whatsoever a man hath will he giue for himselfe and for his life but stretch out thy hand saith Sathan and touch his bones and his fleesh and see if he will not then blaspheme thee to thy face Secondly in respect of the feeblenes of the judgment and sentence that should be grounded upon the othe of such a party being even then at his convention aforehand defamed and of suspected faith or credit Bracton Agayne it is against the common law which constātly holdeth that iudicium est in qualibet actione trinus actus trium personarum Iudicis actoris et rei Secundum quod large accipi possunt huiusmodi personae quod duce sunt ad minus inter quas vertatur contentio et tertia persona ad minus qui iudicet alioquin non erit iudicium cum istae personae sunt partes principales in iudicio sine quibus iudicium consistere non potest Britton And the renowned Prince King Edward the first saith by the penn of the learned Iudg Britton that no judgmēt may be of fewer then three persons that is to say a Iudge a plantiefe and a defendent and in case saith the King that we be a party we will that our Court shall be Iudge Then if the party convented be constrained to accuse himselfe he susteineth two of the said parties in judgmēt viz. actoris et rei which the law hateth or else the Ordinary or Iudge susteineth two of the sayde partyes in judgment that is both Iudge and Promoter which the law doth also abhorre Therfore true judgment cannot so consist If it be objected that common bruite and fame may lawfully stand in steead of an accuser and put a person cōvented to purge himselfe therof and to deliver his knowledge also of others by oeth I answer that fame is tam ficti pravique tenax quam nuncia veri and ought to haue no credit untill it be presented in course of law or proved For the law is that the Iudge himselfe if he would of his owne knowledge affirme the party to be in famous is not to be received or beleeved For that the law will quod secundum acta et probata iusticia ministretur That which is often objected that private relation made unto the Iudge is sufficient to put the party convēted to answer upon his oeth is answered before for that the parties in judgment must not be fayned persons but such as may stand upright in Court and answer the party convented his damages and costs if his prosecution be wrongfull otherwise a man may be greatly wronged his good name and fame unjustly brought into question put to great chardges without any recompence and malicious backbiting maintained and all by coloure of this proceeding which the common law hateth That which is objected that if this course should not be taken by proceeding by oth Ex officio mero vice would abound for that accusation is daungerous and odious is easily answered That the commō law seeth this also and therefore hath ordeyned common enformers to proceed against such as private persons will not deale with by witnesses and such legall courses and allow them part of the penaltie for their labor and yet alloweth the party wrōgfully accused his damages and costs if the accusation be wrongfull and injurious In so much as if the enformer will not or be not able to render it he shall receaue corporall punishment for his offence and for the redemption of the defendant credit and reputation The Statute law also is 9 H 3 c 29 that no fre man shal be apprehended or imprisoned or to be disseased of his free hold or liberties or free customes or to be outlawed or exiled or any wise distroyed nor we shall passe upon him nor deale with him but by lawfull judgment of his peeres or by the law of the land that is by presentment Indictmēt witnes verdict voluntary confession or process of utlary In so much as when the Popish Clergie would neverlesse be tampering with this oath ex officio as their practise was to be medling for the advancment of Antichrist in all States there was a writt of prohibition awarded as warrented formerly by the Common law to be directed to the Sheriff commaunding him that he shall not permit etc and thereupon an attachment against the Bishop if he disobey After this in the height of the Popes pride in the dayes of King Henrie the 4. who was willing to please him being a King in facto 2 H 4 c 15 but not de iure this oath crept in as a Canonicall sanction by the statute of 2. H. 4. But the iniquitie injustice and repugnancy thereof to the Common lawes statutes of the Realme appearing to the State 25 h. 8 c. 14 23 H 8 c 9 it was by K. H. 8. by the whole Parliament abrogated as injurious to the Crowne and utterly against the common justice of the kingdome and so it resteth cōdempned to this day So that no Ordinary can practise it by any power under the Crowne Then it followeth that the use therof must needs be by colour of the Canon law which being in that poynt derogatory to the Crowne 25 h. 8. c. 19 repugnant to the law of this kingdome and abolished by Act of Parliament it consequently cannot be used but by a forreine power and thē it is premunire wager of law And to that which is alleaged by the Civilians that the Common law alloweth it in that which is termed the wager of law or doeing of his law it appeareth that they are therin utterly mistaken which may easily arise out of their ignorance therof First the wager of law is voluntary for he that offereth it may be tried per patriam at his election This is contrary viz. extorted and constreined 2 The wager of law commeth from the certeine knowledge of the deponent who best knoweth whither he ow the debt or not This is contrary most uncertaine what shal be demaunded or interrogated 3 Againe the wager of law maketh an end of the strife but this is contrary viz the beginning of strife for it is not finall but frō thence the Iudge gathereth the ground wherupon to proceed against the party convented 4 The wager of law is in case meere and onely civill for an honest man may be in debt but this othe is ministred in case meere criminall in which case the othe is so much the more odious to the Common law by how much it is an apparant occasion of perjury which carnall men will rather fall into then to subject themselues to corporall punishment or to lay open their owne turpitude or shāe Neither can this proceeding by othe ex officio be foūd in the Honorable Court of Starr chamber For although the courts of Starr chamber and Chauncery proceed not by Iury yet they obserue the due forme of justice Starr chamber and enforce no man to answer but where
