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

he nor the two Sheriffs did give the Bishop a meeting as was desired of them whereupon the Bishop orders a Process to issue out and Convents them before him in the Consistory They refuse to appear though being duly Summoned and so run into Contempt Being called again and then appearing they were for their former Contempt enjoined an easie Penance They aggravate their former with this new Contempt in disobeying the Bishops Injunction and thereupon are mildly Censured by the Bishop Not Excommunicated as was falsely rumor'd and mouth'd abroad by Men that regarded not what proceeded from them whether Truth or Falshood so it might but serve their purposes but large intermissions of time there were betwixt every of these Proceedings as will be shewed hereafter And thus stands the matter of Fact in this whole Transaction Upon a Reflection now made on this whole matter in one Review Will not the Carriage of these persons appear of a strange form and kind to any sober and indifferent Man Hardly I think will it be parallel'd by President of any such that has formerly been Hardly be entertained with Credit that any such had lately been And the whole Proceeding being so as is here briefly declared Let the Persons concerned herein be so ingenuous as freely to confess and acknowledge the same If yet this be denied so may the truest Narrative of things be and yet have never the less of Truth in it for all that yet there is so much and so clear Evidence to Verifie what has been set down That if any Attempt be made of standing to such a Denial then an easie producing of this Evidence will both shame those Deniers and add to the Confirmation of the Truth hereof Howbeit some particularities in several passages of this Proceeding may find in the following Sections a more seasonable Discovery and Enlargement In the mean time the Question de Jure falls in to be discussed concerning the justifiableness of the Bishops proceedings herein Three main Exceptions I find much insisted upon and urged against these Proceedings The first is in relation to the Persons thus Convented and Censured for they being the Mayor and Sheriffs of a City under His Majesties Government and representing His Person it is said That thereupon they became exempt from any Episcopal Jurisdiction The second Exception is in relation to the Cause they were called in question upon for that is affirmed not to be of Ecclesiastical but Civil cognizance because said to be grounded on a real Contract betwixt the Corporation and the Church and so the holding Plea and judging of Contracts belongs not to the Consistory but to the Temporal Courts The third Exception is in relation to the manner of Proceedings which are affirmed to have been precipitous and hasty without such form and regularity as ought to be observed therein and therefore illegal and unjustifiable To these three Exceptions I shall oppose and endeavour to make good these three following Propositions which will both invalidate any force that might be in the Exceptions and likewise assert and make good the Legality of what was done herein I. Prop. The Bishops Jurisdiction in the Case before mentioned was Legally founded in respect of the Persons proceeded against II. Prop. The Bishops Jurisdiction over these persons was Legally founded in respect of the Cause proceeded upon III. Prop. The Bishops Jurisdiction was Legally managed in this Cause against these Persons in respect of the manner observed in the proceedings thereof I. Prop. The first Proposition The Bishops Jurisdiction in the case before mentioned was legally founded in respect of the Persons proceeded against To make this good is that which I am first obliged to endeavour And I do it thus by laying my foundation in this received Maxime concerning Spiritual jurisdictions That in all matters and causes of Ecclesiastical cognizances all Persons within any Diocess regularly and de jure communi are subject to the jurisdiction of the Bishop of that Diocess The original proceeding of which institution I mean as to the actual Exercise of such jurisdiction depends upon and derives principally from the bounty and munificence of Christian Emperors and Princes As for jurisdiction meerly spiritual convei'd in and at the time of Consecration inhaerent in every Bishop as he is such I here speak not of otherwise than as it is the foundation and ground from which this Actual exercise does arise and has the enlargements made to it both subjectively in respect of persons made subordinate thereto and objectively in respect of matters and causes appropriated to it Sundry instances making this Assertion good might be had in the Imperial Law But so it will appear to be to him that will but consult Titulum de Episcopali judicio in Codice Theodosiano Et Titulum de Episcopali Audientia in Codice Justinaneo Et legomni innovatione cessante leg Privilegia ibidem de Sacro Sanctis Ecclesiis whence Tholosanus Syntagmat lib. 47. de divisione judicii num 12. 