graÌ„t the said immunityes and priuiledges And also those words of King Edwyn which of his Catholike predecessors S. Leo King Kenulphus were granted And againe By â—orce of the Letters and Bulles aâ—oresaid the said village of Culnam was a Sanctuary and place priuiledged 63. And hereby also is euident that the King did not by his Charter in Parlament for it appeareth to be made by the Counsaile and consent of his Bishops and Senators not by Parlamâ—nt as M. Attorney doth misreport it neither was there any Parlament held at that time in the land or many hundreth yeares after for as it appeareth by Holinsheads Chronicle pag. 34. the first vse of Parlaments in England was in the tyme of King Henry the first it is cleare I say that the King did not discharge and exempt the said Abbot from Iurisdiction of the Bishop nor did grant vnto the said Abbot Ecclesiasticall IurisdictioÌ„ within the said Abbey neyther had that abbot any Ecclesiasticall IurisdictioÌ„ deriued froÌ„ the Crowne But as it appeareth by the autheÌ„tike report of the Case the Pope the King did ioyne both in making the said Sanctuary according to their seuerall powers authorityes So that the exemptioÌ„ from Episcopall IurisdictioÌ„ proceeded duly from the grant of Pope Leo as likewise the exeÌ„ption froÌ„ all Regall temporall Iurisdiction proceeded froÌ„ the Charter of King Kenulphus Note also that King Edwins Grant was only that the said Monastery should be free from all earthly seruitude toucheth not any spirituall immunities or Iurisdiction at all 64. Thus far my friend out of England and by this now you may see how well M. Attorney hath obserued his foresaid protestation that he had cyted the very wordes textes of the Lawes without any inference argument or amplification at all And this being my friends aduertisment from England with like obseruation of manie other places cyted by M. Attorney with like fydelity I thought good to produce this one amongst manie being the first in order for a tast in this place reseruing the rest to a fitter or at leastwise to a second edition of the foresaid answere of the Catholike Deuine where euery thing may be referred to his due place and with this will I end this Chapter Thus far wrote I at that tyme in charg of Syr Edward THE DISCHARGE AND Reckoning about the former Charge made to Syr Edward Cooke §. V. YOV haue heard now this Charge how important substantiall yt is and who would not haue thought but that either Mâ— Morton or Syr Edward himself would haue answered somwhat to the same in their Replyes made since the publishing hereof or at leastwise would haue asmuch as mentioned yt especially M. Morton who in a certaine manner and law of vrbanitie was more obliged to take the patronage of Syr Edwards wrytings then himself for so much as the Charge was giuen in a Booke against M Morton and he had so highlie commeÌ„ded the sayd worke of his Reports as he calleth them The allwaies reportable and memorable Reports taking out of them sundrie heads of examples as his words are that improue the Popes Supremacie in causes Ecclesiasticall ascribe it to the king which that yow maie see how substantiall they are I shall take the paynes to set them downe here as they stand in his Book 66. I will point at some â—ew heads oâ— examples saith he oâ— our ancient ChristiaÌ„ kings which Syr Edward Cooke his Maiesties Attorney generall in his allwaies reportable memorable Reports hath lately published In the Raigne oâ— king Edward the fyrst saith he a Subiect brought in a Bull of excommunication against another Subiect oâ— this Realme published it But yt was answered that this was thâ—n according to the ancient lawes oâ— England Treason against the King and the Offendor had byn drawen and hanged but that by the mercie of the Prince he was only abiured the Realme c. 67. At the same tyme the Pope by his Bull had by way of prouision bestowed a benefice vpon one within the Prouince of â—orke the King presented another the Archbishop reâ—useth the Kings presentation and yelded to the Popes prouision This Archbishop then by the common law oâ— the land was depriued oâ— the lands oâ— his whole Bishopricke during lyâ—e And in the Raigne of king Edwâ—rd â—he third the king presented to a Benâ—â—ice his Presentee was disturbed by one who had obtayned a Bull from Rome for the which cause he was condemned to perpetuall imprisonment c. 68. In the Raigne oâ— Richard the second yt was declared in the Parliament R. 2. c. 2. that England had allwayes byn â—ree and in subiection to no Realme but imediatly subiect to God to none other and that the same ought not in any thâ—ng touching the Regaltie of the Crowne to be submitted to the Bishop of Rome nor the lawes of their Realme by him frustrated at his pleasure c. 69. In the Raigne of King Henry the fourth it was confirmed that Excommunication made by the Pope is oâ— no force in England c. In the Raigne of King Edward the fourth the opinion of the Kings Bench was that whatsoeuer spirituall man should sue another spirituall maÌ„ in the Court of Rome for a matter spirituall where he might haue remedy beâ—ore his Ordinary within the Realme did incur the danger of â—remunire being an heynons offence against the honour of the King his Crowne and dignity 70. Thus far M. Morton out of Syr Edward Cooke then he addeth Many other examples of like nature I pretermit and remit the Reader desirous to be further satisfied vnto the booke oâ— Reportes habet enim ille quod det dat nemo largiùs For he hath to giue and no man giueth more aboundantly This is his Encomium But what doth he giue truth or falshood sincere or wrested allegatioÌ„s matter to the purpose or impertinent That we shall here now discusse shew that neither the exaÌ„ples themselues are altogeather true as here they are set downe nor if they were yet doe they not prooue the purpose for which they are alleaged And first we shall proue the second which most importeth and it is easily proued 71. For first Syr Edwards purpose obligation was to proue that Q. Elizabeth by force of her temporall Crowne had all manner of Supreme authority in spirituall affaires no lesse then any person euer had did or could exercise in England as the words of the Statute haue alleaged by him and the purpose of M. Morton was as appeareth by the title of his Treatise to improue the Popes supreme authority in Causes Ecclesiasticall So as both their ends and purposes were by different meanes to proue that the Pope had no supreme authority in Ecclesiasticall matters for time past in England the one by ascribing all to the King the other by denying it to the Pope But this purpose of theirs
either in the one or the other point is not proued by any one of all these examples nor by them altogeather though they were granted to be true as here they lye For that they do not proue that either our Kings here mentioned did assume to theÌ„selues to haue Supreme authority in spirituall affaires or to take it from the Pope nay the Catholike Deuine in answering to Syr Edwards obiections herein doth euidently shew and proue yea conuinceth that these fiue English Kings here mentioned to wit King Edward the first Edward the third Richard the second Henry the fourth Edward the fourth vnder whom these Cases fell out did all of them most effectually acknowledge the Popes supreme authority in Ecclesiasticall matters and were obedient Children to the same as he shewed by sundry most cleare and apparant examples of their owne actioÌ„s towards the Sea Apostolike and that these particuler Cases supposing they were all true and fell out as heere they are set downe to wit that the publishing of a Bull of Excommunication in some Causes and vnder some King might be held for Treason as also that the Archbishops lands might be seysed vpon for refusing to admit the Kings presented Clerke that in Parlament it was said that the Regality of the Crowne of England depended not of Rome and that in certaine Cases no suites might be made thither without recourse first to the Ordinaries of England 72. Albeit I say that these things were all granted as they lie yet do they not inferre by any true coÌ„sequence that which the Knight and Minister should proue to wit that for this either these kings were or held themselues for supreme in spirituall authority at that tyme or that it was denied vnto the Pope Wherof this one is a most conuincent argument that the like Cases do or may fall out at this day in other Catholicke Countries and Kingdomâ—s as in France Spaine Naples and Sicily where â—here be diuers Concordates resâ—rictions limitations agreed vpon for auoyding further inconuenieÌ„ces betweene the Pope and Catholicke Kings and Princes concerning the manner of execution of Ecclesiasticall authority without any derogation to the Supremacy therof in the Pope And so might men be punished by the said Princes for breaking rashly the said agreements as they may and are dayly in the said Kingdomes especially in the last and yet do not these Kings thereby either deny the Popes supreme authority or take it to themselues as M. Attorney M. Morton do falsely ininferre in these our cases And thus it is manifest that albeit these exaÌ„ples were in all râ—spects truly alleaged yet are they impertinent to proue that which is pretended And this for the first point 73. But neither is it all true that heere is set down nor as it is set downe which is the second point to be considered For which cause though I find these fyue Cases sufficiently answered by the Catholicke Deuine in his late Booke against M. Attorney yâ—t for tâ—at the said Knight in his last Preface to the sixt part of his Reports doth say that he fyndeth him vtterly ignorant in the lawes of the Realme though as a Deuine he made no profession to be skilfull in the same yet shall I adde somewhat to the reuiew of these Cases whereby it may appeare at leastwise whether he to wit the Deuine or M. Attorney or M. Morton haue vsed the skill of their professions with more sincerity in this