f. 97. a 134. a. 344. a. Co. 2. Inst. f. 3. Stat. 25. E. 1. Carlisle that all Arch-Bishops and Bishops of England have been founded by the Kings of England and therefore it hath been declared in Parliament that the Holy Church of England was founded in the State of Prelacy within this Realm by the King and his Progenitors But here then may be queried who were the first Founders of the Bishopricks in Wales It is answered 10. H 4.6 b. Co. Litt. 97. â—â—o 2. Inst. f. 195. On the Stat. of West 1. c. 17. That the Bishopricks in Wales were founded by the Princes of Wales and the Principality of Wales was holden of the King of England as of his Crown and when the Prince of Wales committed Treason Rebellion c. the Principality was forfeited and the Patronages of the Bishops annexed to the Crown of England So as the King is to have Pensions for his Chaplains and Corodies for his Vadelers of them as of Bishops founded by himself 2. To whom the Custody of the Spiritualties and Temporalties of Bishops do appertain Sede Vacante Co. 2. Inst 15. West 1. c 21. Magna Charta 5. Prerog Regis c. 14. Rolls Abr. 2. p. f. 223. THe Custody of the Temporalties of every Arch-Bishop and Bishop says Coke within the Realm and of such Abbies and Priories as were of the King's Foundation after the same became void belonged to the King during the Vacation thereof by his Prerogative For as the Spiritualties belonged during that time to the Dean and Chapter de Communi Jure or to some other Ecclesiastical Person by Prescription or Composition so the Temporalties came to the King as Founder And this doth belong to the King being Patronus Protector Ecclesiae in so high a Prerogative incident to his Crown as no Subject can claim the Temporalties of an Arch-Bishop or Bishop when they fall by Grant or Prescription 3. How Bishops were and how now made IT is apparented by our Books of Law and History Co. Lit. f. 134. a. 344. a. Co. Lib. 3 Dean and Chapt. of Norwich 's case Rolls Rep. 2. part f. 102. Davy's Rep. f. 46. a. de Capitulariter congregatis that at the first all the Bishopricks in England were Donative per Traditionem Baculi i. e. the Crosier which was the Pastoral Staff and Annuli the Ring whereby he was married to the Church King Henry the first being requested by the Bishop of Rome to make them elective refused it But King John by his Charter bearing Date Quinto Junti Anno Decimo Septimo granted that the Bishopricks should be Eligible which afterwards was confirmed by divers Acts of Parliament And afterward the manner and order as well of Election of Arch-Bishops and Bishops as for the Confirmation of the Election and Consecration is enacted and expressed in the Statute of the Twenty fifth of Henry the Eighth But by the Statute of the thirty first of Henry the Eighth and the first of Edward the Sixth they were made Donative by the King's Letters Patents Both which Statutes are repealed and the Statute of the twenty fifth of Henry the Eighth doth yet remain in full force and effect 4. Their Jurisdiction what and whence derived AS to the Jurisdiction and Authority that appertains to Bishops are considerable two Particulars 1. Whence this Jurisdiction is derived 2. The Extent and Subject Matters of this Jurisdiction 1. Whence derived The King of England is and of Right always was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his Dominions And this is evident our by Books The Right Reverend Prelate Matthew Parker Arch-Bishop of Canterbury a man very expert in matters of Antiquity affirms in his Book set forth in Latin Anno Domini Co. lib. 9. Hensloes Case 1573. Quod Rex Angliae olim erat Conciliorum Ecclesiasticorum praeses vindex temeritatis Romanae Propugnator Religionis nec ullam babebant Episcopi Authoritatem praeter eam quam a Rege acceptam referebant Jus testamenti probandi non habebant Administrationis potestatem cuique delegare non poterant It was resolved in the Tryal touching Legitimation Davy's Reports f. 51. b. 52. a. and Bastardy that although all Matrimonial Causes have been a long time determinable in the Ecclesiastical Courts and are now properly within the Jurisdiction and Cognisance of the Clergy Vide Davy's Reports Le Case de Premunire 97. b. 98. a. Yet Ab Initio non fuit sic For as well Causes of Matrimony as Causes Testamentary were Civil Causes and apertained to the Jurisdiction of the Civil Magistrate as it is well known to all Civilians until the Christian Emperors and Kings for the honouring of Prelates of the Clergy have granted or allowed to them the Cognizance and Jurisdiction in those Cases And therefore the Kings of England although they have allowed the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertained to their Cognizance yet by the Rules of the Common Law he hath a Superintendency upon their proceeding with power of Direction when and how they shall proceed and of Restraint and Correction if they proceed not duely and orderly in many Cases as it is manifested by the Writs of several natures directed to the Bishops whereby the King commands them to certifie Bastardy Excommunication Profession Accouplement in Loyal Matrimony Of Admitting Clerks De Cautione Admittenda c. And also by Writs of Prohibition Consultation and Attachments for Prohibition 2. What is their Jurisdiction For the deciding of Controversies says Sir Edward Coke and distribution of Justice there be two distinct Jurisdictions The one Secular and General for that it is guided by the common and general Law of the Realm Co. Lit. f. 96. a. The other Ecclesiastical limited to certain spiritual and particular Cases and the Court wherein the Causes are handled is called Forum Ecclesiasticum in which the Bishops are Judges and immediate Officers to the King's Courts of Justice in Causes Ecclesiastical Now the Spiritual or Ecclesiastical Causes accarding to the usage and custom of England are Blasphemy Apostacy from Christianity Heresies Schisms Holy Orders Admissions Institution of Clerks Celebration of Divine Service Rights of Matrimony Divorces General Bastardy Subtraction and Right of Tithes Oblations Obventions Dilapidations Excommunication Reparation of Churches Probate of Testaments Administrations and Accounts upon the same Symony Incest Fornications Adulteries Sollicitation of Chastity Pensions Procurations Appeals in Ecclesiastical Cases Commutation of Penance All which are determined by Ecclesiastical Judges That the Reader may the better know the Extent and Latitude of the Episcopal Jurisdiction and Authority let him take with him these Rules that I have met withal in our Books 1. Rule That where the Right is Spiritual Co. Lit. 96 a. and the Remedy therefore only by the Ecclesiastical Law the Cognisance thereof doth appertain to the
do Which later Branch doth extend to all Process and Proceedings in Ecclesiastical Courts and that the same shall be in such sort as the same were before the Act of 25. H. 8. and before that Act the Name Style and Seal of their Process c. were as now they be And the said Act of 1. Eliz. reviving the Act of 25. H. 8. doth impliedly repeal the Act of 1. E. 6. which had repealed the 25. H. 8. in both the said points For as by repealing of a Repeal the first Act is revived so by reviving of an Act repealed the Act of Repeal is made of no force 8. The Bishops with what Council assisted Every Bishop is assisted with a Council For Co. Lib. 3. Le cafe del Dean Chapiter f. 75. a. seeing it was impossible that the Church of God should continue without Sects and Heresies it was in Christian Policy thought necessary that every Bishop should be assisted with a Council and with a Chapter and that for two Reasons 1. To consult with them in matters of difficulty and to assist the Bishop in deciding of Controversies in point of Religion And to this purpose every Bishop hath a Chair 2. To consent to every grant the Bishop shall make to bind his Successors for the Law did not judge it reasonable to repose such Confidence in him alone At first all the Possessions were to the Bishop after a certain Portion was assigned to the Chapter therefore the Chapter was before they had any Possessions And of Common Right the Bishop is Patron of all the Prebends because their Possessions were derived from him So that so long as the Bishoprick continues the Dean and Chapter being his Counsel remains though they have no Possessions as at first they were when the Bishoprick consisted all