Certaine considerations drawne from the canons of the last Sinod, and other the Kings ecclesiasticall and statue law ad informandum animum Domini Episcopi Wigornensis, seu alterius cuiusuis iudicis ecclesiastici, ne temere & inconsulto prosiliant ad depriuationem ministrorum Ecclesiæ: for not subscription, for the not exact vse of the order and forme of the booke of common prayer, heeretofore provided by the parishioners of any parish church, within the diocesse of Worcester, or for the not precise practise of the rites, ceremonies, & ornaments of the Church.

Considerations against the depriva∣tion of a Minister, for the not vse of a Surplice in divine service.

IN the whole body of the statute, there is not one syllable or letter, frō the which any semblance of reason can be deduced, that any Minister of the church, for refusing to vse, or for the not vsing of any ornament appointed by the statute, or by the book to bee in vse, should be punished with the peyne of deprivatiō. For what soever pu∣nishment a Minister, for the breach of the Statute, may sustayne, by the kings Iustices, the same is only to be imposed for such offences, as are specified before the last provisoe of the statute. Ornamentes therfore of the church provided to be reteyned, and to be in vse, being not cō∣teyned in those premises, or things mencioned before the second pro∣visoe, concerning the Archbishops and Bishops authoritie, and for re∣fusing whereof, a Minister, by the premises is punishable, it followeth (there being no punishmēt for refusing the vse of ornaments in the last provisoe) that the not vse of ornamentes, is not punishable before the kings Iustices. And if there be no punishment appointed to be inflic∣ted before the kings Iustices for the refusing to vse any ornament, thē much lesse is there any punishment to be inflicted for the refusall of the vse of a Surplice. For the Surplice is so farre from being comman∣ded to be worne, as an ornament, in every service of the church, as the same is not so much as once particularly mencioned, either in the pa∣rish booke, or in the statute.

Nay by the generall wordes, both of the statute and the booke, the Surplice is wholy secluded from being appointed to be an ornament of it selfe, in some part of the service of the Church. For if with the same in some part of the service there be not a Cope provided to bee worne, the Surplice may not be worne. For the better manifestation whereof, it is necessary that we set downe the wordes of the Statute, of the parish booke, and of the booke of the second of K. Edw. the sixth: vnto which booke of king Edward, for the vse of ornaments, the Mi∣nisters be referred, both by the parish booke & statute of 1. Eliza. c. 2. the wordes of which statute are these:

Provided alwayes and be it enacted, That such ornamentes of the

Church, and of the Ministers shall be retayned and be in vse as was in the church of England, by authoritie of Parliament, in the second yeare of the raigne of King Edward the 6. vntill other order shalbe therein ta∣ken by authoritie of the Queenes Matestie, with the advise of her Com∣missioners, appointed and authorised vnder the great seale of England, for causes Ecclesiasticall, or of the Metropolitane of this Realme. Thus farre the statute: the wordes of the parish booke follow:

It is to be noted, that the Minister at the time of the Communion and other times in his ministration shall vse such ornamentes in the Church, as were in vse by authoritie of Parliament, in the second yeare of King Edw. the sixth, according to the act of Parliament, in that case enacted and provided. The wordes of which booke of the second of King Ed∣ward, are these:

Vpon the day and at the time appointed, for the ministration of the holy Communion, the Priest that shall execute the holy ministerie, shall put vpon him the vesture appointed for that ministration, that is to say, A white Albe playne, with a vestiment or cope:

Afterward it is said thus: Vpon Wensdayes and Fridayes the English Letany shalbe said or song, &c. And though there he none to communi∣cate with the Priest, yet those dayes (after the Let any ended) the Priest shall put vpon him a playne Albe, or Surplice, with a Cope, and say all things at the Altar, &c.

From all which places it is plaine, First, that no Minister, at any time vpon Wensdayes and Fridayes, after the Letany ended, was bound sim∣plie to weare a surplice at the Altare, for it was in his choyse, to put v∣pon him a playne Albe or Surplice, with a Cope.

