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
which are criminal To pass by other statutes I instance in these two only The one De Excommunicato capiendo in 5 Elizab. c. 23. where the several crimes therein mentioned subject all such as shall be detected and found guilty of any of them to the Ecclesiastical Tribunal The other is the statute for Uniformity of Common-Prayer c. 1 Elizab. cap. 2. In this statute after a charge given in this Solemn and strict manner The Queens most Excellent Majesty The Lords Temporal and all the Commons in this present Parliament assembled do in Gods Name earnestly require and charge all the Archbishops and Bishops to endeavor their utmost for the due execution thereofâ—â— And then it follows for their power and authority in this behalf Be it further Enacted by the Authority aforesaid That all and singular the said Archbishops Bishops c. and all other their officers exercising Ecclesiastical jurisdiction as well in places exempt as not exempt within their Diocess shall have full power and authority by this Act to reform correct and punish by censures of the Church all and singular Persons which shall offend within any of their Jurisdictions or Diocesses after the said Feast of St. John the Baptist next coming against this Act or Statute any other Law Statute Priviledge liberty or provision heretofore made had or suffered to the contrary notwithstanding See a so the statute made secundo Elizab. cap. 2 here in Ireland The thing we had in hand to make good was this That all persons whatsoever within any Diocess regularly and de jure communi are subject to the Bishop of that Diocess in matters and causes of Ecclesiastical cognizance that this position is not repugnant to the statute Laws of these Kingdoms This I think has been fully evidenced and needs no further enlarging upon And to give one instance of this jurisdictive and coercive power in Bishops over all indefinitely it shall be in the matter of substracting and detaining of Tythes a cause properly and anciently cognizable before them That ample Charter granted by King William the first to the Clergie and mentioned at large by Mr. Selden in his History of Tythes cap. 8. p. 225. The conclusion of which is after this manner Quicunque decimam detinuerit per justitiam Episcopi Regis si necesse fuerit ad redditionem arguatur Startle not Reader at the eying of this that the Bishops power of Justicing has here precedency of place before the Kings conceive not that this was to set Episcopal power on high and make Regal Authority subordinate to it But this declares to whose judicial cognizance under the King the proceeding against detainers of Tythes of what quality and condition soever they be does immediatery appertain who is the Officer and Minister of Justice therein And the Kings power being after mentioned is so set down by way of judicial order and consequence not of subordination in power and Authority Thus much these very words si necesse fuerit plainly do import as if it were said should any of these detainers prove refractory and contumacious against the Bishops authority so that there were a necessity of invoking the secuâ—ar power the King would then be present therewith and by poenal coercions compel them to give obedience thereto Now for what concerns any other part of the Common Law it may be also both safely and truly in respect of the thing it self affirmed That Ecclesiastical proceedings according to the position laid down bears no contrariety therewith as is set down by Dr. and Student lib. 1 c. 6. That Episcopal jurisdiction is of force in this Kingdom even by the Laws of this Realm in certain particular instances mentioned is reported by Dr. Cosen from a certain Author writing in King Hen. 8th time Apol. part 1. p. 7. The Author is shewing that the Bishop of Rome has not nor ought to have any jurisdiction in His Majesties Kingdoms by the Laws of this Realm The medium whereby he proves this thing is this because Certificates of Bishops in certain cases are allowed by the Common Law and admitted in the Kings Courts But the Popes Certificate is not admitted vid. Lord Coke Instit 4. cap. 74. circa initium de jure Regis Ecclesiastico p. 23. 26. diversos casus thidem citatos Besides in the statute of Appeals 24 Hen. 8. cap. 12. mention is made of spiritual jurisdiction exercised in causes belonging to the same and it is there expresly said That such exercise is grounded on the Laws and customs of this Realm circa mitium dicti statuti Now certainly a statute best informs any one what is truly and what is agreeable to the Common Law The Bishops are by the Common Law the immediate Officers and Ministers of Justice to the Kings Courts in causes Ecclesiastical Lord Coke de jure Regis Ecclesiastico pag. 23. And for what belongs to any custom or ancient usage that has the force of Law among us I cannot find out any such that is impugned by what I have affirmed But thus I may safely determine That if any manner and course of things established by long use and consent of our Ancestors and still kept on foot by daily continuance and practice be a custom and may set up for a Law not-written Then certainly the thing that has been affirmed that is the exercise of Ecclesiastical jurisdiction by Bishops over all persons within their respective Diocesses and in causes belonging to it and thus far endeavoured to be pâ—oved is not at all contrariant thereto