of this nature it is not of the nature of a priuate action betweene man and man nor of suite commenced betweene party and party but the case herein standeth betweene a meane person or a meere periuate man and the whole Church yea betweene the Lorde of Heauen and earth and a Byshop his pore creature It is not I say whether the same should bee executed by man onely because Firmius est iudicium quod plurimorum sententia confirmatur or by fewe vt facilius expedirentur negotia But whether the same should be executed onely by many and not by one because the ordinaunce of God is so And therefore the case standeth in effect thus whether a lawfull prescription by an Archbysh or Byshop agaynst a Deane and Chapter or the custome of an Archdeacon against Archbysh Bysh and Deane and Chapter by the Canon Lawe be a sound substantiall prescription and custome against the whole Church against the family of the Lord and against his ordinance For at the beginning it was not so Whereunto I aunswere that as Nullum tempus currit Regi nullum tempus currit reipub No time runneth against the King no time runneth against the common wealth so in this case and all other of the like nature Nullum tempus currit ecelesiae nullum tempus currit domino No time runneth the Church and no time runneth against the Lorde And therefore though the Byshop may perhaps affirme him selfe to haue obtayned right by prescription to excommunicate without any aduise of the Deane and Chapter yet shall he neuer be able to prooue that hee hath therefore lawfull authority to excommunicate alone sithence the vsadge of the first Church and the ordinaunce of the Lorde are quite and cleane agaynst his sayde assertion Yea I say more namely that euen by the Canon Law it selfe neither Archb. nor B. can truely iustifie any Excōmunication by one man alone at all the said popish custom now ceasing to be any more a custome For in deed the reason of this custome ceaseth to be any more a reasō for such a custom in our time the reason of the former lawes made before this custome vrgeth the same lawes to be practized again now a dayes And therfore as Cessante causa cessare debet effectus the cause ceasing the effect ought to cease vrgente ratione legis vrgenda est lex The reason of the Law vrging the Lawe is to be vrged So the sayde popishe custome ought in deede to cease and the sayde Canon Lawes ought to bee obserued Neyther is the Canon of Boniface the eyght made for the sayd custome any impediment hereunto First for that the saide custome is meerely against the worde of God with which no Pope coulde euer dispence And therefore as contrary to the Apologie of the fayth of the Church of England by no intendement of any statute or statute makers in England confirmed Secondly the Canon of Boniface made to confirme a custom not participating the nature properties and inseparable accidents of euerie good and laudable custome but onely made by a lawles absolute power contrary to the principles and axioms of Law is not confirmed by the statute of 25. vnlesse wee absurdly graunt eyther the said statute to confirme lawfull Canons and a law lesse custome or seuerally to establish a lawlesse custome and to infringe lawfull Canons For this decree of Boniface approoueth and ratifieth such a custome as hath no maner of fellowship or societie with any lawfull custom But to let these things passe and no further to vrge the defecte of the reason of the custome to abolish the custome or the efficacie of the reasons of the Law to establishe againe the law Let vs returne to the lawes and decrees before rehearsed authorising custom to binde as effectually as a law and by them let vs see whether this custome that one shoulde excommunicate alone authorized by Boniface the 8. participate the nature and proprieties of euery such custome as whereof mention is made in the lawes and decrees and if not then let vs conclude the same to be no custome at all Euery vsage is not a custome if no custome then no maner of excommunication either by lawe or custome to be vsed at all For euery vse creptin continued some long space is not therefore by and by a custom so of the nature of a law and of such power as foorthwith it may sholder out written law control cōmon right ff de consti princi l. in rebus Extra de prebend c. liceat de cleric non residen c. consuetudinē §. statuimus lib. 6. ff de legi l. Quod non Glos in c. aqua extra de consecr eccle ver consuetudine In rebus nouis constituendis euidens vtilitas esse debet vt recedatur ab eo iure quod diu obtentum est In ordeining new policies there ought to be an euident cōmodity for that law to be left that a long time hath bin obserued And againe Quod non ratione introductum est sed errore primum deinde consuetudine obtentū in aliis similibus non obtinet that that at the first was not begon by reasō but by error afterwards obteined by custom hath no place in other like cases Consuetudo quae est contra iuris naturam non prodest contra illudius non potest prescribi A custom that is against the nature of law profiteth not and against that law no prescriptiō may be For if the same shal be erronious vnreasonable not lawfully prescribed then is it of sufficient force to expel the law writtē therfore as hurtfull and preiudiciall for the gouernment of the church here after to be abrogated abolished For custome is no more priueledged then a lawe but as a law may be made dead taken away by a custome so like wise may a custome be made dead again by reuiuing a former law And though here might be vsed a peremptory chalenge against this custom begun continued in the popishe Synagogue contrary to the custome of the Church of Christ that for that cause in that respect only the same is farre vnmeet for vs therfore by vs to be vtterly abandoned Yet because we are as yet I can not tell how not altogether freed from the lawes and customes of the popish synagogue Let vs vse the reason of the same lawes to ouerthrow the same custome Neyther yet shoulde any man thinke that therefore the former popish lawes are to be approued as meete lawes for the Church of Christ to be gouerned by For weare there no other grounde of trueth that one shoulde not Excommunicate alone but the reason of the Popish law the obseruation therof wold not be vrged But because wee haue the trueth it selfe confirmed vnto vs at the commandement of the Lord by the Apostles mouth practised by the moste auncient fathers and by their authority and example drawn into
the popish Synagogue vntill the year of our Lord 1295. as the Canons before mencioned doe witnesse for this cause and in this respect onely are these former lawes to be put in execution and the former custome is to be abrogated The lawes woulde bee kept because in effect they containe the purity of the truth the custome woulde be left because the same degenerateth from the simplicity and practise of the former times and is but a meere corruption and a lawlesse deuise of a lawlesse Pope Boniface the eight And that euery one may be well and thoroughly instructed touching the reasons of the lawes following to ouerthrow the former custome hee is diligently to consider that as the Papistical synagogue always fashioned framed her selfe in obedience to her King his lawes and euermore liked that that her King liked and misliked that that he misliked so the congregation of Christe hath alwayes humbled herselfe vnto the will and pleasure of her Lorde and King Christe she hath consented to that onely that hath beene pleasaunt in his sight and hath dissented from whatsoeuer was displeasing vnto him euery one ought to consider that the Popes clergy are not the Lordes people their errours cannot agree with our trueth their ignorance with our knowledge their furie with our peace their deuill with our God their Beliall with our Christ And therefore though the foresayde custome be begon and still continued in the popishe synagogue as ratified by the secret consent of the popes subiectes Yet the same custome ought not eyther to be begone or to be continued in the Churche of Christ as indeede a custome neuer yet by the consent of the Lord himselfe nor any his faithful seruaÌ„ts approued to be any whit expedieÌ„t or necessarie for the good gouernment of his church And hauing thus layde this foundation it is farther to be vnderstoode that euery reasonable custome euerie custome not erronious and lawfully prescribed ought to haue these properties following The firste is this viz. It must be begon and continued ff de leg l. sed et Tacita ciuium conuentione by a secret couenaunt of the citizens agreeing together a long time and by many yeares vsing the same and doing some certayne actes therein For Gloss institu de iure natur § sine script ver consensu consuetudo est quasi communis assuetudo A custom is as it were a coÌ„mon vsage vnto which vse the consent of the people is necessarie and therefore error being contrarie to consent euermore hindereth and letteth a custome Extr. de Do. contumâ— c. 1. Consuetudo quae apud quosdam irrepserat impodire non debet quo minus preualeat veritas vincat A custome crept in amongst certaine ought not to hinder that the trueth preuayle not and ouercome And therfore though the Popes cleargie a long time and by many yeeres passed haue obserued and vsed this custome and haue secretly couenaunted giuen their consent and by their silence haue agreed together that Byshopps and other chiefe officers in their synagogues hauing iurisdiction might excommunicate alone yet the authoritie gotten after this sort by those Byshops in the time of papistrie doth little aduauntage or profit our Byshops in the time of the Gospell For what preiudice can the couenaunt of the popishe Clergye worke against the Citizens of the Lord the professours of the Gospel For though those Byshops haue vsed this authoritie by the space well nighe of three hundred yeares what is that to our Byshops who haue not had the vse possession and light of the Gospell scarcelye threescore yeares in whiche time too there hath beene a continuall outcry made by the Lords seruants against this abuse and a contynuall clayme for the restitution of the Lords owne order that the Lords people might be gouerned and ruled according to his ordinances And therefore that this custome cannot binde the Lords seruauntes I conclude thus 1 They who haue not secretly consented to this custome are not bounde by this custome 2 But the seruaunts of the Lord haue not secretely consented to this custome ff de legib l. de quibus 3 Therefore they are not bound by this custome THe first proposition is the lawe it selfe the second proposition I confirme thus At the beginninge of this custome it is euideÌ„t that the family of the Lord was very smale and the same oppressed in captiuity it beeing in seruitude and bondage coulde not freelye giue any secreat consent to any gouerment all manner of gouenrment beeing violently taken from them And as touching the time since the publishing of the gopsel how far they haue beene from yelding any priuie consent hitherto as well both the open and publicke protestations by the preachinges and writings of manye notable men in the churches with vs as also the vse practice of all reformed churches els where doe manyfest the cleane contrary to the whole world by means whereof the Byshops vnder the Gospell though they haue hitherto vsed authority to excommunicate alone yet therby haue they not gayned any iust title interest or dominioÌ„ therunto For that as yet they haue neuer proued themselues to haue any quiet and peaceable possession of this their iurisdiction and therefore cannot vse this pretensed custome as a lawfull defence against their bretherne and fellow seruaunts Cod de prescript â—rigi vel quadra anni l. si quis l. vlt. Extra de prescript c. sanctorum CONSVETVDO siue possessio debet esse pacifica non violenta sine interruptione ad hoc vt prescriptio locuÌ„ habeat A custome or possession ought to be peaceable not forced without interruption to the end prescription may take place And therfore I conclude againste this custome thus 1 Euerie vnpeaceable forced custom is an vnlawfull custome 2 But this custome that one should excommunicat alone is an vnpeaceable a forced custome 3 Therefore this custome is an vnlawfull custome THe first proposition is the law the second propositioÌ„ our knowledge experieÌ„ce teacheth vs euideÌ„tly inough for though this custome be peaceable in the popish synagogue yet it followeth not that the same therfore is peaceable in the church of Christe For the quiet possession of the predecessor is not coÌ„tinued vnto the successor or any whit aduantageth the successor vnles the successor challeÌ„ge his possession by the same cause by the same title that his predecessor did If the same will in his persoÌ„ continue the possession of his AuÌ„cestor so by prescriptioÌ„ atcheiue the dominioÌ„ or proprieti of any thing he must coÌ„tinue the possessioÌ„ by the same title that his AuÌ„cestor begaÌ„ the possessioÌ„ And therfore sitheÌ„ce our Byshops vnder the gospell the popish Bishops by fictioÌ„ of law be one the selfe same persoÌ„ therfore by al inteÌ„ts coÌ„structioÌ„s of law must of necessity vse the self same title for the continuaunce of their possession and the prescription of their custome one of
set foorth primo Elizabeth the aduertisementes and articles set foorth septimo Elizabeth and this statute being made 8. Elizabeth and so since doth bounde and limit the meaning of the iniunctions and aduertisementes For whereas before the names were vsed in them confusedly this statute doth aptly distinguish them applying properly euery proper office to his proper officer and bringing those names before recited vnto two principal heades For though there be parsons Vicars Curates ministers generally in the Church of whom mention is made in the iniunctions articles and aduertisementes Yet these and euery one of these must by this statute be either a Deacon or a minister specially And beeing a Deacon he ought to execute the office of a Deacon and being a minister the office of a minister by this statute and so a Deacon if he be a Parson vicar or Curate he must execute the office of a Deacon onely that is he must read the scriptures and Homilies by this statute Likewise a minister if he be a Parson Vicar or Curate he must minister the doctrine and sacraments and discipline of Christ he must be a dispensor of the word of God and he must preach onely and yet in saying that he must preach onely I do not exclude him from doing those other dutyes Sine quibus illud fieri non potest Without the which he cānot preach as frō reading the scriptures and praying with the people but I exclude him from those thinges onely which are not incident to his office as from reading of Homilies for he may preach and neuer read Homilies but he can not preach profitablie vnlesse he reade the scriptures and vse prayer What will you then by law positiue barre all ministers that be Parsons Vicars or Curates and yet can not preach from reading Homilies I aunswere that whether they can preach or can not preach Currat lex Let the law runne and let him that hath defiled his handes by laying them vppon such a one contrary to the commaundement of the Lorde and contrary to the lawes of his gouernour vnder whom he liueth and by whom he hath his preferment holde vp his guyltie handes vnto the Lorde for mercy in the day of the Lord and fall downe before hir highnesse for hir gratious pardon in so abusing hir highnesse lawes And to the ende you may see more apparauntly these two offices by the lawe it selfe to be thus distinguished I haue set downe the Bi. wordes pronounced by vertue of the statute vnto the ministers as followeth You haue hearde brethren as well in your priuate examination as in the exhortation and in the holy lessons taken out of the Gospell out of the wrytinges of the Apostles of what dignitie and of how great importaunce this office is whervnto yee be called and moreouer exhort you in the name of our Lord Iesus Christ to haue in remembraunce into how high a dignitie and to how chargeable an office yee be called that is to saye to be the messengers the watchmen the Pastours and the stewardes of the Lorde to teach to premonish to feede and prouide for the Lordes familie to seeke for Christ his sheepe that be dispersed abroade and for his children which be in the middest of this nuaghty worlde to be saued thorow Christ for euer haue alwayes therefore printed in your remembraunce how great a treasury is committed to your charge for they be the sheepe of Christe which he bought with his death and for whom he shed his bloud the Church and congregation whom you must serue is his spouse and his body and if ye shall see the same Church or any member thereof to take anye hurt or hinderauuce by reason of your negligence yee know the greatnesse of your faulte and also of the horrible punnishment which will ensue Wherefore consider with your selues the ende of your ministerie towardes the children of GOD towarde the spouse and bodie of Christe and see that yee neuer cease your labour your care and diligence vntill you haue done all that lyeth in you according to your bounden duetie to bring all such as are or shall bee committed to your charge vnto that agreement in faith and knowledge of GOD and to that ripenesse and perfectnesse of age in Christe that there be no place left among them either for errour in religion or for viciousnesse in life As here you see the whole summe of the office of a Minister recited by Act of Parliament and pronounced by the Bishoppe So in the whole action of ordering Ministers both the bishops interrogatories and the parties aunsweres and all tende to admonishe the Minister still of his duetie in teaching and instructyng the people and in preaching Where the whole action of ordering Deacons tendeth to admonishe the Deacon of his office in reading As thus Will you diligently reade the same vnto the people assembled in the Church where you shall be appoynted to serue Answere I will And againe It pertaineth to the office of a Deacon to read holy scriptures and Homilies in the congregation And againe take thou authoritie to execute the office of a Deacon in the Churche of God and take thou authoritie to reade the Gospell in the Church of God And thē one of them appoynted by the Bishop shall reade the Gospell of that day And no doubt the whole house of Parliament had a singular care to haue these offices distinguished by their lawe euen as they are distinguished by the lawe of Christe him felfe as appeareth both by the places of scripture appoynted by the statute to be reade for euery office And also by appoynting the prouision for the poore vnto the Deacons And furthermore it is his office sayth the bishop by the same statute where prouision is so made to search for the sicke poore and impotent people of the parrishe and to intimate their estates names and places where they dwell to the Curate that by his exhortation they be relieued by the parrishe or other conuenient almose And therefore I conclude againe that the Bishop can no more appoynt the office of prouision for the poore vnto a Minister then he can change or alter an Act of Paliament And therfore that he can no more commaunde a minister to reade Homilies then hee can commaunde him to make prouision for the poore For as touching these wordes towarde the latter ende of this action Take authoritie to preache where thou shalt be appoynted Whereby they take holde no otherwise to suffer them to preach then as they shal be licensed afterward by wryting hath neither head nor tayle They make by their fauourable patience a construction thereof without all ryme or reason They expounde Where which is a worde signifying place and referred to a place for When which is a worde importing time But had this worde When beene placed insteed of Where they might perhaps haue had some cloak for the raine for so the worde When and the word Shalt might both haue
