Scripture to be given them by God and therefore the King and Parliament may be pleased to abolish both them and their power as King Hen. 8. did abolish Monkes and Friars 26. 40. and 28 The challeng for Lordly primacy out of the great charter answered 28 The study of the civill Law and the professors of it may florish more than now they doe 28 Fees for probate of testaments let to farme 29 Fees dew for execution of functions of the Canon Law disproportionable for a Dâ—ctor of the Civill Law 30 An Act of Parliament for the advancement of the Civill Law is set downe and a forme laid for all proceedings in the Courts in which the Civill Lawyers should be Iudges 32 33 It will advance the honour of the King and the good of his subjects to have matters of tithes and testaments and matrimony reduced by act of Parliament to bee tried by the Iudges of the Common Law 37 Matters of tithes and other causes of light nature pertaine to civill justice 37 The temporall law may easily bee applyed to causes now reputed Ecclesiasticall 39 How legacies may be recovered at the Common Law 42 Matters of marriages more fit to bee decided by the Kings officers than by the Bishops 43 Much adâ—e in the Bishops Courts about Accipio and Accipiam 44 The common Law preferred by the Bishops above the Law of God and the civill Law 45 Causes of Adulteries Slander Heresie which by sufferance only have bin exempted from the Cognizance of the King may be arbitrated by the Iudges of the common Law 47 Hierarchy may be judged felony if it please the King 49 The cognizance of all crimes as well as of some by the Law of God belong to the King 50 No impeachment and impropriations in lay mens hands the stat of 15. Rich. 2. and the 4. Hen. 4. being observed for a Vicar endowes yet if it please the King Parliament a law may be made for reducing of impropriations which may bee done First by restitution Secondly by commutation Thirdly by redemption Fourthly by contribution 52 Parochiall Churches to what use they were founded 56 First restitution of many may and ought to be which are now accounted the temporall revenues of Archbishops and Bishops which were given to severall Churches are now spoyled of them by Archbishops and Bishops 55 56 57 58. Secondly commutations may be made of many of the Bishops lands given to superstitious uses for many impropriations in the Kings hand and the hands of many of the Nobility 56 58 59 Thirdly there may bee a redemption made of the same land or buying in of many impropriations by a common purse or treasury which will increase 1. When the people shall be discharged of the burden of Ecclesiasticall Courts 2. The treasure will increase by the dissolution of Chapels of ease and uniting two Parishes into one and especially in great Cities and Towns where often are but small Livings 61 Dissolution of Chapels no new thing Ibid. Chapels the Seminaries of hirelings 62 3. By sequestration of the Livings of non residents 4. By the forfeiture of penall Lawes due to the King 60 61 62 63 Sequestration of the Churches of pluralists may further the treasure for redemption of impropriations 63 By what contributions Impropriations may bee brought to the use of the ministery 63 Fourthly the fourth meanes viz by contribution wherby Impropriations may be reduced to the ministery 63 64 65 How and by what means impropriations may be reduced into the ministery 65 66 None of the three estates in Parliament is lost by removall of the Hierarchy as appeares by severall statutes viz. 25. E. 3. c. 24. 31. Ed. 3. Stat. of Herrings 3. R. 2. c. 3. 7. R. 2. c. 12. 1. E. c. 2. 68 69 70 71 72 73 The state of Prelacy founded by the Grandfather of K. E. 3. 69 The K. having the assent of the Nobles and Commons may repeale statutes without the assent of the Prelates 70 The argument answered in which it is said that it hath been alwayes dangerous to pick quarrels against laws setled 74 75 Lesse danger to reforme the Church by new lawes than to continue corruption by old lawes 74 That argument answered in which it is said that there must of necessity be in every Parish one Pastor a company of Seniors and Deacon or two at the least and all those to be found of the Parish 75 76 77 78 What kind of men ought to be chosen Seniors and Deacons 76 The judgment of the Commissioners of Ed. 6. touching Elders and Deacons 77 The election of Pastors by the people stands upon the ground of reason and nature rules of Christian equity and the law of God therefore by no Law or custome can justly be taken away though actually it was by the Pope 79 to 87 Dangerous to innovate unlesse there be evident utility in innovation 80 The common manner of election in the old Churches was by the people 81 The King without the people hath power to nominate the Kingly Bishop 82 M. Bilson confirmes the peoples election of their Pastor 83 A great difference betwixt the choice of Bishops in England and Pastors 86 No Schisme hapned by choice of Pastors by the people ancient schimes were ever from the election of Bishops 87 88 therefore a Stat. is desired for the giving of election of their Pastors 86 Election of publike officers in Cities and Boroughs is by the principall men of these places 90 91. therefore Ministers may bee elected the officers of Cities and Townes Corporate chosen without contention therefore Pastors may be also chosen 90 The people would be more carefull of their Election than Bishops have been the people could make no choice of insufficient Ministers unles the Bishops did make insufficient Ministers 93 94 The common people accused of backwardnesse in Religion the reason of that must needs be from their ill guides 95 Men of excellent gifts and men of no gifts are unequally matched in the ministery of the Gospell 96 The people may know a man to be a fit Minister though he be not brought up among them 98 What knowledge of a Minister is required in the people before they choose him No partiall suits can follow the election of Ministers by the people 100 The means to take away all symony for places in the Ministry 100 The inconveniences of Bishops ordination set downe 102 As many suits betweene the Bish and the Clerke 2. suits between the Clerke and the Archdeacon 3. suits betweene the B. and the Archdeacon 4. Riots and breaches of the Kings peace 5. unlawfull Fees for Letters of institution 6. unlawfull Fees for letters of sequestration 105. 7. Perjury by the Clerk and robbery by the Patron 8. Chopping of benefices and dispensations 106. A supplication to the Parliament to consider these inconveniences and likewise a briefe way is set downe of the redresse of them 107 Diverse things set down concerning ordination of Ministers
extraordinary alterations it is not only requisite to abolish all bad opinions out of the mindes of those that know not the drift of the enterprisers but it is also necessary that the defence of such alterations be made forcible against the opposition of all gainesayers we will descend to the particulars and joyne issue with the Admonitor And upon all allegations exceptions witnesses and records to bee made sworne examined and produced out of the holy Scriptures and Lawes of the Land already setled on the behalfe of our cause before our Soveraigne Lord the King his Nobles and Commons in Parliament we shall submit our selves and our cause to the Kings Royall and most Christian judgement In the meane time we averre that not only the former clause of this admonitory bill but that all other clauses following in the same bill for the invaliditie insufficiency indignitie and nullitie of them are to bee throwne out and dismissed from the Kings Court especially for that the particulars opened by the Admonitor can not serve for any reasonable warning to induce the common people to rely themselves upon his I am of opinion to the which we plead at barre as followeth ADMONITION First saith he the whole State of the Lawes of the Realme will be Page 77 altered For the Canon Law must bâ— utterly taken away with all Offices to the same belonging which to supply with other Lawes and functions without many inconveniences would bee very hard the use and studie of the civill Law will bee utterly overthrowne ASSERTION When by a common acceptance and use of speech these words whole State of the Lawes of the Realme are understood of the Common and statute lawes of the Realme that is to say of the Kings temporall Canon and civill Lawes no part of the Laws of the Realme but only by sufferance lawes and not of Canon or Civill lawes it cannot follow that the whole state of the Lawes of the Realme should be altered though the Canon and Civill Lawes with all offices to the same belonging should be utterly taken away and be wholly overthrown For no more could the Admonitor prove the Canon or Civill Law at any time heretofore to have beene any part of the Lawes of this Realme otherwise than only by ` a 25. H. 8. C. 21. in the preamble sufferance of our Kings acceptance long use and custome of our people than can any man prove a parsley-bed a rosemary-twigge or an ivie-branch to be any part of the scite of the Castle of Farnham And therefore he might aswell have concluded thus the whole scite of the Castle of Farnham will be transposed for the Boxetrees the Heythorne Arbours and the Quick-set hedges planted within the Castle-garden must bee removed and cast away which were but a proofe provelesse and a reason reasonlesse If then by the abrogation of the Canon or Civill Law scarce any one part of the lawes of this Realme should be changed what reason have we to thinke that the whole state of the lawes of the Realme must be altered Besides to conclude the whole by an argument drawne ab enumeratione partium and yet not to number the tenth part of such parts as were to bee numbred is I am sure neither good logick nor good law Moreover if all the Canon-law I mean all the Papall and forraigne Canon Law devised and ordeined at Rome or elsewhere without the Realm and consequently all the Offices and functions to the same belonging bee already utterly taken away what hope of reward can Civilians expect from the use of such things as are within the compasse of that law or of what efficacy is this argument to prove an alteration of any part of the lawes of this Realme or that the studie of the Civill Law should be utterly overthrowne For the whole state of the Lawes properly called the Lawes of the Realme hath stood and continued many years since the same Papall and Canon Law was abolished An imbasement for civilians to have preferment by offices of the Canon law The Canon law be abolished out of the realme and ought not to be used And as touching the Civilians for them to seeke after preferments by Offices and functions of the Canon Law is an embasement of their honourable profession especially since farre greater rewards might very easily bee provided for them if once they would put to their helping hands for the only establishment and practice of the Civill Law in the principall causes now handled by them in the Courts called Ecclesiasticall But how may it be proved that the Papall and forraign Canon law is already taken away and ought not to bee used in England For my part I heartily wish that some learned men in the Common Law would vouchsafe to shew unto the King and Parliament their cleare knowledge in this point In the meane season I shall not be negligent to gather and set downe what in mine understanding the Statute-Law hath determined thereof By the statute of submission 25. Hen. 8. revived 1 Eliz. as the very words and letter of the petition and submission of the Clergy of the body of the law and of the provisoes doe import the very true meaning and intent of the King and Parliament is evident and apparent to be thus as followeth and none other viz. That such Canons Constitutions and Ordinances Synodall or Provinciall which before that time were devised and ordained or which from thence orth should bee devised or ordained by the Clergie of the Realme being not contrariant or repugnant c. should only and alonely be authorised and to be put in ure and execution And consequently that all Canons Constitutions and Ordinances Papall and made by forraigne power without the Realm should wholly and utterly be abrogated adnulled abolished and made of no value The words touching the petition and submission mentioned in that Statute in substance are these Where the Kings humble and obedient subjects the Clergie c. have submitted themselves and promised in verbo Sacerdotii that they will never from henceforth presume No Canons provinciall or other to bee put in ure therefore no papall canons in force to attempt alledge claime or put in ure any Canons Constitutions Ordinances provinciall or other or enact promulge or execute any new Canons c. And where also divers Constitutions Ordinances and Canons Provinciall or Synodall which heretofore have beene enacted and be thought not only to bee much prejudiciall to the Kings prerogative Royall c. the Clergie hath most humbly besought Canons provinciall heretofore enacted being prejudiciall are to be abrogated the Kings Highnesse that the said Constitutions and Canons may be committed to the examination and judgement of his Highnesse and of two and thirty persons of his subjects c. and that such of the said Canons and Constitutions as shall bee thought and determined by the said 32. persons or the more part of them worthy to be abrogated
