The addicions of Salem and Byzance.

¶Who is the higher iudge in suche corrections, as be called spiri∣tual corrections, the kyng or the clergye. The seconde Chapytre. (Book 2)

SAL.

If the partie in anye suite in the spiritual courte wyl appele, the order of his appeale is appoynted by the statute made an .xxv. R. Hen. viii. and the statute is, that if he appele fro the archebyshoppe, that he shall appele to the kynges maiestie in his chaunce∣rye, and that vpon euery suche appele a commission shall be directed to suche persons, as the kynge shal name to de∣termyne the cause without ferther ap∣pele. And syth the kynge may appoynt commissioners to determyne the cause, I holde it no great doubte, but that the kynge hym selfe is the hyghe iudge vppon euery suche appeale.

BIZAN.

yea but my meanynge is in suche suy∣tes, where there is none appele taken:

but that the spirituall iuges gyue sen∣tence ageynst the partie, and appoynte him {per}case to do vnreasonable penance, whether he maye haue any remedye by the lawe of the realme.

SAL.

What thynkest thou in that question?

BYZ.

That he hath no remedy by the kinges lawe. For if he obey not the sentence, he shalbe accursed. And if he stande accur¦sed .xl. dayes, the kynge, vpon the Cer∣tificat of the byshop, is boūde of iustice to awarde a writte, that is called a writ de excommunicato capiendo, and thervppon shall he lye in prison tyll he haue aswel satisfied the churche of the contempte, as of the wronge done to her. For the statute of Circumspecre agatis is, that cor¦rections, whiche p̄lates make for deed∣ly synne, as for fornicacion, auoutrie, & suche other: the spirituall iudge, if he procede to the correction of the synne, shall holde plee, not withstandyng the kynges prohibition. And by the statute of Sub qua forma, yf bodyly penaunce be enioyned, and the partie wyll freely re∣deme

it for money, he may doo it. And so it semeth, that the corrections of for∣nication, auoutrie, and suche other, by the which terme (suche other) be vnder¦stande vserie, simony, yea and periury, and sklaunder in some cases, perteyne of very right to the prelates to correct. And though they assigne vnreasonable penaunce, yet I suppose there is no re∣medy, but by appeale. And yf the par∣tie lese the aduātage of his appele, then he hath put hym selfe without remedy. And ferthermore by the constitution {pro}∣uynciall, that is in the thyrde boke a∣monge the constitutions, De immunitate ecclesie, which begynneth, Seculi principes, It appereth, that he that is in prison, for that he is excommunicate, oughte not to be delyuered tyll he haue made satisfaction as well to the churche, as to the partie: And so sythe the churche may assigne the satisfaction, it semeth that the churche is the high iudge.

SA.

I perceyue thy conceyt wel, but er that I answere the therin, I shall shewe the

my conceyte in a nother thynge, that is to saye, that as I suppose, suche spi∣rituall corrections as nowe be vsed for fornication, auoutrie, and suche other be not merely grounded vpon the lawe of god, but by the law of man, & in this realme they ben done by the clergy, by a custome of the realme, except only the {pro}ces of excōmunication. And if the kin¦ges courte had vsed to haue holden ple also of fornication, and auoutrie, and such other the clergy could not of right haue compleyned of hit. And I holde it no great doubte, but that the parlya∣ment myghte yet ordeyne, that it shuld do so herafter. But parauenture it was thought at the begynnynge of that cu∣stome, that it was more ease for the peo¦ple, and lesse expences, and parauen∣ture more conueniente to haue suche smalle matters sued in the ordinariis courte, then in the kynges courte: and therfore it was then so suffered to be. But if it shoulde happen to appere by experience, that it were as good or bet∣ter

to the kynges subiectes, to haue su∣sue matters determined in his courtes, as in the ordinaries: It shoulde seme good to brynge suche corrections to the kynges courte. For tho synnes may be corrected there, as wel as in the spiritu∣all courte. For hit is here to be noted, that although a man be enioyned in the spirituall court to do such compulsato∣rie penaunce as is there comonly vsed, and he doth it: yet he muste after that be confessed of the same offence, & take penaunce of his gostely father. And so myght he do if he were fyrst corrected in the kinges court. Neuertheles I speke not this to thentent, that I wolde that suche suites shulde be broughte to the kynges courte, but that hit maye ap∣pere, that prelates holde plee therof by the custome of the realme, and by the sufferaunce of the kynge and of his lawes: and not by the īmediate aucto∣ritie of the lawe of god.

BYSANCE.

