have been from the first Constitution of the Kingdom certain Courts and Jurisdictions erected within this Realm for deciding and determining of Spiritual and Ecclesiastical Causes Selden's History of Tithes fol. 412. All this is excellently well set forth by the Preamble of the Statute of 24 H. 8. cap. 12. concerning Appeals That as the King hath ever been the Supream Head of the Realm which Word Head is by way of Metaphor and must have relation to some Body therefore the Statute in the Preamble proceeds to tell you what the Body is to which the Head relates viz. The Body Politick of the Realm consists of all sorts and degrees of People within this Realm divided by Names of Spiritualty and Temporalty The Statute proceeds to mention the plenary Power Authority and Jurisdiction the King hath within this Realm in all Causes It shews us how that Power is distributed and by whom to be exercised Not by the King in Person nor at his Will and Pleasure in any arbitrary Way but as that Preamble further iustructs us The Body Spiritual hath Power in all Causes Divine and Spiritual to determin and to administer all such Offices and Duties as to their rooms Spiritual doth appertain the like is declared as to Temporal Causes to be in the other Part of the said Body Politick call'd the Temporalty And both their Authorities and Jurisdictions do concur in the due Administration of Justice the one to help the other The Preamble of this Stat. of 24 H. 8. c. 12. of Appeals further shews how that this Ecclesiastical and Spiritual Jurisdiction had been confirmed and defended by several antient Acts of Parliament against the Usurpations of the Bishop of Rome and that long before the Reformation of Religion Then comes the Enacting Part which does Ordain That all Causes determinable by any Spiritual Jurisdiction whether they concern the King himself as the Case of the King's Divorce or any of the Subjects shall be heard examined discussed clearly finally and definitively adjudged and determined within the Kings Jurisdiction and Authority and not elsewhere in such Courts Spiritual and Temporal of the same as the nature of the Cases shall require Then the same Statute shews us in what Courts and by what Steps and Method Suits and Proceedings concerning Spiritual and Ecclesiastical Matters ought to be handled See Paragraph 5 6 7 8 9 10. It begins with the Arch Deacon's Court which is infimi gradus and proceeds gradually from the Arch-Deacon to the Diocesan from him to the Metropolitan and at last it mentions the Convocation as the Supreamest Note That further Appeals have been given by several Acts of Parliament as by 25 H. 8 c 19. from the Arch-Bishop or Metropolitan to the King in Chancery which is by Commission of Delegates c. And it hath been Resolved That though the Acts of 24 H. 8. cap. 12. and of 25. H. 8 cap. 19. do upon certain Appeals make the Sentence definitive as to any further Appeal yet the King as Supream Head may grant a Commission of Review See the Case of Halliwell against Jervois Sir Francis Moores Reports fol. 462. and in the same Reports fol. 782. in the Case of Bird against Smith and in Sir Edw. Cokes 4th Institutes fol. 341. And as the Kings Ecclesiastical Power and Jurisdiction are by the Fundamental Laws of the Realm distributed into several Courts which are mentioned and confirmed by the said several Acts of Parliament and may not therefore be exercised by any other but by such Courts and in such Method and Manner as by Law and the said Acts of Parliament it is provided So also those Courts cannot proceed Arbitrarily but by the known and setled Ecclesiastical Laws Constitutions and Canons that are in force By the Act of 1. Eliz. cap. 1. Entituled An Act for restoring to the Crown the Antient Jurisdiction over the Estate Ecclesiastical and Spiritual c. the seventeenth Paragraph in Keeble's Book of Statutes It is Enacted That such Jurisdictions c. Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority hath heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all manner of Errors c. Abuses Offences Contempts and Enormities shall for ever by Authority of this Present Parliament be united to the Crown By the 18th Paragraph of that Act the Queen and her Successors have Power by vertue of this Act by Letters Patents under the Great Seal to assign c. as often as they shall think meet and for such time such Person or Persons as the Queen c. shall think meet to exercise all manner of Jurisdictions Ecclesiastical or Spiritual and to Visit Reform Redress Order Correct and Amend all such Errors c. Abuses Offences Contempts and Anormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction can