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
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
AN ASSERTION FOR True and Christian CHURCH-POLICIE Wherein Certain Politike Objections made against the planting of PASTOURS and Elders in every Congregation are sufficiently ANSWERED And Wherein also sundry projects are set downe how the Discipline by Pastors and Elders may be planted without any derogation to the Kings Royall Prerogative any indignity to the three Estates in Parliament or any greater alteration of the laudable Lawes Statutes or Customes of the Realme than may well bee made without damage to the people IN DOMINO CONFIDO London Printed 1642. To the Right Honourable the LORDS and COMMONS Assembled in High COURT of Parliament Right HONOURABLE c. THe Ensuing Treatise which I am bold to present to Your wisedomes view containes principall politicall reasons grounded upon the Lawes of this Kingdom for the removing of the present Hierarchie and planting of a Governement by Pastors and Elders The appellation of Lay Elders hath beene very displeasing to many whereas the Elder intended to be planted is not lay but in regard of the service wherein hee is to bee imployed Ecclesiasticall The Author was an elaborate Student in the civill Law and a professor of it He was esteemed learned by the best of that profession as also by Divines and common Lawyers learned Sir Edward Cook late Chiefe Justice of the Kings Bench Sir Christopher Yelverton late Judge of the Common Pleas Sir Henry Finch late the Kings Serjeant at Law and others have given testimony of him The Treatise is an answer to diverse passages in a Book written by D. Whitgift late Archb. of Canterbury intituled An admonition to the Parliament The Author as I doubt not but will appeare to your Wisedomes hath written with the spirit of meekenesse and humility submitting all to the judgement of an High Court of Parliament hee disputes with the Great Bishop in a Scholasticall way without one syllable of reviling or bitter language which he ever detested Hee discovers the foundation of the Hierarchie to be totally illegall and to bee abolished by the abolition of the Papall Canon Law which appeares to be abolished by the statute of 25. of Henry 8. cap. 9. The truth whereof being discovered by the Authors means to the said learned Judge Sir Edward Cooke hee did most ingenuously acknowledge and did avow he never understood the statute so well before yet affirmed he thought he had read the said statute an hundred times May it please you in your wisedomes to commend the Treatise to bee viewed by the learned Gent. of the long Robe whose awfull judgments I shall ever honour Most true it is I dare averre there is little written in this Kingdome tending to the removall of the Episcopacie from Legall and Politicall arguments but the Author hath the arrowes in his quiver I say not that others have borrowed light from his Candle Right Honourable and Right worthy I shall humbly take further boldnes humbly presuming upon your Honourable favours if this poore model find acceptance in your sight to present you with a new impression of an abstract written in time of famous Queene Elizabeth a Book well knowne to learned King Iames by the same Author whose memory I am bound by nature to Honour Give mee leave onely now to make knowne unto you the Title and severall Treatises contained in it It is intituled An abstract of certaine Laws Canons and Constitutions Synodall and Provinciall in force within the Queenes dominions and for the most part unknowne to the subject It containeth these principall Treatises 1. That a learned Ministery is commanded by Law 2. That Pluralities are forbidden by Law 3. That it is unlawfull to make a Minister without a title 4. That it is unlawfull for a Clerk to have civill authority This abstract was seemingly answered by the rayling stile of a then Doctor Cozens but by a further incounter and the counterpoyson yet extant written by the same Author he departed the Field with Honour such was the opinion of many learned among others of the foresaid Reverend Judge Sir Henry Yelverton This treatise was never questioned nor quarreld for ought I ever heard Yet was the Author well knowne to many of the Bishops You may happily in your Wisdomes conceive some things might have beene omitted as not wholly incident to the time and some abbreviated in regard of the shortnesse of your time and of the high affaires now in hand But may it please you being about so to doe I found the light must have bin much Eclipsed and the truth obscured I am over bold most humbly to commend the defence of what he writes grounded upon the laws of the Kingdome to your most Honourable protection It shall be enough for me to attend among the meanest of your servants having heretofore had the happinesse to have bin a member though unworthy of the Honourable House of Commons Presenting your honours and your grave wisdomes with my heartiest prayers and humblest service In most humble manner I intreate your pardon of and for The Contents THe defenders of the Hierarchy confesse their government is not apostolicall pag. 2. The bringing in of the discipline desired causeth no alteration of