If they may holde plee of suche thyn∣ges, it is all to one effecte, whether it be

by the lawe of god, or by the lawe of man.

SAL.

Nay for if they haue it on∣ly by custome, it may with a cause be ta¦ken fro theym, and that maye happely cause them to take the better hede, how they order theym selfe in hit. And yf it were by the lawe of god: then it might in no wyse be altered.

¶And as to the correction of heresie, the kynge hath alwaye sene it doone in this realme: excepte the tyme that the statute that was made in the seconde yere of kyng Henry the .iiii. concerning heresies, stode in effecte. For if a man before that statute, had bene delyuered by the ordinaries to the laye courte for heresye, he myght not haue bene putte in execution withoute a wrytte fro the kynge, but with a wrytte fro the kyng, after the olde custome of the realme, he myghte then laufully haue bene put in execution. But yet as I take hit, the kyng was not then vpon euery request made for such a wryt, bounde forthwith to graunte it, but that he myghte take

a respite to se the proces, & thervpon to graunte the wrytte or not to graunt it, as he sawe to stonde with iustyce: but as it semeth there were some that were not content, that the execution shulde be delayed in suche case tyll the kynges wrytte came, but that he so delyuered, shoulde forthwith be put in execution, and after the said statute of secundo of Henry the fourth was made, by what conueyance I can not fully telle, but it is not vnlyke, but that the clergy labou¦red it, wherby it was enacted, that in suche case the party so deliuered, shulde be put in execution, no mencion made that any suche wrytte shulde be sued for to the kyng: by whiche statute the par∣ties so delyuered were sometyme put in execution without any suche wryt, and sometyme labour was made not with∣standynge the sayde statute, to haue suche a wrytte to saue all thynges vp∣right, and that the kynge shoulde take no displeasure. But that was not done for necessitie but of policie. For the sta∣tute

was in the lawe sufficient warrāte withoute wrytte. Vnder this maner diuers haue ben put in execution for he¦resie, whervpon haue rysen great mur∣mours and grudges amonge the peo∣ple, whan somme haue affirmed, that dyuers so putte in execution for heresy were no heritikes. Wherfore the sayde statute of Hen. the fourth was repelled by the statute in the .xxv. yere of kynge Henry the .viii. as reason and consci∣ence wolde it shoulde: and thervpon it is ordeyned, that if he that is laufullye conuicte for herysy, refuse to abiure, or after abiuration fall in relaps, and be duly accused or presented and conuicte, that then he shalbe commytted to the laye power to be burned. &c. The kyn∣ges writte, De heretico comburendo fyrste had and opteyned for the same. And so the olde lawe is therin reuyued. And as me semeth it appereth euidētly, that in that execution the kynge is iugge. For it can not be done without his writ, whiche neuertheles he is not alwaye

bounde to graunte, when it is asked: but as vpon the sight of the proces and sentence, he shall thinke the sentence to stande with reason and conscience. For the statute is not, that the kynge shall graunte the writte, but that the partie shalbe burned, the kingis writ De here∣tico comburendo fyrste had and opteyned for the same.

¶And therfore if the thinge that he is cōuicted for, be no heresie, as it may be, in some cases, after the clergie, bicause it is ageynste the cannons, and yet be none in dede, bycause tho cannons be ageynst the custome of the realme, and that in tēporall thynges: then may the kynge denye the writte. And then as to that treatise, that thou spekest of, cal∣led Circumspecte agatis, I littel regarde it. For many men say, it is no statute, but that it hath been so named to be by the prelates: And so it is sayde in the nyn∣tene yere of kinge Edwarde the thyrde, that it was. And hit is the more lyke to be soo, bycause the same Treatyse,

in maner worde for worde is putte in a constitution prouincial, as a thyng ta∣ken out of the kynges aunsweres: and in all the statute bokes, that go abrode among the lerners of the lawes of this realme, it appereth not, that that trea∣tyse shoulde be taken oute of the kyn∣ges aunsweres, as to the reders wylle appere. Neuertheles if it can be found amonge the kynges recordes, that it is a statute, I wylle take no exception to it, ne yet to Sub qua forma, nor Articuli cleri. For as me semeth it maketh no greatte matter to the question, that we be in hande with nowe, that is to saye, whe∣ther be hygher iuge in spiritual corec∣tions after the olde groundes of the lawe, the kynge or the clergye, whether they be statutes or not. For if a man be excommunicate, and so continewe .xl. days, the custome is, that he shal vpon the Certifycat of the byshop made ther∣of to the kynge, be taken and put in pri∣son, as thou hast sayd before. But then thou knowest well, that if the partye so

beinge in prisone, make surmys to the kynge, that he hathe offered sufficiente caucion or gage, to satisfie the churche and they wyll not receyue it: that then the kynge shal commaunde the bishop, that he takynge an able caucyon shal se the partie deliuerd out of prison: and if he obey not the writte, than the kynge may delyuer the partie oute of prison. And ouer that (if he wyll) he maye, as men thinke, put the bishop to aunswere to the contempte. For disobeyinge his wrytte, and then shall the matter be de∣termined in the kinges chauncerie, and there it shall comme in tryall, whether the gage were sufficiente or not.

