« AnteriorContinuar »
examples and rules of government. The bishop exerciseth his jurisdiction by his chancellor and commissary official, etc. We see in all laws in the world, offices of confidence and skill cannot be put over, nor exercised by deputy, except it be especially contained in the original grant; and in that case it is dutiful. And for experience, there was never any chancellor of England made a deputy; there was never any judge in any court made a deputy. The bishop is a judge and of a high nature; whence cometh it that he should depute, considering that all trust and confidence, as was said,, is personal and inherent; and cannot, nor ought not to be transposed? Surely, in this, again, ab initio non fuit sic: but it is probable that bishops when they gave themselves too much to the glory of the world, and became grandees in kingdoms, and great counsellors to princes, then did they delegate their proper jurisdictions, as things of too inferior a nature for their greatness: and then, after the similitude and imitation of kings and counts palatine, they would have their chancellors and judges.
But that example of kings and potentates giveth no good defence. For the reasons why kings administer by their judges, although themselves are supreme judges, are two: the one, because the offices of kings are for the most part of inheritance; and it is a rule in all laws, that offices of inheritance are rather matters that ground in interest than in confidence for as much as they may fall upon women, upon infants, upon lunatics and idiots, persons incapable to execute judicature in person; and therefore such offices by all laws might ever be exercised and administered by delegation. The second reason is, because of the amplitude of their jurisdictions; which is as great as either their birth-right from their ancestors, or their sword-right from God maketh it. And therefore if Moses, that was governor over no great people, and those collected together in a camp, and not scattered in provinces and cities, himself of an extraordinary spirit, was nevertheless not able to suffice and hold out in person to judge the people, but did, by the
advice of Jethro approved from God, substitute elders and judges; how much more other kings and princes?
There is a third reason, likewise, though not much to the present purpose; and that is, that kings, either in respect of the commonwealth, or of the greatness of their own patrimonies, are usually parties in suits: and then their judges stand indifferent between them and the subject: but in the case of bishops, none of these reasons hold. For, first, their office is elective, and for life, and not patrimonial or hereditary; an office merely of confidence, science, and qualification. And for the second reason, it is true, that their jurisdiction is ample, and spacious; and that their time is to be divided between the labours as well in the word and doctrine, as in government and jurisdiction: but yet I do not see, supposing the bishops courts to be used incorruptly, and without any indirect course held to multiply causes for gain of fees, but that the bishop might very well, for causes of moment, supply his judicial function in his own person. For we see before our eyes, that one chancellor of England dispatcheth the suits in equity of the whole kingdom: which is not so much by reason of the excellency of that rare honourable person which now holdeth the place: but it was ever so, though more or less burdenous to the suitor, as the chancellor was more or less able to give dispatch. And if hold be taken of that which was said before, that the bishop's labour in the word must take up a principal part of his time; so I may say again, that matters of state have ever taken up most of the chancellor's time; having been for the most part persons upon whom the kings of this realm have most relied for matters of counsel. And therefore there is no doubt but the bishop, whose circuit is less ample, and the causes in nature not so multiplying, with the help of references and certificates to and from fit persons, for the better ripening of causes in their mean proceedings, and such ordinary helps incident to jurisdiction, may very well suffice his office. But yet
there is another help: for the causes that come before him, are these: tithes, legacies, administrations, and other testamentary causes; causes matrimonial; accusations against ministers, tending to their suspension, deprivation, or degrading; simony, incontinency, heresy, blasphemy, breach of the sabbath, and other like causes of scandal. The first two of these, in my opinion, differ from the rest; that is, tithes and testaments: for those be matters of profit, and in their nature temporal; though, by a favour and connivance of the temporal jurisdiction, they have been allowed✨ and permitted to the courts ecclesiastical; the one, to the end the clergy might sue for that that was their sustentation before their own judges; and the other, in a kind of piety and religion, which was thought incident to the performance of dead mens wills. And surely for these two the bishop, in my opinion, may with less danger discharge himself upon his ordinary judges. And I think likewise it will fall out, that those suits are in the greatest number. But for the rest, which require a spiritual science and discretion, in respect of their nature, or of the scandal, it were reason, in my opinion, there were no audience given but by the bishop himself; he being also assisted, as was touched before: but it were necessary also he were attended by his chancellor, or some others his officers being learned in the civil laws, for his better instruction in points of formality, or the courses of the court which if it were done, then were there less use of the official's court, whereof there is now so much complaint: and causes of the nature aforesaid being only drawn to the audience of the bishop, it would repress frivolous and prowling suits, and give a grave and incorrupt proceeding to such causes as shall be fit for the court...
