those Courts to give Remedy in those Cases Thus stood Ecclesiastical Jurisdiction in England by Common Law before our Statutes took so much notice of it and our Statutes since whenever they mention it do generally mention it as a Government supposed upon grounds good and firm in Law to have existed before and also then to be in use and to flourish in its present exercise and proceedings in its proper course and Courts 'T is as idle a thing to look in the Statute-books for the beginning of Ecclesiastical Power and its Courts as for the Beginning of Courts-Baron which are such by Common Law as Coke saith or the Court of Marshalsea which as Coke's words are hath its foundation in Common Law or Courts of Copyholders which are such by Custom And for the same reason to question the lawfulness of these Courts because in their original they were not Established by Act of Parliament as well as the legality of the Courts Spiritual these being equally founded in the Ancient usage Custom and Law of England and all taken care for in Magna Charta that ancient Authentick account of our Common Law And why are Ecclesiastical Judges I mean not Bishops only whom Mr. Hickeringill finds in Scripture but Archdeacons Chancellors Officials c. as well Establish'd in their proper power as Coroners High-Constables c. that have the Origine of their Offices before Statutes Have not Ecclesiastical Officers when lawfully invested power as well as they to Act in their proper Jurisdictions by the same Common Law by long ancient and establisht Custom or as the usual word in our Statutes in this very Case is secundum Consuetudines Leges Angliae My Lord Coke saith The Kings Prerogative is a principal part of the Common Law which also flourisheth in this part of it the Ecclesiastical Power and Jurisdiction as well as in the Civil State and Government Thus we acknowledge the Ecclesiastical State and External and Coercive Jurisdiction derives from and depends upon the Crown of England by Common Law And I am bold to add that the former cannot easily be Abolish'd and destroy'd I do not say altered without threatning the latter I mean the Crown at least some prejudice to it on which it depends Thus Ecclesiastical Jurisdiction stands by Common Law on which also most of our Civil Rights depend but we confess it is bounded as my Lord Coke by the same Common Law and in all reason it must be so it being subordinate to the King as Supream who is supposed to be personally or virtually present in his great Courts of Common Law and is so declared to be by Acts of Parliament Instit p. 1. pag. 344. of my Lord Coke SECT II. The Government Ecclesiastical is Established in the Statutes of this Realm THE Ecclesiastical Jurisdiction being thus found Establisht by Law before the Statute-books were made the Statutes do Establish it as much as any reasonable unprejudic'd man can expect or desire We shall begin with Magna Charta which is Statute as well as Common Law and seems to unite and tye them together This stands at the beginning of our Statute-book and the first thing in this is a grant and establishment for ever of the Rights and Liberties of the Church that must be understood of the Rights and Liberties then in being and among the rest sure the great Right and Liberty of the Churches Power and the free use of her Ecclesiastical Jurisdiction Magna Charta it self expounds what it means by holy Church i. e. the Bishops and Ministers of it which King Hen. 8. in the Statute saith is commonly called the Spiritualty and Mr. HIckeringill for all his scoffing knows that the Church of England allows a larger sence of the word Church viz. the Congregation of all faithful men c. And when we call the Clergie or the Governing-part of the Church the Church we use it in a Law-sence and as a term of Law as Acts of Parliament as well as the Civil or canon-Canon-Law do But this by the way 2. When the subsequent Acts of Parliament do so frequently mention the Spiritual Courts and their Jurisdiction this to me is a legal allowance of them and indeed a Tacit or implicit acknowledgment of their more ancient antecedent Power and Common right and liberty by the undoubted Custom i. e. the Common Laws of the Land Yea those very Statutes that look at least obliquely upon them that say they are bounded by the Common Law that do of themselves limit and prohibit the Ecclesiastical Courts in some cases seem plainly to acknowledge them in other cases not excepted from their Jurisdiction But 3. More plainly and directly those Acts of Parliament that appear in the behalf of Ecclesiastical Jurisdiction in times of its trial and danger and vindicate its Rights and preserve and maintain its Liberties when most in question there have hapned such occasions wherein the Statutes have rescued and replevied the Ecclesiastical Power in all which the Statutes have been thus favourable to it three of late not to mention many formerly 1. Thus when some might imagine that by the alteration made by King Hen. 8. the Bishops and their Power was shaken the Statutes made in his time assure us that it was but to restore the ancient Jurisdiction and not to destroy it that Bishops should be elected and act as formerly especially as Coke noteth by the 25 Hen. 8. c. 20. it is Enacted That every person chosen invested Consecrated Archbishop or Bishop according to this Act shall do and execute every thing and things as any Archbishop or Bishop of this Realm without offending of the Prerogative Royal of the Crown and the Laws and Customs of the Realm at any time heretofore have done Note that this Statute contrary to the 1 Edw. 6. 2. was revived by Queen Eliz. 1. cap. 1. which the Judges thought and judged a full answer to all the Objections against the Churches proceedings contrary to the 1 Edw. 6. 2. and by this very Statute 1 Edw. 6. 2. stands clearly repealed as my Lord Coke observes Rep. 12. 8 9. which caused me to make choice of it for my present purpose 2. The second is observed in the time of Phil. and Mar. when the manner of Ecclesiastical Jurisdiction had been altered by the 1 Edw. 6. the Statute establisheth the same as it was before in these words And the Ecclesiastical Jurisdictions of the Archbishops Bishops and other Ordinaries to be in the same estate for Processe of Suits punishment of crimes and execution of Censures of the Church and knowledge of causes belonging to the same and as large in those points as the said Jurisdiction was the 20 Hen. 8. which Statute of Phil. and Mar. repealed the 1 Edw. 6. 2. and was never repealed since as the Judges resolved in the foresaid Case 4 Jac. but evidently revived by 1 Eliz. 1. Sect. 13. 3. When thirdly the long Parl. 17 Car. 1. had disabled the
Jurisdiction of the Courts Ecclesiastical it was very carefully restored and established by the Stat. 13. Car. 2. in these words Neither this Act shall take away any ordinary Jurisdiction from the said Archbishops c. but that they and every of them may proceed in all manner of Ecclesiastical Jurisdiction and in all Censures and Coercions belonging to the same as they did and might lawfully have done before the making of the said Act. Vid. 17 Car. 1. 4. 'T is sufficient yet I cannot but subjoyn one notable way more Argumentative enough alone by it self to prove the Ecclesiastical Courts to be allow'd and confirm'd by Statute viz. when the Statutes direct such particulars to be tried in these Courts and require these Spiritual Courts to use their power for the punishment of offenders and the doing Justice And I think there cannot be a better medium or clearer evidence than we have in this matter For if the Spiritual Courts have no power to try such matters and pass Judgment and punish in such cases why do the Statutes direct and remit such matters to them and why do the Statutes enjoyn them to take Connusance and proceed accordingly that so they do is plain In the 18 of Edw. 3. 6. 't is said that Processe in Causes Testamentary notoriously appertaineth to holy Church We must not blemish the Franchize of Holy Church And in the 18 of Edw. 3. 6. parties are to be dismissed from Secular Judges in Cause of Tithes and left to the Church Ordinaries have power to punish Ministers and Priests as in 1 Hen. 7. c. 4. Synodals Proxies Pensions c. are to be recovered in the Spiritual Courts Vid. 15 Hen. 8. c. 7. Sect. 7. The like is known touching Causes Matrimonial and Defamations c. I shall only instance one more viz. in the great Cause of Non-Conformity and that in an Act that is nearer to us and of unquestionable Authority which both directs what we should punish and most solemnly requires by its own Authority to exercise our Ecclesiastical Power by the very rules and proper methods of our Spiritual Courts in these words 1 Eliz. before the Common Prayer Provided always and be it Ordained and Enacted by the Authority aforesaid That all and singular Archbishops and Bishops and every of their Chancellors Commissaries Archdeacons and other Ordinaries having any peculiar Ecclesiastical Jurisdiction shall have full power and Authority by vertue of this Act as well to enquire in their Visitatiions Synods and elsewhere within their Jurisdiction at any other time or place to take accusation and informations of all and every the things above mentioned done committed or perpetrated within the limits of their Jurisdictions and Authority as to punish the same by Admonition Excommunication Sequestration or Deprivation and other Censures and Processe in like form as heretofore hath been used in like cases by the Queens Ecclesiastical Laws This doubtless is very plain And hereupon 't is solemnly required in these words a little-before For the due execution hereof they do in Gods name earnestly require and charge all Archbishops Bishops and other Ordinaries that they shall endeavour themselves to the utmost of their knowledges that the due and true execution hereof may be had throughout their Dioceses and Charges as they will answer before God for such evils and plagues whereby Almighty God may justly punish his people for neglecting this good and wholsom Law Now if in like cases it had not been lawful before this Act for the Spiritual Courts so to proceed why are the former Laws and use to be followed by these directions Or if this Act cannot impower us give us reason or Law against it Or if any thing be a greater grievance to you in the Spiritual Courts than the punishment provided for the crimes mentioned in this Act say what it is or say nothing But if these cases be not sufficient Mr. Cary can tell you of at least ten particular matters upon which the Law is to grant the Writ de Excommunicato capiendo and according to a know Act of Parliament made after this viz. 5 Eliz. 23. which sufficiently allows and confirms our Ecclesiastical proceedings to the fences of too many as some complain CHAP. VII Of Canons and Convocations WE see what Reason Mr. Hickeringill had to keep such a pother about the force of Ecclesiastical Canons and the Authority of Convocations Especially 1. Seeing the late mentioned Act of 1 Eliz. supposeth the Ecclesiastical Laws i. e. the Canons to be her own Laws and requires Ecclesiastical Judges so severely to put them in execution 2. Seeing since the Reformation most of the matters of Canons are expressed and enjoyned in Acts of Parliament insomuch that Ecclesiastical Jurisdiction might stand and proceed well enough had we no other Canon but Acts of Parliament as Mr. Hickeringill insinuates and 't is worthy his observation that the greatest complaints of Dissenters since the Kings happy return have been upon the execution of Acts of Parliament and that not so much by Ecclesiastical as Civil Ministers Indeed the Statute of Car. 2. that restored the Ecclesiastical Jurisdiction hath a Proviso That by vertue of that Act the Canons of 1640. shall not be of force and that no Canons are made of force by that Act that were not formerly confirm'd by Acts of Parliament or by the establish'd Laws of the Land as they stood in Ann. 1639. But 't is evident enough that by the 25 Hen. 8. c. 19. the old Canons not against Law or Prerogative are of force and that the King with the Convocation may make new ones with the same Condition and indeed while the Convocation is so limited by that Act their power seems not very formidable My Lord Coke who was not a Bigot for Spiritual Power declares the Law in both those Cases and tells us That it was resolved by the Judges at a Committee of Lords these restraints of the Convocation were grounded on that Statute 1. They cannot Assemble without the assent of the King 2. They cannot Constitute any Canons without his licence 3. Nor execute them without his Royal assent 4. Nor after his assent but with these four limitations 1. That they be not against the Kings Prerogative 2. Nor against Common Law 3. Nor against Statute Law 4. Nor against any Custom of the Kingdom Rep. 12. p. 720. And my Lord Coke adds That these restraints put upon the Convocation by the 25 Hen. 8. are but an affirmance of what was before the Statute and as he saith in his book of Courts are but declaratory of the old Common Law Pag. 323. consequently the Courts of Common Law are to bound and over-rule all Ecclesiastical executions of Canons and secure the Crown and the Laws against them But what Acts of Parliament have abrogated the Authority of the Synod 1603. and quite annihilated the very beings of Convocations I am yet to learn though Mr. Hickeringill so boldly after his own
