in foro externo contentioso in such causes as belong thereto so in the exercise and proceedings made in the same he depends upon the King from whom he derives his a thority and right to exercise In all Appeals made to the King in His Chancery He defers to him as habenti Supremam authoritatem Ecclesiasticam being the chief and Supreme Ordinary and acquiesces in his final and ultimate decisions A little before I mentioned a Grant of King William the Conqueror wherein great scope was given to Episcopal Jurisdiction it is now proper to set down what that was and this Historical account we may take thereof By this King an entire Jurisdiction was assigned to the Bishops by themselves wherein they should have cognizance of all matters and causes relating to Religion It seems by the Ancient Saxon Law the Bishops and Sheriffs jointly kept their Courts together at certain set times of the year in the Conquerors time these two Jurisdictions thus concurring were parted asunder Fullers Church History of Britain Book 3. p. 5. from Eadmer who lived in the time of King Henry the first gives some account hereof * Spelman in Glossar v. Hundredum But I shall set down the same in the words of a late and a learned Writer proper to the occasion he was upon Conquestor porro Forum Ecclesiasticum à Laico distinxit Nam cum antea sub Anglo-Saxonibus singulis mensibus Aldermannus seu Praeses unà cum Episcopo jus dixissent in Curia Centenaria quam Hundredum dicimus mandavit Episcopis Archidiaconis ne deinceps jus dicant in Curia Centenaria sed in loco per Episcopum designando ibique judicent secundum Canones Leges Episcopales contumaces contra corum mandata Excommunicationis sententiâ Brachio Regio parere cogantur cum Praecepto Vicecomitibus Praepositis Regiis dato ne aliquem in jus vocent coram se de iis quae ad Forum Episcopalem spectant Dr. Duck de Authoritate Juris Civilis in Regno Angliae lib. 2. cap. 8. p. 2. sect 26. And in the margent of his Book alledges * Apud quemâ—â— See this Charter more amply and fully declared the same being granted and directed to Rhemigius the first Bâ—shop of Lincoln ib. Coke's Instit p. 4. cap. 54. lib. 2. cap. 6. sect 135. Char. 2. Rich. 2. m. 1. By this it appears how early the exercise of Ecclesiastical Jurisdiction by Bishops was on foot in the Kingdom of England and that as it derived it self from the Crown for besides this distinct constituting of an Ecclesiastical Court from the Court of the Tourn even before the separation before spoken of was made yet the Bishops had then the judicial cognizance of Ecclesiastical causes and matters peculiarly reserved to them so it is plainly colligible from the Laws of King Edgar among which this was one Celeberimus autem ex omni Satrapia conventus his quotannis Agitor cui quidem illius Dioceseos Episcopus Aldermannus intersunto quorum alter jura divina alter jura humana populum edoceto Lord Coke on the Statute of Circumspecte Agatis v. Curia Christianitatis I might yet trace Antiquity higher in this point but my reading is too slender and my opportunities too mean that I should think my self able to give a punctual and exact Account thereof Take notice only in brief what the Pen of a learned Writer has set down The British Saxon and Danish Kings did usually with their Clergy or great Council make Ecclesiastical Laws and regulate the external Discipline of the Church within their Dominions Among the Laws of King Edward the Confessor these were two of them one that makes it the office of a King to govern the Church as the Vicar of God another supposes a paramount power in the King over the Ecclesiastical Courts because they were to take cognizance of wrong done in Ecclesiastical Courts Archbishop Bramhall's Vindication of the Church of England c. p. 67. King Edward the Confessor was indeed after the time of King Edgar before mentioned but taking both together and what was done by both thence is shewed that the practice of former Kings was followed by them and that there was an Ecclesiastical Jurisdiction then and before exercised by Bishops which exercise thereof derived from and was regulated by these and other preceding Kings of England That which has been said makes very fair for our purpose and points out to us to take notice of these several observable things 1. That the Exercise of Jurisdiction Ecclesiastical by Bishops in the right constitution thereof in the Kingdom of England had no deperdance on Rome 2. That much of the intermediate practice in this kind degenerated from its first and right institution and until the time of Henry the eighth was a meer usurpation and encreachment on the English Crown 3. That whereas 't is said The Bishops were to judge secundum Canones Leges Episcopales by Canons I understand the Canons of General and Provincial Councils abroad especially the first four General Councils according as was Enacted by the Emperor Justinian Authent