temporall laws nor the officers of a kingdom 3 4 5 6 7 8 9 No feare that prophane men will overthrow the Gospell if the forme of Church government be altered 10. The description of lukewarme professors that will be of that religion the King will be of 11. The Puritan protestants can never overthrow the Gospell 13. Neither can the Papist because he is overthrown by the Gospel 13 The planting of an Apostolicall government will draw no alteration of the Lawes of the Realme 14. The whole Papal Law is totally abolished by the statute of the 25 of Henry 8. c. 19. of the submission of the Clergie as appeares by the body of the statute and the proviso from the 15. to the 20. Canon and civill Lawes no part of the Lawes of the Realme but by sufferance 15 An imbasement for Civillians to have preferment by the offices of the Canon Law that ought not to be used 17 18 19. Whence it followeth that the papall Canon Law being abolished the papall offices and functions of Archbishops and Bishops are also abolished being grounded upon the same Law 20 Power properly and improperly called spirituall 20 21 Bishops remaine ordinary by custome provinciall Canons and statute Law though papall lawes be abolished 21 The King though Supreame governour of the Church cannot give Archbishops and Bishops spirituall power properly called spirituall that power must be derived from the Scripture 20. The Bishops did use a plenary power devised and promulged new Canons without the Queenes assent 23 All the Bishops together can make no new Law and yet every Bishop doth make many lawes 24 All temporall officers do draw their power from the King one way or other 25 The Charter of England confirmeth not the power of Archbishops or Bishops because their power appeares not by the
bishops and societie against the right and freedome of the law of God against the principles of humane fellowships against that which was in the begining and against that which the Apostles left in the Churches by colour of lawes brought into the Church by the cursings and fightings of the late Romane Bishops they would not henceforth barre and seclude the Kings Christian and faithfull people from giving their consents unto their pastours Yea and we further beseech their Lordships that are schollers unto the Apostles and as servants unto the old way of reason of nature of the law of God of the equitie of Christ and of humane societie they would hereafter imbrace that way which was from the beginning which is the old way and the best way and not any longer persist in a cursed and quarrelling way which is the new way and the worst way But if the Lords spirituall of their own accord shal not readily vouclsafe to yeeld unto us this our right at our intreatie then for my part I will briefly shew mine opinion what were expedient for the A supplieation to the king by the Lords and commons for the restitution of their right in the choice of their pastors Lords and commons in open parliament dutifully to pray and to supplicate at the Kings Majesties hand Namely At the humble petitions and supplications of all his Lords temporall and commons in Parliament assembled his majestie would bee well pleased to give his Royall assent to an act to be intituled An act for the restitution of the ancient right and freedome which the people of God in the old Churches had and which the people of England ought to have in to or about the election of their Pastours and abolishing all papal power repugnant to the same For if as it is plainly confessed the people of all Churches have right and freedome by the law of God by the equitie of Christ by the grounds of reason and nature by the principles of humane fellowships and by that which was from the beginning to elect their pastours and if also the same right and freedome being left to the old Churches and especially to the Church at Ierusalem by the Apostles have beene taken away by the cursings and fightings of the late Bishops of Rome then cannot the people without violation of those lawes rules and grounds by any Episcopall power be any more excluded from their said right and freedome than could or might the ancient jurisdiction of the Crowne of England have beene still usurped by the pope from the Kings of England ADMONITION But alas the common people of England thorough affection and want of right judgement are more easily wrought by ambitious persons to give their consâ—nt to unworthy men as may appeare in all those officâ—s of gaine or dignitie that at this day remaine in the choise of the multitude ASSERTION The Admonitor in one place of his admonition telleth us that he must not put all that he thinketh in writing and yet he writeth in this place that thing which might far better have been utterly unthought than once written for could he thinke to win the common people of England to a continuall good liking of high and stately prelacie by upbraiding and charging them to their faces in a book dedicated unto them with affection and wanting of right judgement Was this the way to procure grace favour and benevolence at their hands And albeit this slander deserved rather to have beene censured by the Commons in Parliament than by confutation to have beene answered yet