though three witnesses at the ciuill law doo directlie depose concerning a mans testament yet if no more were present the testament shall be ouerthrowne and that with good conscience where that law hath place which requireth the seales of the testator and of seauen witnesses The like may be said of our inheritances which descend onelie to the eldest in bloud though the aforesaid reason of S. Paule being sound dooth make all the sonnes heires as before was touched Concerning the other part of his Minor proposition that None can alter or dispense with the law of nature bicause all naturall things are immutable I saie first that by this vntrue translation of All naturall things in steed of All lawes of nature he hath disaduantaged greatlie his owne cause For it is verie notorious that not onelie all naturall things euen the heauens themselues which doo were old as dooth a garment are subiect to mutabilitie but euen particular nature or as the old schoolemen terme it Natura naturata is inuerted and changed by manie casualites as in production of monsters and the naturall inclinations of manie are brideled and almost wholie subdued by good education ioined with the grace of God Euen the heathen philosopher Socrates confessed that he was by nature blockish and lecherous as the Physiognomer had coniectured which yet he had altered by Philosophie But it is also requisite that we should vpon particular discourse of sundrie lawes of nature consider how well the Abstractor dooth vnderstand this law which he bringeth to prooue the vnchangeablenesse of the law of nature By the verie first law of nature no man did seeke any further than to lead a priuate life thinking it sufficient to prouide onelie for himselfe his wife and his children without anie care or thought taking for anie publike or common-weale This appeareth by * Aristot li. 1. Polit. c. 1. Aristotle who concludeth the first and simplest societie and communitie by nature within the straits of a mans owne familie Of that time an ancient * Lucretiue li. 5. poet speaking saith thus Nec commune bonum poterant spectare nec vllis Moribus inter se scibant nec legibus vti Quod cuique obtulerat praedae fortuna ferebat Sponte sua sibi quisque valere viuere doctus Whereof the wise and famous poet Homer giueth also an example of a naturall course of life in the Cyclopes where * Odysi 9. he saith as he is translated verie well Soli habitant nihilhos aliena negotia tangunt Vxori tantùm natis ius dicere docti Now how farre we and almost the sauagest Barbarians that liue vpon the face of the earth are altered and changed from this solitarie priuate life and are reduced to interteine the common-weale and publike benefit of our countrie euen with hazard and losse of our owne life and of all that is otherwise most deare vnto vs we haue experience by the dailie examples of valiant resolute men and of good subiects in all ages Which kind of prodigalitie and profusion if I may so terme it of our owne bloud and incolumitie in regard of the publike-weale of our countrie is greatlie differing from that instict whereby euerie man is naturallie lead by all meanes possible to preserue himselfe from all bodilie dangers Likewise the naturall bond and coniunction of man and * L. 1. §. ius naturale ff de iustitia woman by matrimonie as Vlpian dooth terme it hath beene subiect to changes euen by the * Matth. 19. appointment of the diuine law-giuer Moses yea and moreouer vpon the necessitie of the circumstances therein considerable least that vnkind people should miserablie torment their wiues which they hated is not condemned simplie in Moses by our sauiour Christ But if we will affirme as humane writers doo teach that the first and simplest times of nature had no certeine mariages nor knew no children in certeintie till people had drawne themselues into common societies one with another and with Castrensis that the coniunction of man and woman is of the law of nature the bond of matrimonie with one certeine woman of the law of nations and the solemnities about mariage to be of the positiue law of euerie seuerall commonweale then is the law of nature herein greatlie though iustlie changed and restrained by the prohibitions of marriage in certeine degrées of affinitie and consanguinitie first set * Leuit. 18. downe amongst the people of God and afterward by the light of reason amongst most nations though heathen interteined Yea if matrimonie be of the law of nature then is the naturall libertie thereof verie much abridged by such * Instit de nuptiji § 1. wholesome ciuill lawes which make it otherwise no marriage in those who are vnder their fathers tuition except their expresse assent be first obteined therevnto * Tull. li. 2. de natura deorum l. liberorum 220. §. vlt. de ver signific Another branch of the law of nature is that care of perpetuitie which is ingraffed in man which bicause it cannot be atteined vnto in himselfe onlie he seeketh it naturallie partlie by consecrating vpon due desert his name to immortalitie but much more by substituting as it were his children in his owne place which may florish when he is in decaie and in whome he may séeme being dead in some sort as it were to liue againe And yet it is not vnlawfull no not in termes of diuinitie for a Matth. 19. 1. Cor. 7. a man that can conteine to lead a sole and a single life And that this is a kind of naturall expectation in parents as it were to were yoong and to liue againe in their children it may hereby be gathered bicause b L. isti quidem §. vlt. ff quod metus causa diuers do much lesse estéeme their owne life than the life of their children And euen as by the disputation of philosophers and decision of lawyers it is found that the c Plutarc in Theseo ship wherein Theseus was carried into Candie to subdue the monstrous Minotaure being for a memoriall of that act so long kept by the Atheniens that by continuall repairing of it no one planke or péece of timber was left which it had in the time of Theseus yet was d L. proponebatur ff de iudicijs to be accompted the same ship and as we are to be accompted the same people which we were two hundred yeares ago though no one of that age doo now remaine euen so by the continuall succession of our issue one after another we séeme to be often borne againe and thereby to enioy a kind of immortalitie The next bud of the law of nature is the defense education of our children both bicause of their weakenesse which is such that if we should but denie our helpe to anie other though far more strange vnto vs than they are being in like case we should breake that e Tull.
li. 3. offic law of nature which commandeth man to doo good to man euen in that respect that he is a man and also bicause they are a part of our selues to the propugnation and bringing vp of whome we are taught by the liuelie examples euen of sundrie dumbe creatures f Li. 3. ca. 22. Birdes saith Lactantius almost of all sorts haue a kind of coupling in mariage and they defend their nests as their mariage beds they loue their brood whereof they are certeine and if ye put vnto them anie other than their owne they driue them awaie Beasts also for the rearing vp of their yoong will abide hunger and cold and will not be afraid to endure gréeuous blowes and wounds in their defense So that where Euripides saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * Philustrat lib. 2. c cap. ◠Apollonius dooth iustlie reprehend him in that he should haue better said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bicause not to men alone but to all other liuing creatures their issue is vnto them as deare as their owne life Neuerthelesse we see by dailie experience how much this care of parents ouer their children not without good reason altereth and decaieth when the children are of that strength and discretion that they may well inough prouide for themselues In which respect emancipation of children being growen to yeares was also deuised Another part of the law of nature consisteth partlie in the repelling of danger and iniurie from vs and partlie also in the iust reuenge thereof And although some interpretors of the ciuill law being deceiued by the order set downe doo attribute the repelling of force to the law of nations yet * Dist 2. c. ius naturale Gratian directlie dooth make it of the law of nature It appeareth so to be by that which * In proëmio lib. 7. Plinie saith of beasts There is none of them but if violence be offered he hath anger in him and a mind impatient of iniurie yea and a great forwardnesse to defend himselfe when you hurt him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And * Pro Milone Tullie affirmeth this to be no written law which we haue learned but which we haue drawne euen from nature it selfe So dooth the * L. 3. vt vins ff de iust law also decide this matter of repelling of iniurie and defense of our selues agreablie to that which * Lib. 1. offic Tullie elsewhere to the same purpose noteth Who in the same booke likewise affirmeth that it is a chiefe office of iustice to hurt no man except we be prouoked first by iniuries and this reuenge of iniuries dependeth also and is strengthened by that law of nature which willeth vs to yeeld to euerie man that which is his owne which is done by benefiting the good and punishing the bad least impunitie should entise them and others to offend And that this is naturall we may gather by the like instinct in all beasts For the which cause * Plutarch li. de profectu morum Brasidas being bitten by the hand with a mouse did obserue this that there was no beast so little which would not séeke to reuenge himselfe being prouoked in which * Lucreti li. 5. respect it is said Sentit enim vim quisque suam qua possit abuti Cornua nata priùs vitulo quà m frontibus extant Illis iratus petit atque infensus inurget Yet notwithstanding vpon iust occasions men being wearie to become their owne reuengers and not able to reteine a meane in reuengement thought it best at last to runne to the remedie of lawes for the punishment of wrong and violence as that poet in the same booke testifieth Vpon which occasion though the lawes doo still permit according to the first law of nature a iust defense of our selues yet doo * L. 1. C. vnde vi they inhibit all violence offensiue and reuenge of iniurie to be vsed by vs for the which cause Baldus calleth that moderation of defense the triacle of those lawes which doo permit the repelling of force and iniurie with the like Also that law of nature concerning the succession of children in the goods and lands of their parents being reckoned by Gratian and reported to be a law of nature in sundrie places of the ciuill lawes is no lesse than the rest encountred changed and abridged vpon diuerse occasions by good and necessarie positiue lawes of seuerall nations By the * L. verbis legis 120. ff de ver signifi law of the Twelue rables which continued for manie yeares togither the fathers without any cause might disinherit their children In England it is prouided that the inheritance onelie shall discend vnto the eloest sonne and yet may the father also by sundrie meanes cut off all his children and kindred from the inioyeng of his lands and goods if he be so hardlie disposed Yea both by the ciuill law and common law if the father doo commit treason his children are deuested of his lands and by the one of them made vncapable also to take anie lands by discent from another Another lawe of nature which is reckoned by Gratian is the common dominion of all goods and lands without anie distinction of proprietie to this or that man by reason that the fruits of the earth in that searsitie of men in the beginning was innough and more than sufficient for euerie one But Gratian seemeth to misname the matter something where he affirmeth the possession of things then to haue beene common Which as as it could not possibly be so is it certeine that none without iniurie and breach of the lawe of nature might inuade the possession of that which another had first taken vp for his owne vse so long as he would so imploie it Except we will with Castrensis extend this cōmunitie onelie to vnmooueables as land and not to mooueables bicause such did fall to his share onelie which first did occupie them as he is of opinion Yet not long after and euer since as well vpon further increase of people in the world as for the auoiding of contention and for some punishment of such as otherwise by violence would haue liued idclie vpon other mens labours it was thought meet by generall good liking of all nations to bound out the dominions of euerie man in seuerall proprietie which course all the ciuill nations in the world at this daie doo inuiolablie and lawfullie practise notwithstanding the first law of nature were to the contrarie The next lawe of nature to these is * L. manumisones ff de iustitia that libertie and freedome wherein we are all borne and whereby a man may do what he list so long as he offendeth not In which * Iustit de iure naturali §. ius autens gentium respect the law saith that bondage and seruitude is contrarie to the right and lawe of nature Neuerthelesse it is verie notorious how from time to time it hath beene vsuall to
