of Fifty years of King Edward the Third the great Charter was several times confirmed The liberties priviledges and franchises of the Clergie were new ratified in the fourteenth and five and twentieth years of His Reign And so in the first sixth and eighth and twelfth years of Richard the second In the first second and fourth years of Henry the fourth It was enacted That the Lords Spiritual as well as Temporal should have and enjoy all their Rights and Liberties I grant indeed that in the Reign of two of these preceding Kings viz Edward the third and Richard the second that the two statutes of Proviso's and Praemunire were made But he that shall duly observe the end wherefore and the matter wherein and the persons against whom these statutes were made will not be able to find that any abridgment but rather a firmer settlement of Episcopal jurisdiction in the right Constitution of it was intended and came thereby That which was mainly aimed at and provided against in these statutes was to repress the encroachments of the Pope of Rome even upon the Bishops legal jurisdiction it self The Pope by His Emissaries in England from time to time drained the Kingdom of its Wealth He invaded the Kings Soveraign Rights by Mandates De providendo and expectative Graces granted of Ecclesiastical livings before the Incumbents were dead And besides He boldly intrenched on the Kings Temporal Courts many such unreasonable greivances there were which both King and People felt the load of and which to make them the heavier were fetch as far as Rome to be put upon them But all this while here are no exemptions to any particular persons or civil Officers to free them from Ecclesiastical jurisdiction where it proceeded in due manner and was exercised in matters properly cognizable by it That which must have the note of remark put upon it is this Provision is here made under severe penalties against acting by a derived power from and in an Usurped jurisdiction under the See of Rome This no English Bishop might do then This no Bishop in England or Ireland might or does or may do now One Act of Parliament will best serve to give light to another Now the statute 25 Hen. 8. cap. 21 affirms expresly that the statute of provision and praemunire of the 16th Richard secundi was made against such as sue to the Court of Rome against the Kings Crown and Dignity so that Episcopal jurisdiction in each respective Diocess and in matters of Ecclesiastical cognizance is so far from being impaired by these statutes that in truth it is more firmly fixed and corroborated thereby All these things were before the Reformation in England towards the dawning of which we meet with a noted statute in the 23th year of King Henry 8. cap. 9. designed as is conceived to restrain the Exorbitances used in summoning people out of the Diocess wherein they inhabit without leave of their Ordinaries which thing as it tended to the great vexation of the persons so cited it also aimed at the very encroaching on the several Ordinaries Rights on pretence of some legantine power or Nuncio's Court or other extraordinary cause In the preamble of which Statute it is affirmed That all persons of any quality or condition may be cited before their Ordinaries so it be in proper cause and due Order The body of that statute provideth that no citation be made out of the Diocess where the party dwelleth but where some spiritual offence or cause is committed or done So that a contrario sensu sayes the learned and judicious Dr. Cosen Apol. p. 67. in any offence or cause spiritual any Subject may be cited within his or her Diocess And in some peculiar causes there mentioned and recited they may be cited out of their Diocess Now the power of citing presupposes a full jurisdiction that is a power to proceed further thereupon in all due requisits and forms that belong to any cause whether it be upon instance or of matter of correction Since the Reformation that all jurisdiction Ecclesiastical is de facto as it was alwayes de jure united to and so derived from the Imperial Crown of England there is by the statute of the first of Queen Elizabeth cap. 1. Full power and authority given to the Ecclesiastical Judges for the Executing of Ecclesiastical jurisdiction as before time See also a statute made in Ireland in the 28. year of King Henry the 8. called an Act against the Authority of the Bishop of Rome towards the latter end thereof Provided that notwithstanding this Act or any other Act made for the taking away of the said Bishop of Romes Vsurped power Authority Preheminence Jurisdiction or any other thing or things in the same comprised That all and every Archbishop Bishop Arch-Deacon Commissary and Official and every of them shall and may use and exercise in the name of the King only Vid. infra p. 53. all such Canons Constitutions Ordinances and Synodals provincial being already made for the direction and order of Spiritual and Ecclesiastical causes which be not contrariant nor repugnant to the Kings Lawes statutes and customs of this Land nor to the Damage and Hurt of the Kings Prerogative Royal in such manner and form as they were used and Executed before the making of this Act till such time as the Kings Highness shall order and determine according to his Lawes of England and such order and determination as shall be requisite for the same and the same to be certified hither under the Kings Great Seal or otherwise ordered by Parliament And while I am thus enumerating the several statutes which the former position is not contrariant to but rather strengthned by I must not omit the making mention of those statutes and Acts of Parliament that are set out and published meerly upon Ecclesiastical causes and matters which are reckoned by some as those that enter into and make up the body of the Kings Ecclesiastical Laws Zouch de jure Eccles p. 1. Sec. 1. c. whether these be matters of a civil or criminal Nature matters of civil cognizance are either such as concern Precontracts and other matrimonial causes In Ireland 33 Hen. 8 cap. 6. In England 32 Hen. 8. c. 38. 1 and 2 Edward 6. c. 23. 1 Elizab. 1. oâ— such as concern Testamentary matters 21 Hen. 8. cap. 5. In this Kingdom 28 Hen. 8. cap. 18. Also matters of Tythes and the pursuits and impleadings thereup on Heâ—â— 33 Hen. 8. c. 12. In England to the two Statutes mentioned before called circumspecte Agatis and Articuli Cleris These may be added viz. 1 Richard 2. c. 14.27 and 28 Hen. 8. c. 20. 32 Hen. 8. c. 7. 2 Edward 6. cap. 13. Concerning all which all persons without distinction of place or office who are concerned in any of these causes they are subject to Episcopal jurisdiction to which the same causes do appertain and by which they are managed And for matters
calling all parties under that jurisdiction to answer in judgement of using Coercive means to such as are refractory and contumacious and bringing matters to a final and full Execution Gothofred sayes well hereupon Quoties casus omissus virtute 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 expressi comprehendi potest toties ad illum fieri debet extensio But least this position may less pleasingly rellish with some pallates because of the Authority I have hither to made use of to establish it by The Imperial or Civil Law being not allowed in these Kingdoms save only in some particular Courts and causes which is to be said of the Canon Law likewise And in respect of the latter of these two some men are apt to look asquint upon any thing that is drawn out of it or grounded thereon They are ready to cry out upon such a thing as a Popish encroachment tending to Advance the Miter and Keyes above the Crown and Scepter * Yet these make up a part of the Kings Ecclesiastical Lawes being so qualified as by Statute is required in 25 Hen. 8. cap. 19. To prevent this or any the like imputation my next and that my principal endeavour is to shew its accordance with the State Constitution and Lawes of these Kingdoms of England and Ireland under His Majesties Government that is with the Ecclesiastical and with the Municipal Lawes thereof and with the Kings Prerogative Royal. In respect of all which I do not doubt to affirm That this position viz. That all persons whatsoever within any Diocess regularly and de jure communi are subject to the jurisdiction of the Bishop of that Diocess in matters and causes of Ecclesiastical cognizance That this position I say is agreeable to the Ecclesiastical Lawes of these Kingdoms Not repugnant to the Municipal Lawes thereof Neither is it thirdly any thing intrenching upon or infringing His Majesties Prerogative Royal These all require distinct and particular considerations 1. It is agreeable to the Ecclesiastical Lawes of these Kingdoms in His late Majesties Proclamation of Royal Assent given to the Book of Canons and Constitutions Ecclesiastical of this Church of Ireland Anno 1634. I observe two things relating to our present purpose the former is a strict injunction upon all persons whatsoever to observe and obey them We do not only by our said Prerogative Royal and Supream Authority in causes Ecclesiastical ratifie confirm and establish by these our Letters Patents the said Canons Orders Ordinances and Constitutions and all and every thing therein contained as is aforesaid but do likewise propound publish and streightly enjoyn and command by our said Authority and by these our Letters Patents the same to be diligently observed executed and equally kept by all our loving Subjects of this our Kingdom in all points wherein they do or may concern every or any of them according to this our Will and pleasure hereby signifyed and expressed The other thing I observe therein is that impartial Execution of them which is required to be made and by whom to be made upon all persons whatsoever that refuse to obey them so it afterwards follows Streightly charging and commanding all Arch-Bishops and all others that exercise any Ecclesiastical jurisdiction within this Realm to see and procure that the same Canons Constitutions Orders and Ordinances be