other such kind of Instruments as the Statute 25 Hen. 8. 21. mentions and that this Power was denied or taken from him by the same Statute as also by another 28 Hen. 8. 16. and placed in or rather reduced to the Jurisdiction of the Arch-Bishop of Canterbury saving the Rights of the See of York in all Causes convenient and necessary for the Honour and Safety of the King the Wealth and Profit of the Realm and not repugnant to the Laws of Almighty God The Grounds of removing this Power from the Pope as they are expressed in that excellent Preamble to the said Statute 25 Hen. 8. are worthy our Reflexion they are 1. The Pope's Vsurpation in the Premises 2. His having obtained an Opinion in many of the people that he had full Power to dispence with all humane Laws Uses and Customs in all Causes Spiritual 3. He had practised this strange Usurpation for many years 4. This his practice was in great derogation of the Imperial Crown of this Realm 5. England recognizeth no Superior under God but the King only and is free from Subjection to any Laws but such as are ordained within this Realm or admitted Customs by our own Consent and Usage and not as Laws of any Forreign Power 6. And lastly that according to Natural Equity the whole State of our Realm in Parliament hath this Power in it and peculiar to it to dispence with alter Abrogate c. our own Laws and Customs for Publick good which Power appears by wholsom Acts of Parliament made before the Reign of Henry the Eighth in the time of his Progenitors For these Reasons it was Enacted in those Statutes of Henry the Eighth That no Subject of England should sue for Licences c. henceforth to the Pope but to the Arch-Bishop of Canterbury Now 't is confessed before and in the Preamble to the Statute that the Pope had used this Power for many years but this is noted as an Aggravation of the Grievance and one Reason for Redress but whether he enjoyed it from the time of Saint Austine or how long quietly is the proper question especially seeing the Laws of the Land made by King Henry's Predecessors are pleaded by him in contradiction to it Yea who will come forth and shew us one Instance No Instance 1110 years after Christ of a Papal Dispensation in England for the first eleven hundred years after Christ if not five hundred of the nine hundred years Prescription and the first five hundred too as well as the first eleven hundred of the fifteen are lost to the Popes and gained to the Prescription of the Church of England But Did not the Church of England without any reference to the Court of Rome use this Power during the first eleven hundred years what man is so hardy as to deny it against the multitude of plain Instances in History Did not our Bishops relax the Rigor of Ecclesiastical Canons did not all Bishops all over the Christian World do the like before the Monopoly was usurped In the Laws of Alured alone and in the conjoynt Gervis Dorober p. 1648. Laws of Alured and Gunthrun how many sorts of Ecclesiastical Crimes were dispensed with by the Sole Authority of the King and Church of England and the like we find in the Laws of Spel. Conc. p. 364. c. some other Saxon Kings Dunstan the Arch Bishop had Excommunicated a great Count he made his peace at Rome the Pope commands his Restitution Dunstan answered I will obey the Pope willingly when I Ibid. p. 481. see him penitent but it is not God's will that he should lie in his sin free from Ecclesiastical Discipline to insult over us God forbid that I should relinquish the Law of Christ for the Cause of any Mortal man this great Instance doth two things at once justifieth the Arch-Bishops and destroyeth the Pope's Authority in the Point The Church of England dispensed with those irreligious Nuns in the days of Lanfrank with the Council of the King and with Queen Maud the Wife of Henry the First in the like Case in the days of Anselm without any Suit to Rome or Forreign Dispensation Lanfr Ep. 32. Eadm l. 3. p. 57. These are great and notorious and certain Instances and when the Pope had usurped this Power afterwards As the Selected Cardinals Stile the avaritious Dispensations of the Pope Sacrilegious Vulnera Legum so our Statutes of Provisors expresly 27 Ed. 3. say they are the undoing and Destruction of the Common Law of the Land accordingly The King Lords and Commons complained of this abuse as a Mighty Grievance of the frequent coming among them of this Infamous Math. Par. Au. 1245. Messenger the Pope's non-obstante that is his Dispensations by which Oaths Customs Writings Grants Statutes Rights Priviledges were not only weakned but made void Sometimes these dispensative Bulls came to legal Trials Boniface the Eighth dispensed with the law where the Arch-Bishop of Canterbury was Visitor of the University of Oxford and by his Bull exempted the Vniversity from his Jurisdiction and that Bull was decreed void in Parliament by two Successive Kings as being obtained to the prejudice of the Crown the weakning of the Laws and Customs of the Kingdom and the probable Ruine of the said University Ex Arch. Tur. Londini Ex Antiq. Acad. Cantab. p. 91. In interruption of this Papal Vsurpation were those many Laws made in 25 Edw. 1. and 35 Et 12 Rich. 2. Edw. 1. 25 Edw. 3. and 27 and 28 Edw. 3. and afterwards more expresly in the sixteenth of Richard the Second where complaining of Processes and Censures upon Bishops of England because they executed the King's Comandments in his Courts they express the mischiefs to be the Disinherison of the Crown the Destruction of the King Laws and Realm that the Crown of England is subject to none under God and both the Clergy and Laity severally and severely protest to defend it against the Pope and the same King contested the Point himself with him and would not yield it An Excommunication by the Arch-Bishop albeit Lord Coke Cawdrie's Case it be disanulled by the Pope is to be allowed by the Judges against the Sentence of the Pope according to the 16 Edw. 3. Titl Excom 4. For the Pope's Bulls in special our Laws have abundantly provided against them as well in case of Excommunication as Exemption vid. 30 Edw. 3. lib. Ass pl. 19. and the abundant as is evidenced by my Lord Coke out of our English Laws in Cawd Case p. 15. he mentions a particular Case wherein the Bull was pleaded for Evidence that a Person stood Excommunicate by the Pope but it was not allowed because no Certificate appeared from any Bishop of England 31 Edw. 3. Title Excom 6. The same again 8 Hen. 6. fol. 3. 12 Edw. 4. fol. 16. R. 3. 1 Hen. 7. fol. 20. So late as Henry the Fourth if any Person
among us by Law or quiet possession in Fact for any considerable time together but was still interrupted by the whole Kingdom by new declaratory Laws against it Thus we have seen how the Popes Possession of the formal branch of Jurisdiction by Appeals and Legates stood here from St. Austin to Hen. 8. and that it was quiet and uninterrupted for nine hundred together passeth away as a Vapour The Contrary being evident by as Authentick Testimonies as can be desired and now what can he imagined to enervate them If it be urged that it was once in the body of Obj. our Laws viz. In Magna Charta liceat unicuique de caetero exire de Regno nostro redire salvo securè per terram per aquam salva fide nostra nisi in tempore Guerrae per aliquod breve Tempus 't is confest But here is no expression that plainly and in Ans terms gives license of Appeals to Rome 'T is indeed said that it is lawful for any to go out of the Kingdom and to return safe But mark the Conditions following Nisi in c. 'T is likely these words were inserted in favour of Appeals but it may be the Authors were timerous to word it in a more plain contradiction to our ancient Liberties 2. The very form of words as they are would seem to intimate that the Custom of England was otherwise 3. Lastly If it be considered how soon after and with what unanimity and courage our ancient Liberty to the contrary was redeemed and vindicated and that clause left out of Magna Charta ever since though revised and confirmed by so many Kings and Parliaments successively it is only an argument of a sudden and violent torrent of Papal Power in King John's time c. not of any grounded or well settled Authority in the English Laws as our English Liberties have I Conclude with those weighty words of the Statute of Ed. 3. an 27. c. 1. Having regard to the said Statute made in the time of his said Grandfathers which Statute holdeth always in force which was never annulled or defeated in any point And for as much as he is bound by his Oath to do the same to be kept as the Law of the Realm though that by sufferance and negligence it hath been since attempted to the contrary Vid. Preamble of the Statute Whereupon it is well observed that Queen Acts Mon. Mary her self denyed Cardinal Pelow to appear as the Popes Legate in England in her time And caused all the Sea-ports to be stopped and all Letters Briefs and Bulls to be intercepted and brought to her CHAP. X. The Pope's Legislative Power in England before Hen. 8. No Canons of the Pope oblige us without our Consent our Kings Saxons Danes Normans made Laws Ecclesiastical WE have found possession of the Executive Power otherwise than was pretended we now come to consider how it stood with the Legislative the Pope indeed claimed a Power of making and imposing Canons upon this Church but Henry the Eighth denied him any such Power and prohibited any Canons whatsoever to be executed here without the King's Licence An. 25. 19. The question now is whether the Pope enjoyed that Power of making and imposing Canons effectually and quietly here from the time of Saint Augustine to Henry the Eighth or indeed any considerable time together and this would invite us to a greater Debate who was Supreme in the English Church the Pope or the King during that time or rather who had the exercise of the Supremacy for the Power of making Laws is the chief Flower or Branch of the Supremacy and he that freely and without interruption enjoyed this Power was doubtless in the Possession of the Supremacy That the Pope had it not so long and so quietly as is pleaded by some and that our Kings have generally enjoyed it will both together appear with evidence enough by the Particulars following 1. If none were to be taken for Pope but by the King 's Appointment Sure his Laws were not to be received but with the King's Allowance 2. If not so much as a Letter could be received from the Pope without the King's Knowledge who caused words prejudicial to the Crown to be renounced Sure neither his Laws Both the Antecedents we find in Eâ—dm p. 626. p. 131. 1. 3. If no Canons could be made here without the King's Authority or being made could have any force but by the King's Allowance and Confirmation where was the Pope's Supremacy that Canons could not be made here without Convocations by Kings the King's Authority is evident because the Convocations themselves always were and ought to be Assembled by the King 's Writ Eadm p. 24. 5. 