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
have it further enacted That all manner of fees heretofore lawfull or hereafter by the King and Parliament to be made lawfull for or concerning the probat of Wills administration of the goods of the intestat letters of tuition receiving or making of accompts inductions to Archbishoprickes Bishoprickes Deanries Parochiall-Churches or other spirituall promotions and all other fees whatsoever heretofore lawfull or hereafter to be made lawfull for any travaile or paine to bee taken in or about the expedition or execution of any of these causes shall for ever hereafter be fees and allowances appropriated to the Judges and principall Registers of the said Courts equally to bee devided betweene them as heretofore hath beene accustomed and that the said Judges and Ministers within their severall charges shall be Collectors of the Kings tenths and subsidies granted and due by the Clergie taking for their travaile and paine in and about the same collection such fees as heretofore have beene accustomed Provided alwayes that none of the said civill and temporall Officers and Ministers nor any of them for any offence contempt or abuse to be committed by any person or persons in any wise incident to any of the said Courts and Consistories suspend excommunicate or interdict any person or persons but shall and lawfully may by authority of this present Act proceed against every offender and offenders by such ordinarie processe out of the said Register or Notaries office as is used upon a sub-paena out of the high Court of Chancerie and there upon default or contempt to proceed to attachment proclamation of rebellion and imprisonment of the partie offending as in the said high Court of Chancery is used Provided also that all appeales hereafter to bee made from all and every Court and Courts in the Shires and Diocesses of the Countrey shall bee made to the higher Courts as heretofore hath beene accustomed only with an alteration and addition of the names stiles and dignities of Archbishops Bishops and other Ordinaries unto the name stile and dignitie of our Soveraigne Lord the King his heires and successors And that upon the appeales so to be made it shall and may be lawfull for the Judges and Ministers of Justice of and in the said higher Courts to make out all manner of processe and processes and to do and execute all and every act and acts thing and things for the furtherance of Justice in the causes aforesaid as to them shalby the law seem equal right meet and convenient any law statute priviledg dispensation prescription use or custom heretofore to the contrarie in any wise notwithstanding Provided also that all and everie such Judge and Minister that shall execute any thing by vertue of this act shall from time to time obey the Kings writ and writs of prohibition of attachment upon prohibition and indicavit and not to proceed contrary to the tenour of such writ or writs in such and the same manner and form and condition as they have or ought to have done be ore the making of this act any thing in this act to the contrary notwithstanding Provided also that this act or any thing therein contained shall not extend or be interpreted to give any authoritie to the said Judges and Officers or any of them to put in execution any civill or Ecclesiasticall law repugnant or contrariant to the lawes statutes or customes of the Realme or hurtfull to the Kings Prerogative Royall And thus it may seeme to be but a small labour a little cost and an easie matter for the King his Nobles and Wisemen of the Realme to devise formes of judgement and manner of processe and proceedings without any offices or functions of the Canon law whereby the use and studie of the Civill Law and the reward and maintenance for Civilians might be furthered and increased and not utterly overthrown and taken away as the Admonitor uncivily beareth us in hand As for the alteration of the censure of excommunication for contumacy mentioned in this project we have the consent of the reverend Bishops in this admonition that the same may be altered For the Admonitor their Prolocutor speaketh on this wise viz. As for the excommunication Pag. 138. Excommunication for contumacie by the Admonitors judgement may be taken away without offence and with the good liking of the Bishops practised in our Ecclesiasticall Courts for contumacie in not appearing or not satisfying the judgement of the Court if it had pleased the Prince c. to have altered the same at the beginning and set some other order of processe in place thereof I am perswaded saith he that the Bishops and Clergie of the Realme would have beene very well contented therewith And speaking of a certain manner of civill discomoning used in the Church of Tigure he further addeth viz. Which or the like good order devised by some godly persons if it might be by authoritie placed in this Church c. I think it would be gladly received to shun the offence that is taken at the other ADMONITION And matters of Tythes Testaments and Matrimonie matters also of adulterie slander c. are in these mens judgements meere temporall c. therfore to be dealt in by the temporall Magistrate only which as yet have either none at all or very few laws touching those things therefore the common law of the Realme must by that occasion receive also a very great alteration For it will be no small matter to apply these things to the temporall law and to appoint Courts Officers and manner of processe and proceedings in judgement for the same ASSERTION Indeed we hold that all these matters wherof mention is here made Matters of tythes and other causes of like nature pertain to civill justice and all others of the like nature are merely civill and temporall and by the temporall Magistrate alone to be dealt in and to bee discussed if we consider the administration of externall and civil justice And this we thinke will be granted of all and not to be denyed of any unlesse they be too too popishly addicted In regard whereof we have drawn as before is mentioned a project how Courts and manner of processe and proceedings in judgement by Doctors of the Civill Law may be appointed by the King and his high Court of Parliament without that that the common Law of the Realme by the occasion of any such courts offices or manner of processe and proceedings must receive any alteration at all much lesse a very great alteration Howbeit if it should not please the King and that the Civilians could not finde favour in his sight by courts offices and manner of processe and proceedings in judgement before specified or by the like to have the studie of the civill Law advanced yet we thinke it convenient once again How matters of tyths c. may be dealt in by â—he Kings Iudges to be examined how these matters may be dealt in according to the rules and grounds