in all points duly observed Not sparing to execute the penalties in them severally mentioned upon Any that shall wittingly or willingly break or neglect to observe the same as they tender the Honour of God the peace of the Church tranquility of the Kingdom and their duties and service unto Vs their King and Sovereign All are commanded to obey these none have an Immunity from being punished if they do not obey them In the last Canon of that Book It is decreed That if Any within this Nation shall despise and contemn the Constitutions thereof Ratified and confirmed by Regal power or affirm that none shall be subject to them but such as were present and gave their voyces to them He shall be Excommunicated and not restored until he shall publickly revoke his Error In the 140 Canon of the Church of England published Anno 1603. It is more particularly and expresly set down and declared that all manner of Persons both of Clergie and Laity are to be subject to the Decrees mentioned in them in causes Ecclesiastical Although they were not themselves particularly assembled in the same Sacred Synod Let us now put both these things observed together and the result is this Here is a jurisdiction declared in respect of certain matters and causes and in respect of Persons indefinitly set down over all And in whom is this jurisdiction declared to be namely in Arch-bishops Bishops c. over whom is it declared to be over all surely The injunction of inflicting penalties in case of disobedience is as universal and extensive subjectively as is the command of obedience Here is no distinction nor exemption made of any Persons under any qualification or Vested with any office or subordinate civil power so as they should be thereby priviledged from Ecclesiastical jurisdiction in matters appertaining thereunto And Vbi lex non distinguit ibi nec nos distinguere debemus where the Law makes none neither may we make any distinction I have made my first instance in these Canons as part of the Kings Ecclesiastical Lawes But I am not to learn that when the Authority of our Canons is urged and that obedience which is required to them is called for There are a generation of such as are wise in their own conceits men of mighty deep understandings who think they pierce further into things and understand more than their poor shallow Brethren are able to do And these will question the Validity of these Canons and their legal obligingness on the Kings Majesties Subjects To all such therefore I shall fairly offer a few considerations and then leave in to their own sober thoughts to determine wha◠Coherence there can be betwixt a disowning 〈…〉 the Authority of our Ecclesiastical 〈◊〉 and the profession of being dutiful and obediene Subjects 1 Many learned men both of the Municipal and Civil Law joyn in this opinion and affirm That the Kings Majesty may by virtue of His Supream Authority in matters Ecclesiastical confirm and ratifie into the force of Law Canons made in Convocations and that they be a part of the Kings Ecclesiastical Lawes Princeps tanquam supremus post Deum gubernator potest in causis Ecclesiasticis statuere quicquid verbo divino statutis consuetudinibus Regni sui non repugnaverit Cosen de Politeia Ecclesiastic Anglicana Tab. 1. A. And then he specifies the matter of his former Assertion thus viz. That this supream power of our King is in Condendis novis legibus sive canonibus in ijsdem administrandis relaxandis cirea statum Ecclesiasticum and this done cum Regius assensus fuerit adhibitus iis quae Synodus
in foro externo contentioso in such causes as belong thereto so in the exercise and proceedings made in the same he depends upon the King from whom he derives his a thority and right to exercise In all Appeals made to the King in His Chancery He defers to him as habenti Supremam authoritatem Ecclesiasticam being the chief and Supreme Ordinary and acquiesces in his final and ultimate decisions A little before I mentioned a Grant of King William the Conqueror wherein great scope was given to Episcopal Jurisdiction it is now proper to set down what that was and this Historical account we may take thereof By this King an entire Jurisdiction was assigned to the Bishops by themselves wherein they should have cognizance of all matters and causes relating to Religion It seems by the Ancient Saxon Law the Bishops and Sheriffs jointly kept their Courts together at certain set times of the year in the Conquerors time these two Jurisdictions thus concurring were parted asunder Fullers Church History of Britain Book 3. p. 5. from Eadmer who lived in the time of King Henry the first gives some account hereof * Spelman in Glossar v. Hundredum But I shall set down the same in the words of a late and a learned Writer proper to the occasion he was upon Conquestor porro Forum Ecclesiasticum à Laico distinxit Nam cum antea sub Anglo-Saxonibus singulis mensibus Aldermannus seu Praeses unà cum Episcopo jus dixissent in Curia Centenaria quam Hundredum dicimus mandavit Episcopis Archidiaconis ne deinceps jus dicant in Curia Centenaria sed in loco per Episcopum designando ibique judicent secundum Canones Leges Episcopales contumaces contra corum mandata Excommunicationis sententiâ Brachio Regio parere cogantur cum Praecepto Vicecomitibus Praepositis Regiis dato ne aliquem in jus vocent coram se de iis quae ad Forum Episcopalem spectant Dr. Duck de Authoritate Juris Civilis in Regno Angliae lib. 2. cap. 8. p. 2. sect 26. And in the margent of his Book alledges * Apud quemâ—â— See this Charter more amply and fully declared the same being granted and directed to Rhemigius the first Bâ—shop of Lincoln ib. Coke's Instit p. 4. cap. 54. lib. 2. cap. 6. sect 135. Char. 2. Rich. 2. m. 1. By this it appears how early the exercise of Ecclesiastical Jurisdiction by Bishops was on foot in the Kingdom of England and that as it derived it self from the Crown for besides this distinct constituting of an Ecclesiastical Court from the Court of the Tourn even before the separation before spoken of was made yet the Bishops had then the judicial cognizance of Ecclesiastical causes and matters peculiarly reserved to them so it is plainly colligible from the Laws of King Edgar among which this was one Celeberimus autem ex omni Satrapia conventus his quotannis Agitor cui quidem illius Dioceseos Episcopus Aldermannus intersunto quorum alter jura divina alter jura humana populum edoceto Lord Coke on the Statute of Circumspecte Agatis v. Curia Christianitatis I might yet trace Antiquity higher in this point but my reading is too slender and my opportunities too mean that I should think my self able to give a punctual and exact Account thereof Take notice only in brief what the Pen of a learned Writer has set down The British Saxon and Danish Kings did usually with their Clergy or great Council make Ecclesiastical Laws and regulate the external Discipline of the Church within their Dominions Among the Laws of King Edward the Confessor these were two of them one that makes it the office of a King to govern the Church as the Vicar of God another supposes a paramount power in the King over the Ecclesiastical Courts because they were to take cognizance of wrong done in Ecclesiastical Courts Archbishop Bramhall's Vindication of the Church of England c. p. 67. King Edward the Confessor was indeed after the time of King Edgar before mentioned but taking both together and what was done by both thence is shewed that the practice of former Kings was followed by them and that there was an Ecclesiastical Jurisdiction then and before exercised by Bishops which exercise thereof derived from and was regulated by these and other preceding Kings of England That which has been said makes very fair for our purpose and points out to us to take notice of these several observable things 1. That the Exercise of Jurisdiction Ecclesiastical by Bishops in the right constitution thereof in the Kingdom of England had no deperdance on Rome 2. That much of the intermediate practice in this kind degenerated from its first and right institution and until the time of Henry the eighth was a meer usurpation and encreachment on the English Crown 3. That whereas 't is said The Bishops were to judge secundum Canones Leges Episcopales by Canons I understand the Canons of General and Provincial Councils abroad especially the first four General Councils according as was Enacted by the Emperor Justinian Authent collat 9. Novell 131. cap. de Regulis cap. Sancimus igitur And by Leges Episcopales I understand their Home-laws I mean the Ecclesiastical Laws made by the British Saxon and Danish Kings with the Council of their Bishops variety of which may be found by him that will consult Sir Henry Spelman's Councils The body of the Canon Law was not then in being my meaning is it was not so as such The several particulars that the Decrees consist and were made up of were indeed then and long before in being but they were not compiled together till near fourscore years after thisâ—s and that was done by Gratian the Monk in the year as some say for there is much difference in the computation of this time 11 49. Ridley's view c. p. 74. And by Eugenius the third allowed to be read in the Schools * Of Greg. 9. set forth Anno 1230. The Decret in sexto Anno 1297. The Clementines of Clent 5 set forth Anno 1317. And not long after were extant the Extravagan's of John the 22d and other Popes and to be alledged for Law And for the Decretals c. Clementines and Extravagants they came in successively along while after Here by the way is seen the vanity and wildness of some mens fancies that by all means will have Bishops Courts to be of Popâ—sh extraction and that both in their Erection and Constitution they receive influence and authority from the Romish Consittory Than which nothing is more untrue in its self and unhist or ical as to the right deducing the primitive Institution hereof not to speak of the Eastern Churches even in the Kingdom of England it self 4. This is also hence observable That the present course commanded and observed by the Bishops in the Exercise of this Ecclesiastical Jurisdiction suits nearly with