keepe such in bondage for their punishment who either themselues or whose ancestors had béene taken in warre and saued from death the danger whereof they had incurred and it is yet amongst all nations sauing in France yea euen in manie places of England lawfullie reteined without any disagreement herein from good christianitie Yea it is so farre off from iniustice to restraine and abridge that vnconsined libertie which the liberalitie of this law of nature had endowed vs withall that it was more than necessarie to bridle and bound it within the lists of good and necessarie lawes and ordinances as we see it is vsed at this daie in all well gouerned common-wealths Another of those which Gratian in the place before alledged reporteth to be of the law of nature is this that the proprietie and free vse of those things which liue in the aire the land or sea ought to be in him which shall happen to take them Yet now we * 14. Hen. 8. 1. Trespas see that it is not lawfull for vs to take the wild foules which bréed in the reserued trées though growing vpon that ground whereof we are leassees and farmers for the time Also it is not lawfull for me to take such wild deare as are found within mine owne land being by due course of law once afforressed by the Queene Againe the sturgions whales seales other fishes royall belong not by law vnto the taker of them but vnto the Queene by hir Highnesse prerogatiue Moreouer Tullie saith thus If we will * Paradox 4. weigh things by the weights of nature and exact them according to that rule of generall iustice then those shall as much be blamed that doo but in mind as those which doo in act offend Yet the * L. cogitati ff de paenis law decideth that no man is to be punished for thought onelie and that an endeuour shall not hurt a man when the matter attempted did not sort to any intended effect except it be in those facts which be most enormious and hainous crimes Another law of nature there is which bindeth vs to kéepe touch in all contracts and compacts as to * Dist 1. c. 8. ius naturale restore those things which of trust are recommended vnto our custodie and such like Which is grounded vpon these rules of nature That we may hurt no man That we must giue to euerie man his owne That nothing is more agreeable to naturall equitie than to keepe touch and performe what we promise and That we * L. nam hoc natura ff de cond indeb cugâ—t not to be inriched with another mans detriment Which second rule * In. l. 1. ff de pactis Accursius maketh to be also a bond of naturall equitie though in that respect he be in mine opinion not iustlie reprehended by Castrensis and Iason Yet it is easie to consider how diuerslie the laws of sundrie nations haue altered and changed these rules and lawes of nature For besides that both by the Ciuill and the law of this land a bare compact or promise dooth giue none action bicause no man is hurt by such breach of promise the said lawes doo also suffer without punishment that in contracts men may fréelie one circumuent go beyond another but the Ciuill law restraineth it thus so that he be not deceiued about halfe in halfe in the price In which respect * Seneca li. 2. de ira cap. 27. seq Seneca wiselie saith Who is he which professeth himselfe innocent of all breach of lawes Yet if it were so what a slender integritie is this to be onelie good according to lawe For how much more is the rule of required duties larger than the rules of lawe How manie more things dooth pietie humanitie liberalitie iustice and good meaning require of vs which are out of the publike tables of law Naie we cannot possiblie conforme our selues to that most exact rule of innocencie For we haue doone we haue thought we haue wished we haue fauoured matters differing from it and we are perhaps innocent in some things onelie bicause it hath not fallen out according to our desire Also by our owne law these rules of the right Doctor and student cap. 51. of nature are manifoldlie crossed and altered As if a man kill another with my sword I shall léese my sword If my horsse straie awaie and I doo not heare of the proclamations whereby I may challenge him I shall leese him without any default of mine after a yeare and a daie If my ship make wrecke within a little of the land and all liuing things there in perish though within thrée houres after by the ebbing of the sea all my goods may be come by vpon the drie land yet I shall léese them and they are all come to the hands of the Queene or of hir Nighnes patentées which in shew seemeth not onlie contrarie to the said rules of a C. de naufrag l. 1. lib. 11. nature and rcason but also to these principles That a man ought not to ad affliction to the afflicted nor punish a man doublie though it were for an offense nor to take awaie that which is a mans owne without either fact or fault of his Therfore vpon the premisses we may conclude that the Positiue lawes of sundrie nations doo not onelie take awaie and abridge the permission and fréedome and thereby change the law of b Arist lib. 5. Ethic. cap. 7. nature in those things which of themselues conteine no difference of right or wrong before they be commanded as to go ouer the wals of Rome but also that in manie other points the said law of nature is partlie released and inlarged partlie abridged and restreined and partlie also changed and abrogated For the c Lius ciuile ff de iustitia law saith thus The ciuill or positiue law is that which neither wholie dooth receed from the law of nature or of nations nor yet dooth wholie follow it therfore when we ad or take from common right then we make a peculiar or ciuil law To our authors allegation which is now euident how well he vnderstood it touching The vnchangablenes of the law d Gl. in verbo sed naturalia instit de iure naturali of nature the glosse thervpoÌ„ answereth That the said paragraph speaketh of the law of nations as may appeare by those words Quae apud omnes gentes supra eod § quòd verò naturalis Yet he saith It may be vnderstood of the primarie law of nature from which the lawes that seeme contrarie doo not derogate though it be not obserued in those cases For notwithstanding this the law of nature remaineth good and equall To the like effect dooth e In dict §. Angelus answer The law of nature in it selfe considered is alwaies good and equall and in Abstracto is vniformelie in force but in Concreto it may be changed in some point
Which confirmeth that disputation afore had that a thing may be altered or dispensed withall whose reason is no waie In abstracto thereby impeached Another dooth answer to these things in another manner saieng That those things which are of necessitie of nature are not changed but such as be by presumption in nature as fiercenesse in a lion gentlenesse and humanitie in a man may be changed A fourth man verie well learned dooth reconcile the matter thus That the law of nature cannot by positiue ciuill law be broken with that violence which the law of nations and positiue lawes doo iudge worthie of punishment as by making it lawfull that one might hurt another either in déed or word Yet in my poore conceit none of these doo sufficientlie touch the point of the meaning of that rule nor reconcile and meet with all the Instancies which haue beene might be brought to the contrarie Which hath giuen occasion to some whom a Li. 5. Ethic. cap. 7. Aristotle in that respect confuteth to thinke that there was no right in deed or law of nature at all but onelie in opinion bicause they did see naturall things to be among all nations alike as for fire euerie where to burne but they perceiued lawes were not in all places vniforme In whose discourse against them vpon those words where he saith Truelie amongst vs some of those lawes that be naturallie ingraffed are changeable though not all of them I doo gather for this purpose two kinds of the lawes of nature one consisting in the distinction of right and iust things from those which are not right but vniust which is called A law euerlasting and vnchangeable the other is that which is occupied and referred to the vtilitie and commoditie of men which vpon circumstances of times persons and places without anie derogation to nature may be altered and changed as shall be thought expedient The first respecteth an holie and vpright the other a commodious life in vs. And out of the first doo flow those three naturall b L. iustitia 10. ff de iustitia iure precepts which without iniustice can not be broken To liue honestlie to hurt no man and to giue euerie man his owne deriued all from those heauenlie sincere rules of righteousnesse Whatsoeuer you would that men should doo vnto you that doo you vnto them and doo not that to another man which you woulde not haue him to doo to you Which distination and reconciliation though of all the other afore it seeme to me most apt yet the instancies of the deodand of the straie Superannated of the wrccke vpon the sea brought out of our common lawes and the prescription and vse-winning after a certcine time of anie moucable thing from the right owner by continuance of possession established by the Ciuill law doo seeme to me not onelie to change and alter but plainelie to thwart and contrarie euen that chiefe law of nature consisting in the distinction of right and equitie and so dooth the a L. nam hoc natura ff de cond indeb law it selfe affirme of the last of these Yet I know there is varietie of iudgements b Gl. in c. ius naturale dist 1. Bald. in L. ancill C. de furto Azo in summa C. pro empto Angel Alex. in L. possessio ff de acquiren possess amongst interpretors not onelie whether it be against the law of nature or c Ioan. Andr. Anch. Francus in c. possessor de regul iuris onelie besides the equitie of it but also whether the d Ioan. Andr. ibidem contra Cagnol in l. iure nature ff de reg iuris common opinion of writers be the one way or the other So that the safest answer and wherevpon generallie we may best relie is this that there is a kind of Subalternation as the Logicians doo terme it among the lawes of nature whereby the superior and more generall may encounter and preuaile against the more particular and inferior law of nature And therefore this being the generall voice of nature confirmed by the word of God That we are to obey the law of our countrie where we dwell prouided for the weale of the people in publike e L. vlt. §. vlt. C. de caducis tollendis L. ita vulneratus ff ad leg Aquiliam though perhaps against the profit and also right of some priuat men according to that Salus populi suprema lex esto so that in the meane time they be not contrarie to Gods euerlasting will reuealed in the written word we may vpon this ground lawfullie allow both of these and of other lawes of like sort how far soeuer they seeme vnto some to swarue from the law of nature in some respect though in other regard they stand grounded vpon diuerse sound reasons deriued euen from the said founteine of nature yet peraduenture not so neerely and immediatlie as those doo which sound vnto the contrarie Neither is this to be thought strange to men of skill vnderstanding that two viuerse principles of the law of nature and of nations may be trulie drawen to establish contrarie things Hauing thus shewed besides the absurd forme of that syllogisme which is gathered vpon his discourse in this Section and consisting all of Nagatiues the wants also and vntruths of both the propositions therof Ex super abundanti I will now more brieflie examine the two other syllogismes which he hath annexed therevnto It is euident I hope by that which hath beene spoken that the Maior of his first reason is vnture where vpon the perpetuitie of a cause or reason of any prohibition he would ground a necessarie continuance of that which is thervpon established The Minor thereof is also vntrue and to be examined in particular when he commeth to the proofe of it Also That euerie law grounded vpon the reason of nature and the equitie of the law of God is immutable being his Maior of his second syllogisme he would prooue by that which hath beene examined afore to wit That all naturall things are immutable Which neither is of it selfe absolutelic true but with that vnderstanding which I haue shewed neither dooth the other follow of it if this were simplie to be granted by any coherence of reason For the ground-worke and that which giueth strength to a thing may be sure and vnchangeable when as yet that which is built therevpon may be vnsure and subiect to mufabilities Else we must needs establish a perpetuitie in all good lawes of man without any alteration vpon what occasion soeuer seeing they all though many waies diuerse among themselues doo take their foundation and reason from the immutable equitie of the law of God His Minor of his latter reason when he commeth to prooue it shall likewise receiue God willing an answer 8. Section Pag. 116 117. IN the verie first front of this Section wherein he vndertaketh the answer to the fallacies as he calleth them afore
