power of the keies And though my Lord this question be no question if the high Commissioners by the first of the first of Elizabeth never had any power to fine or imprison for any crime within that statute and the cognisance of the high Commission as is declared by a statute made the first Session of this Parliament which statute makes wholely for me and against the high Commissioners and puts the former question out of question yet my Lord in favour of the high Commissioners and to my owne disadvantage I doe forbeare to take the benefit and advantage of the former statute and Declaration and granting to the high Commissioners a power to fine and imprison for crimes within the first of the first of Elizabeth according to the Commissioners practise before and at the time of my censure according to the wordes of their commission and the approbation both of the Exchequer who did imprison me for the 500. pounds fine estreated by the high Commissioners into the Exchequer and of this Court also which would not upon an habeas corpus deliver me from that imprisonement I doe in this sence and respect onely propose the former question whether for the breach of a Canon or Canonicall obedience unto the canons according to the lawes and customes of this land men are to be fetcht from the judgement and jurisdiction of the ordinary up to the high commission court and there to be fined and imprisoned or else whether they are to be left to the judgement and jurisdiction of the ordinary and he to proceed against them according to the power of the keys And though this question my Lord bee within the compasse and cognisance of the common Law and therefore ought to bee spoken unto by the worthy professors of this Honorab profession yet seeing it is in defence of the Episcopall or ordinary jurisdiction which the Bishops themselves have wrong'd and which at this time in this my case no common Lawyer will undertake to defend and that for this very reason as I conceive because they have mens persons in admiration for advantage sake Epist 16. as St. Iude speakes and do prefer the person of some Bishop before and above the Episcopall or Ordinary jurisdicton it self Therfore ut nequid detrementi capiat respublica Episcopalis vel ordinaria and to the intent that all men may know that I both truely love and reverence the Episcopall or Ordinary jurisdiction not onely above and beyond you the common Lawyers who will not according to your profession defend it but also above and beyond those Bishops who contrary to their callings have wrong'd it and also that I onely oppose the usurpation and presumption of some Bishops and not the Episcopall or ordinary jurisdiction it selfe I will endeavour to shew and that by seven reasons Thesis prima septem rationibus confirmaâ—a that the breaches of canons or of canonicall obedience unto the canons according to the Lawes custome of this land belong to the juridiction of the ordinary and not to the cognisance of the High commission court Ratio 1 My first reason my Lord is taken from the sence and meaning of this word Ordinary as it is expressed by Doctor Lyndewode in the first booke of his Prov. tit de constitut cap. Exterior habitus Verbo Ordinarij in these very words Nota quod haec dictio (c) Ordinarius dicitur quia habet ordinariam iurisdictionem in iure proprio non per deputationem Cokes institutes f. 96 Ordinarius principaliter habet locum de Episcopo aliis superioribus qui sunt universales in suis iurisdictionibus de iure communi solus Episcopus est ordinarius super omnes subditos suos sed sunt sub eo alij ordinarii hi vid. quibus competit iurisdictio ordinaria de iure privilegio vel consuetudine By which words my Lord it appeares though there be some other subordinate inferiour ordinaries under the Bishop in some parts of his Diocesse who have and hold under him in those parts an ordinary jurisdiction either iure privilegio vel consuetudine yet de iure communi over the whole Diocesse the Bishop only is Ordinary and onely hath a generall and an universall jurisdiction And this generall jurisdiction of the ordinary or Bishop extends not to all causes both Temporall and Ecclesiasticall but only to all causes meerely Spirituall so called not in respect of their owne nature but because they are assign'd to the Spirituall or Ecclesiasticall jurisdiction And those are of two sorts either civill Ecclesiasticall causes as Tithes Oblations Legacies Pentions and portions or else criminall causes and both these belong to the generall jurisdiction of the Ordinary for the former it appeares principally in two cap. of Lyndewodes Provinc and that in the very text first in his second booke tit de foro competenti cap. circumspecte agatis which though it be King Edw. 1. direction to his Judges or Justices or Commissioners concerning the Bishop of Norwich and other of the Clergy and bee extant among the Statutes 13. Edw. 1. yet seeing it treates of the spirituall jurisdiction of Ordinaries it is set downe by Lyndewode among the provinciall constitutions of our Archbishops of Cant. Secondly in his 5. booke tit de paenis cap. aeternae