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
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
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
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
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
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