spoken of he assumeth by his old warrant dormant to take without proofe as granted which is verie vntrue and neuer can be proued That pluralities are prohibited by the law of nature and by the law of God and so vpon this his owne liberall vealing with himself without any further proofe in this place he denieth the Minor by him in waie of obiection set downe which assumeth Pluralities to be forbidden by the law of man alone So that if vpon the examination and ouerthrow of his proofes brought to the contrarie it may hereafter appeare that none other law besides the law of man dooth forbid them then will it follow by his owne grant of the Minor which is Whatsoeuer is prohibited by the law of man alone by the same law may be licenced againe that dispensations for mo benefices may be granted lawfullie being the verie contradictorie of his chiefe position of this discourse Where it is not also to be forgotten that the said Maior which here he suffereth to passe Inconstancie without veniall he venied though foolishlie afore when he said The said consequence was vnnecessarie and sophisticall Pag. 213. in fine The rest of this Section brought for proofe that Dispensations for pluralities doo ratifie monstruous things against nature Which is the Minor of his second syloogisme he proueth principallie hereby bicause the law against pluralities is the law of nature and of God being the Minor as yet to be proued of his former syllogisme Which is the most childish kind of Circuition begging that which Childish fallacie is in controuersie that euer I haue heard the most foolish wrangling cauiller or Sophister at anie time vse in schooles which wanted matter and yet was to speake Ad clepsydram and to talke out his taske But if the lawe be monstrous what dooth he make or how dutifullie dooth he speake of those which passed and confirmed that act The proofe which in hand that Priuileges and dispensations are bestowed where some generall lawe is to the contrarie is wholie needlesse Yet the first is wrong quoted bicause he alledgeth a Chapter in steed of the glosse vpon the Rubrike and the second is not found at all whither he sendeth vs though by waie of argument it may be gathered out of that place 9. Section Pag. 118 119 120. THat which he brought a little before to teach another to go is here in be taught how to stand alone it selfe For he would prooue bicause The reasons of the prohibition of pluralities are taken and drawne from the lawe of nature and from the lawe of God therefore pluralities are forbidden by the lawe of nature and by the law of God Which consecution though it hang togither by no knot of reason yet is it left by him without further helpe and by none other meanes approoued vnto vs but bicause he himselfe made it But if euerie thing were to be said either commanded or forbidden by the law of nature and of God which hath for a reason and cause whether néere or farre off mediate or immediate either the one or the other then should all good and wholsome Positiue lawes of euerie nation vnder heauen all which doo issue primarilie from these sourses and fountaines come vnder this rule both to be vnchangeable neither to be dispensed withall vpon any circumstance whatsoeuer according to his owne collection and also the lawes of nature and of God should be found to be diuerse and repugnant to themselues in seuerall nations and in some points also contrarie one to another which is absurd and execrable once to be imagined and therefore that absuâ—d and erronious where vpon this is gathered For as sundrie and different Positiue lawes may be drawne from one principle of the law of nature or of the law of nations called The secondarie law of nature according to the lesse or greater proportion and measure of the influence of it into them and yet all of them tolerable and to be obeied by those vnto whom respectiuelie they doo apperteine so much more no doubt may repugnant Positiue lawes be grounded and established vpon seuerall Principles and Maximes of the law of nature As may be seene by the inher it ance vpon discent after the order of Common law to the eldest by Borough-english to the yoongest and by Gauel-kind to all sonnes alike Likewise by the losse of lands in the sonne for the fathers treason by the course of the Common lawe though the lands holden in Gauel-kind cannot be so forfeited None of which lawes though contrarie one to another but they haue both good and sound reasons drawne from the lawe of God and of nature wherevpon they are setled and also may both lawfullie be reteined and vpon iust occasion in like maner be abrogated or reuersed Out of the Ciuill law this may serue for an example hereof that although by reason it may séeme that any thing is fullie prooued by two or thrée witnesses aboue all exceptions yet vpon another reason which is for the auoiding of all corrupt dealing in Testaments being the last wish of the Testator and therefore most carefullie to be prouided for it is by that law decided that no ordinarie Testament shall be effectuall which is not signed with the Testators and with seauen or in some cases at the least with fiue witnesses hands and seales The reason of taking oths in iudgement is drawne from an ill cause euen that corruption of nature wherevnto we are inclined without some strict bond to the contrarie to deliuer vntruthes and to supplant our neighbours Yet the oth is a part of the seruice of God and necessarilie in all iudgements reteined for deciding of controuersies betwixt man and man The reason and principall ground of forbidding women to procure and sollicite their freends causes being absent in iudgement was the vnshamefast importunitie of one Calphurnia yet we may not hereof gather that all women which are likewise forbidden and debarred from appearing as attorneis for other to be of like disposition vnto hir And if lawes grounded vpon reasons and principles of the law of nature and of nations were thereby as the Abstractor here gathereth to be accompted of the like condition with the verie primarie lawes of nature and of nations themselues then could it not fall out that there might be diuerse principles and reasons of lawes about one matter tending to contrarie ends which yet happeneth three maner of waies First when of diuerse principles and reasons some one amongst the rest notoriouslie beareth the swaie Therefore though the fréedome of man from bondage and thraldome of slauerie be manie waies fauoured in all good lawes as most agreeable vnto the lawe of nature whereby we all are frée-borne yet for auoiding of iniustice and iniurie among men it is prouided that a debtor maie not infranthise and manumit his villaines if thereby his creditors shall not find Assetz for their satisfaction And the like to this is obserued when as
of absteining from labor in the obseruation of the sabaoth is declared by our sauiour Christ not to bind nor to haue place in the priests occupied about the sacrifices in the temple nor in the necessarie works of christian charitie neither did reach vnto those Iewes who were forced by their enimies watching the opportunitie of that time to fight and defend themselues from violence euen vpon that day And it is in a L. omnes C. deferâ—â—s some cases euen by mans law not wronglie declared to cease The precept of obeieng our parents is aright interpreted to haue no b L. Lucius ff de condit demonstr L. nepos ff de verb. signif L. filius ff de cond instit l. reprehendcÌ„da C. de insti subst ibi DD. place where the father commandeth anie vnlawfull or dishonest thing The commandement of kéeping our oth is not so generall but that it is c L. non dubium C. de legibus l. fin C. de non numer pecu c. non est obligator de reg iuâ— is in 6. declared rightlie to cease where it should otherwise bind vs to performe an vnlawfull thing And although by the law of God and of nature d L. manumissiones ff de institia iure inst de iure personarum euerie man is borne free according to that of the Psalmist Thou hast subdued all things vnder his feet yet hath the law e Ibidem of nations not vngodlilie attempered this and declared bondage vpon good occasions to be lawfull least otherwise those which be ouercome in warre should without mercie be put to the sword For S. Paule saith Art thou bond seeke not to be loosed By the law of nature and of nations traffike betwixt man and man ought to be frée yet hath law positiue f C. ne Iudeus Christ mancipium l. inter stipulanteÌ„ ff de verb. oblig §. sacraÌ„ ibi DD. iustlie declared the said law in some cases to cease It is of the law of nature to haue him called and cited to be present at anie act who may be interessed or preiudiced thereby yet the souereigne prince vpon good cause vsing that right which is in him although it may indirectlie turne to the harme of another may g Gl. in l. anâ—ep ff ex quibus causis maior quà m dicit com approbari Fely c. eccles Ext. de constitut infranchise another mans bondslaue the maister not being called By which examples it appeareth that albeit princes and other iudges who are all inferior to the law of God and of nature cannot dispense with them vpon anie cause by releasing the bond of them yet vpon good and sufficient grounds in such cases as be euidentlie of that nature which by most strong arguments we may gather that God himselfe would not haue included in the generalitie of his law interpretation declaration and limitation may be made of them And this is one kind of a Decius coÌ„s 112. in c. que in ecclesiarum Ext. de costiâ—utionibus dispensation of iustice largelie so called whereby the bond of the law is not released but the law is interpreted in such case not to haue place according to the true meaning of it But yet with this moderation that we neuer so intend and presume for the sufficiencie of the causes where vpon such declaration of the law of God and of nature is supposed to be grounded but that for stopping of a dangerous step vnto tyrannie and blasphemie proofes to the contrarie must alwaies be admitted if anie may be brought Now in that other member of Dispensations of iustice more properlie so called which are bestowed about the positiue lawes of man we haue to obserue two seuerall varieties One is when the generall force and obligation of the law remaining yet the reason thereof in some particular case dooth cease which may and ought to be by the souereigne prince or other inferiour iudge so declared Another is when as the law is grounded vpon diuerse reasons For then though one or two of such reasons doo cease yet in regard of those reasons thereof which doo remaine the law shall still reteine his force Nay though the positiue law of man be enuious as b L. vnica C. de caducis tollend was Lex Papia verie c L. prospexerit ff qui a quibus grieuous and hard or such as the reason thereof is wholie ceased yet shall the disposition and life of it continue and howsoeuer the execution thereof perhaps may be intermitted yet is not the law thereby taken awaie and extinguished but is d L. vnica in principio C. de caduc tollend onelie Sopita as it were laid asleepe for a time So that if the like necessitie happen for the which such a law was first established it shall reuiue againe without anie new enacting which it e L. inter slipulantem §. sacram ff de ver oblig could not doo if it were wholie extinguished For otherwise if euerie priuate man might take vpon him to decide when and how the reason of his superiors law dooth wholie cease and that thereby the law might be said to be extinguished and abrogated which kind of interpretation * L. fin C de legibus dooth onlie belong to the souereigne prince or to such as he committeth it vnto then verelie in this last case there should need no dispensation though in the meane time such libertie would bréed a great confusion and an open contempt of all lawes Howveit I haue declared alreadie that wheresoeuer the generall law dooth remaine though in some particular case it doo cease that there as in the other cases here alledged this Dispensation is needfull and ought not in right to be denied for the which cause it is also called A dispensation of iustice Besides these there is a third kind of dispensation mixt of both as taking some part of that which is called Of grace bicause he that hath authoritie to dispense hereby is not in waie of iustice preciselie compellable to grant it and borrowing other some part of that which is called Of iustice bicause this ought not to be granted simplie but vpon iust cause by reason that the positiue lawes of man about which onelie this dispensation is conuersant by common intendement are enacted for some publike vtilitie and benefit So that without good ground a man ought not to be exempted from the generall charge of the common-welth which other are to suffeine speciallie when such his exemption shall be burdensome to others This last sort of dispensations may be defined to be A release in some especiall case and certeine persons of the generall bond and reason of a positiue law by him that hath authoritie therevnto And this authoritie must either be committed expreslie or is couertlie implied to be attributed vnto a souereigne prince either by the operation of the law as when * L. d. C. de legibus