11. Besides the King caused some to sit therein to Supervise the Actions Legato ex parte Regis Regni inhiberent ne ibi contra Regiam Coronam dignitates aliquid statuere attentaret and when any did otherwise he was forced to retract what he had done as did Peckham or were in paucis Servatae as those of Boniface Math. Par. An. 1237. p. 447. 51. Lindwood c. 1. Glos 1. If Canons were made though the Popes Legate and consequently all his power was at Can. confir by Kings the making of them yet had they no force at all as Laws over us without the Kings allowance and confirmation The King having first heard what was decreed Consensum praebuit authoritate Regiâ potestate confirmavit Statuta concilii by his Kingly power he confirmed the Statutes of the Council of William Arch-Bishop of Cant. and the Legate of the holy Church celebrated at Westminster by the Assent of the King and primorum omnium Regni the Chapters subscribed were promulged Eadm p. 6. 29. Flor. Wigorn. an 1127. p. 505. Gervase an 1175. Col. 1429. 18. Twisden Concludes as for Councils it is certain none were here called from Rome till 1127. P. 19 20. If they did come to any as to Calcuith the King upon the advice of the Arch-Bishop Statuit diem appointed the day of the Council So when William the first held one at Winchester 1070. for deposing Stygand though there came to it three sent from Alexan. 2. Yet it was held Jubente presente Rege who was President of it wherein as before was noted the Popes Legate subscribed the sixteenth after all the English Bishops Vita Lanfranci c. 7. p. 7. Col. 1. d. All our Canons are therefore as they are justly Canons Kings Laws called the Kings Ecclesiastical Laws because no Canons have the power of Laws but such as he allows and confirms and whatsoever Canons he confirmed of old that had their original from a foreign power he allowed for the sake of their Piety or Equity or as a means of Communion with the Church from whence they came but his allowance or eonfirmation gave them all the Authority they had in England 'T is a point so plain in
enjoyed them the Kingdom was so intolerably burthened with Papal Taxes before of which we shall speak hereafter and these First-Fruits and Tenths being a Remembrance of those extraordinary Taxes and a way devised to settle and continue them upon us they were presently felt and complained of The Parliament complained in general of such oppressions 25 Edw. 3. An. 1351. and again more particularly among other things of First-Fruits in the fiftieth of Edward the Third and desire Rot. Parl. n. 105 106. his Majesty no Collector of the Pope may reside in England The King not complying they again instance the year following that the Pope's Collector Rot. Parl. 51 Edw. 3. n. 78 79. was as very an enemy to this State as the French themselves that he Annually sent away 20000 Marks and sometimes 20000 Pounds and that he now raised for the Pope the First-Fruits of all Dignities which in the very beginning ought to be crusht Yet they prevailed not to their minds and in the next Parliaement the Commons preferred three Petitions First touching the payment of Rot. Parl. 1 R. 2. n. 66 67 68 First-Fruits not used in the Realm before these times Secondly Reservation of Benefices Thirdly Bestowing them on Aliens c. praying Remedy as also that the Petitions of the two last Parliaments might be considered and convenient Remedies ordained the King hereupon refers the matters for Remedy to his grand or Privy-Council But neither yet was full satisfaction obtained as appears for that the Commons renewed Rot. Parl. Rich. 2. n. 37. in effect the same Suits in the third and fifth of Rich. 2. the inconveniences still continuing after which the next Parliament obtained the Statute 13 Ri. 2. c. 2. of Praemunire which as Pol. Virgil observes was a Confining the Papal Authority within the Ocean To which Law three years after some 16 R. 2. c. 5. Additions were made and none of these Laws were repealed by Queen Mary To say the Bishops were pressed by the Laity to pass that last Act is so much otherwise as that it is enrolled as Twisden observes on the desire of the Arch-Bishop of Canterbury Rot. Parli 16. Rich. 2. n. 20. in fine Neither would Answer to Sir Edward Cook the Pope tolerate as one insinuates any thing so exceedingly prejudicial to him upon any reasonable pretence whatsoever In the same Parliament the Commons Petition that the Popes Collector may have forty days for his Removal out of the Kingdom the King considers But in the Sixth of Hen. 4. upon grievous 6 Hen. c. 1. complaints made by the Commons to the King of the horrible mischiefs and damnable Customs which are introduced of new by the Church of Rome that none could have provision for an Arch-Bishoprick or Bishoprick until he had compounded with the Popes Chamber to pay great excessive Sums of Money as well for the first fruits as other lesser fees it was Enacted that whosoever shall pay such Sums shall forfeit all they had This Statute was made about an hundred years before Hen. 8. an inconsiderable time for so considerable a Prescription 3. We have noted that the Clergy of England were not free from Roman Taxations before Payments extraordinary the payment of Annates and Tenths as they were afterwards stated For there were occasional charges exacted from us by the Pope which afterwards terminated in those constant payments as before was intimated The first extraordinary contribution raised by allowance for the Popes use in this Kingdom Twisden observes to have been an 1183. far enough Hoved. an 1183. f. 354. b. 43. off from the time of St. Austin When Lucius the third at odds with the Citizens of Rome sent to Hen. 2. Postulans auxilium of him and his Clergy whereupon two things considerable are observed 1. The King in this point concerning the Pope consulted his own Clergy and followed their advice 2. The great care the Clergy took to avoid ill presidents for they advised the King that he would receive the monies as given by them to him and not to the Pope leaving the King to dispose it as he thought fit This wariness being perceived the Pope did not suddenly attempt the like again We do not find any considerable sum raised from the Body of the Clergy for the support of the Papal designs till Gregory 9. demanded a Tenth of all the moveables both of them and the Laity an 1229. The Temporal Lords refused and the Clergy unwillingly were induced to the Contribution for it was no other The Pope ventured no more upon the Laity but eleven years after he demanded of the Clergy a fifth part of their goods And after many Math. par an 1240. p. 526. 20. p. 534. 8. 39. Contests and struglings and notwithstanding all the arguments of the poor Clergy by the Kings and Arch-Bishops means they were forced to pay it But neither that Reluctancy nor the Remonstrance of the Kingdom at the Council of Lions 1245. nor that to the Pope himself the year following could prevail then to change the Shoulder or the method of Oppression For Innocent 4. 1246. invents a new way by charging every Religious house with finding of Souldiers for his Service for one year c. which amounted to eleven thousand Marks for that year with many devices for his advantage but did he Rot. Parl. 50. Ed. 3. n. 107. go on more quietly than he began No certainly See the Petition of the Commons in Parliament 1376. The two Cardinals Priests Agents were not suffered to provide for them a thousand marks a year apiece But the State chased them out of the Kingdom and the King sent through every County that none henceforth should be admitted per Bullam without the special License of the King And a while after the Parliament held the 20 Ed. 3. 1346. Petition more plainly and mention the matter of the two Cardinals as an intollerable Ro. Par. n. 33 35. grievance in which the King gave them satisfaction However the Vsurpation grows against all opposition and 't is no longer a Tax for one year only as at first but for six years successively pretending war with Infidels so dealt John 21. an 1277. and Clement 5. in the Council of Vienna 1311. Exactions of this kind were so abominable that Martin 5 at the Council of Constance 1417. Sess 43. was constrained to make that Remedy Nullatenus imponantur c. upon which decree a supply of the Tenth being twice demanded viz. 1515 and 1518. by Leo 10. against the Turk the English Clergy denied them both times Thus the Papacy by little and little and through great opposition at length brought the Taxes to that we now call Tenths and Annates proceeded gradually but by milder measures to a like Settlement yet neither continued without the disturbances before mentioned 4. There is nothing remains under the head of Money but the casual and accidental profits accrewing by Bulls
we ought to submit our selves to the guidance of the Pope as a good and wise man or as a Friend as our Ancestors did and not as our Lord. The true Question is whether God hath given the power of Government to the Pope and directly appointed him to be the Vniversal Pastor of his Church on Earth so that the Controversie will bear us down to the last Chapter what ever can be said here and Infallibility is such a Medium as infallibly runs upon that Solicism of Argument obscurum per obscurius and indeed if there be any inseperable Connexion betwixt Infallibility and the Vniversal Pastorship as is pretended the contrary is a lawfuller way of concluding viz. if there be no one man appointed to govern the Church as Supreme Pastor under Christ then there is no necessity that any one man should be qualified for it with this wonderful grace of Infallibility But it doth not appear that God hath invested any one man with that Power therefore not with that Grace But least this Great Roman Argument should suffer too much let us at present allow the Consequence but then we must expect very fair Evidence of the Assumption viz. that the Pope is indeed Infallible I am aware that there are some vexing Questions about the Manner and Subject of this Infallibility but if we will put them out of the way then the Evidence of the Pope's or Church of Rome's Infallibility breaks out from three of the greatest Topicks we can desire Scripture Tradition and Reason let them be heard in their Order SECT I. Argument from Scripture for Infallibility viz. Example High Priest of the Jews Apostles VVHether it be an excess or defect of Charity in me I know not but I cannot bring my self to believe that the fiercest Bigot of Popery alive can seriously think the Pope Infallible in the Popish Sence of the Word especially that the holy Scriptures prove it I know that some flie the Absurdity by hiding the Pope in the Church but if the Church be Infallible 't is so as it is Representative in General Councils or diffusive in the whole Body of Christians and then what is Infallibility to the Church of Rome more than to any other and how shall that which is Common to all give power to one over all or what is it to the Pope above another Bishop or Patriarch But the Pope is the Head and Universal Bishop as he is Bishop of Rome that is begging a great question indeed for the proof of the Pope's Infallibility which his Infallibility ought to prove and to prove the Medium by the thing in question after a new Logick Besides if the proper Seat of Infallibility be the Church in either of the Sences it concerns our Adversaries to solve Divine Providence who use to argue for this wonderful gift in the Church if there be no Infallibility God hath not sufficiently provided for the safety of Souls and the Government of his Church for seeing the Church diffusive cannot be imagined to govern it self but as Collected and seeing as the Christian World is now circumstantiated it is next to impossible we should have a General and free Council how shall this so necessary Infallible Grace in the Church be exerted upon all occasions for the Ends aforesaid It is therefore most Consonant to the Papal Interest and Reason to lodge this Infallible gift in the Pope or Court of Rome however let us attend their Arguments for the evidence of it either in the Pope or Court or Church of Rome in any acception which is first drawn from Scripture both Examples and Promises 1. From Scripture Examples they reason Arg. thus the High Priest with his Clergy in the time of the Low were Infallible therefore the Pope and his Clergy are so now the High Priest with his Clergy in the time of the Law were so as appears Deut. 17. 