The Altar of Damascus, Chapter 5
CHAP. 5. Of Archdeacons, Chancellors, Commissaries Officials, and Vicars generall.
NOW followeth the jurisdiction exercised by the Bishops Deputies, and Archdeacons, whereunto I will premit the rest of Sir Francis Bacon now Lord Chauncellour his censure.
For the second poynt, which is the deputation of their authoritie, I see no perfect and sure ground for that neither, being somwhat different from the examples and rules of government. The Bishop exerciseth his jurisdiction by his Chauncellor and Commissary, Officialls, &c. We see in all lawes of the world, officer of skill and confidence cannot be put over or exercised by Deputie, except it bee specially contained in the Originall granted, and in that case it is dutifull. There was never any Judge, in any court, made a Deputie. The Bishop is a Iudge, and of a high nature; Whence commeth it that he should depute, considering that all trust and confidence, (as was sayd) as personall, and inherent, and cannot, and ought not to bee transposed? Surely in this againe, Ab initio non fuit ita. But it is probable, that Bishops▪ when they gaue themselves too much to the glory of the world, and became Grandoes in kingdoms, and great Counsellors to Princes, then did they delegate their proper iurisdictions, as things of too inferiour nature for their greatnesse, and then after the similitude of kings, and Count Palatines, they would have their Chauncellors and Iudges.
But that example of Kings and Potentates giveth no good defence. For the reasons why kings administer by their Judges (altho…gh themselves are the supreame Iudges) are two. The one, because the offices of Kings are for the most part inheritance, and it is a rule in all lawes, that offices of inheritance are rather matters, that sound is interest, then in confidence, forasmuch as they may fall upon women, upon infants, upon lunatickes, and Idiots, persons not able to exercise Iudicature in person, and therefore such offices by all lawes, might ever bee administred by delegation, The second reason is, because of the amplitude of their iurisdiction, which is as great, as either their birthright from their Aun…estours, or their sword-right from God, maketh them. And therefore Moses, that was governour over no great people, and those collected together in a campe, and not scattered in Provinces, and Cities, himself… l…kewise of an extraordinarie spirit, was neverthelesse not able to suffice, and hold out in person, to iudge the people, but did by the advice of Ie…hro his father in law, approved from God, substitute Elders and Iudges, how much more other Kings and P…inces.
There is a 3 reason likwise not much from the present purpose, and that is, that Kings either in respect of the common-wealth, or of the greatnesse of their own patrimonies, are usually parties in suits, and then their Iudges stand indifferent betweene them and the subiect. But in the case of Bishop, none of these reasons hold. For first, the office is E…ective and for life, and not patrimoniall, or hereditarie. An office worthy of science, confidence, and qualification. And for the second reason it is true, their jurisdiction is ample and spacious, and that their time is to bee divided between their labours, as well in the word and doctrine, as government, and iurisdiction. But I doe not see, supposing the Courts to be used uncorruptly, and without any indirect course held to multiply causes for gaine of fees, but that the Bishop might very well for causes of moment supply his iudiciall function in his owne person. For wee see before our eyes, that one Chauncellour of England dispatcheth the suits in equitie of the whole kingdome, which is not by reason of the excellencie of that rare honourable person, who now holdeth that place, but it was ever so, though more or lesse burthenous to the suiter, as the Chauncellour was more or lesse able to give dispatch, and if heed bee taken to that, which was sayd before, that the Bishops labour in the word must take up a principall part of his time, so I may say againe, that matter of state have ever taken up most of the Chauncellours time, having been for the most part persons, upon whom the Kings of this Realme have most relied for matters of Counsell. And therfore there is no doubt, but the Bishop whose circuit is lesse ample, and the causes in nature not so multiplying, where the helpe of references, Certificates, to and from fit persons, for the better ripening of causes in their neere proceedings, and such ordinary helps incident to jurisdiction, may very well suffice his office. Yet there is another helpe: for the causes that come before him are those, tithes, legacies, administrations, and other testamentarie causes, causes Matrimoniall, accusations against