of Fifty years of King Edward the Third the great Charter was several times confirmed The liberties priviledges and franchises of the Clergie were new ratified in the fourteenth and five and twentieth years of His Reign And so in the first sixth and eighth and twelfth years of Richard the second In the first second and fourth years of Henry the fourth It was enacted That the Lords Spiritual as well as Temporal should have and enjoy all their Rights and Liberties I grant indeed that in the Reign of two of these preceding Kings viz Edward the third and Richard the second that the two statutes of Proviso's and Praemunire were made But he that shall duly observe the end wherefore and the matter wherein and the persons against whom these statutes were made will not be able to find that any abridgment but rather a firmer settlement of Episcopal jurisdiction in the right Constitution of it was intended and came thereby That which was mainly aimed at and provided against in these statutes was to repress the encroachments of the Pope of Rome even upon the Bishops legal jurisdiction it self The Pope by His Emissaries in England from time to time drained the Kingdom of its Wealth He invaded the Kings Soveraign Rights by Mandates De providendo and expectative Graces granted of Ecclesiastical livings before the Incumbents were dead And besides He boldly intrenched on the Kings Temporal Courts many such unreasonable greivances there were which both King and People felt the load of and which to make them the heavier were fetch as far as Rome to be put upon them But all this while here are no exemptions to any particular persons or civil Officers to free them from Ecclesiastical jurisdiction where it proceeded in due manner and was exercised in matters properly cognizable by it That which must have the note of remark put upon it is this Provision is here made under severe penalties against acting by a derived power from and in an Usurped jurisdiction under the See of Rome This no English Bishop might do then This no Bishop in England or Ireland might or does or may do now One Act of Parliament will best serve to give light to another Now the statute 25 Hen. 8. cap. 21 affirms expresly that the statute of provision and praemunire of the 16th Richard secundi was made against such as sue to the Court of Rome against the Kings Crown and Dignity so that Episcopal jurisdiction in each respective Diocess and in matters of Ecclesiastical cognizance is so far from being impaired by these statutes that in truth it is more firmly fixed and corroborated thereby All these things were before the Reformation in England towards the dawning of which we meet with a noted statute in the 23th year of King Henry 8. cap. 9. designed as is conceived to restrain the Exorbitances used in summoning people out of the Diocess wherein they inhabit without leave of their Ordinaries which thing as it tended to the great vexation of the persons so cited it also aimed at the very encroaching on the several Ordinaries Rights on pretence of some legantine power or Nuncio's Court or other extraordinary cause In the preamble of which Statute it is affirmed That all persons of any quality or condition may be cited before their Ordinaries so it be in proper cause and due Order The body of that statute provideth that no citation be made out of the Diocess where the party dwelleth but where some spiritual offence or cause is committed or done So that a contrario sensu sayes the learned and judicious Dr. Cosen Apol. p. 67. in any offence or cause spiritual any Subject may be cited within his or her Diocess And in some peculiar causes there mentioned and recited they may be cited out of their Diocess Now the power of citing presupposes a full jurisdiction that is a power to proceed further thereupon in all due requisits and forms that belong to any cause whether it be upon instance or of matter of correction Since the Reformation that all jurisdiction Ecclesiastical is de facto as it was alwayes de jure united to and so derived from the Imperial Crown of England there is by the statute of the first of Queen Elizabeth cap. 1. Full power and authority given to the Ecclesiastical Judges for the Executing of Ecclesiastical jurisdiction as before time See also a statute made in Ireland in the 28. year of King Henry the 8. called an Act against the Authority of the Bishop of Rome towards the latter end thereof Provided that notwithstanding this Act or any other Act made for the taking away of the said Bishop of Romes Vsurped power Authority Preheminence Jurisdiction or any other thing or things in the same comprised That all and every Archbishop Bishop Arch-Deacon Commissary and Official and every of them shall and may use and exercise in the name of the King only Vid. infra p. 53. all such Canons Constitutions Ordinances and Synodals provincial being already made for the direction and order of Spiritual and Ecclesiastical causes which be not contrariant nor repugnant to the Kings Lawes statutes and customs of this Land nor to the Damage and Hurt of the Kings Prerogative Royal in such manner and form as they were used and Executed before the making of this Act till such time as the Kings Highness shall order and determine according to his Lawes of England and such order and determination as shall be requisite for the same and the same to be certified hither under the Kings Great Seal or otherwise ordered by Parliament And while I am thus enumerating the several statutes which the former position is not contrariant to but rather strengthned by I must not omit the making mention of those statutes and Acts of Parliament that are set out and published meerly upon Ecclesiastical causes and matters which are reckoned by some as those that enter into and make up the body of the Kings Ecclesiastical Laws Zouch de jure Eccles p. 1. Sec. 1. c. whether these be matters of a civil or criminal Nature matters of civil cognizance are either such as concern Precontracts and other matrimonial causes In Ireland 33 Hen. 8 cap. 6. In England 32 Hen. 8. c. 38. 1 and 2 Edward 6. c. 23. 1 Elizab. 1. oâ— such as concern Testamentary matters 21 Hen. 8. cap. 5. In this Kingdom 28 Hen. 8. cap. 18. Also matters of Tythes and the pursuits and impleadings thereup on Heâ—â— 33 Hen. 8. c. 12. In England to the two Statutes mentioned before called circumspecte Agatis and Articuli Cleris These may be added viz. 1 Richard 2. c. 14.27 and 28 Hen. 8. c. 20. 32 Hen. 8. c. 7. 2 Edward 6. cap. 13. Concerning all which all persons without distinction of place or office who are concerned in any of these causes they are subject to Episcopal jurisdiction to which the same causes do appertain and by which they are managed And for matters
was ever made nevertheless at the happy Restauration of our Gracious Sovereign that now is viz. Anno Dom. 1660. The said Act of the 17. of King Charles the First is repealed and that was Anno decimo tertio Caroli Secundi and in that Act of Repeal it is thus declared That the said Act of the 17. of King Charles the First notwithstanding All Archbishops Bishops and all others exercising Ecclesiastical jurisdiction may proceed determine sentence execute and exercise all manner of Ecclesiastical jurisdiction and all censures and coercions appertaining and belonging to the same before the making of the Act before recited in all causes and matters belonging to Ecclesiastical jurisdiction according to the Kings Majesties Ecclesiastical Laws used and practised in this Realm in as ample manner form as they did might lawfully have done before the making of the said Act. This Act is indeed attended with three Provisoes The first is concerning the High-commission Court which is excepted from having any revival or force or authority given to it or to the erection of any other such like Court by commission hereby The second Proviso is concerning the Oath called the Oath ex Officio which is excepted against and forbid to be tendred or administred unto any in the exercising of any Spiritual jurisdiction The third Proviso is to limit and confine the power of Ecclesiastical Judges in all their proceedings to what was and by Law might be used before the year 1639. observe the year mentioned to be 1639 which plainly includes allows and confirms King Charles the First His Proclamation in the year 1637. In this clause and branch of this Statute provision is also made against any confirmation to be given to the Canons made Anno 1640. These particulars onely excepted and here provided against all Ecclesiastical Jurisdiction as to it's exstensiveness in all causes of Spiritual cognizance over all persons of what quality and degree soever they be or in what Office soever they are in those causes is firmly ratified and established Bartolus his Rule is truly applicable here Exceptio firmat Regulam in non-exceptis But let all this be granted will the Excepters say that proceedings in Ecclesiastical Courts against private persons either in matters of instance or correction are not entrenching on the Prerogative Royal yet the case is otherwise when such proceedings are bent upon publick Officers as Mayors and Sheriffs c. because they are vested with the Kings Authority and nearly represent His Person They are His Ministers and Dispensers of Justice and by such proceedings against them publick affairs might be hindred of their dispatch and the Kings business not be executed I Answer there is no otherwise in this case For if the matter be justifiable that is if the cause any such proceeding is begun upon do belong to Ecclesiastical cognizance then the Spiritual Jurisdiction in the Bishops management reaches such publick Officers as well as others and that without invading or in the least violating the Kings Prerogative If occasions so require Ecclesiastical censures may be inflicted on them as well as on any other of the Kings subjects that do offend And yet the doing of that will not be a censuring the King in Effigie as some have with very little reason and but too much passion affirmed Observe we what may be done and adjuged against such publick Officers in the Kings Temporal Courts A Mayor and Sheriffs may be impleaded before the Kings Temporal Judges in causes Civil The people of Waterford may remember one or two instances hereof very lately when the School-master there sued the Mayor and Sheriffs before the Lords Justices of Assize for detaining the Salary they had contracted to pay him A Mayor of any City or Corporation may be arrested may during the time of his Mayoralty be sued to an Out-lawry in the Kings Temporal Courts The Kings Temporal Judges may upon contempts convent Mayors before them and occasion so requiring commit them to prison It is not long since that a case in