of Spiritualty Of their Dominion and Property HEretofore Bishops with the Confirmation of the Dean and Chapter Co. Litt. 44. a. might have made Leases for Lives or Years without Limitation or Stint And so might they have made Gifts in Tall and Estates in Fee at their Will and Pleasure Whereupon not only great decay of Divine Service but Dilapidations and other Inconveniences ensued and they were disabled and restrained by several Acts of Parliament to make any Estate or Conveyance to the King at all or to the Subject but there is excepted out of the Restraint or Disability Leases for three Lives or twenty one Years with Reservation of Rent and with other Provisions and Limitations To be short as the Bishops cannot utterly divest themselves of their Lands and Revenues so ought not their Rights to be liable to the Sacrilegious Rapine of others for Quod datum est Ecclesiae Deo datum est Which sacred Maxim the Roal Martyr very well understood when he used these very words viz. There are ways enough to repair the Breaches of the State without the Ruines of the Church as I would be a Restorer of one so I would not be an Oppressor of the other under the pretence of Publick Debts The Occasions contracting them were bad enough but such a discharging of them would be much worse I pray God neither I nor mine may be accessary to either And indeed well might this most Religious Prince thus pray for without doubt the Sin of Sacrilege is a very horrid Crime Proximum Sacrilegio Crimen est quod Majestatis dicitur Treason is a petty Sin in respect of Sacrilege St. Austin seems to give the Reason Tanto gravius est peccatum quanto committi non potest nisi in Deum Thou that abhorrest Idols committest thou Sacrilege Which words of the Apostle St. Paul are specially to be noted by them that pretend mainly against Superstition and Idolatry yet are hotly set for Sacrilege Further As this Sin of Sacrilege in its own Nature is very abominable so it is dangerous more ways than one 1. To private Men that commit it Make them like a Wheel as Stubble before the Wind fill their faces with shame who said Let us take the Houses of God to our selves in possession Psal 83. 2. To more publick Persons even to the Heads and Principal Members of the Commonwealth the Kings and Princes thereof see Daniel c. 5. concerning Belshazzar Our own Annals tell us of King William Rufus and his Nephew the Son of Robert Duke of Normandy both slain in Hunting in the same Forest that the Conqueror his Father and Grandfather to his Nephew had made and himself had augmented with the utter Ruin of many Chappels Churches and Religious Houses 3. To the Commonwealth it self This Sin in Achan became not a Snare to himself in which he was taken but all Israel was troubled by the sin of that one Achan Joshua c. 7. But after all this it may be demanded of me whether this will take away the nature of sin from the Alienation of Church-Lands that it is done by a National Assembly of the States in Parliament I answer that this will not take from Sacrilege the nature of sin that it is done by a National Assembly giving their Sanction thereunto for the Proceedings and Sanctions of a National Council must be by Rule from God otherwise they become more out of measure sinful than Actions of like Quality in private Men. The Laws of State are not therefore just because enacted by the State but when they agree with the common Rules of Justice that God has bestowed upon the Sons of Men. To conclude To do that by a Law which should be enacted for prevention of Sin and not for Commission is to make it the more sinful Shall the Throne of Iniquity have Fellowship with thee that frameth mischief by a Law 10. What the King hath after the Death of every Bishop IT appeareth by many Records in the Reign of Henry the Third Co. 2. Inst. 491. 1. Co. 4. Inst f. 388. and Edward the Second that by the Law and Custom of England no Bishop could make his Will of his Goods or Chattels coming of his Bishoprick c. without the King's License The Bishops that they might freely make their Wills yielded to give to the King after their Deceases respectively for ever six things 1. Their best Horse or Palfrey with Bridle and Saddle 2. A Cloak with a Cape 3. One Cup with a Cover 4. One Bason and Ewer 5. One Ring of Gold 6. His Kennel of Hounds For these a Writ issueth out of the Exchequer after the Decease of Every Bishop 11. Bishopricks whether Saleable AS In omni re nascitur res quae ipsam rem exterminat Co. 2. Just f. 15. as the Worm in the Wood or the Moth in the Cloth and the like so often times no Profession receives a greater blow than by one of their own Coat For Ranulph an Ecclesiastical Person and King William Rufus his Chaplain was a Factor for the King in making Merchandize of Church-Livings in as much as when any Arch-Bishoprick Bishoprick or Monastery became
it were reason they made her a competent Joynture Thus much for poor Vicars I go on to the third degree of Spiritual Fâ—nctions containing Prebendaries and Caplains 3. Of those who have neither Cure nor Jurisdiction UNder this same Order I set Probendaries and Chaplains 1. Prebendaries Prebend and Prebendary are Terms often used in our Books and they come of the Latine Praebeo Prebend is that Portion which every Member or Canon of a Cathedral Church receiveth in the Right of his Place for his Maintenance And Prebendary is he that hath such a Prebend It is resolved that a Lay-Man may be presented to a Prebend for Co. Lib. 3. Case del Dean Chapter f. 75. Cro. 1. p Bland â— Madox s 79. Non ha bet curam animarum And it is said in our Books that the Bishop is Patron and Ordinary of every Prebend for all the Possessions of Prebends were at the first the Bishops and De mero Jure pertain to the Bishops 2. Chaplains Chaplain is he that performeth Divine Service in a Chappel and therefore is commonly used for him that dependeth upon the King or other Man of worth for the Instruction of him and his Family the Reading of Prayers and preaching in his private House where usually they have a Chappel for that purpose And for that they are retained by Letters under the Seal of their Patron and thereby by Intendment are to be resident with them the Law hath therefore given liberty for their Non Residence upon their Benefices If an Earl or Baron retaineth a Chaplain and before his Advancement be attainted of Treason there the Reteiner is determined And after the Attainder such Chaplain cannot take a second Benefice because he that is attainted is by his Attainder a dead Person in Law The Wife of a Baron during the Coverture cannot retain a Chaplain yet when a Baronness Widdow retaineth one or two according to the Proviso of the Statute of the twenty first of Henry the Eighth c. 13. the Retainer is the Principal matter and as long as the Retainer is in force and the Barronness continueth a Baronness the Chaplains may well take two Benefices by the express Letter of the Statute for it sufficeth if at the time of the Retainer the Baronness were a Widdow And herein this Rule is to be observed of a Woman that attaineth Nobility by Marriage As by Marriage of a Duke Earl or Baron c. For in such case if she afterward marry under the Degree of Nobility by such Marriage with one that is not Noble she loseth her Dignity whereunto she had attained by Marriage And after such latter Marriage the power to retain a Chaplain is determined But otherwise it is where a Woman is Noble by Descent For there her Retainer before or after the Marriage with one that is not Noble shall be in force and is not countermanded by the Marriage nor determined by her taking of a Husband under her Degree Coke lib. 4. fol. 118 119. Acton's Case If a Bishop be translated to an Arch-Bishop or a Baron to be created an Earl c. yet within the Statute of the twenty first of Henry the Eighth they can have but only so many Chaplains as an Arch-Bishop or an Earl might have for although he have divers Dignities yet he is still but one self-same Person to whom the Attendance and Service should be done So if a Baron be made a Knight of the Garter or Lord Warden of the Cinque Ports he shall have but three Chapplains in all Et sic de similibus Thus having given my Reader a brief Account of the Superior and Inferior Clergy I shall conclude my Discourse by shewing some among many of the Privileges and Immunities appertaining to the Ecclesiastical Hierarchy in General The Immunities of the Clergy in General THe Kings of England out of a zeal and desire they had to grace and honour their Learned and Godly Clergy were pleased to confer on them several Immunities such as these following 1. Co. 2. Inst s 3. 