them and were praying for them Is there not by all authors a difference made betwixt Simulare and diâ—simulare that the one may be used in godly policy and christian wisdome but that the other is alwayes of the flesh fleshly In allegation of examples every particular is not nicely and strictly to be respected but that poynt onely is to be considered for which they are produced and wherto they be applyed Otherwise from the application of Davids eating of the shewe bread vnto the Disciples plucking the eares of corne to eat Math. 12.3 A maÌ„ may gather that because David used lying as a meanes to obtayne the sheew bread at the Preists handes therefore also it is lawfull for us by lying to obteyne some thing in our necessity By the same reason also because the midwiues of Egypt are commended to feare the Lord etc. and to haue spared the male children of the Israelits the same fault of lying may be justified because they being examined by Pharoh of that their doeing excused themselues by a lye The like may be saide of Rahab commended for her faith in savyng the Israelits spyes Heb. 11.31 Though she defended her selfe from the inquisitors of the King of Iericho by a lye Ios 2.4 If the example of Constantius and Iehu may for some things be excepted against yet it might haue been considred that the author to expresse his generall meanyng the better did mention also the example of Ioseph and of our Saviour Christ Iesus against whom there can be no exception And now to clere his meanyng the better let the example of Salomon in that wherein he is so highly commended be also remembred who to try whither of the two weomen were the mother of the living child commaunded the lyving child to be divided in twane and the one halfe to be given to the one woman the other halfe to the other woman 1 Kings 3.25 Here is a manifest pretense of that which was not inteÌ„ded Let the answerer therfore learne that there is great difference betwixt pretending onely for triall of the affections of other and deepe dissembling or Iesuitecall equivocating for the hiding or maynteyning of some impiety and wickednes I doubt not therefore but I may justifie the author from all such thinges as by allegation of the examples of Constantius Iehu are most uncharitably imputed unto him yea that also I may truely affirme his meanyng in them to haue been onely to shew that he conceaved of his Majesties meanyng that which he was perswaded to be best Therfore farr was he from all undutifull conceits against his Majestie It is also to be observed that he doth not absolutly say this or that to be his Majesties meanyng but onely that it might be like to the meanyng of Constantius Iehu Ioseph and our Saviour for ought that any man else did knowe If it be otherwise Gods will be done and I hope that whatsoever some doe imagine of such as are silenced and deprived that upon sight of his Majesties full resolution for the countenancyng and authorizyng of the Bishops to hold on their course against us then many will yeeld etc. yet it shall well appere that we haue not depended upon any other then upon God alone and that that which we haue done is not done vpon any vayne hope or expectation but in conscience of that word which is our onely rule and canon whereby to liue and whereby to dy Touching the answerers wish that some of our faction as he unbrotherly speaketh did so litle practise equiuocating as his Maiesty abhorres it either let him name such if he know any and let them beare their iniquity or else let him spare such wishes as whereby he implieth a secret accusation G. Powel Whereas his Highnes heart is evidently discerned to be fully seasoned with true piety etc. Answer Though flatery be odious and the wages therof fearfull yet if his Majestie or any other doe well consider the best fruites of a true heart our loue and loyalty towards his Majestie should be sound as good as the best Prelate in the land G. Powel It sufficeth me to haue detected the licence of their raving peÌ„nes the restraint of which fury specially belongeth to your Honorable judicious Court Answer O M. Powell you doe to much forget modesty Whither pen raveth most yours or the authors or whither he or you I will not say yee though you write by authoritie of some other be in most fury let that Honorable and judicious Court judge Yea if it might please his Majestie to vouchsafe the reading of the wrightings and in his Princely wisedome to consider the dealing on both sides we would not feare his Royall judgment concerning our cause or our selues We feare the judgment of one Lordly Bishop ten times more then the judgment of ten such religious Princes For we assure our selues of more equitie from his Majestie then we doe from all Lordly Bishops in the land G. Powel Which your Honors will the rather performe considering what unchristian conceits they haue of this Honorable assembly and of all other his Majesties loving subjectes who loyally obey him and serue God according to the religion established resembling them to Constantius his Nobles Who became Idolaters and Atheistes upon his commaundement As before we haue seene how untruely the answerer maketh this note vpon the authors conclusion Answer with the letter e an vniust calumni pag 77. in as much