or lawfully may be Reformed Ordered Redressed Corrected Restrained or Amended and such Person or Persons so to be named c. shall have full Power by vertue of this Act and of the said Letters Patents to exercise use and execute all the Premises according to the Tenor and Effect of the said Letters Patents See Sir Edw. Cokes 4. Inst. in his Chapter of Ecclesiastical Courts fol. 324 325. and see the 3d. Observ. fol. 326. observe the Words viz. It was Enacted out of necessity c. and ibid. Necessity did cause this Commission and it was not to be Exercis'd but upon necessity for it was never intended That it should be a continual standing Commission c. That the main Object of that Act was to deprive the Popish Clergy Almere's Case and Taylor and Massie's Case left to the proper Diocesan Upon the last recited Clause in that of 1. Eliz. was grounded the late Court call'd The High Commission Court From which Act it may be observed and collected That it needed an Act of Parliament to give such Authority to the Queen to grant such Letters Patents or Commission and that without an Act of Parliament such Commission could not have been granted For if the Queen by her meer Prerogative and Supream Power in Ecclesiastical Causes could have granted such Commission an Act of Parliament had been unnecessary And the express Words of the Act are That the Queen c. shall have power by vertue of this Act and the Law had as hath been before observ'd distributed the Kings Ecclesiastical Power and Jurisdiction into several Courts So that without a new Law the like Power could not be put into any other hands in Derogation of those ordinary Ecclesiastical Courts Secondly Note This Act makes no new Crimes nor Offences but gives the Commissioners or Patentees Power to Visit Reform Redress c. all such Errors c. Abuses Offences Contempts and Enormities which by any manner of Spiritual or Ecclesiastical Power can
is hath upon several occasions been pleas'd graciously to declare That he holds Parliaments to be the best Method for healing the Distempers of the Kingdom and the only means to preserve the Monarchy in credit at home and abroad and he promises to rule the People by the Law. Hales that solid learned Divine in his Golden Remains cites Baldus for it Digna Vox est Majestate Regnantis Legibus alligatum Principem se prositeri And Learned Hooker that great Champion for the Discipline and for the Rites and Ceremonies of the Church in his Eccles Polity delivers his Opinion quite contrary to these Time-Servers Pag. 27. All publick Government says he of what kind soever seemeth evidently to have arisen from deliberate Advice Consultation and Composition between men That Composition signifies the Laws And pag. 28. he says further That the Power of making Laws to command whole Politick Societies of men belongs properly to the same entire Societies What can be said more in confutation of the Book that goes by the Name of Sir Rob. Filmers The Duke of Wittemberg at the Council held at Wormes when other Princes discours'd of many Priviledges and Conveniencies of their Lordships and Territories openly protested it to be his greatest Felicity That he could in aperto Campo in Sinu Subditorum suorum dormire Non eget Mauri jaculis nec arcu c. I shall further add only the Judgment of one or two of our most Famous and Learned Judges concerning this Matter Fortescu that was first Lord Chief Justice and afterwards Lord Chancellor in the Reign of H. 6. in his excellent Book in commendation of the Laws of England affirms this Doctrine Ad tutelam Legis Subditorum ac eorum Corporum Bonorum erectus Rex est Et ad hanc Potestatem a Populo effluxam ipse habet Sir E. C. in his 12. Rep. 64. delivered his Opinion freely in the Case of Prohibitions before the King and the Lords of the Council where there was a warm Debate between the Judges and Dr. Bancroft Archbishop of Canterbury And what Sir E. C. deliver'd for Law was with the clear consent of all the Justices of England and Barons of the Exchequer And there Sir E. C. says it was greatly marvell'd at that the Arch-Bishop durst inform the King That the King had an absolute Power and Authority by the Word of God to determine what Causes he pleas'd in his own Person And it is admirable to observe with what a true and honest Courage that grave Chief Justice Sir E. C. answer'd the King himself in that Debate When the King was pleas'd to say It was Treason to affirm that the King was under the Law The Chief Justice answer'd him with the Words of an ancient Judge and Author of our Law that is out of Bracton That the King was Sub Deo Lege And Fleta another of our ancient Authors in our Science useth