AN ARGVMENT upon a generall Demurrer joyned and entred in an Action of false Imprisonment in the Kings Bench Court termino Trinitatis 1631. rot 1483. parte tertia betweene George Huntley Clerke plaintife and William Kingsley Archdeacon of Canterbury and others Commissioners Defendents as it was prepared to have beene uttered in Court by the said George Huntley but was not permitted by the Judges of that Court because as they pretend the said Action or Plea or Demurrer was discontinued termino Sancti Michaelis 1632. Published by the said George Huntley to shew whose duty it is to preach the visitation Sermon and thereby principally to vindicate the auntient Iurisdiction of the Crowne over the State Ecclesiasticall against the usurpation and presumption of the High Commissioners whereunto hee is bound to the utmost of his power by the oath of supremacy and secondly to cleare his own innocency and to recover his former credit and good name much blemished by their scandalous and opprobrious sentences whereunto he is tyed iure naturali A discovery also and confutation of the foresaid pretended discontinuance with a true copy of so much of the two parts of the High Commissioners first finall sentence as is pleaded by the Defendants and as conteines the whole matter to justifie the said Huntleys nine yeares three quarters imprisonment at severall times his five hundred pounds fine deprivation degradation and excommunication Both placed before the Argument the one to remove the foresaid rub of the pretended discontinuance and to open a faire and cleare passage fâ—r the Argument the other to shew the state of the controversâ—e and ground of the Argument out of the defendants owne words against which the Law admitts no exception Dicere viva voce in curia per judices non permissus Dicere in scriptis ex prelo per juramentum cogor London Printed for George Huntley and are to be sold be Michaell Sparkes in Green-harbour in the Little Old-baily 1642. The discovery and confutation of the foresaid pretended discontinuance THe true cause of the pretended discontinuance mentioned by Master Noy Atturny Generall in his motion Termino Michaelis 1632. was this That the Plaintiffe Huntley beganne his Action by originall and drew up the imparliances by Bill and so had discontinued his Action by originall in drawing up the imparliances by bill and had not begun any action by bill and so had no Action at all either by bill or originall depending in Court against the Defendants hereupon the Court granted the order following Dies Sabbati prox post Crastinum Animar Anno octavo Car. Reg. Huntley vers Kingsley alios Nisi causa ostensafuerit in contr die Iovis prox post Crastin sancti Martini actio Discontinuetur ex motione Attorn Gralis per curiam I presently got a copy of the foresaid order but I could not get my Counsell to shew cause to the contrary within the time limited in the Order neither was I permitted within that time to shew cause to the contrary my selfe and thereupon the Defendants Atturney Mr. Barker entred upon the foresaid Rolle the following discontinuâ—nce in these words Recordatur percuriam 27. die Novem. Anno Reg. Dmini Regis nunc Angliae 8º quod istud placitum non habet Deum continuationis â—er islud rotulum ultra non post predict Octab. sancti Michaelis Ideo â—lacitum illud ad requi sitionem predcti Georgij Huntley discontiâ—uatur The foresaid discontinuance enrred upon the said roll is neither grounded upon the pretended cause of discontinuance mentioned in â—he Atturney Gralls motion nor upon the foresaid Order of the Court but onely on my request and I was so farre from requesting â—ny such thing that I offered 40 pound nay 100 pound to have the foresaid error reformed And the foresaid Order mentions no error or cause of discontinuance but onely supposeth one and what can it suppose but onely that which Master Atturney Generall mentioned in his foresaid motion and that 's onely this because I began my said Action by originall and drew up the imparliances by bill in these words Petunt licentiam jnde ulterius interloquendi ad billam predictam and this I doe sixe times mention in the plea for so many Termes the Judges gave the defendants to put in their Plea and that being onely an error in forme and not specially and particularly set downe and expressed by the parties demurring together with their demurrer as appeares by the said Record rolle and the originall paper booke under both our Counsells hands which I have to shew cannot discontinue the Action Plea or Demurrer nor hinder the hearing of the cause nor bee the ground of a writt of error nether suspend nor reverse a Judgement but is to reformed and amended by the Judges even after demurrer joyn'd and entred as appeares by the 5. chapter of the 27. of Eliz. which runnes thus Bee it enacted by the Queenes most excellent Majestie c. That from henforth after Demurrer joyned and entred in any action or suit in any Court of Record within this Realme the Judges shall proceede and give judgement according as the very right of the cause and matter in Law shall appeare unto them without regarding any imperfection defect or want of forme in any writt returne plaint declaration or other pleading processe or course of proceeding whatsoever except those only which the party demurring shall specially perticularly set downe and expresse together with his Demurrer And that no judgement to be given shall be reversed by any writt of error for any such imperfection defect or want of forme as is aforesaid except such onely as is before expressed And bee it further enacted that after Demurrer joyn'd and entred the Court where the same shall bee shall and may by vertue of this Act from to time amend all every such imperfections defects and wants of forme as is before mentioned other then those onely which the party demurring shall specially and particularly expresse and set downe together with his Demurrer as is aforesaid A true Copy of so much of the two parts of the High Commissioners first finall sentence as it is pleaded by the Defendants Doctor Kingsley and the rest followes ANd upon opening of the cause the foresaid George Archbishop of Cant Richard of Durham Iohn of Rochester Thomas of Coventrey and Lichfield Theophilus of Landaffe Robert of Bristoll Bishopps and some other of the Commissioners aforesaid found the aforesaid George Huntley especially charged in the Articles with two perticulars first for refusing to Preach a Uisitation Sermon at the requisition and command of the Archdeacon of the Diocesse contrary to his Canonicall obedience and secondly for setting up an opinion and maintaining it before the rest of the Clergie of the Diocesse that the Archdeacon of the Diocesse had no power to require or command him or any other Minister to preach a Sermon at his Uisitation with many other abusive behaviours about that
obedience unto the canons testantibus ad versarijs the person but meane poore but a Presbyter a minister an incumbent and that onely of a single benefice and never any waies contumacious this matter belongs not to the cognisance of the High commission but to the jurisdiction of the ordinary and then it hath beene all this while coram non judice and so the sentence and whole proceedings are utterly voyd And thus much concerning this first question which my refusall to preach the Archdeacons visitation Sermon if it be a breach of Canonicall obedience begets namely that the breaches of canons or of canonicall obedience to the canons according to the Lawes and customes of his land belong to the jurisdiction of the Ordinary and not to the cognisance of the High commission court or that for the breach of a canon or of canonicall obedience to the canons according to the Lawes and customes of this land men are not to be fetcht from the judgement jurisdiction of the Ordinary up to the High Commission court and there to be fin'd imprisond but are to be left to the judgement and jurisdicton of the ordinary and he to proceede against them according to the power of the Keies Now on the other side my Lord if this my refusall to preach the Archdeacons visitation sermon be no breach of canonicall obedience then it begets this question whether the high commissioners your Lordship this court the Barons of the Exchequer and the Lords of the counsell have power to punish me for that which is no fault no breach of any law And least the high commissioners this court the Barons of the Exchequer and the Lordes of the counsell should all thinke to escape by maintaining the affirmative that they have power to punish me for that which is no fault no breach of any law and peradventure in a desperate case they will not sticke to maintaine a desperate opinion especially seeing your Lordship hath shew'd and lead them all the way For termino trinitatis 1637. When your Lordship delivered your opinion in the especiall verdict betweene Allen and Nash your Lordship not onely affirmed the high commission sentence of deprivation and degradation against me but also maintained that your Lordship and this court were bound to affirme it whether it were true or false grounded upon a cause or upon no cause Therefore my Lord to stoppe up that gap to prevent that starting hole to overthrow that parodox and with one argument to confute those foure Honorable senates whereof the first and the last the high commissioners and the Lords of the counsell challenge as great authority as the King himselfe hath and all of you in this my case usurpe a greater for you all punish me for that which is no fault no breach of any law I must in the first place Thesis 1 shew that no Magistrate whatsoever no not the supreame hath any power prerogative or authority to punish any man within his jurisdiction except it be for some fault some offence some vice some error some evill some sinne some transgression of some law Thesis 2 And secondly I must shew that my refusall to preach the Arch-deacons Visitation Sermon my principall or especiall fault in the judgement of my adversaries is no fault no offence no vice no error no evill no sinne no transgression of any Law whatsoever and that therefore neither the high commissioners your Lordship this court the Barons of the Exchequer the Lords of the counsell nor any other Magistrate whatsoever no not the supreme hath any power prerogative or authority to punish me muchlesse to imprison me for it And for the first of these positions that no Magistrate whatsoever no not the supreame hath any power Thesis 1. Tractatio prerogative or authority to punish any man within his jurisdiction except it be for some fault some offence some vice some error some evill some sinne some transgression of some law this appeares out of the 13. chapter to the Rom. verse 3. where the Apostle speaking of that Magistrate to whom the sword is committed of that Magistrate to whom we pay tribute of that magistrate to whom we must submit not onely for wrath but for conscience sake of that Magistrate to whom every soule is to be subject that is of the soveraigne supreme Monarchicall Magistrate Gods immediate deputy and vicegerent he saith of that Magistrate the Magistrate is not a terror to good workes but to evill wilt thou then be without feare of the power doe well so shalt thou have praise of the same for he is the Minister of God for thy wealth But if thou do evill then feare for he beares not the sword in vaine for he is the Minister of God to take vengeance on him that doth evill Saint Paul then is cleere that no Magistrate whatsoever can justly punish any man except it be for some evill And Saint Peter testifies as much 1 Epist 2. chap. 13. and 14. verses Submit your selves saith he to every ordinance of man for the Lords sake whether it be unto the King as the supreame or unto governours as them that are sent of him sent of him for what purpose Even for the same purpose that he before is sent of God namely for the punishment of them that doe evill and for the praise of them tbat doe well So that by the expresse word of God no Magistrate whatsoever no not the supreame hath any power prerogative or authority to punish any man within his jurisdiction except it be for some fault some offence some vice some error some evill some sinne some transgression of some law And this much my Lord king Artashast saw by the very light of nature as appeares by the wordes of his Commission granted to Ezra and expressed Ezra 7. chap. 25. 26. verse And thou Ezra after the wisedome of thy God that is in thy hand set Magistrates and Iudges which may judge all the people beyond the river even all that know the law of thy God and teach-yee them that know it not And whosoever will not doe the law of thy God and the law of thy King let judgement be speedily executed upon him whether it be unto death or to banishment to confifcation of goods or to imprisonment In which wordes King Artashast just as Saint Peter and Saint Paul before did gives power unto Ezra to punish men not for well doing but for evill doing no for keeping but for breaking Gods lawes and the Kings not for obedience but for disobedience not for vertue but for vice Nay God himselfe chalengeth no greater prerogative then to reward the observers and to punish the transgressers of his law Cursed be he saith Moses that confirmeth not all the wordes of Gods law to doe them Deut. 27. or as the Apostle expresseth it Gal. 3. Cursed is every man that continueth not in all things which are written in the booke of the law to doe them And if
twenty nine chapter of Magna Charta most fully and strongly confirmed 3. Caroli by the Kings Majesty in his answer to the Commons Petition of right in these wordes let right be done as is desired according to that twenty nine chapter of Magna Charta Now what saith that twenty nine Chapter of Magna Charta No freeman saith that chapter shal be taken or imprisoned or be disseised of his freehold or liberties or free customes or be outlawed or exiled or any otherwise destroyed neither will we passe upon him nor condemne him saith the King but by the lawfull iudgement of his Peeres or by the law of the land That is under your Lordships the Courts correction whose office it is to interpret statutes unlesse that party be first convicted found culpable of the breach of some law of this land by a legall proceeding either at the common law or else in some other court and whosoever shall either condemne or punish any freeborne subject of this kingdome either for his obedience to the lawes of this land or for that which is no breach of any law of this land he doth violate that twenty nine chapter of Magna Charta and for that he stands excommunicate by a double excommunication the one deliver'd publikely here in Westminster Hall (f) Tempore Bonifacii Archie◠regnante tunc in Anglia H. 3. videlicet anno Dom. 1253. Id ibus Maii. inaula Westmon 15. Epis leguntur sententiam de qua hic sit mentio fulminasse Lyndew Prov. lib. 5. tit de sententia excom cap. cum malum Parag. Item excom verbis ab omnibus Daniell in the life of H. 3. 37. Henry 3. by Bonifacius then Archbishop of Cant. assisted with 14. other Bishops all in their pontificalls and tapers in their hands which after the excommunication denounced they threw upon the ground and as they lay there smoaking they cried so let all them that incurre this sentence be extinct and stincke in hell and all this was done in the presence of the Commons Nobles yea and of the King himselfe who at the same time with a loud voyce said as God me helpe I will as I am a man a Christian a Knight a King crowned and anointed inviolably observe all these things and the excommunication it selfe is set downe at the end of the statutes made 52. H. 3. in the booke of statutes at large put out by judge Rastall the other is extant in the same booke at the end of the statutes made 25. Edward 1. and uttered by Robert Winchelsee Arch-bishop of Canterbury in his time both against the violaters of this renowned law of Magna Charta often confirmed not onely by the following Kings the successours of Henry the third and Edward the first but also by the Pope him selfe as appeares out of the fift booke of Lyndewodes provinciall titulo de sententia excommunicationis cap. Cum Malum parag Item excommunicatj And besides the former confirmations and excommunications the authority of Magna Charta was made sacred and inviolable as it were 25. Edward 1. first by decreeing that that charter under the Kings seale should be sent unto all the Cathedrall Churches throughout the Realme there to remaine and to bee read before the people twice a yeare And secondly by enacting that that Charter should ever after be propugnated and vindicated by the sentence of excommunication to be denounced twice a yeare by all Archbishops and Bishops in their Cathedralls against all those that by word deede or counsell did doe contrary to the foresaid charter or that in any point did breake or undoe it and if the same Bishops or any of them should be remisse in the denuntiation of the said sentence that then the Archbishops of Cant. and Yorke for the time being should compell and distraine them to the execution of their duties in forme aforesaid as appeares by the 3. and 4. chap. 25. Ed. 1. And surely my Lord those two former solemne excommunications were those other continuall semiannuall excommunications might have beene hitherto and may hereafter bee rightly and justly denounced against the violaters of this 29. chap. of Magna Charta for this 29. chapter that no free man is to be punished but for the breach of some law is good Divinity accords excellently with the word of God The Apostle Rom. 4.15 telles us 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the law causeth wrath that is punishment and how doth the Law cause wrath or punishment not simply singly of it selfe not observ'd but transgrest and therefore in the next words the Apostle saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where there is no Law there is no transgression And as where there is no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no law there there cannot bee any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any transgression of Law so where there is no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no transgression of law there there cannot be any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any fault or offence and where there is no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no fault or offence there there ought not to be any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any wrath or punishment Nay my Lord though there be a law yet if that law be not transgrest there cannot justly be any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any wrath or punishment At most though there may bee 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 proposita 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 denuntiata wrath proposed or denounced in the Law to terrifie all persons from sinne which is nothing but the binding power of the Law yet justly there cannot be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 imposita 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 inflicta wrath imposed or inflicted by the Judge upon any person to punish him for sinne untill the Law be transgrest and sinne committed by that person And this the Apostle Rom. 5.12 doth most acutely divinely shew by imputing the punishment partly to the Law and partly to the transgression of the law to the Law as to a just rule inflicting punishment upon the transgression to the transgression as to a meritorious cause deserving that punishment according to the just rule of the Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 By sin which is the transgression of the law Death the wrath punishment of the law entred into the world So then my Lord this is most certainely and most undoubtedly true wheresoever there is any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any wrath or punishment any fining or imprisonment any deprivation degradation excommunication or any other censure sentence mulct or punishment whatsoever rightly and justly inflicted There there must of necessity of necessity my Lord there there must be some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some fault or offence Wheresoever there is any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any fault or offence there there must of necessity of necessity my Lord there there must be some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some transgression of Law Wheresoever there is any 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 any transgression of Law there there must of
