of the Exchequer my Lord chiefe Baron sir Humphrey Daverport and the other Barons of the Exchequer refusing to grant me a certiorarj to the High Commition Court to command them to certfie the cause to permit mee to pleade to the foresaid fine did the 10. of May 1633. commit me to the Fleet in execution of the foresaid fine there detained me a full yeare untill I to procure my liberty paid the fourth part of the said fine to Mr. Motershed pecunijs numeratis and stal'd the other three parts to the Kings use And for which and also for a Petition delivered at the Counsell Table to crave justice therein according to his Majesties mandate under sir Edward Powels hand to my Lord chiefe Justice sir Iohn Bramston and the other Judges of the Kings Bench court dated the 29. of December 1635. and delivered with mine owne hand to the said Judges in open Court the first day of Hilary Tearme 1635. I was by my most reverend Diocesan and provinciall William Lord Archbishop of Cant. his Grace and other right Honorable Lords of his Majesties most honorable privie Councell on the third day of February 1636. committed to custodie of the Warden of the Fleet by a warrant wherein no cause of commitment was exprest and there detain'd a prisoner by him untill Trinity Tearme 1639. and then upon an habeas corpus issuing out of the Kings Bench Court I was brought to that court in Trinity Tearme 1639. and the foresaid warrant for my commitment returned and then I was presently bayled and thereby tyed to appeare in court divers daies both that Tearme and the Tearme thence next following and because none of the Kings Counsell in all that time came in against me I was on the last day of that Michaelmas Tearme 1639. delivered from the said baile and imprisonment by the joynt consent of all the Reverend Judges then of that court As I formerly had beene in the same court Termino paschae 1629. after the first two yeares imprisonment upon the foresaid originall matter returned to an habeas and fully debated by Counsell on both sides and Mr Justice Bertley then the Kings Sergeant in open court professing himselfe fully satisfied And for the former originall matter onely may for nothing at all in the judgement of the Law even for the foresaid sentence of deprivation and degradation charging mee with grievous and enormous crimes excesses delicts mentioned in the said Articles and those Articles not given in evidence nor found by the Jury in the speciall verdict betweene Allen and Nash entred upon record in the Kings Bench court termino Sancti michaelis 8. Car. rot 508. my Lord chiefe Justice of that court sir Iohn Bramston did for himselfe and his brethren Termino Trinitatis 1637. affirme the foresaid sentence and deliver his opinion against me for the intruder Robert Carter Whence it followeth that if the Commissioners aforesaid first finall sentence against me the 500 pounds fine thereby imposed upon me the two yeares imprisonment thereby sustained by me be just legall then all the other sentences censures and punishments following and depending thereupon may be just and legall But if the former the only ground of all the rest be unjust and illegall then all the other must of necessity be unjust and illegall And whether the former be just or unjust let the indifferent reader judge impatially upon the perusall of the following argument MY Honoured Lord cheife Iustice and my Honored Iudges the first thing in this Controversie concerning the points of the Canon law in question whereunto cheifly I am to speake is the very stating of the controversie it selfe between me my adversaries And for that purpose in the first place I humbly desire your Lordship the Court to observe that the defendants charge me with faults of severall degrees some principall and especiall others inferiour and accessory· The Principall and Especiall are two as appeares by their first finall sentence alleaged in their plea wherein they say that upon the opening of the cause they found the aforesaid George Huntley charged in the said Articles with these two perticulers principally (a) This word specialiter in this sence is 3. times used in the defendants plea. twice in the first part of their first finall sentence and once in the Commission of 14. Articles obiected against me 12. doe expresly mention my refusall to Preach the Visitation sermon as a fault or prepare the way theieunto and the fourth saith that I offered two or three peeces to the Arch-deacon to procure one to preach that sermon only the sixth and thirteenth Articles doe not mention it or especially first that he refused to preach a visitation sermon at the Arch-deacons of Cant. Doctor Kingsleys command contrary to his Canonicall obedience and secondly that he raised an opinion amongst the Clergy that the said Arch-deacon had no power to command him the said Huntley or any other incmbent to preach the said visitation Sermon The Inferiours or Accessories are foure first that the said Huntley came unsent for or uncal'd for to Master Arch-deacon aforesaid he being in his visitation amongst the Clergie and sitting there to heare causes Secondly that the said Huntley did then and there very malepertly and irreverently charge the said Arch-deacon of falsehood or injustice thirdly that the said Huntley did at the same time and place in a very arrogant irrespective manner lay downe an hundred pounds in Gold upon the table and offered to lay