maiestie of a ruler to acknowledge himselfe as cheefe tied vnto lawes Whereas neuerthelesse the emperors speaking else-where in the same law doo saie thus of themselues Although * Seuerus Anthoninus §. vlt. instit quibus modis testa infirmentur l. princeps ff de legibus we are not bound by lawes yet we liue according to them So that by the law which he alledgeth the verie contrarie vnto his position might seeme to be gathered bicause if the person of the prince be tied by the bond of the positiue lawe then should a dispensation be as requisite sometimes for him as for any other which in like maner is tied and bound vnto it Some doo reconcile these lawes thus That a souereigne prince is therefore not said to be bound by lawes bicause he may abrogate them at his pleasure Other saie that he is tied onelie to the law of nature and of nations but not to positiue lawes A third sort doo hold with good probabilitie that he is bound to positiue lawes according to their force Directiue but not Correctiue to be directed by them so farre as may concerne him but not to be corrected of them neither yet that of necessitie he is to be directed by them but of congruencie and conueniencie onlie according * Claudianus de 4. consulaâ—u Honorij to that In commune iubes si quid censésue tenendum Primus iussa subi tunc obseruantior aequi Fit populus nec ferre negat quum viderit ipsum Censorem parere sibi componitur orbis Regis ad exemplum And so is the king of * 5. E. 4. 32. 39. H. 6. 39. England also tied to some positiue lawes according to the iudgement of the iustices Yea it is in this respect honourable to the prince to suffer himselfe to be directed by godlie ecclesiasticall lawes not impugning his prerogatiue except good cause may be alledged of relaxation And therefore the Dishonour and danger to hir Highnesse which in the Minor he assumeth we are easilie deliuered of till he can shew better cards for it And where he extendeth this reason of Dishonour to infringe all dispensations granted likewise to subiects he is not so well aduised as he might be For seeing it is necessarie vpon sundrie weightie occasions that immunities and dispensations for * Preamble of the statute 25. Hen. 8. ca. 21. humane lawes be granted to some aboue other and the ambiguities of Gods law and of the law of nature in some cases to be declared and interpreted it were more dishonorable to hir Maiestie to attend these meaner matters from time to time in hir owne person than it can be in the woorst construction to put them ouer to some of hir subiects And as it cannot be conuenient for hir Highnes to attend in person the execution hereof so hir royall dignitie is no waie impeached by yeelding this authoritie to the Archbishop who must where cause requireth performe this dutie but as a minister herein to hir Maiestie and the state and who cannot dispense as he list but with confirmation vnder the great seale of England as the statute dooth limit Yet he importuneth hir Maiestie still by telling hir what hir Highnesse most noble father would haue done if he had Vnderstood so much as the Abstractor dooth not onelie to take dispensations awaie from the Archbishop but belike in regard of them to take him awaie also as he did An Abbat a match truelie and comparison as vnlike as if we should compare the Abstractor to an honest modest man And for this end he exhorteth hir Maiestie to Submit hir selfe to the scepter of Gods word as though she had not done it hitherto But he and all the knot of them by these spéeches doo indeed vnderstand the submission licking of the dust of their Seniorie and Eldership which is neither dishonourable for sooth nor so dangerous to hir Highnesse as is the committing ouerof dispensing in causes requisite vnto the Archbishop bicause they amongst them haue so concluded that it shall be touching the perill To hir Maiesties honor and safetie which groweth By the Archbishops dispensing in matters repugnant to the holie scriptures vpon a corrupt construction a sinister iudgement and not right discerning what things be repugnant to scripture it shall easilie be yeelded vnto that it is neither for hir Maiesties honour nor safetie to suffer the lawes of God to be broken albeit those words of the statute as haue béene shewed doo not extend vnto all dispensations by vertue thereof to be granted But first he and his complices must beat their sconses a while to teach the Archbishop how he ought aright to construe to iudge and to discerne the scriptures where vnto as he saith his dispensations are repugnant belike according to some anagogicall tropologicall or cabalisticall sense of their owne deuise wherof they haue perhaps dreamed Yea and all this adoo which he maketh about dispensations to the princes person is vnseasonable and impertinent wholie to the matter in hand concerning the validitie or inualiditie in law of dispensations for pluralities and therefore might with better prouision to his owne credit haue béene spared 16. Section Pag. 140 141 142. 143 144 145. THe Abstractor which thinketh he hath found Absurditie in the Statute goeth on still in his owne absurd dealing purposing to shew as well by statute as by the Canon law certeine adiuncts necessarilie to be obserued in these dispensations which he in this whole treatise laboureth to prooue by both the said lawes to be vnlawfull Which course must néeds séeme to wise men a strange peece of worke that those lawes which doo condemne them should so exactlie describe their properties and circumstances in what maner with what care and to what kind of persons they ought to be granted And first of all he here woundeth the smoke verie deepelie and fighteth valiantlie with his owne shadow in that he would prooue Pouertie to be no sufficient cause of dispensation and that euerie one dispensed with alreadie for pluralitie can not iustlie be reputed for a poore man neither of which I did euer heare by anie man hitherto to haue béene mainteined But in going ouer his proofes hereof I must put him in mind that Rebuff his first witnes hereto produced though he allow not of pouertie for a sufficient cause of it selfe yet he insinuateth thus much that being ioined with worthinesse it is adminiculant as we call it and that it addeth weight to desert for procuring of a dispensation For in deed as it is reason that a man worthie and able to profit the church should haue sufficient maintenance though it be by mo benefices than one for supplie of his necessitie and towards hospitalitie so if he be of sufficient patrimonie otherwise though he be neuer so worthie and his ecclesiasticall liuing be euen vnder a mediocritie then there is lesse cause a great deale why he should looke for another And againe the same
the least as is paid into her hanaper or were the Symoniacall person a pluralitie man and so depriued from all his benefices and Ecclesiasticall promotions her Nighnesse were then to haue the whole first fruits of all his benefices and promotions fortie times so much as she enioieth by graunting his dispensation And as touching the fees due for dispensations graunted for many benefices though the same fees may happily amount in some one yeare to manie hundreeds yet by meanes of the said dispensations her Nighnesse is empouerished yearely by mante thousands The oftener cuerie benefice or promotion is voide by resignation or depriuation the oftner to an other admitted vnto the same and the oftner doth her Nighnesse receiue the First fruits of anie such benefice Pag. 162 Now it is cuident that the conioining of two three foure or fiue thousand benefices or promotions vnto one thousand men by dispensations is a manifcst impediment to the auoiding of so manie incumbents from so manie benefices as which by death resignation or deprization of the saide incumbents might and were likely to be made voidt And so the said dispensations being an hinderaunce to the auoiding of benefices they must necessarily be also a verie direct meanes to keepe from her Exchequer that treasure that otherwise should ordinarily be brought vnto it And though by the death resignation or deprinatioÌ„ of euerie pluralitie man euery of his benefices be made void yet his said benefices are not so often made voide as otherwise they should be And therefore though her Nighnesse haue the first fruits of two three foure or fiue benefices in the handes of one Pluralitie man dying resigning or being depriued yet hath shee not the first of the saide beuefice so often as otherwise the might haue wherby her reue mues are lessened Since therfore for one maÌ„ to inioy many benefices by dispensatioÌ„ maintaineth couetousnesse is contrarie to the ancient Canons maintaineth ambition ministreth matter for a roaging a gadding a dissolute ministerie since it conueieth stipeÌ„ds due vnto many froÌ„ many vnto one since it is an hinder ance of residence and containeth perill of soules Since it is a kind of theft rauine spoile Since it is vndecent vncomelie Since it is contrarie to the good customes of the Church Since the honestie of the church therby is defiled the authoritie therof conâ—emned the truth of Christ troden vnder foote and loue banished Since among the rich Prelates and plurified men themselues strifes contentions â—raules and enuies arise and are nourished Since the fire of God his wrath is kindled against vs by them since it is against the lawe of nature repugnant to the lawe of God and therefore nourisheth a monster in nature Pag. 163 since it is against the weale peace profit and conseruation of the realme since it is against the vtilitic of the Church and that the nessitie of the Church requireth the cleane contrarie Since it is preiudicial and derogatorie to the iast Wils and Testaments of our auncestors since it is dishonourable and dangerous for her maiesties person and safetie since priuate necessitie and pouertie is no sufficient cause for the maintenance thereof Since the miserable penurie of our stipendarie Curates therby is made intollerable And againe since all these thinges are offensiue and that a Priuiledge so sonne as it becommeth offensiue and not exercised to the profit of many but to the will of one is forthwith to bee with drawen Since euerie Priuiledge ought to bee such that it damnifie none and since it forthwith looseth the name of a priuiledge if once it turne to anie iniustice since that nothing is more contrarie to naturall reason then that one and the selfe same man should take vnto himselfe diuerse stipends of the church in diuerse and farre distant places since it is against the pollicie of cuerie good common-wealth of man since it is contrarie to the gouernment of euevie good and prouident householder since it carrieth headlong the soules as well of him that giueth it as of him that taketh it to hell yea and since it is an impouerishing of her Maiesties treasure diminishing of her reuenues Let vs conciude for one man to inioy two or mo benefices by dispensation to be a thing altogether intollerable and vtterlie vnlawfull An answer to the second Treatise of the Abstract That dispensations for manie benefices are vnlawfull 1. Section Pag. 107 108. IF this conclusion for proofe whereof in this whole treatise he pretendeth to labour were granted vnto him as in part it ought to be though that be vntrue which he meaneth thereby might it not be said that either he knoweth not what he writeth or else willinglie spake vnproperlie to make the matter seeme more odious as though it were hoiden to be lawfull to dispense with a man for as manie benefices as he could procure For seeing in our common spéech howsoeuer the law more generallie dooth construe it a benefice is taken for a pastorall cure of soules ouer the people of some parish it is euident by the statute in that 21. H. 8. c. 13 The Abstractors discourse wholie inpertinent behalfe prouided sauing those that be of hir Maiesties councell which may keepe three benefices with cure of soule and hir Nighnesse chapleines vpon whom the may bestow what number of benefices the will that no man can be dispensed with to reteine Multa huiusmodi beneficia many such benefices according to the true proprietie of spéech yet some being so qualified as is required may be dispensed with to receiue and keepe Plura mo than one euen but two in all which cannot properlie be called Many except the matter were of great raritie Unto all which dispensations so by statute-law and act of parlement warranted both he and all the subiects in the land in * 4. H. 7. 