others within His own Kingdoms and it keeps Him from a subordination either to the Presbytery or the Papacy and it is such a Supremacy as is only Political and Architectonical as it is phrased that is a power paramount over all His Subjects to see that each sort of such as are under His Government as well Ecclesiasticks as others do their duties in their several and respective stations and that all things be acted by proper and fit Agents for preserving both Church and State in tranquility and safety Thus it appears that nothing either belonging to Ecclesiastical Order or Jurisdiction is exercised by our Kings in their own persons according as is fully declared in the following parts of the said Article Neither does this give any countenance to Erastianism as some have improperly enough inferred from thence herein as has been described is seen the Kings Supremacy By it He is the Keeper of both Tables He governs and regulates Affairs so both in Church and State as may best conduce to the preservation of true Piety to God and right Justice to Men. From this power paramount and Supremacy does descend the Bishops power of exercising Jurisdiction that is exercising the same actually I say actually for as our Divines do distinguish Archbishop Bramhall's answer to R.C. p. 160 161. Bishop Sanderson de conscient obligat praelect 7. sect 29 30. Bishop Bilson of Subjection par 3. p. 293. in octavo Mr. Hooker Eccles Pol. B. 8. p. 213 c. There is an habitual and there is an actual Jurisdiction habitual Jurisdiction flows from Episcopal Order actual Jurisdiction is a Right and liberty granted opportunity and means afforded of exercising and reducing that habit into act and that in foro externo contentioso after a certain and peculiar manner appointed therein Thus the King has His Ecclesiastical Laws and His Ecclesiastical Courts and His Ecclesiastical Judges * See Sir Joh. Davies Reports Pramunire versus finem there are causes of such and such a Nature appointed by the King to be judged of by them in those Courts according to those Laws * Many things the Popes formerly have taken upon them to give directions of and Enact Canons concerning Episcopal Jurisdiction under this salvo in ordine ad spiritualia which things are matters meerly of civil intercourse and commerce betwixt man and man such are those titles in the Canon Law de emptione venditione de rerum permutatione de transactionibus de depesito c. Testamentary and Matrimonial and Decimal matters are amongst these likewise but although these may better seem to have the aspect of matters spiritual yet that spiritual men have any Jurisdiction therein must not be imputed to the nature of the things themselves nor to any superiority that they have over other men by reason of them but this must be imputed to the Roval bounty and munificence of pious Kings who for the Honor of the Church have so ordered those Causes to be of Ecclesiastical cognizance and that their Subjects concerned therein should be obedient to Ecclesiastical Judges therein Hereupon a Learned Bishop declares That the Popes Decrees Judgments and Executions in these Cases if claimed from Christ as things spiritual and not granted by Caesar are but open invasions of Princes Rights calling those things Spiritual which indeed be Civil and Temporal Bishop Bilson's Christian Subjection page 2. Sir Robert Wiseman The Law of Laws All persons within their respective Diocesses that is certain circuits and precincts of Jurisdiction by the King set out to each Bishop and those in their bounds and limits either to be contracted or extended as He pleases are commanded to be subject to them if they refuse may buâ— constrained to it In matters of Appeal the last complaint is ever to be made to Him He is the final and ultimate Judge who by fit Delegates appointed thereunto does redress grievances answer complaints and finally and absolutely determine what is brought before Him The Learned Archbishop and Primate of all Ireland a little before mentioned has given a full and satisfactory Account of this matter his words are these worthy our best observation Neither do we draw or derive any spiritual Jurisdiction from the Crown but either liberty and power to exercise actually and lawfully upon the Subjects of the Crown that habitual Jurisdiction which we received at our Ordination or the enlargement of our Jurisdiction objectively by the Princes referring more causes to the cognizance of the Church than formerly it had or lastly the increase of it subjectively by their giving to Ecclesiastical Judges an external coercive power which before they had not To go yet one step higher in cases that are indeed spiritual or meerly Ecclesiastical such as concorn the Doctrine of Faith or Administration of the Sacraments or the ordering or degrading of Ecclesiastical persons Sovereign Princes have and have only an Architectonical power to see that Clergy men do their Duties in their proper places but this power is alwayes most properly exercised by the advice and ministry of Ecclesiastical persons and sometimes necessary as in the degradation of one in Holy Orders by Ecclesiastical Delegates Vindication of the Church of England from Schism c. The Exercise of Ecclesiastical Jurisdiction by Bishops thus being stated and setled in the likeness that it carries with the other instances before set down neither invades not impairs but much advances and amplifies the Kings Prerogative It comes to pass indeed by this means that the Kings Supremacy is preserved firm and safe in the Ecclesiastical Polity I know a great Objection is made against all this from hence because that in Ecclesiastical proceedings Citations Decrees and other instruments issue forth in the Bishops but not in the Kings Name whence would be infer'd That such attempts and judiciary proceedings made not in the Kings Name are invasive on the Royal Prerogative In order to the Answering of this Objection let it be observed That there are two great Offices in the Kingdom of England the one that of the Lord High Admiral the other that of the Lord Warden of the Onque Ports These have great inflience in foreign parts upon the Sea and within the Lands I before gave you some intimation of their distinct Jurisdiction and manner of jurisdical proceedings different from the Courts of the Common Law Both the jurisdictions of these two great Officers are ample and authoritative yet both the Lord Admiral and the Lord Warden of the Cinque Ports do send forth Writs in their own Names and they do it sayes Dr. Cowell in verbo Court as the Bishops hold their Courts by the Kings Authority virtute Magistratus sui In the High Court of the Earl Maishal the same practice is observed In the Universities Processes and Writs issue forth in the Chancellor Vice-chancellor or their Commissaries Name Will any now presume to challenge any of these jurisdictions for invading the Kings Prerogative Will
any dare to say That they pare off some rights or pluck some flowers from the Kings Imperial Crown I suppose not How comes it to pass then that the Bishops jurisdiction does Whatsoever may be alledged in defence of the other may be said and it may be something more too in justification of this And know moreover That proceedings in these Temporal distinct jurisdictions go much further upon the persons of men than those of any Ecclesiastical Court does even to the imprisoning of them and in all of them except that of the University to the inflicting of capital punishments And it deserves our further observing what the great Lawyer Sir Edward Coke sayes touching this very thing Albeit the proceedings and process in the Ecclesiastical Courts be in the Name of the Bishops c. It followeth not therefore that either the Court is not the Kings or that the Law whereby they proceed is not the Kings Law for taking one example for many every Leet and View of franck pledge holden by a subject is kept in the Lords Name and yet it is the Kings Court and all the proceedings therein are directed by the Kings Laws and many subjects in England have and hold Courts of Record and other Courts and yet all their proceedings be according to the Kings Laws and customs of the Realm De jure Regis Eccles p. 39. The Learned Bishop Sanderson has convincingly demonstrated That Citations and Decrees in the Bishops Name no way encroacheth on the Kings Authority and that they who urge the contrary have this meaning rather to do the Bishops hurt than the King service and that their affections so far as by what is visible we are able to judge are much what alike towards both His Book called Episcopacy not prejudicial to Regal power p. 3 4. Bishops proceedings in Ecclesiastical Courts under the Name Stile and Seal of the Bishop See this largely discussed and declared to be warrantable by Law by my Lord Coke's comment on the Statute of Marriage 32 Hen. 8. p. 685 686 687. But this Objection is taken up again and urged with new force from hence That in the First year of King Edward the Sixth it was by Statute Enacted That the Bishops should make their processes in the Kings Name and that their Seals should be the Kings Arms. This Statute sayes Mr. Rastall was repealed 1 Mariae 1. And that Statute not being revived by Queen Elizabeth in her Reign all proceeded well enough without danger But in the first Parliament of King James there passed an Act for continuing and reviving divers Statutes and for repealing of some others 1 Jaccb c. 29. Into the body whereof a clause was cunningly conveyed for the repealing of that Statute of the Reign of Queen Mary by which King Edward 's stood repealed Upon this account it was that a little before our late turbulent confusions in England this very thing was urged against the Bishops and their proceedings were declared to be bold usurpations and encroachments on the Prerogative Royal and violations of the Law But as it is usual where men are prepossessed against any thing they are apt to run into many mistakes