had relation to the time to come And yet notwithstanding this kind of speach would haue been but a harshe kinde of speach namely to saye Take thou authoritie to preache when thou shalte haue authoritie to preach couplinge the present tense with the future tense the time present with the time to come applying that to them selues but men which is onely proper and peculiar to the holy Ghost vsing the future tense and the time to come for the certaintie of the euent thereof instead of the present tense and the time present But these wordes take thou authoritie to preache the worde to the congregation in the place where thou shalt be appointed is a very proper kinde of speach and the wordes them selues carrie with them a naturall sence As if the statute should haue precisely and absolutely sayd thus In what place soeuer thou shalt hereafter be appoynted to execute the office of a minister thou hast now authority giuen thee to preach For in case this were not the naturall meaning of the statute they might well forbid the minister to administer the Sacramentes without speciall licence in wryting or not to pray or not to fast or not to say seruice or not to bury the dead such like But there is more to serue their turnes and to helpe their cause in the law CanoÌ„ in the iniunctions the law Canon being thus Ex. de heret c. excom § Quia vero QVIA VERO NON NVLLI c. But because some vnder the colour of Godlines denying as the Apostle saith the power thereof challenge vnto them selues authoritie to preach whereas the Apostle sayth How shall they preach vnlesse they be sent all they which are forbidden or not sent shall besides authoritie giuen vnto them either from the Apostolike sea or the Catholike Bishop af the place publikely or priuately presume to vsurpe the office of preaching let them be excommunicated and vnlesse they speedelye repent let them be punished with some other competent paine The iniunction beeing this Item that they the persons aboue rehearsed shall preach in their owne persons once in euery quarâ—er of the yeare at the least one sermon beeing licensed specially therevnto Wherevnto I aunswere that this decree and this iniunction requiring speciall lisences to preach And the Bishop by vertue of the foresayde statute giuing authoritie to preach can not iarre much and that one little wrest wil set them in tune their oddes is so small If I saye vnto one by worde of mouth Syr take here the key of the gate of my pasture where my Grey ambling Gelding runneth opeÌ„ the gate bring him out take him to your owne vse I giue him you franckly hath he not as good a title and interest to my horse as if I had made him a bill of sale vnder my hande and seale And hath not the minister likewise as well a speciall license from a Bishop to preach that is willed openly in the presence of God men and Angels as he that hath a special licence giuen him alone in a corner the one is pronounced solemnly in the middest of the congregation the other is done secreatly by a goose quill Moreouer neither doth the foresayde Canon neither yet the Iniunction require a special licence in wryting to the ende that the minister shoulde haue power thereby onely to preache For so shoulde you take away the forme and order appoynted by act of Parliament whereby authoritie is giuen to a minister to preach and commit the making of a minister to the Bishop without a congregation But the ende why a speciall licence ought to be had is not so much for the partie him selfe to preach within his owne cure as for them that shall admit him to preach out of his owne cure And that appeareth manifestly by the eight Article of the iniunctions The wordes are these Also that they shall admit no man within any their cures but such as shall appeare vnto them to be sufficiently licensed therevnto c. And in the ende of this Iniunction it is expresly permitted to euery minister to preach within his owne cure though he be not specially licensed therevnto The wordes are these And that no other be suffred to preach out of his own cure or parrish then such as shal be licensed as is before expressed therfore a minister to preach within his own cure yea thogh he haue no licence is commaunded In the time of Henry the 4. at what time Wyckliffe preached the Gospel the very same lawes were established against him and his brethren to staye the course of the Gospell and yet were neuer any forbidden to preach in their owne parrishes as appeareth by that that followeth Let no man within this Realme or other the kings Dominions presume or take vpon him to preach priuily or apertly without speciall licence firste obtayned of the ordinarie of the same place Curates in their owne parrish churches and persons heretofore priuiledged others admitted by the Canon law only excepted And that no maner of person seculer or reguler beeing authorized to preach by the lawes now prescribed or lycensed by special priuiledge shall take vpon him the office of preaching the worde of God or by any meanes preach vnto the clargy or layety either in the church or without in Latine or english except he first present him selfe be examined of the Ordinary of the place where he preacheth And so being found a fit person as wel in maners as in knowleg he shal be sent by the said ordinary to some one church or more as shal be thoght expedi ent by the said ordinary according to the qualitie of the person Nor any persoÌ„ aforesaid shal presume to preach except first he giue faithfull signification in due forme of his sending and authoritie that is that he that is authorized do come in forme appointed him in that behalfe and those that affirme they come by speciall priuiledge do shew their priuiledge vnto the parson or Vicar of the place where they preach And those that pretend theÌ„selues to be sent by the Ordinary of the place shal likewise shew the ordinaries letters made vnto him for that purpose vnder his great Seal Let vs alwaies vnderstande the Curate hauing perpetuitie to be sent of right to the people of his own cure Furthermore no clergy maÌ„ or PerochiaÌ„s of any parish or place within our prouince of Canterb. shal admit any maÌ„ to preach with in the churches churchyardes or other places whatsoeuer except ther be first manifest knowledg had of his authority priuiledge or sending thither according to the order aforesayde Touching the first protestation to be made promised subscribed by theÌ„ that shal hereafter be admitted to any office roome or cure in any church or other place ecclesiastical contained in these words in the booke of aduertisements In primis I shal not preach or publikly interpret but onely read that which is appointed by publike authority without special
ordayne that the Byshops and their superiours may freely dispence with those that eyther nowe do obtayne or hereafter shall obtayne vnder thee such Churches that they continuing at study for learning be not compelled to be promoted vnto orders vntill the ende of seuen yeares And though this Lawe seeme speciallye to haue respect vnto such as for studie sake are Dispensed with for not entering into the Mynisterye before the ende of seuen yeares yet the reason of the Lawe abridging the time of continuall absence and appoyntinge that the flocke be not left without one able to gouern and teach the same is to be extended to all manner of dispensations whatsoeuer where the like absence may breede the like daunger ff De. vi vi arm l. 1 §. quod vulgo ff De. legib l. non possuÌ„t Vbi eadem ratio idem ius statuendum Where one and the selfe same reason is there one the selfe same law is to be ordeined De similibus simile debet esse iudicium In cases alike a like iudgement ought to be had And it is expresly forbidden in the Chapter QVIA before mentioned that no perpetuall Dispensation for receyuing of Ecclesiasticall fruites be graunted no not by the Pope him selfe And there is expresse mention made of him that shall not be resident vpon one of his Churches that shall be Student in any Schoole of learning that shall be absent from his benefice eyther at the Court of Rome or at any other place whatsoeuer that euen such a one shall not haue any perpetuity by Dispensation thereby to receiue the fruites and profites of that Church from the which for any of those foresay de respectes he may be absent Therefore against perpetuities of Pluralities out of the Chapiter Is etiam out of the Chapter Quia before rehearsed I conclude thus 1 Euery Dispensation graunted for the enioying of the Fruites of any parish Church without limitation of a certayne time is a voyd Dispensation 2 But euery Dispensation graunted for the perpetuall receiuing of the fruites of anye Parishe Church is a Dispensation without limitation of a certaine time 3 Therefore euery such perpetuall Dispensation is a voyde Dispensation THe first Proposition of this Syllogisme is the Position of the law it selfe The minor is most plaine For whatsoeuer is perpetuall the same can not be limited and whatsoeuer is limited the same can not be perpetuall And this perpetuitie in this case an I sayde before hath euermore relation to the terme of life because he is sayd to haue a perpetuitie a benefice that hath a benefice for terme of life And to take away all synister and double dealing in this action you shal vnderstande that a dispensation graunted once for seuen yeares at the ende of the sayde seuen yeares maye not be renued and reiterated for so at the ende of euerye seuen yeares a new dispensation beeing had in effect à perpetuall dispensation might be tollerated and so a man by fraude and couen might enioy that from the which by equitie and lawe he is altogeather secluded Which fraudulent and disorderly dealing by certaine generall principles and rules in lawe is absolutely prohibited The maximes are these De diuor c. quanto §. fi de elec commissa l. 5 Extr. de regni iur c. cum quod ff de ver ad ciuili perti l. li. §. 1. No statutum ipsum fiat ludibrio debitoque frustretur effectu non rebus sed verbis cum sit potius contrarium faciendum let imposita videatur nullatenus ea vice poterit iterato conferri Quod direste prohibetur indirectè non conceditur cum quod vna via prohibetur alicui ad id alia via non debet admittiâ—… quid quis in persona sua facere prohibetur id per subiectam personam exercere non debet That the statute it selfe may not be deluded and frustrated of hir due effect and that the lawe may seeme to be made not for thinges but forwords when the contrary is rather to be done it may not by anye meanes be againe the second time conferred And that which is directly prohibited is not by another way indirectly to be suffered Whensoeuer a thing is forbidden any man one way the same man ought not to be admitted to the same thing an other waye And that which a man is forbidden to do in his owne person he ought not to exercise by a substituted person So that once againe I say if it might please God to stirre vp the hearts of hir highnes Commissioners to haue a mature and ideliberate consideratioÌ„ of the statute before mentioned they shall find matter sufficient to pronounce a great number of licenses faculties dispensations by law to be meerly voyde and of none effect And so many benefices to be voyd in the hands of hir highnes vnto whom by lapse right hath accrued to present For by that statute the Archb hath no power or authority to graunt any other licence faculty tolleration or dispensation theÌ„ such as before the making of the statute was vsed and accustomed to be had obtayned at the sea of Rome or by authority therof But no licence faculty tolleration or dispensation before that time was had or obtayned at the sea of Rome or by authoritie thereof for the Frutes of any parrish Church by way of any kinde or manner of any perpetual dispensation or for any longer time then for 7 years only as appeareth by the former Canons and constitutions therfore none other ought heretofore to haue beene graunted neither though they haue been graunted are they effectual or auailable being graunted Anon iudice contra formam iuris scripti by one that is no iudge and againste the forme of law writteÌ„ ff quod vi aut clam l. prohibeti § plane Iudex non potest vltra facere quam ei concessum est a lege vel consuetudine A iudge may not do beyond that that is graunted him by law or custome Extra de reb eccle non alienam c. It is forbidden that church goods should be alienated without a cause or without authority of the superior If therefore any alienation be made of Church goodes without a cause and 〈◊〉 by authority of the superiour the alienation is voyd 〈…〉 infectis haberi Thinges done contrary 〈◊〉 ought to be accounted as thinges vndon And againe Cod. de leg l. non dubium Cod. de precib imper offerend l. 1. Sufficit legislatorem aliquid prohibuisse licet non adâ—…cerit si contra factum fuerit non valere .. It is sâ—…fficient that the lawe maker forbid though he shall not adde that the thing don contrary to his prohibition shall be voyd And againe Imperiali constitutum est sanctione 〈…〉 ea quae contra leges fiunt non solum invtilia sed etiam pro infectis haberdit sint It is plainly decreed by an imperial constitution that the thinges done against
gouerment and not vppon the worde of God and that the lawe before was contrary yea and is contrarye still where noe suche custome hath beene so prescribed I conclude that in the beginning it was not so and therefore contrary to the commaundement of God and therfore vnreasonable and therefore no custome but a corruption Euerye custome must be lawfully prescribed The second property of euery good and laudable custome in the Church is that the same be rightly and lawfully prescribed otherwise it shall loose the nature of a custome and be of no force to binde And to such a custome these two thinges are necessarily requyred Glos extra de consuetud c. cum quanto First the same must be begun Sciente illo qui ius potest condere With the knowledge and consent of him that hath power to make a law Secondly it must not be Contra neruum ecclesiasticae disciplinae libertatem ecclesiae Against the ioyntes and sinewes of ecclesiasticall discipline and liberty of the Church Touching the former we are first to consider the state and condition of Pope Boniface whether he as a lawfull king gouernour or ruler had power and authoritie to inact and publishe a law in the Church of Christ or no For had he no authoritie to make a law in the Church of Christe then by the foresayd maxime it followeth that he had no authoritie to confirme or establish a custome Now it is manifest that the Popes kingdome is an vsurped kingdome that his power is not lawfully deriued vnto him by the word of the Lord that it is a kingdome more opposite and altogeather contrary to the kingdome of Christ that it proclaymeth doctrines against the doctrines of our Lord Christ that it vrgeth traditions against his commaundements that it inuenteth new sacrifices and disanulleth his onely and all sufficient sacrifice that it is externall and consisteth in outward pompes rites and ceremonies whereas the kingdome of our Lord Christ is spirituall and consisteth in the renuing the inner man If then there be such diuision and dissention betweene these two kingdoms because of the diuers gouernments of these two kinges I terme the Pope a king onely in respect of his vsurped kingdome the one gouerning his subiects by the sword of the spirite the worde of God the other gouerning his adherents by the inuentions of men and traditions of his owne braine it standeth vs the faithfull seruaunts and subiects of the Lord Christ in hand that as we are exempted by his grace and power from the bondage of our enemy so to exempt our selues also frō acknowledging any power to bee in his aduersary to make a lawe or to establish a custome for vs to be ruled gouerned by And as the papist to manifest his obedience to the Pope will affirme this custome to bee avayleable in the gouernement of the popishe churche and to bee good as brought in by the knowledge of their King the Pope so it standeth vpon our allegiaunce and fidelitie to our King Iesus Christ not to confesse this custome to bee commendable but as it is so to account the same altogether corrupt as beeing not brought into the Church with the knowledge of the same our King who hath only power to make a law in his Church but rather foysted in by the power of an vsurper contrarye to our saide King his expresse will and commaundement In deede if our Byshops and other Church gouernours were popish bysh acknowledged the Pope for their general superintendēt and that he had power to make a law they might then seeme to haue some reason by alleadging this custome for their defence neither could I then deny the vse and authority thereof vnto them But the case standeth otherwise with them Our Byshops pretend thēselues to bee enimyes vnto the Popes vsurped power they would bee no maineteyners of his authority they confesse not him to haue power to make a law they account and repute him to be meere Antichrist Yea our Byshops are ministers of the Gospell they are dispensers of the worde of God they bee Legates from the Lord Christ to declare his good pleasure to his people And therefore the state of our question is otherwise and standeth thus namely whether a custome begun and continued in the synagogue of Antichrist with the knowledge of him that in that synagogue had power to make a Lawe bee a good and a laudable custome for the Church of Christ being begun continued without the knowledge of the Lorde Christe And whether the ministers of the Gospell may safely challenge the vse or benefite of any such custome in the ministery of the Gospell or no Whereunto I aunswere and that by Lawe negatiuely For making the Kingdome of our Lorde Iesus Christe and the ministery of his Gospell to bee as it is indeede a Kingdome of power and grace and to bee a Kingdome opposite and contrary to the kingdome of Antichrist I say that there can be no custome brought into his Churche nor practised by the ministers of his Gospell vnlesse the same bee broughte in by the knoweledge and consent of their Lorde and King Iesus Christe who onely hath power to make a lawe for them to be gouerned by And that therefore vnlesse it may be iustified that this custome namely that one shoulde excommunicate alone was brought in with the knowledge and consent of our Lorde Iesus Christe I say that by Lawe this custome is a voide custome And therefore I conclude thus 1 Euery custome begunne and continued in the Church of Christe without the knowledge and consent of Christe who onely in his Churche hath power to make a Law is no custome lawfully prescribed 2 But this custome namely that one should excommunicate alone is begun and continued without the knowledge and consente of Iesus Christe 3 Therefore this custome is not lawfullye prescribed And agayne That this custome namely that one shoulde excommunicate alone is agaynste the force of ecclesiasticall Discipline and the liberty of the church and therefore not auaylable I prooue as followeth 1 Whatsoeuer is agaynste the policye of the Churche of Christe instituted by God for the wholesome administration and gouernment thereof the same is agaynst the force and power of ecclesiasticall Discipline 2 But this custome namely that one shoulde excommunicate alone is agaynste the policy of the Churche of Christe instituted by God c. 3 Therefore this custome is against the force of ecclesiasticall discipline THe firste Proposition is playne and euidente from the definition or discription of ecclesiasticall Discipline defined to bee Christianae Ecclesiae politia à deo illius vectè administrandae gubernandaeque causa instituta The pollicy of the Church of Christ instituted by God for the good administration and gouernment of the same So that whatsoeuer may bee sayde to bee contrary or repugnaunt vnto this forme and manner of Christian pollicy the same consequently may bee affirmed to bee contrarye and