for the better clearing of the right judgement of the common people giving their consents to most worthy men in all offices of gaine or dignitie remaining in their hands I thinke it necessarie to shew the indignitie of this contumelie There be I confesse in London Yorke Lincoln Bristow Exceter Norwich Coventry and other principall Cities and townes corporate Majors Sheriffes Stewards Recorders Bailiffes Chamberlains Bridge-masters Clerkes Swordbearers Knights Burgesses and such like offices some of dignitie some of gaine but that the officers of these or any other places whether of dignitie or gaine be chosen by the multitude of those places is utterly untrue for onely according to their ancient customes priviledges and Charters by the chief Citizens Townsmen and Borough-masters are those officers chosen The number also of which Electors in all places is not alike In London the Aldermen choose the Lord Major In other Cities and Townes sometimes eight and forty sometimes fourteene sometimes twelve sometimes only such as have borne office as Majors Sheriffes and Bailiffs in the same places nominate and elect their new Major Sheriffs and Bailiffes But that the Aldermen principall Towns-men Borough-masters and men having born chief offices in those cities towns and boroughs have easily been wrought by ambitious persons to give their consents unto unworthy men though it have pleased the Ll. Bb. with seene and allowed to have spred and published this saying yet that the same saying is wholly unworthy of any credit to bee given unto it or to bee regarded of any wise and indifferent man let the sober and peaceable elections made of the worthies of the land hereafter mentioned be witnesses The officers in Cities and townes corporate chosen with out contention and ambitious working of unworthy men And to leave to speake of the election of the Lord Major of the Citie of London Sheriffs Aldermen Wardens of companies Chamberlains bridge-masters and other annuall officers of honour and dignitie let us consider whether the Citizens of London have beene wrought by ambitious persons to choose M. Wilbraham M. Onslie M. Bromley to be their Recorders â—ll three afterward the Queenes solicitors and M. Bromly Lord Chancellor of England and let us consider whether the same Citizens as men of affection and want of right judgement did elect to be Recorders of the same Citie M. Serjeant Fleetwood Master Serjeant Flemming Master Serjeant Drue and how Master Crooke a man wise learned and religious and a Counseller and justicer within the principâ—litie of Wales The Recorder of the towne of Bedford is the right honourable the Lord S. Iohns of Bletsoe The Recorder of Bristoll was a long time Master Poppam now Lord chief Justice of England The Recorder of Northampton before he came to be Judge in the Kings bench was Master Serjeant Yelverton a favouter of the truth and an upright Justicer The Recorder of Warnick was Master Serjeant Puckering afterward Lord keeper of the great seale And of the same towne the Recorder now is a worthy Knight descended from a noble house Sir Foulke Grevile The Recorder of Coventrie is Sir Iohn Harrington Knight a man zealous for the true feare of God The Recorder of Chichester was M. Serjeant Lewkner now chiefe Justice in the principalitâ—e of Wales The Recorder of Norwich was Master Cooke the Kings Atturney generall And who soever shall enquire after the names and after the manner of election
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
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
intreate our most gracious Soveraigne Lord the Kâ—ng that where in any parish there shall bee found a learned preaching Minister resident upon his benefice that there be would be pleased by his authoritie royall under the broad Seale to enable him and some other godly and faithfull Knights Esquires Gentlemen Citizens Borough-masters or other chiefe men of the same parish to execute spirituall justice against drunkards adulterers swearers railers and such like ecclesiasticall offenders inhabitants only within the same parish For in this case we say as the reverend Bishops say bonum quò communius eo melius If any exception should be taken or challenge made scoffingly and with scornfull termes against these lay parochians as hereto fore hath beene used against lay-Elders or lay-Aldermen No exception to bee taken against lay Elders to be authorized by the king in every parish sithence the King authorizeth lay-Elders in ecclesiasticall commission as they call them let him that taketh such exception advise himselfe well and remember before he speake that in speaking he controle not the policie the practice the wisedome and the authoritie of our late Queene deceased and of our Soveraigne Lord the King now raigning who authorized and doth authorise lay men to bee Ecclesiasticall commissioners Which kinde of lay men or lay Elders as they call them that they have joyned in the exercise of the chiefest censure of the Church viz. excommunication with Ecclesiasticall persons hath beene already proved by the sentence of excommunication pronounced against E. by Master W. and his associates whereof divers were lay men Againe if one lay Elder