of lay men as in trueth it is already executed by lay men yet the Courtes of Arches and Audience and the Court of Delegates might remayne and continue still and as they ought indeede so they might in worde as well and better to bee called the Queenes Courtes of Arches and Audience as the Archbysh of Canterburies Courtes of Arches and Audience As conuenient for the Doctors to attend vpon the Queene as vpon the Archbysh And as good a sight it were as dutiful a part for my masters Doctoures of the Ciuill Lawe in their Scarlet robes to attend vppon her Maiestyes roiall person in case she passed thorough Paules as to attend vppon their Lordes grace his person And as touching euery other Consistory nowe called the Bpshoppes or Archdeacons Consistory for auoyding of confusion and many iudgement seates if they were vnited and reduced in euery Shiere or euery Diocesse to one consistorye it mighte lykewise haue the name of the Queenes Consistorye and the Courtes bee called the Queenes ciuill Courtes as wherein according to the natures and qualities of the causes before specified Ciuill Iustice might bee ministred and the Popish ecclesiasticall Lawe abandoned and as a froth or filth bee spewed oute of the Common Weale Her hignesse can not more gratify the Pope then by executing his lawe For assuredlye by no meanes can her Maiestye so much gratifye her capitall enemye as by authorising and practising his Lawes nor by no meanes can shee more honour the Lord then vtterlye to abandon all semblaunce of any gouernment proceeding from an enemye and Traytour to his Maiestye Neyther were it a Dodkin matter so little is his Lawe worth in her state and gouernment to haue all Bookes of her enemyes Lawes layde on a heape in Smithfielde and sacrificed in Fire vnto the Lorde her owne common and statute Lawes the Ciuill Lawe for the exellencye thereof receyued among all Nations and certayne prouinciall Constitutions made heretofore at her Auncestours commaundement haue for the moste part alreadye and where neede is speedilye maye haue sufficient matter in them for the gonernment of the Church and Common weale without any helpe from the Laws of the enemy of the church and Common weale Instit de iur natu genti ciui § sed quod The Lawe of a King is as it were the mouth of a King for that he alwayes speaketh by his Lawe And if wee suffer the Pope to speake amongest vs as a King doe wee not honour him as a King If wee imbrace his power doe wee banish his personne If you say that they bee not executed as his Lawes but as ours I aske you agayne why shoulde they at all be executed as oures For in trueth they doe lesse good vnto vs then an Herb-Iohn doth as is sayde in the Potage for that Herbe doth neyther good nor harme But these Lawes doe annoye vs vvonderfullye and they doe vs no manner of good at all They are altogether needelesse they are altogether Bootelesse I woulde to GOD they were altogether footelesse too For touching the gouernment of the Church wee haue first the perfect and altogether righteous Lavve of God to rule the same by Secondlye wee haue her Maiesties Iniunctions the common and Statute Laws of the Realme and the prouinciall constitutions conteyning in effect whatsoeuer ought in anye case by any subiect to bee practised within this Realme Touching the administration of Iustice in anye ciuill cause before mentioned and wherof practise is made in the ecclesiasticall Court there is nothing good in the whole body of the Canon Lawe concerning the same but the same hath beene culled out of the Ciuill Lawe it is but an Epitomy of the Ciuill Law The rules of the Cannon Lawe are for the most part rules taken out of the Ciuill Lawe onely there is this difference that by the Cannon Lawe a man in some case shall not in his whole life time get an end of his suyte as these parties that had a cause depending in the Popes Court twentye foure yeeres and yet in all that space Lis non erat contestata an issue could not bee ioyned wheras by Ciuill Law a cause in the first instaunce ought to bee finished within three yeeres at the vtmoste or else the Agent becommeth non suite And if vppon cause the matter bee appealed after definitiue sencence the same cause of appeale ought ordinarily to bee ended within one yeare or vppon some iust cause extraordinarilye happening vvithin two years Otherwise the appeale is frustrate so that in both instaunces fiue yeares onely must bee spent in suit of law And nowe what reason is there that the Canon Lawe shold be still canonized amongst vs when it was ordeined that none should proceed in any vniuersity doctor of the Canon lawe I thinke the meaning of the ordinance cheefly was that leauing no hope of preferment to the professours thereof the thing being of it selfe so vile they shoulde loose no labour in the study thereof But I will conclude that in as much as by the Canons Constitutions ordinaunces and synodalles prouinciall made before the 25. yeare of Henrye the eyght Byshpos and all other Cleargy men are forbidden to be Vicountes Presydentes Iustices Stewardes Bayliefes gouernoures of Villadges Iudges Aduocates Assessors Tutors Gardians Ouerseers runnagates to seculer Courts farmers of temporall possessions receyuers of reuenewes present in anye place where mencion of anye processe or iudgement is to bee awarded agaynste anye man to the sheading of bloude And in asmuch as they are commaunded to apply themselues wholly to Prayer and supplication and not to neglect their office and to intangle them selues with worldlye businesse And for as much also as the Emperour hath vppon substantiall reasons and principles inhibited the Cleargy vnder his Dominions the like offices to the end there mighte bee no confusion of gouernment nor mingling of offices nor Iustice vnministred nor one to defraude another and for as much also that such Canons Constitutions ordinaunces and synodalles prouinciall before specified bee not contrariant nor repugnaunt to the Lawes Statutes and Customes of this Realme nor to the domage or hurt of the Queenes Prerogatiue royall but rather for the establishment of the same the same Canons beeing both founded vppon the Lawe of God whereby her prerogatiue standeth and is vpholden and confirmed by the Lawes of reason and nature and also ratified by the consent of Emperoures and nations that therefore these Canons constitutions ordinaunces and synodals prouinciall ought to be vsed and executed as they were before the making of the Act 25. Henry the eight and that therefore it is vnlawfull for Archbishops bishoppes or anie Cleargie men to beare any ciuill office in the common wealth If any except that before 25. of Henry the 8. bishops and Cleargie men did vse and execute those offices and that therefore these Canons were not then in vse and executed and therefore not in vse now or to
