the keyes thoughe happely as the lawe of his realme is nowe he shulde offende his lawes BY. Well I wyl take a respyte to be auysed er that I shewe the my full mynde in this matter and I praye the lette me now fele thy conceyt yf a manne be accursed for that he wyl not obey a decre in a cause of matrimonie and he is in prisone for it vpon the writte De excommunicato capiendo and offereth a sufficient caucion to obeye the churche shall it be accepted SALEM yea as welle in that case as in any oother case and hit shall be valued after the substance of hym that is in prison And if he wyll yet when he is oute of prison disobey the decree and not marye wherby he forfaiteth his caucion than he may vpon a new information made to the kynge in his chancerie be taken agayne by a newe writte De excommunicato capiendo fourmed speciallye vpon the case and be kepte in prison tyl he obey the decree And so he may be in all cases where he is delyuered vpon a caucion and kepeth not his promise BYZANCE Well I am content in this matter but I pray the whether may the kynge in any case denye a writ of Excommunicato capiendo whan it is vppon the certificat of the byshoppe requyredde SALEM yea and that maye be proued thus It apperethe in the regestre that if the kynge at the certificat of the byshop haue awarded forth a writ de Excommunic ca. after the kyng before the partie is takē is enformed that the partye appealed before the sentence or that a prohibition was delyuered and not withstandynge the iudge proceded whervppon an attachement is hangynge before the kyng or elles it appereth that the plee perteyneth clerely to the kynges courte in al these cases the kynge shall graunte forthe a Supersedeas commandynge that the partie shal not be arrested and thervpon it foloweth that if no wrytte be forthe it may be denied whan it is asked and that if the partie be arested before the Supersedeas came that the kynge maye for the same causes delyuer hym oute of prison vpon a speciall wrytte de excommunicato deliberando BISANCE There is no writte de excommunicato liberando in the regestre but where the byshop certifieth the kynge that the parti hath satisfied the church SA All writtes that be grauntable by the law can not be in the regestre the specyall matters proue that he ought to be deliuered out of prison for the time and so a writte may be fourmed vppon the matter wel inough to delyuer hym howe be it he shall remayne yet accursed vnder such maner as he dyd before may be taken ageyne if nede be and that is in fauour of the spiritual iurisdiction For I trow therin is no tēporel lawe more fauorable to the spiritual iurisdictiō thē the lawes of this realme be yet if suche fauour be haply broken somtyme a defaute is founde therat by the clergie as thoughe the holle liberte of the clergie were broken therby where no lybertie is broken at all euen vpon suche a poynte was the sayd cōstitution Seculi principes made For the constitution in the begynning reciteth that whenne suche excommunicate persons be vpon the sygnification of prelates accordynge to the custome of Englande taken and put in prisone that then the prelates bycause they refuse to take a gage wherby the partye offreth to stande to the cōmaundmentis of the churche and to obey the lawe be commaunded to delyuer the partie oute of prison whiche as it is sayde there the prelates maye not nor ought not to do as thei say before due satisfactiō made and thervppon the sayde constytution sayth farther that soo lay men vsurpe the keyes of power and counnynge to the confoundynge of the iugement of the church where the truth is the churche hath gyuen no iudgement that the partye shal be commytted to prisone for it hath no power so to do but onelye to excommunicate the party for the sinne and thervppon the kyng accordyng to his lawes hath delyuered the party out of prison that he imprisoned him selfe bycause the bysshoppe hath refused a resonable caucion And yet it foloweth in the said constitution Wherfore we ordeyne that the excommunicate persones so taken in our prouince and so goinge out of prisone agaynste the lyberties and customes of the churche of Englande shall be to theyr more confusion shewed excommunicate with ringynge of belles and lyghtyng of candelles c. And so that that in the begynnynge of the sayde constitution is called the custome of Englande as it is in dede and is the very cōmon lawe of the realme that a persone excōmunicate shall be layde in prysone by the kyng vpon the certificat of the byshop is after called the libertie and custome of the churche of Englande wherby the constitution meneth that he that goth so out of prisone for that the byshoppe refuseth his caucion and they that let hym out also breken the libertie of the clergie of Englande and vsurpeth the keys of power and cunninge where in dede neyther theyr libertie ne keys be touched but the custome of the realme