that who so euer had any variaunce and wolde put it in iugement of the bysshops / that anon without doutyng it shuld be sent to the iugement of the bysshoppes yet that graunt is of none auctoritye in this realme for the kinges grace here knoweth no superiour vnder god And therfore for hiÌ„ lyeth no appeale And ouer that / if the kiÌ„ges grace made such a grauÌ„te to his bysshops in this realme / that they might holde ple of Temporall thynges / the graunte were voyde for it were agaynst his lawes And furthermore we knowe no auctorite to proue that the seyde Emperours made the seyd grauÌ„t confyrmacoÌ„n but onely the recytall of the seyde lawe made ex de iudicus Ca nouit And that semeth nat suffycient to bynde the Emperoures / ne their successours / onles their assent could be proued by other suffyciente matters of recorde The .viii. reason ALso it is sayde Deutro xvii If any thynge be harde and doutfull to the bytwext blode and blode / cause and cause / leprye and leprye / thou seest the iugemeÌ„t variant bytwext the persones / thou shalt come to the prestes of the Leuytycall kynde to the iudge that shal be that tyme / which shall shewe the the truth of the iugement / and thou shalte do what so euer they that be there in the place that our lord hath chosen saye / and thou shalt folowe their sentence / and than they saye that syth prestes in the newe law be of no lese auctorytie and power thaÌ„ preestes of the olde lawe were c. that they ought to haue no lese auctorytye and power than the other hade / but rather more An answere to this .viii. reason ¶ It is no dout but that the offyce and ministracyon of the prestes of the newe lawe are more notable more worthy than the offyce or ministracyon of the prestê of the old law were For they were iÌ„ a derknesse these in the lyght They in fygure / these in truth of the thinge fygured And therfore for the highnes of their auctoritye in spuÌ„all spirituall thynges / the iugement orderynge of temporall thinges is the more vnconuenyente for them And for that cause it was that the apostels sayd Act. vi It is nat mete for vs to leue the worde of god and minyster to the tables And sith the appostles thought that the ministracyon to the tables / thoughe it were a right charitable dede / was vnmete for their offyce which stode specyally in preachyng and teching and in prayer and contemplacyon / and other ghostly counseyls and ministracyons to the people How far vnmete is it thaÌ„ to their successours to take vpon them as it were a dede of highe ê‘fectyon / to iuge betwixt cause and cause / tytle and tytle / as well of landes tenementes / as of goodes and catales yea and somtyme of thynges concernynge the lyfe of man Therfore the same reason that is made to proue that bycause the auctorytie and power of prestes in the newe lawe / is no lesse thaÌ„ the auctorite and power of the prestes of the olde law was / that therfore they shulde haue as moch auctorite to iuge betwyxte blode and blode / cause and cause / leprie and leprie as the other had / maketh right strongly agaynst theÌ„ And further it is to be noted that in the seid texte of Deu. xvii It is nat sayde onely that the partye shall come to the prestes of the leuytycall kynde / but that he shall come also to the iudge that shall be that tyme / but whether that iudge muste be of the leuytycall kynde or nat it doth nat appere c. ⧠The .ix. reason ALso in this mater in hath beÌ„ sayde / that Emperours at the begynnynge had some right in the Empyre / but for their siÌ„ne that they dyd agaynst holy sayntes / and that specyally agaiÌ„ste the high bysshops they were depryued of the right of the Empyre / and that the right therof was translated vnto the church / for he deserueth to lese his priuilege that abuseth the power to him coÌ„mitted xi q. iii. Ca. priuilegium An answere to the .ix. reason ¶ Emperours had tytle to the Empyre of the immediat gyfte and ordynaunce of god long tyme before the comynge of Christ / and it appereth nat that euer Christe toke that power from them And though soÌ„e of them mysdemeaned themselfe agaynst holy sayntes / and that specyally against the high bisshoppes Yet why they / or their successoures shulde therfore lese the right of the Empier which was gyuen