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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A61271	Episcopal jurisdiction asserted according to the right constitution thereof, by His Majesties laws, both ecclesiastical and temporal, occasioned by the stating and vindicating of the Bishop of Waterford's case, with the mayor and sheriffs of Waterford / by a diligent enquirer into the reasons and grounds thereof.	Stanhope, Arthur, d. 1685?; Gore, Hugh, 1612 or 13-1691.	1671 (1671)	Wing S5221; ESTC R21281	74,602	136

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 thereof●● 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 secu●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 p●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 Epis●● pa● 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

in foro externo contentioso in such causes as belong thereto so in the exercise and proceedings made in the same he depends upon the King from whom he derives his a thority and right to exercise In all Appeals made to the King in His Chancery He defers to him as habenti Supremam authoritatem Ecclesiasticam being the chief and Supreme Ordinary and acquiesces in his final and ultimate decisions A little before I mentioned a Grant of King William the Conqueror wherein great scope was given to Episcopal Jurisdiction it is now proper to set down what that was and this Historical account we may take thereof By this King an entire Jurisdiction was assigned to the Bishops by themselves wherein they should have cognizance of all matters and causes relating to Religion It seems by the Ancient Saxon Law the Bishops and Sheriffs jointly kept their Courts together at certain set times of the year in the Conquerors time these two Jurisdictions thus concurring were parted asunder Fullers Church History of Britain Book 3. p. 5. from Eadmer who lived in the time of King Henry the first gives some account hereof * Spelman in Glossar v. Hundredum But I shall set down the same in the words of a late and a learned Writer proper to the occasion he was upon Conquestor porro Forum Ecclesiasticum à Laico distinxit Nam cum antea sub Anglo-Saxonibus singulis mensibus Aldermannus seu Praeses unà cum Episcopo jus dixissent in Curia Centenaria quam Hundredum dicimus mandavit Episcopis Archidiaconis ne deinceps jus dicant in Curia Centenaria sed in loco per Episcopum designando ibique judicent secundum Canones Leges Episcopales contumaces contra corum mandata Excommunicationis sententiâ Brachio Regio parere cogantur cum Praecepto Vicecomitibus Praepositis Regiis dato ne aliquem in jus vocent coram se de iis quae ad Forum Episcopalem spectant Dr. Duck de Authoritate Juris Civilis in Regno Angliae lib. 2. cap. 8. p. 2. sect 26. And in the margent of his Book alledges * Apud quem●● See this Charter more amply and fully declared the same being granted and directed to Rhemigius the first B●shop of Lincoln ib. Coke's Instit p. 4. cap. 54. lib. 2. cap. 6. sect 135. Char. 2. Rich. 2. m. 1. By this it appears how early the exercise of Ecclesiastical Jurisdiction by Bishops was on foot in the Kingdom of England and that as it derived it self from the Crown for besides this distinct constituting of an Ecclesiastical Court from the Court of the Tourn even before the separation before spoken of was made yet the Bishops had then the judicial cognizance of Ecclesiastical causes and matters peculiarly reserved to them so it is plainly colligible from the Laws of King Edgar among which this was one Celeberimus autem ex omni Satrapia conventus his quotannis Agitor cui quidem illius Dioceseos Episcopus Aldermannus intersunto quorum alter jura divina alter jura humana populum edoceto Lord Coke on the Statute of Circumspecte Agatis v. Curia Christianitatis I might yet trace Antiquity higher in this point but my reading is too slender and my opportunities too mean that I should think my self able to give a punctual and exact Account thereof Take notice only in brief what the Pen of a learned Writer has set down The British Saxon and Danish Kings did usually with their Clergy or great Council make Ecclesiastical Laws and regulate the external Discipline of the Church within their Dominions Among the Laws of King Edward the Confessor these were two of them one that makes it the office of a King to govern the Church as the Vicar of God another supposes a paramount power in the King over the Ecclesiastical Courts because they were to take cognizance of wrong done in Ecclesiastical Courts Archbishop Bramhall's Vindication of the Church of England c. p. 67. King Edward the Confessor was indeed after the time of King Edgar before mentioned but taking both together and what was done by both thence is shewed that the practice of former Kings was followed by them and that there was an Ecclesiastical Jurisdiction then and before exercised by Bishops which exercise thereof derived from and was regulated by these and other preceding Kings of England That which has been said makes very fair for our purpose and points out to us to take notice of these several observable things 1. That the Exercise of Jurisdiction Ecclesiastical by Bishops in the right constitution thereof in the Kingdom of England had no deperdance