BYZ.

But whether shall that sufficiencye be estemed as thou thynkest, accordynge to the penance assigned by the byshop, or accordynge to the offence?

SAL.

It maye be, that there is no penaunce yet geuen, or parauenture he is accursed vppon a contempte for not apperance. But if the penance be gyuen, & he wyll not do it, wherfore he is accursed, and

thervpon he is in prison vpon the wryt De excommunicato capiendo, and thervpon he offereth a gage: I thynke that there the sufficiencye of the gage shall be ta∣ken, accordynge to the offence, for the penaunce maye be vnreasonable.

BI∣ZAN.

And yf the kynge take vppon hym to trye the greatnes or lyttelnesse of the offence by his lawes, than he taketh vpon hym the keys of the chur∣che.

SALEM.

Naye, for that may be valued as welle by the kynges lawes, as it may by the bysshop, yf the partye wyll redeme his penaunce for money. But if the kynge wold for the refusing of his Caution take vpon him to make the absolution hym selfe: then myghte hit be sayde, he medled with the keyes. But sythe he dothe no more, but com∣pelle the bysshoppe to make absolucy∣on, accordynge to his lawes: It can not be sayde, that he medleth with the keys.

BY.

The proces of a contempte, that thou spekest of, hath not ben sene. And ouer that the prelates compleyne,

that if the byshop refuse to take the cau¦cion, that thenne an other wrytte shall go to the shyreffe to delyuer the partie out of prisone, as thou haste sayde be∣fore: and in that wrytte they say, there is no mencyon made, that eyther the churche or the partie shall be satisfy∣ed. And that is the princypalle cause, why the sayde Constitution, Seculi prin∣cipes, was made:

SALEM.

Thoughe the proces of a contempte hath not ben sene in the same selfe case, yet the pro∣ces of a contempte hathe benne sene in lyke cases, for disobeyinge the kynges wryttes, and that that is all vppon one lyke reason, shall be taken of one lyke lawe.

And to that other point, that thou hast moued, If the kynge vpon the refusell of the gage delyuer the {per}tie out of pri∣son, without satisfienge the partie, or the chyrche eyther: I praye the shewe me thy mynde, what wronge hath the churche therby?

BIS.

It hath wronge for this cause. For the lawe of the

churche is, that if a man be accursed, he shall neuer be assoylled, but that he shall fyrste make an othe, that he shall obey the commaundement of hym that shall assoyle hym, and that before he be assoyled he shall make amendis to the parties greued, if he be able, and if he be not able, than he shall make an othe, that he shall do it whan he is able. And by that wrytte, De caucione admittenda, he is delyuered out of prison, and neyther the churche ne the partie satisfied.

SA.

And though he be so, yet neither of thē hath wronge. For he is yet accursed as he was before, and may, er he be assoy∣led, make suche othe as shall be resona∣ble, but that othe that thou haste re∣membred before is clerely agaynste the lawes of the realme. But yf the kynge in that case pretended, that when the partie were so delyuered out of pryson, that he shulde also be discharged of the execution, then had the clergie some co∣lour to complaine, but nowe haue they none at all. And as to makyng amen∣des

to the partie, It standeth not with the custome of the realme, that the cler∣gie shulde haue power to make any a∣mendes to the partie, but only that they in certayne cases maye gyue penaunce for the synne. And therfore for beatyng of a clerke, the amendes for the trespas shall be made in the kynges court: and for the layenge of violente handes on the clerke, amendes shall be made in the spiritual courte, but yet they may as¦signe no peine pecuniarie, onles the par¦tie frely wyl redeme his bodily penaūce with money without compulsion. And therfore there is one thynge in the sayd Treatise, called Circumspecte agatis, that maketh me the more to doute, whether it be a statute or not.

BYZ.

What is that?

SAL.