to them of god There is no reason / for though some of theÌ„ were euyll / the successoures might be good as vndoutedly many of theym haue ben And some tyme an euyll man is suffered of god / for the proufe of good men / ouer that admytte that they wer worthy to be depriued for their offences fro the right of the Empier Yet why that right shulde be translated to the churche / it wyll be harde to proue it by reason For as for to the lawe that is aleyed for the proufe therof that is to say .xi. q. iii. Ca. PriuilegiuÌ„ That he deserueth to lese his priuilege that abuseth the power to him coÌ„mytted / proueth nothynge that it shulde be translated to the churche / takiÌ„ge by that terme church / the bysshops and clergye For it is no dout but that the emperours receyued nat the emprye of the Clergye / wherfore it semeth that that reason is but of lytell streÌ„gth to proue that both powers / that is to say spuÌ„al and teÌ„peral shulde be in the clergy ⧠The tenth reason ALso it is sayde Psal lxxi Deus iudicium tuum regida et iusticiam tuaÌ„ filio regis iudicare populum tuuÌ„ in iusticia et pauperes tuos in iudicio That is to saye / O lorde god gyue thy iugement to a kynge / and thy iustyce to the sonne of a kynge to iuge thy peple in iustyce / and thy poore folke in iugemeÌ„t And thaÌ„ this reason hath ben made thervpon / that these wordes were spoken lytterally of christ as they were in dede / as a prayer that the father of heuen wolde gyue his iugement iustyce to Christ And they saye as the trouth is / that that power was fulfylled iÌ„ Christ as it appereth Ioh. v. Where it is sayd Pater omne iudicium dedit filio The father hath gyuen all the iugement to his sonne And also christe sayth himself Mat. xxviii All power is gyuen to me in heuen and in erth And than this reason is made further That that power that christe had he neuer gaue to emperours or kynges / but to his discyples / whan he sayd to them QuodcuÌ„que liga c Wherfore bothe powers spuÌ„all spirituall and teÌ„porall syth the tyme of christe hath ben in his appostels and discyples / and in their successours An answer to this tenth reason ¶ It is no dout
A treatyse concerniÌ„ge the power of the clergye / and the lawes of the Realme ♣ CuÌ„ priuilegio regali ¶ The 〈…〉 THough the priÌ„cypall intent of this present treatyse / be to speke of the power of the clergye / of the lawes of the realme Yet for asmoche as those powers canne nat perfytly be knowen / but the power of kynges priÌ„ces be knowen also Therfore dyuers textes of Scripture / concernynge kynges and princes be put into thre of the fyrst Chapitres of this treatise / with the Englyshe folowyng the same / for them that vnderstaÌ„de nat the latin tonge And the .ix. chapiter also / treateth moch of the power of kynges priÌ„ces / and also of the clergy / and whether the gospell toke any power fro princes that they had before the commyng of Christ / or nat The other Chapiters concerne most specyally the clergy / and the lawes and customes of the realme / as to the reders wyll appere ¶ Auctorities to proue that kiÌ„ges and princes haue theyr auctoritye imediatly of god And that honour and obedience ought to be gyuen to them The fyrst chapiter PEr me reges regnant / et legum conditores iusta decerÌ„unt Pro. viij By me kinges raygne / makers of lawes dyscerne thynges that be rightwyse Prouerbiorum viii ¶ Et nunc Reges intelligite erudimini qui iudicatis terram Psal ii And nowe o kyngê / loke ye vnderstande be ye lerned that iuge the worlde Psalmo .ii. ¶ Audite ergo Reges et intelligite / discite iudices furtum terre / prebete aures vos qui continetis multitudines et placetis vobis iÌ„ turbis nationum / quoniam data est a deo potestas vobis Sapi. vi Here ye therfore ye kynges and vnderstande lerne ye that be iuges of all parties of the worlde laye to your eares ye that rule the multitude and ordre the people for power is gyuen to you of god Sapi. vi ¶ Reges geÌ„tium dnÌ„antur corum Luc xxij Kinges of the people haue power ouer them Luc. xxii ¶ Deum timete / et regem honorificate Drede god honour the kiÌ„g i. pe ii ¶ Non est eniÌ„ potestas nisi a deo Que autem sunt / a deo ordinata sunt Itaque / qui resistit potestati dei ordinationi resistit Qui autem resistunt