Words to the same effect This Doctrine differs from some of our late Motto's in the Serjeants Rings Tacitus in his Annals gives this excellent Commendation of two of the best of the Roman Emperors Nerva and Trajan Res olim insociabiles miscuerunt Imperium Libertatem And that Author well observes it as the true Case and Condition of a People and a necessary Consequence Amissa Virtute pariter ac Libertate This Discourse of mine may seem to some to be a Digression but a man can never have a juster occasion for it than now and upon this Argument and Suit I make that my Apology which I learn from King James His Majesties Royal Grandfather in his Discourse of the Powder-Treason Which proves it the more seasonable There is a Time saith King James when no man ought to keep silence It hath says he been ever held as a general Rule in all well-govern'd Common-wealths whether Christian or Ethnicks That when either their Religion or their King or their Countrey was in any extream hazard no good Countrey-man ought then to with-hold either his Tongue or his Hand according to his Calling or Faculty from aiding to repel the Injury repress the Violence and avenge the Guilt upon the Authors To support the Power and Priviledge of the House of Commons as being an essential part of the Parliament it is absolutely necessary to make it out against these Innovators that the House of Commons have ever been a part of the Parliament and that they were long before 49 H. 3. Or otherwise they are but precarious in their power and priviledges and enjoy them but of Grace Every Priviledge is by Prescription says the Lord Dier fol. 60. a. med in Trewinnard's Case which I shall have occasion to mention more at large before I have done And in the same Dier fol. 70. in the Case of Withers and Iseham it is held That a man cannot prescribe to an Incident or Appendent nor indeed to any Power or Authority where the Principal Thing hath not had a perpetual continuance Therefore where the beginning of a thing is known there can be nothing belonging to it by Prescription In one of our late Kings Reigns the House of Commons in an Address of theirs made mention of their Priviledges as their ancient and undoubted Right and Inheritance But Offence was taken at it and they were told it had been better if they had said their Priviledges were deriv'd from the Grace and Permission of the King and his Ancestors Now I shall clearly prove that these Powers and Priviledges were indeed their ancient Right and Inheritance Which they cannot be unless that House or the Commons by their Representative have been ever from the beginning of the Governm ent a part and member of the Parliament I shall prove it out of several authentick Authors of the Law Historians and Antiquaries and by a multitude of Records and by divers Acts of Parliament which are all the sorts of Proof that can be in a Question of this Nature The Mirrour of the Justices of which Book Sir E. C. says That most of it was written before the Conquest as appears by the Book it self Tho. Horn a Learned man added much to it in the Reign of E. 1. in this Mirrour of the Justices c. 1. sect 3. It is said that King Alfred Ordain'd for a perpetual Usage That twice in the Year or oftner if need be the Parliament should assemble And to let you see of whom that Parliament did consist he tells us in the same Chapter by whom the Laws were then made It is says he among other things ordain'd that no King should change his Money nor impair it nor inhanse it nor make any Money but of Silver without the assent of the Lords and All the Commons Sir E. C. in his Preface to the 9th Rep. tells us That Tenants in Ancient Demesn because by their Tenure they were bound to Plow and Husband the Kings Demesnes before the Conquest And in the Conquerors
and at the Trial in giving of Evidence to the Jury he did indeed speak those Words but averr'd that they were pertinent to the Matter and were part of his Instruction It was resolv'd upon a Demurrer That the Plea was good the Words being pertinent though they were false And there is a further Reason given by the Court in that Case viz. The Words appear not to be spoken out of Malice And no Actions of this sort nor will any Indictment of this Nature lie unless there be Malice in the Defendant and where there is any justifiable occasion of speaking words that a man in discharge of his Function or Calling is led by the Subject-Matter of Discourse as a Preacher or Pleader or the like to speak words in such Case it shall be presumed they were not spoken out of Malice In the Case of an Attorney Sir E. C. in his 2d Instit. in his Exposition of the Stat. of Articuli super