Waterford was coming near this when in one Whaley's cause a Writ of Error was brought from the Court of the Kings Bench This the Mayor refusing to obey and complaint thereof being made to the Court a Pursuivant was ordered to attach the Mayor and bring him before the Judges there to answer his contempt which undoubtedly would have been done if the Execution of that Order had not been seasonably prevented by an Affidavit made to this effect That the Mayor did not refuse to obey the said Writ of Error but onely deferred the admitting of it until he sate judicially in Court the same having been before privately exhibited to him By this means that proceeding was stopped which else would have manifested that the Mayor of Waterford is not so absolute but is indeed under controll and may be convented and punished by the Kings temporal Judges without any affront done to the King in Effigie or to his power and authority which he the said Mayor in his proper station and within his own Precinct does bear And that Sheriffs even while they are in the exercise of their Office may be proceeded against in the Kings Temporal Courts none can be ignorant of that understands the practice of those Courts and remembers there is such a Court as the Exchequer or has undergone the Office of a Sheriff A Sheriff by the Statute of Westminster 1. cap. 9. Anno tertio Edvardi primi for not doing his Duty and for concealing of Felons may be fined and imprisoned One Bronchard in Queen Elizabeths time being Sheriff had an Information Exhibited in the Star-chamber against him for returning one that was not chosen a Knight of the Parliament Abridgement of the Reports of the Lord Dyer 425. A Sheriff of Barkshire was committed to the Fleet and fined by the Court of Common Pleas for unjust taking of Fees Brownloes Reports second part p. 283. I doubt not but the Learned in the Municipal Laws are able to furnish out plenty of instances of this kind Well then Mayors and Sheriffs may be Impleaded may be Out-lawed may be Arrested may be Fined may be Imprisoned in the Kings Temporal Courts by from and before his Temporal Judges And in all these Inflictions here 's no Fining no Arresting no Out-lawing no Imprisoning no Attaching the King in Effigie nor any intrenching upon his Authority from himself to his subordinate civil Officers Here 's no hindring the dispensing of Justice no obstructing the Kings business nor letting the execution of His Majesties service in the hands of these publick Officers that is at all dreaded hereby And pray How then comes it to pass that the case is not the same when in matters of Ecclesiastical cognizance the Kings Ecclesiastical Judge in his Ecclesiastical Courts proceeds against such persons by penalties proper and usually inflicted therein Is not the Kings Authority in His Ecclesiastical Courts in matters belonging to them as forcible and
calling all parties under that jurisdiction to answer in judgement of using Coercive means to such as are refractory and contumacious and bringing matters to a final and full Execution Gothofred sayes well hereupon Quoties casus omissus virtute 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 expressi comprehendi potest toties ad illum fieri debet extensio But least this position may less pleasingly rellish with some pallates because of the Authority I have hither to made use of to establish it by The Imperial or Civil Law being not allowed in these Kingdoms save only in some particular Courts and causes which is to be said of the Canon Law likewise And in respect of the latter of these two some men are apt to look asquint upon any thing that is drawn out of it or grounded thereon They are ready to cry out upon such a thing as a Popish encroachment tending to Advance the Miter and Keyes above the Crown and Scepter * Yet these make up a part of the Kings Ecclesiastical Lawes being so qualified as by Statute is required in 25 Hen. 8. cap. 19. To prevent this or any the like imputation my next and that my principal endeavour is to shew its accordance with the State Constitution and Lawes of these Kingdoms of England and Ireland under His Majesties Government that is with the Ecclesiastical and with the Municipal Lawes thereof and with the Kings Prerogative Royal. In respect of all which I do not doubt to affirm That this position viz. That all persons whatsoever within any Diocess regularly and de jure communi are subject to the jurisdiction of the Bishop of that Diocess in matters and causes of Ecclesiastical cognizance That this position I say is agreeable to the Ecclesiastical Lawes of these Kingdoms Not repugnant to the Municipal Lawes thereof Neither is it thirdly any thing intrenching upon or infringing His Majesties Prerogative Royal These all require distinct and particular considerations 1. It is agreeable to the Ecclesiastical Lawes of these Kingdoms in His late Majesties Proclamation of Royal Assent given to the Book of Canons and Constitutions Ecclesiastical of this Church of Ireland Anno 1634. I observe two things relating to our present purpose the former is a strict injunction upon all persons whatsoever to observe and obey them We do not only by our said Prerogative Royal and Supream Authority in causes Ecclesiastical ratifie confirm and establish by these our Letters Patents the said Canons Orders Ordinances and Constitutions and all and every thing therein contained as is aforesaid but do likewise propound publish and streightly enjoyn and command by our said Authority and by these our Letters Patents the same to be diligently observed executed and equally kept by all our loving Subjects of this our Kingdom in all points wherein they do or may concern every or any of them according to this our Will and pleasure hereby signifyed and expressed The other thing I observe therein is that impartial Execution of them which is required to be made and by whom to be made upon all persons whatsoever that refuse to obey them so it afterwards follows Streightly charging and commanding all Arch-Bishops and all others that exercise any Ecclesiastical jurisdiction within this Realm to see and procure that the same Canons Constitutions Orders and Ordinances be in all points duly observed Not sparing to execute the penalties in them severally mentioned upon Any that shall wittingly or willingly break or neglect to observe the same as they tender the Honour of God the peace of the Church tranquility of the Kingdom and their duties and service unto Vs their King and Sovereign All are commanded to obey these none have an Immunity from being punished if they do not obey them In the last Canon of that Book It is decreed That if Any within this Nation shall despise and contemn the Constitutions thereof Ratified and confirmed by Regal power or affirm that none shall be subject to them but such as were present and gave their voyces to them He shall be Excommunicated and not restored until he shall publickly revoke his Error In the 140 Canon of the Church of England published Anno 1603. It is more particularly and expresly set down and declared that all manner of Persons both of Clergie and Laity are to be subject to the Decrees mentioned in them in causes Ecclesiastical Although they were not themselves particularly assembled in the same Sacred Synod Let us now put both these things observed together and the result is this Here is a jurisdiction declared in respect of certain matters and causes and in respect of Persons indefinitly set down over all And in whom is this jurisdiction declared to be namely in Arch-bishops Bishops c. over whom is it declared to be over all surely The injunction of inflicting penalties in case of disobedience is as universal and extensive subjectively as is the command of obedience Here is no distinction nor exemption made of any Persons under any qualification or Vested with any office or subordinate civil power so as they should be thereby priviledged from Ecclesiastical jurisdiction in matters appertaining thereunto And Vbi lex non distinguit ibi nec nos distinguere debemus where the Law makes none neither may we make any distinction I have made my first instance in these Canons as part of the Kings Ecclesiastical Lawes But I am not to learn that when the Authority of our Canons is urged and that obedience which is required to them is called for There are a generation of such as are wise in their own conceits men of mighty deep understandings who think they pierce further into things and understand more than their poor shallow Brethren are able to do And these will question the Validity of these Canons and their legal obligingness on the Kings Majesties Subjects To all such therefore I shall fairly offer a few considerations and then leave in to their own sober thoughts to determine wha◠Coherence there can be betwixt a disowning 〈…〉 the Authority of our Ecclesiastical 〈◊〉 and the profession of being dutiful and obediene Subjects 1 Many learned men both of the Municipal and Civil Law joyn in this opinion and affirm That the Kings Majesty may by virtue of His Supream Authority in matters Ecclesiastical confirm and ratifie into the force of Law Canons made in Convocations and that they be a part of the Kings Ecclesiastical Lawes Princeps tanquam supremus post Deum gubernator potest in causis Ecclesiasticis statuere quicquid verbo divino statutis consuetudinibus Regni sui non repugnaverit Cosen de Politeia Ecclesiastic Anglicana Tab. 1. A. And then he specifies the matter of his former Assertion thus viz. That this supream power of our King is in Condendis novis legibus sive canonibus in ijsdem administrandis relaxandis cirea statum Ecclesiasticum and this done cum Regius assensus fuerit adhibitus iis quae Synodus