Secondly, that no Priest vpon the day and at the time appointed for the Ministration of the holy communion, might put vpon him a Sur∣plice, but only a white Albe playne, with a vestiment or Cope.

Thirdly, that no Minister vpon Wensdayes and Fridayes, when hee read the Letany, did weare, or was bound to weare an Albe, or Sur∣plice and Cope. For it had bene in vayne and a thing ridiculouse for the booke to have willed the Minister, after the Letany ended, to put vpon him those ornamentes, if in the time of reading the Letany, hee had had them vpon his backe.

Fourthly, that no minister at or in any of the times & services afore∣said, is bound to put vpō him a Surplice, vnlesse therewithall he weare a Cope. For the vse of ornamentes ought to be according to the act of

Parliament. And therefore where no Cope, there by the act no Surplice: where no Altar to goo vnto after the Letany ended, there no Surplice to be put on after the Letany: where a Communion with a white Albe plaine, & a vestiment or Cope, there a cōmunion without a Surplice.

There is yet one other speciall observation before touched, though for an other purpose, worthy to be reiterated in this place against the vse of the Surplice at the communion, reading the Letany, and saying prayers at the Altar. And that is this: Namely for that as well the Sta∣tute 1. Eliza. as the parish booke hath revived and commaunded the vse of those ornamentes, according to the Act of Parliament, 2. Edw. 6. which were repealed and forbidden by the booke of the 5. and 6. of King Edward the sixth.

It is to be noted,* 1.1 saith the booke of 5. and 6. of King Edw. 6. That the Minister, at the time of the communion, and all other times, in his ministration shall vse neither Albe, vestiment nor Cope, but being an Archbishop or Bishop, he shall have and weare a Rochet, and being a Priest or Deacon, he shall have and weare a Surplice only.

And here it is to be noted (sayeth the parish booke) that the Mini∣ster at the time of the communion, and at all other tymes, in his mini∣stration, shall vse such ornamentes in the church as were in vse by Au∣thoritie of Parliament in the 2. yeare of the reigne of King Edw. the 6. according to the Act of Parliament in that case made and provided, which were as the booke of K. Edw. saith, an Albe with a vestiment or Cope, at the communion, and an Albe or Surplice with a Cope, vpon Wensdayes and Fridayes after the Letany ended.

But by the Provinciall constitutions,* 1.2 ratified and confirmed by Act of Parliament, the parishioners are enioyned, at their costes and char∣ges, to provide a Surplice, and in vayne were this charge layde vpon them, if so be the Minister were not bound by the law to weare it.

It is true,* 1.3 and can not be denied, that all parishioners are enioyned, and that every Masse-priest is bound by the Provincials, the one sorte, to provide, the other to weare a Surplice, for and at the celebration of the Masse, and for and in the vse of other popish services. The reason of the vse of which Surplice, by the popish Glosers and Provincials, is yeelded to be this;* 1.4 That the Priest must be clothed with white, to sig∣nifie his innocencie and puritie, and also ob reverentiam & Salvatoris nostri & totius caelestis curiae, quam sacramento altaris consiciendo & confecto non est dubium interesse.

But how doeth it follow, either from the provincall, or reason of the provinciall, that a Minister of the Gospell is bound by the provin∣ciall to weare a Surplice at the ministration of the word and Sacra∣ments of the Gospell, when the doctrine and service of the Gospell is contrarie and repugnant to the service and doctrine of the Masse?

And when by the statute the Provinciall is not to be vsed and execu∣ted, but as it was vsed and executed before the making of the statute, which was Anno 25. of King Henry the eight, at what time the ser∣vice of the Masse, called the Sacrament of the Altar, was only in re∣quest. A Minister therefore of the Gospell, by the Provinciall is no more bound to weare a surplice, then by the Provincials & other lawes of the Realme, he is bound to say a Masse: For the Provinciall appoin∣teth a surplice to bee worne at the Masse and other idolatrous services, all which services and which Masse (as being blasphemous to the sa∣crifice of our Saviour Christ once made vpon the crosse, & repugnant to the holy worship of God) is abrogated by the lawes of the Realme.