Ministers, tending to their suspension, deprivation or degrading. Symonie, incontinencie, heresie, breach of Sabboth, and other like causes of scandall. The first two of these differ in mine opinion, from the rest, that is, tithes and testaments, for those be matters of profit, and in their nature temporall, though by favour and connivencie of the temporall jurisdiction, they have beene allowed and permitted to the Court Ecclesiasticall. The one, to the end the Clergie might sue for that, that was their sustentation, before their own Iudges, and the other, is a kinde of pietie and religion which was thought incident to the performance of dead mens wills. And surely for these two, the Bishop in mine opinion may with lesse danger, discharge himselfe upon his ordinarie Judges. And I thinke likewise, it will fall out that those suits are in the greatest number. But for the rest which require a spirituall science, and discretion in respect of their nature, or of the scandall, it were reason in mine opinion, that there were no audience given, but by the Bishop himselfe, he being assisted, as was touched before. But it were necessarie also, he were attended by his Chauncellour, or some other his officers, being learned in the civill lawes, for his better instructions in poynts of formalitie, or the courses of the Court, which if it were done, then were there lesse use of the officiall Court, whereof there is now so much complaint. And causes of the nature aforesayd being drawn to the audience of the Bishop, would represse frivolous suits, and have a grave and incorrupt proceeding to such causes, as shall bee fit for the Court. There is a third forme also, not of jurisdiction, but of forme of proceeding, which may deserve reformation, the rather because it is contrary to the lawes and customes of this land, and state, which though they doe not rule this proceeding, yet may they be advised with for better directions, and that is the oath ex officio, wherein men are forced to accuse themselves; and that is more, are sworne unto blankes, and not unto accusations, and charges declared. By the lawes of England, no man is bound to accuse himselfe. In the highest causes of treason, torture is used for discoverie, and not for evidence. In capitall matters, no delinquents answer upon oath is required, no not permitted. In criminall matters not capitall, handled in the Starre-chamber, and in causes of conscience, handled in the Chauncerie, for the most part, grounded upon trust and secresie, the oath of the partie is required. But how? where there is an accusation, and an accuser, which we call bills of complaint (from which the complaint cannot varie, and out of compasse of the which the defendant may not be examined) exhibited into the court, and by processe certified unto the defendant. But to examine a man upon oath▪ out of the insinuation of fame, and out of accusations secret or undeclared, though it have some countenance from the civil law, yet it is so opposite ex Diametro, to the sence of the common law, as it may well receiue some limitation.
This wise Polititian maketh this overture, supposing that the Bishops ample and spatious circuite will not be contracted, and that these causes, which in their owne nature are temporall, wlll not be drawne from the ecclesiasticall Courts. For such a reformation is not, nor may not be … at in these dayes, at least Polititians will not hazard their places and hopes in seeking of it, le…t Caesar …tart. But their is a day coming for the Antichrist, and them also. What we have spoken before against medling with civill causes, their large Diocie, and excluding the Presbyterie from the cōmon governement here not m…lled with, I need not to repeat. Alwayes the reader may take up very solide reasons against the deputation of their authoritie.
The ordinary Iudges, who under the Prince execute judiciall administration in name of others, are the Bishops deputies, to wit, the Vicar generall, for the universitie of causes belonging to voluntarie jurisdiction, 2. The officiall principall, for the universitie of causes belonging to contentious jurisdiction. 3. The Comm…ssary, for certain… causes, within a certaine part of the Diocie.
The persons having judiciall admininistration not brought in by any law, have it eyther by Royall composition, or privilege, or prescription of time. By prescription of time as 1. some in exempt jurisdictions. 2. Archdeacons, whose office constitute by law, is to enquire in the repairing and covering of Kirks, & their implements, in ecclesiasticall enormities to be punished, to refer to the ordinary matters or greater moment to induct into benefices. 2. jurisdiction, as they hauehave it by prescription. It is …xerced e…ther by themselves, or by their Officials.