presently the parish Church of Hadenham only excepted was adjudged to be void and utterly repealed and adnulled for ever And therefore I leave it to the inquisition of our Soveraigne Lord the King whether the impropriation of the parish Church of Belgrave in the Countie of Leicâ—ster whereunto two Chappels are annexed and other Churches appropried to the Bishop of Liecester since the statutes of Richard the second and Henry the fourth bee the lawfull or unlawfull possession and heritage of the same Bishop yea or no And if it bee lawfully appropried and so a lawfull possession and heritage then I leave it againe to the inquisition of the King what summe of money out of the fruits of the same Church ought yearely to bee distributed to the poore parochians what the endowment of a Uicar canonically to be instituted and inducted in the same Church should bee what house is appointed for the same Vicar to keepe his hospitalitie in and whether any Vicar for the space of these many yeares passed hath beene canonically instituted and inducted in the same Church to possesse that endowment to inhabit that same house and to inform that people For if by the appropriation it self or by the abuse thereof the poore parochians have beene defrauded of their yearely distribution or if no Vicars have beene Canonically instituted and inducted in the same or if being inducted they have their endowments so small or so covetously kept back from them as that they cannot sufficiently maintaine themselves much lesse keepe hospitalitie then as the Admonitor confesseth there must needs be a lamentable abuse of impropriations and that therefore it is greatly to be wished that by some good statute it might be remedied And as those Churches which are unlawfully appropried are not the lawfull possession and heritage of the proprietaries so on the other side we affirme that those impropriations which were made and reformed according to the statutes of Ric. 2. and Hen. 4. may well stand as mens lawfull possessions and heritages even with those things which are required to be planted and brought into the Church whatsoever the Admonitor hath written to the contrary For we doe not hold that maintenance must only and necessarily be provided for every Minister by the paiment of tyths oblations and other ecclesiastical profits belonging to Churches appropried or disappropried For there being no direct proof to be made out of the law of God that Ministers of the Gospell must only live upon tythes the King and parliament may well and competently enough appoint convenable endowments for every Minister without disapproprying of any Church appropried And therefore little cause had the Admonitor to insinuate the ruine of impropriations upon the bringing in the discipline of our Saviour Christ because the same may be well planted and yet to other not unplanted But what need we to argue against his insinuation considerâ—ng hee himselfe before he came to the end of this page by his owne idisclaime contradicted his insinuation For if the forme of finding Ministers by tythes must with the canon law as he saith be abolished and if there must be some other order for this devised because this may seeme papisticall and antichristian what should any man feare the taking away of those lawes whereby impropriations do stand For if such as heretofore have spoken or written against them because as he insinuateth the forme of finding Ministers by tythes seemed to be unlawfully taken away and as he would also insinuate by their judgement ought againe to bee restored and not to stand any longer as mens lawfull possessions and heritages How I say doth it follow that they which desire impropriations to be restored to their pristinate state should withall enquire to have the finding of Ministers by Tythes to bee abolished It seemeth therefore that the Admonitor so hee might bee talking passed but a little what hee talked For what a double talke is here or to what purpose was this talke Was it because some men doe thinke that the Ministers ought not to receive tythes for their reliefe and paines in the Ministerie Why then let all men know that we disclaime such some mens opinions For we account all things pertaining to this life directly or by consequence not commanded nor prohibited by the holy and sacred Scriptures to be things indifferent and that therefore we may use them or not use them as the commoditie or incommoditie of the Church shall require And therefore as we doe not affirme that the maintenance of the Ministers must onely and necessarily bee levied out of tythes oblations and such like so also wee doe not deny but that the tenth part of the increase of all our goods by the authoritie of the King and his lawes may be alloted for their possession and heritage especially in our countrey the same manner of payment being so ancient and so agreeable to the manners usages and disposition of our state and people Nay since the payment of tythes for service accomplished in the spirituall Sanctuarie is correspendent in the nature thereof to the equitie of the Law of Moses for the Levites attendance about the earthly Tabernacle and since also wee bee bound by the commandement of the Apostle to make him that teacheth us in the word to be partaker of all our goods I see not so Jewish and popish ceremonie and superstition be avoided but that this duetie may as Christianly be performed by the payment of the tenth part of the increase of our corne hay wooll lambe c. as by the eight twelfth twentieth or any other part of our money and coine By payment also of which tithes the Ministers at every season with every kinde of necessarie provision towards hospitalitie might throughly be furnished which many times they shall want by reason of mens backwardnesse when collections of monie are to be made But to speake no more of this matter of tithes we will return to the objection made against the Apostolicall government drawn from taking away impropriations And herein we will not handle whether the lawes whereby impropriations do stand as mens lawfull possession and heritage must as hee saith bee taken away but whether impropriations now divided from the Ministerie and dispersed into many severall mens hands and imployed to many uses in the Common weal may not in tract of time by some wholesome law be reduced either wholly or in part to be the only lawfull possessions and inheritances for the Ministers of the Gospell yea and that without any prejudice or dammage unto Prince or people It is evident in the eyes of all that the Churches now appropried doe stand and remaine as the lawfull possessions and inheritances either of the King or of the Nobles or of the Knights Equires Gentlemen and other temporall persons or of Archbishops Bishops Archdeacons Deanes Prebendaries and other Ecclesiasticall persons or of the Vniversities of the Colledges in the Vniversities of Collegiate and Cathedrall Churches of Schools Hospitals
practice of the Primitive Church would be a meanes utterly to extinguish that schisme that remaineth yet among us that we have no Christian Ministers no Christian Sacraments no Christian Church in England Besides the Ministers for Letters of Orders Letters of Institution Letters of Inductions for Licences to serve within the Diocesse for Licences to serve in such a cure for Licences to serve two cures in one day for Licences to preach for Licences of resignation for testimonials of subscription for Letters of sequestration for Letters of relaxatâ—on for the Chancellours Registers and Somners dinners for Archidiaconall annuall and for Episcopall trienniall procurations the Ministers I say to be nominated elected ordayned approved confirmed and admitted by the Patron by the Presbytery by the People and by the King should be disburdened from all fees for these things and from all these and such and such like grievances Onely for the Kings writts and for the traveile and paines of His Highnesse Officers taken in and about the execution of the same wrâ—tts some reasonable fees as it shall please the King may be taxed and set downe The people also in soules in bodies and in their goods could not be much comforted relieved and benefited They should not henceforth to the perill of their soules have unlearned unable and undiscreete Ministers thrust upon them and set over them Neither should they bee compelled upon light occasions to take many frivolous oaths in vaine They should not bee summoned from one end of the Diocesse unto the other nor be posted from Court to Court and from visitation to visitation The Church-Wardens and Side-men of every Parish should not upon paine of excommunication be constrained once or twise in the yeare to pay six or eight pence for a sheet of threehalfepeny articles They shall not any longer out of the common treasury reserved for the poore beare the charge of their Parishes for making bills visitation and diverse other expenses There should be no more suits at Law between Clerke and Clerke about the Patrons Title no more suites of double quarrell betweene the Clerke and the Bishop no more debate betweene the Bishop and the Arch-deacon and lastly there should bee no occasion of any riots and unlawfull assemblies to bee made upon entries and possessions by vertue and colour of two presentations two institutions and two inductions into one benefice at one time The Patrons as being Lords and avowers of the Churches might have the custody of the Churches during their vacancies and their ancient right in this behalfe restored All swearing of Canonicall obedience unto the Bishops by the Ministers all 31. Eliz. c. 6. swearing and forswearing of Clerkes for any symoniacall bands promises or agreements betweene them and their Patrons and all robberies and spoyling of the Churches by the Patrons should determine and cease Especially if it might please the King and Parliament to have one clause of a Statute against abuses in election of Schollers and presentation to benefices enlarged For although every corrupt cause and consideration by reward gift profit or benefit to present be inhibited by that act yet notwithstanding by experience in many places we finde that the Patrons for small rents and for many yeeres are in possession some of the mansion houses some of the glebe lands and some of the tythes of such benefices as since the publishing of that act have beene bestowed upon Clerkes which breedeth great suspicion and jealousie in the mindes of men that the Clerke and Patron at the beginning directly or indirectly did conspire to frustrate and delude the intendement of the statute And therefore wee leave it to bee considered by the Kings Majesty and Parliament If any Clerke after confirmation A means to restrain patrons from corruption and possession to any benefice hereafter to bee made and given unto him shall willingly and wittingly suffer the Patron of the same benefice or any other person in his name or to his use directly or indirectly mediatly or immediatly to use occupy or enjoy the mansion house glebe land or other ecclesiasticall commodities or any part thereof belonging to the same Benefice In this case I say we leave it to be considered whether it were not meete and convenient that every such willing and witting sufferance by the Clerke and every such willing and witting possession use or occupation by the Patron should not bee adjudged to bee a just cause to determine the presentation to have beene first made upon corrupt respect and consideration And that therefore the Clerke ipso facto to â—ose the benefice and the Patron ipso facto to forfeite his right of Patronage to the King for the two next turnes following And these being the principall reasons and grounds of our desires wee are humbly to pray the Lords spirituall either to convince them of indignitie insufficiency and incongruitie or else to joyne with us unto the Kings Majestie for the restitution of that manner of Government which they themselves confesse to have beene practised at the beginning by the Apostles and Primitive Church but the Admonitor hath yet moe reasons unanswered against this platforme ADMONITION That every Parish in ENGLAND may have a Learned and discreet Minister howsoever they dreame of perfection no man is able in these dayes to devise how to bring it to passe and especially when by this change of the Clergie the great rewards of Learning shall bee taken away and men thereby discouraged to bring up their Children in the study of good Letters ASSERTION In some part to justifie this opinion I grant that no man is able in these dayes to devise to bring it to passe that every Parish should have a Learned and discreet Minister And why because in these dayes not any one Bishop hath afforded to ordaine one Learned and discreet Minister for five Parishes secondly because where some of the Reverend Fathers have ordained and placed in many Parishes many Learned and discreet Ministers some others of the same Fathers have againe disregarded and displaced those learned and discreet Ministers and in their roomes have placed many unlearned and undiscreet Ministers Now then if these dayes wherein so few learned and discreet Ministers and so many unlearned and undiscreet Ministers be ordained and wherein also so many learned and dâ—screet Ministers are disgraced and so many undiscreet and unlearned Ministers graced If these dayes I say were ended then albeit no perfection whereof never any one of us dreamed could be attained unto and albeit no one man were able to devise how to bring it to passe that every Parish should have a learned Minister Yet neverthelesse all good and holy meanes being used to ayme and to shoot after perfection and all good and holy men laying to their heads and applying their hearts to further this enterprise and service unto God we know that the Lord might call and make and fill with the Spirit of God in wisdome and in understanding and
the Bishops and Archdeacons their Courts Wee will examine what fees Doctors of the civill law being Chancellors Commissaries or Officials have usually and ordinarily allowed unto them by their Lords and Masters Fees for probat of Testaments granting Fees for probat of testaments let to farm of administrations with their appendances of late years in some places whether in all or how many I know not have beene demised unto farm for an annuall rent out of which either a small or no portion at all have beene allowed unto the Chancellor or Officiall for his service in this behalf Whereupon as I conjecture it hath fallen out rather than that those Officers would worke keepe Courts and travaile for little or nought ther have been exacted greater fees for the dispatch of these things than by law ought to have bin paid Perquisits of courts arising upon suites commenced betweene partie and partie it must be a plentifull harvest and there must be multi amici curiae in a Bishops consistorie if ordinarily communibus annis they amount in the whole to twenty pounds by the yeare and yet these perquisits belong not wholly to the Chancellor but are to be devided between him and the Register And touching fees for excommunication and absolution fees for institution and induction licences to preach licences for Curats and Readers For testimoniall of subscription or licences to marry without banes fees for commutation of penance and fees for relaxation of sequestrations touching these manner of Fees if the same be fees no Fees due for the execution of the functions of the canon law dishonourable for a Doctor of the civill Law way warrantable how are not then such fees every way dishonourable for a Doctor of the Civill law to take either of Ministers or people There must be therefore some other hope of better reward and maintenance to incite and incourage schollars to the studie of the civill law than are these beggerly and unlawfull fees depending upon the functions and exacted by the Officers of the Canon law or els the use of the civill law as the Admonitor saith must necessarily in short time be overthrown For if Fees for probat of Testaments and granting of administrations with their appendices shall still be let to farme and if also many unlawfull fees were quite inhibited there would remaine I trow but a very poore pittance for Civilians out of the functions of the Canon law to maintain their Doctoralities withall But what better reward can there bee for Civilians than hath already beene mentioned If the Admonitor had not willingly put a hood Civilians in England live not only by the functions of Canon law wincke before his eyes he might have seene that the Civilians live not wholly and altogether by the practice of the Canon Law but partly also and that most honourably by the use of the Civill law If a Doctor of the Civill Law be judge or Advocate in the Court of Admiraltie if he be Judge or Advocate in the Prerogative Court so farre as the same Court handleth only matters of Legacies Testaments and Codicills to what use can the Canon Law serve him or what advantage can the same Law bring him in Beside to what use serveth the Canon Law unto a Doctor of the