articles commissions are appointed to be directed to the Archb. or Bishop of the Diocesse and to his Chauncellor or Commissarie and such other as the Kinge should appoint giuinge them power to take information and accusation not by oath of the partie conuented but by the oathes depositions of two able and lawfull persons at the least or to enquire by the oathes of xij men Giuing also to the Ordinaries power and authoritie to enquire in their visitations and Senis and to take accusations and informations as in forme aforesaide and not otherwise The maner also of processe against the persons indighted accused or presented is there prescribed And the forme of proceedinge vpon apparaunce of the partie appointed to bee not according to those vnjust examinations by oath ex officio but accordinge to the lawes of the Realme and th' effect of that act And although at that tyme this statute lawe seemed just and equall as concerning the maner of enquirie and trial yet time disclosing all thinges made it appeare that the same was not false in respect that diuers secret and vntrue accusations and presentementes might bee and by all likelihoode were maliciouslie conspired and therefore it was enacted Anno 35. H. 8. cap. 5. That no person should bee arraigned or put to triall for or vpon any accusation information or presentment concerning any of the offences mentioned in the statute of 6. articles but onely vppon such presentementes and indightements as shoulde bee sounde and made by the oathes of 12. men or moe c. These things standing thus howe may any man justifie or defende much lesse practize those generall oathes or examinations by oath ex officio by any statute lawe of this Realme being by them not onelie rejected but vtterlie condemned as not standing with the right order of Iustice nor good equitie especiallie the statute made Anno 25. H. 8. beinge in force and limitinge vnto Archb. and Bish none other jurisdiction then such as they may vse without offence to the Prerogatiue Royall and the lawes and customes of this Realme Of which lawes and customes the common lawe is no part or portion And as a well-willer I would aduise all Ordinaries and such as exercise Ecclesiasticall jurisdiction especiallie hauing taken the oathe ordeyned for the maintenaunce of the Supremacie Royall wherein they sweare to assist to their power and defende all jurisdictions Priuiledges Preheminences and authorities graunted or belonging to the Queenes Highnes her heyres and successours or vnited and annexed to the Imperiall Crowne of this Realme to take heede that they attempt not to put in practize or exercise any such Oathes or examinations ex officio least happilie they bee not onely founde thereby to be impugnors of the Royall Prerogatiues but discredited farther by the breach of their oath If it be saide for what will not be moued for a defence that the King heretofore gaue in those cōmissions besides the lettre and meaning of the statute of 6. The Kings commission Articles power and authoritie by expresse words vnto the Commissioners Ecclesiasticall to examine by oath the persons accused or presented As that is not likelie neither as I suppose can be proued So admitting it were true and that such kind of oathes were consonant to the lawe of God yet were the same no sufficient or lawfull justification inasmuch as we haue prooued and further shal prooue such examinations and inquiries vpon oath to be injurious both to the Prince and people of this Realme and to impugne our gouernement and forme of Iustice In which cases the Kings graūt or commission is of no force in lawe For as Bracton well hath written Potestas Principis juris est nō injuriae cùm ipso sit author juris non debet inde injuriarum nasci occasio vnde jura nascuntur That the King by his Commission or graunt or otherwise thē by Parliament may not change or alter the lawes of this Realme nor the order maner or fourme of administration of Iustice is rightlie also noted vnto vs by that graue and learned Iudge Maister Fortescue saying Non potest Rex Angliae ad libitum suum leges mutare Regni sui Principatu namque nedum Regali sed politico ipse suo populo dominatur And by the booke also of Anno 11. H. 4. where it is agreed that neither the King by his graunt nor the Pope by his Bulles for all his triple Crowne can change or alter the lawes of the lande whervnto concurre diuers other bookes of the report of the lawe Worthie also of remembraunce is that saying of Iustice Scroope Anno 1. Ed. 3. fol. 26. If the King sayeth hee commaunde any thing impossible that which the lawe will in the case must be done 49. Ed. 3. 