wherby they clayme their libertie is obserued And if they coud proue the custome of the realme wherby they claim that libertie broken yet they ought not cōplain as though their libertie were only brokē For it is no more their libertie then it is the libertie of al the people of Englāde For al the people of Englāde make the churche of Englāde it hurteth al the people and not only the clergie to haue any one laudable custome of the realme broken And yet the meanynge of that constitution is that that going out of prison hurteth the clergie only And suche singularite hath done moche hurte and wyll do as longe as it contynueth ¶ And farthermore the cause why the said cōstitutiō sayth that prelatis may not nor ought not deliuer the imprisoned by the kinges writte De cautione admittenda the writte is that thoughe as the kynge is informed the partie hath offered to the byshop a sufficient gage that he shall obeye the commandement of the churche after the fourme of the lawe and that the bishoppe refuseth to take hit c. The kynge by that terme Lawe meneth the lawe of his realme whiche is that the partie excommenged shall make amendis to the churche for the synne onely and no satisfaction to the partie For that perteyneth to the kynges lawe And the lawe of the churche is that satisfaction shal be made also to the partie And for mayntenaunce of that satisfaction to be had by auctoritie of the spirituall lawe the sayde Constitution was made to putte the partie in feare to goo out of prisone by the kynges writte And all this riseth vpon the variance of the lawes wherby greatte grudges expenses yea and moche vnquietnes haue ensued and wyl do as longe as it and other thynges lyke
in prison or not he maye well examyne the truthe of the matter For truth ruleth in conscience what soo euer the order of the lawe be and therfore if the appelle in an appele of morder be founde gyltie the iudge of his owne knowelege knewe that he is not gyltie he may not gyue iugemeÌ„t agaynste hym but must rather resygne his office BIS I agree well there but I put case that the appelle in thy case be founde gyltie by false verdite the iuge by examination of wytnesse and by confessioÌ„ of the same iury also come to perfyt knowlege that the appelle is not gilty he may neuer the les in that case geue iugement and is bounde to do it for he toke the examination against the order of the law therfore he must remoue that knowlege bicause he is com to it of his owne wronge ageinst the order of the lawe euen so it is in this case The king ne yet his chanceler neither ought not to haue newli exaiÌ„ed the mater seing that it was sufficieÌ„tly tried proued before in the spiritual court therfore they must remoue put away the conscience that they haue gotten by that vnlawfull examination and beware that they doo not attempte soo farre ageynste the lawe an other tyme. SAL. Though the iudge in the sayde case of appele dyd ageynst the lawe to examyn new witnes yet it is not like to this case For in that case of appele the verdite is of recorde in the same court and it is giuen by auctorite of the same lawe that he sitteth as iuge to iuge vpon it is also tried after the order of the same law so that vpon that matter ther is no ferther trial wherfore I agre wel that he ought not to haue takeÌ„ ther any newe examination but in this case the sentence is giuen in an other court and after another lawe than the chauncellour is sette to iudge vppon For he is sette to iudge after conscience and not only after the order of the lawe spirituall nor temporall but in fewe cases and also the proces of excommunication is to punishe synne and to maynteyne vertue but what punysshement of synne and mayntenaunce of vertue is it if the kynge kepe hym that is no offender in prysone And therfore I thynke the kynge or his chauncellour may well take a newe examination in the matter and do therafter BIS I fele thy conceyte well but yet surely yf suche examination be vsed hit wyll be thoughte by many that the spirituall iurisdiction is therby greatly confounded and that the kynge and his lawes do littel in fauour of it SALEM I se well thou styckest soore to the matter and therfore to ease thy mynd somwhat therin I wyl moue the of two thynges BIS What be they SA One is this if the custome were that whan the excommunicate is in prison vppon the wrytte of Excommunicato capiendo that he shoulde be kepte styll in prison tylle he haue satisfied the churche whether he be ryghtwisely excommunicate or not were this a lawefull custome BIS I thynke naye SAL. And this pretence that thou styckest so moche vpon that there shoulde be no examination of the matter is of the same effect The secoÌ„de is if the parlyamente dyd put clerely away the wrytte of Excommunicato capiendo and lefte the matter in suche case that the ordinaries shulde iustifie al excommunicates by the censures of the churche in the