There is a third point also, not of jurisdiction, but of form of proceeding, which may deserve reformation, the rather, because it is contrary to the laws and customs of this land and state, which though they do not rule those proceedings, yet may they be advised with for better directions; and that is the oath er
officio: whereby, men are enforced to accuse themselves, and, that that is more, are sworn unto blanks, and not unto accusations and charges declared. By the law of England no man is bound to accuse himself. In the highest cases of treason, torture is used for discovery, and not for evidence. In capital matters, no delinquent's answer upon oath is required; no, not permitted. In criminal matters not capital, handled in the star-chamber, and in causes of conscience, handled in the chancery, for the most part grounded upon trust and secrecy, the oath of the party is required. But how? Where there is an accusation and an accuser, which we call bills of complaint, from which the complainant cannot vary, and out of the compass of the which the defendant may not be examined, exhibited unto the court, and by process notified unto the defendant. But to examine a man upon oath, out of the insinuation of fame, or out of accusations secret and undeclared, though it have some countenance from the civil law, yet it is so opposite ex diametro to the sense and course of the common law, as it may well receive some limitation.
CONCERNING THE LITURGY, THE CEREMONIES, AND SUBSCRIPTION.
FOR the liturgy, great respect and heed would be taken, lest by inveighing against the dumb ministry, due reverence be not withdrawn from the liturgy. For though the gift of preaching be far above that of reading; yet the action of the liturgy is as high and holy as that of the sermon. It is said, Domus mea domus orationis vocabitur: the house of prayer, not the house of preaching: and whereas the Apostle saith, How shall men call upon him, on whom they have not believed? And how shall they believe unless they hear? And how shall they hear, without a preacher? it appeareth that as preaching is the more original, so prayer is the more final; as the difference is between the seed and the fruit; for the keeping of God's. law, is the fruit of the teaching of the law; and prayer,
or invocation, or divine service, or liturgy, for these be but varieties of terms, is the immediate hallowing of the name of God, and the principal work of the first table, and of the great commandment of the love of God. It is true that the preaching of the holy word of God is the sowing of the seed; it is the lifting up of the brazen serpent, the ministry of faith, and the ordinary means of salvation: but yet it is good to take example, how that the best actions of the worship of God may be extolled excessively and superstitiously. As the extolling of the sacrament bred the superstition of the mass; the extolling of the liturgy and prayers bred the superstition of the monastical orders and oraisons and so no doubt preaching likewise may be magnified and extolled superstitiously, as if all the whole body of God's worship should be turned into an ear. So as none, as I suppose, of sound judgment, will derogate from the liturgy, if the form thereof be in all parts agreeable to the word of God, the example of the primitive Church, and that holy decency which St. Paul commendeth. And therefore, first, that there be a set form of prayer, and that it be not left either to an extemporal form, or to an arbitrary form. Secondly, that it consist as well of lauds, hymns, and thanksgivings, as of petitions, prayers, and supplications. Thirdly, that the form thereof be quickened with some shortness and diversities of prayers and hymns, and with some interchanges of the voice of the people, as well as of the minister. Fourthly, that it admit some distinctions of times, and commemorations of God's principal benefits, as well general as particular. Fifthly, that prayers likewise be appropriated to several necessities and occasions of the Church. Sixthly, that there be a form likewise of words and liturgy in the administration of the sacraments, and in the denouncing of the censures of the Church, and other holy actions and solemnities; these things, I think, will not be much controverted.
But for the particular exceptions to the liturgy in form as it now standeth, I think divers of them, allowing they were just, yet seem they not to be weighty; otherwise than that nothing ought to be counted