about the sâ—me It happened so in this very matter Much â—â—lse was raised much stir made hereupon by the Antiâ—prelatical party as if the Bishops who had given themselves out to be the most zealous assertors were indeed become the onely dangerous impugners of the Kings Prerogative That now they were deprehended in the very design and therefore must needs fall having no plea to make for themselves and having the mischief of their own visible and illegal actings witnessing against them At this rate their Adversaries vaunted and fore-judged them and no doubt as matters went in those times the severest animadversion that could have followed hereupon would have been made if further proceedings therein had not been seasonably prevented by the wisdom of a pious and prudent Prince For the Blessed King Charles the First having beee made acquainted what advantage these forward and busie people were designing to make hereof to the overthrow of His Ecclesiastical Courts and the Bishops His Judges in them He did as Dr. Heylin reports in the life of Archbishop Laud p. 342. call together in the year 1637 the two Lords Chief Justices the Lord Chief Baron and the rest of the Judges and Barons and propounds to them these three following particulars to be certified of 1. Whether processes may not issue out of the Ecclesiastical Courts in the Name of the Bishops 2. Whether a Patent under the Great Seal be necessary for the keeping of Ecclesiastical Courts and enabling Citations Suspensions Excommunications and other censures of the Church 3. Whether Citations ought to be in the Kings Name and under His Seal of Arms And the like for Institutions and Inductions to Benefices and corrections of Ecclesiastical Offences And the like for Visitations whether an express Commission or Patent under the Great Seal of England were requisite To which three Proposals the said Judges unanimously on the First of July in the fore mentioned year concurred and certified under their Hands By Answering to the First thing propounded affirmatively and to the other two negatively And that the fore-mentioned Statute of Edward the Sixth is not now in force Whereupon the King issues out His Proclamation wherein having first taxed the libellous Books and Pamphlets published against the Bishops and after a recital made of these proceedings He concludes the Proclamation thus That His Majestie thought good with the advice of His Council that a publick Declaration of these the opinions of His Reverend and Learned Judges being agreeable to the judgement and resolution of former times should be made known to all His Subjects as well to vindicate the legal proceedings of His Ecclesiastical Courts and Ministers from the unjust and scandalous imputation of invading or intrenching on His Royal Prerogative as to settle the minds and stop the mouths of all unquiet spirits That for the future they presume not to censure His Ecclesiastical Courts or Ministers in these their just and warranted proceedings And hereof His Majesty admonisheth all His subjects to take warning as they will Answer the contrary at their peril c. * Resolutions unanimously given by all the Judges and the Earons of the Exchequer saith my Lord Coke are for matters of Law of Highest Anthority next unto the Court of Parliament Sir Edward Coke 2 Instit p. 618. But some mens minds will not be satisfied with any thing of this nature yet are willing to embrace what is fortified with Parliamentary Authority Both therefore to gratifie them and more throughly to confirm the matter in hand we have also this Parliamentary Authority to offer unto them For although by an Act of Parliament in the Seventeenth year of King Charles the First all jurisdiction Ecclesiastical was quite abrogated and annulled I speak in respect of England for here in Ireland no such Act
Sect. 37. And note sayes he That the Ecclesiastical Court hath cognizance of the reparation of the Body of the Church He instances in the Body of the Church because not-excluding the other parts mention is there made of the Parishioners to whom the repair belongs and who are to contribute to the same Dr Cosen in the First part of his Apology cap. 7 informs us thus touching this matter When a Prohibition was sued out sayes he for proceeding Ecclesiastically in a matter concerning the Reparation of the Body of a Church A judgement was given thereupon in a consultation to this effect which he sayes is recorded in the Register cited by him thus pag. 43. a. Vobis igitur significamus quod super emendatione reparatione defectuum corporis Ecclesiae juxta consuetudinem approbatam facienda procedere poteritis ea facere quae ad forum Ecclesiasticum nover it is pertinere 〈◊〉 a prohibitione non obstante And by reason of defects in the reparation of a Church sayes the same Author ibid. Money it self may lawfully be sued for in a Court Ecclesiastical as appears by another consultation Reg. pag. 48. a. And so it is provided in the very Stature of circumspecte agatis The words are these mentioned in it In which case none other penance can be enjoyned but pecuniary See Lindwood ad verbum Sub poena cap. Sint Ecclesiarum Rectores De Officio Archidiaconi Lord Coke de jure Regis Ecclesiastico p 9. 3. The penalty of praemunire will not be incurred by any Ecclesiastical Judge on account of any proceedings of this Nature The proof of this Assertion depends upon two things viz. The truth of the two former Assertions that the cause proceeded upon was properly belonging to the Ecclesiastical Tribunal and that the Bishop the Ecclesiastical Judge proceeding therein acted not by or from any foreign jurisdiction or power Both these are so manifestly true that I might supersede my self the labour of saying any more therein But because some mens mouths were opened wide and loud in that point as if when by Law they could not they would yet by their clamorous votes and confident affirmings involve the Bishop in the penalty of this Statute It will therefore I think be both a seasonable undertaking and proper to our purpose to write something more particularly concerning the same and the rather because the imputation of incurring the penalty contained in that Statute is oftentimes at least threatned against those that are careful and active in the discharge of their Office of Trust in matters of Ecclesiastical Jurisdiction It has been the observation of a late Historian Fuller Church History Book 4. p. 149. that this Statute of pramunire has had the hard hap not to be honoured with so many readings thereon as other Statutes And therefore I suppose the course now taken by me in speaking something hereof will appear the more excusable If not having opportunity of viewing the few readings that have been made thereon by the Learned in the Common Law I have recourse to such other Writers as upon some occasional emergency or other incidental matter have treated thereof The Writ of praemunire facias grounded principally on the Statute made in the 16 year of King Richard the Second cap. 5. is awarded against those that have procured any Process or Bull of the Pope from Rome or elsewhere for any Ecclesiastical place or preferment within this Realm or doth sue in any foreign Ecclesiastical Court to defeat or impeach the Kings Courts and the party offending herein is liable to grievous penalties mentioned in the said Statute This account of a praemunire as abstracted by him from the Statute I take from Sir Thomas Ridley in his View of the Civil and Ecclesiastical Laws p. 3. c. 1. Sect. 1. Some later Statutes sayes Dr. Cowell in the word praemunire do cast this punishment on other offenders As denying the Kings Supremacy the second time by the Statute 1 Elizab. 1. falls under the punishment of praemunire And by the Statute 13 Eliz. cap. 2. He that affirmeth the Authority of the Pope and refuses to take the Oath of Supremacy falls under the like penalty so they do likewise by the Statute of the 13 of the Q. cap. 1. that are seditious talkers or affirm the Q. Majesty to be an Heretick Now let us put all these together and whatsoever else is collected from the Statutes made before and after the Reign of King Richard the Second touching these matters Put all these I say together and what either in gross or tale will they make to disadvantage the matter we have in hand or what can be found either in the Bishop or his proceedings impeachable from thence Is it his being appointed to and setled in the Epâ—scopal See of Waterford and Lismore None can affirm that For he receives not this by any Bull from Rome but by Donation and Investiture from the King of England Is it the actual exercising of Ecclesiastical Jurisdiction within his Diocess That cannot be neither because he is not empowred to this by any Foreign Authority but by his Majesties Letters Patents for his Consecration and by His Majesties Letters Patents for restauration of the Temporalities Are any of his proceedings against the Kings Crown and Dignity No They tend not to promote any foreign power but to maintain the Kings Prerogative and Supremacy over all persons in causes Ecclesiastical Does he refuse to take the Oath of Supremacy or fall under any of those crimes mentioned in the Statutes of Q. Elizabeth and which are liable to the penalties of praemunire This cannot be said He took the Oath of Supremacy on other occasions required by Law And he took it as is appointed at the time of his Consecration Lastly are any things done by him whereby the Kings Courts are impeached and defeated Not this because He the Kings Ecclesiastical Judge in the Diocess of Waterford and Lismore hears and determines matters of Ecclesiastical cognizance in the Kings Ecclesiastical Court there according to and by the Kings Ecclesiastical Laws Whence then may we conceive arises this imputation of a praemunire There is indeed no ground for it but in the fancies and would I had not reason to say in the wishes of such as are so ill affected that they do not patiently endure the Episcopal office much less allow the exercise of any Jurisdiction by a Bishop Observation of former times and reading besides present experience of things now brings to our knowledge the restless practises of some that endeavour by all contrivances of wit and policy to load with odious charges the exercise of Episcopal Jurisdiction and if it may be done to draw it within the penalties appointed by this Statute of Praemunire yet there are many sober and wise men who have declared openly enough their opinion That as all Jurisdiction whatsoever in these Kingdoms is radically in the King and so an Union of Ecclesiastical and Temporal