as he hath accused the author before of bold presumptuous and unduetifull censuring of his Maiestie etc. thereby to provoke his Majesties heavie indignation against us all Contrariety so now contrary to the same note he accuseth us also before the Nobles yea before all the states of the whole kingdome Doeht this man spare us as he professeth to doe in his second note upon the 4 argument Touching the matter here objected it is partly answered before The authors intent and purpose was only to perswade all his Majesties christian subjectes to thinke Honorably of his Highnes and not to judge him by outward supposed apparences Therwas nothing to insinuate any such unchristian censure of this Honorable assembly and of other loving subjectes as this wranglinge answerer would wrest from the authors words The matters in question concerne onely or specially the ministers of the word The things also commaunded by his Majestie are nothing like to the thinges commaunded by Constantius How injurous therefore it is to conclude the same sinne to be of them that obey his Majestie in the thinges now commaunded that was in those that obeyed Constantius I leaue to the judgment of all reasonable men The fallacies of this collection in respect of the difference both of thinges and also of persons commaunded I leaue to the sentence of them that are as skilfull in Aristotle his Elenchs as M. Powell seemeth to be The childish accusation of the author from the 8 Argument heere inserted
England the same are to be iudged and determyned by Ecclesiasticall Iudges according to the Kings Ecclesiasticall lawes etc. fol. 39 And againe obserue good reader sayth S. Edward Cooke seeyng that the determination of heresies etc. belongeth not to the Common law how necessary it was for administration of Iustice that his Maiesties progenitors Kings of this Realme did by publike authority authorize Ecclesiasticall Courts under thē to determyne those great and important causes etc. by the Kings Ecclesiasticall lawes The jurisdiction therfore Courts and lawes Ecclesiasticall in the opinion of the Kings progenitors were thought held to be their own Kingly lawes Courts and jurisdiction The same is further proved by the sayd S. Edward Cooke fol. 9 by the president of Renulphus in discharging and exempting the Monastery and Abbot of Abinden from the jurisdiction of the Bishops and granting also to the saide Abbot Ecclesiasticall jurisdiction etc by the president of William the first fol 10. 11 who made inpropriatiō of Churches with cure to Ecclesiasticall persons etc. and by divers presidents of other Kings since the conquest That which in this parte of the answer is afterward added of the necessary restitution of the right of Ecclesiasticall jurisdiction to the Crowne is also confuted by the same S. Edward Cooke who plainely saith that though there had been no such law of restitution made yet it was resolved by all the Iudges that the Kings and Queenes of Englād for the tyme being by the auncient prerogatiue law of England may make such a Commision etc. And therfore by the auncient lawes of this Realme this kingdome of England is and absolute Empire and Monarchy consisting of one head which is the King and of a body politike c. Also that the Kingly head of this body politike is furnished with plenary power c. to render iustice and right to every part and member of this body Thus farre S. Edward Cooke From all which it followeth that the restitution of the auncient right howsoever lawfully made as being made by the whole body of the kingdome was notwithstāding not necessarily made as though without it the King or Queene for the tyme being could not haue used their auncient right That which followeth in the 2. 3. and 4. branches of this 4 answer to the consequence of this 8 Argument doth not belong to the matter because it doth nothing justifie the proceedings of the Bishops or other Ecclesiasticall Iudges in depriving of the Ministers pleaded for in such manner and for such causes as for which they haue depriveded them The question is not whether jurisdiction Ecclesiasticall by the lawes of the land doth be long under the King unto the ordinaryes nor whether the Ordinaryes in the exercise of the Kings jurisdiction Ecclesiiasticall and Consistoriall trialls ought to proceed by vertue of Peeres etc but whether some Ordinaryes exercising the Kings Ecclesiasticall jurisdiction haue proceeded in their Ecclesiasticall Consistories against some Ministers without authority of the Kings Ecclesiasticall law therfore in that respect contrary to Magna Charta which requyreth nothing to be doone without the Kings law Further De jure Regis Ecclesi fol. 9 although we grant as S. Edw. Cooke instructeth us all lawes Ecclesiasticall derived from other which by and with a generall consent are approved and allowed here to be aptly and rightly called the Kings Ecclesiasticall lawes of England yet I deny that all lawes Ecclesiasticall derived by the Kings progenitors either before or since the Conquest from others are now in this age our Soveraigne Lord King Iames his Ecclesiasticall lawes and therefore howsoever many judiciall Acts of deprivation of Bishops Preists from their benefices c. according to the Ecclesiasticall law which is called ius Pontificium which was derived by the Kings Progenitors from the Bishops of Rome either before or since the Conquest unto Magna Charta and since that to the 25 of King Henry the eyght were never all held to be contrary but were ever all held to be agreable to the lawes of this kingdome yet notwithstanding I affirme that all Iudiciall Acts and sentences 25. Hen. 8 cap. 17 how many soever of deprivation of Ministers from their benefices had made and given by the Ecclesiasticall Iudges since the 25. of King Henry the 8. onely according or onely by force and vertue of the sayd ius