wagers with him the said arch-deacon that he had done him the said Huntley wrong or the like in effect and fourthly and lastly that the said Huntley refused to performe his submission conceptis verbis as was enioyned him by the Commissioners and therein gave a great affront and contempt both against his Maiesties supreame power and authority in matters and causes Ecclesiasticall and also against the high commission court to whom the same by letters patents under the great seale of England is delegated and committed And for these six particulers the defendants confesse that they imprison'd me two yeares namely from the nineteenth day of Aprill 1627. to Aprill 1629. In which moneth upon my appearance in this court the first day of that Easter Terme 1629. to save my baile you Master Iustice Heath then the Kings Attourney Generall were first call'd for by the Court in the Kings behalfe against me and you came and confest that you had nothing to say against me and then Master Iustice Bertley being then the Kings Sergeant whose (b) Master Iustice Bertley at this time was in the custody of the Sheriffe of London absence I much lament whose presence I much desire was called for by the court for the same purpose against mee and hee came and confest that he had formerly spoken twice against mee upon the matter return'd to the habeas corpus which was the very same for substance that is now pleaded
matter it now appeared that the said Mr. Huntley in the moneths and yeares articulate especially since the 27 of March 1625. had beene by the said Mr. Archdeacon divers times willed or required to Preach a Uisitation Sermon and had time sufficient to provide himselfe that Mr. Huntley without all due respect of Mr. Archdeacon or the canonicall obedience hee ought unto him with words of scorne and contempt refused to performe that duty as was justified out of his owne answers both in words and writing that Mr. Doctor Kingsley hereupon appealed to the Lord Archbishop of Cant. his Grace who is immediate Ordinarie and Metropolitane to them both for redresse herein that his Grace upon notice thereof wrote a particular letter to said Mr. Huntley the true copy whereof after the originall shewed to Mr. Huntley was left with him and therein advised and required Mr. Huntley to prepare himselfe to preach a Uisitation Sermon he having time enough given him to prepare himselfe for that purpose which commandement of his Grace the said Mr. Huntley slighted and utterly refused to performe that duty and not desisting after such refusall came unsent for or uncalled for to Mr. Archdeacon aforesaid being in his Uisitation amongst the Clergie and sitting there to heare causes very malepartly and unreverently charged him the said Mr. Archdeacon of falsehood or injustice and in a very arrogant and irrespective manner laid downe an hundred pounds in gold upon the table and offered to lay wagers with him the said Mr. Docter Kingsley the Archdeacon that he had done him the said Huntley wrong or the like in effect without any due respect of the said Archdeacon his person or place and to the encouragement of other refractary persons as was there also proved to the Court for which his grosse abuses and contempts the Court held him well worthy to be punished and so much the rather because the court was of opinion and so proncunced that the said Mr. Huntley was by the Lords Grace of Cant. his Ordinary the Archdeacon aforesaid injoyned to doe no more then what by Law and custome according to his canonicall obedience hee was tyed to performe yet neverthelesse the court at this time reserving to themselves their further censure as occasion should be offered for the present only ordered him the said Mr. Huntley upon the commandment of the Archdeacon of Cant. upon a competent warning to bee given him to Preach a Sermon at the next Uisitation to be holden by Mr. Archdeacon of Cant. and afterwards before the Clergy in the said Uisitation to acknowledge his fault in conceptis verbis as shall be prescribed by any three or two of the Commissioners Judges of the Court unto whom it is now referred to set down the same he is juditially admonished and required to appeare here personally in this place the second court day of the next tearme to certifie of his due performance thereof accordingly whereupon afterwards namely one the 19. of Aprill Anno Dom. 1627. at Westminster aforesaid in the County of Middlesex aforesaid the aforesaid George Huntley then and there being publikely called appeared personally And being then there by the foresaid most Reverend father in Christ Lord the Lord George by Divine providence Archbishop of Cant. primate of all England and Metropolitane Richard of Durham Iohn of Rochester Lewis of Bangor Thomas of Coventry and Lichfield William of Bath and Welles Theophilus of Landaffe Robert of Bristoll respectively Bishops Dudley Digges and Henry Marten Knights Iohn Donne Walter Balcanqnall William Kingsley Thomas Worrall professors of Divinity Edmond Pope Hugh Barker Doctors of Law Commissioners aforesaid demaunded whether hee the said George had performed the foresaid order made the foresaid eigth day of February Ann. Dom. 1626. foresaid as is aforesaid or no to wit whether he had Preached his Uisitation Sermon according to the requisition and command of the foresaid Archdeacon of Cant. and made his submission conceptis verbis before the Clergie as was injoyned him by