10. the eie and construction of law are deemed to haue consented And therefore that he or anie other should call them Vnlawfull or presume to inueigh publikelie against them as he * Pag. 159. telleth by some to their great commendation both by speach writing and preaching to be practised whome therefore he calleth The Lords seruants I for my part can not sée how it can be excused from faction and great contempt Factious dealing against law of hir Maiestie and hir lawes Or else why may not I or anie other priuate man whosoeuer in like manner with as good toleration as he perhaps vpo my particular conceipt againsst some other of the lawes of this land take pen in hand and tell all the subiects in it that they are no lawes in déed as being against the word of God the law of nature of reason and of nations And thereby to giue a dangerous ouuerture and open window to the loofing of the ioints of all obedience to lawes and to turne ouer those matters which are to be debated with great moderation to fro onelie in the most honorable
certeine times brawne from the old canons be but of law positiue why may it not by the same authoritie be likewise released and dispensed with And in deed the occasion of such prohibition at some solemne times of fasts praiers was grounded vpon the same reason that the Discipline of France forbad the receiuing of the communion by the new married couple that daie Yet he is not thus content to rest in this interpretation but must haue a fling sawcilie to traduce the whole parlement as Falling into two palpable absurdities by want of foresight due examination D that they which were in parlement then had beene powdered but with a little salt of that discretion and forecast wherewith this man thinketh he is thoroughlie seasoned Then no doubt some famous church-plat would haue beene hatched which as yet is but a castle built in the aire by his owne shallow conceit The first Absurditie in this statute he noteth in that it is Left to the Archbishops determination what is repugnant to scripture what conuenient for the honour and safetie of the prince for the wealth and profit of the realme The first whereof if it should be attributed to any one man which for the difficultie of meeting vpon euerie occurrent and other confusion in multitudes cannot indeed conuenientlie be otherwise I doo sée no cause but by common intendment the Archbishop may be holden for as sufficient a man as any one other to decide what is repugnant or not repugnant to Gods word Albeit there is no one word in the act that either yeeldeth the determination hereof or of the other two vnto him but rather as may be collected the contrarie For the two bookes of tares which must conteine the rate of euerie sacultie that is to passe and which vsuallie before had béene granted at the Sée of Rome are by statute to be set downe by the Archbishop the Lord Chancelor the Lord Treasurer and by the two chéefe iustices of both benches for the time being But in vnaccustomed cases the Archbishop can passe no facultie at all vnlesse the prince or councell shall determine it and giue licence vnto him so to grant But if all these Contrarieties and absurdities that hitherto to the Abstractor vainlie as you sée hath bungled about should be granted to be in the statute yet how could the Minor proposition hereby be confirmed which was his purpose to prooue that It is not conuenient for hir Highnesse honor and suertie to leaue any maner of authoritie in the Archbishop to dispense For there might be some parts of the statute and some faculties absurd yea all might be so and yet hir honor and suertie no waie impeached for Vtile per inutile non vitiatur◠that which is to no purpose dooth not hinder that which is to some vse And if he would haue authoritie of dispensing taken from the Archbishop and to be giuen vnto hir Maiestie in respect of vnlawfulnesse of dispensations how shall this be lawfull in hir Highnesse royall person more than in his And the vanitie also of his Other absurditie is discouered which would therefore euerthrow the whole act bicause it is vnsitting he saith For a subiect to grant a dispensation to his souereigne But albcit there neither is nor can be so frequent an vse of such dispensing with the princes owne person as was when the statute was made by reason manie humane lawes brought in by canons of councels were then throughout all this west church suffered to be in force euen with souereigne princes as about vowes marriages within certeine degrees of carnall and spirituall as they termed it consanguinitie or affinitie clandestinitie legitimation of children borne before espousals and such like a number more than now are yet doo I thinke it too generall simplie to be set downe that now there can be no vse of anie dispensations at all for the princes owne person as by examples might be shewed if it were requisite For although the person of the prince néedeth not to be dispensed with for the positiue law of man being made by his direction according to that Dispensation which is a relaxation of law in some particular case the bond and strength of it otherwise remaining in force nor can for the law of God which no man may release in anie particular mans case the bond of it being perpetuall yet notwithstanding I doo not see but by a Dispensation of iustice which is a true and vpright interpretation and declaration that the law of God of nature or of nations according to the true sense and meaning thereof hath not place in some particular action which otherwise might in shéw appeare to be included in the generalitie of them that in this respect it may be expedient euen the princes person sundrie times so to be prouided for And this the rather bicause by law and naturall reason Nemo secum dispensat no man can impart a dispensation vnto himselfe So that the Archbishop in such a weightie case hauing with the best learned in the land maturelie debated the matter with all circumstances and found vpon pregnant and inuincible reasons that it cannot be trulie said to be against anie of the former immutable lawes if then he shall In perpetuam rei memoriam in autentike forme vnder his seale set downe this resolution it cannot iustlie be auowched that the princes honor or prerogatiue is hereby any waie abased but rather the quiet of his mind well prouided for and the doubts which in processe of time might here vpon be cast wiselie and godlie to be met with for the profit and benefit of the realme Neither can such dispensation touching the princes owne naturall person in matter of conscience or of some positiue ecclesiasticall law which reacheth vnto him be any more derogatorie to his honor or royall prerogatiue than * 1. Hen. 7 4. when the iudges of the land did determine that the attainder by parlement of the person of the noble king Henrie the seauenth was vpon his calling to the crowne by the verie operation of the law adnulled and discharged Or when Archbishop Cranmer gaue sentence for the nullitie of marriage contracted betwixt king Henrie the eight and ladie Katharine Dowager his late brothers wife Whereby may also be perceiued that the difference which the Abstractor taketh betwixt the iudgements of the iustices and the dispensations of the Archbishop as not touching the kings owne person like as dispensations doo to be destitute of footing or sound and good ground to stand vpon And although in words he séeme outwardlie thus to tender hir Maiesties honour and prerogatiue yet the place which he alledgeth out of the ciuill lawe looketh a cleane contrarie waie For thereby he would subiect the princes person to his owne positiue laws euen of necessitie bicause in the ciuill law the * Imp. Theodos Valentinian in l. digna vox C. de legib c. emperors say It is a word worthy the
is ordained he solemnly vovveth to preach therfore he promiseth to be come a Doctour In â— vlt. ext 〈…〉 g. de â—â—a â—e qualit both before and at and after the ministring of his medicine A Minister then taking vppon him to be a Doctour of farre greater wisedome to be a Physition of much more excellencie namely to instruct and cure the soules of men with the doctrines of the Gospell can he vnblameably consult without knowledge or safely practise without skill Can he teach being vnlearned or heale being not experienced And here if the Magistrate would Pag. 7â— knowe the manner alreadie set downe to redresse the same and how and in what sort he may safely proceede against an ignorant and vnlearned man he must saith Panormitane see that the witnesses depose how that the partie did neuer reade anie Bookes of learning or that he did neuer goe vnto any Schoole of learning because no man can attaine vnto learning vnlesse he haue beene taught by one indued with learning or spent his time in the studie of Bookes of learning for without a teacher and without Bookes no man can be learned which may be prooued as well by the confession of the partie as by the notoriousnesse of the fact And heere Panormitane willeth the practitioner in Lawe diligently to marke howe insufficiencie vnabilitie and vnskilfulnesse of a Clearke may be prooued euident and notorious by not reading of Bookes As thus Seius neuer read any Booke of Physicke or Seius neuer resorted vnto anie Physicke Lecture therefore Seius is no Physition Titius neuer studied any bookes containing the doctrines or controuersies of the Gospell or hath not heard any preacher of the Gospel Therefore Titius knoweth not the trueth or glad tydings of the Gospell Our idoll Ministers neither in times past haue had neither now haue any Bookes of Scriptures Therefore they neither haue beene neither nowe can be learned in the Scriptures They haue not gone neither now doe go to any Schoole of diuine learning Therefore they haue not beene nor yet nowe are any Schollers in Diuinitie And their insufficiencie and vnabilitie being by this meanes palpable are therefore notoriously depriueable yea degradable from their benefices and offices Pag. 72 The distinction of a simple Curate or of a curall Priest or of a plebeiane Prelate if law were law and reason reason could not serue to maintaine the contrarie practise The law Ciuil the law Ecclesiasticall the law of Reason the law of Nations the law of God in all places at all times and among all people without any fauour or friendship vnder any pretence or for anie respect do absolutely directly and precisely inhibite euerie man whatsoeuer to take vppon him either the name title or office wherevnto he is altogither vnfit and whereof by law he is made vncapable And how then can this monstrous and damnable vsage be tollerable for such a man to be placed and continued in the roome of Aaron to be the mouth of the people vnto God or in the place of Peter to feede the flocke of Christ who knoweth neither for what or howe he should rightly present his Supplication vnto his Prince neither what kinde of viand or manner of diet he should sette before his people Grammarians and Poets though they haue beene trained vp at Winchester or Eaton Philosophers and Rhetoritians though they haue spent manie yeares at Oxforde or Cambridge are not fit straightwaies to be made Physitions of soules and leaders of the people into the wayes of righteousnesse They must shake off vanities and forsake their vngodlinesse wherewith they haue infected their mindes in those places before they thrust themselues as labourers into the Lordes Vineyard or take vppon them to be messengers in the affayres of his Empyre Yea popish and idolatrous Priests are vnmeete and by the Lawes in force made vnable to enter into the Lordes Sanctuarie though Popish Lawiers