on Rome 2. That much of the intermediate practice in this kind degenerated from its first and right institution and until the time of Henry the eighth was a meer usurpation and encreachment on the English Crown 3. That whereas 't is said The Bishops were to judge secundum Canones Leges Episcopales by Canons I understand the Canons of General and Provincial Councils abroad especially the first four General Councils according as was Enacted by the Emperor Justinian Authent collat 9. Novell 131. cap. de Regulis cap. Sancimus igitur And by Leges Episcopales I understand their Home-laws I mean the Ecclesiastical Laws made by the British Saxon and Danish Kings with the Council of their Bishops variety of which may be found by him that will consult Sir Henry Spelman's Councils The body of the Canon Law was not then in being my meaning is it was not so as such The several particulars that the Decrees consist and were made up of were indeed then and long before in being but they were not compiled together till near fourscore years after this●s and that was done by Gratian the Monk in the year as some say for there is much difference in the computation of this time 11 49. Ridley's view c. p. 74. And by Eugenius the third allowed to be read in the Schools * Of Greg. 9. set forth Anno 1230. The Decret in sexto Anno 1297. The Clementines of Clent 5 set forth Anno 1317. And not long after were extant the Extravagan's of John the 22d and other Popes and to be alledged for Law And for the Decretals c. Clementines and Extravagants they came in successively along while after Here by the way is seen the vanity and wildness of some mens fancies that by all means will have Bishops Courts to be of Pop●sh extraction and that both in their Erection and Constitution they receive influence and authority from the Romish Consittory Than which nothing is more untrue in its self and unhist or ical as to the right deducing the primitive Institution hereof not to speak of the Eastern Churches even in the Kingdom of England it self 4. This is also hence observable That the present course commanded and observed by the Bishops in the Exercise of this Ecclesiastical Jurisdiction suits nearly with

and attendants But there is something further objected and that supposed to be more forcible by a late Author who has put himself to the expence of a great deal of labour and industry in searching out of some presidents and as he conceives warrantable Authorities whereby to evince the limiting and binding up of Episcopal Jurisdiction in respect of persons vested with secular power and command namely that such persons are by peculiar and that Regal exemption freed from all coercive authority thereof Among other things produced by him I pitch especially on two which appear to have the greatest stress laid upon them The one is an ancient Record in the time of King Henry the third of this Tenor. The Provest of Bourdeaux had been Excommunicated by the Archbishop of Bourdeaux without the Kings Licence whereupon King Henry writes to that Archbishop and sharply expostulates with him That he had Excommunicated His Provost without his Licence and commands him forthwith to absolve him Upon the like account saith the same Author King Edward the First Claus 8. Ed. 1. Dors 6. and Claus 31. Ed. 1. Dors 11. issued out Writs to his Bishops commanding them not to Excommunicate his Bayliffs and Officers and absolve them if Excommunicated without his previous Licence and Order Mr. Pryn's Animadversions c. on the fourth part of Sir Ed. Coke's Instit p. 404. At a distant view of these instances produced they may seem to have a goodly appearance and to serve well the end intended in their production but come we to a nearer inspection and more narrow examination thereof and they will be found weak and useless for any such purpose Let it be granted that by Bayliffs are understood Sheriffs and other Officers in secular Authority such as have the Government in Corporations as Mayors Portrives * Glossar added to that Edition of Mat. Paris printed at London 1640. c. Yet I make no doubt to affirm that still the former Assertion stands firm and unshaken To make good this a little recourse must be had to other Historical occurrences in the Reigns of these two Kings Henry the third and his son and successor Edward 1. For these will give us the best light and guidance to discover the grounds wherefore and and the matters wherein these prohibitory Writs issued out and the ends aimed at by them It has been said that that Age was the very Crisis of Regal and Papal power in the Kingdom of England then was the sharpest conflict betwixt both and thence forward the Papal power began to dwindle and decline And as a disease makes the sharpest assault upon Nature immediately before it begins to abate so did the Papal power at this time before its declension The exercise of Ecclesiastical Jurisdiction did then de facto derive from and was dependant upon the See of Rome and so it came to pass that the spiritual Court or Court Christian was reputed aliud forum à foro Regio and King Henry the third experienced many attempts made to limit and restrain his Prerogative insomuch as with great insolence his Bishops threatned to Excommunicate Him * Sir Richard