matter 74. The first Case thâ—n is thus set downe by M. Morton out of the Attorneys booke though not altogether as it lyeth in his booke but with some aduantage as the Attorney did out of his Bookes whereof he tooke his Case So as here is helping the dye on all haÌ„ds as you see In the Raigne of King Edward the first saith M. Morton a Subiect brought in a Bull of excommunicatiâ— against another Subiect of this Realme and published it But it was answered that this was then according to the ancient lawes of England treason c. as before is set downe 75. Wherein I must note first before I come to examine the answere already made that M. MortoÌ„ can not choose as it seemeth but to vse a tricke or two of his art of iugling euen with M. Attorney himself For whereas he relateth to with the Attorney that this Bull of excommunication was published to the Treasurer of England M. Morton clyppeth of all meÌ„tion of the Treasurer which notwithstaÌ„ding in this Case is of great moment for so much as it semeth that if he had published the same to the Archbishop or Bishops appointed to haue the view of such things and had brought their authenticall testimonies for the same it seemeth by the very booke it self of Iustice Thorpe who recounteth this Case by occasion of the Case of Syr Thomas Seaton and Lucy 30. E. 3. that it had byn litle or no peril at all vnto the publisher for that this reason is alleaged for the offence therein committed that for so much as the partie to wit Lucie against Syr Thomas Seaton did not shew any writ of excommunication or any other thing sealed by the Archbishop of England nor any other Seale that was authentike prouing this therfore the Bull was not allowed c. 76. This then was a fine tricke to cut of all mentioÌ„ of the Treasurer the other also immediatly following hath some subtilitie in it though not so much as the former to wit that it was answered that this was Treason c. for that in none of the bookes cited either of Thorpe or Brooke is any mention of such answere giuen as M. Morton feygneth nor any such iudgment of Treason passed theron as M. Attorney would make his Reader belieue as preseÌ„tly shall be proued So as these are the first two trickes of M. Morton to helpe his dye all the rest for the substance of the matter is like to fall vpon M. Attorney 77. First then the Answere of the Deuine vnto this Case not hauing commoditie at that time to see the two bookes of Thorpe and Brooke cyted in the margent was that it could not possibly be imagined by reason that the Case stood altogeather as M. Attorney did set it downe espâ—cially with this note in the margeÌ„t that the bringing in of a Bull against a subiect was Treason by the ancient coÌ„mon lawes of England before any Statute law was made therof for that the Deuine demandeth what this Common law was not made by Statute How was it made By whome Where At what time Vpon what occasion How introduced and commonly receiued for all this a Common law supposeth especially for so much as the said Deuine had shewed and aboundantly proued now that all precedent Kings of England both before and after the Conquest were most Catholicke in this very point of acknowledging the Popes supreme and vniuersall authority in spirituall affaires wherof the power
But if we will consider the wise glosses Commentaries and comparings which the Minister maketh very Ministerially vpon euery one of those Cases after he hath related the same it will appeare much more ridiculous For to the first which euidently conuinced both him and M. Attorney of falsitie if you remember for affirming that to be treason by the Common law which is not he saieth thus CoÌ„pare this Bull which did only push at a Subiects benefice with that Bull which goareth Kings And to the second Compare this Bull of disturbans the Presentee of Kings with that which doth ordinarily violate kings persons And to the third Compare this English King imediatly not subiect to the Pope with the Iesuiticall principle All Kings are indirâ—ctly subiâ—ct to Popes And to the fourth CoÌ„pare this that the excoÌ„munication of the Pope is of no force in England with those excoÌ„munications which in these later times haue byn mâ—de against England 96. And to the fifth Compare this oâ— the punishment of theÌ„ that drew men â—or suites to Rome with their acts who haue made no other suite to Rome but â—or meanes to dâ—spossesse English Kings oâ— their Crowne and dignity All these comparings I say are not worth a paring and it was great idlenes in M. Mort. to fill vp paper spend time in such coÌ„parings wheras the matters things themselues wheron these â—on coÌ„d parisons are founded are fouÌ„d to be falsely applied as now hath byn shewed Wherfore this hath not serued any whit to iustify his ClieÌ„t or himselfe but rather to confirme aggrauate the former Charges giuen against them both And it is to be considered that if in these fiue Cases chosen out by M. Morton out of fiue fifty cyted by M. Attorney against the Popes authority before King HeÌ„ry the 8. his Reigne so many false tricks are found what would the number be if we should discusse all the rest with like suruey Surely if M. Attorney might be presumed to haue dealt no more sincerely in the rest of his Reportes wherof six seuerall parts are now published then he hath done in these concerning Râ—ligiâ— they might be called reportable reports indeed in respect of the infinite vntruths reported by them few Lawyeâ—s I think would be at the cost to buy them But I will not suspect this for that in those other there is no interest as I suppose to wrest them to partiality as there was in this both in regard of hiâ—â—erswasion in religion fauour with the Prâ—ce But now let vs paâ—se to peruse and saie somewhat of his late new preface which subministreth some new matter to be handled in this place THE EIGHT CHAPTER WHICH BY OCCASION OF TWO NEW PREFACES lately set forth by the sayd SYR EDWARD COOKE doth handle diuers Controuersies as well about a Nihil dicit obiected by him to his Aduersary AS also about the Antiquity Excellency of the Municipall Common lawes of England and some other points THE PREFACE AFTER I was well entred into this worke for answering M. Morton his Preamble I came to the sight of a new Preface set forth by Syr Edward Cooke before the sixt Part of his Reportes lately published for that the name and argument of Preamble and Preface came so ioyntly togeather from two different Authors and that the â—inall purpose of the one and the other tâ—erin for so much as concerneth our subiect of Religion and iustifying themselues about that which they had written therof to the slaunder iniury of Catholick profesâ—ioÌ„ semed to me to be one the very same which was to subtract their shoulders from the weight of the matter in answering the whole that was writtâ—n against them and by a new â—leight and deuise oâ— Preâ—aces and Preambles and promising further â—reatise to diuert the Readers attention from the principall busines and to intertayne him with other fancies and generall tearmes as though they had answered somewhat indeed For this I thought yt not amisse to ioyne them also togeather in this my Reply and as I had answered the one largely and particulerly so to say somwhat also to the other especially for so much as notwithstanding this Preface came forth long after that the Author therof Syr Edward had seene my former Charge layd against him in the last Chapter of my Treatise of MitigatioÌ„ yet heere doth he not only not answere any thing therunto but neyther so much as mentioneth the same as before hath beene said only in this place he hath a certaine snatch at the Deuines answere against his Reportes and I call it a snatch for that it conteineth scarce one page against the others whole Booke of aboue 400. and yet doth he so confidently condemne his aduersary both of ignorance and boldnes as if he had confuted him indeed by a large conuincement wherin yow shall heare his owne wordes 2. VVhen I looked into the booke sayth he euer expecting some answere to the matter in the end I â—ound the Author vtterly ignorant but exceeding bold as commonly those qualities concurre in the lawes of the Realme the only subiect of the matter in hand but could not fynd in all the booke any authority out of the bookes of the common lawes of the Realme Acts of Parlament or any legall or iudiciall records quoted or cited by him for the maintenance of any of his opinions or conceipts wherupon as in iustice I ought I had iudgment giuen â—or me vpon a Nihil dicit and therâ—ore cannot make any replication â—hus farre Syr Edward wherin as yow see he answered all that large worke of the Deuine in few words coÌ„demning him of ignorance boldnes and of saying nothing at all in so large a Discourse but as for the former two points of ignorance and boldnes and whether he cyted no one authority at all out of any law-books shall be afterward discussed more particulerly now only in this Paragraph shall we consider how true this last assertion is that the Deuine said nothing at all and that therupon Syr Edward had iudgment giuen for him vpon a Nihiâ— dicit WHETHER the Catholicke Deuine might be iustly condemned of a Nihil dicit or no §. I. FIRST then for trying of this pointâ— I would demaund what Iudge gaue this iudgement â—ithâ—r Syr Edward himselfe for he is now a Iudge or an other and vpon what due information If himselfe did giue sentence for himselfe it may easily be excepted against as suspected of partiality for that no man I thinke can be both iudge and party euen by Syr Edwards lawes for according to those of Saint Edward I am sure he could not in his owne cause But if another Iudge gaue the sentence let vs know who it was and vpon what proofes groundes for that such sentences I suppose are not yet brought to be arbitrary in England nor permitted to euery Iudges will and liking without any proofes or groundes at all which being supposed I