them I cannot pass by although I do but touch at them the many Errors concurring in this latter Essay As that first the time of Appealing from that which they pretended themselves aggrieved with was lapsed when this Appeal was interposed Moreover that one and the same cause by the same persons at the same time was thus brought to tryal before two distinct Judicatories which is vexatious at least in those that procure the same to be done so That the intermediate Jurisdiction was passed by contrary to the ancient liberties and customs in such cases observed and which was among other matters digested into Articles and Chapters confirmed in the Parliament held at Clarendon in the Reign of King Henry 2d Anno Domini 1164. namely That all Appeals in England must proceed regularly from the Archdeacon to the Bishop from the Bishop to the Archbishop and if the Archbishop failed to do justice the last complaint must be to the King to give order for redress that is sayes my Lord Primate Bramhall Vindication of the Church of England p. 75. by fit Delegates See to this purpose The Statute of Appeals 24 Hen. 8. cap. 12. And this contrary to the 56 Canon of this Church Whereby the pain of Nullity is inflicted on all Acts which are sped in Appeals where the Jurisdiction intermediate is passed by for although it is true That the Kings Authority ought not to be disputed or disobeyed by any Subject where it does appear to be yet that must ever be esteemed a true and regular obedience which the King himself by Law has prescribed it should be And lastly supposing the Appeal entred by them to have been antecedently good that is good in respect of time and manner observed in interposing the same yet it is not good nor valid in its consequents because the time appointed for these pretended Appellants to receive their Apostles that is dimissory Letters from the Bishop or Judge Aquo intimating his deferring and yielding to the said Appeal and assigning of time for prosecution of the same is long since passed away without doing either And besides this slipping the Terminus Hominis that is the Term limited and appointed by the Judge from whom the Appeal is Moreover the primum fatale juris for prosecuting and ending of Appeals is likewise lapsed and no impediment can be warrantably alledged in favour and on behalf of the Appellants so as to enjoy benefit of restitution into and being allowed their secundum fatale or second year for prosecuting their former Appeal No impediment I say can warrantably be alledged by these Appellants to capacitate them for this restitution for although the matter and pretended Grievance complained of against the Bishop at the hearing thereof before the most Honourable Council was referâ—d to two Honourable Members of the same and in the issue thereof from those Hononrable Referrees something like the nature of a compromise was made between both parties which might seem sufficient to stop the running on of these Fatalia Juris namely in respect of the Complainants their engaging to perform what belonged to them to do and had been required from them by the Bishop as to give account of the Money received for the Churches use and making good the Reparation of the Body of the Cathedral and other particular matters before mentioned and in respect of the Bishop his promising to withdraw his proceedings against them thereupon Although I say this seeming compromise might appear as a sufficient ground of granting admission to the secundum fatale supposing the first to be irrecoverably past Nevertheless it is not at all sufficient thereto the reason is because conditions were not performed on which this respite and seeming compromise was grounded and this non-performance of conditions was on the Appellants own part The Bishop performed more than his part in desisting hitherto from any further proceeding against them And they not performing the conditions required on their parts not then nor since nor to this very day which yet they ought to have done forthwith the benefit therefore of the other fatale is not allowable to them but being uncapable of any restitution thereunto they are really in the lapse and the said Appeal may be pronounced pro desertâ and no advantage on the Appellants part to be expected therefrom And if the Bishop should thus pronounce and resume into his cognizance the whole proceeding again as there would be both Law and Right enough to justifie his so doing so there would be a want of both these and of every thing else that might be needful to make up a safe and warrantable defence for the Complainants It is a noted and approved Maxim in poenal proceedings That Contempts of all crimes are least capable of favour or lenity Upon the whole view it sufficiently appears how little of truth or reason this exception against the manner of proceedings has to bear its self up withall Look we upon the crimes censured they were deeply scandalous and provoking Look we upon the censure inflicted 't was comparatively to the crime and a greater censure that might have been inflicted moderate and easie Look we to the manner of proceeding it was proper and without the omission of any one requisite or formality that of right ought to be used therein Look we to the Order observed It was not loose and confused but grave and regular Look we upon the whole cognizance it self This was not hasty and precipitous but prudentially guided and proceeding with good maturity and deliberation convenient intervals of time dividing seasonably every Court throughout the whole Transaction and preventing any thing of surprize that might be suspected therein I pretend not much skill to these Affairs yet being upon the design of searching as well as I was able into the whole state of this matter I have viewed and reviewed the whole series of these proceedings with the several Acts of Court Decrees and other matters incident thereunto And according to the best of what I am able to judge I cannot find in the same where to fasten any Error no not in the very niceties and punctualities of practice much less in any material point and essential matter thereof And now after all If Offenders complaints against the forms and prescriptions of Courts may pass for just Exceptions and fair Vindications of themselves we shall have many crimes but few criminals many that will be bold to offend but few that will ever acknowledge their being legally convicted for their Offences 'T is high time for persons invested with judiciary power to look about them and provide some new wayes of securing the Authority of their judicial proceedings if every bold attempt to question the legality of them may pass for a justifiable Plea of not obeying them or imprint a nullity upon them When such Offenders so justly and mildly censured shall dare openly to tell my Lord the Kings Deputy and my Lords of His Majesties Council as
of King Edward the third Now if it be here said that these Constitutions were made before the Statute of Praemunire came forth and so proceeded more peremptorily and not with that submissive regard and dutiful obedience to the Crown as they ought to have done I answer by acknowledging those Constitutions to aim indeed at the restraining of the Kings Prerogative and of his Temporal Courts and therefore not of any force now or that proceedings should be guided thereby * Sir Tho. Ridley in his View c. leaves it without decision whether these constitutions be annulled by the Act of Parliament viz. 25. Hen. 8. c. 19. He determines not absolutely I say but refers it to better judgements But this mention is made of them to shew Historically what was then practised and held usually and moreover to evince that where the Rights of the Crown are not thereby impaired nor any of the Kings Temporal Courts invaded Ecclesiastical proceedings may be made against any Person and his being in any subordinate civil office does not exempt him therefrom I must yield to and acknowledge what the Statute 25 Hen. 8. cap. 19. has determined viz. All Canons Constitutions Ordinances and Synodals Provincial that had been then made are received into the body of the Ecclesiastical Laws and are Established to be the Ecclesiastical Lawes of England and become of good force and validity but with this necessary proviso herein quatenus consuetudinibus statutis Regninon repugnant nec prerogativae Regiae adversaâ—tur Dr. Zouch de jure Ecclesiast p. 1. Sect. 1. So the Statute it self reports of them that they are of force and still binding so far forth as they be not contrariant nor repugnant to the Laws customs and statutes of this Realm nor to the Danger or Hurt of the Kings prerogative Roya In the Formula of Juridical practice for causes Ecclesiastical set forth by Francis Clerk and which is approved in all the Consistories and other Ecclesiastical Courts of England and Ireland In this Formula I say There is a title namely the two hundred and fifteenth title of that Book after what manner to begin and proceed in any Ecclesiastical cause perhaps at the instance of a party against any Community as Dean and Chapter Master Fellows and Scholars of any Colledge c. In the body of which title the manner of proceeding against any Mayor and Community of a City particularly that of London is described whence I make this Collection That what is declared as a matter to be observed in Ecclesiastical practice when occasion requires a proceeding against any Mayor or Community of a City that does certainly imply that such a Mayor