Chartas 28E 1. c. 10. tells us That in the very next year after the making of that Stat. viz. 29 E. I. Will. de Weston brought an Action of Conspiracy in the Kings Bench against William of Hempswell Parson of Newton and John of Malden Parson of Askerby for causing the Plaintiff to be cited before the Arch-Deacon of Linc. for a Trespass whereof he had been acquitted in the King 's Court. John of Malden pleaded That he was Communis Advocatus pro suo dando and so justify'd as an Attorney and it was found the Parson was Communis Advocatus and so not guilty of the Conspiracy In the Case of a Witness For what he says as a Witness or for what is said against him to disable him from being a Witness or to take off his Credit no Action of Slander will lie 35 H. 6. 14. In an Action of Conspiracy one of the Defendants justify'd as being a Witness to the Jury Crok 432. In the King's Bench Weston against Dobneet in an Action for Slander There was a Suit in the Spiritual Court and the Plaintiff that brought the Action of Slander was produced as a Witness in that Cause and the Defendant in that Suit in the Spiritual Court put in Exceptions against him That he had been perjur'd and therefore ought not to be used as a Witness Thereupon Weston the Witness brought this Action for that Slander And after Arguments the whole Court held that the Action of Slander did not lie for this manner of Slander because it was in a course of Justice and not ex Malicia In a Writ of Conspiracy One of the Defendants pleaded that he was one of the Indictors Judgment si Actio And the Plea is allow'd 20 H. 6 5. 33. Nay though it be not in a course of Justice in a Suit of Law yet if a man be in the doing of his Duty and in discharge of his Function and his lawful Calling and in discoursing of a Subject proper for his Function and enforcing of every mans duty of avoiding of any Sin and in pursuit of it tells a Story which he takes up upon trust and does not know it to be false and it prove at last to be utterly untrue and an innocent person is highly slandered by it yet he shall not be subject to an Action of Slander for it The occasion of speaking shall clear him from the Malice without which the Action will not lie In the Book of Martyrs written by Fox there is a Story of one Greenwood who lived in Suffolk that he had perjur'd himself before the Bishop of Norwich in testifying against a Martyr that was burnt in Queen Mary's time and says Fox this Greenwood afterwards by the just judgment of God had his Bowels rotted in him and so he died This Story by Fox in his Book of Martyrs was utterly false of Mr. Greenwood and after the Printing of that Book of Martyrs Mr. Greenwood was living in that very same Parish One Prist a Parson happen'd to be Presented to the Living of that Parish where this Mr. Greenwood then dwelt and 27. Eliz. in one of his first Sermons happen'd to inveigh against the Sin of Perjury to which his Text did lead him and the better to deter the People from the Sin of Perjury he told this Story out of Fox's Book of Martyrs and named the very Man Mr. Greenwood and Mr. Greenwood himself was then in the Church and heard this Story told of himself but the Preacher knew it not but thought the Story to be true Greenwood brings an Action of Slander against Prist the Preacher and upon the Trial of the Cause before the Lord Chief Justice Wray the Case appearing to be thus he directed the Jury to find for the Defendant for that it appear'd it was not done out of Malice And Ch. I. Popham affirm'd it to be good Law it being a Matter deliver'd after his occasion as Matter of Story This Case is cited by Sir E. C. in Sir Henry Mountagu's Case before mentioned Crook f. 90. With this agrees the Case of the Lord Cromwel against Denny a Vicar 4 Rep. 13. b. in an Action de Scand Magn. There is a Case in many Circumstances of it much resembling our Case It was the Case between Smith and Crashaw and others M. 20 in the Kings Bench in Sir Palmer's Rep. 315. An Action upon the Case is there brought against the Defendants for maliciously causing the Plaintiff to be indicted of Treason upon which Indictment the Grand Jury found an Ignoramus To this Action the Defendants pleaded Not Guilty and were found Guilty It was moved in Arrest of Judgment That to accuse one for Treason was not Actionable for the Safety of the King and State For if a Man be subject to an Action for it it will be a means that Treason shall be smothered and Men will not expose themselves to Actions by making such Discoveries J. Houghton held the Action would not lie upon an Ignoramus found for by that the Party is not acquitted but may be Indicted again and Convicted