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
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
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
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
Jurisdictions of Courts disputed and to see the event which Court is like to prevail above the other and the other evil that does arise is this That Plea's are turned from Court to Court in an endless circular motion as upon Ixions wheel and this was the reason why I found just fault with that multitude of prohibitions And then having given a notable instance relating to what He had before spoken of in the concern of Ecclesiastical causes and their being turn'd off and tossed from Court to Court He gives this direction to the Judges Therefore the only way to avoid this is for you to keep your own bounds and nourish not the people in contempt of other Courts but teach them Reverence to Courts in your publick Speeches both in your Benches and in your Circuits Such was the rare providence of that wise King to keep up the Esteem of the Ecclesiastical Courts and with fair countenance and good encouragement to cherish the Professors of the Ecclesiastical Laws for the Ecclesiastical Laws are such that as Himself is pleased to testifie in another place of the same Speech in many cases cannot be wanting in his Kingdom Not permitting any encroachments to be made thereon much less that the Professors and Judges thereof should be terrified at every turn and awed with the heaviest poenal inflictions upon the least irregular motion and undue proceeding especially since other milder yet as effectual means are provided to rectifie such irregularities and reduce them to the right course again For the wisdom of our Princes has by express provision of Law so well ordered both Jurisdictions that as both flow from them so both shall be kept to prevent confusion in either within their proper bounds and therefore if the Ecclesiastical Judge intermeddles with any thing that appertains not to his Jurisdiction the same Royal Hand that gave forth other things to him restrains him in that And thus by Writs of Prohibition the Ecclesiastical Judge is stopped from proceeding in that which is reserved for another Tribunal And if it were not thus to what end would Prohibitions serve wherefore were they invented why should so solemn a proceeding be before they are granted why so long debating and consulting before they cease and lose their force Lastly why not laid aside as superfluous and needless things after Praemunire was established In the third year of King James certain Articles of Complaint were Exhibited by Archbishop Bancroft before the Kings Majesty and His most Honourable Privy Council touching Abuses in granting Prohibitions The matter mainly canvassed betwixt the Judges of both Jurisdictions was touching the right stating and setling the reasons and grounds of granting Prohibitions All along which contest there is not any the least mention made of Prohibitions granted with respect to the persons who were impleaded but only on the Account of the incompetency of the matter or cause which they were impleaded upon whereas it is acknowledged on both sides that where a matter truly appertaining to the Temporal Jurisdiction is brought into Plea before the Ecclesiastical Judge there any further proceeding in the same is and ought to be restrained by the Writ of Prohibition but it is not said at all that the penalty of Praemunire is incurred thereby And here let me entreat the Reader to fix his eye and understanding a little more intensely upon that which now follows In the twenty fifth and last of those Articles it is thus set down * Vid. Sir Ed. Coke second part of the Institutes of the Laws of England p. 617. Whereas for the better preserving of His Majesties two Supreme Jurisdictions before mentioned viz. the Ecclesiastical and the Temporal that the one might not usurp upon the other two means heretofore have been of ancient time ordained that is to say the censure of Excommunication and the Writ of Prohibition the one to restrain the encroachment of the Temporal Jurisdiction upon the Ecclesiastical the other of the Ecclesiastical upon the Temporal We most humbly desire your Lordships that by your means the Judges may be induced to resolve us why Excommunications may not as freely be put in ure for the preservation of the Jurisdiction Ecclesiastical as Prohibitions are under pretence to defend the Temporal especially against such contentious persons as do uittingly and willingly upon false and frivolous suggestions to the delay of Justice vexation of the Subjects and great scandal of Ecclesiastical Jurisdiction daily procure without fear either of God or meâ— such undue Prohibitions as we have heretofore mentioned At the reading of this Article I was in great expectation what Answer would be given thereto considering that the business of restraining either Jurisdictions encroaching on the other was thus brought to a short and plain issue for so it seems that if either the Ecclesiastical Court encroached on the Temporal or the Temporal Court encroached on the Ecclesiastical the coercive means applyable for the restraint of either were respectively these two viz. the censure of Excommunication and the Writ of Prohibition but Praemunire is not mentioned at all But come we to the Answer it self and therein we find a full and ample concession of all that is set down in the Article and so as it is set down there what the Ecclesiastical Judges had desired to be resolved in is granted to them according to the very stating thereof proposed by them Take the Answer in the very words thereof set down by the same Author The Excommunication cannot be gainfaid neither may the Prohibition he denyed upon surmise made that the matter pursued in the Ecclesiastical Court is of Temporal cognizance but as soon as that shall appear unto us judicially to be false we grant the consultation A thrifty improver of Advantages would find this concession useful to him in making and urging many inferences from thence to serve well his purpose but the intelligent Reader cannot but have his thoughts full of them and I shall therefore forbear the proposing of any only this I say That by what was set down in the Article and by what is declared in the Answer to it there appears plaiâ—ly That Encroachers on the Spiritual Jurisdiction â—re as subject to Excommunication as Encroachers on the Temporal Jurisdiction are subject to Prohibitions That which my present design leads me to is to conclude from hence That since Prohibitions are by Law the means of restraining any Encroachments on the Temporal Jurisdiction therefore Praemunire does not lie in that case And indeed how should it for is not every Ecclesiastical Court the Kings Ecclesiastical Court and the Laws Ecclesiastical are they not the Kings Ecclesiastical Laws And if in execution of these Laws by the Kings Ecclesiastical Judges there should happen any exceeding of due limits in those Courts as who can say of any Court that it never exceeds yet Praemunire cannot lie thereupon for as I may very well apply that which King James said in that Speech of His