which are criminal To pass by other statutes I instance in these two only The one De Excommunicato capiendo in 5 Elizab. c. 23. where the several crimes therein mentioned subject all such as shall be detected and found guilty of any of them to the Ecclesiastical Tribunal The other is the statute for Uniformity of Common-Prayer c. 1 Elizab. cap. 2. In this statute after a charge given in this Solemn and strict manner The Queens most Excellent Majesty The Lords Temporal and all the Commons in this present Parliament assembled do in Gods Name earnestly require and charge all the Archbishops and Bishops to endeavor their utmost for the due execution thereofâ—â— And then it follows for their power and authority in this behalf Be it further Enacted by the Authority aforesaid That all and singular the said Archbishops Bishops c. and all other their officers exercising Ecclesiastical jurisdiction as well in places exempt as not exempt within their Diocess shall have full power and authority by this Act to reform correct and punish by censures of the Church all and singular Persons which shall offend within any of their Jurisdictions or Diocesses after the said Feast of St. John the Baptist next coming against this Act or Statute any other Law Statute Priviledge liberty or provision heretofore made had or suffered to the contrary notwithstanding See a so the statute made secundo Elizab. cap. 2 here in Ireland The thing we had in hand to make good was this That all persons whatsoever within any Diocess regularly and de jure communi are subject to the Bishop of that Diocess in matters and causes of Ecclesiastical cognizance that this position is not repugnant to the statute Laws of these Kingdoms This I think has been fully evidenced and needs no further enlarging upon And to give one instance of this jurisdictive and coercive power in Bishops over all indefinitely it shall be in the matter of substracting and detaining of Tythes a cause properly and anciently cognizable before them That ample Charter granted by King William the first to the Clergie and mentioned at large by Mr. Selden in his History of Tythes cap. 8. p. 225. The conclusion of which is after this manner Quicunque decimam detinuerit per justitiam Episcopi Regis si necesse fuerit ad redditionem arguatur Startle not Reader at the eying of this that the Bishops power of Justicing has here precedency of place before the Kings conceive not that this was to set Episcopal power on high and make Regal Authority subordinate to it But this declares to whose judicial cognizance under the King the proceeding against detainers of Tythes of what quality and condition soever they be does immediatery appertain who is the Officer and Minister of Justice therein And the Kings power being after mentioned is so set down by way of judicial order and consequence not of subordination in power and Authority Thus much these very words si necesse fuerit plainly do import as if it were said should any of these detainers prove refractory and contumacious against the Bishops authority so that there were a necessity of invoking the secuâ—ar power the King would then be present therewith and by poenal coercions compel them to give obedience thereto Now for what concerns any other part of the Common Law it may be also both safely and truly in respect of the thing it self affirmed That Ecclesiastical proceedings according to the position laid down bears no contrariety therewith as is set down by Dr. and Student lib. 1 c. 6. That Episcopal jurisdiction is of force in this Kingdom even by the Laws of this Realm in certain particular instances mentioned is reported by Dr. Cosen from a certain Author writing in King Hen. 8th time Apol. part 1. p. 7. The Author is shewing that the Bishop of Rome has not nor ought to have any jurisdiction in His Majesties Kingdoms by the Laws of this Realm The medium whereby he proves this thing is this because Certificates of Bishops in certain cases are allowed by the Common Law and admitted in the Kings Courts But the Popes Certificate is not admitted vid. Lord Coke Instit 4. cap. 74. circa initium de jure Regis Ecclesiastico p. 23. 26. diversos casus thidem citatos Besides in the statute of Appeals 24 Hen. 8. cap. 12. mention is made of spiritual jurisdiction exercised in causes belonging to the same and it is there expresly said That such exercise is grounded on the Laws and customs of this Realm circa mitium dicti statuti Now certainly a statute best informs any one what is truly and what is agreeable to the Common Law The Bishops are by the Common Law the immediate Officers and Ministers of Justice to the Kings Courts in causes Ecclesiastical Lord Coke de jure Regis Ecclesiastico pag. 23. And for what belongs to any custom or ancient usage that has the force of Law among us I cannot find out any such that is impugned by what I have affirmed But thus I may safely determine That if any manner and course of things established by long use and consent of our Ancestors and still kept on foot by daily continuance and practice be a custom and may set up for a Law not-written Then certainly the thing that has been affirmed that is the exercise of Ecclesiastical jurisdiction by Bishops over all persons within their respective Diocesses and in causes belonging to it and thus far endeavoured to be pâ—oved is not at all contrariant thereto but of perfect agreement yea of the same Nature with it Are there any that after all this will make their reply and tell us of persons exempted from Episâ—â— paâ— power and the exercise thereof bound up and restrained in respect of such and for proof of this will alledge the Authoritative proceeding of King William the Conqueror who would not suffer any Bishop to Excommunicate any of his Barons or Officers for Adultery Incest or any such Heinous crime except by the Kings command first made acquainted therewith By the way it must be known that the word Baron is not to be taken in that limited and restrictive sense as to understand thereby the Higher Nobility to which Votes in Parliament do belong But generally for such who by Tenure in chief or in Capite held land of the King Selden spicelegium ad Eadmerum referente Tho. Fullero B. 3. Histor Eccles p. 4. Whatsoever now shall be collected hence to overthrow what has been before said is easily answered For King William very well understood his own Imperal power and right over the whole body Politick whereof the Clergie were a part And that by vertue thereof the Actual Exercise of both Civil and Ecclesiastical jurisdiction did flow from him And that he might where and when he saw cause restrain the Execution of either how long or in respect of what persons he pleased and this by special