appertayne to the temporall good and prosperity therof 11. Next after the declaratioÌ„ of these three pointes to wit of the origens ends obiects of these two powers spirituall and â—eÌ„porall the sayd Catholicke Deuine deduceth out of the same the differeÌ„t dignity excellency eminency of the one the other power the one being called Deuine the other Humane for that the ends and obiects of the one are immediatly concerning the soule as now we haue declared and the other concerning humane affaires immediatly though mediatly in a Christian Common wealth referred also to God And this diâ—ference of these two powers he declareth by the similitude likenesse of flesh and spirit out of S. Gregory Nazianzen who in a certaine narration of his doth most excellently expresse the same by the comparison of spirit and flesh soule and sense which thing saith he may be considered as two distinct Common wealthes separated the one from the other or conioyned togeather in one Common wealth only An example of the former wherin they are separated may be in beasts and Angels the one hauing their common wealth of sense only without soule or spirit and the other CoÌ„mon wealth of Angels being of spirit only without flesh or body but in man are conioyned both the one the other And euen so sayth he in the Common wealth of Gentils was the Ciuill and Poliâ—icall Earthly and Humane power giuen by God to gouerne worldly and humane things but not spirituall for the soule wheras coÌ„trarywise in the primitiue Chriâ—tian Church for almost three hundred yeares togeather none or few Kings Princes or Potentates being conuerted the Common wealth of Christians was gouerned only or principally by spirituall authority vnder the Apostles and Bishops that succeeded them 12. Out of which consideration confirmed and strengthened by sundry places of holy scripture ancient Fathers alleaged by him he sheweth the great eminency of spirituall Authority aboue temporall being considered seuerally in themselues though they may stand ioyntly and both togeather in a Christian Common wealth where the temporall Princes be ChristiaÌ„s though with this necessary subordination that in spirituall and Ecclesiasticall affaires belonging to the soule the spirituall gouernours be chiefly to be respected as in Ciuill affaires the temporall magistrate is to be obeyed and this he sheweth by diuers examples and occasions out of S. Ambrose S. Chrysostome S. Gregory Nazianzen and other Bishops and Prelats that in Ecclesiasticall affayres prefered themselues and their authorities before that of Christian Emperours with whome they lyued expresly affirming that in those respects they were their Superiours Pastours the said Emperours their sheep subiects though in temporall affaires they acknowledged them to be their Superiours 13. All this is set downe by the Catholicke Deuine with great variety of proofes many examples facts and speaches of ancient Fathers And will Syr Edward Cooke say that this was froÌ„ the purpose a Nihil dicit doth not this quite ouerthrow his assertioÌ„ that all teÌ„porall Kings by vertue power of their temporall Crownes haue supreme authority also in spiritual affaires If the forsaid three Fathers to pretermit all others S. Gregory Nazianzen S. Chrysostome and S. Ambrose that had to do with Christian Emperours which had teÌ„porall authority ouer all or the most part of the Christian world did yet notwithstanding affirme vnto their faces that they had no authority at all in spirituall matters belonging to soules but were and ought to be subiect to thâ—m their Pastours in that Ecclesiasticall gouerment how much lesse could a woman-Prince haue the same by right of her temporall Crowne as most absurdly M. Attorney auerreth Which absurdity the Catholicke Deuine doth conuince so largely by all sortes of proofes both diuine and humane as well vnder the law oâ— Nature as Mosayâ—all and Christian that a person of the feminine sâ—xe is not capable of supreme Spirituall iurisdiction ouer man as nothing seemeth can be answered theruÌ„to And was this also â—rom the purpose to proue that Queene Elizabeth could not haue it What will Syr Edward answere here for his Nihil dicit 14. After all this and much more alleaged by the Catholicke Deuine which I pretermit for breuities sake he commeth to reduce the whole controuersie betweene M. Attorney and him vnto two generall heads of proofe the one de Iure the other de facto that is of right and fact shewing that in the first of these two proofes de Iure which is the principall M. Attorney did not so much as attempt to say any thing â—or proofe that by right Queene Elizabeth or any of her Ancestours had supreme iurisdiction in causes Ecclesiasticall but only that de â—acto some of them had sometymes taken and exercised such an authority Which if it were without right was as yow know nothing at all and therfore the sayd Deuine hauing proued more at large that by no right of any law whatsoeuer diuine or humane Queene Elizabeth or her predecessours had or could haue supreame authority Spirituall he coÌ„meth to ioyne with M. Attorney also in the second prouing that neyther in fact any such thing was euer pretended or practised by any of her Predecessours before the tyme of her Father K. Henry the viij either before or after the Conquest 15. And as for before the Conquest there haue beene more then an hundred Kings of different Kingdomes within the land he proueth by ten large demonstrations that none of them did euer take vpon him such supreme spirituall authority but acknowledged it expresly to be in the Bishop of Rome of which demoÌ„strations the first is of lawes made by them generally in fauour and confirmation of the liberties of the English Church according to the directions and Canons deriued â—rom the authority of the Sea Apostolicke The second that Ecclesiasticall lawes in England made before the Conquest were made by Bishops and Prelats who had their Authority from Rome and not by temporall Kinges The third that all determination of weighty Ecclesiasticall affayres were referred not only by the Christian people generally of that Realme as occasions fell out but by our Kings also in those dayes vnto Rome and the Sea Apostolicke The â—ourth that the Confirmations of all Priuiledges Franchises of Churches Monasteries Hospitals and the like were in those dayes demaunded and obteyned from the Pope The fifth that in all Ecclesiasticall controuersies suites and grieuances there were made Appeales and complaints to the Sea of Rome for remedy The sixth the succession of Bishops Archbishops in England during that time all acknowledging the supremacy of the Pope were notwithstanding in high fauour and reuerence with the English Kings with whom they lyued wherof is inâ—erred that these Kings also must needs be of the same iudgment and beliefe and consequently make lawes conforme to that their fayth and beliefe as contrariwise since the schisme began by K. Henry the 8.
belongeth as appeareth euidently by Cirendon and the Bishop of Lincolnes case in Plowdens Commentaries fol. 498. where it is said that because all aduowsons and lands within the realme are held eyther immediatly or mediatly of the King the land where the Church is situate before the Church was builded was held of the king so in respect of the tenure of the king the presentment by lapse accrueth vnto him as supreme Patron and not in respect of the supreme iurisdiction Ecclesiasticall which the Statute of 25. H. 8. did first of all ascribe vnto his temporall Crowne 90. Vnder the same king 17. E. 3.23 he citeth another law-booke thus The king may not only exempt any Ecclesiasticall person from the iurisdiction of the Ordinary but may graunt vnto him Episcopall iurisdiction as thus it appeareth there the king had done in ancient tyme to the Archdeacon of Richmond So he But if you read the booke it self here cited of 17. E. 3 23. you shall fynd that no such assertion can be founded there For thus the case standeth in that booke Stouff a Sergeant at law sayd that the Archdeacon of Richmond had the office of the Ordinary and I thinke quoth he by lâ—aue of the king This is all the case there related where you see that Sergeant Sâ—ouâ—â— affirmeth not that he knew it to be so but did thinke so that the said Aâ—chdeacon of Ricâ—mond had the office of tâ—e Ordinary by leaue of the king and much lesse did he auouch as Syr Edward doth for him that the king gaue or graunted vnto him that â—piscopall iurisdiction which is not warranted but rather ouerthrowne by that booke as you see for that the Archdeacon might haue his Episcopall Authority if he had any by grâ—unt from the Pope and licence only of the king and so this aâ—â—â—ueraâ—ion â—tanding but vpon a collection of M. Attorney falleth to the ground 91. It â—olloweth in M. Attorney his Reports vnder the same K. Ed. 3. All religious or Ecclesiasticall houses saiâ—h he wherof the king was founder are by the king exempt frâ— ordinary Iurisdiction only visitable corrigible by the K. Ecclesiasticâ—ll commission and for this he citeth tâ—ese books 20. E. 3. ExcoÌ„ 9.16 E. 3. titâ— Brâ— 660.21 E. 3.60.6 H. 7.14 Fitz. Nat. Breuâ— But in none of these bookes shall you find these words that thâ—y are only visitable or corrigible by the K. Ecclesiasticall commissioÌ„ This is Syr Edwards owne inuention The books quoted do speake of hospitals and free Chappels of the Kings foundation which are not visited by the Ordinary for that they are things temporall and without cure of soules and therfore not spirituall or Ecclesiasticall nor to be visited in those dayes according to the common-law by the Bishop but by the kings Chancellour as a temporall officer as testifyeth Fitzherb in his Nat. Br. â—ol 42. A. though afterward in K. H. 5. tyme for remedying of discoâ—ders it was decreed in the 2. yeare of his raigne that the visitation and correction of such Hospitals and free Chaphels of the Kings foundation or of his subiects should be done by the Ordinaries according to the Ecclesiasticll laws 2. H. 5. cap. 1. in Rastals