collat 9. Novell 131. cap. de Regulis cap. Sancimus igitur And by Leges Episcopales I understand their Home-laws I mean the Ecclesiastical Laws made by the British Saxon and Danish Kings with the Council of their Bishops variety of which may be found by him that will consult Sir Henry Spelman's Councils The body of the Canon Law was not then in being my meaning is it was not so as such The several particulars that the Decrees consist and were made up of were indeed then and long before in being but they were not compiled together till near fourscore years after thisâ—s and that was done by Gratian the Monk in the year as some say for there is much difference in the computation of this time 11 49. Ridley's view c. p. 74. And by Eugenius the third allowed to be read in the Schools * Of Greg. 9. set forth Anno 1230. The Decret in sexto Anno 1297. The Clementines of Clent 5 set forth Anno 1317. And not long after were extant the Extravagan's of John the 22d and other Popes and to be alledged for Law And for the Decretals c. Clementines and Extravagants they came in successively along while after Here by the way is seen the vanity and wildness of some mens fancies that by all means will have Bishops Courts to be of Popâ—sh extraction and that both in their Erection and Constitution they receive influence and authority from the Romish Consittory Than which nothing is more untrue in its self and unhist or ical as to the right deducing the primitive Institution hereof not to speak of the Eastern Churches even in the Kingdom of England it self 4. This is also hence observable That the present course commanded and observed by the Bishops in the Exercise of this Ecclesiastical Jurisdiction suits nearly with
these men did That a Bishop the Kings principal Ecclesiastical Judge within his own Diocess has put the Inhabitants of a City into very much disorder by such arbitrary and unheard of manner of proceedings when all the disorder proceeded from themselves and no other but legal proceedings have been used herein this comes very near the saying That they are wronged in spight of any thing that can be said against it and that if they to whom they make their Application will not believe and redress them as they would have it themselves they will venture to speak as hardly of them too They will commit faults and then complain and be pettish and froward if they be not stroak't and soothed up in their complaints He that charges any in subordinate power with arbitrariness of proceedings and may escape so will at the next turn charge as bad upon those that are in superiour Authority if he have but any matter of concern then at stake and may think to be secure when he does so This begins in the Ecclesiastical Courts but will it end there it's to be feared it will not Success impunity and hopes of being countenanced therein will embolden such men to go further even to pronounce the like upon all judiciary proceedings in Civil Courts where their persons or interests are concerned and where they may be heard with freedom and safety of popular approbation it might pass for a pretty smooth contrivance for a Criminal to avoid the force of a judiciary sentence by first traducing it and to get free from the Obligation of submitting to what is decreed by affirming confidently and standing to it That the proceedings were illegal and therefore not to be obeyed If this would serve the turn who would be such a Fool as ever to be guilty or so careless of his own ease as ever to undergo any punishment But 't is worth the wonder of a sober man to think that any one should shew himself and believe others ought to think him serious herein But in truth what has preceded so much out-does this that all our wonder may be well spent upon it That men called to answer in Law should question the known and approved course and proceedings thereof carries something extraordinary with it but here is much more That they themselves should against Law so plainly fore-judge their own cause and their own persons as to exempt both from what and to confine them to what Jurisdiction they themselves best liked of The Enquiry into the absurdity unreasonableness and ill consequences of which and the evincing the Right of Episcopal Jurisdiction in the case in hand against any such illegal pretensions and attempts The putting a new mound about that ancient and established Jurisdiction which every pragmatical pettish and conceited Novelist is now seeking either by detraction in his speech or other crafty Machinations in his practice first to retrench a little and by and by utterly to abolish has hitherto employed my Thoughts and my Pen. In prosecution of which design it is now no more than time I should tell the Reader so much I have promiscuously made use of English Statutes since the time of King Henry the seventh and some memorable passages of Ecclesiastical Jurisdiction done in England