36. H. 6. if he commaunde any thinge contrarie to lawe his Iustices ought not to doe it Anno 42. Ed. 3. There was a Commission awarded out of the Chauncerie to apprehende a certen subject of this Realme and to seize his goods and chattells no enditement suite of partie or other due processe of lawe precedent and the same was by the Iustices holden to be altogither voyde as a matter against the Pollicie of the Realme and maner of execution of justice Likewise it appeareth in the same yeare that a writte proceeding from the Chauncerie to enquire of Chaunperties Conspiracies c. whereby one of the Kings subjectes stood indighted was by Iustice Kneuet vppon the resolution of the rest of the Iudges damned adjudged voyd in respect that such matters are not inquireable by writ but by Commission But it wil be said of some I verily suppose that although neither the common lawes nor statutes of this Realme nor the Kings commission doe or can warrant such maner of oath and examinations ex officio yet the publique practize and vse of the honorable Courtes of Starchamber Chauncerie the one in causes criminall the other in suites ciuill of equitie and conscience concurring in one forme of taking aunsweres and examinations by oath doe fortifie and confirme the thing which wee impugne Whiche speach as it may seeme at the first to giue some coulor and shewe of credit to their cause so vppon consideration had and due comparing the one with the other it will soone appeare to be but a vanishing smoake and shadowe voyde of substance For first if it should bee graunted that such kinde of oathes and examinations were vsed in the Courts of Starchamber and Chauncerie yet would it not followe that the same might be practized in the Courtes and Consistories Ecclesiasticall vnlesse the like allowance thereto and consent of the whole Realme might be prooued also And who knoweth not howe weake a profe examples and presidentes are where an expresse lawe or certen policie is to the contrarie Therefore it is well said in the ciuill lawe Jus non ex regula sumatur sed ex jure regula fiat By better Logick might they
Reignes of King H. 2. and Richarde the 1. and of King Iohn denied the payment of tribute and subsidie blustering and puffinge out moreouer like Cacus in his denne his smokie blastes of cursse and excommunication against the Kings collectours A notable example of humilitie and obedience in a Popeholie Bishop It is saide also by Maister Frowick Anno 10. H. 7. That the Cleargie had a Constitution that no Priest should be impleaded by the common lawe of this Realme for any cause whatsoeuer whether he saide truelie therein lette the Canonistes judge But certain I am the whole rabble of that Romish Cleargie did from time to time their best endeuour to make them selues lawlesse altogither as by the grieuances exhibited by the Princes of Germanie at the Counsell of Norrenberg in the time of the Emperour Charles the fifte may well appeare And this our haughtie Hugh of Lincolne eyther emboldened by such a Cannon or of his own free courage as a lustie champion of that irregular confederacie drewe out his woodden dagger of excommunication against the Kings Iudges and Magistrates secluding them as farre as his follie might from the fellowship and companie of Christians because they had by course of lawe imposed a fine vpon a Proselite of theirs newlie crept into their vnholie orders for his trespasse committed in the Kings Forrestes 27. H. 8. So likewise the reuerende Iudge Maister Fitzherbert declared that in the time of King Henrie the 6. a Bishop of Winchester being outlawed for no lesse fault then wilfull murther and his temporalities therfore seized into the Kings handes refused the iudgement of lawe and sued to the court of Roome the Pope writinge to the King in his behalfe aunswere was made that the lawes of this Realme were such wherevpon as vanquished and driuen from his shiftes the Bishop submitted himselfe to the grace of the King and though vnworthie obteined pardon We heard also in the 2. yeare of King H. 4. howe the Popes publication or collector tooke vpon him by vsurpation of authoritie to take both oath and obligation of a certain Vicar to holde him selfe contented with such endowment as the collector had appointed the Parsonage being appropriate to the Deanrie of Windsor and howe the Deane drewe the Vicar into plea before this new founde Iudge the Collector for the breache both of his oath and bonde Vpon which wrong done to the Royall jurisdiction the Vicar complayning had a Prohibition In which case are principallie to be noted the vnlawfull imposing of an oath by one that was no Magistrate but quid domini facient audent cum talia fures and th' injurious pro sequting and drawing into plea of the Kinges subject before an incompetent Iudge by this Deane a Cleargie man of the Realme In like sorte the Hospitallers and Templers assuming to them selues jurisdiction in prejudice of the King and of his Crowne drewe the subjectes of this Realme into suite before the Conseruators of their Priuiledges for causes perteyning to the jurisdiction of the Kings Courtes for reformation whereof the statute of Westm. the 2. cap. 43. was ordeyned Howe rigorous injurious and intollerable the dealinges ex officio by those Prelates and Ordinaries were whereof these examinations by extorted oath were a principall parte the grieuous complaint of the whole Communaltie of this Realme in the 23. yeare of the reigne of King H. 8. doeth sufficientlie declare Whereby the King was enformed how these mercilesse Ordinaries by their extraordinarie lawlesse power cited and sommoned his subiectes feyned and framed straunge accusations against them no