ipÌ„i sibi dampnationem acquirunt c. Nam principes non sunt timori boni operis sed mali c. Vis autem noÌ„ timere potestatem / bonuÌ„ fac habebis laudem ex illa / dei enim minister est tibi in bonum / si autem malum feceris time non enim sine causa gladiuÌ„ portat ad Ro. xiii There is no power but of god Forsoth all thiÌ„ges that be / be ordeyned of god And so he that resysteth power / resysteth the ordynaunce of god And they that resyst get dampnacyon to them selfe For princes be nat ordayned to the drede of a good worke / but of euyll Wylt thou nat drede power do well thou shalte haue laude of it He is the minister of god into goodnesse to the / and if thou do euyll / drede / for he bereth nat a swerde without cause ¶ Subiecti estote of humane creature propter deum sine regi tanquam precelleÌ„ti sine ducibus tanquaÌ„ ab eo missis ad vindictam malefactorum laudeÌ„ vero bonorum Prima petri .ii. Be ye subget to all men for god eyther to the kynge as precellynge other / or to dukes as men sente by him to the correction of euyl doers / and laude of wel doers .i. Petri. ii ¶ Non aufert deus a iusto oculos suos et reges in solio collocat imê‘petuuÌ„ God tourneth nat his eyen fro a rightwysman / kynges he setteth in their seates for euer Iob. xxxvi ¶ Rex Dauid dixit omni populo elegit dominus deus Israell me de vniuersa domo patris mei / vt essem rex super Israell in sempiternum .i Parale xxviii Kinge Dauyd sayd to al the people our lorde god of Israell / chase me before all the house of my father / that I shulde be kynge vpon Israell for euer Primo Parali xxviii ¶ Certayn partyculer auctorityes concernynge Kynges and princes The seconde chapiter COnstituit te regeÌ„ vt faceres iudiciuÌ„ et iusticiam .iii. Regum .x. He hath ordeyned the a kiÌ„ge / that thou shuldest do iustyce iugemeÌ„t ¶ Regina Saba dixit ad SalomoneÌ„ / qr quia diligit deê° Israel et vult seruare illuÌ„ ineternuÌ„ idcirco posuit te suê‘ eum regem vt facias iuditia atque iudiciuÌ„ .ii. Paral. ix The quene of Saba sayd to Salomon / bicause god loueth Israel wyl pÌ„serue him for euer / therfore he hath made the kyng ouer him / that thou shuldest do iustyce to all euery one of the people .ii. Paral. ix ¶ Honor regis iudiciuÌ„ diligit Psa 98. The honour of a kynge loueth iustyce ¶ In multitudine populi dignitas regê / et in paucitate plebis ignominia principis Prouerbiorum xiiii In the multytude of people is the dygnyte of a kynge / and in the lytelnesse of people is the wantyng of glory to a prince Pro. xiiii ¶ Diuinatio in labiis regis in iuditio non errabit os eius Prouer. xvi A dyuine workynge is in the lyppes of a kiÌ„ge / his mouth shall nat erre in iugement Pro. xvi ¶ Abominables Kegi qui agunt impie / quoniam iusticia firmatur solium / voluntas regum labia iusta Prouer. xvi They be abhominable to a kinge that do wyckedly / for a kiÌ„gdome is stabyled in iustyce / true lyppê are a kynges wyll Prouer. xvi ¶ In hilaritate vultus regis vita / et clemeÌ„tia eiê° quasi imber serotinus pro xvi In the cherefulnesse of a kynges countenaunce is lyfe and his mercy is as an euenyng dewe pro. xvi ¶ Sicut diuisiones aquarum ita cor regis in manu domini / quocumque voluerit inclinabit illud Prouerbiorum xxi As diuisyons of waters are in the handes of our lorde / so is the herte of a kynge in the hande of our lorde and whyther soeuer he wyll he shall bowe it Prouerbiorum .xxi. ¶ Qui diligit cordis mundiciam propter gratiam labiorum suorum habebit a micum regem Prouerbiorum xxii He that loueth the clennes of herte for the grace of his wordes shall haue the kinge fauorable vnto him ¶ Gloria regis inuestigare sermonem The glory of a kynge is to serche the truth of that is spoken pro. xxv ¶ Rex iustus erigit terram Pro. xxix A rightwyse kynge exalteth hys realme Prouerbiorum xxix ♣ Rex qÌ„ iudicat in veritate pauê‘es / thronus eius ineternum firmabitur pro. xxix A kinge that iugeth poore men in truth / his throne shal be stabylled for euer Prouerbiorum xxix ♣ Beata terra cuius rex nobilis
