appertayne to the temporall good and prosperity therof 11. Next after the declaratioÌ„ of these three pointes to wit of the origens ends obiects of these two powers spirituall and â—eÌ„porall the sayd Catholicke Deuine deduceth out of the same the differeÌ„t dignity excellency eminency of the one the other power the one being called Deuine the other Humane for that the ends and obiects of the one are immediatly concerning the soule as now we haue declared and the other concerning humane affaires immediatly though mediatly in a Christian Common wealth referred also to God And this diâ—ference of these two powers he declareth by the similitude likenesse of flesh and spirit out of S. Gregory Nazianzen who in a certaine narration of his doth most excellently expresse the same by the comparison of spirit and flesh soule and sense which thing saith he may be considered as two distinct Common wealthes separated the one from the other or conioyned togeather in one Common wealth only An example of the former wherin they are separated may be in beasts and Angels the one hauing their common wealth of sense only without soule or spirit and the other CoÌ„mon wealth of Angels being of spirit only without flesh or body but in man are conioyned both the one the other And euen so sayth he in the Common wealth of Gentils was the Ciuill and Poliâ—icall Earthly and Humane power giuen by God to gouerne worldly and humane things but not spirituall for the soule wheras coÌ„trarywise in the primitiue Chriâ—tian Church for almost three hundred yeares togeather none or few Kings Princes or Potentates being conuerted the Common wealth of Christians was gouerned only or principally by spirituall authority vnder the Apostles and Bishops that succeeded them 12. Out of which consideration confirmed and strengthened by sundry places of holy scripture ancient Fathers alleaged by him he sheweth the great eminency of spirituall Authority aboue temporall being considered seuerally in themselues though they may stand ioyntly and both togeather in a Christian Common wealth where the temporall Princes be ChristiaÌ„s though with this necessary subordination that in spirituall and Ecclesiasticall affaires belonging to the soule the spirituall gouernours be chiefly to be respected as in Ciuill affaires the temporall magistrate is to be obeyed and this he sheweth by diuers examples and occasions out of S. Ambrose S. Chrysostome S. Gregory Nazianzen and other Bishops and Prelats that in Ecclesiasticall affayres prefered themselues and their authorities before that of Christian Emperours with whome they lyued expresly affirming that in those respects they were their Superiours Pastours the said Emperours their sheep subiects though in temporall affaires they acknowledged them to be their Superiours 13. All this is set downe by the Catholicke Deuine with great variety of proofes many examples facts and speaches of ancient Fathers And will Syr Edward Cooke say that this was froÌ„ the purpose a Nihil dicit doth not this quite ouerthrow his assertioÌ„ that all teÌ„porall Kings by vertue power of their temporall Crownes haue supreme authority also in spiritual affaires If the forsaid three Fathers to pretermit all others S. Gregory Nazianzen S. Chrysostome and S. Ambrose that had to do with Christian Emperours which had teÌ„porall authority ouer all or the most part of the Christian world did yet notwithstanding affirme vnto their faces that they had no authority at all in spirituall matters belonging to soules but were and ought to be subiect to thâ—m their Pastours in that Ecclesiasticall gouerment how much lesse could a woman-Prince haue the same by right of her temporall Crowne as most absurdly M. Attorney auerreth Which absurdity the Catholicke Deuine doth conuince so largely by all sortes of proofes both diuine and humane as well vnder the law oâ— Nature as Mosayâ—all and Christian that a person of the feminine sâ—xe is not capable of supreme Spirituall iurisdiction ouer man as nothing seemeth can be answered theruÌ„to And was this also â—rom the purpose to proue that Queene Elizabeth could not haue it What will Syr Edward answere here for his Nihil dicit 14. After all this and much more alleaged by the Catholicke Deuine which I pretermit for breuities sake he commeth to reduce the whole controuersie betweene M. Attorney and him vnto two generall heads of proofe the one de Iure the other de facto that is of right and fact shewing that in the first of these two proofes de Iure which is the principall M. Attorney did not so much as attempt to say any thing â—or proofe that by right Queene Elizabeth or any of her Ancestours had supreme iurisdiction in causes Ecclesiasticall but only that de â—acto some of them had sometymes taken and exercised such an authority Which if it were without right was as yow know nothing at all and therfore the sayd Deuine hauing proued more at large that by no right of any law whatsoeuer diuine or humane Queene Elizabeth or her predecessours had or could haue supreame authority Spirituall he coÌ„meth to ioyne with M. Attorney also in the second prouing that neyther in fact any such thing was euer pretended or practised by any of her Predecessours before the tyme of her Father K. Henry the viij either before or after the Conquest 15. And as for before the Conquest there haue beene more then an hundred Kings of different Kingdomes within the land he proueth by ten large demonstrations that none of them did euer take vpon him such supreme spirituall authority but acknowledged it expresly to be in the Bishop of Rome of which demoÌ„strations the first is of lawes made by them generally in fauour and confirmation of the liberties of the English Church according to the directions and Canons deriued â—rom the authority of the Sea Apostolicke The second that Ecclesiasticall lawes in England made before the Conquest were made by Bishops and Prelats who had their Authority from Rome and not by temporall Kinges The third that all determination of weighty Ecclesiasticall affayres were referred not only by the Christian people generally of that Realme as occasions fell out but by our Kings also in those dayes vnto Rome and the Sea Apostolicke The â—ourth that the Confirmations of all Priuiledges Franchises of Churches Monasteries Hospitals and the like were in those dayes demaunded and obteyned from the Pope The fifth that in all Ecclesiasticall controuersies suites and grieuances there were made Appeales and complaints to the Sea of Rome for remedy The sixth the succession of Bishops Archbishops in England during that time all acknowledging the supremacy of the Pope were notwithstanding in high fauour and reuerence with the English Kings with whom they lyued wherof is inâ—erred that these Kings also must needs be of the same iudgment and beliefe and consequently make lawes conforme to that their fayth and beliefe as contrariwise since the schisme began by K. Henry the 8.
satisfyed in one speciall point of my Epistle to the second part of my Reports where I affirmed that yf the ancient Lawes of this noble â—and had not excelled all others speaking of humane it could not be but some of the seuerall Conquerours â—ouernours therof that is to say the Romans Saxons Danes or Normans and especially the Romanes who as they iustly may do boast of their Ciuill Lawes would as euery of them might haue altered or changâ—d the same And sayth he some of another proâ—â—ssion are not persuaded that the Common Lawes of England are of so great antiquity as there superlaâ—iuâ—ly is spoken So he And in these last words I presume he vnderstood the Deuine that impugâ—ed this excessiue imaginary antiquity of our Municipall â—awes in his Answere to the Reports and Syr Edward hauing seene the same should in reason haue answered somewhat therunto if he had byn prepared for it 30. But he thought that course not best but rather to help himselfe with the pretendâ—d authority of Syr Iohn Fortescue chiefe Iustice of England in the Raigne of King Henry the 6. saying that he was a great Antiquary he was a notable man indeed though more as it seemeth in the skill of our Common Lawes then in matters of Antiquity out of whome Syr Edward to help his cause and assertion citeth the words following As touching the antiquity of our Common Lawes sayth he neither are the Roman Ciuill Lawes by so long continuance oâ— ancient tymes confirmed nor yet the Laâ—es oâ— the Venetians which aboue all other are reporâ—ed to be of most antiquity â—or so much as their Island in the beginning of the Britans was not then inhabited as Rome also then vnbuilded neither the Lawes of any Nation of the world which worshipped God are of so old and ancient yeares wherâ—ore the contrary is noâ— to be said nor thought but that the English customes are very good yea oâ— all other the very best Thus he if he be rightly cited for I haue not his booke by mâ— 31. And though I do respect and reuerence both these mens professions and much more their state place of Iudges yet doth force of truth oblige me to contradict their errour which seemeth to me very grosse and palpable or rather their errours and mistakinges in sundry points here downe As first in that yt is auerred that the Ciuill law and Roman lawes are not of so long continuance of ancient tymes as the ancieÌ„t Municipall Lawes of England are which he goeth about to proue by two seuerall meanes wherof both do conteine aswell falsyties as absurdities if I be not greatly deceiued therin 32. His â—irst meanes of proofe is â—or that in the beginning oâ— the Britans Rome was then vnbuylded and conquently that the British Lawes are more ancient then those of the Romans And then supposing further that those British Lawes which were in the beginning of the Britans were neuer changed but recâ—iued in England fâ—oÌ„ time to time haue indured to our dayes are the Common Lawes of our Realme at this day Wherin there are many suppositions as yow see strange to heare but harder in my opinion to be proued As first that the Britans in their beginning euen before Rome was buylt had such good Lawes as the Romans in EnglaÌ„d seauen huÌ„dred years after the said building of Rome were coÌ„tent to accept for their Lawes in that land And the lyke after them the Saxons other CoÌ„querous people that ensued which is such a paradox vnto men of reason learning as the very naming therof cannot but cause laughter For albeit the British nation be more ancient then the Roman according to the Story of Geffrey Monmouth that affirmeth theÌ„ to discend from Brutus a Nephew of Aeneas from whom Romulus the founder of Rome some ages after descended and that they were a valiant warlike nation from the beginning yet that they had such good politicke and ciuill Lawes themselues being vnciuill in those dayes is a matter incredible which I proue thus That wheras the Roman Lawes began from Romulus himselfe from Numa Pompilius other ancient Law-makers among them and this soone after the building of Rome I meane the more older Lawes of the twelue Tables and the lyke continued from tyme to tyme afterwards vntill the coÌ„ming of Iulius Caesar into Britany which was aboue 600. yeares after Rome was built aboue a thousand after Brutus had byn in England in which tyme yt is probable that the British Lawes would haue growne to greater perfectioÌ„ theÌ„ they were in the beginning yet I say that the said Lawes customes of the Britans are recorded to be such in Iulius Caesar his daies set downe by his owne penne as also by the writings of diuers other Roman Greeke Authors that succeded for two or three hundred years after him as must needs be incredible that they should be continued by the Romans Saxons and other people that followed them And then if they were such and so rude so many ages after their beginning what may we imagine they were at their very begynning it selfe which was a thousand yeares before from which tyme our two Knights heere do inferre their antiquity and eminency aboue the Roman Lawes 33â— Let vs see then what ancient Histories do report of the British Lawes and Customes in Iulius Caesar his tyme and afterwards Caesar the Roman-Captaine hauing made two iourneys into England and informed himselfe diligently about the Lawes and Customes of the Brytans in those dayes which was about 60. yeares before the Natiuity of our Sauiour setteth downe many things of their small policy in that time As first the description of their manner of consultations in their warre wherin he sayth that in commune non coâ—sulunt they haue no common Counsells and then describing the chiefe Citty of the Realme where their K. CassiuelaÌ„ that was head of all the rest had his Court Counsaile somewhat about the Thames though not where London was afterward built he sheweth that it was in a wood and that the walles were trees cut downe round about insteed of fortresses within which they inclosed both themselues and their Cattle and this was the symplicity of that tyme. 34. After this he setteth downe many Lawes and customes of theirs farre vnfit to be receiued by the Romans other people after them as Nummo aereo aut annulis ferreis ad certuÌ„ pondus examinatis pro numâ—o vtebantur Their money was of brasse and rings of yron giuen out by weight And then againe that they had a law and custome luto se inficere quod caeruleum efficit colorâ—m to paint themselues with a certaine earth that made a blew colour And Solinus wryting more then an hundred yeares after Caesar againe sheweth this law and custome to haue byn so inuiolable among them in his dayes that the very Children had the figures and shapes
by them 47. And the like may be said of the Danes afterward when they came in vpon the Saxons who had their owne lawes among themselues others they made in England calling them the Danish Lawes and some of them were admitted generally throughout the Realme in those few yeares wherein they had the peaceable gouerment therof which in great paâ—t were afterward excluded againe or altered by S. â—dward the Confessour when by him the Saxon â—nglish bloud came to recouer the dominion as those againe of S. Edward were for the most part changed and altered by VVilliam the Conquerour as all our ancient Histories do testify namely Ingulfus Malmesbury Polidore the rest 48. And albeit it were ouerlong to recount all the forsaid variety of Lawes in particuler brought in by Romans Saxons Danes Normans which import great chaÌ„ges alterations therby do coÌ„fute Edwardsâ—ssertion â—ssertion yet haue some of our Nation not wanted to gather out of more ancient wryters sundry lawes that haue byn made by seuerall Kinges of different Nations as namely those of King Inas Alured Edward the first Edgar Aethelstan Agilred all Saxons of King Canutus the Dane and of S. Edward the Confessour restorer of the English bloud raigning all before the Conquest And after the Conquest of King VVilliam that was the Conquerour who like a Conquerour indeed tooke that liberty to himselfe as to change and alter at his pleasure all lawes of what nation or people soeuer he found in vse before him in our Iland which Polidore testifyeth out of ancient authorities in these words Leges penè omnes à superioribus sanctiss Regibus olim ad bene beateque viuendum sustulit nouasque dedit minùs aequas quas posteri non sine suo damno seruauerunt He tooke away almost all the lawes that had byn made before the Conquest by most holy Kings for their happie life and gouerment of the people and gaue new lawes more vnequall which they that ensued retayned to their owne losse as though it had byn a great cryme to break those lawes which a Conquerour that was no friend of the English natioÌ„ brought in insteed of good lawes 49. So Polidore that had examined all our antiquities about this matter of English lawes for so he saith of himselfe Diligenter omnia veterum monumenta persâ—rutaâ—us sum I haue diligently sought all monuments of ancient wryters in this behalfe and by this assertion of his doth ouerthrow directly three positions of our two Iustices heere First of the eminent antiquity of ouâ— present lawes in England Secondly that they were neuer changed or altered The third that they were the best absolutely of all other Lawes which last point about the goodnes Polidore doth impugne expresly as yow see adding also further for some example of the iniquity and asperity of our said lawes left by VVilliam the Conquerour as followeth Non possum hoc loco sayth he non memorari rem tametsi omnibus notam admiratâ—one tamen dignissimam atque dictu incredibilem c. I cannot choose but recount in this place one thing albeit knowne to all yet most worthy of admiration and incredible to be spoken which is That these Lawes which ought to be vnderstood by all were wrytten at that tyme and now also are in the Norman tongue which neither English nor French did rightly vnderstand VVherupon yow should haue seene euen from the very beginning therof partly by the iniquity or iniustice of the Lawes themselues and partly by the ignorance or vnskilâ—ulnes of those that did interprete amisse these lâ—wes this man to be depriued of his ancient inheritance another to be condemned in criminall Causes by the iudgment of most vnskilfull men and yet vpon that iudgment put to death another to be intangled with inextricable suites of law and finally both diuine and humane aâ—â—aires to be turned vpside downe by these new Lawes 50. Thus yow see what Polydors iudgment was therof and he that will see more inconuenience and mischiefes that ensued therof let him reade Ingulfus that liued and wrote in the same tyme and was an eye witnesse of the said miseries And fynally I will end this matter with the testimonie of Iohn Fox in his Actes Monuments a witnesse I suppose which Sir Edward will not refuse who treating of things that passed in the life of VVilliam the Conquerour hath these words For so much sayth he as he obtayned the Kingdome by force and dint oâ— swordâ— he changed the whole state of the gouermâ—nt of this common weale and ordayned new lawes at his owne pleasure proâ—itable to himselfe but grieuous and hurtâ—ull to the poopleâ— abolishing the lawes of King Edward wherunto notwithstanding he was sworne beâ—ore to obserue and maintayne for the which great commotions and rebellions remayned long aâ—ter among the people as Histories record to haue the lawes of King Edward receyued againe So he And by this may appeare how true it is that Syr Edward doth affirme that neyther Romans Saxons Danes or Normans euer altered or changed the ancient British lawes of our Iland but that they be now the selfe same that they were then And of all other Nations the best An assertion worthy of such an Antiquary as Syr Edward would be thought to be 51. And albeit this may be sufficient and superaboundaÌ„t also for ouerthrow of Syr Edwards imagination that our common lawes were neuer changed but continued still for their excellency in goodnes in all tymes euen from Iulius Caesars dayes downeward for that he fyndeth or at leastwise surmiseth some things or customes lyke the one to the other in different tymes and vnder different Princes as now you haue heard yet will I adioyne one consideration more to the contrarie of his concerning particuler lawes which are found to haue bene both vnder the Saxons Danes and old English that are not now in vse and consequently the Iudge must confesse that in those at least there hath beene a change As for example it is read that it was a law in King Inas his dayes the 12. King of the VVest SaxoÌ„â— almost a thousand years gone That if a bondman by commandement oâ— his Maister did worke or do any seruile thing vpon a Sundayâ— his Maister should leese his dominion ouer him and pay thirty shillings besides Vnder the famous King Alfred and his sonne Edward the elder and King Guthrun the Dane with whome they made peace it was a law That a man condemned to death might not be hindred to confesse his sinnes to what Priâ—st he would nor that he could be executed vpon a Sunday Vnder renowned King Edgar it was a law which is yet extant in the Saxon language That whosoeuer did slaunder an other in a grieuous crime should eyther leese his tongue or redeeme it deerly by other meanes 52. Vnder King Canutus the Dane that changed King Edgars