not the titles of justice must prove you just without these works you may be call'd Iustices but it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 abusive 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 antiphrasis est vox signans contraria dicto and then you have no better right to be call'd Iustices than the Lords supper hath to be call'd missa and missa signifies the Lords supper just as excommunication doth the Communion as Bishop Bilson shewes for missa is a sending away from the Lords Supper as excommunication is from the Communion Or if you have any better right to be called Iustices yet without the works of justice it is only ratione officii not ratione meriti and in that sence as the Papists say if Iudas or Simon Magus were Popes they had right to and might be honoured with the title of holinesse And in this respect as Gerson saies absque mendacio Papa nequissimus dici potest Sanctissimus and in that regard any of the lapsed Angels even Belzebub himselfe the prince of devills in regard of originall purity and Gods law written in him in the Creation which ex officio is over bound to observe may be call'd Angelus Sanctissimus although in respect of his workes now and ever since his fall he be spiritus impurissimus diabolus nequissimus But if you will be truly called Iustices both ratione officii ratione meriti then you must do the works of justice you must do justa juste that is as Aristotle expounds himselfe you must doe justice volenter scienter constanter willingly without any backwardnesse wittingly by hearing sifting and searching the allegations and proofes alwaies on both sides and constantly without any intermission or deviation Or if you had rather have the rule from Solomon you must do justice joyfully It is joy saith Solomon to the just to do judgement Prov. 21.15 And this one word of Solomon includes the three former of Aristotle For if it be joy to the just to do judgement then he will do it willingly wittingly and constantly or if you please take the rule out of your own Lawes out of the common Lawes of the Land out of the epitome an principall part thereof magna Charta cap. 29. you shall deny to no man you shall delay to no man you shall sell to no man justice or right you shall deny to no man you shall delay to no man justice or right therefore you shall do to every man justice and right speedily you shall sell to no man justice or right therefore you shall do to every man justice and right freely and joyne all these together and then you have the absolute and compleat rule of justice The observation whereof will make you all not only Iustices but also chiefe Iustices if not ratione loci tituli officii which is the inferiour yet ratione operis meriti which is the superiour and will make suum cuique which is anima vigor executio legis take place in every cause that comes before you wherein next after the service and worship of God and the exercise of the true Orthodox Religion consists the welfare and flourishing estate both of Church and Common-wealth And this my Lord will be the best if not the only course to vindicate the credit of this your Court and to confute that opprobrious distinction of Court Christian and not Christian whereby the name of Court Christian is appropriated only to the Ecclesiasticall Courts and all Temporal Courts reputed Ethnick or heathenish but both very erroneously For it is the doing of justice that makes Courts Christian and the omitting or neglect of justice much more the doing of injustice that makes Courts Ethnick or Heathenish as the Apostle shewes in his 1. Epistle to the Corinths 6. chapter 1. vers Dare any of you having a matter against another be judged under the unjust and not under the Saints which Apostolicall Dichotomy if it be rightly made and the members thereof truly opposite then they which are unjust cannot be Saints or Christians and they which are Saints or Christians cannot be unjust And to make the matter more cleare those whom the Apostle in the first verse calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unjust those in the 6. verse he calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unbeleevers or infidells And those whom the Apostle calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Saints or Christians Saint Iohn calls doers of righteousnes If you know that Christ is righteous know ye that every one that doth righteousnesse is borne of him in his first Epistle 2. chap. 29. verse and in his 3. chap. 7 verse he calls them both righteous and doers of righteousnesse He that doth righteousnesse is righteous even as Christ is righteous And therefore my Lord that Court which doth justice is a Court Christian and that Court which doth not do justice is a Court not Christian If the Ecclesiasticall Court doth justice more cheerefully readily and freely than the Temporall Court then the Ecclesiasticall Court is more Christian if the temporall Court doth justice more cheerefully readily and freely than the Ecclesiasticall Court then the temporall Court is more Christian if they both do justice as they both should do then both are Christian if neither do justice then neither is Christian Or if both Ecclesiasticall and Temporall Iudges will have themselves and their Courts reputed christian though they do not do justice yet they must be content to be ranked among those christians who professe they know God but by their works deny him Tit. 1.16 or among those who have indeed a shew or forme of godlinesse but have denied the power thereof 2. Tim. 3.5 Wherefore my honoured Lord Chiefe Iustice and my honoured Iudges to the intent that you may shew yourselves and this your Court truly Christian 〈◊〉 do most humbly and most heartily beseech your Lordship and these my honoured Iudges to observe the former excellent rules of justice both in this case of mine now after full twelve years three quarters and in all other mens cases at the first as you will answer the contrary before the dreadfull tribunall of God himselfe whose deputies you are whose names you beare whose oath you have taken whose worke you are here to do and in whose presence and judgement as you now sit to judge others so you shall hereafter stand to be judged your selves and that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 without prejudice without partiality ubi plus valebunt pura corda quam astuta verba conscientia bona quam marsupia plena Dixi. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ignatius Epist ad Polycarpum FJNJS Errata Faults in some Copies and their Corrections P. and the first number shews the Page L. and the second number the line M. the Margine E. signifies expunge F. for R. read W. wants TItle Pag. line 34. reade by for be p. 1. l. 24. r. Diem p. 2. l. 1. r. it f. I p. 3. l 27. w. the. p. 6. l. 8. r. certifie l. 22. w. the. l. 33. r. desisting l. 35. w. corpus l. 38. r. nay f. may P. 7. l. 16. r. impartially p. 9. l. 5. r. decide l. 11. r. duety l. 23. r. gnaviter l. 24. r. confitenti p. 12. l. 8. r. cognisance p. 17. l. 32. r. expresly p. 19. l. 17. r. asticall p. 20. l. 7. r. provinciall l. 8. r. presbyteri l 12 r mandato p 22 l 11 r this f his l 32 r speciall p. 24 l 14 r the f thy l 32 r provinciall p 29 l 25 w no. p 30 l 40 r his f the. p 31 l 3 marg w the. p 34 l 17 w. according p 38 l 30 w the. p 40 l 25 r of f. or p. 42 l 28 mar read 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l 45 mar r consensio p 43 l 17 r glosse p 47 l 9 r igitur p 51 l 18 mar r. Enthymems p 55 l 8 r whosoever p 56 l 40 r soliciti Item p 57 l. 1 and l 12. p 59 l 28 r proponere p 64 l 22 r solicite p 68 l 6 m E l 36 m r marginall p 69 l 3. r lawfull l 37 r imply p 79 l 1 r Archdeacons p 82 l 27 E to l 35 r this f his p 86 l 29 r not only against the King himselfe but also against Cod himselfe p 87 l 15 r gift f right p 90 l 38 r non p 93 l 10 r oculi
causes and therefore none might sue before them for Tythes Legacies Oblations Pentions or Portions First because this would bee a meanes to take away all Ecclesiasticall proceedings from the Ordinary Secondly because their sentences and Decrees are finall and no appeale lieth from them so that it might be very mischeivous if they should hold plea of all manner of Ecclesiasticall causes Thirdly because the first of Elizabeth giveth them power only in enormities 1. in hainous horrible and exorbitant crimes In the Exchequer in Ailemers case it was resolved that the High Commission might not meddle to punish one for working upon holy dayes 44 Eliz. rot 1255. in the Common Pleas in the case of Tailer and Masse a prohibition was granted where one was convented before the high Commission for giving irreverend speeches of a Minister for carrying his corne on holy daies and for not suffering the Parson and parishioners to goe through his yard upon Rogation weeke and for not giving them a repast in the perambulation as hee had used to doe and for whistling and knoeking upon the doore of the parson and saying hee did it to make the parson musick for the marriage of his Daughter for this ought to be before the Diocesan But my Lord there is one case at the common Law which I more esteeme than the three former because in this very point it conteines not only the resolution of all the reverend Judges then of this Court but also a reall confession of the High Commissioners themselves my very adversaries and that 's this mire owne case for the high Commissioners did at first Pasohae 1627. committ me to prison for breach of canonicall obedience in refusing to Preach the Archdeacons Uisitation Sermon after two yeares imprisonment when upon an habeas corpus I was set at liberty by the court paschae 1629. because that matter was coram non judice then trinitatis 1629 in their second finall sentence upon the same Articles wherein there is no crime objected against mee they charge me with grievous and enormous crimes mentioned in the Articles that so they might make the matter coram judice and within the cognisance of the High Commission So that by the canon and common Law and by the reall confession of my very adversaries the breaches of Canons or of Canonicall obedience unto the Canons belongs to the Jurisdiction of the Ordinary and onely grievous and enormous crimes to the cognisance of the High Commission court Ratio 2 My 2. reason my Lord is taken from the custome practise over England for it is the generall custome uniforme practise over all Eugl. for the Church wardens to make their presentments at the Ordinary or episcopall jurisdiction not at the High Commission Court therfore the breaches of Canons or of canonicall obedience unto the canons belongs to the jurisdiction of the Ordinary not to the cognisance of the high commission court And this reason being the generall custome uniforme practise over all England time out of minde both of all the Church-wardens in making their presentments of all the ordinaries in receiving them is the Common Law of the Land being in use nono Hen. 3. is confirmed by the 1. chap. of Magna Charta under the name of the Rights Liberties of the Church for as Lyndewode in the fifth booke of his provinc tit de sententia ex communicationis cap. cum saepius verbis Ecclesiasticae libertatis Saith Ecclesiastica libertas inter caetera consistit in libero exercitio Iurisdictionis Ecclesiasticae And this custome Ecclesiasticall liberty jurisdiction hath lately been cleer'd by the resolution of all the reverend Judges then of the 3. Honorable Courts of Common Law as appeares by his Majesties Proclamation dated at Lyndhurst 18. August 13. Caroli wherein they affirme that the Bishops Archdeacons other Ecclesiasticall persons may keepe their visitations as usually they have done then they may receive all presentations from the churc-wardens as usually they have done then they now have a generall jurisdiction as formerly they have had And this their resolution is fully warranted by the fift proviso of the 2. cha of the 1. of Eliz. for that proviso and paragraph gives power to all Archbishops Bishops to every of their Chancellours Commissaries Archdeacons and other ordinaries aswell to inquire in their visitations synods and elsewhere within their jurisdiction at any other time and place to take accusations and informations of all and every the things above mentioned done committed or perpetrated within the limits of their jurisdictions authority to punish the same by admonition excommunication sequestration or deprivation other censures and processe inlike forme as hath heretofore been used in like cases that is cases of Ecclsiasticall cognisance by the Queenes Ecclesiasticall lawes not by a commission as some would have it but by the Queenes Ecclesiasticall lawes Which last words doe approve of such a jurisdiction as the ordinaries at that time did exercise according to the Ecclesiasticall lawes of the land at that time both before and since that time the Ordinaries did do exercise a generall jurisdiction according to the Ecclesiasticall lawes of the land without a commission as appeares upon record in their owne Courts the Canons Ecclesiasticall lawes of the land doe approve of that generall jurisdiction of the Ordinaries as appeares by the body both of Lyndewodes provinciall of the legantine constitutions of Otho and Othobon and also by tenne of our last Canons made primo Iacobi namely by the 109. to the 119. so that in this second reason the Common and Canon and Statute Law doe concurre and all three shew that the breaches of Canons or of canonicall obedience unto the canons belong to the jurisdicton of the ordinary and not to the cognisance of the High Commision Court Ratio 3 My third reason my Lord is taken from his Majesties Letters Patents confirming the canons of our Church made primo Iacobi for therein after he hath in the first place confirmed those canons with his Letters Patents out of his supreme Ecclesiasticall jurisdiction and in the second place charged all his loving subjects of both Provinces to keepe and observe all those Canons in every point wherein they doe or may concerne every or any of them and in the third place charged all Archbishops Bishops and all others that exercise any Ecclesiasticall jurisdiction within this Realme to see and procure that all within their jurisdictions doe observe the foresaid canons in the former manner then in the fourth place he gives power to the said Archbishops Bishops and to all others that exercise any Ecclesiasticall jurisdiction within this Realme to inflict all the punishments mentioned in those canons upon the violators of those canons so that by his Majesties owne gift grant primo Iacobi The breaches of canons or of canonicall obedience unto the canons are assigned