Pontificium or Bishop of Rome his law the sentences given in the time of Queene Mary excepted are and ought to be holden not to be had made given by the lawes of this kingdome or by the Kings Ecclesiasticall law And why Even because the whole ius Pontificium or Bishop of Romes law was altogether excepting the tyme of Queene Mary abrogated adnulled and made voyd by an Act of Parlament and consequently is but a meere Alien Forraine and straunge law and no municipall law of England and therefore not the Kings Ecclesiasticall law Wherefore our Soveraigne Lord King Iames by this graunt of Magna Charta made by his progenitors beyng obliged to suffer no Free man of the Realme to be taken or imprisoned or disseissed of his Frrehold or liberties c. Nor to passe upon him nor condemne him but by lawfull judgment of his Peeres or by the law of the land We agayne assume from this statute of the great Charter that sundry sentences of deprivation of Ministers from their benefices for causes before specified are unlawfull because such Ministers haue been condemned and judgment hath been passed upon them without lawfull judgment of their Peeres or law Ecclesiasticall of the land For heere we must giue the answerer to witt by these words or law of the land that all the Kings lawes of what nature or quality soever whether Ecclesiasticall or temporall and not only the lawes temporall as he insinuateth are included As therefore no temporall Free man of the Realme may be condemned passed upon or disseissed of his liberty and freehold c. in a temporall cause and in a temporall Court without lawfull judgment of his Peeres or temporall law of the land Even so likewise no Ecclesiasticall person beyng a freeman of the Realme may be condemned passed upon or disseissed of his liberty or frehold but by lawfull Ecclesiasticall judgement according to the law Ecclesiasticall of the land And heereupon we graunt if the King haue any law Ecclesiasticall of the lād for the deprivation of a Minister from his liberty and frehold for not subscription perjurie contempt of Canonical so called obedience omission of Rites and Ceremonyes not precise observation of the booke of Common prayer c. Then we graunt that the Ordinaryes being the Kings Iudges Ecclesiasticall may rightly depriue a Minister from his benefice for these offences And yet still we deny and shall be able to mainteyne that sundry sentences of deprivation made and given by sundry Ordinaries against svndry Ministers be either unjust or unlawfull or no sentences at
all for the reasons and causes before specified It is therefore erroniously alleadged that that which was done by jurisdiction Ecclesiasticall when Magna Charta was granted was not at that tyme taken to be done by the King or by his authority and that the lawes which Ecclesiasticall Iudges practised were not then held to be the lawes of the land or the Kings lawes For the Kings progenitors did both thinke and held that jurisdiction Ecclesiasticall did in right belong unto their Crowe and therefore in fact by right of their crownes did they both exercise and commaund to be exercised in their Kingly names their Kingly right authority and jurisdiction Ecclesiasticall within their Realmes For how could those Kings haue commaunded and how could their subjectes haue obeyed if the Kings themselues had thought and held that the Ecelesiasticall courts lawes or jurisdiction were not in right no more then in fact at that tyme belonging unto the Crowne as the answerer vaynly and childishly fancyeth Which fancy also seemeth sufficiētly confuted by the very title of S. Edward Cooks booke de iure regis Ecclesiastico For how could the Kings before and after the Conquest unto Magna Charta have been justly intituled to Kingly right of Ecclesiasticall jurisdiction if the Kings had no Kingly Ecclesiasticall right or jurisdiction at all G. Powel Breifely the lawfullnes of they deprivation of the refractary Ministers is a plaine case adjudged in open Court as appeareth in S. Edward Cookes Report part 5 in Cawdries case according to a Statute of I. Elizab. cap 2. c. It is a most playne and cleere case that neither the case of Cawdrie Reply is the case of sundry the late deprived Ministers nor that the case of sundry the late deprived Ministers is the case of Cawdrie Cawdrie was deprived not by his Ordinarie but by the Queenes Ecclesiasticall high Commissioners not for not subscribing to the 3 Articles not for the not use of rits and Ceremonyes not for the not exact S. Edward Cook de jure regis eccl Cawdries case fol. 3 and precise observation of the booke of Common prayer But as well for that he had preached against and depraved the said book as also for that he refused to celebrate divine service according to the sayd booke Agayne in his cause it being found before the High Commissioners that he had uttered verba convitiosa and contumeliosa convitious and contumelious words looke sent against Caw against the boke of Common prayer the case was not whither his fact were punishable by the Statute for of that no man then doubted but whether his depravation and preaching against the booke of Common prayer beyng the first offence committed by him against the Statute he was punishable by tenor of the statute for the same his first offence by depravatiō yea or no Lastly Cawdries offence was punishable as well before the Queenes Iustices by imprisonment and losse of one whole yeares profites of his spirituall promotions as by deprivation before his Ordinary None of all which things were within the cōpass of sundry the late deprived Ministers For non of thē ever preached against the booke nor depraved the same They never refused to obserue the same booke according to the proeme of the booke tenor of the statute They were so farr from claymyng any immunitie from being depraved for their first offence as that