It is recited there, that for fornication, auoutrie, and suche other, there is sometyme assigned by prelates bodily peyne, and somtyme pecuniarie peyne, & I knowe not one case, where prelates for correction of synne may as∣signe pecuniarie peyne. And therfore I

thynke verily, the parlyamente wolde neuer haue made that recytalle. And thus it appereth sufficientely, that by that deliuerye out of prison, after the re¦fusinge of the said caution, the clergie hath no cause to say, that the churche or partie haue any wronge.

BYZAN.

Welle admytte hit be therin, as thou sayste, yet it can nat be sayde, but that the custome of the realme is broken by it.

SALEM.

Why what callest thou the custome of the realme in such case?

BIZAN.

That the kynge shall kepe in prysone suche as be excommunicate by the prelates, tyll they haue satisfied the churche as well of the contempt as of the wronge. And that the custome is suche, it appereth pleinly by the sayde writ De excōmun. cap. For by that writ the kyng cōmandeth the shireffe to iustifie hym that is excōmunicate by the body, tyll he haue satisfied the churche of the contempt & wronge, as is saide before. And whā he is deliuered without suche satisfaction, the writ is not obserued, ne

yet the custome of the realme.

SA.

The writte is as thou sayste, but that is put into the writ rather to put the partie in a fere, & to enduce hym to submyt him the rather to his ordinarie, than it is to shew the plainnes of the lawe, or of the custome of the realme, and that appe∣reth by the said writ de Caucione admitten. For by that writ the king noteth vnto y^e bishop, y^t if he refuse to take a resonable caucion of the {per}tie, that he wyl in that case do y^t to hym perteyneth to do. And so it appereth, that the kyng hath some other thing to do in the matter, then to kepe the partie styl in prison. And sure∣ly if the custome were precisely, that the kynge shulde kepe the partie in prison, tyll he had satisfied the church, it were far vnresonable. For it may be, that the ordinarie iudged hit for symonye, vsu∣rye, or periurye, or suche other, that was none: shoulde the kynge then be bounde to kepe the partie stylle in pri∣sone, and to do penaunce, where he is not giltie, it semeth not reasonable.

BYZ.

If the kynge iudge, what is sy∣mony and vsury, and what not: dothe he not take vpon hym to iudge vppon thinges mere spiritual, and so confun∣deth the keyes of the churche?

SAL.

Thou muste always consyder, that (as I haue sayde before) the lettynge oute of prisone of one that is excōmunicate, hurteth not the keys, for that he shalbe accursed styll, when he is out of prison, as he was fyrste: and all that the kyng dothe therin, is to see, whether he may with conscience kepe the party any len∣ger in prison or not. And I trowe thou wylt agree, that yf the kynge be so in∣structed, that he thinketh in his consci∣ence, that it is no symony or vsuri, that the partie lyeth fore, that he maye not with conscience kepe hym any lenger in prison. And I praye the, let me knowe what thou thynkest therin.

BYZ.

Ve∣rily thou haste brought me in doute of the matter, and therfore I praye the, shewe me, what is the veray lawe and custome of the realme, concernynge a

man that is so in prisone vpon a writte de excommunicato capiendo, as the thinketh.

SAL.

I take the custome and the lawe of the realme to be this, that he shall not be delyuered out of prisone, oneles the ordinarye certifye the kynge, that the imprisoned hath satisfied the chur∣che, or elles that the partie offer a suffi∣ciente Caucion to satisfie the churche, and the ordinarie refuseth hit: or elles that the kynge or his Chaunceler be so throughly enformed in the matter, that it appereth vnto them, that the partie maye not with iustice and conscience be kepte any lenger in prison: As if the sentence were gyuen for a thynge mere temporall, or that so playne and so suf∣ficient witnesse be broughte in, that it moueth the kynge and his chaunceler, to beleue that the fyrste wytnesse were vntrue, or that the examinour entered the sayinge of the wytnesse otherwyse then the witnes testified.

BYZ.

And if there be suche witnes, yet their sayeng shall not be beleued: ne the kynge may

not put in trial agayn, that is ones tri∣ed after the order of the spiritual lawe:

SA.

To auoyde the excōication I agre well he maye not put the fyrste proufe in triall agayne, as thou sayest, but to order the kynges conscience, & to know whether he maye ryghtwysely kepe the partye any lenger in prison or not, he maye well examyne the truthe of the matter. For truth ruleth in conscience, what soo euer the order of the lawe be, and therfore if the appelle, in an appele of morder be founde gyltie, & the iudge of his owne knowelege knewe that he is not gyltie, he may not gyue iugemēt agaynste hym, but must rather resygne his office.