Now then it were to bee wished that all states were given to vnder∣stand, by what equitie, law or good conscience grounded vpon the said statute, bookes or Provincials, sundry grave, learned and godly Pastors and other Ministers, for sundry yeares passed, have bene deprived, sus∣pended or excommunicated from their benefices, dignities, promoti∣ons and ministeries, for not vsing the surplice?

If the Archbishops, Bishops and other ordinaries, have heretofore proceeded lawfully in this case, by any other right then statute lawe, it were greatly to be wished, & a thing tending every way to their honor, credite and reputation, that the same their Iustice were made publike∣ly knowne, to the end all maner persons and states; might rest them selves fully satisfied and well perswaded of the integritie of such their proceedings, as wherof they now stand in doubt.

For our partes we acknowledge, that the Queenes Highnes had au∣thoritie by the statute with the advise of her Commissioners, &c. or Metropolitane, to take other order for ornamentes. But wee never yet vnderstood, that any other order was taken accordingly: and especial∣lie in any such sorte, as that the Archbishops, Bishops & other Ordina∣ries might warrant their sentences of deprivation to be lawfull against the Ministers, which refuse to vse the Surplice. By the Advertisements wherevpon (as it seemeth) they did principally rely, and by authoritie whereof they did chiefly proceed, it is apparant that neither the letter,

nor intendement of the statute (for the alteration of ornamentes) was observed: And that therefore the commaundement of wearing a Sur∣plice in steed of a white Albe playne, by the advertissementes, was not duely made.

For though by her Highnes letters it doth appeare, that she was desi∣rous, as the preface to the advertisemēts importeth, to have advise from the Metropolitane & cōmissioners, that she might take order; neverthe∣les that her Highnes, by her authority, with their advise, did take order & alter the ornamēts: this (I say) doth no where appeare, no not by the advertisements them selves. Howsoever then the Metropolitane vpon the Queenes mandative letters, that some orders might be taken, had conference and communication, and at the last, by assent, and consent of the ecclesiasticall commissioners, did think such orders as were spe∣cified in the advertisements, meete and convenient to be vsed and fol∣lowed: neverthelesse, all this proveth not that these orders were taken by her Maiesties Authoritie. For the Metropolitane and Commissio∣ners, might thinke, agree and subscribe, that the advertisementes were meete and convenient, and yet might these advertisements be never of any valew, as wherevnto her Highnes authoritie was never yeelded.

But be it graunted that the Surplice by the Advertisements,* 1.5 or other canons, hath bene duely authorized, yet herevpon it can not bee con∣cluded, that an ordinary by his ordinarie Iurisdiction, hath power to deprive a Minister from his benefice for not vsing a Surplice. vbi non sertur in contra facientes aliqua poena, constitutio est imperfecta, & mo∣dicum prodesse poterit, quoad contra facientes, there being thē no peine mencioned in the advertisementes to bee imposed vpon a Minister for the not vse of a Surplice, how should a Minister for the not vse of a Surplice, suffer the losse of his benefice, which is one of the greatest peynes?

Herevnto happily it wilbe answered,* 1.6 that vbi certa poena statuta est, non debet Iudex ab ea recedere, vbi vero non est statuta, tunc est impo∣nenda ad arbitrium Iudicantis. And further, that, respectu poenae infli∣gendae proper contemptum Iudicis; non reperitur provisio regulariter, à lege facta, & ideo Judex potest arbitrio suo poenam imponere.

Touching which answeres it may brieflie be replyed, that the peyne spoken of in the civil law, is generally vnderstoode of a pecuniarie peyne, to be assessed and applied to the silke; or more specially, it may be vnderstood, that among many corporall peynes, the Iudge arbitra∣rily

may choose which shall seeme to him most modicinable. Now, these kinde of peynes, it is manifest, that neither of them by the ordi∣narie Iurisdiction ecclesiasticall, in the church of England, can be im∣posed for contempt.

