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
any dare to say That they pare off some rights or pluck some flowers from the Kings Imperial Crown I suppose not How comes it to pass then that the Bishops jurisdiction does Whatsoever may be alledged in defence of the other may be said and it may be something more too in justification of this And know moreover That proceedings in these Temporal distinct jurisdictions go much further upon the persons of men than those of any Ecclesiastical Court does even to the imprisoning of them and in all of them except that of the University to the inflicting of capital punishments And it deserves our further observing what the great Lawyer Sir Edward Coke sayes touching this very thing Albeit the proceedings and process in the Ecclesiastical Courts be in the Name of the Bishops c. It followeth not therefore that either the Court is not the Kings or that the Law whereby they proceed is not the Kings Law for taking one example for many every Leet and View of franck pledge holden by a subject is kept in the Lords Name and yet it is the Kings Court and all the proceedings therein are directed by the Kings Laws and many subjects in England have and hold Courts of Record and other Courts and yet all their proceedings be according to the Kings Laws and customs of the Realm De jure Regis Eccles p. 39. The Learned Bishop Sanderson has convincingly demonstrated That Citations and Decrees in the Bishops Name no way encroacheth on the Kings Authority and that they who urge the contrary have this meaning rather to do the Bishops hurt than the King service and that their affections so far as by what is visible we are able to judge are much what alike towards both His Book called Episcopacy not prejudicial to Regal power p. 3 4. Bishops proceedings in Ecclesiastical Courts under the Name Stile and Seal of the Bishop See this largely discussed and declared to be warrantable by Law by my Lord Coke's comment on the Statute of Marriage 32 Hen. 8. p. 685 686 687. But this Objection is taken up again and urged with new force from hence That in the First year of King Edward the Sixth it was by Statute Enacted That the Bishops should make their processes in the Kings Name and that their Seals should be the Kings Arms. This Statute sayes Mr. Rastall was repealed 1 Mariae 1. And that Statute not being revived by Queen Elizabeth in her Reign all proceeded well enough without danger But in the first Parliament of King James there passed an Act for continuing and reviving divers Statutes and for repealing of some others 1 Jaccb c. 29. Into the body whereof a clause was cunningly conveyed for the repealing of that Statute of the Reign of Queen Mary by which King Edward 's stood repealed Upon this account it was that a little before our late turbulent confusions in England this very thing was urged against the Bishops and their proceedings were declared to be bold usurpations and encroachments on the Prerogative Royal and violations of the Law But as it is usual where men are prepossessed against any thing they are apt to run into many mistakes about the sâ—me It happened so in this very matter Much â—â—lse was raised much stir made hereupon by the Antiâ—prelatical party as if the Bishops who had given themselves out to be the most zealous assertors were indeed become the onely dangerous impugners of the Kings Prerogative That now they were deprehended in the very design and therefore must needs fall having no plea to make for themselves and having the mischief of their own visible and illegal actings witnessing against them At this rate their Adversaries vaunted and fore-judged them and no doubt as matters went in those times the severest animadversion that could have followed hereupon would have been made if further proceedings therein had not been seasonably prevented by the wisdom of a pious and prudent Prince For the Blessed King Charles the First having beee made acquainted what advantage these forward and busie people were designing to make hereof to the overthrow of His Ecclesiastical Courts and the Bishops His Judges in them He did as Dr. Heylin reports in the life of Archbishop Laud p. 342. call together in the year 1637 the two Lords Chief Justices the Lord Chief Baron and the rest of the Judges and Barons and propounds to them these three following particulars to be certified of 1. Whether processes may not issue out of the Ecclesiastical Courts in the Name of the Bishops 2. Whether a Patent under the Great Seal be necessary for the keeping of Ecclesiastical Courts and enabling Citations Suspensions Excommunications and other censures of the Church 3. Whether Citations ought to be in the Kings Name and under His Seal of Arms And the like for Institutions and Inductions to Benefices and corrections of Ecclesiastical Offences And the like for Visitations whether an express Commission or Patent under the Great Seal of England were requisite To which three Proposals the said Judges unanimously on the First of July in the fore mentioned year concurred and certified under their Hands By Answering to the First thing propounded affirmatively and to the other two negatively And that the fore-mentioned Statute of Edward the Sixth is not now in force Whereupon the King issues out His Proclamation wherein having first taxed the libellous Books and Pamphlets published against the Bishops and after a recital made of these proceedings He concludes the Proclamation thus That His Majestie thought good with the advice of His Council that a publick Declaration of these the opinions of His Reverend and Learned Judges being agreeable to the judgement and resolution of former times should be made known to all His Subjects as well to vindicate the legal proceedings of His Ecclesiastical Courts and Ministers from the unjust and scandalous imputation of invading or intrenching on His Royal Prerogative as to settle the minds