But he holds That if he be Indicted and upon Trial Legitimo modo acquietatus then he shall have an Action upon the Case in Nature of a Conspirary for now he is absolutely acquitted and cleared of the Accusation and never can be Indicted again for that particular Fact. Dodderidge agrees with Houghton and puts this Case If an Action of Conspiracy be brought against a Man For Indicting the Plaintiff of Treason The Defendant may Plead Specially and that is the safest way of Pleading That he heard the Plaintiff speak such and such Treasonable Words and that he thereupon complained to a Justice of Peace who committed the Plaintiff upon it and this says he shall excuse him Ley Chief Justice inclines too against the Action and gives a strong Reason Because says he it is Misprision to Conceal it and yet if we allow of this Action it shall be Dangerous too to discover it so
or lawfully may be Reformed Redressed Corrected c. In Sir Edw. Cokes 12 Rep. fol. 49 It was Resolved Trin. 6. Jae Per totam Curiam in the Court of Common-Pleas there being then Five Judges of that Court Coke being Chief Justice That the High Commissioners by vertue of their Commission and that Act of Parliament ought to proceed according to Ecclesiastical Law. Secondly If their Commission gave them any Power which was not allowed or warranted by that Act of Parliament it was not Legal which proves that such Power cannot be exercis'd by a Commission under the Great Seal merely without an Act of Parliament See Drakes Case in Justice Croke's Reports of the time of King Charles fol. 220. There it is also Resolv'd That the King by his Commissioners cannot alter the Ecclesiastical Law nor the Proceedings of ☞ it And if the Word Lawfully had not been in that Act of 1. Eliz. yet it must have been so intended and the Judges of the Common Law who are proper Judges Expositors and Interpreters of Acts of Parliament would have so understood it as appears by the Resolution of the Judges in the Case in the same 12. Rep. of the Lord Coke fol. 84 85. and little regard therefore was given by the Judges to Commissions under the Great Seal which the Arch Bishop of Canterbury Abbot said had been made in like Cases in the Times of King Hen. VIII and Ed. VI. In the last Case ibidem fol. 85. the Chief Justice Coke says He had seen the Commission made to Cromwell by King Hen. VIII to be Vice-gerent and other Commissions to others by his appointment and he refers to the Commission at large inserted in his Book of Precedents See in the same 12. Rep. of Sir Edw. Coke f. 88. Excellent Rules to be observ'd upon such extraordinary Commissions viz. They ought to be solemnly read for they may possibly contain many things against the Law as the Commission in that Case mentioned did The Commissioners may every one of them require Copies of the Commission The Commissioners ought to Sit in an open Place and at certain Days Note also That such Commissions ought not to be kept secret but they ought to be Enrolled in the Chancery That the Subjects may be under a known Authority See Sir Coke's 4. Instit. fol. 332. the middle of that fol. And upon irregular and illegal Commissions in Ecclesiastical Causes the Remedy is by Prohibition out of the Courts at Westminster In the same 4 Instit. fol. 340. the Author hath this Note Nota Stephen Gardiner Bishop of Winchester was depriv'd at Lambeth by Commission from King Edward the VI. made to Ten Persons proceeding upon it ex Officio mero mixto vel promoto omni appellatione remotâ summarie de plano absque omni forma figura Judicii sola Facti Veritate inspecta The Author passes no Opinion upon it Quaere by what Law this was warranted It must be rare and extraordinary otherwise Sir Edw. Coke would not have so specially mention'd it but a Facto ad Jus non valet Argumentum Note That part of the Act of 1 Eliz. viz. the 18th Paragraph before verbatim transcribed viz. of the Queen Eliz. and her Successors granting such Letters Patents or Commissions in Ecclesiastical Causes is repealed by the Act made 16 Car. 1. cap. 11. See it in Mr. Keeble's Book of Statutes at large See the last Paragr or Clause in that Act of Repeal of 16 Car. 1. It is Enacted That no new Court shall be erected or appointed which shall have The like Power or Jurisdiction as the High Commissioners had or pretended to have but that all such Letters Patents Commissions and Grants and all Powers and Authorities thereby granted and all Acts Sentences and Decrees to be made by vertue or colour of them shall be Void Note The late Act of 13 Car. 2. cap. 12. in Mr. Keeble's Book of Statutes does declare that the Ordinary Power of Arch-Bishops and Bishops was not taken