repugnaunt vnto Christian Discipline the sayde policie contayning the very whole and entire nature essence of the saide discipline therfore the one conuertible with the other as the very true and essentiall definition with the very thing it selfe defined The second proposition I prooue by two conclusions 1 Whatsoeuer is the onely policy of the Church of Rome the same is the pollicy of the Church of Antichriste 2 But that one by custome should excommunicate alone is the onely policye of the Churche of Rome 3 Therefore the policy of the Church of Antichrist and if of Antichrist then not of Christ for there is no communion betweene lighte and darkenesse between Christe and Belyall THat the pollicy of the Church of Rome which is my first proposition is the pollicy of Antichriste is euident inasmuch as the Church of Rome teaching for doctrines the traditions of men and hauing her mouth open to blasphemy against GOD and to blaspheme his name and his Tabernacle and them that dwell in Heauen is the Church of Antichrist The second proposition shall be prooued with the second proposition of the Syllogisme following My second reason is 1 Whatsoeuer is not instituted by God for the gouernment of the Church of Christe the same is not the pollicy of the Church of Christe 2 But a custome whereby one should Excommunicate alone is not instituted by God for the gouerment of the Church of Christe 3 Therefore the sayde custome is not the pollicy of the Church of Christ THe first Proposition is drawn from the essence nature of the pollicy of the Church of Christ for that no other pollicy can bee the pollicy of the church of Christ than that pollicy which is instituted by God the Lorde and Father of Christe for God is the onely head of Christe and the lawe giuer vnto Christe for whatsoeuer I haue receiued saith Christe that haue I cōmanded you And that which I receiued of the Lord saith the Apostle that I haue deliuered vnto you Now it is manifest that both our Sauiour Christe his Apostle 1. Cor. 5. 4. 5. Mat. 18. 16. 17 18. deliuered a policie vnto the Church of Christe for the gouernement thereof namely excommunication by many and therfore that excommunication by many is instituted by God for the gouernement of the Churche of Christe cannot bee denyed And if excommunication by manye bee commaunded by God then excommunication by one alone is forbidden by God The second proposition I proue thus 1 Whatsoeuer is the tradition and inuention of man the same is not the institution of God 2 But a custome wherebye one shoulde excommucate alone is a tradition and inuention of man 3 Therefore the same is not the institution of God THe first proposition is manyfest by infinite places of Scriptures especially by the doctrine of our Sauiour in the fiftenth after Mathew where hee proueth that the Pharisees reprehending his disciples for not keeping the traditions of the Elders in washinge their hands haue made the cōmandemēnt of God of noe aucthority by their owne tradition manifestinge thereby that in vain they worshipped him teaching for doctrines mens preceptes The second proposition of this syllogisme with the second proposition of the former syllogisme is proued by the decree of Boneface the eyght before alleadged which Boniface was a man was a Pope and Gouernour in the Church of Rome was an enimy to the institution ordinance of God And therfore against the force and vertue of the sayde custome as not lawfully prescribed and therefore not hauing sufficient power and authoritie of an equall iust vnwritten law beeing brought into the Church about three hundred yeares passed and that by the ratification of Boniface the eyght an enemy vnto the church I conclude thus 1 No custome against the force of ecclesiasticall discipline can bee a custome lawfully prescribed for the law warranteth no such custome 2 But this custome namely that one shold excōmunicate alone is against ecclesiasticall discipline 3 Therefore this custome can not be a custome lawfully prescribed And therfore a meere and manifest corruption THE first proposition is the lawe it selfe The seconde proposition hath beene prooued from the definition of Ecclesiasticall discipline And therefore our sole customarie excommunicatours shall come to late to deny the conclusion I made mention before of one other condition properly incident and inherent to euery custome lawfully prescribed namely that the same shoulde not be againste the libertye of the Church of Christe Nowe that this custome namely that one should excommunicate alone is also against the liberty of the Church And therefore not lawfully prescribed I proue thus 1 Whatsoeuer is against the libertye of the congregation of the faithfull the same is againste the liberty of the Church 2 But a custome whereby one shoulde excommunicate alone is against the liberty of the congregation of the faithfull 3 Therefore the same is againste the liberty of the Church THe first proposition is euidēt because the church comprehendeth the congregation of the faithful Ecclesia congregationem fidelium comprehendit And here according to the supposition of the lawe and according to the meaning of the same lawe whereof I intreate I argue from the generall to the particular thus 1 If for the Pope challenging vnto him selfe absolute power and authoritie ouer the vniuersall Church to excommunicate alone shoulde be contrary to the liberty of the whole societie of the faithfull and so of the Church in generall then for a Bishop challenging vnto him selfe authoritye ouer the particular Churche with in his particular Diocesse to excommunicate alone is contrary to the libertye of the particular societie of the faithfull and so of the particular Church within his Diocesse 2 But the first is not lawfull 3 Therefore the second not lawfull FOR Quod iuris est in toto quoad totum idem est in parte quoad partem What right there is from the whole vnto the whole the same right is from the part vnto the part Againe that this custome namely for one man to excommunicate alone in one place is against the liberty of the Church in one place which is my seconde proposition I prooue from the essence and nature of liberty Libertas saith the lawyer ff de statu ho. l. libertas est naturalis facultas eius quod cuique facere libet nisi quod vi aut iure prohibetur Libertie is a naturall faculty to doe that that euerye man is willing to doe vnlesse by force or Lawe he be restrayned By which definition though the Lawyer haue properly defined the onely liberty of a reasonable and naturall man and not of the spirituall and regenerate man yet by the selfe same definition maye appeare what the freedome of a man new borne ought to bee namely such a gratious liberty as whereby he might thoroughly without restraynt performe whatsoeuer he woulde in the spirituall seruice of the Lorde vnlesse by violence
the magistrate therby hath lesse trouble in his office the common weal more florisheth in peace and prosperity Which difference were it well weighed without cauilling thorowly marked would soone decide this controuersy For hereby the former statute touching the exercise of ecclesiastical discipline by Doctors of the ciuile law meere lay men would clearly appeare to haue been made in a time wherein the truth was not so manifested as now it is For if euery man ought to confesse that it is vnlawful by the word of God for a king and Potentate no minister of the Gospell to excommunicate and so consequently vnlawfull to execute the office of a minister euerye man ought much more to confesse that authoritie giuen by man to a kinges vassall no minister of the Gospell to excommunicate and so consequently to execute the ministers office is an authority giuen vnto man againste the lawe of God and therefore both the lawe speedely to be repealed and the abuse in the meane time to be refourmed And therefore I conclude against that statute thus from the greater to the lesse 1 Whatsoeuer is vnlawfull for the king a lay man to exercise in the Church of Christ the same is vnlawfull for euery of his vassals a laye man to exercise 2 But it is vnlawfull for a king a laye man to exercise Ecclesiasticall discipline in the Church of Christ 3 Therefore it is vnlawfull for a Doctor of the ciuile law a kings vassall and a lay man to exercise the same BVT suppose this statute might in some respect be some excuse to Doctors of the Ciuile law ignoraunt of the word of the Lord yet thereby it followeth not that the bishops may in like sort be excused as wel for that they can not pretende any such ignoraunce they knowing the same to be against the word and not therefore to be practized as also for that they bee not precisely commaunded by the sayde statute to constitute and ordaine Doctors of the Ciuile lawe no ministers of the Gospell to be their Commissaries or officials but they may them selues if they will either reserue and keepe vnto them selues exercise iurisdiction and minister iustice by themselues or els depute such men vnto those offices as by law are capable of iurisdiction and may execute ecclesiasticall discipline according to the word of God I meane onely ministers of the Gospell But suppose againe that by force of this statute bishops were absolutely commaunded to ordaine Doctors of the Ciuile law to be their onely Commissaries and officials and that all sentences of excommunication and other ecclesiastical coertions exercised by the sayde Doctours meere laye men were good and duely and rightly ministred by force of this statute and so the Byshops by that meanes exempted from all iust reprehension in this behalfe yet what can be aunswered concerning the proceedings iudgementes executions and censures pronounced by meere laye men no Doctors of the ciuil law Bedell at Liechfield Liche at Chester Chippindale at Leicester Langeford at Bedford Glasier at Oxenford Greene at Glocester before they were Doctours of the ciuill Lawe mere lay men Talentine at Northhampton a meer lay man executed ecclesiasticall coertion discipline a long time Saye at Winchester Babyngton at Lichfield Hudson Dethick in the County of Yorke bishoppricke of Durham meere laye men no Doctors of the ciuile lawe execute and exercise Ecclesiasticall iurisdiction and all censures and coertions belonging to the same at this day And though it may be aunswered that some of these no Doctors were or be Deacons and so Cleargie men and therefore no laie men I reply though they were or be in deed Deacons and so one kinde of Cleargie men that they can not therefore excommunicate c. De regni iuris li. 6. ea Ea quae fiunt a iudice quae ad eius officium non spectant viribus non subsictunt Whatsoeuer things be done of a Iudge belonging not to his office the same thinges are of no force For let vs put the case that some Archdeacon or Chauncelor and yet no bishop had ordayned some man to be a Deacon pronouncing wordes apt to the giuing of such an order whether such a one be a Deacon I answere no because power to make Clearkes doth not belong to the order of priesthood vnlesse the ordayner be a Bishop Or suppose that a Bishop had graunted one an hundred dayes of pardon for some good worke that he had don whether this graunt by law be good Truely no. Because it belongeth to a Bishop onely to giue forty dayes of pardon and not an hundred In like manner I conclude though some in authoritie exercising ecclesiastical censure be Deacons yet notwithstanding that their sayde censure is in lawe no censure as a thing not belonging to the office of a Deacon but onely to the office of a minister There remayneth yet one other obiection namely that excommunication is not vsed as an Ecclesiasticall but rather as a ciuil punishment Whereunto I answere that such mē speak altogeather without book that by law they shal neuer be able to iustify their assertiō And vndoubtedly whosoeuer shal account excōmunication to be a ciuile punishment the same man is shrewdly to be suspected to be a priuie and subtil enemie vnto the Church for therby he excludeth all kind of punishmente from the Church And I include vnder Excommunication Suspension Interdiction and admonition For if Excommunication bee Ciuill then are these also ciuill and if these bee ciuill then what is Ecclesiasticall But such men by vndermining the Churche to mayntayne their owne corrupt abuses require some sharper medicine of pure ecclesiasticall Discipline to heale their vnciuill behauiour and therfore that excommunication cannot be a ciuill punishment I prooue this from the discription thereof ij q. 2. nihil §. euidenter ij q. 3. nemo Excommunicatio est extra cōmunionem ecclesiae separatio vel censura ecclesiastica excludens a communione fidelium vel est aeternae mortis damnatio Excommunication is the seperating a man from the communion of the Church or a censure ecclesiasticall excluding from the fellowship of the faythfull or it is a condemnation of eternall death And this kinde of excommunication is called the greater excommunication There is also another excommunication called the lesse excommunication and the same onelye seperateth a man from the receiuing of the sacramentes Moreouer excommunication is sayde to bee Paena animae mucro spiritualis A punishment of the soule and a Spirituall sworde By which discriptions it is apparaunt that both the greater and the lesser are belonging to the soule and conscience onely and therefore spirituall and therefore no ciuill punishment And therefore I conclude thus 1 No spirituall punishment is a ciuill punishment 2 But excommunication is a spirituall punishment 3 Therefore it is no ciuill punishment For euery ciuill punishment is eyther Poena pecuniaria or corporalis ff de pub iudic l. a punishment by
otherwise then that there hath but little good growen to the Common weale hitherto by the bishops and Cleargie men in the Administration of Ciuill iustice And that therefore such as haue written or spoken or preached againste Ciuill iurisdiction in the Eclesiasticall state haue done it for two vrgent and waightie considerations Friendes of reformation friendes of the queenes maiesties prerogatiue First not to encounter hir maiesties prerogatiue as it is falsely supposed but to teach their Lorde and maisters truth They haue not doone it in disobedience to hir crowne but in obedience to their God They know it is better to obey God then men and therefore they haue laboured faythfully by the worde of God to perswade hir maiestie and the estates of the Realme that these offices ought not by the Lawe of God to be resiaunt in one person and therefore hath exhorted hir maiestie and them in the name and feare of God to vse hir prerogatiue and theire authorities to the seuering of them Secondly they haue preferred the generall welfare and commoditie of the common weale before the vnlawfull honours and promotions of priuate men They know by learning and haue prooued by experience what detriment maye insue to the Common weale when offices are committed to men ignoraunt of such duties as belong vnto their charge A man that hath spent all the dayes of his lyfe in the studie of Grammar or Oratorie and hath alwayes taught the same were a very vnfit man at the age of threeschore yeares to be made a publique Keader in Phisicke or Law and yet notwithstanding to remayne a Schoolemaister still Expedit reipublicae vt quisque officio suo fungatur It is expedient for the Common weale that euery one execute his owne office And I am of opinion that the friendes of reformation are greater friendes and mayntainers to and of hir highnesse prerogatiue then the others be For they ascribe vnto hir maiestie indeede truth and veritie that which the others do but in worde shew and semblaunce onely They earnestly desire and craue that as hir highnesse hath beene annoynted and Crowned by the Lord him selfe Queene and gouernesse ouer them and as she is their naturall and onely lawfull Ladie and Mistresse and as she hath the name title and stile of supreame and chiefe ruler ouer all persons in all causes So likewise the causes now accōpted Ecclesiasticall beeing meere Ciuill shee might in deed truth and veritie haue all and all maner of iurisdiction executed in hir maiesties owne name as well in Courts and iudgements nowe reputed Ecclesiasticall as in other hir maiesties Courtes temporall whereby hir Ciuill gouernement might be more enlarged Which thing the abettours of reformation perceiue now to be otherwyse Forall summons actes proceedinges sentences decrees and iudgementes in all causes and controuersies determinable before Archbishops Bishops and Archdeacons are begunne continued