but of perfect agreement yea of the same Nature with it Are there any that after all this will make their reply and tell us of persons exempted from Episâ—â— paâ— power and the exercise thereof bound up and restrained in respect of such and for proof of this will alledge the Authoritative proceeding of King William the Conqueror who would not suffer any Bishop to Excommunicate any of his Barons or Officers for Adultery Incest or any such Heinous crime except by the Kings command first made acquainted therewith By the way it must be known that the word Baron is not to be taken in that limited and restrictive sense as to understand thereby the Higher Nobility to which Votes in Parliament do belong But generally for such who by Tenure in chief or in Capite held land of the King Selden spicelegium ad Eadmerum referente Tho. Fullero B. 3. Histor Eccles p. 4. Whatsoever now shall be collected hence to overthrow what has been before said is easily answered For King William very well understood his own Imperal power and right over the whole body Politick whereof the Clergie were a part And that by vertue thereof the Actual Exercise of both Civil and Ecclesiastical jurisdiction did flow from him And that he might where and when he saw cause restrain the Execution of either how long or in respect of what persons he pleased and this by special priviledge and immunity granted by him to such persons And yet that jurisdiction so
restrained be no more impeached thereby than the ordinary setled course of the common Law by the Exemption of one or more particular persons from being proceeded against therein Let us seek to understand this by a very plain and familiar example every day obversant before us His Majesty has a standing Army in Ireland in Pay and under His Command All the Officers and private Souldiers therein for some good reasons best known to himself in His great wisdom are exempted from any Civil or criminal Impleadments before the Ecclesiastical or Temporal Tribunals without leave first had and obtained from His Royal self or His Vice gerent here Now will it not be a weak inconsequent way of arguing to conclude from hence that the Judges in the Peinpora Courts have not an universal jurisdiction subjectively in respect of those over whom they are appointed because a few aâ—e by special priviledge exempted from it It will be so too certainly to conclude the like of the Bishops the Kings Ecclesiastical Judges in the Ecclesiastical jurisdiction because sâ—â—re certain person or persons may by peculiar dispensation be taken out of the same let the utmâ—st be urged that can be fetch 't out of this present instance from William the Conqueror yet we shall find enough to stil and quiet that and in the same kind too remember we but the 12th chapter of the statute caâ—ed Articuli Cleri aâ— tâ—e before mentioned By that it will be apparent That King William even in this particular did not so narrowly bound Episcopal jurisdiction as King Edward the second did let it loose extend and enlarge it The one exempted his servants and Tenants from the Ecclesiastical jurisdiction The other almost three hundred years after and by a statute Law gave both up and fully submitted them to it Withâ—ut more adoe The question is not whether the King as Supream Governour over all persons in all Ecclesiastical things and causes may exempt any of his Retainers or any subordinate Officers in places of Civil power under Him from being impleaded or proceedâ—d against in Ecclesiastical Courts But the question is whether he has Actually done it or no or if done it whether to persons so qualified as our case proceeds upon The former I do not I must not I dare not deny For the Regal power and Supremacy reaches as far in granting priviledges and immunities to any who are thought worthy of the same in respect of Ecclesiastical matters and tryals as it does in respect of civil matters and tryals What he may do in the one he may do in the other Thus I read That the King by His Prerogative may give protection to such persons as are His debtors so as not to be sued by their Creditors till Himself be satisfied Fitz. Nat. br fol. 28. B. Instances more might be given of this kind So he may likewise exempt from the Ecclesiastical jurisdiction But that His Majestie has Actually done this to persons so qualified as our case proceeds upon and quatenus as they are so qualified is that thing the contrary to which I have hitherto engaged my self to make clear and have yet something remaining to add thereto For the present instance from William the Conqueror It was no restraining of Episcopal jurisdiction but in such a particular matter reserving to himself the power of appointing the exercise of it or if it yet will be looked upon as a restraint put thereon yet it must be withall considered that he did not so much limit and restrain in this case as he was pleased to give greater scope to it in a matter of far greater importance as shall be shewed by and by Mean while I sum up this point thus That the Established course of Ecclesiastical proceedings is not repugnant to the Municipal Laws of this Kingdom that by the gracious indulgence concessions of our Pious Princes a liberty and power is granted by them to the Bishops to exercise actually Ecclesiastical jurisdiction upon the Subjects of the Crown That they may be summoned That refractory and contumacious persons may by coercive power be