true explanation of your meaning with a cleare confutation and reiection of the same and consequently these Rhetoricall shifts are idly brought in by you nothing nâ—edfull for me For P. R. tooke you in your true meaning wherin you desire to make Catholicke Doctours contemptible in generall for their blindnesse though to some yow will seeme to graunt the opinion of learning but yet with such restraint and limitation as you make it not better for instruction of Christian soules then the learning of the Diuell himselfe For this is your wise and graue conceipt Let them be as greatly learned say you as they are and would seeme to be yet must there be a con I meane an hart zealous of the truth to be ioyned with science to make vp a perfect conscience which is the true Doctour indeed otherwise we know that the serpent by being the most subtile of all the beasts in the field will deserue no better commendationâ— then to be accoÌ„pted the skillfullest seducer By which discourse of yours a man may easily see whether your meaning were generall in your former speach about ignorant Doctours or no and how impertinently you bring it in heere for an argument of wilfull falshood against me for that I vnderstood you in your owne sense I will not discusse your concept of your science with your con which was borrowed of Iohn Reynolds and of others before you and though I be loath to tell it you least it may seeme to sauour of reuenge yet I must say it for your better information that many men thinke very little of the one or other to be in your selfe as they should be either science or good conscience alleadging your writings for testimony of both HIS FOVRTH obiected falshood against P. R. §. IIII. NEXT vnto this he produceth for a falshood in me that I say in my booke of Mitigation that he taketh vpon him to iustifie the writings and doings of the Protestants of our dayes for their seditious doctrines and practizes against Princes who please them not and among others M. Goodman in particuler that wrote the most scandalous booke against the Regiment of women in Q. Maries dayes and assisted Knox Buchanan and others in troubling and turning vpside downe Scotland wheras M. Morton saith that he condemned him and consequeÌ„tly that I dealt iniuriously with him Thus he citeth my words in a different letter as though they stood so in my text He Thomas Morton doth particulerly iustifie Goodman 21. But first you must vnderstand that it is his common vse neuer lightly to alleadge truly and sincerely any text that he will vse to his profit either in Latin or English and let the Reader make prooâ—e of it if in twenty places alleadged by him he find foure without all alteration let him say that I do offer him iniury My words talking of the parts of M. Mortons Reply called the Full satisâ—action were these Secondly he taketh vpon him yet more fondly in the second part of this his Reply to make a publicke iustification of all Protestants for rebelling against their Princes in any countrey whatsoeuer but more particulerly and especially in England and therin doth so iustifie Cranmer Ridley Syr Thomas VVyatt and others that conspired against Q. Marie in England Knox Buchanan Goodman and like Ministers in Scotland turning vpside downe that State against their Soueraignes the rebellions raised in Suetia Polonia Germany Switzerland France and other countries as his iustification is a more condemnation of them and their spirits and doctrine in that behalfe then if he had said nothing at all as partly shall afterward appeare by some instances that we shall alleadge therof 22. By which words of mine you may see that I did not single out Goodman alone as particulerly iustified by M. Morton as he would make the Reader belieue by his crafty and corrupt manner of citing my words but that among many others he did go about also so farre as he durst to excuse and iustifie him saying as presently you shall heare that albeit he approued him not for this he durst not do my L. of Canterbury hauing written so terribly against him in his booke of Dangerous positions yet that the examples alleadged against him by the Moderate Answerer might excuse him which were of most intollerable speaches of his against Princes and heere againe in this his Preamble that in respect of Romish Priests he might be thought excusable wherby a man may see his inclination to iustifie him and his writings if with security he might haue donne it How then is it such a falsity in me to say that among so many others before named whom he cannot deny but that he seeketh to iustifie them he sought also to excuse and iustifie Goodman though not in so absolute a manner as the other Saints of his yet in some degree conuenient to his estate and merit Let vs see what I do write afterward more about this iustification of Goodman my wordes these 23. The moderate Answerer say I alleageth first the wordes of Goodman in his booke against Q. Mary wherin he writeth expresly that it is lawfull by Gods law mans to kill both Kings and Queenes wheÌ„ iust cause is offered her selfe in particuler for that she was an enemie to God and that all Magistrâ—ts and Princes transgressing Gods lawes might by the people be punished condemned depriued and put to death as well as priuate transgressours and much other such doctrine to this effect cited out of the said Goodman All which the Bishop of Canterbury his second booke of Dangerous positions hath much more largely both of this Goodman and many other English Protestants chiefe Doctours of their primitiue Church residing at that time in Geneua And what doth T. M. now reply to this You shall heare it in his owne wordes If I should iustify this Goodman saith he though your examples might excuse him yet my hart shall condemne my selfe But what do you professe to proue all Protestants teach positions rebellious prooue it heere is one Goodman who in his publike booke doth mantaine it I haue noe other meanes to auoid these straites which you obiect by the example of one to conclude all Protestants in England rebellious then by the example of all the rest to answere there is but one So he 24. And this is his Full satisfaction and faithfull reply as he calleth his booke but how poore satisfaction this giueth and how many points there be heere of no faith or credit at all is quickly seene by him that will examine them For first how do the examples alleaged against this Goodman by the moderate answerer excuse him as heere is said seeing the wordes he alleageth against him out of his owne booke are intollerable and my Lord of Canterbury alleageth farre worse as for example that it is most lawfull to kill wicked kings when they fall to tyraÌ„ny but namely Queenes
for the tyme to come by the yoke of any Bâ—shop or his Officers but that in all euents of things Controuâ—rsies of Cases they shal be subiect to the dâ—cree of the Abbot of the said Monastery So as c. And theÌ„ doth M. Attorney continue his speach thus 58. This Charter was pleaded in 1. H. 7. vouched by Stanâ—ord as at large appeareth which Charter granted aboue 850. yeares sytâ—ece was aâ—ter confirmâ—d per Edwinum BritaÌ„niâ—e AngioruÌ„ Regem Monarcham anno Domini 955 By which appeareâ—h that the King by this Charter made in Parliament for it appeareth to be made by the Counsâ—ll and consâ—â—nt of his Bishops and Senators of his Kingdome which wâ—re assâ—mâ—led in Parlamâ—nt did discharged and exâ—mpt the said Abbot frâ—m the iurisdiction of the Bishop c. And by the same Charter did grant to the same Abbot Ecclâ—siasâ—icall iurisdiction within his said Abbâ—â— whâ—ch Ecclesiasâ—icall Iurisdiction bâ—ing deriued fâ—oÌ„â—he Câ—oâ—â— contynned vntill the dissoluâ—ion oâ— the said Abbey in the Raigne 〈◊〉 K. Henry the eight So he 59. And by this you may see what an important ConclusioÌ„ he doth inâ—erre of the Kings supreme Iurisdiction in spirituall affaires at that tyme whereunto the Deuine comming to answere and supposing that M. Attorney would not â—alsify or bely his Authors hauing protested most solemnly fol. 40. oâ— his Booke that he had citâ—d truly the very words and texts oâ— the lawes resolutions iudgmâ—nts and actes of Paâ—lament all 〈…〉 and in print without any inâ—erence argumâ—nt or ampliâ—icaâ—iâ—n quoting particulerly the Bookes years leaues Chapters and other such lâ—ke certayne referencâ—s as euery man at his 〈◊〉 may see and read them c. The Answerer I say hearing this formall protestation and supposing besides that the man would haue some respect to â—is credit honour in this behalf granting all as it lay answered the same as you may see in his Booke But now vpoÌ„ better search it falleth out that this whole Case was falsely alleaged by M. Attorney in the very point of the principall CoÌ„trouersy in hand about the Kings spirituall Iurisdiction for that whatsoeuer the Charâ—ter did ascribe expresly to the Pope and his authority the Attorney suppressing the true words relateth it as procâ—eding from the King temporall authority of his Crowne For proofe wherof I shall set downe the very words of my learned freÌ„ds letter out of England about this point after view taken of the law bookes themselues and then let any man say how far M. Attorney is to be credited in any thing he writeth or speaketh against Catholicks 60. As concerning saith my friend the Charter of King Kenulphus for the Sanctuary of the Monastery of Abindon you must know that M. Attorney hath egregiously abused his Reader in that and other pointes for the Case standeth thus That in the first yeare of King Henry the 7. Humfrey Stafford was attainted by Act of Parlament of high treason tooke Sanctuary first in Colchester in Essex and after fled to Culnam and tooke Sanctuary in the Abbey of Abindon and being taken from thence brought vnto the Tower of London and from thence brought vnto the Kings Bench he pleaded that he was drawne by force out of the said SaÌ„ctuary of Culnam and praied his Counsaile to pleade that point which by all the Iudges of both Benches was granted vnto him And so they pleaded in this manner 91. Idem Humphridus per Consilium suum dixit quòd Kenulphus Rex MercioruÌ„ per Literas suas pateÌ„tes consilio coÌ„sensu EpiscoporuÌ„ SenatoruÌ„ gentis suae largitus suit Monasterio de Abindon accuidam Ruchino tunc Abbati Monasterij illius quandam ruris sui portionem id est quindecim Mansias in loco qui à Ruricolis â—unc nuncupabatur Culnam cum omnibus vâ—ilitatibus ad eandâ—m partinentibus tam in magnis quam in modicis rebus in aeternam haereditatem Et quòd praedicius Ruchiâ—us ab omni Regis obstaculo â—piscopali â—ure in sâ—mpitâ—rnum esset quietus vt inhabitatorâ—seius nullius Regis aut Miniâ—â—roruÌ„ suorum Episcopiâ—e aut suorum Offiâ—ialium iâ—go inde deprimerentur sed in cunctis rerum euentibus disâ—tissionibus causarum Abbatis Monasterij praedicti decreto suâ—ijâ—â—râ—ntur Ita quòd c. And here ceaseth M. Attorney leauing out as you see in his recitall the wordes that go before ab omni Regis obstaculo that the Monastery should be free from all obstacle of the King as also these words vt inhabitatores eius nullius Regis aut MinistroruÌ„ suorum iugo deprimantur that the inhabitaÌ„ts be not opprest with any yoake of any King or his Ministers Wherby is euideÌ„t that the King in his Charter did for his part giue exemptions from temporall and Royall power But especially the fraud is seene by cutting of the wordes that do ensue which decide the whole controuersy which are these Et etiam allegauit vltra quòd Leo tunc Papa concessit dicto Abbati dictas immunitates priuilegia Et quod Edwinus tunc Britanniae Anglorum Rex Monarchus coÌ„â—â—ssit quòd praesatum Monastâ—rium omnis terrâ—nae sâ—râ—â—tuâ—is esset liberum quae à prâ—decâ—ssoriâ—us suis Catholicis videlicet à dicâ—o sancto Lâ—â—ne Papa dicâ—o Rege Kâ—nâ—lpho c. Et quòd virtute literarum Bullarâ—m praediciarum tâ—mpore conâ—ecâ—ionis earuâ—dâ—m eadem villa de Culnam suit Sanctuarium lâ—cus priuilegiatus c. Which in English is thus And moreouer the said â—umphrey Stafford by his CouÌ„saile alleaged further for himselfe that Pope Leo had granted vnto the said Abbot the said immunities prâ—uiledges that king Edwin theÌ„ King Monarch ouer all the English in Britany had granted that the said Monastery should be free from all earthly seruitude which by his Catholicke predecessors to wit the said holy Pope Leo and the said King Kenâ—lphuâ— was granted and that at the time of the making of the foresaid letters Patents and Bulles the said village or Towne of Culnam was a Sanctuary priuileged place by vertue of the said Patents and Bulles 62. This is word for word the very plea of Humphrey Stafford for the Sanctuary of the Monastery of Abindon as it was pleaded by his learned Counsaile in law euen as it is recorded in the Reports of the years of K. Hâ—nry the seauenth as they are printed by Pinson the law printer in the tyme of K. Henry the eight before the Protestant religion came vp And the Lord Brooke in his Abridgement of the law in the title of Corone placito 129. doth accordingly set downe the same Case with mentioning of the Bulles of Pope Leo for the said immunities and priuileges But all the Protestant editions in the tyme of the late Quene Elizabeth printed by Tottell and Yestwort haue committed a notable tricke of falsification in leauing out altogether these markable words That Leo then Pope did
either in the one or the other point is not proued by any one of all these examples nor by them altogeather though they were granted to be true as here they lye For that they do not proue that either our Kings here mentioned did assume to theÌ„selues to haue Supreme authority in spirituall affaires or to take it from the Pope nay the Catholike Deuine in answering to Syr Edwards obiections herein doth euidently shew and proue yea conuinceth that these fiue English Kings here mentioned to wit King Edward the first Edward the third Richard the second Henry the fourth Edward the fourth vnder whom these Cases fell out did all of them most effectually acknowledge the Popes supreme authority in Ecclesiasticall matters and were obedient Children to the same as he shewed by sundry most cleare and apparant examples of their owne actioÌ„s towards the Sea Apostolike and that these particuler Cases supposing they were all true and fell out as heere they are set downe to wit that the publishing of a Bull of Excommunication in some Causes and vnder some King might be held for Treason as also that the Archbishops lands might be seysed vpon for refusing to admit the Kings presented Clerke that in Parlament it was said that the Regality of the Crowne of England depended not of Rome and that in certaine Cases no suites might be made thither without recourse first to the Ordinaries of England 72. Albeit I say that these things were all granted as they lie yet do they not inferre by any true coÌ„sequence that which the Knight and Minister should proue to wit that for this either these kings were or held themselues for supreme in spirituall authority at that tyme or that it was denied vnto the Pope Wherof this one is a most conuincent argument that the like Cases do or may fall out at this day in other Catholicke Countries and Kingdomâ—s as in France Spaine Naples and Sicily where â—here be diuers Concordates resâ—rictions limitations agreed vpon for auoyding further inconuenieÌ„ces betweene the Pope and Catholicke Kings and Princes concerning the manner of execution of Ecclesiasticall authority without any derogation to the Supremacy therof in the Pope And so might men be punished by the said Princes for breaking rashly the said agreements as they may and are dayly in the said Kingdomes especially in the last and yet do not these Kings thereby either deny the Popes supreme authority or take it to themselues as M. Attorney M. Morton do falsely ininferre in these our cases And thus it is manifest that albeit these exaÌ„ples were in all râ—spects truly alleaged yet are they impertinent to proue that which is pretended And this for the first point 73. But neither is it all true that heere is set down nor as it is set downe which is the second point to be considered For which cause though I find these fyue Cases sufficiently answered by the Catholicke Deuine in his late Booke against M. Attorney yâ—t for tâ—at the said Knight in his last Preface to the sixt part of his Reports doth say that he fyndeth him vtterly ignorant in the lawes of the Realme though as a Deuine he made no profession to be skilfull in the same yet shall I adde somewhat to the reuiew of these Cases whereby it may appeare at leastwise whether he to wit the Deuine or M. Attorney or M. Morton haue vsed the skill of their professions with more sincerity in this matter 74. The first Case thâ—n is thus set downe by M. Morton out of the Attorneys booke though not altogether as it lyeth in his booke but with some aduantage as the Attorney did out of his Bookes whereof he tooke his Case So as here is helping the dye on all haÌ„ds as you see In the Raigne of King Edward the first saith M. Morton a Subiect brought in a Bull of excommunicatiâ— against another Subiect of this Realme and published it But it was answered that this was then according to the ancient lawes of England treason c. as before is set downe 75. Wherein I must note first before I come to examine the answere already made that M. MortoÌ„ can not choose as it seemeth but to vse a tricke or two of his art of iugling euen with M. Attorney himself For whereas he relateth to with the Attorney that this Bull of excommunication was published to the Treasurer of England M. Morton clyppeth of all meÌ„tion of the Treasurer which notwithstaÌ„ding in this Case is of great moment for so much as it semeth that if he had published the same to the Archbishop or Bishops appointed to haue the view of such things and had brought their authenticall testimonies for the same it seemeth by the very booke it self of Iustice Thorpe who recounteth this Case by occasion of the Case of Syr Thomas Seaton and Lucy 30. E. 3. that it had byn litle or no peril at all vnto the publisher for that this reason is alleaged for the offence therein committed that for so much as the partie to wit Lucie against Syr Thomas Seaton did not shew any writ of excommunication or any other thing sealed by the Archbishop of England nor any other Seale that was authentike prouing this therfore the Bull was not allowed c. 76. This then was a fine tricke to cut of all mentioÌ„ of the Treasurer the other also immediatly following hath some subtilitie in it though not so much as the former to wit that it was answered that this was Treason c. for that in none of the bookes cited either of Thorpe or Brooke is any mention of such answere giuen as M. Morton feygneth nor any such iudgment of Treason passed theron as M. Attorney would make his Reader belieue as preseÌ„tly shall be proued So as these are the first two trickes of M. Morton to helpe his dye all the rest for the substance of the matter is like to fall vpon M. Attorney 77. First then the Answere of the Deuine vnto this Case not hauing commoditie at that time to see the two bookes of Thorpe and Brooke cyted in the margent was that it could not possibly be imagined by reason that the Case stood altogeather as M. Attorney did set it downe espâ—cially with this note in the margeÌ„t that the bringing in of a Bull against a subiect was Treason by the ancient coÌ„mon lawes of England before any Statute law was made therof for that the Deuine demandeth what this Common law was not made by Statute How was it made By whome Where At what time Vpon what occasion How introduced and commonly receiued for all this a Common law supposeth especially for so much as the said Deuine had shewed and aboundantly proued now that all precedent Kings of England both before and after the Conquest were most Catholicke in this very point of acknowledging the Popes supreme and vniuersall authority in spirituall affaires wherof the power
award they made him abiure the Land though this also was not due vnto him by rigour of law to pacify thereby the Kings wrath And it is not vnlike to that Case that fell out in England Anno Domini 1578. vnder Q. Elizabeth when in her anger she would haue had Peter Bourchet to haue byn put to death by Martiall law when he had wounded Syr Iohn Hawkins insteed of Syr Christopher HattoÌ„ but the Iudges would not yeald therunto as being against law therefore found out this temperament that he should be committed to the Tower and accused of matters of Religion as Puritanisme and the like Where afterwards he gaue them a iust cause of putting him to death by killing his keeper But as the Queenes will passion made this no law so neither did that other vnder K. Edward the first So as M. Attorney did much abuse his Reader in auerring it to be treason by the common law adiudged for such out of this Case 84. And if he will vrge that the punishment of haÌ„ging and drawing implieth treason it is answered no but that this rather maketh much for vs. For that the punishment of treason I meane high treason is not only hanging and drawing but quartâ—ring also excepting only the Case of counterfeyting of money Stat. de 25. Edâ— 3. de proditionibus as appeareth by Stanford in his Booke of the Pleas of the Crowne fol. 182. but petty treasons as of killing the maister or Mystresse by the seruant or of any Prelate by his subiect c. which in effect are but fellonies are punished by hanging drawiâ—g oâ—ly wheâ—eof is consequent that albeit K. Edwards will and commandment had byn according â—o law as â—t was not yet had it inâ—erred no treason at all 85. And further to satisfy this matter and make it more cleere that the Reader was abused in this assertion I will adde foure seuerall Reasons argumeÌ„ts more out of the law-books themselues The first is concerning the abiuring the Realme for pacifying the King awarded in iuâ—tice Thoâ—ps Case which proueth euidently that it was not an offence of treason in the delinquent for that abiuraâ—ce is no punishment for treason but only for fellony as appeareth by the said Iustice Standâ—ord in his said Booke fol. 116. where he setteth downe the beginning of abiurance how it was first ordeyned by S. Edwaâ—d before the Conquâ—st and was grounded vpon mercy when a maÌ„ had committed fellonie and fled to a Church or Churchyard for safety of his life and did choose rather perpetuall banishment then to stand to the law So as abiurance by the old lawes of England was at tâ—e election of the Offendours and not at â—he will of the Prince And afterward the said Stanford shewing for what offences in particuler a mâ—n might abiure the Realme saith that abiuration doth not lye â—or hâ—m that hath offended in high treason 86. The second Reason is that the said Stanford in his said booke of the Pleas of the Crowne fol. 182. inteÌ„ding to set down all offencâ—s of treason which were either by the Common-law or Statute-law doth not relaâ—e any such matter to be treason as the bringing into the Realme Bulles of excommunication by one Subiect against an other which he would neuer haue concealed if he had found it held for such in any law booke before him 87. The third Reason is to the same effect that the Statute of 25. Ed. 3. being made for declaration of treasons doth â—et downe what offences were treasons by the Common law In this Statute I say no mention at all is made that the bringing in of Bulls of excommunication was treason or any other offence which of likelyhood cannot be presumed that they would haue pretermitted to touch or mention if any such thing had bin 88. The fourth Reason and most concludent is that we read in many Bookes of law as 31. Ed. 3. â—xcommunicat 6. Fitzh tit Excom pl. 6.14 â—en 4. â—ol 14.8 Hen. 6. fol. 3 and ells where that diuers Excommunications were pleaded in the Kings Courts and no matter of treasoÌ„ or other offence made therof by the Iudges which no doubt they would neuer haue passed ouer so negligently carelesely if it had bin treason by the common-law Neither would any Counsel haue presumed to plead the same so often in the said Courts if there had byn such perill or offence therein at that tyme as M. Attorney now pretendeth Neither doth the authority of Brooke here cyted by M. Attorney patronize him in his voluntary mistaking misconstruyng of the law-books a foresaid For that Brooke doth not say that the bringing in of Bulls was iudged treason by law as M. Attorney doth but onâ—y maketh this note So see punishment of that before the Statute of Premunire which maketh nothing for M. Attorn purpose and if it did yet were it not to be equalled with so many graue authorities euideÌ„t coÌ„uincing reasons as before we haue alleaged to the contrary 89. Wherfore we must conclude that in this first Case M. Attorney hath sundry wayes dealt vnsincerly and gone about to deceiue his Reader making him belieue that the bringing in pleading of the Popes Bulles in ancient time was treason according to the Common-lawes which being now proued to be false yet doth he so often repeate the same vpon all occasions against Catholikes both in wryting speaking pleading and vbrayding as if it were a most certaine truth or principle and not to be controlled Let vs see somewhat of the other Cases TO THE OTHER FOVRE CASES obiected by M. Morton out of Syr Edward Cooke §. VI. IT were ouer long to answere so largely vnto all the other Cases as we haue done to this first especially for so much as the Deuine hath done it very sufficiently and fully before the second Case conteyning only a temporall matter about Advowsons and authority thereby to present Clearks to benefices which was an ancient custome of the Church of England where teÌ„porall men hauing founded Churches and benefices reserued to themselues the nominatioÌ„ and presentation of the persons that should enioy the same who if they were found fit and nothing to be proued against theÌ„ that might iustly be opposed for their exclusion then the Bishop of the diocesse was bound to admit them And if he did not the Aduowsoner might haue an Action against the said Bishop at the Commonlaw of Quare non admisit as in a temporall Case and if the Bishop could not excuse his not admitting of the Clerke of the Recouerer by some sufficient cause then the Plaintif should recouer domages against the Bishop or els he might haue vpon the not executing the first writ to the Bishop an Alias or a Pluries against him And if these were not serued or sufficient excuse made vpon the return thereof why they were not serued then the partie grieued might haue an Attachment against the Bishop