Civill Law if he shall finde favour in the Kings sight and if it please the King to make him one of the Masters of his Requests or one of the twelve Masters of his high Court of Chancery or to be the Master of his Rolls or to be his Highnesse Embassador unto forraigne Nations or to be one of his Highnes most honourable privie Councel or to be one of his principall Secretaries It followeth not therefore as the Admonitor pretendeth that either the Civilians in this Realme live not by the use of the civill law but by the offices and functions of the Canon law and such things as are within the compasse thereof or that the hope of reward and by that means the whole studie of the Civill Law must be taken away if once the Canon Law should be abolished Neither would it bee any hard matter for the King if the Civilians might find grace in his sight to appoint Courts Offices and all manner of processe and proceedings in judgement for Doctors of the Civill Law to heare and determine in the Kings name all causes being now within the compasse of any Civill or Ecclesiasticall Law within this Realme And although a little candle can give but a little light and a small Spring can send forth but a small streame yet because great fires are kindled sometimes by little sparkles and small streames meeting together may in time grow into great riveâ—s I shall desire the great Civilians with their floods and lamps of learning to help forward such a law as whereby the study of the Civill Law may be upholden the reward and maintenance of Civilians without any function from the Canon Law may be enlarged many controversies and disorders in the Church may be pacified and the Kings Prerogative Royall bee duely advanced Which things if it might please them rightly to consider then let them humbly and seriously beseech our Soveraigne Lord the King and States in Parliament to give their consents to such a Law as the project ensuing may warrant them the same not to bee dangerous to the overthrow of their civill studies The Project of an Act for the explanation and amplyfying of one branch of a Statute made in the first year of the raign of Queen ELIZABETH entituled An Act restoring to the Crowne the ancient jurisdiction over the state Ecclesiasticall and also for the declaring and reviving of a Statute made in the first year of King EDWARD the sixth entiled An Act what seales and stiles Bishops and other spirituall persons exercising jurisdiction Ecclesiasticall shall use FOrasmuch as by one branch of an Act made in the first yeare of our late Soveraign Ladie of blessed memorie Queen Elizabeth entituled an Act restoring to the Crowne the ancient jurisdiction over the state Ecclesiasticall and Spirituall and abolishing all forraign power repugnant to the same it was established and enacted That such jurisdictions priviledges superiorities and preeminences Spirituall and Ecclesiasticall as by any spirituall or Ecclesiasticall power or authority hath heretofore beene or may lawfully be exercised or used for the visitation of the Ecclesiasticall state and persons and for reformation order and correction of the same and of all manner errors heresies schismes abuses offences contempts and enormities should for ever by authoritie of that present Parliament be united and annexed to the imperiall Crown of this Realm by means whereof it may now be made a question whether any Archbishops or other Ecclesiasticall persons having since that time used or exercised any such spirituall or Ecclesiasticall jurisdiction in their owne right or names might lawfully have done or hereafter may lawfully do the same without speciall warrant and authoritie derived
immediately from your highnesse by and under your Highnesse letters patents And whereas also by a statute made in the first yeare of King Edward the sixth entituled an Act what seales and stile Bishops or other spirituall persons shall use it was ordained that all and singular Archbishops and Bishops and others exercising Ecclesiasticall jurisdiction should in their processe use the Kings name and stile and not their owne and also that their Seales should be graved with the Kings arms And forasmuch also as it must be highly derogatorie to the imperiall Crowne of this your Highnesse Realme that any cause whatsoever Ecclesiasticall or temporall within these your Highnesse Dominions should bee heard or adjudged without warrant or commission from your Highnesse your heires and successors or not in the name stile and dignity of your Highnesse your heires and successors or that any seals should be annexed to any promise but onely your Kingly seale and armes May it therefore please the King at the humble supplication of his Commons to have it enacted That the foresaid branch of the foresaid Act made in the first yeare of Queene Elizabeth her raigne and every part thereof may still remaine and for ever bee in force And to theend the true intent and meaning of the said statute made in the first year of K. Edw. the sixth may be declared and revived that likewise by the authoritie aforesaid it may be ordained and enacted that all and singular Ecclesiasticall Courts and Consistories belonging to any Archbishops Bishops Suffraganes College Deane and Chapter Prebendarie or to any Ecclesiasticall person or persons whatsoever and which have heretofore beene commonly called reputed taken or knowne to be Courts or Consistories for causes of instance or wherein any suite complaint or action betweene partie and partie for any matter or cause wherein judgement of law civill or Canon hath beene or is required shall and may for ever hereafter be reputed taken and adjudged to be Courts and judgement seates meerely Civill secular and temporall and not henceforth Ecclesiasticall or Spirituall and as of right belonging and appertaining to the Royall Crowne and dignitie of our Soveraigne Lord King James that now is his heires and successors for ever And that all causes of instance and controversies betweene partie and partie at this day determinable in any of the said Courts heretofore taken and reputed Ecclesiasticall shall for ever hereafter bee taken reputed and adjudged to be causes meerly Civill secular and temporall as in truth they ought to bee and of right are belonging and appertaining to the jurisdiction of the Imperiall crown of this Realme And further that your Highnesse Leige people may bee the better kept in awe by some authorized to bee your Highnesse Officers and Ministers to execute justice in your Highnes name and under your Highnesse stile and title of King of England Scotland France and Ireland defender of the Faith c. in the said Courts and Consistories and in the said causes and controversies Be it therefore enacted by the authorities aforesaid That all the right title and interest of in and to the said Courts and Consistories and in and to the causes and controversies aforesaid by any power jurisdiction or authoritie heretofore reputed Ecclesiasticall but by this Act adjudged civill secular and temporall shall for ever hereafter actually and really be invested and appropried in and to the Royall person of our Soveraigne Lord the King that now is his heires and successors Kings and Queenes of this Realme And that it shall and may be lawfull to and for our said Soveraigne Lord and King his heires and successors in all and every Shire and Shires Diocesse and Diocesses within his Highnesse Dominions and Countries by his and their letters patents under the great Seale of England from time to time and at all times to nominate and appoint one or moe able and sufficient Doctor or Doctors learned in the Civill Law to bee his and their civill secular and temporall Officer and Officers Minister and Ministers of justice in the same civill secular and temporall Courts and Consistories which in and over his and their royall name stile and dignitie shall as Judge and Judges doe performe and execute all and every such act and acts thing and things whatsoever in and about the execution of justice and equitie in those Courts according to the course and order of the civill Law or the Ecclesiasticall canons and constitutions of the Realme as heretofore hath beene used and accustomed to bee done by for or in the name of any Archbishops Bishops Colledge Cathedrall Church Deane Archdeacon Prebendary or any other Ecclesiasticall person or persons whatsoever And that all and every such civill secular and temporall Officer and Officers Minister and Ministers Judge and Judges in his and their processe shall use one manner of Seal only and none other having graved decently therin your Kingly armes with certaine characters for the knowledge of the Diocesse or Shire And further be it enacted c. That it shall and may be lawfull by the authoritie aforesaid for our said Soveraigne Lord the King his heires and successors from time to time and at all times to nominate and appoint by his and their Highnesse Letters Patents under the great Seale of England for every Shire and Shires Diocesse and Diocesses within his or their highnesse Dominions one or more able and sufficient persons learned in the Civill Law to be his and their Notarie and Notaries Register and Registers by him and themselves or by his or their lawfull Deputie or Deputies to doe performe and execute all and every such act and acts thing and things as heretofore â—â— the Courts and Consistories Ecclesiasticall aforesaid hath beene and â—ow are incident and appertaining to the office of any Register or Notarie And further at the humble suit of the Commons c. it may please the King to have it enacted that all and singular matters of Wills and Testaments with all and every their appendices that all and singular matters of Spousals and Marriages with their accessories that all and singular matters of defamation heretofore determinable in the Ecclesiasticall Courts and if there bee any other causes of the like meere civill nature shall bee heard examined and determined by the said civill and secular Officers and Iudges in the said civill and secular Courts according to the due course of the civill Law or statutes of the Realme in that behalfe provided And that all matters of Tythes Dilapidations repayre of Churches and if there bee any other of like nature with their accessories and appendices shall be heard examined and determined by the said civill and secular Officers and Judges in the said Civill and Secular Courts according to the Kings Ecclesiasticall Lawes Statutes and customes of the Realme in that behalfe heretofore used or hereafter by the King and Parliament to be established And at the humble suite of the Commons may it please the King to
of the Common Law before the Kings Judges and Justices of the Kings bench and Common pleas By a Statute of 32. H. 8. c 7. it is cleare that all tyths oblations c. and other Ecclesiasticall or Spirituall profits by the lawes and statutes of the Realme may be made temporall as being admitted to be abide and goe to and in temporall hands lay-uses and profits From the reason of which statute it is cleare that those lawes likewise may be reckoned amongst us for temporall lawes which by the lawes and statutes of the Realme may be executed by temporall and lay persons and which are conversant about temporal and lay causes If then the execution of the Lawes touching these matters may lawfully remaine and abide in the hands of Doctors of the Civill Law being temporall and lay persons as alreadie under the Bishops they doe it cannot be denied but that the Kings Judges and Justices of both benches may bee as competible Judges to put in execution the lawes concerning these matters as Doctors of the Civill Law or other lay men be But the causes are not reputed and called temporall and lay causes amongst us What for that if in their owne nature simply considered these causes be merely lay and temporall causes such causes I meane as whereof the King a lay civill and temporall Magistrate by his lay civill and temporall Magistracie derived unto him immediately from the holy law of God may and ought to take cognizance and thereupon either in his owne Royall person or by the person of any of his inferiour Officers may give absolute and peremptorie judgement If I say these things be so what booteth it or what wisedome is it to contend that these causes and matters have been and are still adjudged to be therefore Ecclesiasticall and no temporall causes because through an abusive speech or through a vaine and evill custome they have beene so led and accompted in times past And what if it hath pleased the Kings Progenitors by sufferance to tolerate the executions of such Lawes as concerne these things to bee in the hands and power of Ecclesiasticall persons yet hereupon it followeth not that in very deede and truth the Magistracie of the said Ecclesiasticall persons was an Ecclesiasticall Magistracie or that they were Ecclesiasticall Magistrates but their Magistracie was and remained still a temporall magistracie and they were and abode temporall Magistrates For not more can the qualitie of the person alter the nature of the cause than can the qualitie of the cause alter the nature of the person And if it be true that matters determinable in times past by a Magistracie abusively called Ecclesiasticall be notwithstanding properly temporall matters and that the same Magistracie also be a temporall and no spirituall Magistracie what a childish and poore conceit is it to challenge and threp upon the temporall Magistrate that he hath none or very few temporall lawes touching those matters and that therefore the people should not solicit an alteration of abuses in Church government left for want of temporall lawes the people should bee without Ecclesiasticall discipline It will be no small matter saith he to apply these things to the temporall law yea and so say I to But what of that The question is not how hardly these things may be applyed to the temporall law but how small a matter it were to apply the temporall law unto these things For it is not said in any law that casus ex juribus but it is said in all lawes that ex casibus jura nascuntur The temporall law may easily be applyed to causes now reputed Ecclesiasticall And indeed the Phisition applyeth not the disease to his Phisick but he prepareth his phificke for the disease The husband-man he measureth not his ground by the seed but his seed by the ground The Draper he meateth not his yard by the cloth but his cloth by the yard If in like manner the temporall lawes and the grounds and rules thereof were applyed to these matters of tythes marriages c. whereof he speaketh what more alteration could there bee of the temporall law by such an application then there is an alteration of the plummet by laying it to the stone or than there is an alteration of the rule or yard by laying them to the timber and cloth Besides he that rightly and after an exact and equall proportion can apply one rule or maxime of the temporall law to many more cases than whereupon it hath beene usually in former times applyed hee may rather bee reputed an additioner than an alterer of the Law But how may the temporall Law be applyed to those matters how even so and so as followeth By the statute of 32. H. 8. c. 7. it is declared that tythes oblations how tythes may bee recovered in the Kings temporall Courts c. and other Ecclesiasticall or spirituall profits c. being lay mens hands to lay uses be no more Ecclesiasticall but temporall goods and profits and that if any person were diseased deforced wronged or otherwise kept or put from his lawfull inheritance estate seisin c. of in or to the same by any person claiming or pretending to have interest or title in or to the same that then in all and every such case the person so disseised deforced or wrongfully kept from his right or possession shall and may have his remedie in the Kings tempoâ—al Courts as the case shall require for the recoverie of such inheritance by writ originall c. to be devised and granted out of the Kings Court of Chancery in like maner c. It is there likewise provided that that Act shall not extend nor be expounded to give any remedie cause of action or suite in the Courts temporall against any person which shall refuse to set out his tythes or which shall detaine c. his tythes and offerings But that in all such cases the partie c. having cause to demand or have the same tythes shall have his action for the same in the Ecclesiasticall Courts according to the ordinance in the first part of that act mentioned and none otherwise Now then sithence every person whether he be lay or Ecclesiasticall having right to demand tythes and offerings hath the partie from whom those tythes be due bound and obliged unto him and sithence also the partie not dividing yeelding or paying his tythes doth actually and really detaine the same and thereby doth unjustly wrong the partie to whom they be due contrary to justice and the Kings lawes sithence I say these things be so what alteration or disadvantage could befall or ensue to the Common Law or the Professors thereof if so be it might please the King with his Parliament to have the last part of this Act so to be explained extended and enlarged as that the same might give remedy in the Kings temporall Courts by writ originall to be devised and granted out of the Chancerie against