decernenda Censuerit ibidem Tab. 2. In Synod Nationali vel provinciali Regis rescripto convocato nihil tractari aut determinari potest nisi eo assentiente nec quicquam vim legis obtinet priusquam Regalis assensus adhibitus fuerit Dr. Zouch Descript Juris Eccles. p. 1. Sect. 2. See also to the same purpose Dr. Duck de authoritate Juris civilis in Anglia lib. 2. cap. 8. p. 3. Sect 27. And the Lord chief Justice Cook 4. p. Instit cap. 74. cited thereby him 2 The King himself in the Proclamation before mentioned declares that such Canons Constitutions c. agreed upon by the Arch-bishops Bishops and Clergie of Ireland to the end and purpose by him limited and prescribed unto them He has given His Royal assent according to the form of a certain statute or Act of Parliament made in that behalf And by his Prerogative Royal and Supream Authority in matters Ecclesiastical he has ratified and confirmed the said Canons being one hundred in number by his Letters Patents under his great Seal of Ireland And then follows His Majesties strict injunction upon all His loving Subjects of this Kingdom to obey and execute the same which I insisted upon before 3. Besides His Majesties Prerogative Royal and Supream Authority in causes Ecclesiastical the King is likewise by Act of Parliament vested with power for this purpose and that is the Statute 25 Hen. 8. cap. 19. called the Petition and Submission of the Clergie to the King For the Bishops and Clergie in Convocation having each one severally promised in verbo sacerdotis never henceforth to presume to attempt alledge claim or put in use or enact promulge or execute any new Canons Constitutions or Ordinances without the Kings most Royal assent had and obtained thereunto upon which promise and submission it was enacted by Authority of Parliament That all Convocations in time to come should always be assembled by the Authority of the Kings Writ And that the Kings license and authority being had they might make promulge and Execute such Canons Constitutions and Ordinances Provincial and Synodal which being ratified confirmed and approved under His Majesties Great Seal they then become of legal force upon the Subject This Proviso indeed follows That no Canon nor Ordinance shall be made or put in Execution by the Authority of the Convocation of the Clergie which shall be contrariant or repugnant to the Kings Prerogative Royal or the Customs and Statutes of this Realm c. Rastals collection word Rome numb 1. * Which Statutis is but declaratoâ—y of the Common Law says my Lord Coke 4. Instit cap. 74. p. 323. So that the same is grounded both on Statâ—to and Common Law The like Statute to this particular we have enacted in Ireland Entituled An Act against the Authority of the Bishop of Rome in vicessimo Octavo Hen. 8. and referred to in the Proclamation before spoken of in the second consideration A Great Lawyer one Mr. J.M. in a speech before a Committee of the Lords at the Parliament held Anno 1641. Having occasion to speak of this Statute for his speech was against the Canons made the year before avouched plainly that that clause The Clergie shall not make Canons without the Kings leave implyeth not that by his leave alone they may make them But certainly the most knowing men in any Science or faculty have not the priviledge of never mistaking in what they say for to him that advisedly considers the matter and scope of that Statute it will appear plainly That the abridging the over-growing power of the Clergie assumed by them in making and enacting Canons and pressing their authority on others And together with this the cutting them off from any relation to the Bishop of Rome and making them dependants on the King alone for the better ordering of what should be debated and determined in their Synodical meetings were if not the only yet the principal aims of that Statute Add here further that a successive and continued practice from the time when that Statute was made to this day delivers the best and truest sense of it * Practiea est legum optima intellectrix Baldus For thus as I have set down it was practised in the times of Edward the 6th Queen Elizabeth 1562. King James Anno 1603. King Charles the first in this Kingdom of Ireland Anno 1634. And though I say nothing of the Canons themselves made in the year 1640. because all authority as to them is annulled by Act of Parliament Anno 13 Caroli Secundi yet the Commission granted to the Convocation of that year at the first opening of the Parliament and of it was according to Law and this speaks plainly of the Kings leave and license granted and alone needful herein see more fully thereof in Dr. Heylins life of the Arch-bishop of Canterbury p. 423.424.425 I conclude this matter with the decision of a great Casuist He in discoursing of Ecclesiastical Laws and the manner how they are enacted in the Church of England Jus condendi leges Ecclesiasticas saies he est paenes Episcopos Presbyteros aliasque personas à totius Regni clero rite electas in legitima Synodo rite congregatas Ita tamen ut ejus juris sine potestatis exercitium in omni Repub. Christiana ex Authoritate Supremi Magistrat us Politici pendere debeat Idque aparte Ante ut loqui solemus aparte post vir ut nec iis statuendi Canones Ecclesiasticos causâ liceat convenire nisi autipsius mandato inssu ad id negotii convocatis aut ejus saltem authoritate Venia ab eo petita obtenta munitis Nec Canones in quos illi sic consenserint tali sint aut vim aliquam habeant obligandi quoad supremi Magistratus assensus accedat Cujus approbatione publica authoritate simulac confirmati fuerint illico pro legibus habendi sunt subditos obligant Bishop Sanderson de conscient obligat Praelect 7. Sect. 30. Mr. Hooker Eccles. Polit. Book 8. in p. 219.220.221 c. Thus much has been said touching the Canons of our Church and their Authority so far forth at this present as suits with the present occasion and what they were produced in proof of In several Provincial Constitutions we find it Decreed That concerning matters belonging to Ecclesiastical cognizance proceedings may be made against any Layman or publick Officers as Sheriffs and others even to the inflicting publick Censures upon them Many of this kind will occur to the Reader that is conversant in them That Constitution Aeterna Sanctis de paenis Enacted in a Council at Lambeth under Boniface Archbishop of Canterbury Anno 1260. In the time of King Henry the third And that Constitution ut invadentibus de immunitate Ecclesiae Enacted by the same Boniface likewise the Constitution contingit aliquando eodem And Accidit Novitate perversa eodem Enacted by John Stratford Archbishop of Canterbury in the time
which are criminal To pass by other statutes I instance in these two only The one De Excommunicato capiendo in 5 Elizab. c. 23. where the several crimes therein mentioned subject all such as shall be detected and found guilty of any of them to the Ecclesiastical Tribunal The other is the statute for Uniformity of Common-Prayer c. 1 Elizab. cap. 2. In this statute after a charge given in this Solemn and strict manner The Queens most Excellent Majesty The Lords Temporal and all the Commons in this present Parliament assembled do in Gods Name earnestly require and charge all the Archbishops and Bishops to endeavor their utmost for the due execution thereofâ—â— And then it follows for their power and authority in this behalf Be it further Enacted by the Authority aforesaid That all and singular the said Archbishops Bishops c. and all other their officers exercising Ecclesiastical jurisdiction as well in places exempt as not exempt within their Diocess shall have full power and authority by this Act to reform correct and punish by censures of the Church all and singular Persons which shall offend within any of their Jurisdictions or Diocesses after the said Feast of St. John the Baptist next coming against this Act or Statute any other Law Statute Priviledge liberty or provision heretofore made had or suffered to the contrary notwithstanding See a so the statute made secundo Elizab. cap. 2 here in Ireland The thing we had in hand to make good was this That all persons whatsoever within any Diocess regularly and de jure communi are subject to the Bishop of that Diocess in matters and causes of Ecclesiastical cognizance that this position is not repugnant to the statute Laws of these Kingdoms This I think has been fully evidenced and needs no further enlarging upon And to give one instance of this jurisdictive and coercive power in Bishops over all indefinitely it shall be in the matter of substracting and detaining of Tythes a cause properly and anciently cognizable before them That ample Charter granted by King William the first to the Clergie and mentioned at large by Mr. Selden in his History of Tythes cap. 8. p. 225. The conclusion of which is after this manner Quicunque decimam detinuerit per justitiam Episcopi Regis si necesse fuerit ad redditionem arguatur Startle not Reader at the eying of this that the Bishops power of Justicing has here precedency of place before the Kings conceive not that this was to set Episcopal power on high and make Regal Authority subordinate to it But this declares to whose judicial cognizance under the King the proceeding against detainers of Tythes of what quality and condition soever they be does immediatery appertain who is the Officer and Minister of Justice therein And the Kings power being after mentioned is so set down by way of judicial order and consequence not of subordination in power and Authority Thus much these very words si necesse fuerit plainly do import as if it were said should any of these detainers prove refractory and contumacious against the Bishops authority so that there were a necessity of invoking the secuâ—ar power the King would then be present therewith and by poenal coercions compel them to give obedience thereto Now for what concerns any other part of the Common Law it may be also both safely and truly in respect of the thing it self affirmed That Ecclesiastical proceedings according to the position laid down bears no contrariety therewith as is set down by Dr. and Student lib. 1 c. 6. That Episcopal jurisdiction is of force in this Kingdom even by the Laws of this Realm in certain particular instances mentioned is reported by Dr. Cosen from a certain Author writing in King Hen. 8th time Apol. part 1. p. 7. The Author is shewing that the Bishop of Rome has not nor ought to have any jurisdiction in His Majesties Kingdoms by the Laws of this Realm The medium whereby he proves this thing is this because Certificates of Bishops in certain cases are allowed by the Common Law and admitted in the Kings Courts But the Popes Certificate is not admitted vid. Lord Coke Instit 4. cap. 74. circa initium de jure Regis Ecclesiastico p. 23. 26. diversos casus thidem citatos Besides in the statute of Appeals 24 Hen. 8. cap. 12. mention is made of spiritual jurisdiction exercised in causes belonging to the same and it is there expresly said That such exercise is grounded on the Laws and customs of this Realm circa mitium dicti statuti Now certainly a statute best informs any one what is truly and what is agreeable to the Common Law The Bishops are by the Common Law the immediate Officers and Ministers of Justice to the Kings Courts in causes Ecclesiastical Lord Coke de jure Regis Ecclesiastico pag. 23. And for what belongs to any custom or ancient usage that has the force of Law among us I cannot find out any such that is impugned by what I have affirmed But thus I may safely determine That if any manner and course of things established by long use and consent of our Ancestors and still kept on foot by daily continuance and practice be a custom and may set up for a Law not-written Then certainly the thing that has been affirmed that is the exercise of Ecclesiastical jurisdiction by Bishops over all persons within their respective Diocesses and in causes belonging to it and thus far endeavoured to be pâ—oved is not at all contrariant thereto but of perfect agreement yea of the same Nature with it Are there any that after all this will make their reply and tell us of persons exempted from Episâ—â— paâ— power and the exercise thereof bound up and restrained in respect of such and for proof of this will alledge the Authoritative proceeding of King William the Conqueror who would not suffer any Bishop to Excommunicate any of his Barons or Officers for Adultery Incest or any such Heinous crime except by the Kings command first made acquainted therewith By the way it must be known that the word Baron is not to be taken in that limited and restrictive sense as to understand thereby the Higher Nobility to which Votes in Parliament do belong But generally for such who by Tenure in chief or in Capite held land of the King Selden spicelegium ad Eadmerum referente Tho. Fullero B. 3. Histor Eccles p. 4. Whatsoever now shall be collected hence to overthrow what has been before said is easily answered For King William very well understood his own Imperal power and right over the whole body Politick whereof the Clergie were a part And that by vertue thereof the Actual Exercise of both Civil and Ecclesiastical jurisdiction did flow from him And that he might where and when he saw cause restrain the Execution of either how long or in respect of what persons he pleased and this by special