Bakers Chronicle the Reign of He● 3d. They were propt up and supported by Papal Authority and after such a daring and confident manner were they inspirited from Rome as to look upon themselves in their actings utterly independent on the Crown and then it was chiefly that by the greatness and prevalency of Boniface Archbishop of Canterbury Uncle to Elianor then Queen of England that many Provincial constitutions were Enacted concerning matters of meer temporal cognizanced and encroachments were daily made on the secular Courts and Excommunications and other censures were thundred out against the Kings Bayliffs and Officers But why only because they opposed them in the execution of such constitutions Hereupon proceeded these prohibitions to the Bishops upon these grounds they were commanded not to censure such Officers and Bayliffs that is for so executing their Offices and discharging their Allegiance and Duty to their Princes Here was no intent to restrain the Bishops in the right exercise of their Jurisdiction touching such matters as truly belonged to it but to keep them from exceeding their own bounds and medling in matters which were not cognizable before them And thus much appears plainly from that clause in the very Record it self set down by this Author in the place before mentioned Si vero Praepositus noster aliquid deliquerit contra dignitatem Ecclesiasticam faciemus cum juri parere postquam delictum fuerit nobis denuntiatum pro quo interim eum abso●vi faciatis So that here is no more than what the ordinary Writs of prohibition do import The King requires to be informed of the true state of that cause his Officers are convented upon so he ●equires to be in the case of any of his other Subjects upon address made to him concerning the same If the matter be found to belong indeed to E●c●esiastical cognizance the parties concerned therein be they in any office or place of power so as belongs to the present case they must be subject thereunto But if the matter do not so belong the King will rescue them thence and shield them with his Regal protection and not suffer an incompetent Court to have any authority over them But see the ill luck that this Author has in alledging this Record for whilst he makes a shew of advancing the Kings Prerogative in one kind he does really depress it in anothers I cannot contain my self from calling upon the Reader and desiring him to observe and then wonder that any one should insist upon this Writ as any way advantagious to the thing he bestirs himself to make good thereby when it is said in the very body of it in relation to the Bishops Non attendentes quod ab ordinariis locorum non possint Excommunicari Ballivi nostri nisi de Excessibus eorum prius fuerit nobis relata querela propter sedis Apostolicae nobis indultum privilegium I wish the Reader would be at the pains to consult the very Record set down by this Author in the place of his Book referred to before And I pray let any one consider this advisedly and then tell me What right does that man to the Crown of England that whil'st he appears mightily busied in asserting the Supremacy thereof will yet make it dependant on Papal Authority Is it come to this That the King of England must ask leave of the Pope to put any restraint upon his own Bishops The production of this Record makes better to gratifie the Papists than to prove the thing it is produced for though in truth neither the one nor the other gets any real advantage hereby Historians observe many miscarriages in this Kings Government during his long Reign of fifty and six years among which this application which he made to Rome was not the least The most knowing of his Subjects were much

I say it is not For I will not be positive in what I am about to write but referring my self to better judgments I freely submit to their decisions herein This I propose then That all matters of contract arising from or upon causes originally of Spiritual cognizance are not exc●●ded from the Ecclesiastical Tribunal I put this case not much differing from that which we have before us Titius a parishioner of Dale with leave of the Parson and rest of the parishioners builds up an Isle or Out chappel adjoyning to the Parish Church of Dale and intends to reserve the same to himself and relations for the use of a burying place and undertakes to keep this Out-chappel from time to time in sufficient good and decent repair Notwithstanding this obligation so to do the repair of the same is neglected If the question were put to me before whom and in what Court Titius may be sued and compelled to make good the reparation thereof I should not doubt to answer that Titius may be proceeded against by the Ordinary ex Officio or impleaded by any voluntary Promoter of the Office in causa reparationis Capellae c. The Church wardens may present that neglect and the person guilty of it One Article usually given to present upon is this Whether the Church or Chappel in the Body and Chancel of it be in good repair If it be not through whose defaclt comes it to pass that it is not and this Article is grounded on the 93d Canon of this Church So then as the neglect and default is punishable by the Ordinary the reformation likewise thereof in making good the