reduced to good order That compulsories may be issued forth and censures inflicted where just occasion requires and all due requisits have preceded They may hear and determine in causes of instance between party and party and also proceed against any criminals under Ecclesiastical cognizance of what quality and condition soever they be for correction and reformation of manners 3. This Position That all persons within any Diocess regularly and de jure communi are subject to the jurisdiction of the Bishop of that Diocess in all matters and causes of Ecclesiastical cognizance is not any way intrenching upon or infringing His Majesties Prerogative Royal. The Kings Prerogative is called by Sir Henry Spelman Glossar ibid. Lex Regie dignitatis by the Civilians Jus Imperii by the later Feudists jus Regaliorum And the import of all these is comprised in this description given thereof The Kings Prerogative is that special power preheminence or priviledge that the King hath in any kind over and above other persons and above the ordinary course of the Common Law Cowell ibidem A branch of this is the Kings Legistative power in Ecelesiastical matters and causes with the advice and consent of such as are appointed thereto And by the Statute of King Edward the second in the Seventeenth year of His Reign called Prerogativa Regis it is said That whatsoever Gracious concessions the King is pleased to make unto the Honour of Gods Church and good of the Common wealth and for the remedy of such as be grieved He would not that at any time they should turn in prejudice of Himself or of His Crown but that such Rights as appertain to Him should be saved in all points Rastal's Collection ibidem Now the Actual Exercise of Jurisdiction Ecclesiastical being that which by special Favour of our Kings is granted to the Bishops after a very large and ample manner if any thing therefore in that Grart should tend to the diminution of the Rights of the Crown yet by the Statute before mentioned these is still a salvo to them in all respects whatsoever so that in regard of His Majesties Prerogative Royal in this particular branch of it as well as in all the rest the Position before set down does not nay cannot indeed infringe the same I touched a little before the derivation of Ecclesiastical Jurisdiction as to the executive part of it from the Crown As every Bishop at the time of his Consecration dâ—es by Solemn Oath recognize the Kings Majesty to be the onely Supreme Governor in this Realm in all Spiritual and Ecclesiastical things and causes as Temporal and by receiving from the King a Patent of Restitution of His Temporalities is thereby invested with Actual Jurisdiction that is a power to exercise and execute such Jurisdiction
in foro externo contentioso in such causes as belong thereto so in the exercise and proceedings made in the same he depends upon the King from whom he derives his a thority and right to exercise In all Appeals made to the King in His Chancery He defers to him as habenti Supremam authoritatem Ecclesiasticam being the chief and Supreme Ordinary and acquiesces in his final and ultimate decisions A little before I mentioned a Grant of King William the Conqueror wherein great scope was given to Episcopal Jurisdiction it is now proper to set down what that was and this Historical account we may take thereof By this King an entire Jurisdiction was assigned to the Bishops by themselves wherein they should have cognizance of all matters and causes relating to Religion It seems by the Ancient Saxon Law the Bishops and Sheriffs jointly kept their Courts together at certain set times of the year in the Conquerors time these two Jurisdictions thus concurring were parted asunder Fullers Church History of Britain Book 3. p. 5. from Eadmer who lived in the time of King Henry the first gives some account hereof * Spelman in Glossar v. Hundredum But I shall set down the same in the words of a late and a learned Writer proper to the occasion he was upon Conquestor porro Forum Ecclesiasticum à Laico distinxit Nam cum antea sub Anglo-Saxonibus singulis mensibus Aldermannus seu Praeses unà cum Episcopo jus dixissent in Curia Centenaria quam Hundredum dicimus mandavit Episcopis Archidiaconis ne deinceps jus dicant in Curia Centenaria sed in loco per Episcopum designando ibique judicent secundum Canones Leges Episcopales contumaces contra corum mandata Excommunicationis sententiâ Brachio Regio parere cogantur cum Praecepto Vicecomitibus Praepositis Regiis dato ne aliquem in jus vocent coram se de iis quae ad Forum Episcopalem spectant Dr. Duck de Authoritate Juris Civilis in Regno Angliae lib. 2. cap. 8. p. 2. sect 26. And in the margent of his Book alledges * Apud quemâ—â— See this Charter more amply and fully declared the same being granted and directed to Rhemigius the first Bâ—shop of Lincoln ib. Coke's Instit p. 4. cap. 54. lib. 2. cap. 6. sect 135. Char. 2. Rich. 2. m. 1. By this it appears how early the exercise of Ecclesiastical Jurisdiction by Bishops was on foot in the Kingdom of England and that as it derived it self from the Crown for besides this distinct constituting of an Ecclesiastical Court from the Court of the Tourn even before the separation before spoken of was made yet the Bishops had then the judicial cognizance of Ecclesiastical causes and matters peculiarly reserved to them so it is plainly colligible from the Laws of King Edgar among which this