BIS.

I agree well there, but I put case, that the appelle in thy case be founde gyltie by false verdite, & the iuge by examination of wytnesse, and by confessiō of the same iury also come to perfyt knowlege, that the appelle is not gilty, he may neuer the les in y^t case geue iugement, and is bounde to do it, for he toke the examination against the

order of the law, & therfore he must re∣moue that knowlege, bicause he is com to it of his owne wronge, & ageinst the order of the lawe, & euen so it is in this case. The king ne yet his chanceler nei∣ther ought not to haue newli exaīed the mater, seing that it was sufficiētly tried & proued before in the spiritual court, & therfore they must remoue & put away the conscience that they haue gotten by that vnlawfull examination, and be∣ware that they doo not attempte soo farre ageynste the lawe an other tyme.

SAL.

Though the iudge in the sayde case of appele dyd ageynst the lawe, to examyn new witnes, yet it is not like to this case. For in that case of appele, the verdite is of recorde in the same court, and it is giuen by auctorite of the same lawe, that he sitteth as iuge to iuge v∣pon, & it is also tried after the order of the same law: so that vpon that matter ther is no ferther trial, wherfore I agre wel that he ought not to haue takē ther any newe examination, but in this case

the sentence is giuen in an other court, and after another lawe, than the chaun¦cellour is sette to iudge vppon. For he is sette to iudge after conscience, and not only after the order of the lawe spi∣rituall nor temporall but in fewe cases, and also the proces of excommunicati∣on is to punishe synne, and to mayn∣teyne vertue, but what punysshement of synne, and mayntenaunce of vertue is it, if the kynge kepe hym that is no offender in prysone? And therfore I thynke the kynge or his chauncellour may well take a newe examination in the matter, and do therafter.

BIS.

I fele thy conceyte well, but yet surely yf suche examination be vsed, hit wyll be thoughte by many, that the spirituall iurisdiction is therby greatly confoun¦ded, and that the kynge and his lawes do littel in fauour of it.

SALEM.

I se well thou styckest soore to the matter, and therfore to ease thy mynd somwhat therin I wyl moue the of two thynges.

BIS.

What be they?

SA.

One is this

if the custome were, that whan the ex∣communicate is in prison, vppon the wrytte of Excommunicato capiendo, that he shoulde be kepte styll in prison, tylle he haue satisfied the churche, whether he be ryghtwisely excommunicate or not, were this a lawefull custome?

BIS.

I thynke naye.

SAL.

And this pretence that thou styckest so moche vpon, that there shoulde be no examination of the matter is of the same effect. The secōde is, if the parlyamente dyd put clerely a∣way the wrytte of Excommunicato capiendo, and lefte the matter in suche case, that the ordinaries shulde iustifie al excom∣municates by the censures of the chur∣che, in the beste maner they coude with∣out any helpe of the kynge or of his la∣wes, shulde the parlyament therby do any wronge to the keys of the churche?

BY.

I thynke nay, for the power of the clergie concernynge suche excommuni∣cations shulde neuer the les stond styll in her full strength. But yet it shoulde breake a good laudable custome of the

realme that was fyrst begon in fauour of the clerge, & of the spiritual iurisdic∣tion.

SAL.

thou sayste euen truth, and my meanyng is not that I wolde haue that custome broken, but that it shulde appere, that thoughe hit were broken, that yet no mā had cause to complaine, as thoughe the lybertie of the churche were therby brokin, or the keis violate, wherfore me thinketh it more expedient for the clergie, to take this matter as it is, that is to saye, that the kynge and his lawes be as well contente to haue suche rebelles, as haue deserued punish¦ment, & yet wyl not obey the keys of the church, correctio, as they be: but yet y^t the kynge & his lawes shoulde therfore in any case be compelled, whether they wolde or not, to punishe an Innocente, it is not resonable: & thus it shuld seme to be the more indifferēt way, & more ac¦cordynge with iustice, that the mater be examined before the king, & that if it ap¦pere thervpon, that the partie offended not, that he be deliuerid out of prison, &

y^t the ordryng of the excōmunication be thervpon lefte to the conscience of the byshop, thē to charge the kinges consci¦ence or his chauncellours eyther, with kepynge of hym in prison. And then to that thou hast said before, that if such ex¦cōmunications be taken, that it wyl be thought by many, that the kyng & his lawes do litel in fauour of the spiritual iurisdiction, I pray the be iuge therin thy self, whether it be moch or litel, that the kyng doth, whā he only vpon y^e cer∣tificat of the bishop taketh y^e {per}tie & ley∣eth him in prison, & there kepith him, til he either satisfieth y^e church, or els if he complaine, that he hath wronge, exami∣neth the mater, he being in prison, how be it I think, y^t the kīg in such case may if he se cause let the {per}tie to bayl, hāging y^e examination, though the shereffe by the reson of the statute of westm̄. i. may not do it. And nowe to our first matter, If the kynge wolde iudge vppon Si∣mony and vsury, thynkest thou that he shulde offende the keys?