4. The Clergy were discharged of Purveyance for their own proper Goods 2. Coke No Demesne or proper Court for the necessary use of any Ecclesiastical Person ought to be taken for the King's Carriage but they are exempted by the antient Law of England from any such Carriage 3. Coke If a Man holdeth Lands or Tenements by reason whereof upon Election to serve in a Temporal Office If this Man be made an Ecclesiastical Person within Holy Orders he ought not to be elected to any such Office And if he be he may have the King 's Writ for his Discharge 4. Co. Lit. f. 70. b. co 2 Inst 4. Ecclesiasticals are not bound to serve in Person at the Wars 5. Coke All Ecclesiastical Persons ought to be quit and discharged of Tolls and Customs Avirage Pontage Paviage and the like for their Ecclesiastical Goods and if they be molested therefore they have a Writ for their Discharge If any Ecclesiastical Person be in fear or doubt that his Goods or Chattels Coke or Beasts or the Goods of his Farmer c. should be taken by the Ministers of the King for the business of the King he may purchase a Protection Cum Clausula Nolumus 7. Distresses shall not be taken by Sheriffs or other of the King's Ministers Coke in the Inheritance of the Church wherewith it was antiently endowed 8. If any Ecclesiastical Person acknowledge a Statute-Merchant Coke or Statute-Staple or a Recognizance in the nature of a Statute-Staple his Body shall not be taken by force of any Process thereupon 9. If a Person be bound in a Recognizance in Chancery Coke or in any other Court and he pay not the Sum at the day by the Common Law if the Person had nothing but Ecclesiastical Goods the Recognizee could not have a Levari facias to the Sheriff to levy the same of these Goods but the Writ ought to be directed to the Bishop of the Diocess to leavy the same of his Ecclesiastical Goods 10. In Action brought against a Person wherein a Capias lieth For example Coke an Account the Sheriff returns Quod Clericus est beneficiatus nullum habens Laicum feodum in which he may be summoned In this case the Plaintiff cannot have a Capias to the Sheriff to take the Body of the Person but he shall have a Writ to the Bishop to cause the Person to come and appear 11. Ecclesiastical Persons are not bound to appear at Tourns Marlb c. 10. or Views of Frank-pledge 12. Co. 2. Inst. f. 29. If any Ecclesiastical Person be amerced though Amerciaments belong to the King yet he shall not be amerced in respect of his Ecclesiastical Promotion or Benefice but in respect of his Lay-Fee 13. He that is within Holy Orders hath this Privilege Co. 2. Inst. 637. that albeit he have had the Privilege of his Clergy for a Felony he
THE CLERGY Vindicated OR THE RIGHTS AND PRIVILEGES That belong to them ASSERTED According to the Laws of England MORE Particularly touching the Sitting of BISHOPS in PARLIAMENT and their making Proxies in Capital Cases LONDON Printed by E. T. and R. H. 1679. THE RIGHTS and PRIVILEGES OF THE CLERGY According to the Laws of England THe Clergy of England or the whole number of those that are De Clero Domini of the Lord's Lot or Share as the Tribe of Levi was in Judea is according to our Law twofold Clerus Major and Clerus Minor the Greater and Lesser Clergy The former doth comprehend the Barons Spiritual or Lords of Parliament that is to say the Arch-Bishops and Bishops The later contains Arch-Deacons Deans Prebends Parsons Vicars and Chaplains Of both these kinds I will treat severally and apart But before I do so I shall give the Reader an Account in general of the Ecclesiastical State of the Church of England as I find it described by Mr. Cambden and Sir Edward Coke Mr. Cambden tells us that England hath two Provinces and accordingly two Arch-Bishops to wit the Arch-Bishop of Canterbury Primate and Metropolitan of all England and the Arch-Bishop of York Under these are twenty five Bishops To the Arch-Bishop of Canterbury are subject twenty two To the Arch-bishop of York the other three Now what Bishopricks these be with the Shires and Diocesses that are at this day under their Jurisdiction follow thus In the Province of Canterbury The Bishoprick of Canterbury together with that of Rochester containeth under it Kent it self The Bishoprick of London hath under it Essex Middlesex and part of Hertfordshire The Bishoprick of Chichester hath belonging to it Sussex The Bishoprick of Winchester compriseth Southamptonshire Surrey and the Isle of Wight Gernsey and also Jersey Islands lying against Normandy The Bishoprick of Salisbury comprehendeth Wiltshire and Berk shire The Bishoprick of Exeter containeth Devonshire and Cornwal The Bishoprick of Bath and Wells joyned together hath under it Somersetshire The Bishoprick of Glocester hath belonging to it Glocestershire To the Bishoprick of Worcester is subject Worcestershire and part of Warwickshire To the Bishoprick of Hereford Hereford and part of Salop or Shropshire The Bishoprick of Coventry and Litchfield joyned together have under it Staffordshire Derbyshire and the other part of Warwickshire as also that part of Shropshire which lieth toward the River Râ—pil Thâ—n the Bishoprick of 〈◊〉 which of all others is the greatest is bounded 〈…〉 Hâ—ntingâ—â—â—shire Bedfordshire Buckinghamshire and the 〈…〉 〈…〉 of Ely pertain Cambâ—â—â—â—â—shire and the Isle of Ely it self 〈…〉 of Norwich is Northâ—â—â—â— and Suâ—â—olk 〈…〉 of Oâ—â—â—â—ord hath under it Oxâ—â—fordshire 〈…〉 of Peterborough comprizeth Northamptonshire and Rutlandshire 〈…〉 the Bishoprick of Bristol is Doâ—setshire 〈…〉 Diocesses in England are to be added those of Wales which are 〈…〉 oâ— their own peculiar Arch-Bishoprick and made also fewer in number seâ—â—◠〈…〉 brought sâ—arce to â—our to wit The Bishoprick of Mâ—nâ—â—a havinâ— the Seat 〈…〉 the Bishoprick of 〈◊〉 the Bishoprick of Baâ—â—â—â— and the Bishoprick of 〈…〉 In the Province of York 〈…〉 of 〈◊〉 comprehendeth Yorkshire it self and Nottinghamshire 〈…〉 containeth 〈◊〉 Richmondshire 〈◊〉 part of Cumberâ—â—â—◠〈…〉 and of â—â—â—â—â—â—shire The Bishoprick of Durham hath Durham it self under it and Northumberland The Bishoprick of Carlâ—sle containeth within it part oâ— Camberland and the County of 〈…〉 〈…〉 there are in England Deanriâ—â— twenty six whereof thirteen were ordained by 〈…〉 in the greatâ—â— Cathâ—â—â—al Churches after the Monks were thrust out Arch-Dâ—aâ—â—â—â—ies sixty Dignities and Probends five hundred forty four Numbred also there 〈◊〉 Parish Churches under Bishopricks nine thousand two hundred eighty four oâ— which three thousand eight hundred forty five be Appropriate Now Appropriate Churches those are called which by the Pope's Authority coming between with consent of the King and the Bishop of the Diocess were upon certain Conditions tyed or Instruments united annexed and incorporated for ever unto Monasteries Bishopricks Colledges and Hospitals endowed with small Lands either for that the said Churches were built within their Lordships and Lands or granted by the Lords of the said Lands Which Churches afterwards when the Abbies and Monasteries were suppressed became Lay Fees to the great dammage of the Church Thus much Mr. Cambden As for Sir Edward Coke he informeth us That the Ecclesiastical State of England is divided into two Provinces or Arch-Bishopâ—icks viz. Of Canterbury and of York The Arch-Bishop of Canterbury is styled Metropolitanus Primas Totius Angliae and the Arch-Bishop of York Primas Angliae Each Arch-Bishop hath within his Province Suffragan Bishops of several Diocesses The Arch-Bishop of Canterbury hath under him within his Province of ancient Foundations viz. Rochester his Principal Chaplain London his Dean Winchester his Chancellor Norwich Lincoln Ely Chichester Salisbury Exeter Bath and Wells Worcester Coventry and Litchfield Hereford Landâ—ff St. Davids Bangor and St. Asaph and four founded by King Henry the Eighth erected out of the Ruins of dissolved Monasteries that is to say Glocester Bristol Peterborough and Oxford The Arch-Bishop of York hath under him four viz. Ths Bishop of the County Palatine of Chester newly erected by Henry the Eighth and annexed by him to the Arch-Bishop of York the County Palatine of Durham