was ever made nevertheless at the happy Restauration of our Gracious Sovereign that now is viz. Anno Dom. 1660. The said Act of the 17. of King Charles the First is repealed and that was Anno decimo tertio Caroli Secundi and in that Act of Repeal it is thus declared That the said Act of the 17. of King Charles the First notwithstanding All Archbishops Bishops and all others exercising Ecclesiastical jurisdiction may proceed determine sentence execute and exercise all manner of Ecclesiastical jurisdiction and all censures and coercions appertaining and belonging to the same before the making of the Act before recited in all causes and matters belonging to Ecclesiastical jurisdiction according to the Kings Majesties Ecclesiastical Laws used and practised in this Realm in as ample manner form as they did might lawfully have done before the making of the said Act. This Act is indeed attended with three Provisoes The first is concerning the High-commission Court which is excepted from having any revival or force or authority given to it or to the erection of any other such like Court by commission hereby The second Proviso is concerning the Oath called the Oath ex Officio which is excepted against and forbid to be tendred or administred unto any in the exercising of any Spiritual jurisdiction The third Proviso is to limit and confine the power of Ecclesiastical Judges in all their proceedings to what was and by Law might be used before the year 1639. observe the year mentioned to be 1639 which plainly includes allows and confirms King Charles the First His Proclamation in the year 1637. In this clause and branch of this Statute provision is also made against any confirmation to be given to the Canons made Anno 1640. These particulars onely excepted and here provided against all Ecclesiastical Jurisdiction as to it's exstensiveness in all causes of Spiritual cognizance over all persons of what quality and degree soever they be or in what Office soever they are in those causes is firmly ratified and established Bartolus his Rule is truly applicable here Exceptio firmat Regulam in non-exceptis But let all this be granted will the Excepters say that proceedings in Ecclesiastical Courts against private persons either in matters of instance or correction are not entrenching on the Prerogative Royal yet the case is otherwise when such proceedings are bent upon publick Officers as Mayors and Sheriffs c. because they are vested with the Kings Authority and nearly represent His Person They are His Ministers and Dispensers of Justice and by such proceedings against them publick affairs might be hindred of their dispatch and the Kings business not be executed I Answer there is no otherwise in this case For if the matter be justifiable that is if the cause any such proceeding is begun upon do belong to Ecclesiastical cognizance then the Spiritual Jurisdiction in the Bishops management reaches such publick Officers as well as others and that without invading or in the least violating the Kings Prerogative If occasions so require Ecclesiastical censures may be inflicted on them as well as on any other of the Kings subjects that do offend And yet the doing of that will not be a censuring the King in Effigie as some have with very little reason and but too much passion affirmed Observe we what may be done and adjuged against such publick Officers in the Kings Temporal Courts A Mayor and Sheriffs may be impleaded before the Kings Temporal Judges in causes Civil The people of Waterford may remember one or two instances hereof very lately when the School-master there sued the Mayor and Sheriffs before the Lords Justices of Assize for detaining the Salary they had contracted to pay him A Mayor of any City or Corporation may be arrested may during the time of his Mayoralty be sued to an Out-lawry in the Kings Temporal Courts The Kings Temporal Judges may upon contempts convent Mayors before them and occasion so requiring commit them to prison It is not long since that a case in Waterford was coming near this when in one Whaley's cause a Writ of Error was brought from the Court of the Kings Bench This the Mayor refusing to obey and complaint thereof being made to the Court a Pursuivant was ordered to attach the Mayor and bring him before the Judges there to answer his contempt which undoubtedly would have been done if the Execution of that Order had not been seasonably prevented by an Affidavit made to this effect That the Mayor did not refuse to obey the said Writ of Error but onely deferred the admitting of it until he sate judicially in Court the same having been before privately exhibited to him By this means that proceeding was stopped which else would have manifested that the Mayor of Waterford is not so absolute but is indeed under controll and may be convented and punished by the Kings temporal Judges without any affront done to the King in Effigie or to his power and authority which he the said Mayor in his proper station and within his own Precinct does bear And that Sheriffs even while they are in the exercise of their Office may be proceeded