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
them Touching the answer to the consequence of the former Argument that the Pastors should rather returne to their people and comfort them obeying the wholsome ordinances of the Church etc I answer that we will so doe when such ordlnances are proved by Gods word to be wholsome THE 7 ARGVMENT All true Ministers 2 king 2 12 13.14 Prov. 3.16 psal 45.12 1 Sam. 4 21 Ephes 6. 5 Isai 2 4 and 65 25 2 chron 14 14 17.10 27.6 are as the Chariots and horsmen of those kingdomes where they are In the Ministery of the gospell and sincere worship of God therin commended consisteth the glory of Kings and kingdomes So also the peace yea also their whole outward prosperity And the contempt of the gospell and of the sincere worship of God procureth all outwarde calamityes of Kings and Kingdomes Ergo As men wil be faithfull to Kings and Kingdomes so they must maynteyne the sincere Ministery and Ministers of the gospell and therfore speake for them The Marginall Notes G. Powel a Is a handfull of refractary ministers the safety of the whole land 1 Cosmographers in some Maps describe a bird called a Ruc of such bignes that she taketh vp an Elephant with her talants very high into the ayre Reply and then letteth him fall to be broken and bruised for her to feed on It seemeth this Notary hath an hand as large as the foote or tallants of this bird sith he maketh but an handfull of all the Ministers suspended deprived or like so to be for these matters now in question Secondly As the loss of one of his Majesties shipps Royall or of one of his strongest holdes or of one of his most worthy warriors may be sayde to weaken the whole Kingdome especially in the time of great warre and as the cutting in sunder of one principall post or beame or piller of an house doth weaken the whole house so and much more is the losse cutting of of so many worthy ministers of the gospell the weakenyng of the whole land For is not Satan and are not Papists and all the rest of Satans army so much the more strenghtned 2 king 2 15 and 9.1 Elia was but one and accounted as we are a troubler of Israell and left Elisha behind him and yet the Argument telleth you how they were accoūted though in their tyme there were many other Prophets O therefore that the meanest able and godly Minister might not be lightly regarded in these last and dangerous tymes Howsoever they are esteemed of by the world yet they are of more price then great riches G. Powel b As if God never had defended any Pagan in case of innocency and justice etc c Outward prosperity consisteth in pure worship They speake so profoundly as an intelligent and sensible man cannot understand them As if the ungodly florished not ofttymes as a greene bay tree and the outward prospeity of the Persians and Romanes did not surpasse the meane estate of the Iewes the true Church of God Reply If there had been no name set to this booke these two notes and many other the like might haue brought it in suspition to haue been penned by some professed Atheist For who almost but smelling of religion would haue objected such things Yea who that had but tasted of logike would haue denyed the conclusion not regarding the proofes and premises The wicked doe indeed some times in joye outward prosperity either to molifie their owne hearts or to harden them the more to be the fitter for Gods judgmentes or to be scourges of God unto other or to make them the more in excusable yet they haue no assurance either of gettyng or of holdyng such prosperity Neyther can they haue any more comfort thereby then the godly may haue discomforte by their afflictions because indeed they haue no intrest thervnto from God It is also a shamefull untruth that the Persians Romans or any other in outward prosperity excelled the Iewes so long as the Iewes regarded the word honored the Prophets and other Ministers thereof and maynteyned the pure worship of God All that while they were even in outward things the glory of all the world What people ever had the like victoryes What Nation for all prosperity was comparable to Israell in the dayes of Salomon and to the Iewes afterward psal 48 2 87 2 12 Lamēt 1 1 and 2 1 in the time of many other Kings Of what Citie are so glorious things ever written as of Ierusalem Read the places in the margine Indeed after that they contemned the word of the Lord abused his prophets and neglected God his worship and that especially through the fault of their Preists etc. then the Lord forsaking them made their enimyes the cheife etc. Lament 1 5 The other notes upon this Argument I passe by as either answered before or being of no moment Further answer to the 7 Argument G. Powel VVhat can a sensible man make of this enthymem The refractary ministers are the safety of the whole land Ergo the Court of Parliament must speake for the gospell Reply The title refractary omitted he is a sensles man that can make nothing of that enthymem especially these ministers pleaded for being proved true and faithfull For though the gospell and Ministers thereof be distinct yet he that speaketh for one speaketh for both and he that speaketh for both speaketh for the land the safety wherof dependeth upon both But marke heere agayne the answerers sophistry Sophistry For wheras the author saith that the Parliament is to speake for the gospell Ministery thereof the answerer taketh the word gospell and altogeather leaveth out the other words and the ministery thereof G. Powel There are thowsandes of faithfull Ministers besids them in this kingdome that are Charets and horsemen etc. Ministers are therfore termed Charets and horsemen because they are Gods instruments for gathering of the Saincts Ergo The antecedent is improbable if not false Againe these men refuse their Ministery wherfore they cannot be called charets yea so farre are they from being the safety that would God they were not the sores of the Church and sowers of sedition I meane schisme and faction Reply As there are some other faithfull Ministers so there are not many thousands that are able much lesse faithfull besides us Generally throughout the land there are Sixe reading ministers for one preacher at the least by practis For there are some that are licensed to preach that never did are or were able to preach Many also that can preach seledome doe Preach Some also that doe preach and that often doe it so Popishly or otherwise so corruptly so foolishly and ridiculously to make sporte rather then to edifie so vaynly and unprofitably that it were better to hold their peace then so to preach That Ministers are called charets and horsmen for gathering the Saints viz out of the power