was one Celeberimus autem ex omni Satrapia conventus his quotannis Agitor cui quidem illius Dioceseos Episcopus Aldermannus intersunto quorum alter jura divina alter jura humana populum edoceto Lord Coke on the Statute of Circumspecte Agatis v. Curia Christianitatis I might yet trace Antiquity higher in this point but my reading is too slender and my opportunities too mean that I should think my self able to give a punctual and exact Account thereof Take notice only in brief what the Pen of a learned Writer has set down The British Saxon and Danish Kings did usually with their Clergy or great Council make Ecclesiastical Laws and regulate the external Discipline of the Church within their Dominions Among the Laws of King Edward the Confessor these were two of them one that makes it the office of a King to govern the Church as the Vicar of God another supposes a paramount power in the King over the Ecclesiastical Courts because they were to take cognizance of wrong done in Ecclesiastical Courts Archbishop Bramhall's Vindication of the Church of England c. p. 67. King Edward the Confessor was indeed after the time of King Edgar before mentioned but taking both together and what was done by both thence is shewed that the practice of former Kings was followed by them and that there was an Ecclesiastical Jurisdiction then and before exercised by Bishops which exercise thereof derived from and was regulated by these and other preceding Kings of England That which has been said makes very fair for our purpose and points out to us to take notice of these several observable things 1. That the Exercise of Jurisdiction Ecclesiastical by Bishops in the right constitution thereof in the Kingdom of England had no deperdance on Rome 2. That much of the intermediate practice in this kind degenerated from its first and right institution and until the time of Henry the eighth was a meer usurpation and encreachment on the English Crown 3. That whereas 't is said The Bishops were to judge secundum Canones Leges Episcopales by Canons I understand the Canons of General and Provincial Councils abroad especially the first four General Councils according as was Enacted by the Emperor Justinian Authent collat 9. Novell 131. cap. de Regulis cap. Sancimus igitur And by Leges Episcopales I understand their Home-laws I mean the Ecclesiastical Laws made by the British Saxon and Danish Kings with the Council of their Bishops variety of which may be found by him that will consult Sir Henry Spelman's Councils The body of the Canon Law was not then in being my meaning is it was not so as such The several particulars that the Decrees consist and were made up of were indeed then and long before in being but they were not compiled together till near fourscore years after thisâ—s and that was done by Gratian the Monk in the year as some say for there is much difference in the computation of this time 11 49. Ridley's view c. p. 74. And by Eugenius the third allowed to be read in the Schools * Of Greg. 9. set forth Anno 1230. The Decret in sexto Anno 1297. The Clementines of Clent 5 set forth Anno 1317. And not long after were extant the Extravagan's of John the 22d and other Popes and to be alledged for Law And for the Decretals c. Clementines and Extravagants they came in successively along while after Here by the way is seen the vanity and wildness of some mens fancies that by all means will have Bishops Courts to be of Popâ—sh extraction and that both in their Erection and Constitution they receive influence and authority from the Romish Consittory Than which nothing is more untrue in its self and unhist or ical as to the right deducing the primitive Institution hereof not to speak of the Eastern Churches even in the Kingdom of England it self 4. This is also hence observable That the present course commanded and observed by the Bishops in the Exercise of this Ecclesiastical Jurisdiction suits nearly with
the ancient state thereof and is so far from damnifying the Prerogative Royal that it mainly asserts and vindicates the same It might perhaps be doubted That different Jurisdictions in one Kingdom and those exercised by persons of different professions though deriving from one Supreme Head would rather cause than prevent many inconveniencies and those inconveniencies so bad in their nature as to detract from rather than adde to the Supreme Magistrates Dignity and Prerogative as namely by introducing confusion and disorder in the management of both and in the causes and matters to be managed in them and occasioning continual jealousies and distastes betwixt the persons appointed to manage them observed by my Lord Bacon's Advancement of Learning Aphor. 