the lawes are not onely vnprofitable but also are to be accounted for thinges vndon And thus much concerning the causes circumstaÌ„ces of dispensations for many benefices It followeth theÌ„ in the description of a dispensation as you haue seen that the same ought to be granted cum causae cognitione with knowledge of the cause the reason is this Glos Extrauagan de prebend dig c. execrabilis ver vltima Duo sunt in dispensatione necessaria authoritas dispensantis factum per quod dispensatur Nam in quolibet actu considerari debent duo factum modus Two things are necessary in a dispensation authoritie of the dispenser and the fact whereby he shall dispence For in euery Act two thinges are to be considered the fact and the maner of the fact And therefore a magistrate hauing authority to dispence ought not vpon the bare assertion and simple allegation of any person disirous to be priuiledged and to haue the Magistrate to mitigate the rigour and extremitie of common right graunt any such mitigation vnlesse the partie first alleadge and by some lawfull proofe make manifest vnto him that both touching the abilitie of his person and the necessitie of his cause there ought in equitie an exemption and immunitie be graunted vnto him For Priuilegia sayth the Lawe ff de minori l. de etate d. ex de priuil c. sane 7. q. 1. potuisti bast l. 1. de col l. ver are preiudicialia magnum pariunt preiudicium ideo sunt cum plena causae cognitione tractaâ—…de priuilegium non est dandum nisi certa ratione inspecta non subito sed cum magna deliberatione Priuiledges are preiudicall breede great preiudice and are for this cause to be handled with a plenarie decision of the cause And a priuiledge is not to be giuen vnles the certain reason therof be foreseen and not sodenly but with great deliberation aduise In which deliberation aduisemeÌ„t taken by the iudg first the allegation or petitioÌ„ of the party agent or suppliant secondly the prone manifestation of the same his perioÌ„ is to be coÌ„sidred For no dispensatioÌ„ ought to be graunted at the proper motion and pleasure of the iudge alone but euery Dispensation ought to be granted at the instance and petition of the party alone § Hoc autem iudiciuÌ„ ff De dam. infect ff De regni sur l. inuito extra de Symo. Licet heli Cod. de fidei com liâ—…ent l. si Quiae laxari iâ—… non debet nec solui nisi parte postulante inuitâ— non debet beneficium conferri Et sententia debet esse conformis petitioni Et index semper debet indicare secundum allegata probata Because the Lawe ought not to be released or remitted but at the petition of the partye and a sentence ought to bee conformable to the demaunde and a iudge ought euermore to giue sentence according to thinges alleaged and thinges prooued And therefore sithence no other cause by Lawe may be alleaged in the Court of faculties for the graunting of any dispensation for many benefices then the very apparant vtility and vrgent necessity of the Church I conclude that the iudge his duety office is in any wise not to admit any other maÌ„ner of allegation but to pronounce the same altogether friuolous and to be of no valew in Lawe The Doctorship the Chapplainship the worship of any ecclesiasticall person are not sufficient causes in this behalfe alone vnlesse also together with the same meete and concurre the profite and necessity of the Church And if the said allegation as vaine and friuolous be to be reiected then no Dispensation thervpon ought to be graunted for otherwise the Iudge should of necessity eyther allow other causes then the Lawe doth allowe or else pronounce iudgemente otherwise then according to the demaund both which were too too greate absurdities And therfore out of the former rules and principles of Lawe I argue thus 1 Whatsoeuer is hurtfull and preiudiciall the same ought aduisedly and vppon consultation to bee graunted 2 But Dispensations are hurtfull and preiudiciall 3 Therefore dispensations ought aduisedly and vppon consultation to be graunted Extra de priuilig c. sane And if euery dispensation ought to be graunted by sentence vpon some consultation had that then euerye sentence vpon some consultation had ought to be giuen according to thinges alleadged and thinges demaunded Extra de simo c. licet heli IN which allegation and demaund to the ende the sentence may be conformable to the demaunde and so effectuall in law must be foreseene two things First that there be expressed no false or erronious cause Secondly that the same hide or conceale no truth Glos in extrauag execrabilis de prebend ver ex dispensatione For Ea dicitur legitima dispensatio in qua nihil tacetur vel nihil exprimitur quo expresso vel lacito princeps verisimiliter duci potest ad dispensationem denegandam That dispensation is reputed lawfull wherein nothing is concealed or nothing is expressed that beeing concealed or expressed the prince may be likelihood be induced to deny the said dispensation If then euery sentence must be conformable to the allegation and euerye iudgement agreeable to the demaund and that neither out of the sentence for a dispensation any knowen truth or manifest equitie ought to bee concealed neither in the same any salse or erronious cause ought to be expressed it followeth of necessitie that euerye allegation made for a dispensation ought to be of the same nature and of the same condition and that euery allegation not of the same nature and condition is an vnlawfull allegation and an vnequall petition Moreouer euery one that hath authoritie to dispence ought to keepe this rule Glos in extrauag coÌ„i col 3. ver Vt statuat vel disponsit contra ius aut contrascriptum si aequitas quae mouet ipsum mouisset legislatorem si casus nunc emergens esset sibi expositus That they ordayne or dispence against law or against writ if such equitie as mooueth him might haue mooued the Law-maker himselfe to haue graunted a dispensation had the case now growing bene proposed at the time of the law making to the law maker It followeth then againe that equitie beeing the cause of the sentence for a dispensation the same equitie must also bee the cause of the allegation for a Dispensation For if the iudge must giue a dispensation where equity requireth the party must then demaund a Dispensation where equity requireth For equity is always the foundation and grouÌ„dwork of a dispensatioÌ„ And what equity eueÌ„ such equity as might iustly haue mooued the Lawemaker to haue graunted a dispensation Nowe then because the Lawmaker authorising the Archbysh of Cant. to giue Dispensations hath beene the high Court of Parliament It followeth that the Archbysh may dispence onely in such cases as wherein the high