and stop the mouths of all unquiet spirits That for the future they presume not to censure His Ecclesiastical Courts or Ministers in these their just and warranted proceedings And hereof His Majesty admonisheth all His subjects to take warning as they will Answer the contrary at their peril c. * Resolutions unanimously given by all the Judges and the Earons of the Exchequer saith my Lord Coke are for matters of Law of Highest Anthority next unto the Court of Parliament Sir Edward Coke 2 Instit p. 618. But some mens minds will not be satisfied with any thing of this nature yet are willing to embrace what is fortified with Parliamentary Authority Both therefore to gratifie them and more throughly to confirm the matter in hand we have also this Parliamentary Authority to offer unto them For although by an Act of Parliament in the Seventeenth year of King Charles the First all jurisdiction Ecclesiastical was quite abrogated and annulled I speak in respect of England for here in Ireland no such Act
decernenda Censuerit ibidem Tab. 2. In Synod Nationali vel provinciali Regis rescripto convocato nihil tractari aut determinari potest nisi eo assentiente nec quicquam vim legis obtinet priusquam Regalis assensus adhibitus fuerit Dr. Zouch Descript Juris Eccles. p. 1. Sect. 2. See also to the same purpose Dr. Duck de authoritate Juris civilis in Anglia lib. 2. cap. 8. p. 3. Sect 27. And the Lord chief Justice Cook 4. p. Instit cap. 74. cited thereby him 2 The King himself in the Proclamation before mentioned declares that such Canons Constitutions c. agreed upon by the Arch-bishops Bishops and Clergie of Ireland to the end and purpose by him limited and prescribed unto them He has given His Royal assent according to the form of a certain statute or Act of Parliament made in that behalf And by his Prerogative Royal and Supream Authority in matters Ecclesiastical he has ratified and confirmed the said Canons being one hundred in number by his Letters Patents under his great Seal of Ireland And then follows His Majesties strict injunction upon all His loving Subjects of this Kingdom to obey and execute the same which I insisted upon before 3. Besides His Majesties Prerogative Royal and Supream Authority in causes Ecclesiastical the King is likewise by Act of Parliament vested with power for this purpose and that is the Statute 25 Hen. 8. cap. 19. called the Petition and Submission of the Clergie to the King For the Bishops and Clergie in Convocation having each one severally promised in verbo sacerdotis never henceforth to presume to attempt alledge claim or put in use or enact promulge or execute any new Canons Constitutions or Ordinances without the Kings most Royal assent had and obtained thereunto upon which promise and submission it was enacted by Authority of Parliament That all Convocations in time to come should always be assembled by the Authority of the Kings Writ And that the Kings license and authority being had they might make promulge and Execute such Canons Constitutions and Ordinances Provincial and Synodal which being ratified confirmed and approved under His Majesties Great Seal they then become of legal force upon the Subject This Proviso indeed follows That no Canon nor Ordinance shall be made or put in Execution by the Authority of the Convocation of the Clergie which shall be contrariant or repugnant to the Kings Prerogative Royal or the Customs and Statutes of this Realm c. Rastals collection word Rome numb 1. * Which Statutis is but declaratoâ—y of the Common Law says my Lord Coke 4. Instit cap. 74. p. 323. So that the same is grounded both on Statâ—to and Common Law The like Statute to this particular we have enacted in Ireland Entituled An Act against the Authority of the Bishop of Rome in vicessimo Octavo Hen. 8. and referred to in the Proclamation before spoken of in the second consideration A Great Lawyer one Mr. J.M. in a speech before a Committee of the Lords at the Parliament held Anno 1641. Having occasion to speak of this Statute for his speech was against the Canons made the year before avouched plainly that that clause The Clergie shall not make Canons without the Kings leave implyeth not that by his leave alone they may make them But certainly the most knowing men in any Science or faculty have not the priviledge of never mistaking in what they say for to him that advisedly considers the matter and scope of that Statute it will appear plainly That the abridging the over-growing power of the Clergie assumed by them in making and enacting Canons and pressing their authority on others And together with this the cutting them off from any relation to the Bishop of Rome and making them dependants on the King alone for the better ordering of what should be debated and determined in their Synodical meetings were if not the only yet the principal aims of that Statute Add here further that a successive and continued practice from the time when that Statute was made to this day delivers the best and truest sense of it * Practiea est legum optima intellectrix Baldus For thus as I have set down it was practised in the times of Edward the 6th Queen Elizabeth 1562. King James Anno 1603. King Charles the first in this Kingdom of Ireland Anno 1634. And though I say nothing of the Canons themselves made in the year 1640. because all authority as to them is annulled by Act of Parliament Anno 13 Caroli Secundi yet the Commission granted to the Convocation of that year at the first opening of the Parliament and of it was according to Law and this speaks plainly of the Kings leave and license granted and alone needful herein see more fully thereof in Dr. Heylins life of the Arch-bishop of Canterbury p. 423.424.425 I conclude this matter with the decision of a great Casuist He in discoursing of Ecclesiastical Laws and the manner how they are enacted in the Church of England Jus condendi leges Ecclesiasticas saies he est paenes