96. But in truth no such ill Effects do follow hereupon for distinct Jurisdictions exercised by persons of several orders and professions in these Kingdoms and vested with authority from the Supreme Magistrates so to do though juridical proceedings therein be different from the ordinary form and prescribed coursel of the Common Law argues unplenitude not a defect of power an advancing of it not derogating from it in that Supreme Magistrate granting the same his great wisdom and prudence in a determinate stating the nature and bounds of each Jurisdiction the appropriating certain causes to be heard and determined in them respectively commanding all His Subjects to give due obedience thereunto in such causes as are limited to those Courts and which any Subject may be concerned in And as both derive from soito depend upon him in an equal poise as to the Authority belonging to each so that all the supposed inconveniencies are sufficiently provided against And the ordering all these things in this set manner is an effect of the Kings high Prerogative enabling him so to do and is both by Custom and Law among us allowed of * The King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal and it is a Right of His Crown to distribute to them that is to declare their bounds Lord Hobbarts Reports Dr. Jame 's Case observe with me these following instances The Kings Majesty is plyased to confirm a peculiar Jurisdiction granted by His Royal Progenitors to the two Universities of Cambridge and Oxford The Chancellor of each University or his Commissary administer Justice according to the Civil Law and the Customs and Statutes of the University where the persons at variance together are Students or one of them at least is such insomuch as in personal Actions for Debt matters of Accounts or any Contracts made within their own Precincts and in some criminal matters likewise none of them may be called to Westminster Hall but the cognizance thereof belongs to the Chancellor of the said University or his Commissary as is before said If any Appeals be made from Sentences given in any such Trials they are first interposed to the Regents last of all to the Kings Majesty himself Cowell Interp. in verbo Privilege Dr. Duck ut supra sect 30. Will any man now say That the Exercise of this power is intrenching on the Kings Prerogative because His great Courts at Westminster are not applied to and a Jurisdiction distinct from and independent upon them is exercised Surely no because the Exercise of this power is granted by Royal Charter it proceeds from it depends upon it is done in an acknowledgment of the Kings Supreme Power and Prerogative There is a Court of great Dignity and Honour called the Court of the Constable and Earl Marshal of England Herein are determined all Contracts touching Deeds of Arms out of the Realm as Combats Blazons of Armory and the right of bearing Arms c. proper to particular Families the manner of proceeding in this Court is according to the form of the Civil Law * L. Coke Jurisdiction of Courts ca. 17. the use and authority of which is of great sway herein Appeals that are interposed from any definitive sentence in this Court are brought to the Kings Majesty Himself not to His Chancellor the municipal Law is altogether secluded from hence Justice is administred Delinquents are punished without any relation to that or the Judges thereof yet the Kings Prerogative is not infringed by the exercise of this Jurisdiction because it is derived from the King I might add here the Court of the Admiralty the peculiar Jurisdiction exercised within the Cinque Ports by the Lord Warden thereof In these Courts matters both civil and criminal are tryed according to the course prescribed by the civil Law but in the following Leafs I shall have occasion more distinctly to write something relating to these matters and respectively to these two Courts Now as it is in these different Jurisdictions they derive from the King His Subjects are bound by command from Him to obey the Authority thereof if they refuse to obey by poenal coercions proper to each they may be compelled to it yet still the Royal Prerogative is not any whit diminished nor the Rights of the Crown at all impaired hereby As it is thus I say in the distinct Jurisdictions so it is in the exercise of Episcopal Jurisdiction in the Ecclesiastical Courts And now I have uttered thus much I perceive my self beginning to walk on a narrow slippery ridge where a steep precipice is on each side The danger of falling on one hand is least I abase the Prerogative so low as to subject the King in Ecclesiastical causes and matters under the Resolves and Decisions of Classical Assemblies * Huic Disciplinae omnes orhis principes Monarchas fasers suos submittere parere necesse est Travers Disciplin Ecclesiast p. 142 143. Bishop White in his Preface to his Treatise concerning the Sabbath as the Presbyterians do or bring Him in subordination to the Bishop of Rome as the Papists do The danger on the other hand is the over-exalting of the Prerogative so that it might be thought we attribute to the King as sometimes the Papists object to us a power to exercise Sacerdotal Offices in the Church to inflict censures * And yet our Law attributes much in this particular and that very highly to the King Reges Sacro olco unctâ— spiritualis Jurisdictionâ—s sunt capaces 33 Edw. 3. Ayde de Roy. 107. Coke Cawdrie's case p. 16. c. Now to walk even and steddy betwixt these two dangerous downfalls is that which must be endeavoured and therefore whereas we own and solemnly recognize the Kings Supremacy in Ecclesiastical matters and causes it is to be understood according to the sense and meaning set down in the words of the 37th Article of the Church of England and also in the Article of the Church of Ireland concerning civil Magistrates The Kings Majesty hath the chief Government of all Estates Ecclesiastical and Civil within His Dominions see Queen Elizabeth's Injunctions set forth in the first year of Her Reign Now this Supremacy keeps the King above all
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