and to take awaye all occasion from others to seeke preferment in that house at hir maiesties hands they of late haue inuented a new deuice and practized a new tricke where they were by the order and foundation of the house bound yearely to make elections of such schollers as might presently at the time of the election be placed in the vacant roomes they now either at one time choose a greater number of schollers for them selues then are places vacant and so make but one election in two yeares or else so soone as any place by the departure of any schooler is voyd they foorthwith in the name of the Deane or some Prebendarie chop an other in his roome by meanes whereof either hir maiesties letters are delayed vnto the ende of two yeares or else remayne altogeather frustrated so kinde hearted these no Precisians and these no Puritanes haue beene and so thankfull they haue shewed them selues for their maisterships Deanries and Prebendaries receiued at hir maiesties hands by hir gratious bountie and liberallitie And therefore since they striue so egerly for such tryfles and vse such foule shiftes to shut hir out of doores and make hir schollers packehorses and set them at the Cartes tayle in hir owne Colledges I thinke a man may gesse twice and yet not gesse so nigh as to gesse that Cleargie men enemies to reformation rather then they woulde loose their dignities woulde if it laye in their power gyue hir Highnesse prerogatiue the Canuysadoe They allow hir maiestie a royall power to shred greene Olyue braunches but to roote vp olde rotten dotterelles they deny hir anye such authoritie they can bee contented hir maiestie shoulde strippe poore men cloathed with sackecloath but mighty men decked in scarelet shee may not touch or once looke awrye vppon No cause of the name of ecclesiastical court Concerning the Courtes and iudgement seates of Archbishops bishops and Archdeacons hitherto reputed and called Ecclesiasticall Courtes I can see no reason in the worlde why they shoulde be any more so esteemed taken or reputed or why anye matter or cause or suite or controuersie commenced in those places shoulde or ought to be called or counted Ecclesiasticall For though in times past I meane in time of popery they might probably and coullorably be so called either for that Cleargy men alone were Iudges and exercised iudgement in them either for that such parties as betweene whom suites did depend were for the most part meere church men either for that all peticions and actions made and begunne in those Courtes were for such matters and causes as whereof church men onely by vsurpation challenged vnto them selues the decision and determination yet now so it is that all these reasons fayle and are of no force For with vs at this day though Archbishops bishops and Archdeacons be Cleargie men and chiefe amongest the ecclesiasticall seat yet notwithstanding Doctors of the Ciuill lawe meere laye men as they call them and no whit beneficed by priuiledge of Cleargie exercise all iurisdiction reputed Ecclesiasticall in their consistories and by the ordinaunces of the Realme are made competent and lawfull Iudges in these Courtes 25 Henrici octui Where one suite now dependeth or these manye yeares hath depended in the same Courtes betweene Cleargie men alone one hundreth almost are and hath beene depending betweene laye men alone the causes them selues are all for the moste part mere Ciuill and belong onely to the Ciuill court Approbations and insinuations of Willes and Testamentes by expresse wordes as you haue hearde out of the Ciuill lawe are absolutely prohibited vnto Bishops and all other Cleargie men And so consequently for that Appendices sequuntur principalis subiecti naturam Accessories follow the nature of the principall subiect All causes of Legacies Bequestes Accountes Inuentaries Commissions of Orphanes gooddes and whatsoeuer else may be incident to anye of those causes are vtterly forbydden Causes of wrongfull and iniurious slaunders infamous Libels and contumelious crymes causes of contractes and marriages causes of dowrie and diuorce causes of filiation and legitimation of children matters of Vsurie and whatsoeuer appertayneth to the decision of these causes are causes meere ciuill and pertaine to the ciuill magistrate and therefore sithence Archbish Bish and Archdea to disburthen them selues may lawfullye commit the hearing of these causes from them selues yea and very seldome or not at all execute their iurisdictions by them selues but continually and effectually do surrogate and depute Doctors or Bachelors of the Ciuill lawe What iniurie to their persons or alteration of the state and gouernment can it be in case hir maiestie by hir prerotiue did commit the same causes vnto the same men and make the bishops men hir men and their commissaries hir presidentes Touching matters of tith it is lawfull for the chiefe Iustice of the kings bench where any vsage or custome by any partie is pretended to paye lesse then the whole tith as suppose the twenteth or forteth part of his tithes Yea in some cases where no tith at all is payde as vpon the statute of tith wood beeing timber trees aboue twentie yeares groweth to prohibite in hir maiesties name euery iudge ecclesiasticall that hee proceed not to the determination of any such cause and so to take vnto him selfe the hearing and determination of the same according to the common lawes of hir highnesse realme There is small diuersitie of reason why the same or some other Ciuill magistrate may not as well heare and determyne all and singular causes of tithes after what maner or forme soeuer they be payde as whereby long continuaunce of tyme they haue beene customablye payde after such and such sort or where no payement at all hath beene made In the seconde or thirde instaunce when appeale is made from an Archbishop Bishop or Archdeacon into hir highnesse high Court of Chauncerie or Delegates in any case whatsoeuer hir maiestie by the prerogatiue of hir Crowne and dignitie hath absolute power to appoynt such men to set a finall ende and ordinate direction therein as by their wisedomes shall be thought consonant to equitie right and good conscience There is no disparity of reason why in the first instaunce shee maye not as well haue like authority or why like authority from her or by her Maiesty may not lawfullye bee committed to any of her subiectes though no ecclesiasticall persons but onely seculer and laye men Neyther by this meanes shoulde the course of Lawe touching appeales be taken away but the same might be still practised as now it is In the prouinces belonging to the Romaine Empire though presidents and Proconsulles had their Commissions from the Emperour yet appeales were notwithstanding made from those Gouernours vnto the Consistories and tribunall Seates of the Emperoures imperiall City of resyaunce and cheefe aboade And therefore though the Gouernmentes nowe reputed Ecclesiasticall but in trueth Ciuil were absolutely translated from Ecclesiasticall men and put into the hands