deputed to the Episcopall or ordinary jurisdiction and not reserved to the jurisdiction of the crowne or cognisance of the high commission Ratio 4 My fourth reason my Lord is taken from his Majesties commission granted to and pleaded by the commissioners which gives unto them onely a particular and a limited jurisdiction consisting in certaine Ecclesiasticall causes and certaine particuler offences against certaine particular lawes and not a generall jurisdiction in and over all Ecclesiasticall causes and offences as large and spatious as the canons and Ecclesiasticall lawes themselves And this will appeare my Lord by a particular enumeration of all the severall branches of the commission it selfe But this would bee a great labour and will be altogether needlesse whether the Defendants can shew any such branch of their commission or not for if they cannot shew any such branch of their Commission then doubtlesse the labour will bee needlesse seeing the proofe lies on their side no proofe being made sufficet neganti ut neget dummodo non probetur in contrariū And if they can shew any such branch of their commission then it shall suffice to confute that branch when the defendants or their counsell shal produce it I confesse my Lord that the Commission dated 11. Iacobi extends as far as the canons ecclesiasticall lawes themselues in cases concerning the reformation of Ministers for it gives in expresse termes power and authority to the commissioners to punish a Minister for any fault committed in his owne cure or else where that is punishable by the Ecclesiasticall lawes of the Land but I am sure my Lord that there is no such branch in the commission pleaded by the Defendants and therefore in that very respect if in no other an information lies good against the commissioners and this court hath rightly assigned me for a prosecutor in an information against the commissioners for going beyond their commission And if there were any such branch in their commission that branch under favour were void because it is contrary to the sence and meaning to the scope and drift to the very letter and text of the 1 of the 1 Eliz. the statute whereupon their commission is grounded as shall now appeare by my next and Ratio 5 Fifth reason which is taken from the 1 of the 1 Eliz. and from the 19 of the 25. of Hen. 8. reviv'd in the first of Eliz. and therefore whatsoever the 1 of the 1 Eliz. doth particularly and expressly establish by reviving the 19 of the 25. of Hen. the 8. It is to bee presumed that it doth not in the same statute afterwards by generall tearmes abrogate for that were to make that statute like the high commission sentence against me to be at variance with it selfe and to have our part contrary to another why then my Lord seeing the first of the first of Eliz. by reviving the 19 of the 25. of Hen. 8. doth particularly and expressly allow unto the ordinary with in his diocesse a generall jurisdiction in reference to the canons and Ecclesiasticall lawes of this land It is not to bee supposed that in the following parts of that statute the Parliament did afterwards by generall tearmes take that away from the ordinary and therefore those insuing generall words which enables the King to nominate commissioners and by his commissioners to reforme and correct all manner errors heresies schismes faults offences enormities which by any manner of power or authority may be reformed doe not make voide the the former statute and generall jurisdiction of the ordinary but only shew that be the fault never so great so that the ordinary by vertue of his subordinate jurisdiction cannot sufficiently punish it yet it may be sufficiently punished by the Kings supreame jurisdiction within the land without going to the Pope out of the land for by that paragraph that is invested in the crowne which by the former paragraph was abolished and extinguisht in others and in the former paragraph all forraigne usurped power onely and not the ordinary jurisdiction is extinguisht So that by those former generall wordes such grear grievous and enormous crimes onely as the ordinary by vertue of his subordinate jurisdiction cannot sufficiently punish may be brought to the high Commission court and there fully punisht and yet the former statute and generall jurisdiction of the ordinary remaine whole and intire namely that breaches of Cannons or of Canonicall obedience unto the Canons belong to the jurisdiction of the ordinary and that be within his diocesse hath power to punish any fault punishable by the Ecclesiasticall lawes of this land And this interpretation My Lord is warranted first by the very title of that statute which is an act to restore unto the crowne the ancient jurisdiction over the state Ecclesiasticall and for abolishing all forraigne power repugnant to the same not for abolishing the ordinary jurisdiction which is subordinate unto it but for abolishing all forraigne power repugnant to the same And the abolishing of the one and the restoring of the other is the whole and sole cause and occasion of that statute as is more fully exprest in the beginning of that statute where the Lords Spirituall and Temporall and the Commons do all acknowledge that from the 25. yeare of Henry the 8. at which time all forraigne usurped power was by divers good lawes and statutes abolisht and the ancient Ecclesiasticall jurisdiction fully restor'd and united unto the Crowne they were kept in good order and were disburdened of divers great and intollerable charges and axactions untill such time as the aforesaid good laws an Statutes made since the 20. yeare of Henry the eight by one act in the first and second of Philip and Mary were all cleerely repeal'd whereby as they there complaine they were againe brought under an usurped forraigne power and yet remaine in that bondage to their intolerable charges if some releife be not had and provided and thereupon they supplicate that both the foresaid statute of repeale may be repealed and the foresaid good laws and Statutes for abolishing all forraigne usurped power and for restoring the ancient Ecclesiasticall jurisdiction unto the Crowne may be revived In all which there is not any one word spoken against the Ordinary jurisdiction but onely against forraigne usurped power and this being the onely greivance and the totall occasion of that law must direct us in the interpretation of that law for occasio legis indicat mentem legislatoris sensum legis Secondly by the oath of Supremacy extant in the same statute and made for the same purpose namely to abolish all forraigne power repugnant to the jurisdiction of the Crowne not to abolish the ordinary jurisdiction which is subordinate unto it Thirdly by those generall wordes wherein the Kings jurisdiction is exprest namely by these wordes all errors heresies schismes faults offences enormities which last word doth and must qualifie all the rest and doth shew that by those wordes
principall point your Lordship must either shew that the sentence found againg Caudrey did not charge Caudrey with any particuler crime within any branch of the Commission found but onely with generalls as in my case Or else that the sentence found against me doth charge me not onely with generalls but also with some particuler crime within some branch of the Commission found as in Caudreys case And unlesse your Lordship can doe one of these two your Lordship may sooner bring together Hercules his two pillers or the two poles then paralell our two cases in the principall point And untill then this sentence containing onely generalls shall according to Gods word the word of truth stand charg'd and branded with injustice and uncharitablenesse and in respect of the anomy obliquity and enormity of it shall be taken by all men of sound judgement to bee as indeede it is not a sentence according unto law but a sinne and a foule sinne against law or rather to use the words of that erronious sentence in a true sence a grievous and enormous crime contrary to the Law and therefore voide And both the High Commissioners in giving of it and your Lordship and this Court in affirming of it have shewed your selves not Judges according unto law but sinners against Law and I out of love to all your persons our of duty unto God and out of obedience unto his word am bound to tell you so much expressely by the former text Levit. 19 17. Thou shalt not hate thy brother in thy heart but thou shalt plainely reprove him and not suffer sinne upon him And secondly my Lord this High commission first finall sentence of the five hundred pounds fine and two yeares imprisonment against me is for the same reason likewise voide because though it mention a particular namely my refusall to preach the Archdeacons Uisitation Sermon yet that particular that refusall to preach that Uisitation Sermon is no fault no offence no vice no errour no evill no sinne no transgression of any law whatsoever but a vertue and an eminent vertue even the vertue of canonicall obedience unto the 36. 49. and 52. Canons to his Majesties Letters Patents Royall prerogative and supreame Ecclesiasticall jurisdiction as shall now fully and amply appeare out of my second position And thus much concerning my first position that no Magistrate whatsoever no not the Supreame hath any power prerogative or authority to punish any man within his jurisdiction except it bee for some fault some offence some vice some error some evill Thesis 2 proâ—atio some sinne some transgression of some law I now proceede to my second position that my refusall to preach the Archdeacon of Cant. Doctor Kingsleys visitation Sermon my principall or especiall fault in the judgement of my adversaries is no fault nor offence no vice no errour no evill no sinne no transgression of any law whatsoever and that therefore neither the High Commissioners your Lordship this court the Barons of Exchequer the Lords of the Counsell nor any other Magistrate whatsoever no not the supreme hath any power Prerogative or authority to punish me much lesse to imprison me for it And that I may begin and goe on in this position with that upon which I did much insist in the former certaine it is my Lord that here is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 here is wrath and punishment here is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ad octo here is wrath in the highest degree here is wrath as grievous as the fire is hot here is wrath incomparable implacable inexplicable wrath unparalel'd wrath superlative 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Greg. Nissen 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in another case speakes The evill the mischeife is beyond expression beyond consolation The two finall sentences of the Honorable Court of High Commission against me may not unfitly be compared to that winde in the first of Iob for as that winde strooke upon the foure corners of Iobs eldest sonnes house and so did utterly ruinate it so have these two finall sentences strooke upon the foure quarters of my estate and utterly ruinated me in all if they stand good first they have strooke me in my goods by a fine of five hundred pounds estreated into the Exchequer and partly paid and partly stall'd Secondly they have strooke me in my liberty by foure times imprisonment and nine full yeares and three quarters continuance therein Thirdly they have strooke me in my benefice by deprivation Fourthly they have strooke me in my Ministeriall function by degradation nay my Lord they have strooke me one stroke more above and beyond all the former they have drawne out the spirituall sword of excommunication against mee and therewith as much as in them lies they have strooke me out of this orthodox Church cut me off from the communion of Saints delivered me up to Satan and adjudged my soule for the salvation whereof our Lord and Saviour Jesus Christ shed his most precious blood to the eternall torments of hell fire so that if ever there were then here is wrath incomparable implacable inexplicable wrath unparalel'd wrath superlative Now my Lord if herein the defendants have proceeded according to the rule of Justice which placeth and observeth a proportion and correspondency betweene fault and the punishment according to this rule of Gods word Deut. 25.2 Secundum mensuraÌ„ dilicti erit plagarum modus then it must needes be that this greivoâ—s enormous punishment must argue some greivous enormous crime some crying sinne like that of Cain in murdering his brother Abell whose blood calles to God for vengeance out of the dumbe and dead Element of the earth nay it must argue some ascending some soaring some mounting sinne flying up into the presence of God and laying hands as it were upon the Almighty and violently haling pulling him downe to execute vengeance unpon the offender like the sinnes of the Sodomites and what is it Why it is my refusall to Preach the the Archdeacon of Canterbury Doctor Kingsleys visitation Sermon Parturiunt montes nasceturridiculusmus And now my Lord to examine this their sentence and proceeding to law and justice If this wrath this incomparable wrath and punishment or any peere or particle thereof be rightly and justly inflicted upon me for my refusall to preach the Archdeacons Uisitation Sermon Then according to the former rule delivered in the former position this my refusall to preach the Uisitation Sermon must of necessity be some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some fault or offence If this my refusall to Preach the Uisitation Sermon be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some fault or offence then it must of necessity be some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the transgression of some law If it bee 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the transgression of some law then there must of necessity be some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some law transgrest that bindes me to Preach that Uisitation Sermon My Lord the High Commissioners by
the very Letter and text of some Commissions that I have seene have this power that they may punish a Minister for any fault committed in his owne cure or else where that is punishable by the Ecclesiasticall lawes of this land By which words my Lord it appeares that first there must bee some fault Secondly that that fault must be against some law Thirdly that it must bee against some Ecclesiasticall law of the land or else that Honorable Court by the very Letter and text of the largest commissions that I ever saw have no power to punish a Minister And though this their Commission my Lord doth much outstrip the first of the first of Eliz. the statute whereon it is grounded for that statute extends not to every fault punishable by the Ecclesiasticall lawes of this land for then it would swallow up all the ordinary jurisdictions over England but onely to greivous and enormous crimes punishable by the Ecclesiasticall lawes of the land as the Counsell on both sides in the speciall verdict betweene Allen and Nash have confest and the wordes of the statute as I before have shewed doe necessarily enforce Yet in this case of mine to shew mine owne innocency and the goodnesse of my cause not to make a precedent in other mens cases I will give the defendants free leave and liberty to exceed both the statute and their Commission I will not coope them up and confine them within the lists and limits of the Ecclesiasticall lawes as the most indulgent and munificent Commissions that ever I saw doe yea and must doe unlesse they will make their Commission as well Temporall as Ecclesiasticall no my Lord I will not require an Ecclesiasticall law let them produce an law canon civill common statute or divine nay my Lord I will once againe deale more Nobly and generously more heroically and munificently with that Honorable court with those Augustins Hieromes Gregories Ambroses with those Nazianzens Chrysostomes Origens Basils with those reverend right reverend most reverend Prelates and Patriarchs of our church I will not require a whole law noe not a full period of a law Let them onely produce some colon nay some comma of law onely nay my Lord I will once againe deale more Nobly and generously more heroically and munificently with that Honorable court I will not require a whole colon no nor a whole comma of law neither that were too too an Herculean labour for that Honorable Court for those Canonists Civilians and Divines for those commissaries chancellours Arch-deacons Deanes Bishops Arch-bishops let them onely produce 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some shaving some scraping some paring some shred peece particle or fragment of Law nay let them onely produce 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unum unum apicem one jot one apex one tittle one pricke or point of law of any law my Lord and I doe most willingly and most instantly submit And now my Lord as the defendants doe pretend a fault so likewise they doe pretend a law the pretended fault is my refusall to Preach the Archdeacons Visitation Sermon the pretended law is the Law of Canonicall obedience They say that my refusall to preach the Arch-deacons visitation sermon at the Arch-deacons command is a breach of Canonicall obedience And now my Lord we are come to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ad statum causae ad caput controversiae for this Canonicall obedience is the whole and sole ground and foundation and supportation of the whole sentence against mee and it cannot be understood and determined whether my refusall to preach the visitation sermon be a breach of canonicall obedience or not unlesse it be first knowne and understood what this Canonicall obedience is so that in the first place my Lord there is a necessity imposed upon mee breiflly to present unto your Lordship what this Canonicall obedience is The high Commissioners in the first part of their finall sentence as it was given in their owne Court make Law custome and Canonicall obedience three different and distinct thinges For therein they say that the Archdeacon in injoyning Huntley to preach his visitation sermon hath commanded him no more than the said Huntley was bound to doe by law custome and by his Canonicall obedience and herein by making Canonicall obedience a third and distinct thing from law and custome they shew that they onely use the name of Canonicall obedience but intend arbitrary or blind obedience that is a generall and universall obedience to all the Arch-deacons commandes though they swarve both from law custome whereby they make every Arch-deacon Bishop and Arch-bishop a law-maker within his owne jurisdiction and every of their commands binding and compulsive though fortified neither by law nor Custome But your Lordship as it seemes not content herewith steps a degree further and makes Canonicall obedience not onely a third and distinct thing from law and custome but also a thing opposite and contrary to law and custome for termino trinitatis 1637. when when your Lordship delivered your opinion in the speciall verdict betweene Allen and Nash your Lordship said that if the Arch-deacon did owe me an 100. pounds by bond he might by vertue of my Canonicall obedience command mee to deliver up that bond the money not being yet paid Or he might command me by vertue of my Canonicall obedience to send him a yoke of fat oxen a couple of good Coach-horses or a score of fat weathers which I am sure is not onely beyond but contrary to law and custome and more than either his Majesty or any of his royall predecessours did ever chalenge of any freeborne subject either by the oath of allegiance or oath of supremacy whether your Lordship have altered this your opinion or no I know not the high Commissioners I suppose have altered theirs For certaine it is that the former wordes of the first part of their first finall sentence as it was given in their owne Court are altered in the defendants plea wherein they make Canonicall obedience not a third and distinct thing from law and custome as before but a subordinate relative and a proportionable thing to law and custome by changing these their former wordes law custome and his canonicall obedience into these law and custome according to his Canonicall obedience And this alteration as I suppose proceeded from the acute and polite wit of you Master Justice Heath at that time the Kings Attourney Generall and Commissioners counsell who seeing that the Commissioners by the former wordes did make canonicall obedience a third and distinct thing from law and custome that thereby they did under the name of canonicall obedience chalenge arbitrary and blind obedience to and for every Arch-deacon Bishop and Arch-bishop that thereby they made themselves all lawmakers within their severall jurisdictions and that so at once by two wordes they gave two deadly woundes one to his Majesties supreame jurisdiction who under God is the onely lawmaker within this land