they stood and yet doe stand upon their innocencyes not to haue committed any offence at all against the statute punishable with deprivation by the statute they alleadge that they were not punishable before the Kings Iustices by the statute for these facts which they were charged by their Ordinaries to haue committed against the statute and for which they were deprived Lastly some of them were deprived not for any fact done committed or perpetrated but for not promissing heereafter to obserue the whole booke And what an unconsiderate part therefore is it to avowe the lawfulnes of the deprivation of all the late silenced Ministers to be a playne case adjudged in open Court when neither their case nor any like case to som of theirs was ever yet brought or argued before the Kings Iustices in any of the Kings open courts at all Touching the statut alleadged 1. Elizabeth it helpeth nowhitt at all the late deprivations of sundry Ministers First because such Ministers as haue been deprived onely for not conformyng themselues to the use of the booke provided by the parishioners cannot truly be charged to haue refused the booke commaunded by the statute Because the same booke was never provided for them Secondly the statute punisheth not every refuser but wilfull and obstinate refusers They then that upon conscience onely of Gods word doe refuse to obserue al things conteyned in the booke cannot be iustly called obstinate refusers till their groundes out of the word be by the word removed Thirdly the statute requyreth some Act done committed or perpretrated against the Statut but some Ministers haue been deprived only for not promising c as before was sayd Fourthly the statute appoynteth the Ordinaries to proceed by inquisition accusation or information But many of us haue been deprived without any of these meanes and onely upon Proces Ex officio mero Heerby therfore appeareth how unjustly and directly contrary to the words of the statute you insert this Parenthesis which they may doe Ex officio as if they might by vertue of this Statute proceed Ex officio wheras the Statute expresly requyres inquisition accusation or information Is this good interpretation If you doe so interprete the scripture directly contrary to the wordes of scripture in the same place you make but mad interpretations Touching that which is objected against all hitherto spoken in the poynt of the law of the opinion of the Iudges to be against the same may it please the reader to remember the saying of an Honorable and most renowned Counseller in that behalfe viz. that in such cases and all other men are not so much to respect what judges speake standing bare headed 2 chro 19 6 as what they say sittyng upon the judgment seate representing the Kings person yea not executing the iudgment of man but of the Lord when all men stand bare headed before them Concernyng the oth Ex officio of the othe ex officio we affirme that the law of the land is against the exercise of the same oath by Ordinaries and other judges Ecclesiasticall The Common law of this kingdome which is grounded upon the law of God and of reason doth hate and abhorre it First in respect of the fraylty of man who for the safitie of his life libertie credit and good name will not spare to prophane even that which is most holy and by committing sinfull perjury hazard his soule which the subtle serpēt wel knew in generall though he were deceaved in the perticuler in that he sayd unto God concerning Iobskinne for skinne and
he hath a knowne accuser and perfect understanding of the cause or crime objected and therewithall is permitted to haue a copye of the bill of complaint or information and allowed more over both time convenient and councell learned well to consider advise of his oth answer and if his adversaryes complaint be either in sufficient in forme or such as the Court hath no jurisdiction to determine the defendant upon demurrer without othe is dismissed and that with costs And admtit the accusation be such as is every way aunswerable yet if the interrogatoryes ministred be impertinent to the matter of complaint the defendant without offence to the Court may refuse to make answer to the same Therefore no similitude or likenes between this oth used in these Honorable courts of Iustice that constreyned oath ex mero officio Iudicis 1 Since the former sort be orderly taken in courts of justice the other without all course of judgement 2 The one where the plantiff and matter of complaint are manifest the other where neither accuser nor matter of accusation doeth appeare unlesse the bare suspicion of the Iudge fame unproved or private insinuation may be allowed for competent persons in judgement against whom the party defendāt is deprived of all legall exceptiōs is often after great trouble dismissed and though innocent yet dampnified and slaundered and without recompence there being no complanant found but the Iudge himselfe 3 The one made upon certaine knowledge and good advisment the other soddenly without all discretion uppon uncertaine demaunds 4 The one wisely restreined to certaine limits boūds the other foolishly wandring at the doubtfull will of a sly and subtill opposer 5 Upon the one the deponent aunswereth to the accusation of his adversarye by the other he is compelled to be his owne accuser and condemner 6 The one requyreth an answer to matter in fact done either to the injury of some private person or hurt of the publicke state the other constreineth revealing of words deeds and thoughts though never offensiue to any That which is objected that the saide proceeding is warranted by the Canon law or Civill law is answered many wayes but breifely by the positiue law it selfe that banisheth all Canon Civill or other law or preheminence or power whatsoever which is contrary or repugnant to the common law of the land But