Abridgment tit Hospitals So as heere the principall wordes of controuersie to wiâ— by the kings Ecclesiasticall â—ommission are feigned and put in by M. Attorney and this is his ordinary art to seeme to haue somewhat in fauour of his purpose when it is nothing at all but agaiâ—st him 92. It followeth in Syr Edw. instances â—ol 15. The king shall present in his free Chappels in default of the Deane by lapse in â—â—spect of his supreme Ecclesiastiâ—all iurisdiction citing for iâ— 27. Ed. 3. fol. 84. But heere againe I find a â—oule fitten for his booke hath not these words in respect of the kings supreme Ecclesiasticall Iurisdiction which is heere made the principall verbe of this part of speach and often thrust in by M. Attorney of his owne inuentioÌ„ but the meaning of his booke is as he cannot but know that the king in such cases shall present not in respect of supreme Ecclesiasticall iurisdiction but as supreme Patron temporall for that aduowsons or patronage of such benefices are meere temporall inheritances according to our coÌ„mon-lawes as ofteÌ„ hath beene declared and therfore the King being founder may by lapse present 93. An other like fitten or rather more foule is coÌ„mitted by him in the same place alleaging out of 22. Edward 3. lib. Assis. pl. 75. that tythes arising in places out of any parish the king shall haue them â—or that he hauing the supreme Ecclesiasticall iurisdiction he is bound to prouide a sufficient Pastour that shall haue the cure of soules of that place which is not within any parish And by the common lawes of Englâ—nd saith he it is euident that no man vnlesse he be Ecclesiasticall or haue Ecclesiasticall iurisdiction can haue inheritance of tythes Thus much M. Attorney to proue that K. Ed. 3. had supreme Ecclesiasticall iurisdiction not the Pope in his dayes But heere be so many scapes fraudes and errours as is a shame to see For first in his booke quoted there is not fouÌ„d those words that principally import the controuersie that he as hauing supreme Ecclesasticall iurisdictionâ— is bound to prouide a sufficieÌ„t Pastour but all this is thrust in by M. Attorney to make vp his market Secondly much lesse is this yeelded for a reason by his booke why the king should haue such tythes as lay out of all parishes but another reason more substantiall is to be alleaged of being temporall Lord of the Lands which presently we shall touch 94. Thirdly it is not true that the king as hauing supreme Ecclesiasticall iurisdiction is bound to prouide a sufficieÌ„t Pastour to haue cure of soules of that place which is not within any parish both for that it may appertaine to a particuler subiect to dispose of those tythes if he be temporall Lord of the place without hauing supreame Ecclesiasticall iurisdiction and the emolument may be so small or the place it selfe so vast and remote as eyther there be few soules to haue cure of or the maintenance not sufficient for a Pastour Fourthly it is false that by the common-laws of England no man vnlesse he be Ecclesiasticall or haue Ecclesiasticall iurisdiction can haue the disposing of tythes for that euery man before the diuision of particuler parishes was made though he was bound by diuine and canonicall-Canonicall-law to pay his tythes of his lands yet might he according to the coÌ„mon-lawes of England haue assigned them to what Parish he would Now let vs see the case it selfe as it is proposed in 22. Ed. 3. lib. Asâ— pl. 75. 95. The king granted certayne tythes vnto the Prouost of C. out of certayne lands newly asserted in the forest of RockingaÌ„ and the said Prouost therupon brought a writ of Scire facias
setting downe the same wherin if he had gone about to recall or mislike any part therof as ouer iniurious to Catholicks we should haue accepted therof most gratefully and adioyned with him in the iust reprehension of Pricket as hauing related that speach more maliciously then it was meant against vs but I can discouer no such meaning or moderation in Syr Edward by that he hath written since that time or spoken againe in that place whereof I haue heard by some that were present that he hath borne himselfe no lesse insolently then in the former speach especially bringing in tales against Monks to get applause therby of the vulgar people against that order of Religious men in the Catholike Church whereof you haue heard one example before of the Prior that was feigned to haue gotten by fraud a Gentlemans land in helping him to make his Testament another was of an Abbot that made an inclosure and tooke in a high way within his inclosure and for that there was a rough and rude Country-man that brake downe his inclosure saying that he would passe where his father and grandfather had passed the Abbot being a lustie tall fat and strong knaue sayth Syr Edward desiring to fight hand to hand with this clowne or country-man when he was to repasse that way tooke on a seruing mans apparrel if you will belieue the story went to the place watched his returne ioyned with him in combat and was well beaten by him And then did Syr Edward both laugh hartily and giue God thankes that he had found out such a History to tell them in that place and further he sayd that he was hartily glad that it fell vpon an Abbot And was not this graue matter thinke you for a Iudge to treate in that place and auditory VVhat would the Roman Senate haue thought of their yong Roman Iudge whose imitation it seemeth that Syr Edward in the beginning of his Speach had prefixed vnto himselfe if they had vnderstood that from the Bench and Seate of Iustice euen pro rostris he had vsed such leuity of speach and action as this is 120. But heere now it may be that my L. will be some-what displeased to haue his things published abroad which he did but speake for his priuate pleasure mirth and triumph in his Countrie of Norwich But the fault is his owne in speaking it so lowdely and not obseruing the counsaile of his Honourable friend who hearing him one day oâ—erlash very much as heere is reported against Catholikes said merily but wisely vnto him speake softer my Lord for that otherwise you will be ouerheard beyond the seas But for remedy of this also it seemeth that his Lordship hath thought now vpon a more effectuall way to be free from these admonishments from beyond the seas For in this new last Preface of his after a great reprehension of those that write in these our times saying Quotidie plures quotidie peius sâ—ribunt that euery day more do write and do write worse wherin I doubt not but his owne writings are excepted by his Lordship being also a moderne writer himselfe he coÌ„meth to pronounce this terrible sentence vpon all Catholicke bookes and writings that come from abroad Si quisquam hominum c. Yf any man shall bring into England any of those Bookes which I haue seene lately written from Rome or Romanists or shall by reading seeme to patronize them with his suffrage or with approuing them shall deliuer them to others to be read he must oâ— necessitie â—or the first fault be condeÌ„ned in a Premunire with losse of goods and lands and to be imprisoned during life at the Princes pleasure and for the second he must suffer death as in case of treason This is his denunciation and determination which he prooueth not otherwise in this Preface but only by his owne asseueration It may be that he will go about to prooue it afterward out of some lawes that he is to relate in this his seauenth Part of Reportes and that he will do it as substantially as he prooueth before in his fifth part that Q Elizabeth and her predecessours according to the ancient common-lawes of England had supreme Ecclesiasticall authority Yf he doe somewhat may chance to be sayd to the booke wheÌ„ it shall be seene for hitherto I haue had no view therof at all only I must needs say heere that in wise and indifferent mens iudgmeÌ„t Syr Edward being a writer himselfe against Catholickes and hauing therby prouoked them to answere him as before you haue heard how ioyfull he was when any obiections were made by the Student against his writings and the more saith he the better he hath not prouided well for his credit and honour to go about now to barre all writing on our side by terrour of penalties yea of death it self For this is plainly to prouoke to the field and then to get a proclamation that if his enemy do ouercome him his victory shal be death 121. But I cannot perswade my self that Syr Edward will easily get any such vniust and dishonorable refuge for his defence For either he must procure it to be decreed of new by some moderne law which being so vnreasonable I cannot expect from the wisedoms of so many graue men that must haue voycâ— therin or he will deduce it out of some ancient lawes of England and therin I dare ioyne with him that he is not able to do it 122. VVherefore my counsayle should rather be to Syr Edvvard that either he would cease to prouoke vs by writing or intemperate speaking against Catholickes or take in good part our temperate answers or cause them with like temperance to be confuted by himself or by some on his part or so finally change his course towards vs as we may haue no speciall cause to complayne of him more then of others which were a farre better way in my opinioÌ„ to peace and profit of both parts then by terrour of punishments to seeke to oppresse all Catholicke writings which will be very hard for him to do And when it should succeed he were like to gaine least of all therby For that most probable it is that in such a case they would all turne their pennes against himself insteed of other argument by his meanes prohibited 123. And this is as much as I haue to say about this last Preface which commeth intituled thus Deo Patriae Tibi signifying therby as I comprehend the matter that this seauenth Part of his Reports now come forth is dedicated as seruiceable to all those three to God our Country and the Reader which if it be no otherwise written then the fifth Part that I haue read it may very well be returned againe by the Reader saying Nâ—c Deo nec Patriae nec Mihi It is neyther profitable nor seruiciable to Gods honour nor to our Countrey nor to Me. Not to God for that it impugneth his