the other to the freedome and liberty of all his free-borne Subjects who are not tyed to any lawes but to those onely whereunto they give their consents did prettily and wittyly invent and contrive this trimme and almost undiscernable alteration to cure these two deadly woundes for which Sir you did then deserve a better fee from the Commissioners than either from his Majesty or from his other free-borne Subjects But my Lord though Master Justice Heath hath with that one salve well cured those two sores yet therein he hath not rightly and truely exprest and discover'd the nature of canonicall obedience for Canonicall obedienee hath no reference to custome that 's customary obedience which is due to custome neither hath canonicall obedience relation to the laws in generall of what kind soever they bee but onely to that part and kind of law which is called the canon law for canonicall obedience is such obedience as the canons require and such obedience as the canons require is canonicall obedience they are convertible of the same circuit and circumference just even whatsoever is within compasse of canonicall obedience is within the compasse of the canons and whatsoever is without the compasse of the canons is without the compasse of canonicall obedience so that if I am bound by my canonicall obedience to preach the Arch-deacons visitation Sermon then I am thereunto bound by some canon and if not by some canon Thesis tertiae probatio then not by my canonicall obedience And that this is so that canonicall obedience is such obedience as the canons require I will now endeavour to prove by foure reasons such I hope as shall satisfie your Lordship this Court and all men that will be satisfied with reason and I hope shall silence them that will not with reason be satisfied Ratio 1 My first reason to prove that Canonicall obedience is such obedience as the canons require is drawne a vi virtute ipsius vocis Canonicae from the very sence and signification of this word Canonicall for as legall obedience is such obedience as the law requires Evangelicall obedience such obedience as the Gospell requires customary obedience such obedience as the custome requires arbitrary obedience obedience ad arbitrium praelati according to the praelates pleasure blind obedience such obedience as is requir'd of blind men and unreasonable obedience such obedience as is requir'd of unreasonable creatures so a vi virtute ipsius vocis canonicae from the very strength sence and signification of this word Canonicall Canonicall obedience must be such obedience as the canons require And this reason is further confirmed by an argument drawne (h) Hor argumenti genus quandoque acuminis quandoque virium multum quandoque utrumque habebit Eleganter itaque apud Terentium est Homo sum humani nihil ame alienum puto Rod. Agricola de Inventione lib. 1. cap. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist Secundo Topicor libr. His illud adiicere ridiculum putarem nisi eo Cicero uteretur quod coniugatum vocant Vt eos qui remâ—ustam faciant iuste facere quod certe non eget probatione Quntil Institut lib. 5. a conjugatis or denominativis a toprike place delivered by Aristotle and Quintilian and approved and put in practise by Saint Iohn 1. Ep. 3. chap. 7. ver there the holy Apostle saith Hee that dâ—th righteousnesse is righteous even as he is righteous that is as our Lord and Saviour Jesus Christ is righteous In which wordes Saint Iohn argueth from one conjugate to an other from doing of righteousnesse to being righteous and so after his example I argue he that doth the canons is canonicall he that performeth obedience to the canons performeth canonicall obedience And that this is true sence of this word canonicall appeares by the authority of William Lyndewode in the fifth booke of his Provincicall titulo de Haereticis cap. Reverendissime where he doth thus expound this word canonicall (i) Item eodem lib. tit de Purgatione canonica cap. statuimus verbo Canonice canonice id est secundum exigentiam Canonum canonice id est secundum ex gentiam canonum canonically that is saith hee according as the canons require And this my Lord is my first reason drawne a vi virtute ipsius vocis canonicae together with an argument drawne a Conjugatis or Denominativis a topicke place deliver'd by Aristotle and Quintilian and approved and put in practise by Saint Iohn and confirmed by the authority of William Lyndewode My second reason my Lord is taken from the generall consent of learned men not onely in our owne church and of our owne religion but also from those who though they are of our religion yet they are not of our Church I meane of our nationall Church nay from those that are neither of our church nor of our religion And this reason being drawne from the joynt consent of learned men ought to be of great force and authority according to that of vincentius Lerinensis quod abomnibus quod ubique quod semper tenetur illud pro certissima veritate habendum tenendum est I will begin my Lord with those that are furthest from home My first Man is Bellarmine a learned man in the judgement of those that are soundly and deepely learned on our side my most reverend diocesan and provinciall my Lords Grace of Cant. in his relation of the conference betweene his Grace and Master Fisher the Iesuiâ—e doth divers times highly magnifie him for his acute solid and profound discourse upon divers points of controversie sect 3. num 2. num 17. And Doctor Rainolds speaking of Bellarmine and Campian Stiles them nobile par Iesuitarum and prefers Bellarmine as far before Campian notitia rerum as he doth Campian before Bellarmine structura verborum This learned man in a particuler treatise immediately following his bookes of Justification the title whereof is de bonis operibus in particulari 10. chap. speaking of Canonicall houres doth there thus describe them canonicall houres saith he are such houres as are appointed by the canons to praise God and to pray unto God and these houres saith he are call'd canonicall because they are assigned deputed and appointed by the canons to that purpose And Petro soave Polano the learned authour of that excellent history of the councell of Trent in his sixt booke doth give the same reason of the same name Collegiate churches by their institution have this function among others to assemble themselves in the churches to praise God at the houres appointed by the canons which saith he are therefore call'd canonicall and Brentius a learned man of our owne religion in his Confessione wittenburgensi cap. 20. de Horis Canonicis doth give the very same reason of the same name that the two former doe Againe Gregory the great in the 11. booke of his Epistles and 51. Epist to Iohn Bishop of Panormum and received into the body
of the Canon Law writes thus Si quid de quocunque clerico ad aures tuas pervenerit quod te juste possit offendere facile non credas nec ad vindictam te res accendat incognita sed praesentibus Ecclesiae tuae senioribus diligenter est perscrutanda veritas tunc si qualitas rei poposcerit canonica districtio culpam feriat delinquentis Let a Canonicall punishment bee inflicted upon the offender for his offence now what 's this canonica districtio or canonica paena The most learned Bishop Bilson in that excellent treatise of his De perpetua Christi Ecclesiae gubernatione 11. cap. interpreting the former words of Gregory doth in these very words shew paena canonica 1. paena canonibus congruens A canonicall punishment that is a punishment agreeable to the Canons and so doth William Lyndewode in the 5. booke of his Provinciall tit de Paenis Cap. Evenit verbo Canonicas paena canonica id est paena a sacris canonibus approbata A canonicall punishment that is a punishment approved by the Canons and (k) Iohanes de vanquall in Breviario in sextum Decretalium fol 43. tit de supplenda praelatorum negligentia ultima conelusio Episcopum excommunicatum pro culpa sua punire potest Archiepiscopus paena canomica et arbitraria Probatur hic in fine tex glo fi et facit c. de causis de offi deleg si dicatur puniri debet paena arbitraria tum non canonica quia paena canonica dicitur quae est in canone iure expressa ut in l. siqua paena ff de verbo sig solutio Dicit Io. Mo. Archid. quod paena expressa de terminata a Canonibus proprie dicitur canonica ut in dict lo. Siqua paena Illa tamen quae non est expressa determinata a canone datur tamen secundum moderationem canonum qualitate personae quantitate culpae consideratis dicitur proprie completive arbitraria eo quod iudex sua discretione supplet quod in canone non est expressum potest tamen talis paena dici canonica saltem inceptive quia per canones dirigitur iudex in moderatione Iohanes de vanquall Iohanes Molanus and Archidiaconus do all make this the difference betweene a canonicall and an arbitrary punishment that the one is expressed in the Canons the other is not but left to the discretion of the Prelate Paena Canonica dicitur quae in Canone jure est expressa determinata illa autem quae non est expressa determinata a canone est arbitraria Now to recollect the force and strength or this argument If canonicall houres bee so called because they are assigned deputed and appointed by the canons as in the judgement of Brentius Bellarmine and Petro Soave Polano they are and againe if a canonicall punishment bee such a punishment as is agreeable to the Canons such a punishment as is approved of the canons such a punishment as is expressed and determined in the Canons and if not expressed and determined in the Canons not a canonicall but an arbitrary punishment in the judgement of Bishop Bilson William Lyndewode Iohanes de vanquall Iohones Molanus and Archidiaconus Then by the same analogie canonicall obedience must bee such obedience as is assigned deputed and appointed by the canons such obedience as agreeable to the canons such obedience as is approved by the canons such obedience as is expressed and determined in the Canons otherwise it is not canonicall but arbitrary obedience and this is my second reason which being drawne from the joynt consent of learned men ought to be of great authority according to this former rule of Vincentius Lerinensis quod ab omnibus quod ubique quod semper tenetur illud pro certissima veritate habendum tenendum est My third reason my Lord Ratio 3. strikes the naile on the head and drives it home it is the very definition of canonicall obedience delivered by William Lyndewode in the first booke of his Provinciall tit de maioritate et obedientia cap. Presbyteri verbis in virtute obedientiae where he doth in the former words terminis terminantibus define canonicall obedience thus (l) Nota circa hanc materiam obedientiae quod obedientia quae homini debetur ab homine est debita minoris ad maiorem reverentia Vnde si mandatur id quod iustum est obediendum est si in iustum nequaquam si dubium tunc illud propter bonum obedientiae est explendum Lyndewode Prov. 1. lib. tit de Constitutionibus cap. Quia incontinentiae ver obedientiae Canonica obedientia est obedientia secundum canones constitutiones rite editas et publicatas canonicall obedience is such obedience as the canons and constitutions rightly made and published doe require Now this mans testimony and authority ought to bee of great esteeme for divers reasons first because he is the only glossator commentator upon the provinciall constitutions of our Archbishops of of Cant. Secondly because he was Doctor of both lawes and singulerly verst both in Church governement and in deciding of controversies and the efâ—re doubtelesse did well understand what this canonicall obedience was and unicuique in sua arte perito credendum especially if he be not Judge in his owne case as the Defendants against mee are Thirdly because hee was officiall to Henry Chichley Archbishop of Cant. to whom he did dedicate his provinciall and therefore in all likely hood he would not write any thing therein in the behalfe of the Rectors and Uicars of this kingdome to the prejudice of the Episcopall or Archiepiscopall authority or Sea of Cant. Lastly because he lived about 200. yeares since and was long dead before this controversie was on foote although this * It began at the Archdeacons Visitation Octob. 1624. and continued at his Uisitations Aprill 1625. and 26. and the last day of that Aprill 1626. Articles were exhibited in the High Commission against me and the 19. of Aprill 1627. I was by the Commissioners committed to prison and there continued two yeares and then being delivered on the 29. of Aprill 1629. I did that Tearme begin an Action in the Kings Bench Court against the Commissioners which this 24th day of March 1641. hath depended 12. yeares three quarters hath beene on foot full 16. yeares which is a larger portion of time than the tearme of two mens lives is valued at by the common law and and therefore certainely hee wrote the truth without all respect of persons without prejudice or partiality on either side and for these reasons his definition of canonical obedience standes good against all exception Besides that Canonicall obedience is such obedience as the canons require appeares by the opposite member of the division for the obedience now used in the Church of Rome is either canonicall that is such as the canons require and the Prelate by vertue
witchcraft and transgression is wickednesse and idolatrie In which wordes my Lord as God require that his word be taken first for a law secondly for an universall law or a law in all thinges and thirdly for a law of that authority that if he command any man to kill a man yea a King the cheife of men and Gods immediate deputy he must doe it and if he doe it not hee sinnes greatly which was Sauls case here So doe the defenders of this arbitrary obedience strive in these three thinges to be similes altissimo to be very Gods First they wil have their bare word to be taken for a law secondly for an universall law or law in all thinges and thirdly for a law of that authority that if they bid kill a man it must be done by them that are under their jurisdiction And this appeares my Lord by a plea or argument stiled the arraignement of the whole society of the Jesuites in France made in the Court of Parliament in Paris the twelfth and thirteenth of Iuly 1594. by Master Anthony Arnould Counsellour for the Vniversity of Paris against the Iesuites wherein he shewes that the Jesuites fourth vow is to obey their generall ubique in omnibus every where and in all thinges and he further addes that the wordes of their fourth vow are that they must acknowledge Jesus Christ present as it were in their generall and that if Jesus Christ should command them to goe and (s) There are above 3000. persons that know that Commoâ— let Preaching at Christmas last in Saint Bartholomewes Church tooke for his theme the third chap. of the booke of Iudges where it is reported that Ehud slew the King of Moab and scaped away and after he had discoursed at large upon the death of the King and exalted and placed amongst the Angels this Tyger this Devill incarnate Iames Clement he fell into a great exclamation we have neede of an Ehud we have neede of an Ehud were he a Frier were he a Souldier were he a Lackey were he a sheapherd it made no matter needes we must have an Ehud one blow would settle us fully in the state of our affaires as we most desire The Arraignement of the whole society of the Iesuites fol. 12. kill they must doe so And to this purpose Ignatius Loyola in his Epist de virtute obedientiae sect 18. gives his Disciples the Jesuites this one generall rule of obedience (t) Statuere debetis vobiscum quicquid superior praecipit ipsius Dei praeceptum esse voluntatem atque ut ad credenda quae Catholica fides propo-nit toto animo assensuque vestro statim incumbitis sic ad ea facienda quaecunque superior dixerit caeco quodam impetu voluntatis parendi cupidae sive ulla prorsus disquisitione feri mini Sic egisse credendus est Abraham filium Issaac immolare iussus Mysteria Patrum Iesuitarum pag. 62. Statuere debetis vobiscum quicquid superior praecipit ipsius Dei praeceptum esse voluntatem c. You must resolve with your selves that whatsoever the superiour commands is the very praecept and will of God himselfe and as you betake your selves with a full mind and assent to beleeve those thinges which the Catholicke faith proposeth so be ye carried with a blind zeale and an obedient will to doe all thinges which the superiour shall say without making any question or disquisition at all for so Abraham is thought to have done being commanded to offer his sonne Isaac in the twentieth section of his former Epist Ignatius Loyola adds (u) Quae de obedientia diximus aeque privatis erga proximos superiores atque rectoribus praepositisque localibus erga Provinciales Provincialibus ergo gralem grali denique erga illum quem ipsi praefecit Deus nempe suum in terâ—is vicarum observanda sunt Ibidem Pag. â—1 Quae de obedientia diximus c. Those thinges which we have said concerning obedience are equally to be observed by private men towards their next superiours by inferiour governours and Rulers of severall places to their provincialls by provincialls to their generall and by the generall to him whom God hath set over him namely to Gods Vicar on earth Here then my Lord we have now the full extent of this religious irreligious blind detestable damnable devillish obedience in two respects in respect of the persons to whom it is due and in respect of the nature of the thing it selfe In respect of the persons to whom it is due it is to be given by every inferiour to every Ecclesiasticall superiour In respect of the nature of the thing it selfe it is a generall and universall obedience to all their commands whatsoever And if we looke a little more perticularly and narrowly into it wee shall find that they extend it sometimes to thinges fond frivolous sometimes to thinges ridiculous and absurd and sometimes to thinges wicked and ungodly First to thinges fond and frivolous an instance hereof we have in Anselmus Arch-bishop of Cant. who after he was bishop of that See wrote to Pope Vrban to appoint him some man according to whose commands he might frame his whole life and Pope Vrban appointed him Edmerus and as Malmesburien in his first booke de gestis pontificum Anglorum in the life of Anselmus saith the Arch-bishop did so much esteeme the command of Edmerus that being in bed he would not so much as rise nay he would not so much as turne himselfe a latere ad latus from one side to the other sine praecepto Edmeri unlesse Edmerus first commanded him and herein the Arch-bishop shewed himselfe a true patterne a lively portraiture of blind obedience For Caeca obedientia est ut quis sit tanquam corpus exanime quod requiescit ubi quis reposuerit sine motu This is blind obedience that a man be like a dead body which rests where it is laid without motion untill it be stirred as my late Lord of Ely Bishop White in his explanation of the Orthodox faith and way cap. 3. parag 13. shewes Secondly they extend it to thinges ridiculous and absurd Ethelwold the Abbot of Abington having set workemen to repaire the Abbey charged one of his Monkes called Elstan to see their diet well prepared for them Thereupon the Monke betakes him into the Kitchin makes it cleane trimmes up the vessels and prepares meat for the workmens dinner a little before dinner the Abbot comes into the kitchin and finding the Monke busie in preparing meate for the workemens dinner askes him what his meaning was The Monke answers that he was yeilding obedience to his command the Abbot replied that he gave him no such command he commanded him only to over-see others not to doe those thinges in his owne person yet he told him that he had done well to let his obedience outstrippe his command but added withall that his obedience was not yet perfect if he would