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
the glose prooueth that though an Archdeacon haue authority by his office to examine do present vnfit men to the Bishop that yet the bishop notwithstanding ought to be punished because the bishop is answerable for the fact of the examinor sithence the examination is made by his cōmandement and also for that reseruatum est episcopo ius examinādi illum Right is reserued vnto the b. to examine him examinatus enim examinatur in hiis precipue iniquibus vertitur periculum animae Glos c. ad haec ver examinentur Extrauag de offi Archid. Glos 1. l. non est A man once examined is to be reexamined especially touching those things wherein perril of soule consisteth Et factum quod est mutatur ex superuenienti causa And a deede once done is altered vpon a new cause ff de transact An Archdeacon hauing by lawe the custody of candlestickes copes and vestmentes other Idolatrous garments was remisse in safe keping these things wherevpon the Pope wrote to the Archbishop and willed him straightly to require the sayde ornamentes at his handes Extrauag de statut regul c. cum ad Monesterium § penul and further commaunded him to be punished and to make restitution if thorough his negligence or default any thing were perished in so much as by his office he was bounde to the safe custody of them Neither did he behaue himselfe Vt bonus pater familias in re sua gessisset As a good Father of an housholde would haue done in his own housholde affayres And thus farre touching the bishops vnworthily promoting vnworthy men vnto the ministerie touching vnworthy persons vnworthily promoted the decrees following tell vs what in like case shoulde be done with them Extrauag de aetat qua cap. vlt. QVAMVIS MVLTA FVERVNT c. Although manie thinges were proposed against the Bishop of Calinea yet because he him selfe hath confessed before vs that hee neuer learned Grammar neither euer had reade Donate and by euidence of the fact his ignoraunce of learning and insufficiencie is so apparaunt vnto vs that it were against God and Canonicall constitutions to tollerate so great a defect in a Bishop we haue thought good vtterly to remooue him from the execution of the office of a Bishop and also from the Administration of the Church of Calinea If it might stande with the good pleasure of the Lorde to mooue once Iehosaphat Firste with the booke of God secondly with the lawes of the Realme to make a generall visitation by men of sound and sincere religion and by men of valiaunt and stout courages I dare boldly auouch that the valewe of the first fruites of benefices that might be made voyde by the iust depriuation of vniust possessors euen by the euidence of the fact it selfe woulde amount to a greater increase of hir highnesse treasure then the best subsidie she hath leuied of them since the time of hir gratious gouernement Neither is this Chapiter impertinent to this purpose though herein expresse mention be made onely of a bishop For if you weigh and consider why the bishop was deposed the same reason is sufficient likewise to depriue any inferiour person offending in the like case The cause of the bishops depriuation was his insufficiencie and defect of learning and why then should not insufficiency and defect of learning be as iuste a cause to depriue a minister of an inferiour calling beeing infected with the same disease The charge and function of the bishop was to teach and gouerne others The same ende is allotted to euerye one that taketh vppon him the cure of soules The bishop wanting skill and abilitie to perfourme an office taken vppon him is degraded and cast out and an inferiour minister destitute of the same furniture is maintayned and kept in Againe Epis de statu Monacho cum ad Monast § Abbas ABBAS VERO c. But the Abbot whome all men ought reuerently to obey in all thinges how much more shoulde he be frequent with his brethren in all thinges hauing vigilant care and diligent circumspection that he may be able to giue an acceptable account vnto God of his office committed vnto him But if the sayd Abbot be a preuaricator or a despiser of his order or negligent or remisse let him know for a suretie that he is not onely to be deposed from his office but also some other way to be chastised considering not onely his owne fault but the fault of others is to be required at his hand And againe 18. q. 2. si quis abbas Si quis Abbas cautus in regimine humilis castus miserecors discretus sobriusque non fuerit ac diuina praecepta verbis exemplo non ostenderit ab episcopo in cuius territorio consistie a vicinis c. If any Abbot shall not be circumspect in gouernement humble chast mercifull discreete and sober and shall not shew foorth godly preceptes both in worde and example of life let him be remooued from his honour by the bishop in whose territorie he dwelleth and by the next Abbots and others fearing God notwithstanding all the congregation consenting vnto his sinne woulde haue him to be Abbot And therefore both these constitutions may serue to depriue all such ministers as in life learning maners and conuersation are like vnto such Abbots Yea and touching inferiour ministers the law hath likewise specially prouided as followeth Quod si forte necessitas postulauerit vt sacerdos tanquam inutilis indignus a cura gregis debeat remoueri agendum est ordinatè apud Episcopum c Extrauag de hereti cap cum ex But if happely necessitie require that a priest as vnprofitable and vnworthy ought to be remooued from the charge of his flocke you must ordinarily repayre vnto the bishop Againe Dictum est nobis presbiteros propter suam negligentiam canonice degradatos It is tolde vs that certaine Elders were canonically degraded for their negligence And here it appeareth sayth the glose Quod quis aeque deponitur propter negligentiam sicut propter dolum That one is as iustly deposed for negligence as for collation according to the tenor of the Canon following 1. q. 1. si qui epis Non modo pro haeresi vel pro qualibet maiori culpa sed etiam pro negligentia remouebitur He shall not onely be remooued for heresie or other greater offence but for negligence also Wherevnto also the lawes of the Empyre agree QVI NON SERVIT c. He that doth no seruice to the Church or fayneth him selfe to be a Clearke when in deede he is none he ought not to inioy the priuiledge of Clearkes but an other is to be surrogated in his roome And againe Ne argenterorum vel numulareorum munera c. 47. pag. 2. We commaunde that the charge of Bankers and such as lend exchaunge money for gaine be not left off by those which onely hastely desire
