true difference of christian subiection and unchristian rebellion 2. part pag. 23◠perjury and I am sure that perjury is transcendently unlawfull and propter unum illegitimum tota submissio fit illegitima especially seeing as it appeares upon Record in this Court that submission was framed by the Commissioners in conceptis verbis in a set forme of words and by their own order that set forme of words was to be uttered without addition or alteration and therefore any one part thereof being unlawfull the whole must needs be unlawfull And so my Lord it appears that in refusing to preach that Visitation Sermon I have not transgressed the order of the High-Commission Court because the Archdeacon sent no mandate as he should have done by that order neither if he had was I bound to performe either that mandate that order or the submission enjoyned because both that mandate that order and that submission enjoyned are contrary to the Canons to his Majesties Letters Patents and to his royall Prerogative and supreme Ecclesiasticall jurisdiction of the Crowne which by the oath of supremacie I am bound to the utmost of my power to defend and maintaine and against which no man that hath taken that oath can speake plead argue or give sentence without perjury neither can any Judge according to that his oath to the utmost of his power defend and maintaine all jurisdictions of the Crowne unlesse in this case of mine he doth speedily without delay without procrastination give judgment for the Canons his Majesties Letters Patents his royall Prerogative and mine obedience unto them against that apocryphall uncanonicall anticanonicall antidiplomaticall antiprerogative antisuprematicall postscript of the Archdeacon of Cant. Master Doctor Kingsley And so my Lord I do conclude and I do most instantly and most importunately sue and supplicate to your Lordship and to these my just Judges in the presence of a most just God for a just judgement as a just man should do both for my selfe and for my adversaries First for my adversaries if their Cause be better then mine and they can confute what I have said and if they cannot then for myselfe and for both speedily without all further delay without all further procrastination for it hath been fall twelve years three quarters since this action first began in this Court full twelve years three quarters before I could get this first hearing this one Argument A long and a tedious time in which divers interessed in this controversie have ended their lives and as Iulian the Emperour though an Apostata saies 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Epistola 35. It is a fearful a terrible thing that he that sues for justice shall sooner lay down his life at the judgement seat then procure judgement from the just Judges that sit upon the seat that he shall stand in need of two lives to determine one controversie and yet end them both before he can end that his one controversie What a blemish and disgrace is it that the justice of private men shall exceed and surpasse the justice of Judges and of Courts of justice and if private men do all that ever they can to have their Causes heard and determined and Judges do all that ever they can to delay procrastinate and stave off the hearing and determining of them doth not the justice of private men exceed and surmount the justice of judges and of Courts of justice And yet the justice of private men is but the private and particular justice of the Kingdome and if there be any question concerning that it must passe per libram per trutinam sub examine justitiae judicum Curiarum And therefore the justice of Iudges and of Courts of justice is the generall universall aecumenicall epidemicall justice of the Kingdom The light of the body saith our Saviour is the eye if that light be darknesse how great is that darknesse So the generall universall aecumenicall epidemicall justice of the Kingdome is the justice of Iudges and of Courts of justice If that justice be injustice how great is that injustice It is then the generall universall aecumenicall epidemicall plague pestilence consumption desolation and destruction of the whole Kingdome And though my Lord the difficulty to get justice and the danger to lose it is alwaies very great because there are so many things needfull even in an honest course to prevaile in a sute at Law as a good and a just cause a diligent faithfull and expert Solicitor an honest skilfull and incorrupt Attourney a learned faithfull and couragious Counsell and a just and an upright Iudge of which if any one faile to do his duty a good cause may have an ill successe Yet certainly amongst all the former next after a a good Cause a just and an upright Iudge is the principall and especiall And because even in a good Cause the three former cannot prevaile without this latter and this latter can and may correct and amend the faults and errors of the three former therefore Iulian the Emperour makes this latter the only necessary thing to prevaile in a good Cause His words are worthy to be ingraven in letters of gold on every Court of justice for a direction and caution to all Iudges Counsellours Atturnyes Solicitours and Clients 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Epistola praeallegata This is the only thing saith he for them that suffer wrong to get their right namely to get such a judge as both can and will judge rightly can and will do justice If the Iudge either cannot or will not if either through weaknesse he cannot apprehend the truth or else through wickednesse will not heare or will betray the truth there is then a necessity that right and justice most be subverted Wherefore my Honoured Lord Chiefe Iustice and Honoured Iudges to the intent that your Lordship and the Court may shew your selves such Iudges as men oppressed according to Iulians advise should seeke for such Iudges as both can and will judge rightly can and will do Iustice such Iudges as both can and will rectifie and reforme the faults and errors of Solicitours Atturneys and Counsellors nay such Iudges as in a good cause will supply the want of all these which is my case for I can get none of them Consider I beseech you by how many bonds you are tyed to do justice you tied by your places titles offices oathes by the Lawes of the Land by the Word of God and in these two particular cases of mine in this action of false imprisonment and in the speciall Verdict betweene Allen and Nash by his Majesties speciall mandate deliver'd to your Lordship with mine own hand here in open Court on the first day of Hilary Tearme 1635. All these binde you to do justice but none of these prove you to be just The only rule to prove you just is this of St. Iohn 1 Epist 3. cap. 7. vers He that doth righteousnesse is righteous The works of justice
AN ARGVMENT upon a generall Demurrer joyned and entred in an Action of false Imprisonment in the Kings Bench Court termino Trinitatis 1631. rot 1483. parte tertia betweene George Huntley Clerke plaintife and William Kingsley Archdeacon of Canterbury and others Commissioners Defendents as it was prepared to have beene uttered in Court by the said George Huntley but was not permitted by the Judges of that Court because as they pretend the said Action or Plea or Demurrer was discontinued termino Sancti Michaelis 1632. Published by the said George Huntley to shew whose duty it is to preach the visitation Sermon and thereby principally to vindicate the auntient Iurisdiction of the Crowne over the State Ecclesiasticall against the usurpation and presumption of the High Commissioners whereunto hee is bound to the utmost of his power by the oath of supremacy and secondly to cleare his own innocency and to recover his former credit and good name much blemished by their scandalous and opprobrious sentences whereunto he is tyed iure naturali A discovery also and confutation of the foresaid pretended discontinuance with a true copy of so much of the two parts of the High Commissioners first finall sentence as is pleaded by the Defendants and as conteines the whole matter to justifie the said Huntleys nine yeares three quarters imprisonment at severall times his five hundred pounds fine deprivation degradation and excommunication Both placed before the Argument the one to remove the foresaid rub of the pretended discontinuance and to open a faire and cleare passage fâ—r the Argument the other to shew the state of the controversâ—e and ground of the Argument out of the defendants owne words against which the Law admitts no exception Dicere viva voce in curia per judices non permissus Dicere in scriptis ex prelo per juramentum cogor London Printed for George Huntley and are to be sold be Michaell Sparkes in Green-harbour in the Little Old-baily 1642. The discovery and confutation of the foresaid pretended discontinuance THe true cause of the pretended discontinuance mentioned by Master Noy Atturny Generall in his motion Termino Michaelis 1632. was this That the Plaintiffe Huntley beganne his Action by originall and drew up the imparliances by Bill and so had discontinued his Action by originall in drawing up the imparliances by bill and had not begun any action by bill and so had no Action at all either by bill or originall depending in Court against the Defendants hereupon the Court granted the order following Dies Sabbati prox post Crastinum Animar Anno octavo Car. Reg. Huntley vers Kingsley alios Nisi causa ostensafuerit in contr die Iovis prox post Crastin sancti Martini actio Discontinuetur ex motione Attorn Gralis per curiam I presently got a copy of the foresaid order but I could not get my Counsell to shew cause to the contrary within the time limited in the Order neither was I permitted within that time to shew cause to the contrary my selfe and thereupon the Defendants Atturney Mr. Barker entred upon the foresaid Rolle the following discontinuâ—nce in these words Recordatur percuriam 27. die Novem. Anno Reg. Dmini Regis nunc Angliae 8º quod istud placitum non habet Deum continuationis â—er islud rotulum ultra non post predict Octab. sancti Michaelis Ideo â—lacitum illud ad requi sitionem predcti Georgij Huntley discontiâ—uatur The foresaid discontinuance enrred