accusers appearing examined them vpon articles captiouslie deuised for their purpose and in the ende admitting no defence and disallowing all purgation forced them to abjure or condemned them to the fire a most fearfull and barbarous course of inquisition Vnto which complaint those Pharisaicall Cleargie men who will not enter Pilates common Hall least they should be defiled and yet crye out with loude voyce Crucifige crucifige made as to the King him selfe there it seemed a verie weake and slender defence And no maruayle since wickednesse may more easilie be committed then well defended But will you see more fullie and clearelie beholde as in a glasse the manifold vsurpations incrochmentes injuries and oppressions committed and done from time to time by the Pope Prince of that curssing accursed Cleargie and by his sworne deuoted Baalamites and shauelinges against the rightes and prerogatiues of this Imperiall Crowne the lawes of this Monarchie and the liberties of the subjectes thereof then read and consider the grieuances of the commons exhibited against the Cleargie Anno 21. H. 8. the seuerall statutes of Prouision and Premunire the statutes of Mortmaine with the diuers kindes of prohibitions to the Courtes and Consistories Ecclesiasticall Among which you may finde an especiall prohibition with an attachement therevpon deuised against these injurious oathes and examinations as against abuses greatlie offensiue to the Crowne and dignitie Royall Which the better shall appeare by the writtes them selues which are in this forme set downe in the Register Prohibitiō Rex Vicecomiti salutem Praecipimus tibi quod non permittas quod aliqui Laici ad citationem talis Episcopi aliquo loco conueniant de caetero ad aliquas recognitiones faciendas vel Sacramentum praestandum nisi in casibus Matrimonialibus Testamentarijs teste c. And the Attachement is in this maner Rex Vic salutem Pone per vados c. talem Episcopum quod sit corā Justiciarijs nostris c. ostensurus quare fecit summoniri per Censuras Ecclesiasticas distringi laicos personas vel laicos homines foeminas ad comparendum coram eo ad praestandum juramentum pro voluntate sua ipsis invitis in graue praejudicium Coronae dignit atis nostrae Regiae necnon contra consuetudinem Regni nostri c. By the consideration of which writtes and especiallie of these wordes recognitiones sacramentum pro voluntate sua and ipsis invitis we may plainlie perceyue howe all these inquiries examinations Hindes case and 18. R. Eliz. prooueth no lesse and sifting out of matters by oath and by way of inquisition in the Courtes Ecclesiasticall are by the Regall authoritie impugned and that as prejudicial to the Crowne and dignitie Royall and the lawes and customes of this Realme these wordes pro voluntate sua expreslie deuoting vnto vs the vsurped officious power and licentious pleasure whereby contrarie to all due course of Iustice they constraine an aoth And these wordes ipsis invitis manifestlie painting out the rigorous injurious and compulsarie exacting of the samo Moreouer we see it declared by the statute of Marlebridge cap. 23. That no man may compell anie free-holder of this Realme to sweare against his will without the Kings precept or commaundement that is according to the lawe and Iustice of this Realme for so are we taught to vnderstande the same by the
Deane of Welles whose Deanrie was a donatiue passing therein beyonde the limites of his jurisdiction fell into the daunger of premunire And being called into question and hauinge no just defence was faine to appeale to the Kings mercie and obteyned a pardon And that booke of 5. E. 4. before remembred setteth downe the reason noting these wordes of this statute in curia Romana vel alibi In which wordes alibi sayeth that booke is intended the Courtes of Bb. So that if a man be excōmunicate in any of their Courts for a thing which apperteyneth to the Royal Maiest that is to say sayeth that booke in a matter of the common lawe the partie excommunicate shall haue a premunire facias and so was it adjudged In whiche wordes among other is speciallie to be noted that when so euer a wrong or injurie is offered to the common lawe of this lande there the Kinge is saide to be touched and his Royall Maiestie impeached For accordinge to the Princelie speach of that most Noble King Ed. 3. in the statute of Prouision made in the 38. yeare of his raigne the Kinges Regalitie chieflie consisteth in this To susteine his people in peace and tranquillitie and to gouerne them according to the lawes vsages and franchises of this Lande wherevnto he is bounde by his sacred oath made at his Coronation If then by vsurping cognizance of plea in causes cōcerning the common lawe and the jurisdiction of the Kinges Courtes the Ecclesiasticall Iudges touch the King in Capite doe against him his Crown Regalitie Realme so cōsequentlie incurre the forfeiture penalties of Premunire Howe much more doe they touch the King nay rather lay violent handes on him impugne his Royall Throne and Scepter who contrarie to the Pollicie Iustice Lawes Customes and Freedomes of this Kingdome yea the lawe of God it selfe enforce constraine by censure