Panor in c. fin §. is autem nu 5. de offic deleg SI PRINCEPS c. If the Prince commit a cause to any and commaunde him personally to execute the same if in this case consist publike commodity this his commissary can not substitute an other no not euen with consent of parties because where the Prince either couertly or expresly doth make choyce of the industrie of any one particular person there the partie so chosen can not surrogate an other For the Prince herein doth personally qualifie the man and giueth vnto him the forme of his commission De offic c. deleg l. 6. c. si cui c. fin extra de offi delegat An example of this may be thus De offic delegat li. 6. c. si cui ex de offic deleg c. vlt. Suppose that the treasurership in Paules were voyd and that hir highnes had commanded the B. of London to prouide a fit man for the same roome whether now the B. may commit this his charge to be perfourmed by an other then by him selfe or no And it is answered negatiuely because in the choyce of a fit person consisteth great danger therfore the B. beeing but an executor of hir Maiest pleasure he may not substitute any other But suppose that hir highnes had cōmanded the same B. of Londō to haue giuē the same prebend to Lucius Titius whether thē might the B. in this case subdelegat Archdeacon Sempronius And the answer is affirmatiue that he might for now her Maiest by hir selfe hath nominated the partie to be placed hath not chosen the B. industry for that purpose and therfore he may assign this prouision vnto an other But it is otherwise where the industry of a Person is chosen concerning one to be elected for then he may not set ouer that his office to any other Now then out of these rules lawes I conclude that sithence it hath pleased the high Court of Parliament particularly and expresly by name to make choyce of the Archd. hath personally qualified him as their meetest man for this charge chosing the industry of his own person in presenting fit men to be made ministers or of his deputies in presenting fit men to be made Deacons and for so much also as in this action consisteth the publike benefit of the whole church and on the which hangeth the greatest perill daunger of the whole church For these causes I conclude that an Archd. onely must ought of necessitie present one to the B. to be made a minister that the B. can not dispence with him in this case and that neither the B. neither the Archd neither the party to be made a minister neither the clearkes and people present by their consents can alter or transpose any thing herin ff de pact l. ius publicum Publica vtilitas est pars agens Publike vtilitie is the party agent in this busines and Parta priuatorum inri publico non derogant The couenants agreements of priuate men doth not derogate from cōmon right And if the contrary haue been practized what may be concluded therof shal follow immediatly And againe by these proofes you may euidently see that the calling the triall the examinatiō the time the person appoynted to present and the age of one to be presented haue not been things meer contingent but rather essential not causas sine quibus non but causes formall to the making of Deacons ministers and such causes as beeing omitted haue been sufficient causes both to depose from their functions those that haue ben contrary wise ordained to punish the ordainers for their negligence in that behalfe And therefore that our tong tied ministers not made according to the order and forme of the statute be in deed and truth no ministers at all the act it selfe whereby they be made wherby they challenge their dignities being in deed no act in law hauing no law to approue the same therefore to be punished by the law of mā as wel for entring into a calling against the lawe of man as also for prophaning the holy and sacred misteries of God For what if respect be had to one or two or foure or moe of the solemnities and circumstaunces before rehearsed and those too perhaps of the least weight moment as vnto the age the time the B. particuler interrogatories the Archd. presentation and yet the rest of the greatest waight and importance as their learning their honesty their aptnes to teach c. be negligētly or wilfully omitted Shall the proceedinges by such as please them selues in their owne inuentions be both iudges parties thus in shew apparance only supposed to be done by them that are wise and vpright iustices whom publike profit ought to mooue to the redresse of disorders be reckoned to be don in deed and verity Yea if all the former solemnities yea euen those also of the least moment such as in truth might haue ben reputed accidentall rather then substantiall had it pleased the law makers to haue appointed them so haue beene are oftentimes omitted in the making of ministers one neuer called neuer tried neuer examined neuer known to the B. before that day to be of any vertuous conuersation not qualified as is requisit not learned in the latine tong not sufficiently instructed in holy scriptures as he that came to the B. of Winchester to serue in his Diocesse borne at Norwich and made a minister at Peterborow knew not how many Sacraments there were and requested a dayes respite to aunswere the bishop what the office of a Deacon was not made openly in the face of the congregation but priuately in the bishops Chamber or Chappell not hauing any Sermon not apt to execute his ministerie duely not presented by the Archdeacon the Bishoppe making ministers at Exceter and his Archdeacon at Oxenforde or the bishop making ministers at Leichfielde and his Archdeacon at Durham not mooued by the holye Ghost not admitted on a Sunday or holy daye not of 24. yeares of age not perswaded of the sufficiencie of the doctrine of the scriptures to saluation not an example in him selfe and his familie to the flocke of Christ not a minister of the doctrine and discipline of the Lorde Christ not a peacemaker but quarrelling at law for tithe Oynions apples and cheryes not a dispensour of the worde of God Fol. 11. p. 2. not a pastour and stewarde to the Lorde to teach to premonishe to feede and prouide for the Lordes flocke if such a one I saye yea if too too many such haue beene admitted into the holy ministery and all these solemnities vnsolemnly abused may it not be rightly concluded that such by our statute lawe be no lawful ministers at all Was the word of any Bishop onely the worde of the high bishop Iesus Christ excepted in any time or in any place a lawe against the Lawe