only true and Catholike Religion and that by false and indirect meanes whereof God is an enemie Not to our Country for that these Reports of law being contrary to all auncient lawes and written with a contrary spirit to all our ancient lawiers Iudges law-makers before this our present age can profit nothing our Country but set greater breaches and diuisions therein To Me also that am the Reader or Student it can neither profit nor import any thing but losse of time and breaking my head with conâ—radictions For so much as all this must once againe be cast of and forgotten as nouelties when our old course of Commonlaw must returne to follow her ancient streame againe 124. Wherfore a much more honourable and profitable course had it bene for so great a witt learned a man in our lawes as my L. is said held to be that to the end his labours in writing might haue remayned gratefull and commodious to posterity he had conformed himselfe his spirit knowledge and penne to that of ancient precedent lawyers of our land as Plowden did and some others whose wrytings for that cause wil be immortall But Syr Edward taking to himselfe a contrary new course by wrenching and wresting lawes to a contrary meaning froÌ„ the common sense both of the lawes themselues law-makers as also of the times wherin they were made and torrent of authority that gouerned the the same his labours must needs in the end proue to bâ— both vnprofitable and contemptible 125. For I would demand him what sound common lawier will ioyne with him in this point which he so reâ—olutly auerreth in his last Preface that all bookes coÌ„ming à Roma vel à Romanistis from Rome or Romanists that is from any sort of Catholicks haue punishment according to our ancieÌ„t lawes for of those I suppose he speaketh of losse of goods liberty and life Will any man belieue him that this is conforme to any ancient law of England Doth he not know as I doubt not but he doth much better then I the old ancient honour that was wont to be borne to Rome and Romanists by our English Common lawes Can he deny but that the Bishop of Rome is tearmed Apostolus and Apostolicus almost euâ—ry where in the same ancient lawes yea Prince of the Church and that our Archbishop of Canterbury the greatest Peere and Prelate of England is called in our law Apostoli Legatus Legate of the Apostle and Roman Bishop And that his spirituall Court is but a member of the Court of Rome which Court in England is called Curia Christianitatis the Court Christian or Court of Christianity throughout our Common law-bookes as I might shew by multiplicity of authorities if it were not a matter so notoriously knowne as no meanest lawier will or can denie it And is it likely then that according to those lawes it may be prooued that it is Praemunire and treason to bring in a Booke from Rome or Romanists to read it to praise it or to lend it to another as heere our new Iustice doth tell men with terrour against iustice especially when he addeth Hi sunt illi libri qui splendidos c. These are those bookes which doe carry goodly and religious titles which do professe to help and comfort the infirme consciences of men that are in trouble These are they that take vpon them to bring miserable and sinfull soules vnto the desired port of tranquillity and saluation By which words it seemeth that Syr Edward hath a chiâ—â—e mislike of spirituall Catholick bookes which treat the argument of quieting of soules Which if it be so then I hope that our bookes of Controuersies may passe with some lesse danger though indeed I doe suspect that he meaneth these when he speaketh of the other for that they doe most coÌ„cerne him For what doe spirituall bookes trouble Syr Edward which I suppose that either he neuer readeth or litle esteemeth the argument they handle his cogitations being imployed about farre other obiects of this world for the present Albeit I doe not doubt but if in some other circumstance of time state and condition of things he should read them or they should be read vnto him as namely on his death-bed when flesh and bloud and worldly preferments doe draw to an end and himselfe neare to the accompting day they would make other impression in him Which being so true wisdome would that what we must doe in time perforce and perhaps to late or with out profit we should out of good will and free choice preuent by Christian industrie Which almighty God graunt vs his holy grace to doe And this is all the hurt I wish to Syr Edward for all his asperity against vs. 126. Now let vs returne to M. Morton againe whome we haue left for a long time to giue place to this piece of Reckoning with Syr Edward It followeth then in consequence after the precedeÌ„t Chapter of his omissions and concealments in diuers and different charges layd against him for vntruthes wherwith he was charged in the Treatise of Mitigation that we see what new vntruthes he hath super-added in his defence therof for increasing the burden THE NINTH CHAPTER WHICH LAYETH TOGEATHER ANOTHER CHOICE NVMBER of new lyes made wilfully BY Mr. MORTON ouer and aboue the old in this his Preamble whilst he pretendeth to defend or excuse the sayd old being aboue fifty in number WE haue made a large intermissioÌ„ as you see of M. MortoÌ„s affayres by interlacing some of Syr Edwards now must we returne to our principal scope which is to shew more new and fresh vntruthes of later date in this last Reply of M. Morton And albeit those that are to be touched in this Chapter haue beene for the most part handled discussed before yet to the end that they may more effectually be represented to the eye and memory of the Reader by putting the principall of them togeather in ranke vnder one muâ—â—er I haue thought it expedient to take this paynes also wherby may appeare how ruinous and miserable a cause M. Morton hath in hand that cannot be defended but by addition of so many new lyes vnto his old and euen then when he standeth vpon his triall for the sayd old and seâ—keth by all meanes possible to hide and couer the same in such manner as before yow haue heardâ— And no maruaile for that both truth reason and experience do teach vs that an old lye can neuer be well cloathed or couered but by a new Let vs passe then to the suruey of this Chapter noting by the way that we are rather to touch certayne heades or principall branches that conteine commonly sundry and seuerall lyes vnder them then simple single vntruthes if they be well examined nor is it our purpose to name all for that would imply too large a prolixity for this place especially for so much as I am to remit the Readâ—r commonly to
of excommunication throughout the world vpon iust causes is a principall member so as except they would introduce a law contrary to their owne beliefe or suffer a law to grow and be made coÌ„mon in their Realme without their knowledge or assent it is absurd to imagine that there could be such a Common law against the Popes ExcoÌ„munications before the dayes of King Edward the first and before any Statute was made against the same as M. Attorney auoucheth 78. Secondly he sheweth out of the testimony of Matth. VVestmonast that this King Edward being in a great heat of offence against the Cleargy of England for that they denied to giue him the halfe of their Rents and goods towards his warres vpon the expresse prohibition of Pope Bonifacius to the contrary which prohibition some Cleargie men vpon feare transgressing had compounded made their peace with the King in that behalfe he doubting least some of the other part of the Cleargy would bring in an ExcoÌ„municatioÌ„ against him or against some of those that had compounded with him made a Decree saith VVestmonaster commanding vnder payne of imprisonment that no man should publish any sentence of Excommunication against the King himselfe or those that had newly sought his protection he making also a prouocation or appeale as well for himselfe as those that stood on his side to the Court of Rome Thus he And now let the prudent Reader consider saith the Deuine that if the King euen in his passion of choler did appoint but imprisonment to be the punishment for bringing in an Excommunication against himselfe and Cleargy men that stood with him how vnlike is it that by the common law it was treason against the King his Realme Crowne and dignity as M. Attorneys thundring words are to bring in an excommunication against a Subiect which is much lesse then against the Kings person himselfe 79. Thirdly the said Deuine though he had not perused the law bookes at that time yet did he yeld the true Cause why priuate men might not bring in excoÌ„munications and publish them at their pleasure as now also is prohibited in other before named Catholicke Kingdomes but they were to be shewed first to a Bishop vnder his Seale were to be certified vnto the Kings Courts which since that time I haue fouÌ„d to be set down expresly in the law-bookes themselues and craftily concealed by M. Attorney for thus is it found written 11. Henr. 4â— fol 64. Hancford the chieâ—e Iustice said that he found in his bookes that in the time of VVill. â—erle who was Iudge in the beginning of the raigne of K. Edward the third euery officer or coÌ„missary of the Bishop might certify excoÌ„municatioÌ„ in the K. Court and for the mischeefe that ensued therof it was aduised by the ParlameÌ„t that none ought to certify excoÌ„munication but only the Bishop soe it is vsed at this day Thus far are Hanckefords words wherby we may see why the partie that published a Bull to the Treasurer of England without the Bishops approbatioÌ„ incurred so high displeasure 80. Fourthly the said Deuine doth conuince M. Attorney out of a Case alleaged by himself afterward in the 31. yeare of the Raigne of King Edward the third where he saith that in an attachment