for his contempt And if he were attached and would obstinateâ—y reâ—use to obey the Kings commandment in admitting the saiâ— Clerk then might the King for his contempt seyse vpon his tempoâ—alities which were oâ— tâ—e Kings endowment And this was the vttermosâ— that the King could by law do against him for that he could neither imprison nor depose or degrade him there being no presideÌ„t to be found as I suppose of the first And for the second the law it selâ— semeth cleare against it as may appeare by Bracton fol. 401. Stanford â—ol 130. c. But howsoeuer it be this proueth nothing against the Popes spirituall Iurisdicâ—ion in England this matter of Aduowsons being meere tempoâ—all things and of the kings temporall inheritance wherein as in all other temporall affaires Bishops were bound to obserue the temporall lawes 91. The other point also that happened out vnder K. Edward the 3. when one was condeÌ„ned to perpetuall prison for hauing disturbed the Kings Presentee by Bulls from Rome is nothing to the purpose at all for that it apperteined not to the Pope but to the Kings temporall inheritance as hath byn said to present Clerkes to such benefices as were of his peculiar patronage and therfore it was ordeined in the Statute of Carliâ—le in the 25. of Edw. the first that such as went about to disâ—urbe the same vniustly by false informations and negotiations at Rome should be punished at the discretion of the Prince so it were not with losse of lyfe meÌ„ber or of his liuood And what inferreth this Are not the like lawes at this day in Spaine and Sicily and els where against them that traÌ„sgresâ—e ordinations of those Realmes about like affaires Or doth this proue that those Catholike Realmes do not acknowledge the Popes Ecclesiasticall Supremacy Euery child may see the weaknes of these inferences and yet vpon these and the like doth all M. Aâ—torneys Treatise layne and consist 92. As for the other Case vnder K. Richard 2. where it was propounded by the Commons in a certaine narration that the Crowne of England hath byn at all tymes â—ree and in subiection to no Realme nor to the B. of Rome touching the Regality of the Crowne c. it is so fully answered by the Deuine in his Reply to the Reports as no more needeth to be said For that they speake but of temporall regalities and haue some reference also as may be supposed vnto the time when the Sea Apostolicke after the concession of K. Iohn preteÌ„ded teÌ„porall right also in that Crown And the answere oâ— the Bishops in that Parliament with distinctioÌ„ that they would â—eld to that Statute so far forth as they did not preiudicâ— the ancient iurisdiction Ecclesiasticall of the said Sea Apostolicke in spirituall affaires doth euidently shew that this obiection maketh nothing to the purpose to denie thereby any part of the Popes supreme Ecclesiasticall authority and consequently as it was impertinently alleaged by M. Attorney to that effect in his Reports so much more fondly was it chosen out by M. Morton as a matter of moment to furnish his Booke withall 93. And as for the last Case vnder K. Edward the fourth where he saith That it was the opinion of the Kings Bench that whatsoeuer spirituall man should sue another spirituall man in the Court of Rome for a maâ—ter spirituall where he might haue remedy before his Ordinary that is the Bishop of the diocesse within the Realme he incurreth the danger of Premunire being an heynous ofâ—ence against the honor of the King his Crown dignity though the former answeâ—e of the Deuine be very sufficient in this case yet must I needes adde â—n this place that it is rather an heinous offence in such a man as M. Attorney is or should be to misreport and misconster his law-bookes therby to make someâ— shew oâ— probability against the ancieâ—t power Ecclesiasticall of the Sea Apostolicke in England whereas the said Books being rightly alleaged vnderstood do make wholy for it As for example heere in this case alleaged out of 9. Ed. the 4. â—ol 3. the saying is only of Yeluerton of the kings Bench and his Report is meant when a spirituall man shall sue an other that is a temporall man in the Court of Rome for a thing meere temporaâ—l he shall incurre the said punishment For that for one spirituall man to sue another spirituall man in the Court of Rome in spirituall Causes was a thing all waies lawfull and vsuall both before the tyme of K. Ed. 4. and after vntill it was forbid by King Henry the eight And that this is true that it was lawfull by the CoÌ„mon-law in K. Henry 4. tyme appeareth expressely by the Booke of 14. H. 4. fol. 14. Neither can I thinke M. Attorney alleage any example where the same is prohibited either by CommoÌ„ or Statute law during the tyme aforesaid 94. And whereas for strengthning this his false assertion he citeth in his Margent vide Fitzh in Nat. Breu. fol. 45. lit â— agreeing herewith And further adâ—eth a Notandum for the same as a matter notorious he doth notoriously abuse his Reader For that Fitzh speaketh not at all of a Premunire but only That if one sueth another out of the Realme for debt or other cause wherof the kings Court may haue conusance he shall haue a prohibition against him And so if one Clearke sue an other vpon title of Collation oâ— any Prebendary out of the Realme c. he shall haue also this prohibiâ—ion And if a man purchaseth out of the Court oâ— Rom against any Clerk or others any Citation directed vnto the Archbishop of Canterbury or any others to cite such a person to appeare beâ—ore the Pope c. to answere for the Collation or Presentation vnto any benefice or Prebendary a prohibition shall lye in this Case Hitherto Fitzher in his writt of prohibition And this is all that he hath in that place of this matter So you see that all that Fitzherbert saith is but that a prohibitioÌ„ shall lye for suyng in the Court of Rome for debt or title of Patronage or such other temporall Causes wherof the Kings Court may haue conusance and he maketh no mention of any Premunire And yet euery puny StudeÌ„t in the Law can tell how much difference there is betwixt a Premunire and a Prohibition that Syr Edward delt not sincerely wheÌ„ he brought in the one for the other 95. So then we soe what striuing wresting worse vsage M. Attorney offereth to his law-bookes to make them seeme to say somwhat against vs and for Protestant religion against which most of them were written as all of them before our times without exception in fauour of the Catholicks We see also the pittifull choice that M. Morton hath made of these fiue Cases out of all M. Attorneys Reportable Reports against the Popes supreme Ecclesiasticall authority
of beasts imprinted in their flesh by launcing cutting the same first to the end that the sayd painting with terrible colors might the better sinke in and Pliny doth adde that the very women also did obserue the same custome which seemeth also to haue continued somes ages after for that the Poet Claudianus vnder the Emperours Arcadius and Theodosius about foure hundred yeares after Christ speaking of the Britans of his time sayth of them Inde Caledonio velata Britannia monstro Ferro picta genas cuius vestigia verrit Caerulus oceaniqueâ—stum mentitur amictus In which verses the words ferro picta genas and caerulus amictus signifying that their faces were paynted with the dint of iron their habit blew do importe that this law and custome was long continued among them yet neuer receyued by the Romans Saxons nor Danes And Caesar yet goeth further shewing their Lawes and Customes about their wiues and Children Vxores habent deni inter se communes c. Ten men agreeing among themselues haue their wiues and Children in common 35. The same Caesar also and Diodorus Siculus and Strabo which two lyued soone after him vnder Augustus Caesar do recount other Lawes and Customes of the Britans of their dayes wherof we see no signe in ours as their order of fight in Chariots and Coaches with other thinges belonging to Chiualry And Pomponius Mela lyuing vnder the Emperour Claudius that went with an imperiall army into England some fyftie yeares after Christ saâ—th of the Britans in those dayes Inculti omnes tantùm pecore â—inibus dites that they were all withoâ—t poâ—icie and only rych by their cattle and pastures which importeth thaâ— they had no good Lawes to lend the RomaÌ„s in those daies and much lesse to deliuer them ouer to posterity 36. And yet further an hundred fyfty yeares after that againe wrote Cornelius Tacitus vnder the Emperour Domitian as also Solinus before mentioned who do both concurre in this that in their dayes the Britans were a people as on the one syde stout and valiant so on the other very rude and vnciuill for policy without discipline and order as also Counsaile or good direction especially in their warres Whervpon Tacitus sayth Dum singuli pugnant vniuersi vincuntur whiles euery one fighteth a part after his owne fancy they are all ouercome And I might hereunto adde diuers Greeke Historians as well as Latyn specially Herodian Dio Nicetus Xephilinus and others writing oâ— the Brytans their manners and customes vnder the Raigne of Seuerus the Emperour who went thither in person and dyed in Yorke two hundred yeareâ— after Christ and almost 300. after the Brytans had byn vnder the Roman gouerment and yet do the sayd Historiographers recount such extreame want of pollicy and Lawes among the Britans at that tyme which I take to be meant principally of the Northerne as scarce of any Countrey the like Nec moenia habent say they nec Vrbes nudi sine calceis vestis vsum ignorantes c. they had neither walles nor townes bâ—t weÌ„t naked without shoes not being acquainted with the vse of apparrel And to the end we may not think that the Southerne pâ—rtes were in much better state for policy Dio Nicetuâ— recouÌ„teth the speach of the Qu. Brundeuica vnder the Raigne of Nero which Queene dwelt in the most ciuill wealthy partes of Britany and yet obiected to the Romans that they were delicate and could not liue without corne meale wyne oyle shelter of house and other lyke commodities Nobis autem sayth shee quaeuis herba radix â—ibus est quiliâ—et succus oleum omnis aqua vinum omnis arbor domus But vnto vs and let vs marke that she putteth her seâ—fe among the â—est being a woman Captaine and Queene euery herb and roote is meate euery ioyce is oyle euery water is wyne and euery tree is a house Thus shee 37. And now here Syr Edward perhaps will say aâ— before he did of Theologicall authorities that I do alleage all these Histories ad faciendum populum which I do not but rather to shew that he hath no cause to vaunt that either himselfe or his fellow-Iustice are such Antiquaries as here he mentioneth not hauing seene as it seemeth nor considered this variety of auncient Histories wherby is proued that the lawes and customes of the Brytans were not such from the beginning and before Rome was builded as they may be preferred for their antiquity and excellency before the Roman Lawes whereas almost a thousand yeares after that the Roman Lawes had byn receyued in the world the Brytans had scarce any vse of policy or common Ciuility though afterward when by the benefit of Christian Religion especially they receiued the same they exceeded perhaps many otheâ— Countries in piety and religious polycie 38. Thus then is the first medium of Syr Edwards probation ouerthrowne about the antiquity of the Brytan Lawes before the Romans which is neyther true nor yf it were yet maketh it nothing to his purpose to pâ—oue that the CoÌ„mon Muâ—â—cipall Lawes of England were of that antiquity as prâ—sently shal be shewed And as for the other two instances that the sayd British Lawes are more anâ—ient then the Lawes of the Venetians which are most ancient of any othâ—r Nation of the world that worshipped God this I say is litle lesse thâ—n ridiculous For that first the Venetians as Blondus theiâ— owne Countrey man and Historiographer testifieth writing of their antiquity began â—irst to build their Citty and Common wealth vpon the yeare oâ— Christ foure hundred fiâ—ty and six which was vpon the point of twelue hundred yeares after the building of Rome and consequently the Venetian Lawes cannot be imagined to be oâ— more antiquity then the Romaâ— and much lesse then of other Nations more ancient then the Romans as the Carthaginians Grecians Aegiptians Medians Persians Syrians and the like 39. And secondly wherâ—as to temper the matter somewhat he addeth that the British Lawes are more anciâ—nt then of any naâ—ion of the world that worshipped God this addition of worshiping God is both from the purpose vntrue From the purpose for that Syr Edward exprely heere preteÌ„deth to speake only of humane Lawes so as whether the people whose Lawes they are do worship God or not is from the question Besides that M. Cooke I thinke will not deny but that the Romans worshipped God and were Christians at least many of them before the Britans if this made any thing to the purpose and yet will he haue the Britans Lawes to be more ancient then those of the Romans so as this circumstance of worshipping God is neyther true or to the purpose 40. Secondly it is vntrue that the British Lawes were before the Lawes of any Nation that worshipped God for that the Iewes worshipped God and may be presumed also to haue had some politicall Lawes for
their Ciuill gouerment among themselues long before the Britans yea before Moyses gaue them his written Lawes For that being a Nation so populâ—us as they were cannot well be imagined to hauâ— lâ—ued foure hundred yeares in Aegipt without some humane and Ciuill lawes among themselues also beâ—â—des those of the Aegiptians albeit they were forced alâ—o to kâ—epe perhaps the Aegiptians lawes which in that case may be accompted their lawes and so more ancient thâ—n thâ— Britans So as all these things were weakely considered by Syr Edward and he sheweth himselfe no good Antiquary though he would seme to couet much the opinion therof 41. But more then in any other point this defâ—ct of his is seene in setting downe his second Medium for proofe of the antiquity excellencie of his Municipall lawes in these words before recyâ—ed That if the ancient lawes of this noble Island had not excelled all the others speaking of humane it could not be but some of the seuerall Conquerours and Gouernours therof that is to say the Romans Saxons Danes or Normans and especially the Romans would haue altered or changed the same Where yow see he holdeth it for a supposed knowne receiued principle that none of all these Conquerous people entring into Britany did alter or chaÌ„ge the old British lawes and consequently that those which now we call the CoÌ„mon lawes of England were also the lawes of the ancient Brytans and theirs ours which is one of the most solemne absurdities in my opinion that euer proceded from the mouth of a man pretending to be learned in his owne Countrey affayres 42. For firâ—t besides the demonstration before made to the contrary out of reason and euident probability that the Britans generally hauing receiued very litle vse of Ciuill policy vntill two hundred yeares after Christ vnder the Emperour Alexander Scuerus and almost three hundred after they had byn vnder the Romans it was not likely that the sayd Romans their Conquerours would admit their lawes customes so much condemned by them of barbarismâ— and inciuility as by the former related Authors both Greeke and Latin hath byn declared Besides this I say there is expresse mention found in antiquity though M. Attorney seemeth not to know it of the change of those Lawes and customes by the Roman Emperours 43. For first Pliny that lyued presently after the Apostles recounteth that the Emperour Tiberius Caesar vnder whome our Sauiour suffered did take away diuers of their Lawes and customes especially about sacrificing of men women and Children in luâ—o Andates in a certaine groue dedicated to that Pagan Goddesse which signified Victory He remoued also Druidâ—s and cancelled their Lawes which were the instruments and ministers of those Cruelties â—hereupon the sayd Pliny maketh this consideration Non satis aestimari potest quantum Romanis debeatur qui sustulere Monstra in quibus hominem occidere religiosissimum erat mandi vâ—rò etiam saluberrimum It cannot be sufficiently esteemed how much the Britans do owe to the Romans that tooke away these monstrous customes and lawes wherby it was held a most religious thing to kill men and a most wholesome to eate them Wherby appeareth that diuers lawes of the Britans were changed by the Romans and namely those of their Pagan sacrifices which were their principall albeit the Romans were yet heathens and Pagans themselues so as this ouerthroweth quite Syr Edwards false principle that British lawes were neuer changed nor altered by the Romans 44. But yet further when very shortly after the forsaid speach of Queene Brundeuica that was vnder Nero Vespasian came to gouerne Britanny and had that famous victorie wherin he tooke King Aruiragus and his some Guiderius and diuers other principall persons of the Brytish Nobility Hector Boethius in his History of Scotland doth shew that vpon mature deliberation Iâ—ra paternas leges postea Britonibus ademit Vespasianus Romanas introduxit Vâ—spasian tooke away and changed their old British lawes customes and introduced those of the Romans in place therof Behold heere a whole change of lawes denied so resolutly by our two Iustices as you haue heard before were they good Antiquaries in this thinke yow If yow say yea I will oppose against them our other English Antiquary and King of Armes VVilliam CaÌ„bdâ—n who in his Description of Britany speaking of the said Emperour Vespasian and of his sonne Domitian in their gouerment of England sayth Britannis iugum impositum c. At this time the Britans receiued the Roman yoke foure Legions of souldiers being appointed to lye there that with terrour should hold them downe c. Neque legibus suis patrijs vti permissi sunt sed magistratus à populo Romano cum Imperio securibus missi qui ius dicerent Neither were they permitted to vse any more their owne Countrey lawes but Magistrates and Officers were sent to them from the people of Rome with supreme authority and â—nsignes of Iustice to administer law vnto them So he 45. What will Syr Edward say to this Was this a change of lawes or no And will he still stand to his former assertion that the Brytish lawes were neuer altered by the RomaÌ„s But let vs adde yet one witnes more and that of great credit to wit Gul. Malmesburiensis who as well in his story of England as in his Fasti signifiâ—th the same alteration saying in the later That vpon the fourth yeare of Domitian which was the 86. of Christ Britannia nunc penitus primùm subiugata ductu Agricolae auspicijs Domitiani Britany was now first of all vtterly subdued by the army of Agricolaâ— and authority of Domitian the Emperour c. which full and complete subiugation includeth also the necessity to accept of the vanquishers lawes and not to giue lawes to them And what will Syr Edward now say to this also Will he recall his temerarious assertion Will he remember now his former saying that Ignorance and bouldnes do commonly concurre 46. But let vs go yet forward for as we haue demonstrated of the Romans in this affaire so might we shew no lesse also of the other three nations by him mentioned â—o wit the Saxoâ—s Danes and Normans For that the Saxoâ—s comming in after the departure of the Romans about 450. yeares after Christ and falling into such extreme emnity and breach with the Brytans as our histories do testify both in regard of their quarrell about the Countrey and possession therof as also for that the Britans were Christians and the Saxons pagans so as one did not so much as communicate with the other but as enemies in the field This being so I say yt is not like nor any way in reason probable that they the sayd Saxonsâ— being Conquerours and such professed enemies would admit the Britans lawes or gouerne themselues thâ—rby both for that they brought theyr owne lawes with them nor vnderstood nor regarded those of their aduersaries conquered