and ended in the Archbishops bishops Archdeacons their Commissaries or Officials names stiles and dignities without any relation or mention of authoritie gyuen unto them as proceeding from hir maiestie then the which there can not seeme anye thing more preiudiciall to hir state Crowne and dignitie For be it that they be created Archbishops and Bishops by hir highnesse and inuested into their seas at hir Graces commaundement yet this argueth no greater prerogatiue belonging vnto hir maiesty ouer them then such as she hath ouer hir other subiectes whom she createth Barons or dubbeth knights But as concerning common and ordinarie iurisdiction in causes reputed Ecclesiasticall they haue no letters patentes from hir maiestie conuaying vnto themas from hir royall person any power ouer hir subiects to heare and determine their causes in hir highnesse name and vnder hir gouernement Onely they execute such iurisdiction as by popishe constitutions or popish customes hath beene heretofore annexed to their Archbishopprickes bishopprickes and Archdeaconries and that by an vtter enemy to hir royall person state and gouernment B. L. to his colleague Comissioners In so much that some of them by Letters hath signified vnto their Colleague Commissioners that common and ordinarie authoritie in causes ecclesiasticall chiefly and almost onely belong to them selues and their officers And that commissions from hir maiestie for reformation in matters ecclesiasticall graunt onely an extraordinarie authoritie And that therefore the sayde Commissioners haue not to heare matters of instance and such as requyre iudgement of lawe for that such causes belong onely to them selues and their officers whereby they haue insinuated hir maiestie to haue no common or ordinarie authoritie in causes ecclesiasticall as they them selues haue Whereas all other courts within hir highnesse Empyre as leetes courtes Baron courtes of regarde courtes of Forrestes I leaue to speake of hir highnesse owne Courtes at Westminster all liberties and franchises all parkes and free warrens belonging to any of the Nobilitie Gentrie or any Citie or borow of this Realme haue euer had their beginninges and establishmentes by the gratious fauour of the Kinges of this Realme as from whose prerogatiue such dignities and immunities ought franckly to proceed and by whom onely they haue beene graunted Onely oure Church gouernours challenge not their authoritie as from hir sacred seate of iustice and princely throone but they challenge their authoritie as a power belonging to their owne seats deriued from an vsurped and forren power 17. pag. ◠28. Henry c. 16. The statute made that euery Archbishop and bishop of this realme and of other the kings dominions may minister vse and exercise all and euery thing and thinges pertayning to the office or order of an Archbishop and bishop with all tokens ensignes and ceremonyes therevnto belonging and that all Archdeacons and Deanes and other hauing offices cures and dignities spiritual may by authoritie of this act and not by vertue of any forren power or authoritie administer vse and exercise all things appertaining to their dignities offices orders cures religions felowships and may lawfully hereafter vse all tokens ensignes and ceremonyes which they haue beene accustomed to vse in times past so it be not expresly against the lawes of God and this Realme This statute I say hauing beene the rule of our Archbishops and bishops consciences for their gracinges there Lordinges there vsheringes their kneelinges there tastinges their cupbearinges and such like improoueth no whit any part of the force of the former assertions but rather confirmeth and fortifieth the same First the statute hauing relation onely to tokens ensignes and ceremonies accustomably administred vsed and exercised before the making of the statute all which beeing Antichristian and therefore expreslye against the lawes of God are plainely by this statute abrogated and therfore ought no more to bee administred vsed or exercised For though the Kinge the peeres and commons at that time not instructed in the vnlawfulnesse of them did not holde and repute them to be againste the lawes of God and therefore did not specially abridge any particuler
flocke wherevnto the inferiour sort ought to reforme them selues and the Ministers ought to be examples as marks for others to shoot at These groundes and reasons amongst the greatest part of our Ministers haue had no place or interteinment at al but are vtterly turned topsy turuie For where by these Maximes they should be seers where they should goe and step before others in knowledge as guides to conduct them where they shoulde for their pietie and honest conuersation be patterns for others to square out their actions by where they shoulde be markes for people to ayme and shoot at they be now for the most part cleane contrary euen the very tailinges and garbage of the people and such as can scarce say B. to a battledore Markes in deede to ayme at but such as the nearer a man should shoot at the more it would be his hinderaunce Examples in deed they be but alas such examples as it rueth good men to see howe many by them are drawen to vngodlinesse and vnhonestye to Alehouse haunting to dicing to table playing to Carding to bowling to bearebayting yea and that on the Lordes day too But I say that notwithstanding these things be thus abused yet the law prescribeth still how they should be better vsed as followeth Li. vi de elect c licet Canon LICET CANON c. Although the Canon of Alexander the third our predecessor among other things did ordaine that none should take vpon him the gouernment of any parishe Church vnlesse he had accomplished the age of 25. yeeres and were commendable for his knowledge and honestie yet because in the obseruation of the foresayde Canon many haue shewed themselues negligent We by execution of Lawe willing to supplie their perillous negligence ordaine by this present decree that non be admitted to the gouernement of any parishe Church vnlesse he be fit for his manners for his knowledge and for his age And againe INFERIORA MINISTERIA c. Let no man take vpon him the inferiour ministeries as a Deanrie an Archdeaconrie and others that haue cure of soules annexed neythar yet the charge of a parrishe Church vnlesse he haue accomplished the age of 25. yeares and be to be approued for his knowledge and conuersation These constitutions do expresly prohibite any person to be admitted to the gouernment of soules and so to any parish Church that is not qualified as you here why Non conuenit talem aliis praefici in Magistrum qui nondum se nouit esse discipulum It is vnseemely that such a one be appointed a master ouer others which as yet hath not knowen him selfe to be a disciple And againe 49. Destinc cap. sacerdotes Authen de sanct epis §. Damus ff De â—…curio L honores 3 cap. distinc § Glos consti Otho cum sit ars Debet promotus esse literatus quia cum ipse debet alios docere non debet ipse discere He that is promoted ought to be learned in as much as he taking vpon him to teach others him selfe ought not now to learne And againe Honores munera non ordinationi sed potioribus iniungenda sunt Honours and offices are to be giuen to the best approued not to an ordination alone And again Debet promotus omni poscenti reddere rationem He that is promoted ought to giue a reason to euery one that asketh And againe Cura animarum debet vigiliis onerosa esse sollicita vt iste cui committitur curet ne pereant subditi sed saluentur The charge of soules ought through watchfulnesse to be painefull and carefull that he to whom it is committed be diligent to foresee that the people perish not but rather that they may be saued And againe 8 q. 1. Licet ergo Et qui doctior est sanctior est eligendus And he that is the more learned and the more holy is to be chosen And euen vpon the selfe same reason namely that the souls of the people shoulde not be in perill for want of teaching It is ordayned that no Church with cure of soules shoulde be destitute aboue a certayne time prefixed and lymited for the prouision of some man able to guyde the people Ex De elec Ne pro Defectu NE PRO DEFECTV c. Least for want of a Pastour the rauening Wolfe should destroy the Lord his flocke or that a Widow Church shoulde suffer great hinderaunce in hir substaunce we willing in this case both to meete with the perill that might happen to soules and also to prouide for the indemnities of the Churches doe ordayne that a Cathedrall Churche or regular Church be not voyde aboue three monethes Perill of soules the cause why a time is limitted for the placing of a Pastor within certaine Moneths And againe euen for the selfe same causes and considerations in the Chapiter Nulla ex de concessio prebend And in the Chapiter Quoniam ex de iure patro It is commaunded that if a laye man or Cleargie man Patron of a benefice present not his Clearke the one within sixe monethes the other within foure monethes That then afterwardes it shall and maye be lawefull for the superiour to supplie their negligence and to place one able to goe in and out before the people to guyde them to teache and instructe them They who by vsurpation exercised authoritie ouer the Lordes people did in the tyme of darkenes so carefully prouide that the people vnder their pretensed gouernement shoulde not be vnprouided as they imagined of a seer to foresee the danger that might insue towardes the soules of the people aboue the space of foure or at the moste of sixe monethss What excuse now remayneth for them that challenge the like authoritie ouer the people of the Lorde in the time of this great light and manifestation of his sonne suffering many thousande flocks to want sheepheardes and so to be in daunger of the Wolfe not onely sixe monethes but now almost sixe and twentie yeares for so long as they want a sheepehearde so long are they in daunger of the Wolfe but they want a sheepheard so long as they want one able to gouerne them to exhort and to admonishe them to rebuke and comfort them ff De verb. signi l. aedificium §. profecisse Paria enim sunt omnino non fieri aut minus rite fieri qui minus soluit non soluit perficisse aedificium videtur qui ita statuit vt in vsu esse possit It is all one in effect whether a thing be not don at all or not rightly and duely done He is sayde not to pay at all which payeth lesse then is his due to paye And he is sayde to haue perfected a buylding which hath so framed it that it may be inhabited Perill of soules cause of renunciation And againe for this purpose euen to auoyde the perrill of soules the Lawe prouideth that if anie man through want
for eternall saluation through faith in Iesu Christ And are you determined with the sayd scriptures to instruct the people committed to your charge and to teach nothing as required of necessity to eternall saluation but that you shall be perswaded may be concluded and prooued by the scripture Answere I am so perswaded and haue so determined by Gods grace Bishop Will you giue your faithfull diligence alwayes to minister the doctrine and sacraments and the discipline of Christ as the Lord hath commanded and as this realme hath receiued the same according to the commaundements of God so that you may teach the people committed to your care and charge with all diligence to keepe and obserue the same Answere I will In these two aunsweres and demaundes last specified are principally contayned two things First the Minister chargeth himselfe by a solemne vow to teache and instruct the people committed to his charge with the doctrine of holy scriptures The Discipline of Christ commaunded by Parliament Secondly the Bishop by vertue of the order and forme appointed by act of Parliament bindeth him as well to minister the Discipline of Christ within his cure as the doctrine sacraments of Christe as the Lorde hath commaunded and as this realme hath receiued it according to the commandements of God And therefore euery Minister by vertue of this statute law may as well admonish denounce and excommunicate offendours within his charge as a Byshop may within his Diocesse the wordes are copulatiues and therfore Non sufficit alterum sed oportet vtrumque fieri It is not sufficient to do one but both And these wordes before rehearsed Will you giue your faithfull diligence alwayes to Minister the Doctrine and Sacramentes and Discipline of Christe as the Lorde hath commaunded and as this Realme hath receyued the same according to the commandements of God haue in them two speciall points to be considered one touching the doctrine and sacraments of Christ the other concerning the discipline of Christe out of which two braunches proceed two other questions First whether euery minister ought not to exercise the Discipline of Christ by force of this demaunde and aunswere as well as the doctrine sacraments Secondly whether these namely the doctrine sacramentes and the discipline be to be ministred simply as the Lord hath commaunded or els whether they be to be ministred onely as this realme hath receiued the same without the commaundement of God For these wordes according to the commandements of God are but Synonima vnto those which went before Viz. as the Lord hath commanded and so signifie both but one thing To the first his owne promise to the Byshoppes interrogatorie bindeeth him as well to minister the Discipline as the doctrine and Sacramentes To the seconde if you aunswere that the doctrine and Sacramentes and Discipline of Christ are simplie to be ministred as the Lorde hath commaunded then it must needes followe if this Realme hath receyued the same according to the commaundement of God that the law of the Realme and the Lawe of God commaunde both one thing and so by both Lawes the doctrine and Sacramentes and Discipline are to bee ministred as the Lorde hath commaunded But if you shall saye that these thinges are to bee ministred onely as this Realme hath receyued the same though not according to the commaundement of God then these wordes of the Article following viz. As this Realme hath receyued the same according to the commaundement of God conuinceth you of a slaunderous tongue agaynst the whole state and Churche of God For hereby you accuse them of great impietie and vngodlinesse and attaynt them of high Treason to the Maiestie of God as though the intent of the whole state were to haue the Doctrine and Sacramente and Discipline of Christe ministred according to the commaundements of God in case the Lawes of the Realme had so receyued the same and not otherwise And so to haue restrayned the commaundementes of God by the Lawes of the Realme and so to haue concluded an impossibilitie limiting and restrayning the greater by the lesse and a Lawe most perfecte by a Lawe vnperfecte and not rather the contrarie to haue restrayned in deede the lesse by the greater the Lawes of the Realme by the commaundementes of God an vnperfecte Law the Lawe of man by a most perfecte and absolute Lawe the Lawe of the most Highest whiche is manifest by a threefolde repetition of the one as the Discipline of CHRISTE Secondly as the Lord commaunded Thirdly according to the commaundement of God where the Laws of the Realm are but once onely mentioned Again in the ordering of Archbishops and Bishops the Archbishopp demaundeth of the Bishop this question Will you maintain set forwarde as much as shall lye in you quietnes peace and loue amongest all men and such as be vnquiet disobebedient and cryminous within your Diocesse correct and punnishe according to such authoritie as yee haue by Gods worde and as to you shall bee committed by the ordinaunce of this Realme Doe these wordes and as to you shal be committed by the ordinaunce of the Realme restrayne and lymitte these wordes which went before to correcte and to punnishe according to suche Authoritie as yee haue by Gods worde Surely they can haue no such interpretation For the meaning of these wordes is that euery Byshoppe shoulde by the ordinauuce of the Realme haue his office committed vnto him and once hauing his office so committed vnto him by the ordinaunce of the Realm then to correcte and punnishe according to suche authoritie as hee hath committed vnto him by Gods worde and as he is appoynted by the ordinaunce of the Realme to execute Neyther hath the Bishoppe any authoritie giuen him by these wordes to correct or punnishe any otherwise then the Lawes of GOD permitte him though the Lawes of the Realme were not agreeable to the Lawe of GOD. And in like case I conclude that a minister bounde as you haue seene before to minister the Discipline of Christe ought so too minister the same as the Lorde hath commaunded though the Lawes of the realm shold not haue receiued the same For no discipline in truth cā be said to be the discipline of Christ vnlesse it be in deed ministred as the Lorde Christ hath commaunded the same should be ministred And therfore as no bishop may or ought to correct or punish any transgressour any otherwise then according to the lawes of God so no minister ought to exercise any discipline then such as the Lord Christ hath commanded If it be alleadged that our discipline vsed in the church of Englande be in very deede the very same discipline which the Lorde Christ hath commaunded which is vtterly vntrue as appeareth First and principally by the word of god Secondly by the discourses writtē betweene the learned on that behalfe Thirdly by the discipline practized by all the reformed churches and lastly by maister Nowell his Catechisme