upon the said roll is neither grounded upon the pretended cause of discontinuance mentioned in â—he Atturney Gralls motion nor upon the foresaid Order of the Court but onely on my request and I was so farre from requesting â—ny such thing that I offered 40 pound nay 100 pound to have the foresaid error reformed And the foresaid Order mentions no error or cause of discontinuance but onely supposeth one and what can it suppose but onely that which Master Atturney Generall mentioned in his foresaid motion and that 's onely this because I began my said Action by originall and drew up the imparliances by bill in these words Petunt licentiam jnde ulterius interloquendi ad billam predictam and this I doe sixe times mention in the plea for so many Termes the Judges gave the defendants to put in their Plea and that being onely an error in forme and not specially and particularly set downe and expressed by the parties demurring together with their demurrer as appeares by the said Record rolle and the originall paper booke under both our Counsells hands which I have to shew cannot discontinue the Action Plea or Demurrer nor hinder the hearing of the cause nor bee the ground of a writt of error nether suspend nor reverse a Judgement but is to reformed and amended by the Judges even after demurrer joyn'd and entred as appeares by the 5. chapter of the 27. of Eliz. which runnes thus Bee it enacted by the Queenes most excellent Majestie c. That from henforth after Demurrer joyned and entred in any action or suit in any Court of Record within this Realme the Judges shall proceede and give judgement according as the very right of the cause and matter in Law shall appeare unto them without regarding any imperfection defect or want of forme in any writt returne plaint declaration or other pleading processe or course of proceeding whatsoever except those only which the party demurring shall specially perticularly set downe and expresse together with his Demurrer And that no judgement to be given shall be reversed by any writt of error for any such imperfection defect or want of forme as is aforesaid except such onely as is before expressed And bee it further enacted that after Demurrer joyn'd and entred the Court where the same shall bee shall and may by vertue of this Act from to time amend all every such imperfections defects and wants of forme as is before mentioned other then those onely which the party demurring shall specially and particularly expresse and set downe together with his Demurrer as is aforesaid A true Copy of so much of the two parts of the High Commissioners first finall sentence as it is pleaded by the Defendants Doctor Kingsley and the rest followes ANd upon opening of the cause the foresaid George Archbishop of Cant Richard of Durham Iohn of Rochester Thomas of Coventrey and Lichfield Theophilus of Landaffe Robert of Bristoll Bishopps and some other of the Commissioners aforesaid found the aforesaid George Huntley especially charged in the Articles with two perticulars first for refusing to Preach a Uisitation Sermon at the requisition and command of the Archdeacon of the Diocesse contrary to his Canonicall obedience and secondly for setting up an opinion and maintaining it before the rest of the Clergie of the Diocesse that the Archdeacon of the Diocesse had no power to require or command him or any other Minister to preach a Sermon at his Uisitation with many other abusive behaviours about that
of the Exchequer my Lord chiefe Baron sir Humphrey Daverport and the other Barons of the Exchequer refusing to grant me a certiorarj to the High Commition Court to command them to certfie the cause to permit mee to pleade to the foresaid fine did the 10. of May 1633. commit me to the Fleet in execution of the foresaid fine there detained me a full yeare untill I to procure my liberty paid the fourth part of the said fine to Mr. Motershed pecunijs numeratis and stal'd the other three parts to the Kings use And for which and also for a Petition delivered at the Counsell Table to crave justice therein according to his Majesties mandate under sir Edward Powels hand to my Lord chiefe Justice sir Iohn Bramston and the other Judges of the Kings Bench court dated the 29. of December 1635. and delivered with mine owne hand to the said Judges in open Court the first day of Hilary Tearme 1635. I was by my most reverend Diocesan and provinciall William Lord Archbishop of Cant. his Grace and other right Honorable Lords of his Majesties most honorable privie Councell on the third day of February 1636. committed to custodie of the Warden of the Fleet by a warrant wherein no cause of commitment was exprest and there detain'd a prisoner by him untill Trinity Tearme 1639. and then upon an habeas corpus issuing out of the Kings Bench Court I was brought to that court in Trinity Tearme 1639. and the foresaid warrant for my commitment returned and then I was presently bayled and thereby tyed to appeare in court divers daies both that Tearme and the Tearme thence next following and because none of the Kings Counsell in all that time came in against me I was on the last day of that Michaelmas Tearme 1639. delivered from the said baile and imprisonment by the joynt consent of all the Reverend Judges then of that court As I formerly had beene in the same court Termino paschae 1629. after the first two yeares imprisonment upon the foresaid originall matter returned to an habeas and fully debated by Counsell on both sides and Mr Justice Bertley then the Kings Sergeant in open court professing himselfe fully satisfied And for the former originall matter onely may for nothing at all in the judgement of the Law even for the foresaid sentence of deprivation and degradation charging mee with grievous and enormous crimes excesses delicts mentioned in the said Articles and those Articles not given in evidence nor found by the Jury in the speciall verdict betweene Allen and Nash entred upon record in the Kings Bench court termino Sancti michaelis 8. Car. rot 508. my Lord chiefe Justice of that court sir Iohn Bramston did for himselfe and his brethren Termino Trinitatis 1637. affirme the foresaid sentence and deliver his opinion against me for the intruder Robert Carter Whence it followeth that if the Commissioners aforesaid first finall sentence against me the 500 pounds fine thereby imposed upon me the two yeares imprisonment thereby sustained by me be just legall then all the other sentences censures and punishments following and depending thereupon may be just and legall But if the former the only ground of all the rest be unjust and illegall then all the other must of necessity be unjust and illegall And whether the former be just or unjust let the indifferent reader judge impatially upon the perusall of the following argument MY Honoured Lord cheife Iustice and my Honored Iudges the first thing in this Controversie concerning the points of the Canon law in question whereunto cheifly I am to speake is the very stating of the controversie it selfe between me my adversaries And for that purpose in the first place I humbly desire your Lordship the Court to observe that the defendants charge me with faults of severall degrees some principall and especiall others inferiour and accessory· The Principall and Especiall are two as appeares by their first finall sentence alleaged in their plea wherein they say that upon the opening of the cause they found the aforesaid George Huntley charged in the said Articles with these two perticulers principally (a) This word specialiter in this sence is 3. times used in the defendants plea. twice in the first part of their first finall sentence and once in the Commission of 14. Articles obiected against me 12. doe expresly mention my refusall to Preach the Visitation sermon as a fault or prepare the way theieunto and the fourth saith that I offered two or three peeces to the Arch-deacon to procure one to preach that sermon only the sixth and thirteenth Articles doe not mention it or especially first that he refused to preach a visitation sermon at the Arch-deacons of Cant. Doctor Kingsleys command contrary to his Canonicall obedience and secondly that he raised an opinion amongst the Clergy that the said Arch-deacon had no power to command him the said Huntley or any other incmbent to preach the said visitation Sermon The Inferiours or Accessories are foure first that the said Huntley came unsent for or uncal'd for to Master Arch-deacon aforesaid he being in his visitation amongst the Clergie and sitting there to heare causes Secondly that the said Huntley did then and there very malepertly and irreverently charge the said Arch-deacon of falsehood or injustice thirdly that the said Huntley did at the same time and place in a very arrogant irrespective manner lay downe an hundred pounds in Gold upon the table and offered to lay wagers with him the said arch-deacon that he had done him the said Huntley wrong or the like in effect and fourthly and lastly that the said Huntley refused to performe his submission conceptis verbis as was enioyned him by the Commissioners and therein gave a great affront and contempt both against his Maiesties supreame power and authority in matters and causes Ecclesiasticall and also against the high commission court to whom the same by letters patents under the great seale of England is delegated and committed And for these six particulers the defendants confesse that they imprison'd me two yeares namely from the nineteenth day of Aprill 1627. to Aprill 1629. In which moneth upon my appearance in this court the first day of that Easter Terme 1629. to save my baile you Master Iustice Heath then the Kings Attourney Generall were first call'd for by the Court in the Kings behalfe against me and you came and confest that you had nothing to say against me and then Master Iustice Bertley being then the Kings Sergeant whose (b) Master Iustice Bertley at this time was in the custody of the Sheriffe of London absence I much lament whose presence I much desire was called for by the court for the same purpose against mee and hee came and confest that he had formerly spoken twice against mee upon the matter return'd to the habeas corpus which was the very same for substance that is now pleaded