Episcopos Presbyteros aliasque personas à totius Regni clero rite electas in legitima Synodo rite congregatas Ita tamen ut ejus juris sine potestatis exercitium in omni Repub. Christiana ex Authoritate Supremi Magistrat us Politici pendere debeat Idque aparte Ante ut loqui solemus aparte post vir ut nec iis statuendi Canones Ecclesiasticos causâ liceat convenire nisi autipsius mandato inssu ad id negotii convocatis aut ejus saltem authoritate Venia ab eo petita obtenta munitis Nec Canones in quos illi sic consenserint tali sint aut vim aliquam habeant obligandi quoad supremi Magistratus assensus accedat Cujus approbatione publica authoritate simulac confirmati fuerint illico pro legibus habendi sunt subditos obligant Bishop Sanderson de conscient obligat Praelect 7. Sect. 30. Mr. Hooker Eccles. Polit. Book 8. in p. 219.220.221 c. Thus much has been said touching the Canons of our Church and their Authority so far forth at this present as suits with the present occasion and what they were produced in proof of In several Provincial Constitutions we find it Decreed That concerning matters belonging to Ecclesiastical cognizance proceedings may be made against any Layman or publick Officers as Sheriffs and others even to the inflicting publick Censures upon them Many of this kind will occur to the Reader that is conversant in them That Constitution Aeterna Sanctis de paenis Enacted in a Council at Lambeth under Boniface Archbishop of Canterbury Anno 1260. In the time of King Henry the third And that Constitution ut invadentibus de immunitate Ecclesiae Enacted by the same Boniface likewise the Constitution contingit aliquando eodem And Accidit Novitate perversa eodem Enacted by John Stratford Archbishop of Canterbury in the time
was ever made nevertheless at the happy Restauration of our Gracious Sovereign that now is viz. Anno Dom. 1660. The said Act of the 17. of King Charles the First is repealed and that was Anno decimo tertio Caroli Secundi and in that Act of Repeal it is thus declared That the said Act of the 17. of King Charles the First notwithstanding All Archbishops Bishops and all others exercising Ecclesiastical jurisdiction may proceed determine sentence execute and exercise all manner of Ecclesiastical jurisdiction and all censures and coercions appertaining and belonging to the same before the making of the Act before recited in all causes and matters belonging to Ecclesiastical jurisdiction according to the Kings Majesties Ecclesiastical Laws used and practised in this Realm in as ample manner form as they did might lawfully have done before the making of the said Act. This Act is indeed attended with three Provisoes The first is concerning the High-commission Court which is excepted from having any revival or force or authority given to it or to the erection of any other such like Court by commission hereby The second Proviso is concerning the Oath called the Oath ex Officio which is excepted against and forbid to be tendred or administred unto any in the exercising of any Spiritual jurisdiction The third Proviso is to limit and confine the power of Ecclesiastical Judges in all their proceedings to what was and by Law might be used before the year 1639. observe the year mentioned to be 1639 which plainly includes allows and confirms King Charles the First His Proclamation in the year 1637. In this clause and branch of this Statute provision is also made against any confirmation to be given to the Canons made Anno 1640. These particulars onely excepted and here provided against all Ecclesiastical Jurisdiction as to it's exstensiveness in all causes of Spiritual cognizance over all persons of what quality and degree soever they be or in what Office soever they are in those causes is firmly ratified and established Bartolus his Rule is truly applicable here Exceptio firmat Regulam in non-exceptis But let all this be granted will the Excepters say that proceedings in Ecclesiastical Courts against private persons either in matters of instance or correction are not entrenching on the Prerogative Royal yet the case is otherwise when such proceedings are bent upon publick Officers as Mayors and Sheriffs c. because they are vested with the Kings Authority and nearly represent His Person They are His Ministers and Dispensers of Justice and by such proceedings against them publick affairs might be hindred of their dispatch and the Kings business not be executed I Answer there is no otherwise in this case For if the matter be justifiable that is if the cause any such proceeding is begun upon do belong to Ecclesiastical cognizance then the Spiritual Jurisdiction in the Bishops management reaches such publick Officers as well as others and that without invading or in the least violating the Kings Prerogative If occasions so require Ecclesiastical censures may be inflicted on them as well as on any other of the Kings subjects that do offend And yet the doing of that will not be a censuring the King in Effigie as some have with very little reason and but too much passion affirmed Observe we what may be done and adjuged against such publick Officers in the Kings Temporal Courts A Mayor and Sheriffs may be impleaded before the Kings Temporal Judges in causes Civil The people of Waterford may remember one or two instances hereof very lately when the School-master there sued the Mayor and Sheriffs before the Lords Justices of Assize for detaining the Salary they had contracted to pay him A Mayor of any City or Corporation may be arrested may during the time of his Mayoralty be sued to an Out-lawry in the Kings Temporal Courts The Kings Temporal Judges may upon contempts convent Mayors before them and occasion so requiring commit them to prison It is not long since that a case in Waterford was coming near this when in one Whaley's cause a Writ of Error was brought from the Court of the Kings Bench This the Mayor refusing to obey and