Sanctio voluntatis And for the latter namely criminall causes it appeares both in the two chapters before alleaged and more especially in the first booke of Lyndewodes Provinc tit de constitutionib c. exterior habitus ver Inquirant upon which word Lyndewode shewes that there is triplex inquisitio generalissima generalis specialis vel singularis and each of these is twofold either praeparatoria or Solemnis praeparatoria est fine exactione juramenti solemnis est cum juramento and the one of these makes way and worke for the other The preparatory inquisition findes out and starts the game and the solemne inquisition persues and takes it And the most generall inquisition both preparatory and solemne belongs to a generall councell or to a provinciall Synode but the inquisition generall and speciall both preparatory and solemne belongs to the jurisdiction of the Ordinary And this generall inquisition hath three degrees for it is generall either in respect both of persons and of crimes or it is generall onely in respect of persons and speciall or singular in respect of crimes or lastly it is generall in respect of crimes and speciall or singular in respect of persons as the Ordinary shall thinke fit and the matter require Now my Lord the High Commission hath nothing to doe with the first of these causes namely civill Ecclesiasticall causes no nor a generall jurisdiction in the latter namely criminall causes and both these are evident by divers judgements at the common Law Hilary 8. Iacobi In the common Pleas in the case of Huntley and Clifford it was resolved that the High Commission had not power to meddle with civill Ecclesiasticall
Archdeacon to warne me to preach that sermon And then my Lord how have I transgrest either the Archdeacons mandate or the order of the High-commission Court or what authority had that apparitor or publik officer to warne mee to preach that Uisitation Sermon just none at all as appeares by the 138. canon made 1. Iacobit where it is said all apparitors shall by themselves faithfully execute their offices neither shall they by any colour or pretence whatsoever cause or suffer their mandates to bee executed by any messengers or substitutes In which words my Lord it appeares that an apparitor doth then faithfully execute his office when he doth faithfully execute his mandates that is neither goe beyond nor come short of his mandates so that the apparitours have no power to warne or summon any man with out such a mandate No nor the Bishop Chancellour Archdeacon Officiall nor any other Ecclesiasticall Judge as appears by this 120 Canon No Bishop Chancellour Archdeacon Officiall or other Ecclesiasticall Judge shall suffer any generall Processes of Quorum nomina to be sent out of his Court except the names of all such as thereby are to be cited shall be first expressely entred by the hand of the Regester or his deputy under the said Processes and the said Processes and names be first subscribed by the Judge or his deputy and his seale thereto affixed So that whensoever any Bishop or any other Ecclesiasticall Judge will cite any man to appear before him he must send out by his Apparitor a mandate or processe and therein the name of the party to be cited must be first entred by the Regester or his deputy and then subscribed by the Judge or his deputy and his seale thereto affixed And if any Ecclesiasticall Judge whatsoever shall by his Apparitor without such a processe or mandate Summon any man to appeare before him the party is not bound to appeare and though he do not appear yet he is not culpable of any contumacy as appears by this 122 Canon When any Minister is complained of in any Ecclesiasticall Court belonging to any Bishop of this Province for any crime the Chancellour Commissary Officiall or any other having Ecclesiasticall jurisdiction to whom it shall appertaine shall expedite the cause by processes and other proceedings against him and upon contumacy for not appearing shall suspend him First then after complaint made against any one the Judge must cite the party by processe to appeare before him if the party obey not the processe he is then contumacious but without processe there is no contumacy If your Lordship shall aske me what authority the Apparitour pretended when he warned me to preach the said Visitation Sermon I answer that he pretended a processe or mandate from the Archdeacon and it is true my Lord that he had a processe and mandate from the Archdeacon and yet no processe or mandate from him He had a processe or mandate to warne me to appeare at the Archdeacons Visitation and there to pay my procurations due to him for Visiting and that processe or mandate was a publicke instrument out of the Archdeacons Court made in the Archdeacons name under the seale of his Office and the hand of a publicke Notary But he had no such mandate or processe to warne me to preach the Archdeacons Visitation Sermon but only an * In this particular Doctor Kingsley and the Commissioners are more Popish and presumptuous than the Pope himselfe For the Pope sends out only his Bulls Diplomaes or Mandates formally