against mee and hee then further added that he was now satisfied he had no more to say against me and yet the court would not upon that day deliver me but ordered mee to make my appearance in court two severall dayes after that and then when no man came in against mee I was on 29. day of that moneth of Aprill 1629. delivered by the joynt consent of all the reverend Iudges then of this court and therein I speake it with singuler exultation I received as much favour as a Rogue at Newgate who when no man comes in against him is acquitted by Proclamation which is the most that I could ever get since except it were greater injuries and indignities I speake it with much greife and lamentation Now my Lord the two principall and especiall pretended faults against mee will descide the whole controversie betweene me and my adversaries and either justifie them and condemne mee or else condemne them and justifie me for if the defendants can make good these two Principall or Especiall pretended faults against me that my refusall to Preach the Arch-deacons visitation Sermon is a breach of Canonicall obedience and that I in maintaining it to be the Arch-deacons duely to Preach his owne visitation Sermon have raised among the Clergy a new opinion contrary to the Canons then I shall confesse my selfe faulty in all the rest and justly fin'd imprison'd depriv'd degraded and excommunicated But if the defendants faile in these two points being by their owne Testimony the two Principall and especiall points against mee then they faile and fall in all the rest for according to their law Siprincipalis causa non subsistat ea quae sequuntur locum non habent And then your Lordship and the court are not to give credit unto the defendants in any other part of their plea that makes either for them or against mee for qui semel est malus semper presumitur malus in eodem genere mali and qui semel veritatis verecundiae limites transilierit eum oportet esse guaviter imprudentem nec ei deinceps nisi paenitenti culpam consitenti veniam expetenti est in aliquo credendum And therefore if the defendants haue wittingly and willingly palpably and grossely falsified the law in the principals Your Lordship and the court are not to give credit unto them in the accessories If in the principalls they have called my obedience to the word of God to the Articles Statutes Canons to his Maiesties Letters Patents royall Prerogative and oath of supremacy which are all extant to the veiw of the world a breach of Canonicall obedience a principall or especiall fault a greivous and enormous crime what credit is to be given unto them concerning any fact they charge me with in the Accessories seing therein they may speak false securely and not be confuted by any law as in the former And so my Lord having stated the controversie betweene me and my adversaries concerning the points of the Canon law in difference betweene us I proceed to speak to the controversie thus stated and first to the principalls My Honoured Lord cheife justice and my Honoured Judges my refusall to Preach the Archdeacon of Cant. Doctor Kingsleys Uisitation Sermon and the publishing of an opinion amongst the Clergy that the said Arch-deacon had no power to command mee or any other incumbent to preach the said visitation Sermon are the two maine and Capitall crimes for which I have beene imprisoned these two yeares 1627. and 28. by the defendants Doctor Kingsley and the rest This appeares out of the High Commission sentence alleaged in the defendants plea put in to my Declaration for therein they say that upon the opening of the cause they found me charged in the said articles with these two particulers principally or especially first that I refused to Preach a Uisitation Sermon at the Arch-deacons command contrary to my canonicall obedience and secondly that I set up an opinion amonst the Clergy that the said Arch-deacon had no power to command me or any other incumbent to Preach the said Uisitation Sermon Now my Lord if these two be my Principall or Especiall faults as the defendants themselves confesse they are testimonium ab adversario contra se fortissimum then by the force of comparison drawn from the adversaries owne estimate all the other must needs be inferiour and accessory and then if the Principall or Especiall faults prove no just causes of imprisonement nay further prove no faults at all nay further yet prove vertues and eminent vertues even the vertues of canonicall obedience much lesse can the inferiours or accessories be any faults or any just causes of imprisonement for according to their owne law accessorium debet sequi naturam principalis si principalis causa non subsistat ea quae sequuntur locum non habent Now my Lord these two Principall or Especiall faults pretended against me doe beget two Principall or Especiall questions the one of practise and action and it is this whether my refusall to preach the Arch-deacons Uisitation Sermon be a breach of Canonicall obedience or not the other of Speculation and Opinion and it is this whether this my opinion that the Archdeacon hath no power to command me or any other incumbent to Preach his Uisitation Sermon be held and published contrary to the Canons or not And these two questions are so lincked together that they do invieem se ponere auferre are to be both either joyntly affirmed or joyntly denied for if my refusall to Preach the Arch-deacons Uisitation Sermon be a breach of Canonicall obedience then this my opinion that the Arch-deacon hath no power to command mee or any other incumbent to Preach his Uisitation sermon must of necessity be held published contrary to the Canons And on the contrary if this my refusall to preach the arch-deacons Uisitation Sermon be no breach of Canonicall obedience then this my opinion that the arch-deacon hath no power to command me or any other incumbent to preach his Uisitation Sermon is neither held nor published contrary to the Canons so that handle one handle both cleere one cleere both and faile in one faile in both And this first Principall or Especiall question of practise and action whether my refusall to preach the Arch-deacons Uisitation Sermon be a breach of Canonicall obedience or not Doth either way that is whether it be or be not beget another question If it be a breach of Canonicall obedience then it begets this question whether for the breach of a Canon or of Canonicall obedience unto the Canons according to the lawes and customes of this land men are to be fetcht from the judgement and jurisdiction of the ordinary up to the High Commission Court and there to be fined and imprisoned for it or else whether they are to be left to the judgement and jurisdiction of the ordinary and he to proceed against them according to the
power of the keies And though my Lord this question be no question if the high Commissioners by the first of the first of Elizabeth never had any power to fine or imprison for any crime within that statute and the cognisance of the high Commission as is declared by a statute made the first Session of this Parliament which statute makes wholely for me and against the high Commissioners and puts the former question out of question yet my Lord in favour of the high Commissioners and to my owne disadvantage I doe forbeare to take the benefit and advantage of the former statute and Declaration and granting to the high Commissioners a power to fine and imprison for crimes within the first of the first of Elizabeth according to the Commissioners practise before and at the time of my censure according to the wordes of their commission and the approbation both of the Exchequer who did imprison me for the 500. pounds fine estreated by the high Commissioners into the Exchequer and of this Court also which would not upon an habeas corpus deliver me from that imprisonement I doe in this sence and respect onely propose the former question whether for the breach of a Canon or Canonicall obedience unto the canons according to the lawes and customes of this land men are to be fetcht from the judgement and jurisdiction of the ordinary up to the high commission court and there to be fined and imprisoned or else whether they are to be left to the judgement and jurisdiction of the ordinary and he to proceed against them according to the power of the keys And though this question my Lord bee within the compasse and cognisance of the common Law and therefore ought to bee spoken unto by the worthy professors of this Honorab profession yet seeing it is in defence of the Episcopall or ordinary jurisdiction which the Bishops themselves have wrong'd and which at this time in this my case no common Lawyer will undertake to defend and that for this very reason as I conceive because they have mens persons in admiration for advantage sake Epist 16. as St. Iude speakes and do prefer the person of some Bishop before and above the Episcopall or Ordinary jurisdicton it self Therfore ut nequid detrementi capiat respublica Episcopalis vel ordinaria and to the intent that all men may know that I both truely love and reverence the Episcopall or Ordinary jurisdiction not onely above and beyond you the common Lawyers who will not according to your profession defend it but also above and beyond those Bishops who contrary to their callings have wrong'd it and also that I onely oppose the usurpation and presumption of some Bishops and not the Episcopall or ordinary jurisdiction it selfe I will endeavour to shew and that by seven reasons Thesis prima septem rationibus confirmaâ—a that the breaches of canons or of canonicall obedience unto the canons according to the Lawes custome of this land belong to the juridiction of the ordinary and not to the cognisance of the High commission court Ratio 1 My first reason my Lord is taken from the sence and meaning of this word Ordinary as it is expressed by Doctor Lyndewode in the first booke of his Prov. tit de constitut cap. Exterior habitus Verbo Ordinarij in these very words Nota quod haec dictio (c) Ordinarius dicitur quia habet ordinariam iurisdictionem in iure proprio non per deputationem Cokes institutes f. 96 Ordinarius