against in the Kings Temporal Courts none can be ignorant of that understands the practice of those Courts and remembers there is such a Court as the Exchequer or has undergone the Office of a Sheriff A Sheriff by the Statute of Westminster 1. cap. 9. Anno tertio Edvardi primi for not doing his Duty and for concealing of Felons may be fined and imprisoned One Bronchard in Queen Elizabeths time being Sheriff had an Information Exhibited in the Star-chamber against him for returning one that was not chosen a Knight of the Parliament Abridgement of the Reports of the Lord Dyer 425. A Sheriff of Barkshire was committed to the Fleet and fined by the Court of Common Pleas for unjust taking of Fees Brownloes Reports second part p. 283. I doubt not but the Learned in the Municipal Laws are able to furnish out plenty of instances of this kind Well then Mayors and Sheriffs may be Impleaded may be Out-lawed may be Arrested may be Fined may be Imprisoned in the Kings Temporal Courts by from and before his Temporal Judges And in all these Inflictions here 's no Fining no Arresting no Out-lawing no Imprisoning no Attaching the King in Effigie nor any intrenching upon his Authority from himself to his subordinate civil Officers Here 's no hindring the dispensing of Justice no obstructing the Kings business nor letting the execution of His Majesties service in the hands of these publick Officers that is at all dreaded hereby And pray How then comes it to pass that the case is not the same when in matters of Ecclesiastical cognizance the Kings Ecclesiastical Judge in his Ecclesiastical Courts proceeds against such persons by penalties proper and usually inflicted therein Is not the Kings Authority in His Ecclesiastical Courts in matters belonging to them as forcible and
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
the ancient state thereof and is so far from damnifying the Prerogative Royal that it mainly asserts and vindicates the same It might perhaps be doubted That different Jurisdictions in one Kingdom and those exercised by persons of different professions though deriving from one Supreme Head would rather cause than prevent many inconveniencies and those inconveniencies so bad in their nature as to detract from rather than adde to the Supreme Magistrates Dignity and Prerogative as namely by introducing confusion and disorder in the management of both and in the causes and matters to be managed in them and occasioning continual jealousies and distastes betwixt the persons appointed to manage them observed by my Lord Bacon's Advancement of Learning Aphor. 96. But in truth no such ill Effects do follow hereupon for distinct Jurisdictions exercised by persons of several orders and professions in these Kingdoms and vested with authority from the Supreme Magistrates so to do though juridical proceedings therein be different from the ordinary form and prescribed coursel of the Common Law argues unplenitude not a defect of power an advancing of it not derogating from it in that Supreme Magistrate granting the same his great wisdom and prudence in a determinate stating the nature and bounds of each Jurisdiction the appropriating certain causes to be heard and determined in them respectively commanding all His Subjects to give due obedience thereunto in such causes as are limited to those Courts and which any Subject may be concerned in And as both derive from soito depend upon him in an equal poise as to the Authority belonging to each so that all the supposed inconveniencies are sufficiently provided against And the ordering all these things in this set manner is an effect of the Kings high Prerogative enabling him so to do and is both by Custom and Law among us allowed of * The King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal and it is a Right of His Crown to distribute to them that is to declare their bounds Lord Hobbarts Reports Dr. Jame 's Case observe with me these following instances The Kings Majesty is plyased to confirm a peculiar Jurisdiction granted by His Royal Progenitors to the two Universities of Cambridge and Oxford The Chancellor of each University or his Commissary administer Justice according to the Civil Law and the Customs and Statutes of the University where the persons at variance together are Students or one of them at least is such insomuch as in personal Actions for Debt matters of Accounts or any Contracts made within their own Precincts and in some criminal matters likewise none of them may be called to Westminster Hall but the cognizance thereof belongs to the Chancellor of the said University or his Commissary as is before said If any Appeals be made from Sentences given in any such Trials they are first interposed to the Regents last of all to the Kings Majesty himself Cowell Interp. in verbo Privilege Dr. Duck ut supra sect 30. Will any man now say That the Exercise of this power is intrenching on the Kings Prerogative because His great Courts at Westminster are not applied to and a Jurisdiction distinct from and independent upon them is exercised Surely no because the Exercise of this power is granted by Royal Charter it proceeds from it depends upon it is done in an acknowledgment of the Kings Supreme Power and Prerogative There is a Court of great Dignity and Honour called the Court of the Constable and Earl Marshal of England Herein are determined all Contracts touching Deeds of Arms out of the Realm as Combats Blazons of Armory and the right of bearing Arms c. proper to particular Families the manner of proceeding in this Court is according to the form of the Civil Law * L. Coke Jurisdiction of Courts ca. 17. the use and authority of which is of great sway herein Appeals that are interposed from any definitive sentence in this Court are brought to the Kings Majesty Himself not to His Chancellor the municipal Law is altogether secluded from hence Justice is administred Delinquents are