obedience onely that is with such obedience as the canons require For as Bishop Bilson in his forcited treatise de perpetua Christi Ecclesiae gubernatione saith In our Church metropolitani dâ—aecesani scriptis in quaque re legibus diriguntur and againe in our Church minime sibi sumunt diaecesani ut diaecesibus suis leges constituant quod tamen presbyteriis vestris in qualibet paraecia licere contenditis He speaks against the Presbyterians sed ut quas pii principes concilia rite celebrata decreverius executioni mandari faciant And thereupon afterwards he calls the Bishops of our Church in their severall jurisdictions custodes non conditores canorum which wordes of his doe fully approve of canonicall obedience and utterly exclude all arbitrary and blind obedience out of our Church And so my Lord by the definition both of canonicall and arbitrary obedience it appeares that Canonicall obedience is such obedience as the canons require and if if it exceed the Canons never so little it is no longer Canonicall but arbitrary My fourth reason to prove that canonical obedience is such obedience as the canons require is in my apprehension of more strength and force than the three former and it is taken from the 19. and 21. chap. of 25. of Henry 8. which acts doe so limit and confine the Clergy of this land unto the canons either made by a provinciall synode in this land and confirmed by his Majesties letters patents out of his prerogative royall or else made beyond sea and received here for lawes of this land by the Kings sufferance and the subjects free consent and usage that none of the Clergy in their severall jurisdictions can goe beyond those canons without incroaching upon the supreme Ecclesiasticall jurisdiction of the Crowne and therefore the Canonicall obedience approved and required in our Church by the oath of canonicall obedience must of necessity be such obedience as those canons require because the superiour clergy cannot out of command require more nor the inferiour clergy out of obedience yeild more without prejudice to the Kings supreme Ecclesiasticall jurisdiction This will appeare most evidently by the first of the first of Eliz. by the 19. and 21. chap. of the 25. of Henry 8. and by the oath of supremacy The first of the 1. of Elizabeth is an act to restore unto the crowne the ancient jurisdiction over the state Ecclesiasticall and Spirituall then the crowne hath a jurisdiction and an ancient jurisdiction over the state Ecclesiastical And as the first of the first of Eliz. doth shew that the crowne hath an ancient jurisdiction over the state Ecclesiasticall so the 19. and 21. chap. of the 25. of Henry 8. both revived in the first of the first of Elizabeth as parts of that ancient jurisdiction of the crowne over the state Ecclesiasticall doe shew how farre that ancient jurisdiction of the crowne doth extend over the state Ecclesiasticall and they doe extend it over the whole clergy and submit the whole clergy unto it in these two points or respects First concerning canons made beyond sea and then concerning canons made in this land Concerning canons made beyond sea they so farre submit the whole Clergy unto the prerogative royall and supreme jurisdiction of the Crowne that none of the clergy in their severall jurisdictions can execute or put in use any such forreine canons untill those forreine canons are first received heere for lawes of this land by the Kings sufferance and the Subjects free consent and custome Secondly among the canons in this land formerly made they abrogate all such canons as are contrary either to the supreme jurisdiction of the Crowne or to the statutes customes or common lawes of this land and approve and establish all the rest untill they be otherwayes ordered and determined by the 32. persons there mentioned and then concerning canons hereafter to be made in this land they submit the whole clergy unto the supreme jurisdiction of the crowne in these foure particulers The first particuler is that the Clergy cannot make any canons in their severall jurisdictions but onely when they meete in a provinciall synode The second particuler is that they cannot meete in a provinciall synode untill they be first call'd thither by the Kings writ The third particuler is when the clergy are so met being so call'd and have made canons that they cannot execute or put in use nay they cannot promulge or publish any one of these canons untill those canons are first confirmed by his Majesties letters patents out of his supreme Ecclesiasticall jurisdiction And the fourth perticular is that so farre they may goe further they cannot And then in the third place comes the oath of supremacy and that binds every Bishop every judge every Clergie-man and every other person that hath taken that oath to defend and maintaine all those foresaid particulers of the prerogative royall of the crowne over the whole Clergy For the last clause of that oath bindes every one that takes it (a) The words of the oath are to his power but they are so interpreted by the right Honorable Thomas Earle of Arundell and Surrey Earle Marshall of England and Generall of his Maiesties forces in his treatise stiled Lawes and Ordinances of warre pag 26. where he expounds the former wordes by these even to the utmost of my power and hazard of my life to the utmost of his power to defend and maintaine all jurisdictions priviledges preheminences and authorities united or annexed to the imperiall Crowne of this realme So that if any of them shall extend canonicall obedience or the oath of canonicall obedience or the archidiaconall Episcopall or Archiepiscopall jurisdiction by vertue of canonicall obedience or of the oath of canonicall obedience beyond those canons he doth incroach upon the prerogative royall of the crowne withdraw his submission from his Maiesty presume to make canons within his owne jurisdiction violate the oath of supremacy transgresse the first of the first of Elizabeth and the 19. of the 25. of Henry 8. and is therefore by that statute liable to be fined and imprison'd at the Kings pleasure And so my Lord I have by foure reasons proved that the canonicall obedience in force in our church is such obedience as the canons in force in our church doe require and that all arbitrary and blind obedience is quite excluded as a thing utterly repugnant to the word of God to the doctrine and discipline of their orthodox church to the supreme jurisdiction of the crowne and to the ancient and just libertie and freedome of every free-borne Subject And now my Lord by one syllogisme grounded upon this canonicall obedience I will acquit my selfe and all other incumbents from preaching the visitation Sermon and shew that every visiter every Arch-deacon Bishop and Arch-bishop is bound to preach his owne visitation Sermon and both these by vertue of canonicall obedience so that these two wordes which the defendants have
abused to acquit themselves and condemne me being rightly understood shall condemne them and acquit me and this is the syllogisme (b) Iudge Dodridge in his English lawyer saith although the common lawyers of this land do use a continued speech non concisis argumentis yet do they observe very oft the formes of arguments used in the schooles as â—yllogismes enthimems inductions examples sorites dilemmata c. as may be proved by sundry instances and first of syllogismes in Shellies case In Calvins case Canonicall obedience is such obedience as the canons require But the canons bind every visiter every Arch-deacon Bishop and Arch-bishop to preach his owne visitation Sermon licensed preachers to preach at their owne cures onely and forbid me and such as I am that are not licensed preachers to preach and expound any Scripture in our owne cures or elsewhere Ergo by canonicall obedience every visiter every Arch-deacon Bishop and Arch bishop c. The Major or first proposition that canonicall obedience is such obedience as the canons require hath formerly beene proved by foure reasons and therefore that cannot justly be denied untill those foure reasons are first answered and confuted and it is contrary to the rule of Logick yea and of law too to deny the conclusion before the premisses are confuted so that all the question is concerning the Minor That hath three parts Thesis 4 the first is the canons binde every visiter every Archdeacon Bishop and Archbishop to preach his owne visitation Sermon Thesis 5 The second is the canons bind licensed Preachers to preach at their owne cures onely Thesis 6 The third is the canons forbid me and all such as I am that are not licensed Preachers to preach or expound any Scripture in our owne cures or elsewhere And these three being prov'd it will bee evident that every visiter and hee onely and that by canonicall obedience is bound to preach his owne visitation Sermon and I will now prove these three in order one after another beginning at the first That that the canons bind every visiter every Archdeacon Bishop and Archbishop to preach his owne visitation Sermon Thesis pro ∣ batio 4 Amongst the Canons the word of God hath the prime place for that is canon Canonum lex legum regula regularum and that yeelds us three arguments to prove that every visiter every Archdeacon Bishop and Archbishop is bound to preach his owne visitation Sermon Argument 1 My first Argument is taken out of the first Epistle of Saint Peter 5. chap. 2. verse where Saint Peter chargeth all his compresbyters to feede every one his owne flocke Feede saith hee the flocke of God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is amongst you which is committed unto you or which dependeth on you that is as Saint Paul expounds it Acts 20.28 whereof the holy Ghost hath made you overseers whence I thus argue Every flocke is to be fed ex officio ex debito by that pastor to whose charge it is committed But the incumbents curates Churchwardes Sidemen and the rest by the visiters authority assembled at the visiters visitation are there committed to the visiters charge and not to any of the incumbents charge there present Ergo. They are there to be fed ex officio ex debito by the visiter and not by any of the incumbents there present The Major or first proposition that every flocke is to be fed ex officio ex debito by that pastor to whose charge it is committed is the plaine evident and expresse word of God in the places before alleadged and therefore that cannot be denied without manifest injurie and violence to the Word of God in the places before alleaged The Minor or second proposition that the Incumbents Curats Churchwardens Sidemen and the rest by the visiters authority assembled at the visiters visitation are there committed to the visiters charge and not to any of the incumbents charge there present is likewise evident for the visiter calls them thither if they come not he punisheth them if they come hee examines them if they depart before he dismisseth them he cites them againe And the visiter if he be a (c) Lyndewode Provinc l. 4. tit de claudestina desponsatione cap. Humana concupiscentia verbo diaecesanorum qui cum habeant curam in solidum per totam diocesin possunt licentiam de quâ— sequitur concedere vbique per totam diaecesin Pr. lib. 5 tit de Haereticis cap. Reverendissime v. Diaecesano Paulus dicit quod epus loci vel superior praelatus sacerdodotis maiorem gerit curam in ecclesia quam curatus allegat ad hoc de pae re c. si epus l. 6. vide Pr. lib. 5. tit de pae re c. In confessione verb. Non recipiantur Bishop is nector totius Diaecesis and hath curam animarum over them whom he visits And if he be an Archdeacon then he is oculus Episcopi to observe them manus E piscpi to governe them to reward and punish them lingua Episcopi to instruct and teach them and vicarius Episcopi to doe them all for the Bishop for vicarius tenetur implere vicem eius cuius est vicarius and he likewise under the Bishop hath curam animarum over them whom he doth visite as these texs of law shew Decretal lib. 1. tit 6. de electione Cap. 7. Inferiora etiam ministeria ut puta decanatum Archidiaconatum alia quae curam animarum habent annexam And upon these words the glosse notes Et est verum quod Archidiaconus qui habet inquirere visitare parochiam suam curam habet animarum And againe eodem lib. tit 23. de officio Archidiaconi Cap. 1. Vt Archidiaconus post Episcopum sciat se vicarium esse eius in omnibus omnem curam in clero tam in urbe positorum quam eorum qui per parochias habitare noscuntur ad se pertinere sive de eorum conversatione sive honore restauratione ecclesiarum sive doctrina Ecclesiasticorum vel caeterarum rerum studio delinquentium rationem coram Deo redditurus est And againe Cap. 7. cum super his i.e. super clericis ecclesiis eorum sit redditurus rationem in districti examinis iudicio and so both propositions are prov'd and therefore the conclusion following directly upon the premisses must needes bee true Argument 2 My second argument is taken out of the 10 Chapter of Saint Lukes Gospell 7. vers From these wordes of our Saviour The labourer is worthy of his hire which is true â— converso He that hath the hire is bound to performe the labour and the canon law doth approve of the rule both wayes Qui sentit onus debet sentire commodum qui sentit commodum debet seutire onus inter regulas iuris regula 55. Now the labour of the visitation is to correct and preach else why am I fin'd imprison'd depriv'd degraded and
to the Commentators and glossators upon the text And in the first place I produce these three Iohanes Andreas in apparatu suo super sextum decretalium Helias Regnier in his casus literales notabilia super sextum decretal And the third is anonymus quidam the title of whose worke is casus longi super sextum decretalium compilati in alma unversitate Pictavensi and I joyne these three together because they write upon the same text and use the very same words upon the text The text they write upon is the text last cited ex sexti decretal lib. 3. tit 20. de censibus exact procurat cap. 1. cap. Romana parag Sane Sane archiepiscopus visitationis officium impensurus proposito verbo dei quaerat de vita conversatione ministrantium in ecclesiis And upon this text they all give this glosse in these very wordes Hic quaeritur quid primo debet facere Archiepiscopus visitans Respondetur quod primo debet praedicare verbum dei deinde debet inquirere de vita moribus habitantium ibidem videl clericorum laicorum and it seemes that Johanes Andreas was the first authour of those wordes and that the other two and the glosse in the last and best edition of the body of the canon law put out by Gregory the thirteenth borrowed them from him For I finde them in the glosse of that edition but in the glosses of former editions I finde them not But howsoever that prove this is certaine that this their glosse is uncontradicted by any that ever I saw and I have seene as many as I could upon a diligent search finde in Pauls Church-yard Duck-lane and some other by-corners My fourth authour is Johanes de vanquall Coloniensis Doctor utriusque juris in his Breviary on the sixt book of the Decretals in his conclusions upon the text last cited conclusione 2. where he thus writes Spectat ad officium visitatoris primo discutere statum clericorum qualiter baptismum alia sacramenta administrent qualiter se habeant in ecclesia vita Et si omnia recte inveniat deo gratias agat sin autem aliter inveniat ignaros instruat haec nocte qua venit expediat sequenti die de mane plebi vocatae debet praedicare verbum dei docendo fidem and quod mortalia vitent se continue in bonis operibus exerceant This glosse is agreeable to the former text and binds the visiter ex debito ex officio to preach at his visitation and there to teach both Clergy and laity My fift man is Cardinall Hostiensis in the third booke of his summe tit de Censibus exactionibus procurat Expounding the text last mentioned His wordes are these Archiepiscopus in secunda visitaione illos visitet qui in prima non fueriut visitati imprimis verbo dei proposito quaerat de vita conversatione ministrantium Praecipit autem dominus noster universis episcopis aliisque praelatis ordinario jure exceptis religiosis visitantibus ut hanc formam studeant observare ut omnia haec leguntur in authentica Domini In which words my Lord this is very observable that Hostiensis saith it is expresly set downe in the very text of the canon law even in the Popes authenticke Epistle that every Arch-deacon Bishop and Arch-bishop is first to preach his owne visitation sermon and then to correct and reforme the parties visited And if this much be expresly set downe in the very text what need we any more glosses to prove that which is cleere and evident in the very text and if any glosse shall contradict a plaine text we may lawfully reject it and conclude that it is mala glossa quia corrumpit textum Now upon the other text before alleaged out of the Decretals lib. 3. tit 39. De censibus exactionibus procurationibus cap. 23. parag Porro The wordes whereof are these Porro visitationis officium exercentes non quaerant quae sua sunt sed quae sunt Jesu Christi praedicationi exhortationi correctioni reformationi vacando ut fructum referant qui non perit I produce these three glossators Petrus de Anchorano Cardinall Zabarell and Abbot Panormitan Petrus de Anchorano upon the former text sayes Praelati tunc sunt procurandi cum personaliter visitant Et debent tunc consilium Lateranense servare praedicationi exhortationi reformationi vacare Cardinall Zabarell upon the same text gives us this glosse Octavo nota quod debet visitans instare praedicationi exhortationi correctioni quid a clericis exquirere debeat quid eos docere traditur in decretis causa decima quaestione prima cap. placuit Abbot Panormitan upon the former wordes sayes visitator debet praedicare ex munere and he further adds Quid debeat facere praelatus tempore visitationis vide bonum textum in decretis causa decima quaestione prima cap. placuit There are two thinges my Lord in these three glossâ—tors to be observed The first is that they doe expresly affirme that it is the visiters duety to preach his owne visitation sermon The other is that for fuller information in that point they doe referre us to two canons The first is the tenth canon of the second Lateran Councell mentioned by Petrus de Anchorano The other is the first canon of the second (f) Brachara metropolis in provincia Gallaeciae The city Braga or Bracha in Portugall ex Binnio Bracharen Councell conteined in the decrees the tenth cause the first question the Chapter Placuit mentioned by Zabarell and Panormitan And these two canons lay a greater burden upon the visiter than to preach his owne visitation sermon at the publicke meeting of the deaneries or at a generall chapter and visitation of many parishes For the first canon of the second Bracharen Councell contained in the chapter placuit binds every Bishop to goe over his whole diocesse parochiatim and in every parish to teach both clergy and laity The clergy how to doe their owne dueties in their owne Churches and the laity how to understand the Articles of the Christian faith and how to lead a godly life and then that canon concludes Et sic postea Episcopus de illa ecclesia proficiscatur ad aliam And if any Bishop eitheir through multitude of businesse or bodily sicknesse or want of knowledge or through other occasions cannot in his owne person preach the word of God Parochiatim through his whole diaecesse Then the other canon the tenth canon of the second Lateran Councell binds him assumere viros idoneos potentes opere sermone qui plebes sibi commissas vice ipsius cum ipse per se idem nequeat sollicite visitantes verbo aedificent exemplo To take unto himselfe able men powerfull in deed and word who carefully visiting the people committed to him may in his steed when he himselfe cannot edifie them by word and example And it