and Community are subject to Ecclesiastical jurisdiction and consequently to such penal coercions and censures the matter so requiring it as are properly inflicted thereby Hitherto concerning the first particular that this position is agreeable to the Ecclesiastical Law 2. As this position is agreeable to the Ecclesiastical Law so it is not repugnant to the Kings Temporal Laws or the Municipal Laws of these Kingdoms It is not repugnant to the Statute Law The Statute called Magna Charta confirmed by King Henry the Third in the Ninth year of His Reign and by so many Kings since this Statute said to be the Ancientest written Law that is now extant and the Breviate and Summary of all the written Laws of England and most beneficial to the Subject declares in the first Chapter thereof That the Church of England shall be free and have all her Holy rights and liberties inviolable * Et habeant omnia jur a sua integra that is all Ecclesiastical persons shall enjoy all their lawful jurisdictions and other rights without any diminution or substraction whatsoever D. Coke on Magna Charta cap. 1. Jura sua sayes the same Author ibidem prove plainly that no new rights were given to them but such as they had before hereby are confirmed so that it followes that what amplytude and fulness of jurisdiction they had before is hereby confirmed In the Thirty seven Chapter of the said Statute There is a Reserve to all Archbishops Bishops c. Of all their Liberties and Priviledges one branch of which Liberties and Priviledges and Rights is this power of jurisdiction over all persons in their respective Diocesses Edward the first the Son and Successor of this King ordained the Statute called circumspecte Agatis in the thirteenth year of His Reign It has been affirmed concerning this Law that it was a prelatical Constitution because inserted in the Provincial Constitutions in the title de foro competenti or at the most one onely of the Kings Writs issuing out on some occasion leading thereunto But to confirm the Authority hereof My Lord chief Justice Coke determines of it after this manner though some have said this was no Statute but made by the Prelates themselves Yet that it is an Act of Parliament is not only proved by our Books but also by an Act of Parliament Instit p. 2. p. 487. In this Statute then set down as a boundary betwixt the Spiritual and Temporal jurisdiction full power and authority is given or confirmed rather to the exercise of jurisdiction Ecclesiastical over all persons indistinctly in such cases as belong to and are mentioned in it In the Ninth year of His Son and Successor King Edward the second came forth the statute called Articuli cleri by the form and purport of which it appeareth that for any matter Ecclesiastical indefinitely Men may be cited and if cited then subject to all judicial consequences therein In the Twelfth Chapter of this statute The question is put Whether the Kings Tenants be subject to the Ecclesiastical jurisdiction as others are and if they may be Excommunicated for their manifest contumacie and after forty dayes continuing so whether they may be signified and attached by the Kings Writ The answer given to the question is such It was never yet denyed nor shall be hereafter * The close of which Statute is after this manner Ratifying confirming and approving all and every of the Articles aforesaid with all and every of the Answers made and contained in the same do grant and command them to be kept firmly and observed for ever willing and gran ting for us and our Heirs that the foresaid Prelates and Clergie and their Succeâ—sors shall use execute and practise for ever the jurisdiction of the Church in the Premises after the Tenor of the Answers aforesaid without quarrel inquieting or vexation of our Heirs or any of our Officers whatsoever they be Poult Collect of statutes pâ— 101. in fine cap. 16. It seems the Kings Tenants supposed themselves such specially priviledged persons as to be thereby exempted from spiritual jurisdiction but that would not serve their turns And so a pari what would not be sufficient for them will not be sufficient for others though in office under the King During the long Reign
coercive respectively to the manner of proceedings therein as the same Regal Authority is in the temporal Courts in matters belonging to them and respectively to the manner of proceedings therein The King hath both Jurisdictions united in Him as has been largely before shewed Rex habet omnia jura in manu sua It is a Maxim concerning the King which I read cited from Bracton lib. 2. c. 24. * So it is also said Rex est mixta persona quia tum Ecclesiasticam turn temporalem Jurisdictionem habet 11 Hen. 7.12 Now all is completed in these two Jurisdictions which although they may be diverse yet they are not contrary in him they are both radically and fundamentally in him and derivatively only in all Officers and Ministers of Justice in either kind Is the King then absolute in the one and yet limited in the other less powerful in his Ecclesiastical than in his civil Supremacy That is Supreme and not Supreme Thus to say is either to contradict ones self or neither better nor worse than plainly to derogate from the Kings Ecclesiastical Supremacy and to give him the Name but to deny the Thing It incurs the danger of implied if not direct disowning Regal Supremacy in all causes Ecclesiastical and over all persons that may be concerned therein It is plainly to make a magis and minus in that Authority which will not admit any such thing * Regia dignitas est indivisibilis Coke 4 Instit c. 48. it being alwayes equally and alike forcible in all that is chief and supreme in both Administrations Ecclesiastical and Civil Let 's state a Case or two for better illustration sake A Suit is commenced in the Ecclesiastical Court before the Bishop the Kings Ecclesiastical Judge presiding therein concerning a matter we will suppose not properly cognizable there The Defendant hereupon sues out a Prohibition which he exhibits before the Bishop the Ecclesiastical Judge This the Bishop refuses to admit and notwithstanding the same proceeds in the cause Complaint hereof being made to the Court granting the said Prohibition an Attachment is awarded against the Ecclesiastical Judge * It may be so and issues out of the Chanceâ—y although the Prohibition came from the King Bench or Common Pleas. Lord Coâ—e cap. 8. 4 Instit He is apprehended and brought to answer for his contempt in refusing to obey the Kings Prohibition I question not now but to have a free concurrency of every mans vote allowing this to be very legal and just because the Kings Authority in the Temporal Court and in such matters as belong thereunto is in this case contemned and disobeyed and therefore ought to be answered for by the contemners of it Now invert the case a little A Bishop the Kings Ecclesiastical Judge convents before him in the Kings Ecclesiastical Court a person bearing some civil Office suppose the Mayor of a Corporation or some Sheriff of a County perhaps at the instance of a party perhaps in a matter of correction This Mayor or Sheriff refuses to appear upon the Summoning or appearing refuses to obey such Injunctions as are given him by the Bishop and for his contempt therein has a censure inflicted on him Tell me now ought not this case be allowed as legal and just as the other The reason is certainly the same because the Kings Authority in his Ecclesiastical Court and matters belonging thereunto is contemned and disobeyed and therefore ought to be answered for by the contemners of it and if the reason be the same partiality or prejudice may make a disparity but in the true nature of the thing there is none at all For the Kings Authority being equally committed to both spiritual and temporal Judge in the concernancy of such things as belong to each the violaters and contemners of either be they of what quality and condition soever are justly punishable by those in either Jurisdiction who are vested with Authority respectively for executing the same But there are those who will not be satified with all this and that they may not seem to be without some grounds they are not without their Objections against it It will therefore be very pertinent to the present design to free our former Assertion from such Inferences as hence may be made contrary to it The Assertion was this That the Exercise of Episcopal Jurisdiction over persons in Office of civil power and trust is not any way intrenching upon or infringing His Majesties Prerogative Royal. To this there is first opposed that Branch and Article of the Statute of Clarenaon of which we find mention made by Matth. Paris in his History of the Reign of King Henry the second the chapter that begins thus Anno Domini 1164. in these words Nullus qui de Rege tenet in capite nec aliquis Dominicorum Ministrorum ejus Excommunicetur nec alicujus eorum terrae sub interdicto ponantur nisi prius Dominus Rex si in Regno fuerio conveniatur vei justitiarius ejus si fuerit extra Regnum ut rectum de eo faciat Et ita ut quod pertinebat ad Regis Curiam â—bi terminetur Et de eo quod spectat ad Curiam Ecclesiasticam ad eandem mittatur ut ibidem terminetur I did a little before and do now again acknowledge That the King of England may by His Prerogative Royal when and to whom he pleases give exemption from Ecclesiastical Jurisdiction But that He has done it to persons in subordinate Offices of civil power is not proved from this instance all the dispute will be who are comprehended under this expression Dominicorum Ministrorum what kind and sort of persons are pointed at thereby And here I say plainly that persons in subordinate Offices of civil power are not these Dominici Ministri Regis My Lord Cokes Exposition hereof is my warrantry and authority for saying so * 2 p. Instit Exposition on the 12th Article of the Statute called Articuli Cleri 9 Ed. 2. The place I refer to in the Margent will inform us That Dominici Ministri Regis are such as belonged to the Kings Houshold as the Tenentes de Capite are such as held of the King by Grand Serjeanty and Knights service and were to give their attendance on the Kings person whensoever required thereto To these is this exemption granted but note here withall that the exemption in this Statute is not absolute but proceeds with a reserve and a limitation that if the cause any such person is to be convented upon be judged by the King or His Justice in the Kings absence to belong to the Ecclesiastical Court thither both cause and person must be sent and that person notwithstanding such exemption be proceeded against and that cause there be determined That which is in the principal aim and provision of this Statute is this that the King be made acquainted before any censures be inflicted on any account upon any of His servants