Scripture to be given them by God and therefore the King and Parliament may be pleased to abolish both them and their power as King Hen. 8. did abolish Monkes and Friars 26. 40. and 28 The challeng for Lordly primacy out of the great charter answered 28 The study of the civill Law and the professors of it may florish more than now they doe 28 Fees for probate of testaments let to farme 29 Fees dew for execution of functions of the Canon Law disproportionable for a Dâ—ctor of the Civill Law 30 An Act of Parliament for the advancement of the Civill Law is set downe and a forme laid for all proceedings in the Courts in which the Civill Lawyers should be Iudges 32 33 It will advance the honour of the King and the good of his subjects to have matters of tithes and testaments and matrimony reduced by act of Parliament to bee tried by the Iudges of the Common Law 37 Matters of tithes and other causes of light nature pertaine to civill justice 37 The temporall law may easily bee applyed to causes now reputed Ecclesiasticall 39 How legacies may be recovered at the Common Law 42 Matters of marriages more fit to bee decided by the Kings officers than by the Bishops 43 Much adâ—e in the Bishops Courts about Accipio and Accipiam 44 The common Law preferred by the Bishops above the Law of God and the civill Law 45 Causes of Adulteries Slander Heresie which by sufferance only have bin exempted from the Cognizance of the King may be arbitrated by the Iudges of the common Law 47 Hierarchy may be judged felony if it please the King 49 The cognizance of all crimes as well as of some by the Law of God belong to the King 50 No impeachment and impropriations in lay mens hands the stat of 15. Rich. 2. and the 4. Hen. 4. being observed for a Vicar endowes yet if it please the King Parliament a law may be made for reducing of impropriations which may bee done First by restitution Secondly by commutation Thirdly by redemption Fourthly by contribution 52 Parochiall Churches to what use they were founded 56 First restitution of many may and ought to be which are now accounted the temporall revenues of Archbishops and Bishops which were given to severall Churches are now spoyled of them by Archbishops and Bishops 55 56 57 58. Secondly commutations may be made of many of the Bishops lands given to superstitious uses for many impropriations in the Kings hand and the hands of many of the Nobility 56 58 59 Thirdly there may bee a redemption made of the same land or buying in of many impropriations by a common purse or treasury which will increase 1. When the people shall be discharged of the burden of Ecclesiasticall Courts 2. The treasure will increase by the dissolution of Chapels of ease and uniting two Parishes into one and especially in great Cities and Towns where often are but small Livings 61 Dissolution of Chapels no new thing Ibid. Chapels the Seminaries of hirelings 62 3. By sequestration of the Livings of non residents 4. By the forfeiture of penall Lawes due to the King 60 61 62 63 Sequestration of the Churches of pluralists may further the treasure for redemption of impropriations 63 By what contributions Impropriations may bee brought to the use of the ministery 63 Fourthly the fourth meanes viz by contribution wherby Impropriations may be reduced to the ministery 63 64 65 How and by what means impropriations may be reduced into the ministery 65 66 None of the three estates in Parliament is lost by removall of the Hierarchy as appeares by severall statutes viz. 25. E. 3. c. 24. 31. Ed. 3. Stat. of Herrings 3. R. 2. c. 3. 7. R. 2. c. 12. 1. E. c. 2. 68 69 70 71 72 73 The state of Prelacy founded by the Grandfather of K. E. 3. 69 The K. having the assent of the Nobles and Commons may repeale statutes without the assent of the Prelates 70 The argument answered in which it is said that it hath been alwayes dangerous to pick quarrels against laws setled 74 75 Lesse danger to reforme the Church by new lawes than to continue corruption by old lawes 74 That argument answered in which it is said that there must of necessity be in every Parish one Pastor a company of Seniors and Deacon or two at the least and all those to be found of the Parish 75 76 77 78 What kind of men ought to be chosen Seniors and Deacons 76 The judgment of the Commissioners of Ed. 6. touching Elders and Deacons 77 The election of Pastors by the people stands upon the ground of reason and nature rules of Christian equity and the law of God therefore by no Law or custome can justly be taken away though actually it was by the Pope 79 to 87 Dangerous to innovate unlesse there be evident utility in innovation 80 The common manner of election in the old Churches was by the people 81 The King without the people hath power to nominate the Kingly Bishop 82 M. Bilson confirmes the peoples election of their Pastor 83 A great difference betwixt the choice of Bishops in England and Pastors 86 No Schisme hapned by choice of Pastors by the people ancient schimes were ever from the election of Bishops 87 88 therefore a Stat. is desired for the giving of election of their Pastors 86 Election of publike officers in Cities and Boroughs is by the principall men of these places 90 91. therefore Ministers may bee elected the officers of Cities and Townes Corporate chosen without contention therefore Pastors may be also chosen 90 The people would be more carefull of their Election than Bishops have been the people could make no choice of insufficient Ministers unles the Bishops did make insufficient Ministers 93 94 The common people accused of backwardnesse in Religion the reason of that must needs be from their ill guides 95 Men of excellent gifts and men of no gifts are unequally matched in the ministery of the Gospell 96 The people may know a man to be a fit Minister though he be not brought up among them 98 What knowledge of a Minister is required in the people before they choose him No partiall suits can follow the election of Ministers by the people 100 The means to take away all symony for places in the Ministry 100 The inconveniences of Bishops ordination set downe 102 As many suits betweene the Bish and the Clerke 2. suits between the Clerke and the Archdeacon 3. suits betweene the B. and the Archdeacon 4. Riots and breaches of the Kings peace 5. unlawfull Fees for Letters of institution 6. unlawfull Fees for letters of sequestration 105. 7. Perjury by the Clerk and robbery by the Patron 8. Chopping of benefices and dispensations 106. A supplication to the Parliament to consider these inconveniences and likewise a briefe way is set downe of the redresse of them 107 Diverse things set down concerning ordination of Ministers
of the Common Law before the Kings Judges and Justices of the Kings bench and Common pleas By a Statute of 32. H. 8. c 7. it is cleare that all tyths oblations c. and other Ecclesiasticall or Spirituall profits by the lawes and statutes of the Realme may be made temporall as being admitted to be abide and goe to and in temporall hands lay-uses and profits From the reason of which statute it is cleare that those lawes likewise may be reckoned amongst us for temporall lawes which by the lawes and statutes of the Realme may be executed by temporall and lay persons and which are conversant about temporal and lay causes If then the execution of the Lawes touching these matters may lawfully remaine and abide in the hands of Doctors of the Civill Law being temporall and lay persons as alreadie under the Bishops they doe it cannot be denied but that the Kings Judges and Justices of both benches may bee as competible Judges to put in execution the lawes concerning these matters as Doctors of the Civill Law or other lay men be But the causes are not reputed and called temporall and lay causes amongst us What for that if in their owne nature simply considered these causes be merely lay and temporall causes such causes I meane as whereof the King a lay civill and temporall Magistrate by his lay civill and temporall Magistracie derived unto him immediately from the holy law of God may and ought to take cognizance and thereupon either in his owne Royall person or by the person of any of his inferiour Officers may give absolute and peremptorie judgement If I say these things be so what booteth it or what wisedome is it to contend that these causes and