BYZANCE.

I thynke soo, for symonye and vsurye be prohibited by the lawe of god, and it belongeth to the clergi to declare, what is the lawe of god, and what not.

SA.

Though symonie and vsury be prohi∣bite by the law of god, yet that proueth not, that princis may not therfore hold ple therof, for takyng away of an other mannes goodes, and also periurye be prohibyte by the lawe of god, and yet princes holde plee therof, and thoughe Symonye and vsurye be prohibite by the lawe of god, yet it is not declared by the lawe of god, what is symonie, and vsery and what not. And it semeth, that princis takyng to them spirituall men, as theyr counsailours, maye doo that well ynough. And if it were orde∣red, that for symonye that the kynges courte shulde holde plee, I suppose it wolde doo moche good. For hit is not vnlyke, but that manye offende therin, and yet I here but of lyttell correction in that behalfe. And therfore thoughe the kynge iudged vppon symonie, and

vserye, I suppose he offended not the keyes, thoughe happely as the lawe of his realme is nowe, he shulde offende his lawes.

BY.

Well I wyl take a re∣spyte to be auysed, er that I shewe the my full mynde, in this matter, and I praye the lette me now fele thy conceyt, yf a manne be accursed, for that he wyl not obey a decre in a cause of matrimo∣nie, and he is in prisone for it vpon the writte De excommunicato capiendo, and offe¦reth a sufficient caucion, to obeye the churche, shall it be accepted?

SALEM.

yea as welle in that case, as in any o∣other case, and hit shall be valued after the substance of hym that is in prison. And if he wyll yet when he is oute of prison, disobey the decree, and not ma∣rye, wherby he forfaiteth his caucion, than he may vpon a new information, made to the kynge in his chancerie, be taken agayne by a newe writte, De ex∣communicato capiendo fourmed speciallye vpon the case, and be kepte in prison tyl he obey the decree. And so he may be in

all cases, where he is delyuered vpon a caucion, and kepeth not his promise.

BYZANCE.

Well I am content in this matter, but I pray the, whether may the kynge in any case denye a writ of Excommunicato capiendo, whan it is vp∣pon the certificat of the byshoppe re∣quyredde?

SALEM.

yea and that maye be proued thus. It apperethe in the regestre, that if the kynge at the certificat of the byshop, haue awarded forth a writ de Excommunic. ca. & after the kyng before the partie is takē, is enfor∣med, that the partye appealed before the sentence, or that a prohibition was delyuered, and not withstandynge the iudge proceded, whervppon an atta∣chement is hangynge before the kyng, or elles it appereth, that the plee per∣teyneth clerely to the kynges courte: in al these cases the kynge shall graunte forthe a Supersedeas, commandynge that the partie shal not be arrested, and thervpon it foloweth, that if no wrytte be forthe, it may be denied, whan it is

asked, and that if the partie be arested, before the Supersedeas came, that the kynge maye for the same causes dely∣uer hym oute of prison vpon a speciall wrytte de excommunicato deliberando.

BISANCE.

There is no writte de ex∣communicato liberando, in the regestre, but where the byshop certifieth the kynge, that the parti hath satisfied the church.

SA.

All writtes that be grauntable by the law, can not be in the regestre, & the specyall matters proue, that he ought to be deliuered out of prison for y^e time, and so a writte may be fourmed vppon the matter wel inough to delyuer hym: howe be it he shall remayne yet accur∣sed vnder such maner, as he dyd before, & may be taken ageyne, if nede be, and that is in fauour of the spiritual iuris∣diction. For I trow therin is no tēpo∣rel lawe more fauorable to the spiritual iurisdictiō thē the lawes of this realme be, & yet if suche fauour be haply bro∣ken somtyme, a defaute is founde ther∣at by the clergie, as thoughe the holle