for want of matter of justification or for want of the truth of unjust oppression I meane only by the Prelats but because they haue not been admitted to prosecute the iustice of the land nor to call in question the proceedings of their ordinaryes who haue been hitherto both Agents and Iudges both accusers and advocats in their owne cases against them And especially because upon pretense of a Canon lately made repugnant to the lawes statutes and customes of the Realme they be not suffered by the Archbishops Iudge ad quem to plead and to prosecute their appeales and to declare their innocency according to the auncient laudable and common usage and iustice of the land unto which grevance also many more exorbitant injustices by the Prelats heereafter mentioned may be added Let the answerer therfore vnderstand that som Ordinaryes in their publike sentēces The Bishop of Lincolne against the the Ministers of Leicestershire haue most uniustly charged some Ministers with denyall of the oth to the Kings supremacy which notwithstanding divers tymes before they had willingly sworne vnto and which at the very instance of pronouncyng the sentence they offred before their Ordinary to sweare unto agayne And not onely thus lesingly to make the Persons of the sayd Ministers more odious to our most Christian King his State and all his people in their publike sentences of deprivation have som Ordinaryes traduced the good name and estimation of the Ministers but also without any other speciall crime worthy deprivation mētioned in their sentences haue they stussed their sentences full only with generall wordes of generall crimes contrary to the right forme of judgment For by right forme of judgment the Ordinaryes ought not to haue impeached the Ministers because of generall crymes but they ought to haue sayd and put in certeyne in what thinges and in what manner the sayd ministers haue done any thing worthy punishment of deprivation An other grevance unjust oppression by the sayd Prelats of the sayd silenced ministers is that upon sentence of deprivation and appeales of the Ministers the Ordinaryes haue given notice to the Patron of the voydance of the Church and upon new presentation of the Patron haue not onely instituted new clarkes but also to avoyd the possession of the Minister deprived and appealing haue suggested and intimated by their certificatory writ under their publike seale unto the King into his Court of Chancery that the possession of the church was kept per vim laicam Old natura brevium fol 33. Que breife ne ser grant avant que levesque de tiel lieu eit certifie en le Chācerie per sō breit de tiel resistance withall haue prayed the Kings writ de la vi laica removenda By vertue of which writ upon their suggestion intimation granted for without their suggestion and intimation it would not be granted the party appellant before the appeale finished hath ben removed out of his possession by the Shiriffe of the Coūty Notwithstanding in truth the Church parsonage or vicarage house had within the same no manner of vi laica at all but was onely quietly and peaceably possessed by the late derived spirituall person and his poore family And that this manner of a possession of a Church by a spirituall person and his family by the law of the Kingdome is not to be holden vis laica is playnly iustified by a late judgment given by the Kings Iustices touching the possession of the Church of Newton Valencoe in the Diocesse of Winton For where as a spirituall person possessed of the same Church by vertue of the Kings writ de vi laica removenda was removed out of his possession and another spirituall person put in possessiō of the same church the spirituall person dispossessed upon the matter heard and examined before the Kings Iustices that he was a mere spirituall person and that his Church was possessed onely by himselfe and his domestikes was by an other of the Kings writs restored into and possessed of the same Church and which Church unto this day he peaceably holdeth and injoyeth A 4 grevance of the silenced Ministers is that ther beyng a Canon made in the last Synod that no iudge ad quem shall grant any Inhibition to the judge a quo Bishop of Chichester Salisbury unlesse he first see the originall appeale sundry Ordinaryes upon appeales made before them haue taken order with their Registers and Notaryes not to deliver to the partyes appellant any noate or copy of any act or sentence made or given before them Where upon not onely the party appellant is wronged but the Notary also upon refusall of grāting to the party appellant demaunding and tendring to the Notary his fee a publike instrument of the publike Acts and Records of the Court cannot but incurre the infamy of corruption and perjury in as much as he beyng a publike Notary is sworne faithfully to execute the office of a publik Notary the execution of part of which office consisteth he being requyred thereunto in his testimony and delivery of the publike acts made in his presence A fith injustice or rather nullity is because sundry sentences of deprivation haue been given a Iudicibus non suis namely by such Ordinaryes whose power and jurisdiction Ecclesiasticall at the time of giving their sentēces was suspended shut up and closed by the Archbishop of Canterburyes Commission and his Archiepiscopall visitation A 6 grevance or rather a nullity is because the whole power and jurisdiction Ecclesiasticall touching causes criminall without exception or reservation of the examination and definition of the crimes of Ministers by sundry Diocesans under their seale at armes before that tyme was committed in solidum for terme of life yeares not expired unto their principall Commissaryes Officialls or vicars generall wherupon it consequently followeth the same Diocesans having no power by the Kinges Ecclesiasticall lawes to resume at their pleasure their sayd Ecclesiasticall jurisdiction that the sentences given by the sayde Diocesans in these cases are sentences voyd and of none effect in the law as being given a Iudicibus iurisdictione in ea parte carentibus A 7 grevance or rather nullity is that sentences haue been given nullo Iuris ordine servato but omni iuris ordine spreto et neglecto An 8 injustice is because some acts and sentences haue been made and given in some private chamber of some common Inne or Taverne and not in publico et competente foro in any publike or competent seate of Ecclesiasticall justice As M. Vinall and M. Warren in the Diocesse of Chichester were deprived in a common Taverne viz. at the signe of the Ounce and Ivy bush in Greensteed The 9 injustice is because some sentences given by some Ecclesiasticall judges for not use of rites and Ceremonyes or not observing of the booke of Common prayer haue not been given according to the tenor of and effect of the statute
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
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