complaint thereof being made to the Court a Pursuivant was ordered to attach the Mayor and bring him before the Judges there to answer his contempt which undoubtedly would have been done if the Execution of that Order had not been seasonably prevented by an Affidavit made to this effect That the Mayor did not refuse to obey the said Writ of Error but onely deferred the admitting of it until he sate judicially in Court the same having been before privately exhibited to him By this means that proceeding was stopped which else would have manifested that the Mayor of Waterford is not so absolute but is indeed under controll and may be convented and punished by the Kings temporal Judges without any affront done to the King in Effigie or to his power and authority which he the said Mayor in his proper station and within his own Precinct does bear And that Sheriffs even while they are in the exercise of their Office may be proceeded against in the Kings Temporal Courts none can be ignorant of that understands the practice of those Courts and remembers there is such a Court as the Exchequer or has undergone the Office of a Sheriff A Sheriff by the Statute of Westminster 1. cap. 9. Anno tertio Edvardi primi for not doing his Duty and for concealing of Felons may be fined and imprisoned One Bronchard in Queen Elizabeths time being Sheriff had an Information Exhibited in the Star-chamber against him for returning one that was not chosen a Knight of the Parliament Abridgement of the Reports of the Lord Dyer 425. A Sheriff of Barkshire was committed to the Fleet and fined by the Court of Common Pleas for unjust taking of Fees Brownloes Reports second part p. 283. I doubt not but the Learned in the Municipal Laws are able to furnish out plenty of instances of this kind Well then Mayors and Sheriffs may be Impleaded may be Out-lawed may be Arrested may be Fined may be Imprisoned in the Kings Temporal Courts by from and before his Temporal Judges And in all these Inflictions here 's no Fining no Arresting no Out-lawing no Imprisoning no Attaching the King in Effigie nor any intrenching upon his Authority from himself to his subordinate civil Officers Here 's no hindring the dispensing of Justice no obstructing the Kings business nor letting the execution of His Majesties service in the hands of these publick Officers that is at all dreaded hereby And pray How then comes it to pass that the case is not the same when in matters of Ecclesiastical cognizance the Kings Ecclesiastical Judge in his Ecclesiastical Courts proceeds against such persons by penalties proper and usually inflicted therein Is not the Kings Authority in His Ecclesiastical Courts in matters belonging to them as forcible and
of King Edward the third Now if it be here said that these Constitutions were made before the Statute of Praemunire came forth and so proceeded more peremptorily and not with that submissive regard and dutiful obedience to the Crown as they ought to have done I answer by acknowledging those Constitutions to aim indeed at the restraining of the Kings Prerogative and of his Temporal Courts and therefore not of any force now or that proceedings should be guided thereby * Sir Tho. Ridley in his View c. leaves it without decision whether these constitutions be annulled by the Act of Parliament viz. 25. Hen. 8. c. 19. He determines not absolutely I say but refers it to better judgements But this mention is made of them to shew Historically what was then practised and held usually and moreover to evince that where the Rights of the Crown are not thereby impaired nor any of the Kings Temporal Courts invaded Ecclesiastical proceedings may be made against any Person and his being in any subordinate civil office does not exempt him therefrom I must yield to and acknowledge what the Statute 25 Hen. 8. cap. 19. has determined viz. All Canons Constitutions Ordinances and Synodals Provincial that had been then made are received into the body of the Ecclesiastical Laws and are Established to be the Ecclesiastical Lawes of England and become of good force and validity but with this necessary proviso herein quatenus consuetudinibus statutis Regninon repugnant nec prerogativae Regiae adversaâ—tur Dr. Zouch de jure Ecclesiast p. 1. Sect. 1. So the Statute it self reports of them that they are of force and still binding so far forth as they be not contrariant nor repugnant to the Laws customs and statutes of this Realm nor to the Danger or Hurt of the Kings prerogative Roya In the Formula of Juridical practice for causes Ecclesiastical set forth by Francis Clerk and which is approved in all the Consistories and other Ecclesiastical Courts of England and Ireland In this Formula I say There is a title namely the two hundred and fifteenth title of that Book after what manner to begin and proceed in any Ecclesiastical cause perhaps at the instance of a party against any Community as Dean and Chapter Master Fellows and Scholars of any Colledge c. In the body of which title the manner of proceeding against any Mayor and Community of a City particularly that of London is described whence I make this Collection That what is declared as a matter to be observed in Ecclesiastical practice when occasion requires a proceeding against any Mayor or Community of a City that does certainly imply that such a Mayor and Community are subject to Ecclesiastical jurisdiction and consequently to such penal coercions and censures the matter so requiring it as are properly inflicted thereby Hitherto concerning the first particular that this position is agreeable to the Ecclesiastical Law 2. As this position is agreeable to the Ecclesiastical Law so it is not repugnant to the Kings Temporal Laws or the Municipal Laws of these Kingdoms It is not repugnant to the Statute Law The Statute called Magna Charta confirmed by King Henry the Third in the Ninth year of His Reign and by so many Kings since this Statute