And as for that which to the same effect may bee alleadged,* 1.7 out of the forein canonistes or forein canon law, thus standeth the case: The whole plott & frame of the building of the canon law (as before hath bene proved) is cleane ruinated and wasted.* 1.8 From whence it follow∣eth, that all the posts, sommers, walles, plates, rafters, and roofe of that pallace,* 1.9 with all the yron, leaden and wooden implementes, and vten∣silles thereof, be all likewise rotten and naught, else but drosse & can∣ker. And so from the Nullitie thereof, it is to be inferred, that an or∣dinary can not defend or practise his ordinarie Iurisdiction by that law, against any of the Kings subiectes. For all strange and forein law, is both a strange power, and a forein traytor to the Kings crowne, and for that cause, can not be pleaded in any of the kinges ecclesiasticall courtes, without being in danger of loosing her head.

Howsoever then this rule,* 1.10 in the romish consistories, by the Romish law, be true that an Ordinarie for inobedience or contempt, may im∣pose an arbitrary peyne, where a statute or constitution hath appoin∣ted no peyne: yet because this rule is an irregular enimy to the regi∣ment of the kings Crowne, it seemeth that the kings subiect is wron∣ged whensoever an ecclesiasticall ordinary, for contempt, shal impose arbitrarily, any peyne, for the which peyne he hath not expresse war∣rant from the kings ecclesiasticall law.

Besides, if the Romish canon law, were the Kings ecclesiasticall law, yet doth not the former exception prove, that a Parson or Vicare, may be deprived from his benefice, by the ordinaries iurisdiction, for the not vse of a surplice; only the said exceptiō affordeth thus much: viz. that if an ordinarie iudicially and canonically (as they call it) accor∣ding to the sanctions, not of the English, but of the Romish church, have admonished a Minister to weare a surplice, the exception (I say) affordeth in this case thus much, that his ordinary for contempt may impose an arbitrary peyne, if so be nether by common right, nor by constitutiue law, there be an ordinarie peyne imposed. But now so it is, that this case falleth not out to be within the compasse of the peyne of deprivation, for not wearing a surplice. For it is contempt only, and not the not wearing of a surplice, that arbitrarily may bee punished in this case:

Why then though an ordinary be not able by the Kings Ecclesiasti∣call lawes,* 1.11 to drawe in a Ministers deprivation, principally and by the head, for not wearing a surplice, yet it seemeth that he may drawe in the same consequently, & as it were by the tayle; namely, by chardg∣ing him with wilfull periury or obstinat contempt; for the which causes he may iustly be deprived.

Nay,* 1.12 soft good Sir, your conclusion is without premisses. For who ever graunted that the Romish canon lawe was the Kings ecclesiasti∣call law? howsoever then, from part of mine answere made to the ex∣ception, of contempt, you might gather that by the Romish canon lawe, the deprivation of a Parson or Vicare, for contempt, may bee drawne in by the tayle, though not by the head; nevertheles we stil de∣nie that any Parsons or Vicares deprivation, directly or indirectly by the head, or by the tayle, either for contempt or periury, pretended to be committed for inobedience to canonicall admonition, can iustly be inflicted by the kings Ecclesiasticall lawes.

First wee affirme (as earst hath bene said) that aswell the branch as the budd, the tayle as the head of the Romish canon law is cleane cutt of from the body of the kings ecclesiasticall law.

Secondly, that the oath of canonicall obedience, exacted by the or∣dinary from the Parson or Vicare, hath ever bene exacted hetherto, onely by vertue of the foraine canon lawe, and not so farre (as we can learne) by any the kings ecclesiasticall lawes.

And therefore periury against a Parson or Vicare, for refusing to weare a surplice at his ordinaries command (by the kings ecclesiasti∣call lawes) can not be obiected; For where there is no lawfull oath taken, there no lawfull punishment for the breach of the same oath can be inflicted, by meanes whereof, one halfe of the tayle before spo∣ken of, is disiointed.