stand neuer so much opinionated to the contrarie falsly and traiterously surmising her Highnesse her Nobilitie and all the professours of the Gospell within the lande to be heretikes and schismatikes and themselues only with their crue and rabble of Seminaries to be Catholiques as though the Lawes in force no whit appertained vnto vs but were only reserued by them selues against their daie of Iubilie long sithence gaped for of them hitherto by the infinite mercies of the Lord denied them Pag. 73 The Lord make vs thankfull pardon our ingratitudes and continue these his mercies long towards vs and onâ— posteritie I hope our Prelates and Ministers of the Gospell and all true Christians are thus perswaded by the word of God that Papists are Heretiques and Schismatiques strangers from the common wealth of Israel and aliaunts from the couenaunt of God I take this I saie as granted and hold it for a principle in the Schoole of Christ that Papisme is heresie and therefore a Papist an heretique Againe I hope our Prelates and Ministers of the Gosepll will graunt the Act of Parlement made 25. Henrie the eight touching the submission of the Cleargie c. and confirmed in the first yeare of her gratious raigne to be in force and effectuall to binde all manner of people within the lande Againe it is manifest these Canons following to haue beene established and neuer abrogated before 25. Henrie the eight Non debet quis schismaticus etiam abiurato schismate eligi A schismatique though hee Extrauag de elect quis abiure his schisme ought not to be chosen a Bishop Heretici autem credentes receptores defensores fautores eorum istorumâ— filij ad secundam Lib. 6. de heret c. 1 § beretici generationem ad nullum ecclesiasticum beneficium seu officium publicum admittantur But beleeuing heretiques their receiuers defenders and abettors and their sons vnto the second generation let them be admitted vnto no Ecclesiasticall benefice or publique office And therefore from these principles Canons and Act of Parlement I argue thus 1 No schismatique or heretique though he abiure his schisme or forsake his heresie may be chosen a Bishop or admitted vnto any Ecclesiasticall benefice or beare anie publike office 2 But euerie popish Priest is a schismatique or heretique Pag. 47 3 Therefore no Popishe Priest though he abiure c. may be chosen a Bishoppe or admitted vnto an Ecclesiasticall benefice or beare any publike office The maior proposition is the law of Poperie The minor the law of the Gospell Pag. 75 NEither doth this rule of lawe Multa non sunt facienda quae tamen facta valent any whit gaine say the truth of this argument For though it seeme probably by this rule that a popish priest being once admitted vnto popish priesthood should not be remoued Yet thereby it followeth not that religion being restored and idolatrie abolished he could not at the first restitution of the Gospell and entry of hir gratious raigne haue bene secluded from the office of a Minister vnder the
a peacemaker but quarrelling at law for tyth onyons apples cheries not a dispensor of the worde of God not a pastor steward to the Lord to teach to premonish to feede and prouide Foll 11. pag. 2. for the Lords flocke if such a one I say yea if too too many such haue bene admitted into the holy Ministerie and all these solemnities vnsolemnly abused may it not be rightly concluded that such by our statute law be no lawfull Ministers at all VVas the worde of any Bishop only the word of the high Bishop Iesus Christ excepted in any time or in any place a lawe against the Lawe of a nation VVas the lawe of a whole Empire euer tied to the will of one man in a Diocesse If the thing it selfe were not manifest to the viewe of the whole Realme and that the vnlearned ministers in euerie parte of the Realme were not glasses to see these deformities by and that the daily and lamentable complaints in the eares of hir honorable councell were not euident testimonies thereof Yet were their owne registers and recordes thorowly perused they would teach vs sufficiently that these things yea and worse too if worse may be are neither fained nor forged And therefore I conclude thus 1 Wheresoeuer a certaine forme and order to proceede is appointed to any hauing no authoritie before his commission that there if the forme be not kept the processe by lawe is meerely voyd 2 But our Bishops before the making of the statute of Edward the sixt and the confirmation thereof 8. Elizabeth had no authoritie to make Deacons or ministers Pag. 85 3 Therefore their processe not made according to the order and forme of the statute is voyd and therefore our dumbe and idoll Ministers no Ministers at all Herennius Modestinus answered that a Senator was not therefore a Senator because he had his name onely in the table or register where the names of Senators were written vnles he also were made a Senator according to lawe And the glosse vpon that law verifieth the same to be an argument Contra 〈◊〉 qui non sunt rectè in Ecclesiâ—â— coÌ„stituâ— ff quand dieâ— lâ—g vel fideâ— sed l. quod pâ—pillae iâ—â—at gloss Against those that are not rightly placed in Churches If a Legacie be giuen vnto a Pupill whensoeuer she shall marrie if she shall marrie before she be Viâ—i potens the Legacie is not due vntill she be Viri potens quia non potest videri nupta quae virum pati non potest nec videri factum quod non lâ—gitime fit Finally in the preface of the booke of ordering Ministers are these words And therefore to the intent these orders should be continued and reuerently vsed and receiued in this Church of England it is requisite that no man not being at this present Bishop Priest nor Deacon shall execute any of them except he be called tried examined and admitted according to the forme hereafter following And in the 13. yeare of Elizabeth cap 12. it is enacted that all admâ—ssions to benefices institutions and inductions to be made of any person contrary to the forme or prouision of this act and all tollerations dispensations qualifications and license whatsoeuer to be made to the contrary hereof shall be meerely voide in lawe as if they neuer were Another principall reason why these idoll Ministers should not haue so much as the onely name or title of Ministers in word much lesse the place and benefite of Ministers Cod. de autorita praestand l. eum qui. 6. â— 7. si quis deinceps â—x de simo non satis in deede may be for that in deede and truth they haue intruded themselues into the Ministerie onely by fraude and deceite and haue not entered thereinto Bona fide iusto titulo In good faith and by a iust title He that knoweth a Pupill to be vnder age and yet will contract with him without consent of his Tutor Pag. 86 or he that will receiue a Church from the hand of a Laye man or he that will buye and sell Cod. de autorit praestand l. eum qui. 6. q. 7. si quideinceps extra de simo non satis Extra de râ—gu in c. qui contra A contract made betvvene the Bishop and the minister not obserued things dedicate to religious vses cannot in these actions meane any good faith or vse any good conscience because qui contra iura mercatur bonam fidem praesumitur non habere He that against lawe maketh marchandize is presumed not to haue good faith Now in the manner and forme of making Ministers and their admission you haue heard of a solemne couenant and contract by open protestations on both sides made betweene the Bishop and the partie the Bishop demaunding spondes putas facies doest thou promise doest thou thinke wilt thou do The party answering spondeo I do promise puto I doe thinke faciam I wil do it This contract or couenant by law Ciuil is called stipulatio verborum a sure bond made by words and may be called a contract by word By the law of England it is called an assumption And to the end this contract be good in effect as in al other coÌ„tracts so in this especially it is requisite that the same be made bona In ff pro solut l. 3. Cod. de vâ— sur l. venditioni In Cod. de actio oblâ—g l. bonam fide interueniente good faith comming betwene as wel on the part of the demandant as on the part of the answerer For saith the Emperour Bonam fidem considerari in contractibus aequum est Equity requireth that good faith be considered in contracts And that either to this ende Vt cessei dolus ad eorum essentiam or to this end vt cesset dolus ad eorum effectum that guile may cease to the substance of the contract or yâ— guile may cease to the effect of the contract For though according to the nature ff de dol l. elegantâ—r ff de verb. oblâ—g l si quis eâ—m condition of this contract by word the party fraudulently deceiued be notwithstanding by rigour subtilty of law bound to the contract yet inasmuch as the lawe prouideth him a remedy against this mischiefe giueth him a peremptory exception vtterly to exclude yâ— agent from any benefit of his action the contract I say in effect being reuersible is in effect no contract the aduerse partye to be cleared Pag. 87 from the performance thereof Quia contractas non sortitur effectum pâ—opter exceptionem doli The couenant taketh no effect by reason of the exception of guile The law it selfe followeth Si quis c. If any when he had couenanted to be bound after one maner yet notwithstanding by circumuention is bound after another manner he shall in deede stand bound vnto thee by the subtiltie of lawe but he may vse an exception of deceit for in as much as he
also according to our lawes Magnates Pares regni and such as haue béene the chéefest either planters or waterers of this church vnder the time of the gospell but especiallie when it commeth from such a one as would séeme to be a professor of the gospell whereof these and such like spéeches too too manie in this booke are neither branch bud nor fruit And except they were the voices of some sonne of Beliall as was Sheba that is without yoke of all christian humilitie and patience I cannot sée how such contumelious loftie spéeches though they were maintenable could become any subiect in this land thus to publish in a printed booke but much lesse this virulent spirited companion whosoeuer he be Slaunderous speeches of the whole sâ—ate And is indéed all our Gouernment ecclesiasticall but challenged Is the policie and state of our church Perillous for the gouernement of the state of the Lords houshold Is it the policie of a Traitorous lawmaker Are our chéefe prelats Mainteiners of such by tooth and naile And are they abbettours of such Traitorous lawes or lawemakers Doo They mainteine their prelacies dignities and ministeries vnder the gospell by the lawes of Gods enimie And can the pope being no subiect be called a traitor or a traitorous lawmaker though he be a suborner or stirrer vp of as manie traitors as he can inuegle Trulie these iniuries debase the great blessings of God which by hir Maiesties gratious meanes we enioy by the pure preaching of the gospell and reformation of this church from all poperie and superstition and is dishonorable to hir Highnes gouernement yea it reacheth both to those godlie lawes and lawmakers which by parlement haue established this policie and the gouernement ecclesiasticall which we now by Gods mercie enioy men who are as loth iustlie to be accompted mainteiners of poperie or of perillous and traitorous policies and gouernements as this man is vnwilling not to shew himselfe dogged and spitefull For it is well knowne that no other policie is practised nor gouernement put in vre but such as the wholsome lawes of this land haue fortified and therefore for Factious speaking against the lawes in force him thus to carpe at the lawes in a slaunderous libell before the same authoritie hath reuersed them it is intollerable and would in some places be accompted seditious Neither will his euasion serue him bicause the question is not Inter pares amongst equals as he saith as though he could not speake better of the said lawes and acts of parlement without preiudice Of the honour of the sonne of God by accusing him not to haue giuen a perfect law for the gouernement of his fathers houshold by discipline as well as by doctrine For as hereby he would excuse himselfe for his contemptuous and opprobrious spéeches against hir Maiesties lawes and the whole state of the land and the policie and discipline of this church as though he were forced for the safegard of the honour of Christ so would he insinuate that all other not of his opinion are recklesse of Gods honor and that both the policie and gouernement of our church is contrarie to Gods will reuealed by his word and also that Christ hath left a set externall forme of policie and discipline to be exercised Disloyall presumptuous speeches grounded vpon an errour in euerie