punished without any relation to that or the Judges thereof yet the Kings Prerogative is not infringed by the exercise of this Jurisdiction because it is derived from the King I might add here the Court of the Admiralty the peculiar Jurisdiction exercised within the Cinque Ports by the Lord Warden thereof In these Courts matters both civil and criminal are tryed according to the course prescribed by the civil Law but in the following Leafs I shall have occasion more distinctly to write something relating to these matters and respectively to these two Courts Now as it is in these different Jurisdictions they derive from the King His Subjects are bound by command from Him to obey the Authority thereof if they refuse to obey by poenal coercions proper to each they may be compelled to it yet still the Royal Prerogative is not any whit diminished nor the Rights of the Crown at all impaired hereby As it is thus I say in the distinct Jurisdictions so it is in the exercise of Episcopal Jurisdiction in the Ecclesiastical Courts And now I have uttered thus much I perceive my self beginning to walk on a narrow slippery ridge where a steep precipice is on each side The danger of falling on one hand is least I abase the Prerogative so low as to subject the King in Ecclesiastical causes and matters under the Resolves and Decisions of Classical Assemblies * Huic Disciplinae omnes orhis principes Monarchas fasers suos submittere parere necesse est Travers Disciplin Ecclesiast p. 142 143. Bishop White in his Preface to his Treatise concerning the Sabbath as the Presbyterians do or bring Him in subordination to the Bishop of Rome as the Papists do The danger on the other hand is the over-exalting of the Prerogative so that it might be thought we attribute to the King as sometimes the Papists object to us a power to exercise Sacerdotal Offices in the Church to inflict censures * And yet our Law attributes much in this particular and that very highly to the King Reges Sacro olco unctâ— spiritualis Jurisdictionâ—s sunt capaces 33 Edw. 3. Ayde de Roy. 107. Coke Cawdrie's case p. 16. c. Now to walk even and steddy betwixt these two dangerous downfalls is that which must be endeavoured and therefore whereas we own and solemnly recognize the Kings Supremacy in Ecclesiastical matters and causes it is to be understood according to the sense and meaning set down in the words of the 37th Article of the Church of England and also in the Article of the Church of Ireland concerning civil Magistrates The Kings Majesty hath the chief Government of all Estates Ecclesiastical and Civil within His Dominions see Queen Elizabeth's Injunctions set forth in the first year of Her Reign Now this Supremacy keeps the King above all
nor Religion Here is no need of that Writ in the Kings behalf called Ad quod Damnum As what damage and prejudice will come to the King by confirming Episcopal Jurisdidiction and allowing the actual exercise thereof for in truth the exercise thereof kept in its right constitution and dependance for such a Jurisdiction is only here intended is so far from diminishing the Right and darkning the Jewels of the Crown that they receive a greater lustre and resplendency thereby We have spoken of the Kings Oath which He is pleased at the time of His Coronation to take for the benefit and security of His Subjects There is also the Subjects Oath which they are to take in Recognition of the Kings Sovereignty and in testimony of their fidelity to him I mean the Oath of Supremacy a consideration of which is very proper and pertinent to the matter in hand especially that one branch which the Taker there fâ—swears to and declares that To his power he will assist and defend all Jurisdictions Priviledges Preheminences and Authorities united and annexed to the Imperial Crown of this Realm In which words the Eâ—â— esiastical Jurisdiction is if not only yet speciaâ—ly aimed at Now let such persons that are pâ—aced in Offices of civil Power and Authority and conceit themselves not subject to Ecclesiasticaâ— Jurisdiction because of their being in such Offices and who yet do take this Oath at the entrance into their Offices let them I say soberly and advisedly bethink themselves how consistent an Oath taken for the observance and defence of the Ecclesiastical Jâ—râ—sdiction is with a plain disowning of such Juâ—â—ction as to themselves or impugning of it and bearing themselves disobediently to it or exempting themselves from it in matters which the Law has clearly appropriated to it or in a word to act any thing to the prejudice of the lawful proceedings thereof It is frivolous and vain to alledge that they acknowledge and will submit to this Jurisdiction in the King and yet at the same time deny their submission to the exercise of it by the Bishops This I say is a vain and frivolous Allegation because it is not a notional and speculative acknowledgment that such a Jurisdiction is united and annexed to the Imperial Crown of this Realm which only fulfills the impâ—rt of this Oath But it is an obedience in practice by submitting to the lawful exercise of it that is the soope and intendment of it Now the King exercises no judiciary power in His own person but commits it to His Judges the King hath wholly left matters of Judicature according to His Laws to His Judges * Lord Cole 4 Inâ—it p 71. And the Bishops are those Judges to whom the Ecclesiast Jurisdiction is committed and to them the execution thereof belongeth now what is done in deregation of that power and authority derivatively residing in them is done in like manner in deregation of the same power primitively that is as it is originally in and derives from the King Himself I have said thus much concerning this branch of the Oath of Supremacy not that I take upon me to judge any man but because I take it to be my duty to recommend the consideration of this thing as a matter of very weighty concernment and