displeased thereat for as one Historian informs us * Mat. Paris Anno 1250. p. 777. and he a Votary to the Pope in another case hapning but two years before viz. in the 36th year of this Kings Reign and which this passage must undoubâ—edly refer to Non sine redargutione peritorum haec fecit Dominus Rex quod scilicet conquestus fuerit super haec Domino Papae The Pope to be sure was forward enough to engage himself in the concerns of Princes and so would make himself more officious to gratifie the King than was needful whereas the provision which by the Laws was made against any such encroachments and the Kings own Regal power to put the same Laws in execution would have given him better relief than any indult or dispensation from the Pope could do Well upon the Reasons before specified prohibitions issued out from King Henry to keep the Bishops from censuring his Officers but notwithstanding them still they would be encroaching on the Kings Rights in his temporal Courts and so they continued to the time of King Edward the first the son and immediate successor of the former King and thence proceeded the issuing of that Kings prohibitory mandates Requiring and commanding the Bishops not to Excommunicate his Bayliffs and Officers without his previous Licence and Order That is as by what is to be collected from the state of affairs in these times until the King fully understood the nature of the cause these Officers and Bayliffs were convented upon for as I declared before they were often censured and excommunicated because they opposed the Popish encroachments on the Kings temporal Rights therefore the King would understand the true grounds of such proceedings that if the matter were of civil concernment his Officers might be freed from such vexatious and unjust prosecutions but if it appeared to be of Ecclesiastical cognizance they were then delivered up to the Jurisdiction thereof This I conceive to be the very genuine and true meaning hereof for these reasons first because it is consonant to the end and purport of other Writs of the like nature the Author has not recited these Records at large which if he had done very probably something plainly directing to this conception might have been found therein Moreover by the Statute called prohibitio formata de Statuto Articuli Cleri * Which Stature had â—eâ—â—â—ence to certain Articles of the Clergy â—â—h biâ—ed in Parlâ—ament hold Anno 51. Hen. 3. made the beginning of King Edwards Reign The spiritual Jurisdiction is not at all restrained subjectively that is respectively to persons being of this or that condition or quality but only objectively as to causes namely such as had been usurped before by the spiritual Courts Lastly this is made good also from approved practice in this very Kings Reign as will appear by this remarkable story that now follows Thomas the Noble Earl of Lancaster had to wife Alice only Daughter and Heir of Henry Earl of Lincoln at the same time John Earl of Warren was married to King Edward the first his Neece yet the said Earl Warren by great force and strong hand caused the said Alice Countess of Lancaster to be fetched from the Earl of Lancasters house in Canford in Dorset shire and in great pomp and bravery in despight of the Earl of Lancaster to be brought to him to his Castle of Ryeâ—gate in Surrey where they lived in open advowtry John Langton was then Bishop of Chichester and Chancellor of England and being a man of a brave spirit and fearing not the face of great men according to his office and duty he called the said Earl Warren in question for the said shameful and open Adultery and by Ecclesiastical censures Excommunicated him for the same as he well deserved sayes my Lord Coke who reports this Story * Expâ—fâ—â—ion on the Statute called Articuli super Chartas Anno 28 Edvard 1. page 573. This hapned about the 29th year of King Edv. 1. and surely is an instance proper to inform us what the right state of Ecclesiastical Jurisdiction was then and that supposing the matter to be indeed belonging to the Ecclesiastical Tribunal no person of greatest dignity under the King nor any others in civil office and place of power are exempted from it nor did the Kings prohibitory Writs give any such exemption Thus it was while the Ecclesiastical Jurisdiction did de facto stand divided from the Crown and before our Kings re-assumed their Rights in the same But forasmuch as now there is an entire Union of both jurisdictions in one supream King and Governour the exercise of the Ecclesiastical jurisdiction is certainly at least as extensive as full and as Universal now as it was before And whereas the obtaining and having the Kings leave and licence to the inflicting any censures on His Bayliffs and Officers is mentioned in those prohibitory Writs whence it may be inferred that admitting Ecclesiastical judges may proceed against and censure occasion so requiring it the Kings Officers in civil powers yet the Kings leave and order so to do must first be had and obtained To this I say that now by the right constitution of Ecclesiastical jurisdiction and as the exercise thereof is derived from the Crown the Kings leave and licence in the whole procedure thereof is implicitely indeed yet as truly and certainly had and obtained as if a particular and express mandate from the King were issued out upon each several cause civil or criminal that belongs to the cognizance thereof The Eâ—clesiastical judge acts by a power as