graunted For in truth either the defect of the qualitie of the person or the want of a iust cause in lawe doth frustrate and make voyde euery dispensation For neither can a man qualified and in all respectes capable of a dispensation enioye the benefite thereof vnlesse he maye also enioye the same vpon a good ground and iust cause warranted by lawe Neither can a iuste cause and good ground approoued by Lawe bee sufficient matter to induce a Iudge to graunt a dispensation to him that is vnable and vnapt to receiue the same A man well Lettered singularly qualified and endued with vertue and godlinesse or of some noble house and parentage is by Lawe a fit and meete man to enioye moe benefices by dispensation then one Neither is it a sufficient qualification for one destitute of learning to become a Chappleine onelye to some Noble man For the statute prouiding that some Noble mens Chappleines shoulde be made capable by dispensation to retayne moe benefices doth not thereby take away the qualities requyred to be in such persons by common right but addeth a new qualitie requisite to be had of euery one and so maketh the law stronger and of more efficacie against pluralities Panor in c. ex parte l. 3. de verb signi fi fol. 189. nu 3. Statuta debent intelligi quod aliquid addant iuri communi Statutes ought so to be vnderstoode that they may adde somewhat to common right Extr de prebend c. ff de multa Circa sublimes literatas personas quae maioribus beneficiis sunt honorandae cum ratio postulauerit per sedem apostolicam poterit dispensari Concerning men of Nobilitie and learning who with greater benefices are to be honoured the Apostolike sea if reason shall requyre may dispence with such And in an other Chapiter the same is confirmed Extr. de elec c inâ—…otuit MVLTA ENIM in hoe casu dispensationem inducere videbantur literarum scientia morum honest as vitae virtus fama personae multipliciter a quibusdam etiam ex fratribus nostris qui eum in scholis cognouerant approbatae Manie thinges in this case seemed to leade to the graunting of a dispensation his learning his honest conuersation his vpright life and the good report of the person diuersly commended euen by some of our brethren which knew him at schoole These giftes and graces these qualities and these conditions are incident and appertayne by common right to these men that by way of dispensation maye possesse manie benefices Whosoeuer then is not commendable for his learning for his honesty for his sincere life or not of some auncient and noble familie the same man by lawe is vtterly barred and secluded from this benefite The second qualitie requyred to the validitie of euery dispensation is the waightinesse of some speciall cause as appeareth in the Chapiter before recited in these wordes Cum ratio postulauerit When reason requyreth Extra de voto c. 1. And againe we aunswere sayth Alexander the thirde in a decretall Epistle written to the Bishop of Exceter that it belongeth to the iudgement of him that is President that he consider diligentlye the cause of commutation and so accordingly to dispence And by the Chapiter Magnae Extra de voto It is playne and euident that there must be some speciall cause knowen for the which euery dispensation is to be graunted For as I sayde before to the ende that euery dispensation be good and auaylable by Lawe there is requyred necessarilie both the abilitie of the person to whome and the iustice of the cause for which the same ought to be gyuen For neither maye an able man without a iust cause neither a iust cause without an able man mooue the Iudge in anywise to dispence And to tell you what these speciall causes are in few wordes they are these vrgent necessitie and euident vtilitie of the Church Extra de ele c cum nobis Propter vrgentem necessitatem euidentem vtilitatem ecclesiae Capuanae quam in hac parte potius approbamus volumus ipsum firmiter perdurare Necessitie vtilitie of the church only iust causes of a dispensatioÌ„ For the vrgent necessitie and euident vtilitie of the Church of Capua which on this behalfe we rather haue respect vnto our pleasure and will is that he continue It is vnlawfull by common right for a Monke or Layeman to be admitted to the gouernment of any church with cure of soule yet notwithstanding if by reason of warre famine persecution or other extraordinary cause the office of pastorall teaching did cease so that the people had none to instruct them in the way of saluation 1. q. 7. requiritis §. nisi now in this case it is lawfull for him that hath authoritie to dispence with a Monke or Layeman endued with learning to the ende he might by instruction bring the people to knowledge It is vnlawfull that children borne of a Nun violently taken away and marryed should be admitted to any Ecclesiastical orders NotwithstaÌ„ding if the great profit or necessitie of the church require they may by dispensation be admitted Suppose there were a custome of long coÌ„tinuaunce and time out of minde in the Church of Paules contrary to the first foundation of the Church that not onely the Prebendaries daylye present at diuine seruice but also others absenting them selues should receiue euery one a like some dayly pention either in money or some kinde of victuall this custome by law is voyd because it is vnreasonable And yet notwithstanding anye iust and necessary infirmitie of the body of any prebendary or euident vtilitie of the same Church may be a lawfull and sufficient inducement for the Ordinary to dispence with the not restoring of that which was vnlawfully taken vnder pretence of the former custom If by the first foundation of the church of Paules twelue prebendaries were appointed to be maintayned by the reuenues of the Church and the sayd reuenues were not sufficient for the maintenance of these twelue the Bishop then in this case if the necessitie and vtilitie of the Church so requyre maye annect certayne other Chappels for the maintenaunce of the sayde prebendaries These examples do sufficiently prooue that euery dispensation priuiledge or immunitie ought to be graunted vpon some iust and reasonable cause and that the sayde iuste and reasonable cause ought euermore to be the vrgent necessitie and euident profit and commoditie of the Church And that the sayd vrgent necessitie and euident commoditie of the Church ought euermore to be vnderstoode the well gouerning of the soules of the people If therfore neither vrgent necessitie or euident vtilitie of the Church requyre that any one should haue many benefices yea rather if it be most profitable and necessarie for the Church that one man should haue but a liuing appoynted for one man and that by ioyning benefice to benefice and Church to Church the Church indeed is