… Byshop hath a two fold power, one of order, another of jurisdiction. The power of order he committeth to his Suffragane Bishop, as ordaining of ministers and Deacons, Bishoping of children, dedication of Churches and church yards etc. Their jurisdiction, is eyther voluntary, or contentious. The voluntary he cōmitteth, when he is absent, to his Vicar generall, the contentious he commiteth to his Chauncelour, and Com…ssarie. The Vicar generall then in absence of the Bishop may visite the Diocie,De sequest…. c 1. veodo Vicarios. or any part thereof, give certificates into the Kings Courts of bastardie and of excommunicates,l. 5. p. 153. commit administrations, give licence to eate flesh upon forbidden dayes, & doe all that may be done by the Bishops voluntarie jurisdiction, whereof we hauehave entreated already. D. Field sayth, that Bishops had Vicars generall, that might doe all things almost that perteyne to the Bishops iurisdiction. And Lindwood sayth, that they might not onelyonly enquire into, but also punish and correct offences. The other deputies of the Bishop may be also called his Vicars, yet are they designed … distinct name, because they hauehave a distinct office, to wit, the Chancelour, and the Commissarie.
The Chauncelour is the Bishops principall officiall, deputed for his principall Consistorie. The Commissarie is the Bishops officiall. also, but in some remote part onelyonly, or some places, exempted from the Archdeacon, and he is called in the Canon law,… juris …anonici. 92. Officialis foraneus, id est extraneus, sayth Canisius. This distinction betwixt the Chauncellour and Commissarie, is made cleare in Cowells interpreter, as followeth. Officialis in the Canon law, is especially taken for him, to whom any Bishop doth generally commit the charge of his spirituall iurisdiction. And in this sence one in every Diocie is Officialis principalis, whom the statutes and lawes of this kingdome call Chancellour, Anno 32. Henr. 8. c. 15. the rest, if there be more, are by the Canon law called Officiales foranei, gloss. in Clement. 2. de rescriptis, but with us termed Commissaires Commissarij, as in the statute of Henr. 8. sometimes Commissarij foranei. The difference of these two poynts you may read in Lindwood. tit. de sequestra, c. 1. But this word Officiall in our statutes, and common law, signifieth him whom the Archdeacon substituteth in the executing of his iurisdiction, as appeareth by the statute above mentioned, and many others places. Againe, Commissarius is a title of Ecclesiasticall jurisdiction, at least so farre as his commission permitteth him in places of the Diocie, so farre distant from the chiefe citie, as the Chauncellour cannot call the subiects to the Bishops principall Consistorie, without their too great molestation. This Commissarie is of the Canonists termed Commissarius, or Officialis foraneus, Lindw. de accusat. c. 1. in glossa, and is ordained to this speciall end, that hee suplieth the Bishops jurisdiction and office in the out places of the Diocie, or else in such parishes as be peculiars to the Bishop, and exempted from the iurisdiction of the Archdeacon. For where either by prescription, or composition. there bee Archdeacons that have iurisdiction within their Archdeaconries, as in most places they have, there this commissarie is but superfluous, and most commonly doth rather vexe and disturbe the countrey for his lucre, then of conscience seeke to redresse the lives of offenders. And therefore the Bishop taking praestation money of his Archdeacons yearly, pro exteriori jurisdictione, as it is ordinarily called, doth by superonerating their circuit with a Commissarie, not onelyonly wrong the Archdeacon, but the poorer sort of subiects much more, as common practise daily teacheth, to their great woe. The Bishops Chauncellour and Commissarie, and the Archdeacons official, are all three termed officialls in the canon law, the Chauncellour the principall officiall, the Commissarie, Officialis foraneus, the third, the Archdeacons officiall, or by the generall name of officiall. In the lawes and statutes of England, the first is called Chancellour, the second Commissarie, the third by the generall name of