And as for the other halfe, viz. that for contempt of the ordinaries iurisdiction, a Parson or Vicar (having promised reverently to obey his Ordinary, and other chief Ministers vnto whom the governement and charge is committed over him; Following with a glad minde and will their godly admonition, and submitting them selves to their godlie iudgementes) that a Parson or Vicar, I say, may lawfully for contempt be deprived from his benefice, if he refuse to put vpon him a Surplice at his Ordinaries admonition, and vpon his Ordinaries iudgment, this might have some colour, if the Ordinaries admonition and iudgment

by the holy scriptures, could be proved to be a godly admonition, and a godly iudgement: or if the former rule were a rule aswell drawne from the Kings ecclesiasticall law, as from the forain canon law; or if there were no certeyne peyne by the Kings ecclesiasticall law appoin∣ted for contempt: or that among divers certeyne peynes, deprivation were one. But seeing the same rule is none of the Kings ecclesiasticall rules, and that admonition, suspension and excommunication, & not deprivation by the Kings ecclesiasticall lawes, be certeyne and ordina∣rie peynes, to be inflicted for contempt, it followeth by the Kings ec∣clesiasticall laws, that an Ordinarie may not arbitrarily, at his pleasure, for such contempt, inflict the peyne of deprivation.

Nay, were it true that the Romish and forein canon law, touching this point of punishment by deprivation for contempt, were in force within the Realme of England, yet we affirme, even by the same law, that a Parson or Vicare, for the not wearing of a Surplice, in divine worship, at his Ordinaries commaundement, is no more by his Ordi∣narie, to be deprived from his benefice, having a reasonable cause to refuse the wearing of a Surplice, then is a Bishop to be deprived by an Archbishop from his Bishopricke, for not putting in execution some of his provinciall Decrees; when as the same Bishop hath any reaso∣nable impediment, not to execute the same decree. For this Rule, con∣temptus fit, ex ce ipso, quòd dum possunt hoc facere, illud tamen exequi contradicunt, is of no more efficacie ••gainst a Minister subiect to a Bi∣shop, then it is against a Bishop subiect to an Archbishop. For as Epis∣copus est ordinarius omnium Presbyterorum suae Dioceseos, so is Ar∣chiepiscopus, ordinarius omnium Episcoporum suae provinciae. And ther∣fore as it may be said, quod praecipitur Rectori, seu Vicario, ab Episcopo imperatur ei, & quoda 1.13 imperatur necesse est fieri ab eo, & si non fiat, poe∣nam habet; so likewise, vbi preceptum Archiepiscopi est factum Epis∣copo, ibi necesse est vt obediat. vnde verbumb 1.14 praecipimus, habet vim sen∣tentiae definitiuae, aswell by an Archbishop against a Bishop, as by a Bi∣shop against a Parson or Vicare.

For as haec dictio praecipimus, vsed by a Bishop to a Parson or Vicare, importat aliquid de voluntate & authoritate Episcopi faciendum, vel non faciendū, so by the same word vsed by an Archbishop to a Bishob, tenetur Episcopus cui praecipitur, quòd praeceptum adimpleat, voluntate & authoritate Archiepiscopi. In like sort then, as a Bishop to save him selfe, both from contempt, & the penaltie of contempt, may alleadge,