13. Inferrs this rule Prelati sunt ordinarii Judices Rerum Personarum suae jurisdictionis And moreover adds this Caesares tuentur defendunt sacerdotate judicium Privilegia ejus legibus stabiliunt And Gothofred on the former of these Laws infers this as a standing rule Innovatum contra Canones non subsistit By the ancient Canons Bishops were invested with this judiciary power Christian Emperours favourably confirm the same and any innovation thereupon is of no force The same power of jurisdiction in Bishops is allowed of and made good by Charles the Great In Capitular lib. 6. cap. 28. Paulus Fiacesius in his Book called Praxis Episcopalis cap. 4. Articul S.N.S. Layes down this Rule Episcopus in sua dioecesi habet intentionem fundatam super omnes de diaecesi And to confirm the said rule so laid down by him he produces there the Authority of many places in the body of the Canon Law Indeed where the matter is not of Ecclesiastical cognizance It is the incompetency of the matter or cause not the quality or place or office of any person that exempts him from that jurisdiction for as the f●rementioned Author observes Num. 2 Ibidem Episcopus alium Episcopum morantem in sua dioecesi ratione delicti ibidem commissi judicare punire potest If a Bishop have jurisdiction over another Bishop within his own Diocess where the Fuct is of Ecclesiastical cognizance there is certainly the ●ike if not a more forcible reason that the Bishops power should reach to all others of his Diocess And Javolenus has delivered this Rational and elegant Rule Cui jurisdictio Data est ea quoque concessa esse videntur sine quibus jurisdictio Explicari non potest L. 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 de jurisdictione omnium judicum The granting of a jurisdiction implyes a grant of all those things that conduce to a right discharge and exercise of it A power is included herein of presiding over and

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

any dare to say That they pare off some rights or pluck some flowers from the Kings Imperial Crown I suppose not How comes it to pass then that the Bishops jurisdiction does Whatsoever may be alledged in defence of the other may be said and it may be something more too in justification of this And know moreover That proceedings in these Temporal distinct jurisdictions go much further upon the persons of men than those of any Ecclesiastical Court does even to the imprisoning of them and in all of them except that of the University to the inflicting of capital punishments And it deserves our further observing what the great Lawyer Sir Edward Coke sayes touching this very thing Albeit the proceedings and process in the Ecclesiastical Courts be in the Name of the Bishops c. It followeth not therefore that either the Court is not the Kings or that the Law whereby they proceed is not the Kings Law for taking one example for many every Leet and View of franck pledge holden by a subject is kept in the Lords Name and yet it is the Kings Court and all the proceedings therein are directed by the Kings Laws and many subjects in England have and hold Courts of Record and other Courts and yet all their proceedings be according to the Kings Laws and customs of the Realm De jure Regis Eccles p. 39. The Learned Bishop Sanderson has convincingly demonstrated That Citations and Decrees in the Bishops Name no way encroacheth on the Kings Authority and that they who urge the contrary have this meaning rather to do the Bishops hurt than the King service and that their affections so far as by what is visible we are able to judge are much what alike towards both His Book called Episcopacy not prejudicial to Regal power p. 3 4. Bishops proceedings in Ecclesiastical Courts under the Name Stile and Seal of the Bishop See this largely discussed and declared to be warrantable by Law by my Lord Coke's comment on the Statute of Marriage 32 Hen. 8. p. 685 686 687. But this Objection is taken up again and urged with new force from hence That in the First year of King Edward the Sixth it was by Statute Enacted That the Bishops should make their processes in the Kings Name and that their Seals should be the Kings Arms. This Statute sayes Mr. Rastall was repealed 1 Mariae 1. And that Statute not being revived by Queen Elizabeth in her Reign all proceeded well enough without danger But in the first Parliament of King James there passed an Act for continuing and reviving divers Statutes and for repealing of some others 1 Jaccb c. 29. Into the body whereof a clause was cunningly conveyed for the repealing of that Statute of the Reign of Queen Mary by which King Edward 's stood repealed Upon this account it was that a little before our late turbulent confusions in England this very thing was urged against the Bishops and their proceedings were declared to be bold usurpations and encroachments on the Prerogative Royal and violations of the Law But as it is usual where men are prepossessed against any thing they are apt to run into many mistakes about the s●me It happened so in this very matter Much ●●lse was raised much stir made hereupon by the Anti●prelatical party as if the Bishops who had given themselves out to be the most zealous assertors were indeed become the onely dangerous