the foresaid Court of high Commission aforesaid he the said George Huntley then and there acknowledged that he had done neither and then and there alleaged frivolous matter in excuse thereof to witt that Mr. Archdeacon aforesaid had not warned him by a lawfull processe to Preach But it appeared to the said Court of high Commission by affidavit made that the foresaid Master Archdeacon had given him sufficient warning by a publike officer and a competent time to provide himselfe to Preach a Uisitation Sermon and he being a man sufficiently qualified by his gifts of learning for that purpose not withstanding contemptuously refused to performe his duty therein and also that he the said George Huntley refused to performe his submission conceptis verbis as was enjoyned unto him The said Court of High Commission unamimi consensu prononuced him guilty of a great affront and contempt not onely to the said Mr. Archdeacon and the Lord Archbishop of Cant. primate of all England and metropolitane and his the said Huntleys immediate Ordinary unto whom the said Huntley is tyed by oath to performe canonicall obedience but also against his Majesties supreame power and authority in matters and causes Ecclesiasticall and this Court unto whom the same by Letters Patents under the great Seale of England is delegated and committed and therefore the said Court of high Commission held the said George worthie to be punished and first fined him in five hundred pounds to his Majesties use committed him to the new prison namely to the custody of Brian Wilton then warden of the new prison and there ordered him to remaine untill he shall give sufficient bond with suerties in a competent summe to his Majestie use aswell for the payment of his fine as it shall bee mitigated as for the performance of his submission heretofore enjoyned him c. Now these two parts of the High Commissioners first finall sentence containe the whole originall matter for which alone the High Commissioners aforesaid did fine me five hundred pounds and imprisoned me on the 19 day of Aprill 1627. and kept me in prison two whole yeares And for which alone without any other crime or fault afterward objectd against mee in any new articles or in any additionalls or superadditionalles to the first articles the Commissioners did on the 25 day of Iune 1629. by a sentence wherin they charge me with grievous and enormous crimes excesses and delicts mentioned in the foresaid articles in which articles there is never a crime charged upon me deprive and degrade me and thereupon kept me a prisoner untill the 10 day of May 1633. And for which alone on their last court day in Hilarie Terme 1630. they did excommunicate me because I would not deliver up my orders diaconatus presbyteratus And for which alone yet neither certified into the Exchequer by the h High Commissioners together with the fine aforesaid nor legally seene nor understood by the Barons
the other to the freedome and liberty of all his free-borne Subjects who are not tyed to any lawes but to those onely whereunto they give their consents did prettily and wittyly invent and contrive this trimme and almost undiscernable alteration to cure these two deadly woundes for which Sir you did then deserve a better fee from the Commissioners than either from his Majesty or from his other free-borne Subjects But my Lord though Master Justice Heath hath with that one salve well cured those two sores yet therein he hath not rightly and truely exprest and discover'd the nature of canonicall obedience for Canonicall obedienee hath no reference to custome that 's customary obedience which is due to custome neither hath canonicall obedience relation to the laws in generall of what kind soever they bee but onely to that part and kind of law which is called the canon law for canonicall obedience is such obedience as the canons require and such obedience as the canons require is canonicall obedience they are convertible of the same circuit and circumference just even whatsoever is within compasse of canonicall obedience is within the compasse of the canons and whatsoever is without the compasse of the canons is without the compasse of canonicall obedience so that if I am bound by my canonicall obedience to preach the Arch-deacons visitation Sermon then I am thereunto bound by some canon and if not by some canon Thesis tertiae probatio then not by my canonicall obedience And that this is so that canonicall obedience is such obedience as the canons require I will now endeavour to prove by foure reasons such I hope as shall satisfie your Lordship this Court and all men that will be satisfied with reason and I hope shall silence them that will not with reason be satisfied Ratio 1 My first reason to prove that Canonicall obedience is such obedience as the canons require is drawne a vi virtute ipsius vocis Canonicae from the very sence and signification of this word Canonicall for as legall obedience is such obedience as the law requires Evangelicall obedience such obedience as the Gospell requires customary obedience such obedience as the custome requires arbitrary obedience obedience ad arbitrium praelati according to the praelates pleasure blind obedience such obedience as is requir'd of blind men and unreasonable obedience such obedience as is requir'd of unreasonable creatures so a vi virtute ipsius vocis canonicae from the very strength sence and signification of this word Canonicall Canonicall obedience must be such obedience as the canons require And this reason is further confirmed by an argument drawne (h) Hor argumenti genus quandoque acuminis quandoque virium multum quandoque utrumque habebit Eleganter itaque apud Terentium est Homo sum humani nihil ame alienum puto Rod. Agricola de Inventione lib. 1. cap. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist Secundo Topicor libr. His illud adiicere ridiculum putarem nisi eo Cicero uteretur quod coniugatum vocant Vt eos qui remâ—ustam faciant iuste facere quod certe non eget probatione Quntil Institut lib. 5. a conjugatis or denominativis a toprike place delivered by Aristotle and Quintilian and approved and put in practise by Saint Iohn 1. Ep. 3. chap. 7. ver there the holy Apostle saith Hee that dâ—th righteousnesse is righteous even as he is righteous that is as our Lord and Saviour Jesus Christ is righteous In which wordes Saint Iohn argueth from one conjugate to an other from doing of righteousnesse to being righteous and so after his example I argue he that doth the canons is canonicall he that performeth obedience to the canons performeth canonicall obedience And that this is true sence of this word canonicall appeares by the authority of William Lyndewode in the fifth booke of his Provincicall titulo de Haereticis cap. Reverendissime where he doth thus expound this word canonicall (i) Item eodem lib. tit de Purgatione canonica cap. statuimus verbo Canonice canonice id est secundum exigentiam Canonum canonice id est secundum ex gentiam canonum canonically that is saith hee according as the canons require And this my Lord is my first reason drawne a vi virtute ipsius vocis canonicae together with an argument drawne a Conjugatis or Denominativis a topicke place deliver'd by Aristotle and Quintilian and approved and put in practise by Saint Iohn and confirmed by the authority of William Lyndewode My second reason my Lord is taken from the generall consent of learned men not onely in our owne church and of our owne religion but also from those who though they are of our religion yet they are not of our Church I meane of our nationall Church nay from those that are neither of our church nor of our religion And this reason being drawne from the joynt consent of learned men ought to be of great force and authority according to that of vincentius Lerinensis quod abomnibus quod ubique quod semper tenetur illud pro certissima veritate habendum tenendum est I will begin my Lord with those that are furthest from home My first Man is Bellarmine a learned man in the judgement of those that are soundly and deepely learned on our side my most reverend diocesan and provinciall my Lords Grace of Cant. in his relation of the conference betweene his Grace and Master Fisher the Iesuiâ—e doth divers times highly magnifie him for his acute solid and profound discourse upon divers points of controversie sect 3. num 2. num 17. And Doctor Rainolds speaking of Bellarmine and Campian Stiles them nobile par Iesuitarum and prefers Bellarmine as far before Campian notitia rerum as he doth Campian before Bellarmine structura verborum This learned man in a particuler treatise immediately following his bookes of Justification the title whereof is de bonis operibus in particulari 10. chap. speaking of Canonicall houres doth there thus describe them canonicall houres saith he are such houres as are appointed by the canons to praise God and to pray unto God and these houres saith he are call'd canonicall because they are assigned deputed and appointed by the canons to that purpose And Petro soave Polano the learned authour of that excellent history of the councell of Trent in his sixt booke doth give the same reason of the same name Collegiate churches by their institution have this function among others to assemble themselves in the churches to praise God at the houres appointed by the canons which saith he are therefore call'd canonicall and Brentius a learned man of our owne religion in his Confessione wittenburgensi cap. 20. de Horis Canonicis doth give the very same reason of the same name that the two former doe Againe Gregory the great in the 11. booke of his Epistles and 51. Epist to Iohn Bishop of Panormum and received into the body
of the Canon Law writes thus Si quid de quocunque clerico ad aures tuas pervenerit quod te juste possit offendere facile non credas nec ad vindictam te res accendat incognita sed praesentibus Ecclesiae tuae senioribus diligenter est perscrutanda veritas tunc si qualitas rei poposcerit canonica districtio culpam feriat delinquentis Let a Canonicall punishment bee inflicted upon the offender for his offence now what 's this canonica districtio or canonica paena The most learned Bishop Bilson in that excellent treatise of his De perpetua Christi Ecclesiae gubernatione 11. cap. interpreting the former words of Gregory doth in these very words shew paena canonica 1. paena canonibus congruens A canonicall punishment that is a punishment agreeable to the Canons and so doth William Lyndewode in the 5. booke of his Provinciall tit de Paenis Cap. Evenit verbo Canonicas paena canonica id est paena a sacris canonibus approbata A canonicall punishment that is a punishment approved by the Canons and (k) Iohanes de vanquall in Breviario in sextum Decretalium fol 43. tit de supplenda praelatorum negligentia ultima conelusio