8. where in doubts the people were bound to submit and stand to their Judgment which supposeth them Infallible in it as A. C. argues with Arch-Bishop Lawd p. 97. n. 1. Dr. Stillingfleet with others hath exposed this Ans Argument beyond all reply In short the Consequence of it supposeth what is to be proved for the proof of Infallibility viz. That the Pope is High-Priest of the Christian Church and we must still expect an Argument for the Popes Headship if this must be granted that we may prove him Infallible to the end we may prove his Headship Were it said to the Christian Church when any Controversie of Faith ariseth go to Rome and there enquire the judgment of the Bishop and believe his determinations to be Infallible there had been no need of this consequence but seeing we read no such thing the consequence is worth nothing Besides the minor affirming the Infallibility Minor of the High-Priest from that Law of Appeale in Deut. 17. 8. is justly questioned There was indeed an obligation on the Jews to submit and stand to the judgment of that high Court but no obligation nor ground to believe the judgment Infallible The same obligation lies upon Christians in all judiciary Causes especially upon the last Appeal to submit in our practices though not in our judgment or Conscience to believe that what is determined to be Infallibly true A violence that neither the whole world nor a mans self can sometimes do to the Reason of a man The Text is so plain not to concern matters of Doctrine to be decided whether true or false but matters of Justice to be determined whether right or wrong that one would think the very reading of it should put an end for ever to this debate about it The words are viz. If there arise a matter too hard for thee in judgment between Blood and Blood between Plea and Plea and between Stroke and Stroke being matters of Controversie within thy Gates Then shalt thou arise and get thee up into the Place which the Lord thy God shall chuse c. Thus God established a Court of Appeals a Supreme Court of Judicature to which the last application was to be made both in case of Injury and in case of Difficulty called the great Sanhedrin But note here is no direction for address to this Court but when the case had been first heard in the lower Courts held in the Gates of the Cities Therefore the Law concerned not the momentous Controversies in Religion which never came under the Cognizance of those inferior Courts Therefore it is not said whosoever doth not Deut. 17. â—2 believe the Judgment given to be true but whosoever acts contumaciously in opposition to it And the man that will not hearken but do presumptuously even that man shall die Besides God still supposeth a possibility of Error in the whole Congregation of Israel Lev. 4. 15. and chargeth the Priests with Ignorance and forsaking his way frequently by the Prophets But alas where was the Infallibility of the High-Priest c. when our
differences arise is no Liberty or Remedy provided by going to Rome no more than if differences arise in the Roman Church they may have Remedy from any other a Remedy is indeed provided by the Canon Sin duo aut tres c. â—f two or three do contradict 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not go to Rome but obtineat Sententia plurimorum let the major Vote carry it In the seventh Canon Custom and Tradition Can. 7. both are the Grounds upon which the Council confirmed the like priviledge of the Church of Hierusalem because Custom and Ancient Tradition ut Aeliae Episcopus honoretur let him have have the consequence of Honour with a Salvo for the proper Dignity of the Metropolis but not a word of Rome Note that in Can. 6. the Power of the Alexandrian Bishop is grounded upon Ancient Custom Antiqua consuetudo servetur and not upon the Concession of the Roman Bishop as Berlarmine would force it and that the like manner or Custom of Rome is but another Example of the same thing as Antioch was and the rest of the Provinces but this ungrammatical and illogical Evasion was put off before SECT III. Concil Constantinop Gen. 2. An. 381. THe next Council admired by Justinian as one of the Gospels is that Famous Council of Constantinople adorned with 150 Fathers Hath this made any better provision for the Pope's Supremacy certainly no for the very Can. 1. Bin. p. 660. Alter Editio Bin. p. 664. Can. 2. first Canon chargeth us not to despise the Faith of the 318 Fathers in the Synod of Nice which ought to be held firm and Inviolate The Second Canon forbids the confusion of Diocesses and therefore injoyns Secundum Regulas constitutas i. e. the Rules of the Apostles and Nicene Fathers to be kept the Bishop of Alexandria must govern them in Egypt only and so the rest as are there mentioned more particularly than in Nicene Canons In the Third is reinforced the Canon of the Can. 3. former Council against Ordinations by Bishops out of their own Jurisdictions and adds this Reason that casts no countenance upon any Forreign Jurisdiction 't is manifest that the proper Provincial Synod ought to administer and govern all things per quasque singulas Provincias within their peculiar Provinces secundum ea quae sunt in Nicaea definita This third Canon honours the Bishop of Constantinople next after the Bishop of Rome as Binius renders 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But Binius is very angry that such a Canon is found there and urgeth many reasons against it and therefore Bin. To. 1. 672. we shall conclude that as none of the rest so neither doth this Canon confer the universal government of the Church upon the Bishop of Rome SECT IV. Concil Ephesin Gen. 3. An. Christi 431. THe third general Council whose Canons Justinian passed into Laws is that of Ephesus and this so far abhors from the grant that it is a plain and zealous contradicter of the Popes pretensions In Act the seventh 't is agreed against the invasion of the Bishop of Antioch that the Cyprian Prelates shall hold their Rights untouched and unviolated according to the Canons of the holy Fathers before mentioned and the ancient custom ordaining their own Bishops and let the same be observed in other Diocesses and in all Provinces that no Bishop occupy another Province or subject it by force which formerly and from the beginning was not under his power or his Predecessors Or if he have done so let him restore it that the Canons of the Fathers be not slighted nor Pride creep into the Church nor Christian Liberty be lost Therefore it hath pleased the holy Synod that every Province enjoy its Rights and Customs unviolated which it had from the beginning 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 twice repeated whereby we are to learn a very great Rule that the bounds of primacies were settled very early before this Council or any other general Council before this even at the beginning and that those bounds ought to be observed to the end according to the Canons of the Fathers and ancient custom and consequently that such as are invaders of others Rights are bound to make restitution Now 't is evident we were a free Province in England in the beginning and when St. Augustine came from Rome to invade our Liberties 't is evident this Council gave the Pope no power or priviledge to invade us Yea that what power the Pope got over us in after times was a manifest violation of the Rights we had from the beginning as also of the Canons of the ancient Fathers in the three mentioned sacred and General Councils of Nice Constantinople and Ephesus all grounded upon the ancienter Canons called the Apostles Lastly such Usurpers were always under the obligation of the Canon to restore and quit their incroachments and consequently the Brittanick Churches were always free to vindicate and reassume their Rights and Liberties as they worthily did in Hen. 8. SECT V. Concil Calcedon Gen. 4. An 451. S. W's Gloss THere is little hope that this Council should afford the Pope any advantage seeing it begins Canones c. with the confirmation of all the Canons made by the Fathers in every Synod before that time and consequently of those that we have found in prejudice to his pretensions among the rest The Ninth Canon enjoyns upon differences Can. 9. betwixt Clerks that the Cause be heard before the proper Bishop betwixt a Bishop and a Clerk before the Provincial Synod betwixt a Bishop or Clerk and the Metropolitan before 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the See of the Royal City of Constantinople To the same effect we read Can. 17. Can. 17. Si quis a suo c. If any one be injured by his Bishop or Metropolitan apud Exarchum seu Primatem Dioceseos vel Constantinopolitam sedem litiget But Where is any provision made for Remedy at Rome Indeed that could not consist with the sence of this Synod who would not endure the Supremacy or so much as the Superiority of Rome above Constantinople This is evident in Can. 28 the Fathers gave Can. 28. priviledge to the See of old Rome Quod Vrbs illa imperaret eadem consideratione saith the Canon and for the same reason an hundred and fifty Bishops gave 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 equal Priviledges to the Seat of new Rome recte judicantes rightly judging that that City that hath the Empire and the Senate should enjoy equal Priviledges with old Royal Rome etiam in rebus Ecclesiasticis non secus ac illa extolli ac magnifieri secundam post illam existentem Now to what purpose doth S. W. to Dr. S. W.'s Gloss Hammond trifle on the Canon and tell us that these Priviledges were only Honorary Pomps when the Canon adds in Ecclesiastical matters and names one the Ordination of Bishops and Metropolitans within themselves as before was declared by the divine
bound to issue out the Writ de Excom Cap. and the Sheriff to imprison the party upon a Certificate from the Bishop But I must humbly leave such things to wiser Judges THE CONTENTS OF THE CHAPTERS and SECTIONS CHAP. I. THE general Proposition The Ecclesiastical Jurisdiction as now Exercised in the Church of England is Allow'd and Establish'd by the Laws of the Land Sect. 1. An Account of the Method Page 1. Sect. 2. Mr. Hickeringill ' s Reasoning Noted and Resolv'd p. 2. Sect. 3. The Propositions suggested by M. Hickeringill are these following p. 4. CHAP. II. Our Ecclesiastical Jurisdiction in England was not derived from the Pope but from the Crown before the Reformation by Henry the Eighth p. 5. Proof against this Popish principle Sect. 1. From the root and branches of Ecclesiastical Power Donation Investiture Laws p. 6. Sect. 2. Jurisdictionâ— p. 7. Sect. 3 4 5. p. 9 11 12. CHAP. III. King Hen. 8. did not by renouncing the Power pretended by the Pope make 〈◊〉 the Ecclesiastical Jurisdiction neither was it void before it was restored by Edw. 6. 2. p. 13. Sect. 2 3. p. 16 20. CHAP. IV. Ecclesiastical Jurisdictition is lawfully exercised without the King's Name or Stile in Processes c. notwithstanding the 1 Edw. 6. 2. p. 22. Sect. 1 2 3. p. 23 24 26. Sect. 4. 1 Edw. 6. 2. Repeal'd appears from practice p. 28. Sect. 5. 1 Edw. 6. 2. Repealed in the Judgment of all the Judges the King and Council p. 31. Sect. 6. Mr. H. Cary ' s Reason to the contrary considered p. 36. CHAP. V. The Act of 1 Eliz. 1. Establishing the High-Commission Court was not the foundation of Ordinary Ecclesiastical Jurisdiction in England against Mr. Hickeringill p. 41. CHAP. VI. How our Ecclesiastical Jurisdiction in England came at first and is at present Establish'd by Law p. 46. Sect. 1. Jurisdiction of the Church in Common Law p. 51. Sect. 2. The Government Ecclesiastical is Establish'd in the Statutes of this Realm p. 54. CHAP. VII Of Canons and Convocations p. 60. The Conclusion p. 64. The Postscript p. 67. The Bookseller to the Reader THE absence of the Author and his inconvenient distance from London hath occasioned some small Errata's to escape the Press The Printer thinks it the best instance of pardon if his Escapes be not laid upon the Author and he hopes they are no greater than an ordinary understanding may amend and a little charity may forgive R. Royston CHAP. I. The General Proposition THE Ecclesiastical Jurisdiction As now Exercised in the Church of England is Allow'd and Establish'd by the Laws of the Land SECT I. An Account of the Method AFTER so many hundred years confirmation both by Law and Practice 't is a marvellous thing this should be a question yet of late two worthy Gentlemen treading in the steps of some former Male-contents have ventured to make it one Mr. Edmond Hickeringill and Mr. H. Cary the first in his Book called Naked Truth the Second part the other in his modestly stiled The Law of England And it is to be observed they were both Printed very seasonably for the setling our distractions through the fears and danger of Popery I shall note what they say discover their gross and dangerous mistakes answer and remove their pitiful Objections and then endeavour to satisfie ordinary and honest enquirers both that and how our Ecclesiastical Jurisdiction stands firm and unshaken upon the basis of our English Laws SECT II. Mr. Hickeringill's Reasoning Noted and Resolv'd Mr. Hickeringill is pleased to say that upon the Stat. 1 Eliz. 1. was built the High Commission Court and the Authority of all Canon-makers Synodiâ—al but down came the Fabrick when that Act was Repealed by 17 Car. 1. 