as well as what peculiarly relates to this Kingdom And I cannot altogether deny but that I have done this for the Nonce for setting aside some particular Statutes relating to the peculiar state and condition of this Kingdom As to Ecclesiastical Jurisdiction we here conform in the practice and exercise of it and in the Rules and Laws it is exercised by to the same that are used in England If I be blamed for this I protect my self with what a Learned person has collected from Sir John Davys Reports in Case de commendam Ex quibus constat Hibernos sese accomodare non ad jura Anglicana tantum sed ad Leges Caesareas etiam jus Canonicum quatenus ea inter Leges Anglicanas admittuntur Dr. Duck de Authoritate Juris Civilis in Regno Hiberniae Sect 8. To whom I may add the Authority of that greatly Learned Prelate Primate Vsher for to this Chapter of the said Book as he did to all the rest he gave his particular Attestation under his own hand I mentioned at first two ends which I proposed to my self in this undertaking these I have had all along in my eye The one was that by the best reason I had and was able to improve and by the best authority I could find and was able to prâ—duce I might justifie the Right and in the present case the right proceedings of Ecclesiastical Jurisdiction and so give my self a true satisfaction therein The other end is to give a satisfaction to others also for what concerns my self I have sufficiently attained it for what concerns others I have at least endeavoured to do something in Order thereto FINIS Some mistakings or omissions in Pointing the intelligent Reader may easily observe and correct And that he may please to do the like in such Lapses as are either Literal or tend to vitiate the Sense they are here in one view set down before him ERRATA PAge 17 line 7 for Jurisdictions read Jurisdiction ibid. line 8 for cognizances read cognizance page 24 margent line 2 for Statutis read Statute page 25 line 29 for in read is ibid. line 32 for paenes read penes ibid. line 34 for sine read five page 26 line 4 for vir read viz. ibid. line 8 for tali read rati ibid. line 27 for sanctis read sanctio page 29 margent Sect. 2 for amplytude read amplitude page 30 margent line 32 for without read without page 32 line 16 instead of propper cause read a proper cause page 34 line 13 for Clerii read Cleri page 41 line 20 for Regie read Regiae ibid. line 32 for Prerogativa read Praerogativa page 44 line 34 for King read King page 56 line 26 for beee read been page 68 line 15 for cognizanced read cognizance page 73 line 12 for powers read power page 82 line 4 for has read had page 103 line 26 for diversi read diversae FINIS
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
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
of Fifty years of King Edward the Third the great Charter was several times confirmed The liberties priviledges and franchises of the Clergie were new ratified in the fourteenth and five and twentieth years of His Reign And so in the first sixth and eighth and twelfth years of Richard the second In the first second and fourth years of Henry the fourth It was enacted That the Lords Spiritual as well as Temporal should have and enjoy all their Rights and Liberties I grant indeed that in the Reign of two of these preceding Kings viz Edward the third and Richard the second that the two statutes of Proviso's and Praemunire were made But he that shall duly observe the end wherefore and the matter wherein and the persons against whom these statutes were made will not be able to find that any abridgment but rather a firmer settlement of Episcopal jurisdiction in the right Constitution of it was intended and came thereby That which was mainly aimed at and provided against in these statutes was to repress the encroachments of the Pope of Rome even upon the Bishops legal jurisdiction it self The Pope by His Emissaries in England from time to time drained the Kingdom of its Wealth He invaded the Kings Soveraign Rights by Mandates De providendo and expectative Graces granted of Ecclesiastical livings before the Incumbents were dead And besides He boldly intrenched on the Kings Temporal Courts many such unreasonable greivances there were which both King and People felt the load of and which to make them the heavier were fetch as far as Rome to be put upon them But all this while here are no exemptions to any particular persons or civil Officers to free them from Ecclesiastical jurisdiction where it proceeded in due manner and was exercised in matters properly cognizable by it That which must have the note of remark put upon it is this Provision is here made under severe penalties against acting by a derived power from and in an Usurped jurisdiction under the See of Rome This no English Bishop might do then This no Bishop in England or Ireland might or does or may do now One Act of Parliament will best serve