away by that Repealing Act of 17 Car. 1. cap. 11. as this last Act dates it But by this Act of 13 Car. 2. cap. 12. in the second Paragraph The aforesaid Repealing Act of 17 Car. 1. and all the Matters and Clauses therein contained excepting what concerns the High Commission Court or the new Erection of some such like Court by Commission are Repealed See the third Paragraph also of the Act of 13. Car. 2. That the High Commission Court shall not be Revived So that I conceive no such Commission nor Letters Patents can now be granted but the Repealing Act of 16 or 17 Car. 1. stands in force against it By what Law or Rules Cromwell in the Time of King Henry VIII and by what Instructions he acted does not appear the Commissions to make him Vicar General which was surely in Imitation of what had been used by the Pope in the time of his Usurpation or that of Vice-gerent in Ecclesiastical Matters which seems to be new and prime Impressionis are not now to be found of which Dr. Burnet in the History of the Reformation of the Church of England makes some probable conjectures fol. 181. and wherein consisted the difference between those two Authorities and Titles and the Commissions for the exercise of them is not easy to find out But the thing then principally design'd was to suppress the religious Houses belonging to the regular Clergy which were great Supports to the Popish Hierarchy not at all to impeach the Lawful Power and Jurisdiction of Episcopacy for we find at the same time as Cromwell's Commissions were in force and had been then but newly passed That Cranmer Arch-Bishop of Canterbury made his Metropolitical Visitation under which as I conceive most properly falls the Conusance of any contempt or abuse committed by any of his Suffragan Bishops if not in a Provincial Synod Archiepiscopi Jurisdictioni subsunt immediate suffraganti See Lind. Provin The exclusion of the Pope in the Time of King Hen. VIII made no diminution of the Power or Jurisdiction of the Clergy as to determining of Ecclesiastical Causes or making Canons Constitutions and other Synodical Acts as is rightly observ'd by Dr. Heylin in his Introduction to the History of Laud late Arch-Bishop of Canterbury upon this ground it is that to this day they exercise all manner of Ecclesiastical Jurisdiction in their own Names and under the distinct Seals of their Offices the Statutes that made some Alteration in the matter being all repealed See Dr. Heylin's Introduct aforesaid ibid. fol. 341. The Legislative Power in Matters Ecclesiastical continues in the Convocation for making Canons and Constitutions confirmed by the King and Parliament Discipline and the Admonition still resides in the Bishops and those under them In Case of any Irregularity in the Metropolitan Resort must doubtless be to the Head of the Church upon Earth the King as it was in the Case of Arch-Bishop Abbot who shooting at
the jurisdiction of the Court. Et dicit quod si quis eorum speaking of the Lords of Parliament deliquerit erga Dominum Regem in Parliamento aliquo in parliamento debet corrigi emendari non alibi in minori curia quam in Parliamento Vnde non intendit quod Dominus Rex velit in curia hic de bujusmodi transgressione contemptu factis in Parliamento responderi Note the Plea as to the offence is very general not only restrain'd to the offence of absenting from the Parliament but to any trespass or offence in Parliament Si quis deliquerit And it would be a little improper to call absence from Parliament offence committed in Parliament for it looks like the quite contrary But in a just sence any offence committed by a Member relating to the Parliament though done out of the House is termed an Offence in Parliament So Printing any thing by Order of Parliament though it be done and executed in another place yet it may be said to be done by the Parliament and in Parliament if it be by their Order and in time of Parliament We may note further that this is a prosecution only against one particular Person for a particular Offence and Contempt charg'd upon him But in our Case the prosecution is against the very Speaker of the Parliament and is in effect a prosecution against the Parliament for it is against him for what he did by command and order of Parliament and sitting the Parliament And though the Attorney-General reply'd to the Bishops Plea that the King might sue in what Court he would yet the Bishop rejoins upon him and maintains his former Plea and there it rests so that as Sir E. C. observes that the Bishops Plea did stand and was never over-rul'd agreeable to the resolutions of former times So this I. may claim as an authority on our side And though