displeased thereat for as one Historian informs us * Mat. Paris Anno 1250. p. 777. and he a Votary to the Pope in another case hapning but two years before viz. in the 36th year of this Kings Reign and which this passage must undoubâ—edly refer to Non sine redargutione peritorum haec fecit Dominus Rex quod scilicet conquestus fuerit super haec Domino Papae The Pope to be sure was forward enough to engage himself in the concerns of Princes and so would make himself more officious to gratifie the King than was needful whereas the provision which by the Laws was made against any such encroachments and the Kings own Regal power to put the same Laws in execution would have given him better relief than any indult or dispensation from the Pope could do Well upon the Reasons before specified prohibitions issued out from King Henry to keep the Bishops from censuring his Officers but notwithstanding them still they would be encroaching on the Kings Rights in his temporal Courts and so they continued to the time of King Edward the first the son and immediate successor of the former King and thence proceeded the issuing of that Kings prohibitory mandates Requiring and commanding the Bishops not to Excommunicate his Bayliffs and Officers without his previous Licence and Order That is as by what is to be collected from the state of affairs in these times until the King fully understood the nature of the cause these Officers and Bayliffs were convented upon for as I declared before they were often censured and excommunicated because they opposed the Popish encroachments on the Kings temporal Rights therefore the King would understand the true grounds of such proceedings that if the matter were of civil concernment his Officers might be freed from such vexatious and unjust prosecutions but if it appeared to be of Ecclesiastical cognizance they were then delivered up to the Jurisdiction thereof This I conceive to be the very genuine and true meaning hereof for these reasons first because it is consonant to the end and purport of other Writs of the like nature the Author has not recited these Records at large which if he had done very probably something plainly directing to this conception might have been found therein Moreover by the Statute called prohibitio formata de Statuto Articuli Cleri * Which Stature had â—eâ—â—â—ence to certain Articles of the Clergy â—â—h biâ—ed in Parlâ—ament hold Anno 51. Hen. 3. made the beginning of King Edwards Reign The spiritual Jurisdiction is not at all restrained subjectively that is respectively to persons being of this or that condition or quality but only objectively as to causes namely such as had been usurped before by the spiritual Courts Lastly this is made good also from approved practice in this very Kings Reign as will appear by this remarkable story that now follows Thomas the Noble Earl of Lancaster had to wife Alice only Daughter and Heir of Henry Earl of Lincoln at the same time John Earl of Warren was married to King Edward the first his Neece yet the said Earl Warren by great force and strong hand caused the said Alice Countess of Lancaster to be fetched from the Earl of Lancasters house in Canford in Dorset shire and in great pomp and bravery in despight of the Earl of Lancaster to be brought to him to his Castle of Ryeâ—gate in Surrey where they lived in open advowtry John Langton was then Bishop of Chichester and Chancellor of England and being a man of a brave spirit and fearing not the face of great men according to his office and duty he called the said Earl Warren in question for the said shameful and open Adultery and by Ecclesiastical censures Excommunicated him for the same as he well deserved sayes my Lord Coke who reports this Story * Expâ—fâ—â—ion on the Statute called Articuli super Chartas Anno 28 Edvard 1. page 573. This hapned about the 29th year of King Edv. 1. and surely is an instance proper to inform us what the right state of Ecclesiastical Jurisdiction was then and that supposing the matter to be indeed belonging to the Ecclesiastical Tribunal no person of greatest dignity under the King nor any others in civil office and place of power are exempted from it nor did the Kings prohibitory Writs give any such exemption Thus it was while the Ecclesiastical Jurisdiction did de facto stand divided from the Crown and before our Kings re-assumed their Rights in the same But forasmuch as now there is an entire Union of both jurisdictions in one supream King and Governour the exercise of the Ecclesiastical jurisdiction is certainly at least as extensive as full and as Universal now as it was before And whereas the obtaining and having the Kings leave and licence to the inflicting any censures on His Bayliffs and Officers is mentioned in those prohibitory Writs whence it may be inferred that admitting Ecclesiastical judges may proceed against and censure occasion so requiring it the Kings Officers in civil powers yet the Kings leave and order so to do must first be had and obtained To this I say that now by the right constitution of Ecclesiastical jurisdiction and as the exercise thereof is derived from the Crown the Kings leave and licence in the whole procedure thereof is implicitely indeed yet as truly and certainly had and obtained as if a particular and express mandate from the King were issued out upon each several cause civil or criminal that belongs to the cognizance thereof The Eâ—clesiastical judge acts by a power as immediately derived from the King as any Temporal Judge does The Bishop is as amply and compleatly Commissionated for the Exercise of Ecclesiastical jurisdiction both subjectively and objectively in foro Externo contentioso which Commission passes in His Majesties Letters Patents for Restauration of the Temporalities as any other Temporal Judge in any of the Kings Temporal Courts And upon this account it is as truly affirmed That nothing is done in the Ecclesiastical Court Rege inconsulto as the same is said concerning the Temporal Court Habet Rex diversas Curias in quibus diversae Actiones terminantur sayes Bracton and he lived in one of these Kings Reign viz that of King Henry 3d whence Sir Edward Coke draws this conclusion That the King hath committed and distributed all his whole power of Judicature to several Courts of Justice and in this he refers to Ecclesiastical Courts as well as Temporal And from the Statute 24 Hen. 8. cap. 2. he declares thus That the Laws Ecclesiastical and Temporal were and yet are administred adjudged and executed by sundry Judges * His Jurisdiction of Courts cap. 7. p. 70. c. Hence is that saying That the King does judge by his Judges Thus in matters of Ecclesiastical cognizance the King judges by His Ecclesiastical Judges and whatsoever persons are any way concerned therein and impleaded in the Ecclesiastical Court the
praemunire Anno 16. Richard 2d cap. 5. It is Ordained That none shall purchase or pursue in the Count of Rome or elsewhere any Processes Bulls c. nor the same bring within the Realm viz. these His Majesties Dominions This be it spoken under correction cannot rationally be intended de Curia Episcopi here within this Blealm the reason is plain because Curia Bomana velâ—alibi where such Processes and Bulls c. are purchased and pursued and from whence they are brought within the Realm these I say must be somewhere out of the Realm for the bringing in of a thing excludes the obeing of that thing there already but the Bishops Courts are within the Realm and none of these Processes brought into the Realm can be from them and therefore this word alibi has no reference to nor can it be intended of them Add hereunto That the occasion inducing this Statute and recited in the preamble to lit seems not all to favour this sense of the word The Coinmons in Parliament having with great vehemency and earnestness represented the several Grievances the Kingdom lay under among others these are especially mentioned viz. The Popes Excommunicating of Bishops for executing the Kings Commandments the Popes translating of them from See to See sometimes out of the Kingdom against their own and contrary to the Kings Will The Lords Spiritual being therefore demanded as the Lords Temporal had been before what their Advice and Will was in these cases The Archbishops and Bishops and other Prelates openly disclaimed the Popes insolent carriage towards the King and His Subjects and declared That they would and ought to stand with the King in these cases in lawfully maintaining of His Crown and in all other cases touching His Crown and Regality as they be bound by their Allegiance Whereupon sayes the Statute It is Ordained and Enacted That if any purchase or pursue c. from the Court of Rome or elsewhere c. May I not here well demand what relation either in the occasion or sense of the Stature can be made up betwixt Bishops Consistories and this word Alibi Bishops in their Jurisdictions were troubled by the Pope as the King Himself was in the right of His Crown both are complained of both redressed by this Statute How can that which is the Grievance complained of in the preamble of the Statute come to be the thing aggrieving in the latter part of it The truth is provision is here made against the setting up and abetting of all Forreign Authority but Domestical proceedings in Ecclesiastical Courts are not related to This I am confident to affirm by this Authority following The preamble sayes my Lord Coke from Pl. Com. fo 369. Stowells case in every Statute is to be considered for it is the Key to open the meaning of the makers of the Act and mischiefs which they intend to remedy Also from a case 4 Ed. 4. fo 4. 