impugners of the Kings Prerogative That now they were deprehended in the very design and therefore must needs fall having no plea to make for themselves and having the mischief of their own visible and illegal actings witnessing against them At this rate their Adversaries vaunted and fore-judged them and no doubt as matters went in those times the severest animadversion that could have followed hereupon would have been made if further proceedings therein had not been seasonably prevented by the wisdom of a pious and prudent Prince For the Blessed King Charles the First having beee made acquainted what advantage these forward and busie people were designing to make hereof to the overthrow of His Ecclesiastical Courts and the Bishops His Judges in them He did as Dr. Heylin reports in the life of Archbishop Laud p. 342. call together in the year 1637 the two Lords Chief Justices the Lord Chief Baron and the rest of the Judges and Barons and propounds to them these three following particulars to be certified of 1. Whether processes may not issue out of the Ecclesiastical Courts in the Name of the Bishops 2. Whether a Patent under the Great Seal be necessary for the keeping of Ecclesiastical Courts and enabling Citations Suspensions Excommunications and other censures of the Church 3. Whether Citations ought to be in the Kings Name and under His Seal of Arms And the like for Institutions and Inductions to Benefices and corrections of Ecclesiastical Offences And the like for Visitations whether an express Commission or Patent under the Great Seal of England were requisite To which three Proposals the said Judges unanimously on the First of July in the fore mentioned year concurred and certified under their Hands By Answering to the First thing propounded affirmatively and to the other two negatively And that the fore-mentioned Statute of Edward the Sixth is not now in force Whereupon the King issues out His Proclamation wherein having first taxed the libellous Books and Pamphlets published against the Bishops and after a recital made of these proceedings He concludes the Proclamation thus That His Majestie thought good with the advice of His Council that a publick Declaration of these the opinions of His Reverend and Learned Judges being agreeable to the judgement and resolution of former times should be made known to all His Subjects as well to vindicate the legal proceedings of His Ecclesiastical Courts and Ministers from the unjust and scandalous imputation of invading or intrenching on His Royal Prerogative as to settle the minds and stop the mouths of all unquiet spirits That for the future they presume not to censure His Ecclesiastical Courts or Ministers in these their just and warranted proceedings And hereof His Majesty admonisheth all His subjects to take warning as they will Answer the contrary at their peril c. * Resolutions unanimously given by all the Judges and the Earons of the Exchequer saith my Lord Coke are for matters of Law of Highest Anthority next unto the Court of Parliament Sir Edward Coke 2 Instit p. 618. But some mens minds will not be satisfied with any thing of this nature yet are willing to embrace what is fortified with Parliamentary Authority Both therefore to gratifie them and more throughly to confirm the matter in hand we have also this Parliamentary Authority to offer unto them For although by an Act of Parliament in the Seventeenth year of King Charles the First all jurisdiction Ecclesiastical was quite abrogated and annulled I speak in respect of England for here in Ireland no such Act

either bestowed for the erecting of Hospitals and Alms-houses and endowing them with sufficient means and adding to such endowments for the sustentation and maintenance of aged sickly decrepid weak and helpless persons as Prisoners Orphans Widows c. Or such as are bestowed for the erecting and repairing of Churches and providing of such decent O●naments and other Utensils as are requisite therein also such as are bestowed for the celebration of Divine offices at certain times and seasons appointed Now although I have delivered this Assertion universally yet it is to be understood with restriction to those kinds of pious causes that I have particularly specified The Imperial Law allows a very ample and large power to Bishops in order to the regulating and disposing of these to their intended purposes Authent collat nona Tit. de Sanctissimis Episcopis cap. 23. See also the Canons called the Apostles Canons cap. praecipimus 40 ibidem Item cap. Tua nob is cap. Johannes de Testamentis And concerning such things as belong to Alms-houses and Hospitals of any but Royal foundations our Statute Law is very express herein And as to other Hospitals which be of another foundation and patronage than the Kings the Ordinaries shall enquire of the manner of the foundation estate and governance of the same and of all other matters and things necessary in this behalf and upon that make correction and reformation after the Laws of Holy Church as to them belongeth An. 2. Hen. 5. cap. 1. stat 1. And whereas in some particular cases of this nature it is appointed by