Carlisle and the Isle of Man annexed to the Province of York by Henry the Eighth But a greater number this Arch-Bishop had which time hath taken from him Every Diocess is divided into Arch-Deaconries whereof there be sixty And every Arch-Deaconry is divided into Deanries and Deanries again into Parishes Towns and Hamlets Having thus given my Reader an Account how the Ecclesiastical State of England standeth at this day I come to speak of the Clergy according to the division thereof by me before given viz. Into the Greater and Lesser Clergy First Of the Greater or Superior Clergy comprehending the Prelates the Arch-Bishops and Bishops THat the Law of England may be the better understood concerning our Superior Clergy I shall reduce it to these Particularities following which are not unworthy of the Reader 's Observation 1. Who the Founder and Patron of all Bishopricks 2. To whom the Spiritualties and Temporalties of Bishops appertain Sede Vacante 3. How Bishops were anciently made 4. Their Jurisdiction what and whence derived 5. Their Courts 6. By whom only commanded to certifie 7. Bishops Proceedings in Ecclesiastical Courts under the Name Style Seal of the Bishops how warrantable 8. With what Council they are assisted 9. Their Dominion and Property relating to Temporalities 10. What the King hath after every Bishop's death 11. Bishopricks whether Saleable 12. Their Right of Sitting in Parliament 13. Their Right of making Proxies in Cases of Life and Death 14. Statutes where made without them 15. Their Privileges as they are Lords of Parliament 16. Their Precedency 17. Their Excommunications 1. The Founder and Patron of all Bishopricks IT appeareth by our Books Co. Litt.
Ecclesiastical Court 2. When the Right of Tithes shall be tried in the Spiritual Court Co. Lib. 13. f. 17. Case of Modus decimandi and the Spiritual Court hath Jurisdiction thereof that other Courts shall be outed of their Jurisdiction 3. Where the Common or Statute Law Co. Lit. 96. b. giveth Remedy in Foro Seculari whether the matter be Spiritual or Temporal the Cognisance of that Cause belongeth to the King 's Temporal Courts only unless the Jurisdiction of the Ecclesiastical Court be saved or allowed by the Statute to proceed according to the Ecclesiastical Laws 4. Cujus Juris i. e. Jurisdictionis est Principale ejusdem Juris erit Accessorium Co. lib. 13. Collins and Hardinger's Case Co. Lib. 13. Case de Modo decimandi Or Consonans Rationi quod Cognitio Accessarii in Curia Christianitatis sit ubi Cognitio Causa Principalis ad forum Ecclesiasticum noscitur pertinere I will conclude this Section with this Remark The Office of Episcopacy is not from the King but of God The Place Station and Power wherein that Office is exercised is from the King It is the King that gives the Bishoprick It is God that makes the Bishop A Soveraign Prince claims not the Power of ordaining a Pastor in the Church On the other side Who but Princes can take upon them to have power to erect and dispose of Episcopal Seas within their own Dominions 5. Their Courts THe Courts wherein the Bishops exercise their Jurisdiction in Matters Spiritual or Ecclesiastical are these following 1. The Court of Convocation This Court is styled or called the Convocation of the Clergy who are assembled for Consultation upon matters Ecclesiastical in time of Parliament It consisteth of two distinct Houses The one called the Higher Convocation House where the Arch-Bishops and Bishops sit severally by themselves The other the Lower Convocation-House where all the rest of the Clergy are bestowed And as there be two Houses of Convocation so there be two Prolocutors one of the Higher House the other of the Lower House who presently upon the first Assembly is by the motion of the Bishops chosen by the Lower House and presented to the Bishops for their Prolocutor that is the Man by whom they mean to deliver their Resolutions to the Higher House and to have their own House especially ordered and governed His Office is to cause the Clerk to call the Names of such as are of the House when he seeth cause to cause all things propounded to be read by him to gather the Suffrages and such like Those that sit in this same Lower House are called the Procters of the Clergy which are chosen and appointed to appear for Cathedral or other Collegiate Churches as also for the Common Clergy of every Diocess at the Parliament Whose Choice is in this sort First The King directeth his Writ to the Arch-Bishop of every Province for the summoning of all Bishops Deans Arch-Deacons Cathedral and Collegiate Churches and generally of all the Clergy of his Province after their best discretion and judgment assigning them the time and place in the said Writ Then the Arch Bishops proceed in their accustomed Course One Example may serve to shew both The Arch-Bishop of Canterbury upon his Writ received directeth his Letters to the Bishop of London as his Dean-Provincial first citing himself peremptorily and then willing him to cite in like manner all the Bishops Deans Arch-Deacons Cathedral and Collegiate Churches and generally all the Clergy of his Province to the place and against the day fixed in the Writ But directeth withal that one Proctor sent for every Cathedral or Collegiate Church and two for the Body of the Inferior Clergy of each Diocess may suffice And by vertue of these Letters authentickly sealed the said Bishop of London directeth his like Letters severally to the Bishop of every Diocess of the Province citing them in like sort and commanding them not only to appear but also to admonish the said Deans and Arch-Deacons personally to appear and the Cathedral and Collegiate Churches as also the Common Clergy of the Diocess to send their Proctors to the place and at the day appointed And also willeth them to certifie the Arch-Bishop the names of all and every one so monished by them in a Schedule annexed to their Letters Certificatory The Bishops proceed accordingly and the Cathedral and Collegiate Churches as also the Clergy make choice of their Proctors Which done and certified to the Bishop he returneth all answerably to his charge at the day Having given an Account how the Proctors of the Clergy are chosen it will be high time to shew the Jurisdiction of this Court what it was and what now is 1. What their Jurisdiction was The Jurisdiction of this Court was Co. 4. Inst 323. to deal with Heresies Schisms and other mere Spiritual and Ecclesiastical Causes and therein they did proceed Juxta Legem Divinam Cannones Sanctae Ecclesiae And Co. 4. Inst f. 322. as they could never assemble together of themselves but were always called together by the King 's Writ so were they oftentimes commanded by the King 's Writ to deal with nothing that concerned the King's Laws of the Land his Crown and Dignity his Person or the State of his Council or Kingdom 2. What their Jurisdiction now is By the Statute of the twenty fifth of Henry the Eighth C. 19. their Jurisdiction and Power is much limited and straitned concerning their making of new Canons For they must have both License to make them and after they be made the King 's Royal Assent to allow them before they be put in Execution But note that in the end of that Act of the twenty fifth of Henry the Eighth there is an express Proviso that such Canons as were made before that Act which be not repugnant to the King's Prerogative the Laws Statutes or Customs of the Realm should be still used and executed as they were before the making of that Act. It may be then queried whether before the Statute of the twenty fifth of Henry the Eighth a Disme granted by the Clergy could bind the Clergy before the Royal Assent It is answered that before this Act of the twenty fifth of Henry the Eighth a Disime granted by the Clergy at the Convocation did not bind the Clergy before the King 's Royal Assent Co. 4. Inst 323. 20. H. 6.13 2. The Prerogative Court of the Arch-Bishop In this Court all Testaments be proved and all Administrations granted where the Party dying within the Province of the Arch-Bishop of Canterbury hath Bona Notabilia in some other Diocess than where he dieth which regularly is to be to the value of five pound but in the Diocess of London it is ten pound by Composition It is said that Administration must be in two places if the Intestate died in a Peculiar within the Province of York having Chattels in both Cro. 1 Part. f. 719. 3.