principaliter habet locum de Episcopo aliis superioribus qui sunt universales in suis iurisdictionibus de iure communi solus Episcopus est ordinarius super omnes subditos suos sed sunt sub eo alij ordinarii hi vid. quibus competit iurisdictio ordinaria de iure privilegio vel consuetudine By which words my Lord it appeares though there be some other subordinate inferiour ordinaries under the Bishop in some parts of his Diocesse who have and hold under him in those parts an ordinary jurisdiction either iure privilegio vel consuetudine yet de iure communi over the whole Diocesse the Bishop only is Ordinary and onely hath a generall and an universall jurisdiction And this generall jurisdiction of the ordinary or Bishop extends not to all causes both Temporall and Ecclesiasticall but only to all causes meerely Spirituall so called not in respect of their owne nature but because they are assign'd to the Spirituall or Ecclesiasticall jurisdiction And those are of two sorts either civill Ecclesiasticall causes as Tithes Oblations Legacies Pentions and portions or else criminall causes and both these belong to the generall jurisdiction of the Ordinary for the former it appeares principally in two cap. of Lyndewodes Provinc and that in the very text first in his second booke tit de foro competenti cap. circumspecte agatis which though it be King Edw. 1. direction to his Judges or Justices or Commissioners concerning the Bishop of Norwich and other of the Clergy and bee extant among the Statutes 13. Edw. 1. yet seeing it treates of the spirituall jurisdiction of Ordinaries it is set downe by Lyndewode among the provinciall constitutions of our Archbishops of Cant. Secondly in his 5. booke tit de paenis cap. aeternae Sanctio voluntatis And for the latter namely criminall causes it appeares both in the two chapters before alleaged and more especially in the first booke of Lyndewodes Provinc tit de constitutionib c. exterior habitus ver Inquirant upon which word Lyndewode shewes that there is triplex inquisitio generalissima generalis specialis vel singularis and each of these is twofold either praeparatoria or Solemnis praeparatoria est fine exactione juramenti solemnis est cum juramento and the one of these makes way and worke for the other The preparatory inquisition findes out and starts the game and the solemne inquisition persues and takes it And the most generall inquisition both preparatory and solemne belongs to a generall councell or to a provinciall Synode but the inquisition generall and speciall both preparatory and solemne belongs to the jurisdiction of the Ordinary And this generall inquisition hath three degrees for it is generall either in respect both of persons and of crimes or it is generall onely in respect of persons and speciall or singular in respect of crimes or lastly it is generall in respect of crimes and speciall or singular in respect of persons as the Ordinary shall thinke fit and the matter require Now my Lord the High Commission hath nothing to doe with the first of these causes namely civill Ecclesiasticall causes no nor a generall jurisdiction in the latter namely criminall causes and both these are evident by divers judgements at the common Law Hilary 8. Iacobi In the common Pleas in the case of Huntley and Clifford it was resolved that the High Commission had not power to meddle with civill Ecclesiasticall
deputed to the Episcopall or ordinary jurisdiction and not reserved to the jurisdiction of the crowne or cognisance of the high commission Ratio 4 My fourth reason my Lord is taken from his Majesties commission granted to and pleaded by the commissioners which gives unto them onely a particular and a limited jurisdiction consisting in certaine Ecclesiasticall causes and certaine particuler offences against certaine particular lawes and not a generall jurisdiction in and over all Ecclesiasticall causes and offences as large and spatious as the canons and Ecclesiasticall lawes themselves And this will appeare my Lord by a particular enumeration of all the severall branches of the commission it selfe But this would bee a great labour and will be altogether needlesse whether the Defendants can shew any such branch of their commission or not for if they cannot shew any such branch of their Commission then doubtlesse the labour will bee needlesse seeing the proofe lies on their side no proofe being made sufficet neganti ut neget dummodo non probetur in contrariū And if they can shew any such branch of their commission then it shall suffice to confute that branch when the defendants or their counsell shal produce it I confesse my Lord that the Commission dated 11. Iacobi extends as far as the canons ecclesiasticall lawes themselues in cases concerning the reformation of Ministers for it gives in expresse termes power and authority to the commissioners to punish a Minister for any fault committed in his owne cure or else where that is punishable by the Ecclesiasticall lawes of the Land but I am sure my Lord that there is no such branch in the commission pleaded by the Defendants and therefore in that very respect if in no other an information lies good against the commissioners and this court hath rightly assigned me for a prosecutor in an information against the commissioners for going beyond their commission And if there were any such branch in their commission that branch under favour were void because it is contrary to the sence and meaning to the scope and drift to the very letter and text of the 1 of the 1 Eliz. the statute whereupon their commission is grounded as shall now appeare by my next and Ratio 5 Fifth reason which is taken from the 1 of the 1 Eliz. and from the 19 of the 25. of Hen. 8. reviv'd in the first of Eliz. and therefore whatsoever the 1 of the 1 Eliz. doth particularly and expressly establish by reviving the 19 of the 25. of Hen. the 8. It is to bee presumed that it doth not in the same statute afterwards by generall tearmes abrogate for that were to make that statute like the high commission sentence against me to be at variance with it selfe and to have our part contrary to another why then my Lord seeing the first of the first of Eliz. by reviving the 19 of the 25. of Hen. 8. doth particularly and expressly allow unto the ordinary with in his diocesse a generall jurisdiction in reference to the canons and Ecclesiasticall lawes of this land It is not to bee supposed that in the following parts of that statute the Parliament did afterwards by generall tearmes take that away from the ordinary and therefore those insuing generall words which enables the King to nominate commissioners and by his commissioners to reforme and correct all manner errors heresies schismes faults offences enormities which by any manner of power or authority may be reformed doe not make voide the the former statute and generall jurisdiction of the ordinary but only shew that be the fault never so great so that the ordinary by vertue of his subordinate jurisdiction cannot sufficiently punish it yet it may be sufficiently punished by the Kings supreame jurisdiction within the land without going to the Pope out of the land for by that paragraph that is invested in the crowne which by the former paragraph was abolished and extinguisht in others and in the former paragraph all forraigne usurped power onely and not the ordinary jurisdiction is extinguisht So that by those former generall wordes such grear grievous and enormous crimes onely as the ordinary by vertue of his subordinate jurisdiction cannot sufficiently punish may be brought to the high Commission court and there fully punisht and yet the former statute and generall jurisdiction of the ordinary remaine whole and intire namely that breaches of Cannons or of Canonicall obedience unto the Canons belong to the jurisdiction of the ordinary and that be within his diocesse hath power to punish any fault punishable by the Ecclesiasticall lawes of this land And this interpretation My Lord is warranted first by the very title of that statute which is an act to restore unto the crowne the ancient jurisdiction over the state Ecclesiasticall and for abolishing all forraigne power repugnant to the same not for abolishing the ordinary jurisdiction which is subordinate unto it but for abolishing all forraigne power repugnant to the same And the abolishing of the one and the restoring of the other is the whole and sole cause and occasion of that statute as is more fully exprest in the beginning of that statute where the Lords Spirituall and Temporall and the Commons do all acknowledge that from the 25. yeare of Henry the 8. at which time all forraigne usurped power was by divers good lawes and statutes abolisht and the ancient Ecclesiasticall jurisdiction fully restor'd and united unto the Crowne they were kept in good order and were disburdened of divers great and intollerable charges and axactions untill such time as the aforesaid good laws an Statutes made since the 20. yeare of Henry the eight by one act in the first and second of Philip and Mary were all cleerely repeal'd whereby as they there complaine they were againe brought under an usurped forraigne power and yet remaine in that bondage to their intolerable charges if some releife be not had and provided and thereupon they supplicate that both the foresaid statute of repeale may be repealed and the foresaid good laws and Statutes for abolishing all forraigne usurped power and for restoring the ancient Ecclesiasticall jurisdiction unto the Crowne may be revived In all which there is not any one word spoken against the Ordinary jurisdiction but onely against forraigne usurped power and this being the onely greivance and the totall occasion of that law must direct us in the interpretation of that law for occasio legis indicat mentem legislatoris sensum legis Secondly by the oath of Supremacy extant in the same statute and made for the same purpose namely to abolish all forraigne power repugnant to the jurisdiction of the Crowne not to abolish the ordinary jurisdiction which is subordinate unto it Thirdly by those generall wordes wherein the Kings jurisdiction is exprest namely by these wordes all errors heresies schismes faults offences enormities which last word doth and must qualifie all the rest and doth shew that by those wordes