Officiall.Lib. 5. p. 15. The name of Chauncellour in this sense, is not so ancient as that of Officiall, sayth D. Field, and that in a generall signification it is used for any one that is employed for the giving of answer to sutors, for keeping of records, and notes of remembrance, and generally for the performance of some principall duties pertaining to him, whose Chauncellour he is sayd to be. The principall officiall, that is, the Chauncellour, howbeit he be but onelyonly a Deputie, yet by fiction of the law, when hee cognosceth any cause, hee is interpreted to bee but one person with the Bishop, and to make but one consistorie with him. So that howbeit the Bishop be not present there, yet it is his consistorie. Such fictions of law have been made by, cosening and deceitfull Prelates, to deceive the world. And therefore say the Canonists, there lieth no appellation from the principall Officiall to the Bishop, but to the Archbishop: yet from the Commissarie, who is Officialis foraneus, there lieth appellation. Regularly appellation also may be made from the Archdeacon, and other inferiour Prelates, to the Bishop, sayth Canisius, …anisius in … pag. …1. 92.unlesse the custome of the countrey hath brought in another order. The Archdeacon hath a certaine circuit of the Diocie, wherein he exerciseth his office and iurisdiction. For everie Diocie is divided into certain Archdeaconries, comprehending about the fourth part of the Diocies, if they be great Diocies. sucket, p. …4.But if they be lesser Diocies, they hauehave but one Archdeacon, as Canterburie, Rochester, Glocester, Bristow, Worcester, &c. The Archdeacon by vertue of his degree and order, hath no jurisdiction, but onelyonly by prescription of time, that is a papall custome, which is yet retained in the English Church.Id Evag. …st. 85. In Hieroms time at Rome the Deacons began to exalt themselves above Ministers, against which usurpation & evil custome of the Church of Rome, he inveigheth with great vehemencie, as a thing unsufferable, that the ministers of tables, and to widowes, should be lifted up with pride aboue the minister of the word and sacraments, and opponeth to the custome of the church of Rome, the custome of all the churches in the world. And yet the old corruption of that one church, (wherin ther institutions ye see if they were excellent) hath spread over the whole church, and grown to a great height. So that the Archdeacons will not, Reply. p. ….sayth Mr. Cartwright, take the best Ministers of the church, as their equalls. They are called Archdeacons, not of one particular Church, but of a whole shire, whereas Deacons were appoynted in several churches. It is true, that many of their Archdeacons are also ministers, but yet they exercise their iurisdiction over a whole shire, ministers and others within the bounds of their Archdeaconrie, not as Ministers, but as Archdeacons. When the Bishop should have visited his Diocie, and inquired into needfull reparations of the church, and what other things were out of order, hee sent his chiefe Deacons to visit for him. At the first they were sent onelyonly to visit and make report, Lib. 5. p. 15▪ 153.but not to sententiate in any mans cause, sayth D. Field, or to meddle with the correcting and reforming of any thing: but afterwards in processe of time they were authorized to heare and determine the smaller matters, and to reforme the lighter and lesser offences. Hence in time it c…me, that Archdeacons much used by Bishops, as most attendant on them in the visitation of their churches, and reforming small disorders, at length by prescription claimed the correction of greater things, at having of long time put themselves into the exercise of such authoritie. So the Archdeacons in the end became greater then the Deanes, let bee common Ministers. The lazie Bishop sent his Deacon to enquire into the life and conversation of the Clergie and Ministers, which was not his office, yet ye see from what a small beginning he is risen to so great a height. It is dangerous to depart from the right paterne shewed upon the mount. Againe, to make a Preacher of the word a Deacon, is to conioyne these two offices, which the Apostles did separate.