conuerted Do yow see how confidently he writeth And do yow thinke that he will be a true Conuertite in deed If he meaneth sincerly we haue alleaged him now many and sufficient groundes which either he must acknowledg or take vpon him to answere them Let vs heare how he goeth forward 63. I desired quoth he to know some particulers as many as they would at length their great desyre was to see some proofs that the common law in these 4. cases was before the Conquest as now it is First that the Queene being wise to a King regnant was a person sole by the common law to sue and be sued to giue and take c. solely without the King Secondly that a man seised of lands in see simple shall â—orseit his landes and goodes by Attainder of â—ellony by out-lawry and therby his heirs should be desinherited Thirdly that a woman being attaynted oâ— petite treason for killing her husband should be burnt Fourthly whether the ancient lawes of England did permit any appeale to Rome in causes spirituall or Ecclesiasticall 64. Thus farre the questions framed by Syr Edward insteed of his student for that he persuaded himselfe to haue somewhat to say for their proofe though in deed it be nothing as presently yow will see for that no student of any capacity would haue proposed these particuler cases to proue a generall assertion that the lawes of England were the most ancient of all other lawes For though we suppose all these 4. points were true and to be proued as he setteth them downe that they were in vse before the Conquest yet do they not inferre that the moderne English lawes are the same without change or alteration that were of the Britans Saxons and Danes For that diuers particuler cases may be common to different lawes as there were in the lawes of the LacedimoniaÌ„s Carthaginians Athenians Romans and yet we may not for that cause conclude that they were the selfe same lawes deliuered from the one people to the other without alteration which is heere the badde inference of Syr Edward But now let vs see whether these particulers can be proued as heere they are promised and first let vs heare him vaunt yet once againe 65. I had no sooner sayth he seene these questions but instantly I found direct and demonstratiue answers to the same Behold the fertility and felicity of his wit that fyndeth instantly so direct and demonstratiue proofes that is to say such as are euident cleere vniuersall and irrefragable for such only may be called demonstratiue according to the rules of Logicke and yet shall yow now presently perceaue that no one of them is demonstratiue For the first sayth he behold an ancient Charter made long before the Conquest which followeth in these wordes Our lord Iesus Christ raigning for euer I Ethelswith Queene of the Mercians by Gods graunt with consent of my Eldermen will giue by graunt to Cuthwolfe my most faythfull seruitour a certaine peece of land being part of my peculiar power that is to say a peece of land of 15. Manses in a place which is called Laking for his obedience and payable money in this manner that is to say a thousand fiue hundred shillings of syluer and gold or fifteene hundred siâ—les that he may haue possesse and enioy at his pleasure as long as he liueth and after his end and limit of his dayes he may leaue it to whome soeuer he will for euerlasting power and perpetuall inheritance And this my donation is couenanted in the yeare of our Lords Incarnation 868. the first Indiction And we do charge all secular powers in the name of God the Father the sonne the holy ghost to obserue the forsaid inuiolate These witnesses subscribing and consenting therunto whose names heere recited are vndâ—râ—râ—tteÌ„ I Ethelred King of the Westsaxons haue consented and subscribed I â—urghred K. of the Mercians haue coÌ„sented subscribed I Ethelswith Queene haue consented and subscribed c. 66. Thus farre this Charter but now I would demaund what Syr Edward meaneth to proue heerby He pretendeth to proue that the common law was the same before the Conquest as it is now about the priuiâ—edge of Queenes to be able to buy and sell giue and take of theÌ„selues solely without licence of their husbandes But first if he could shew this or somewhat like to this out of some particuler fact of some particuler English Queene before the Conquest yet what were this to proue eyther the antiquity of the common law before the Danes Saxons and Romans as heere he promiseth or that this particuler fact of Qu. Ethelswith was a law or according to the coÌ„mon law in those dayes doth one particuler instance or action make a law or proue a law with Syr Edward Might not Queene Ethelswith make that sale and gift which heere she doth to her seruant out of her own dowry portion or inheritance which she brought with her from her Father and brother Kings of the VVest Saxons And if she did the case proueth nothing For so may not only married Queens but all other wiues also giue of their owne 67. And supposing she had receaued that land in gift from the King her husband and had had his leaue and consent also to alienate sell or giue the same it had byn no proofe of a common law but a particuler fact by licence of her husband as euery one will confesse Now then that not only one but both these conditions were in this fact of Queene Ethelswith to wit that she disposed of her owne this also with the speciall consent of her husband appeareth clearly by the very wordes of the Charter it selfe where first it is sayd Donabo aliquam telluris partem meae propriae potestatis I will giue a certaine part of land which is of my owne proper power that is to say of my owne right and possession And secondly both her brother King Ethelred of the VVest Saxons in whose dominions it may be that the sayd pâ—ece of land or part of it did lye and her husband King Burghred of the Mercians did expresly consent subscribe and beare witnesse therunto And was this a good exaÌ„ple to proue that it was a law at that tyme that euery Queene might take giue solely without the King her husband did Syr Edward when he was Attorney make such good consequences and frame such demonstratiue arguments in his pleadings at the barreâ— Surely among vs heere he would neuer haue gotten haâ—fe his wealth by such like disputing 68. But to vnderstand better this Charter it is to be considered that as all our ancient wryters do testify this King Burghred of the Mercians being in great distresse by the â—anes of one syde and the northerne Britans of the oâ—her â—â—at ioyntly inuaded his Kingdome knowing not what to do for defending the same which after also was lost to the Danes he made recourse to Athulâ—hus
Clâ—ricali esse nudatos correctioni fori saecularis addictos that all such as had beene twice married are depriued of all priuiledge of Clergy men and are subiect to the iurisdiction of the secular Court There arose a question in England in tyme of Parliament how this decree of the Pope should be executed and obserued some of the Prelates inclining that it should be vnderstood only of such Bigamies as should fall out after the CouÌ„cell and therfore demaunded to haue deliuered into their hands and freed from the temporall gaole such as presently were in prison and had beene bigamies before the Councell But the K. his Counsell were rather bent to haue all bigamies excluded froÌ„ that priuiledge both present and to come for that the Popes Constitution now alleaged seemed rather to sound that way for that it is generall and without exception Vpon which determination produced the Attorney hath this note insteed of an inference Obserue saith he how the King by aduise of his Counsell that is by authority of Parlament expounded how this Councell of Lyons should be vnderstood and in what sense it should be receyued and allowed And therof would inferre that the king and his Counsell held themselues to be aboue the Pope for that they tooke vpon them to determine in what sense the Popes decree should be vnderstood And yet M. Attorney protesteth as before you haue heard that he maketh no inferences but only alleageth the bare law books as they lye but yet heere euery man will see that it is vntrue for that heere he maketh an inference and that very false and impertinent For he should rather haue made the quite contrary inference to wit that for so much as the King and his CouÌ„sell did subiect themselues to the acknowledgment and obseruation of the Popes decree and did accommodate the law of England therunto which before was otherwise they did therby acknowledg that the Popes power in making lawes for Ecclesiasticall matters was Superiour to that of the King and can Syr Edward or any man else deny this consequence And this shall suffice for this case but only I may not let passe this one note by the way that wheras M. Attorneys words are that certayne Prelats when such persons as haue beene attaynted for fellons haue praied to haue them deliuered as Clerkes he forgot himselfe for that the wordes in the booke are quando de felonia rectati â—uerâ—nt when they had beene arraigned of â—elony not when they had beene attainted of felony for that Clerkes beâ—ore attainder were wont to be deliuered to their Ordinaries but being once conuicted and attainted they cannot make their purgation afterward as appeareth by Stanford l 2. c. 49. 87. Vnder K. Edward 2. the Attorney writeth thus Albeit by the ordinance of Circumspectè agatis made in the 21. yeare of K. Edward 1. and by generall allowance and vsage the Ecclesiasticall Courts hâ—ld plea of Tythes obuentions oblatioÌ„s mortuaryes c. yet did not the Clergy thinke themselues assured nor quiet from prohiâ—itions purchased by subiects vntill that K. Ed. 2. by his letters patents vnder the great seale and by conseÌ„t of Parlament c. had graunted vnto them to haue iurisdiction in those cases c. So M. Attorney And what doth he inferre heerof thinke you the questioÌ„ in hand teacheth vs to wit that K. Edward 2. is proued by this to haue had supreeme spirituall iurisdiction An inference you will say very farre fecht but this is the manner of Syr Edwards disputing and yet he saith that he maketh no inference nor argumentatioÌ„ at all marke then his guilfulnes 88. He coÌ„â—esseth that before king Edward the 2. there was generall allowance and vse of Ecclesiasticall Courts in England for Ecclesiasticall matters as appeareth by the ordinance of Circumspectè agatis vnder K. Edward 1. and of magna Charta before him againe vnder K. H. 3. many other proofes he confesseth also that this vse and allowance was confirmed according to the Custome of his Ancestours by the same K. Edward 2. by a new statute made in the ninth yeare of his raigne called Articuli Cleri But what of this hence he inferreth that the king was supreme in spirituall authority for that he graunted â—aith he to them to haue iurisdiction and do you see the good consequence I will reason with him in the like The parlameÌ„t de prerogatiuis Regis held in the 17. yeare of the same K. raigne did nuÌ„ber and explaine and confirme all the kings prerogatiues which were allowable at the coÌ„mon law ergo this statute did giue vnto the king his prerogatiues and that he had them not before which consequeÌ„ce I doubt not but M. Attorney himselfe will deny to be good and yet is it as good as the other for K. Edward 2. in his statute of Articuli Cleri did but concurre with his Ancestours in confirming those priuiledges which had beene vsed before time out of mind and in subiecting his temporall lawes to the lawes of the Church in the cases there specified so farre of was he froÌ„ taking supreme iurisdiction vpon himselfe as falsely and fondly M. Attorney would make his reader belieue But let vs passe from K. Edward 2. to his sonne K. Edward the third out of whose raigne M. Attorney alleageth more examples instances then almost out of all the rest wherof we shall touch some few for all would be ouer longe and perhaps we shall desceÌ„d no lower then the time of his raigne reseruing the more â—ull discussion of these and other exaÌ„ples vntill the Catholicke Deuine or some body for him shall prepare a second edition of his forsaid answer to Syr Ed. Reports 89. First then fol. 14. b. of this his fifth part of Reports he reciteth out of the raigne of this K. Edward 3. but quoting no particuler place that it is often resolued that all the Bishopricks within England were â—ounded by the kings progenitors and therfore the aduowson of them all belonged to the king c. And that when a Church with cure is void if the particulâ—r Patron or Bishop of that Diocese do not present another within the space of 6. monethes then may the Metropolitan conferre the same and if he also do it not within six other moneths then the comon law giueth to the king as to the supreme within his owne kingdome not to the Bishop of Rome power to prouide a competent pastour for that Church This is Syr Ewdards narration full of deceipt as now you shall see For albeit the coÌ„mon law doth giue to the king as to the supreme within his owne Kingdome to present by lapse as hath beene said yet not as supreme in spirituall authority as he would haue his reader mistake and belieue but as supreme in the temporall patronage or as supreme temporall Patron of that Benefice to whoÌ„ in such cases the aduowson of presenting
of humble subiection which we haue receiued from our Fathers of the first six hundred yeares and not so only but which as your Barkley witnesseth the vniuersall Christian world imbraced with common consent for a full thousand yeares So he 28. And do yow see how this Mynister tryumpheth Who would thinke that men of conscienâ—e or credit could make such ostentation vpon meere lyes deuised by themselues as now we shall shew all this brag to be And as for D. Barkley alleadged â—n the last lynes let any man read him in the bookâ— Chapter cyted and he will wonder at the impudency of this vaunter for he speaketh no one word of gathering Councells or comparison of spirituall authority betweene the Pope and Emperour concerning their gathering of Councells or Synods but of a quite different subiect of taking armes by subiects against their lawfull temporall Princes And what will our Minister then answere to this manifest calumniation so apparently conuinced out of D. Barkley But let vs passe to the view of that which toucheth Cardinall Bellarmine against whom all this tempest is raised 29. First then we shall set downe his words in Latyn according as T. M. cyteth him in his margent Tunc Concilia generalia sievant sayth he non sinâ— Imperatorum sumptibus eâ— tempore Pontifex subijcieâ—at se Imperatoribus in temporalibus ideo non poterant inuito Imperatore aliquid agere idcirco Pontiâ—ex supplicaâ—at Imperatori vt iuberet conuocari Synodum At post illa tempora omnes causae mutatae sunt quia Pontifex qui est Caput in spiritualibus non est subiectus in temporalibus Then in those daies generall Councells were made not without the charges of Emperours and in that tyme the Pope did subiect himselfe vnto Emperours in temporall affaires and therefore they could do nothing against the Emperours will for which cause the Pope did make supplication to the Emperour that he would commaund Synods to be gathered but after those tymes alâ— causes were changed for that the Pope who is head in spirituall matters is not subiect in temporall affaires So he 30. And here let vs coÌ„sider the varietie of â—leights and shifts of this our Mynister not only in cyting Bellarmynes wordes falsely and against his meaning and drift in Latin wherof we shall speake presently but in peruerting this Latin that he hath so corruptly set downe in his former English translatioÌ„ For first hauing said according to the latin that generall Councells in these daies were not gathered without the cost of Emperours he addeth presently of his owne were made by their consents which is not in the Latin then he cutteth of the other words immediatly ensuing which conteine the cause to wit for that the Popes subiecting themselues in those dayes touching temporalities vnto the Emperours as hauing no temporall States or dominion yet of their owne could do nothing without them and therefore did make supplication to the said Emperours that they would coÌ„maund Synods to be gathered which T.M. translateth that they would gather Synods as though Bellarmine did affirme that it lay in the Emperours by right to do it but after those tymes omnes causae mutatae sunt all causes were changed but he should haue said are changed as Bellarmyns true words are omnes istae causae all these causes are changed to wit foure sortes of causes which he setteth downe why generall Councells could not be well gathered in those dayes without the Emperours help and authority with causes are guilfully cut of by this deceiuer as in like manner the last words put downe here by himselfe Pontifex non est subiectus in temporalibus are falsely translated cannot be subiect in temporall And againe afterward Popes might not be subiect in temporall matters which is to make Bellarmine contrary to himselfe who saith a litle bâ—fore that the Popes did subiect themselues for many yeares wherby is proued that they could do it But Bellarmyns meaning is that in right by the prehemynence of their spirituall dignity they were exempted and not bound therunto 31. And thus much now for the corruptions vsed in the words heere set downe both in Latin and English But if we would go to Bellarmyne himselfe and see his whole discourse and how brokenly perfidiously these lynes are cut out of him and heere patched togeather as one entire context contrary to his drift and meaningâ— we shall maruaile more at the insolencie of Tho. Morton tryumphing ouer his owne lye as before hath byn sayd For that Bellarmyne hauing proued at large and by many sortes of arguments and demonstrations throughout diuers Chapters togeather that the right of gathering generall Councells belongeth only to the B. of Rome and hauing answered all obiections that could be made against the same in the behalfe of Emperours or other temporall Princes granting only that for certaine causes in those first ages the same could not be done in respect of temporall difficulties without the help and assistance of the said Emperours that were Lords of the world he commeth to make this conclusioÌ„ which heere is cyted by T. M. but in farre other words and meaning then here he is cyted Yow shall heare how he setteth it downe and therupon consider of the truth of this Mynister Habemus ergo sayth he prima illa Concilia c. Wee haue then by all this disputation seene how those first Christian Councells were commanded by Emperours to be gathered but by the sentence and consent of Popes and why the Pope alone in those dayes did not call Councells as afterward hath byn accustomed the reason wasâ— not for that Councells gathered without the Emperours coÌ„seÌ„t are not lawful as our aduersaries would haue it for against that is the expresse authority of S. Athanasius saying QuaÌ„do vnquaÌ„ iudicium Ecclesiae ab Imperatore authoritatem habuit When was it euer seene that the iudgment of the Church did take authority from the Emperour But for many other most iust causes was the Emperours consent required therin c. So Bellarmyne 32. And heere now see that Bellarmins drift is wholy against M. Mortons assertion for that he denieth that euer the Emperours had any spirituall authority for calling of Councells but only that they could not well in those daies be made without them and that for foure seuerall causes wherof the first was for that the old Imperiall lawes made by Gentills were yet in vse wherby all great meetings of people were forbidden for feare of sedition except by the Emperours knowledge and license The second for that Emperours being temporall Lords of the whole world the Councellâ— could be made in no Citty of theirâ— without their leaue The third for that generall Councells being made in those daies by the publike charges and contributions of Cytties and especially of Christian Emperours themselues as appeareth by Eusebius Theodoretus and other writers it was necessary
here recounteth them Et hoc regnum terrenum vmbra tamen suit spiritualis regiminis in Ecclesia Christiana and yet this earthly Kingdome of the Iewes was a shaddow of the spirituall gouerment that was to be in the Christian Church meaning therby the most excellent spirituall power and gouerment ouer soules which Christ was to institute in his Church at his comming in flesh to wit the power of absoluing from synnes vpon earth the assistance giuen by the Sacraments and the like were shadowed in a certaine manner by the earthly Ecclesiasticall Kingdome among the Iewes And how doth T. M. now translate these wordes and frame our obiection out of them The old Testament sayth he was a figure of the new in Christ therfore in the new the Popedome is the substantiue c. Here are two short propositions you see the Antecedent Consequent and both framed with falshood for that the Antecedent set downe as out of Salmeron is not that which he affirmeth in his Latin words as already we haue shewed though otherwise in it selfe the proposition be true to wit that the old Testament was a figure of the new in Christ nor will I thinke T. M. denie it There followeth then the Consequent or second proposition that therefore in the new the Popedome is the substantiue which is no lesse corruptly inferred in our name then was the Antecedent affirmed for that we do not inferre nor yet the Author Carerius in the said second propositioÌ„ or CoÌ„sequence by him alleaged that for so much as the old Testament is a figure of the new therefore in the new the Popes spirituall authority is the substantiue c. for that this were a weake inference as euery man seeth Nay Carerius maketh no infereÌ„ce at all in the place by him alleaged but only vseth that similitude which before you haue heard of the substantiue and adiectiue So as this inference is only a fiction of the Minister to make himselfe other men merry and to giue occasion to play vpon his aduersarie with reproach of Childhood and babish grammer as now he hath done but indeed the true Consequence that may be made vpon the Catholicke Authors words which hitherto he hath alleaged is only this that for so much as the Kingdome and gouerment among the Iewes euen in Ecclesiasticall things was but earthly and a figure or shadow in respect of that which was to be ouer soules in the Christian Church it followeth that this in respect of spirituality was to be much more emynent then the other as the thing figured then the figure or shadow it selfe And what inconuenience hath this doctrine that it should be called Childhood and babish grammer So much I set downe in my former reprehension of M. Morton for this abuse of Salmeron all which he now in his last Reply thought best to passe ouer with sylence for that belike he esteemed it not sufficiently insisted vpon by me therby to presse him to answere it But this may be amended at another tyme and so I passe on now to recount others of like sort THE NINTH Pretermitted falshood by Thomas Morton §. IX THERE followeth now against Dolman a like sleight thus recorded by me in my booke M. Mortons second reason why his Maiesties Catholicke Protestant subiects may not liue togeather in England is For that all Popish Priests sayth he dâ— attribute a double prerogatiue ouer Kings that is to say a Democraticall and Monarchicall soueraigne Ciuill power the first to the people the second to the Pope And for proofe of the first concerning the people he alleageth foure seueral authorities of Catholick wryters but so corruptly perfidiously as if nothing els did shew his talent of cogging treacherous dealing this were sufficient to discouer the same though afterwards greater store will occure we shall runne ouer briefly all those foure 45. First he saith that Dolman in his Conâ—erence about Succession hath these words The common wealth hath authority to choose a King and to lymit him lawes at their pleasure which if it were truly alleadged as it lieth in the Author yet here is no mention oâ— the people or of Democraticall state but only of the Common wealth which includeth both nobility and people and all other States Secondly Dolmans words are not of choosing a King but of choosing a forme of gouerment be it Democraticall Aristocraticall or Monarchicall Let vs heare the Author himselfe speake In lyke maÌ„â—â—r saith he it is euideÌ„t that as the CoÌ„mon wealth hath this authority to choose chaÌ„ge her gouerment as hath byn proued so hath it also to lymit the same with what lawes and condiâ—ions shee pleaseth wherof ensueth great diuersâ—â—y of authority aâ—d power which ech one of the â—ormer gouerments hath in it selfe So he Where we see that Doleman speaketh of the power which a Common wealth that is deuoid of any certaine gouerment to chuse vnto themselues that forme that best liketh theÌ„ with the limitatioÌ„s they thinke most expedient so we see in Englaâ—d France Polonia Germany Venice Genua and in the Empire it selfe different formes and manners of gouerment with different lawes and lymitations according to the choice and liking of ech Nation This place then of Dolman is corrupted by T. M. both in words and sense For he neither speaketh nor meaneth as the false Minister auoucheth him of gyuing Democraticall power to the people ouer Princes established 46. So wrote I in my former booke And albeit I do not insist and dwell vpon the matter so long as vpon some other sleights yet doth it conteine notable falshood yf yow consider it well first to alleage the words of an Author that are not his and theÌ„ to inferre therof that which neither the words theÌ„selues do beare nor the Author euer dreamed of 47. And here I might alleage diuers other Wryters but especially Iesuits wrongfully abused by him both in cyting of their works and words and falsifying their meaning as namely those three whome he bringeth in for witnes in the end of the fourth Chapter against Equiuocation euen in those places where they do most resolutely affirme Equiuocation to be lawfull namely Azor Emanuel Sà Maldonatus but these will haue their place afterward And so from Iesuits I passe to other Authors who haue receiued the like sort of dealing from him THE TENTH Pretermitted falshood by Thomas Morton §. X. AS you haue heard how M. Morton hath dealt fraudulently with the Iesuits so shall you see him vse the same measure also towards others as namely toward the Paduan Doctor Carerius out of whome he hath made great styrre before if you remember in answering three seuerall tymes at leaâ—t a certaine reprehension of myne for that he cyted the words Celsus verè for Celsus verò though I obiected the same but sleightly by the way said expresly that I held yt for a triâ—le But now you shal