fit to be made with all sobriety and seriousness I sum up all delivered on this first Proposition under this Head That Bishops proceeding by Authority and deriving the actual exercise of their Jurisdiction from the King are the Kings Ecclesiastical Judges dispensing Justice in the Kings Ecclesiastical Courts according to the Kings Ecclesiastical Laws And that the same Jurisdiction reaches to and over all persons whatsoever within their respective Diocesses all which is agreeable to the Ecclesiastical Laws of these Kingdoms and not repugnant to the Temporal Laws thereof nor yet infringing in any kind the Kings Prerogative Royal and therefore the Bishop of Waterford's Jurisdiction in the Case before laid down was legally founded in respect of the persons proceeded against Prob. II. The second Proposition is this The Bishops Jurisdiction over these persons was legally founded in respect of the cause that this proceeding was made upon The cause was the rendring an accompt of Moneys given and received to pious uses and rendring of an accompt of a large Rate levied to the use of the Church as also concerning the Reparation of the Body of the Cathedrall Church at Waterford That the Bishop is the proper competent Judge to exact an accompt of all such Moneys so given and so to be disposed of will not I suppose be denied or if it be denyed the worst of it is 't is but the being put to the proof of it which is no very difficult task and for sureness sake shall by and by be made good And for the Reparation of Churches that the same belongs to Ecclesiastical though the Law be clear for it will yee be made more clear by having those Laws for it produced But before that be entred upon some notice must be taken of what has been alledged and passed roundly from the mouths of many that concern'd them selves much in his matter That by ancient contract the Mayor Sheriffs and Commonalty of Waterford stand obliged to the making good this Reparation whence the Inference it made That all contracts being of civil cognizance therefore the Bishop was no competent Judge of that branch of the cause which was brought before him the same being not cognizable in the Ecolesiastical Court This Allegation at the first hearing seemed mighty fair and plausible insomuch as some persons otherwise no Enemies to Episcopal Jurisdiction were much concerned and startled thereat And when they first heard it they concluded presently that the Bishop had taken a matter in hand which he ought not to have moved a hand towards as not appertaining to his jurisdiction and so has usurped on the Temporal Courts Nay so strangely transported were some that in their heats they did not stick to affirm that the Bishop by doing what he did had incur'd some heavy penalty which they would not abate of an Ace less than a praemunire it self And many and hard and bitter were the cenfures that several open mouths pronounced upon him But causes as well as persons are sometimes prejudged and both were so in this case As a preparative to the clearing and making good that both cause and person were thus prejudged I shall speak something concerning the matter of contract so mainly insisted upon and that which raised the cry as if the Bishop grounded his proceeding on that contract and therein encroached on the Temporal Jurisdiction Let it therefore for the present be supposed That the Bishop did ground his Ecclesiastical proceeding on that contract although indeed the cause was not so laid yet supposing it were the inference that is thence made peradventure is not good as that the doing thereof was an encroachment on the Temporal Jurisdiction Peradventure
decernenda Censuerit ibidem Tab. 2. In Synod Nationali vel provinciali Regis rescripto convocato nihil tractari aut determinari potest nisi eo assentiente nec quicquam vim legis obtinet priusquam Regalis assensus adhibitus fuerit Dr. Zouch Descript Juris Eccles. p. 1. Sect. 2. See also to the same purpose Dr. Duck de authoritate Juris civilis in Anglia lib. 2. cap. 8. p. 3. Sect 27. And the Lord chief Justice Cook 4. p. Instit cap. 74. cited thereby him 2 The King himself in the Proclamation before mentioned declares that such Canons Constitutions c. agreed upon by the Arch-bishops Bishops and Clergie of Ireland to the end and purpose by him limited and prescribed unto them He has given His Royal assent according to the form of a certain statute or Act of Parliament made in that behalf And by his Prerogative Royal and Supream Authority in matters Ecclesiastical he has ratified and confirmed the said Canons being one hundred in number by his Letters Patents under his great Seal of Ireland And then follows His Majesties strict injunction upon all His loving Subjects of this Kingdom to obey and execute the same which I insisted upon before 3. Besides His Majesties Prerogative Royal and Supream Authority in causes Ecclesiastical the King is likewise by Act of Parliament vested with power for this purpose and that is the Statute 25 Hen. 8. cap. 19. called the Petition and Submission of the Clergie to the King For the Bishops and Clergie in Convocation having each one severally promised in verbo sacerdotis never henceforth to presume to attempt alledge claim or put in use or enact promulge or execute any new Canons Constitutions or Ordinances without the Kings most Royal assent had and obtained thereunto upon which promise and submission it was enacted by Authority of Parliament That all Convocations in time to come should always be assembled by the Authority of the Kings Writ And that the Kings license and authority being had they might make promulge and Execute such Canons Constitutions and Ordinances Provincial and Synodal which being ratified confirmed and approved under His Majesties Great Seal they then become of legal force upon the Subject This Proviso indeed follows That no Canon nor Ordinance shall be made or put in Execution by the