Archdeacons then almost through all England by papall prescription have jurisdiction within their bounds, and power to visite, to inquire into offences, to receive presentments, & to punish with ecclesiasticall censures, to substitute officialls to supply their roomes in their Consistories, whereby it hath happened, that the subjects hauehave been molested for one and the selfe same fault by the Bishops Chauncelours, and the Archdeacon or his officiall.Canon 101. In a Canon lately made anno 1603 they hauehave transacted the matter so, that they shall not medle with the presentments, received at others visitations; how the transaction is kept I cannot tell. It is to be observed that Chauncelours and officials are Civilians,…etition to …be Queene. 70. Ministers doe sometime also beare these offices, but utterly ignorant in these faculties. For these Courts being confused Courts wherin matrimoniall, testamentarie and other causes of temporal matters are handled not belonging to ecclesiasticall cognisance, no wonder the Minister be ignorant in them. But on the other part, it were a shame if a Civilian should know better how to deale with an offender, and to bring him to repentance. Againe what a grosse absurditie and intolerable abuse is it in the Church of God, that Chauncelours, Commissaries, & officialls being Civilians should meddle with the censures of the Church. The Bishop hath vendicate to himself the whole power of excommunication, and then he transferreth this his power by a generall commission to another, which he may not lawfully doe, no not to a minister, far lesse to a Doctor of the Civill lawe, whom he appointeth to be his Chauncelour, or the Archdeacon to him, whom hee appoynteth to bee his Officiall.
They have found out a new trick, which will not serve their turn. The Civilian, the Chauncellour, or officiall, when he is to excommunicate, he hath a minister to assist him, who pronounceth the sentence. The defender of the last petition telleth us,P. 175. that the minister assistant to the Chauncellour, who is for the most part of the meanest and simplest of the clergie, is but a cyphar, he doth nothing but his masters direction, excommunicateth and absolveth at his pleasure. The Minister is not judge here, the sentence is set downe in writ to him in Latine, which he must rehearse. A memorable example we have in the Assertion for true and Christian church policie,P. 387. 388. together with the Article made anent this matter.Anno 1584. Vniusquis… Vicarius generalis, officialis ceu commissarius, qui ordines Ecelesiasticos non susceperit. &c. Every Vicar general, officiall, or Commissarie, which hath not taken upon him Ecclesiasticall orders, shall call and associate unto him, some learned Presbyter, who being armed with sufficient authority from the Bishop in his jurisdiction, or from the Archdea, being a presb. in his iurisdictiō shall denounce, and that by the prescript of the judge present, the sentence of excommunication for contumacie. The example and practise of this precept followeth. Dr. Hone the Archdeacon of Surrey his officiall, being to excommunicate certaine persons, had a silly Curat, Mr. Rowland Allen to attend his service, and to denounce the lesson which was written to him in paper to read, Iohannes Hone, legum Doctor, officialis vener…bilis viri Domini Archidiaconi Surr. omnibus & singulis Rectoribus, &c. salutem. Cum nos rite & legitime procedentes, omnes & singulos, quorum nomina &c. in non comparendo, …oram nobis, &c. ceu saltem in non satisf…ciendo mandatis nostris, &c. pronunciaverimus contuniaces, ipsosque ex communicandos fore decreverimus. Cumque …iscretus vir Magister Roul. Allen Presbyter, … omnes et singulos subscriptos ex officio nostro ex cō municaverit in scriptis iustitia id exigente, vobis igitur committimus &c. quatenus eos omnes sicut prefertur ex officio nostro excommunicatos futsse, e… esse palam denunci…tis Datum sub sigi…o officialitatis nostrae 19 die Decembris Anno Domini 1587. Iohn Hone Doctor of the lawes, official of the venerable man the … of Surrey, to all and singular persons &c. greeting: Whereas wee otherwise rightly and lawfully proceeding, all and singular, whose names are … in not appearing before us, or at least … in not satisfying of our mandates, hauehave pronounced contu…ci…us▪ and decreed them to be excommunicated. And whereas, also the discreet man Mr Rowland Allen Presbyter, out of our office, hath excommunicated … and singular underwritten …i…stice so requiring. Wherefore we charge, that openly you denounce, and declare them, and every of them, so as aforesaid, out of our office to be excommunicated. Given under the seale of our officiality, the 19 of December 1587. The poore curate, sayth this authour, jerked these, whose pointes soever the other untied. Now in this case it cannot be sayd, that it was onelyonly the poore Curate, who … excommunicate. For