11. and 13. Car. 2. 12. Where provision was made by striking at the foundation 1 Eliz. 1. that no more Commissions of that nature be granted any more only the Spiritual Courts by 1â— Caâ— 2. 12. were to be in Statu quo wherein they were 1639. What state no great I 'le warrant you if the Basis on which their Star-Chamber and High-Commission-Court were built be taken away All Ecclesiastical Jurisdictions till Hen. 8. were derived from the Pope as Supream of the Church â— this Head being beheaded the Supremacy was invested in the Crown But 1 Edw. 6. 2. Enacts that all Process Ecclesiastical should be in the Name and with the stile of the King c. So that if there be any Ecclesiastical Jurisdiction in England distinct from his Majesties Day Courts all their Processes must be in the Kings Name c. 'T is true 1 Edw. 6. 2. is repealed by the 1 Mar. 2. but I care not for that for 't is revived by the Act of repeal 1 Jac. 25. The Clergy in Convocation acknowledged in their Petition that their Ecclesiastical power was at that time taken away So that their present Jurisdiction being not from God that 's certain 't is not from Man because his Majesty has promised 13 Car. 2. 12. never to empower them with any more Commissions to the worlds end But this I do not peremptorily assert I here protest I know not by what Authority we do these things considering the premises and the repealing of 1 Eliz. 1. By the Statute of Hen. 8. all these Ordinary Jurisdictions were cut off and were revived by 1 Edw. 6 upon Conditions only This is the very Naked Truth under his first Query and in his Conclusion and up and down this worthy Book that is such a shabby lawless Logick such a rude and shatter'd way of reasoning as deserves to be reduc'd with a rod and lasht into method and sence and better manners Especially if you single out his false and study begging Prâ—positions fraught with a wretched design of robbing his own Mother in the Kings high way with which he challenges passage to cheat and abuse the Country My business is only to apprehend the Vagabonds and commit them to the justice of some more severe and smarter hand SECT III. The Propositions suggested by Mr. Hickeringill are these following I. That before Hen. 8. all Ecclesiastical Jurisdiction in England was derived from the Pope as Mr. Cary p. 6. II. That Hen. 8. when he annex'd the Ecclesiastical Jurisdiction to the Crown he took it wholly away from our Ecclesiastical Ministers III. That the Church had no Jurisdiction after Hen. 8. had annex'd it to the Crown till 1 Edw. 6. 2. IV. That if there be any Ecclesiastical Power in our Church it cannot be executed but in the Name and with the Stile c. of the King according to 1 Edw. 6. 2. V. That all our Ecclesiastical Power was lately founded in 1 Eliz. 1. as it establish'd the High-Commission-Court and that Act being Repeal'd all Ecclesiastical Power was taken away with the Power of that High Commission On a Rock consisting of these Sands stands our mighty Champion triumphing with his Naked Truth but we come now to
of this Realm and to continue to exercise its power in the Spiritual Courts as before according to the Laws and Customs of the Land Read the Statute and you will not only see a continuance of the Spiritual Courts supposed and allow'd but special directions touching proceedings and Appeals therein SECT II. IF King Hen. 8. did take away the Ecclesiastical Authority of the Church of England he did either remove the Officers or deny their power to make Canons or destroy their Courts and the exercise of their Jurisdiction but he did do neither but rather by Acts of Parliament establish'd them all I. For the first touching the Governours of the Church consult Statute 31 Hen. 8. 3. that it may be Enacted by the Authority of this present Parliament that all Archbishops and Bishops of this Realm may by Authority of this present Parliament and not by any provision or other foreign Authority enjoy and retain their Archbishopricks and Bishopricks in as large and ample manner as if they had been promoted elected confirmed and Consecrated according to the due course of the Laws of this Realm And that every Archbishop and Bishop of this Realm may minister use and exercise all and every thing and things pertaining to the Office or Order of any Archbishop or Bishop with all Tokens Ensigns and Ceremonies thereunto lawfully belonging Further that all Ecclesiastical persons of the Kings Realm all Archdeacons Deans and other having Offices may by Authority of this Act and not c. administer use and exercise all things appertaining to their Dignities and Offices so it be not expresly against the Laws of God and this Realm II. Neither did King Hen. 8. take away the power of the Bishops and others to make Canons in Convocation as appears by the Statute of the 25 of Hen. 8. 19. In that Statute among other things upon the Petition of the Clergy two things are granted to our purpose touching Ecclesiastical Canons 1. The old ones 't is provided that such Canons being already made which be not contrariant nor repugnant to the Laws Statutes and Customs of this Realm nor to the damage of the Kings prerogative Royal shall now be used and exercised as they were before the making of this Act till such time as they be viewed by the said Thirty two persons according to the Tenor of this Act which was never done therefore such old Canons are yet of force by this Act. Vid. Sect. 6. 2. For the making of new Canons the Convocation hath power reserved by this same Act provided the Convocation be called by the Kings Writ and that they have the Royal assent and licence to make promulgate and execute such Canons as you may read Sect. 1. of the said Statute Indeed the Convocation used a larger power in making Canons before as is there noted which they say they will not henceforth presume to do but it therefore follows that they may still use their power so limited and derived from the Crown which is the evident intention of the Act. For by restraining the Clergy thus to proceed in making Canons the Law allows them the power so to do and by making the exceptions and limitations confirms their Authority so far as it is not excepted against III. Neither lastly did King Hen. 8. take away the ordinary Jurisdiction of Ecclesiastical Governours as exercised in the Spiritual Courts according to the Laws and Canons of this Church but indeed establish'd them by Acts of Parliament as is plainly to be seen in the 37 Hen. 8. c. 16. Sect. 4. in these words May it therefore please your Highness that it may be Enacted that all singular persons which shall be made deputed to be any Chancellor Vicar-general Commissary Official Scribe or Register by your Majesty or any of your Heirs or Successors or by any Archbishop Bishop Archdeacon or other person whatsoever having Authority under your Majesty your Heirs and Successors to make any Chancellor Vicar-general Commissary Official or Register may lawfully execute all manner of Jurisdiction commonly called Ecclesiastical Jurisdiction and all Censures and Coercions appertaining unto the same c. 2. 'T is acknowledged that in the Sect. 2. of this Statute it seems as if the Parliament concluded that by the 25 of Hen. 8. 19. the ancient Canons were abrogated which I wonder Mr. Hickeringill his sagacity had not discovered yet 't is plain enough that wise Parliament did not thereby reflect upon or intend all the Canons but such Canons as the present matter before them was concerned in that is such Canons as forbad Ecclesiastical Officers to marry as the words Sect. 1. are that no Lay or married man should or might exercise any Ecclesiastical Jurisdiction c. directly repugnant to your Majesty 's as Supream Head your Grace being a Lay-man then it follows in the next words And albeit the said Decrees viz. being contrary to the Royal prerogative as supream Head of the Church be in the 25 year of your most Noble Reign utterly abolished That this is the meaning of that clause is reasonable to believe because they take no further care to correct the matter but only by enacting persons lawfully deputed though they be Lay persons though married or unmarried shall have power and may exercise Ecclesiastical Jurisdiction notwithstanding any Law or Constitution to the contrary as the Statute is concluded 3. Besides we are assured that all the ancient Canons that were not repugnant to the Kings Prerogative or the Laws and Customs of this Realm were not abrogated but declared to be of force i. e. to be executed in the Spiritual Courts as was noted in the very letter of that Statute 25 Hen. 8. 19. and that this clause speaking only of such Canons as were abrogated by that Statute abrogates nothing that was not so by the Act referred to 4. And thus the Jurisdiction and Canons of the Church stood in force at the latter end of the Reign of Hen. 8. this Statute being made in the last year wherein any were made by that great Prince 5. Thus we have found in the time of King Hen. 8. an Ecclesiastical Jurisdiction exercis'd in England without any dependance on the Pope and other Authority for Canon-makers Synodical as Mr. Hickeringill cants besides the Statute for the High Commission 1 Eliz. upon which Statute of Eliz. Mr. Hickeringill very learnedly asserts the Authority of all Canon-makers Synodical was built qu. Naked Truth SECT III. NO more is needful under this Head but to shew my respect to Mr. Hickeringill his doughty and only Argument taken out of the Petition of the Clergy to Queen Mary whereby he would fain prove that the extinguishing Act of Hen. 8. took away all ordinary Jurisdiction from the Church of England and that there was no such thing till she revived it 2. The words of the Petition from whence he thus argues you shall have in his own Translation in this manner they pray that her Majesty would make