said to be the Ancientest written Law that is now extant and the Breviate and Summary of all the written Laws of England and most beneficial to the Subject declares in the first Chapter thereof That the Church of England shall be free and have all her Holy rights and liberties inviolable * Et habeant omnia jur a sua integra that is all Ecclesiastical persons shall enjoy all their lawful jurisdictions and other rights without any diminution or substraction whatsoever D. Coke on Magna Charta cap. 1. Jura sua sayes the same Author ibidem prove plainly that no new rights were given to them but such as they had before hereby are confirmed so that it followes that what amplytude and fulness of jurisdiction they had before is hereby confirmed In the Thirty seven Chapter of the said Statute There is a Reserve to all Archbishops Bishops c. Of all their Liberties and Priviledges one branch of which Liberties and Priviledges and Rights is this power of jurisdiction over all persons in their respective Diocesses Edward the first the Son and Successor of this King ordained the Statute called circumspecte Agatis in the thirteenth year of His Reign It has been affirmed concerning this Law that it was a prelatical Constitution because inserted in the Provincial Constitutions in the title de foro competenti or at the most one onely of the Kings Writs issuing out on some occasion leading thereunto But to confirm the Authority hereof My Lord chief Justice Coke determines of it after this manner though some have said this was no Statute but made by the Prelates themselves Yet that it is an Act of Parliament is not only proved by our Books but also by an Act of Parliament Instit p. 2. p. 487. In this Statute then set down as a boundary betwixt the Spiritual and Temporal jurisdiction full power and authority is given or confirmed rather to the exercise of jurisdiction Ecclesiastical over all persons indistinctly in such cases as belong to and are mentioned in it In the Ninth year of His Son and Successor King Edward the second came forth the statute called Articuli cleri by the form and purport of which it appeareth that for any matter Ecclesiastical indefinitely Men may be cited and if cited then subject to all judicial consequences therein In the Twelfth Chapter of this statute The question is put Whether the Kings Tenants be subject to the Ecclesiastical jurisdiction as others are and if they may be Excommunicated for their manifest contumacie and after forty dayes continuing so whether they may be signified and attached by the Kings Writ The answer given to the question is such It was never yet denyed nor shall be hereafter * The close of which Statute is after this manner Ratifying confirming and approving all and every of the Articles aforesaid with all and every of the Answers made and contained in the same do grant and command them to be kept firmly and observed for ever willing and gran ting for us and our Heirs that the foresaid Prelates and Clergie and their Succeâ—sors shall use execute and practise for ever the jurisdiction of the Church in the Premises after the Tenor of the Answers aforesaid without quarrel inquieting or vexation of our Heirs or any of our Officers whatsoever they be Poult Collect of statutes pâ— 101. in fine cap. 16. It seems the Kings Tenants supposed themselves such specially priviledged persons as to be thereby exempted from spiritual jurisdiction but that would not serve their turns And so a pari what would not be sufficient for them will not be sufficient for others though in office under the King During the long Reign
displeased thereat for as one Historian informs us * Mat. Paris Anno 1250. p. 777. and he a Votary to the Pope in another case hapning but two years before viz. in the 36th year of this Kings Reign and which this passage must undoubâ—edly refer to Non sine redargutione peritorum haec fecit Dominus Rex quod scilicet conquestus fuerit super haec Domino Papae The Pope to be sure was forward enough to engage himself in the concerns of Princes and so would make himself more officious to gratifie the King than was needful whereas the provision which by the Laws was made against any such encroachments and the Kings own Regal power to put the same Laws in execution would have given him better relief than any indult or dispensation from the Pope could do Well upon the Reasons before specified prohibitions issued out from King Henry to keep the Bishops from censuring his Officers but notwithstanding them still they would be encroaching on the Kings Rights in his temporal Courts and so they continued to the time of King Edward the first the son and immediate successor of the former King and thence proceeded the issuing of that Kings prohibitory mandates Requiring and commanding the Bishops not to Excommunicate his Bayliffs and Officers without his previous Licence and Order That is as by what is to be collected from the state of affairs in these times until the King fully understood the nature of the cause these Officers and Bayliffs were convented upon for as I declared before they were often censured and excommunicated because they opposed the Popish encroachments on the Kings temporal Rights therefore the King would understand the true grounds of such proceedings that if the matter were of civil concernment his Officers might be freed from such vexatious and unjust prosecutions but if it appeared to be of Ecclesiastical cognizance they were then delivered up to the Jurisdiction thereof This I conceive to be the very genuine and true meaning hereof for these reasons first because it is consonant to the end and purport of other Writs of the like nature the Author has not recited these Records at large which if he had done very probably something plainly directing to this conception might have been found therein Moreover by the Statute called prohibitio formata de Statuto Articuli Cleri * Which Stature had