repair otherwise by contract undertaken for is to be enjoyned by the Ordinary Moreover Pensions out of Churches or any Annual Portion beeoming due from any Colledge Bishoprick Cathedral Church or Deanry to be paid to any Rector Vicar or Curate of a Parish Church if they be detained the same are demandable and to be recovered in the Ecclesiastical Court according to the Statute viz. 34 35 Hen. 8. cap. 19. Now the Right of paying any such Pensions and Annual Portions is grounded on Ancient-contract obliging thereunto In Compositions Real for Tythes made either between the Parson of one and the Parson of another parish for the stating and setling each others right and to prevent litigious impleadings of each other Also compositions made between the Parson and some one or more of his parishioners touching the not paying any Tythes at all but a certain setled and determinate sum in lieu thereof This is usual in this Kingdom for Mills that grind corn to compound for a certain sum to be paid instead of the Toll-tythe Now the Ecclesiastical Judge before whom these compositions are to be alledged may hear and determine thereof Tit. 120. Cler. Prax. Sir Thomas Ridley's View c. part 3. chap. 3. Sect. 6. Cose● Apol. p. 1. ch 10. There is a cause of Ecclesiastical cognizance called Negotium subtractionis Dotis causa nuptiarum promissae The case is thus Titius in consideration of Matrimony to be contracted and solemnized with his Daughter Partia by Sempronius promised Ten pounds to Sempronius The Matrimeny being solemnized and Titius not paying the promised sum Sempronius impleads him before the Ecclesiastical Judge for the same Titius sues out a prohibition Notwithstanding which Sempronius obtains a consultation wherein is affirmed That the Court Ecclefiastical may proceed therein This you may find reported by Dr. Cosen Apol. p. 1. pag. 26. And the several Opinions of Common Lawyers concurring therein More instances might be given of this kind to evince That all contracts arising from matters which are in their Original of Spiritual cognizance are not excluded from the Ecclesiastical Tribunal observe what is further said Although promises and contracts of Money are generally pleadable in the Courts of the common Law yet as Bracton writes Causae de rebus promissis ob causam Matrimonii in foro Ecclesiastico terminari debent quia cujus juris jurisdictionis est principale ejusdem erit accessorium And in another place he gives a reason for the same quia semper videndum propter quid aliquid sit aut permittatur Zouch Jurisdiction of the Admiralty p. 64. I do not affirm an absolute parity between these cases and that which is before us I refer'd my self before and do now still submit what is said to the judicious decisions of others But this is yet upon the supposal that what is objected was really so as is objected the contrary to which is most clear for as touching what relates to this Vindication there is no need at all to strain any doubtful or disputable case to make it favour the matter in hand for the contract here pretended was not insisted upon so as to make a foundation of any jurisdictive proceeding in the Ecclesiastical Court thereupon 'T is true the contract gave occasion to the Bishop to call upon and admonish the Mayor and Sheriffs of Waterford to look after what belonged to their duty to be done They being thus stirred up make rates levy and collect Money from the several Inhabitants for this end of repairing the Body of the Cathedral c. They receive the voluntary contributions for the Bells The Money thus levied collected and received is little disposed of for the uses intended The Church remains unrepaired the other works are neglected now what was regularly and legally to be done in this case was regularly and legally entred upon the work of reparation it self the accounting for Money levied raised contributed and received for that purpose and other matters relating to the Church are the grounds of this proceeding as by the several Acts of Court remaining in the Registry of Waterford may more fully appear Now that these are justisiable grounds whereon legally to found an Ecclesiastical proceeding comes to be made good which I shall do by laying down and proving these three Assertions 1. The rendring an accompt of Moneys given and received for pious causes and the right disposing thereof belongs to the Bishop within his own Diocess to call for and see performed 2. Reparations of Churches with all the incidents thereunto both by Temporal and Spiritual Law appertain to Ecclesiastical cognizance 3. The penalty of Praemunire will not be incurr'd by any Ecclesiastical Judge for making such proceedings 1. The rendring an accompt of Moneys given and received for pious causes and the right disposing thereof belongs to the Bishop within his own Diocess to call for and see performed Pious causes are set down in the Law to be of many and various kinds and to enjoy many and various priviledges for the many and various kinds of them see Leg. illud Leg. Sancimus Cod. de Sacro-sanctis Ecclesiis and Lindwood in cap. it a quorundam ad Verb. pias causas de Testamentis lib. 3. Provincial Constitut Among which these especially fall under our disquisition namely Legacies or other Donations