this proceeding by the partyes owne othe ex officio mero is contrary and repugnant to the common law of the land Ergo Thus we see that this proceeding by oth ex officio was a meere straunger in England Conclusion and how it arrived heerein Anno 2. H 4. but yet as a masker disguised marching in the rowte of Cannonicall sanctions obscured from the veiw of the State under that name but after being discovered as an adder in the grass was damned and expelled by the Statute of 25. H. 8. as a traytor to the King and his lawes and hath no lawfull or warrantable interteynment by the statute of primo Elizab For that there by no jurisdiction excercised by the Bishop of Rome in this kingdome is annexed to the crowne but that which was then lawfully vsed and excercised within this kingdome Then for any Ordinary or Iudge Ecclesiasticall to enterteine it and use it in their courts proceedings is a high misprision against the King his Crowne and dignity and punishable by the Statute of the 16. yeere of K. R. 2. Now to passe from the oth ex officio to the Canons of the Canōs and yet not to deale with those that are of indifferent sorte but with those onely that are either contrary to Gods word or repugnant to the lawes of the land neither also to say all of these in this place that might be sayd but only for brevities sake to giue a tast and to poynt at some may it please the Christian reader yea the answerer himselfe yea all our adversaries in this cause that are not too much blinded with mallice to consider that all such Canons generally as pronounce a man ipso facto excommunicate for saying thus or thus against the Canons themselues against the Ceremonies against the booke of Common prayer and the strict observation thereof etc cannot be justified in this behalfe by the word of God For as to prevent an objection that might be made from the commaundement for reading of them publikly in Churches albeit the sacreed scriptures be dayly publikely read and preached yet many things are both wittingly and unwillingly spoken and actually committed against the sayd sacreed scriptures for which notwithstanding such persons are not presently to be held ipso facto excommunicate so certeinly except the authoritie of the Church be greater then the authority of God and the Canons of this last Synod more authenticall then the holy scriptures given by inspiration from God it must be acknowledged of these Canons and all other constitutions of the Church whatsoever that every word spoken or act committed against thē especially unwittingly is not so heavily to be punished Agayne wheras the sayd Canons doe forbid any man by speech so offending without publike revocation of his sayd pretended wicked error to be restored sith the sayd offence may be committed as well privatly as publikely and sith the Canons speake generally whosoever shall affirme etc without any exception of private affirmations how can the sayd Canons in this respect be warranted by the word of God 1 Tim 5.1 If all offences against Gods word at least of man against man be not publikely to be reprehēded much lesse are all affirmations in disgrace of any Ecclesiasticall cōstitutions of men to be punished with publike pennance Furthermore whereas divers of the sayd Canons doe forbid many offenders by such affirmations to be restored by any other meanes then onely by the Archbishop sith the sayd offence may not onely be unwitting private but also by a poore ignorant man yea perhaps a lame impotent man dwelling also it may be an hundred myles or almost 200. myles from the Archbishop What equity is there that svch an offender should be debarred from all restoring by any other And so for want therof be deprived perhaps all his life from all publike communion with the Church and from all spirituall comfort for his soule therby Is this the mercy that is better then sacrifice And wherby we doe represent our heavenly Father The 13. Canon commaundeth the celebration of holy dayes as well as of the Lords day and that as equally agreyng to Gods holy will and pleasure I deny not but that as Gods word is to be preached at all tymes in season and out of season so it is also to be heard as oft as men haue opportunity but yet that the holy dayes now commaunded to be celebrated are as equally according to Gods holy will and pleasure as the Lords day especially so to be celebrated as they are injoyned with greater solemnities
not Circumcising Cain and Abell did contrary to the law given for Circumcision to Abraham many yeares after Or whither Ishmael persecuted Isaack before Isack was borne Or whether stealing of horses an hundred yeares past were punishable with death before any law made for death in that behalfe One thing cannot be sayd contrary to an other that is not neyther ever was extant in rerum natura The Second part of this Quere whether since the granting of Magna Charta unto this age the judiciall acts of deprivation of Bishops etc were ever held to be contrary to the law of this kingdome and Magna Charta we shall answer if God permit more plentifully anone Quere 3 G. Powel 3 Quere Whether any Iudge of this Realme or any cheife officer lerned in the lawes be of opinion that such sentences of deprivation as haue lately passed in due forme in any Ecclesiasticall Court be contrary to any much lesse to many statuts Reply Though it were a sufficient answer to bid him goe looke and himselfe to aske the opinion of every judge learned officer yet will I not altogether yeld him so short and cutted an answer And though it be a principle in Philosophy that forma dat esse rei yet to the beyng of every thing there must be matter to which the forme giveth being And therefore in this case besides due forme there must be also due matter inserted in due sentences Wherupon I craue a resolute and direct answer whether by those words passed in due