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
Court of Parliament would haue dispenced had those cases bene alleaged before the high Courte of Parliamente which are alleaged before the Archbysh ff De. offic prefect preter l. 1. in si Iudex non aliter iudicare debet pro sapientia luce dignitatis suae quam princeps esset iudicaturus A Iudge for the wisdome and excellencye of his worthy calling oughte no otherwise to iudge then the Prince himselfe woulde haue iudged Suppose then that suche a Cardinall as of whom mention hath beene made or such an Abbot whose Abbacy is a Nemo scit whose two Ecclesiasticall promotions besides are at the least worth siue hūdred marks by the yeare suppose I say that such a Cardinall shoulde come into the Parliament house and after lowe obeysaunce made preferre this or the like Byll to the speaker beseeching the whole house vppon the reading thereof and the equity of his cause to graunt his suite I. A. B. clearke say alleadge and shewe before your excellent wisedomes that the Church of S. S. by the naturall death of D. H. Late incumbent is become vacant and that I the said A. B. am qualified according to the Statutes of the Realme Non potest dispensatio super pluralitate beneficiorum cōcessu impetranti prodesse qui aliquod quantumcuque mo dicum beneficium conticuit in eadem and the Patrone of the same benefice hath presented me thereunto and that I am possessed already of such and such a spirituall promotion and that I am bound by the Statutes of my house to bee resyant in the same three moneths in the yeare and that I am bound by the Statutes of the Church of one of my promotions to bee present in the same Church two moneths in the yeare and that I am bounde by the Statutes of the Church of my other promotion to be present ther three moneths in the yere that I am bound by my alleagiance to her highnesse to be present else where some whole quarter of the yeare And that the soules of the people of the foresayde parish are in daunger of the Wolfe not hauing a Pastor to feed thē and that the euident vtility vrgent necessity of the same Churche requireth a gouernour may it therefore now please your wisedomes to award mee a Dispensation to enioy the fruites of the same Church to tollerate myne absence and to be Nonresident c. Suppose I say that this or the like supplication were made by a plurified Prieste in the Parliamente house wold the house trow you be moued presently to yeeld to so vniust a petition I trow nay For though the party should expresse in his petition al things to be expressed conceal nothing to be concealed as by the first rule before repered is required yet the house woulde no doubt be mindeful of the secōd rule dispute the equity of his cause so award iudgemēt accordingly they would not vpon so bare naked assertion decline frō iustice equity And no doubt the speaker himself would blush to peruse such a bill much lesse would he present such a Byl to the house to be discussed though for his fee being a priuate bil he might be very liberally rewarded An Archb. then ought to be rightwel aduised take heed how for a trifle he either admit any such byll or allegation or hauing once admitted it how he passe the same vnder his publike and authentike seale In as much as he ought not to admit any other allegation or passe any other dispensation then such as the high Court of Parliament in their wisedomes would admit and passe And therefore I conclude thus 1 Whatsoeuer allegation or dispensation the Lawemaker viz. the high court of Parliament would not admit or passe vnto a plurified man the same allegation or dispensation the Archbishop ought not to admit or passe 2 But the lawmaker viz. the high Court of Parliament would not admit or passe any allegation or dispensation to such plurified priestes making such a petition as hath beene mentioned 3 Therefore the Archbishop ought not to admit or passe any such THe maior proposition is a rule of law the minor proposition is euident vnto euery one that dutifully considereth with what wisedome iustice and equity the high court of Parliament determineth matters amongst them discussed They are not contented to haue a bill barely reade vnto them but they thoroughly examine the reasons and proofes of him that preferreth the same For as I sayd before truth equity and diuers circumstances must not onely be alleaged but the law requireth the same to be prooued also He that hath right and interest to an inheritaunce oftentimes loseth it for want of profe Bart. alij doctores in l. 1. Cod. de prob He that alleadgeth him selfe to be borne of some noble parentage and he that alleageth him self to remaine at study must proue the same If a pupill damnified by any contract made by him vnder age shall requyre ayde of the Pretor to be restored to his former right hee must prooue that he was vnder age at the time of the contract and also that he hath sustained detriment by the same contract Authent Colla § teneantur Glos doc in prohe l. 6. Glos extra de restitu spoliat c. olim vers restitutione Extra offic de leg c. consultationem Otherwise the pretor ought not to giue restitution where one by force is spoyled of his passion and requireth to bee restored thereunto he must not onely alleage but also prooue force and possession The Church that by negligence of any Proctor or Sollycitor shall alleage her selfe by his negligence to bee hurt to suffer losse in hir substaunce and for that cause seeketh helpe at the handes of her superiour to be restored to her former estate must prooue as well the negligence committed as the dammage sustained in that behalfe The like is verified of one that is dispossessed of his goodes in the time of his absence beyond the Seas And so it is required in graunting any priuelege immunitie or dispensation for many benefices The party desirous to haue a mitigation of the rigour of common Lawe ought to prooue that as well in consideration of his person as for the reasonablenesse of his cause the iudge in equity and conscience ought to graunt an immunity And this proofe that it be substanciall and good in Lawe must be made either by the confession of the party eyther by witnesses eyther by some Authentike and publique instrumente eyther by the euidence notoriousnes of the fact it selfe Extra de restitu spol c. cum ad sedem Touching which proofes howe substantially they haue beene made I referre the Reader to the Records of the Prerogatiue Court where no doubt for the iudges owne credite they are safely kept and as publique Recordes to be seene of any man desirous to knowe Antiquities For my part though I confesse that the dignity and