matters have been and are still adjudged to be therefore Ecclesiasticall and no temporall causes because through an abusive speech or through a vaine and evill custome they have beene so led and accompted in times past And what if it hath pleased the Kings Progenitors by sufferance to tolerate the executions of such Lawes as concerne these things to bee in the hands and power of Ecclesiasticall persons yet hereupon it followeth not that in very deede and truth the Magistracie of the said Ecclesiasticall persons was an Ecclesiasticall Magistracie or that they were Ecclesiasticall Magistrates but their Magistracie was and remained still a temporall magistracie and they were and abode temporall Magistrates For not more can the qualitie of the person alter the nature of the cause than can the qualitie of the cause alter the nature of the person And if it be true that matters determinable in times past by a Magistracie abusively called Ecclesiasticall be notwithstanding properly temporall matters and that the same Magistracie also be a temporall and no spirituall Magistracie what a childish and poore conceit is it to challenge and threp upon the temporall Magistrate that he hath none or very few temporall lawes touching those matters and that therefore the people should not solicit an alteration of abuses in Church government left for want of temporall lawes the people should bee without Ecclesiasticall discipline It will be no small matter saith he to apply these things to the temporall law yea and so say I to But what of that The question is not how hardly these things may be applyed to the temporall law but how small a matter it were to apply the temporall law unto these things For it is not said in any law that casus ex juribus but it is said in all lawes that ex casibus jura nascuntur The temporall law may easily be applyed to causes now reputed Ecclesiasticall And indeed the Phisition applyeth not the disease to his Phisick but he prepareth his phificke for the disease The husband-man he measureth not his ground by the seed but his seed by the ground The Draper he meateth not his yard by the cloth but his cloth by the yard If in like manner the temporall lawes and the grounds and rules thereof were applyed to these matters of tythes marriages c. whereof he speaketh what more alteration could there bee of the temporall law by such an application then there is an alteration of the plummet by laying it to the stone or than there is an alteration of the rule or yard by laying them to the timber and cloth Besides he that rightly and after an exact and equall proportion can apply one rule or maxime of the temporall law to many more cases than whereupon it hath beene usually in former times applyed hee may rather bee reputed an additioner than an alterer of the Law But how may the temporall Law be applyed to those matters how even so and so as followeth By the statute of 32. H. 8. c. 7. it is declared that tythes oblations how tythes may bee recovered in the Kings temporall Courts c. and other Ecclesiasticall or spirituall profits c. being lay mens hands to lay uses be no more Ecclesiasticall but temporall goods and profits and that if any person were diseased deforced wronged or otherwise kept or put from his lawfull inheritance estate seisin c. of in or to the same by any person claiming or pretending to have interest or title in or to the same that then in all and every such case the person so disseised deforced or wrongfully kept from his right or possession shall and may have his remedie in the Kings tempoâ—al Courts as the case shall require for the recoverie of such inheritance by writ originall c. to be devised and granted out of the Kings Court of Chancery in like maner c. It is there likewise provided that that Act shall not extend nor be expounded to give any remedie cause of action or suite in the Courts temporall against any person which shall refuse to set out his tythes or which shall detaine c. his tythes and offerings But that in all such cases the partie c. having cause to demand or have the same tythes shall have his action for the same in the Ecclesiasticall Courts according to the ordinance in the first part of that act mentioned and none otherwise Now then sithence every person whether he be lay or Ecclesiasticall having right to demand tythes and offerings hath the partie from whom those tythes be due bound and obliged unto him and sithence also the partie not dividing yeelding or paying his tythes doth actually and really detaine the same and thereby doth unjustly wrong the partie to whom they be due contrary to justice and the Kings lawes sithence I say these things be so what alteration or disadvantage could befall or ensue to the Common Law or the Professors thereof if so be it might please the King with his Parliament to have the last part of this Act so to be explained extended and enlarged as that the same might give remedy in the Kings temporall Courts by writ originall to be devised and granted out of the Chancerie against
any person detaining his tithes and offerings the Hospitall of S. Leonards in Yorke of the Kings foundation and Patronage endowed of a thrave â—ospital of S. Leonard 1 2. h. 6. c 2 of Corne to bee taken yearely of every plough earing within the Counties of Yorke Comberland Westmerland and Lancaster having no sufficient or convenable remedie at the Common Law against such as with-held the same thraves it was ordained by the King in Parliament that the Master of the said Hospital and his successors might have action by writ or plaints of debt or detaine at their pleasure against all and every of them that detained the same thraves for to recover the same thraves with their dammages And by the Statute of 32. H. 8. c. 4. it is enacted That the Parsons and Curates of five Parish Churches whereinto the Towne of Royson did extend it self and every of them and the successors of every of them shall have their remedie by authoritie of that act to sue demand ask and recover in the kings Court of Chancerie the tythes of corn hay wooll lamb and calfe subtracted or denyed to be paid by any person or persons Againe Vicars Parsons or improprietaries do impleade any man in the Ecclesiasticall Court for tythes of wood being of the age of twenty years or above for tyth-hay out of a medow for the which time out of mind and memorie of man there hath only some Meade-silver beene paid or if a debate hang in a spirituall Court for the right of tythes having his originall from the right of Patronage and the quantity of the same tythes do passe the fourth part of the value of the benefice a prohibition in all these and sundry other cases doth lie and the matters are to bee tried and examined in the Kings Courts according to the course of the Common Law unlesse upon just cause there bee granted a consultation And if in these cases in maintenance of the Common Law the defendants have reliefe in the Kings Courts I thinke it more meet to leave it to the consideration rather of common than to the judgement of Canon Lawyers to determine what alteration the Common Law could sustaine in case if plaintiffes as well as some defendants might pray the Kings aide for the recoverie of tythes especially seeing at this day the manner of paying tythes in England for the most part is now limited by the common and statute lawes of the Realm and not by any forraigne canon law But there is some fact Object happily so difficile so secret and so misticall in these causes of tythes as the same cannot without a very great alteration of the Common law Answer be so much as opened