such provision that those things which belong to our Ecclesiastical Jurisdiction and Liberties without which we cannot duly discharge c. and taken from us lately by the Iniquity of the times may be again restored and that all Laws which have taken away or do any ways hinder our Ecclesiastical Jurisdiction and liberties may be made null and void Hence he concludes that in the judgment of the Convocation at that time their Jurisdiction and Liberties were taken away Is this proof sufficient against all the laws and practice of the Kingdom during the Reign of Hen. 8. after the extinguishing Act or do they say that Hen. 8. took away the Ecclesiastical Jurisdiction how can Mr. Hickeringill divine that it was not the renouncing the Pope as Head of their Jurisdiction and Liberties that was the very grievance that they complain'd of 3. This is certain that Queen Mary succeeded Edw. 6. that Edw. 6. did require more express Testimonies of the Clergie's Recognition of the Crown in the exercise of the Ecclesiastical Jurisdiction by the Statute of which we shall take more notice presently than Hen. 8. did and 't is past Mr. Hickeringill his skill to prove that the Convocation in their said Petition did not principally if not only intend that severe Act of Edw. 6. However that pass Mr. Hickeringill his argument deserves not the strength of a Convocation to confute it 4. I leave it to Mr. Hickeringill himself for if he think that that Convocation spake that which was not true he hath said nothing to the purpose but if he think they did speak truth then he thinks that the Jurisdiction of the Church of England as derived from the King according to the Statute of Edw. 6. or in Hen. 8's time was no lawful Jurisdiction that is Mr. Hickeringill thinks as the Papists think War Hawk again Mr. Hickeringill and a praemunire too But this brings us to consider the Statute of Edw. 6. CHAP. IV. Ecclesiastical Jurisdiction is lawfully exercis'd without the Kings Name or Stile in Processes c. notwithstanding the 1 Edw. 6. 2. THat all Ecclesiastical Processes should be in the Name and Stile of the King c. according to the Statute of 1 Edw. 6. 2. is the great and old Objection not only of Mr. Hickeringill but several others SECT I. Answ But first if this Statute were not repealed as indeed it is there are several things in the body of it very considerable against Mr. Hickeringill and to our advantage 1. The Statute observes in the very foundation of it that it 's justly acknowledged by the Clergy of the Realm that all Courts Ecclesiastical within the Realms of England and Ireland be kept by no other Power or Authority but by the Authority of the King which it seems was then known without the Testimonies thereof then to be required and indeed is so still by the Oaths which all Ecclesiastical persons chearfully take before their Instalment 2. That there was such a thing in practice before the making this Act as Ecclesiastical Jurisdiction in the Church of England for the Statute saith that Archbishops c. do use to make and send out their Summons c. in their own names at that time who yet acknowledged all their Authority from the Crown Sect. 3. 3. The Statute allows the Ecclesiastical Jurisdiction it self and that the Archbishops and Bishops shall make admit c. their Chancellors and other Officers and Substitutes which supposeth the Constitution of the Spiritual Courts under their own names and with their own Seals Sect. 6. 4. This Statute also allows that some things are limited by the Laws and Customs of this Realm and if such things are depending in the Kings Courts of Record at Common Law are to be remitted to the Spiritual Courts to try the same Sect. 7. 5. But what is the penalty if they do not use the Kings Name and Stile and put the Kings Arms into their Seals of Office This is considerable 'T is well the Statute provided Sect. 4. a better hand to punish the delinquents than Mr. Hickeringill and a milder punishment than he interprets the Law to do the punishment is the Kings displeasure and imprisonment during his pleasure not the voiding the Jurisdiction as Mr. Hickeringill would have it And while the King knows the Statute is repealed as shall next appear we fear not but his Majesty is pleased with and will defend our Jurisdictions while we humbly acknowledge their dependency on the Crown and exercise the same according to his Laws though we presume not to use his Name and Stile and Arms without the warrant of Law SECT II. 1. FOR that Statute of 1 Edw. 6. 2. was repealed by the first and second of Philip and Mary c. 8. wherein we have these plain words The Ecclesiastical Jurisdiction of the Archbishops and Ordinaries are declared to be in the same state for process of suits punishment of crimes and execution of the Censures of the Church with knowledge of causes belonging to the same and as large in these points as the said Jurisdiction was the said twentieth year of Hen. 8. whereby that Statute is also revived as my L. Coke affirmeth Thus by Act of Parliament of which that Queen was the undoubted Head and by the power of the Crown of England and not the Pope the Ecclesiastical Jurisdiction of this Realm was established by our own Law is the same state wherein it stood before the twentieth of Hen. 8. and then we find that by our ancient Laws and Customs it was dependent on the Crown whatever some Church-men thought to the contrary 2. I have read that this same Queen Mary wore the Title of Head of the Church of England her self though in other points too too zealous for Popery and by this very Statute it is Enacted That nothing in this Act shall be construed to diminish the Liberties Prerogatives or Jurisdictions or any part thereof which were in the Imperial Crown of this Realm the twentieth year of Hen. 8. or any other the Queens progenitors before And we have found that the Ecclesiastical Jurisdiction of this Kingdom was subject to and dependent on the Imperial Crown secundum consuetudinem legem Angliae in her Ancestors time We have found also that this was the undoubted Judgment of the whole Kingdom in the Statutes of Hen. 8. Edw. 6. Queen Eliz. King James c. Now let it be shewn that this clause of the Statute of Queen Mary is repealed which is so agreeable to the ancient Customs and Rights of the Crown let this be shown and you do something This Statute of my Lord Coke's is not repealed by the 1 of Eliz. or King James though the 1 of Mary should be granted to be so Also the 25 Hen. 8. 20. being contrary to 1 Edw. 6. 2. is revived by 1 Eliz. and never repealed Rep. Coke 12. p. 9. I. Mr. Hickeringill indeed is bold enough but I find Mr. Cary timerous in
the point though against the hair for though he toll on his weak and prejudic'd readers to their great hazard in putting their whole case upon this one point whether the Court can shew the broad Seal c. yet when he comes home to the matter he tells them that the aforesaid Statute of Edw. 6. not being mentioned by King James's Act of repeal and expresly revived is thought not to be of force so that a citation in the Bishops own name may at this day be good in Law Law of Engl. c. 2. p. 12. Mr. Hickeringill should have taken the advice of this his friend a great Lawyer certainly that entitles his minute and thin piece the Law of England SECT III. Mr. CARY indeed mistakes the Statute for it is the first of King James 25. not the fourth yet we have his learned opinion that Citations in the Bishops own name may at this day be good in Law and for ought I know his reason for it may be good too viz. because the Statute of Queen Mary especially that of the first and second of Phil. and Mar. c. 8. is not in the said Act of repeal expresly revived according to the express words of the Act vid. 1 Eliz. sect 13. But O Mr. Cary though we have here your opinion and your reason where was your Conscience where was your kindness to your beloved dissenting Clients when you dared to betray them to the Devil and the Gaoler to speak in Mr. Hickeringill's language a far heavier sentence than Curse ye Meroz and that upon no other ground that I can find in your English Law but this Statute only which yet for the reason aforesaid you say is thought not to be of force and though you say the Bishops may at this day send forth Citations in their own names by Law yet your grave advice to those friends is this When you are Cited appear and demand whether they have any Patent from the King for the same and under his great Seal or no if they will not shew you by what Authority protest against their proceedings and go your way i. e. the way of disobedience contempt the way to the Gaol and the Devil but that 's no matter he hath shewed his spite to Ecclesiastical Authority against his own Law and Conscience he was not to satisfie a doubt but a lust and his confidence is as able to secure the deluded people from the danger of contempt of the Kings Ecclesiastical Courts as his wise Notion of Magna Charta c. 14. from paying their Tithes See this point excellently and fully argued on both sides and the Judges c. Opinion and Reasons silencing this Objection in King James's time Coke Rep. 12. p. 7 8 9. SECT IV. 1 Edw. 6. 2. repeal'd appears from practice II. A further Argument that the Stat. 1 Edw. 6. 2. is repeal'd is taken from the uninterrupted practice both of the Ecclesiastical Jurisdiction and the Kings of England and their own immediate Courts contrary to it and I think it is a rule in Law that in doubtful cases Lex currit cum praxi 1. The Ecclesiastical Judges have ever since the Repealing Act of Queen Mary before and since the Statute of Queen Eliz. and King James called Statutes of repeal uncontroulably proceeded in their own names and not expresly in the name or stile of the King let one instance be shewn to the contrary then who can imagine without a fancy possest that the Crown and States of the Realm should intend so great an alteration in the Ecclesiastical government and that in the behalf of the supremacy and for the Rights of the Crown as is pretended by reviving that Act of 1 Edw. 6 and yet neither then not even since expect a conformity to and observance of it Were Queen Eliz. and King James so easie and careless of their Crowns as this would make them were all the Bishops who were concerned in making those Acts of Repeal and all Ecclesiastical Judges ever since so dull and stupid as not to know the force of those Acts not to mind either their duty or their safety in so great and hazardous a point as some would have it of a praemunire or so fool-hardy as to bear against the Crown it self on which alone they know they depend against plain Acts of Parliament in the midst of froward and watching enemies on every side them who can think it I must conclude that if it be possible that the Act of Queen Mary should be repeal'd in this point either by Queen Eliz. or King James 't is more than ever the Law-makers themselves thought of understood or intended 2. For secondly the practice of the Crown that was in the first place highly concern'd in that Stat. 1 Edw. 6. 2. hath been ever since the Act of Queen Mary that repeal'd it directly contrary to it and in a very great point or flower of the supremacy manag'd it self ever since just as it did before that Act of Edw. 6. and as I said directly contrary to it therefore 't is past all doubt but that the sence of the Queen and Kings of England and the sence of those great Lawyers and States-men that direct the Crown in such great affairs is evident that the Statute of Edw. 6. stands repealed and is not revived for in that Stat. 1 Edw. 6. 2. 't is expresly enacted that whereas elections of Bishops by Deans and Chapters upon a Writ of Congee d'eslire seeming derogatory and prejudicial to the Kings prerogative Royal for a due reformation thereof be it enacted that from henceforth no such Congee d'eslire be granted not election made but c. yet ever since Congee d'eslires have been granted and such elections thereupon have been returned and accepted 3. The Kings immediate Courts so far as they have been concerned with Jurisdiction of the Church and the Kings Civil Judges therein have ever since own'd and as occasion hath required ratified fortified and made effectual all our Ecclesiastical proceedings ever since though not acted in the Kings name contrary to the said Statute though 't is a great part of their places and offices to secure the Prerogative against all Invasion especially of the Church thus by their constant practice it appears that they never understood that Statute of Edw. 6. to be in force since Queen Mary repealed it Was the whole Kingdom so long and in so deep a sleep to be awakened by such impertinent and little barkings SECT V. 1 Edw. 6. 2. Repealed in the Judgment of all the Judges the King and Council THE objection from the 1 Edw. 6. is no new light of Mr. Hickeringill's we find it busie in the time of King Charles the first Anno 1637. and by the Kings Proclamation it seems it had troubled the Kingdom before as indeed it had in the Fourth of King James In that year 1637. upon an order out of the Star-chamber the learned Judges were commanded to give their