any person detaining his tithes and offerings the Hospitall of S. Leonards in Yorke of the Kings foundation and Patronage endowed of a thrave â—ospital of S. Leonard 1 2. h. 6. c 2 of Corne to bee taken yearely of every plough earing within the Counties of Yorke Comberland Westmerland and Lancaster having no sufficient or convenable remedie at the Common Law against such as with-held the same thraves it was ordained by the King in Parliament that the Master of the said Hospital and his successors might have action by writ or plaints of debt or detaine at their pleasure against all and every of them that detained the same thraves for to recover the same thraves with their dammages And by the Statute of 32. H. 8. c. 4. it is enacted That the Parsons and Curates of five Parish Churches whereinto the Towne of Royson did extend it self and every of them and the successors of every of them shall have their remedie by authoritie of that act to sue demand ask and recover in the kings Court of Chancerie the tythes of corn hay wooll lamb and calfe subtracted or denyed to be paid by any person or persons Againe Vicars Parsons or improprietaries do impleade any man in the Ecclesiasticall Court for tythes of wood being of the age of twenty years or above for tyth-hay out of a medow for the which time out of mind and memorie of man there hath only some Meade-silver beene paid or if a debate hang in a spirituall Court for the right of tythes having his originall from the right of Patronage and the quantity of the same tythes do passe the fourth part of the value of the benefice a prohibition in all these and sundry other cases doth lie and the matters are to bee tried and examined in the Kings Courts according to the course of the Common Law unlesse upon just cause there bee granted a consultation And if in these cases in maintenance of the Common Law the defendants have reliefe in the Kings Courts I thinke it more meet to leave it to the consideration rather of common than to the judgement of Canon Lawyers to determine what alteration the Common Law could sustaine in case if plaintiffes as well as some defendants might pray the Kings aide for the recoverie of tythes especially seeing at this day the manner of paying tythes in England for the most part is now limited by the common and statute lawes of the Realm and not by any forraigne canon law But there is some fact Object happily so difficile so secret and so misticall in these causes of tythes as the same cannot without a very great alteration of the Common law Answer be so much as opened before a lay judge or of the hidden knowledge whereof the Kings temporall Judges are not capable Why then let us What facts touching the upholding of tyths are examinable in the Ecclesiasticall courts see of what nature that inextricable fact may be I have perused many libels made and exhibited before the Ecclesiasticall Judges yea and I have read them over and over and yet for ground of complaint did I never perceive any other materiall and principall kinde of fact examinable in those Courts but only such as follow First that the partie agent is either Rector Vicar Proprietarie or Possessor of such a Parish-Church and of the Rectorie Vicaridge farme possession or dominion of the same and by vertue thereof hath right unto all tythes oblations c. apertaining to the same Church and growing within the same parish bounds limits or places tythable of the same Secondly that his predecessors Rectors Vicars c. time out of mind and memorie of man have quietly and peaceably received and had all and singular tythes oblations c. increasing growing and renewing within the Parish c and that they and he have beene and are in peaceable possession of having and receiving tythes oblations c. Thirdly that the partie defendant hath had and received in such a yeer c. of so many sheepe feeding and couching within the said Parish c. so many fleeces of wooll and of so many Ewes so many Lambes c. Fourthly that the defendant hath not set out yeelded or paid the tyth of the wooll and lambe and that every Tyth fleece of the said wool by commâ—n estimation is worth so much and that every tyth Lambe by common estimation is likewise worth so much c. Fifthly that the defendant is subject to the jurisdiction of that Court whereunto he is summoned Lastly that the defendant doth hetherto deny or delay to pay his tyths notwithstanding he hath beene requested thereunto These and such like are the chiefe matters of fact whereupon in the The Kings Iustices are as able to judge of exceptions against tyths as the Ecclesiasticall Iudges Ecclesiasticall Courts proofes by witnesses or records rest to be made for the recoverie of tythes And who knoweth not but that these facts upon proofes made before the Kings Justices may aswell bee decided by them as by any of the Reverend Bishops or venerable Archdeacons their Chancellors or Officials If there be any exception alleaged by the defendant as of composition prescription or priviledge the Kings Justices are as able to judge of the validitie of these as they are now able eo determine customes de modo decimandi or of the use of high wayes of making and repairing of Bridges of Commons of pasture pawnage â—estovers or such like Truth it is that of Legacies and bequests of goods the reverend Bishops by sufferance Legacies how they may be recovered at the common law of our Kings and consent of our people have accustomably used to take cognizance and to hold plea in their spirituall Courts Notwithstanding if the Legacie bee of lands where lands be divisible by Testament the judgement thereof hath beene alwayes used and holden by the Kings writ and never in any Ecclesiasticall Court Wherefore if it shall please the King to enlarge the authoritie of his Courts temporall by commanding matters of legacies and bequests of goods aswell as of lands to be heard and determined in the same it were not much to be feared but that the kings Justices the kings learned Counsell and others learned in the Law of the Realm without any alteration of the same law would speedily finde meanes to apply the grounds thereof aswell to all cases of Legacies and bequests of goods as of lands For if there be no goods divisible by will but the same are grantable and confirmable by deed of gift could not the kings Justices aswell judge of the gift and of the thing given by will as of the grant and of the thing granted by deed of gift or can they not determine of a Legacie of goods aswell as of a bequest of lands If it should come in debate before them whether the Testator at that time of making his will were of good and perfect memorie upon proofs and other
circumstances to be opened and made of the Testators memorie by lively testimonies either the Admonitor must condemne the kings learned and discreet Justices to bee malae mentis insanae memoriae or els it must be confessed that they be as well able to judge of the distraction of wits and unsoundnesse of memorie in a person deceased as they be to determine the question of Lunacie madnesse or idiocie in a man living If any question should arise upon the revocation of a former will of the ademption of a legacie or of a legacie given upon condition or in diem it would be no hard matter for the learned Judges upon sight of the will and proofes to be made to define which is the first and which is the last wil whether the legacie remaine or whether it be revoked whether it be legatum per rerum or in diem whether conditional or without condition And if it bee conditionall whether the same be possible or impossible honest or dishonest and if it bee in diem whether the day be past or to come But there lyeth no action at the common law for a legatorie against the executor to recover his legacie I grant But a creditor to recover his debt due by the testator upon specialtie may bring an action at the common law against the executor And then what is the cause that a creditor way recover his debt and that a legator cannot recover his legacie in the kings Court but only for that remedie could not bee given unto legatories complaynants by any writ out of the Chancery And therefore that 21 Ed. 1. statute upon the writ of consultation such plaintiffes might not be deferred of their right and remedie in such cases to their great dammage it hath pleased the kings by sufferance to tolerate the Church Officers to determine these cases Wherfore if it might please the king to cause writs to be made out of his Court of Chancerie for the recovery of Legacies it were cleare by the Common Law of the Realme as from the statute may bee gathered that the cognizance of these Cases did not appertaine any more to the Spirituall Court. For then might the legatorie by that writ bring an action against the Executor to obtaine his Legacie But how should that action bee tryed How even as other actions of debt detinue or trover bee tryed namely as the case should require either by the countrey or by the Judges upon a moratur in lege As Testaments with their adherences so likewise matters of Spousals Mariages divorces c. together with their accessories by common Matters of marriages more meete to bee decided by the Kings than by the Bishops officers right of the Imperiall Crowne did in ancient times properly appertaine to the examinations and sentences of the Emperours themselves and to their Provostes Deputies and Presidents of Cities and Provinces as by their severall titles de Testamentis Legatis Fidei commissis Nuptiis repudiis divortio dote c. in the bookes of the civill law appeareth By the Law of England also the king hath the mariage of an heire being within age and in his ward Widowes also that hold of the King in chiefe must not marie themselves without the Kings licence And by an Act made 4. and 5. Phil. and Mary there is a streight punishment provided against all such as shall take away Maidens that be inheritors being within the age of sixteen years or marry them without consent of their parents and what reason letteth them that the King might not as well have the care and cognizance of all the contracts of mariage especially of the mariage of all children and widowes in his temporall Courts as he hath of some parties to be contracted of the Dower of the joynture of the disparagment of the age of the taking away of the deflouring and of mariage without parents consent in some cases or what a very great alteration of the common law could ensue in case the Kings temporall Justices did examine and determine whether the contract were a perfect and simple or conditionall contract yea or no For if upon the statute made by Philip and Mary that maidens and women children of Noble men and Gentlemen c. being heires apparent c. and being left within age of sixteene yeares should not marry against the will or unknowing of or to the father or against c. If I say upon the publishing of this act there hath no alteration of the common law hitherto followed it is but a meere superstitious errour to feigne that a change of the Common law must follow if so be this statute were extended to all children both Sonnes and Daughters of what parentage sexe estate or age soever For if the King in his temporall Courts had the definition of all as well as of some contracts made by children without consent of parents then should a multitude of lewd and ungodly contracts made by flatterie trifling gifts faire and goodly promises of many unthrifty and light personages thereunto wonne by intreaty of persons of lewd demeanour be pronounced voide and of no efficacie yea and on the other side a number of honest lawfull and godly contracts should be confirmed and Much a doe in the Ecclesiasticall Courts about accipio accipiâ—m remaine in their full strength and force which now upon certaine frivolous and trifling quiddities and nicities of words and sillables are pronounced in the Ecclesiasticall Courts to bee no contracts And in good earnest is there now a dayes any soundnesse of reason at all to be heard amongst the Doctors and Proctors of those Courts where they informe out of the Canon law in these cases For doth not their whole dispute and information rest principally whether the contract be made by words of the present or of the future tence whether it be made with an oath or without an oath yea and do they not exceedingly besweat and besmyre themselves by turning and returning by folding and unfolding their great and hydeous volumes for proofe and reproof of accipio accipiam yea and sometimes of letters and accents If the young man and maide having both of them their parents consent shall answer only in the future tence I will have thee or I will take thee or I am content to take thee or I will have none other but thee or if ever I marry I will marry thee and do not answer directly I do take thee to mine husband or I do take thee to my wife oh it is a world to see and a wonderment to behold what canvasing heaving and shoving what a stirre quoyle and garboile the Canonists make about the lifting and removing of these fethers And whatsoever the holy Scriptures have determined of the necessitie of parents consent or of what necessitie likewise soever the “ Institu de nup. S. 1. civill law hold the consent of parents to bee yet in the Ecclesiasticall courts