before a lay judge or of the hidden knowledge whereof the Kings temporall Judges are not capable Why then let us What facts touching the upholding of tyths are examinable in the Ecclesiasticall courts see of what nature that inextricable fact may be I have perused many libels made and exhibited before the Ecclesiasticall Judges yea and I have read them over and over and yet for ground of complaint did I never perceive any other materiall and principall kinde of fact examinable in those Courts but only such as follow First that the partie agent is either Rector Vicar Proprietarie or Possessor of such a Parish-Church and of the Rectorie Vicaridge farme possession or dominion of the same and by vertue thereof hath right unto all tythes oblations c. apertaining to the same Church and growing within the same parish bounds limits or places tythable of the same Secondly that his predecessors Rectors Vicars c. time out of mind and memorie of man have quietly and peaceably received and had all and singular tythes oblations c. increasing growing and renewing within the Parish c and that they and he have beene and are in peaceable possession of having and receiving tythes oblations c. Thirdly that the partie defendant hath had and received in such a yeer c. of so many sheepe feeding and couching within the said Parish c. so many fleeces of wooll and of so many Ewes so many Lambes c. Fourthly that the defendant hath not set out yeelded or paid the tyth of the wooll and lambe and that every Tyth fleece of the said wool by commâ—n estimation is worth so much and that every tyth Lambe by common estimation is likewise worth so much c. Fifthly that the defendant is subject to the jurisdiction of that Court whereunto he is summoned Lastly that the defendant doth hetherto deny or delay to pay his tyths notwithstanding he hath beene requested thereunto These and such like are the chiefe matters of fact whereupon in the The Kings Iustices are as able to judge of exceptions against tyths as the Ecclesiasticall Iudges Ecclesiasticall Courts proofes by witnesses or records rest to be made for the recoverie of tythes And who knoweth not but that these facts upon proofes made before the Kings Justices may aswell bee decided by them as by any of the Reverend Bishops or venerable Archdeacons their Chancellors or Officials If there be any exception alleaged by the defendant as of composition prescription or priviledge the Kings Justices are as able to judge of the validitie of these as they are now able eo determine customes de modo decimandi or of the use of high wayes of making and repairing of Bridges of Commons of pasture pawnage â—estovers or such like Truth it is that of Legacies and bequests of goods the reverend Bishops by sufferance Legacies how they may be recovered at the common law of our Kings and consent of our people have accustomably used to take cognizance and to hold plea in their spirituall Courts Notwithstanding if the Legacie bee of lands where lands be divisible by Testament the judgement thereof hath beene alwayes used and holden by the Kings writ and never in any Ecclesiasticall Court Wherefore if it shall please the King to enlarge the authoritie of his Courts temporall by commanding matters of legacies and bequests of goods aswell as of lands to be heard and determined in the same it were not much to be feared but that the kings Justices the kings learned Counsell and others learned in the Law of the Realm without any alteration of the same law would speedily finde meanes to apply the grounds thereof aswell to all cases of Legacies and bequests of goods as of lands For if there be no goods divisible by will but the same are grantable and confirmable by deed of gift could not the kings Justices aswell judge of the gift and of the thing given by will as of the grant and of the thing granted by deed of gift or can they not determine of a Legacie of goods aswell as of a bequest of lands If it should come in debate before them whether the Testator at that time of making his will were of good and perfect memorie upon proofs and other
circumstances to be opened and made of the Testators memorie by lively testimonies either the Admonitor must condemne the kings learned and discreet Justices to bee malae mentis insanae memoriae or els it must be confessed that they be as well able to judge of the distraction of wits and unsoundnesse of memorie in a person deceased as they be to determine the question of Lunacie madnesse or idiocie in a man living If any question should arise upon the revocation of a former will of the ademption of a legacie or of a legacie given upon condition or in diem it would be no hard matter for the learned Judges upon sight of the will and proofes to be made to define which is the first and which is the last wil whether the legacie remaine or whether it be revoked whether it be legatum per rerum or in diem whether conditional or without condition And if it bee conditionall whether the same be possible or impossible honest or dishonest and if it bee in diem whether the day be past or to come But there lyeth no action at the common law for a legatorie against the executor to recover his legacie I grant But a creditor to recover his debt due by the testator upon specialtie may bring an action at the common law against the executor And then what is the cause that a creditor way recover his debt and that a legator cannot recover his legacie in the kings Court but only for that remedie could not bee given unto legatories complaynants by any writ out of the Chancery And therefore that 21 Ed. 1. statute upon the writ of consultation such plaintiffes might not be deferred of their right and remedie in such cases to their great dammage it hath pleased the kings by sufferance to tolerate the Church Officers to determine these cases Wherfore if it might please the king to cause writs to be made out of his Court of Chancerie for the recovery of Legacies it were cleare by the Common Law of the Realme as from the statute may bee gathered that the cognizance of these Cases did not appertaine any more to the Spirituall Court. For then might the legatorie by that writ bring an action against the Executor to obtaine his Legacie But how should that action bee tryed How even as other actions of debt detinue or trover bee tryed namely as the case should require either by the countrey or by the Judges upon a moratur in lege As Testaments with their adherences so likewise matters of Spousals Mariages divorces c. together with their accessories by common Matters of marriages more meete to bee decided by the Kings than by the Bishops officers right of the Imperiall Crowne did in ancient times properly appertaine to the examinations and sentences of the Emperours themselves and to their Provostes Deputies and Presidents of Cities and Provinces as by their severall titles de Testamentis Legatis Fidei commissis Nuptiis repudiis divortio dote c. in the bookes of the civill law appeareth By the Law of England also the king hath the mariage of an heire being within age and in his ward Widowes also that hold of the King in chiefe must not marie themselves without the Kings licence And by an Act made 4. and 5. Phil. and Mary there is a streight punishment provided against all such as shall take away Maidens that be inheritors being within the age of sixteen years or marry them without consent of their parents and what reason letteth them that the King might not as well have the care and cognizance of all the contracts of mariage especially of the mariage of all children and widowes in