graÌ„t the said immunityes and priuiledges And also those words of King Edwyn which of his Catholike predecessors S. Leo King Kenulphus were granted And againe By â—orce of the Letters and Bulles aâ—oresaid the said village of Culnam was a Sanctuary and place priuiledged 63. And hereby also is euident that the King did not by his Charter in Parlament for it appeareth to be made by the Counsaile and consent of his Bishops and Senators not by Parlamâ—nt as M. Attorney doth misreport it neither was there any Parlament held at that time in the land or many hundreth yeares after for as it appeareth by Holinsheads Chronicle pag. 34. the first vse of Parlaments in England was in the tyme of King Henry the first it is cleare I say that the King did not discharge and exempt the said Abbot from Iurisdiction of the Bishop nor did grant vnto the said Abbot Ecclesiasticall IurisdictioÌ„ within the said Abbey neyther had that abbot any Ecclesiasticall IurisdictioÌ„ deriued froÌ„ the Crowne But as it appeareth by the autheÌ„tike report of the Case the Pope the King did ioyne both in making the said Sanctuary according to their seuerall powers authorityes So that the exemptioÌ„ from Episcopall IurisdictioÌ„ proceeded duly from the grant of Pope Leo as likewise the exeÌ„ption froÌ„ all Regall temporall Iurisdiction proceeded froÌ„ the Charter of King Kenulphus Note also that King Edwins Grant was only that the said Monastery should be free from all earthly seruitude toucheth not any spirituall immunities or Iurisdiction at all 64. Thus far my friend out of England and by this now you may see how well M. Attorney hath obserued his foresaid protestation that he had cyted the very wordes textes of the Lawes without any inference argument or amplification at all And this being my friends aduertisment from England with like obseruation of manie other places cyted by M. Attorney with like fydelity I thought good to produce this one amongst manie being the first in order for a tast in this place reseruing the rest to a fitter or at leastwise to a second edition of the foresaid answere of the Catholike Deuine where euery thing may be referred to his due place and with this will I end this Chapter Thus far wrote I at that tyme in charg of Syr Edward THE DISCHARGE AND Reckoning about the former Charge made to Syr Edward Cooke §. V. YOV haue heard now this Charge how important substantiall yt is and who would not haue thought but that either Mâ— Morton or Syr Edward himself would haue answered somwhat to the same in their Replyes made since the publishing hereof or at leastwise would haue asmuch as mentioned yt especially M. Morton who in a certaine manner and law of vrbanitie was more obliged to take the patronage of Syr Edwards wrytings then himself for so much as the Charge was giuen in a Booke against M Morton and he had so highlie commeÌ„ded the sayd worke of his Reports as he calleth them The allwaies reportable and memorable Reports taking out of them sundrie heads of examples as his words are that improue the Popes Supremacie in causes Ecclesiasticall ascribe it to the king which that yow maie see how substantiall they are I shall take the paynes to set them downe here as they stand in his Book 66. I will point at some â—ew heads oâ— examples saith he oâ— our ancient ChristiaÌ„ kings which Syr Edward Cooke his Maiesties Attorney generall in his allwaies reportable memorable Reports hath lately published In the Raigne oâ— king Edward the fyrst saith he a Subiect brought in a Bull of excommunication against another Subiect oâ— this Realme published it But yt was answered that this was thâ—n according to the ancient lawes oâ— England Treason against the King and the Offendor had byn drawen and hanged but that by the mercie of the Prince he was only abiured the Realme c. 67. At the same tyme the Pope by his Bull had by way of prouision bestowed a benefice vpon one within the Prouince of â—orke the King presented another the Archbishop reâ—useth the Kings presentation and yelded to the Popes prouision This Archbishop then by the common law oâ— the land was depriued oâ— the lands oâ— his whole Bishopricke during lyâ—e And in the Raigne of king Edwâ—rd â—he third the king presented to a Benâ—â—ice his Presentee was disturbed by one who had obtayned a Bull from Rome for the which cause he was condemned to perpetuall imprisonment c. 68. In the Raigne oâ— Richard the second yt was declared in the Parliament R. 2. c. 2. that England had allwayes byn â—ree and in subiection to no Realme but imediatly subiect to God to none other and that the same ought not in any thâ—ng touching the Regaltie of the Crowne to be submitted to the Bishop of Rome nor the lawes of their Realme by him frustrated at his pleasure c. 69. In the Raigne of King Henry the fourth it was confirmed that Excommunication made by the Pope is oâ— no force in England c. In the Raigne of King Edward the fourth the opinion of the Kings Bench was that whatsoeuer spirituall man should sue another spirituall maÌ„ in the Court of Rome for a matter spirituall where he might haue remedy beâ—ore his Ordinary within the Realme did incur the danger of â—remunire being an heynons offence against the honour of the King his Crowne and dignity 70. Thus far M. Morton out of Syr Edward Cooke then he addeth Many other examples of like nature I pretermit and remit the Reader desirous to be further satisfied vnto the booke oâ— Reportes habet enim ille quod det dat nemo largiùs For he hath to giue and no man giueth more aboundantly This is his Encomium But what doth he giue truth or falshood sincere or wrested allegatioÌ„s matter to the purpose or impertinent That we shall here now discusse shew that neither the exaÌ„ples themselues are altogeather true as here they are set downe nor if they were yet doe they not prooue the purpose for which they are alleaged And first we shall proue the second which most importeth and it is easily proued 71. For first Syr Edwards purpose obligation was to proue that Q. Elizabeth by force of her temporall Crowne had all manner of Supreme authority in spirituall affaires no lesse then any person euer had did or could exercise in England as the words of the Statute haue alleaged by him and the purpose of M. Morton was as appeareth by the title of his Treatise to improue the Popes supreme authority in Causes Ecclesiasticall So as both their ends and purposes were by different meanes to proue that the Pope had no supreme authority in Ecclesiasticall matters for time past in England the one by ascribing all to the King the other by denying it to the Pope But this purpose of theirs
am content to stand heerin not only to any Iudge that sitteth vpon any of his Maiesties Benches at this day but euen to Syr Edward himselfe with condition only that he will be content with patience to heare my reasons which are these that ensue 4. First a Iudgment of Nihil dicit cannot proceed as I suppose but vpon one of these two causes that â—yther the party sayth nothing at all as when one standing at the barre to answere for his life will for sauing of his goods and lands vtterly hold his peace or when he speaketh his speach is nothing to the purpose But neyther of these causes can be iustly alleaged in our case Not the first for that the Catholicke Deuines printed Answere is large and conteyneth as I haue said aboue 400. pages in quarto Not the second as now shall euidently be declared ergo no iudgment could passe in iustice vpon a Nihil dicit in behalfe of Syr Edward against the sayd Deuine 5. Now then let vs come to demonstrate that the Catholicke Diuine did speake to the purpose in deed for better vnderstanding wherof we must recall to memory the true state of the question and what Syr Edward Cooke then Attorney vpon his offer and obligation was to proue to wit that Queene Elizabeth by the right of her temporall Crowne had supreme spirituall Ecclesiasticall authority ouer all her subiects in Ecclesiasticall affayrs as largely as euer any persoÌ„ had or could haue in that Realme and this by the common lawes of England before any Statute law was made in that behalfe For proofe wherof the sayd Attorney pretended to lay forth a great number of cases examples and authorityes out of his law-bookes which he said should proue the ancient practice of this authority in Christian English Kings both before and since the Conquest which being his purpose whatsoeuer his aduersary the Catholicke Deuine doth alleage substantially to ouerthrow this his assertion and to proue that Q. Elizabeth neyther had nor could haue this spirituall Authority though she had beene a man neither that any of her ancestours Kings and Queenes of EnglaÌ„d did euer pretend or practice the like authority this I say caÌ„not be iudged to be froÌ„ the purpose much lesse a Nihil dicit Let vs examine then the particulers 6. The Catholicke Deuine at his first entrance for procuring more attention in this great and weighty controuersy betweene M. Attorney and him about the Spirituall power and authority ouer soules in the moderne English Church doth auerre the question to be of such moment as that the determination of all other controuersies dependeth therof For that whersoeuer true â—pirituall authority and iurisdiction is found there must needs be the true Church to whom it appertaineth to determine of the truth of the doctrine taught therin or in any other false Church or coÌ„gregatioÌ„ for approuing the one condemning the other Wherof coÌ„sequently also depeÌ„deth euerlasting saluatioÌ„ or condeÌ„natioÌ„ of all those that belieue or not belieue those doctrines 7. He sheweth further that the life spirit essence of the true Church in this world consisteth in this true iurisdiction of gouerning and directing soules by preaching teaching bynding and absoluing from synne administring true Sacraments and the lyke And that where this true power Ecclesiasticall iurisdiction is not lawfully fouÌ„d but eyther none at all or violently assumed there wanteth this vitall spirit Neyther is it any Church at all but a Synagogue rather of Sathan and therfore that the firâ—t and chiefe care of euery Christian ought to be for sauing of his soule eâ—pecially in tymes of strife contentions and heresyes as are these of ours to study well this point and to informe himselfe diligently therin for if he fynd this he fyndeth all and iâ— he misse in this he misseth in all Nor is it possible for him to be saued 8. Moreouer he declareth that as in England at this day there be three different professioâ—s of religion the Protesâ—ant the Puritan and the Catholicke all three clayming this true and vitall power oâ— Ecclesiasticall iurisdiction to be in their Congregations so do they deriue the same from three different heads and fountaynes immediatly though all pretend that mediatly at leastwise it commeth from God The Protâ—stants taking it from the Temporall Princes authority giuen him from God by right of his Crowne as here is taught by M. Attorney The Puritans from the people gathered togeather in their congregation The Catholicks from their Bishops and Prelats descending by continuall succession from the Apostles to whome they belieue that Christ first gaue heauenly power and iurisdiction for gouerning of soules and especially to the cheefe Bishop Successor to S. Peter and not vnto temporall Princes or to lay people or popular Congregations made by themselues who cannot properly be called Successours of the Apostles and this difference as it is maniâ—est and euident so is it of such weight as it maketh these three sortes of men and their Congregations or Churches irreconciliable for that which soeuer of these three partes hath this true iurisdiction Ecclesiasticall hath therby the truâ— Church as hath beene said maketh the other two to be no Churches at all but rather prophane and Diabolicall Sâ—nagogues and such as haue neyther true Prelats nor Prelacy nor true preaching nor teaching nor SacrameÌ„ts nor absolutioÌ„ of sinnes nor any one act or thing oâ— a Christian Church in them And that the tryall of all this dependeth of the discussion of this controuersie betweene M. Attorney and him All this hath the Deuine in his first entrance And did he not herin speake to the purpose or can this be condemned for a Nihil diâ—it 9. Aâ—ter this for better vnderstaÌ„ding of the whole controuersie the Deuine layeth downe at large the ground beginning and origen of all lawfull power and iurisdiction of men ouer men both spirituall and temporall in this world shewing how both of them are from God though differently the spirituall being instituted immediatly by him and deliuered to the Apoâ—â—les and their Successours but the temporall mediatly that is to say giuen first to the Common wealth to choose what forme of gouernment they list and by mediation of that election giuing to temporall Princes supreme Authority in all temporall affaires 10. Then he â—heweth the different ends and obiects of these powers the end of spirituall power being to direct vs to euerlasting saluation both by instruction discipline direction and correction of the temporall or ciuill power by lyke meanes and helpes to gouerne well the Common wealâ—h in peace aboundance order iustice and prosperity And according to thâ—se ends are also their obiects matter meanes As for exaÌ„ple the former hath for her obiect spirituall things belonging to the soule as matters of sayth doctrine Sacraments such other and the later handleth the Ciuill affayres of the Realme and Common wealth as they
there are conteyned in one First then page 163. The Deuinâ— doth cite the seuerall lawes of William Conquerour out of Roger Houeden parte 2. Annalium in vita Henrici 2. â—ol 381. and by them doth proue that the Conquerour acknowledged the Popes supreme Authority in causes Ecclesiasticall And is not this a legall record And in the next two leaues following he doth cyte aboue twenty diâ—ferent places out of the Canon law and Canonists which though perhaps M. Attorney will not cal legall in respect of his Municipall lawes yet iudiciall records they cannot be dâ—nyed to be Moreouer pag. 245. 246. he doth alleage the testimony of Magna Charta cap. 1. made by king Henry the third as also Charta de â—oresta made vpon the ninth yeare of his raigne Charta de MertoÌ„ made in the 18. of the same Kings raigne as other lawes also of his made vpon the 51. yeare oâ— his Gouernement all in proofe of the Popes iurisdiction and are all legall authorityes And furthermore he doth cyte pag. 248. statut anno 9. Henrici 6. cap. 11. and pag. 262. he citeth againe the said Great Charter and Charter of the Forest made by K. Henry the 3. and confirmed by his sonne King Edward the first diuers tymes And pag. 271. he citeth two lawes anno 1. Edward 3. stat 2. cap. 2. 14. eiusdem statut 3. pro Clero and doth argue out of them for profe of his principall purpose against Syr Edward And how then or with what face doth or can the Knight auouch heere that the said Deuine alleageth no one Act or law of Parlament or other iudiciall record throughout his whole booke doth he remeÌ„ber his owne saying in this his Preface That euery man that writeth ought to be so carefull of setting downe truth as if the credit of his whole worke coÌ„sisted vpoÌ„ the certainty of euery particuler period Doth he obserue this How many periods be there heere false of his But let vs see further Pag. 277. in the life of king Edward the first the said Deuine doth cite an expreâ—se law of King Edward 3. Anno regni 25. as also pag. 283. he doth alleage statut de consult editum anno 24. Edwardi 1. and another Anno 16. Edwardi 3. cap. 5. and all these things are cited by the Deuine before he commeth to treat peculierly of the lyfe of King Edward the third but vnder him after him he doth not alleage as few as 20. legall authorities and statutes of Acts of Parlaments so as for M. Attorney to auouch here so boldly peremptorily as he doth that the Deuine in all his booke did not alleage so much as any one authority eyther out of the coÌ„mon lawes or Acts of Parlament or other legall or iudiciall record is a strange boldeneâ—se indeed And yet he sayth that he found the Author vtterly ignorant and exceeding bold But if he could conuince him of such boldnes as I haue now conuinced himselfe for affirming a thing so manifestly false I should thinke him bold indeed or rather shameles for that heere are as many vntruthes as there are negatiue assertions which is a Nimium dicit with store of witnesses 23. It is another Nimium dicit also yf yow consider it well that which he writeth in the same place that when he looked into the booke euer expecting some answere to the matter he found none at all Wheras he found all that is touched in the former Paragraph and much more which was so much in effect as he saw not what reply he could make therunto which himselfe confesseth a litle before in these wordes saying Expect not from me good Reader any reply at all for I will not answer vnto his Inuectiues and I cannot make any reply at all vnto any part of his discourse yet doth he endeauour to mitigate this also saying That the Deuine answereth nothing out of the lawes of the Realme the only subiect sayth he of the matter in hand And a litle afâ—er againe I will not sayth he depart from the State of the question whose only subiect is the Municipall lawes of this Realme But this reâ—uge will not serue both for that I haue now shewed that the Deuine hath alleagâ—d many testimonies out of the Municipall lawes as also for that this is not true that the question is only about these lawes for that as before hath beene shewed the true state of the question betweene vs is VVhether supreme Ecclesiasticall authority in spirituall afâ—aâ—res did remayne in Queene Elizabeth and her Ancestours by right of their temporall Crownes or in the Bishop of Rome by reason of his primacy in the Chaire of S. Peter which great matter is not to be tryed only as in reason yow will see by the Municipall lawes of England or by some few particuler cases deduced from them but by the whole latitude of diuine and humane proofes as Scriptures Fathers Doctors histories practises of the primitiue Church lawes both Canon and Ciuill and the like as the Deuine doth teach in differeÌ„t occasions of his booke adding further That albeit it should be graunted to Syr Edward that this matter should be discussed by the common Municipall and Statute lawes of England only yet would he remayne wholy vanquished as largely doth appeare by the deduction of the said Deuine throughout all the succession of English Kings from Ethelbert the first Christened to King Henry the 8. that first fell into schisme against the Church of Rome This then was a notorious Nimium dicit 24. Another is when he sayth in reproofe of the Deuines answer to his Reports that the booke is exceeding all bounds of truth and charity full of maledictions and calumniations nothing pertinent to the state of the question and that it becommeth not Deuines to be of a fiery and Salamandrine spirit soming out of a hoat mouth c. which indeed will seeme to any indifferent man a stange passionate exaggeration of Syr Edward exceeding all tearmes of simple truth for that there is nothing found in that booke but temperatly spoken and with respect as it seemeth both to his Office and Person but yet when he saw the exobitant intemperance of the Attorneyes hatred against Catholicks to draw him to such acerbity of bloudy calumniations that he would needes inuolue them all in the heynons cryme of treason by meere sycophancy malicious collections vpoÌ„ false supposed groundes and fictions of Pius quintus his Bull and such like impertinent imputations no meruaile though he were more earnest in the repulsion of such open wronges but yet with that moderation as I perswade my selfe no iniurious or contumelious speach can be alleaged to haue passed from him in all that booke much lesse such inuâ—ctiues as heere M. Attorney chargeth him withall as also with that fierie Salamandrine spirit foming out of a hoat mouth wherein besydes the contumely which he will easily pardon Syr Edward speaketh more