the papall canon law must needs take place because by the same law consent of Parents is not de necessitate but The canon law preferred by the reverend Bishops before the law of God and the civill law de honestate tantum and because also matrimonia debent esse libera non pendere ex alieno arbitrio Wherein the reverend Bishops under their favourable patience can not clearely excuse themselves of much oversight in so slender managing of a matter of so great and high a consequence The holy law of God by publike authoritie hath been commanded within this Realme to bee sincerely and purely taught received and embraced The civill law hath not had her free course in this case hindered by any law of the Realme And how then commeth it to passe that the canon law being in this point repugnant to both these Lawes should notwithstanding be preferred beare sway and take place in this Realme before and above both these Laws especially Certain speciall points to be provided about mariages the same in this point as being against the law of God being utterly taken away The abuses past and mariages past under colour and pretext of this law may and ought to be bewailed and repented of yea and that no such mariages in time to come may be made I leave it to be considered whether it might not tend to the advancement of the Law of God be honourable for the King and commodious for the Common Weale providently to provide these things following viz. First that no matrimonie secretly contracted against the will or unknowning of or to the father or him or her that hath the keeping education or government of the partie to be maried before he or she come to a certaine age should in any sort be good or available to make the posteritie of those who shall bee so maried legitimate or inheritable Secondly that every contract of mariage concluded with consent of parents Tutor Governour or Gardian should be forcible and effectuall to bind both parties irrevocably whether the same contract with an intent to conclude a mariage be made by wordes of the present or future tence it skilleth not Thirdly that every man stealing away contracting and marrying a maide under the age of certaine yeares without consent of father tutor governour or gardian should be a felon and for such his felonious act suffer the paines of death And lastly that all licences to marry without banes asking according to the intendment of the booke of Common prayer bee forbidden and unlawfull for ever Which things if they might be observed it is very likely that mens inheritances as now many times they doe should not hang in suspence upon question of legitimation or illegitimation of their children to be allowed or disallowed by the commonlaw There should not any such long and tedious suites and variances hereafter fall out betweene the posterities and children of one man for the right and interest of their Ancestors lands Neither should Sir Thomas Lucie nor Sir Edmond Complaint heretofore made upon stealing away and marying mens daughters how they may cease Ludlow nor the Lady Norton nor Master Cooke the Kings Atturney generall nor many moe Knights Esquires and Gentlemen complaine and bewaile the stealing away and mariages of any their daughters Neeces neer Kinswomen or Wards Neither could it bee possible that one woman might procure foure or five severall licences for the mariage of foure or five severall husbands all of them being alive together and not one of them dead Neither should there any licence of mariage be granted out of any Ecclesiasticall Court to any man or woman with a blanck whereby the partie licensed was enabled to have maried another mans wife or his owne or his wives sister Neither should any couples maried and living together foure six or more yeers as man and wife upon a new and suddaine dislike or discontentment and upon a surmised precontract to be pretensedly proved by two suborned witnesses be adjudged by vertue of the canon law to be no husband and to be no wife Neither should any man being solemnly maried to a wife and afterward by reason of a precontract solemnly divorced from the same his wife and by censures of the Church compelled to marry her for whom sentence of precontract was adjudged be re-authorised by the same Consistorie about ten or twelve years after the divorce to resummon recall and rechallenge his first wife especially she having a testimoniall out of the same Consistorie of her lawfull divorce and being againe solemnly maried to an other husband Wherefore to conclude these matters of tythes testaments and Mariages if the King should not be pleased to have the studie of the civill law advanced by some such law as whereof the former project maketh mention I dispute for the enlarging of the common law thus If it stand with reason with the grounds and rules of the common law and with the Kings Royall prerogative that in cases of Tythes Testaments and Mariages the King if it may please him so to provide by Parliament may give remedie unto complaynants by writs out of the Charcorie and that complaints in such cases may effectually be redressed upon such writs in the Kings Courts And if also sundry matters of Tythes Testaments and Marriages bee already handled in the Kings Courts if these things I say be so and so may be then with little reason did the Admonitor warne us that a very great alteration of the common law must follow and that it will bee no small matter to apply these things to the temporall law But the antecedent is true as hath beene already shewed Therefore the consequent is true ADMONITION Indgements also of adulterie slander c. are in these mens judgments meere temporall and therefore to be dealt in by the temporall Pag. â—â— Magistrate only ASSERTION We are indeed of this judgement that in regard of the Kings Royall Office these judgements of adulterie and other criminall Causes comprised within this clause c. ought no more to be exempted from the Kings temporall Courts than matters of theft murder treason and such like ought to be And for the maintenance of our judgements we affirme that there is no crime or offence of what nature or qualitie soever respecting any commandement contained within either of the two tables of the holy law of God if the same be now corrigible by spirituall power but that some fault and contempt one or other of the like nature and qualitie as comprised under the same commandement hath beene evermore and is now punishable by the Kings Regall and temporall jurisdiction For adulterie as the same is to be censured by penance in the Ecclesiasticall Courts so is ravishment also buggerie and sodomie to bee punished in the Kings Court by paine of death And as hath beene accustomed that Ordinaries by censures of the Church may correct fornicators so fornication also as in some bookes
written of the common law is reported hath beene in times passed presented and punished in leets and law-dayes in divers parts of the Realme by the name of Letherwhyte which is as the booke saith an ancient Saxon terme And the Lord of the Leet where it hath beene presented hath ever had a fine for the same offence By the statute of those that be borne beyond the seas it appeareth that the King hath cognizance 25. Ed 3. of some bastardy And now in most cases of bastardie if not in all by the statute of Eliz. the reputed father of a bastard borne is lyable to be punished at the discretion of the justices of peace Touching perjurie if a man lose his action by a false verdict in plea Perjurie if punishable temporally in some cases why not in all of land he shall have an attaint in the Kings Court to punish the perjurie and to reforme the falsitie And by divers statutes it appeareth that the Kings temporall Officers may punish perjurie committed in the Kings temporall Courts And though it be true that such perjury as hath risen upon causes reputed spirituall have beene in times past punished only by Ecclesiastical power and censures of the Church yet hereupon it followeth not that the perjurie it selfe is a meere spirituall and not a temporall crime or matter or that the same might not to be civily punished By a statute of Westminster 25. Edw. 3. it was accorded that the Vsurie King and his heires shall have the cognizance of the usurers dead and that the Ordinaries have cognizance of usurers on life to make compulsion by censures of the Church for sinne and to make restitution of the usuries taken against the lawes of holy Church And by another statute it is provided that usuries shall not turne against any being â—0 h. 3. â— 5. within age after the time of the death of his Ancestor untill his full age But the usurie with the principall debt which was before the death of his ancestor did remaine and turne against the heire And because all usurie being forbidden by the law of God is sinne and detestable it was enacted that all usurie lone and forbearing of money c. giving dayes c. shall be punished according to the forme of that Act. And that every such offender shall also bee punished and corrected according to the Ecclesiasticall lawes before that time made against usurie By all which statutes it seemeth that the cognizance and reformation of usurie by the lawes of the Realme pertaineth onely to the King unlesse the King by his Law permit the Church to correct the same by the censures of the Church as a sin committed against the holy law of God Touching heresies and schismes albeit the Bishops by their Episcopall and ordinarie spirituall power grounded upon Canon law or an evill custome have used by definitive sentence pronounced in their Consistories to condemn men for heretikes and schismatikes and heresies schismes are punishable by the kings laws afterward being condemned to deliver them to the secular power to suffer the paines of death as though the king being custos utriusque tabulae had not power by his kingly office to inquire of heresie to condemn an heretike and to put him to death unlesse he were first condemned and delivered into his hands by their spirituall power although this hath been I say the use in England yet by the statutes of Richard the second and Henry the fifth it was lawfull for the Kings Judges and Justices to enquire of heresies and Lollards in Leets Sheriffs 25. h. 5. c. 14. turnes and in Law dayes and also in Sessions of the peace Yea the King by the common law of the Realme revived by an act of Parliament which before the Statute of Henry the fourth was altered may pardon a man condemned for heresie yea and if it should come to passe that any heresies or schismes should arise in the Church of England the king by the Lawes of the Realme and by his Supreme and 1 Eliz c. 1. Soveraigne power with his parliament may correct redresse and reforme all such defaults and enormities Yea further the king and his 1 Eliz. c. 1. parliament with consent of the Clergie in their Convocation hath power to determine what is heresie and what is not heresie If then it might please the king to have it enacted by parliament that they which opiniatively and obstinately hold defend and publish any opinions which according to an Act of Parliament already made have beene or may be ordered or adjudged to bee heresies should bee heretikes If it please the King heretikes may be adjudged felons and heresies felonies and felons and their heresies to be felonies and that the same heretiks and felons for the same their heresies and felonies being arraigned convicted and adjudged by the course of the common law as other felons are should for the same their heresies and felonies suffer the paines of death there is no doubt but the King by vertue of his Soveraigne and Regall Lawes might powerfully enough reforme heresies without any such ceremoniall forme papall observance or superstitious solemnitie as by the order of the Canon Law pretended to bee still in force have beene accustomed And as these offences before mentioned bee punishable partly by temporall and partly by Ecclesiasticall authoritie so drunkennesse absence from divine service and prayer fighting quarrelling and brawling in Church and Churchyard defamatorie words and libels violent laying on oâ— hands upon a Clarke c. may not onely bee handled and punished in a court ecclesiasticall but they may also be handled and punished by the King in his temporall courts By all which it is evident that the Clergie hath had the correction of these crimes rather by a The cognizance of all crimes as well as of some crimes â—â— the law of God belong to the King custome and by sufferance of Princes than for that they be meere spirituall or that they had authoritie by the immediate law of God And if all these as well as some of these crimes by sufferance of Princes and by a custome may be handled and punished spiritually then also if it please the King may all these as well as some of these crimes without a custome be handled and punished temporally For by custome and sufferance only some of these crimes be exempted from the cognizance of the King and therefore by the immediate law of God the cognizance as well of all as of some oâ— these crimes properly appertaineth unto the King And then the judgement of those men who defend judgements of adulterie slander c. to be more temporall and by the temporall Magistrate only to be dealt in seemeth every way to be a sincere and sound judgment Howbeit they doe not hereby intend that the party offending in any of these things and by the Kings law punishable should therefore wholly bee exempted and freed