his temporall Courts as he hath of some parties to be contracted of the Dower of the joynture of the disparagment of the age of the taking away of the deflouring and of mariage without parents consent in some cases or what a very great alteration of the common law could ensue in case the Kings temporall Justices did examine and determine whether the contract were a perfect and simple or conditionall contract yea or no For if upon the statute made by Philip and Mary that maidens and women children of Noble men and Gentlemen c. being heires apparent c. and being left within age of sixteene yeares should not marry against the will or unknowing of or to the father or against c. If I say upon the publishing of this act there hath no alteration of the common law hitherto followed it is but a meere superstitious errour to feigne that a change of the Common law must follow if so be this statute were extended to all children both Sonnes and Daughters of what parentage sexe estate or age soever For if the King in his temporall Courts had the definition of all as well as of some contracts made by children without consent of parents then should a multitude of lewd and ungodly contracts made by flatterie trifling gifts faire and goodly promises of many unthrifty and light personages thereunto wonne by intreaty of persons of lewd demeanour be pronounced voide and of no efficacie yea and on the other side a number of honest lawfull and godly contracts should be confirmed and Much a doe in the Ecclesiasticall Courts about accipio accipiâ—m remaine in their full strength and force which now upon certaine frivolous and trifling quiddities and nicities of words and sillables are pronounced in the Ecclesiasticall Courts to bee no contracts And in good earnest is there now a dayes any soundnesse of reason at all to be heard amongst the Doctors and Proctors of those Courts where they informe out of the Canon law in these cases For doth not their whole dispute and information rest principally whether the contract be made by words of the present or of the future tence whether it be made with an oath or without an oath yea and do they not exceedingly besweat and besmyre themselves by turning and returning by folding and unfolding their great and hydeous volumes for proofe and reproof of accipio accipiam yea and sometimes of letters and accents If the young man and maide having both of them their parents consent shall answer only in the future tence I will have thee or I will take thee or I am content to take thee or I will have none other but thee or if ever I marry I will marry thee and do not answer directly I do take thee to mine husband or I do take thee to my wife oh it is a world to see and a wonderment to behold what canvasing heaving and shoving what a stirre quoyle and garboile the Canonists make about the lifting and removing of these fethers And whatsoever the holy Scriptures have determined of the necessitie of parents consent or of what necessitie likewise soever the “ Institu de nup. S. 1. civill law hold the consent of parents to bee yet in the Ecclesiasticall courts
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
that the King chiefly desiring to sustaine the people in tranquillitie and peace and to governe according to the lawes usages and franchises of his land by the assent and expresse will and accord of the Dukes Earles Barons and the Commons of his Realme and of all other whome these things touched ordained that all they c. By which desire of the King and words of the Act wee learne that our soveraigne Lord King Iames may sustaine his people The king with the assent of the nobles and commous may repeale statutes without consent of prelates 25 Ed 3. in tranquillitie and peace and governe according to the lawes usages and franchises of his kingdome though the assent and accord of Prelates bee never required to the enacting of any statute in Parliament Nay such hath beene and yet is the power of the King that with the assent and accord of the Nobles and Commons he hath authoritie to adnull and make voide even those Acts which in favour of Prelacie and assent of Prelates have beene enacted in Parliament As by an Act made in the time of King Edward the third is plainly to be seene For whereas the King by assent of the Prelates Earles c had willed and granted for him and for his heires certaine articles firmly to be kept and holden for ever namely that the Ministers of holy Church for money taken for redemption of corporall penance nor for proofe and accompt of Testaments nor for solemnitie of Mariage c. should not be impeached c. before the Kings Justices neverthelesse the same king in the same yeare with assent of the Earls Barons and other wise men of the Realme and without assent of Prelates revoked and adnulied the same articles againe Again king Richard the second hearing the complaints of his faithfull leige people and by their clamour in divers parliaments of divers abuses crept in against the solemne and devout ordinations of Churches c at the request and complaint of the commons by the advice 3 R. 2 c. 3. 7 R. 2 c. 12. and commonassent of the Lords temporall without mention of any Lords spiritual is said to have ordained That none of the kings liege people c. should take or receive within the Realm of England any procuracie c. And in the eleventh yeare of the same kings raign it is especially provided that the appeals pursuits c. made and given in the same parliament be approved affirmed and established as a thing Act. Mo. R. 2. duely made for the weale and profit of the king and of all the realm notwithstanding that the Lords spirituall and their procurators did by protestation absent them out of the Parliament at the time of the said judgement given And the like protestation being made by the Prelates and Clergie at a Parliament holden the third yeare of the same king it was replyed for the king that neither for their said protesttation The king bound by his oath to do his laws to be made though prelates protest against him or other words in that behalfe the king would not stay to grant to his Justices in that case and all other cases as was used to be done in times past and as he was bound by vertue of his oath at his coronation By all which premises it is as cleare as the Sun shining at noon day that the Lords spirituall be so farre from making any one of the three Estates as that if it please the king they may not bee so much as any member or part of any of the three Estates at all If in the time of king Henry the eight the Lords spirituall being then more in number than the Lords temporall had beene but such principall members of the high estate of Parliament as without whom neither law could The Lords spiritual no principall members of the parliaâ—ent otherwise than as the King pleaseth have beene made Monasterie nor Priorie might have beene dissolved what could the king have done as head and the Commons have done as feet and the Nobles have done as the heart the Liver and the Longs to the dislording and discloystering of the Abbots and Priors the Monkes and the Friers of those dayes In case the Prelates with their armes and with their shoulders with their hands and with their hornes had heaved and shoved and pushed and thrusted to the contrary But to come nearer unto our owne times and remembrances if it cannot be proved that above one Lord spirituall was present in parliament and gave any assent to the enacting of statutes made in the first yeare of the Queenes Majesties raigne deceased but that it bee a No Lords spirituall present in parliament 1 