The Court of the Arches Jt is called in Latin Curia de Arcubus which is the chiefest and ancientest Consistory that belongeth to the Arch-Bishop of Canterbury for the debating of Spiritual Causes So called of the Church in London where they sit and hold this Consistory called Bow-Church which is in Latin Arcuum Ecclesia and called Sancta Maria de Arcubus Which Church was dedicated to our Lady and had that Denomination at first of Bow-Church by reason of building of the top of the Steeple Bow-wise or Arch-wise like so many Bows bent The Judge of this Court is called Dean of the Arches because with this Officialty is commonly joyned a peculiar Jurisdiction of thirteen Parishes in London termed a Deanry being exempted from the Authority of the Bishop of London and belonging to the Arch-Bishop of Canterbury Of which the Parish of Bow is one and the chief because the Court is there kept 4. The Court of Audience The Court of Audience says Coke is kept by the Arch-Bishop in his Palace and medleth not with any matter between Party and Party of contentious Jurisdiction but dealeth with matters pro Formâ as Confirmations of Bishops Elections Consecrations and the like And with matters of Voluntary Jurisdictions as the granting of the Guardianship of the Spiritualties Sede Vacante of Bishops Admission and Institution of Benefices dispensing with Banes of Matrimony and such like 5. The Court of Faculties This Court belongeth to the Arch-Bishop And for the granting of Faculties there is under him an especial Officer called Magister ad Facultates The Master of the Faculties Now a Faculty in the Common Law is used for a Privilege or especial Power granted unto a Man by Favour Indulgence and Dispensation to do that which by the Common Law he cannot do As to eat Flesh upon days prohibited to marry without Banes first asked to hold two or more Ecclesiastical Livings the Son to succeed the Father in a Benefice and such like 6. The Court of Peculiars The Arch-Bishop of Canterbury hath a Peculiar Jurisdiction in divers Parishes within the City of London and other Diocesses c. 7. The Consistory Courts of the Arch-Bishops and Bishops Consistory says one is the Counsel-House of Ecclesiastical Persons and it is a word borrowed of the Italians 〈…〉 f. 338. or rather the Lombards and signifies as much as Tribunal It is Vocabulum utriusque Juris and is used for the place of Justice in the Courts Christian or Spiritual The Consistory Court of every Arch-Bishop and Bishop in every Diocess in Ecclesiastical Causes is holden before his Chancellor or before his Commissary in places of the Diocess far remote and distant from the Bishop's Consistory so as the Chancellor cannot call them to the Consistory without great Travels and Vexation And he is called Commissarius Foraneus From these the Appeal is to the Arch-Bishop of either Province respectively Official Note Officialis in the Canon Law is especially taken for him to whom any Bishop doth generally commit the Charge of his Spiritual Jurisdiction And in this sence one in every Diocess is Officialis Principalis whom the Statutes and Laws of this Kingdom call Chancellor 32. H. 8. c. 15. The rest if there be more are by the Canon Law called Officiales Foranci but with us are termed Commissaries 8. The Court of the Arch-Deacon or his Commissary This Court is to be holden where and in what places the Arch-Deacon by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Arch-Deaconry And from him the Appeal is to the Diocesan He is called Oculus Episcopi 9. The Court of Delegates This Court is so vulgarly called because these Delegates do sit by force of the King's Commission under the Great Seal upon an Appeal to the King in the Court of Chancery in these Causes 1. When a Sentence is given in any Ecclesiastical Cause by the Arch-Bishop and his Official 2. When any Sentence is given in any Ecclesiastical Cause in places exempt 10. The Court of the Commissioners of Review Ad Revidendum Albeit the Acts of 24. H. 8. c. 12. and 25. H. 8. c. 19. do upon certain Appeals make the Sentence definitive as to any Appeal yet the King after such a definitive Sentence as Supreme may grant a Commission of Review ad Revidendum C. 4. Inst 341. And so it was resolved in the King's Bench. Trin. 39. Eliz. Hollingworth's Case Thus much may suffice to have been spoken concerning the Episcopal or Ecclesiastical Courts I proceed to the Sixth Particularity 6. By whom only Bishops are commanded to certifie IT is to be known that none but the King's Courts of Record Co. Litt. 〈…〉 4. 〈…〉 10◠〈◊〉 2. 〈…〉 325. as the Court of Common Pleas the King's Bench Justices of Goal-Delivery and the like can write to the Bishop to certifie Bastardy Mulierty Loyalty of Matrimony and the like Ecclesiastical Matters For 't is a Rule in Law that none but the King can write to the Bishop to certifie and therefore no inferior Court as London Norwich York or any other Corporation can write to the Bishop to certifie but in those Cases the Plea must be removed into the Court of Common Pleas and that Court must write to the Bishop and then remand the Record again And this was done in respect of the Honour and Reverence which the Law gave to the Bishop being an Ecclesiastical Judge and a Lord of Parliament by reason of the Barony which every Bishop hath And this was the reason a Quare Impedit did lie of a Church in Wales in the County next adjoyning for that the Lordships Marchers could not write to the Bishop neither shall Cognizance be granted in a Quare Impedit because the Inferior Court cannot write to the Bishop And herewith agreeth Antiquity Nullus alius praeter Regem potest Episcopo demandare inquisitionem faciendam Bracton 7. Bishops Proceedings in Ecclesiastical Courts under the Name Style Seal of the Bishops how warrantable At the Session of Parliament holden Anno 4 o. Jac. Co. 2. I◠〈…〉 685 686. 〈◊〉 Lib. 12 〈◊〉 upon a Branch of an Act made at the first Session in the first Year of King James his Reign for Continuance and Reviving divers Statutes it was enacted that an Act made in the first Year of Queen Mary Stat. 2. c. 2. entituled An Act for Repeal of certain Statutes made in the time of King Edward the sixth should stand repealed and void A doubt was moved concerning the Bishops which was divided into two Questions 1. Whether any Bishop made especially since the first day of that first Session of Parliament were lawful or no 2. Whether the Proceedings in the Bishops or other Ecclesiastical Courts being made under the Name Style and Seal of the Bishops were warranted by Law And the reason of these two Doubts was this By the Statute of 1 E. 6 c. 2. it was enacted that Bishops should not be Elective