against us that we which urge the same holy law for the bringing in of the discipline by pastors and elders should notwithstanding contrary to the same law intend the leaving out or altering any one of the three estates But which of the three estates was it that he meant should bee left out I trow there is none of the state of prelacie so ill advised as to take upon him the proof of this position viz. That the Lords spiritual The state of the prelacie is not one of the three estates in parliament by themselves alone doe make one of the three estates or that the statutes of England to this day have stood by their authorities as by the authoritie of those who alone by themselvs are to be accompted one of the three estates For if that were so how much more then might the great Peeres Nobles and temporall Lords challenge to make by themselvs an other estate And without contradiction to this day the commons summoned by the kings writ have ever been reckoned a third estate Now then if statutes have hitherto stood by authoritie of the Lords spirituall as of the first estate by the authoritie of the Lords temporall as of the second estate and by authoritie of the commons as of the third estate I would gladly be resolved what accompt the Admonitor made of the Kings estate It had not beene liegnes nor loyaltie I am sure howsoever hee spake much of the Lords spiritualls dutie and fidelitie in the execution of our late Queenes lawes to have set her Royall person authoritie and state behind the lobbie at the Parliament doore Either the kings Royall person then as not comprised within the compasse and circumcription of the three estates by his meaning which had beene but a very bad meaning must be thought to have beene hitherto secluded from authorizing the statute lawes made in Parliament Or els it is a most cleare case that the Lords spirituall themselves alone do not make any one of the three estates And what matter then of more weight may it happily seeme to be to alter the authoritie of the Lords spirituall and to leave them out of the Parliament when as notwithstanding they being left out the statutes of England may remaine and continue by authoritie of the three estates And it were not amisse for the Lords spirituall to consider that the bodie and state of the weale publike both now is and ever hath beene a perfect entire and complete bodie and State without the bodie and state of Prelacie and that the King and Nobles and Commons of the Realme without Prelates Bishops or Clerkes doe make up all the members and parts of the bodie and of the state and may therefore ordaine promulg and execute all manner of lawes without any consent Anno 36. h. 8. fo 51. h Anno m. j. fo 93. â— approbation or authoritie yeelded unto the same by the Bishops spirituall or any of the Clergie And thus much our Divines Histories and Lawes do justifie Sir Iames Dier Lord chiefe Justice of the Common pleas in his reports telleth us that the state and bodie of a Parliament in England consisteth first of the King as of the head and chiefe part of the bodie secondly of the Lords as principall members and lastly of the Commons as inferiour members of that bodie By a statute of provisoes it appeareth That the holy Church of 25. Ed. 3. holy church founded in the state of prelacie by the King England was founded into the state of prelacie within the Realm of England by the grand father of King Edward the third and his progenitors and the Earles Barons and other Nobles of the Realme and their Ancestors for them to informe the people of the law of God and to make hospitalities and almes and other workes of charitie in These uses are changed to the keeping of great horses great troopes of idlers wiâ—h long haire and great chaines of gold 6 Eliz. c. 1. The King bound to do lawes made without assent of prelates to bee kept as lawes of the realmes the places where the Churches were founded From whence it followeth First that the Archbishops and Bishops only and alone doe not make of themselves any state of prelacie but that the whole holy Church of England was founded into a state of Prelacie Secondly it is plaine that the Kings of England before they and the Earles Barons and other Nobles and great men had founded the holy Church of England into a state of Prelacie ought and were bounden by the accord of their people in their Parliaments to reforme and correct whatsoever was offencive to the lawes and rights of the crowne and to make remedie and law in avoiding the mischiefes dammages oppressions and grievances of their people yea and that the Kings were bound by their oathes to doe the same lawes so made to bee kept as lawes of the Realm though that thorough sufferance and negligence any thing should at any time be attempted to the contrary For whereas before the statute of Caerlile the Bishop of Rome had usurped the Seignories of such possessions and benefices as whereof the Kings of the Realme Earles Barons and other Nobles as Lords and Avowes ought to have the custodie presentments and collations King Edward the first by assent of the Earles Barons and other Nobles and of all the communaltie at their instances and requests und without mention of any assent of the state of prelacie in the said Parliament holden at Caerlile ordained that the oppressions grievances and dammage sustained by the Bishop of Romes usurpation should not from thenceforth be suffered in any manner And forasmuch as the grievances and mischiefes mentioned in the said Act of Caerlile did afterward in the time of King Edward the third daily abound to greater dammage and destruction of the Realm more than ever before and that by procurement of Clerks and purchasers of grace from Rome 31 Ed. 5 sta of â—â—ering the said King Edward the third by assent and accord of all the great men and commons of this Realme and without mention of any assent of Prelates or Lords spirituall having regard of the said Act of Caerlile and to the causes conteyned in the same to the honour of God and profit of the Church of England and of all this Realme ordained and established that the free elections of Archbishops Bishops and all other dignities and benefices elective in England should hould from thenceforth in the manner as they were granted by the Kings progenitors and founded by the ancestors of other Lords And in divers other statutes made by King Edward the third it is said that our soveraigne Lord the King by the assent of the great men and all the Commons hath ordained remedie c. That it was accorded by our Soveraigne Lord the King the great men and all the commons 36 Ed. 3. c. 6 8 Ed. 3. 3. statute of provisours
of Yorke and Silby were there present In a booke intituled the burning of Pauls Church in London 1561. and in the fift question moved by a papist it is said that this manner of ministration of Sacraments set forth in the booke of Common prayers was never allowed nor agreed upon c. no not by the Clergie of England at the last Parliament but only it was agreed upon by the Laitie which had nothing a doe with spirituall matters or causes of religion Whereunto the reverend Father Master Pilkington Bishop of M. Pilkington Bishop of Durisme Duresme answering was there not saith he a disputation for Religion appointed by the Queenes Majestie wherein your Clergie was affraid to utter their foolishnesse in defending their superstition lest they had taken more shame in answering than they did in holding their peace I thinke the Vniversities with so many places of this Realme receiving religion and these other disputing for it may bee counted to be some part of the clergie of the Realme And so it was not received without consent of the Clergie But these were not of the Parliament What then But as Ioash Josaphat Ezechias and Iosias did not make a new Religion but restored that which was defaced and had long lyen buried so our Parliament did not set forth a new religion but restore that which was godly begun before the good K. Edward confirmed by the Parliament and Clergie then c. But nothing can bee concluded as a law by Parliament say they without consent of the Clergie there present But this having not their consent cannot be counted a law as they think I had rather saith M. Pilkington leave this to be answered by the Lawyers than otherwise Yet that the world may see that something may be said in it we grant him not this to be true that no law at all can be made without consent of Bishops Look your old statutes of Parliament when Bishops were highest afore Edward the third and ye shall read that they passed by consent of the Lords temporall and commons without any mention of the Lords spirituall which statutes many of them stand in strength at this day Then it may well be gathered that the consent of the Clergie was not alwayes so necessarie as they thinke it The Lawyers Judges and Justicers put in practice and execute these lawes therefore their doings may be a sufficient reason to lead the unlearned what opinion they have of this statutes For Religion except Justice Rastall first executing that and afterward running away may condemne the rest which I trust he may not I thinke they would not execute them except they had the strength and nature of lawes If they doe contrary to their knowledge and opinion they cannot be able to answer their doings but I think no wise men are of this opinion Only these corner creepers that dare not shew their face and would deceive the people go about to deface all good and godly order that displeases them In the dayes of K. Edward they had the like fond opinion that the king could not make lawes in his minoritie untill he came unto full age and to make the people to disobey their Prince Hitherto M. Pilkington L. Bishop of Durisme with whom the most worthy and learned M. Jewell late Bishop of M. Iewel B. of Salisburie Salisburie agreeth in every point The wise and learned faith hee could have told you that in the Parliaments of England matters have evermore used to passe not of necessitie by the speciall consent of the Archbishops and Bishops as if without them no statute might lawfully be enacted but only by the more part of voyces yea although the Archbishops and Bishops were never so earnestly bent against it And statutes so passing in Parliaments onely by the voyces of the Lords temporall without the consent and agreement of the Lords spirituall have neverthelesse beene alwayes confirmed and ratified by the Royall assent of the Prince and have beene enacted and published under the names of the Lords spirituall and temporall Reade saith hee the statutes of King Edward the first there shall ye find that in a Parliament holden at S. Edmundsbury the Archb. and Bishops were quite shut forth and yet the Parliament held on and good and profitable lawes were there enacted the departing or absence or malice of the Bishops spirituall notwithstanding In the Records thereof it is written thus Habito Rex cum suis Baronibus Parliamento Clero excluso statutum est The King keeping a Parliament with his Barons the Clergie that is to say the Archbishops and Bishops being shut forth it was enacted c. In provisione de matrona in the time of K. Edward the third whereas matter was moved of bastardie touching the legitimation of bastards borne before mariage the statute passed wholly with the Lords temporall whether the Lords spirituall would or no. and that contrary to the expresse decrees and canons of the Church of Rome And thus much the most reverend and godly Father M. Iewell Bishop of Salisbury Wherefore to conlude this point against the Admonitors position I dispute thus All those persons who by any necessitie are none of the three estates aâ—d by whose authorities the statutes of England to this day have not stood to leave out the same persons may happily seem a matter of lesse weight than all men do judge it But the Archbishops and Bishops are such persons as by nâ—cessitie are none of the three estates and by whose consents the statutes of England to this day have not stood Therefore to leave out the Archbishops and Bishops may happily seem a matter of lesse weight than all men doe judge it If our Evangelicall Bishops be of that opinion of which the Popish Bishops were viz. that the house of Parliament is an unfit and an unmeet place to have the holy cause of the religion of God debated and concluded upon and that the Laitie without the clergie ought not to conclude any thing in Religion and that in respect hereof their presences their voices and their assents are necessary in the â—arliament If our Evangelicall Prelates I say make this objection then besides that hereby they unseemely unmannerly and unchristianly accuse the whole land of ignorance and blindnesse in religion supposing neither King nor Nobles nor Commons to be able to discern betweene night and day besides this I say so shamefull an abuse of a whole Christian nation I would pray them to remember what the most reverend Fathers Master Pilkington and Master Iewell have answered to such cavillous slanders For what else intended they by many examples and proofes brought for the Parliaments of England consisting of the King the Nobles and the Commons to be lawfull Parliaments and to have right to establish religion but to justifie against Popish scoffers that religion might be conceived and established in Parliament notwithstanding the absence or exclusion of the Clergie Besides since our
lawes doe uphold the state and authoritie of the Convocation house for the examination of all causes Matters of religion not concluded in parliament before the same bee consulted of in convocation of Religion surely it cannot be truly averred that it is necessarie for Evangelicall Bishops to be members of the Parliamenthouse lest controversie of Religion should bee handled and discussed without them For how should any matter of religion bee concluded without them in Parliament when first of all the same is to be argued among themselves in convocation Or let them hardly if they can shew any one instance of any change or alteration either from religion to superstition or from superstition to religion to have beene made in Parliament unlesse the same freely and at large have beene first agreed upon in their Synodes and Convocations And what booteth it then to have a double or treble consultation and consent of Archbishops and Bishops in parliament Is the holy cause of God any whit bettered by their Bishops riding from Pauls to Westminster Or can it receive any more strength by their walking from Westminster Church to Westminster palace Nay it hath beene often times so farre from being promoted by their bishops as not only in their convocations but also in the Queenes parliaments the same thing hath beene shamefully intreated and taken the foyle as may witnesle the bill for the better observation of the Sabboth 27. Eliz. which being passed by both houses of parliament was notwithstanding gainesaid and withstood by none so much as by certaine Evangelicall bishops and which as there all men generally conceived was only stayed from being made a law by the Queene upon their counsell and perswasion ADMONITION Pag. â—8 It hath beene alwayes daugerous to picke quarrels against lawes setled ASSERTION And is it not morbus haereditarius in Prelates to pick quarrels against reformation of errours For even this did Stephen Gardener Stephen Gardeners argument and the adâ—onitors argument in effect one reason against the Lord Protector That in no case saith Stephen Gardener is to be attempted of the Lord Protector which may bring both danger to him and trouble to the whole Realme But innovation of Religion from that state wherein K. Henry left it may be and is like to be dangerous to the Lord Protector and to baeed troubles to the whole Realme Therefore innovation of Religion from the state that K. Henry left it is in no wise to be attempted And even of this stamp and of this streyne is the argument of pickking quarrels against laws setled for thus in effect he argueth That Discipline in no case is to bee brought into the Church by the King and Parliament which may be dangerous to lawes setled But to bring into the Church the Apostolicall discipline may be dangerous to lawes setled Therefore the Apostolicall Discipline in no case is to be brought into the Church by the King and Parliament But forasmuch as that noble and religious Lord Protector notwithstanding Stephen Gardeners sophistry continued constant and couragious in the abolishment of popery and superstition which king Henry left and did without dangerous alteration of laws then setled innovate religion How much more now may the Kings Majestie the Lords and Commons in Parliament attempt with effect an innovation of that state of Ecclesiasticall government wherein the Queene left the Church And if it cannot be denyed but it had beene far more dangerous for the Realm and for the Lord Protector not to have setled the holy doctrine of the everlasting Gospell by Lesse