Eâ— cleare case that the ancient jurisdiction preeminences rights and priviledges of the kings Crowne were restored that poperie and superstition was banished and the doctrine of the holy Gospell harboured only by the Queene the Lords temporall and commons what more plaine evidence or better prooâ—e can there be that the Lords spirituall by any necessitie be neither principalls nor accessaries neither branches nor buds nor any essentiall member of the house of Parliament And of this opinion are the soundest Historians and sincerest Divines of our age In the fifteenth yeare of King Edward the third saith Master Fox divers petitions being put up in Parliament against provisions comming Act. Mâ— fol. 320. from Rome the Kings answer and agreement was made in form following viz. It is agreed by the Kings Earles Barons Justices and other wise men of the Realme That the petitions aforesaid bee made in sufficient forme of law Where it is to be noted saith hee that at the grant hereof the consent of the Bishops is neither named nor expressed with the Lords of Parliament and yet the Parliament standeth in his full force notwithstanding At an other Parliament Act. Mo. 525. saith he William Wicham Bishop of Winchester for a slanderous report savouring of a contumelious lye and proceeding of a subtile zeale meaning falshood was so by the Duke of Lancaster pursued that by act of Parliament he was condemned and deprived of all his temporall goods And this seemeth to have beene done saith Master Fox without assent and against the wills of the Lords spirituall for afterward at an other Parliament great suite was made by the Clergie for deliverance of the said Bishop and being asked a subsidie in the Kings behalfe with great lamentation they complained for lacke of their fellow and brother of Winchester and denyed to joyne themselves in any tractation of any such matter And in another Parliament holden at Yorke in the sixth yeare of King Edward the third all such Act. Mo. 519. lawes as then passed and were concluded by the King Barons and Commons were good notwithstanding the absence or malice of the Lords Spirituall For it is recorded saith he that onely the Archbishop of Yorke the Bishop of Lincolne and the Abbots
of all the Recorders in all other Cities and Boroughs of the land I doubt not but he shall finde them all to have been farre from any least shew of ambitious working the Citizens and townsmen to nominate and elect them Moreover as these noble Persons these sage grave learned and christian Gentlemen quietly and in all peacable maner with upright and good affection and judgement and without ambition have beene chosen by the Citizens Townes-men and Boroughmasters to the office 〈◊〉 â—ecorderships So likewise many and sundry honourable Counsellorâ— have beene and as occasion is Honorable Counselors chosen high stewards without ambitious working ministred are daily elected by Citizens and Townesmen to be their high Stewards Sir Francis Knolles an honourable counsellor and one whose faith was famous among the Churches as well abroad as at home by the election of the citizens of Oxford remained untill he died high Steward of the Citie of Oxford The right honourable Sir Francis Walsingham by the common counsell of Ipswich was made high Steward of the same towne after whose decease the same common counsell by their election surrogated into the same place the right honourable the L. Hunsdon late L. Chamberlain The right honourable S. Christopher Hatton L. Chancelor of England by the townsmen of Cambridge was chosen to be high steward for the town of Camb. The right Ho. the old F. of Arundel and after him the right Ho. E. of Lincoln and after his death the right honourable the L. high Admirall of England now E. of Notingham by the boâ—oughmasters of the town of Gildford was elected to be high steward of the towne of Gildford Of all which honourable persons and of all other their Peeres chosen in other places of the Kingdome by the same meanes to the like offices there is great reason and just cause for the reverend Bishops to carry a more reverend estimation towards them than to burden them as ambitious persons to have sought their places at the hands of men affected and wanting right judgement As for any other offices of credit dignitie charge and government in the common weal now remaining in the choise of the commons it may easily be proved that the common people in sundry places have bent and opposed themselves against ambitious persons who by sinister and indirect meanes have hunted for preferment at their hands And what if it cannot be gain-said but that some publike officers chosen by publike applause of the people have corruptly behaved themselves in their charges and have not so equally and indifferently distributed justice to all degrees as it became them yet this their misdemeanour can no more justly be laid as a fault nor any more disgrace or discountenance the ancient and commendable forme and manner of election than the hypocrisie or counterfeit zeale of an evill man ordained by the bishop to be a Minister can be imputed unto his letters of orders or manner of ordination Besides if none be able Knights of the shires â—â— other officers chosen by the people without trouble to the state to prove that the choise of the Knights of our Shires Coroners of the Counties Verderers of the kings forests resting in the free voices and consents of the freeholders that the nomination of the high Constables being in the disposition of the Justices of peace at their quarter sessions that the choise of our peti-Constables third Boroughs Tythingmen Churchwardens wardens for the highwayes overseers for the poore side men and such like remaining altogether in the free elections of the suitors to courts Leets and lawdayes and of the inhabitants and Parishioners of every Village Hamlet or Tything have beene troublesome to the Lievtenants of the Shires to the Stewards of our Courts to the Lords of our liberties nor to the ordinaries of the Diocesses If I say there be not any one man able to bring forth some few persons for many yeares passed by whome the Officers and Magistrates of the Queens peace have been sued unto and importuned for the pacification of any strife contention or debate of any busie head or ambitious person raised among the people about the choise of any one of these Oficers then I say it is meet and it importeth the Lords Bishops very deeply that for ever hereafter they be silent and never any more utter so Pag. 8. vile a slander against so noble a people as are the people of England viz. that upon affection and want of right judgement they will easily be led by ambitious persons to preferre unworthy persons unâ—o all Offices of gaine or dignitie Or that this Nation of England upon light causes is more enclined to broyle and trouble than any other And to speake the truth as daily experience teacheth us what No feare of trouble about the choice of an ecclesiasticall Officer seare of trouble is there likely any way to ensue by reason of dissention and ambition among the people in the choise of an ecclesiasticall Officer when most of the people shall rather shun and eschew than long or desire to beare any ecclesiasticall office The common people among whom I dwell use oftentimes many delayes yea they procure what favour and friendship they can not to be appointed to any the inferiour Offices before specified And why doe they so but becauâ—e those offices be full of bodily care and trouble And is there then any Christian knowing how the whole soule mind and spirit of a man is altogether