I say it is not For I will not be positive in what I am about to write but referring my self to better judgments I freely submit to their decisions herein This I propose then That all matters of contract arising from or upon causes originally of Spiritual cognizance are not excâ—â—ded from the Ecclesiastical Tribunal I put this case not much differing from that which we have before us Titius a parishioner of Dale with leave of the Parson and rest of the parishioners builds up an Isle or Out chappel adjoyning to the Parish Church of Dale and intends to reserve the same to himself and relations for the use of a burying place and undertakes to keep this Out-chappel from time to time in sufficient good and decent repair Notwithstanding this obligation so to do the repair of the same is neglected If the question were put to me before whom and in what Court Titius may be sued and compelled to make good the reparation thereof I should not doubt to answer that Titius may be proceeded against by the Ordinary ex Officio or impleaded by any voluntary Promoter of the Office in causa reparationis Capellae c. The Church wardens may present that neglect and the person guilty of it One Article usually given to present upon is this Whether the Church or Chappel in the Body and Chancel of it be in good repair If it be not through whose defaclt comes it to pass that it is not and this Article is grounded on the 93d Canon of this Church So then as the neglect and default is punishable by the Ordinary the reformation likewise thereof in making good the repair otherwise by contract undertaken for is to be enjoyned by the Ordinary Moreover Pensions out of Churches or any Annual Portion beeoming due from any Colledge Bishoprick Cathedral Church or Deanry to be paid to any Rector Vicar or Curate of a Parish Church if they be detained the same are demandable and to be recovered in the Ecclesiastical Court according to the Statute viz. 34 35 Hen. 8. cap. 19. Now the Right of paying any such Pensions and Annual Portions is grounded on Ancient-contract obliging thereunto In Compositions Real for Tythes made either between the Parson of one and the Parson of another parish for the stating and setling each others right and to prevent litigious impleadings of each other Also compositions made between the Parson and some one or more of his parishioners touching the not paying any Tythes at all but a certain setled and determinate sum in lieu thereof This is usual in this Kingdom for Mills that grind corn to compound for a certain sum to be paid instead of the Toll-tythe Now the Ecclesiastical Judge before whom these compositions are to be alledged may hear and determine thereof Tit. 120. Cler. Prax. Sir Thomas Ridley's View c. part 3. chap. 3. Sect. 6. Coseâ— Apol. p. 1. ch 10. There is a cause of Ecclesiastical cognizance called Negotium subtractionis Dotis causa nuptiarum promissae The case is thus Titius in consideration of Matrimony to be contracted and solemnized with his Daughter Partia by Sempronius promised Ten pounds to Sempronius The Matrimeny being solemnized and Titius not paying the promised sum Sempronius impleads him before the Ecclesiastical Judge for the same Titius sues out a prohibition Notwithstanding which Sempronius obtains a consultation wherein is affirmed That the Court Ecclefiastical may proceed therein This you may find reported by Dr. Cosen Apol. p. 1. pag. 26. And the several Opinions of Common Lawyers concurring therein More instances might be given of this kind to evince That all contracts arising from matters which are in their Original of Spiritual cognizance are not excluded from the Ecclesiastical Tribunal observe what is further said Although promises and contracts of Money are generally pleadable in the Courts of the common Law yet as Bracton writes Causae de rebus promissis ob causam Matrimonii in foro Ecclesiastico terminari debent quia cujus juris jurisdictionis est principale ejusdem erit accessorium And in another place he gives a reason for the same quia semper videndum propter quid aliquid sit aut permittatur Zouch Jurisdiction of the Admiralty p. 64. I do not affirm an absolute parity between these cases and that which is before us I refer'd my self before and do now still submit what is said to the judicious decisions of others But this is yet upon the supposal that what is objected was really so as is objected the contrary to which is most clear for as touching what relates to this Vindication there is no need at all to strain any doubtful or disputable case to make it favour the matter in hand for the contract here pretended was not insisted upon so as to make a foundation of any jurisdictive proceeding in the Ecclesiastical Court thereupon 'T is true the contract gave occasion to the Bishop to call upon and admonish the Mayor and Sheriffs of Waterford to look after what belonged to their duty to be done They being thus stirred up make rates levy and collect Money from the several Inhabitants for this end of repairing the Body of the Cathedral c. They receive the voluntary contributions for the Bells The Money thus levied collected and received is little disposed of for the uses intended The Church remains unrepaired the other works are neglected now what was regularly and legally to be done in this case was regularly and legally entred upon the work of reparation it self the accounting for Money levied raised contributed and received for that purpose and other matters relating to the Church are the grounds of this proceeding as by the several Acts of Court remaining in the Registry of Waterford may more fully appear Now that these are justisiable grounds whereon legally to found an Ecclesiastical proceeding comes to be made good which I shall do by laying down and proving these three Assertions 1. The rendring an accompt of Moneys given and received for pious causes and the right disposing thereof belongs to the Bishop within his own Diocess to call for and see performed 2. Reparations of Churches with all the incidents thereunto both by Temporal and Spiritual Law appertain to Ecclesiastical cognizance 3. The penalty of Praemunire will not be incurr'd by any Ecclesiastical Judge for making such proceedings 1. The rendring an accompt of Moneys given and received for pious causes and the right disposing thereof belongs to the Bishop within his own Diocess to call for and see performed Pious causes are set down in the Law to be of many and various kinds and to enjoy many and various priviledges for the many and various kinds of them see Leg. illud Leg. Sancimus Cod. de Sacro-sanctis Ecclesiis and Lindwood in cap. it a quorundam ad Verb. pias causas de Testamentis lib. 3. Provincial Constitut Among which these especially fall under our disquisition namely Legacies or other Donations
Sect. 37. And note sayes he That the Ecclesiastical Court hath cognizance of the reparation of the Body of the Church He instances in the Body of the Church because not-excluding the other parts mention is there made of the Parishioners to whom the repair belongs and who are to contribute to the same Dr Cosen in the First part of his Apology cap. 7 informs us thus touching this matter When a Prohibition was sued out sayes he for proceeding Ecclesiastically in a matter concerning the Reparation of the Body of a Church A judgement was given thereupon in a consultation to this effect which he sayes is recorded in the Register cited by him thus pag. 43. a. Vobis igitur significamus quod super emendatione reparatione defectuum corporis Ecclesiae juxta consuetudinem approbatam facienda procedere poteritis ea facere quae ad forum Ecclesiasticum nover it is pertinere 〈◊〉 a prohibitione non obstante And by reason of defects in the reparation of a Church sayes the same Author ibid. Money it self may lawfully be sued for in a Court Ecclesiastical as appears by another consultation Reg. pag. 48. a. And so it is provided in the very Stature of circumspecte agatis The words are these mentioned in it In which case none other penance can be enjoyned but pecuniary See Lindwood ad verbum Sub poena cap. Sint Ecclesiarum Rectores De Officio Archidiaconi Lord Coke de jure Regis Ecclesiastico p 9. 