â—eâ—â—â—ence to certain Articles of the Clergy â—â—h biâ—ed in Parlâ—ament hold Anno 51. Hen. 3. made the beginning of King Edwards Reign The spiritual Jurisdiction is not at all restrained subjectively that is respectively to persons being of this or that condition or quality but only objectively as to causes namely such as had been usurped before by the spiritual Courts Lastly this is made good also from approved practice in this very Kings Reign as will appear by this remarkable story that now follows Thomas the Noble Earl of Lancaster had to wife Alice only Daughter and Heir of Henry Earl of Lincoln at the same time John Earl of Warren was married to King Edward the first his Neece yet the said Earl Warren by great force and strong hand caused the said Alice Countess of Lancaster to be fetched from the Earl of Lancasters house in Canford in Dorset shire and in great pomp and bravery in despight of the Earl of Lancaster to be brought to him to his Castle of Ryeâ—gate in Surrey where they lived in open advowtry John Langton was then Bishop of Chichester and Chancellor of England and being a man of a brave spirit and fearing not the face of great men according to his office and duty he called the said Earl Warren in question for the said shameful and open Adultery and by Ecclesiastical censures Excommunicated him for the same as he well deserved sayes my Lord Coke who reports this Story * Expâ—fâ—â—ion on the Statute called Articuli super Chartas Anno 28 Edvard 1. page 573. This hapned about the 29th year of King Edv. 1. and surely is an instance proper to inform us what the right state of Ecclesiastical Jurisdiction was then and that supposing the matter to be indeed belonging to the Ecclesiastical Tribunal no person of greatest dignity under the King nor any others in civil office and place of power are exempted from it nor did the Kings prohibitory Writs give any such exemption Thus it was while the Ecclesiastical Jurisdiction did de facto stand divided from the Crown and before our Kings re-assumed their Rights in the same But forasmuch as now there is an entire Union of both jurisdictions in one supream King and Governour the exercise of the Ecclesiastical jurisdiction is certainly at least as extensive as full and as Universal now as it was before And whereas the obtaining and having the Kings leave and licence to the inflicting any censures on His Bayliffs and Officers is mentioned in those prohibitory Writs whence it may be inferred that admitting Ecclesiastical judges may proceed against and censure occasion so requiring it the Kings Officers in civil powers yet the Kings leave and order so to do must first be had and obtained To this I say that now by the right constitution of Ecclesiastical jurisdiction and as the exercise thereof is derived from the Crown the Kings leave and licence in the whole procedure thereof is implicitely indeed yet as truly and certainly had and obtained as if a particular and express mandate from the King were issued out upon each several cause civil or criminal that belongs to the cognizance thereof The Eâ—clesiastical judge acts by a power as immediately derived from the King as any Temporal Judge does The Bishop is as amply and compleatly Commissionated for the Exercise of Ecclesiastical jurisdiction both subjectively and objectively in foro Externo contentioso which Commission passes in His Majesties Letters Patents for Restauration of the Temporalities as any other Temporal Judge in any of the Kings Temporal Courts And upon this account it is as truly affirmed That nothing is done in the Ecclesiastical Court Rege inconsulto as the same is said concerning the Temporal Court Habet Rex diversas Curias in quibus diversae Actiones terminantur sayes Bracton and he lived in one of these Kings Reign viz that of King Henry 3d whence Sir Edward Coke draws this conclusion That the King hath committed and distributed all his whole power of Judicature to several Courts of Justice and in this he refers to Ecclesiastical Courts as well as Temporal And from the Statute 24 Hen. 8. cap. 2. he declares thus That the Laws Ecclesiastical and Temporal were and yet are administred adjudged and executed by sundry Judges * His Jurisdiction of Courts cap. 7. p. 70. c. Hence is that saying That the King does judge by his Judges Thus in matters of Ecclesiastical cognizance the King judges by His Ecclesiastical Judges and whatsoever persons are any way concerned therein and impleaded in the Ecclesiastical Court the
praemunire Anno 16. Richard 2d cap. 5. It is Ordained That none shall purchase or pursue in the Count of Rome or elsewhere any Processes Bulls c. nor the same bring within the Realm viz. these His Majesties Dominions This be it spoken under correction cannot rationally be intended de Curia Episcopi here within this Blealm the reason is plain because Curia Bomana velâ—alibi where such Processes and Bulls c. are purchased and pursued and from whence they are brought within the Realm these I say must be somewhere out of the Realm for the bringing in of a thing excludes the obeing of that thing there already but the Bishops Courts are within the Realm and none of these Processes brought into the Realm can be from them and therefore this word alibi has no reference to nor can it be intended of them Add hereunto That the occasion inducing this Statute and recited in the preamble to lit seems not all to favour this sense of the word The Coinmons in Parliament having with great vehemency and earnestness represented the several Grievances the Kingdom lay under among others these are especially mentioned viz. The Popes Excommunicating of Bishops for executing the Kings Commandments the Popes translating of them from See to See sometimes out of the Kingdom against their own and contrary to the Kings Will The Lords Spiritual being therefore demanded as the Lords Temporal had been before what their Advice and Will