then I suppose his skill in Philosophie or history will be able to auerre or beare him out For that ancient Pliny in his naturall history treating of the nature of the Salamander which lyueth in fyre sayth not that he is hoat fiery but contrary wise so extreme cold of nature as he resisteth the very force of the fire if selfe So as whiles M. Attorney goeth about to accuse his aduersary of too much heate his example inferreth that he is ouer could that he mistooke quid pro quo And was not this a Nimium dicit in like manner 25. Another excesse though of meaner marke including also a NimiuÌ„ dicit is coÌ„mouly noted in Syr Edward all his speaches writings not wanting also in this litle preface which is a heaping together of many latin senteÌ„ces without Englishing or rightly applying them therby to seeme more admirable to the ignorant when they heare so frequent phrases and sentences which they vnderstand not and in other Countries it is accompted Pedanteria or playing the petty Schoolemaister nothing fit for graue men to vse wherof notwithstanding yow haue some store also in this litle Preface though but of one printâ—d sheet of paper as hath beene sayd for both in the first and last page he beginneth and endeth with that and few other pages pasâ—e without some respeâ—sion therof as ille didicit maledicere ego maledicta contenmere which sentence is euidently false in the eye and eares of all men that either haue read our books or heard him speake For as he cannot produce any maledictons of ours against him so haue we as many witnesses of his most bitter rayling against Catholicks Catholick Religion whose cause euery good man ought to esteeme a thousand times more theÌ„ his own as he hath writteÌ„ books scroles or libels against vs or hath giueÌ„ coÌ„tumelious Charges on the Bench which are continuall but especially and by name I remit my selfe to the most insolent inuectiue which he made against vs in his own CouÌ„trey at Norwich on the 4. of August anno Domini 1606. set forth afterward in print and againe in the same place at sundry tymes in the ensuing years in all which iniurious speaches besydes his other poeticall inuentions to make vs odious or ridiculous he triumphed also in this kynd of Grammaticall Pedanteria of alleaging sundry laâ—in sentences against vs wherof I may chance to haue occasion to treate more afterward 26. But I am departed vnawares from the examples of his present Preface and therefore shall returne thither againe When he saw himselfe ouerloaden with the multitude and variety of testimonies for prouing the principall question of the Popes supreme authority spirituall he answered thus For his Deuinitie and histories cyted by him only published in the sayd Booke ad faciendum populum I will not answere for then I should â—ollow him in his errour And is not this a goodly answere Was yt errour in the Deuine or vanity ad â—aciendum populum to proue by grounds of Deuinity Scriptures Fathers practice of the Primitiue Church and other lyke Theologicall proofes that Q. Elizabeth in right could not haue supreme Ecclesiasticall iurisdiction and out of all sortes of histories beloÌ„ging to England to conuince that none of her Ancestours did euer in fact pretend the same Was this only ad â—aciendum populum to hunt after popular applause How impertmently is this Grammaticall phrase applyed by Syr Edward 27. But let vs see the next In reading these and other of my Reportes sayth he I desire the Reader that he would not reade and as it were swallow too much at once for greedy appetites are not of the best digestion the whole is to be attayned by partes and nature which is the best guyde maketh no leape Natura non facit saltum In which words as I acknowlege the aduertisment to be good that a man ought not to reade too much togeather least he confound his memory So why this phrase of Natura non facit saltum is brought in but only for the forsaid Grammaticall oftentatioÌ„ I see not Nature maketh no leape but she procedeth orderly digesting one thing after an other it is true but what is this to proue that a man may not reade to much at one tyme Surely this leape of M. Attorney was somewhat wyde from the purpose and if his wrytings in law-matters be no more gracious and attractiue then are his discourses in Deuinity and Controuersies I presume the Reader that esteemeth his tyme worth the bestowing will not haue need of this aduertisment that he read not ouer much at once in his Reportes for that wearines will soone bring him to that moderation 28. And thus much haue I thought good to say briefly to such points of this Preâ—ace as concerne his Reply to the Catholicke Deuine for in effect Syr Edward answereth no more to all his large Booke theÌ„ now yow haue heard albeit in the â—ormer part of this his Preface he taketh another matter in hand which is first to auerre that the antiquity and excellency of our Municipall lawes in England which he calleth the Common do exceed all other humane lawes whatsoeuer in the world Then for proofe of this he bringeth in a Student of the sayd CoÌ„mon law to propose vnto him foure particuler Cases wherof the laâ—t for which all the other were brought in is whether the ancienâ— lawes oâ—â—ngland did admit any Appeales to Rome in Causes spirituall or Ecclesiasticall and then vaunteth presently thus I had no soâ—uer seene these questions saith he but instantly I found direct and demonstraâ—iue answere vnto the same But by his leaue Syr Edward must haue patieÌ„ce to let me tell him that his Answers are so far of from being demonstratiue that is to say euident certaine and irrepugnable as that they are not so much as Logicall that is to say probable nor haue any true forme or force of a lawfull argument in them for that they go about to proue vniuersalls by particulers and yet do not so much in effect as proue those seely particulers which they pretend These two points then are to be examined first about the supposed antiquity excelleÌ„cy of his Municipall lawes and secondly his proofe and confirmation therof by his Answers to the Students foure questioÌ„s deuised by himselfe For that no Student I suppose of any meane tallent of wit or learning would hauâ— proposed such questions for confirmation of so great a matter as is pretended or would haue byn content with so symple Answers as here are set downe VVHETHER THE Common Municipall Lawes of England be more ancient and excellent than any other humane Lawes of the world §. III. FOR better vnderstanding of this point I shall first set downe some lynes of Syr Edwaâ—ds narration which beginnâ—th thus Since the publishing of the fifth part of my Reports a good Student of the Common Lawes desyred to be
lâ—wes as Fox testifyeth it was made a law That publike â—ayres and markets should not be holden vpon Sundayes Item That euery wife that shall during her husbands liâ—e commit adulterie shall haue her nose and eares cut of Item That if a wyddow marrie within a yeare aâ—ter her husbands death shee shall leese her ioynture Item That whosoeuer hauing touched tâ—e holy Bible haue for sworne himselfe should leese his hand except he had redeemed the same at the Iudgment of the Bishop And the like seuerity was to be vsed vpon vniust Iudges that by corruption gaue wrong senteÌ„ces And this by the Danish lawes But vnder King Edward the Confessour that reuiewed ouer all the former lawes againe both of Saxons and Danes retayning such as liked him and excluding the rest diuers others of his owne were made which Polidore sayth were called Leges communes the Common Lawes which importeth farre lesse antiquity then M. Attorney auoucheth among which this was one That Vsurers should leese all their goodes and besydes be cast into banishment as being plagues of the people which rigour is not now vsed and perhaps may not be by our moderne CoÌ„mon lawes as neyther the other before mentioned of cutting of the wiues nose and eares that is an adulteresse which perhaps would make many a pittifull and foule sight in our Countrey So then these and many other such lawes which were generally receaued in our Iland before the Conquest are not at all now in vse as all men will confesse and therby it euidently followeth that there hath byn change and alteration of lawes in our Realme and that our Common Lawes at this day are not so excessiuely ancient entire and excellent as Syr Edward Cooke would haue vs thinke and belieue that they are 53. Concerning which excellency next after antiquity and integrity we must now adde a word or two more for that notwithstanding all that Polidore Ingulâ—us and Iohn Fox haue said before of the iniquity of such lawes as were promulgated by the Conquerour against rathâ—r then for the English Syr Edward heere with his fellow Iustice as yow haue heard sayth that without all doubt they are absolutly the best of all other nations Wherunto the Catholicke Deuine answered before that as he would not discommend his Countrey lawes nor diminish any part of that praise which is due vnto them if they be well and rightly executed so on the other side the malice and infirmity of men considered they seeme to learned straÌ„gers to diuers also of our own Countrey not to haue such excelleÌ„cy in them but in diuers pointes to be defectuous to leaue the subiect open to many iniuries oppressions ruines and other inconueniences in sundry cases which are piously prouided for by other lawes 54. As for example among the rest is noted and censured for most strange the manner of iudgment for life and death where no Aduocate nor learned Counsell is allowed the defendant for defence eyther of his honour liuing or life but himselfe only must speake answere for all against the impugnations of many and potent aduersaries that with their authority and counâ—enance bitter wordes threats taunts terrour of speach other like meanâ—s may so oppresse him and put him out of himsâ—lfe as that when it importeth him to say most he can say least and so perish for lacke of iust defence as more largely the Deuine doth prosecute alleaging also many reasons for the same against all which huâ—ts inconueniences other countrey lawes both ciuâ—ll and Municipall do make ample and carâ—full prouision 55. Another defect also in the same matter seemeth vnto strangers to be very great and importable which is that any one of the 12. men who are to go vpon his life may haue such passion against him as he would ouer weary all the rest except they will yeald to his condemnation Wherunto this also being added that if the sayd Iurours do condemne any neuer so wrongfully there is no punishment for it in this life but only before God but if they deliuer him against the inclination of Prince or Courtâ— which is easely to be knowne or coniectured great perill hangeth ouer their heads to be troubled vexed and forced to weare papers for periury This I say considered by learned men that are indifferent in the cause doth make them wonder and thinke that no NatioÌ„ liuing hath more harder lawes in this point nor more vnequall for the subiect then ours 56. The like may be sayd about the dowry of women that do marry which if it be in money goods or Chattels may be spent and consumed by the euill husband against whome she hath no remedy nor security at all which by the Roman Ciuill lawes is most carefully prouided for So as whatsoeuer disorders the euill husband doth commit eyther in speÌ„ding or offending yet is his wiues dowry secure nor can he spend or dilapidate any thing therof but only the rent or annuall Income for what occasions soeuer 57. Another also not vnlike to this is the small prouision by our common lawes for yonger brothers especially of the Gentrie and Nobility who being brought vp during their Fathers life in equall condition with the elder brother are afterward inforced to great inequality yea oftentymes to great misery our common lawes not prouiding for them in the diuident of their Fathers goods nor yet obliging their said elder brother to allow them competent maintenance conforme to their state and birth which other Countreys do 58. The Case also of Pupils seemeth strange to forraine nations that the wardship of them both for education and liuings I meane of such as haue any tenure from the King in Capite should be in the Princes hand without any obligation of yealding accompt for the Rents receaued spent or wasted Nay that their marriage and marriage-money or wyues dowry must appertaine to the Prince and be in his disposition wheras in all other Kingdoms abroad there is singular care had and prouision made by their lawes for Pupills and Pupillage and so doth their case in all equity require as being orphanes and destitute of their Father that should protect them I might touch heere diuers other markable points which foreiners do consider and one not the least that our law doth not seeme to haue sufficiently prouided for the exorbitant liberty and auarice of some of our lawyers for all are not culpable in taking money without lymit and enriching themselues therby more swiftly and excessiuely then any other sort of men whatsoeuer which being ioyned with their authority power to oppresse whom they will they become a terrour euery one in his CouÌ„trey to the best of the Kings subiects so as no man dare to speake or looke against them And truly the particulers that are recounted of exorbitant Fees taken by diuers to purchase as it were their looke without saying any one word for theÌ„ at
called also otherwise Adelnulphus K. of the VVest Saxons who did not only help assist him but gaue him also this his daughter Ethelswith in marriage with such wealth and riches as it seemeth that it eased both vectigalium penâ—â—uâ—â— â—â—ostiuÌ„ depâ—â—dationeÌ„ to vse Malmesb. his words that is both the paying of his pension or tribute to the Danes as also the spoile of his enemies And againe in another place he saith of him Burghredum regem Merciorum additamento exercitus contra Britones iuuit filiae nuptijs â—on parâ—m exaltauit King Ethelwolfe of the VVest Saxons did both help King Burghred of the Mercians against the Britans by increasing his army as also did not a litle exalt him with the marriage of his daughter Ethelswith And the lyke hath Huntington and Ethelwerd in their histories wherby it is euident that Queene Ethelswith came rich and powerable to her husbaÌ„d King Burghred was a great stay vnto him in his great distresse and therfore she might well presume to dispose of such things as were her own propriae potestatis especially her said husband and Brother King Ethelred then raigning after his Father consenting and subscribing to the same as now yow haue seene And so this first demonstratiue answer of Syr Edward doth demonstrate nothing els but that he answereth nothing at all to the purpose Let vs see the second â—hether it will be any better 69. The second question was as you well remember whether it was a law before the Conquest that a man seysed in â—ee simple shall forseyte both lands and goods by attaynder of â—ellonie or by out-lawry and that therâ—y his heyres shall be disiâ—herited Vnto which question sayth Syr Edward I haue heere sâ—t downe anotâ—er Charter of Record made long before the Conqueâ—t â—or direct answere And then he relateth a donation made by King Ethâ—ldred Father of K. Edward the Confessoâ—â— vpoÌ„ the yeares 995. Which was but 71. yeares before the Conquest though Syr Edward sayd it was long and the donation was of a certaine piece of land that was forfeyted to the King by one Ethelsig that hauing committed theft and flying to the woods was out-lawed therupon whereby the King came to haue his goods and lands made donation therof to another to wit Vlsâ—icke And this is all the proofe direct or indirect which Syr Edward alleageth But heere againe I would aske him how doth this prooue the principall question of the great antiquity of the moderne English Common lawes before the Danes Saxons and Romans seeing the case fell out so neare before the Conquest SecoÌ„dly â— would demand of him how he can prooue that it is proper alone to our English Common lawes to punish theft murther out-lawry and other such crimes by losse of laÌ„ds goods for that I do see it practized commonly in all other countreis besides except only in the Kingdome of Naples where by peculiar graunt and Concession of the Kings of Spayne since it came to their dominion the goods and lands of such delinquents are reserued to their children except only in crymes of high treason But in other Kingdomes to my knowledge there is no such reseruation And I haue vnderstood that diuers Great men haue forfeyted their lands from their heyres not only for being outlawes themselues vpon murthers and such other fellonies but also â—or fauouring ayding such men wherof I could giue diuers examples fresh yet in memorie but that it is not expedient for vs to medle in matters of other Common wealthes so as this is no proper law of England as heere it seemeth to be presumed by Syr Edward but coÌ„mon to all or most Nations and therefore no maruayle though it were in vse also among the English before the Conquest 70. His third case proposed is this that a wise being attaynted of petty treason for killing her husband should be burnt as now is vsed in England to proue that this is an ancieÌ„t law of the Brittans froÌ„ them come down to our tyme without change or alteration he citeth a place out of Caesar in his Commentaries lib. 6. affirming that iâ— the wise be suspected oâ— the death of her husband si compertum est igne c. interficiunt that is saith he if she be sound guilty of the death of her husband which is petty treason she is burnt to death as she is in that case at tâ—is day in England So the Iudge For now he speaketh as a Iudge though not like a Iudge that is truly and sincerely as presently yow will see For first though the matter were so in Iulius Caesar his CoÌ„mentariâ—s as here is related yet what doth this make to the maine questioÌ„ to prooue that the English municipall lawes are the same now that they were vnder the Brittans in Caesars tyme without alteration Is one example of similitude sufficient to proue this May not the different lawes of diuers countries agree in some one case or other without this inference that therefore they are the same lawes Was not hanging for theft in vse also among the Brittans Romans and Grecians and yet were not the lawes one and the selfe same And supposing that the Brittans had had this punishmeÌ„t of wiues for killing their husbands in Cesars tyme how will Syr â—dward proue that this endured allwayes afterward was neuer changed by the Romans Saxons Danes or Normans why had he not alleaged some examples of the continued vse and practise of the same throughout the raignes of the subsequent Kings and Nations Was his store house so barren that he had but one only example to bring forth and that so farre fecht as from Cesar by a leap to our time heere Natura â—acit salâ—um indeed or rather my Lord leapeth froÌ„ nature against nature in making such a skippe ab extremo ad extremâ—â—n sine medic which nature neuer doth or can do 71. But now I must shew that nothing is heere sincerely related but all corrupted peruerted For first Caesar in the place of his CoÌ„mentaries heere alleaged doth not talke of Britans but expressely of Frenchmen when he setteth downe their lawes and customes coÌ„cerning the power and vse they haue in punishing their wiues beginning his narration thus Galli se omnes sayth Caesar ab Dite patre prognatos praedicant all Frenchmen do affirme themselues to descend from Pluto the God of riches c. And then a little after addeth further Viri in vxores sicuti in liberos vitae necisque habent potestatem cùm paterfamilias illustriore loco natus decessit cius propinqui conueniunt de morte si res in suspicionem venit in seruilem modum quaestionem habent si compertum est igne atque omnibus tormentis excruciatas intâ—rficiunt Men in France haue power of life and death vpon their wiues as also vpon their children and when the head
of theÌ„ but coÌ„meth in with an impertinent instance that there was a prohibition of Appeales made vnder King Henry the second by Act of Parliament in the tenth yeare of his Raigne whereas yet there was no Parliament in vse nor Statute law was begone vntill the 9. yeare of King Henry the third which was aboue 60. yeares after as appeareth both by the Collection of Iustice Rastall and other Law-bookes 76. I do not deny but that King Henry the second entring into passion against S. Thomas Archb. of Canterbury made a decree at a certayne meeting of the Nobility at Claringdon rather moderating as himselfe pretended then taking away Appeales to Rome not denying that they ought to be made in respect of the Popes supreme authority Ecclesiasticall but for restrayning of abuses in appealing thither without iust cause or necessity especially in temporall affaires he ordeyned that matters should first orderly be handled in England in the Bishops and Archbishops Courtes and if that way they could not be ended they should not be carried to Rome without the Kings assent which declaratioÌ„ of the kings intention is set downe by Roger Houeden out of the Epistle of Gilbert Bishop of London to Pope Alexander the third written by the kings own Commission which not being admitted afterward by the said Pope the king recalled the same with an Oath vnder his owne hand wherof the said Houeden writeth thus Iurauit etiam quòd neque Appellationes impediret neque impediri permitteret quin liberè fierent in Regno suo ad RomanuÌ„ Pontificem in Ecclesiasticis causis He swore also that he would neither let AppellatioÌ„s nor suffer them to be letted but that they might be made in his kingdom to the Bishop of Rome in causes Ecclesiasticall c. 77. All which things could not but be knowne to Syr Edward before he wrote this his Preface and that the Catholicke Deuine in his aÌ„swer to the fifth part of his Reports had produced so many euident arguments and probations that King Henry the 2. was most Catholick in this point in acknowledging the Popes supreme Ecclesiasticall authority notwithstanding the coÌ„tention he had with S. Thomas about the manner of proceding therin for the execution as none of his Ancestours were more which in like manner is euidently seene and confessed in effect by Syr Edward himself in that in his whole discourse of Reportes for improuing the said Popes Supremacy he alleageth not so much as one example or instaÌ„ce out of the raigne of this King which in reasoÌ„ he would not haue pretermitted if he could haue found any thing to the purpose therin 78. But yet now finding himselfe in straytes how to answere the Students demand about the aÌ„tiquitie of prohibiting Appeales to the Sea of Rome he was forced to lay hands on this poore example which was neither to his purpose in regard of the time being after the conquest as now you haue heard nor of the thing it selfe for that it was against him as being only a moderation of abuses yea and that in temporall things as Bishop Gilbert of London expresly aâ—oucheth recalled by the same King afterwardâ— and finally is wholy from the purpose chiefe question about the Popes supreame authority whereof this of Appeals is but one little member only And thus we see both how well and subâ—tantially Syr Edward hath mainteyned his assertion of the supereminent antiquity and excellency of his Municipall lawes and how direct and demonstratiue answers he hath made to the foure Questions or Cases deuised by himselfe for confirmation of the â—ame 79. And whereas he inserteth a note of Record of the decree of Claringdone that this recognition was made by the Bishops Abbots Priors c. of a certaine part of the Customes and liberties of the Predecessours of the king to wit oâ— King Henry the first his Grandfather and of other Kings which ought to be obserued in the kingdome wherby it semeth the Knight would haue vs imagine though he vtter it not that the same prohibition of Appeales might haue byn made and practized by other former Kings liuing before the Conquest it is found to be but a meere Cauill both by the Catholicke Deuine that shewed out of authenticall histories the coÌ„trary practise vnder all our Catholicke Kinges both before after the Conquest as here likewise it is conuinced by the words and confession of this King Hâ—Ì„ry the second himself that these pretended liberties of his Ancestours were brought in by himself only and in his tyme as is testifyed by Houeden in two seuerall Charters one of the Pope and the other of the King as also by an authenticall Record of the Vatican set downe by Baronius in his tweluth Tome So as here the Iudge hath nothing to lay hands on but to giue sentence against himself both of the Nimium and Nihil dicit as now yow haue seene And so much for this matter HOW THAT THE foresaid Nimium dicit as it importeth falsum dicit is notoriously incurred by Syr Edward Cooke in sundry other assertions also apperteyning to his owne faculty of the law which were pretermitted by the Catholike Deuine in his Answere to the 5. Part of Reportes §. V. FOR so much as the most part of this seauenth Chapter hath beene of omissions and pretermissions as you haue seene and these partly oâ— M. Morton in concealing such charges of vntruthes as had byn laid both against him as also against his Client Syr Edward partly of Syr Ed. himself in not answering for himself when he ought to haue done I thought it not amisse in this place to adioyne some other omissions in like manner on the behalfe of the Catholike Deuine who passed ouer in silence sundry notable escapes of his aduersary M. Attorney which he coÌ„mitted in cyting law-books and lawyers authorities against the Popes ancient iurisdictioÌ„ in spirituall cases in England and this partly for that he had not as then all the Bookes by him which were quoted and partly vpon a generall presumption that in this poynt M Atâ—orney would be exact for that he had so solemnly protested the same in his booke of Reportes as before hath byn touched to wit that he had cyâ—ed truly the verâ— words and textes of the lawes resolutions iudgments Acts of Parlament all publike and in print without any inference argumeÌ„t or amplification quoting particulerly the bookes yeares leaues chapters and other such like certaine references as euery man at his pleasure may see and read them 81. This is his protestation who would not belieue a man especially such a man and in such a matter at his word or rather vpon so many words so earnestly pronouÌ„ced especially if he had heard his new and fresh confirmation therof which he setteth â—orth in this other Preface to his sixt part wherin he sayth that euery man that writeth ought to be so careâ—ull of setting downe