liberte of the clergie were broken ther∣by, where no lybertie is broken at all, & euen vpon suche a poynte was the sayd cōstitution Seculi principes, made. For the constitution in the begynning reciteth, that whenne suche excommunicate per∣sons be vpon the sygnification of pre∣lates accordynge to the custome of En∣glande, taken and put in prisone, that then the prelates, bycause they refuse to take a gage, wherby the partye offreth to stande to the cōmaundmentis of the churche, and to obey the lawe, be com∣maunded to delyuer the partie oute of prison, whiche as it is sayde, there the prelates maye not nor ought not to do, as thei say, before due satisfactiō made, and thervppon the sayde constytution sayth farther, that soo lay men vsurpe the keyes of power and counnynge, to the confoundynge of the iugement of the church, where the truth is, the chur∣che hath gyuen no iudgement, that the partye shalbe commytted to prisone, for it hath no power so to do, but onelye to

excommunicate the party for the sinne, and thervppon the kyng accordyng to his lawes hath delyuered the party out of prison, that he imprisoned him selfe: bycause the bysshoppe hath refused a resonable caucion. And yet it foloweth in the said constitution: Wherfore we ordeyne, that the excommunicate per∣sones so taken in our prouince, and so goinge out of prisone agaynste the ly∣berties and customes of the churche of Englande, shall be to theyr more con∣fusion shewed excommunicate with rin¦gynge of belles, and lyghtyng of can∣delles. &c. And so that, that in the be∣gynnynge of the sayde constitution is called the custome of Englande, as it is in dede, and is the very cōmon lawe of the realme, that a persone excōmu∣nicate shall be layde in prysone by the kyng vpon the certificat of the byshop, is after called the libertie and custome of the churche of Englande: wherby the constitution meneth, that he y^t goth so out of prisone, for that the byshoppe

refuseth his caucion: and they that let hym out also, breken the libertie of the clergie of Englande, and vsurpeth the keys of power and cunninge, where in dede neyther theyr libertie, ne keys be touched: but the custome of the realme (wherby they clayme their libertie) is obserued. And if they coud proue the cu¦stome of the realme, wherby they claim y^t libertie broken, yet they ought not cō∣plain, as though their libertie were on∣ly brokē. For it is no more their libertie then it is the libertie of al the people of Englāde. For al the people of Englāde make the churche of Englāde, & it hur∣teth al the people, and not only the cler¦gie, to haue any one laudable custome of the realme broken. And yet the mea∣nynge of that constitution is that that going out of prison hurteth the clergie only. And suche singularite hath done moche hurte, and wyll do, as longe as it contynueth.

¶And farthermore the cause why the said cōstitutiō sayth, that prelatis may

not nor ought not deliuer the impriso∣ned by the kinges writte De cautione ad∣mittenda, the writte is, that thoughe as the kynge is informed, the partie hath offered to the byshop a sufficient gage, that he shall obeye the commandement of the churche, after the fourme of the lawe, and that the bishoppe refuseth to take hit. &c. The kynge by that terme Lawe, meneth the lawe of his realme: whiche is, that the partie excommen∣ged, shall make amendis to the chur∣che for the synne onely, and no satisfa∣ction to the partie. For that perteyneth to the kynges lawe. And the lawe of the churche is, that satisfaction shal be made also to the partie. And for mayn∣tenaunce of that satisfaction to be had by auctoritie of the spirituall lawe, the sayde Constitution was made to putte the partie in feare to goo out of prisone by the kynges writte.

And all this riseth vpon the variance of the lawes, wherby greatte grudges & expenses, yea and moche vnquietnes

haue ensued, and wyl do as longe as it and other thynges lyke shall be suffred to contynue as they do nowe.

BY.

All suche expences and vnquyetnesses be well prouyded for, by reason of the said appele, that may be made into the kin∣ges Chancerie. For it is not to thynke, but that the commissioners, that shalbe assigned by the kynge, wylle order the matier after iustice, and accordynge to the kynges lawes.

SAL.

I truste they wyll, but yet it is not the ease of euerye pore mā, that may haply be wrongfully handeled in the spirituall courte, to sue forthe a commission vnder the kynges broode seale. And therfore if the olde forme of the kynges lawe be obserued therin, tbat is to saye, that if the partie that is accursed and imprisoned wylle offer a resonable caucion to the byshop, to obey the churche, accordynge to the kynges lawes, and he refuse it, that then the kynge, accordynge to the olde custome, shall let hym out of prison, tyl he can fynde the meanes to brynge the

byshoppe to order hym, accordynge to the kynges law, & that all the proces of that constitution, wherby the partie for his so goinge out of prison shuld to his more confusion be shewed to be accur∣sed with ryngynge of belles, and lygh∣tynge of candelles, shuld for the cruel∣of it be auoyded: I suppose veryly it wolde do moche good. And yet I pray the my frende Bysance, lette me knowe thy mynde in one thynge concernynge this mater.