all goodes be iÌ„ whose handê soeuer they come And so the parliament hath full power to ordre them / so that the lawe of god be nat broken by their ordre And it is nat to thynke that the kiÌ„ge and his lordes spyrituall teÌ„porall and the comeÌ„s that were at that parliament wolde haue ben so farre ouer seen / to haue made a statute againste the lawe of god / and if it be sayde that the tenthe parte amonge the Iewes in the olde lawe / was a lawe of god / that therfore it ought to be obserued / among cristen men as other morall lawes be Yt may be answered / that payeng of the tenth parte for tythes is no morall lawe / and therfore it cessed whan the passyon of Christe was fully preched knowen amoÌ„ge the people as other Iudicyalles and Ceremonialles dyd And therfore if it were prohibyted / that it shulde nat herafter be lawfull for any man / to saye that the sayde statute is agaynst the lawe of god It is very like that it shuld cause great quyetnes herafter betwene the Curattes and their parysshons in many places in this realme ♣ The .ii. question the fyth cha wHether the Iuges in spryrituall courtes be bounde in any case to take knowlege of the kynges lawes / and to iuge therafter or nat The fyfth chapiter ¶ An answere to the seconde question IF any questyon or doute ryse in the spuÌ„all spirituall courte concerniÌ„g the ryght or possessyon of any teÌ„poral thyng / wherof they in the spyrytuall courte / after the custome of the realme maye holde ple. The iuges there are bounde to iudge the right to him that hathe right by the kynges lawes As if a man haue two sonnes / one borne before espousels / and another after and he bequeth to his sonne and heyre an hundreth pounde / they in the spyrituall courte are bounde to iuge the hundreth pouÌ„de to him that is heyre by the lawes of the realme Also if a man haue a porcyon of tythes in another parysshe / so longe tyme that it maketh a prescryption in the spyrytuall courte / but nat in the lawes of the realme He hath no ryght to that porcyon for lyke as a lawe made by the Clergye / that one curate shulde haue a porcyon of tythes in another parysshe were voyde So is a prescription voide that is grouÌ„ded onely by the lawe made by the Clergye / agaynst the prescryptioÌ„s of the law of the realme And in the lawe of the realme there is no lesse prescryption / thaÌ„ fro the tyme wherof no mynde of man renneth to the contrarie Also if a man by his wyll byqueth certayne money or goodes to a monke / that by quest is voyde in the lawes of the realme And so they in the spyrituall courte oughte to iudge it ♣ The .iii. questyon the syxt cha WHether it be agaynste the lawe of god to arraigne prestes before laye meÌ„ or nat The .vi. cha ¶ An answere to the .iii. question AS to the very auncyeÌ„t grouÌ„des of the comeÌ„ lawe of this realme prestes shulde be put to answere before the kiÌ„ges iustyces as well in actions real and personall / As iÌ„ felonyes murdrers treasons / as farforth as any laye men shulde be Neuerthelesse / by a contynuall pretence that the clergy haue made that it is agaynste the lawe of god that clerkê shulde be put to answere before laye men / or their bodyes arested They haue hadde great fauoure in suche thinges / more than laye men haue had Howbeit whaÌ„ they haue had such fauour / they haue natte taken it as a fauoure of the kynge or his lawes but as a thiÌ„ge whiche they ought of right to haue by the lawe of god And thervpon they haue at many parliameÌ„tes made pretence to haue more lybertie in that behalfe than the comen lawe custome of the realme hathe gyuen them / and more than laye men haue had And to cause the matter more playnly to appere I shall recyte soÌ„e statutes that haue been made in dyuers parlyamentes in tyme past / coÌ„cernynge the pretence of the clergye therin Fyrst in the statute of Marlebrygge in the .lii. yere of kynge Henry the thyrde It is inactyd thus If a clerke be arrested for any offence belongyng to the crowne and after by the kynges coÌ„maundemente he is let to bayll or is repleuied So that they to whom he is taken to vayle shall haue hym before the kynges iustyce c. That they to whoÌ„ he is taken in bayle / nor his other pledges shall nat frotheÌ„sforth be amercyed / if they haue his body before the iustyce though he wyl nat or maye nat answere before theym / for the priuylege that he is a clerke / by which statue it appereth that before that statute clerkes were arrested for offeÌ„ces agaynst the crowne and