beste maner they coude without any helpe of the kynge or of his lawes shulde the parlyament therby do any wronge to the keys of the churche BY. I thynke nay for the power of the clergie concernynge suche excommunications shulde neuer the les stond styll in her full strength But yet it shoulde breake a good laudable custome of the realme that was fyrst begon in fauour of the clerge of the spiritual iurisdiction SAL. thou sayste euen truth and my meanyng is not that I wolde haue that custome broken but that it shulde appere that thoughe hit were broken that yet no maÌ„ had cause to complaine as thoughe the lybertie of the churche were therby brokin or the keis violate wherfore me thinketh it more expedient for the clergie to take this matter as it is that is to saye that the kynge and his lawes be as well contente to haue suche rebelles as haue deserued punishment yet wyl not obey the keys of the church correctio as they be but yet that the kynge his lawes shoulde therfore in any case be compelled whether they wolde or not to punishe an Innocente it is not resonable thus it shuld seme to be the more indiffereÌ„t way more accordynge with iustice that the mater be examined before the king that if it appere thervpon that the partie offended not that he be deliuerid out of prison that the ordryng of the excoÌ„munication be thervpon lefte to the conscience of the byshop theÌ„ to charge the kinges conscience or his chauncellours eyther with kepynge of hym in prison And then to that thou hast said before that if such excoÌ„munications be taken that it wyl be thought by many that the kyng his lawes do litel in fauour of the spiritual iurisdiction I pray the be iuge therin thy self whether it be moch or litel that the kyng doth whaÌ„ he only vpon the certificat of the bishop taketh the ê‘tie leyeth him in prison there kepith him til he either satisfieth the church or els if he complaine that he hath wronge examineth the mater he being in prison how be it I think that the kiÌ„g in such case may if he se cause let the ê‘tie to bayl haÌ„ging the examination though the shereffe by the reson of the statute of westmÌ„ i. may not do it And nowe to our first matter If the kynge wolde iudge vppon Simony and vsury thynkest thou that he shulde offende the keys BYZANCE I thynke soo for symonye and vsurye be prohibited by the lawe of god and it belongeth to the clergi to declare what is the lawe of god and what not SA Though symonie and vsury be prohibite by the law of god yet that proueth not that princis may not therfore hold ple therof for takyng away of an other mannes goodes and also periurye be prohibyte by the lawe of god and yet princes holde plee therof and thoughe Symonye and vsurye be prohibite by the lawe of god yet it is not declared by the lawe of god what is symonie and vsery and what not And it semeth that princis takyng to them spirituall men as theyr counsailours maye doo that well ynough And if it were ordered that for symonye that the kynges courte shulde holde plee I suppose it wolde doo moche good For hit is not vnlyke but that manye offende therin and yet I here but of lyttell correction in that behalfe And therfore thoughe the kynge iudged vppon symonie and vserye I suppose he offended not
church for their absolution And this article is also holden for lawe in this realme to this daye For in case that the iuge spirituall wyl not assoyle the parti without restitution where by the lawes of the realme he ought to do it the kynge may vppon a contempte commaunde hym to doo it And if he wyll nedely procede to compell restitution a prohibition lyth And that is the very cause why an excoÌ„mengement certified before the kynges iustice by the pope was neuer alowed in this realm bycause the kynge myght not write to Rome to make the absolution in case that by his lawes the ê‘tie ought to haue it ¶ Also an nother article is that the churche shall not defende goodes that be forfayte ¶ Also that plees of det belonge to the kingis court though an othe be made ¶ Also that the sonne of a bonde man shal not be made prest without liceÌ„ce of the lorde These three laste articles be holdeÌ„ for law in this realm to this day And yet it is saide that saint Thomas resisted theym ¶ And as to the thyrde artycle of the said thre laste articles the lawe is this as I take it that if the sonne of a bond man be made priest without the lordes licence that yet he is a bondman as he was before and the lorde may compell him to do him seruice as to a priest belongeth before any other And though the truth were that saint Thomas resisted these articles al that he coulde and that he is yet neuertheles canonised as a saint that proueth nothyng those articles to be vnlaufull For yf he in his conscieÌ„ce thought them vnlaufull that suffiseth to hym as I haue said before ¶ And more ouer if all the clergie of christendome wolde prohibite the saide articles