he is but the hangman, the other is the Iudge. Poore Rowland Allen rehearsed the sentence by the prescript of Doctor Hone. Doctor Hone …ted, pronounced them contumaciously absent, and upon the con…umacie decreed them to be excommunicated, prescrived the lesson to poore Rowland Allen, without which things the sentence should be a nullsentence. D. Hone the Archdeacons officiall, hath power to call and associate unto him, P. 392.and to prescribe Rowland Allen presbyter, and another mans hireling Curate in Southwarke to excommunicate, not onelyonly the parochians of anothers Pastors charge, but also any other Pastor whatsoever, subiect to the Acchdeacons jurisdiction. If it be lawfull at the voyce of a lay stranger, that an hireling and stipendiarie Curate should chase another mans sheepe out of his owne fold, how much more is it lawfull that a true shepherd should disciplinate his own sheepe, feeding and couchan… within his owne pasture, and within his own fold. Ye see then whereto this alteration of discipline will turne in the end. The censures of the Church as a matter of no worth or moment, shall be put in the hands of base Officialls, and blind Rowland Atlens. An Oxe and an Asse shall plow together in the Lords field. The Chauncellors, Commissaries, and Officialls, have power to convent a minister before them, and if hee compeir not, first suspend, and then excommunicate him, as is evident by their latest Canons.Can. 12…. Thus shall the worthiest of our ministrie bee brought under bondage. The Reader may see how unworthily the Archbishops, Bishops, and Archdeacons deale with the Church, which not content themselves to use tyranny over it, and to take upon them of their private authoritie, which belongeth unto other with them, have also brought it into bondage under their servants, and servants servants, 2 Reply, 2. part. pag. 96▪I meane Chauncellours, Commissaries, &c. sayth Mr. Cartwright. The Commissarie court is but a little stinking ditch, say the authors of the admonition to the Parliament.P. 17. In this Court one alone doth excommunicate, one alone sitteth in judgement, and when he will can draw back the iudgement which hee hath pronounced, having called upon the name of God, and that for money, which is called the changing of penance. In this Court for none payment of two pence, a man shall be excommunicate, if he appear not when he is sent for. This Court pouleth parishes, scourgeth the poore bedge-priests, ladeth Churchwardens with manifest perjuries, punisheth whooredome and adulterie with toyish censures, remitteth without satisfying the congregation, and that in secret … giveth out dispensations for unlawfull marriages, and committeth a thousand such …ike abomina…; where the Iudges, Advocates, and Proctors are for the most part papists. And as for Scribes and Notaries, as greedi… as Cormorants: If they all should perhaps see this writing they would bee as angry as Wasps, and sting like …. Three of them would be enough to sting a man to death, for why, they are high Commissioners. P. 50.Againe, who be their Chauncellours, but most suspected Papists. I heare not of one of them, but he is a br…er. Who be their Sumners, but the veriest varlets? What are the Canonists? what are they but suspected Papists, and where have they the most countenance, but of the Bishops? To be their chiefe doers, and high Commissioners, with them to wr…g their brethren, if they bee Gods children, and to …et papists passe free, or to bee punished lightly. How are matters dealt with in their Courts, but all for Mistres Money. What a charge are they to the Clergie? and what a summe have they yearly, that might be saved, and it is no small matter that maintaineth their Courts. P. 58.Again, It would grieve a chast eare to heare the bawdie pleading of many Proctors and Doctors in those Courts, and the Sumners, yea and Registers themselves. Mr. Archdeacon and Mr. Chauncellour are even faine to laugh it out many times, when they can keep their countenance no longer. Suppose our high commission were never so odious, yet the Bishops shall bee sure of such servile varlets Commissaries, Officialls, and Chauncellours to sit with them, for why they shall be their own creatures. It is no wonder they be bribers, for the Bishops and Archdeacons, set in farme their jurisdiction to them. Some Chauncellours and, P. 213▪officialls pay 20. some 30. some 50. pounds yearly for their place, Registers some an hundred, some two hundred pounds, some more. How then is it possible but they should extort in their office, and by unreasonable and untollerable exactions make up their hard rents? as it is sayd in the Defence of the last petition for reformation. Many greivous complaints have been made against Officialls, Commissaries, and Chauncellours from time to time, in Germanie, France, and other countries, which I might produce to make this bondage yet more sensible.