obedience unto the canons testantibus ad versarijs the person but meane poore but a Presbyter a minister an incumbent and that onely of a single benefice and never any waies contumacious this matter belongs not to the cognisance of the High commission but to the jurisdiction of the ordinary and then it hath beene all this while coram non judice and so the sentence and whole proceedings are utterly voyd And thus much concerning this first question which my refusall to preach the Archdeacons visitation Sermon if it be a breach of Canonicall obedience begets namely that the breaches of canons or of canonicall obedience to the canons according to the Lawes and customes of his land belong to the jurisdiction of the Ordinary and not to the cognisance of the High commission court or that for the breach of a canon or of canonicall obedience to the canons according to the Lawes and customes of this land men are not to be fetcht from the judgement jurisdiction of the Ordinary up to the High Commission court and there to be fin'd imprisond but are to be left to the judgement and jurisdicton of the ordinary and he to proceede against them according to the power of the Keies Now on the other side my Lord if this my refusall to preach the Archdeacons visitation sermon be no breach of canonicall obedience then it begets this question whether the high commissioners your Lordship this court the Barons of the Exchequer and the Lords of the counsell have power to punish me for that which is no fault no breach of any law And least the high commissioners this court the Barons of the Exchequer and the Lordes of the counsell should all thinke to escape by maintaining the affirmative that they have power to punish me for that which is no fault no breach of any law and peradventure in a desperate case they will not sticke to maintaine a desperate opinion especially seeing your Lordship hath shew'd and lead them all the way For termino trinitatis 1637. When your Lordship delivered your opinion in the especiall verdict betweene Allen and Nash your Lordship not onely affirmed the high commission sentence of deprivation and degradation against me but also maintained that your Lordship and this court were bound to affirme it whether it were true or false grounded upon a cause or upon no cause Therefore my Lord to stoppe up that gap to prevent that starting hole to overthrow that parodox and with one argument to confute those foure Honorable senates whereof the first and the last the high commissioners and the Lords of the counsell challenge as great authority as the King himselfe hath and all of you in this my case usurpe a greater for you all punish me for that which is no fault no breach of any law I must in the first place Thesis 1 shew that no Magistrate whatsoever no not the supreame hath any power prerogative or authority to punish any man within his jurisdiction except it be for some fault some offence some vice some error some evill some sinne some transgression of some law Thesis 2 And secondly I must shew that my refusall to preach the Arch-deacons Visitation Sermon my principall or especiall fault in the judgement of my adversaries is no fault no offence no vice no error no evill no sinne no transgression of any Law whatsoever and that therefore neither the high commissioners your Lordship this court the Barons of the Exchequer the Lords of the counsell nor any other Magistrate whatsoever no not the supreme hath any power prerogative or authority to punish me muchlesse to imprison me for it And for the first of these positions that no Magistrate whatsoever no not the supreame hath any power Thesis 1. Tractatio prerogative or authority to punish any man within his jurisdiction except it be for some fault some offence some vice some error some evill some sinne some transgression of some law this appeares out of the 13. chapter to the Rom. verse 3. where the Apostle speaking of that Magistrate to whom the sword is committed of that Magistrate to whom we pay tribute of that magistrate to whom we must submit not onely for wrath but for conscience sake of that Magistrate to whom every soule is to be subject that is of the soveraigne supreme Monarchicall Magistrate Gods immediate deputy and vicegerent he saith of that Magistrate the Magistrate is not a terror to good workes but to evill wilt thou then be without feare of the power doe well so shalt thou have praise of the same for he is the Minister of God for thy wealth But if thou do evill then feare for he beares not the sword in vaine for he is the Minister of God to take vengeance on him that doth evill Saint Paul then is cleere that no Magistrate whatsoever can justly punish any man except it be for some evill And Saint Peter testifies as much 1 Epist 2. chap. 13. and 14. verses Submit your selves saith he to every ordinance of man for the Lords sake whether it be unto the King as the supreame or unto governours as them that are sent of him sent of him for what purpose Even for the same purpose that he before is sent of God namely for the punishment of them that doe evill and for the praise of them tbat doe well So that by the expresse word of God no Magistrate whatsoever no not the supreame hath any power prerogative or authority to punish any man within his jurisdiction except it be for some fault some offence some vice some error some evill some sinne some transgression of some law And this much my Lord king Artashast saw by the very light of nature as appeares by the wordes of his Commission granted to Ezra and expressed Ezra 7. chap. 25. 26. verse And thou Ezra after the wisedome of thy God that is in thy hand set Magistrates and Iudges which may judge all the people beyond the river even all that know the law of thy God and teach-yee them that know it not And whosoever will not doe the law of thy God and the law of thy King let judgement be speedily executed upon him whether it be unto death or to banishment to confifcation of goods or to imprisonment In which wordes King Artashast just as Saint Peter and Saint Paul before did gives power unto Ezra to punish men not for well doing but for evill doing no for keeping but for breaking Gods lawes and the Kings not for obedience but for disobedience not for vertue but for vice Nay God himselfe chalengeth no greater prerogative then to reward the observers and to punish the transgressers of his law Cursed be he saith Moses that confirmeth not all the wordes of Gods law to doe them Deut. 27. or as the Apostle expresseth it Gal. 3. Cursed is every man that continueth not in all things which are written in the booke of the law to doe them And if
twenty nine chapter of Magna Charta most fully and strongly confirmed 3. Caroli by the Kings Majesty in his answer to the Commons Petition of right in these wordes let right be done as is desired according to that twenty nine chapter of Magna Charta Now what saith that twenty nine Chapter of Magna Charta No freeman saith that chapter shal be taken or imprisoned or be disseised of his freehold or liberties or free customes or be outlawed or exiled or any otherwise destroyed neither will we passe upon him nor condemne him saith the King but by the lawfull iudgement of his Peeres or by the law of the land That is under your Lordships the Courts correction whose office it is to interpret statutes unlesse that party be first convicted found culpable of the breach of some law of this land by a legall proceeding either at the common law or else in some other court and whosoever shall either condemne or punish any freeborne subject of this kingdome either for his obedience to the lawes of this land or for that which is no breach of any law of this land he doth violate that twenty nine chapter of Magna Charta and for that he stands excommunicate by a double excommunication the one deliver'd publikely here in Westminster Hall (f) Tempore Bonifacii Archie◠regnante tunc in Anglia H. 3. videlicet anno Dom. 1253. Id ibus Maii. inaula Westmon 15. Epis leguntur sententiam de qua hic sit mentio fulminasse Lyndew Prov. lib. 5. tit de sententia excom cap. cum malum Parag. Item excom verbis ab omnibus Daniell in the life of H. 3. 37. Henry 3. by Bonifacius then Archbishop of Cant. assisted with 14. other Bishops all in their pontificalls and tapers in their hands which after the excommunication denounced they threw upon the ground and as they lay there smoaking they cried so let all them that incurre this sentence be extinct and stincke in hell and all this was done in the presence of the Commons Nobles yea and of the King himselfe who at the same time with a loud voyce said as God me helpe I will as I am a man a Christian a Knight a King crowned and anointed inviolably observe all these things and the excommunication it selfe is set downe at the end of the statutes made 52. H. 3. in the booke of statutes at large put out by judge Rastall the other is extant in the same booke at the end of the statutes made 25. Edward 1. and uttered by Robert Winchelsee Arch-bishop of Canterbury in his time both against the violaters of this renowned law of Magna Charta often confirmed not onely by the following Kings the successours of Henry the third and Edward the first but also by the Pope him selfe as appeares out of the fift booke of Lyndewodes provinciall titulo de sententia excommunicationis cap. Cum Malum parag Item excommunicatj And besides the former confirmations and excommunications the authority of Magna Charta was made sacred and inviolable as it were 25. Edward 1. first by decreeing that that charter under the Kings seale should be sent unto all the Cathedrall Churches throughout the Realme there to remaine and to bee read before the people twice a yeare And secondly by enacting that that Charter should ever after be propugnated and vindicated by the sentence of excommunication to be denounced twice a yeare by all Archbishops and Bishops in their Cathedralls against all those that by word deede or counsell did doe contrary to the foresaid charter or that in any point did breake or undoe it and if the same Bishops or any of them