vpon a prohibition the defendant pleading the Popes Bull of excommunication of the Plainâ—iâ—e the Iudges demanded of â—he defendant if he had not the Certificate of some Bishop within the Realme testifying this excommunication c. VVhereby saith he it is made euident first that priuate men were obliged to shew their Bulles vnto some Bishop before they published the same and secondly it appeareth most clearly by the answers of the Iudges that they held it not for treasoÌ„ in those daies nor made any such infereÌ„ce therof for that their only resolution was this that for lacke of this Certificate the partie excoÌ„municated was not thereby disinabled to follow his plea in that Court without saying any one word of danger or punishment against him that had pleaded the Popes Bull of excommunication which they would neuer haue omytted to do if 50 yeares before that vnder K. Edward the first it had bin held for treason by the CoÌ„mon-law to bring in or publish any Excommunication against a Subiect 81. This then was the substance of the Deuines answere at that tyme which though it doth sufficiently conuince M. Attorney to haue abused his Reader egregiously in auouching with such resolution that in K. Edward the first his tyme yt was by the ancient law of England adiudged treason against the king his Crowne and dignytie to publish any Bull of the Popes against any Subiect of the Realme yet hauing synce that tyme had better commodity to informe my self of the lawbooks here meÌ„tioned I wil adde some more proofes to those which now you haue heard 82. First then I must let the Reader vnderstand that neither of those two bookes cited by M. Attorney lib. Ass. pl. 19.30 Ed. 3. and Brooke tit Premunire pl. 10. neither of them I say doth affirme that it was Treason or that there was any iudgment of Treason giuen in that Case which Case is related by Iustice Thorpe 30. Edwardi 3. thus That wheras Syr Thomas Seaton sued a Bill in the Exchequer against a woman named Lucie for calling him Traytor fellon and robber in the presence of the Treasurer and Barâ—ns of the Exchequer in contâ—mpt of the King and slaunder of the Court. Hereupon the said Lucy shewed forth the Popes Bull prouing the plaintiâ—e to be excommunicate and therfore demanded Iudgement whether he should be answered or not And for that she did not shew any writ of excommunication nor any other thing sealed by the Archbishop c. the Bull was not allowed whervpon she was forced to answere and â—leaded not guilty And in that plea Thorpe Iustice said that in the tyme of the Grandfather of the King which was K. Edward the first â—or that one did notify an excommunication of the Apostle to the Treasurer of the King the King would he should haue byn drawne and hanged notwithstaÌ„ding that the Chanceloâ—r and Treasurer did kneele before the King â—or him yet by award he did abiure the Realme and said that the woman was in a hard Case â—or shewing forth this excommunicatioÌ„ if the king would Thus far the said Book 83. VVherein we see first that here is no answere made about treason as M. Morton affirmeth nor iudgment giuen as M. Attorney auoucheth nor any such inference made by the Iudges but only a case related of what K. Edward the first in his anger would haue had to be done to a man that presented an excommunication to the Treasurer to wit he would haue had him hanged and drawne about the same which seming to his Iudges not to be iust or according to law did intreat the King not to put it in execution but rather by way of
award they made him abiure the Land though this also was not due vnto him by rigour of law to pacify thereby the Kings wrath And it is not vnlike to that Case that fell out in England Anno Domini 1578. vnder Q. Elizabeth when in her anger she would haue had Peter Bourchet to haue byn put to death by Martiall law when he had wounded Syr Iohn Hawkins insteed of Syr Christopher HattoÌ„ but the Iudges would not yeald therunto as being against law therefore found out this temperament that he should be committed to the Tower and accused of matters of Religion as Puritanisme and the like Where afterwards he gaue them a iust cause of putting him to death by killing his keeper But as the Queenes will passion made this no law so neither did that other vnder K. Edward the first So as M. Attorney did much abuse his Reader in auerring it to be treason by the common law adiudged for such out of this Case 84. And if he will vrge that the punishment of haÌ„ging and drawing implieth treason it is answered no but that this rather maketh much for vs. For that the punishment of treason I meane high treason is not only hanging and drawing but quartâ—ring also excepting only the Case of counterfeyting of money Stat. de 25. Edâ— 3. de proditionibus as appeareth by Stanford in his Booke of the Pleas of the Crowne fol. 182. but petty treasons as of killing the maister or Mystresse by the seruant or of any Prelate by his subiect c. which in effect are but fellonies are punished by hanging drawiâ—g oâ—ly wheâ—eof is consequent that albeit K. Edwards will and commandment had byn according â—o law as â—t was not yet had it inâ—erred no treason at all 85. And further to satisfy this matter and make it more cleere that the Reader was abused in this assertion I will adde foure seuerall Reasons argumeÌ„ts more out of the law-books themselues The first is concerning the abiuring the Realme for pacifying the King awarded in iuâ—tice Thoâ—ps Case which proueth euidently that it was not an offence of treason in the delinquent for that abiuraâ—ce is no punishment for treason but only for fellony as appeareth by the said Iustice Standâ—ord in his said Booke fol. 116. where he setteth downe the beginning of abiurance how it was first ordeyned by S. Edwaâ—d before the Conquâ—st and was grounded vpon mercy when a maÌ„ had committed fellonie and fled to a Church or Churchyard for safety of his life and did choose rather perpetuall banishment then to stand to the law So as abiurance by the old lawes of England was at tâ—e election of the Offendours and not at â—he will of the Prince And afterward the said Stanford shewing for what offences in particuler a mâ—n might abiure the Realme saith that abiuration doth not lye â—or hâ—m that hath offended in high treason 86. The second Reason is that the said Stanford in his said booke of the Pleas of the Crowne fol. 182. inteÌ„ding to set down all offencâ—s of treason which were either by the Common-law or Statute-law doth not relaâ—e any such matter to be treason as the bringing into the Realme Bulles of excommunication by one Subiect against an other which he would neuer haue concealed if he had found it held for such in any law booke before him 87. The third Reason is to the same effect that the Statute of 25. Ed. 3. being made for declaration of treasons doth â—et downe what offences were treasons by the Common law In this Statute I say no mention at all is made that the bringing in of Bulls of excommunication was treason or any other offence which of likelyhood cannot be presumed that they would haue pretermitted to touch or mention if any such thing had bin 88. The fourth Reason and most concludent is that we read in many Bookes of law as 31. Ed. 3. â—xcommunicat 6. Fitzh tit Excom pl. 6.14 â—en 4. â—ol 14.8 Hen. 6. fol. 3 and ells where that diuers Excommunications were pleaded in the Kings Courts and no matter of treasoÌ„ or other offence made therof by the Iudges which no doubt they would neuer haue passed ouer so negligently carelesely if it had bin treason by the common-law Neither would any Counsel haue presumed to plead the same so often in the said Courts if there had byn such perill or offence therein at that tyme as M. Attorney now pretendeth Neither doth the authority of Brooke here cyted by M. Attorney patronize him in his voluntary mistaking misconstruyng of the law-books a foresaid For that Brooke doth not say that the bringing in of Bulls was iudged treason by law as M. Attorney doth but onâ—y maketh this note So see punishment of that before the Statute of Premunire which maketh nothing for M. Attorn purpose and if it did yet were it not to be equalled with so many graue authorities euideÌ„t coÌ„uincing reasons as before we haue alleaged to the contrary 89. Wherfore we must conclude that in this first Case M. Attorney hath sundry wayes dealt vnsincerly and gone about to deceiue his Reader making him belieue that the bringing in pleading of the Popes Bulles in ancient time was treason according to the Common-lawes which being now proued to be false yet doth he so often repeate the same vpon all occasions against Catholikes both in wryting speaking pleading and vbrayding as if it were a most certaine truth or principle and not to be controlled Let vs see somewhat of the other Cases TO THE OTHER FOVRE CASES obiected by M. Morton out of Syr Edward Cooke §. VI. IT were ouer long to answere so largely vnto all the other Cases as we haue done to this first especially for so much as the Deuine hath done it very sufficiently and fully before the second Case conteyning only a temporall matter about Advowsons and authority thereby to present Clearks to benefices which was an ancient custome of the Church of England where teÌ„porall men hauing founded Churches and benefices reserued to themselues the nominatioÌ„ and presentation of the persons that should enioy the same who if they were found fit and nothing to be proued against theÌ„ that might iustly be opposed for their exclusion then the Bishop of the diocesse was bound to admit them And if he did not the Aduowsoner might haue an Action against the said Bishop at the Commonlaw of Quare non admisit as in a temporall Case and if the Bishop could not excuse his not admitting of the Clerke of the Recouerer by some sufficient cause then the Plaintif should recouer domages against the Bishop or els he might haue vpon the not executing the first writ to the Bishop an Alias or a Pluries against him And if these were not serued or sufficient excuse made vpon the return thereof why they were not serued then the partie grieued might haue an Attachment against the Bishop