as before that time they had been but Donative by the King's Letters Patents Secondly By the said Act is provided that all Summons Citations and Process in Ecclesiastical Courts should be made in the Name and Style of the King and that their Process should be sealed with a Seal of the King's Arms c. And it was strongly urged that this Act of the first of Edward the Sixth was now in force and consequently all Bishops made at the least since it became of force by Election c. and not by Donation according to the said Act of the first of Edward the Sixth are unlawful and all their Process Proceedings being in their own Names Styles and Seals where by the said Act they ought to have been in the King's Name and under his Seal were all unlawful and void And to prove that the said Act of Ann. 1. Ed. 6. was now in force they alledged that this Act of the first of Edward the Sixth was repealed by the said Act of the first of Mary above mentioned which Act of Repeal being repealed by the said Branch of the first of Jacobus consequently the said Act of the first of Edward the Sixth was thereby revived For when an Act of Repeal is repealed the first Act that was repealed is revived and herewith agreeth the Book-Case in the fifteenth of Edward the Third Tit. Petition Pl. 2. And this is true and cannot be denied The King having understanding hereof and being informed of the Consequents thereof being matters tending not only to the infinite prejudice of his Subjects in Cases of great Importance especially if any Diocess had no Lawful Bishop or Ordinary but to the scandal and impeachment of his Majesty's Justice not only in those Proceedings but also in Administration of Justice in certain Cases in his Courts of Common Law at Westminster commanded his two Chief Justices to consider of the said Objections and to inform him of the true State thereof that either the scruple conceived might be cleared and satisfied or the Inconvenience if any were timely provided for and prevented who upon timely consideration had of the said Objection agreed the Law to be as the said Case was put as it had been taken But upon further search and consideration had other manifest and direct matters were found to satisfie and clear the said scruple and question which afterwards was agreed and resolved accordingly by the Chief Baron and other Judges then attending in the Upper House of Parliament For the understanding whereof it is to be observed that the said Act of the first of Edward the Sixth was repealed by three several Acts of Parliament viz. 1. By the said Statute of Ann. 1. Mar. in the whole 2. By the Act of 1. 2. Ph. Mar. c. 8. by sufficient words as concerning the Name Style and Seal of their Process c. And Lastly By the Statute of 1. Eliz. c. 1. the whole Act of 1. E. 6. is also repealed For Leges posteriores priores contrarias abbrogant And as a Man that is strongly bound with three Cords or Ligaments albeit one or two of them be untied or cut asunder remains bound notwithstanding by and with the second or third which remain firm and untouched so a Statute repealed by force of three several Acts remains repealed so long as any of them remain in force albeit one or two of them be made void And therefore although the Act of 1. Mar. be repealed by 1. Jac. yet the other two Acts remaining in force the Act of Ann. Prim. E. 6. remains repealed First therefore As to the Name Style and Seal c. in Ecclesiastical Courts it is enacted by the 1. 2. Ph. Mar. c. 8. in these words And the Ecclesiastical Jurisdiction of the Arch-Bishops Bishops and Ordinaries to be in the same state for Process of Suits punishment of Crimes and Execution of Censures of the Church with knowledge of Causes belonging to the same and as large in those points as the said Jurisdiction was in Ann. 20. H. 8. By which Clause if the Act of Repeal of 1. Mar. now repealed had never been made the Act of 1. E. 6. as to the Name Style and Seal in Ecclesiastical Proceedings had been repealed by this latter Act of 1. 2. Ph. Mar. Secondly But it was objected that the Act of 1. 2. Ph. Mar. which is the second Cord or Ligament is repealed by the Act of 1. Eliz. c. 1. To this it was answered and resolved that this second Cord or Ligament remains in force for true it is that the Act of 1. Eliz. repeals the Act of 1. 2. Ph. Mar. Secundum quid but not Simpliciter for the Act of 1. Eliz. doth repeal every Branch and Article of 1. 2. Ph. Mar. other than for such Branches as therein be excepted And afterwards by another Branch of the said Act of 1. Eliz. it is enacted that all other Laws and Statutes repealed and made void by the said Act of 1. 2. of Ph. Mar. and not in that Act specially mentioned and revived should stand remain and be repealed and void as the same were before the making of that Act. But that Act of 1. Ed. 6. as it hath been often said is sufficiently repealed by the Act of 1. 2. Ph. Mar. as to the Name Style and Seal c. and the Act of 1. Ed. 6. is not specially mentioned and revived by the Act of 1. Eliz. so the same remain repealed by the Act of 1. 2. Ph. Mar. Thirdly The third Act which clearly repeals and annuls the Act of 1 Ed. 6. as well for the making and constituting Bishops as for the Name Style and Seal of Process is the Act of 1. Eliz. c. 1. for that Act doth revive the Act of 25. H. 8. c. 20. and further enacteth that the same shall stand in full force and effect to all intents Constitutions and Purposes By which Act of 25. H. 8. it is enacted as followeth And that of every Avoidance of any Arch-Bishoprick or Bishoprick the Kinâ— his Heirs and Successors may grant to the Prior and Covent or to the Dean and Chapter a License under the Great Seal as of old time hath been accustomed to proceed to an Election of an Arch-Bishop or Bishop with a Letter Missive containing the Name of the Person which they shall elect and chuse c. And according to this Statute revived by Ann. 1. Eliz. all Arch-Bishops and Bishops at this day be made and if they were made according to the Act of 1. E. 6. they were unlawful And further it is enacted by the said Act of 25 H. 8. That every Person chosen elected invested and consecrated Arch-Bishop or Bishop according to the form and effect of this Act c. shall do and execute in every thing and things touching the same as any Arch-Bishop or Bishop of this Realm c. might at any time heretofore
issue and success when they are grounded upon the fear of God the Root and Beginning of all true Wisdom And therefore our wise and Religious Ancestors called to their General Council or Witten Aâ—mote or Court of Wisdom as they called it those chief and principal Persons of the Clergy which by their Place and Profession by their Gravities Learning and Wisdom might best advise what was the Law of God's acceptable Will and Pleasure that they might frame their Humane Laws answerable or at least not contrary and repugnant thereunto To Second Judge Dodridge in the Probation of our Bishops sitting in the Assembly of States or Wise Men before the Conquest I shall offer these Authorities following At a Parliament holden by King Inas Anno Domini 727. the Statutes began thus Ego Inas Dei beneficio Rex suasu Instituto Cenredi patris mei Hedda Erkenwaldi Episcoporum meorum omnium Senatorum meorum c. The Conclusion of the Parliament holden Ann. 940. by King Athelstan at Grately was thus All this was enacted in the great Synod whereat was the Arch-Bishop Wolfehelme with all the Noble Men and Wise men which King Athelstan called together Co. Lit. 110. a. Co. 2. Inst 268. King Edovard and Phlegmond Arch-Bishop of Canterbury assembled a great Council of Bishops and other faithful People c. Matth. Westm Lib. 1. sub Ann. 905. Ingulphus who died before 1109. saith Rex Eldvedus convocavit Magnates Episcopos Proceres Optimates ad tractandum de publicis negotiis Regni Co. 4. Inst f. 3. The Reader may see more of this matter in the Preface of the Ninth Part of Coke's Reports 13. Their Right of making Proxies whensoever Question is had of the Attainder of any Peer IT appears by our Books of Law that ever when Question is had of any Attainder of any Peer in Parliament they depart the Higher House and make their Procurators For by the Decrees of the Church they may not be Judges of Life and Death In the tenth Year of Edward the Fourth 10. E. 4.6 b. it is said by Littleton Quantum Seignior est indict c. Ceo serra mand en le Parliament la le Seignior Seneschall d'Anglete'rre luy mitta as Respons il dirra de Rieu culpable ceo serra trie per pares suos c. donques les Seignieurs Spirituels que ne poient consent al mort de home ferrount un Procurator en le Parliament When a Lord is indicted it shall be returned into