dwelling at Winchester may call and associate unto himselfe one Ecclesiasticall Elder dwelling at S. Georges in Southwarke to excommunicate any parochian or Minister subject unto the Archdeacon of Surrey in what parish soever of the same jurisdiction the partie shall dwell if it be lawfull I say for every Ordinarie to joyne one lay Elder and one Ecclesiasticall Elder Discipline of excommunication exercised by one lay Elder and one Ecclesiasticall Elder together in commission the one to pronounce sentence of contumacie the other to denounce sentence of excommunication for every spiritual contumacie committed within his jurisdiction what reason can any man pretend why it should not be much more lawfull for the King by his Royall authoritie to appoint a learned and preaching Pastour with the assistance of some companie of faithfull inhabitants of the same parish to exercise all manner of spirituall justice within their owne parish If the King shall stand in doubt whether any Discipline by excommunication bee exercised after this and this manner in the Church of England then to put his highnesse out of all doubt hereof may it please the King to consider the precept of the reverend Bishops made in their convocation together with the practice of the venerable Archdeacon of Surr. following The precept is this Vnusquisque Vicarius generalis Officialis seu Commissarius qui ordines ecclesiasticos non susceperit eruditum aliquem presbyterum sibi Arriculo pro Clero c. de buibusdam circa excom excessib coercend 1584 accerset associabit qui sufficienti authoritate vel ab ipso Episcopo in jurisdictione sua vel ad Archidiacono presbytero existente in jurisdictione sua munitus idque ex praescripto judâ—cis tunc praesentis excommunicationis sâ—ntentiam pro contumacia denunciabit Every Uicar generall Officiall or Commissarie which hath not taken upon him ecclesiasticall orders shall call and associate unto him some learned Presbyter who being armed with sufficient authoritie from the Bishop in his jurisdiction or from the Archdeacon being a Presbyter in his jurisdiction shall denounce and that by the prescript of the judge present the sentence of excommunication for contumacie Now the manner of the practice of this precept ensueth in D. Hones practice of the Bishops aâ—â—icle these words Iohannes Hone legum Doctor Officialis venerabilis viri domini Archidiaconi Surr. omnibus singulis rectoribus c. salutem Cùm nos rite legitime procedentes omnes singulos quorum nomina c. in noÌ„ comparendo coram nobis c. seu saltem in non satisfaciendo mandatis nostris c. pronuncia verimus contumaces ipsoque c. excommunicandos fore decreverimus Cumque discretus vir magister Roul Allen presbyter eosdem omnes singulos subscriptos ex officio nostro excommunicaverit in scriptis justitia id exigente vobis igitur committimus c. quatenus eos omnes c. sicut profertur ex officio nostro mero excommunicatos fuisse esse c. palam denuncietis c Datum sub sigillo officialitatis nostrae 19. Die Decembris Anno Domini 1587. John Hone Doctor of the Lawes Officiall of the venerable man and Archdeacon of Surr. to all and singular persons c. greeting Whereas we otherwise rightly and lawfully proceeding all and singular whose names are under-written in not appearing before us or at least-wise in not satisfying our mandates have pronounced contumacious and decreed them to be excommunicated And whereas also the discreet man M. Rowland Allen presbyter one of our office hath excommunicated all and singular under written justice so requiring wherefore wee charge you that openly you denounce and declare them and every of them so as aforesaid out of our office to bee excommunicated Given under the seale of our officialitie The 19. day of December 1587. By this practice it doth appeare that Doctor Hone and Rowland Allen canvaced many poore men very piteously and that this poore curate Rowland Allen had a warm service to attend upon D. Hone and to jerk those whose points soever hee shall untie But because this precept was an article concluded upon by the reverend Bishops in their convocation and confirmed as I suppose by the Royall authoritie of our late Queene wee will forbeare to speake what we thinke might justly be spoken against the incongruitie thereof Only this without offence to the reverend Bishops wee may safely demand sithence every ordinarie whether he be a Bishop or a Presbyter by this article of their owne device hath such an absolute power resiant in his person as that thereby thorowout his whole jurisdiction he may thus commit the execution of Discipline by excommunication partly to one lay person and partly to one ecclesiasticall person partly to a supposed spirituall elder and partly to a Lay elder sithence I say this is so we may safely demand what reason they can produce to hinder the King from having authoritie to command three or foure The K. hath as good right to command excommunication to be exercised by a Pastor Elders as the Bb. have to commit the same to a Curate one lay Elder or if occasion serve five or six lay elders as they call them and one spirituall pastor being a true spirituall elder in deed all lawfully chosen ecclesiasticall Officers in the house of God that