3. The penalty of praemunire will not be incurred by any Ecclesiastical Judge on account of any proceedings of this Nature The proof of this Assertion depends upon two things viz. The truth of the two former Assertions that the cause proceeded upon was properly belonging to the Ecclesiastical Tribunal and that the Bishop the Ecclesiastical Judge proceeding therein acted not by or from any foreign jurisdiction or power Both these are so manifestly true that I might supersede my self the labour of saying any more therein But because some mens mouths were opened wide and loud in that point as if when by Law they could not they would yet by their clamorous votes and confident affirmings involve the Bishop in the penalty of this Statute It will therefore I think be both a seasonable undertaking and proper to our purpose to write something more particularly concerning the same and the rather because the imputation of incurring the penalty contained in that Statute is oftentimes at least threatned against those that are careful and active in the discharge of their Office of Trust in matters of Ecclesiastical Jurisdiction It has been the observation of a late Historian Fuller Church History Book 4. p. 149. that this Statute of pramunire has had the hard hap not to be honoured with so many readings thereon as other Statutes And therefore I suppose the course now taken by me in speaking something hereof will appear the more excusable If not having opportunity of viewing the few readings that have been made thereon by the Learned in the Common Law I have recourse to such other Writers as upon some occasional emergency or other incidental matter have treated thereof The Writ of praemunire facias grounded principally on the Statute made in the 16 year of King Richard the Second cap. 5. is awarded against those that have procured any Process or Bull of the Pope from Rome or elsewhere for any Ecclesiastical place or preferment within this Realm or doth sue in any foreign Ecclesiastical Court to defeat or impeach the Kings Courts and the party offending herein is liable to grievous penalties mentioned in the said Statute This account of a praemunire as abstracted by him from the Statute I take from Sir Thomas Ridley in his View of the Civil and Ecclesiastical Laws p. 3. c. 1. Sect. 1. Some later Statutes sayes Dr. Cowell in the word praemunire do cast this punishment on other offenders As denying the Kings Supremacy the second time by the Statute 1 Elizab. 1. falls under the punishment of praemunire And by the Statute 13 Eliz. cap. 2. He that affirmeth the Authority of the Pope and refuses to take the Oath of Supremacy falls under the like penalty so they do likewise by the Statute of the 13 of the Q. cap. 1. that are seditious talkers or affirm the Q. Majesty to be an Heretick Now let us put all these together and whatsoever else is collected from the Statutes made before and after the Reign of King Richard the Second touching these matters Put all these I say together and what either in gross or tale will they make to disadvantage the matter we have in hand or what can be found either in the Bishop or his proceedings impeachable from thence Is it his being appointed to and setled in the Epâ—scopal See of Waterford and Lismore None can affirm that For he receives not this by any Bull from Rome but by Donation and Investiture from the King of England Is it the actual exercising of Ecclesiastical Jurisdiction within his Diocess That cannot be neither because he is not empowred to this by any Foreign Authority but by his Majesties Letters Patents for his Consecration and by His Majesties Letters Patents for restauration of the Temporalities Are any of his proceedings against the Kings Crown and Dignity No They tend not to promote any foreign power but to maintain the Kings Prerogative and Supremacy over all persons in causes Ecclesiastical Does he refuse to take the Oath of Supremacy or fall under any of those crimes mentioned in the Statutes of Q. Elizabeth and which are liable to the penalties of praemunire This cannot be said He took the Oath of Supremacy on other occasions required by Law And he took it as is appointed at the time of his Consecration Lastly are any things done by him whereby the Kings Courts are impeached and defeated Not this because He the Kings Ecclesiastical Judge in the Diocess of Waterford and Lismore hears and determines matters of Ecclesiastical cognizance in the Kings Ecclesiastical Court there according to and by the Kings Ecclesiastical Laws Whence then may we conceive arises this imputation of a praemunire There is indeed no ground for it but in the fancies and would I had not reason to say in the wishes of such as are so ill affected that they do not patiently endure the Episcopal office much less allow the exercise of any Jurisdiction by a Bishop Observation of former times and reading besides present experience of things now brings to our knowledge the restless practises of some that endeavour by all contrivances of wit and policy to load with odious charges the exercise of Episcopal Jurisdiction and if it may be done to draw it within the penalties appointed by this Statute of Praemunire yet there are many sober and wise men who have declared openly enough their opinion That as all Jurisdiction whatsoever in these Kingdoms is radically in the King and so an Union of Ecclesiastical and Temporal
praemunire Anno 16. Richard 2d cap. 5. It is Ordained That none shall purchase or pursue in the Count of Rome or elsewhere any Processes Bulls c. nor the same bring within the Realm viz. these His Majesties Dominions This be it spoken under correction cannot rationally be intended de Curia Episcopi here within this Blealm the reason is plain because Curia Bomana velâ—alibi where such Processes and Bulls c. are purchased and pursued and from whence they are brought within the Realm these I say must be somewhere out of the Realm for the bringing in of a thing excludes the obeing of that thing there already but the Bishops Courts are within the Realm and none of these Processes brought into the Realm can be from them and therefore this word alibi has no reference to nor can it be intended of them Add hereunto That the occasion inducing this Statute and recited in the preamble to lit seems not all to favour this sense of the word The Coinmons in Parliament having with great vehemency and earnestness represented the several Grievances the Kingdom lay under among others these are especially mentioned viz. The Popes Excommunicating of Bishops for executing the Kings Commandments the Popes translating of them from See to See sometimes out of the Kingdom against their own and contrary to the Kings Will The Lords Spiritual being therefore demanded as the Lords Temporal had been before what their Advice and Will was in these cases The Archbishops and Bishops and other Prelates openly disclaimed the Popes insolent carriage towards the King and His Subjects and declared That they would and ought to stand with the King in these cases in lawfully maintaining of His Crown and in all other cases touching His Crown and Regality as they be bound by their Allegiance Whereupon sayes the Statute It is Ordained and Enacted That if any purchase or pursue c. from the Court of Rome or elsewhere c. May I not here well demand what relation either in the occasion or sense of the Stature can be made up betwixt Bishops Consistories and this word Alibi Bishops in their Jurisdictions were troubled by the Pope as the King Himself was in the right of His Crown both are complained of both redressed by this Statute How can that which is the Grievance complained of in the preamble of the Statute come to be the thing aggrieving in the latter part of it The truth is provision is here made against the setting up and abetting of all Forreign Authority but Domestical proceedings in Ecclesiastical Courts are not related to This I am confident to affirm by this Authority following The preamble sayes my Lord Coke from Pl. Com. fo 369. Stowells case in every Statute is to be considered for it is the Key to open the meaning of the makers of the Act and mischiefs which they intend to remedy Also from a case 4 Ed. 4. fo 4. 12. The same learned Judge declares thus Every Statute ought to be expounded according to the intent of them that made it where the words thereof are doubtful and uncertain and according to the rehearsal of the Statute and there a general Statute is construed particularly upon consideration had of the cause of making the Act and of the rehearsal of all the parts of the Act c. 4 Instit cap. 74. It is a general Rule allowed by all Laws in construction of Statutes Quamvis lex generaliter loquatur restringenda tamen est ut cessante ratione ipsa cesset cum enim ratio sit Anima vigorque ipsius legis non videtur Legislator id sensisse quod ratione careat etiamsi Verborum generalitas prima facie aliter suadeat Idem Ibidem And for the Book-case related to and the inference made therefrom hear what a learned person has delivered very fully and appositely concerning that not in answer to this Judges opinion for he wrote many years before him but to invalidate an Assertion of the same nature with this and from the same Book-case viz. 5 Ed. 4. fol. 6. praemunire and made by one he then contended with This case does but speak of the Excommunication by a Bishop and not of every dealing whatsoever in a matter belonging to the Kings Regality and what if it had been twice so adjudged both of them in such corrupt times when as the Royal Prerogative of the Kings of this Land to be Supreme Governors in all Jurisdiction Ecclesiastical due to them in Right and by Gods Law was not de facto united to the Crown For the Bishops then did not claim their Jurisdiction Ecclesiastical next and immediately under God from the Crown as now they do but seeing this part of Regal power is now no less truly and fully vested in the Crown than is the Temporal so as the Laws allowed for the Ecclesiastical Government are termed by sundry Parliaments the Queens Ecclesiastical Laws and Laws of this Realm as well as those that were first originally made here And the Bishops are proved to have their Authority and Jurisdiction Ecclesiastical derived down unto them from the Queens Highness under the Great Seal of England Is it then the like reason still to comprise their Jurisdictions and Courts under that word of Alibi as if their Courts and Jurisdictions were not now the Queens nor yet belonging to Her Regality Cosen Apol. p. 3. ch 7. Furthermore the holding plea of a matter belonging to the common Law by an Ecclesiastical Judge so constituted as he ought to be and now is does not tend to the disinherision of the Crown that is not to the impairing of any Regality Power or Preheminence belonging to the same and therefore cannot be the crime of praemunire The Statute 25 Hen. 8. cap. 21. declares concerning whom and how offending the Statute of the 16 Richard secundi was framed namely such as sue to the Court of Rome against the Kings Crown and Dignity Royal one Statute best explains another So then where the Authority that is acted by is the same a mistake in the matter to be proceeded upon or manner of proceeding in does not infringe that authority The reason is because the Kings authority empowring to act is still acknowledged and what is judicially done thereby proceeds by power derived from Him not from any power set up against him I presume it will be readily granted That the upholding and securing the Kings Supremacy in all causes and over all persons is that which principally if not solely is aimed at by this Statute And then it plainly follows that where that Supremacy is maintained no breach of that Statute can be made nor penalty incur'd by any for a mistake only of the matter that any Plea in Subordination to the King as Supream is held upon The worst that is to be said in this case is this That he who being a spiritual Judge does take cognizance of any temporal matter offends in going beyond his Commission and