Authority of the Convocation of the Clergie which shall be contrariant or repugnant to the Kings Prerogative Royal or the Customs and Statutes of this Realm c. Rastals collection word Rome numb 1. * Which Statutis is but declaratoâ—y of the Common Law says my Lord Coke 4. Instit cap. 74. p. 323. So that the same is grounded both on Statâ—to and Common Law The like Statute to this particular we have enacted in Ireland Entituled An Act against the Authority of the Bishop of Rome in vicessimo Octavo Hen. 8. and referred to in the Proclamation before spoken of in the second consideration A Great Lawyer one Mr. J.M. in a speech before a Committee of the Lords at the Parliament held Anno 1641. Having occasion to speak of this Statute for his speech was against the Canons made the year before avouched plainly that that clause The Clergie shall not make Canons without the Kings leave implyeth not that by his leave alone they may make them But certainly the most knowing men in any Science or faculty have not the priviledge of never mistaking in what they say for to him that advisedly considers the matter and scope of that Statute it will appear plainly That the abridging the over-growing power of the Clergie assumed by them in making and enacting Canons and pressing their authority on others And together with this the cutting them off from any relation to the Bishop of Rome and making them dependants on the King alone for the better ordering of what should be debated and determined in their Synodical meetings were if not the only yet the principal aims of that Statute Add here further that a successive and continued practice from the time when that Statute was made to this day delivers the best and truest sense of it * Practiea est legum optima intellectrix Baldus For thus as I have set down it was practised in the times of Edward the 6th Queen Elizabeth 1562. King James Anno 1603. King Charles the first in this Kingdom of Ireland Anno 1634. And though I say nothing of the Canons themselves made in the year 1640. because all authority as to them is annulled by Act of Parliament Anno 13 Caroli Secundi yet the Commission granted to the Convocation of that year at the first opening of the Parliament and of it was according to Law and this speaks plainly of the Kings leave and license granted and alone needful herein see more fully thereof in Dr. Heylins life of the Arch-bishop of Canterbury p. 423.424.425 I conclude this matter with the decision of a great Casuist He in discoursing of Ecclesiastical Laws and the manner how they are enacted in the Church of England Jus condendi leges Ecclesiasticas saies he est paenes Episcopos Presbyteros aliasque personas à totius Regni clero rite electas in legitima Synodo rite congregatas Ita tamen ut ejus juris sine potestatis exercitium in omni Repub. Christiana ex Authoritate Supremi Magistrat us Politici pendere debeat Idque aparte Ante ut loqui solemus aparte post vir ut nec iis statuendi Canones Ecclesiasticos causâ liceat convenire nisi autipsius mandato inssu ad id negotii convocatis aut ejus saltem authoritate Venia ab eo petita obtenta munitis Nec Canones in quos illi sic consenserint tali sint aut vim aliquam habeant obligandi quoad supremi Magistratus assensus accedat Cujus approbatione publica authoritate simulac confirmati fuerint illico pro legibus habendi sunt subditos obligant Bishop Sanderson de conscient obligat Praelect 7. Sect. 30. Mr. Hooker Eccles. Polit. Book 8. in p. 219.220.221 c. Thus much has been said touching the Canons of our Church and their Authority so far forth at this present as suits with the present occasion and what they were produced in proof of In several Provincial Constitutions we find it Decreed That concerning matters belonging to Ecclesiastical cognizance proceedings may be made against any Layman or publick Officers as Sheriffs and others even to the inflicting publick Censures upon them Many of this kind will occur to the Reader that is conversant in them That Constitution Aeterna Sanctis de paenis Enacted in a Council at Lambeth under Boniface Archbishop of Canterbury Anno 1260. In the time of King Henry the third And that Constitution ut invadentibus de immunitate Ecclesiae Enacted by the same Boniface likewise the Constitution contingit aliquando eodem And Accidit Novitate perversa eodem Enacted by John Stratford Archbishop of Canterbury in the time
King by His Ecclesiastical Judges has the hearing of them and determining in their causes and His leave and licence goes along therewith By vertue of being thus deputed and commissionated by the King the Bishops have and execute an exterior Jurisdiction which is as extensive and universal over all persons in causes belonging thereunto as is the Temporal Jurisdiction in the management of the Temporal Judges and where the Kings Commission is there is His power and there is His consent And where that Commission does not abridge and limit there all proceedings made by power from it have assuredly the Kings leave and licence in conjunction with them But if still notwithstanding all that has been said it be persisted in that there is a disparity of power in the two Jurisdictions as to the extensiveness thereof subjectively so as that the Ecclesiastical Judge in his way of proceedings may not but the Temporal Judge in his way may proceed against any civil Officers as Mayors and Sheriffs c. found Delinquents in any kind I demand How does it appear to be so What Law is there that constitutes this Disparity What legal course prescribed and set down to restrain the Ecclesiastical Judge in case he will be intermedling with such persons for it is irrational to imagine there should be such a Law and yet that it should be destitute of sufficient means to uphold and maintain it self by Truly I am not so vain as to say there is no Law extant which constitutes this Disparity because I know no such but I have been seriously