to give light to another Now the statute 25 Hen. 8. cap. 21 affirms expresly that the statute of provision and praemunire of the 16th Richard secundi was made against such as sue to the Court of Rome against the Kings Crown and Dignity so that Episcopal jurisdiction in each respective Diocess and in matters of Ecclesiastical cognizance is so far from being impaired by these statutes that in truth it is more firmly fixed and corroborated thereby All these things were before the Reformation in England towards the dawning of which we meet with a noted statute in the 23th year of King Henry 8. cap. 9. designed as is conceived to restrain the Exorbitances used in summoning people out of the Diocess wherein they inhabit without leave of their Ordinaries which thing as it tended to the great vexation of the persons so cited it also aimed at the very encroaching on the several Ordinaries Rights on pretence of some legantine power or Nuncio's Court or other extraordinary cause In the preamble of which Statute it is affirmed That all persons of any quality or condition may be cited before their Ordinaries so it be in proper cause and due Order The body of that statute provideth that no citation be made out of the Diocess where the party dwelleth but where some spiritual offence or cause is committed or done So that a contrario sensu sayes the learned and judicious Dr. Cosen Apol. p. 67. in any offence or cause spiritual any Subject may be cited within his or her Diocess And in some peculiar causes there mentioned and recited they may be cited out of their Diocess Now the power of citing presupposes a full jurisdiction that is a power to proceed further thereupon in all due requisits and forms that belong to any cause whether it be upon instance or of matter of correction Since the Reformation that all jurisdiction Ecclesiastical is de facto as it was alwayes de jure united to and so derived from the Imperial Crown of England there is by the statute of the first of Queen Elizabeth cap. 1. Full power and authority given to the Ecclesiastical Judges for the Executing of Ecclesiastical jurisdiction as before time See also a statute made in Ireland in the 28. year of King Henry the 8. called an Act against the Authority of the Bishop of Rome towards the latter end thereof Provided that notwithstanding this Act or any other Act made for the taking away of the said Bishop of Romes Vsurped power Authority Preheminence Jurisdiction or any other thing or things in the same comprised That all and every Archbishop Bishop Arch-Deacon Commissary and Official and every of them shall and may use and exercise in the name of the King only Vid. infra p. 53. all such Canons Constitutions Ordinances and Synodals provincial being already made for the direction and order of Spiritual and Ecclesiastical causes which be not contrariant nor repugnant to the Kings Lawes statutes and customs of this Land nor to the Damage and Hurt of the Kings Prerogative Royal in such manner and form as they were used and Executed before the making of this Act till such time as the Kings Highness shall order and determine according to his Lawes of England and such order and determination as shall be requisite for the same and the same to be certified hither under the Kings Great Seal or otherwise ordered by Parliament And while I am thus enumerating the several statutes which the former position is not contrariant to but rather strengthned by I must not omit the making mention of those statutes and Acts of Parliament that are set out and published meerly upon Ecclesiastical causes and matters which are reckoned by some as those that enter into and make up the body of the Kings Ecclesiastical Laws Zouch de jure Eccles p. 1. Sec. 1. c. whether these be matters of a civil or criminal Nature matters of civil cognizance are either such as concern Precontracts and other matrimonial causes In Ireland 33 Hen. 8 cap. 6. In England 32 Hen. 8. c. 38. 1 and 2 Edward 6. c. 23. 1 Elizab. 1. oâ— such as concern Testamentary matters 21 Hen. 8. cap. 5. In this Kingdom 28 Hen. 8. cap. 18. Also matters of Tythes and the pursuits and impleadings thereup on Heâ—â— 33 Hen. 8. c. 12. In England to the two Statutes mentioned before called circumspecte Agatis and Articuli Cleris These may be added viz. 1 Richard 2. c. 14.27 and 28 Hen. 8. c. 20. 32 Hen. 8. c. 7. 2 Edward 6. cap. 13. Concerning all which all persons without distinction of place or office who are concerned in any of these causes they are subject to Episcopal jurisdiction to which the same causes do appertain and by which they are managed And for matters
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 Heâ— 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 absoâ—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 â—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 Eâ—câ—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