truly this is bad enough but not so bad neither as to bring under the guilt of praemunire If it were observe the consequence what that would be for it would as certainly and unavoidably expose a temporal Judge to the penalty of a praemunire if he proceed to hear and determine in a matter of Ecclesiastical cognizance because that is beyond his Commission as 〈◊〉 would expose a spiritual Judge to the same penalty that he intermeddles with causes of temporal cognizunce for observe well what Bracton sayes in relation to both Jurisdictions and the proper Judges of each Cum diversi sint hinc inde Jurisdictiones diversi Judices diversae causae debet quilibet ipsorum imprimis aestimare an sua sit Jurisdictio ne falcem videatur ponere in Messem alienam Again Non pertinet ad Judices Soeculares non pertinet cognoscere de iis quae sunt spiritualibus annexa sicut de decimis c. Bract. l. 5. c. 2. apud Hookerum Ecclesiast Pol. lib. 8. p. 218. I may be thought to have made a strange confident and odd inversion upon these two cases but for my share freely I do acknowledge that it is above the reach of my reason to conceive of any difference herein for as both Spiritual and Ecclesiastical Courts are now constituted deriving from the same Regal Supremacy that the Temporal Courts do the consequence is as good on one hand as on the other Indeed I should not have exposed my self to the censure of being thought too bold in the concerns of Temporal Courts and Temporal Judges especially in such an inversion as this so lyable to be frown'd upon But the truth is I found it made to my hand by the person whose name I have often used and whose Authority I much depend upon Is not sayes he the Prerogative Royal in and for causes Ecclesiastical as high and as rightly setled in the Prince and incident to Her Highness Crown and Regality as the same is for Temporal power and authority What cause is there then seeing seu alibi in the Statute signifieth in true construction any place â—hatsoever besides Rome That every holding Plea by an Ecclesiastical Court of a matter wherein it ought not to hold should at this time be reckoned a thing contrary to the Queens Regality more than dealing in any Ecclesiastical cause should be in any temporal Court at Westminster for no Statute of provision or praemunire assigneth these for causes which have indeed grown since by collections whil'st the Popes usurpation was continued in the Land Against which oftentimes the Remedy by prohibition could not serve the turn Cosen Apol. par 3. ch 7. p. 87. But admit the worst let there be a disparity allowed let the failing be on the Ecclesiastical Judges side yet still he is the Kings Ecclesiastical Judge And there is a favour alwayes on a Judges side so far as to presume That he is fit to Act in what he is appointed to and that he does Act according to what he is best informed of by his skill and from his conscience Sacrilegii instar est dubitare an is Dignus sit quem Imperator elegerit That persons merit and integrity is not to be doubted of whom his Princes will has appointed to any publick Office and Employment say the Emperors Grat. Valent. Theod. in Leg. Tertia C. de crimine Sacrilegii Now it is not to be rationally supposed that any one exercising the Office of a Judge will designedly and purposely hold Plea of such a cause which he either knows to be or is propounded to him as belonging to Temporal cognizance But it may so happen that by nearness and coherence of one cause with another that which indeed is a Temporal may be supposed to be an Ecclesiastical cause and if an Ecclesiastical Judge minding to do his duty as the nature of his office doth require do yet by resemblance and near coherence of one cause with another proceed in that which is Temporal shall this presently cast him under a Praemunire That is shall the exceeding some bounds and limits that the Prince under whom he exercises Jurisdiction has prescribed to him bring him under such punishments as the very enemies and underminers of his State are to endure This certainly were very harsh and rigorous I know nothing more to be declined than such an Office where the exercise of it puts a man into that ticklish and tottering condition That he is ready every day without that exact circumspection as is morally impossible for the carefullest man alive alwayes to have to fall into the greatest penalties and dangers It has been said That a corrivality betwixt the Ecclesiastical and common Lawyer has still made the one seek his own elevation by the depression of the other But here the common Lawyer has got an insuperable advantage over the other for let him but hold to this Opinion and by his Authority make it good That the bare holding Plea of a Temporal cause in an Ecclesiastical Court makes liable to the penalties of Prâ—â—munire and the contest is at end There will then be few that will care to study the Ecclesiastical Laws fewer that will dare to execute any Ecclesiastical Jurisdiction A grave and sober person delivers his mind touching this matter with a great deal of ingenuous freedom and truth Hoc Austerum supplicium speaking of Braemunire aliqui Jurisperiti nostri Lucri Ambitionis aestu accensi verborum quae in uno Statuto observant generalitatem ad quemvis levem Judicum lapsum praesertim Ecclesiasticorum nimis violenter extendunt sed hic corum candorem desideramus aliquorum etiam inscitiam lugemus Dr. Cowell Instit de Publicis Judicis Sect. 43. King James a wise and discerning Prince easily discovered the Grievances that this profession laboured under and was pleased earnestly to concern himself in redressing of them This great King speaking of the usefulness of the Civil and Canon Law among His own Subjects in matters of Pyracy Wills Marriages and things of like nature proceeds thus And this Law has been so much encroached upon sithence my coming to the Crown and so had in contempt that young men are discouraged from studying it and the rest weary of their lives that do profess it and would be glad to seek any other craft * K. James's Speech in the Star Chamber to the Judges about the 14th year of His Reign And some pages after in the same speech when He comes to give His particular charge to the Judges he has these words What greater misery can there be to the Law than contempt of the Law and what readier way to contempt then when questions come what shall be determined in this Court and what in that whereupon two Evils do arise the one that men come not now to Courts of Justice to hear matters of right pleaded and Decrees given accordingly But only out of a curiosity to hear questions of the
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 fâ—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 â—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 quemâ—â— See this Charter more amply and fully declared the same being granted and directed to Rhemigius the first Bâ—shop of Lincoln ib. Coke's Instit p. 4. cap. 54. lib. 2. cap. 6. sect 135. Char. 2. Rich. 2. m. 1. By this it appears how early the exercise of Ecclesiastical Jurisdiction by Bishops was on foot in the Kingdom of England and that as it derived it self from the Crown for besides this distinct constituting of an Ecclesiastical Court from the Court of the Tourn even before the separation before spoken of was made yet the Bishops had then the judicial cognizance of Ecclesiastical causes and matters peculiarly reserved to them so it is plainly colligible from the Laws of King Edgar among which this was one Celeberimus autem ex omni Satrapia conventus his quotannis Agitor cui quidem illius Dioceseos Episcopus Aldermannus intersunto quorum alter jura divina alter jura humana populum edoceto Lord Coke on the Statute of Circumspecte Agatis v. Curia Christianitatis I might yet trace Antiquity higher in this point but my reading is too slender and my opportunities too mean that I should think my self able to give a punctual and exact Account thereof Take notice only in brief what the Pen of a learned Writer has set down The British Saxon and Danish Kings did usually with their Clergy or great Council make Ecclesiastical Laws and regulate the external Discipline of the Church within their Dominions Among the Laws of King Edward the Confessor these were two of them one that makes it the office of a King to govern the Church as the Vicar of God another supposes a paramount power in the King over the Ecclesiastical Courts because they were to take cognizance of wrong done in Ecclesiastical Courts Archbishop Bramhall's Vindication of the Church of England c. p. 67. King Edward the Confessor was indeed after the time of King Edgar before mentioned but taking both together and what was done by both thence is shewed that the practice of former Kings was followed by them and that there was an Ecclesiastical Jurisdiction then and before exercised by Bishops which exercise thereof derived from and was regulated by these and other preceding Kings of England That which has been said makes very fair for our purpose and points out to us to take notice of these several observable things 1. That the Exercise of Jurisdiction Ecclesiastical by Bishops in the right constitution thereof in the Kingdom of England had no deperdance on Rome 2. That much of the intermediate practice in this kind degenerated from its first and right institution and until the time of Henry the eighth was a meer usurpation and encreachment on the English Crown 3. That whereas 't is said The Bishops were to judge secundum Canones Leges Episcopales by Canons I understand the Canons of General and Provincial Councils abroad especially the first four General Councils according as was Enacted by the Emperor Justinian Authent collat 9. Novell 131. cap. de Regulis cap. Sancimus igitur And by Leges Episcopales I understand their Home-laws I mean the Ecclesiastical Laws made by the British Saxon and Danish Kings with the Council of their Bishops variety of which may be found by him that will consult Sir Henry Spelman's Councils The body of the Canon Law was not then in being my meaning is it was not so as such The several particulars that the Decrees consist and were made up of were indeed then and long before in being but they were not compiled together till near fourscore years after thisâ—s and that was done by Gratian the Monk in the year as some say for there is much difference in the computation of this time 11 49. Ridley's view c. p. 74. And by Eugenius the third allowed to be read in the Schools * Of Greg. 9. set forth Anno 1230. The Decret in sexto Anno 1297. The Clementines of Clent 5 set forth Anno 1317. And not long after were extant the Extravagan's of John the 22d and other Popes and to be alledged for Law And for the Decretals c. Clementines and Extravagants they came in successively along while after Here by the way is seen the vanity and wildness of some mens fancies that by all means will have Bishops Courts to be of Popâ—sh extraction and that both in their Erection and Constitution they receive influence and authority from the Romish Consittory Than which nothing is more untrue in its self and unhist or ical as to the right deducing the primitive Institution hereof not to speak of the Eastern Churches even in the Kingdom of England it self 4. This is also hence observable That the present course commanded and observed by the Bishops in the Exercise of this Ecclesiastical Jurisdiction suits nearly with
