presence of the civill Magistrate to whom he is relinquished to bee punished for heresie or some other great capitall crime Vntill this be done they are exemed from the stroke of the Magistrates sword after the old papistical manner for to what use else serveth this degradation This censure of deposition as the rest is in the hands of one man alone D. Field affirmeth howbeit otherwise one of their owne that the Bishop may doe nothing in matters of greatest moment and consequence without the advice and presence of presbyters and in especial that he may not deprive depose or degrade by himsâ—lfe alone and proveth it out of the 3. and 4. Councell of Carthage That by the late Canons in pronouncing the sentence after the proces ended before the Chauncelour Commissarie Officiall the Bishop should have the assistance of his Chauncelour the Deane and some Prebendaries or the Archdeacon is no point of reformation as they pretend for these are onely their servants and followers which are to them as the shadow to the body It is sayd in the Canon law that the consistorie of the Bishop and the Chauncelour or principall official is all one therefore a man may not appeale from the Officiall principall to the Bishop and the Archdeacon is called oculus 〈◊〉 the Bishops eye Further they observe the Canon but as it pleaseth them for there is no sanction added unto it These are the censures punishments which are the sinewes of their ordinarie jurisaiction by as they are 〈◊〉 commissioners or haue civill callings committed to them by the Prince they have their prâ—sons as Clinke Gatchouses Colehouses towres and Castles both for laymen and ecclâ—siasticall persons The jurisdiction it self is eyther voluntary or contentious Voluntary jurisdiction is when the person with whom the Bishop dealeth doth not stand against it Contentious is when such causes are handled against which some partie standeth or else dealt with therby against his will For it is to be thought that the party defendant will not willingly compeir and unlesse he be compelled and therefore is presumed to come against his will Voluntary jurisdiction is established eyther by statute or by the Municipall lawe or by the Municipal law confirmed by the eccâ—â—siasticall or by the ecclesiasticall confirmed by the Municipall 1. By the statute as 1. to grant licence for a time to eate flesh upon forbidden dayes 2. that any being approved â—ay exercise Phâ—sicke or Chirurgetie or instruct children in that Diocie 3. to unite and consolidaâ—e lesser Kirkes according to a statute made thereanent 4. to assist civill Iudges in executing certaine statutes which concerne Ecclesiasticall causes 5. to collect tenthes and subsidies duc by Ecclesiâ—sticall persons and that either by taking a stresse or by Ecclasiasticall censures The 1. is superstitious the 2. is impertinent except that part which concerneth Schoolemaisters but that should not be at his sole disposition The petition to the Queen relateth that liâ—ences are granted to Scholmasters for money to teach The 3. likwise is not to be ordered at his will and may very wel be ordered without him So may the 4. if it were needful The 5. is not an office competent to his calling neither is the maner of exacting to be allowed By the Municipall law as 1. to certifie at the kings rescript the civill Iudges of Bastardie and unlawfull Births of lawfull and unlawful marriages 2. to require the kings rescript for burning a pertinacious heretick already condemned 3. to require the kings rescript for coÌ„mitting to prison the person which persisteth with an obstinate mind excommunicate 40. dayes The 1. may be done other by them or without them The 2. for the kind of punishment and forme of proceeding is a part of the Maximinian law which was made in the time of K. Henry 4. whereof the â—ath ex officio is the other part The 3. is used after this manner If one be excommunicate for the smallest trifles in their Courts or for a supposed offence where there is none indeed if hee stand wilfully 40. dayes together excommunicate and accordingly certified by the Bishop into the Chauncerie that then he is to be committed to prison by vertue of a writ directed to the Sheriffe sayth the authour of the Apologie of certain proceedings in Courts Ecclesiasticall Neither is intimation at the common law required but these certificats mention onely in generalitie the parties coutumacie and disobedience The effect of the writ de excommunicato capiendo is two-fold 1. upon the certificate of the Bishop the party excommunicated is to be debarred action in all the Queenes Courts 2. the partie is to be imprisoned and is not to be delivered unlesse he submit himselfe to the Bishop except he hath appealed to a superiour Ecclesiasticall judge By the municipall law and confirmed by the Ecclesiasticall as 1. to cause the testaments of the deceased to be proved and registrate 2. to grant the administratioÌ„ of the goods of him who died intestate to the neerest kinsman 3. when no man will enter here to command to collect and keepe in custodie Bona caduca 4. to cause account to be rendred of the savd administration and to approve and reject the same as law