Mr. Plowden the Lawyer to the like Information put in against him and others 1 and 2 Philip and Mary pleaded that he remain'd continually from the beginning to the end of the Parliament and travers'd the absence whereby he passes by the advantage of the Plea to the jurisdiction yet this is no Authority against us for he might think fit Renunciare juri pro se introducto having so true an occasions of clearing himself from that scandalous imputation of being absent from doing his duty in Parliament which certainly is a very high breach of Trust and he might be impatient of lying under it and therefore thought it best to traverse it to clear his Reputation in that point yet I must confess I should never have advis'd it nor was there any further prosecution against him I will mention but one most excellent Record more and it is a Record out of the Parliament Rolls 27 E. 3. Num. 9. Sir Cotton's Abridgem and with that I will Conclude I take it to be very pertinent and I am sure it is very seasonable Among the Petitions of the Commons One is They pray the King that he will require the Archbishop and all other of the Clergy to Pray for the Peace and good Government of the Land. And for the King 's good will towards the Commons The King's Answer is The same prayseth the King. And I wish with all my heart it were the Common-Prayer I have but one Prayer more to make and that is That this Court will allow the Defendant's Plea. A DISCOURSE Concerning the Ecclesiastical Jurisdiction IN THE Realm of England Occasioned by the Late COMMISSION IN Ecclesiastical Causes By Sir Robert Atkyns Kt. of the Honourable Order of the Bath and late One of the Judges of the Court of Common-Pleas LONDON Printed for Tim. Goodwin at the Maiden-Head against St. Dunstans Church in Fleet-street MDCLXXXIX A DISCOURSE Concerning the Ecclesiastical Jurisdiction IN THE Realm of England Occasioned by the Late COMMISSION IN Ecclesiastical Causes THE Preamble acknowledges That the King justly and rightfully is and ought to be Supream Head of the Church of England and is so recognised by the Clergy in their Convocations And it is Enacted That the King and his Successors shall be taken c. the only Supream Head in Earth of the Church of England And shall have and enjoy annexed to the Imperial Crown all Jurisdiction c. Authorities c. to the said Dignity of Supream Head of the same Church belonging And that the King and his Heirs and Successors Kings of this Realm shall have full Power and Authority from time to time to visit repress redress reform order correct restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be reformed repressed ordered redressed c. Any Usage Custom foreign Laws foreign Authority Prescription or any thing to the contrary notwithstanding Note This Act doth not make the King to be the Supream Head of the Church of England but acknowledges that he ever hath been so as it is recited by the Statute made in the same Parliament of 26 H. 8. c. 3. the Act for the First-Fruits See the Preamble towards the latter Part being the first Paragraph See also the Oath prescribed by the Statute of 35 H. 8. cap. 1. for the Succession Paragraph the 11th in Mr. Keeble's Edition of the Statutes at large very full to this purpose to shew that the Act of 26 H. 8. cap. 1. gave the King no new Title but only acknowledged that he ever had a Right to it and that the Bishop of Rome had but usurped it And as the Act of 26 H. 8. cap. 1. gave the King no new Title so it gave him no new nor further Authority in Spiritual and Ecclesiastical things nor over Spiritual and Ecclesiastical Persons than what he had before Therefore it is to be enquir'd what jurisdiction or Authority the King had before the making of that Act and how the Ecclesiastical Jurisdiction was of right and duly before exercis'd and administred viz. in what Courts by what Rules Laws or Canons and by what Persons It is clear in Law that the King himself merely in his own Royal Person could never take to himself the Hearing of any Cause Ecclesiastical or Temporal and adjudg and determine the Cause himself For by the Law and Constitution of the Realm the King hath committed all his Power Judicial to divers Courts some in one Court some in another as is held in Sir Ed. Cokes 2d Institutes fol. 186. at the lower end of that folio and in the middle of fol. 187. All Matters of Judicature and Proceedings in Law are distributed to the Courts of Justice and the King doth judg by his Justices See the Reports that pass by the Name of Sir Ed. Cokes 12th Reports fol. 63. the Case of Prohibitions Which is true as to Ecclesiastical Causes as well as Temporal for every Man knows that there