others within His own Kingdoms and it keeps Him from a subordination either to the Presbytery or the Papacy and it is such a Supremacy as is only Political and Architectonical as it is phrased that is a power paramount over all His Subjects to see that each sort of such as are under His Government as well Ecclesiasticks as others do their duties in their several and respective stations and that all things be acted by proper and fit Agents for preserving both Church and State in tranquility and safety Thus it appears that nothing either belonging to Ecclesiastical Order or Jurisdiction is exercised by our Kings in their own persons according as is fully declared in the following parts of the said Article Neither does this give any countenance to Erastianism as some have improperly enough inferred from thence herein as has been described is seen the Kings Supremacy By it He is the Keeper of both Tables He governs and regulates Affairs so both in Church and State as may best conduce to the preservation of true Piety to God and right Justice to Men. From this power paramount and Supremacy does descend the Bishops power of exercising Jurisdiction that is exercising the same actually I say actually for as our Divines do distinguish Archbishop Bramhall's answer to R.C. p. 160 161. Bishop Sanderson de conscient obligat praelect 7. sect 29 30. Bishop Bilson of Subjection par 3. p. 293. in octavo Mr. Hooker Eccles Pol. B. 8. p. 213 c. There is an habitual and there is an actual Jurisdiction habitual Jurisdiction flows from Episcopal Order actual Jurisdiction is a Right and liberty granted opportunity and means afforded of exercising and reducing that habit into act and that in foro externo contentioso after a certain and peculiar manner appointed therein Thus the King has His Ecclesiastical Laws and His Ecclesiastical Courts and His Ecclesiastical Judges * See Sir Joh. Davies Reports Pramunire versus finem there are causes of such and such a Nature appointed by the King to be judged of by them in those Courts according to those Laws * Many things the Popes formerly have taken upon them to give directions of and Enact Canons concerning Episcopal Jurisdiction under this salvo in ordine ad spiritualia which things are matters meerly of civil intercourse and commerce betwixt man and man such are those titles in the Canon Law de emptione venditione de rerum permutatione de transactionibus de depesito c. Testamentary and Matrimonial and Decimal matters are amongst these likewise but although these may better seem to have the aspect of matters spiritual yet that spiritual men have any Jurisdiction therein must not be imputed to the nature of the things themselves nor to any superiority that they have over other men by reason of them but this must be imputed to the Roval bounty and munificence of pious Kings who for the Honor of the Church have so ordered those Causes to be of Ecclesiastical cognizance and that their Subjects concerned therein should be obedient to Ecclesiastical Judges therein Hereupon a Learned Bishop declares That the Popes Decrees Judgments and Executions in these Cases if claimed from Christ as things spiritual and not granted by Caesar are but open invasions of Princes Rights calling those things Spiritual which indeed be Civil and Temporal Bishop Bilson's Christian Subjection page 2. Sir Robert Wiseman The Law of Laws All persons within their respective Diocesses that is certain circuits and precincts of Jurisdiction by the King set out to each Bishop and those in their bounds and limits either to be contracted or extended as He pleases are commanded to be subject to them if they refuse may buâ— constrained to it In matters of Appeal the last complaint is ever to be made to Him He is the final and ultimate Judge who by fit Delegates appointed thereunto does redress grievances answer complaints and finally and absolutely determine what is brought before Him The Learned Archbishop and Primate of all Ireland a little before mentioned has given a full and satisfactory Account of this matter his words are these worthy our best observation Neither do we draw or derive any spiritual Jurisdiction from the Crown but either liberty and power to exercise actually and lawfully upon the Subjects of the Crown that habitual Jurisdiction which we received at our Ordination or the enlargement of our Jurisdiction objectively by the Princes referring more causes to the cognizance of the Church than formerly it had or lastly the increase of it subjectively by their giving to Ecclesiastical Judges an external coercive power which before they had not To go yet one step higher in cases that are indeed spiritual or meerly Ecclesiastical such as concorn the Doctrine of Faith or Administration of the Sacraments or the ordering or degrading of Ecclesiastical persons Sovereign Princes have and have only an Architectonical power to see that Clergy men do their Duties in their proper places but this power is alwayes most properly exercised by the advice and ministry of Ecclesiastical persons and sometimes necessary as in the degradation of one in Holy Orders by Ecclesiastical Delegates Vindication of the Church of England from Schism c. The Exercise of Ecclesiastical Jurisdiction by Bishops thus being stated and setled in the likeness that it carries with the other instances before set down neither invades not impairs but much advances and amplifies the Kings Prerogative It comes to pass indeed by this means that the Kings Supremacy is preserved firm and safe in the Ecclesiastical Polity I know a great Objection is made against all this from hence because that in Ecclesiastical proceedings Citations Decrees and other instruments issue forth in the Bishops but not in the Kings Name whence would be infer'd That such attempts and judiciary proceedings made not in the Kings Name are invasive on the Royal Prerogative In order to the Answering of this Objection let it be observed That there are two great Offices in the Kingdom of England the one that of the Lord High Admiral the other that of the Lord Warden of the Onque Ports These have great inflience in foreign parts upon the Sea and within the Lands I before gave you some intimation of their distinct Jurisdiction and manner of jurisdical proceedings different from the Courts of the Common Law Both the jurisdictions of these two great Officers are ample and authoritative yet both the Lord Admiral and the Lord Warden of the Cinque Ports do send forth Writs in their own Names and they do it sayes Dr. Cowell in verbo Court as the Bishops hold their Courts by the Kings Authority virtute Magistratus sui In the High Court of the Earl Maishal the same practice is observed In the Universities Processes and Writs issue forth in the Chancellor Vice-chancellor or their Commissaries Name Will any now presume to challenge any of these jurisdictions for invading the Kings Prerogative Will
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 Oâ—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
which I mentioned before when some busie Sticklers were active and forward in fixing a Praemunire upon the Officers of the Chancery No Praemunire sayes He can be granted but at the Kings Suit and how can the King grant a Praemunire against Himself In the Court of Admiralty many more Prohibitions are brought than in the Ecclesiastical Courts There is a greater vicinity and likeness betwixt the matters tryable in that Court and those tryable at common Law and consequently greater occasion and probability of mistaking Now certainly such frequency of Prohibitions with the consequences of them would be very dilatory and tedious if the more compendious way of Praemunire were effectual and why not Praemunire lie here as well as in the Court Christian This is another Court or a Court under the large meaning of Alibi proceedings are divers therein from those of the common Law and I do not remember to have read any Praemunire brought for suing in the Admiralty excepting in two cases the one 38 Hen. 6. the other in 9 Hen. 7. Nevertheless saith Dr. Zouch although it be said that two Praemunires were brought upon such occasions yet it doth not appear that any judgment was given upon them See more to this purpose in his Jurisdiction of the Admiralty asserted But never to mince the matter Is it not here that the Shooe wrings It is the Ecclesiastical Court and that is become the great Eye-sore a thing that will not be looked upon as an offence in another Court is beheld by men through a magnifying Glass in this There are too many that cannot away at any hand with a Bishops Jurisdiction and what they do not like they easily quarrel at hence are all the prejudices that upon very little occasions are taken up and yet though good reasons be given are hardly laid down again The Spiritual Court shall be sure to have all the opprobrious and all the scurrilous imputations fastned to it Men love those sins too dearly that are punishable there and they love to hold too tenaciously those rights from others that are recoverable there Now no Delinquent loves that Judge who coâ—rects him for the sin he loves to câ—ntinue in or will force from him the rights of others which he has no mind to part withall I wish it have not been from these or any other such grâ—unds that the Ecclesiastical Jurisdiction has had so many opposites and that there has been such lying at catch and waiting for advantages against it so as to terrifie with the name of Praemunire whensoever men have a mind to say there is or that there is indeed some real miscarriage therein Thus far I have enlarged in making good the second Proposition I shall collect together under one view what has been delivered thereon It was not the matter of any civil contract but a