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
power of the keies And though my Lord this question be no question if the high Commissioners by the first of the first of Elizabeth never had any power to fine or imprison for any crime within that statute and the cognisance of the high Commission as is declared by a statute made the first Session of this Parliament which statute makes wholely for me and against the high Commissioners and puts the former question out of question yet my Lord in favour of the high Commissioners and to my owne disadvantage I doe forbeare to take the benefit and advantage of the former statute and Declaration and granting to the high Commissioners a power to fine and imprison for crimes within the first of the first of Elizabeth according to the Commissioners practise before and at the time of my censure according to the wordes of their commission and the approbation both of the Exchequer who did imprison me for the 500. pounds fine estreated by the high Commissioners into the Exchequer and of this Court also which would not upon an habeas corpus deliver me from that imprisonement I doe in this sence and respect onely propose the former question whether for the breach of a Canon or Canonicall obedience unto the canons according to the lawes and customes of this land men are to be fetcht from the judgement and jurisdiction of the ordinary up to the high commission court and there to be fined and imprisoned or else whether they are to be left to the judgement and jurisdiction of the ordinary and he to proceed against them according to the power of the keys And though this question my Lord bee within the compasse and cognisance of the common Law and therefore ought to bee spoken unto by the worthy professors of this Honorab profession yet seeing it is in defence of the Episcopall or ordinary jurisdiction which the Bishops themselves have wrong'd and which at this time in this my case no common Lawyer will undertake to defend and that for this very reason as I conceive because they have mens persons in admiration for advantage sake Epist 16. as St. Iude speakes and do prefer the person of some Bishop before and above the Episcopall or Ordinary jurisdicton it self Therfore ut nequid detrementi capiat respublica Episcopalis vel ordinaria and to the intent that all men may know that I both truely love and reverence the Episcopall or Ordinary jurisdiction not onely above and beyond you the common Lawyers who will not according to your profession defend it but also above and beyond those Bishops who contrary to their callings have wrong'd it and also that I onely oppose the usurpation and presumption of some Bishops and not the Episcopall or ordinary jurisdiction it selfe I will endeavour to shew and that by seven reasons Thesis prima septem rationibus confirmaâ—a that the breaches of canons or of canonicall obedience unto the canons according to the Lawes custome of this land belong to the juridiction of the ordinary and not to the cognisance of the High commission court Ratio 1 My first reason my Lord is taken from the sence and meaning of this word Ordinary as it is expressed by Doctor Lyndewode in the first booke of his Prov. tit de constitut cap. Exterior habitus Verbo Ordinarij in these very words Nota quod haec dictio (c) Ordinarius dicitur quia habet ordinariam iurisdictionem in iure proprio non per deputationem Cokes institutes f. 96 Ordinarius principaliter habet locum de Episcopo aliis superioribus qui sunt universales in suis iurisdictionibus de iure communi solus Episcopus est ordinarius super omnes subditos suos sed sunt sub eo alij ordinarii hi vid. quibus competit iurisdictio ordinaria de iure privilegio vel consuetudine By which words my Lord it appeares though there be some other subordinate inferiour ordinaries under the Bishop in some parts of his Diocesse who have and hold under him in those parts an ordinary jurisdiction either iure privilegio vel consuetudine yet de iure communi over the whole Diocesse the Bishop only is Ordinary and onely hath a generall and an universall jurisdiction And this generall jurisdiction of the ordinary or Bishop extends not to all causes both Temporall and Ecclesiasticall but only to all causes meerely Spirituall so called not in respect of their owne nature but because they are assign'd to the Spirituall or Ecclesiasticall jurisdiction And those are of two sorts either civill Ecclesiasticall causes as Tithes Oblations Legacies Pentions and portions or else criminall causes and both these belong to the generall jurisdiction of the Ordinary for the former it appeares principally in two cap. of Lyndewodes Provinc and that in the very text first in his second booke tit de foro competenti cap. circumspecte agatis which though it be King Edw. 1. direction to his Judges or Justices or Commissioners concerning the Bishop of Norwich and other of the Clergy and bee extant among the Statutes 13. Edw. 1. yet seeing it treates of the spirituall jurisdiction of Ordinaries it is set downe by Lyndewode among the provinciall constitutions of our Archbishops of Cant. Secondly in his 5. booke tit de paenis cap. aeternae Sanctio voluntatis And for the latter namely criminall causes it appeares both in the two chapters before alleaged and more especially in the first booke of Lyndewodes Provinc tit de constitutionib c. exterior habitus ver Inquirant upon which word Lyndewode shewes that there is triplex inquisitio generalissima generalis specialis vel singularis and each of these is twofold either praeparatoria or Solemnis praeparatoria est fine exactione juramenti solemnis est cum juramento and the one of these makes way and worke for the other The preparatory inquisition findes out and starts the game and the solemne inquisition persues and takes it And the most generall inquisition both preparatory and solemne belongs to a generall councell or to a provinciall Synode but the inquisition generall and speciall both preparatory and solemne belongs to the jurisdiction of the Ordinary And this generall inquisition hath three degrees for it is generall either in respect both of persons and of crimes or it is generall onely in respect of persons and speciall or singular in respect of crimes or lastly it is generall in respect of crimes and speciall or singular in respect of persons as the Ordinary shall thinke fit and the matter require Now my Lord the High Commission hath nothing to doe with the first of these causes namely civill Ecclesiasticall causes no nor a generall jurisdiction in the latter namely criminall causes and both these are evident by divers judgements at the common Law Hilary 8. Iacobi In the common Pleas in the case of Huntley and Clifford it was resolved that the High Commission had not power to meddle with civill Ecclesiasticall
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