to be imployed in the discharge of a spirituall function that will dissentiously and ambitiously seeke to be chosen an Elder The admonitor telleth us that men by experience know that many parishes upon some private respect doe send their letters of earnest pag. 79 commendation for very unfit and unable persons insinuating thereby what an inconvenience might follow if Parishes had the whole direction and order to sound out who were fit and able persons But as this fancie was never yet by any of sound judgement on our behalfe so much as once thought much lesse insisted upon so may it please the reverend Bishops to be advertised that the meanest and simpliest parishioner among a thousand can quickly retort this reason against their Lo. viz. that no parishes by letters of commendation can commend unso any bishop any person as an able and fit man unto any particular parish or speciall charge unlesse the same or some other bishop have formerly ordained him and approved him to bee a fit and able person for every place And how then were it possible if the choice of having one to be their pastor were wholly in the hands of a parish that the same parish could choose any worse men any more ignorant and unlearned men than their Lords have commended unto us For have they not chosen sent and commended such unto us as know not a bee from a batle doore as uneth know to Ministers sent unto the people which know not a be from
the Realm of Ireland of the K. highnesse most honourable privie Councell chosen by him for the assistance of his Royal person in matters appertaining to his Kingly estate and lastly of the supreme and grand Councell of the three estates in Parliament for matters concerning the Church the King and the common weale For whether respect be had unto the secret affaires of the Kings estate consulted upon in his Highnesse Councell Chamber by his privie Councellers or whether we regard the publike tractation of matters in Parliament there can be no man so simple as not to know both these privie and open negotiations to be carried by most voices of those persons who by the K. are called to those honourable assemblies And what a vaine jangling then doth the Admonitor keepe and how idely and wranglingly doth he dispute when against the government of the Church by Pastours and Elders hee objecteth that the same will interrupt the lawes of the Realme that it will bee great occasion of partiall and affectionate dealing that some will incline to one part and that the residue will be wrought to favour the other and that thereby it will be a matter of strife discord schisme and heresies Howbeit if never any of these extremities and dangers have fallen out in the common weale by any partiall ot affectionate dealing of the Kings Deputies Presidents Judges Justicers and other Officers and Ministers associated unto them for the administration of Justice or equitie in any of the Kings civill Courts how much lesse cause have we to feare any partialitie affection working inclination favour strife debate schismaticall or hereticall opinions if once Pastours and Elders in every Congregation and not throughout a Diocesse one Bishop alone had the spirituall administration of the Church cause Can many temporall Officers Justicers and Judges rightly and indifferently administer the Law and execute jâ—stice and judgement without that that some doe incline to one part and without that the residue be wrought to favour the other part And cannot spirituall Officers dispatch spirituall affaires without that that they be partially and affectionally disposed What is it so easie a matter that the Ancients of God and the Ministers of Christ can the one part incline to righteousnesse and the residue be wrought to favour wickednesse can some incline to God and unto Christ and can other some be wrought to follow Satan and Antichrist For what other controversie is requâ—red to be decided by Pastours and Elders than the controversie of sin between the soule of man and his God And is there any Christian Pastour or Elder that will be wrought rather to favour the sinne of a mortall man than the glory of his immortall God But to leave the state of the kingdome and common weale and the good usages and customes of the same let us come to the state of the Church it selfe and to the lawfull government thereof established even amongst us at this The government of the Church ought not to be by one alone day For whatsoever our Reverend Bishops practise to the contrary yet-touching ordination and deposition of Ministers touching excommunication and absolution touching the order and rule of Colleges Cathedral Churches and the Vniversities the Ecclesiastical law doth not commit the administration of these things and regiment of these places to any one person alone The Vniversities admit not the government of the Chancellour being present nor of his Vicechancellour The government in the Vniversities not by one alone The government in Colledges not by one alone himselfe being absent as of one alone the Doctors Procurators Regents and non-Regents have all voices and by most oâ— their voices the Vniversitie causes take successe The businesses of Colledges by the statutes of their founders are commended to the industrie and fidelitie of the President Viceprovost and Fellowes unto the Provost and Viceprovost and Fellowes unto the Warden Sub-warden and fellowes unto the Master and fellowes and unto such like Officers and fellowes The Cathedrall The government of Cathedrall Churches not by one alone Churches their livings and their lands their revenues and their dividents their Chapiters and their coâ—ferences depend upon the will and disposition of the Deane and Chapiter and not of the Bishop alone Neither can the Bishop alone by any ancient canon law pretended to be in force place or displace excommunicate or absolve any Ecclesiasticall person without the judgement of the Chapiter Ex de exces Prela c. 2. Exc. de hiis quaes cons cap c novit And aswell by a statute 21. H. 8. c. 13. as also by the booke of consecrating Archbishops c. the presence of divers Ministers and the people is required at the ordiâ—ation of every Minister As for the deposition or degradation of Ministers under the correction of the reverend Whether the degradation of a Minister be warrantable Monsieur de â— Iesis 164. in the 2 book of the Masse Bb. be it spoken I think they have not so much as any colour of any law for it The form of the degradation of a popish and sacrificing Priest by the Canon law can be no pretext to degrade a Minister of the Gospell because a Minister of the Gospell is not set into his charge per calicem patinam with a cup full of wine and dish full of hostes neither receiveth hee any character at all of a shaveling priest And because a Minister of the Gospell is ordained only after that manner which the statute law hath appointed how should the ordination made by so high an authoritie be undone by any other power unto the former manners of the administration of the causes of the Vniversities Colledges and Cathedrall Churches may be added the execution of Ecclesiasticall jurisdiction committed The ecclesiasticall Commission exercised by many commissioners and not by one heretofore by the Queen unto the Ecclesiastical Commissioners For althought by the words of the statute her Highnesse had full power and authoritie by her letters patents to assign name and authorize any one person a naturall borne subject to execute spiâ—ituall jurisdiction yet neverthelesse according to the laudable usages and customes of her Kingdome and courts temporall she evermore authorised not one alone but divers and sundry aswell temporall as Ecclesiasticall persons for the execution thereof Which manner of The ecclesiasticall commission commanded by the Bishops if it please the King may be enlarged unto all parishes wherin are godly preaching Ministers commission because the reverend Bb. commend the same and avow that it would do more good if it were more common it cannot but seem to be a most gratefull thing unto all good men especially unto those reverend Fathers if humbly wee beseech the king that his highnesse would be pleased to make it more common And therfore in the behalfe aswell of the reverend Bb. as of all the learned and grave Doctors and Pastours of every Church we most instantly