cause indisputably of Ecclesiastical cognizance that was the ground of these proceedings and therefore no Praemunire imputable on that Accompt and admitting the contract had been the ground of these proceedings yet for the reasons before shewed no Praemunire could have been incurr'd hereby and therefore the Bishop of Waterford's Jurisdiction in the case before laid down was legally founded in respect of the cause proceeded upon PROP. III. The Bishops Jurisdiction was legally managed in this cause against these persons in respect of the manner observed and followed therein It was in favour to the Mayor and Sheriffs that a civil intimation was given to them from the Bishop desiring their meeting with him This civil intimation was I will not say despised but not answered with a correspondent civility in them for they did not give the meeting to the Bishop which he desired they would And yet the end of this desired meeting was in order to a fair accompting for Moneys received by them for the Churches use and for making good the reparation of the Body of the Cathedral Church They not giving I say the Bishop this desired meeting some competent time afterwards I think a weeks space intervening Process was caused to issue forth to call them to appear before the Bishop in his Consistory on a certain day after following I cannot go forward to the sequele of this proceeding thus begun without making some little animadversion on these persons I shall forbear giving it any worse term disingenuous carriage in their Petition of Complaint Exhibited to the Lord Deputy and Council In the first Section of which they say That they the Petitioners about Ten of the Clock in the Forenoon on the twentieth of July last received a Verbal Summons from the Apparator of the Diocess of Waterford to Appear at the Consistory Court of the said Diocess before the Lord Bishop of Waterford at Two of the clock the same day The disingenuity that I observe herein is most notorious for first they speak of a Verbal Summons from an Apparator than which nothing can be more ridiculous shall I say or more false 'T is both contrary to practice for any Verbal Summons to be given by an Apparator to any person and it is of no force nor validity if any such were given and it is contrary to Truth that any such was given The Bishop of Waterford better understands both what is the ordinary practice and what will hold good and is justifiable in practice than to order his Apparator to call any of his Diocess before him without a formal Process by Verbal Summons only Next it is said That this Verbal Summons was given at Ten of the clock in the Forenoon to appear at Two of the clock in the Afternoon of the same day Here is disingenuity again There being no Accord betwixt what is thus alledged and the Acts of Court that have been expedited in this proceeding I have made it my endeavour carefully to consult these and find that an Original Citation issued out of the Registry against these persons to appear on Wednesday the 22d of July betwixt the hours of Eight and Ten in the Forenoon of the same day And I find that this Citation was executed on the persons of these men by one Michael Curren the usual Mandatary of the Court according as he declared upon Oath on the 21 day of the Month of July which was Tuesday This is the first Act of proceedings in this cause and if we will credit that as it is attested by the Register a Sworn Officer and Notary Publick then the first Section of the Petition as it relates to these proceedings contains nothing of Truth in it And as little there is in the first part of the second Section for whereas the Petitioners say That on the Two and twentieth of the said Month they were Summoned to Appear at Ten of the clock at the said Court the same day The falsity of this appears plainly by what the aforesaid Mandatary upon Oath declared namely That he had Summoned them on the Tuesday which Tuesday was the One and twentieth not the
priviledge and immunity granted by him to such persons And yet that jurisdiction so restrained be no more impeached thereby than the ordinary setled course of the common Law by the Exemption of one or more particular persons from being proceeded against therein Let us seek to understand this by a very plain and familiar example every day obversant before us His Majesty has a standing Army in Ireland in Pay and under His Command All the Officers and private Souldiers therein for some good reasons best known to himself in His great wisdom are exempted from any Civil or criminal Impleadments before the Ecclesiastical or Temporal Tribunals without leave first had and obtained from His Royal self or His Vice gerent here Now will it not be a weak inconsequent way of arguing to conclude from hence that the Judges in the Peinpora Courts have not an universal jurisdiction subjectively in respect of those over whom they are appointed because a few aâ—e by special priviledge exempted from it It will be so too certainly to conclude the like of the Bishops the Kings Ecclesiastical Judges in the Ecclesiastical jurisdiction because sâ—â—re certain person or persons may by peculiar dispensation be taken out of the same let the utmâ—st be urged that can be fetch 't out of this present instance from William the Conqueror yet we shall find enough to stil and quiet that and in the same kind too remember we but the 12th chapter of the statute caâ—ed Articuli Cleri aâ— tâ—e before mentioned By that it will be apparent That King William even in this particular did not so narrowly bound Episcopal jurisdiction as King Edward the second did let it loose extend and enlarge it The one exempted his servants and Tenants from the Ecclesiastical jurisdiction The other almost three hundred years after and by a statute Law gave both up and fully submitted them to it Withâ—ut more adoe The question is not whether the King as Supream Governour over all persons in all Ecclesiastical things and causes may exempt any of his Retainers or any subordinate Officers in places of Civil power under Him from being impleaded or proceedâ—d against in Ecclesiastical Courts But the question is whether he has Actually done it or no or if done it whether to persons so qualified as our case proceeds upon The former I do not I must not I dare not deny For the Regal power and Supremacy reaches as far in granting priviledges and immunities to any who are thought worthy of the same in respect of Ecclesiastical matters and tryals as it does in respect of civil matters and tryals What he may do in the one he may do in the other Thus I read That the King by His Prerogative may give protection to such persons as are His debtors so as not to be sued by their Creditors till Himself be satisfied Fitz. Nat. br fol. 28. B. Instances more might be given of this kind So he may likewise exempt from the Ecclesiastical jurisdiction But that His Majestie has Actually done this to persons so qualified as our case proceeds upon and quatenus as they are so qualified is that thing the contrary to which I have hitherto engaged my self to make clear and have yet something remaining to add thereto For the present instance from William the Conqueror It was no restraining of Episcopal jurisdiction but in such a particular matter reserving to himself the power of appointing the exercise of it or if it yet will be looked upon as a restraint put thereon yet it must be withall considered that he did not so much limit and restrain in this case as he was pleased to give greater scope to it in a matter of far greater importance as shall be shewed by and by Mean while I sum up this point thus That the Established course of Ecclesiastical proceedings is not repugnant to the Municipal Laws of this Kingdom that by the gracious indulgence concessions of our Pious Princes a liberty and power is granted by them to the Bishops to exercise actually Ecclesiastical jurisdiction upon the Subjects of the Crown That they may be summoned That refractory and contumacious persons may by coercive power be reduced to good order That compulsories may be issued forth and censures inflicted where just occasion requires and all due requisits have preceded They may hear and determine in causes of instance between party and party and also proceed against any criminals under Ecclesiastical cognizance of what quality and condition soever they be for correction and reformation of manners 3. This Position That all persons within any Diocess regularly and de jure communi are subject to the jurisdiction of the Bishop of that Diocess in all matters and causes of Ecclesiastical cognizance is not any way intrenching upon or infringing His Majesties Prerogative Royal. The Kings Prerogative is called by Sir Henry Spelman Glossar ibid. Lex Regie dignitatis by the Civilians Jus Imperii by the later Feudists jus Regaliorum And the import of all these is comprised in this description given thereof The Kings Prerogative is that special power preheminence or priviledge that the King hath in any kind over and above other persons and above the ordinary course of the Common Law Cowell ibidem A branch of this is the Kings Legistative power in Ecelesiastical matters and causes with the advice and consent of such as are appointed thereto And by the Statute of King Edward the second in the Seventeenth year of His Reign called Prerogativa Regis it is said That whatsoever Gracious concessions the King is pleased to make unto the Honour of Gods Church and good of the Common wealth and for the remedy of such as be grieved He would not that at any time they should turn in prejudice of Himself or of His Crown but that such Rights as appertain to Him should be saved in all points Rastal's Collection ibidem Now the Actual Exercise of Jurisdiction Ecclesiastical being that which by special Favour of our Kings is granted to the Bishops after a very large and ample manner if any thing therefore in that Grart should tend to the diminution of the Rights of the Crown yet by the Statute before mentioned these is still a salvo to them in all respects whatsoever so that in regard of His Majesties Prerogative Royal in this particular branch of it as well as in all the rest the Position before set down does not nay cannot indeed infringe the same I touched a little before the derivation of Ecclesiastical Jurisdiction as to the executive part of it from the Crown As every Bishop at the time of his Consecration dâ—es by Solemn Oath recognize the Kings Majesty to be the onely Supreme Governor in this Realm in all Spiritual and Ecclesiastical things and causes as Temporal and by receiving from the King a Patent of Restitution of His Temporalities is thereby invested with Actual Jurisdiction that is a power to exercise and execute such Jurisdiction