immediately derived from the King as any Temporal Judge does The Bishop is as amply and compleatly Commissionated for the Exercise of Ecclesiastical jurisdiction both subjectively and objectively in foro Externo contentioso which Commission passes in His Majesties Letters Patents for Restauration of the Temporalities as any other Temporal Judge in any of the Kings Temporal Courts And upon this account it is as truly affirmed That nothing is done in the Ecclesiastical Court Rege inconsulto as the same is said concerning the Temporal Court Habet Rex diversas Curias in quibus diversae Actiones terminantur sayes Bracton and he lived in one of these Kings Reign viz that of King Henry 3d whence Sir Edward Coke draws this conclusion That the King hath committed and distributed all his whole power of Judicature to several Courts of Justice and in this he refers to Ecclesiastical Courts as well as Temporal And from the Statute 24 Hen. 8. cap. 2. he declares thus That the Laws Ecclesiastical and Temporal were and yet are administred adjudged and executed by sundry Judges * His Jurisdiction of Courts cap. 7. p. 70. c. Hence is that saying That the King does judge by his Judges Thus in matters of Ecclesiastical cognizance the King judges by His Ecclesiastical Judges and whatsoever persons are any way concerned therein and impleaded in the Ecclesiastical Court the
King by His Ecclesiastical Judges has the hearing of them and determining in their causes and His leave and licence goes along therewith By vertue of being thus deputed and commissionated by the King the Bishops have and execute an exterior Jurisdiction which is as extensive and universal over all persons in causes belonging thereunto as is the Temporal Jurisdiction in the management of the Temporal Judges and where the Kings Commission is there is His power and there is His consent And where that Commission does not abridge and limit there all proceedings made by power from it have assuredly the Kings leave and licence in conjunction with them But if still notwithstanding all that has been said it be persisted in that there is a disparity of power in the two Jurisdictions as to the extensiveness thereof subjectively so as that the Ecclesiastical Judge in his way of proceedings may not but the Temporal Judge in his way may proceed against any civil Officers as Mayors and Sheriffs c. found Delinquents in any kind I demand How does it appear to be so What Law is there that constitutes this Disparity What legal course prescribed and set down to restrain the Ecclesiastical Judge in case he will be intermedling with such persons for it is irrational to imagine there should be such a Law and yet that it should be destitute of sufficient means to uphold and maintain it self by Truly I am not so vain as to say there is no Law extant which constitutes this Disparity because I know no such but I have been seriously inquisitive and diligent in searching after this but cannot attain a knowledge of any such and would any be so kind to inform me I should thankfully own that kindness Next for any legal course prescribed and set down to restrain Ecclesiastical Judges in case they will be intermedling with such persons If there be any such it must be one or other of these three wayes 1. By Writ of Provision and Praemunire Or 2. By a Writ of Indicavit Or 3. By a Writ of Prohibition By one or other of these the Ecclesiastical Judge is restrained in his proceedings and câ—mmanded to desist from prosecuting further such matters as being before him are referred to in those Writs Now concerning the first That Provision and Praemunire has no place nor use in this matter I do for the present plainly declare and afterwards I shall have occasion more largely to prove it 2. Then for the Writ â—f Indicavit that is notoriously known to lie there where a Suit of Tythes is commenced in the Ecclesiastical Court which does amount to a fourth part or above of the whole Benefice or it lieth for the Patron where his Clerk is impleaded for the Advowson i. e. the Right of Patronage 3. There remains only the Writ of Prohibition This is said to be two-fold Prohibitio Juris Prohibitio Hominis Prohibitio Juris is such as is grounded on any Statute or Law of this Land Prohibitio Hominis is such as has no precise word or letter of the Law to sustain it but is raised up by Argument and by way of surmise and as the wit of man will suggest Now put these Prohibitions of both sorts together and I dare boldly affirm that none of either kind have been or can or ought to be granted so as to supersede the Ecclesiastical Judge from his legal proceedings against any person where the matter proceeded upon is indeed of Ecclesiastical cognizance meerly because such a person bears some office of civil power is a Mayor Sheriff Portrieve or any other in like place of authority And this is the reason why I take so much confidence in delivering this affirmation because it is the incompetency of the cause brought into tryal before the Ecclesiastical Judge and not this or that quality or condition of the parties proceeded against that alwayes makes way for moving for and granting of a Prohibition Thus much has been said for the removal of these Objections and still it is clear and evident that the exercise of Ecclesiastical Jurisdiction by the Bishop over all persons whatsoever within his Diocess in matters and causes truly belonging thereunto tends