it appereth also that clerkes clamed their priuyleges than / as they do nowe / but the Statute doth nat afferme or alowe that they oughte to haue it For the statute was nat made to that entente / but it was made onely for the indempnytie of the pledges / that though the clerkes in such case wolde nat answer for trust of their sayd priuylege / that yet the pledges shulde bere no losse therby as some men take it that they shuld haue done by the lawe / but the priuylege of clerkes was lefte in dout as it was before And prestes were put to answere before the kynges iustyce after that statute as they were before / and so contynued the varyaunce / vntyll the treatyce of Articuli cleri was made / which as it is sayde is a statute / and was made in the .ix. yere of Kynge Edwarde the .ii. at whiche tyme the Clergye made many artycles of certayn grefes done / as they sayd to the church of Englande / wherby is vnderstande the clergye of Englande wherof one was that though a clerke ought nat as they sayde to be iuged before a seculer iudge / ne any thynge to be done agaiÌ„ste him wherby he might come to the parell of deth Neuerthelesse / they sayde that seculer Iuges make clerkes that fle to churches and there knowlege their offences to abiure the realme / and admitte the abiuratioÌ„s for that cause / though thei be nat their iuges thervpon And so sayde they that there was gyuen to laye men an indyrecte power to punysshe clerkes if they come into the realme agayne To this coÌ„plainte the seyde treatise answereth thus / sayth A clerke fleeng to the church for felony / to haue the defence of the church / if he afferme him selfe to be a clerke shall nat be compelled to abiure the realme / but yeldynge hiÌ„selfe to the lawe of the realme he shall enioye the lybertie of the church / after the laudable custome of the realme vsed iÌ„ tyme past And it semeth that by this worde Clericus in the sayd treatyse is vnderstande only a Clerke that
is withiÌ„ ordres / and nat euery clerke that can rede And than it appereth farther by the sayde treatyse that if he wyll haue the defence of the church he muste confesse the felony / for the seyde treatyse is / that he submyttynge himselfe to the lawe of the realme shal haue the lybertye of the churche And by the lawe of the real me he must confesse some felony before he haue that lybertye Neuerthelesse bicause this article hath nat ben seen / but seldom iÌ„ vre it hath beÌ„ a doubte to many men whether the Corowner shall be iuge iÌ„ that matter himself / or whether the Corowner muste sende him to the kynges iustyce / and than they either to commytte him to the ordynarye or to remytte him agayne to the sent warye as they thynke ought to be done by the lawe But I suppose that iÌ„ this case the Corowner is the iuge And another complaynt that the clergye made at the makynge of the sayde treatyse called Articuli Cleri was this They sayde that though the conusauÌ„ce made before him that is nat iuge of hiÌ„ that maketh the conusauÌ„ce holdeth nat / nor suffyseth nat to make proces / nor to gyue senteÌ„ce vpon Neuerthelesse / they sayd that some seculer Iuges admytte the accusation made by clerkes by waye of approuynge or appelle / though they be nat of their iurisdyctyon as they sayde But reteyne suche clerkes / that confesse before them their owne enormyous offences as theftes / robbories manslaughter / and delyuer theÌ„ nat after to their pÌ„lates though they be thervpon suffyciently requyred Ne though before theÌ„ for all theire owne confessyon they maye nat be iuged ne condempned without brekynge of the lybertie of the churche To this complaynte the sayde treatyse answereth thus To an apprower asked by thordynarye in due forme as a Clerke / the benyfyte nor the lybertye of the churche shall nat be denyed By whiche complaynte and answere made thervpon / there semeth to appeare two thynges / one is / that the Clergye pretended that the confessyon of a clerke made before a seculer iuge for murder or felony byndeth nat The second is that they founde them greued / that whan clerkes made suche confessyons / thervpon approued other for the Kynges aduauntage as they might do by the lawe That than thoughe the ordynaryes came and asked them as clerkes / that