Episcopum excommunicatum pro culpa sua punire potest Archiepiscopus paena canomica et arbitraria Probatur hic in fine tex glo fi et facit c. de causis de offi deleg si dicatur puniri debet paena arbitraria tum non canonica quia paena canonica dicitur quae est in canone iure expressa ut in l. siqua paena ff de verbo sig solutio Dicit Io. Mo. Archid. quod paena expressa de terminata a Canonibus proprie dicitur canonica ut in dict lo. Siqua paena Illa tamen quae non est expressa determinata a canone datur tamen secundum moderationem canonum qualitate personae quantitate culpae consideratis dicitur proprie completive arbitraria eo quod iudex sua discretione supplet quod in canone non est expressum potest tamen talis paena dici canonica saltem inceptive quia per canones dirigitur iudex in moderatione Iohanes de vanquall Iohanes Molanus and Archidiaconus do all make this the difference betweene a canonicall and an arbitrary punishment that the one is expressed in the Canons the other is not but left to the discretion of the Prelate Paena Canonica dicitur quae in Canone jure est expressa determinata illa autem quae non est expressa determinata a canone est arbitraria Now to recollect the force and strength or this argument If canonicall houres bee so called because they are assigned deputed and appointed by the canons as in the judgement of Brentius Bellarmine and Petro Soave Polano they are and againe if a canonicall punishment bee such a punishment as is agreeable to the Canons such a punishment as is approved of the canons such a punishment as is expressed and determined in the Canons and if not expressed and determined in the Canons not a canonicall but an arbitrary punishment in the judgement of Bishop Bilson William Lyndewode Iohanes de vanquall Iohones Molanus and Archidiaconus Then by the same analogie canonicall obedience must bee such obedience as is assigned deputed and appointed by the canons such obedience as agreeable to the canons such obedience as is approved by the canons such obedience as is expressed and determined in the Canons otherwise it is not canonicall but arbitrary obedience and this is my second reason which being drawne from the joynt consent of learned men ought to be of great authority according to this former rule of Vincentius Lerinensis quod ab omnibus quod ubique quod semper tenetur illud pro certissima veritate habendum tenendum est My third reason my Lord Ratio 3. strikes the naile on the head and drives it home it is the very definition of canonicall obedience delivered by William Lyndewode in the first booke of his Provinciall tit de maioritate et obedientia cap. Presbyteri verbis in virtute obedientiae where he doth in the former words terminis terminantibus define canonicall obedience thus (l) Nota circa hanc materiam obedientiae quod obedientia quae homini debetur ab homine est debita minoris ad maiorem reverentia Vnde si mandatur id quod iustum est obediendum est si in iustum nequaquam si dubium tunc illud propter bonum obedientiae est explendum Lyndewode Prov. 1. lib. tit de Constitutionibus cap. Quia incontinentiae ver obedientiae Canonica obedientia est obedientia secundum canones constitutiones rite editas et publicatas canonicall obedience is such obedience as the canons and constitutions rightly made and published doe require Now this mans testimony and authority ought to bee of great esteeme for divers reasons first because he is the only glossator commentator upon the provinciall constitutions of our Archbishops of of Cant. Secondly because he was Doctor of both lawes and singulerly verst both in Church governement and in deciding of controversies and the efâ—re doubtelesse did well understand what this canonicall obedience was and unicuique in sua arte perito credendum especially if he be not Judge in his owne case as the Defendants against mee are Thirdly because hee was officiall to Henry Chichley Archbishop of Cant. to whom he did dedicate his provinciall and therefore in all likely hood he would not write any thing therein in the behalfe of the Rectors and Uicars of this kingdome to the prejudice of the Episcopall or Archiepiscopall authority or Sea of Cant. Lastly because he lived about 200. yeares since and was long dead before this controversie was on foote although this * It began at the Archdeacons Visitation Octob. 1624. and continued at his Uisitations Aprill 1625. and 26. and the last day of that Aprill 1626. Articles were exhibited in the High Commission against me and the 19. of Aprill 1627. I was by the Commissioners committed to prison and there continued two yeares and then being delivered on the 29. of Aprill 1629. I did that Tearme begin an Action in the Kings Bench Court against the Commissioners which this 24th day of March 1641. hath depended 12. yeares three quarters hath beene on foot full 16. yeares which is a larger portion of time than the tearme of two mens lives is valued at by the common law and and therefore certainely hee wrote the truth without all respect of persons without prejudice or partiality on either side and for these reasons his definition of canonical obedience standes good against all exception Besides that Canonicall obedience is such obedience as the canons require appeares by the opposite member of the division for the obedience now used in the Church of Rome is either canonicall that is such as the canons require and the Prelate by vertue