and plead against an Archbishop, that he did not therefore obey and execute his Metropolitanes commandement, by reason of absence out of his Diocesse, sicknes or other reasonable impediment, even so every Parson and Vicare to avoid contempt, may pleade for his innocencie, against the admonition of a Bishop, that Iustam habet excusationem, quare illud non debeat,* 1.15 vel non possit, vel nolit facere. Non enim po∣test dica sponte negligere, qui potestatē faciendi, quod incumbit non ha∣bet. Et negligens dicitur, qui desidiosus, vel inconsiderains est, ad ea quae agere debet, cum non subsit rationabile impedimentum & contemnere dicitur, qui sine causa, non facit quod preceptum est. Et contemnere vi∣detur. Jdem esse quod aspernari, vel non curare, & hoc est verum quan∣do non subest causa. Wherevpon Linwood concluding, that propter inobedientiam possunt subditi corum benesicjs priuari, quia graviter pecat; qui obedientiam infringot hoc verum est, saith he, si sponte, & sine causa hoc siat. Let vs then for examples sake only, suppose that the Bi∣shop of Chichester, commanded by the Archbishops grace of Canter∣bury, to proceed to the deprivation of M. N. Vicare of P. in the Dio∣cesse of Chichester, for his not cōformity in wearing a surplice, should notwithstanding his commandement, spare the said Vicare his depri∣vation, and being convented before his Metropolitane to answere this contempt, should for his excuse alleadge that he had received letters of speciall grace, in behalf of the said Vicare from the Kings Maiestie, by which he was required to respite the said Vicare, and to assigne him a longer day. Suppose this (I say) for examples sake to be true, I demand in this case, whether the Kings letters directed to the Bishop, were not a reasonable impediment and iust cause, to save the Bishop from the penalty of contempt, (which by the canon lawe, is the losse of his Bi∣shoprick) for the not execution of the Archbishops provinciall Man∣date. If all the Advocates of the Archbishops consistories, must needs grant that his Highnes letters were a iust excuse to exempt the Bishop from the penalty of contempt, how much more iustly and reasonably may those Advocats conclude, that the same Vicare was to be excused from contempt, against the Bishops admonition, when for his defence he alleadged, and was ready by his oath to have avowed the testimony of his owne conscience, rightly (as he was perswaded) grounded vpon the holy commandement of the most high God, that he durst not for feare of wounding his owne conscience, and displeasing God, to weare the surplice in any part of Divine worship? For if the request of an

earthly king superior to an Archb. be a reasonable excuse, to save a BB. from contempt against an Archb. How much more ought the autho∣ritie and precept of an heavenly king, be a iust and reasonable impedi∣ment, to save a minister, from contempt against a Bishops admonitiō?

Vnlesse then a Bishop will avow and be able out of holy writ, to iu∣stifie that a Ministers conscience (especially a Ministers conscience, who walketh (as Zakarias did) in all the commandements and ordi∣nances of the Lord without reproofe,* 1.16 can not be any iust or reasona∣ble excuse or impediment, why he ought not, or may not, or will not in Divine worship weare a surplice, being thervnto admonished by his ordinary, vnles (I say) the Bishop out of holy writ be able fully to prove that such a Ministers conscience is no iust or reasonable cause to stay him from wearing a surplice in Divine worship, in this case I say, that even by the Romish canon law it self, there can no contempt be char∣ged vpon such a Minister, for not obeying his ordinaries, first, second & third admonitions; the reasons whereof, even out of the same canon law have bene alleadged before in the first parte of these cōsiderations.

But to leave the foraine canon law, and all the rules thereof, as be∣ing no branches of the Ecclesiasticall lawes of England, let it be gran∣ted that before the statute of 25. H. 8. c. 19. some canon or constitution Synodall or Provinciall, had bene made, or since have bene made, by the Clergie of the Realme, in their cōvocation assembled by the Kings writ, that a Parson or Vicare, for periurie or contempt ecclesiasticall, should bee deprived of his benefice; neverthelesse it seemeth that the same is a voide canon, and a void constitution: Because it is contrary or repugnant to the lawes and customes of the Realme: By which lawes and customes no free man of the Realme, can be dispossessed, of his franck tenement, for contempt or periury in any of the kings tem∣porall Courts. All Parsons and Vicars then canonically instituted & inducted, being not subiects at this day to any forain power, but being freemen of the Realme, in as large and ample maner as any Layickes, the Kings other subiects be, it seemeth that a Parson & Vicare (by the lawes and customes of the Realme) being a Freehoulder, should for none other cause loose his Freehould, then for the which like cause, a Layicke may loose his.

Yea and because no Layicke by the laws & customes of the Realme, may bee put from his Freehould for contempt, no though the same cōtempt be committed against the kings Proclamation, or any decree

made in his high Courte of Chancerie: by so much the more vnrea∣sonable it seemeth to be, that a Parson or Vicare for contempt against his ordinaries admonition, should bee deprived from his benefice, by how much a contempt against the Kings commaundement, is more heinous then is a contempt against the ordinaries admonition.