was in these cases The Archbishops and Bishops and other Prelates openly disclaimed the Popes insolent carriage towards the King and His Subjects and declared That they would and ought to stand with the King in these cases in lawfully maintaining of His Crown and in all other cases touching His Crown and Regality as they be bound by their Allegiance Whereupon sayes the Statute It is Ordained and Enacted That if any purchase or pursue c. from the Court of Rome or elsewhere c. May I not here well demand what relation either in the occasion or sense of the Stature can be made up betwixt Bishops Consistories and this word Alibi Bishops in their Jurisdictions were troubled by the Pope as the King Himself was in the right of His Crown both are complained of both redressed by this Statute How can that which is the Grievance complained of in the preamble of the Statute come to be the thing aggrieving in the latter part of it The truth is provision is here made against the setting up and abetting of all Forreign Authority but Domestical proceedings in Ecclesiastical Courts are not related to This I am confident to affirm by this Authority following The preamble sayes my Lord Coke from Pl. Com. fo 369. Stowells case in every Statute is to be considered for it is the Key to open the meaning of the makers of the Act and mischiefs which they intend to remedy Also from a case 4 Ed. 4. fo 4. 12. The same learned Judge declares thus Every Statute ought to be expounded according to the intent of them that made it where the words thereof are doubtful and uncertain and according to the rehearsal of the Statute and there a general Statute is construed particularly upon consideration had of the cause of making the Act and of the rehearsal of all the parts of the Act c. 4 Instit cap. 74. It is a general Rule allowed by all Laws in construction of Statutes Quamvis lex generaliter loquatur restringenda tamen est ut cessante ratione ipsa cesset cum enim ratio sit Anima vigorque ipsius legis non videtur Legislator id sensisse quod ratione careat etiamsi Verborum generalitas prima facie aliter suadeat Idem Ibidem And for the Book-case related to and the inference made therefrom hear what a learned person has delivered very fully and appositely concerning that not in answer to this Judges opinion for he wrote many years before him but to invalidate an Assertion of the same nature with this and from the same Book-case viz. 5 Ed. 4. fol. 6. praemunire and made by one he then contended with This case does but speak of the Excommunication by a Bishop and not of every dealing whatsoever in a matter belonging to the Kings Regality and what if it had been twice so adjudged both of them in such corrupt times when as the Royal Prerogative of the Kings of this Land to be Supreme Governors in all Jurisdiction Ecclesiastical due to them in Right and by Gods Law was not de facto united to the Crown For the Bishops then did not claim their Jurisdiction Ecclesiastical next and immediately under God from the Crown as now they do but seeing this part of Regal power is now no less truly and fully vested in the Crown than is the Temporal so as the Laws allowed for the Ecclesiastical Government are termed by sundry Parliaments the Queens Ecclesiastical Laws and Laws of this Realm as well as those that were first originally made here And the Bishops are proved to have their Authority and Jurisdiction Ecclesiastical derived down unto them from the Queens Highness under the Great Seal of England Is it then the like reason still to comprise their Jurisdictions and Courts under that word of Alibi as if their Courts and Jurisdictions were not now the Queens nor yet belonging to Her Regality Cosen Apol. p. 3. ch 7. Furthermore the holding plea of a matter belonging to the common Law by an Ecclesiastical Judge so constituted as he ought to be and now is does not tend to the disinherision of the Crown that is not to the impairing of any Regality Power or Preheminence belonging to the same and therefore cannot be the crime of praemunire The Statute 25 Hen. 8. cap. 21. declares concerning whom and how offending the Statute of the 16 Richard secundi was framed namely such as sue to the Court of Rome against the Kings Crown and Dignity Royal one Statute best explains another So then where the Authority that is acted by is the same a mistake in the matter to be proceeded upon or manner of proceeding in does not infringe that authority The reason is because the Kings authority empowring to act is still acknowledged and what is judicially done thereby proceeds by power derived from Him not from any power set up against him I presume it will be readily granted That the upholding and securing the Kings Supremacy in all causes and over all persons is that which principally if not solely is aimed at by this Statute And then it plainly follows that where that Supremacy is maintained no breach of that Statute can be made nor penalty incur'd by any for a mistake only of the matter that any Plea in Subordination to the King as Supream is held upon The worst that is to be said in this case is this That he who being a spiritual Judge does take cognizance of any temporal matter offends in going beyond his Commission and