and regularly made sign'd and seal'd with out any postscript according to this old proverb Mittit plumbum exigit aurum But these together with their Mandates or Processes send out their said Postscripts and thereby they will abrogate the Word of God the Articles Statutes Canons his Maiesties Letters Patents royall Prerogative and oath of Supremacie Iust as the Pope presumeth to do with his Bulls And for the violation of these Postscripts they will Fine Imprison Deprive Degrade and Excommunicate which is a Popery pride and presumption more than papall apocryphall uncanonicall anticanonicall antidiplomaticall antiprerogative antisuprematicall postscript in these very words You are to warn George Huntley Parson of Stouremouth to preach at the time and place above mentioned And this postscript set under the processe after the test and Regesters hand was made in no mans name subscribed with no mans hand confirmed with no mans seale and is contrary to the Canons both for forme and matter for matter to the 49 Canon which forbids me being no licensed preacher to preach or expound any Scripture in mine own Cure or else-where for forme to the 120 Canon which forbids any thing to be written under a generall processe of Quorum nomina such as that was but only the names of the parties to be cited and those names must first be entred by the Regester or his deputy under the processe and then subscribed by the Judge or his deputy Here were not only names but also new matter namely the preaching of the Visitation Sermon and yet neither names nor matter either entred by the Regester or his deputy nor subscribed by the Judge or his deputy Unto this warning thus given by the Apparitour by vertue of his vicious postscript I gave only this answer that on the morrow I would send my answer in writing to Master Archdeacon and on the morrow I sent this letter to Master Archdeacon and he received it and it was read in the High-Commission Court by Doctor Ducke one of the Advocates for the Office against me the 19 day of Aprill 1627. when the second part of the first finall sentence was given against me and I Fined five hundred pounds and first imprisoned To the Right worshipfull Mr Doctor Kingsley Archdeacon of Cant. give these Sir I Marvell that being a member of the High-Commission you should not better observe the order of that Honorable Court Their order is that you must command me to preach a Visitation Sermon and that I must obey your command and this they say is the custome And therfore as I must obey according to custome so you must command according to custome What the custome in this point is Sir George Newmans answer ad septimum articulum declares who there deposeth that for these thirty years of his own knowledge the Archdeacon of Canterbury for the time being hath sent Processe by his Apparitor to command the Ministers to preach at his Visitation Do you observe this custome command me by Processe to preach at your Visitation and I will preach a sermon for your Visitation as effectually as I can Your Apparitor shewed me Processe and no Processe Processe to command me to appeare at your Visitation no Processe to command me to preach at your Visitation When you conceive meanly and not evilly of me you conceive as I my selfe do and both aright yet if I may speak it without arrogancie I am not so stupid and obtuse but
AN ARGVMENT upon a generall Demurrer joyned and entred in an Action of false Imprisonment in the Kings Bench Court termino Trinitatis 1631. rot 1483. parte tertia betweene George Huntley Clerke plaintife and William Kingsley Archdeacon of Canterbury and others Commissioners Defendents as it was prepared to have beene uttered in Court by the said George Huntley but was not permitted by the Judges of that Court because as they pretend the said Action or Plea or Demurrer was discontinued termino Sancti Michaelis 1632. Published by the said George Huntley to shew whose duty it is to preach the visitation Sermon and thereby principally to vindicate the auntient Iurisdiction of the Crowne over the State Ecclesiasticall against the usurpation and presumption of the High Commissioners whereunto hee is bound to the utmost of his power by the oath of supremacy and secondly to cleare his own innocency and to recover his former credit and good name much blemished by their scandalous and opprobrious sentences whereunto he is tyed iure naturali A discovery also and confutation of the foresaid pretended discontinuance with a true copy of so much of the two parts of the High Commissioners first finall sentence as is pleaded by the Defendants and as conteines the whole matter to justifie the said Huntleys nine yeares three quarters imprisonment at severall times his five hundred pounds fine deprivation degradation and excommunication Both placed before the Argument the one to remove the foresaid rub of the pretended discontinuance and to open a faire and cleare passage fâ—r the Argument the other to shew the state of the controversâ—e and ground of the Argument out of the defendants owne words against which the Law admitts no exception Dicere viva