You mistake the cases,* 1.17 & as it seemeth, you vnderstand not the law. The Freehold of a layick, and the Freehold of an ecclesiasticall person be not of one nature. The former belongeth vnto him by a title inve∣sted in his person, but the latter apperteyneth vnto a Church-man, in the right of his Church: If then the Churchman be displaced from his Church, it followeth by a necessary cōsequence, that he must likewise be discharged from his freehold. For he, being in the eye of the law dead vnto his Church, can no more enioy the freehold which he held in the right of his Church, then can a dead Layick any longer holde a Franktenement, in right of his person. And for your better satisfacti∣on herein, I would have you to consider, that the like course of Iustice is kept and ministred against certeine officers in the common weale: which officers, so soone as for any iust cause they shall be put frō their offices, doe withall and forthwith loose such their freeholdes, as ioint∣ly with their offices, and in regard of their offices they held.

The Maister of the Rolles and Warden of the Fleete, having their offices graunted for terme of life, though other of them by the same graunt be seised of a freehold, the one of the house called the Rolles, the other of the house called the Fleete: nevertheles if the first bee put from his Mastership, and the second from his Wardenship, neither can the one, nor the other, by the law and iustice of the Realme, reteyne ei∣ther of those houses, as his Freehold; For as the houses were iointly with their offices, & in respect of their offices granted. So their offices being once taken from thē, they must withal by necessary consequence forgo those their houses, w^ch for the time they held as their freeholds.

Well: if this be all that may gaynesay our position, then be not our cases mistaken, neither yet have we so ignorantly vrged & applied the law and free customes of the Realme, as you would beare vs in hande. For though we grant, whatsoever you have excepted, to be true, yet can not the same be a barre against our pleading.* 1.18 For wee have hetherto pleaded no more in effect, but thus, viz. that a Parson or Vicar during his ministeriall function, being in the eye of the law, no dead but a li∣ving person, and a free man of the Realme, ought no more, for a con∣tempt vnto his Ordinaries admonition, by any law of he Realme bee

dispossessed from the freehold, which in right of his function he en∣ioyeth, then can a Layicke for contempt vnto the Kings commande∣ment, be disseised of his.

And what if the Freeholdes of a Layick, & of an ecclesiastical person, be (as you say they be) diversly possessed, the one by right of church, the other by right of person, what doeth this (I say) impugne our say∣ing, that no Freeholder for cōtempt of the Kings cōmandment may be punished with losse of his freehold, whē the great Charter of England telleth vs, that a freemā shall not be amerced for a small fault, but after the quantity of the fault. And for a great fault, after the maner therof, saving to him his contenement or freehold. If then vnto every freemā punishable by the law, though his fault be great, his Contenement or Freehold ought to be reserved; it seemeth much more reasonable to follow, that no Churchman, being a freeman of the Realme, may for contempt be punished, with losse of his Contenement or Freehold.

And that you may consider (against our next conference) more deep∣ly of this matter, let me put this case vnto you viz. That a Churchman and a temporall person, both freemen of the Realme; for one and the selfe same contempt against the king, were punishable by the great Lordes in the starre chamber, or in any other Court, by other of the Kings Iustices; would our lawes & freecustomes of the Realme (think you) iustifie, that the spirituall person, enioyning still his spiritual fun∣ction, might in this case be mulcted with the losse of his benefice, and yet the tēporal person not to be punishable by the losse of his freehold?

The examples produced by you, relieve no whit at all your case, nay rather they stand on our side, and make good our part. For how long soever the Maister of the Rolles and Warden of the Fleete, doe enioy their offices, for so long time, by your owne collection, they ought to enioy their Freeholdes, annexed to their offices; yea and you assume in effect, that they may not lawfully for contempt, or any other cause, be disseised of their freeholds, so long as they be possessed of their offices.