Land and not from the Pope Again they all take the Oaths of Supremacy and Allegiance before their Instalment which are the fence of the Crown against Popery And then in all their publick Prayers before their Sermons the Bishops and Archdeacons c. do Recognize the Kings Supremacy in all Ecclesiastical things and causes as well as Civil Again they Take the late Test and the same Oaths at the publick Sessions And lastly Mr. Cary himself confesseth that they acknowledge the said Supremacy in their publick Canons or Constitutions of the whole Church of England as he notes p. 2. in Can. 1 2 1603. And are all these less significant to testifie their dependance on and acknowledgement of their derivation from the Crown than the Kings Name and Stile and Arms which may be far enough from the Conscience in a Processe 2. For the second that there is not the same reason to use the Kings name in Ecclesiastical as in Civil Courts is apparent from the true cause of using it in the Civil Courts which being not known or well heeded may be the cause of the exception for Bishop Sanderson hath well observed the true reason of using the Kings name in any Court is not thereby to acknowledge the Emanation of the power or Jurisdiction of that Court from or the subordination of that power unto the Kings power or Authority as the objector seems to suppose but rather to shew the same Court to be one of the Kings own immediate Courts wherein the King himself is supposed in the construction of the Law either by his personal or virtual power to be present and the not using the Kings name in other Courts doth not signifie that they do not Act by the Kings Authority but only that the Judges in them are no immediate representatives of the Kings person nor have consequently any allowance from him to use his Name in the execution of them 1. This difference is evident among the Common Law Courts of this Kingdom for though all the immediate Courts of the King do act expresly in his Name yet many other more distant Courts do not as all Courts-Baron Customary-Courts of Copyholders c. and such Courts as are held by the Kings grant by Charter to Corporations and the Universities in all which Summons are issued out and Judgments given and all Acts and proceedings made and done in the name of such persons as have chief Authority in the said Courts and not in the Name of the King thus their stiles run A. B. Major Civitatis Exon N. M. Cancellarius Vniversitatis Oxon. and the like and not Carolus Dei gratia 2. Once more a little nearer to our case there are other Courts that are guided by the Civil as distinguish'd from the Common Law as the Court-Marshal and the Court of Admiralty the Kings Name in these is no more used than it is in the Courts Spiritual but all Processes Sentences and Acts in these Courts are in the Name of the Constable Head Marshal or Admiral and not in the Kings Name 3. I shall conclude this with those grave and weighty words of the same most admirable Bishop Sanderson in his excellent Treatise shewing that Episcopacy as Established by Law in England is not prejudicial to Regal Power worthy of every Englishman's reading his words to our purpose are these Which manner of proceeding like that of the Spiritual Courts constantly used in those several Courts before mentioned sith no man hath hitherto been found to interpret as any diminution at all or disacknowledgment of the Kings Soveraignty over the said Courts it were not possible the same manner of proceeding in the Ecclesiastical Courts should be so confidently charged with so hainous a crime did not the intervention of some wicked lust or other prevail with men of corrupt minds to become partial judges of evil thoughts p. 68 69. Mr. Hickeringill is one of those whom the Bishop describes i. e. that so confidently chargeth the Ecclesiastical Courts with that hainous crime and foundeth that confidence in the Statute of the 1 Eliz. 1. In charity to him I shall give him such words out of that Statute as do not only secure the Act of Queen Mary that repealed the Act of 1 Edw. 6. 2. requiring the use of the Kings Name in our proceedings from repeal in that particular but directly and expresly ratifies and confirms the same and our contrary proceedings accordingly So that our proceedings in the Ecclesiastical Courts without using the Kings Name or Stile or Arms according to 1 Edw. 6. 2. are allow'd and established by this very Act of Queen Eliz. thus Further Enacted by the Authority aforesaid that all other Laws and branches of any Act repealed by the said Act of repeal of Mar. and not in this Act specially mention'd and revived shall stand and be repealed in such manner and form as they were before the making of this Act any thing herein contained to the contrary notwithstanding 1 Eliz. 1. 13. but the Act of 2 Phil. and Mar. was not specially mentioned in this Act of Repeal nor any other And the Learned Judges in 4 Jac. observe that this Act of 1 Eliz. revives an Act of Hen. 8. repealed by Queen Mary and in both these Statutes 1 Edw. 6. 2. is made void and the present proceeding of Spiritual Courts without the Kings Name c. plainly confirm'd but vid. Coke Rep. 12. p. 7. CHAP. V. The Act of 1 Eliz. 1. Establishing the High-Commission Court was not the foundation of ordinary Ecclesiastical Jurisdiction in England against Mr. Hickeringill THE worthy Gentleman though he useth much Modesty and will not peremptorily assert and hath only fitted the matter for the consideration of wiser men if he can think there be any such reasons wonderfully after this new and unheard of manner or to this purpose if at all The Statute of Eliz. for the High-Commission Court was the only Basis of all Ecclesiastical power this continued indeed during her time and King James's but being repealed by 17 Car. 1. 11. and 13 Car. 2. 12. down came the Fabrick their great foundation thus torn up now they have neither power from God nor man nor ever shall for his Majesty hath by Statute Enacted never to empower them with any more Commissions to the worlds end Now their basis is taken away I cannot discern where their Authority lies Nak T. q. 1. p. 4 5 6. This is the Spirit of his Reason which he confesseth is not infallible for he saith as before he doth not peremptorily assert it But can a man have the face to write this first and then to say he is not peremptory Would a man in his wits expose himself in this manner in Print and blunder out so much prejudice envy spite and wrath against Government and talk such pitiful unadvised stuff about Law and think to shake the Fabrick of Ecclesiastical Jurisdiction that hath stood firm so long in the midst of all
way vents so wild a notion p. 3. 12. or when that of 25 Hen. 8. 19. was repealed or how they are made less than nothing at this day than they were before since that Statute of limitations as he is pleased to insult He saith They are far from being the Representative Church of England for that the people have not the least Vote in their Election Pray when was it otherwise than 't is now If the Law by Institution make the Clerk a guide to his flock in Spirituals if the people do expresly make choice of him for such or virtually consent in Law he should be so and thereupon the Law allows this Clerk to elect members for the Convocation and also reckons the Convocation to be the Representative Church of England how comes it that Mr. Hickeringill who is so great a stickler for a Legal Religion should be so much wiser than the Law and to scoff at its Constitutions I wish Mr. Hickeringill to beware of touching Foundations with his rude and bold Fancies and disturbing the frame of Government I am sure he will not abide by his own Rule if he be well advised of the manner of Electing the great Representative of the people of England 't is our duty to study to be quiet but some study to be otherwise The wisest word in his Naked Truth is this If men once come to dispute Authority and the wisdom of the Laws and Law-makers the next step is Confusion and Rebellion p. 11. The Conclusion THUS you have a Taste of the Spirit and Sence that runs through the Book called Naked Truth his other little gross mistakes are not worthy observing much less insisting on such as these 1. First That all Archdeaconries have Corpses annex'd which is certainly otherwise in most Archdeaconries in some Dioceses 2. Then that Archdeacons require Procurations when they do not Visit which is not done in some and I hope in no Diocese 3. Lastly That Procurations and Synodals are against Law and not to be recovered by Law or Conscience when he himself confesseth that they are due by ancient Composition That provision notwithstanding his old Canons in Visitations is due for which the money paid for Procurations is paid for them by vertue of that Composition and whereas they are due by undoubted and long possession and Custom which is as Law in England And to conclude are not only expresly allow'd as due but declared to be recoverable in the Ecclesiastical Courts by the Statute of 34 Hen. 8. 19. I have at this time done with his Materials and for the Manner of his Writing let the Sentence of every Reader reproach and shame him I like not the office of Raking Kennels or emptying Jakes and all the harm I return him is to pray heartily for him That God would give him Grace soberly to read over his own Books and with tears to wash these dirty sheets wherein he hath plai'd the wanton and indeed defiled himself more than his own Nest whatever the unlucky Bird intended and that with such a barbarous wit and vile Railery as is justly offensive to God and Man with such wild triumphs of scorn and contempt of his own Order and Office his Betters and Superiors with such a profligate neglect of Government and Peace and of his own Conscience and Law against which he confesseth he still acts yea against his own Interest Safety and his very Reputation For all which Notorious and publick Miscarriages I wish he thought it fit to do publick Penance in another new and cleaner Sheet I have to do with two Adversaries Mr. Hickeringill and Mr. Cary the first wisheth the Church of England had more power than it now hath the other that it had less I presume in the name of the true Sons of this Church that we are very thankful for the power we have by the favour of our gracious King and his good Laws And as we do and always shall acknowledge the Dependance of our Ecclesiastical Jurisdiction upon the Imperial Crown of this Realm So whether it seem good to the King and his High Court of Parliament to augment or lessen it or to continue it as it is we shall still maintain our Loyalty and manifest our duty and chearfully submit our selves But Lord forgive our Enemies Persecutors and Slanderers and turn their hearts THE POSTSCRIPT I Have reserved a few Authorities for the satisfaction of such as have no mind or leisure to read the Book which alone are sufficient to oppose and expose my Adversaries Objections I. Episcopal Government in the Church of England is as Ancient as the Church and at first was subordinate under God only to our Kings without any relation to or dependance on the Pope and declared to be so with the grounds and reasons thereof very early by Edw. 1. and Edw. 3. and so Established by Acts of Parliament Read 25 Edw. 3. the summ is thus Here we have a Recital of the first Statute against Provisors to this effect Whereas the Holy Church of England was founded in the Estate of Prelacy by the Grandfather of this King and his Progenitors c. and by them endowed with great Possessions c. for them to inform the People in the Law of God to keep Hospitality c. And whereas the King and other founders of the said Prelacies were the Rightful Adowers thereof and upon Avoidance of such Ecclesiastical Promotions had power to advance thereunto their Kinsmen Friends and other Learned men of the birth of this Realm which being so advanced became able and worthy to serve the King in Council and other places in the Common-wealth The Bishop of Rome Usurping the Seigniory of such Possessions and Benefices did give the same to Aliens as if he were Rightful Patron of those Benefices whereas by the Law of England he never had the Right Patronage thereof whereby in short time all the Spiritual Promotions in this Realm would be ingrossed into the hands of strangers Canonical Elections of Prelates would be abolished works of Charity would cease the Founders and true Patrons would be disinherited the Kings Council weakned and the whole Kingdom impoverished and the Laws and Rights of the Realm destroyed Upon this complaint it was resolved in Parliament That these Oppressions and grievances should not be suffered in any manner and therefore it was Enacted That the King and his Subjects should thenceforth enjoy their Rights of Patronage that free Elections of Archbishops and Bishops and other Prelates Elective should be made according to the Ancient Grants of the Kings Progenitors and their Founders and that No Provision from Rome should be put in Execution but that those Provisors should be Attached Fined and Ransom'd at the Kings Will and withal imprisoned till they have renounced the benefit of their Bulls satisfied the Party grieved and given sureties not to commit the like offence again II. Before this forementioned Act was made the Spiritual Courts were in Being