danger to reforme the Church â—y nâ—w lawes than to câ—ntinue corruption by old laws new lawes than to have maintained and continued antichristianitie by old lawes how should it be lesse danger for the king in these dayes to continue corruptions in the Church by toleration of old lawes than to have the same corruptions reformed by establishment of new lawes But unto whom or unto what hath it beene dangerous to pick quarrells against lawes setled Wha hath it beene dangerous to lawes setled No. For how should lawes setled be indangered by quarrelers sithence quarrellers are evermore in danger of lawes setled Or hath it beene alwayes dangerous for a king for a State for a people or for a Countrey to pick quarrels against lawes setled No. For what man is he or what face carrieth he that dare upbraid a countrey a people a State or a King minding to unsettle evill lawes and evill customes to be quarrellers against lawes setled Let it then only be dangerous for private persons upon private male-contentment to pick quarrels against good lawes well and rightly setled and let it not be hurtfull or dangerous for supreme Kings powers and principalities by publike edicts to alter evill lawes evilly setled For to what other end should evill lawes evilly setled be continued but to continue evill And what a thing were that This argument then for lawes setled being the sophisme of that Fox Stephen Gardener is but a quarrelsome and wrangling argument ADMONITION If this government whereof they speake be as they say necessary Pag. 78. in all places then must they have of necessitie in every particular parish one Pastor a company of Seniors and a Deacon or two at the least and all those to be found of the parish because they must leave their occupations to attend upon the matters of the Church But there are a number of Parishes in England not able to finde one tolerable Minister much lesse to finde such a company ASSERTION This argument seemeth to be drawne from kitchin profit and is but a bugbegger to scarre covetous men from submitting their necks unto the yoke of that holy discipline which our Saviour Christ hath prescribed and which the Admonitor himselfe confesseth to have beene practised by the Apostles and primitive Church And yet because this argument seemeth to lay a very heavie burden on mens shoulders such as is impossible to be borne it is an argument worthy That seniours and Deacons should bee found at the charge of the Parish is absurd to be examined though in it self the same be very untrue and absurd For who did ever fancy that a Pastor a company of Seniours and a Deacon or two at the least should be men of occupations or that they should be all found of the parish because they must leave their occupations to attend upon the matters of the Church Why there be many hundreds of parishes in England wherein there dwelleth not one man of an occupation And what reason then or what likelyhood of reason was there to father such an absurd necessitie upon the Church As for the necessitie of having one Pastour in every partilar parish and of his finding by the parish because it is his duety to attend upon reading exhortation and doctrine although he bee no man of occupation this I say is agreeable and consonant to the government of the Church practised by
and contained in the Scriptures that infants must bee baptized neither is it expressed and contained in the Scriptures that the bishop of Lichfield must have but one wife Yet because it is contained in the Scriptures that God in the beginning brought but one woman unto one man and gave to one woman but one husband I assure my selfe it will not be denyed but that the bishop must and doth content himselfe with one wife and that every Christian ought to bring their children to be baptized Besides if Master Bilson distinguisheth bishops in England from pastours in England and Archbishops in England and Pastors in England two severall orders and degrees of Ministers in the Church of England then I grant that it is neither expressed nor contained in the Scriptures that the people must choose their bishops in England And why but because the Scriptures having put no difference betweene bishops and pastours know no such bishops as we have in England And therefore bishops Bishops in England are only Bb. by the Kings grace and not by divine institution in England being bishops only by the Kings grace and not by divine institution and ordination as pastours in England be hence is it that the Kings of England by their prerogative Royall and not the people by the rule of Scriptures have chosen their bishops in England And for this cause also was it that K. Hen. 8. with advice of the Parliament did resume the nomination appointment investiture and confirmation of his Kingly bishops from the pope As for the nomination of pastours having cure of soules in parishes otherwise than all patrons by right of patronage doe give presentments their choise institution translation oâ— deprivation the Kings of England by their Pastours in parochiall Churches were never placed by the King as Bb. are in their Bishopricks regall power never yet hetherto tooke the same upon them And if the Kings of England by any fact or by any law did never take away the right interest and freedome from the people in choosing their pastours what right other than by usurpation can the bishops have to impose or thrust upon the people pastours without their liking But by custome and consent the people have restrained themselves Hereunto if it were not alreadie sufficiently answered that the people could not lawfully restraine themselves yet Master Bilson himselfe answereth That the late bishops of Rome never left cursing The people lost their consent by cursing and fighting of the Popes and fighting till they had excluded both prince and people and reduced the election wholly to the Clergie By cursing and fighting then have the people beene overruled and excluded and not by custome or consent have they restrained themselves Yea and by vertue of this cursed fight only doe the Bishops of England at this day exclude both Prince and people from medling in the choise of pastours For by authoritie of the canon law made by those late cursing and fighting Bishops of Rome the bishops of England have the sole ordination and placing of pastours over the people And from hence also it is plaine that the peoples right was not by their default or abuse relinquished and forfeited For then the late Bishops of Rome needed not to have cursed and fought for it And now whether it be not meet that the Lord Bishops professing themselves to be Christian bishops should still retaine in their hands and not restore unto Christian people the possession of their Christian equitie and freedome extoâ—ted from them by the cursings and fightings of antichristian Bishops I leave it to the consideration of the reverend bishops themselves Touching the mischiefes and inconveniences of schismes troubles strifes and contentions so often inculcated and so much urged and excepted against the election of the people there is no man able as I thinke to produce any one pregnant proofe out of any ancient or late historie that any king or Soveraigne power hath interposed any supreme authoritie to appease any discord or dissention ensuing or raised upon the bare choise made of any meere parochiall pastour by any faithfull and christian people The schismes strifes and factions that were raised in the old churches sprang out and slowed onely Schismes and contentions spring from schismaticall and proud clergie masters from the heads and fountaines of those schismes strifes and factions and namely from proud ambitious and hereticall bishops and great clergie masters For they being infected and poisoned with the contagion of schisme and heresie and having sowred the mindes of their Disciples with the leaven of their hereticall doctrines no marvaile if the people became followers of the evill manners of their teachers and no marvaile if they verified the proverbe Like master like man like Priest like people Eustatius Bishop of Antioch being a Sabellian heretike was deposed by the Councell of Antioch after whose deposition a fierie flame of sedition was kindled in Antioch Socr. 1. c. â—â— because one sort of the common people sought to translate Eusebius Pamphilus from Caesarea to Antioch some other would bring againe Eustatius Eusebius bishop of Nicomedia and Theognis bishop of Nice being both Arians with their confederates raised skirmishes and tumults against Athanasius after the death of Alexander bishop Socr. l. 2. c. 2 of Constantinople about the election of a bishop there was greater stirre than ever before time and the Church was more grievously turmoyled The people were devided into two parts the one egerly set with the heresie of Arius clave to Macedonius the other cleaved very constantly to the decrees of the Nieene Councell and choose Socr. l. 2. c. 4 Paulus to be their Bishop The cause of division among the Citizens of Emisa about the election of Eusebius Emisenus was for that he was charged with the studie of the Mathematickes and accused of Socr. l. 2. c. 6 the heresie of Sabellius After the death of Eusebius when the people of Constantinople had brought againe Paulus to be their bishop the Arians chose Macedonius The authors and chiefe doers in that stirre were certaine Arian bishops who before aided Eusebius that turned up side downe the whole state of the Church These Socr. l. c. 9 and sundry such like sturres discords factions and dissentions are found to have beene raised and pursued by schismaticall and hereticall bishops their favourites and followers in the old Churches but that these or the like mischieves and inconveniences can be proved to have fallen out by the election of Parochiall pastours in the old Churches we deny And why then should not the interest and freedome of faithfull and Christian people wrested from them by cursings and fightings of faithlesse and antichristian Popes be restored to them againe And the cause ceasing why should not the effect likewise cease And therefore we humbly intreat the Lords bishops that against the grounds of reason and nature against Christian equitie A â—equest to the â—everend
matters of civill justice are heard examined and adjudged by one man alone If for the common benefit of the Tenants against incrochments over-laying of commons wast nuisances or such like any paine is to bee offered or presentment made the same is not set or made by the Steward Sheriffe or other Officer alone but by the common voyce and consent of all the homagers and sutors to the Court The Steward indeed is the director and moderator of the Court the giver of the charge and the mouth of the whole Assembly to pronounce and enact the whole worke of their meeting but hee is not the onely inquisitor the presenter the informer or the Judge to dispose all things according to his owne discretion Besides matters of the Kings peace are not committed in any Countie or other place within the Realme onely to one Justice of the peace alone For neither at the generall Sessions of the peace nor at any other lesse publike meetings any person for any offence Breaches of the Kings peace not punishable by one alone whereof hee standeth indighted or for which hee is punishable can bee fined amerced or bodily punished at the discretion of one Justice alone but by the greatest part of the Iustices assembled his penaltie is to bee imposed upon him Furthermore this manner of the examination of the fact and declaration of the Law for the tryall of the fact and judgement of the Law doth not reside in the brest of one Iuror or Iudge alone In the Court of the Kings Bench if a Prisoner hee brought to the Barre Iustice in any of the B. Courts is not executed by one Iudge alone and confesse not the Crime by the Iustice of that Court hee can receive no judgement unlesse hee bee first indicted by inquisition of twelve grand Iurors at the least and afterward againe bee tryed by other twelve brought judically into the Court face to face Yea and in this Court neither the interpretation of the common Law nor the exposition of any statute dependeth upon the opinion credit or authority of one Iudge or not of the Kings chiefe justice himselfe alone for his other three brethren and Co-juges varying from him in point of law may lawfully over-rule the Court. The same manner of Judgement for the Law is in use and is practized by the Judges in the Court of common Pleas and by the Barons of the Exchequer in the Latin Court of the Exchequer And not In the Courts of Equitie are many assistants Court of requests only in these Courts of law and Justice but also in all the Kings Courts of equitie and conscience it is not to be seene that any one person alone hath any absolute power without assistants finally to orâ—er judge and decree any cause appertaining to the jurisdiction of those Courts In the Court of Requests there are not fewer than two yea some times three or foure with Master of Requests in commission to heare and determine matters of equitie in Court of Wards that Court. In the Court of Wards and liveries there sitteth not only the Master of the Wardes but also the Kings Attourney the Receiver and other Officers of the same Court. In the Court of Court of the Chequer Chamber the Exchequer-chamâ—er with the Lord Treasurer who is chief and president of that Councell yet with him as assistants doe sit the â—hancellour of the Exchâ—quer the Lord Chiefe Baron High courts of Chancerie and the other Barons Whatsoever dâ—cree finall is made in the Kings high Court of Chancerâ—e the same is decreed not by the Lord Chancellour alone But by the Lord Chancellour and the high Court of Chancerie wherein the Master of the Roles and the twelve Masters of the Chancerie as coadjutors doe sit and give assistance In the most honourable Court of Starre-Chamber the Lord Chancellour the Lord Treasurer and the president of the Court of Star-chamber 3 H 7 c. 1 2 H 8 c 20 Kings most honourable Councel and Keeper of the Kings privie Seale or two of them calling unto them one Bishop and one temporall Lord of the Kings most honourable Councell the two chiefe Justices of the Kings bench and Common pleas for the time being or other two of the Kings Justices in their absence have full power and authoritie to punish after their demerits all misdoers being found culpable before them If we search our statutes besides the Courts and matters determinable in these spoken of before we shall finde that the complaints of errour whether it tâ—uch the King or any other person made in the Exchequer should bee 31 E 3 c 21 done to come before the Chancellour and Treasurer who taking to them two Justices and other sage persons are duely to examine the businesse and iâ— any errour be found to correct and amend the 14 E 3 c 5 Roles c. By reason of delayes of judgements used in the Chancerie in the Kings bench common bench and in the Exchequer it was assented established and accorded that a Prelate two Earles and two Barons chosen by the Parliament by good advice of the Chancellour c. shall proceed to take a good accord and to make 10 K. 2 c. 1 a good judgement When it was complained unto the King that the profits c. of his Realme by some great Officers c were much withdrawne and eloyned c. it pleased the King c. to commit the surveying aswell of the estate of his house c. unto the honourable Fathers in God William Archbishop of Canterburie 26 H. 6 b 11 H. 7 c. 25. c 19 H. 7 c. 7. and Alexander Archbishop of Yorke c. by a statute of commission for Sowers by a statute for punishment of perjurie by a statute against making or executing of acts or ordinances by any c Masters being not examined c. by the Lord Chancellour d 27 H 3 c. 27 c 32 H. c. 45. f 27 E c. 8 Treasurer or chiefe Justices c. By a statute for the erection of the Court of d Augmentation by a statute for erection of the Court of first e fruits and tenths and lastly by an f act for redresse of erroneous judgements in the Court commonly called the Kings bench By all these Statutes I say it is very apparant that the Administration of publike affaires in the common weale hath never beene usually committed to the advisement discretion or definitive sentence of any one man alone Which point is yet more fully and more perfectly Lord president and councell in Wales Lord president and councell in the North parts Lord Deputie councell in Ireland The King his honourable privie Councell The King and his grand councell in Parliament to be understood by the establishment and continuance of the Kings Lord President and Councell of Wales of the Kings Lord President and Councell established for the North of the Kings L. Deputie and Councel within