particular point throughout all the seuerall churches in the world Indéed if these two were true which I thinke will be verie long in proouing he might with more reason haue said as he dooth yet doth in milder maner and in a place more conuenient than in a pamphlet whereby a gelousie maie be bred amongst the simple that they haue béene all the time of hir Maiesties reigne misseled by their gouernors I doo therefore saie and offer in the name of the learned to him or other to consider of that it is taken by vs for an vndoubted truth the contrarie whereof by no proofe we doo essure our selues can be shewed that There are not set downe in particular by scripture or by necessarie collection to be gathered all circumstances of policie gouernement discipline and ceremonies necessarie and vniformlie to be vsed in euerie seuerall church and that the christian magistrats and gouernors are not in the said former points whereof something is touched in scripture of necessitie tied to that precise forme that is there set downe but to the generall doctrine concerning them to wit that all be doone to edifieng orderlie comelie and such like if any will affirme otherwise let him set downe his plat and his proofes for euerie particular and he shall see whether he come not short in most points Neither doo I see why he should so odiouslie traduce certeine thinges vsed in our church till he haue prooued them vngodlie in this respect onelie bicause they haue béene either inuented or practised vnder some bad popes more than he dooth all the nations of Christendome as well in reformed as not reformed churches for giuing a notable place in their common weales vnto the ciuill lawes of the Romans deuised for the most part by painims and idolaters or than he dooth the common or municipall lawes of our owne nation taken either from the old Saxons being heathen or from the Normans being but newlie christened howbeit still grosse papists and idolaters But as touching his questions How our chiefe prelats can answer to the Lord for their wilfull disloyaltie for want of carefulnes requisite séeing They continuallie place vnable men in the ministerie and why they should not let those canons before brought for a learned ministerie being now their owne lawes be auailable with them he might haue said as well his and euery Englishmans lawes for all be parties to an parlement I answer first that in those able men for the ministerie which they haue laied their hands vpon I am persuaded they haue not doone it so much for a bare satisfaction of law as for the exigence of the cause and for discharge of a good conscience Further if they haue ordered some of meane abilitie it hath béene in respect of the slender portions of liuing allotted out in most places for the finding of ministers which places other wise should be destitute wholie whereby the people would in short time become as heathens and painims or be as sauage as the wilde Irish to the great danger of their soules and hazard of this state And if it shall be said that they haue preferred any to the ministerie vtterlie ignorant and vnworthie willinglie Charitie teacheth me not to iudge the worst nor to iudge â— Cor. 4 5. before the time vntill the Lord come who will lighten things that are hid in darkenes and make the counsels of the harts manifest So far am I from iudging it to come of any disloyaltie to God especiallie of wilfulnesse which is the next degrée to the greatest sinne that may be for if any of them had wilfullie
other men abroad and amongst themselues at home how yet notwithstanding they doo all in generall importune vs to beléeue them that there is a precise forme order rule and law of this externall gouernment in the church commanded by Christ which no church may swarue from or euer transforme and alter Yet Tertullian as he is alledged by others saith thus Trulie the rule of faith is wholie one and is wholie vnmoueable and not to be reformed namelie to beleeue in God c this law of faith remaining now the other matters of discipline and course of life doo admit alteration and correction the grace of God alwaies working and going forward vnto the end And first as touching varietie of iudgements about the meanes to establish this gouernement and their presbyteries we sée that our * Pag. 93. Abstractor saith The ministers without due authoritie from the magistrate whereby I hope he vnderstandeth the chiefe magistrate of euerie common-wealth not inferior officers whom in this case certeine firebrands of treson by a De iure magistrat de iure regni vindict con tyrannos their bookes would arme against their souereigns ought not to wrest any thing into the gouernement of the church But b T. C. pag. 141. another saith that among other things this gouernment by presbyteries Is such as for the keeping of them if we haue them forth obteining of them if we haue them not he will not saie Our honors or our commodities and welth but our liues ought not to be deare vnto vs. Another c Admon 2. pag. 61. saith they are forced to speake for it and to vse it And d Br. a fourth no lesse peremptorie than traitorous whom I hope they will not allow of saith If the prince will not establish this gouernment that hir subiects need not to tarrie for hir but ought t'innouate the gouernment themselues Diuers of the French reformers are also too violentlie affected that waie One of them hath deliuered e Fran. Iun. pag. 28. that If the prince doo hinder the building of the church f Pag. 3. or doo affect the seat of God that is in their sense and meaning deale in ecclesiasticall causes and hinder the presbyterie the g Pag. 28. people may by force of armes resist him To which end also h Admon 2. pag. 29. that seemeth to be spoken where it is said that many a thousand in England desire that platforme and that great troubles will come of it if they be still with-stood in their deuises And if none of those disâ—ciall practises can be put in vre which some of that disposition and affection to those presbyteries haue deuised by arming inferior officers and magistrates against their souereignes then they would * Of obediâ—nce pa. 59. haue The ministerie t' excommunicate the king Wherby they would falslie gather by the Feudall law or of tenures as we call it * De iure magistr pag. 66. that the vassall is deliuered from his allegiance and oth of fealtie or homage which he hath taken to his souereigne lord if he be once excommunicate In which respect also * Of obedience pag. 52. 53. some of them doo affirme that though popes taking vpon them to depose princes for sundrie enormities did vsurpe vnto themselues an vnlawfull authoritie yet the reason that mooued them so to doo was honest and iust and méet to be executed by the bodie or state of euerie common-weale and yet forsooth these be especiall fréends and fauourers of the Quéenes prerogatiue But touching that place there alledged out of the second booke Feudorum tit 28. § 1 it can no waie be vnderstood of an absolute and souereigne prince that holdeth not his kingdome ouer of anie mortall man but of God alone no not in those countries and territories where otherwise the Feudall law in meane lords hath place First because the Vassall or tenant as we call him being deliuered of his fealtie seruices and tenancie and the said seruices being not to be extinguished in the Vassall but for the lords default to be forfeited to another it cannot be vnderstood of a souereigne lord who hath no superiour but God to take the forfeiture that is growne against him Secondarilie the circumstances of the law doo declare this to be vnderstood of a meane lord and not of the king himselfe The vassall saith that law is not bound to helpe or to doo seruice to his lord being excommunicate or banished by the king but is in the meane time loosed from his oth offealtie till he be restored by the church or the king Againe all this Feudall lawe being a customarie and vnwritten law and by the tolerance of kings and other souereigne lords ouer warlike nations suffered to growe in vse for the reward and incouragement of those that had valiantlie demeaned themselues in their warres it cannot be credible that the king would permit such a custome to preuaile euen against himselfe whereby he should reteine his owne subiects no longer in their allegiance than it should please another man Moreouer this law had his beginning and speciall increase amongst the Longobards and other such Martiall people before they were conuerted to Christianitie from their Gentilisme which maketh me to thinke that this point of excommunication was added afterward by the compilers of the Feudall law according to the vse of their times for the paritie and equalitie of reason that séemed to be in Banishing with Excommunication But most stronglie is this sense which I haue giuen confirmed by the testimonie of verie good historiographers * Ottho Erisingen lib. 6. cap. 35. chro I doo read and read ouer againe saith one the acts of Romane kings and emperors and I can no where find that any of them was euer excommunicated by the Bishop of Rome till this William king of England was excommunicated by Alexander the second about the yeare of our Lord 1066. And Iohannes Tritenius * Chron. Hirsaug ca. 14. writing of the emperour Henrie the fourth saith thus For which pertinacie he was excommunicated by Gregorie the seuenth and by a synodall decree of Bishops was deposed from the empire although he cared not for it And he is the first of all emperors that was deposed by the pope And another in his chronicles of the yeare 1088. calleth it in a maner an heresie then scarse sproong vp that Presbyteri priests or elders if you will should take vpon them to release the subiects of a king from their oth and allegiance Odo * Sigebertus monachus Gemblacen saith he being first a Cluniake moonke and after Bishop of Hostia was made pope against the emperour and Guibertus Heerevpon offenses in the church and turmoiles of dissention in the common-weale did increase whiles one disagreed from another that is the kingdome from the priesthood Trulie if I may speake with good leaue of those who be good men this plaine noueltie I had
manie or more weightie reasons do swaie one waie against fewer or meaner reasons of the other side Secondarilie this happeneth when as one reason and principle is so counterpeised with another to the contrarie that it cannot well be decided whether of them ought to be of more moment As when it was doubted whether in fauour of libertie it were better to permit a yoong man alreadie come to his owne guiding to manumit his bondmen or else to bind him from it till he should atteine the setled ripenesse of xxv yeares of age required to other his alienations It was by Iustinian prouided Feriendo medium bicause of inconuentences that appeared on both sides that he might manumit them at the going into the xviij yeare of his age And this equalitie indifferencie of principles differing as it were euenlie among themselues is that which bréedeth such great diuersitie of iudgements and so manie controuersed opinions in law both In schooles and consistories when men in pondeting and waieng of them are distracted into diuerse opinions thereabouts Whereof rightlie to determine is in truth the cheefest point of maturitie and discretion that may be wished or can be had in a notable iudge And yet herein it offentimes commeth to passe that in respect of right and iustice it is not greatlie materiall whether the one reason or the other be allowed bicause in regard of sundrie circumstances reasons and motions of a mans mind the selfe-same thing may be diuerse waies if not well determined of yet at the least not vniustlie which bicause vnskilfull men doo not vnderstand thinking that vpon euerie externall transmutation of anie matter the inward propertie thereof is changed and haue not learned to conceiue that as in the sea it is not requisite nor skilleth greatlie to haue all men saile iust in one line which go for one hauen or port they doo therefore make great stirre about nothing as some huge volumes of law for want of consideration hereof vainelie written may testifie Thirdlie when as the weight of these contrarie principles about a matter are neither such that one of them may farre surmount the other nor yet of such equalitie but that the one shall something rebate and diminish the force of the other whereby that which directlie cannot be brought to passe is by some circuition otherwise effected As although no law of nature be to the contrarie but I may freelie marrie hiâ— which was betrothed onelie in mariage vnto my brother without solemnization or carnall knowledge yet is this in regard of a kind of externall publike honestie not