voce in curia per judices non permissus Dicere in scriptis ex prelo per juramentum cogor London Printed for George Huntley and are to be sold be Michaell Sparkes in Green-harbour in the Little Old-baily 1642. The discovery and confutation of the foresaid pretended discontinuance THe true cause of the pretended discontinuance mentioned by Master Noy Atturny Generall in his motion Termino Michaelis 1632. was this That the Plaintiffe Huntley beganne his Action by originall and drew up the imparliances by Bill and so had discontinued his Action by originall in drawing up the imparliances by bill and had not begun any action by bill and so had no Action at all either by bill or originall depending in Court against the Defendants hereupon the Court granted the order following Dies Sabbati prox post Crastinum Animar Anno octavo Car. Reg. Huntley vers Kingsley alios Nisi causa ostensafuerit in contr die Iovis prox post Crastin sancti Martini actio Discontinuetur ex motione Attorn Gralis per curiam I presently got a copy of the foresaid order but I could not get my Counsell to shew cause to the contrary within the time limited in the Order neither was I permitted within that time to shew cause to the contrary my selfe and thereupon the Defendants Atturney Mr. Barker entred upon the foresaid Rolle the following discontinuâ—nce in these words Recordatur percuriam 27. die Novem. Anno Reg. Dmini Regis nunc Angliae 8º quod istud placitum non habet Deum continuationis â—er islud rotulum ultra non post predict Octab. sancti Michaelis Ideo â—lacitum illud ad requi sitionem predcti Georgij Huntley discontiâ—uatur The foresaid discontinuance enrred upon the said roll is neither grounded upon the pretended cause of discontinuance mentioned in â—he Atturney Gralls motion nor upon the foresaid Order of the Court but onely on my request and I was so farre from requesting â—ny such thing that I offered 40 pound nay 100 pound to have the foresaid error reformed And the foresaid Order mentions no error or cause of discontinuance but onely supposeth one and what can it suppose but onely that which Master Atturney Generall mentioned in his foresaid motion and that 's onely this because I began my said Action by originall and drew up the imparliances by bill in these words Petunt licentiam jnde ulterius interloquendi ad billam predictam and this I doe sixe times mention in the plea for so many Termes the Judges gave the defendants to put in their Plea and that being onely an error in forme and not specially and particularly set downe and expressed by the parties demurring together with their demurrer as appeares by the said Record rolle and the originall paper booke under both our Counsells hands which I have to shew cannot discontinue the Action Plea or Demurrer nor hinder the hearing of the cause nor bee the ground of a writt of error nether suspend nor reverse a Judgement but is to reformed and amended by the Judges even after demurrer joyn'd and entred as appeares by the 5. chapter of the 27. of Eliz. which runnes thus Bee it enacted by the Queenes most excellent Majestie c. That from henforth after Demurrer joyned and entred in any action or suit in any Court of Record within this Realme the Judges shall proceede and give judgement according as the very right of the cause and matter in Law shall appeare unto them without regarding any imperfection defect or want of forme in any writt returne plaint declaration or other pleading processe or course of proceeding whatsoever except those only which the party demurring shall specially perticularly set downe and expresse together with his Demurrer And that no judgement to be given shall be reversed by any writt of error for any such imperfection defect or want of forme as is aforesaid except such onely as is before expressed And bee it further enacted that after Demurrer joyn'd and entred the Court where the same shall bee shall and may by vertue of this Act from to time amend all every such imperfections defects and wants of forme as is before mentioned other then those onely which the party demurring shall specially and particularly expresse and set downe together with his Demurrer as is aforesaid A true Copy of so much of the two parts of the High Commissioners first finall sentence as it is pleaded by the Defendants Doctor Kingsley and the rest followes ANd upon opening of the cause the foresaid George Archbishop of Cant Richard of Durham Iohn of Rochester Thomas of Coventrey and Lichfield Theophilus of Landaffe Robert of Bristoll Bishopps and some other of the Commissioners aforesaid found the aforesaid George Huntley especially charged in the Articles with two perticulars first for refusing to Preach a Uisitation Sermon at the requisition and command of the Archdeacon of the Diocesse contrary to his Canonicall obedience and secondly for setting up an opinion and maintaining it before the rest of the Clergie of the Diocesse that the Archdeacon of the Diocesse had no power to require or command him or any other Minister to preach a Sermon at his Uisitation with many other abusive behaviours about that