Parliament and there the Steward of England shall put him to answer and he shall say Not Guilty and this shall be tried by his Peers and then the Lords Spiritual who may not consent to the death of any Man shall make their Procurators in Parliament Stamford Lib. 3. f. 153. A B. in his Pleas of the Crown informeth us Que Evesque ne ount lieu en Parliament en Respect de lour nobilitie mes en respect de lour Possession _____ L'antient Baronies annexes a lour Dignities And he further says that a Peer indicted of Treason or Felony may if the King please be arraigned of it in Parliament and then the Lords Spiritual shall make a Procurator for them Eo que per le Canonicall Leges ils mesmes ne doint condemner asuma Mort. Mr. Justice Dodridge on the Constitution of Clarenden of Henry the Second before-mentioned tells us thus Here we see says he the Presence of the Bishops in the Parliament in respect of their Baronies Quousque perveniatur ad diminutionem c. For ever unto our times when Question is had of any Attainder of any Peer in Parliament they depart the Higher House and make their Procurators Vide His Treatise of the Barons of the Realm A Peer of the Realm says Coke being indicted of Treason or Felony Co. 3 Inst f. â—1 or of Misprision and duly transmitted to the Lords may be arraigned thereof in the Upper House of Parliament but then there must be appointed a Steward of England who shall put him to answer And if he plead Not Guilty he shall be tryed per Pares suos and then the Lords Spiritual must withdraw and make their Proxies Again says Coke A Peer of the Realm being indicted of Treason Co. 4. Inst â— or Felony or Misprision of Treason may be arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them By these four Authors Littleton Stamford Dodridge and Coke on whose Sleeve I should as soon pin my Faith as upon any four Lawyers famous in their Profession since my first Admittance into an Inns of Court It is asserted that the Prelates upon their withdrawing in Capital Cases have a Right to make their Procurators They depart the House not by vertue of any Rule at the Common Law but in vertue of an old Ecclesiastical Canon They make their Proxies not as they are Spiritual Persons but in respect of their Temporal Baronies To be short If I should hear that the Opinion of these four most eminent Lawyers is over-ruled by our Sages by vertue of that Spell called Error Temporis it will cast me undoubtedly not into an Admiration but an Extasie 14. Statutes where made without them ALthough the Bishops have a Right of sitting in Parliament and ought always to be called to that great Council yet Statutes have been good without their Lordships And that in three several Cases 1. If they voluntarily absent themselves then may the King the Nobles and Commons make an Act of Parliament without them As where any Offender is to be attainted of High Treason or Felony and the Bishops absent themselves and the Act proceed the Act is good and perfect 2. If they be present and refuse to give any Voices and the Act proceed the Act of Parliament is good without them 3. Where the Voices in Parliament ought to be absolute either in the Affirmative or Negative and they give their Voices with Limitation or Condition and the Act proceeds the Act is good for their Conditional Voices are no Voices Examples for these Particulars the Reader may find in Coke's 2. Inst f. 585 588. Note Albeit Statutes have been made without the Bishops yet they are accounted one of the Estates of Parliament as it appears by my Lord Coke in the very beginning of the fourth Part of his Institutes But it is pretended by some that they are not for if they were then should they discuss Matters separately by themselves from the other Lords as the Commons now do I deny the Consequence for our Books tell us That at the first both Houses sate together Pray how many Estates were they then if it be answered that there were but two why then this shews that two Estates may discuss Matters together both in one and the same House 15. Their Privileges as they are Lords of Parliament THe Bishops in the Right of their
Bailiffs shall not disable them for that they sue and answer by Attourney otherwise it is of a sole Corporation But if Executors or Administrators be excommunicated they may be disabled because they which converse with a Person excommunicate are excommunicate also If a Bishop be Defendant Co. Lit. 134. a. 9 A. 7.21 b. an Excommunication by the same Bishop against the Plaintiff shall not disable him and it shall be intended for the same Cause if another be not shewed Thirdly The several Writs that belong to it There are three sorts of Writs appertaining to Excommunications The one is called Excommunicato Capiendo Another named Excommunicato Deliberando The Third is styled Excommunicato Recipiendo Excommunicato Capiendo is a Writ directed to the Sheriff for the Apprehension of him that standeth obstinately excommunicated for forty days For such a one not seeking his Absolution hath or may have his Contempt certified or signified into the Chancery whence issueth this Writ for the laying of him up without Bail or Mainprize until he conform himself And when he is justified and hath made Agreement then the Bishop shall send his Letters to the King testifying the same and then it shall be commanded to the Sheriff to deliver him by a Writ called Excommunicato Deliberâ—â—do But if the Person excommunicated and for his Obstinacy being committed to Prison be inlawfully delivered thence before he has given Caution to obey the Authority of the Church then he is commanded to be sought for and laid up again by a Writ called Excommunicato Recipiendo My Lord Coke tells us Co. 2. 〈◊〉 â— 23. that if a Man be excommunicated and offer to obey and perform the Sentence and the Bishop refuses to accept it and to assoil him he shall have a Writ to the Bishop requiring him upon performance of the Sentence to assoil him c. And also the Party grieved may have his Action upon his Case against the Bishop in like manner as he may when the Bishop doth excommunicate him for a matter which belongeth not to Ecclesiastical Cognizance Also the Bishop in those Cases may be indicted at the Suit of the King Fourthly By whom Excommunication ought to be certified It is declared in our Books Co. Lit. 134. a. 12. â— 4.15.20 H. 6.17.11 H. 4.14 that none can certifie Excommengement but only the Bishop unless the Bishop be beyond Sea or in Remotis or one that hath ordinary Jurisdiction and is Immediate Officer to the King's Courts As the Arch-Deacon of Richmond or the Dean and Chapter in time of Vacation But in antient time every Official or Commissary might testifie Excommengement in the King's Court 11. H. 4.62 and for the mischief that ensued thereupon it was ordained by the King in Parliament that none should testifie Excommengement but the Bishop only If a Bishop certifie 33 E. 3. Excom 29. that another Bishop hath certified him that the Party which is his Diocesan is excommunicated this Certificate upon anothers Report is not sufficient If the Bishop certifieth the Excommunication under Seal â—4 E. 3. Excom â— albeit he dieth yet the Certificate shall serve And it is to be observed Co. 2. Inst 623.28 E. 3.97.14 H. 4 14. that at the Common Law a Certificate of the Bishop whereupon a Significavit that is a Writ De Excommunicato Capiendo was to be granted ought to express the Cause and the Suit against the Party especially in the Certificate But it may be queried whether an Excommunication and Certificate thereof by any Foreign Power can disable the Party It is answered 16. E. 3. Excom 4.4 H. 7.15.12 E. 4.15 that if the Bishop of Rome or any other