BY.

What is that?

SAL.

That if a man be accursed, and he is contented to make amendes, & to haue his absolution, but the byshoppe wyll not take any amendes of hym: or if he take amendes, or put hym to penance, whiche he fulfylleth, yet he wyll not as∣soyle hym, ne he wylle not certifye the kynge, that he is accursed, soo that he myghte by helpe of the kynges lawes be dismyssed: but wylle suffre hym to stonde styll so accursed: what remedy hath the partie, as thou thynkest, to be discharged of that excommunication?

And lyke wyse if a man be accursed for a thynge mere temporall, and wolde be discharged of it, and the bysshoppe wil not discharge hym, what remedye hath the party to be assoyled?

BYZANCE.

In thy laste case the partye maye haue a Premunire.

SAL.

And thoughe he take it & recouer therby, yet he standeth styll accursed. And also the partye and iudge may be deed, and then the premu¦nire is gone.

BIS.

Well, I thynke in bothe thy cases, that if the excōmenge∣mente be certified in to any of the kyn∣ges courtes of recorde, that thē the king vpon the compleynte of the party may commaunde the byshop to assoyle him, if he wyl order him self according to the lawes of the realme, & if he wyll not, he shal ren in a contēpt against the kinge.

SAL.

And if the byshop wil not certifie the excōmunicatiō in to none of the kin¦ges courtes, ne vnto the kyng neither: what remedy hath the partie then, must he stonde alway accursed, and be pro∣hibite from heryng of dyuyne seruice, &

fro all company of feythfull people du∣rynge his lyfe?

BIZAN.

It is not to be thought that any bishop wyl deny absolution, where he ought to make it: & if he do, I pray the let me here thy con¦ceyte, what remedy as thou thynkeste, shulde lye in the case?

SA.

Whether any bishop wil do so or not I cā not tel, but surely there is a great opinion amonge the people, that as the worlde hathe gone in tyme paste, if suche an excom∣munication had touched the power of a bishop, or the libertie of the churche, or els that any greate man of the spiritu∣altie, had borne displesure to the party, that he shuld haue right moch busines, and also pay well for it, ere he shoulde haue his absolution. But howe so euer it hath ben in tyme past, I beseche oure lorde that the matter maye be soo well loked to, that hit be not soo here∣after, ne that vnresonable penaunce, ne vnreasonable money, for redeming of hit, nor for the costes of the suite, be not gyuen nor taken hereafter.

And as for a remedy for the partie to be assoyled, I thinke verily, that the king vpon the surmyse of the partye, maye aswell cōmande the ordinarie to make absolution, so the partie order hym ac∣cordinge to the lawes, where the excō∣mengement is not certified of recorde, as where it is. For me thynkethe, that the reason is all one in both cases. For aswel shall he be prohibited fro diuyne seruice and communion in the one case as in the other. And if he haue any ac∣tion to sewe and take it, the ordinarye myght els disable hym when he wolde. And lykewyse if the byshoppe assoylle hym, and when he hath soo done, wyll not make hym his letters of absolutiō: the kynge maye also cōmaunde hym to do hit, as me semeth.

BIZ.

There is no writte in the Regestre, that the king may write to the ordinarie to make ab∣solucion, where the excōmunication is not certified of record into the kynges courte.

SA.

And if there be not, it for∣ceth lytell. For if there be a lyke reason

in an other case, as there is in that: the clerkes of the Chauncerie maye agree vpon a wryt. And yf the kynge myght not do, as I haue sayd, it might happē, that many of his subiectes shulde fayle of Iustice, and that the kynge coulde not helpe it. And therfore if the byshop wyll not obey the kynges wrytte, an at∣tachement shall go agaynst hym to an∣swere to the contempt: And then shall the mattier be determined after the or∣der of the kynges lawes. And so it ap∣pereth (as me semeth) that euen after the olde lawe & custome of the realme, the kinge is the high and supreme iuge in suche corrections, though the sayde statute of .xxv. H. viii. had neuer bene made: and that he may see his subiec∣tis haue iustice in that behalfe, if they wyll calle for helpe vnto hym. But yf the partie in suche case, wyll submytte hym selfe vnto the ordinary, then by the parties assent, the ordinarie may make the fynall conclusion: so he offende not the kynges lawes in his doinge.