yet the iuges wolde nat delyuer them And that was trewe as the ordynaryes sayd / bycause they that the clerkes hadde appealed / might offre to ioyne battayle if they wolde / which tryall by the lawe might nat be taken fro him that was so approued And as to that artycle the sayd treatyse assented to the request of the clergye and graunted that he shulde be delyuered to the ordynarie whan he asked him And so by that treatyse the ioynynge of battayle is takeÌ„ fro the appelle But as for the fyrst artycle / that is to saye that seculer iuges shulde be no iuges to clerkes / the seid treatise regarded it nat / but lefte it as it was before And after this varyaunce / thus contynuynge without accorde / clerkes were contynually put to answere before the kyngê iustyces as they were before In so moch / that as well seculer clerkes as chapelaynes / and monkes / other men of relygion were draweÌ„ and hanged by the awarde of seculer iustyces / as appereth by the recytall of the statute made in the .xxv yere of kynge Edwarde the thirde Pro Clero the .iii. chapiter / which the Clergye sayde was to the great preiudice of the fraunches of holye churche / and to the oppressyon of the Iurisdyctyon thereof / wherfore it was accordyd and graunted by the kynge in his sayd parlyament / that all maner of Clerkes as well seculer as religiouse that shuld be frotheÌ„sforth coÌ„uycte before iustyces seculer for any maner of treason or felonye touchyng any other persone thaÌ„ the kynge or his royall maiestye shulde haue enioye frely from thens forth the preuyleges of the holy church of Englande / and shall be without impechement or delaye delyuered to the ordinary whan they demaunde theÌ„ And thervpon the Archbisshoppe of Caunterbury / promysed that suche couenable ordinauÌ„ces shulde be made for the sauegarde chastysement of the seyd clerkes / so that none shulde herafter take any boldnesse to offende for defaut of chastisment / and so it appereth that the intente of the kyng and of his parlyament at the makynge of the seyde statute / was / that in treason or felonye touchynge the kynge / they shulde nat haue the preuylege And in the chapyter next folowynge / it is ordeyned / that clerkes that be arrayned before seculer Iustyces / the which chalenge their clergye / and be demaunded by the ordynaryes / shal be forthw t delyuered vnto them without delaye And afore that statute somtime the iuges wolde remaunde clerkes to prison / sayenge they had other thinges to saye vnto them And that is prohibyted by the seyde statute / after in the fourthe yere of kinge Henry the seuenth It was enacted that a clerke which was nat within ordres and had his clergie / shlude be burned vppon the lefte hande / in suche maner as by the seyde statute appereth And that if any persone at the seconde time that he is arrayned demaunde his clergye by cause he is withiÌ„ ordres / hath nat his letters there / nor thordynaryes certifycat that than the iustyces shulde giue a day by their dyscretyon to hym / to bringe in his letters or certifycat / if he fayle therof at that daye / he to be put fro his clergye And so by that statute it appereth that if a clerke that is nat within ordres be brenned in the hande / and than be made a preest / and be after arrayned of felony than he saith that he is with in ordres / but he hath nat his letters nor any certyfycat of thordynarye / wherfore he hathe a daye to bringe them in / accordynge to the seyd statute of Anno quarto And at the day he faylleth therof / that he shal be put fro his clergye / and therof must nedes folowe / that though he be with in ordres / he shal be put in execucoÌ„n And furthermore it is nat lyke that there was any sufficient proufe shewed at any of the seyd parlyamentê that it shulde be against the lawe of god / that preestes shulde be put to aunswer before laye men For it is nat to presume / that so many noble princes and their counseyle / ne the lordes / and the nobles of the realme ne yet the Comons gathered in the sayde parlyamente / wolde fro tyme to tyme / renne in to so great offence of conscyence / as is the brekynge of the lawe of god And if ther be no suffycyent proufe / that it is against the lawe of god / than the custome of the realme is good / to