ties the Bishop to give them competent allowance Quibus ipse cum indiguerint congrue necessaria ministret and it shewes that the Bishop is bound so to doe by the law of naturall equity because they are his coadintors cooperators non solumin praedicationis officio verum etiam in audiendis confessonibus panitentiis iniungendis ac caeteris peragendis quae ad salutem pertinent animarum and it concludes si quis hoc neglexerit adimplere districtae subiaceat ultioni If any Bishop shall not preach the word heare confessiones injoyne penance Parochiatim through his whole diaecesse either in his owne person or else substitute others under him to doe so for him and give them a good allowance for it he is severely to be punished And thus my Lord whereas our Archdeacons Bishops and Archbishops make it the incumbents duty out of canonicall obedience to Preach the visiters visitation Sermon I have proved that canonicall obedience is such obedience as the canons require and that the canons bind every visiter every Archdeacon Bishop and Archbishop to preach his owne visitation Sermon at the publicke meeting of the Deaneries also in his owne person or by deputies to preach parochiatim in every incumbents cure through his whole Diocesse and I will now conclude this first particular with the repetition of the first part of my former syllogisme Canonicall obedience is such obedience as the canons require But the Canons binde every visiter every Archdeacon Bishop and Archbishop to Preach his owne visitation Sermon Ergo. By Canonicall obedience every visiter every Archdeacon Bishop and Archbishop is bound to preach his owne visitation Sermon Thesis Pro ∣ batio 5 6 I now proceede to my other two particulars That the Canons bind licensed Preachers to preach at their owne cures only and forbid me and such as I am that are not licensed preachers to preach or expound any Scripture in our owne cures or else where And for brevities sake I will handle them both together and so vna fidelia duos parietes de albare And in the first place my Lord I must put a difference betweene the auntient and moderne canons The auntient canons gave power to every Presbyter that had cure of soules to preach the word and to doe all other offices of his calling in his owne cure In the fift booke of Lyndewodes Provinciall tit de Haereticis cap. Reverendissime Thomas Arundell Archbishop of Cant. speakes thus Curatum perpetuum missum intelligimus a jure ad locum populum curae suae We understand saith he that a perpetuall curate is sent by the Law to the place and people of his charge and who this perpetuall curate is Lyndewode in his glosse upon those words doth in these words shew Perpetuus curatus sicut Episcopus in sua Diaecesi rector vicarius in sua parochia quilibet perpetuo intitulatus ad beneficium cui imminet cura animarum So that then even by the Law it selfe every Rector and Uicar was a licensed Preaher in his owne cure as well as the Bishop was in his owne Diocesse and might doe all functions belonging to the office of a Presbyter in his owne Parish without any licence from the Bishop as well as the Bishop in his Diaecesse may doe all the Offices of a Bishop without any license from the Archbishop And to that purpose in the first booke of Lyndewodes Provinciall tit De officio Archipresbyteri cap. Ignorantia sacerdotum I finde this canon made by Iohn Peccan Archbish of Cant. Praecipimus ut quilibet sacerdos plebi praesidens quater in anno per se vel per alium dilucide exponat subditis suis articulos fidei decem mandata decalogi duo praecepta evangelij vid geminae charitatis septem opera miserecordiae septem peccata mortalia sua cum progenie septem virtutes principales ac septem gratiae sacramenta But our moderne canons our canons made in King Iames his raigne hath altered this point and permits not any incumbent to Preach or expound any Scripure no not in his owne cure untill hee be first made a Licensed Preacher so that our Church according to those canons hath two sorts of incumbents some that are licensed (g) Saint Chrysost on 1. Cor. 1.17 saith Evangelizare perpaucorum est baptizare autem cuiuslibet modo sungatur sacerdotio and a little after Siquidem presbyteris qui simpliciores sunt hoc manus tradimus ut baptizent verbum autem ut doceant non nisi sapientioribus hic sapientia labor quamobrens alibi inquit qui bene praesunt presbyteri duplici honore digni sunt maxime qui laborant in verbo Quilibet sacerdos cum ordine accipit potestatem consecrandi baptizandi praedicandi absolvendi ab omnibus peccatis sed interdicitur exercitium illius potestatis donec concedatur de licentia eius qui potest quare reservare non est non concedere potestatem absolvendi sed minuere potestatem Itaque non caute Sotus est loquutus Compendium Navarri de irregularitate cap. 28. pag. 337. tit De casibus reservatis preachers others that are not These licenses are onely granted either by one of the Vniversities or by a Bishop or an Archbishop He that is licensed by one of the Vniversities must be licensed under their Scale onely he that is licensed by a Bishop or any Archbishop must be licensed under their hand and Scale And at the time of his licensing the Bishop that licenceth him is to see him subscribe to the three Articles for the conformity of Religion extant in the 36. canon Otherwise the Bishop that licenseth him is to be suspended for a tweluemoneth by the 36. canon And such a license is qualification to hold two benefices by the 41. canon And he that is thus licensed is bound to preach in his owne cure once every Sunday only by the 45. canon He that is not thus licensed is no licensed preacher is forbidden to preach or expound any Scripture in his owne cure or elsewhere by the 36. 49. 52. Canon Now my Lord can the Archdeacon or any other Prelate by canonicall obedience command a licenced preacher to preach either twice a sunday in his owne cure or once in the weeke daies either in his owne cure or at the visitation or elsewhere He cannot by canonicall obedience which is such obedience as the canons require command him beyond the Canons If he doe he brings in uncanonicall praetercanonicall or ultracanonicall obedience the first part or kinde of Arbitrary or blinde obedience and therein he goes contrary to the nineteenth of the 25. of Hen. 8. which in submission to the Kings supreame Ecclesiasticall Jurisdiction limiteth the whole Clergie of this Land to the Canons of this land he incrocheth upon the royall prerogative of the Crowne hee withdrawes his submission from his Majestie he presumes to make Canons within his owne jurisdiction for that by the
themselves and in the very same net that they have joyntly laid for mee is their owne foote taken and I am deliver'd Hic est digitus Dei This is the Lords doing and it is wonderfull in my eyes And that all that heare mee may further behold the wonderfull worke of God being acquitted in this first particuler by vertue of Canonicall obedience I am likewise by vertue thereof acquitted in all the rest and that by the testimony of my very adversaries For the defendants themselves confesse that my refusall to preach the Archdeacons visitation Sermon is my principall or especiall fault and therefore by the force of comparison drawne from the adversaries owne estimate whatsoever else they charge mee with must needes be inferiour and accessory and then seeing the principall or especiall fault prooves no fault at all noe breach of any law whatsoever but a vertue and an eminent vertue even the vertue of canonicall obedience all the other being by the testimony of my adversaries which is the strongest proofe against them and for me lesser than that refusall they must needs be vertues and great vertues no faults or vices And yet once againe my Lord behold the wonderfull worke of God qui non tantum liberat innocentes sed etiam capit astutos in astutia sua By vertue of this first particuler I am not onely acquitted but the defendants themselves convicted and found culpable of a double crime First in that they bring into this Orthodox church arbitrary or * 2 Kings c. 6.18.19 ver Patemur sacerdotes non esse audiendos nisi docuerint iuxta legem Domini Canus lib. 3. c. ultimo Beleeve no every spirit but try the spirits whether they are of God 1 Iohn 4. Trie all things and hold fast that which is good 1 Thes 5. Bee not unwise but understand what the will of the Lord is Ephes 5. He that is spirituall discerneth all thinges 1 Cor. 2. you may have a thousand like both places and proofes that the faithfull looke and take heede they be not seduced And except you will excuse the people before God if you mislead them why should you barre them all triall and understanding whether they follow faith unto Salvation or withdraw themselves unto perdition when the blind leadeth the blind and they fall both into the pit of destruction is not he that followeth as sure to perish as he that leadeth Bishop Bilson in his difference betweene Christian subiection and unchristian rebellion 2 Part. pag. 261. blinde obedience and the worst part or kind thereof namely anticanonicall or contracanonicall obedience A thing preiudiciall to Gods glory repugnant to his word contrary to the doctrine and discipline of this Orthodox Church dangerous to the safety of all good Kings good Magistrates good men the introduction of tyranny and slavery and the subversion of all lawfull authority obedience and liberty and lastly the seminary noursery of vices the bane and ruine of vertues and one of the most damnable villanies and profound subtilties that ever Satan brought into the Church of Rome And therefore to be opposed and cried out against by every good man and Minister not onely though he should with me be fin'd imprison'd deprived degraded and excommunicated for it but also though it should be his loâ— to were a Tiburne tippet for it And secondly in that they have called the Canons the oath of canonicall obedience his Majesties letters patents his royall prerogative the first of the first of Elizabeth the 19. of 25. of Henry the eight the oath of supremacy the 37. Article of our Church and the word of God breaches of Canonicall obedience principall or especiall faults greivous and enormous crimes and have fin'd imprison'd deprived degraded and excommunicated a provinciall synode the high Court of Parliament this Orthodox Church of England and his Majesty for in calling my obedience to the former a breach of Canonicall obedience a principall or especiall fault a greivous and enormous crime they doe virtually by consequence and by necessary implication call all the former breaches of Canonicall obedience principall or especiall faults greivous and enormous crimes and in fining imprisoning depriving degrading and excommunicating mee for my obedience to the latter they doe virtually by consequence and by necessary implication fine imprison deprive degrade and excommunicate all the latter for requiring such obedience of mee For as Saint James in his Epist 4. cap. 11. vers saith Hee that speaketh evill of his brother or he that condemneth his brother speaketh evill of the law and condemneth the law which wordes of Saint James are absolutely unavoidable with this limitation he that speaketh evill of his brother or he that condemneth his brother walking according to the law he speaketh evill of the law or condemneth the law according to which his brother walketh and threfore seeing the defendants call my obedience to the word of God and to all the former a breach of canonicall obedience a principall or especiall fault a greivous and enormous crime they doe virtually by consequence and by necessary implication call (m) If you be railed on for the name of Christ blessed are yee for the spirit of glory of God resteth upon you which on their part is evill spoken off but on your part is glorified 1 Pet. cap. 4.14 the word of God and all the former breaches of canonicall obedience principall or especiall faults greivous and enormous crimes and seeing they doe fine imprison deprive degrade and excommunicate me for my obedience to the King and to all the latter they doe virtually by consequence and by neccessary implication fine imprison deprive degrade and excommunicate the King and all the latter for requiring such obedience of mee And so my Lord the defendants have eminently committed that foule fault in these very wordes condemned in the canon law Turpissimum est ut inde nascerentur injuriae ubi iura nascuntur It is a most shamefull thing that Courts of Justice should be courts of injustice and not onely against private persons but also against that Orthodox Church wherein they live against the Churches doctrine and discipline Articles and Canons which ought to be rules not onely to guide the lives and opinions of private men but also to regulate the censures and sentences even of the highest ecclesiasticall Courts And to conclude this point my Lord If to punish for obedience to the word of God to the Articles Statutes Canons to his Majesties Letters Patents Royall prerogative and oath of supremacy be to punish for vertue piety and to beginne that their sentence In the name of God Amen And in the body of the sentence to affirme That they did first call upon the name of Christ And that they had God himselfe alone set before their eyes be to hide iniquity under the cloake of Hypocrisie and fained sanctity Then the high Commissioners have both punisht me for vertue and piety and have covered that
by that excommunication on the other side And as among the high Commissioners my Lord some are oftner or seldomer excommunicate according as they have had their fingers oftner or seldomer in my punishments so they that have beene actors and parties in all my six punishments are excommunicate full 13. times And whilst they stand and continue thus excommunicate without either pleading the Kings pardon or performing publicke penance I for my part shall account them fitter for Amsterdam and for Rome than for this orthodox Church of England out of which they have justly cast themselves by excommonicating me unjustly for my communion therewith and for my obedience thereto And this much my Lord concerning the principalls The Defendants 3. Arguments I should now proceed to the accessories but that their are three arguments first to be answered The first is taken from law the second from custome and the third from a title given to the Archdeacon in the canon law and alleaged in the defendants plea the third Article namely because the Archdeacon is oculus episcopi and therefore may enjoyne the incumbents within his Archdeaconry to preach his visitation sermon that thereby he may see and learne and know their sufficiency I will begin with the Argument taken from Law The law is the fift commandement of the decalogue Honour thy father and thy mother and from these wordes a right learned commissioner in giving the first part of the first finall sentence against me argued thus The first Argument You Sir saith he to me will doe nothing but what you are bound to doe by law will you and doth not the law bind you to preach the Arch-deacons visitation sermon doth not the fift Commandement bind you to honour your Father and is not the Arch-deacon your spirituall father and are not you his spirituall sonne and hath not a spirituall father power by the fift Commandement to command his spirituall sonne any spirituall worke and is not a spirituall sonne bound by the same commandement to obey the spirituall command of his spirituall father in doing the spirituall work commanded by him Ergo you Sir are bound by the fift commandement to doe this spirituall worke to preach the Arch-deacons visitation sermon at the Archdeacons command This was the argument my Lord Socratically drawne from law and this argument in and of it selfe is very weake and feeble all the strength of it depends upon the authority and credit of the argumentator and therefore unlesse I will be injurious to the argument it selfe and to the cause of my adversaries I must make known the Authour of this Argument that so the strength and validity thereof may the more appeare It was the right worthy and right worshipfull Sir Henry Martin vir cum cura dicendus a man not to be mentioned without singular reverence A man that hath a long time and did very lately Dominari in Curits Ecclesiasticis A man that deserved that Elogy which Eunapius gives to Longinus he was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A living Library and a walking study or as the same Eunapius saith of Plutarch that