should be remisse in the denuntiation of the said sentence that then the Archbishops of Cant. and Yorke for the time being should compell and distraine them to the execution of their duties in forme aforesaid as appeares by the 3. and 4. chap. 25. Ed. 1. And surely my Lord those two former solemne excommunications were those other continuall semiannuall excommunications might have beene hitherto and may hereafter bee rightly and justly denounced against the violaters of this 29. chap. of Magna Charta for this 29. chapter that no free man is to be punished but for the breach of some law is good Divinity accords excellently with the word of God The Apostle Rom. 4.15 telles us 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the law causeth wrath that is punishment and how doth the Law cause wrath or punishment not simply singly of it selfe not observ'd but transgrest and therefore in the next words the Apostle saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where there is no Law there is no transgression And as where there is no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no law there there cannot bee any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any transgression of Law so where there is no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no transgression of law there there cannot be any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any fault or offence and where there is no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no fault or offence there there ought not to be any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any wrath or punishment Nay my Lord though there be a law yet if that law be not transgrest there cannot justly be any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any wrath or punishment At most though there may bee 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 proposita 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 denuntiata wrath proposed or denounced in the Law to terrifie all persons from sinne which is nothing but the binding power of the Law yet justly there cannot be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 imposita 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 inflicta wrath imposed or inflicted by the Judge upon any person to punish him for sinne untill the Law be transgrest and sinne committed by that person And this the Apostle Rom. 5.12 doth most acutely divinely shew by imputing the punishment partly to the Law and partly to the transgression of the law to the Law as to a just rule inflicting punishment upon the transgression to the transgression as to a meritorious cause deserving that punishment according to the just rule of the Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 By sin which is the transgression of the law Death the wrath punishment of the law entred into the world So then my Lord this is most certainely and most undoubtedly true wheresoever there is any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any wrath or punishment any fining or imprisonment any deprivation degradation excommunication or any other censure sentence mulct or punishment whatsoever rightly and justly inflicted There there must of necessity of necessity my Lord there there must be some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some fault or offence Wheresoever there is any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any fault or offence there there must of necessity of necessity my Lord there there must be some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some transgression of Law Wheresoever there is any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any transgression of Law there there must of
the very Letter and text of some Commissions that I have seene have this power that they may punish a Minister for any fault committed in his owne cure or else where that is punishable by the Ecclesiasticall lawes of this land By which words my Lord it appeares that first there must bee some fault Secondly that that fault must be against some law Thirdly that it must bee against some Ecclesiasticall law of the land or else that Honorable Court by the very Letter and text of the largest commissions that I ever saw have no power to punish a Minister And though this their Commission my Lord doth much outstrip the first of the first of Eliz. the statute whereon it is grounded for that statute extends not to every fault punishable by the Ecclesiasticall lawes of this land for then it would swallow up all the ordinary jurisdictions over England but onely to greivous and enormous crimes punishable by the Ecclesiasticall lawes of the land as the Counsell on both sides in the speciall verdict betweene Allen and Nash have confest and the wordes of the statute as I before have shewed doe necessarily enforce Yet in this case of mine to shew mine owne innocency and the goodnesse of my cause not to make a precedent in other mens cases I will give the defendants free leave and liberty to exceed both the statute and their Commission I will not coope them up and confine them within the lists and limits of the Ecclesiasticall lawes as the most indulgent and munificent Commissions that ever I saw doe yea and must doe unlesse they will make their Commission as well Temporall as Ecclesiasticall no my Lord I will not require an Ecclesiasticall law let them produce an law canon civill common statute or divine nay my Lord I will once againe deale more Nobly and generously more heroically and munificently with that Honorable court with those Augustins Hieromes Gregories Ambroses with those Nazianzens Chrysostomes Origens Basils with those reverend right reverend most reverend Prelates and Patriarchs of our church I will not require a whole law noe not a full period of a law Let them onely produce some colon nay some comma of law onely nay my Lord I will once againe deale more Nobly and generously more heroically and munificently with that Honorable court I will not require a whole colon no nor a whole comma of law neither that were too too an Herculean labour for that Honorable Court for those Canonists Civilians and Divines for those commissaries chancellours Arch-deacons Deanes Bishops Arch-bishops let them onely produce 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some shaving some scraping some paring some shred peece particle or fragment of Law nay let them onely produce 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unum unum apicem one jot one apex one tittle one pricke or point of law of any law my Lord and I doe most willingly and most instantly submit And now my Lord as the defendants doe pretend a fault so likewise they doe pretend a law the pretended fault is my refusall to Preach the Archdeacons Visitation Sermon the pretended law is the Law of Canonicall obedience They say that my refusall to preach the Arch-deacons visitation sermon at the Arch-deacons command is a breach of Canonicall obedience And now my Lord we are come to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ad statum causae ad caput controversiae for this Canonicall obedience is the whole and sole ground and foundation and supportation of the whole sentence against mee and it cannot be understood and determined whether my refusall to preach the visitation sermon be a breach of canonicall obedience or not unlesse it be first knowne and understood what this Canonicall obedience is so that in the first place my Lord there is a necessity imposed upon mee breiflly to present unto your Lordship what this Canonicall obedience is The high Commissioners in the first part of their finall sentence as it was given in their owne Court make Law custome and Canonicall obedience three different and distinct thinges For therein they say that the Archdeacon in injoyning Huntley to preach his visitation sermon hath commanded him no more than the said Huntley was bound to doe by law custome and by his Canonicall obedience and herein by making Canonicall obedience a third and distinct thing from law and custome they shew that they onely use the name of Canonicall obedience but intend arbitrary or blind obedience that is a generall and universall obedience to all the Arch-deacons commandes though they swarve both from law custome whereby they make every Arch-deacon Bishop and Arch-bishop a law-maker within his owne jurisdiction and every of their commands binding and compulsive though fortified neither by law nor Custome But your Lordship as it seemes not content herewith steps a degree further and makes Canonicall obedience not onely a third and distinct thing from law and custome but also a thing opposite and contrary to law and custome for termino trinitatis 1637. when when your Lordship delivered your opinion in the speciall verdict betweene Allen and Nash your Lordship said that if the Arch-deacon did owe me an 100. pounds by bond he might by vertue of my Canonicall obedience command mee to deliver up that bond the money not being yet paid Or he might command me by vertue of my Canonicall obedience to send him a yoke of fat oxen a couple of good Coach-horses or a score of fat weathers which I am sure is not onely beyond but contrary to law and custome and more than either his Majesty or any of his royall predecessours did ever chalenge of any freeborne subject either by the oath of allegiance or oath of supremacy whether your Lordship have altered this your opinion or no I know not the high Commissioners I suppose have altered theirs For certaine it is that the former wordes of the first part of their first finall sentence as it was given in their owne Court are altered in the defendants plea wherein they make Canonicall obedience not a third and distinct thing from law and custome as before but a subordinate relative and a proportionable thing to law and custome by changing these their former wordes law custome and his canonicall obedience into these law and custome according to his Canonicall obedience And this alteration as I suppose proceeded from the acute and polite wit of you Master Justice Heath at that time the Kings Attourney Generall and Commissioners counsell who seeing that the Commissioners by the former wordes did make canonicall obedience a third and distinct thing from law and custome that thereby they did under the name of canonicall obedience chalenge arbitrary and blind obedience to and for every Arch-deacon Bishop and Arch-bishop that thereby they made themselves all lawmakers within their severall jurisdictions and that so at once by two wordes they gave two deadly woundes one to his Majesties supreame jurisdiction who under God is the onely lawmaker within this land