forme he meane passed for matter and forme in due forme Or whether he meane passed without due matter in due forme onely For if he meane by passed for matter and forme in due forme then is his question without question either a foolish question or no question at all For who would question whether any Iudge or learned officer could doubt that a sentence passed for matter and forme in due forme were a sentence contrary to any much lesse to many statuts As though there were any Statuts so ridiculous and absurd On the other side if he meane by passed in due forme only due forme without due matter then we answer that the same sentence may be unjust for want of due matter and yet be just by reason of due forme And so on the other parte we affirme that a sentence may be iust by reason of due matter and yet unjust by reason of an undue forme How many sentences therefore of deprivation soever as haue been lately given without due and just matter or without due and iust forme we answer so many not to haue passed in due matter and forme and so contrary to some lawes or statuts But were this question wholly grāted what ease and advantage can the opinion of any iudg or learned officer yeeld to those Iudiciall acts of deprivation wherupon the controversie is grounded which are not passed in any due forme of any law or Statute Ecclesiasticall whatsoever Furthermore touching this question if the Prelats did intend that all their sentēces should be according to law wherfore did they make a Canon against the ordinary prosecution of appeales Yea what needed such a Canon What benefite is there to any appellant by his appeale from a just sentence Or what danger to the Iudge a quo by such appeales The whole danger is to the appellant himselfe For the sentence beyng just he shall be sure to get nothing neither the Iudge a quo to lose any thing by the appeale G. Powel VVho having but halfe an eye doth not see but that by pleading Magna Charta cap. 29 they would not onely weaken but also subvert and utterly overthrow all jurisdiction Ecclesiasticall Doth every one that desireth limitation of Ecclesiasticall jurisdiction Reply and laboreth to restrayne it from all communion of forreyne lawes seeke the subversion therof If also the lawes Ecclesiasticall be the Kings Ecclesiasticall lawes and the jurisdiction Ecclesiasticall the Kings Ecclesiasticall jurisdiction then is this place of Magna Charta so farre from subverting the jurisdiction or law Ecclesiasticall as that by that place the same law and jurisdiction is up held and more throughly established That the law jurisdiction Ecclesiastical ever hath been and yet is accounted the Kings Ecclesiasticall law and juridiction shall be shewed anone G. Powel The sentences and graue determinations whereof that is of Ecclesiasticall jurisdiction haue never yet in any age or Country been submitted to popular triall by the judgment of Peeres etc Reply All sent ces of Ecclesiasticall Courts are not so graue but that some are somtymes repealed by Higher courts and sometymes revoked by themselues Sometyme also they meddle with matters not belonging unto them and therfore by ordinary course of Commmon law they are prohibited to proceed Finally in some case the Bishop giveth not Institution to a benefice untill by a Iury of 12. men whereof 6. are to be of the Clergy and 6 of the Layity the controversie de iure patronatus be decided Yea sometyme the Bishop having instituted a clarke is forced by writ from the common law to admit of another clark presented by another Patrone and so to displace him whom before he had instituted G. Powel The place of Magna Charta cannot be understood of Ecclesiasticall jurisdiction or the practise thereof especially if we consider the end why this law was made and the tyme when The Prelats should make sure worke indeed Reply if they could make that no lawes were against their power Thē might they take upon them without controlment what they would under coloure of Ecclesiasticall iurisdiction as indeed they doe now pretily beginne to doe G. Powel The end was that the Kings of this Realme might not challenge an infinit and absolute power as some Kings else where did and yet doe without judgment and lawfull proceedings to take away any mans liberty life Country goods or lands Then belike the Kings Majestie is restrayned by Magna Charta but the Prelacy is not Reply Is not this good stuffe The King shall weare the Crowne but the Prelats will beare the sword Whether now doe they that are falsely called Puritans or the Prelats most encroch upon the Royall authoritye G. Powel It was made at such time as the Kings thought Ecclesiasticall jurisdiction no more in right then in fact to belong to the Crowne Therfore the words haue no relation to Ecclesiasticall jurisdiction This is utterly false Reply yea the falshood therof is evident by the testimony of that worthy and renowned Lawyer S. Edward Cooke in the booke alleadged by the answerer For he sayth expresely that as in temporall causes the King by the mouth of Iudges in his Courts of Iustice doth iudge the same by the temporall lawes of England lib. de jure regis Eccle. fol 8 so in causes Ecclesiasticall etc. the connusance wherof doth not belong to the common lawes of