inquisitive and diligent in searching after this but cannot attain a knowledge of any such and would any be so kind to inform me I should thankfully own that kindness Next for any legal course prescribed and set down to restrain Ecclesiastical Judges in case they will be intermedling with such persons If there be any such it must be one or other of these three wayes 1. By Writ of Provision and Praemunire Or 2. By a Writ of Indicavit Or 3. By a Writ of Prohibition By one or other of these the Ecclesiastical Judge is restrained in his proceedings and câ—mmanded to desist from prosecuting further such matters as being before him are referred to in those Writs Now concerning the first That Provision and Praemunire has no place nor use in this matter I do for the present plainly declare and afterwards I shall have occasion more largely to prove it 2. Then for the Writ â—f Indicavit that is notoriously known to lie there where a Suit of Tythes is commenced in the Ecclesiastical Court which does amount to a fourth part or above of the whole Benefice or it lieth for the Patron where his Clerk is impleaded for the Advowson i. e. the Right of Patronage 3. There remains only the Writ of Prohibition This is said to be two-fold Prohibitio Juris Prohibitio Hominis Prohibitio Juris is such as is grounded on any Statute or Law of this Land Prohibitio Hominis is such as has no precise word or letter of the Law to sustain it but is raised up by Argument and by way of surmise and as the wit of man will suggest Now put these Prohibitions of both sorts together and I dare boldly affirm that none of either kind have been or can or ought to be granted so as to supersede the Ecclesiastical Judge from his legal proceedings against any person where the matter proceeded upon is indeed of Ecclesiastical cognizance meerly because such a person bears some office of civil power is a Mayor Sheriff Portrieve or any other in like place of authority And this is the reason why I take so much confidence in delivering this affirmation because it is the incompetency of the cause brought into tryal before the Ecclesiastical Judge and not this or that quality or condition of the parties proceeded against that alwayes makes way for moving for and granting of a Prohibition Thus much has been said for the removal of these Objections and still it is clear and evident that the exercise of Ecclesiastical Jurisdiction by the Bishop over all persons whatsoever within his Diocess in matters and causes truly belonging thereunto tends not at all to the impaâ—ring or invading the Kings Royal Prerogative It has been the glory of our Kings to keep the Rights and Liberties of the Church safe and entire and never to interpret a just exerting and using of their Jurisdiction to be a diminishing of their Royal dignity In some old Presidents of the Writ de Excommunicato capiendo A priviledge peculiar to the Church of England above all the Realms of Christendom that I read of sayes Dr. Cosen Apol. par 1. p. 9. The King declares thus Nolumus quod libertas Ecclesiastica per nos vel Ministros nostros quoscunque aliqualiter violetur Register in bre orig p. 69. a. And again Jura libertates Ecclesiasticas illaesa volentes in omnibus observari ibidem But I have one greater instance hereof to add here At the time of His Majesties Coronation the Oath that He is pleased then to take has this Article therein That He will grant keep and confirm to His people of England the Laws and customs to them granted by the Kings of England His lawful and religious Predecessors and namely the Laws customs and Franchises granted to the Clergy by the glorious King St. Edward his Predecessor according to the Laws of God the true profession of the Gospel established in this Kingdom agreeable to the Prerogative of the Kings thereof and the ancient customs of this Land Afterwards one Bishop present reads this Admonition to the King before the people with a loud voyce Our Lord and King we beseech You to pardon and grant and to preserve unto us and to the Churches committed to our charge all Canonical Priviledges and due Law and Justice and that You would protect and defend us as every good King ought to be aâ— Protector and Defender of the Bishops and Churches under His Government Whereto the King answereth with a willing and devout heart I promise and grant my part and that I will preserve and maintain to you and the Churches c. By Canonical priviledges that belong to them and their Churches there must needs be implyed the Honour of their several Orders as that Bishops should be above Presbyters c. together with all their due Rights and Jurisdictions Dr. Stewards Answer to a Letter concerning the Church and the Revenues thereof Of these Laws Customs and Franchises granted to the Church and Clergy this of actual exercising Jurisdiction Ecclesiastical in causes belonging thereto is as I have before shewed one and that a principal one too Now to imagine that the King will bind Himself by Oath to the confirming of such Charters and Grants which he either resolves not to keep or such as are detrimental to Him and tend to the impairing His Prerogative is neither consistent with Reason nor Loyalty