he was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The very Uenus and harpe of all Philosophy So wee may truely say of the eminently learned Sir Henry Martin that he was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Uenus the delicacy the musicall instrument the Harpe the Lute the Theorbo the Polyphon of all the law both Civill and Canon he was like Servius Sulpitius Iurisconsultorum eloquentissimus eloquentium iurisconsultissimus And as one said of Saint Augustine Deest theologiae quicquid Augustino deest Wherein so ever Augustine is defective Theology it selfe is defective so Deest legi quicquid martino deest Wherein soever sir Henry Martin was defective the very law it selfe is defective and then surely the former argument if it bee answerable to the Author of it must needes be of great force and vertue or else the Law it selfe must needes be defective But my Lord though the Authour of this Argument was so accomplished yet if we examine the argument it selfe we shall finde it very weake and feeble and being reduced into a syllogisme it runnes thus By the fift commandement every spirituall Father may command his spirituall sonne any spirituall worke and by the same commandement every spirituall sonne is bound to obey the spirituall command of his spirituall father in doing the spirituall worke commanded by him But the Archdeacon is my spirituall father and I am his spirituall son and he hath commanded me a spirituall worke namely to preach his visitation sermon Ergo. By the fift commandement I am bound to doe that spirituall worke to preach that visitation Sermon at the Archbishops command This syllogisme my Lord in respect of the forme is good and all the doubt is concerning the matter of the major or first proposition If that be true then the conclusion is true if that be false then the conclusion will faile And first my Lord I will confute the major or first proposition wherein the whole strength of the argument lies by granting it and by shewing what a multitude of errors absurdities and inconveniencies will follow and flow from it The major or first proposition is this By the fifth Commandement every spirituall father may command his spirituall sonne any spirituall worke and by the same commandement every spirituall sonne is bound to obey the spirituall command of his spirituall father in doing the spirituall worke commanded by him Confutatio 1 And if this proposition be good Divinity then the Archdeacon may command me or any other incumbent within his Archdeaconry not onely to Preach one Uisitation Sermon for him which is the utmost that the Archdeacon himselfe challengeth as appeares in his plea the third Article but he may also command me to preach at every Uisitation holden by him so long as we two live together And besides he may command me to preach for him alwaies at his prebend at his Donative at his two benefices and so he shall take his ease and have all the gaines and I take all the paines and discharge his cures and neglect mine owne Neither shall Sir Henry Martin si reviviscoret interpose any limitation qualification restriction or exception to overthrow any of these consequences or collections from his major proposition but I by the same will overthrow his major proposition and free my selfe from preaching the Uisitation Sermnn Secondly if the foresaid proposition be good Divinity then thereby I will free my selfe and all other incumbents from preaching both at the Uisitation and in our owne cures and put both those workes upon our Parishioners For if the Archdeacon may command mee because I am his spirituall sonne to doe any spirituall worke and therfore to preach his Uisitation Sermon then I likewise being a spirituall Father to my Parishoiners may command any of them to do any spirituall worke and therefore to preach that visitation Sermon And if I may command any of
alligare raine in God and his jurisdiction and when ye doe all in the former manner regi jugum onus imponere put a yoake and a burden upon the King ye doe all eo ipso Deo jugum onus imponere put a yoke and burden upon God himselfe And how neere this comes to the cheife * D. Downeham of Anti-Christ 1. Book 5. chap. character of the man of sinne who exalts himselfe above all that is called God above God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 above God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 above God by nature above God by deputation above God and Gods immediate Deputy the King I leave it to your Lordship and the Court as it was then to inquire onely not determine because in this case ye are all both parties and offenders and in both those respects incompetent Judges But now my Lord in the last place let us see whether Sir Henry Martines argument be not directly contrary to the fift commandement to the very text whence it is taken The question is whose duty it is to Preach the Archdeacons visitation sermon the Archdeacons or the incumbents Sir Henry Martin out of the fift commandement would prove it the incumbents duty to preach the Archdeacons visitation sermon and not the Archdeacons because the Archdeacon is the incumbents spirituall father and the incumbents are the Archdeacons spirituall sonnes and by the fift commandement the spirituall sonne is to teach the spirituall father and not the spirituall father his spirituall sonnes and therefore by the fift commandement the incumbents and not the Archdeacon are to Preach the Archdeacons visitation Sermon Confutatio 5 For answer hereunto it is certaine my Lord that the fift commandement speakes primarily and literally of naturall fathers and naturall sonnes and by consequence and analogy of spirituall fathers and spirituall sonnes and then if by the fift commandement it be the duty of the naturall father to teach the naturall sonne then by consequence analogy it is the duty of the spirituall father to teach the spirituall son if by the fift commandement it be the duty of the naturall son to teach the naturall father then by consequence and analogie it is the duty of the spirituall sonne to teach the spirituall father The tenne Commandements for their brevity are called ten words Deut. 4. and for that reason in Greeke the decalogue and therefore if any thing bee obscure and darke in them it is to be cleared out of the larger commentaries of Moses the prophets and the Apostles let us then see how these divine commentators resolve this question betweene the naturall father and the naturall son and between the spirituall father and the spirituall son In the 6. and 11. chapters of Deut. God commandeth the Israelites to lay up his words in their hearts and to teach them their children when they sit in their houses and when they walke by the way and when they lye downe and when they rise up and Proverbs 1. Solomon saith my sonne heare thy fathers instruction and forsake not thy mothers teaching and Ephesians the sixt chap. Saint Paul sayes Ye fathers provoke not your children to wrath 11. verse but bring them up in the instruction and information of the Lord and in the first Epistle to Tim. 2. chap. the same Apostle delivereth one text which decides the question betweene all kindes of faâ—hers and all kindes of sonnes I permit not saith hee a woman to teach 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nor to exercise or usurpe authority over the man whence it appeares that they are to teach others who have authority over others and then the naturall father is to teach the naturall sonne the spirituall father the spirituall sonne the aeconomicall father the master of the family the aeconomicall son the Magistrate the politick father the politicke sonne and not on the contrary and Saint Paul of purpose as it were interpreting the fift commandement makes this one reason why the spirituall sonne is to honour his spirituall father Let the Elders that rule well be accounted worthy of double honour especially they that labour in the word and Doctrine 1 Tim. 5. and in this very thing consists the spirituall paternity and filiation 17. verse they are both wrought by the spirituall seede of Gods word the spirituall father begets and the spirituall son is begotten by the spirituall seede of Gods word Saint Paul telles the Corinthians I write not these things to shame you but as my beloved children I admonish you for though you have ten thousand instructors in Christ yet ye have not many fathers for in Christ Iesus I have begotten you through the Gospel 1 Cor. 4. and to the Gal. he saith my little children of whom I travaile in birth againe untill Christ be formed in you 14.15 verse Gal. 4.19 and how is that done why by preaching the Gospel Gal. 3.1 And therefore my Lord seeing Sir Henry Martin by his chimicall interpretation will extract the contrary out of the fift commandement make it every spirituall sonnes duty to teach his spirituall father the Parishioners duty to teach the incumbents the incumbents duty to teach the Archdeacon the Archdeacons duty to teach the Bishop the Bishops duty to teach the Archbishop the Archbishops duty to teach the Patriarches the Patriarches duty to teach the Apostles the Apostles duty to teach Christ and Christs duty to teach God I thinke I may truly say that Sir Henry Martin hath found out that in this commandement which God never put into it just as Anah found out Mules in the wildernesse as hee kept his father Zibeons Asses Gen. 36. the one found out a creature which God never made the other a sence which God never intended And therefore seeing so eminent a man so transcendent a lawyer who was vox legis lex legis rex legis and Deus legis a kind of omnipotent Lawyer who could creare legem de non sege annihilare legem in non legem could not yet find out any one good argument either in the civill or canon Law no nor in the word of God neither nisi afferat sensum ad scripturam and such a sence as is repugnant both to the analogy of the place and of faith too I thinke it is more than probable that neither the canon civill or divine law will afford my adversaries any one good argument against me in this whole controversie The second Argument The Defendants second Argument my Lord is taken from custome they say it is the custome that the Incumbents should preach the Arch-deacons Visitation Sermon And this they say both in their third Article and in the first part of their first finall sentence extant in their Plea And in speeding the Commission at Canterbury they brought up ten or twelve Processes to prove this custome But after they had brought them up they durst not so much as shew them either at informations or at the finall hearing of the
Cause And yet what they cannot prove my Lord I out of a desire of peace and concord with them will voluntarily grant unto them Concessio 1. retortio in adversarios Dabo ex supposito quod non dabo ex animo Let it then be custome what followes why this Then the Cause is a civill Ecclesiasticall Cause and not a criminall Cause and then it is and hath been all this while coram non judice and so the sentence and whole proceedings of the Commissioners are utterly voyd Concessio 2. retortio in adversarios Secondly be it custome then the Arch-deacon hath broken the custome and not I for the Commissioners in the first part of their first finall sentence extant in their Plea made an Order that I upon the Arch-deacons Mandate and a competent warning thereby to me given should preach a Sermon at the Arch-deacons next Visitation Now this Order is the custome or else it is not If this Order be not the custome then I being bound to observe the custome am not bound to observe this order or else being bound to observe this order I am not bound to observe the custome Let them chuse which they will they are faulty in either If this Order be the custome then the Arch-deacon and not I hath broken both Order and custome because he only sent an Apparitor with a postscript private letter or message to warne me to preach his Visitation Sermon but sent no mandate or processe or publike instrument for that purpose out of his Court by his Apparitor as he should have done both by the Order and custome and both these the Defendants confesse in their Plea and they shall be both shewed against them at large in my answer to to the fourth accessory Confutatio 1 Thirdly it is not custome for if it be custome then it is custome contrary to the 36. 49. and 52. Canons made 1. Iacobi that is about 39 years since and then it must be custome either before those canons were made or else only since If it were custome before those canons were made then it was before that time tried and obtained in some contradictory judgement for consuetudo non valet nisi sit obtenta in Contradictorio judicio Now can the Defendants shew any contradictory judgement before that time wherein this pretended custome was determined to be custome If they can let them shew it and I submit If they cannot idem est nen esse non apparere If it were not custome before the former Canons were made it cannot grow to be a custom since Nine and thirty years prescription is not sufficient to make a custome for consuetudo est cujus contrarium memoria hominum non existit and if this custome be but of 39. years standing there are divers men yet living which can remember the contrary Nay my Lord seeing a custome cannot grow in the time of opposition if we will make an exact computation we must from the former 39. years defalke full 16. years because so long this controversie hath been on foot and this custome oppos'd And then at the begining of this controversie there remains but 23. years since the making of the former Canons and since the begining of this pretended custome if it began since those Canons were made And then at begining of this controversie this pretended custome being but of 23. years standing could not be custome according to the former rule seeing at the begining of this controversie there were divers men then living who could remember the contrary Concessio 3 Confutatio 2 But in the fourth place my Lord let it be custome and a tried and determined custome in a contradictory judgement and that before those Canons were made yet by those Canons it is abrogated For cannot an Act of Parliament cut off a known custome of England tried and determined in a contradictory judgement at the Common Law There is I suppose no question of it and the reason as I conceive is because all the parties that have right in that custome are either personally or vertually present in Parliament and there by making a contrary Act give up their right to that custome and then by the same reason seeing none had right in the former custome but the Arch-deacons Bishops and Arch-bishops on the one side and the Incumbents under them on the other side and the three former were personally present in a provinciall Synod and the others vertually present in the Clerks of the Convocation and all on both sides by making the former Canons gave up their right to the former custome that custome is and must be abrogated by the former Canons Confutatio 3 But in the fift place my Lord it cannot be custome First because it is contrary to the Word of God as appears by my three first arguments Secondly because it is contrary to the whole course and tenour of the Canon Law in the body of the Canon Law in Lyndewodes provinciall in the Legantine Constitutions of Otho and Othobon and in our last Canons all which I have formerly shewed And lastly because it is contrary to naturall equitie and contra naturalem aequitatem nulla valet consuetudo etiamsi omnes homines de mundo aliter facerent saith the Canon Law Now this rule of naturall equity is deliver'd by our Saviour Luke 10 7. The labourer is worthy of his hire which is true e converso he that hath the hire is bound to performe the labour And this labourer is the Visiter and his labour is to Visit that is to preach and to correct and his hire for that labour is Procurations and all these I have formerly proved It is then contrary to naturall equitie for us to detain Procurations from the Visiter when he Visits us that is preacheth unto us and correcteth us It is likewise contrary to naturall equity for the Visiter to require Procurations when he doth not Uisit that is preach and correct It is most apparently contrary to naturall equitie for the Visiter to require Procurations of the Incumbents for Visiting them that is for preaching unto them and for correcting them and yet to impose upon them the Visitation Sermon the speciall part of that labour for which the Visiter requireth and receiveth his Procurations of the Incumbents And upon this ground the Canon Law affirms quod in procuratione ratione visitationis debita non currit praescriptio And then there can be no custome to binde the Incumbents either to pay Procurations or to preach the Visitation Sermon The third Argument There is one weake argument my Lord yet remaining and that 's this The Arch-deacon is tanquam oculus Episcopi and therefore may enjoyn the Ministers within his jurisdiction to preach his Visitation Sermon that thereby he may see and learn and know their sufficiency I do confesse my Lord that in the Canon Law the Arch-deacon is called oculus Episcopi and which is more vicarius