the Realm of Ireland of the K. highnesse most honourable privie Councell chosen by him for the assistance of his Royal person in matters appertaining to his Kingly estate and lastly of the supreme and grand Councell of the three estates in Parliament for matters concerning the Church the King and the common weale For whether respect be had unto the secret affaires of the Kings estate consulted upon in his Highnesse Councell Chamber by his privie Councellers or whether we regard the publike tractation of matters in Parliament there can be no man so simple as not to know both these privie and open negotiations to be carried by most voices of those persons who by the K. are called to those honourable assemblies And what a vaine jangling then doth the Admonitor keepe and how idely and wranglingly doth he dispute when against the government of the Church by Pastours and Elders hee objecteth that the same will interrupt the lawes of the Realme that it will bee great occasion of partiall and affectionate dealing that some will incline to one part and that the residue will be wrought to favour the other and that thereby it will be a matter of strife discord schisme and heresies Howbeit if never any of these extremities and dangers have fallen out in the common weale by any partiall ot affectionate dealing of the Kings Deputies Presidents Judges Justicers and other Officers and Ministers associated unto them for the administration of Justice or equitie in any of the Kings civill Courts how much lesse cause have we to feare any partialitie affection working inclination favour strife debate schismaticall or hereticall opinions if once Pastours and Elders in every Congregation and not throughout a Diocesse one Bishop alone had the spirituall administration of the Church cause Can many temporall Officers Justicers and Judges rightly and indifferently administer the Law and execute jâ—stice and judgement without that that some doe incline to one part and without that the residue be wrought to favour the other part And cannot spirituall Officers dispatch spirituall affaires without that that they be partially and affectionally disposed What is it so easie a matter that the Ancients of God and the Ministers of Christ can the one part incline to righteousnesse and the residue be wrought to favour wickednesse can some incline to God and unto Christ and can other some be wrought to follow Satan and Antichrist For what other controversie is requâ—red to be decided by Pastours and Elders than the controversie of sin between the soule of man and his God And is there any Christian Pastour or Elder that will be wrought rather to favour the sinne of a mortall man than the glory of his immortall God But to leave the state of the kingdome and common weale and the good usages and customes of the same let us come to the state of the Church it selfe and to the lawfull government thereof established even amongst us at this The government of the Church ought not to be by one alone day For whatsoever our Reverend Bishops practise to the contrary yet-touching ordination and deposition of Ministers touching excommunication and absolution touching the order and rule of Colleges Cathedral Churches and the Vniversities the Ecclesiastical law doth not commit the administration of these things and regiment of these places to any one person alone The Vniversities admit not the government of the Chancellour being present nor of his Vicechancellour The government in the Vniversities not by one alone The government in Colledges not by one alone himselfe being absent as of one alone the Doctors Procurators Regents and non-Regents have all voices and by most oâ— their voices the Vniversitie causes take successe The businesses of Colledges by the statutes of their founders are commended to the industrie and fidelitie of the President Viceprovost and Fellowes unto the Provost and Viceprovost and Fellowes unto the Warden Sub-warden and fellowes unto the Master and fellowes and unto such like Officers and fellowes The Cathedrall The government of Cathedrall Churches not by one alone Churches their livings and their lands their revenues and their dividents their Chapiters and their coâ—ferences depend upon the will and disposition of the Deane and Chapiter and not of the Bishop alone Neither can the Bishop alone by any ancient canon law pretended to be in force place or displace excommunicate or absolve any Ecclesiasticall person without the judgement of the Chapiter Ex de exces Prela c. 2. Exc. de hiis quaes cons cap c novit And aswell by a statute 21. H. 8. c. 13. as also by the booke of consecrating Archbishops c. the presence of divers Ministers and the people is required at the ordiâ—ation of every Minister As for the deposition or degradation of Ministers under the correction of the reverend Whether the degradation of a Minister be warrantable Monsieur de â— Iesis 164. in the 2 book of the Masse Bb. be it spoken I think they have not so much as any colour of any law for it The form of the degradation of a popish and sacrificing Priest by the Canon law can be no pretext to degrade a Minister of the Gospell because a Minister of the Gospell is not set into his charge per calicem patinam with a cup full of wine and dish full of hostes neither receiveth hee any character at all of a shaveling priest And because a Minister of the Gospell is ordained only after that manner which the statute law hath appointed how should the ordination made by so high an authoritie be undone by any other power unto the former manners of the administration of the causes of the Vniversities Colledges and Cathedrall Churches may be added the execution of Ecclesiasticall jurisdiction committed The ecclesiasticall Commission exercised by many commissioners and not by one heretofore by the Queen unto the Ecclesiastical Commissioners For althought by the words of the statute her Highnesse had full power and authoritie by her letters patents to assign name and authorize any one person a naturall borne subject to execute spiâ—ituall jurisdiction yet neverthelesse according to the laudable usages and customes of her Kingdome and courts temporall she evermore authorised not one alone but divers and sundry aswell temporall as Ecclesiasticall persons for the execution thereof Which manner of The ecclesiasticall commission commanded by the Bishops if it please the King may be enlarged unto all parishes wherin are godly preaching Ministers commission because the reverend Bb. commend the same and avow that it would do more good if it were more common it cannot but seem to be a most gratefull thing unto all good men especially unto those reverend Fathers if humbly wee beseech the king that his highnesse would be pleased to make it more common And therfore in the behalfe aswell of the reverend Bb. as of all the learned and grave Doctors and Pastours of every Church we most instantly
they joyntly should not execute the discipline of Christ viz. excommunication and other censures of the Church in every parish within his kingdome If it bee answered that in this case the Presbyter alone doth excommunicate is it not as if one should say that the executioner doth give judgement when at the commandement of the Judge he smiteth off the head or casteth downe the ladder or may not as much be said for the execution whereof we speak that the Pastor only should excommunicate when by vertue of his office with the consent and not by the prescript of the elders associated unto him he should declare and pronounce the partie to be excommunicated but let it be granted that Rowland Allen denounceth the lesson which is written in the paper for him to read yet it is cleare by the precept that the same must bee done by the prescript of Doctor Hone Besides Doctor Hone he citeth he precognizateth the parties and they being absent hee pronounceth them contumaciter absentes and in poenam contumaciarum suarum hujusmodi decreeth them to bee excommunicate and are not all these necessarie parts incident to the execution of discipline by excommunication And how then can the Minister bee said to excommunicate alone when Doctor Hone of necessitie must play three parts of the foure without all or without any one of which parts the excommunication by reason of a nullitie is meerely voide Againe the Act being done as it were uno puncto ac uno halitu and Rowland Allen and Doctor Hone having their commission from the Archdeacon in solidum how can their judgement be divided Furthermore to say that Rowland Allen doth excommunicate by the authoritie of Doctor Hone were to overthrow the intendment of the article Because by the scope of the article it is plaine that the presbyter to be associated to the officiall must only derive his authoritie from one who hath taken Ecclesiasticall orders But those orders Doctor Hone never tooke otherwise Rowland Allens presence had been unnecessarie and superfluous And therefore if the excommunication bee of any validitie then is discipline by excommunication in the Church of England exercised partly by our lay-Elder as they call him and partly by one Ecclesiasticall Elder wherein againe it is worthy the observation for the matter we have in hand that D. Hone a meere lay and temporall man hath authoritie from the Archdeacon to call and associate unto him and to prescribe R. Allen a Presbyter and an other mans hireling Curate in Southwarke to excommunicate not only the Parochians of an other Pastors charge but any other Pastour whatsoever subject to the Archdeacons jurisdiction And hath not the Kings highnesse then as good right as great a priviledge and as high a Prerogative to command Master Doctor Andros or Master Doctor King and lay Elders by a lawfull election to be associated unto either of them to excommunicate either of their owne parishioners for publike drunkennesse or other notorious sinnes committed in their owne parish For if it be lawfull at the voice of a lay stranger that an hireling and stipendarie Curate should chase an other mans sheep out of his owne fold how much more is it it lawfull that a true shepheaâ—d should disciplinate his owne sheepe feeding and couchant within his own pasture and within his owne fold Furthermore touching the admittance of governing Elders or lay Elders as they call them unto the Minister of every congregation according to the former pattern of one lay Elder that the same is not a matter so strange for lay men to bee joyned in this charge Lay men appointed by the Queenes injunctions to execute some part of discipline of ecclesiasticall government as the opposites beare us in hand to bee it shall not be amisse to call unto their remembrances one of our late Soveraigne the Queenes injunctions whereby certaine lay persons called overseers were commanded to be chosen by the ordinaries in every parish for the better retaining of the people in obedience unto divine service In every parish saith the Injunction three or foure discreet men which tender Gods glory and his true religion shall bee appointed by the Ordinaries diligently to see that all the parishioners duely resort unto their Church upon all Sundayes and holydayes and there to continue the whole time of the Godly Service And all such as shall be negligent in resorting to the Church having no great or urgent cause of absence they shall straightly call upon them and after due admonition if they amend not they shall denounce them to the Ordinarie Thus farre the injunction Which that it is not meant of the Church wardens appeareth by the very next article for unto them as is assigned an other name so also another office That sidemen also are not these kinde of overseers is plaine in that they be neither so many in number as are here required neither chosen by the Ordinaries neither yet doe they admonish and denounce according to this article Wherefore because it is meet that the effect of this injunction being religious should be put in due execution it seemeth a thing very reasonable and much tending to the honour of the King that his Highnesse under his letters patents would bee pleased to appoint three foure or more discreet and faithfull persons in every Parish not only to performe the effect of this article but also generally to oversee the life and manners of the people that without great and urgent causes they resort not unto Typling-houses or houses of evill note and suspected fame and that upon the Sabbaths they use no heathenish dancing about their disguised May-poles And after due admonition if they amend not to denounce them to the Pastor of the place For then might the Pastor Book of the form of ordeining Priests be encouraged to give his faithfull diligence as at the time of his ordination he solemnly promiseth unto the Bishop alwaies to Minister the Doctrine and Sacraments and Discipline of Christ as the Lord hath commanded by which words inserted it the booke there is a plaine and open confession made by all estates in Parliament that Christ hath not only established discipline but a certaine forme of discipline in his Church and that the pastour to whom Every Minister ought to minister the discipline of Christ in his owne cure by consent of Parliament the care and charge is committed to teach the people ought to minister the same discipline For it had beene a very absurd part for the Parliament to appoint the Bishop to receive a promise from the Ministers to minister the discipline of Christ if Christ had not instituted a discipline or that the same discipline which he instituted had not in their judgements belonged unto the Minister And therefore this very letter of the booke convinceth the whole answer made unto the abstract touching this point to be very erroneous frivolous and impertinent to the point in question For