have his obedience perfect indeed the Abbot bid him thrust his naked arme into a great seething pot full of meat pull out the lowest peece of meat that was in the pot and added that if the scalding liquor did not hurt his naked arme then his obedience was perfect indeed Malmesburiensis in his second book de gestis Pontificum Anglorum in the life of Elstan saith that the Monke did doe so and his hand and arme received no harme and thereby as by a miracle his obedience was knowne to be perfect indeed In the third place they extend it to thinges wicked and ungodly Cardinall Bellarmine de Pontifice Rom. lib. 4 cap. 5. tells us that if (x) Si autem Papa erraret praecipiendo vitia vel prohibendo virtutes teneretur Ecclesia credere vitia esse bona et virtutes malas misi vellet contra conscientiam peccare the Pope should so farre forth erre as to command vices and to forbid vertues the Church were bound to beleeve that vices are good and vertues are evill unlesse she will sinne against her owne conscience and Cardinall Cusanus excitat lib. 2. Serm. 2. excitat lib. 6. serm super respice domine de caelo vide requires every man to yeild both implicite faith blind obedience not onely to the Popes erronious doctrine but also to the erronious doctrine of his own prelate and that without any further search or inquiry after the truth (y) Quam firma est aedificatio ecclesiae quia nemo potest decipi etiam per malum praesidentem si dixeris domine obedivi tibi in praeposito hoc tibi sufficiet ad salutem Tu enim per obedientiam quam facis praeposito quem ecclesia tollerat decipi nequis etimasi praeceperit alia quam debuit praesumit enim ecclesia de illa sententia cui si tu obedieris magna erit merces tua Obedientia igitur irrationalis est consummata obedientia prefectissima scil quando obeditur sine inquisitione rationis sieut iumentum obedit domino suo how strong saith he is the building of the Church for no man can be deeeiued no not by an evill prelate If thou say unto God O Lord I have obeyed thee in my prelate this shall suffice thee unto salvation for thou canst not be deceived by thine obedience which thou yeildest unto thy prelate whom the church suffereth though he command thee other thinges than he ought to doe for the Church presumeth his sentence to be good which sentence if thou obey thy reward shall be great Obedientia igitior irrationalis est consummata obedientia perfectissima Therefore saith hee obedience unreasonable obedience without reason blind obedience is consummate and most perfect obedience that is saith he when thou obeyest thy prelate without seeking a reason even as an horse obeyeth his Master Suppose now my Lord that the Pope should teach the Church and the Bishop should teach those of his diocesse and the generall of the Jesuites should teach those of his order not such doctrine as * Defens fidie lib. 6. cap. 6. mysteria patrum Iesuit p. 159. 160. 161. Swarez teaches that it is lawfull for any man actually to depose and kill a King by the Popes sentence First excommunicaed deposed and devested of his Subjects allegiance and fealty But such doctrine as * Mr. Anthony Arnoulds plea. pag. 11. 12 Varade Principall of the Iesuites in France taught Barriere namely that to murder Henry the fourth of France though a Catholique and not excommunicate was a meritorious worke and that for that deed hee should goe straight unto Paradise or that to murder any other good King good Magistrate good man is a meritorious worke and that for that deed hee that doth it shall goe straight unto Heaven In this case according to this doctrine what were the Church the Bishops subjects and the Jesuites bound to doe onely vi mandati virtute obedientiae without any reference to those manifold subtilties distinctions and subdistinctions in the Jesuites King-killing doctrine why the Church saith Bellarmine it tied in conscience to beleeve and obey the Pope though he teach vertue to be vice and vice to be vertue otherwise she sinnes against her conscience The Bishops subjects must obey him without requiring a reason as an horse having a bridle on his head followes his Master and this saith Cusanus is perfect obedience and after the fact is done if they say unto God O Lord wee have obeyed thee in our prelate they have every one his quietus est this shall suffice them unto salvation nay their reward shall be great And the Jesuites even by their vow are bound to obey their generall even as Iesus Christ himselfe ubique in omnibus every where and in all thinges yea when he commands them to kill and murder And hereupon Campian in that one of his three (z) Generalis praepositi nostri dâ—creto quod ego tanquam mandatum caelitus missum a Christo ipso sancitum veneror Praga Romam ubi Generalis nostri perpetua sedes est Roma deinde in Angliam contendi Campian Epist prefixed before his ten reasons directed to Queene Elizabeths counsell saith that he came over into England iussu sui Generalis tanquam iussu ipsius Christi at the command of his generall as at the command of Christ himselfe and what to doe Even by his owne confession as Sir Edward Coke in Caudreys case saith to make a party for the Catholicke cause that is to withdraw the Queenes subjects from her allegiance and to reconcile them to the Church of Rome which as Sir Edward Coke there saith is treason and punishable with death by the common lawes of the Land And if any will further see the fruites and effects of this arbitrary and blind obedience let him cast his eyes upon Felton at the command of Pope Pius Quintus setting up upon the Bishop of London his gates an excommunication against his owne Soveraigne Queene Elizabeth that peerelesse Lady Let him cast his eyes upon Iacob Clement murdering King H. the 3. upon Francis Ravaillac murdering King Henry the fourth both of France And lastly upon the Gun-powder treason plotted and contrived by the advice and approbation of Henry Garnet superiour of the Jesuites here in England and of Oswold Tesmond Iohn Garrard and other Jesuites as appeares by the 2. of the third of Iames. And this is the reason my Lord that such monstrous impieties and such matchlesse villanies are done by the inferiour at the command of the superiour in the Church of Rome not in the Church of England because the Church of Rome doth approve and embrace arbitrary and blind obedience and the two parts and kinds thereof uncanonicall and anticanonicall and extends it to thinges fond and frivolous ridiculous and absurd yea wicked and ungodly which the Church of England doth utterly reject and contents her selfe with Canonicall
if this rule be a good rule then c. * Loco praeallegato Decretal lib. 1. tit 2. De constitut cap. 1. Hostiensis againe gives this rule cum duo domini contraria iubent maiori est obediendum minori resistendum And if this rule be a good rule then c. The body of the Canon law gives this rule Canonum statuta ab omnibus custodiantur nemo in actionibus vel iudiciis Ecclesiasticis suo sensu sed eorum authoritate ducatur and if this rule be a good rule then c. Bellarmine gives this rule Lib. 2. De concil cap. 8. parag Alii dicunt Concilitum Nisi manifestissime constet intolerabilem errorem committi parag 33. numb 3. as it is well expressed by my most reverend Diaecesen and provinciall my Lords Grace of Cant. in his relation of the conference betweene his Grace and Master Fisher the Jesuite in these words Inferiours may not judge whether their superiours and that in a Councell doe proceede lawfully or not unlesse it manifestly appeare that an intollerable error be committed And this caution or exception that an intollerable error doe first manifestly appeare doth free Bellarmine from inclining to a private (k) 2 Pet. 1.20.21 Knowing this first that no Prophecy of Scripture is of any private interpretation for the Prophesie came not in old time by the will of man but holy men of God spake as they were moved by the Holy Ghost An interpretation may bee private ratione personae and yet more then private ratione medii spirit as his Grace doth seeme there to imploy And if this rule bee a good rule then c. and have all inclind to a private spirit Parag. 33. Numb 4. Againe my most reverend Diaecesan and Provinciall my Lords Grace of Cant. in his forecited treatise gives this rule The Church is never more cunningly abused then when out of this truth that she may erre men inferre this falsehood that she is not to be obeyed For it will never follow shee may erre therefore shee may not governe For he that saies obey them which have the rule over you and submit your selves for they watch for your soules Heb. 13. commands obedience and expressely ascribes rule to the Church And this is not onely a pastorall power to teach and direct but a praetorian also to correct and censure too where errors or crimes are against points fundamentall or of great consequence else Saint Paul would not have given the rule for Excommunication 1 Cor. 5. Nor Christ himselfe have put the man that will not heare and obey the Church into the place and condition of an Ethnicke and a Publican as hee doth Saint Mat. 18. And Solomons rule is generall and he hath it twice My sonne forsake not the teaching or instruction of thy mother Now this is either spoken and meant of a naturall mother and her authority over her children is confirmed Ecclesiasticus 3. And the foole will be upon him that dispiseth her Prov. 15. Or it is extended to our mysticall and spirituall mother the Church and so the Geneva note upon the place expresses it and I cannot but incline to this opinion saies his Grace because the blessings which accompanie this obedience are so many and great as that they are not like to bee the fruits of obedience to a naturall mother only as Solomon expresses them all Prov. 6. In all which here is no exception of a mothers erring Hitherto my Lords Grace verbatim Now my Lord I demand which best deserves the name of Church and of spirituall Mother A provinciall Synod or an handfull of men in the high Commission Court sitting Judges in their owne cause wherein they are all parties surely a provinciall Synod And if this rule bee a good rule then c. and have all to use his Graces owne words followed the swinge and whirlewind of a private spirit Contra fund Cap. 4. Saint August gives this rule and my most reverend Diaecesan provinciall my Lords Grace of Cant. in his forecited treatise renders it thus Parag. 