cure saw men walke like trees Marke 8. For I can never think that eye whose so ever it be quick-sighted nor fit to be oculus Episcopi which cannot discern examination from preaching and Ordination and Institution from Visitation And so my Lord for a farwell to the Principals I leave it to your Lordship and the Court to consider whether the Commissioners were not invited by the presumption of their own strength and of my weaknesse to use the foresaid arguments which upon examination make quite against them Or whether they were not at that time like men in danger of drowning who being taught by nature to do their best to save themselves and yet being deprived of the right use of their sences do divers times seeke helpe and lay hold on things that hurt them and keepe them under water and thereby drown themselves the sooner And thus much concerning the principalls The accessories and the Defendants three Arguments I now proceed to the accessories And here my Lord seeing the Defendants have falsified the Law in the principals your Lordship and the Court are not to give credit unto them concerning the accessories seeing in the principalls they have called my obedienc to the Word of God to the Articles Statutes Canons to his Maiesties Letters Patents royall Prerogative and oath of Supreamacie which are all extant to the view of the world a breach of Canonicall obedience a principall or especiall fault a grievous and enormous crime they are not according to their own Law to be credited concerning any fact they charge me within the accessories for qui semel est malus semper praesumitur malus in eodem genere mali and qui semel veritatis verecundiae limites transilierit cum oportet esse gnaniter impudentem nec ei deinceps nisi paenitenti culpani confitenti veniam expetenti est in aliqua credendum But my Lord though according to these axioms the defendants are not to be credited in any of the accessories because they have falsified the Law in the principalls Yet I labour not to impeach their credit in all but in one only circumstance which runs through the three first accessories which is grosly and palpably false and contrary to the Records of their own Court. For whereas in the first accessorie they charge me that I came unsent for or uncall'd for to Master Arch-deacon aforesaid he being in his Visitation among the Clergie and sitting there to heare Causes and in the second accessorie that I did then and there charge the said Arch-deacon of falshood and iâ—justice and in the third accessorie that I did at the same time and place lay down an hundred pounds in gold upon the table and offered to lay wagers with him the said Arch-deacon that he had done me wrong or the like in effect I confesse I did these three but not at the same time and place not whil'st Master Arch-deacon sate in his Visitation to heare Causes but afterwards as will appear by these three circumstances The Visitation is alwaies kept in Saint Margarets Church in Canterburie this was in the parlour of the Checker Inne in Cant. The Visitation is alwaies begun continued and ended in the forenoone before dinner this was in the after-nooneafter dinner At the Visitation are present both Clergie and Laity the Ministers and the Churchwardens here were present the Clergie only and the Defendants themselves in their Plea mention only the Clergie the Arch-deacon say they being in his Visitation among the Clergie not amongst the Laity And it is evident by the Records of their own Court and by the testimony of their own witnesses Dr. Say and Henry Ienkins that these things were said and done in the Checker Inne in Canterburie after dinner and not in Saint Margarets Church at the Visitation And it appeares likewise by the submission enjoyned me for by their own Order that submission was to be uttered before the Clergie in the dining roome before dinner and not in Saint Margarets Church at the Visitation And beside I here make oath in truth in justice and in judgement that these three accessories were said and done not in Saint Margarets Church at the Visitation but in the parlour of the Checker Inne in Canterburie where I never yet knew any Visitation kept by Master Arch-deacon acces ∣ sorie The first And now my Lord this one circumstance being confuted what fault was it for me to come to Master Arch-deacon in the Checker Inne uncall'd for or unsent for might not I in the parlour of the Checker Inne after dinner come uncall'd or unsent for to Master Arch-deacon with whom I din'd as well as come to your Lordship and to these my honored Judges at the side-Barre in this Hall nay in this very Court uncall'd or unsent for I am sure your Persons and places are more eminent and your imployments more and weightier and yet I and some others as meane as I have come unto you and gone from you in both these places without offence accessorie The second Or did I offend in charging the said Archdeacon with falshood wrong and injustice nothing at all For I have before shewed how under the name of Canonicall obedience he would have brought in arbitrary and blinde obedience and the worst part or kind therof not that only which is uncanonicall pretercanonicall or ultracanonicall but that also which is anticanonicall or contracanonicall A thing repugnant to the Word of God to the doctrine and discipline of this orthodox Church to the Prerogative royall of the Crown and to the freedome and liberty of every free-born Subject Is not this falshood wrong and injustice I have before shewed how he hath advanced his apocryphall uncanonicall anticanonical antidiplomatical antiprerogative antisuprematicall postscript private letter and message above the Canons of this Church his Majesties Letters Patents and royall Prerogative above a royall Prerogative invested in the Crowne by God himselfe acknowledged by Article by Statute by Canon nay above a royall Prerogative which he and I by the oath of supremacy are both bound to the utmost of our power to defend and maintain and yer he hath violated it and would have made me have violated it as he hath made many others Is not this falshood wrong and injustice Yea but though it be yet peradventure I might not tell him so much Yes my Lord I was bound to tell him of it by the Word of God by the Canon Law by the law of Nature and by the oath of Supremacy The Word of God Levit 19.17 saith Thou shalt not hate thy brother in thy heart but thou shalt plainly reprove him and not suffer sin upon him So did I. The rule of the Canon Law set down by Felinus de rescriptis cap. si quando is this Subditi debent resistere pralato legem ignoranti instruendo eum multo magis legem violanti maxime vero legem conculcanti So did I. The law of Nature bindes
every one to challenge and defend his own right and to repell injurie So did I. And the oath of Supremacie bindes me to the utmost of my power to defend and maintaine all jurisdictions of the Crown and therefore this among the rest that none of the Clergie in their severall jurisdictions can go beyond much lesse contrary to the Canons without incroaching upon the Prerogative royall and supreame Jurisdiction of the Crowne accessory The third The wager And this doth likewise justifie the wager of an hundred pounds laid down to defend the Kings supreame Ecclesiasticall jurisdiction over the Clergie to the utmost of my power according as I was and am expressely bound by the oath of supremacie And for that purpose I have made choice rather to be fin'd imprison'd depriv'd degraded and excommunicated by the High-Commissioners and to endure those tedious delaies and those manifold disgraces indignities and injuries in this Court than by betraying the Kings supremacie to the Arch-deacons usurpation with the High-Commissioners this Court the Barons of the Exchequer and the Lords of the Counsell to violate that oath and so to commit perjury knowing it a thing most acceptable in Gods sight to endure the greatest punishments for to avoid the least sin much more for to avoyd the greatest sin so that set aside this one untrue circumstance there is nothing at all culpable in these three first accessories The manner of speaking and of laying the wager And though the Defendants say that I did speake very malepertly and irreverently to Master Arch-deacon and offered to lay the wager with him in a very arrogant and irrespective maner yet seeing they mention no one particular evill word or deed I hope your Lordship after so many arguments upon the generall sentence of deprivation and degradation and this argument of mine upon the speciall matter will remember that in generalibus latet fraus and vir dolosus versatur in universalibus and will then conceive that that which they say was spoken and done very malepertly irreverently and arrogantly was spoken and done discreetly resolutely and heroically that I might to the utmost of my power defend the Kings supreame Ecclesiasticall jurisdiction over the Clergy according as I was and am expressely bound by the oath of the supremacie and then there is no fault at all either in my words or wager in the things or circumstances But now my Lord though that one circumstance be false and the Defendants according to their own law are not to be credited in the accessories because they have falsified the Law in the principalls Yet my Lord seeing we are now in a demurrer according to the nature of a demurrer let all be granted in these three first accessories that the Defendants themselves affirme Let the words be uttered very malepertly and irreverently let the wager be offered in a very arrogant and irrespective manner let the Archdeacon at the same time be in Saint Margarets Church in Canterburie at the Visitation among the Clergie and sitting there to heare Causes Yet now I will make it appeare by the Defendants owne confession and by a necessary consequence from their confession that in these foure accessories there is no fault at all The Defendants as your Lordship may remember charge me with six particulars amongst which they make my refusall to preach the Visitation Sermon and my maintaining it to be the Arch-deacons duty to preach his own Visitation Sermon the two principall or especiall faults And if they two be the principall and especiall faults then by the force of comparison drawne from the adversaries own estimate the other foure must needs be inferiour and accessory And then if the principall and especiall faults be no faults no breach of any Law much lesse can the inferiours or accessories be any faults or any breaches of Law for si principalis causanon subsistat ea quae sequuntur locum non habent Now I have before shewed that the two principall or especiall faults are no faults but vertues and eminent vertues even the vertues of Canonicall obedience and therefore the other foure being in the Defendants own judgement lesser and inferiour vices than the two former they cannot be any faults but must needs be vertues and greater and superior vertues And the Defendants cannot except against this consequence because it is necessarily drawne from their own estimate and testimony and testimonium ab adversario contra se fortissimum accessory The fourth Now for the fourth and last accessory my refusall to performe the submission conceptis verbis which the Defendants pretend to be a great affront and contempt both to the Kings supremacy and to the High-Commission authority seeing therein I was enjoyned to acknowledge my refusall to preach the Arch-deacons Visitation Sermon at the Arch-deacons and Arch-bishops mandate to be a breach of Canonicall obedience It is certain my Lord that if that my refusall to preach that Sermon be no breach of Canonicall obedience then my refusall to perform that submission conceptis verbis is no affront or contempt either to the Kings or Commissioners authority And if I make good the former the Defendants must of necessity grant the latter And for the cleering of this former it is to be observed that there is a two-fold Canonicall obedience the one due to the Canons only the other to the Prelates mandate according to the Canons To the former we are bound by the Canons themselves and by his Majesties Letters Patents confirming the Canons To the latter we are beside bound by the Prelates mandate and by the oath of Canonicall obedience The breach of the former in all such as submit unto the canons is but only disobedience The breach of the latter is not only disobedience but also contumacie yea and perjury too in all them that have taken the oath of Canonicall obedience This will appeare my Lord by the oath of Canonicall obedience extant in the instrument of my Admission and Institution which I have here to shew wherein the oath runs thus Te primitus de legitima Canonica obedientia nobis successoribus nostris in omnibus licitis honestis mandatis per te praestanda exhibenda ad sancta Evangelia ritè junatum admittimus we admit thee saith the Ordinary having first been rightly sworn by the holy Gospels to perform lawfull and Canonicall obedience to us and our successours in all lawfull and honest mandates In which words my Lord it is first to be observ'd that the thing that I sweare is not arbitrary and blinde obedience that is such obedience as the Prelate shall require by his Dictates whatsoever it be but lawfull and Canonicall obedience that is such obedience as the Canons and Ecclesiasticall lawes of this Land require Secondly that the persons to whom I have sworn are only the Bishop and his successours not the Arch-deacon and therefore though I am bound to yeeld Canonicall obedience to all the Arch-deacons lawfull
not every fault punishable by the Ecclesiasticall lawes of this land but only all great greivous and enormous crimes punishable by the Ecclesiaticall lawes of this land are reserved to the jurisdiction of the Crowne and cognisance of the high Commission for otherwise those wordes will abrogate the nineteenth of the twenty fifth of H. the eight before revived in that Statute and will also swallow up all the ordinary Jurisdictions over England contrary to an other Statute there revived in behalf of the ordinary jurisdiction made 23. Henry 8. intituled an act that no person shall be cited out of the diocesse where he or shee dwelleth except in certaine cases and also contraty to the foresaid fift Proviso of the second cap. of the first of Elizabeth And Lastly by this excellent rule of Saint Hilary in his ninth book de trinitate Intelligentia dictorum ex antecedentibus consequentibus expectetur For this makes the severall parts of that Statute accord one with another and the whole Statute to be as a body at unity in itself and yet herein my Lord by making one part of a statute interpret another we give no more to that Honourable Court than is due to every discret man for unusquisque suorum verborum optimus interpres condentis est interpretari Ratio 6 My sixt reason My Lord is taken from the oath of Canonicall obedience which every Bishop administers and which every incumbent takes at his admission and institution and it is alleaged against me in the defendant plea both in the first and third articles and also in the high Commission sentence and the oath it selfe is expressed in the instrument of my admission and institution in these very wordes Te primitus de legitima canonica obedientia nobis successoribus nostris in omnibus licitis honestis mandatis per te praestanda exhibenda ad sancta evangelia rite iuratum admittimus We admit thee saith the ordinary having first been rightly sworne by the holy Gospells to performe lawfull and Canonicall obedience to us and our successours in all our lawfull and honest mandates And this canonicall obedience as Lyndewode in the first booke of his provincicall tit de maior obedientia cap. Presbiteri verbis in virtute obedientiae shewes is such obedience as the canons and constitutions rightly made and published doe require and the Cannon law shewes that this canonicall obedience consists in these three things In reverentia exhibenda in mundato suscipiendo in iudicio subeundo In yeilding canonicall reverence to the ordinaries person in undertaking his canonicall mandates and in standing to his canonicall judgements And therefore my Lord as wee the incumbents by taking this oath of Canonicall obedience are bound by this oath in thinges concerning the Canons to stand to the ordinaries canonicall judgements so the ordinary by administring this oath unto us and by accepting this oath from us is bound by this oath in things concerning the canons to judge us according to the canons And by both these it appeares that the breaches of canons or of Canonicall obedience unto the Canons belongs to the Jurisdiction of the ordinary and not to the cognisance of the High Commission Court And this reason my Lord is stronger against my adversaries by their own confession in their plea then it is in truth and by my allegation for the defendants in their plea challeng canonical obedience from every incumbent to and for every ordinary and they do extend this canonicall obedience not onely so farre as the Canons but also as far as the lawes in generall and the custome reacheth and therefore in challenging canonicall obedience from every incumbent to and for every ordinary and in extending that canonicall obedience not onely so farre as the Canons but also as farre as the laws in generall and the custome reacheth they doe under the name of canonicall obedience challenge from every incumbent to and for every ordinary a jurisdiction as generall as the canons lawes in generall and the custome will warrant whieh is as generall as can be unlesse they would bring in arbitrary and blind obedience Ratio 7 My seaventh and last reason My Lord to prove that the breaches of canons or of canonicall obedience unto the canons belongs to the iurisdiction of the ordinary and not to the cognisance of the high Commission is taken from the opinion of our late Lord and Soveraigne King Iames and of Arch-bishop White-gift whereof the former being ad miraculmm usque acutissimus did in his time give the authority to the High Commission court and the latter being a Bishop according to this rule of Saint Paul a Bishop must be holy just and unrebukeable was in his time the cheife person under the other to excercise and execute that authority in the high Commission court And this their opinion as it was at first publickely deliv'rd in a solemne assembly of the church to reforme what was amisse and confirme what was well established so it hath beene extant in print to the view of the world full 30. yeares and upwards in a Treatise stil'd the summe and substance of the conference at Hampton Court In the eighty ninth pag. whereof King Iames makes this exception against the High Commissioners that the matters wherein they dealt were base and meane and such as ordinaries at home in their owne jurisdictions might censure whereunto in the 90. pag. Arch-bishop Whitegift answereth that though the matters be base and meane and the fault of that nature that the ordinary jurisdiction may censure it yet in two cases no more onely in two cases the high Commission may interpose First when the party delinquent is to great so that the ordinary dares not proceed against him or Secondly so wealthy in his estate or so wilfull in his contumacy that he will not obey the summons and censure of the ordinary and so the ordinary is forced to crave helpe at the High commission And it seemes My Lord that the High Commissioners and the defendants would make this latter my case for in the 14. Article objected against me in the high Commission court and pleaded against me in this court by the defendants they both say that the ordinary desired the assistance of the High commission against me But it is certaine My Lord that in this matter I am not within either of these cases for I being but a Presbyter and of a single benefice am not so great as great as I am and as great as the defendants would make me that the ordinary my Lords Grace of Canterbury Primate of all England should be afraid to proceed against me at his ordinary jurisdiction if his cause were good neither was I ever contumacious for I was never summoned or cited to appeare at the ordinary jurisdiction And therefore in this case seeing the fault if it be a fault is but petty and small but the breach of a canon or of canonicall