commaunded generally by the bishop to be taught vnto the youth of the realme in all schooles of their Diocesse yet notwithstanding the minister contrary to a vowe made by him at the commaundement of his Ordinarie appoynted thervnto by lawe is very iniuriously dealt with for that he is not permitted to exercise any discipline at al our Bishops and Archdeacons challenging vnto themselues a principal prerogatiue to punish al malefactors within their seuerall iurisdictions An other reason that this statute hath appoynted as well the discipline of Christ as the doctrine and sacramentes to be ministred as the Lord commaunded onely and none otherwyse is this namely for that this statute was made to refourme as well the disordered discipline vsed in the time of popery amongst the popish idolatrous Priestes as it was to reprooue their false doctrine and prophanation of the sacraments so that neither the one neither the other should be ministred by the ministers of the Gospell for otherwise this branch of the statute should ordayne nothing so contrary to the nature of a Law be Lex absurda an absurd Law And therfore what open wrong intollerable iniury is offered the Saintes of God loyal subiects to her Maiestie calling for discipline at the cheefe Prelates handes commaunded by the Lord and in trueth established by the Lawes of her highnesse Empire euery indifferent man may easily discerne It followeth in the Booke of making of Ministers Bishop Will you be diligent to frame and fashion your owne selues and your Families according to the Doctrine of Christe and to make both your selues and them as much as in you lyeth wholesome examples and spectacles of the flock of Christ Answere I will Byshop Will you maintain and set forwards as much as lieth in you quietnesse peace and loue amongst all Christian people and specially amongst them that are or shall be committed to your charge Answere I will In the end when hee layeth on his handes he sayth to euery one Be thou a faithfull Dispenser of the worde of God and of his holy Sacraments And againe Take thou authority to preach the word of god and to minister the holy Sacramentes Which action and Speeches of the Bishop are to bee well wayed and considered The words which the Byshop pronounceth Be thou a Faithful dispēser c. Take thou authority to preach are wordes appoynted him by the whole State to bee pronounced What was it trowe you the meaning of all the States and Nobles of the Realme or was it our most excellent Soueraigne the Queenes Highnesse her pleasure to haue enacted by Parliament that a Byshop should commaund an Apothecarie not exercised at all in holy scriptures and altogeather vnable to teache to bee notwithstanding a faythfull dispensor of the worde of God and to take authoritie to preache No no they verie well knew that the outward sound of the bishoppes wordes in the eares of such a man coulde not worke any inwarde grace or giue any inwarde vertue to the perfourmaunce of so high a calling or of so holy a function And therefore as it becommeth a true and loyall subiect I dare not for my part so dishonourablye conceyue of their wisedomes much lesse I take it shoulde the Bishop so disloyallye abuse their credite and authoritie Was their intente and purpose trowe you that the bishop by these his demaundes and the minister by these his aunsweres shoulde not bynde the minister him selfe to perfourme by him selfe this duetie to preach but that the same should be done by a thirde personne I trowe no. For my maisters and Doctors of the Canon and Ciuile Lawe Burgesses in the house of Parliament know Institu de invtili stipu § si quis that Promssio facti alieni mutilis est quod si testator iusserit aliquem in certum locum abire vel liberalibus studiis imbui vel domum suis manibus extruere vel pingere vel vxorem ducere per alium id facere non potest quia haec omnia testatoris voluntas in ipsius solius persona intelligitur conclusisse A promise made of an other mans fact is vnprofitable and that if a Testator shall will any to goe to a certayne place or to be furnished with the liberall Sciences or to buylde an house or to paynt a Table with his owne handes or to marry a Wyfe that he can not doe any of these thinges by an other man because the will of the Testator hath concluded all these thinges onely in his owne person Was their meaning that the bishop pronouncing these wordes Be thou a dispensor was their meaning I saye by those wordes to haue the bishop committe the office of reading Homilies to a minister or to iudge reading of Homilies to be preaching No no Their proceedinges appeare to bee of greater wisedome knowledge iudgement discretion and Godlinesse They appoynted by the same their consultation three kindes of offices to bee in the Church Deacons Ministers and Bishoppes appoynting seuerally to euery officer his seuerall duetyes and hath expresly appoynted reading Homilies to bee the office of a Deacon For in the ordering of Deacons the Bishoppe by vertue of the Statute pronounceth these wordes vnto the Deacon It pertayneth to the office of a Deacon in the church where he shall be appoynted to assiste the Priest in deuine seruice and speciallye when hee ministereth the holye Communion and to helpe him in the distribution thereof and to reade holye scriptures and Homilies in the congregation c. I take it and holde it for a principle that the Bishop hath no authoritie by his Lordship to alter or transforme an Act of Parliament and therefore I take it that I maye safelye conclude without offence to his Lordshippe that he can not by lawe appoynt anye minister to reade anye Homilies in anye Church Statute lawe is Stricti Iuris and maye not be extended What will you then by lawe positiue barre reading of Homilies in the Churche No. But I woulde haue the Lawe positiue obserued and so barre reading of Homilies from a Minister because the Lawe positiue hath appoynted that office to a Deacon For it is not lawefull for one priuate man and fellowe seruaunt to transpose from his fellowe seruaunt an office committed vnto him by publike authoritie And it is verily to be thought the bishop him selfe will challenge as much vnto him selfe by this statute from the minister and plainly tell him that by this statute he alone hath authoritie to make Deacons and ministers and to gouerne them and that therefore it beseemeth not a minister to be ordered otherwise then according to the forme of the booke no otherwise to preach then as he shall be licensed therevnto by him the Bishop As touching the iniunctions the aduertisments and the articles of religion wherein mention is made sometimes that Parsons Vicars and Curates somtimes that the minister shall reade Homilies they may easely be reconciled by this statute For the iniunctions
then when as the whole maner of the gouernement of the Synagogue should haue beene altered For as at that time their lawes were vnaduisedly translated from them vnto vs So by their lawes we might aduisedly haue transformed them from amongst vs. They were Schismatiques and heretiques by the lawes of our religion and therefore not to haue beene admitted by the lawes of their owne profession Yea if they remaine Idolaters still or keepe backe from the people of God the word of God they are to be remooued still their ietting vp and downe in their square ruffling white philacteries or mumbling their mattens euensong are not so forcible to keep them in as their insufficiencie negligence contempt idolatrous harts are to thrust them out And yet no part of good wholsome and christian gouernment and pollicie chaunged For though Iosiah mooued by compassion beningly suffered the priestes of Baal repenting of their idolatry to receiue tithes and offerings with their brethrē the Leuites Yet he streightly charged them not to enter into the Lordes sanctuary to doe any maner of seruice there Neither did this his religious fact any whit hinder the outward peace of his kingdome Wherefore if a B. an Abbot an Archd. an elder a phisition a Iudge an aduocate a Iailor a tutor a schoolmaster an Orator and a philosopher by iustice and equity of law for vnabilitie insufficiencie negligence or other defects ought to be deposed and remooued off from their roomes places offices and honours how should a pretensed minister onely intruding him self to an office of most high calling excellency and vtterly destitute of all giftes and graces fit for the same be suffered to keepe and retaine the proper right and title of an other as his owne lawfull possession inheritance Had the worshippers of the false Gods care that their idolatrous priestes should haue knowledge of their idoll seruice and shall we the worshippers of the true God be blameles before his iudgement seat in case we mayntain such to serue him in the ministery of his holy gospel as whose seruice the veriest Paynymes idolators woulde refuse to haue in their idoll temples Cod. de epis co cleri l. Si quis curialis l. 12. And though these be sufficient proofes to euery one not adicted to his own wil preferring the same to al reason that prohibitus clericari debet reuocari ad pristinū statū per manus iniectionē that serui vitā monasticā deserente◠ad prioris domini seruitutē restituuntur Cod. de epis co cleri l. serui one prohibited to be a clark ought to be reduced to his former estate by authoritie of the magistrate and seruaunts forsaking their monasticall life to be restored to the bondage of their former maister Cod. de decoren l infamia li. 10. de dignita l. Iudices lib. 12. And that Infamia non solum impedit praefici sed etiam remoueri facit a dignitatibus habitis And infamie doth not onely hinder a man to be preferred but also causeth him to be remooued from dignities already recouered Though I say these former proofes be sufficient to confirme these assertions yet to make the matter somewhat more plaine I haue thought good to reexamine the order and forme appoynted by the former statute for the making of Deacons and ministers that if vpon examination thereof also there do appeare such a defect by statute lawe as whereby our dumbe and idoll ministers be no ministers in deede and trueth but onely in shewe and appearaunce that then therevppon order may be taken by hir maiestie for the displacing of them and for the placing of other lawfull and godly ministers in their roomes For as the statute hath limited a certaine order and forme of making Deacons and ministers so hath it appoynted that all that are made according to that order and forme should be in deed lawful Deacons and ministers The wordes of the statute are these And that al persons that haue beene or shall be made ordered or consecrated Archbish bishop priestes and ministers of God his holy worde and sacramentes or Deacons after the forme and order prescribed in the sayde order and forme how Archbish bishops priestes Deacons and minsters shoulde be consecrated made ordered be in very deede and also by authoritie hereof declared and enacted to be and shall be Archbishops priestes ministers and Deacons and rightly made ordered and consecrated any statute law Canon or other thing to the contrary notwithstanding Which statute hath two braunches the one appoynting the forme and maner of making Deacons and ministers the other authorizing Deacons and minsters made ordered after the forme and maner prescribed in the sayde booke to be in very deede rightly and lawfully Deacons and ministers and so to be taken and reputed It followeth then that if the first braunch of the statute be broken and that the forme and order be not obserued that the second braunch can take no place for that in deede the validitie of the latter dependeth altogeather vpon the obseruation of the first For it is plaine and euident by lawe that if you woulde haue a seconde or latter action to be good and effectuall because it is done say you according to a forme and order precedent you must first prooue that the Precedent was accordingly done or els the consequent can take no place And therefore if the forme and order prescribed by the book be not obserued in making vnlearned ministers I say then that vnlearned ministers by lawe are no ministers at all And why ff ad leg fal l. si is qui. § quaedam Neque eum vllum balnieum aut vllum theatrum aut stadium fecisse intelligitur qui ei propriam formam quae ex consumatione contingit non dederit Neither can he be thought to haue made any bath or any Theater or any race who shall not giue it that forme which perfecteth the same Againe Vbi ad substantiam alicuius actus exigitur certa forma fundans se super alio actu debet quis probare formam precessisse Panor in ca. 9. extra de Iudicijs Where to the substaunce of any act a certaine forme is requyred founding it selfe vppon an other act ther a man ought to prooue the forme to haue passed before As for example In an euangelicall denunciation if thou seeke to haue thy brother cast foorth of the congregation First it is requyred that thy brother haue offended thee Secondly that thou priuately admonish him and brotherly wish him to amende Thirdly if he continue obstinate thou muste tell it him before two or three witnesses and if he heare not them then thou must tell it to the Church before whom if thou desire I say that thy brother by them should be cast foorth of the Churche thou muste first prooue an offence committed against thee by him Secondly and thirdly that you did both priuately by himselfe
of a nation Was the law of a whole Empyre euer tyed to the will of one man in a Diocesse If the thing it selfe were not manifest to the view of the whole Realme and that the vnlearned mimisters in euery part of the realme were not glasses to see these deformities by that the dayly and lamentable complaints in the eares of hir honourable 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 to if worse may be are neither fayned nor forged And therefore I conclude thus 1 Whersoeuer a certaine forme order to proceed is appoynted to any hauing no authority before his coÌ„mission that there if the forme be not kept the processe by law is meerely voyde 2 But our bishops before the making of the statute of Edwarde the 6. and the confirmation thereof 8. Elizabeth had no authoritie to make Deacons or ministers 3 Therefore their processe not made according to the order and forme of the statute is voyde and therfore 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 law And the glosse vpon that law verifieth the same to be an argument Contra eos qui non sunt râ—cte in ecclesiis constituti Against those that are not rightly placed in Churches ff quand dies leg vel fidei sed l. quod pupillae iunat gloss If a Legacie be giuen vnto a Pupil whensoeuer she shall marrie if she shall marrie before she be Viripotens the Legacie is not due vntill she be Viri potens quia non potest videri nupta quae viruÌ„ pati non potest nec videri factum quod non legitimè fit Finally in the praeface of the booke of ordering Ministers are these words And therefore to the intent these orders should be continued and reuerently vsed and receyued 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 tryed examined and admitted according to the forme hereafter following And in the 13. yeere of Elizabeth cap. 12 it is enacted that all admissions to benefices institutions and inductions to be made of any person contrary to the form or prouision of this act and al tollerations dispensations qualifications and license whatsoeuer to be made to the contrary hereof shall bee meerely voyde in lawe as if they neuer were Another principall reason why these idoll ministers shoulde not haue so much as the onely name or tytle of ministers in worde much lesse the place and benefite of ministers in dee de may bee for that in deede and trueth they haue intruded themselues into the ministery onely by fraude and deceite and haue not entered thereinto Bona fide iusto titulo in good fayth and by a iust tytle Cod. de autorita prestand l. cum qui. 6. q. 7. si quis deinceps ex de simo non satis Hee that knoweth a pupill to be vnder age and yet will contracte with him without consent of his tutor or hee that will receyue a Church from the hand of a laye man or he that will buye and sell things dedicate to religious vses can not in these actions meane any good faith or vse any good conscience because qui contra iura mercatur bonaÌ„ fidem presumitur non habere He that against the law maketh marchandize is presumed not to haue good faith Cod de autorit prestaÌ„ l. cum qui. 6 q 7. si quis deinceps extra de simo non satis Extra de regu in c. qui contra Now in the maner and forme of making ministers and their admission you haue heard of a solemn couenant and contract by opeÌ„ protestations on both sides made between the B. and the partie A contract made betweene the B. and the minister not obserued the B. demanding spondes put as facies dost thou promise dost thou thinke wilt thou do The partie aunswering spondeo I doe promise puto I doe thinke faciam I will do it This contract or couenant by law Ciuill is called stipulatio verborum a sure bond made by wordes and may be called a contract by worde By the law of Englande it is called an assumption And to the ende this contract be good in effect as in all other contractes so in this especially it is requisite that the same be made bona fide interueniente good faith comming betweene as well on the part of the demaundant as on the part of the answerer In ff pro solut l. 3. Cod. de vsur l. venditioni In Cod. de actio oblig l. bonam For saith the Emperor Bonam fidem considerari in contractibus aequum est Equity requireth that good faith be considered in contracts And that either to this end Vt cesset dolus ad eoruÌ„ essentiam or to this end vt cesset dolus ad eorum effectum that guile may cease to the substance of the contract or that guile may cease to the effect of the contract ff de dol l. eleganter ff de verb. oblig l. si quis â—um For though according to the nature and condition of this contract by word the party fraudulently deceiued be notwithstanding by rigour subtiltie of law bound to the contract yet in as much as the lawe prouideth him a remedy against this mischief giueth him a peremptorie exception vtterly to exclude the agent from any benefit of his action the contract I say in effect beeing reuersible is in effect no contract and the aduerse party to be cleared from the performance thereof Quia contractus non sortitur effectum propter exceptionem doli The couenant taketh no effect by reason of the exceptioÌ„ of guile The law it self followeth Si quis c. If any when he had couenanted to be bound after one manner yet notwithstanding by circuÌ„uention is bound after another manner he shall indeed stand bound vnto thee by the subtilty of law but he may vse an exception of deceit for in as much as he is bound by deceit an exception is giueÌ„ him As for example I haue promised vnto you my ground excepting the vse of the fruit therof afterwards by collusioÌ„ you perswade me to promise you the same ground together with the vse of the fruit therof this promise in effect is void because you vsed deceit in getting my promise Ye suppose that you for your part had not beguiled me that ther had bene no deceit on your part but that I had beene beguiled only because the thing it self was wrongful iniurious in this case also your action shall cease your writ shal abate IdeÌ„ est c