33. Consideration 5. numb 2. Consent of nations authority confirmed by miracles and antiquity Saint Peters Chaire and succession from it must not hold me saith Saint August against demonstration of the truth which if it bee so clearely demonstrated that it can not come into doubt it is to be prefer'd before all those things by which a man is held in the Catholicke Church Therefore saies his Grace an Evident Scripture or demonstration (l) An argument necessary and demonstrative is such as being proposed to any man and understood the minde cannot chuse but inwardly assent unto it parag 33. Consider 5. numb 1. out of Hookers preface pag. 29. of trueth must take place every where but where these cannot be had there must be submission to authority And if this rule bee a good rule then c. and have all followed the wildnesse of a private spirit Solomon Prov. 28.4 gives this rule They that forsake the law praise the wicked but they that keepe the law contend with them and if this rule be a good rule then c. Saint Peter 1. Epist 2. cap. 13. and 14. verse gives this rule Submit your selves to every ordinance of man for the Lordes sake whether it be unto the King as the supreame or to governours as them that are sent of him First to the King then to governours first to the supreme then to the subordinate for so saith Saint Peter is the will of God that by well doing yee might put to silence the ignorance of foolish men It is then the will of God the word of God and a good worke to preferre the King the supreme before Governours the subordinate and they that maintaine the contrary are ignorant and foolish men saith Saint Peter In which wordes Saint Peter is very bold with his pretended successour the Pope and with all those who being subjects doe with that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Advance themselves above before their owne Soveraignes for he calls them all in expresse tearmes ignorant and foolish men and if this rule c. But were there no other rule my Lord but canonicall obedience onely which my adversaries by abusing it against mee have thrust into my hand that were enough to decide this question for canonicall obedience is such obedience as the canons require and if this rule be a good rule then the canons are to be prefer'd before the Arch-deacons uncanonicall and anticanonicall postscript private letter and message and then I have done well and the Arch-deacon the defendants and the Honorable Court of high Commission your Lordship this Court the Barons of the Exchequer and the Lords of the counsell have done ill So that now canonicall obedience which the defendants have abused as a net to insnare mee and a buckler to defend themselves being rightly understood prooves an engine to deliver mee and a net to entrap
Archdeacon to warne me to preach that sermon And then my Lord how have I transgrest either the Archdeacons mandate or the order of the High-commission Court or what authority had that apparitor or publik officer to warne mee to preach that Uisitation Sermon just none at all as appeares by the 138. canon made 1. Iacobit where it is said all apparitors shall by themselves faithfully execute their offices neither shall they by any colour or pretence whatsoever cause or suffer their mandates to bee executed by any messengers or substitutes In which words my Lord it appeares that an apparitor doth then faithfully execute his office when he doth faithfully execute his mandates that is neither goe beyond nor come short of his mandates so that the apparitours have no power to warne or summon any man with out such a mandate No nor the Bishop Chancellour Archdeacon Officiall nor any other Ecclesiasticall Judge as appears by this 120 Canon No Bishop Chancellour Archdeacon Officiall or other Ecclesiasticall Judge shall suffer any generall Processes of Quorum nomina to be sent out of his Court except the names of all such as thereby are to be cited shall be first expressely entred by the hand of the Regester or his deputy under the said Processes and the said Processes and names be first subscribed by the Judge or his deputy and his seale thereto affixed So that whensoever any Bishop or any other Ecclesiasticall Judge will cite any man to appear before him he must send out by his Apparitor a mandate or processe and therein the name of the party to be cited must be first entred by the Regester or his deputy and then subscribed by the Judge or his deputy and his seale thereto affixed And if any Ecclesiasticall Judge whatsoever shall by his Apparitor without such a processe or mandate Summon any man to appeare before him the party is not bound to appeare and though he do not appear yet he is not culpable of any contumacy as appears by this 122 Canon When any Minister is complained of in any Ecclesiasticall Court belonging to any Bishop of this Province for any crime the Chancellour Commissary Officiall or any other having Ecclesiasticall jurisdiction to whom it shall appertaine shall expedite the cause by processes and other proceedings against him and upon contumacy for not appearing shall suspend him First then after complaint made against any one the Judge must cite the party by processe to appeare before him if the party obey not the processe he is then contumacious but without processe there is no contumacy If your Lordship shall aske me what authority the Apparitour pretended when he warned me to preach the said Visitation Sermon I answer that he pretended a processe or mandate from the Archdeacon and it is true my Lord that he had a processe and mandate from the Archdeacon and yet no processe or mandate from him He had a processe or mandate to warne me to appeare at the Archdeacons Visitation and there to pay my procurations due to him for Visiting and that processe or mandate was a publicke instrument out of the Archdeacons Court made in the Archdeacons name under the seale of his Office and the hand of a publicke Notary But he had no such mandate or processe to warne me to preach the Archdeacons Visitation Sermon but only an * In this particular Doctor Kingsley and the Commissioners are more Popish and presumptuous than the Pope himselfe For the Pope sends out only his Bulls Diplomaes or Mandates formally and regularly made sign'd and seal'd with out any postscript according to this old proverb Mittit plumbum exigit aurum But these together with their Mandates or Processes send out their said Postscripts and thereby they will abrogate the Word of God the Articles Statutes Canons his Maiesties Letters Patents royall Prerogative and oath of Supremacie Iust as the Pope presumeth to do with his Bulls And for the violation of these Postscripts they will Fine Imprison Deprive Degrade and Excommunicate which is a Popery pride and presumption more than papall apocryphall uncanonicall anticanonicall antidiplomaticall antiprerogative antisuprematicall postscript in these very words You are to warn George Huntley Parson of Stouremouth to preach at the time and place above mentioned And this postscript set under the processe after the test and Regesters hand was made in no mans name subscribed with no mans hand confirmed with no mans seale and is contrary to the Canons both for forme and matter for matter to the 49 Canon which forbids me being no licensed preacher to preach or expound any Scripture in mine own Cure or else-where for forme to the 120 Canon which forbids any thing to be written under a generall processe of Quorum nomina such as that was but only the names of the parties to be cited and those names must first be entred by the Regester or his deputy under the processe and then subscribed by the Judge or his deputy Here were not only names but also new matter namely the preaching of the Visitation Sermon and yet neither names nor matter either entred by the Regester or his deputy nor subscribed by the Judge or his deputy Unto this warning thus given by the Apparitour by vertue of his vicious postscript I gave only this answer that on the morrow I would send my answer in writing to Master Archdeacon and on the morrow I sent this letter to Master Archdeacon and he received it and it was read in the High-Commission Court by Doctor Ducke one of the Advocates for the Office against me the 19 day of Aprill 1627. when the second part of the first finall sentence was given against me and I Fined five hundred pounds and first imprisoned To the Right worshipfull Mr Doctor Kingsley Archdeacon of Cant. give these Sir I Marvell that being a member of the High-Commission you should not better observe the order of that Honorable Court Their order is that you must command me to preach a Visitation Sermon and that I must obey your command and this they say is the custome And therfore as I must obey according to custome so you must command according to custome What the custome in this point is Sir George Newmans answer ad septimum articulum declares who there deposeth that for these thirty years of his own knowledge the Archdeacon of Canterbury for the time being hath sent Processe by his Apparitor to command the Ministers to preach at his Visitation Do you observe this custome command me by Processe to preach at your Visitation and I will preach a sermon for your Visitation as effectually as I can Your Apparitor shewed me Processe and no Processe Processe to command me to appeare at your Visitation no Processe to command me to preach at your Visitation When you conceive meanly and not evilly of me you conceive as I my selfe do and both aright yet if I may speak it without arrogancie I am not so stupid and obtuse but