might be the more suitable to the Arguments thēselues that the author of them might haue no cause justly to blame me for disgracing his work and the cause it selfe by a contrary course and that the mindes of the Prelats may rather be molified towards vs. then any thing more exasperated against us If it fall out otherwise and that our mildnes doe still increase their rigor God I hope shall giue us patience to indure whatsoever he shall suffer them to doe unto us together also with such comfort as all the world shall not be able to take away from us For we are so throughly perswaded from the evidence of Gods truth revealed in his word and sealed up in our hearts by his spirit the cause wherein we stand to be the cause of Christ Iesus that we say with Paule Acts 21.13 we are ready not to be bound onely neither onely to loose our livings but also herein to dye for the name of the Lord Iesus I speake not this seditiously and therfore let no man so wrest my words but I speake with that mind and in that manner that Paule spake the former words to signifie our readines for suffering any thing which the Prelats shall do unto us not for doyng any thing to resist them Some of thē harpe much vpon this string as appereth by wresting of our words in most malicious manner in the former answer against us yea they seeme also to thinke long for some law or other of this land to be wrested against us to make some of us examples unto other by sheading of our bloud but if they should so fare prevaile which I hope they shall never doe in the dayes of gracious and mercifull King Iames nor in the dayes of any of his most Royall bloud let them remember the words of Ieremy in the like case Ieremy 26 14 15 to the Priests and Prophets that sought his bloud As for me be hold I am in your hands doe with me as you thinke good and right But know you for certeyne that if ye put me to death ye shall surely bring innocent bloud upon your selues and upon this Citie and upon the inhabitants thereof etc. For of a truth the Lord hath sent me to speake all these wordes unto you Yea let them not onely remember those words but so also take admonition by them that in the presence of God they be not guiltie of high treason against our most Christian Soveraigne against his Royall issue and against the whole land by provoking the Lord to inflict such judgments upon all as the wordes before mentioned doe insinuat We are in their handes 2 Chron 24 22 ready without any resistance meekely to suffer any thing but he that judgeth righteous iudgment though he sit in the heavens will looke upon it and one day as Zechariah in the like case sayd will requyre it as indeed then he did Not withstanding I am so farre from Prophecying or wishyng any judgment to the whole land though I cannot but feare it that I doe and will earnestly pray Ioel 2.17 Gen 18 26 spare this thy people ô Lord and giue not this part of thyne heritage into reproch etc. Yea I doe the more hope of mercy in sparyng us yet a while longer because of the great multitude of the righteous in the land and because perticularly of many that haue been and yet are under Christ dressers of this the Lords vineyard that day and night whiles many Prelats eate and drinke and take their ease and pleasure doe pray the Lord of this his vineyard to let it yet alone Luk. 13 8 and to spare it a while longer But for all this whosoever shall procure the bloud of the meanest of us to be shead under whatsoever pretence let them know that such bloud shall cry louder in the eares of the Lord of Hosts for vengeance upon the procurers therof then ever we haue cryed in the eares either of our most gracious Soveraigne whom God long preserue in person and in vprightnes of heart or of the High Court of Parliament for Iustice If their shall be iudgment merciles to him that sheweth no mercy what shall the portion be of the cruell bloud thirsty Iames 2 13 Pro 21 13 Verely though they cry yet the Lord shall not heare them As also they that put the Martyrs to death missed of their purpose so shall all bloud thirsty and ambitious Papall Prelats Epist 243. Sanguis martirum semen Ecclesie The bloud of Martyrs is the seed of the Church and foecundi saith Calvin sunt martyrum cineres The very ashes of Martyrs are fruitfull The truth may be oppressed but it cannot be suppressed yea the more it is oppressed the more it shall bud forth spring If one of us in this cause should be put to death though perhaps under colour of some other offence by perverting of words wresting of law or otherwise yet for that on the Lord can rayse up ten yea there is nothing that hath made or doth make the cause of Papall Prelats more odious and the reformation desired more gracious and honorable even with some that before the consideration of that which I now say were of another minde then the unjust and especially the unmercifull proceedings of such Papall Prelats against the seekers of reformation Philip 1 28 Therfore in this case as the Apostle exhorteth the Philippians we doe in nothing feare our adversaries because as to be our adversaryes in such respects is to them a token of perdition if they repent not so also to be hated and persecuted by the Prelats is a like token to us of salvation and that of God But beyng so confident why doe we conceale our names to our writings Because as Christ Iesus notwithstanding all his heavenly fortitude without any defect did for all that oft tymes hide and with drawe himselfe from the furie and rage of the Priests Scribes and Pharises till his appoynted time was come so doe we by this meanes hyde our selues from the violence of some of our Prelats To your conclusion I will answer litle because it hath litle that hath not been answered before Wheras you say that wordes are to be numbred to so great states I answer that words are not onely to be numbred but also for the quality truth modesty sincerity and equity of them to be weighed and considered which if you had doone your whole labor had ben spared If you did greiue in your soule to heare us complayne of our povertie why doe you by bitter rayling false accusations and most unjust vnreasonable wresting of your antigonists words against all other Ministers of his sorte ad affliction to our affliction doe you not know that by this circumstance David amplyfied his cōplaynts and deprecations against his adversaryes Is this to iudge wisely of the poore Psal 69 and 109.16 Psal 41.1 Whereas you wish us to be a shamed of