or any article of the law of this realme that is not against the law of god nor the law of reson that prohibitioÌ„ shuld not be of effect in this realme And ther be dyuers other artycles in bokes legendis wherin he resisted the lawe of the realme without cause if it be as the saide bokes doo testifie whiche I remytte to the iudgement of theym that wyll take the peyne to rede them And ouer that in the bokes of some pardoners that haue gone about for saynt Thomas be conteyned many and dyuers friuolous and vntrue thynges for procurynge of money as it is of this article that ne had saynt Thomas ben no man shuld haue sette his chylde to scole nor haue eaten in his house pygge gose nor capon but he shulde haue payed a fyne to the kynge And dyuers other thynges be thus imagyned wherby the people be greattely illuded and deceyued and saynt Thomas right highly displesed For he loueth no vntruth and yet they haue bene suffered to passe ouer frome yere to yere without correction doste thou not thynke my frende Bysaunce that suche thynges wolde be reformed BYZAN Forsoth I thinke it right expedient that rulers and gouernours loke well vpon suche matters But yet somme men wyll parauenture thynke that it is not conuenient for lay men to speake of suche highe thynges as pertayne to great clerkes and hygh lerned men And I haue harde some men say my selfe that before laye men spake of suche high matters the worlde was in good peace and quietnes and that sith they medled therwith the worlde was neuer well but ful of trouble diuision and stryfe And therfore it wyll perauenture be better for the and me to let these matters passe tyll our lorde shall put the rulers in mynde to loke vpon them and se theim refourmed then to speke any more of them and lyttyll effecte or none to folowe of our spekyng SAL. The more that the rulers here of the gruges that be amonge the people the more wyll they regarde theym and wyll the rather sette to theyr assistaunce to helpe to auoyde them sythe they be as well to the high displeasure of almighty god as to the great hurte of the common welth of all the people And I thynke verilye that a common welth shal neuer ryse as longe as these gruges continue And therfore I trust our spekyng shal not be clerely in vain sithe some causis of the said grudges diuisions may happly be put in mynde therby whiche elles shoulde not haue ben remembrid And ther be many presidentes by the which it appereth that laye menne haue reasonned in ryghte hight matters Fyrste when the statute of .xxv. of Edward the third that is called De aduocationibus was made was it not as thou supposest argued reasoned whether the parliament might set remedy in suche cases where the pope made collatioÌ„s or reseruatioÌ„s to any benefices within this realm And who resoned that matter as thou thinkest but the lordes temporal the coÌ„mons verily none For the lordes spirituall durst not therin resist the pope And no more they durst when the questioÌ„ was asked in the parlyament Anno .xvi. Rich. ii whether the pope myghte translate a byshop in this realme without the kynges assent whervnto the bishops made a protestation that it was not theyr intente to saye but that the pope myghte make suche translacions by the lawes of the churche but they sayde it was agaynst the kyng and his crowne if he dyd it And the comons sayd that they wolde sticke with the kinges right in it vnto the deth And the lordes temporal saide that they wolde be with him with al their power And it t s not to thynke that these aunsweres were made sodenly without great reasonyng before And who shoulde reasone hit but the lordes temporalle and the commons and specially they that were lerned in the lawes of the realme ¶ Also sithe it is recyted in the writ De excommunicato deliberando that the king at the peticion of the bishop coÌ„maÌ„ded the shyreff to iustifie suche a certein person by his body as a maÌ„ excoÌ„municate coÌ„teÌ„pning the keis of the church til he satisfied the church c. with diuers other thynges coÌ„monly vsed to be put into the sayde writte whiche be here omytted are not they then that be lerned in the lawes of the realme specially they that shall be of the kynges counsell boundeÌ„ to aduertise the king what is a contemnynge of the keyes of the churche and what not so that he shulde not in such case do any thynge agaynst the keys of the churche I trowe no man wyl say but they be For els the kynge shulde happely be enforced to gyue credence to spiritual men in maters concernyng their iurisdiction ageynst his owne It is not therfore conuenient for any man to say that lay men ought not to reson the power of the churche For if it dimynishe the right of the crowne waste the substaunce of the realme prohibite the laboure or lyuynge of the people they may well speake of it And also ar bounde to speake of it specially they that be lerned in the lawes of the realme