of theÌ„ but coÌ„meth in with an impertinent instance that there was a prohibition of Appeales made vnder King Henry the second by Act of Parliament in the tenth yeare of his Raigne whereas yet there was no Parliament in vse nor Statute law was begone vntill the 9. yeare of King Henry the third which was aboue 60. yeares after as appeareth both by the Collection of Iustice Rastall and other Law-bookes 76. I do not deny but that King Henry the second entring into passion against S. Thomas Archb. of Canterbury made a decree at a certayne meeting of the Nobility at Claringdon rather moderating as himselfe pretended then taking away Appeales to Rome not denying that they ought to be made in respect of the Popes supreme authority Ecclesiasticall but for restrayning of abuses in appealing thither without iust cause or necessity especially in temporall affaires he ordeyned that matters should first orderly be handled in England in the Bishops and Archbishops Courtes and if that way they could not be ended they should not be carried to Rome without the Kings assent which declaratioÌ„ of the kings intention is set downe by Roger Houeden out of the Epistle of Gilbert Bishop of London to Pope Alexander the third written by the kings own Commission which not being admitted afterward by the said Pope the king recalled the same with an Oath vnder his owne hand wherof the said Houeden writeth thus Iurauit etiam quòd neque Appellationes impediret neque impediri permitteret quin liberè fierent in Regno suo ad RomanuÌ„ Pontificem in Ecclesiasticis causis He swore also that he would neither let AppellatioÌ„s nor suffer them to be letted but that they might be made in his kingdom to the Bishop of Rome in causes Ecclesiasticall c. 77. All which things could not but be knowne to Syr Edward before he wrote this his Preface and that the Catholicke Deuine in his aÌ„swer to the fifth part of his Reports had produced so many euident arguments and probations that King Henry the 2. was most Catholick in this point in acknowledging the Popes supreme Ecclesiasticall authority notwithstanding the coÌ„tention he had with S. Thomas about the manner of proceding therin for the execution as none of his Ancestours were more which in like manner is euidently seene and confessed in effect by Syr Edward himself in that in his whole discourse of Reportes for improuing the said Popes Supremacy he alleageth not so much as one example or instaÌ„ce out of the raigne of this King which in reasoÌ„ he would not haue pretermitted if he could haue found any thing to the purpose therin 78. But yet now finding himselfe in straytes how to answere the Students demand about the aÌ„tiquitie of prohibiting Appeales to the Sea of Rome he was forced to lay hands on this poore example which was neither to his purpose in regard of the time being after the conquest as now you haue heard nor of the thing it selfe for that it was against him as being only a moderation of abuses yea and that in temporall things as Bishop Gilbert of London expresly aâ—oucheth recalled by the same King afterwardâ— and finally is wholy from the purpose chiefe question about the Popes supreame authority whereof this of Appeals is but one little member only And thus we see both how well and subâ—tantially Syr Edward hath mainteyned his assertion of the supereminent antiquity and excellency of his Municipall lawes and how direct and demonstratiue answers he hath made to the foure Questions or Cases deuised by himselfe for confirmation of the â—ame 79. And whereas he inserteth a note of Record of the decree of Claringdone that this recognition was made by the Bishops Abbots Priors c. of a certaine part of the Customes and liberties of the Predecessours of the king to wit oâ— King Henry the first his Grandfather and of other Kings which ought to be obserued in the kingdome wherby it semeth the Knight would haue vs imagine though he vtter it not that the same prohibition of Appeales might haue byn made and practized by other former Kings liuing before the Conquest it is found to be but a meere Cauill both by the Catholicke Deuine that shewed out of authenticall histories the coÌ„trary practise vnder all our Catholicke Kinges both before after the Conquest as here likewise it is conuinced by the words and confession of this King Hâ—Ì„ry the second himself that these pretended liberties of his Ancestours were brought in by himself only and in his tyme as is testifyed by Houeden in two seuerall Charters one of the Pope and the other of the King as also by an authenticall Record of the Vatican set downe by Baronius in his tweluth Tome So as here the Iudge hath nothing to lay hands on but to giue sentence against himself both of the Nimium and Nihil dicit as now yow haue seene And so much for this matter HOW THAT THE foresaid Nimium dicit as it importeth falsum dicit is notoriously incurred by Syr Edward Cooke in sundry other assertions also apperteyning to his owne faculty of the law which were pretermitted by the Catholike Deuine in his Answere to the 5. Part of Reportes §. V. FOR so much as the most part of this seauenth Chapter hath beene of omissions and pretermissions as you haue seene and these partly oâ— M. Morton in concealing such charges of vntruthes as had byn laid both against him as also against his Client Syr Edward partly of Syr Ed. himself in not answering for himself when he ought to haue done I thought it not amisse in this place to adioyne some other omissions in like manner on the behalfe of the Catholike Deuine who passed ouer in silence sundry notable escapes of his aduersary M. Attorney which he coÌ„mitted in cyting law-books and lawyers authorities against the Popes ancient iurisdictioÌ„ in spirituall cases in England and this partly for that he had not as then all the Bookes by him which were quoted and partly vpon a generall presumption that in this poynt M Atâ—orney would be exact for that he had so solemnly protested the same in his booke of Reportes as before hath byn touched to wit that he had cyâ—ed truly the verâ— words and textes of the lawes resolutions iudgments Acts of Parlament all publike and in print without any inference argumeÌ„t or amplification quoting particulerly the bookes yeares leaues chapters and other such like certaine references as euery man at his pleasure may see and read them 81. This is his protestation who would not belieue a man especially such a man and in such a matter at his word or rather vpon so many words so earnestly pronouÌ„ced especially if he had heard his new and fresh confirmation therof which he setteth â—orth in this other Preface to his sixt part wherin he sayth that euery man that writeth ought to be so careâ—ull of setting downe
Clâ—ricali esse nudatos correctioni fori saecularis addictos that all such as had beene twice married are depriued of all priuiledge of Clergy men and are subiect to the iurisdiction of the secular Court There arose a question in England in tyme of Parliament how this decree of the Pope should be executed and obserued some of the Prelates inclining that it should be vnderstood only of such Bigamies as should fall out after the CouÌ„cell and therfore demaunded to haue deliuered into their hands and freed from the temporall gaole such as presently were in prison and had beene bigamies before the Councell But the K. his Counsell were rather bent to haue all bigamies excluded froÌ„ that priuiledge both present and to come for that the Popes Constitution now alleaged seemed rather to sound that way for that it is generall and without exception Vpon which determination produced the Attorney hath this note insteed of an inference Obserue saith he how the King by aduise of his Counsell that is by authority of Parlament expounded how this Councell of Lyons should be vnderstood and in what sense it should be receyued and allowed And therof would inferre that the king and his Counsell held themselues to be aboue the Pope for that they tooke vpon them to determine in what sense the Popes decree should be vnderstood And yet M. Attorney protesteth as before you haue heard that he maketh no inferences but only alleageth the bare law books as they lye but yet heere euery man will see that it is vntrue for that heere he maketh an inference and that very false and impertinent For he should rather haue made the quite contrary inference to wit that for so much as the King and his CouÌ„sell did subiect themselues to the acknowledgment and obseruation of the Popes decree and did accommodate the law of England therunto which before was otherwise they did therby acknowledg that the Popes power in making lawes for Ecclesiasticall matters was Superiour to that of the King and can Syr Edward or any man else deny this consequence And this shall suffice for this case but only I may not let passe this one note by the way that wheras M. Attorneys words are that certayne Prelats when such persons as haue beene attaynted for fellons haue praied to haue them deliuered as Clerkes he forgot himselfe for that the wordes in the booke are quando de felonia rectati â—uerâ—nt when they had beene arraigned of â—elony not when they had beene attainted of felony for that Clerkes beâ—ore attainder were wont to be deliuered to their Ordinaries but being once conuicted and attainted they cannot make their purgation afterward as appeareth by Stanford l 2. c. 49. 