wherof you may by the laws recited perceiue the same to haue beene as lawfull by priuiledge as by custome Institu de iure natu gent. ciui §. sine scripto The reasons of which custome are these viz. Diuturni mores consensu vtentium comprobati legem imitantur Dayly or continuall manners approoued by consent of such as practize them do imitate a law ff de leg l. de quibus § CVM IPSAE LEGES c. In as much as the lawes themselues by no other meanes do binde vs then for that they be receaued by the iudgement of the people euen as rightly shall those thinges also binde all which the people without any writing hath allowed For what difference is there whether the people declare their will by voyces or by deedes and the thinges them selues Wherefore this thing also hath beene very rightly receaued that the lawes should not onely â—e abrogated by the voyce of a law maker but also thorow the secreat consent of all by growing out of vse Instit de iure nat gent. ci § sine The Lacedemonians whatsoeuer they by experience found behoueful for their gouernment put the same to memory and kept the same as a law ff in c. quanto c. nouit extra de hiis quae fi sin consensu ca. c. 1. de consuetud lib. 6. Panor in c. fi extr de consuet QVAMVIS saith PANORMITAN ius induxit c. Though the lawe haue ordayned that a Bishop should determine matters with the Chapter because the Bishop and the Canons make one body and therefore that iudgement is to be reckoned more strong that is ratified by the consent of many Yet notwithstanding a contrary custome may be established namely that by meanes thereof busines might be speedely dispatched Vpon which reason this law following touching this controuersie was made Extra de hiis quae fin si c. consen cap. c. ca. noscitur NISI EX ANTIQVA c. Vnlesse by some auncient and approoued custome or liberty graunted some of them prooue that the consent of the Colledge committed to their gouernment ought not to be requyred in conferring Churches or benefices And againe Lib 6. de consuet c. non est Dum talis sit prescripta Canonice consuetudo c. So that such a custome be canonically prescribed which the Bishop doth alleadge that in the inquisition and correction of his subiectes excesses he is not bound to require the councell of his Chapter These reasons and these lawes being the reasons and the lawes alleadged for custome in this case to gouerne and rule are particularly to be examined and applied to this action No cause for this custome to be continued Touching the reason of the Canon law namely that by meanes of this custome the affaires of the church shold easilier be dispatched If we in these dayes had the like multitude of Church matters to be dispatched as the papistes had that the Cleargy now were loden with the like burthens as at the time of these ordinaunces they were there might be then some shew of reason that the same custome for the same cause should still remaine Many Monasteries Priores Frieries Nunneries and other irreligious houses vnder the iurisdiction of popish bishops had many businesses many blind matters to be decided It was combersome for euery baudy matter of a frier and a Nun to call a Chapter it was troublesome for placing or displacing euery Abbot frier Nun Dean prebend parson vicar or any other of the Cleargie to call a Chapter In our churches God be praised we haue no such tumultuous Cleargy continually to trouble the chapter we haue no such number of bad matters as they had And therefore the cause in this respect ceassing the effect also might right well cease Moreouer the common and vsuall dissention amongest them were speciall meanes that elections institutions confirmations collations and such like were hindered Many frustratory appeales and other delaies made and long suites commensed But our Cleargie are better instructed in the wayes of the Lord they teach the people peace and exhort them to brotherly amity and loue and therfore it is to be coniectured that causes amoÌ„gst peaceable men wold speedely and peaceably be ended and therefore in this respect also the cause ceasing the effect shoulde cease Lastly the case standeth not now with vs at this time as it did then betweene the bishop and the Chapter The law written then was that the bishop and Chapter shoulde excommunicate c. Quia firmius est iudicium quòd plurimorum sententia confirmat Because a iudgement confirmed with the opinioÌ„ of many is more strong The reason of the custome for the Bi. without the Chapter was this Vt facilius expediantur negotia That businesse might more easely be finished In which cases you se the matter to stande whollye betweene the bishop and the Chapter As whether the bishop with the Chapter or without the Chapter for the foresayde seuerall reasons might haue the rule and gouernement in Church matters To the which demand I answere thus If the controuersie were betweene the Bishop of London and the Deane and Chapter of Paules whether a sentence of excommunication denounced by the bishop alone against any persons contumacie within the Diocesse of London without the aduise of the Dean and Chapter were good forcible in law and that the bishop were able by proof in law to confirme that time out of mind and memorie of man he and his predecessors bishops of London without contradiction of the Dean and Chapter vsed whensoeuer oportunity serued to excoÌ„municate alone without the presence of the Dean and Chapter I saye that in this case by Canon law a sentence giuen by the bishop alone were good and not reuersible by meanes of the Dean Chapters absence For that herein now they haue willingly lost their owne right and depriued themselues of their interest For the bishop alwayes giuing sentence in the Chapter house where the Dean Chapter might continually be present and haue their aduise they voluntarily absenting theÌ„selues hath gotten vnto himselfe this iurisdiction whervnto they haue also yeelded by giuing their secret consent that the B. alone should execute those things wherin they had an interest and which otherwise he might not haue don In like maner if the Archdeacon should make the lyke assertion against the Bish to prooue and insynuate wils and Testaments and were able to prooue the same his assertion I would consult that he likewise by the Canon law had right herein against the B. For in these cases the Bishop and the Archdeacon are in place of priuate men the Dean and Chapter hath the roome of a priuat man because were the matter in controuersie to bee decyded betweene them they were to commence their Actions before superiour Magistrates But the matter of Excommunication mentioned by the Lawe written and of right Excommunication indeede is not