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
that it is an errour by their leave in the Church of Saxony not to have Arch. and Bb. in name if so be they hold it lawfull to have Archb. and Bishops in office For what should a necessary officer doe without a convenient name And touching the Church of Tigure it is not materiall what the same Church doth thinke not tolerable or doth more mislike but what she ought not to mislike or what it ought not to think tolerable And then what a poore proofe is there here made trow we for the confirmation of the corruptions in the Church of England by producing of two witnesses two errours in the Church of Tygure For not to like a Senate of Elders and more to mislike excommunication is more and more to slide out of the right way And sithence we have the whole Christian Kingdome of Scotland the most famous and renowned Church of Geneva and sundry Churches by his confession in other places to be lights unto us and to agree with us in a government not much unlike to that which we desire wee have not onely great cause to rejoyce in this our desires but also to be much comforted and encouraged by these examples by all holy meanes to labour the full accomplishment thereof For by this testimony and by these instances given and produced by himselfe the Admonitor hath quite and cleane weakened and disabled his owne generall position opinion and thoughts of the unnecessaries and inconvenientnesse of having the Apostolicall and Primitive government in the time of Peace under a Christian Magistrate For hath not the free Kingdome of Scotland the free Citie of Geneva and other Soveraigne and free Princes Potentates and powers not being under Tyrants and persecution received the same as being the best the fittest the convenientest and most necessary government yea even in the time of peace and under their Christian Magistracy for the state of their Countrye and disposition of their people And as touching rites and ceremonies we affirme not that every rite ceremony or circumstance to be used in the externall execution of Church governement is precisely set downe in the holy Scriptures but touching the substance of government thus we say and thus we hold viz. that the Officers and Governours appointed by our Saviour Christ to be over the Churches in every Countrey observing the generall rules of decency comelinesse and edification have liberty with the consent of their Christian King or other supreame Magistrate to choose what rites and ceremonies they in wisdome and godlinesse shall thinke most convenient And therefore we grant that the officers of Christ in the use and dispensation of their functions are no more exactly tyed by any direct commandement in the holy Scriptures to use at all times and in all places one only manner of rites and ceremonies than were the Priests of the Law to use all one manner of knives to kill their sacrifices or the siâ—gers to sing all songs after one manner of tune or upon one kind of instrument or then are Kings and Princes in all Countries commanded to use all kind of circumstances in the outward execution of civill justice in their Common-Weales As then as it was lawfull for the Priests to have knives and trumpets of diverse fashions and for the Levites to have their Musicall instruments of diverse formes Nay as sundry Justices of Peace in sundry Shires of the Kingdome are not bound to keep their quarter Sessions all in one day to begin and to breake their Sessions at one instant to stand to sit and to walke whensoever they speake to weare all one fashion hats caps cloakes or gownes and such like so likewise is it with the Bishops Pastors and Elders of the Church In the ministration of Baptisme there is no direct commandement that the vessell to hold the water for the Childes Baptisme should bee of stone of pewter of brasse or of silver whether the Minister should descend to the lower end or the child ascend to the upper end of the Church Whether the child should have a great handfull or a little sponefull of water powred upon his head In the celebration of the Lords Supper it is directly commanded that the people shall stand fit or passe whether it should be celebrated every first or second Sabboth of the moneth whether in the morning at noone or at night In the ordination of Ministers there is no just proofe to be made that any certaine number of Ministers are to lay on their hands that the day of ordination should bee alwayes one that the Minister should bee of such an age or that the prayers should be of this or that length and forme of words And therefore touching these and such like things of indifferency wee agree with the Admonitor and Reverend Bishop that one ferme of externall orders rites and ceremonies is not of necessity to bee in every Church because there is no such order witnessed by the holy Scriptures to be of necessity But touching the joynt and severall functions of Bishops Pastours and Elders that they or any of them should in any age or state of the Church of Christ bee wanting or that such offices as by warrant of the Scripture are coupled together should bee appointed to execute any functions in the Church then such persons onely as for their functions have warant from the holy Scriptures wee cannot in any sort thereunto agree And why forsooth because all both offices and Officers in the Church must only and alonely bee derived from our Saviour Christ as from the only fountaine and bestower of all officers and offices in the House of God And therefore albeit wee should grant as the Admonitor hath said that the outward order used in the Primitive Church touching rites and Ceremonies by Bishops Pastors and Elders is neither necessary nor so convenient as it may be otherwise in the time of peace and under a Christian Magistrate yet we may not hereupon imply as his negative implyeth viz. that Bishops Pastors and Elders or any of them are neither necessary nor so convenient officers or governours as other officers of mans invention might be For which our opinion by the help of God we shall assay as before hath beene mentioned in an other place to lay downe out of the Word of God some just proofes according to the Admonitors request that there ought to be in all ages and states of the Church this outward order and forme of government viz. that Bishops Pastors and Elders ought evermore to be spirituall governours and that evermore they and none other ought to use that essentiall kinde of spirituall government and none other which was practised by the Bishops Pastors and Elders in the Apostolicall and Primitive Church Alwayes leaving the outward rites and ceremonies of their spirituall kinde of governement to bee indifferent as erst hath beene said FINIS Speeches used in the Parliament by Sir Francis Knoles and written to my LORD Treasurer Sir William