of excommunication otherwise the Kings people to appeare before them and extort from them an oath to accuse them selues And for more plaine demonstration if plainer may be put the case that a Iudge Iustice or Commissioner authorised by the Kinge to execute justice according to the lawes of this Realme should take vpon him by colour of his office and authoritie to conuent the Kings people before him and vppon their apparaunce to offer vnto them this general oath to aunswere vnto all such questions as him selfe should propounde playing in causes criminall the part both of accusor and Iudge or seekinge by oath and captious Interrogatories matter of accusation wherevppon to proceede to condemnation and to commit the partie refusing such oath to streight prison without bayse or mainprise could any man justifie this his doing to stande with lawe or justice Nay rather might not euerie man justlie cry out against him as against a subuerter of lawe and judgement and a hatefull enimie to our pollicie common wealth yea should not that bee verified of him which is recorded in the judgement against Sir William Thorp sometime chiefe Iustice of Englande for his corrupt dealing which is that as muche as in him laye he had broken the oath which the King is bounde to keepe towardes his people If all this may truelie be affirmed of such a one howe then shall the Ecclesiasticall Iudges practizing in their Courtes and Tribunal Seates the self-same vnjust and vnlawfull manner of proceeding against the Kings people escape the seuere sentence of law pronouncing them offensiue touchers and violaters of the King and injurious dealers against his Regalitie Crown and Kingdome so consequentlie worthie to suffer the paines and penalties declared in this statute of Premunire That this is no newe opinion or construction wee finde the resolution of that learned man Saint Germaine in his booke of Doctor and Student well agreeing where he writeth in this maner Jf any man bee excommunicate in the spirituall Court for debt trespas or such other thing as belongeth to the Kings Crowne and to his Royall dignitie there he ought to be assoyled without making any satisfaction for they not onelie offended the partie in calling him to aunswere before them of such things as belong to the law of the Realme but also the King who by reason of such suites looseth a great aduantage which he might haue of the writs originalles judicialls fines amerciamentes and such other thangs if the suites had bene in his Courtes accordinge to his lawes Hee sheweth further That if the Ecclesiasticall Iudges will not make the partie his letters of absolutiō where hee ought the partie shall haue his action against him Hee affirmeth also The Lawe to bee according where a man is accursed he meaneth excommunicate for a thinge that the Judge had no power to accurse him in notwithstandinge that he may haue his suite of premunire facias Againe we reade howe the late Cardinall Woolsey the Popes Legate here in Englande erected a newe Court or Consistorie called The Court of the Legate in which he tooke vppon him to proue Testamentes and to heare and determine causes in prejudice of the jurisdiction Ecclesiasticall of this Realme And howe by his vsurped power Legatiue he gaue and bestowed benefices by preuention to the disinheritance of the Kings subjectes and vifiting the state Ecclesiasticall vnder coulor of reformation gained to him selfe exceeding great treasure But this loftie height of vnlawfull authoritie weake and feeble in foundation could not long continue For in the one and twentieth yeare of the reigne of King Henrie the eight this proude prieste with all his glorious pompe and glittering shewe of all his Crosses Siluer Pillers guylt Axes imbrodered Cloakbagges and purple Hattes was attainted by his owne confession in a Premunire and the next yeare following all the Lordes spirituall hauinge deserued the same paines and punishmentes for their vnjust maintenaunce and supportation were called to aunswere in the Kinges Benche and knowing them selues guiltie before their day of appearaunce exhibited to the Kinge their humble submission joyninge therevnto an offer of a 100000. pounde to purchase their peace whiche after much suite the King accepted and by Parliament gaue them a pardon If then this Romish Legate for assuming to him selfe jurisdiction by authoritie Papall in prejudice not of the Kinges Courtes but of the Courtes Ecclesiasticall neuerthelesse to the hurt of the Royall Maiestie and for disturbaunce of the rightes and inheritaunce of the Kinges subjectes fell into the daunger and penaltie of Premunire and all the Bishops and Ordinaries of this Realme likewise through their maintayning onelie and supporting the same may we not safelie conclude that the Bishops and Ordinaries in these dayes vsurping power and jurisdiction in like sorte and maner although not in the same particulars by coulor of Antichristian decrees or practizing those popishe Cannons the verie head of that hellishe Cerberus of Rome as a learned man well termed them and the sinewes of his tyrannicall authoritie repugnant to the Royall Maiestie and Pollicie of this