12. The same learned Judge declares thus Every Statute ought to be expounded according to the intent of them that made it where the words thereof are doubtful and uncertain and according to the rehearsal of the Statute and there a general Statute is construed particularly upon consideration had of the cause of making the Act and of the rehearsal of all the parts of the Act c. 4 Instit cap. 74. It is a general Rule allowed by all Laws in construction of Statutes Quamvis lex generaliter loquatur restringenda tamen est ut cessante ratione ipsa cesset cum enim ratio sit Anima vigorque ipsius legis non videtur Legislator id sensisse quod ratione careat etiamsi Verborum generalitas prima facie aliter suadeat Idem Ibidem And for the Book-case related to and the inference made therefrom hear what a learned person has delivered very fully and appositely concerning that not in answer to this Judges opinion for he wrote many years before him but to invalidate an Assertion of the same nature with this and from the same Book-case viz. 5 Ed. 4. fol. 6. praemunire and made by one he then contended with This case does but speak of the Excommunication by a Bishop and not of every dealing whatsoever in a matter belonging to the Kings Regality and what if it had been twice so adjudged both of them in such corrupt times when as the Royal Prerogative of the Kings of this Land to be Supreme Governors in all Jurisdiction Ecclesiastical due to them in Right and by Gods Law was not de facto united to the Crown For the Bishops then did not claim their Jurisdiction Ecclesiastical next and immediately under God from the Crown as now they do but seeing this part of Regal power is now no less truly and fully vested in the Crown than is the Temporal so as the Laws allowed for the Ecclesiastical Government are termed by sundry Parliaments the Queens Ecclesiastical Laws and Laws of this Realm as well as those that were first originally made here And the Bishops are proved to have their Authority and Jurisdiction Ecclesiastical derived down unto them from the Queens Highness under the Great Seal of England Is it then the like reason still to comprise their Jurisdictions and Courts under that word of Alibi as if their Courts and Jurisdictions were not now the Queens nor yet belonging to Her Regality Cosen Apol. p. 3. ch 7. Furthermore the holding plea of a matter belonging to the common Law by an Ecclesiastical Judge so constituted as he ought to be and now is does not tend to the disinherision of the Crown that is not to the impairing of any Regality Power or Preheminence belonging to the same and therefore cannot be the crime of praemunire The Statute 25 Hen. 8. cap. 21. declares concerning whom and how offending the Statute of the 16 Richard secundi was framed namely such as sue to the Court of Rome against the Kings Crown and Dignity Royal one Statute best explains another So then where the Authority that is acted by is the same a mistake in the matter to be proceeded upon or manner of proceeding in does not infringe that authority The reason is because the Kings authority empowring to act is still acknowledged and what is judicially done thereby proceeds by power derived from Him not from any power set up against him I presume it will be readily granted That the upholding and securing the Kings Supremacy in all causes and over all persons is that which principally if not solely is aimed at by this Statute And then it plainly follows that where that Supremacy is maintained no breach of that Statute can be made nor penalty incur'd by any for a mistake only of the matter that any Plea in Subordination to the King as Supream is held upon The worst that is to be said in this case is this That he who being a spiritual Judge does take cognizance of any temporal matter offends in going beyond his Commission and
these men did That a Bishop the Kings principal Ecclesiastical Judge within his own Diocess has put the Inhabitants of a City into very much disorder by such arbitrary and unheard of manner of proceedings when all the disorder proceeded from themselves and no other but legal proceedings have been used herein this comes very near the saying That they are wronged in spight of any thing that can be said against it and that if they to whom they make their Application will not believe and redress them as they would have it themselves they will venture to speak as hardly of them too They will commit faults and then complain and be pettish and froward if they be not stroak't and soothed up in their complaints He that charges any in subordinate power with arbitrariness of proceedings and may escape so will at the next turn charge as bad upon those that are in superiour Authority if he have but any matter of concern then at stake and may think to be secure when he does so This begins in the Ecclesiastical Courts but will it end there it's to be feared it will not Success impunity and hopes of being countenanced therein will embolden such men to go further even to pronounce the like upon all judiciary proceedings in Civil Courts where their persons or interests are concerned and where they may be heard with freedom and safety of popular approbation it might pass for a pretty smooth contrivance for a Criminal to avoid the force of a judiciary sentence by first traducing it and to get free from the Obligation of submitting to what is decreed by affirming confidently and standing to it That the proceedings were illegal and therefore not to be obeyed If this would serve the turn who would be such a Fool as ever to be guilty or so careless of his own ease as ever to undergo any punishment But 't is worth the wonder of a sober man to think that any one should shew himself and believe others ought to think him serious herein But in truth what has preceded so much out-does this that all our wonder may be well spent upon it That men called to answer in Law should question the known and approved course and proceedings thereof carries something extraordinary with it but here is much more That they themselves should against Law so plainly fore-judge their own cause and their own persons as to exempt both from what and to confine them to what Jurisdiction they themselves best liked of The Enquiry into the absurdity unreasonableness and ill consequences of which and the evincing the Right of Episcopal Jurisdiction in the case in hand against any such illegal pretensions and attempts The putting a new mound about that ancient and established Jurisdiction which every pragmatical pettish and conceited Novelist is now seeking either by detraction in his speech or other crafty Machinations in his practice first to retrench a little and by and by utterly to abolish has hitherto employed my Thoughts and my Pen. In prosecution of which design it is now no more than time I should tell the Reader so much I have promiscuously made use of English Statutes since the time of King Henry the seventh and some memorable passages of Ecclesiastical Jurisdiction done in England as well as what peculiarly relates to this Kingdom And I cannot altogether deny but that I have done this for the Nonce for setting aside some particular Statutes relating to the peculiar state and condition of this Kingdom As to Ecclesiastical Jurisdiction we here conform in the practice and exercise of it and in the Rules and Laws it is exercised by to the same that are used in England If I be blamed for this I protect my self with what a Learned person has collected from Sir John Davys Reports in Case de commendam Ex quibus constat Hibernos sese accomodare non ad jura Anglicana tantum sed ad Leges Caesareas etiam jus Canonicum quatenus ea inter Leges Anglicanas admittuntur Dr. Duck de Authoritate Juris Civilis in Regno Hiberniae Sect 8. To whom I may add the Authority of that greatly Learned Prelate Primate Vsher for to this Chapter of the said Book as he did to all the rest he gave his particular Attestation under his own hand I mentioned at first two ends which I proposed to my self in this undertaking these I have had all along in my eye The one was that by the best reason I had and was able to improve and by the best authority I could find and was able to prâ—duce I might justifie the Right and in the present case the right proceedings of Ecclesiastical Jurisdiction and so give my self a true satisfaction therein The other end is to give a satisfaction to others also for what concerns my self I have sufficiently attained it for what concerns others I have at least endeavoured to do something in Order thereto FINIS Some mistakings or omissions in Pointing the intelligent Reader may easily observe and correct And that he may please to do the like in such Lapses as are either Literal or tend to vitiate the Sense they are here in one view set down before him ERRATA PAge 17 line 7 for Jurisdictions read Jurisdiction ibid. line 8 for cognizances read cognizance page 24 margent line 2 for Statutis read Statute page 25 line 29 for in read is ibid. line 32 for paenes read penes ibid. line 34 for sine read five page 26 line 4 for vir read viz. ibid. line 8 for tali read rati ibid. line 27 for sanctis read sanctio page 29 margent Sect. 2 for amplytude read amplitude page 30 margent line 32 for without read without page 32 line 16 instead of propper cause read a proper cause page 34 line 13 for Clerii read Cleri page 41 line 20 for Regie read Regiae ibid. line 32 for Prerogativa read Praerogativa page 44 line 34 for King read King page 56 line 26 for beee read been page 68 line 15 for cognizanced read cognizance page 73 line 12 for powers read power page 82 line 4 for has read had page 103 line 26 for diversi read diversae FINIS