belongeth as appeareth euidently by Cirendon and the Bishop of Lincolnes case in Plowdens Commentaries fol. 498. where it is said that because all aduowsons and lands within the realme are held eyther immediatly or mediatly of the King the land where the Church is situate before the Church was builded was held of the king so in respect of the tenure of the king the presentment by lapse accrueth vnto him as supreme Patron and not in respect of the supreme iurisdiction Ecclesiasticall which the Statute of 25. H. 8. did first of all ascribe vnto his temporall Crowne 90. Vnder the same king 17. E. 3.23 he citeth another law-booke thus The king may not only exempt any Ecclesiasticall person from the iurisdiction of the Ordinary but may graunt vnto him Episcopall iurisdiction as thus it appeareth there the king had done in ancient tyme to the Archdeacon of Richmond So he But if you read the booke it self here cited of 17. E. 3 23. you shall fynd that no such assertion can be founded there For thus the case standeth in that booke Stouff a Sergeant at law sayd that the Archdeacon of Richmond had the office of the Ordinary and I thinke quoth he by lâ—aue of the king This is all the case there related where you see that Sergeant Sâ—ouâ—â— affirmeth not that he knew it to be so but did thinke so that the said Aâ—chdeacon of Ricâ—mond had the office of tâ—e Ordinary by leaue of the king and much lesse did he auouch as Syr Edward doth for him that the king gaue or graunted vnto him that â—piscopall iurisdiction which is not warranted but rather ouerthrowne by that booke as you see for that the Archdeacon might haue his Episcopall Authority if he had any by grâ—unt from the Pope and licence only of the king and so this aâ—â—â—ueraâ—ion â—tanding but vpon a collection of M. Attorney falleth to the ground 91. It â—olloweth in M. Attorney his Reports vnder the same K. Ed. 3. All religious or Ecclesiasticall houses saiâ—h he wherof the king was founder are by the king exempt frâ— ordinary Iurisdiction only visitable corrigible by the K. Ecclesiasticâ—ll commission and for this he citeth tâ—ese books 20. E. 3. ExcoÌ„ 9.16 E. 3. titâ— Brâ— 660.21 E. 3.60.6 H. 7.14 Fitz. Nat. Breuâ— But in none of these bookes shall you find these words that thâ—y are only visitable or corrigible by the K. Ecclesiasticall commissioÌ„ This is Syr Edwards owne inuention The books quoted do speake of hospitals and free Chappels of the Kings foundation which are not visited by the Ordinary for that they are things temporall and without cure of soules and therfore not spirituall or Ecclesiasticall nor to be visited in those dayes according to the common-law by the Bishop but by the kings Chancellour as a temporall officer as testifyeth Fitzherb in his Nat. Br. â—ol 42. A. though afterward in K. H. 5. tyme for remedying of discoâ—ders it was decreed in the 2. yeare of his raigne that the visitation and correction of such Hospitals and free Chaphels of the Kings foundation or of his subiects should be done by the Ordinaries according to the Ecclesiasticll laws 2. H. 5. cap. 1. in Rastals Abridgment tit Hospitals So as heere the principall wordes of controuersie to wiâ— by the kings Ecclesiasticall â—ommission are feigned and put in by M. Attorney and this is his ordinary art to seeme to haue somewhat in fauour of his purpose when it is nothing at all but agaiâ—st him 92. It followeth in Syr Edw. instances â—ol 15. The king shall present in his free Chappels in default of the Deane by lapse in â—â—spect of his supreme Ecclesiastiâ—all iurisdiction citing for iâ— 27. Ed. 3. fol. 84. But heere againe I find a â—oule fitten for his booke hath not these words in respect of the kings supreme Ecclesiasticall Iurisdiction which is heere made the principall verbe of this part of speach and often thrust in by M. Attorney of his owne inuentioÌ„ but the meaning of his booke is as he cannot but know that the king in such cases shall present not in respect of supreme Ecclesiasticall iurisdiction but as supreme Patron temporall for that aduowsons or patronage of such benefices are meere temporall inheritances according to our coÌ„mon-lawes as ofteÌ„ hath beene declared and therfore the King being founder may by lapse present 93. An other like fitten or rather more foule is coÌ„mitted by him in the same place alleaging out of 22. Edward 3. lib. Assis. pl. 75. that tythes arising in places out of any parish the king shall haue them â—or that he hauing the supreme Ecclesiasticall iurisdiction he is bound to prouide a sufficient Pastour that shall haue the cure of soules of that place which is not within any parish And by the common lawes of Englâ—nd saith he it is euident that no man vnlesse he be Ecclesiasticall or haue Ecclesiasticall iurisdiction can haue inheritance of tythes Thus much M. Attorney to proue that K. Ed. 3. had supreme Ecclesiasticall iurisdiction not the Pope in his dayes But heere be so many scapes fraudes and errours as is a shame to see For first in his booke quoted there is not fouÌ„d those words that principally import the controuersie that he as hauing supreme Ecclesasticall iurisdictionâ— is bound to prouide a sufficieÌ„t Pastour but all this is thrust in by M. Attorney to make vp his market Secondly much lesse is this yeelded for a reason by his booke why the king should haue such tythes as lay out of all parishes but another reason more substantiall is to be alleaged of being temporall Lord of the Lands which presently we shall touch 94. Thirdly it is not true that the king as hauing supreme Ecclesiasticall iurisdiction is bound to prouide a sufficieÌ„t Pastour to haue cure of soules of that place which is not within any parish both for that it may appertaine to a particuler subiect to dispose of those tythes if he be temporall Lord of the place without hauing supreame Ecclesiasticall iurisdiction and the emolument may be so small or the place it selfe so vast and remote as eyther there be few soules to haue cure of or the maintenance not sufficient for a Pastour Fourthly it is false that by the common-laws of England no man vnlesse he be Ecclesiasticall or haue Ecclesiasticall iurisdiction can haue the disposing of tythes for that euery man before the diuision of particuler parishes was made though he was bound by diuine and canonicall-Canonicall-law to pay his tythes of his lands yet might he according to the coÌ„mon-lawes of England haue assigned them to what Parish he would Now let vs see the case it selfe as it is proposed in 22. Ed. 3. lib. Asâ— pl. 75. 95. The king granted certayne tythes vnto the Prouost of C. out of certayne lands newly asserted in the forest of RockingaÌ„ and the said Prouost therupon brought a writ of Scire facias
out of the Chancery against some that tooke away the said tythes c. and then after some altercation to what Court the said sute belonged the plaintiâ—e that is the Prouost prayed execution but Thorp the chiefe Iustice said that it was wont to be law when there is a certayne place that is not of any parish as in Engelstwood and such like that the king should haue the tythes and not the Bishop oâ— the place to graunt them to whom he should thinke good as he hath graunted them vnto you notwithstanding saith he the Archbishop of Canterbury hauing sued vnto the kings Counsel to haue those tythes for that the matter is not yet tryed vntil it by tryed you shall not haue execution So he And this is all the Case wherin you see that albeit Iustice Thorp said that it was wont to be law that the king should dispose of the tythes of such places as wâ—re newly assertâ—d and cultiuated that were of his inheritance yet doth he not so resolutly affirme it that he would giue seÌ„tence of execution against the defendants albeit they had made default after they had pleaded to the issue as there is manifest but would haue the Archbishop of CaÌ„terburies sute to the coÌ„trary to be heard also And indeed he could not but know but that in the booke of 7. Ed. 3. fol. 5. which was 16. yeares before this case was treated the opinon of Herle chiefe Iustice was that the Bishop should haue such tythes and much lesse doth Iustice Thorp assign the cause of right of those tythes vnto the king for that he hath supreme Ecclesiasticall iurisdiction as our Iudge doth now but for that commonly such new wast asserted landes appertained vnto the king albeit as now hath beene said they might haue appertayned also to a particuler subiect if he had beene Lord of the place as is most perspicuously declared and set forth in an ancient Treatise intituled Oâ— the power of the Parliament annexed to the Old Doctour and Student or booke so intituled where it is said as followeth 96. If wast ground saith the Booke wherof was neuer any profit taken and that lay in no parish but in some forest or that which is newly wonne from the sea were brought into arable land if the freehold therof were to the king he might assigne the tythes to whom he would and if the freehold were to a common person he might do the like For though tythes be spirituall yet the assignement of tythes to other is a temporall act For before parishes were deuided and before it was ordayned by the lawes of the Church that euery man should pay tythes to his owne Church euery man might haue payed his tythes to what Church he would might one yeare haue giuen his tythes to one Church and another yeare to another or haue graunted them to one Church for euer if he would And like as euery man before the seuering of the parishes might haue giuen the tythes to what Church he would because he was bound to no Church in certayne so may they do now that haue laÌ„des that lie in no parish for they be at liberty to assigne theÌ„ to what Church they will as all men were before the sayd law was made that tythes should be payd to their proper Churches 97. So farre this Law-booke which doth not ascribe anything to the kings Ecclesiasticall iurisdiction as heere you see as neyther doth Iustice Brooke who in his Abridgement abridgeth the foresaid caâ—e of 22. E. 3. lib. assis vnder the tytle of the Kings Prerogatives signifying therby that the said tythes are due to the king if they be due in regard of his prerogatiue Royall and not of his spirituall supreme power aâ—d iurisdiction See Booke 22. Ed. 3. tit Prerogatiue pl. 47. 98. And as for the law mentioned in the foresaid Treatise wherby men were appointed to pay their Tythes to their peculiar parishes wheras before thâ—y were free to pay them where they would it is meat of a Canon of the great Generall Councell of Latâ—ran held at Rome vnder Pope Innocentius 3. in the dayes of K. Iohn of England vpon the yeare 1216 which was aboue a hundred yeare before this other case fell out in 22. E. 3. in which Councell it was ordayned That euâ—ry man should pay his Tythes to his proper Church and parish To which Ordination of the Pope and Councell the kingdome of England submitted it self and the temporall lawes therof and so the matter endured vntill the breach of K. H. 8. So as in all this tyme the Popes supreme Authority and spirituall iurisdiction was acknowledged and obeyed about this matter of Tithes in England as is euident also â—y these books ensuing to wit 7. E. 3. fol. 5.44 Ed. 3. f. 5.10 H. 7. fol. 16. but yet for that the said Canon of Lateran did not comprehend expresly all such landes as were then wast and should after be asserted K. Edward 3â— in the case proposed might according to the former ancient law that was vsed before the said Canon giue and appoynt the tythes of these newly asserted lands of Rockingham to whom he would as he did though not vnder the title of his supreme spirituall iurisdiction as the Attorney very falsely doth pretend but as temporall patron of that land for the causes before specified And so much of this Case 99. Another he cyted out of 38. E. 3. lib. Ass. pl. 22. in these wordes The king dâ—d by his Charter translate Chaâ—ons secularâ— into Regular and religious persons which he did by his Ecclesiasticall iurisdiction and could not do it vnlesse he had had iurisdiction Ecclesiasticall So he And heere is false dealing againe for all that is said in that booke is this that it was pleaded for the king that by his Charter he did graunt that the Prior CoueÌ„t of Plymouth might transferre Secular into Regular ChanoÌ„s which was but a grant or licence as you see Nor did the king translate Chanons Secular into Regular which belonged vnto the Pope but graunted only and gaue licence that they might be so transferred nor hath the law-booke any one word of the kings Ecclesiasticall iurisdiction but all this is feigned by M. Attorney himselfe 100. Agayne he cyteth out of 49. Ed. 3. lib. Ass. pl. 8. where the Abbot of VVestminster saith he had a Prior Couent who were Regular and mort in law yet the king by his Charter did deuide that corporation and made the Prior and Couent a distinct and capable body to sue and to be sued by theÌ„selues whereof M. Attorney would inferre the kings supreme spirituall authority and iurisdiction But his booke fauoureth him not at all heerin for albeit Candish said that the possessions of the Abbot Prior of VVestminster were seuered the one from the other and that this began with the Charter of the king yet is it playne by the law 11. H. 4.
only true and Catholike Religion and that by false and indirect meanes whereof God is an enemie Not to our Country for that these Reports of law being contrary to all auncient lawes and written with a contrary spirit to all our ancient lawiers Iudges law-makers before this our present age can profit nothing our Country but set greater breaches and diuisions therein To Me also that am the Reader or Student it can neither profit nor import any thing but losse of time and breaking my head with conâ—radictions For so much as all this must once againe be cast of and forgotten as nouelties when our old course of Commonlaw must returne to follow her ancient streame againe 124. Wherfore a much more honourable and profitable course had it bene for so great a witt learned a man in our lawes as my L. is said held to be that to the end his labours in writing might haue remayned gratefull and commodious to posterity he had conformed himselfe his spirit knowledge and penne to that of ancient precedent lawyers of our land as Plowden did and some others whose wrytings for that cause wil be immortall But Syr Edward taking to himselfe a contrary new course by wrenching and wresting lawes to a contrary meaning froÌ„ the common sense both of the lawes themselues law-makers as also of the times wherin they were made and torrent of authority that gouerned the the same his labours must needs in the end proue to bâ— both vnprofitable and contemptible 125. For I would demand him what sound common lawier will ioyne with him in this point which he so reâ—olutly auerreth in his last Preface that all bookes coÌ„ming à Roma vel à Romanistis from Rome or Romanists that is from any sort of Catholicks haue punishment according to our ancieÌ„t lawes for of those I suppose he speaketh of losse of goods liberty and life Will any man belieue him that this is conforme to any ancient law of England Doth he not know as I doubt not but he doth much better then I the old ancient honour that was wont to be borne to Rome and Romanists by our English Common lawes Can he deny but that the Bishop of Rome is tearmed Apostolus and Apostolicus almost euâ—ry where in the same ancient lawes yea Prince of the Church and that our Archbishop of Canterbury the greatest Peere and Prelate of England is called in our law Apostoli Legatus Legate of the Apostle and Roman Bishop And that his spirituall Court is but a member of the Court of Rome which Court in England is called Curia Christianitatis the Court Christian or Court of Christianity throughout our Common law-bookes as I might shew by multiplicity of authorities if it were not a matter so notoriously knowne as no meanest lawier will or can denie it And is it likely then that according to those lawes it may be prooued that it is Praemunire and treason to bring in a Booke from Rome or Romanists to read it to praise it or to lend it to another as heere our new Iustice doth tell men with terrour against iustice especially when he addeth Hi sunt illi libri qui splendidos c. These are those bookes which doe carry goodly and religious titles which do professe to help and comfort the infirme consciences of men that are in trouble These are they that take vpon them to bring miserable and sinfull soules vnto the desired port of tranquillity and saluation By which words it seemeth that Syr Edward hath a chiâ—â—e mislike of spirituall Catholick bookes which treat the argument of quieting of soules Which if it be so then I hope that our bookes of Controuersies may passe with some lesse danger though indeed I doe suspect that he meaneth these when he speaketh of the other for that they doe most coÌ„cerne him For what doe spirituall bookes trouble Syr Edward which I suppose that either he neuer readeth or litle esteemeth the argument they handle his cogitations being imployed about farre other obiects of this world for the present Albeit I doe not doubt but if in some other circumstance of time state and condition of things he should read them or they should be read vnto him as namely on his death-bed when flesh and bloud and worldly preferments doe draw to an end and himselfe neare to the accompting day they would make other impression in him Which being so true wisdome would that what we must doe in time perforce and perhaps to late or with out profit we should out of good will and free choice preuent by Christian industrie Which almighty God graunt vs his holy grace to doe And this is all the hurt I wish to Syr Edward for all his asperity against vs. 126. Now let vs returne to M. Morton againe whome we haue left for a long time to giue place to this piece of Reckoning with Syr Edward It followeth then in consequence after the precedeÌ„t Chapter of his omissions and concealments in diuers and different charges layd against him for vntruthes wherwith he was charged in the Treatise of Mitigation that we see what new vntruthes he hath super-added in his defence therof for increasing the burden THE NINTH CHAPTER WHICH LAYETH TOGEATHER ANOTHER CHOICE NVMBER of new lyes made wilfully BY Mr. MORTON ouer and aboue the old in this his Preamble whilst he pretendeth to defend or excuse the sayd old being aboue fifty in number WE haue made a large intermissioÌ„ as you see of M. MortoÌ„s affayres by interlacing some of Syr Edwards now must we returne to our principal scope which is to shew more new and fresh vntruthes of later date in this last Reply of M. Morton And albeit those that are to be touched in this Chapter haue beene for the most part handled discussed before yet to the end that they may more effectually be represented to the eye and memory of the Reader by putting the principall of them togeather in ranke vnder one muâ—â—er I haue thought it expedient to take this paynes also wherby may appeare how ruinous and miserable a cause M. Morton hath in hand that cannot be defended but by addition of so many new lyes vnto his old and euen then when he standeth vpon his triall for the sayd old and seâ—keth by all meanes possible to hide and couer the same in such manner as before yow haue heardâ— And no maruaile for that both truth reason and experience do teach vs that an old lye can neuer be well cloathed or couered but by a new Let vs passe then to the suruey of this Chapter noting by the way that we are rather to touch certayne heades or principall branches that conteine commonly sundry and seuerall lyes vnder them then simple single vntruthes if they be well examined nor is it our purpose to name all for that would imply too large a prolixity for this place especially for so much as I am to remit the Readâ—r commonly to