Now then, if from the identity of reason you would conclude, that a Parson or Vicare for contempt lawfully deposed from his ministeriall function, should in like maner lawfully loose his freehold, annexed to his office, as the Maister of the Rolles, and Warden of the Fleete, put from their offices, should loose theirs, we would not much have gain∣said your assertion. For we hold it vnreasonable that a Parson or Vicar deposed from his ministeriall function, should enioy that freehold or

maintenance which is provided for him that must succeed in his mi∣nisterial charge. But then your assertion would make nothing against vs. For so you must prove that your officers for contempt only, may lawfully be put from their freeholds annexed to their offices, and yet notwithstanding remaine the same officers still.

And then indeed; frō some parity or semblance of reason, you might have inferred, that a Parson or Vicare for cōtempt deprived of his free hold, annexed to his function, might notwithstanding such cōtempt, enioy his ministeriall function still. But to dispute after this sort, were idlely to dispute, & not to dispute ad idem. For how doth this follow?

The Kings officer, if for contempt he be displaced from his office can not withall but be displaced from his freehold, which ioyntly with his office, and in regard of his office, he possessed.

Therfore a Parson or Vicare for contempt, may lawfully be deprived from his benefice or freehold annexed to his ministeriall function, and yet notwithstanding enioy his ministeriall function still. And this is the maine point & generall case (for the most part) of all the Mi∣nisters which at this day for contempt, stand deprived. For among all the sentences pronounced for contempt, there is scarce one to be foūd which deposeth a Parson or Vicare from his ministerial office, but on∣lie which depriveth him from his Church, Parsonadge, or Vicaradge. Whereby the vnreasonablenes of certeine ordinaries, in their processe of deprivatiōs, become so much the more vnreasonable, by how much more vnreasonable it seemeth to be, that any publicke officer should lawfully be continued in his publicke office, and yet not be suffered to enioy any publick meanes, to mainteine the same his office.

And thus much have we replied vnto your answere, made vnto our pleadings, that by the lawes and freecustomes of the Realme, a Parson or Vicar, being a freeman of the Realme, may not for cōtempt vnto his ordinaries admonitiō, be deprived from his freehold, if so be you grant that he may enioy his ministerial function still. As touching the lawes of the church, it hath ben already sufficiently demonstrated, that there is then no contempt at all committed against an admonition, whē the partie admonished can alleadge any iust or reasonable cause of his not yeelding to his admonisher. And if no contempt in such case be made, then no deprivatiō from a benefice, or deposition from the ministerie, in such case ought to follow.

Notes

• * 1.1

  The order where mor∣ning & eve∣ning prayer, &c. fol. 1.
• * 1.2

  Obiection.
• * 1.3

  Answere.
• * 1.4

  Lind de ce∣lebra. Missae c. l••••theami∣na
• * 1.5

  The Bishop by his ordi∣nary iurisdi∣ctiō hath no authority to deprive a mi¦nister for not wearing a Surplice.
• * 1.6

  ff. Si quis ius diceat non obte l 1. & l 2. si quis in iu•• vocat.
• * 1.7

  Foraine ca∣nō law abo¦lished, 25.
• * 1.8

  H 8. c. 19.
• * 1.9

  A Bishop by the forrain canon lawe, hath no iu∣risdiction.
• * 1.10

  An ordina∣rie by the Kings eccle∣siastical law cannot im∣pose an arbi¦trarie peyne for not wea¦ring a Sur∣plice.
• * 1.11

  Obiection.
• * 1.12

  Answere.
• a 1.13

  Lind. de constitut. ec. quia incon∣tinentiae. verb praeci∣pimus.
• b 1.14

  verb. prae∣cipimus.
• * 1.15

  ex. de conc. praeb. c. quia &c. vlt. de elect. Lind de ca∣sti. quia verb neglexerit. Lind. de sen ten. excom. verb. con∣temp. glos in verb contempse∣••it c. 1. de appell. li. 6.
• * 1.16

  Luke 1.
• * 1.17

  Answer.
• * 1.18

  Reply.