truly this is bad enough but not so bad neither as to bring under the guilt of praemunire If it were observe the consequence what that would be for it would as certainly and unavoidably expose a temporal Judge to the penalty of a praemunire if he proceed to hear and determine in a matter of Ecclesiastical cognizance because that is beyond his Commission as 〈◊〉 would expose a spiritual Judge to the same penalty that he intermeddles with causes of temporal cognizunce for observe well what Bracton sayes in relation to both Jurisdictions and the proper Judges of each Cum diversi sint hinc inde Jurisdictiones diversi Judices diversae causae debet quilibet ipsorum imprimis aestimare an sua sit Jurisdictio ne falcem videatur ponere in Messem alienam Again Non pertinet ad Judices Soeculares non pertinet cognoscere de iis quae sunt spiritualibus annexa sicut de decimis c. Bract. l. 5. c. 2. apud Hookerum Ecclesiast Pol. lib. 8. p. 218. I may be thought to have made a strange confident and odd inversion upon these two cases but for my share freely I do acknowledge that it is above the reach of my reason to conceive of any difference herein for as both Spiritual and Ecclesiastical Courts are now constituted deriving from the same Regal Supremacy that the Temporal Courts do the consequence is as good on one hand as on the other Indeed I should not have exposed my self to the censure of being thought too bold in the concerns of Temporal Courts and Temporal Judges especially in such an inversion as this so lyable to be frown'd upon But the truth is I found it made to my hand by the person whose name I have often used and whose Authority I much depend upon Is not sayes he the Prerogative Royal in and for causes Ecclesiastical as high and as rightly setled in the Prince and incident to Her Highness Crown and Regality as the same is for Temporal power and authority What cause is there then seeing seu alibi in the Statute signifieth in true construction any place â—hatsoever besides Rome That every holding Plea by an Ecclesiastical Court of a matter wherein it ought not to hold should at this time be reckoned a thing contrary to the Queens Regality more than dealing in any Ecclesiastical cause should be in any temporal Court at Westminster for no Statute of provision or praemunire assigneth these for causes which have indeed grown since by collections whil'st the Popes usurpation was continued in the Land Against which oftentimes the Remedy by prohibition could not serve the turn Cosen Apol. par 3. ch 7. p. 87. But admit the worst let there be a disparity allowed let the failing be on the Ecclesiastical Judges side yet still he is the Kings Ecclesiastical Judge And there is a favour alwayes on a Judges side so far as to presume That he is fit to Act in what he is appointed to and that he does Act according to what he is best informed of by his skill and from his conscience Sacrilegii instar est dubitare an is Dignus sit quem Imperator elegerit That persons merit and integrity is not to be doubted of whom his Princes will has appointed to any publick Office and Employment say the Emperors Grat. Valent. Theod. in Leg. Tertia C. de crimine Sacrilegii Now it is not to be rationally supposed that any one exercising the Office of a Judge will designedly and purposely hold Plea of such a cause which he either knows to be or is propounded to him as belonging to Temporal cognizance But it may so happen that by nearness and coherence of one cause with another that which indeed is a Temporal may be supposed to be an Ecclesiastical cause and if an Ecclesiastical Judge minding to do his duty as the nature of his office doth require do yet by resemblance and near coherence of one cause with another proceed in that which is Temporal shall this presently cast him under a Praemunire That is shall the exceeding some bounds and limits that the Prince under whom he exercises Jurisdiction has prescribed to him bring him under such punishments as the very enemies and underminers of his State are to endure This certainly were very harsh and rigorous I know nothing more to be declined than such an Office where the exercise of it puts a man into that ticklish and tottering condition That he is ready every day without that exact circumspection as is morally impossible for the carefullest man alive alwayes to have to fall into the greatest penalties and dangers It has been said That a corrivality betwixt the Ecclesiastical and common Lawyer has still made the one seek his own elevation by the depression of the other But here the common Lawyer has got an insuperable advantage over the other for let him but hold to this Opinion and by his Authority make it good That the bare holding Plea of a Temporal cause in an Ecclesiastical Court makes liable to the penalties of Prâ—â—munire and the contest is at end There will then be few that will care to study the Ecclesiastical Laws fewer that will dare to execute any Ecclesiastical Jurisdiction A grave and sober person delivers his mind touching this matter with a great deal of ingenuous freedom and truth Hoc Austerum supplicium speaking of Braemunire aliqui Jurisperiti nostri Lucri Ambitionis aestu accensi verborum quae in uno Statuto observant generalitatem ad quemvis levem Judicum lapsum praesertim Ecclesiasticorum nimis violenter extendunt sed hic corum candorem desideramus aliquorum etiam inscitiam lugemus Dr. Cowell Instit de Publicis Judicis Sect. 43. King James a wise and discerning Prince easily discovered the Grievances that this profession laboured under and was pleased earnestly to concern himself in redressing of them This great King speaking of the usefulness of the Civil and Canon Law among His own Subjects in matters of Pyracy Wills Marriages and things of like nature proceeds thus And this Law has been so much encroached upon sithence my coming to the Crown and so had in contempt that young men are discouraged from studying it and the rest weary of their lives that do profess it and would be glad to seek any other craft * K. James's Speech in the Star Chamber to the Judges about the 14th year of His Reign And some pages after in the same speech when He comes to give His particular charge to the Judges he has these words What greater misery can there be to the Law than contempt of the Law and what readier way to contempt then when questions come what shall be determined in this Court and what in that whereupon two Evils do arise the one that men come not now to Courts of Justice to hear matters of right pleaded and Decrees given accordingly But only out of a curiosity to hear questions of the