priestes and the prophetes slewe Vriah with the swoorde yet ceased not Ieremiah to stande in the Court of the Lordes house to speake vnto all the cities of Iudah all the wordes that were commaunded him to speake and kept not a word backe 2 Kin. 23. 3. When Hilkiah the priest had found the booke of the lawe and caused Iosiah to reade the same it is written that the KING stoode by the piller and made a couenant before the Lorde that he the KING and the priestes and the prophetes and all the people both small and greate should walke after the Lorde and keepe his commaundementes and his testimonies and his statutes with all their hearte and with all their soule And that the KING commaunded Hilkiah the high priest and the priestes of the seconde order to bring out of the Temple of the Lorde all the vessels that were made for Baall and for the grooue and for all the host of heauen and that the KING burnt them without Ierusalem in the fieldes of Kidron and that the KING carryed the powder of them into Bethel and that HE put downe the Chemerym and that HE brake downe the houses of the Sodomites and that HE brake the images in peeces c. When the spirite of the Lorde came vpon Azariah to tell Asa and all Iudah and Beniamin that the Lorde was with him whilest they were with him encouraged them in their affliction to turne vnto the Lorde God of Israell for that their confidence and trust in him shoulde not be frustrate but haue a rewarde Asa hearing these wordes of the prophet was encouraged and tooke away all the abhominations out of the lande of Iudah and Beniamin And King Asa deposed Maachah his mother from hir regency And Asa brake downe hir idoll and stamped it and burnt it at the brooke Kidron 2. Chroâ—… and king Asa did all these thinges at the councell of the Prophet Neither can the holy doctrine of the Gospell be sayde to be repugnaunt herevnto God is euer more one and the selfe same God in all ages he is euermore the authour of peace and order not of discord or disorder If therefore the Lord haue not yet gratiously opened hir maiesties eyes to vnderstand all singular misteries of his Testament or if he will some blemish to remaine in the gouernment of a faithfull Queene vnder the Gospell as it pleased him to haue blottes in the raigne of good kings in the time of the law or if he will that the aduersaries of Iudah and Beniamyn hyre counsellers to trouble their building and hinder their deuise all the dayes of Cyrus or if he will the Temple to be built in the dayes of Esra the chiefe priest but the walles to be reedified by a Eliashib and his brethren or if he will haue his Church tary his holy leasure and appoynted time or if he haue any other glorious purpose to work in our dayes by hir highnes what is that to him that is a minister of the Gospell Onely it behooueth him to be a faithfull Steward in his function For an woe hangeth ouer his head if he preach not because necessitie is layde vppon him And let him be assured that whatsoeuer is either bounde or loosed by him in earth the same is bounde and loosed by the Lorde in heauen The repentaunt and faithfull shall be forgyuen The obstinate and impenitent shall bee hardened And thus hauing deliuered my mynde touching these thinges which otherwise by synister construction might haue beene daungerous to my selfe and offensiue to others Touching the former cauill I answere as followeth First I confesse that euery one meete and apt to teach that euery one qualified as is requisit that euery one mooued inwardly by the holye Ghoste and outwardly called and appoynted by the bishop hauing authoritie by the order of this church of England in this behalfe is in deed by law a minister First because he is indeed truth a messenger sent appoynted to this office by the Lord him selfe Secondly he is a minister by the law of this land For the state of this man learned qualified and inwardly called and the state of the vnlearned vnqualified and not inwardly mooued differ as much as light darknes For where the life the learning the conuersation the paines of the former doe appeare in deede to be sincere sufficient honest and diligent euen such as the law it selfe requyreth should be in him and so the ende of the law satisfied in that behalfe in this case and for this man there is a presumption Iuris de iure of law and by law that in his outward calling and triall c. all thinges requyred by lawe were accordingly perfourmed by the bishop and so he a lawfull minister But touching the other man it is quite contrarie and therefore this presumption by law must cease Glos extrauag de prebend cum secundum Apostolum verdiceat For where his life his learning his conuersation do appeare manifestly to be vile corrupt and vnhonest and not such as the law requyreth and so the law frustrated in this case there is a presumption Iuris de iure of lawe and by lawe against him that he came to his office per surreptionem by stealth and vnorderly Letters obtayned for enioying benefices vntill it appeare they were obtayned either veritate tacita or falsitate expressa truth concealed or falsehoode expressed are good and to be obeyed but if afterwardes either of these appeare they shall bee accounted surreptitious and voyde A Bull or dispensation from the Pope authentically sealed is presumed to haue beene gotten bona fide in good faith but if in the tenor thereof appeare false latine it is then presumed to haue been obtayned per surreptionem A sentence giuen by a iudge is presumed to be a iuste iudgement and euery one for the authoritie and reuerence of the Iudge ought so to deeme of the same But in case the matter be appealed and there be found a nullitie in his processe the former presumption ceaseth and the sentence as an iniurious sentence is to be reuersed In like maner if a Bi. should make an hundreth ministers in one day for the authoritie and reuerence of the bishop and the good opinion I ought to conceiue of his vpright and sincere dealing of his holy religion and feruent zeale to the lordes house were I absent and sawe not his proceedinges to be contrary to law as I ought so I trust I should both esteeme his doinges therein to be lawfull and orderly and also reuerence those whom he had so made as messengers sent from the Lord. But if afterwarde when any of them shall come to execute his office of ministerie when he came to teach the people he shoulde then manifest him selfe to be but an Hipocrite but to haue fayned a certaine kinde of holinesse and zeale when he shall him selfe discrie his owne vnablenes and displaye his wantes were it
reason that hauing now by mine owne experience certaine knowledge of his misdemeanour and vnhonest conuersation of his vnaptnes and vnskilfulnesse and of his ignoraunce I should presume notwithstanding that he was at the first orderly called and examined found to haue such qualities as were requisite But to aunswere another obiection concerning the administration of the sacramentes by these kinde of men and execution of their offices because hitherto no controuersy hath beene moued touching the validity of their calling of their state and condition and because Cum incertum est aliquid perinde est ac sinec illud sit WheÌ„ any thing is vncertain the same is as though it were not at al Cod. de test lib. 1. That therefore I say as wel in this case and in this respect as also propter communem vtilitatem publicum errorem for common vtilitie a generall error the thinges done by them are rightly and duely done Cod de sentent interlo iud l. si Arbiter SI ARBITRER DATVS a magistratibus cum sententiam dixit in libertate morabatur quamuis postea in seruitutem depulsus sit sententia tamen ab eo dicta habet rei iudicatae authoritatem If any arbiter giuen by the magistrate were a free man when he gaue sentence though afterwarde the same Arbiter be brought againe into seruitude the sentence notwithstanding giuen by him hath authoritie of iudgement And againe ff ad Maced â— si quis Si quis patremfamilias esse crediderit non vana simplicitate deceptus nec iuris ignorantiae sed quia publicè patremfaemilias plerisque videbatur sic agebat sic contrahebat sic muneribus fungebatur cessabit senatuconsultum If any shall thinke one to be a father of any houshold not deceauing him selfe thorow a vaine simplicity or ignorance of law but because he seemed to many to be a father of an housholde indeede he did as a father of an houshold did he did couenaunt he executed offices c In this case the Senates decree shall cease And againe ff de supp l. leg l. 3. Hod è propter vsum imperatorum si in argento relatum sit candelabrum argenteum argentum esse videtur errorius facit Now a dayes because of the vse of Emperours if a siluer candlesticke be accounted amongest his money it sâ—emeth to be money and this errour maketh law c. And again Serui liberi non in hac causa tractari oportet cum eo tempore quo testamentuÌ„ c. When a testament is to be prooued by witnesses it is not materiall whether the witnesses be bond or free at the time they be produced if at the time that the Testament was signed they were by consent of all reputed in the place of free men and that no man at that time mooued any controuersie of their estate Digest do officio praetoris l. barbarius Propter publicam vtilitatem communem errorem praetura seruo decreta c For publike vtilitie and a general errour a Pretorship giuen to a bondman maketh him Pretor businesse dispatched by him are of force and he made a freeman And therefore I aunswere that thinges heretofore done and executed by our idoll ministers by law to be rightly and duely executed And yet notwithstanding I vrge still that they are not in trueth any lawfull ministers and that they ought and maye iustly be deposed from their ministeries and depriued from their benefices An Arbiter reputed to be a freeman if in truth he be a bondman obtayneth not by this common opinion or by giuing iudgement his freedome and libertie but continueth still a bond man vnto him whose bond man he was before any iudgement giuen by him or that anye suche fame went of his freedome the decree of the Senate ceasseth against me for contracting with one vnder rule and gouernement so long as he is generally reputed to haue power and authoritie ouer himselfe but if I willingly contract with him afterwardes it shall appeare that in deede he was a Sonne vnder the guarde and tuition of his parentes then the decree shall be effectual and take place against me Witnesses at the time of signing anye Testament commonly reputed freemen after a controuersie mooued of their estate maye in other matters be refused as vnlawfull witnesses For though common errour make a lawe in respect of publike profit yet common errour plucketh not from any priuate man the possession or interest of his priuate goodes And therefore though Barbarius Philippus in that the people decreed vnto him the Pretorshippe vvas by the decree made a Freeman the people of Roome hauing authoritie to make a Freeman yet for that he was in deede a seruaunt fugitiue from his maister his maister was by lawe to haue the price of the same his seruannt at the peoples handes muche lesse can common errour of a fewe in authoritie or a common errour of a fewe in their owne right barre the publike wealth or the Churche from a publike benefite due vnto them But there is a defence commonly vsed by some to excuse the Bish and to exempt them from iuste reprehension for placing vnlearned men in benefices The Patrons say some are couetous they will present none but such as from whome they may lawfull for me a poore Gentleman in the countrey hauing the patronage of a benefice to bestowe the same vpon some honest poore man conditionally to let me haue the profites thereof at a reasonable price allowing him a resonable stipend for his seruice and paines in the ministerie though he cannot preach as it were for me to giue the same benefice vnto you an Oxenford man and a great scholler and able to preache and yet will not or doe not preach Is it not as lawfull for me to place such a one as I haue spoken of in a benefice of my gift and to allowe him his wages sixteene or twenty pound by the yeare and to get quarter sermons preached for him as it were lawful for you had I frankly bestowed the same benefice vpoÌ„ you to hire the same person or some other more ignoraunt and to giue him lesse wages and scarcelie to preache quarter sermons your selfe Had not this man sodainely beene strooken dumbe and dead as a doore nayle you shoulde as well haue heard his reply as you haue read the demaunde And in good sooth what greater losse and hinderaunce hath the people of W. by an vnlearned maÌ„ their parson not preaching and hiring out his benefice to his patroÌ„ for 15. pound by the yeare then hath the people of P. by a learned maÌ„ their parson not resideÌ„t not preaching and hiring out his benefice of the same valew to his curate for 40. pound by the yeare Surely as there coÌ„meth no greater good to the people of the one place by the one then commeth to the people of the other place by the other so is the one both lesse hurtful to the
maruailously wounded grieued and molested and that the soules of the people are therby not gouerned at all but left at randon to their owne direction hauing no guyde to conduct them euery one may euydently discerne dispensations in that behalfe to be altogeather intollerable hauing no ground nor foundation of reason equity or lawe but onely graunted for the priuate gayne and lucre of some couetous vaine glorious persons Wheras it may be answered that the statutes of the Realme licensing diuers Ecclesiasticall persons qualified either by degree of schoole or by seruice vnto nobilitie ought more to be respected in this behalfe then the reasons of the Canon law Herevnto I answere that for my part I heartely desire and pray vnto God that these lawes might be respected and that the law of Englande might rule an English man in this case But alas our lawes are bels without clappers they are founded but they sound not they are bandes but they binde not For thogh by the statutes of the realm certain noble mens chappleines and others graduated in the Vniuersities be qualified made capable of dispensatiōs yet I deny the laws of this realm to approue any maner of dispēsations tollerable at al for any kind of these qualified men vnles the same be Frst in cases of necessity for the peace of the cōmon weal Secondly in cases of conueniency for the honor of hir highnesse person and lastly warranted by the holy scriptures lawes of god For though the statute make some men fit men for the Archb. to work vpon and as it were anuiles for him to strike vpon yet the same statute imposeth no necessity for the B. to work without the word But if it be lawful by the word then by the law he may if he wil. But if it be vnlawful by the word thē he may not thogh he would The law followeth Be it enacted that neither the king his heires and successors kinges of this realme nor any of their subiectes of this realm nor of the kinges dominions shall from thence foorth sue to the sea of Rome or vnto any person or persons hauing or pretending any authoritie by the same for licences dispensations impositions faculties grauntes rescriptes delegacies instruments or other writings of what kind name c. for the which any licence dispensation composition faculty graunt rescript delegacie instrument or other wryting heretofore hath ben vsed and accustomed to be had and obtayned at the sea of Rome or by authority therof or of any prelate of this realm nor of any maner of other licenses dispensatiōs compositions faculties grauntes rescriptes delegacies or any other instruments or writinges that in cases of necessity may lawfully be graunted without offending holy scriptures lawes of God but that from henceforth euery such licence c. aforenamed mentioned necessary for your highnes your heires or successors your their people and subiects vpon the due examination of the causes qualities of the persons procuring such dispensations licenses c. shal be granted had obtained frō time to time within this your realm other your dominions not els where in maner and form following no otherwise that is to say the Arch. of canterbury for the time being his successors shall haue power authority frō time to time by their discretions to giue grant dispose by an instrument vnder the seal of the said Archb. vnto your Maiesty and to your heires successors kings of this realm as well all maner such licenses dispensations faculties grants rescripts delegacies instruments all other writings for cases not being cōtrary or repugnant to the holy scriptures lawes of God as heretofore hath ben accustomed to be had obtained by your Highn or any your most noble progenitors or any of yours or their subiectes at the sea of Rome or any person or persons by authority of the same al other licences dispensatiōs faculties c. in for vpon al such causes matters as shal be conuenient and necessary to be had for the honor surety of your highnes your heires successors and the wealth profit of this your realm so that the said Archb. or any his successors in no maner wise shall graunt any dispensation licence rescript or any other writing afore rehearsed for any cause or matter repugnant to the law ofalmighty god This act is renued 1. Elizab. Prouided alwaies that this act nor any thing or things therin cōtained shal be hereafter interpreted or expounded that your grace your nobles subiects intend by the same to decline or vary frō the congregation of christ his church in any thing concerning the verye articles of the catholique faith of Christendome or in any other thinges declared by holy scripture and the word of God necessary for your and their saluations but onely to make an ordinance by policie necessarye and conuenient to represse vice and for good conseruation of this Realme in peace vnitie and tranquilitie from rauyne and spoyle In which Act is set foorth vnto vs what great care and circumspection our auncestors in the twilight of the Gospel had for the abolishing of corruptions the establishing of a sincere gouernment both in the Church and common weale and how diligently and faithfully they prouided that no maner of dispensatiōs licenses or immunities shold be had or obtayned but in cases of necessitie in cases not contrary or repugnant to the lawes of God in cases wherin the wealth profit peace and conseruation of the realm requireth in cases conuenient for the honor safety of the kings person with a due confideration alwaies of the causes qualities for the which of the persons to whom any licence or immunity shold be granted And therfore out of this statute first I conclude thus against plurified men 1 Whatsoeuer cause or matter is repugnant to the law of God the Archb. may not dispence with the same 2 But the matter of hauing many benefices or being Non residents is repugnant to the laws of God 3 Therfore the Archbish may not dispence with the same Againe 1 Whatsoeuer is not necessary for the wealth peace profite and conseruation of the realm the same by this statute is forbidden 2 But that one man should enioy by way of dispensation from the Archbish liuings appointed for many men is not necessary for the wealth peace profite and conseruation of the realme 3 Therefore the same is forbidden by this statute Lastly 1 Whatsoeuer is not conuenient for the honour and safety of hir highnes person the same by this statute is forbidden 2 But it is not conuenient for the honor and safety of hir highnes person to haue the Archbish disspence for many benefices 3 Therefore by this statute the Archbish is forbidden to dispence c. THe Minor proposition of the first syllogisme hath beene already sufficiently prooued by manye in fallible conclusions of Lawe and vndoubted truethes