having Foreign Authority doth excommunicate any Subject of this Realm and certifieth so much under his Seal of Lead this shall not disable the Party For the Common Law disallows all Acts done in disability of any Subject of this Realm by any Foreign Power out of the Realm as things not Authentick Whereof the Judges should give Allowance Fifthly The Power of Excommunication in a Christian Church A most Learned Doctor of our Church that he may give the Church her due and Caesar his asserts and proves these Particulars First That under the Gospel there is a Power in the Officers of the Church by virtue of Divine Institution to exclude any Offenders out of the Christian Society for transgressing the Laws of it The Second That this Power doth remain formally in the Church after its being incorporated into the Commonwealth The Third That after the Churches being incorporated into the Common-wealth the Right of Supreme Management of this Power in an External way doth fall into the Magistrates Hands consisting in these four things 1. A Right of prescribing Laws for the Management of Church-Censures 2. A Right of bounding the manner of Proceeding in Censures that in a settled Christian State Matters of so great weight be not left to the Arbitrary Pleasure of any Church-Officers 3. The Right of adding Temporal and Civil Sanctions to Church Censures and so inforcing the Spiritual Weapons of the Church with the more keen and sharp ones of the Civil State 4. To the Magistrate belongs the Right of Appeals in case of unjust Censure So that the Sum of all that has been said is this That though the Magistrate hath the main care of ordering things in the Church yet the Magistrates Power being Cumulative and not Privative the Church and her Officers retain the Fundamental Right of inflicting Censures on Offenders Thus much concerning the Superior Clergy containing the Arch-Bishops and Bishops I come now to treat of the Inferior Clergy under which are comprehended Deans Arch-Deacons Parsons Vicars Prebends and Chaplains SECONDLY OF THE INFERIOR CLERGY IT is to be known that of Spiritual Functions there be three Degrees 1. A Function which hath a Jurisdiction 2. A Spiritual Administration with a Cure 3. They who have neither Cure nor Jurisdiction Of these in their Order 1. Of a Function which hath a Jurisdiction UNder this Rank may be placed Deans and Arch-Deacons 1. Deans Dean in Latine Decanus which is derived of the Greek Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Co. Lit. 9â— a. that signifieth Tâ—â— for that he is an Ecclesiastical Secular Governor and was anciently over ten Prebends or Canons at the least Howbeit in England we use to call him a Dean that is next under the Bishop and Chief of the Chapter ordinarily in a Cathedral Church and the rest of the Society or Corporation we call Capitulum the Chapter Now Co. Lit. 95. a. Of Chapters there be in our Law two kinds viz. The Antient and the Latter And the Latter be of two sorts 1. Those which were translated or founded by King Henry the Eighth in place of Abbots and Covents or Priors and Covents which were Chapters whilst they stood and these are new Chapters to old Bishopricks 2. Where the Bishoprick was newly founded by
may have his Clergy afterwards again and so cannot a Lay-man 14. No Clerk within Holy Orders though he had a Knight's Fee was compellable to be Knighted according to the Statute De Militibus of the first of Edward the Second 15. At the Common Law at the first Hobart 's Rep. f. 288. the Benefit of the Clergy was not allowed but to Clerks in holy Orders Secular and Religious 16. If any Lay-men with force and strong hand do enter upon Co. Inst. 54. or keep the Possession either of the Church or of any of the Houses or Glebe c. belonging thereunto the Incumbent upon Certificate thereof of the Bishop or without Certificate upon his own surmise may have a Writ to the Sheriff De vi Laica amovenda By which the Sheriff is commanded in these words Pracipimus quod omnem Vim Laicam seu armatam quae se tenet in dictae Ecclesiae seu domibus eidem annexis ad pacem nostram in Com. tuo perturband sine dilatione amoveas si quos in hac parte resistentes invenerts eos per Corpora sua attachias in prisona nostra salvo Custodias c. 17. Ecclesiastical Livings are said to be in Abeyance Co. Lit. 341. a. and this was provided by the Providence and Wisdom of the Law And therefore no Act of a Vicar-Predecessor should make a discontinuance to take away the Entry of his Successor and to drive him to a real Action whereby he should be destitute of maintenance in the mean time 18. A general Accusation against a Parson or Vicar not good and therefore in a Quare Impedit against the Bishop it is not a good Plea to alledge that the Presentee is a Schismatick in general but he ought to express Schism in particular But it is otherwise for the putting a Coroner out of his Office for there is a general Suggestion in the Writ that he is Persona minus Idonea is enough and not Traversable 19. Co. Liâ— 8.14 a. Lab. 11. f. 70. a. And last Statutes which restrain Alienation of Ecclesiastical Livings bind the King though not named I shall conclude the whole Discourse with my hearty Prayer to God Almighty that he would be pleased always to defend the Church of England against the fierce Attempts of Halting Loyola and Crook-back'd Hudibras The one would destroy her Priests The other would devour her Patrimony The one would introduce the Pomp of Superstitious Tyranny The other would bring in the Meanness of Fantastick Anarchy POSTSCRIPT THe Highest and most binding Laws are the Statutes which are established by the King in Parliament and by Authority of that highest Court it has been often times enacted only to shew a tender care of Holy Church That all Ecclesiastical Persons shall enjoy all their Lawful Rights and Privileges without any Substraction whatsoever as appeareth by these Statutes after mentioned which were but confirmations of such Rights and Immunities as the Clergy had long before We have granted to God and by this our present Charter Magna Charta c. 1. Ann. 9. H. 3. have confirmed for us and our Heirs for ever that the Church of England shall be free and shall have all her whole Rights That Holy Church have her Liberties in quietness 14 E. 3. c. 1. without interruption or disturbance Vide the same 25. E. 3. c. 1.50 E. 3. c. 1. It is accorded and established 1 R. 2. c. 1. that Holy Church shall have and enjoy all her Rights Liberties and Franchises wholly and without blemish Vide the same 2. R. 2. c. 1. 3. R. 2. c. 1. 5. R. 2. c. 1. 6. R. 2. c. 1. 7. R. 2. c. 1. 8. R. 2. c. 1. 12. R. 2. c. 1. That Holy Church have and enjoy all her Rights Liberties and Franchises 1 H. 4. c. 1. entirely and without blemishing Vide 2. H. 4. c. 1. 4. H. 4. c. 1. 7. H. 4. c. 1. 9. H. 4. c. 1. 13. H. 4. c. 1. That Holy Church have all her Liberties and Franchises 3 H. 5. c. 1. That Holy Church shall have and enjoy all their Liberties and Franchises 2 H. 6. c. 1. In a word The Statute of Magna Charta hath been confirmed as I am told thirty two times and so have therefore say I the Rights and Priviledges that appertain to the Church of England With our Kings in Parliament does concur the Emperor Justinian in his Codes Privilegia â—od 1.2.12 quae generalibus Constitutionibus universis sacrosanctis Ecclesia Orthodoxae Religionis retro Principes praestiterunt firma illibata in perpetuum decernimus Custodiri Sicut ipsa Religio fidei Mater est perpetua ita ejus patrimonium jugiter servetur illaesum Now God Almighty give me favour in the Eyes of the Men that they may send back that that is taken away already and let that alone that yet remaineth FINIS