Supremacy is in him there can therefore lie no Praemunire at this day against any man exercising Jurisdiction subordinately under the King which every Ecclesiastical Judge both doth and acknowledges himself to do See to this purpose Dr. Cosen in his Apol. p. 1. cap. 18. Sir Tho Ridley ut supra Dr. Cowell in the word Praemnnire Whatsoever sayes he is now wrought or threatned against the Jurisdiction Ecclesiastical by colour of the same Statute of Praemuniâ—e is but in emulation of one Court to another and by consequent a derogation to that Authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed Nam cessante ratione cessat Lek Sir Thomas Smith a person of great judgment one who well understood His Sovereigns Right and Prerogative and wouâ—d not detract any thing in the least manner from it declares his sense herein after this manner Verum in praesentiarum Curia Christianitatis perinde atque caeterae omnes virtutem vim authoritatem imperium jurisdictionemque suam praeterquam Serenissimae Majesti Diademâ—ti Regio post immortalem Deum Potestati aut Principi accepta resert Nemini Id si verum esse concedas quod esse constat verissimum tum Sanctioni Statuariae de Praemunire nullus per Angliam locus relinquitur quando alibi quam in Curia Regis ac Reginae jus nullum dicitur De Repub Anglicana lib. 3. cap. 11. There is a certain word indeed in that Statute viz. alibi the Court of Rome or elsewhere and this word is supposed to be meant of and refer to Bishops Courts So I read that Fitz. herbert a great Lawyer reporteth it Tit. praemunire num 5. Howbeit saving all respect to so great a Lawyer yet this is judged by many grave and learned persons see those before mentioned to be a forced and groundless construction made thereof The word it self is of an ambiguous and variable signification it may refer to the Bishops Consistories and it may as well not refer to them it may refer to any Forreign Courts and Judicatories and any other Courts of these Kingdoms that are not Courts of common Law * So it seems it may refer to the Court of Admiralty in my Lord Coke's opinion 4. Instit cap. 22. or any Courts whatsoever most agreeable to the purport of that Statute wherein any thing is done in derogation of the Regality of our Lord the King it is a slippery and uncertain word none can take sure hold of it no determinate and precise meaning can be affixed to it This word then being so doubtful and uncertain and the penalty of this Statute being so severe as Imprisonment during life for feiture of Goods Lands Chattels Tenements Ejection out of the Kings favour and protection and since the noted Rule is this in poenalibus causis benignius interpretandum est L. 145. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 de Reg. Juris parag finali Now it would be so far from a benigne as to prove indeed a most rigorous sentence to pronounce the falling under so great a penalty on occasion of this expression so full of ambiguity and uncertainty May I presume with the good leave of the Learned in the Municipal Laws of this Kingdom to interpose my conjecture concerning this word Alibi or elsewhere for where there is ambiguity there is room for conjecture I have the ground of what I have to say from Dr Cosen Apol. p. 1. cap. 18. It was in the sixteenth year of King Richard the second that this Statute was Enacted that was in the year of our Lord One thousand three hundred ninety and three at which time and for some time after the Schism about creating of Popes which is reckoned and so called the Twenty ninth Schism Isaacksons Cronolog p. 353. was very rife and hot in agitation Boniface the Ninth was at Rome and Clement called the Seventh made by the French Cardinals was at Avignion in France here was at the same time as had been before two Popes actually exercising Papal Jurisdiction both making Cardinals and both striving to extend their power and authority so far that other Kingdoms as well as the places where they were resident might be under the influence thereof Now so it was that this Statute of Praemunire being intended for the utter exclusion of all Forreign Authority it might be judged necessary to cut off all intercourse betwixt the Kings Subjects and the Popes Consistory whether at Rome or elsewhere and that Processes and other judicial Writs as well dated from Avignion or any other place as from Rome might make the purchasers and pursuers of them liable to the penalties intended by that Statute But there is something further alledged here That although the Ecclesiastical Courts as now established are not in the general intent included within this Statute yet then surely they are when causes belonging to the Temporal Courts are by Ecclesiastical Judges retained and proceeded in I know it passes as a very current Opinion among many That for an Ecclesiastical Judge to deal in any cause not belonging to his Jurisdiction is Praemunire Great is the Authority that bears up this Opinion and for the greatness sake of the Authority many are the Adherers to it In my Lord chief Baron Boltons Justice of the Peace cap. praemunire There is first a recital of the several Statutes concurring in and concerning this crime then follows certain Book cases or resolutions as his Lordship expresses it added for the better explanation of those Statutes One of the said cases is to this effect viz. the 21. Note that the words of the Statute are in Curia Romana vel alibi which is intended in Curia Episcopi And therefore if a man be Excommunicated or profecuted in the Spiritual Court for a thing which appertains to the common Law he that prosecutes such a Suit is in case of praemunire for this there is alledged in the margent 5 Ed. 4. fo 6. Before I was stopped with what is thus set down and what I find affirmed by others to the same effect I was ready to say That it must be a very forc't streining of that Statute that will be able to wring such a sense out of it But who am I that I should oppose my obscure meaness to the authority of so great a person May I have fair leave therefore to offer only a few things to be considered of touching this matter in behalf of the Ecclesiastical Jurisdiction and the Judges belonging to the same And first whereas it is said that by the word alibi in the Statute is intended Curia Episcopi I refer the Reader to what has been before spoken of this particular thing and further I may now seasonably notifie one thing observable in the very Statute it self that may lead us by a more certain hand to perceive what this word alibi has a reference to and what it has not For whereas in the aforesaid Statute of
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