precisely dissalowed cannot by the secōd branch of the same be generally approoued For how can one the self same law forbid and comand things so contrary and repugnant in themselues Or how can the Archbishop safely ground his iurisdiction vppon a lawe so contrary and repugnaunt vnto it selfe If the Archbyshop shall think that these two braunches may be reconciled that the meaning of the former maye and ought simply to be vnderstood as the words them selues import and that the second braunch may and ought to be vnderstoode to bound and limite such an authoritie to him selfe as whereby he might graunt such licenses as were had and obtayned at that time at the sea of Rome for matters not contrary or repugnant to the law of God yet neither by this interpretation is the Archbishop truely intituled vnto any authoritie therby to dispence for symony nonresidence many benefices marriages in Lent c. in as much as such maner of licenses obtayned at that time at the sea of Rome were obtayned for matters repugnaunt vnto the law of God and contrary to the truth of the doctrine of the Gospell and so by this statute flatly forbidden Which thinges our auncestors not thoroughly foreseeing neither duely examining for what maner of causes or matters licenses were at that time obtayned at the sea of Rome but onely in a generallitie inhibiting thinges repugnaunt vnto the law of God and neuer particularly describing what those things were but leauing the same wholy to the iudgement and discretion of one man the Archbishop alone haue fallen into two palpable absurdities the one that one man alone hath from time to time authoritie by his discretion to determine what causes are repugnaunt to the holy scriptures and lawes of God what causes matters are conuenient for the honour and safety of the King of England and what are necessary to be had for the wealth and profite of the realme three thinges of such waight and importaunce as the whole body of the realme at that time was scarceable to conceiue much lesse shall euer any one Archbish be able to practize The other absurditie is this viz. that by this statute soueraignity is giuen to the Archbishop and his successors to dispence with the king and his successors kinges and Queenes of Englande The wordes of the statute are plaine and euident But what reason is there for kinges and queenes of England to become wardes and pupils vnto an Archbishop of England Or howe agreeth it with the worde of God that a Christian king should in any sort be in subiection vnto his owne vassall Or what christian subiect dareth attempt to offer vnto his Christian soueraigne a tolleration For in case the matter of the sayde tolleration be pretended to concerne the conscience then if the matter be free and lawfull by the law of God a Christian king may as well and as freely vse the liberty of his conscience with out licence from his subiect as his subiect maye vse his freedome without dispensation from the king If it be contrary to the lawe of God then may neither a christian king neither a Christian subiecte be dispenced with For what man can dispence with the Lawe of God And in case the matter of dispensation concerne any thing appertayning vnto this life how then should the king receiue a dispensation from the Archbishop without impeaching his kingly dignitie and prerogatiue For either he must bee dispenced with for breach of the positiue Lawe of this lande and haue the payne of Lawe remitted him by the Archbishop which were to set the Archbishops keyes aboue the Kinges armes Or els he muste purchase a dispensation that he may breake his Lawe which were against his honour and safety For saith the Emperour Digna vox est maiestate regnantis legibus alligatum se principem profiteri C. De le cōstit princ l. digna It is a worde worthy the maiestie of a ruler to acknowledge himselfe as chiefe tyed vnto the lawes Moreouer this case between the king and the Archbishop is farre different from the case betweene the king and his Iustices at lawe determining matters according to the common lawes and customes of the Realme betweene the king and his subiectes For they remayne still the kinges vnderlinges and in deed giue but the kinges iudgements they iudge not the kinges person neither commeth any thing touching his person before them But dispensations from the Archbishop to the king concerne the kinges owne person The king in his royall person or by his proctor muste appeare in the Archbishops consistory he must alleage before the Archbishop sufficient matter whervpon the Archbishop but a subiect may be mooued to dispence with the King his soueraigne and finally the Kinges wisedome muste be subiected to the Archbishops discretion And therefore to confirme the Minor proposition of my third syllogisme I conclude 1 Whatsoeuer is dishonourable and dangerous for hir highnesse person the same can not be conuenient for hir honour and safetie 2 But it is dishonourable and daungerous to haue the Archbishop to dispence with hir highnesse 3 Therefore the same is not conuenient c. WHich reason also maye as well be applied to disprooue the vnlawfulnes of the Archbishops dispensations granted vnto any of hir highnes subiectes as vnto hir highnesse owne person in as much as hir kingly prerogatiue and supreame gouernment in matters lawful by the holy scriptures is therby impeached The Arch. iurisdictiō only aduanced the surety of hir royal person peace of the cōmō weal il prouided for Againe sithence euery one of sound iudgement vnderstandeth the honour and safety of hir highnesse person onely and wholly to consist in the protection and safegarde of our most mighty and most gratious God and that nothing can bee so honourable and safe for hir highnesse as humbly and reuerently to attend and to submit hir selfe to the scepter of his word the execution of this statute by the Archbishop can not be but most inconuenient and perillous for hir highnes person in as much as partly through a corrupt construction partly by a synister iudgement not rightly discerning what thinges are repugnant to the word of God the sayde Archbishop dispenseth in causes and matters contrary and repugnaunt to the holy scriptures which causeth the name of God to be euill spoken of and is a dishonour vnto God and therefore no honour nor safety vnto hir highnes person And therfore hir highnes is humbly to be intreated to take the entier dominion and whole soueraignty due vnto hir by the word of God into hir owne handes and not anye longer to suffer such a blemishe to remayne in hir gouenement Had hir highnesse moste noble Father vnderstoode his kingly person to haue vndergone the Censorship of his subiect no doubt he wold as couragiously haue fought against an Archb. as he did against an Abbot Pouerty of the person no cause for a dispensatiō As
or positiue Lawe he were restrayned And therefore wheresoeuer eyther by violence or positiue lawe any one man in any one place vsurpeth power to excommunicate alone there the whole companye of the faythfull in that place is secluded from this franck ability to doe what it woulde in the spirituall seruice of the Lorde wheresoeuer I say this freedome is after this sort by a certayne violence or positiue Lawe wrested out of the power of the Church so that shee hath not free liberty to execute her will namely to banish from her society and fellowshippe all such as haue by their owne misdemeanour banished them selues from the obedience of the Lorde it must necessarily followe that therfore for one to excommunicate alone is against the liberty of the Church bringing the Church into extreame bondage and seruitude For as by the reason of the naturall man Seruitus est constitutio iuris gentium qua quis dominio alieno contra naturam subticitur Seruitude is a constitution of the lawe of nations whereby agaynst nature any man is subiect to the Dominion of another euen so by the reason of the worke of the spirite that without contradiction is to be reputed a spirituall seruitude whereby the Church of God contrary to the Law of God is brought vnder any straunge and forraine gouernment And therfore I conclude thus 1 Whatsoeuer is an ocasion that the Church of God is in subiection and bondage the same is against the liberty of the Church 2 But that custome whereby one should excommunicate alone is an occasion that the Church of God is brought into subiection and bondage 3 Therefore the same is against the liberty of the Church and if so then not lawfully prescribed and if so then no lawfull custome but a corruption THe first is prooued from the rule of contraries that whatsoeuer is affirmed in the one the same muste be denied in the other Ye were in bondage sayth the Apostle but now yee are free and therefore no more in bondage The second proposition hath beene prooued as well by the description of libertie as by the Etimoligie of bondage whereby hath been shewed the Church then to be at liberty when she may do whatsoeuer she will in the seruice of the Lorde according to the will of the Lorde And so consequently then to be in thraldome and subiection when she is bound to yeeld vnto that which is cōtrary vnto the wil of the Lorde And therefore in this respect also I may once againe conclude against the sayd custome thus 1 Euery custome which is against the liberty of the Church is a custome vnlawfully prescribed 2 But this custome namely that one should excommunicate alone is againste the libertye of the Church 3 Therefore this custome is vnlawfully prescribed BVt be it that this foresayde asserted custome were not to be reputed an erronious custome be it that the same were begun and continued by the consent and agreement of the Lordes people be it that it were not forced and violent but peaceable and without interruption be it that it were not vnreasonable and agaynst the lawe of God bee it that it were broughte in with the knowledge and consent of the Lord Christ be it that it were not agaynst the liberty of the church or against the power of ecclesiasticall discipline Though a Byshoppe might excommunicate yet a Bysh Commissary may not bee it I say that euery bishop a minister of the Gospell haue power to excommunicate alone shall it therefore followe that euery Byshops commissary or Archdeacons officiall a man not entred into the ministery a meere lay man as they cal him not capable of any such iurisdiction may do the like For though a byshop or an Archdeacon by positiue Lawe may substitute and depute another to execute iurisdiction vnder him yet notwithstanding by the same positiue Lawe hee is restrained from delegating the same to euery man without any difference or distinction of persons Extra de elect c. EPISCOPI EA QVAE SVNT c. Byshops may commit matters of iurisdiction as of iudgement excommunication and such like to others hauing no iurisdiction but notwithstanding they must bee such manner of persons as bee capable of iurisdiction but a lay man is not capable of iurisdiction Therefore hee may not excommunicate because custome can not worke that a Clearke no Byshop should exercise those thinges which are reserued to the order of a Byshop c. 10. Andre in c. ij de preb lib. 6. And the reason is Quia consuetudo non facit quem capacem because a custome maketh not one capable Euery byshop and uery minister by common right haue authoritye to preach the doctrine of faith and to minister the sacraments in his necessary absence may haue this duety herein perfourmed by another but yet neyther the Byshop neither the minister in his absence may leaue any one not called to some function in the ministery to preache the Gospell though the same partye were the godliest and wisest man in the whole country The Emperour may appoint Presidentes and Proconsuls in prouinces to be his deputies to execute iustice vnder him and in his name and the Pretor may appoint tutors and curators to pupills and orphanes but yet neither the one neither the other maye therefore appoint children or madmen or women to those offices The Lorde Chauncellour of England vnder her maiesty hath authority to place Iustices of peace in euery sheere yet can he not appoint a Spaniard or an Italian borne A bishop likewise as he himself by reason of his fūctiō the ministeri cōmitted vnto him by law positiue is made as he supposeth capable to excōmunicate so ought he to delegate the same his office only to one of the ministery not to a doctor or bacheler of law a meere lay man though he professe the gospel much lesse to a suspected or known popish doctour or bacheler of law a meere laye man too an enimy to the gospel For what authorty haue these kind of men ouer the ministers of the gospel Did euer Moses or Iosua or Dauid or Iosiah cōmanded any Ebrew not of the tribe of Leui to execute the priests office did Aaron or any his faithul successors euer supply their roomes execute their offices by one not of their owne tribe And if these men may not be foūd to haue done these things much lesse woulde they euer haue tollerated a priest of Baall or a Philistine no priest at all to haue entred into the sanctuary It was not lawful for Aaron or his Son Eleazer to cōmit the folding vp of the sanctuary vnto any of the family of the Koathites And therfore I say that a bishop or an archdeacō can no more cōmit the office of executing the disciplin of the Lord Christ to a lay man as they cal him or one that is no minister then he can cōmit the office of preaching baptising to one that is no
minister such men are altogether vncapable of such offices For CONSVETVDO c. A Custome cannot giue authoritie vnto priuate persons to excommunicate neither to degrade or depose neither yet to arest Cleargie men or bodily to chastice them De offic Archid. c. cum satis Extra de elec c. transmissa De cleric co◅ c. cle 10. lib. 6. Touching the statute made in 37 yeare of Henry the eight that al singular persons as well laye men as those that were then or shoulde afterward be marryed beeing Doctors of the Ciuile law lawfully create and made in any vniuersitie maye lawfully execute and exercise all maner of iurisdiction and all Censures and coertions appertaining or in any wise belonging to the same First I aunswere that the same is but a law of man and therfore by man may be abrogated Secondly that as it was made in a corrupt time so in truth the statute in that poynt is corrupt and ought therefore in the same point to be repealed For though the same statute in some respect establishe and confirme vnto the king and his successors and so vnto our most gratious soueraigne Ladie the Queenes maiestie that now is lawfull preeminence power superioritie and Lordship ouer all persons within hir Dominions of what state or condition soeuer touching punishment for any heresies errours vices schismes abuses idolatries hipocrisies and superstitions springing or growing by meanes of any hir disobedient and disloyall subiectes so hath hir maiestie by hir iniunctions published that hir highnesse did neuer pretend any title or challenge any authoritie to punnishe any of hir subiectes for any of the sayde offences by censure Ecclesiasticall in right belonging to hir royall person but that hir highnesse meaning and intent is and alwayes hath beene to commit the execution thereof alwayes to the Ecclesiasticall state of hir time Hir Iniunction is as followeth The Queenes maiestie beeing infourmed that in certaine places of the Realme sundry of hir natiue subiectes beeing called to Ecclesiasticall ministerie in the Church be by synister perswasion and peruerse construction induced to finde some scruple in the forme of an oth which by an act of the last Parliament is prescribed to be required of diuers persons for the recognitiō of their allegiance to hir maiesty which certainly neuer was euer mēt ne by any equity of words or good sence can be thereof gathered Woulde that all hir louing subiectes should vnderstand that nothing was is or shal be ment or intended by the same oth to haue any other duty allegiāce or bond required by the same oth then was acknowledged to be due to the most Noble kinges of famous memorye King Henry the eight hir maiesties father or king Edward the sixth hir maiesties brother And further her maiestie forbiddeth all maner hir subiectes to giue eare or credit to such peruerse and malicious persons which most sinisterly and maliciously labour to notifie to hir louing subiectes how by the wordes of the sayd oth it may be collected that the kinges or Queenes of this Realme possessours of the crowne may challenge authoritie and power of ministerie of diuine offices in the Church wherein hir sayde subiectes be much abused by suche euill disposed persons For certainly hir maiesty neuer doth ne euer will challenge any other authoritie then that was chalenged and lately vsed by the sayd noble kinges of famous memory king Henry the 8. and king Edward the sixth which is and was of auncient time due to the imperiall Crowne of this realme that is vnder God to haue the soueraigntie and rule ouer all manner persons borne within these her realms Dominions and Countreis of what estate either ecclesiasticall or tēporall soeuer they be so as no other soueraigne power shall or ought to haue any superioritie ouer them And if any person that hath conceiued any other sence of the form of the said oth shall accept the same oth with this interpretation sence or meaning hir maiestie is well pleased to accept euerye such in that behalfe as hir good and obedient subiectes and shall acquite them of all maner penalties contayned in the sayde act against such as shall peremptorily or obstinately refuse to take the same oth By which Iniunction we may euidently perceiue that as the Lord hath restored vnto hir maiesty the scepter of iustice and iudgement ouer all persons within hir Dominions and reunited the gouernment ouer the ecclesiasticall state to hir highnes crowne and dignity so hir maiesty remembring the Lords goodnes towardes hir mindeth nothing lesse thē hereby to cōfound the two principal offices in his church viz. magistracie ministery but leaueth them still distinguished as by his word he hath prescribed challenging vnto hir selfe as chiefe magistrate nothing els but power to commaund both that the true ministery be duly executed by men lawfully called thervnto and also that hir lawful magistracie may be aduaunced in all thinges according to his word Wherin we see hir maiesty both in respect of hir sex and in respect of hir ciuile office vtterly to haue refused to take this part of the ministery vpon hir as wel as she doth abstaine from ministring the Sacramentes or dispensing the word by publike preaching She contenteth hir selfe with the authority limited vnto hir by the word of God ouer the bodies goodes liues possessions of hir subiects she challengeth no power ouer their soules as by excōmunication to deliuer them to sathan If any person whatsoeuer shall offend against any law statute or custome of this Realme whereby he may incur any bodily punishment she thinketh it sufficient for hir by hir processe to summon him before hir tribunall seate and vpon his triall to haue in hir name iudgement pronounced against him for the breach of hir highnes lawes whether the same consist in losse of life goods landes promotions or whatsoeuer And as touching ecclesiastical coertion if any of hir people deserue to be punished by the ecclesiastical ministery hir highnes demandeth no other soueraignty then to cōmaunde the ministery to exercise the discipline of the Church againste the offenders as by the lawes of God they are cōmanded and in case they of the ministerie shal be herein remisse negligent then to punish them with such paines as either by hir lawes is prouided or by hir wisdom shal be thought expedient in that behalf for the contempt of hir gratious cōmandemēt neglect of the Lords seruice In which diuersitie of punishments the diuersitie of the offices of magistracie and ministery doth manifestly appeare Magistracie hauing euermore regarde to the bodye and outwarde man but ministery alwayes to the soule and inner man The magistrate punisheth with bodily chastisemēt the minister with spiritual discipline neither doth th one hereby derogate frō the other or any whit weaken the other but rather ech one strengthneth fortifieth the other For the mind brought in frame by discipline frameth the whole body to a more holy obedience so that