euer done 8. And as for the other part whose finger did she euer cause to ake and her hart aked not with him is too to childish and ridiculous no man can read or heare it but with derision and laughter her hart being knowne to haue bene of other mettall then to ake for other mens fingers For to pretermit these particuler afflictioÌ„s layd vpon particuler people whome now I haue mentioned without compassion or aking of her hart who doth not know that when all Countries round about her France Flanders Holland Zeland Scotland Ireland and some other states were all in warre and combustion killing and destroyng one another about quarrels of Religion principally set one foot and mainteyned by herselfe she passed her dayes in England in mirth ioy as all Courtiers of that tyme will remember nor did so much as her finger ake for their harts aking for any thing that euer I heard of to the contrary How then can this be excused without some shift of Equiuocall meaning in this false Minister saying one thing meaning another For that in no sincerity of conscience can he possibly thinke it to be true This is then one example let vs see another 9. He writeth of the Iesuits thus in the same place That their whole order institute and practice are such as they say in effect vnto Christ as the Diuels did Quid nobis tibi est Iesu VVhat haue we to doe with thee ô Iesu This sentence being vttered in such an auditory as that was wherin his Maiesty was present and much of the Nobility of the land so many learned hearers besides must needes presuppose as to me it seemeth that the vtterer had perused well the Iesuits institute and had conferred the same exactly as also their life and practice with the law and life of Iesus and had found therin this extreame opposition and contradiction between Iesus and Iesuites no lesse then between him and the Diuels themselues But then me thought on the other side if this had beene so he should haue alleaged some particulers at least wherin this contradiction did stand and it had bene perhaps no vnfit argument to be handled in that so great an assembly for discrediting that sort of people throughout the world and thoâ—e of the same order in England would haue blushed to haue made any answere for not discouering further their owne wickednesse wants or imperfections 10. But now seing nothing at all brought forth to the view or triall except only certaine idle Nick-names as that the Iesuites are the great Mercurialists of the world Archimedians Centimans or men of a hundred haÌ„ds a peece oâ— couÌ„terfait names Iesuits by antiphrasis Suitae by apheresis flyers of Iesus by diëresis Iebusites by agnomination Ignatians in Spaine Theatines in Italy Iesuines in Campania Scotiots in Ferrara Priests of S. Lucia in Bononia reformed Priests in Modena and other such like inuentions of a ridiculous Grammaticall and Hystrionicall head far vnfit for that place and noble auditory Seing this I say I assured my selfe that the Authour had no substaÌ„tiall matter to produce against them for that otherwise this had bene a worthy market to haue sold his wares with great gaine and applause if any he had had worth the bringing forth 11. Wherfore I coÌ„clude with my self that this speach of the Minister concerning the opposition betweene Iesus and Iesuites was as false an exageration and lying Equiuocation as that other before of the aking of Q. Elizabeths hart at the aking of other folkes fingers And furthermore I coâ—sidered what a compariâ—â— might be made betwene the Institute and life oâ— Iesuites and this Minister with his fellowes in England in respect of the law and life of Iesus which of them goe nearer the same And albeit I do not meane to entâ—r inâ—o that matter but rather leaue it to some other that may chance to answer that idle vaine Sermon haÌ„dle this point more largely particulerly yet are there so many things apparently seene and knowne in the world which do lay foâ—th this dâ—fference betweene Iesuits and Ministers actions in this behalf as noe intelligent man can but obserue the same 12. For what shall we say of the labours of Iesuiteâ— throughout the whole world for conuersion of Infidels as in Mexico Perù Brasile Aethiopia China Iapone and in other vast Kingdomes wherin aboue a hundred of them besids other afflictions haue shead their bloud Is this opposit to Iesus or no Is this to be coÌ„pared to the actions of Diuels Do English Ministers take vpon them these labours What shall I say of their manner of life bare diet simple apparell punctuall obedience strait pouerty exact chastity much prayer sâ—uere discipline coÌ„tinuall mortification Do not these thingâ— simbolize with the life of Iesus Or do Englsh Ministers trouble themselues much with such matters And hath not this contumelious Minister that so desperatly presumeth thus to speake a wiâ—e and good benefices fareth delicatly sleepeth his fill fasteth seldome or neuer pestreth the Colledgâ— with his brattes which the founder neuer thought of decketh his body with the best apparrell he can get pampreth his flesh pursueth all wayes and meanes of ambition flattereth raileth lieth in this his SermoÌ„ against Catholicks without all respect of truth ciuility or honesty Are not these actions opposite to Iesuites oposite also to Iesus himselfe and conforme to those of Diuels whome he bringeth in saying quid nobis tibi est Iesu 13. But I would not the Reader should thinke that the impoteÌ„t passionate behauiour of this Minister had put me also into passion though somwhat I coÌ„fesse it hath moued me But I shall passe no further therin it may be that some other will supply herafter more fully as before hath bene sayd For as for matter it will not want him for if euer there was published a more fond vnlearned malicious spitefull opprobrious and contumâ—lious libell then this I am much deceiued and hardly can it be answered with patience which yet I wish the Answerâ—râ— 14. But yet notwitâ—standing I cannot but adde some few words more about the point it self of Equiuocation in regard of the excessiue intâ—mperate sâ—olding which as now in part you haâ—e heard our English Ministers do vse against the same and I take it to be peculiar to them alone and this not so muâ—h out of ignorance or stupidity as some may imagine in respect of the clearenesse of the casâ— it self as of obstinate wilfull peruicacity in defending an absurd cauillation which once they haue taken in hand to prosecute by right or wrong And so you haue seenâ— that the last named Minister King though a very trifler and not able to answere any one of the arguments reasons Scriptures Fathers examples and other anthorities alleaged for the lawfulnesse of Equiuocation in the booke of Mitigation or at least wise did attempt to answer none wherin notwithstanding
and concealed by him pag. 490. § 4. Of M. Mortons omissions concerning the deâ—ence of Syr Edward Cooke wholy pretermitted by him pag. 500. § 5. The discharge and reckoning about the former charge made to Syr Edward Cooke pag. 510. § 6. To the other â—oure Cases obiected by M. Morton out of Syr Edward Cooke pag. 523. THE EIGHT CHAPTER VVHich by occasion of two new Prefaces lately set forth by Syr Edward Cooke doth handle diuers controuersies with him aswell about a Nihil dicit obiected by him to his Aduersary as also about the antiquity and excellency of the Municipall Common-lawes of England and some other points It hath 6. Paragraphes pag. 529. § 1. Of a new Preface set â—orth lately by Syr Edward Cooke now Iudge wherin he condemneth his Aduersary the Catholicke Deuine of a Nihil dicit and with what iustice or iniustice he doth the same pag. 531. § 2. That the imputation of Nihil dicit doth fall more rightly vpon M. Attorney as doth also the Nimium dicit which is to vtter more then is true pag. 542. § 3. VVhether the common Municipall lawes of England be more ancient and excellent then any other humane lawes of the world pag. 551. § 4. About foure seuerall questions sayd to be propounded by the student in law and solued by the Iudge for confirmation of the antiquity and eminency of our moderne English lawes pag. 573. § 5. How that the foresayd Nimium dicit as it importeth Falsum dicit is notoriously incurred by Syr Edward Cooke in sundry other assertions also appertayning to his owne faculty of the law which were pretermitted by the Catholicke Deuine in his Answere to the fifth part of Reports pag. 587. § 6. Of another Preface instantly come vnto my hands prefixed before the L. Cookes seauenth part of Reportes conteyning new iniuries offered to Catholickes by him pag. 604. THE NINTH CHAPTER VVHich layeth togeather another choice number of new lyes made willfully by M. Morton ouer and aboue the old in this his Preamble whilst he pretendeth to excuse or defend the said old It hath 20. severall heads pag. 625. 1. About the equiuocatioÌ„ of Saphyra he affirmeth me to say that there is an Equiuocation which no reseruation can saue from a lie p. 262. 2. About Theodoret egregiously corrupted by him pag. 629. 3. Claudius Espencaeus falsified and made to say that which he doth not pag. 629. 4. Of Doctor Franciscus Costerus notably abused made to write that which he neuer thought pag. 630. 5. About Gratian falsely accused for â—alsification pag. 631. 6. About symbolyzing of Protestants with Pelagians three witting vntruthes pag. 632. 7. Concerning the Councell of Eliberis and Sixtus Senensis misvnderstood pag. 634. 8. Of Bullingers blasphemous doctrine about the Trinity falsely ascribed to Gregory de Valentia pag. 635 9. The contention betweene S. Augustine and S. Cyprian about rebaptizing misrelated pag. 636. 10. VVhether Catholike authors do speake contrary to their owne iudgments in the article of Purgatory pag. 637. 11. VVhen the letters of T. M. came to be vnderstood what they signified pag. 638. 12. About Holinshead and Iohn Fox guilfully alleadged and stood vpon pag. 638. 13. Fraudulent dealing in relating the death of Pope Anastasius pag. 639. 14. About Pope Gregory the thirteenth his licence for printing the Câ—nnon-law egregiously calumniated pag. 640. 15. How the Manichean heresie is imputed to Caluin and T. Mortons deceiptfull dealing therin pag. 641. 16. About the Nouatian heresy obiected to Protestants and false trickes therin pag. 642. 17. D. Azorius his fiue rules about Equiuocation fraudulently and falsely applyed pag. 643. 18. VVhether the Iesuit Emanuel Sà doth coÌ„tradict all EquiuocatioÌ„ or no and how egregiously he is abused therein pag. 644. 19. VVhether Iohn Maldonate were against all Equiuocation and whether P. R. did fly to answer him pag. 645. 20. About Polydore Virgil falsified in two very materiall points pag. 646. Out of which twenty heads aboue fifty particuler falsities are deduced and plainely demonstrated besides the former THE 10. AND LAST CHAP. COnteyning new Challenges Protestations vaunts and other vehemeÌ„t assertions of M. Mort. that wrappe him in baÌ„ds of further absurdâ—â—ies then any of his â—ormer errours and ouersights before layd downe It hath 3. Paragraphes conteyning 12. new Challenges of M. Morton pag. 649. § 1. First concerning his owne person and what new protestations and Challenges he maketh thereabout pag. 651. § 2. Then concerning the person of his aduersary P. R. and foure new Challenges against him pag. 659. § 3. Thirdly about his book cause it self foure other Challenges wherwith he concludeth his whole worke offering to haue it burned if he performe not what he promiseâ—â—â— pag. 664. AN APPENDIXâ— COncerning a case of Equiuocation lately written out of England wherin resolution is demaunded about the false oath of two Ministers VVhether iâ— may be salued by the licence of Equiuocation or no Togeather with a note out of Doctour King his Sermon preached at the Court 5. Nouemb. 1608. so â—ar â—orth as it toucheth Equiuocation p. 671. AN ALPHABETICAL TABLE OR INDEX OF THE CHIEF MATTERS HANDLED IN THIS BOOKE A ABsurdities of M. MortoÌ„ cap. 2. num 34. AdriaÌ„ the Pope whether choked with a fly c. 5. n. 20.22 Ananias and Saphyra their fact discussed cap. 2. num 23. c. The ridiculous Antiquity of the Venetian lawes cap. 8. n. 40. Appeales to Rome cap. 3. num 18. cap. 8. num 75. seq Azor alleaged to condemne EquiuocatioÌ„ in that place wher he expresly auoucheth it c. 4. n. 69. c. cap. 6. n. 16.17 c. See ibidem num 9.10.11 c. B BEllarmine charged to impute falsely Pelagianisme to the Protestants cap. 3. num 58. His true assertion touching the same ibid. num 61. He truly chargeth Protestants with the heresy of Nouatus ibid. n. 67. Most falsely accused of contradiction by M. Morton touching a place out of Theodoret. ibid. n. 94. c. Item for cyting S. Cyprian and S. Augustine for traditions Ibid. n. 104.105 c. Item for alleaging S. Ambrose S. Hilary S. Augustine for Purgatory num 123. Bellarmines words cuÌ„ningly clipped and changed by M. Morton concerning an errour of Caluin and Beza cap. 5. num 96. Binius abused about the death of Pope Vrban cap. 5. num 34. Broughtons censure of the English Bible cap. 1. num 67. Britans their manners conuersaâ—â—on and lawes in Cesars time c. 8. n. 35.36.37 deinceps British lawes See Lawes Q. Brundeâ—ica her speach cap. 6. num 38. C CAluin intangled about Purgatory and concerning his atrium or porch c. 3. n. 92. Caluinisme is heresy by the iudgment of other Protestants cap. 7. num 6.7 9. L. of CaÌ„terbury charged to haue corrupted a passage in M. Reynolds cap. 5. num 88. The place in Carerius about Verè Verò examined c. 1. n. 70.71 Cassander abused cap. 6. n. 79. The Catholicke Deuine defeÌ„ded against Syr
of excommunication throughout the world vpon iust causes is a principall member so as except they would introduce a law contrary to their owne beliefe or suffer a law to grow and be made coÌ„mon in their Realme without their knowledge or assent it is absurd to imagine that there could be such a Common law against the Popes ExcoÌ„munications before the dayes of King Edward the first and before any Statute was made against the same as M. Attorney auoucheth 78. Secondly he sheweth out of the testimony of Matth. VVestmonast that this King Edward being in a great heat of offence against the Cleargy of England for that they denied to giue him the halfe of their Rents and goods towards his warres vpon the expresse prohibition of Pope Bonifacius to the contrary which prohibition some Cleargie men vpon feare transgressing had compounded made their peace with the King in that behalfe he doubting least some of the other part of the Cleargy would bring in an ExcoÌ„municatioÌ„ against him or against some of those that had compounded with him made a Decree saith VVestmonaster commanding vnder payne of imprisonment that no man should publish any sentence of Excommunication against the King himselfe or those that had newly sought his protection he making also a prouocation or appeale as well for himselfe as those that stood on his side to the Court of Rome Thus he And now let the prudent Reader consider saith the Deuine that if the King euen in his passion of choler did appoint but imprisonment to be the punishment for bringing in an Excommunication against himselfe and Cleargy men that stood with him how vnlike is it that by the common law it was treason against the King his Realme Crowne and dignity as M. Attorneys thundring words are to bring in an excommunication against a Subiect which is much lesse then against the Kings person himselfe 79. Thirdly the said Deuine though he had not perused the law bookes at that time yet did he yeld the true Cause why priuate men might not bring in excoÌ„munications and publish them at their pleasure as now also is prohibited in other before named Catholicke Kingdomes but they were to be shewed first to a Bishop vnder his Seale were to be certified vnto the Kings Courts which since that time I haue fouÌ„d to be set down expresly in the law-bookes themselues and craftily concealed by M. Attorney for thus is it found written 11. Henr. 4â— fol 64. Hancford the chieâ—e Iustice said that he found in his bookes that in the time of VVill. â—erle who was Iudge in the beginning of the raigne of K. Edward the third euery officer or coÌ„missary of the Bishop might certify excoÌ„municatioÌ„ in the K. Court and for the mischeefe that ensued therof it was aduised by the ParlameÌ„t that none ought to certify excoÌ„munication but only the Bishop soe it is vsed at this day Thus far are Hanckefords words wherby we may see why the partie that published a Bull to the Treasurer of England without the Bishops approbatioÌ„ incurred so high displeasure 80. Fourthly the said Deuine doth conuince M. Attorney out of a Case alleaged by himself afterward in the 31. yeare of the Raigne of King Edward the third where he saith that in an attachment vpon a prohibition the defendant pleading the Popes Bull of excommunication of the Plainâ—iâ—e the Iudges demanded of â—he defendant if he had not the Certificate of some Bishop within the Realme testifying this excommunication c. VVhereby saith he it is made euident first that priuate men were obliged to shew their Bulles vnto some Bishop before they published the same and secondly it appeareth most clearly by the answers of the Iudges that they held it not for treasoÌ„ in those daies nor made any such infereÌ„ce therof for that their only resolution was this that for lacke of this Certificate the partie excoÌ„municated was not thereby disinabled to follow his plea in that Court without saying any one word of danger or punishment against him that had pleaded the Popes Bull of excommunication which they would neuer haue omytted to do if 50 yeares before that vnder K. Edward the first it had bin held for treason by the CoÌ„mon-law to bring in or publish any Excommunication against a Subiect 81. This then was the substance of the Deuines answere at that tyme which though it doth sufficiently conuince M. Attorney to haue abused his Reader egregiously in auouching with such resolution that in K. Edward the first his tyme yt was by the ancient law of England adiudged treason against the king his Crowne and dignytie to publish any Bull of the Popes against any Subiect of the Realme yet hauing synce that tyme had better commodity to informe my self of the lawbooks here meÌ„tioned I wil adde some more proofes to those which now you haue heard 82. First then I must let the Reader vnderstand that neither of those two bookes cited by M. Attorney lib. Ass. pl. 19.30 Ed. 3. and Brooke tit Premunire pl. 10. neither of them I say doth affirme that it was Treason or that there was any iudgment of Treason giuen in that Case which Case is related by Iustice Thorpe 30. Edwardi 3. thus That wheras Syr Thomas Seaton sued a Bill in the Exchequer against a woman named Lucie for calling him Traytor fellon and robber in the presence of the Treasurer and Barâ—ns of the Exchequer in contâ—mpt of the King and slaunder of the Court. Hereupon the said Lucy shewed forth the Popes Bull prouing the plaintiâ—e to be excommunicate and therfore demanded Iudgement whether he should be answered or not And for that she did not shew any writ of excommunication nor any other thing sealed by the Archbishop c. the Bull was not allowed whervpon she was forced to answere and â—leaded not guilty And in that plea Thorpe Iustice said that in the tyme of the Grandfather of the King which was K. Edward the first â—or that one did notify an excommunication of the Apostle to the Treasurer of the King the King would he should haue byn drawne and hanged notwithstaÌ„ding that the Chanceloâ—r and Treasurer did kneele before the King â—or him yet by award he did abiure the Realme and said that the woman was in a hard Case â—or shewing forth this excommunicatioÌ„ if the king would Thus far the said Book 83. VVherein we see first that here is no answere made about treason as M. Morton affirmeth nor iudgment giuen as M. Attorney auoucheth nor any such inference made by the Iudges but only a case related of what K. Edward the first in his anger would haue had to be done to a man that presented an excommunication to the Treasurer to wit he would haue had him hanged and drawne about the same which seming to his Iudges not to be iust or according to law did intreat the King not to put it in execution but rather by way of
of any honourable family dieth all his kinred do gather themselues togeather to make inquiry of his death if there be any suspicion that he was made away then they do vse torments vpon the wiues as if they were slaues and if it be found that they were guilty of the sayd death then after they haue bene tormented by fire and all other torments they put them to death 72. In which narration first you see no mention of Britans but only of Frenchmen as hath bene noted the nobility wherof are deuided by Caesar into two sortes the one Druides that had care of their sacrifices and matters of Religion the other Equites Knights that made as it were the lay nobility and of whome he recounteth this that we haue here related You will aske then perchance with what truth or syncerity Syr Edward can recite this as the Law of the Britans which is related by Caesar as the Law of the Frenchmen He hath no other shift for excuse of this but to make this note in his margent See in the Preface to the third part of my Reportes out of Caesars Comment Disciplina Druidum in Britannia reperta atque inde in Galliam translata esse existimatur It is tâ—ought that the discipline oâ— the Druides was first found in Britanny and â—rom thence translated into France And is not this a good reason that whatsoeuer is recounted by Caesar of Frenchmen should be ascribed to Brittans â—or that in tymes past the discipline of the Druides is thought by some to haue come from Britanny What coherence hath this togeather May not all lawes of the Frenchmen be ascribed by this meanes vnto the Brittans Is not this a strange direct and demonstratiue proofe to proue one thing by another This indeed is an argumeÌ„t à disparatis as Logitians do call it But let vs see more tricks besids this 73. Why had not he alleaged the whole place out of Caesar as I haue done and why doth he cyte the words so cuttedly si compertum est igne c. interficiunt yet in the English leaueth out c. saying And if she be found guilty of the death of her husband which is petty treason the wife is burnt to death as she is in that case at this day Why had not he set downe c. also in the English therby to let his Reader vnderstand that there were some words left out to wit atque omnibus tormentis excruciatas interficiunt they do kill such wiues as are found culpable after they haue byn tormented with fyre and all other torments What needed the word c. for excluding so few syllables but that yt stood not well with Syr Edwards purpose to haue them seene read for that they shew plainly that neyther Brittans nor Frenchmen had any such Law or custome to put such wiues to death by burning though they vsed the same for a torment before their death No more then it may be truly sayd that Englishmen at this day haue a law or Custome to put Priests or other men to death by the Racke though diuers of them haue byn racked and aftâ—rward put to death And this could not my Lord but see in reading Caesar wherby is euident that his Lordship also commeth into the Classes of them that auouch wilfull and formall vntruthes against their owne conscience and knowledge when they make for their purpose and yet is this far from the office manner of proceeding of a Iudge that ought to be exact and punctuall in his truth 74. But now further to his inference suppose that he had related his Author truly and that Caesar had sayd as he sayth That the ancient Brittans had this law and custome to burne wiues that should be â—ound guilty of their husbands deathes which Syr Edward saith hath continued to our tyme why if it were so to answere coniecture with coniecture should not the other part of the same law haue remayned also that husbands should haue power of life and death ouer their wiues as the Brittans according to Syr Edward had or how where or when can he proue that that part of the Law was abrogâ—ted and the other of burning them left to remaine or if he cannot or that he will say that the other part in like manner doth in rigour remaine then would it go hard no dout with many wiues at this day that are scarse patient of farre lesse power and dominion in their husbands ouer them then is that of life and death which Case as it apperteineth not to me to discusse nor to Syr Edward I thinke to determine so is it sufficient for our purpose to haue demonstrated that his answere to this third question hath neither byn Direct nor Demonstratiue nor sincerly handled nor grounded vpon true relatioÌ„ Now then to the fourth and last 75. If in all the former three questions the Iudges answere haue byn found to haue byn defectuous much more in this then in all the rest For whereas before yow haue heard them say that the Students desire was to see some proofes that the Common law in these foure particuler Cases was before the Conquâ—st as now it is and that Syr Edward had no sooner seene them but that instantly he found direâ—t and demonstratiue answere to the same now comming to answere indeed he alleageth an act of Parliament holden in the 10. yeare of King Henry the second which was Anno Do. 1164. wherin it was enacted That iâ— any Appeale came â—rom any Archdeacon or Bishop vnto the Archbishop and he should fayle to do iustice it must lastly come to the King nor proceed any further without the assent of the King which is a straÌ„ge falling from the purpose if yow marke it well For that the question was whether this Common law of England that is now in vse was in vse also before the Conquest and that as now it is vsed which the iudge affirmeth and for proofe therof alleageth a Statute made an hundred yeares after the Conquest What will yow say to this Why had he not alleaged some one example or proofe before the Conquest as the Case and question required Or why had he not gone about to satisfy some of those examples to the contrary alleaged by me in the 6. Chapter of my former Answere to his Reportes and fiâ—th demonstration to wit of Appeales to Rome of the two Archbishops of Canterbury Lambert and Athelard vnder the two Mercian Kinges Offa and Kenulphus as also the two other famous Appeales of S. VVilfrid Archbishop of Yorke against the two Kinges successiuely of the Northumbers Egfrid Alfrid All which are recounted by S. Bede others long before the Conquest which in my sayd Booke are set downe and Syr Edward could not but haue read them and are full to the purpose to proue the lawfulnes of Appeales in our primitiue Church of EnglaÌ„d yet now he saith no one word