permitted by law positiue And though reason would that a man should not be damnified by anie contract wherevnto he is inueigled by guile and mal-engine neuertheles it is thought necessarie that he should first by sentence haue his intire restitution vnto that condition which he was in before his circumention And further vpon due consideration of circumstances euen the principles and reasons that be generall doo often yeeld and giue place to those which be but singular ordinarie to extraordinarie internall to externall yea and naturall to such as be but ciuill and positiue though by ordinarie course it be cleane contrarie Which due pondering of circumstances is of such force that it interpreteth offentimes the generalitie of some lawes of God and declareth in some especiall cases the reasons of them to cease though they themselues in generalitie or in Abstracto as others do speake are immutable For though the law of God be generall that he which sheddeth mans blood his blood shall be shed by man that we should doo no murther yet is not the magistrate or executioner of iustice vpon malefactors nor they which in their owne iust and necessarie defense or by chance-medlie and misaduenture doo happen to kill another guiltie of the breach hereof or to be punished with penaltie of death And therefore vpon these and such like circumstances God himselfe did dispense with their life and appointed vnto them certeine cities of refuge as sanctuaries to flie vnto for their safegard So did he by Moses his seruant dispense for the hardnes of their harts with the law of thâ—indissoluble knot of mariage And though by the law of God and of nations all contrectation of another mans goods without the owners consent be theft yet is this matter so qualified and abridged not vnlawfullie with vs in England that an apprentice or seruant which carieth and imbezeleth awaie his maisters goods and wares remaining in his custodie and vnder a certeine value shall not be holden as a theefe or punished as a fellon And it is euident that exceptions doo abridge and limit the generalitie of rules the common law of the land dooth restraine and interpret the Maximes in that law and the statutes and acts of parlement doo cut off the common law But let vs passe from those things which in generalitie being forbidden haue yet their exceptions and vpon the concurrence of some circumstances are exempted from the reasons and generalitie of such lawes Touching his Antecedent which is that The reasons of prohibiting pluralities are drawne from the law of nature and of God which hereby he prooueth bicause they were forbidden For auoiding of couetousnesse ambition theft murther of soules dissolution and for reteining of comlinesse and decencie in the church it hath béene partlie spoken vnto in the beginning of the examination of this treatise Further it is to be remembred that if these inconueniences doo but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and for the most part follow the enioyeng of mo benefices by one man or be but Causae 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or impulsiue vnto that prohibition for the surer auoiding of such danger then cannot anie sound reason be grounded vpon them to prohibit mo benefices to be reteined by one man both bicause a good man may vse that thing well which might be an occasion of sliding vnto some other not so well staied and also for that the law may remaine where the impulsiue cause thereof ceaseth and of the contrarie such cause may be of force when the law is abrogated But if he will make them necessarie actuall effects arising as of a formall or efficient cause from the reteining of mo benefices and presume necessarilie that all these must needs possesse him that inioyeth them then should this fall out to be so either by reason of the quantitie of the stipend liuelihood arising of them by the quantitie of ground and content of both the parishes by the number of the parishioners of both or by the diuiding of the auditorie whome at seuerall times the minister is to instruct If the quantitie of the liuing and reuenue doo so necessarilie infâ—ct a man with these vices and enormities then should he haue set downe what ought to be the iust measure and standard of euerie ministers yéerelie reuenue which he may not come short of least he want sufficiencie of maintenance nor anie waie
Ordinaries priuitie or where two beneficed persons in good and plaine meaning without allowance of the cause by the Ordinarie doo deale about a change of their benefices or where a man is circumuented by suborned witnesses and depriued for it without remedie of appellation and the ill dealing is detected afterward In which in like cases it is meet that they should be restored to their ministerie and liuing if they be otherwise vnspotted and be profitable to the church And I verelie doo persuade my selfe that hir Maiestie would be loth in such cases to haue them depriued that the might haue the first-fruits of their benefices as the Abstractor dishonorablie would insâ—â—uat Yea and those also are directlie within compasse of that simonie which we call Mentalis of mind onelie which sée well inough what is meant by their patrons but willinglie doo winke and so enthrall themselues by large bonds to their patrones vpon warning prefixed to resigne either to grant a lease for a little to paie or to packe Whom assuredlie I doo so little pitie that I thinke them as vnworthie to obteine a dispensation for dallieng with the law and their owne conscience as those other merchants which bluntlie go to worke agree with their patrone pitch and paie That dispensations for manie benefices which is the last of the three is a decrease of hir Maiesties reuenues he would prooue thus bicause they being hereby in a few mens hands doo not fall void so often as they would doo if euerie seuerall man had a seuerall benefice and thereby hir Highnes first-fruits are not so often paid ouer as they might be For the discussing of which weightie point let vs imagine that a hundred men haue two hundred benefices and on the other side that two hundred men haue two hundred benefices Now can anie man giue a reason why it is not as likelie that ten men of the one hundred shall die in one yeare as twentie of the two hundred seeing it is the same proportion Then I praie you what difference or alteration to hir Highnesse treasure is it whether twentie benefices fall void by the death of ten men or the same number become void by the death of twentie seuerall persons in one yeare So that if hereby there arise no diminution and the taxe for the dispensation be an increase of the reuenues then shall the Abstractors argument Ab vtili be found to be scarse to his owne honestie and credit And if the time of expectance of the auoidance of his benefices which hath two did worke anie diuersitie betwixt the two cases yet were this delaie of time sufficientlie recompensed vnto hir Maiestie by the taxe of dispensation paid to hir cofers Yea if those which haue mo benefices doo fat vp and grease themselues as he afore obiecteth hir Maiestie shall be in great likelihood to haue first-fruits paid ouer for both their benefices much sooner than for him that liueth vpon one more â—rugallie and sparinglie yea and further these times are so quarelsome that by one quirke or other of circumstance about them and their dispensations which haue two benefices more auoidances a great deale doo happen than in such seuerall benefices which are and haue beene inioied for the most part by seuerall men as dailie experience teacheth Now for the better remouing of a scruple which happilie might be obiected by some vnskilfull man against all dispensations priuileges indulgences exemptions pardons and immunities whose effects are either To benefit to exempt to helpe or to release I hope it will not seeme impertinent to speake something For it may be alledged that the office and nature of a law is generallie and in common to ordeine concerning the guiding of the affaires of men as Aristotle teacheth in his Politikes And the law a L. 5. ff de legibus saith that Lawes are to be applied rather to those matters which happen easilie often than to those which chance but seldome And b L. 1. ibid. againe A law is a common commandement where vpon it séemeth that the old lawgiuers among the Romans as holding it vnequall to set downe lawes which were not to reach indifferentlie vnto all in generall did c 12. Tabule decrée thus Priuilegia ne irroganto let no priuileges be granted In which respect a d L. 16. ff de legibus priuilege is described That it is a singular right or law which for some vtilitie by authoritie of the lawmakers established against the tenor of reason Whereby it might séeme that all immunities are vnlawfull But it is to be answered hervnto that the naturall iustice and reason wherby mans mind is directed vnto ciuill societies dooth not alonelie rest in the generalitie of lawes but aduisedlie weieth by the circumstances whether right to all men be well distributed in them whervpon the Graecians called the law vouâ— as it were a distribution So that if anie person vpon something especiallie considerable be not well and iustlie prouided for vnder the common and generall precept of lawe then he is to be respected â—â— a priuate and speciall law wherevpon the name of â—â—â—â—â—lege floweth Quasi priua id est priuata lex as 〈◊〉 Romans vsed to speake For not onelie they but all other nations as they afterwards grew more prudent daie by daie through long experience and vse of things did well perceiue that no law generallie written without all moderation by circumstances occurrent could possiblie but deliuer in stéed of right oftentimes plaine iniurie and tyrannie according to that common prouerbe Omne ius habet annexam gratiam Euerie law hath or ought to haue grace and sauour annexed an * L. respiciendum ff de poenis example also whereof is reported in law and therefore sumum ius est summa iniuria Exact and precise law is great iniurie being once disioined from equitie And therefore those words Against the tenor of reason are not to be vnderstood as though a priuilege were against naturall equitie but bicause it is an abridgement or exception of the generall principles and rules of law which are grounded vpon reason Neither yet so as though it did cléerelie contrarie and impugne the reason of the common and generall law which it onelie dooth in some appearance but being considered vpon other good grounds it is for the most part verie agréeable to reason right and equitie which may be made plaine by this one example It is of common right and equitie For euerie * L. 1. ff de pactis instit de fideiuss in princ man to keepe touch to performe promise and to satiffie the credit giuen him either in his owne or in an others behalfe Yet if we should comprehend children vnder age in the generalitie of this rule who be subiect by reason of their tender yeares and slender discretion to be circumuented and manifoldlie ouer-reached it were a verie vniust and vnequall law And therefore seeing there is such inequalitie betwixt them and men of riper yeares the same rule cannot without iniusties alike perteine vnto them both so that it is méet by some exemption and speciall priuilege that their tender yeares should be considered and prouided for To conclude neither are all priuileges and dispensations against reason or right neither hath the Abstractor sufficientlie prooued any of these particulars of this treatise which here he dooth recapitulate and rehearse but much lesse hath he prooued his principall issue that Dispensations for manie benefices are vnlawfull Which at the closing vp of all for verie shame he was forced a little to change by pretending to haue spoken all this while of Two or mo benefices and not of Manie as the verie title which he hath prefixed to his treatise and his whole discourse therevpon dooth plainelie import FABIVS Foelices essent artes si de illis soli artifices iudicarent FINIS Quorundam vocabulorum semiclausularum recognitio Pag. Lin. Recognitio 6 16 Of 9 31 legatine 45 1 mustered 64 13 euer 64 30 whence 57 36 from other churches 58 24 sound 69 22 where 71 21 hir 73 17 holdeth not when 76 25 yet with this 82 17 seeketh 105 7 deposition 105 23 legatine 110 4 end 111 22 Bishop 117 9 altercation 117 11 matter 121 7 tossing 127 15 deconship 136 16 generallie it is 161 29 for him not to 191 3 or 193 24 vtilitie 196 34 Apostatare 227 19 deodans 228 13 as being 257 13 aboue 295 19 no man taketh this honour 318 31 the dust of the féet of their seniorie Addatur 3. lineâ— termino in pag. 227. istud subsequens Ergo without a dispensation it is not lawfull to enioy mo benefices