rites ensignes and ceremonies c. yet now foras much as we are certaynely infourmed that they bee altogeather Antichristian and therefore expresly against the worde of God we maye and ought to vrge the generall intendement of the statute generally to take them awaye Secondly were not the foresayde popishe rites ensignes and ceremonyes Antichristian and expresly against the lawes of GOD and therefore by this braunche of the statute might bee ministred vsed and exercised yet notwithstanding it is manifest that the sayde rites ensignes and ceremonies haue not beene appoynted by the prerogatiue of anye of the Kinges of this Realme but haue beene transferred from Italye vnto Englande by a forren and vsurped power and therefore by the seconde braunch of the statute as thinges authorized contrarye to the Lawes of the Realme are not anye more to be vsed or exercised In the time of King Henry the seconde we haue seene before that this priuiledge was graunted to Archbishops and Bishops that they shoulde holde their possessions of the King as a Baronie and shoulde be present in the Kinges courtes as other of his Barons If in these dayes they did sitte them selues in their owne Consistories and exercise gouernement by the lyke authoritie their Courtes happely woulde not be so contemptible as they bee nor their iudgement seates so abused as they are The people woulde be better quyeted in those places and offer lesse iniurie to the magistrate then now they doe And therefore I conclude that though hir highnesse and the lawes indirectly and as it were alatere tollerate these men to rule and gouerne according to those forreigne lawes whereof they haue the execution yet the more faythfull and loyall euery subiect is the more he should and doth contende to haue the whole and entyre gouernement of the Church and Common weale directly immediately and absolutely to spring from hir highnesse as from the heade and fountaine vnder Christe of all gouernement to be executed amongest hir subiectes In dooing wherof they shall dutifully and Christianly more and more mayntaine hir prerogatiue The Emperour forbidding Ecclesiasticall men to vsurpe Ciuill offices lost no whit of his imperiall prerogatiue ouer the subiectes yea rather hereby he openly declared the magnificence of his Empyre and the absolute authoritie he had ouer them and that as well by forbidding things not to be doone as by commaunding thinges to bee done Enemies of reformation enemies vnto hir maiesties prerogatiue For though he spoyled them of vnlawfull preeminences yet he enriched them with lawful liberties I know not the inward intent and meaning of such as mislike to haue ciuill gouernment translated frō Archbish Bish and Archdeacons vnto the ciuill magistrate But if I may speake that which may shrewdly be suspected they may seeme to be greater enemies to hir highnes prerogatiue then others be For though outwardly in wordes they seeme to graunt vnto hir all libertye in the disposition of ciuill offices whervnto the others do likewise agree and condiscende yet they seeme in deede to be loath she shoulde drawe the sword of hir prerogatiue cut a sunder the coards of their cōsistories They graunt hir authoritie to make them selues iustices of peace and ecclesiasticall commissioners and so wage law for hir prerogatiue An easie matter for them to stande in plausible to flesh and bloud their outwarde man delighteth with outwarde pompe and credit But suppose the case stood between the Archb. Bish and Archd. and hir maiesty for hir prerogatiue in abolishing their iurisdictiō trāslating the same to others that the matter were to be decided by the gretest part of their own voyces that their voyces were to be giuen in scrutiny not any waies to be knowen who had giuē his voice with or against hir prerogatiue in this case I feare me rather then their Lordeshippes shoulde take the foyle they woulde lay hir prerogatiue in the dust selfe loue woulde haue a strooke and fleshe and bloud woulde be loath to loose any liberty The history of Henry the fifth and the Oration of Henry Chychuby Archbishop of Caunterbury made in the Parliament house to alienate the Kings minde and to disswade his Nobles from the enterprise whereof hee and they had consulted touching the ouerthrow of irreligious houses and to draw their endeuours to make warre and to leauie an armie against the French king might be a forcible argument to anye to perswade him selfe the same thing in this case though he had no other reason to induce him therevnto But the vnciuill intreaty of hir highnesse owne schollers elected by hir gratious commaundemement from Westminster to hir owne Colledges in Cambridge and Oxenforde euen by such as would seeme in words to set vp mightie propes vnder hir prerogatiue argueth manifestlye the same thing For otherwise hir maiesties schollers in all respectes as well qualified as their owne and alwayes elected halfe a yeare before their owne might once in the space of twenty foure yeares though not for their owne sakes yet for their honorable Lady and mistresse sake haue receiued some more fauourable intertainment and preferment in those houses then hitherto they haue done The maisters of those houses woulde not haue placed them next vnto the screene and set them next vnto the Porters lodge as by elections vnto fellowships in the one schoolerships in the other they a long time haue doone Whereas on the contrary side it is apparantly knowen that sometimes the Dean of Christ church in Oxenford a great friend to reformation and a man for his excellent knowledge and wisedome in gouernment singularly commended euen by his enemies in these small matters gaue an apparant and rare example of his humble dutie and loyaltie vnto hir highnes For the reuerent estimation he had caryed of vnto hir highnes ordinance and institution he placed a scholler sent thither by hir maiesties appointment firste and senior vnto all those that were elected into the house at that time he him selfe brought the same hir scholler to his chamber and placed him in a Chamber and studie commonly appoynted for the ancients of the house all his owne schollers were inferior vnto hirs and placed beneath hirs Since the departure of which man if the Audite or butterie bookes of that house were sought you shall finde hir schollers names written alwayes in the latter ende of the booke the last of forty and placed after his scholler whom hir highnesse but the day before had preferred to be a Deane or prebendary in that house The Deanes schollers they goe and sit and are placed foremost the prebendaries in the middest and hirs hindermost and if they were to go a procession as in the time of popery hirs must go foremost as vnworthiest to go next to the crosse And because hir maiestie sometimes by hir letters heretofore requested the Deane and chapiter to receiue into hir Colledge such as she thought meet to be placed Now forsoth to preuent hir bountifulnes
he that ineucteth him after this sort shall haue of him that is inducted necessary expences and such as are agreeable to his estate and calling vnder the moderation limited vnto the Archdeacon him selfe or his officiall if either of them had personally made any such induction Prouin lind de censib c. item licet ILLVM ARCHIDIACONORVM c. We detesting that abuse of the Archdeacons and their Officials and other Ordinaries whereby they exact of the Priestes appointed to celebrate in their iurisdictions before they doe celebrate a certayne and excessiue sume of money vnlawfully conuerting the liberalitie wherewith such Priestes were wont to content them selues receauing but one peny of Clearkes registring their names in their recordes vnto a confiscal exaction of sixe pence or there aboutes We ordayne that from hencefoorth of the sayde Archdeacons and other Ordinaries or any of their ministers vnder payne of suspencion from the celebration of diuine things by any meanes presume not to receiue of the sayde Priestes aboue one peny For the which there names must be registred in their first admissions Lind. de censib c. saeua A cruell and miserable greedinesse hath inuented that vnmeasurable exactions for letters of institutions of Clearkes admtited vnto ecclesiasticall benefices for letters of orders for labour of writinges and for seales are oftentimes made the Canon disalowing the same saying as it becommeth not a bishop to sell the imposition of handes so it is not decent for his minister to sell his quill Moreouer the Clearkes of Archdeacons and their Officials and other ordinances refuse to deliuer the certificates of inquisitions made vppon vacant benefices vnlesse they first haue an excessiue some of money for writing We therefore willing to abolish this abase haue determined by the aduise of this present counsel to ordayne that for the writing of the letters of inquisitions institutions or collations and commissions to induct or for the certificates of the same into their benefices the sayd Clearkes receiue not either by them selues or by others aboue 12. pence And for the letters of euery holy order the sayde Clearkes neither by them selues nor by any other shall receiue aboue sixe pence In other things let the Ordinaries themselues be bound to allot stipendes for their ministers and officers wherby they may iustly be satisfied But for sealing of such letters or to the Marshals for entring into the house or to the Portors or doore keepers or Barbers we will that nothing at all be exacted or payde by any coulorable intent least the payment for seales os letters or enteraunces aforesayd be turned vnto a damnable gaine Bishops and bishops men not a few are suspended by this Canon And this we ordayne vpon paine of double to be restored within one moueth Otherwise the Clearkes that refuse to restore double let them know them selues to stande suspended from their office and from their benefice And now generally to conclude It were not amisse in my simple vnderstanding that the whole Church made humble supplication vnto her excellent Maiesty and her honourable Counsaylers that the Iudges of the Land might bee consulted vppon the validity of the former act of Parliament and that it might bee knowne whether the foresayde Cannons established thereby or any of them be in force and if so that then her Maiesty woulde vouchsafe gratiously to take the Church affayres into hir owne handes and by hir commisson Ecclesiasticall appoynt such honourable and faythfull men as are not in the ministerie to examine the bishops proceedinges Viz. Whether they haue made any criminous and vnlearned ministers Whether they haue suffred any such men to remaine in the ministery all the tyme of her maiesties raigne Whether the Archbish haue dispenced in any matter or cause contrary to the word of God Whether the pastor of euery congregation be suffered to execute the discipline of Christ authorized by Act of Parliament Whether the Archbish bish haue sat in matters of blood Whether they haue made a minister without a title allowing him whereon he might liue Whether he haue made anye in his owne Diocesse without licence from his felow bishops Whether he haue receiued any money for letters of orders institutions or suffered his Archdeacons to do the like for inductions Whether he haue receiued money for excommunication and absolution Whether he haue set out his bishopprick or any part of his iurisdiction for an annuall rent Whether he haue not suffered his chiefe houses of resiaunce to fall into dilapidations Whether he haue not admitted vnto anye benefice the sonne of him whose father was placed in the same benefice before Whether hee suffer none to bee non resident but where the euident necessitie and vtilitie of the Church requyreth Whether he haue promulged and executed any Canon or iniunction without hir maiesties writ and royall assent Whether he haue personally visited the Churches of his Diocesse onely vpon iust cause and not for gaine whether a minister haue not by commoÌ„ right Act of Parliament a lawfull calling in the ministery and such a calling as from the which the bishop maye not remooue him without some speciall cause Whether an Archbishop or bishop by vertue of his Archiepiscopall or Episcopall authoritie may promulge or execute any Canon or Iniunction vnlesse it be made in conuocation summoned by hir maiesties wryt and authorized by hir royall assent Whether a murtherer or theife be vsually compellable vpon his oth to detect his murther or fellony Whether an Archbishop or bish may lawfully bring vppon hir highnesse leage people an inquisition sifting them with othes what fayth deuotion or maners they professe Especially the sayde people liuing in outward obedience of hir highnesse positiue lawes And if not then whether an Archbishop or bishop may lawfully vrge the like touching matters onely of discipline and ceremonies and commaunde hir sayde people by vertue of their othes to declare what when where or how they haue spoken or preached out of the word of God the truth of God touching the same Whether a preacher onely vpon occasion of his text teaching the people that weomen by the lawe of God may not baptize or that by the same lawe a Deacons office is not to preach may bee iustly condemned to haue preached maliciously against the booke of common prayer the sayd preacher not once mencioning in all his sermon one word of the sayd booke Whether a preacher of the Gospell borne within hir maiesties Dominions haue not freedome of an English Citizen to challenge the benefit of hir highnesse lawes for the defence of his person fame goodes landes and liuinges Whether a preacher of the Gospel fearing some vniust vexation of his Diocesan may not complaine into hir highnes court of Chauncery and haue hir maiesties writ Quia timet against the sayde Diocesan Whether a preacher of the Gospell may not lawfully haue his bill of complaint admitted by the honorable Counsellours Peares and Lordes of the Starre chamber against his Diocesans iniurious intreaties and contemptes of hir highnesse lawes Whether some kinde of writ out of hir highnesse other temporall Courtes may not lye as well against a Diocesan for proceeding against a preacher of the gospell contrary to common or statute lawe or contrary to hir highnesse prerogatiue royall as some kinde of writ doth lye against an Archbishop for proceeding against some other of hir highnesse liege people contrary to the intent of the statutes prouided against vsury periurie payment of tithes and such like Whether an Archbishop may sing a note aboue Aela and lawfully exercise an absolute power within hir maiesties Dominions Whether a minister admitted by the order of the booke of king Edwarde the sixth be not presently a lawfull minister and may preach in his owne cure with out any licence in writing from the Bishop Whether licences graunted by hir maiestie or hir maiesties ecclesiasticall Commissioners or any of the Vniuersities be at any time reuocable by an Archbishop alone Whether any licence for mariage without banes asking be lawfull or no and whether banes asking be of necessitie required by the booke of Common prayer Whether any commutation of penance be lawfull Whether a meere lay man no doctor of the ciuil law may be a chauncelor and so excommunicate Whether a meere laye man no Doctor of the Ciuill law may be a bishops register contrary to an Act of Parliament Whether it be lawfull for a symoniacall excommunâ—…cat and irreguler person to bee a ludge or no And 〈◊〉 an Archbishoppe be such a person whether he may resort to the Pope to be absolued or no or where or how he may be absolued Faultes escaped PAg. 12. li 29. for leaue these read leaue the seate pag. 12. li. 33. for he shall be in read be in pag 13. l. 24. for by the popes act of parliament read made by the pope coâ—…med by act of parliament pag. 14. l. 12. for he is deposed read he deposeth pag. 14 l 35. put a before certain pag. 14. l 13 for functions read fâ—…ns pag 18 l. 28. for correcteth or improoueth rea to correct and improoue pag 20. l. 35. read and that it did not concern the honor of the Sonne of the most pag. 22 l. 7 for 4 read 1â— articles pag 23. for corruptions read occupations pag. 33. l. 3 for the minister chargeth read the minister at the Bâ— instance chargeth pa. 56 l. 11. for that they read that the â—… pa 75 for collation read collusion pa. 71. l. 35. for curall rea â—urall p 79 l 15 for dicit rea dicere p. 79. l. 27. for oâ— yet a consent rea nor yet consent pa 82 l. 18. for partâ— rea pacta pa. 161. l. 9 for reputari idoneas rea reputare idoneâ—… pa 101. l 27. for this plurality man rea a plurality man pag. 103. l. 8. for harly rea Carlile pag. 103. l. 35. for canon rea common pag 151. for petion rea petition p 157. l. 5. for passion rea possession pag. 173. l. 27. for runneth thee rea runneth against thee pag 175. l. 25. for of sufficient rea of no sufficient pa 222. for seruants rea tenaunts pag. 141. l 25. for Abbot rea Abbiâ— pa. 169. for of excommunication rea of sole excommunication p. 122. l. 10. for Moses rea Ioâ—hua and pag. 122. l. 12. for Ioshua read Ioshuas 〈◊〉