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
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
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
have his obedience perfect indeed the Abbot bid him thrust his naked arme into a great seething pot full of meat pull out the lowest peece of meat that was in the pot and added that if the scalding liquor did not hurt his naked arme then his obedience was perfect indeed Malmesburiensis in his second book de gestis Pontificum Anglorum in the life of Elstan saith that the Monke did doe so and his hand and arme received no harme and thereby as by a miracle his obedience was knowne to be perfect indeed In the third place they extend it to thinges wicked and ungodly Cardinall Bellarmine de Pontifice Rom. lib. 4 cap. 5. tells us that if (x) Si autem Papa erraret praecipiendo vitia vel prohibendo virtutes teneretur Ecclesia credere vitia esse bona et virtutes malas misi vellet contra conscientiam peccare the Pope should so farre forth erre as to command vices and to forbid vertues the Church were bound to beleeve that vices are good and vertues are evill unlesse she will sinne against her owne conscience and Cardinall Cusanus excitat lib. 2. Serm. 2. excitat lib. 6. serm super respice domine de caelo vide requires every man to yeild both implicite faith blind obedience not onely to the Popes erronious doctrine but also to the erronious doctrine of his own prelate and that without any further search or inquiry after the truth (y) Quam firma est aedificatio ecclesiae quia nemo potest decipi etiam per malum praesidentem si dixeris domine obedivi tibi in praeposito hoc tibi sufficiet ad salutem Tu enim per obedientiam quam facis praeposito quem ecclesia tollerat decipi nequis etimasi praeceperit alia quam debuit praesumit enim ecclesia de illa sententia cui si tu obedieris magna erit merces tua Obedientia igitur irrationalis est consummata obedientia prefectissima scil quando obeditur sine inquisitione rationis sieut iumentum obedit domino suo how strong saith he is the building of the Church for no man can be deeeiued no not by an evill prelate If thou say unto God O Lord I have obeyed thee in my prelate this shall suffice thee unto salvation for thou canst not be deceived by thine obedience which thou yeildest unto thy prelate whom the church suffereth though he command thee other thinges than he ought to doe for the Church presumeth his sentence to be good which sentence if thou obey thy reward shall be great Obedientia igitior irrationalis est consummata obedientia perfectissima Therefore saith hee obedience unreasonable obedience without reason blind obedience is consummate and most perfect obedience that is saith he when thou obeyest thy prelate without seeking a reason even as an horse obeyeth his Master Suppose now my Lord that the Pope should teach the Church and the Bishop should teach those of his diocesse and the generall of the Jesuites should teach those of his order not such doctrine as * Defens fidie lib. 6. cap. 6. mysteria patrum Iesuit p. 159. 160. 161. Swarez teaches that it is lawfull for any man actually to depose and kill a King by the Popes sentence First excommunicaed deposed and devested of his Subjects allegiance and fealty But such doctrine as * Mr. Anthony Arnoulds plea. pag. 11. 12 Varade Principall of the Iesuites in France taught Barriere namely that to murder Henry the fourth of France though a Catholique and not excommunicate was a meritorious worke and that for that deed hee should goe straight unto Paradise or that to murder any other good King good Magistrate good man is a meritorious worke and that for that deed hee that doth it shall goe straight unto Heaven In this case according to this doctrine what were the Church the Bishops subjects and the Jesuites bound to doe onely vi mandati virtute obedientiae without any reference to those manifold subtilties distinctions and subdistinctions in the Jesuites King-killing doctrine why the Church saith Bellarmine it tied in conscience to beleeve and obey the Pope though he teach vertue to be vice and vice to be vertue otherwise she sinnes against her conscience The Bishops subjects must obey him without requiring a reason as an horse having a bridle on his head followes his Master and this saith Cusanus is perfect obedience and after the fact is done if they say unto God O Lord wee have obeyed thee in our prelate they have every one his quietus est this shall suffice them unto salvation nay their reward shall be great And the Jesuites even by their vow are bound to obey their generall even as Iesus Christ himselfe ubique in omnibus every where and in all thinges yea when he commands them to kill and murder And hereupon Campian in that one of his three (z) Generalis praepositi nostri dâ—creto quod ego tanquam mandatum caelitus missum a Christo ipso sancitum veneror Praga Romam ubi Generalis nostri perpetua sedes est Roma deinde in Angliam contendi Campian Epist prefixed before his ten reasons directed to Queene Elizabeths counsell saith that he came over into England iussu sui Generalis tanquam iussu ipsius Christi at the command of his generall as at the command of Christ himselfe and what to doe Even by his owne confession as Sir Edward Coke in Caudreys case saith to make a party for the Catholicke cause that is to withdraw the Queenes subjects from her allegiance and to reconcile them to the Church of Rome which as Sir Edward Coke there saith is treason and punishable with death by the common lawes of the Land And if any will further see the fruites and effects of this arbitrary and blind obedience let him cast his eyes upon Felton at the command of Pope Pius Quintus setting up upon the Bishop of London his gates an excommunication against his owne Soveraigne Queene Elizabeth that peerelesse Lady Let him cast his eyes upon Iacob Clement murdering King H. the 3. upon Francis Ravaillac murdering King Henry the fourth both of France And lastly upon the Gun-powder treason plotted and contrived by the advice and approbation of Henry Garnet superiour of the Jesuites here in England and of Oswold Tesmond Iohn Garrard and other Jesuites as appeares by the 2. of the third of Iames. And this is the reason my Lord that such monstrous impieties and such matchlesse villanies are done by the inferiour at the command of the superiour in the Church of Rome not in the Church of England because the Church of Rome doth approve and embrace arbitrary and blind obedience and the two parts and kinds thereof uncanonicall and anticanonicall and extends it to thinges fond and frivolous ridiculous and absurd yea wicked and ungodly which the Church of England doth utterly reject and contents her selfe with Canonicall
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
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