87. Vnder K. Edward 2. the Attorney writeth thus Albeit by the ordinance of Circumspectè agatis made in the 21. yeare of K. Edward 1. and by generall allowance and vsage the Ecclesiasticall Courts hâ—ld plea of Tythes obuentions oblatioÌ„s mortuaryes c. yet did not the Clergy thinke themselues assured nor quiet from prohiâ—itions purchased by subiects vntill that K. Ed. 2. by his letters patents vnder the great seale and by conseÌ„t of Parlament c. had graunted vnto them to haue iurisdiction in those cases c. So M. Attorney And what doth he inferre heerof thinke you the questioÌ„ in hand teacheth vs to wit that K. Edward 2. is proued by this to haue had supreeme spirituall iurisdiction An inference you will say very farre fecht but this is the manner of Syr Edwards disputing and yet he saith that he maketh no inference nor argumentatioÌ„ at all marke then his guilfulnes 88. He coÌ„â—esseth that before king Edward the 2. there was generall allowance and vse of Ecclesiasticall Courts in England for Ecclesiasticall matters as appeareth by the ordinance of Circumspectè agatis vnder K. Edward 1. and of magna Charta before him againe vnder K. H. 3. many other proofes he confesseth also that this vse and allowance was confirmed according to the Custome of his Ancestours by the same K. Edward 2. by a new statute made in the ninth yeare of his raigne called Articuli Cleri But what of this hence he inferreth that the king was supreme in spirituall authority for that he graunted â—aith he to them to haue iurisdiction and do you see the good consequence I will reason with him in the like The parlameÌ„t de prerogatiuis Regis held in the 17. yeare of the same K. raigne did nuÌ„ber and explaine and confirme all the kings prerogatiues which were allowable at the coÌ„mon law ergo this statute did giue vnto the king his prerogatiues and that he had them not before which consequeÌ„ce I doubt not but M. Attorney himselfe will deny to be good and yet is it as good as the other for K. Edward 2. in his statute of Articuli Cleri did but concurre with his Ancestours in confirming those priuiledges which had beene vsed before time out of mind and in subiecting his temporall lawes to the lawes of the Church in the cases there specified so farre of was he froÌ„ taking supreme iurisdiction vpon himselfe as falsely and fondly M. Attorney would make his reader belieue But let vs passe from K. Edward 2. to his sonne K. Edward the third out of whose raigne M. Attorney alleageth more examples instances then almost out of all the rest wherof we shall touch some few for all would be ouer longe and perhaps we shall desceÌ„d no lower then the time of his raigne reseruing the more â—ull discussion of these and other exaÌ„ples vntill the Catholicke Deuine or some body for him shall prepare a second edition of his forsaid answer to Syr Ed. Reports 89. First then fol. 14. b. of this his fifth part of Reports he reciteth out of the raigne of this K. Edward 3. but quoting no particuler place that it is often resolued that all the Bishopricks within England were â—ounded by the kings progenitors and therfore the aduowson of them all belonged to the king c. And that when a Church with cure is void if the particulâ—r Patron or Bishop of that Diocese do not present another within the space of 6. monethes then may the Metropolitan conferre the same and if he also do it not within six other moneths then the comon law giueth to the king as to the supreme within his owne kingdome not to the Bishop of Rome power to prouide a competent pastour for that Church This is Syr Ewdards narration full of deceipt as now you shall see For albeit the coÌ„mon law doth giue to the king as to the supreme within his owne Kingdome to present by lapse as hath beene said yet not as supreme in spirituall authority as he would haue his reader mistake and belieue but as supreme in the temporall patronage or as supreme temporall Patron of that Benefice to whoÌ„ in such cases the aduowson of presenting
of any honourable family dieth all his kinred do gather themselues togeather to make inquiry of his death if there be any suspicion that he was made away then they do vse torments vpon the wiues as if they were slaues and if it be found that they were guilty of the sayd death then after they haue bene tormented by fire and all other torments they put them to death 72. In which narration first you see no mention of Britans but only of Frenchmen as hath bene noted the nobility wherof are deuided by Caesar into two sortes the one Druides that had care of their sacrifices and matters of Religion the other Equites Knights that made as it were the lay nobility and of whome he recounteth this that we haue here related You will aske then perchance with what truth or syncerity Syr Edward can recite this as the Law of the Britans which is related by Caesar as the Law of the Frenchmen He hath no other shift for excuse of this but to make this note in his margent See in the Preface to the third part of my Reportes out of Caesars Comment Disciplina Druidum in Britannia reperta atque inde in Galliam translata esse existimatur It is tâ—ought that the discipline oâ— the Druides was first found in Britanny and â—rom thence translated into France And is not this a good reason that whatsoeuer is recounted by Caesar of Frenchmen should be ascribed to Brittans â—or that in tymes past the discipline of the Druides is thought by some to haue come from Britanny What coherence hath this togeather May not all lawes of the Frenchmen be ascribed by this meanes vnto the Brittans Is not this a strange direct and demonstratiue proofe to proue one thing by another This indeed is an argumeÌ„t à disparatis as Logitians do call it But let vs see more tricks besids this 73. Why had not he alleaged the whole place out of Caesar as I haue done and why doth he cyte the words so cuttedly si compertum est igne c. interficiunt yet in the English leaueth out c. saying And if she be found guilty of the death of her husband which is petty treason the wife is burnt to death as she is in that case at this day Why had not he set downe c. also in the English therby to let his Reader vnderstand that there were some words left out to wit atque omnibus tormentis excruciatas interficiunt they do kill such wiues as are found culpable after they haue byn tormented with fyre and all other torments What needed the word c. for excluding so few syllables but that yt stood not well with Syr Edwards purpose to haue them seene read for that they shew plainly that neyther Brittans nor Frenchmen had any such Law or custome to put such wiues to death by burning though they vsed the same for a torment before their death No more then it may be truly sayd that Englishmen at this day haue a law or Custome to put Priests or other men to death by the Racke though diuers of them haue byn racked and aftâ—rward put to death And this could not my Lord but see in reading Caesar wherby is euident that his Lordship also commeth into the Classes of them that auouch wilfull and formall vntruthes against their owne conscience and knowledge when they make for their purpose and yet is this far from the office manner of proceeding of a Iudge that ought to be exact and punctuall in his truth 74. But now further to his inference suppose that he had related his Author truly and that Caesar had sayd as he sayth That the ancient Brittans had this law and custome to burne wiues that should be â—ound guilty of their husbands deathes which Syr Edward saith hath continued to our tyme why if it were so to answere coniecture with coniecture should not the other part of the same law haue remayned also that husbands should haue power of life and death ouer their wiues as the Brittans according to Syr Edward had or how where or when can he proue that that part of the Law was abrogâ—ted and the other of burning them left to remaine or if he cannot or that he will say that the other part in like manner doth in rigour remaine then would it go hard no dout with many wiues at this day that are scarse patient of farre lesse power and dominion in their husbands ouer them then is that of life and death which Case as it apperteineth not to me to discusse nor to Syr Edward I thinke to determine so is it sufficient for our purpose to haue demonstrated that his answere to this third question hath neither byn Direct nor Demonstratiue nor sincerly handled nor grounded vpon true relatioÌ„ Now then to the fourth and last 75. If in all the former three questions the Iudges answere haue byn found to haue byn defectuous much more in this then in all the rest For whereas before yow haue heard them say that the Students desire was to see some proofes that the Common law in these foure particuler Cases was before the Conquâ—st as now it is and that Syr Edward had no sooner seene them but that instantly he found direâ—t and demonstratiue answere to the same now comming to answere indeed he alleageth an act of Parliament holden in the 10. yeare of King Henry the second which was Anno Do. 1164. wherin it was enacted That iâ— any Appeale came â—rom any Archdeacon or Bishop vnto the Archbishop and he should fayle to do iustice it must lastly come to the King nor proceed any further without the assent of the King which is a straÌ„ge falling from the purpose if yow marke it well For that the question was whether this Common law of England that is now in vse was in vse also before the Conquest and that as now it is vsed which the iudge affirmeth and for proofe therof alleageth a Statute made an hundred yeares after the Conquest What will yow say to this Why had he not alleaged some one example or proofe before the Conquest as the Case and question required Or why had he not gone about to satisfy some of those examples to the contrary alleaged by me in the 6. Chapter of my former Answere to his Reportes and fiâ—th demonstration to wit of Appeales to Rome of the two Archbishops of Canterbury Lambert and Athelard vnder the two Mercian Kinges Offa and Kenulphus as also the two other famous Appeales of S. VVilfrid Archbishop of Yorke against the two Kinges successiuely of the Northumbers Egfrid Alfrid All which are recounted by S. Bede others long before the Conquest which in my sayd Booke are set downe and Syr Edward could not but haue read them and are full to the purpose to proue the lawfulnes of Appeales in our primitiue Church of EnglaÌ„d yet now he saith no one word