the Statute 43 Elizab. cap. 4. That by certain Commissioners authorized thereunto to under the Great Seal of England such Lands Moneys Goods and Chattels as have been given to such Godly uses as are there mentioned should be rightly ordered and all misemployings thereof be prevented and regulated yet there is a proviso in that Statute to this end That neither this Act nor any thing therein contained shall be any way prejudicial or hurtful to the Jurisdiction of the Ordinany or power of the Ordinary but that he may lawfully in every case execute the same as though this Act had never been had or made Rastall And where there is a grant of Money or other moveable goods made by any person either in his life time or bequeathed by Legacy at the time of his decease for such pious causes as the erecting and repairing of Churches or buying such decent Ornaments and Furniture as belong to the same c. That the Money or other moveable goods thus granted or bequeathed be disposed for such uses and according to the intent of the Donor belongs to the Bishops care to look after and see performed Insomuch as they in whose hands such Moneys and Goods are detained may be convented before the Bishop and made to render an accompt thereof And the prosecution made herein may be either of office or at the promotion of the Church wardens of that or such other Parish to which the same is given Detentio legatorum ad usum pauperum quemlibet alium pium usum detentio bonorum ad publicos usus Ecclesiae destinatorum ad Episcopalem jurisdictionem pertinent Cosen Tab. vii A. To this purpose it is that in Articles given at Episcopal Visitations one is to enquire what Lands Possessions or other Richts are belonging or deemed and reputed to belong unto any Ecclesiastical Benefice and in whose hands they are and how they have been in their hands Which Article of Enquiry is grounded on the 44th Canon of this Church of Ireland and cognizance of these things belong to the Ecclesiastical Courts and may as I said be taken therein by the Ecclesiastical Judge either of meer office or office promoted c. and whether soever it be that such Rights become due by Legacy or any other Donation A man by his Testament bequeaths Goods to the Fabrick of a Church the Executor is to be sued for this in Court Ecclesiastical and thus it is determined at common Law see for this a consultation granted Register p. 57. a. cited at large by Dr. Cosen Apol. par 2. p. 100. But what if any issues and profits out of certain Lands and Tenements growing and belonging to any Church be detained They also may be sued for and recovered in Court Ecclesiastical If a Terr-Tenant holding Land that hath usually paid for such a Tenement a pound of wax or such like unto the Church do with-hold it the Churchwardens may sue him for it in Court Ecclesiastical Dr. Cosen par 1. p 45. And he alledges for this an ancient Author one Goodall who wrote in the time of King Henry 8th and intituled his Book Of the Liberties of the Clergy by the Laws of the Realm And observe that although a pound of wax and such like is only here mentioned yet it is not the tenuity and meaness of the thing that gives a right in this case to sue for it in the Spiritual Court But because there is a right so to do the same course of proceedings may be followed were the profits so accrewing and so to be disposed of far more valuable I will instance but in one case more which the Dr. mentions in p. 3. chap. 8. p. 102. An Ordinary proceeded ex Officii sui debito to the correction of crimes and excesses of those that were under his jurisdiction And amongst other objected Articles against a Knight for not sufficient reparations of a Church tending to the correction of his soul by reason of his detaining of that which he ought not This sayes he is allowed in the Register Tit. consultations fol. 53.6 I might but shall not need to add more for the proof of this first Assertion 2. Reparation of Churches with the incidents thereunto both by Temporal and Spiritual Law appertains to Ecclesiastical cognizance I call these the incidents thereunto The business of making Rates for such Reparations inspecting the money so rated questioning those that refuse to contribute their proportion and calling to account for money so collected These are all dependant on the other in case of any judicial proceeding that shall happen to be made thereon the reason is given in this as in all other things of like nature in that excellent law Nulli prorsus Cod. de judiciis the sum of which is this Ne continentiae causarum dividantur Now the Temporal Law is express for the proof of this in the Statute of circumspecte agatis An. 13. Edwardi Primi Among the thirteen cases there recired and appropriated to the Ecclesiastical Tribunal This is one viz. Prelates may punish for leaving Church yards unclosed or for that the Church is uncovered or not conveniently decked This Statute is also inserted in the provincial constitutions collected by Lindwood Tit. de fore competenti and so is become part of the Kings Ecclesiastical Law Several Common Law cases are cited for this by Meriton in his Guide for Church-wardens