and had Power by the Law of the Land to try such Causes as were not to be tried by Common Law so declared and Establish'd by Acts of Parliament Vid. in the time of Edw. 1. and Edw. 2. near four Hundred years since Circumspecte agatis 13 Edw. 1. An. 1285. The King to his Judges sendeth greeting Use your selves circumspectly in all matters concerning the Bishop of Norwich and his Clergy not punishing them if they hold Plea in things as be meer Spiritual as Penance enjoyned by Prelates Corporal or Pecuniary for Fornication Adultery or such like for Tithes and Oblations due and accustomed Reparations of the Church and Church-yard Mortuaries Pensions laying violent hands upon a Clerk Causes of Defamation Perjury All such demands are to be made in the Spiritual Courts and the Spiritual Judge shall have power to take knowledge of them notwithstanding the Kings Prohibition III. Hereupon a Consultation was to be granted 24 Edw. 1. as followeth Whereas Ecclesiastical Judges have often surceased to proceed by force of the Kings Writ of Prohibition in Cases whereas Remedy could not be had in the Kings Courts our Lord the King Willeth and Commandeth That where Ecclesiastical Judges do surcease in the aforesaid Cases by the Kings Prohibition that the Chancellor or the Chief Justice upon sight of the Libel at the instance of the Plaintiff if they can see that the Case cannot be redressed by Writ out of Chancery but that the Spiritual Court ought to determine the Matters shall write to the Ecclesiastical Judge that he proceed therein notwithstanding the Kings Prohibition More particularly Those Cases reserved by Law and Statute against which no Prohibition can be legally granted are enumerated in Articul Cleri 9 Edw. 2. IV. Thus the proceedings of the Spiritual Courts and the Causes belonging to them were supposed directed allowed and Establish'd by these Ancient Statutes And lest those Causes have not been sufficiently specified no Prohibition shall be awarded out of Chancery but in Case where we have the connusance and of Right ought to have as it is in the 18 of Edw. 3. provided Whence 't is a general Rule both in Law and Statute That such cases as have no remedy provided in the other Law belong to the Spiritual Courts and indeed it hence appears they have ever done so because we no where find in our Laws that the Common Law did ever provide for them and because the Kingdom of England is an intire Empire where the King is furnish'd with a Temporalty and Spiritualty sufficient to administer Justice to all persons and in all Causes whatsoever And consequently what Causes are not in the connusance of the Common Law belong to the Spiritual Jurisdiction which is plainly implied in 24 Hen. 8. c. 12. and other Statutes Upon the same ground in Law depend three great truths 1. The Antiquity of Ecclesiastical Courts 2. Their dependance upon the Crown 3. The perfection of the Government to administer Justice in all cases to all persons from the Supream Power exercised in the Temporal and Spiritual Courts all which lie in the Preamble of that Statute according to our Ancient Laws For saith my Lord Coke in the conclusion of Cawdries Case it hath appeared as well by the ancient Common Laws of this Realm by the Resolution of the Judges and Sages of the Laws of England in all succession of Ages as by Authority of many Acts of Parliament ancient and of latter times That the Kingdom of England is an absolute Monarchy and that the King is the only Supream Governour as well over Ecclesiastical persons and in Ecclesiastical Causes as Temporal To the due observation of which Laws both the King and the Subject are sworn V. IF you desire a more full and particular account of such Cases as being not provided for at Common Law are therefore and have been ever under the Spiritual power take this excellent Enumeration of my Lord Cawdries Case Coke Observe good Reader seeing that the determination of Heresies Schisms and Errors in Religion Ordering Examination Admission Institution and Deprivation of men of the Church which do concern God's true Religion and Service of right of Matrimony Divorces and general Bastardy whereupon depend the strength of mens Descents and Inheritances of Probate of Testaments and Letters of Administration without which no debt or duty due to any dead man can be recovered by the Common Law Mortuaries Pensions Procurations Reparations of Churches Simony Incest Adultery Fornication and Incontinency and some others doth not belong to the Common Law how necessary it was for administration of Justice that his Majestie 's Progenitors Kings of this Realm did by publick Authority authorize Ecclesiastical Courts under them to determine those great and important Causes Ecclesiastical exempted from the Jurisdiction of the Common Law by the Kings Laws Ecclesiastical which was done originally for two causes 1. That Justice should be administred under the Kings of this Realm within their own Kingdom to all their Subjects and in all causes 2. That the Kings of England should be furnished upon all occasions either foreign or domestical with Learned Professors as well of the Ecclesiastical as Temporal Laws VI. Ecclesiastical Laws are the Kings Laws though Processe be not in the Kings Name Now albeit the proceedings and Processe of the Ecclesiastical Courts be in the Name Coke Cawdr Case latter end of the Bishops c. it followeth not therefore that either the Court is not the Kings or the Law whereby they proceed is not the King's Law For taking one example for many every Leet or View of Frank-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 VII Spiritual Causes secured from Prohibitions notwithstanding by Acts of Parliament Lord Coke Cawdries Case in Edw. 2. Albeit by the Ordinance of Circumspecte agatis made in the 13 year of Edw. 1. and N. B. by general allowance and usage the Ecclesiastical Court held Plea of Tithes Obventions Oblations Mortuaries Redemptions of Penance laying of violent hands upon a Clerk Defamations c. yet did not the Clergie think themselves assured nor quiet from Prohibitions purchased by Subjects until that King Edw. the Second by his Letters Patents under the Great Seal in and by consent of Parliament upon the Petitions of the Clergie had granted unto them to have Jurisdiction in those Cases The King in a Parliament holden in the Ninth year of his Reign after particular Answers made to their Petitions concerning the matters abovesaid doth grant and give his Royal assent in these words We desiring as much of right as we may to provide for the state of the Church of England and the tranquillity and quiet of the Prelates of the said Clergie to the honour of God and the amendment of the state of the said Church and of the Prelates and Clergie ratifying and approving all and singular the said
Answers which appear in the said Act and all and singular things in the said Answers contained We do for Vs and Our Heirs grant and command that the said be inviolably kept for ever willing and granting for Vs and Our Heirs that the said Prelates and Clergie and their Successors for ever do exercise Ecclesiastical Jurisdiction in the Premises according to the tenour of the said Answer VIII The Ecclesiastical Jurisdiction is a branch of the Kings Supremacy and he that denieth it denieth the King to be a compleat Monarch and Head of the whole intire body of Cawdries Case the Realm as my Lord Coke assures us both from the Common Law and many Statutes in all Ages made on purpose from time to time to vindicate the Crown and secure our own Church and its Jurisdiction under the Crown from the Pope and his illegal Encroachments and Vsurpations before and more especially by Hen. 8. and since the Reformation as is very amply proved by my Lord Coke in his most excellent discourse on Cawdrie's Case and since very learnedly and fully by Sir John Davis Atturny General in Ireland in his Case of Praemunire called Lalor's Case both which should be well read by all that desire satisfaction in this weighty point Thus the Jurisdiction of this Church in subordination to the Supream Head of it hath proceeded through all time in the Laws and Statutes of our own Kingdom and was never legally interrupted till the 17 of Car. 1. but that Act repeal'd by the 13 of our present gracious King it stands firm again according to the letter of the said last Act upon its ancient legal Basis IX The old Objection that the Spiritual Courts do not Act in the Kings Name c. is fully Answered in the Book but because it is only mentioned there that the Case was resolved by the Judges in King James's time I shall here set it L. Coke Rep. 12. p. 7. down as abridg'd for brevity out of my Lord Coke by Manly Pasch 4 Jac. Regis At this Parliament it was strongly urg'd at a grand Committee of the Lords and Commons in the Painted Chamber that such Bishops as were made after the first day of the Session were not lawful Bishops 1. Admitting them Bishops yet the Manner and Form of their Seals Stiles Processe and proceedings in their Ecclesiastical Courts were not consonant to Law because by the Stat. 1 Edw. 6. 2. it is provided tht thenceforth Bishops should not be Elective but Donative by Letters Patents of the King and for that at this day all Bishops were made by Election not Donation of the King therefore the said Bishops are not lawful 2. By the same Act it is provided that all Summons c. and Processe in Ecclesiastical Courts shall be made in the Kings Name and Stile and their Seals engraven with the Kings Arms and Certificates made in the Kings Name it was therefore concluded that the said Statute being still in force by consequence all the Bishops made after the Act of 1 Jac. were not lawful Bishops and the proceedings being in the Name of the Bishop makes them unlawful quia non observata forma infertur adnullatio Actus Upon consideration of these Objections by the Kings Commandment it was Resolved by Popham Chief Justice of England and Coke Atturny of the King and after affirmed by the Chief Baron and the other Justices attendant to the Parliament that the said Act of 1 Edw. 6. 2. is not now in force being Repealed Annulled and Annihilated by three several Acts of Parliament any whereof being in force it makes that Act of 1 Edw. 6. that it cannot stand quia Leges posteriores priores contrarias abrogant And by the Act of the 25 Hen. 8. c. 20. is set forth the manner of Election and Consecration of Archbishops and Bishops and also for the making and Execution of all things which belong to their Authority with which words the Stile and Seal of their Courts and the manner of their proceedings are included which Act of 25 Hen. 8. is Revived by 1 Eliz. c. 1. and consequently that of 1 Edw. 6. c. 2. is Repealed I advise the Reader to see it as more at large expressed and the repealing Statutes particularly mentioned and argued in my Lord Coke 12 Rep. p. 7 8 9. and bid him farewel and not be wiser than the Law FINIS A Catalogue of some Books lately Printed for Richard Royston ROma Ruit The Pillars of Rome broken wherein all the several Pleas for the Pope's Authority in England with all the Material Defences of them as they have been urged by Romanists from the beginning of our Reformation to this day are Revised and Answered By Fr. Fullwood D. D. Archdeacon of Totnes in Devon The New Distemper Or the Dissenters Usual Pleas for Comprehension Toleration and the Renouncing the Covenant Consider'd and Discuss'd with some Reflections upon Mr. Baxter's and Mr. Alsop's late Pamphlets published in Answer to the Reverend Dean of S. Paul's Sermon concerning Separation The Lively Picture of Lewis du Moulin drawn by an incomparable Hand Together with his Last Words Being his Retractation of all the Personal Reflections he had made on the Divines of the Church of England in several Books of his Signed by himself on the Fifth and the Seventeenth of October 1680. Christ's Counsel to his Church In Two Sermons preached at the two last Fasts By S. Patrick Dean of Peterburgh and Chaplain in Ordinary to his Majesty THE END