not at all to the impaâ—ring or invading the Kings Royal Prerogative It has been the glory of our Kings to keep the Rights and Liberties of the Church safe and entire and never to interpret a just exerting and using of their Jurisdiction to be a diminishing of their Royal dignity In some old Presidents of the Writ de Excommunicato capiendo A priviledge peculiar to the Church of England above all the Realms of Christendom that I read of sayes Dr. Cosen Apol. par 1. p. 9. The King declares thus Nolumus quod libertas Ecclesiastica per nos vel Ministros nostros quoscunque aliqualiter violetur Register in bre orig p. 69. a. And again Jura libertates Ecclesiasticas illaesa volentes in omnibus observari ibidem But I have one greater instance hereof to add here At the time of His Majesties Coronation the Oath that He is pleased then to take has this Article therein That He will grant keep and confirm to His people of England the Laws and customs to them granted by the Kings of England His lawful and religious Predecessors and namely the Laws customs and Franchises granted to the Clergy by the glorious King St. Edward his Predecessor according to the Laws of God the true profession of the Gospel established in this Kingdom agreeable to the Prerogative of the Kings thereof and the ancient customs of this Land Afterwards one Bishop present reads this Admonition to the King before the people with a loud voyce Our Lord and King we beseech You to pardon and grant and to preserve unto us and to the Churches committed to our charge all Canonical Priviledges and due Law and Justice and that You would protect and defend us as every good King ought to be aâ— Protector and Defender of the Bishops and Churches under His Government Whereto the King answereth with a willing and devout heart I promise and grant my part and that I will preserve and maintain to you and the Churches c. By Canonical priviledges that belong to them and their Churches there must needs be implyed the Honour of their several Orders as that Bishops should be above Presbyters c. together with all their due Rights and Jurisdictions Dr. Stewards Answer to a Letter concerning the Church and the Revenues thereof Of these Laws Customs and Franchises granted to the Church and Clergy this of actual exercising Jurisdiction Ecclesiastical in causes belonging thereto is as I have before shewed one and that a principal one too Now to imagine that the King will bind Himself by Oath to the confirming of such Charters and Grants which he either resolves not to keep or such as are detrimental to Him and tend to the impairing His Prerogative is neither consistent with Reason nor Loyalty
calling all parties under that jurisdiction to answer in judgement of using Coercive means to such as are refractory and contumacious and bringing matters to a final and full Execution Gothofred sayes well hereupon Quoties casus omissus virtute 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 expressi comprehendi potest toties ad illum fieri debet extensio But least this position may less pleasingly rellish with some pallates because of the Authority I have hither to made use of to establish it by The Imperial or Civil Law being not allowed in these Kingdoms save only in some particular Courts and causes which is to be said of the Canon Law likewise And in respect of the latter of these two some men are apt to look asquint upon any thing that is drawn out of it or grounded thereon They are ready to cry out upon such a thing as a Popish encroachment tending to Advance the Miter and Keyes above the Crown and Scepter * Yet these make up a part of the Kings Ecclesiastical Lawes being so qualified as by Statute is required in 25 Hen. 8. cap. 19. To prevent this or any the like imputation my next and that my principal endeavour is to shew its accordance with the State Constitution and Lawes of these Kingdoms of England and Ireland under His Majesties Government that is with the Ecclesiastical and with the Municipal Lawes thereof and with the Kings Prerogative Royal. In respect of all which I do not doubt to affirm That this position viz. That all persons whatsoever within any Diocess regularly and de jure communi are subject to the jurisdiction of the Bishop of that Diocess in matters and causes of Ecclesiastical cognizance That this position I say is agreeable to the Ecclesiastical Lawes of these Kingdoms Not repugnant to the Municipal Lawes thereof Neither is it thirdly any thing intrenching upon or infringing His Majesties Prerogative Royal These all require distinct and particular considerations 1. It is agreeable to the Ecclesiastical Lawes of these Kingdoms in His late Majesties Proclamation of Royal Assent given to the Book of Canons and Constitutions Ecclesiastical of this Church of Ireland Anno 1634. I observe two things relating to our present purpose the former is a strict injunction upon all persons whatsoever to observe and obey them We do not only by our said Prerogative Royal and Supream Authority in causes Ecclesiastical ratifie confirm and establish by these our Letters Patents the said Canons Orders Ordinances and Constitutions and all and every thing therein contained as is aforesaid but do likewise propound publish and streightly enjoyn and command by our said Authority and by these our Letters Patents the same to be diligently observed executed and equally kept by all our loving Subjects of this our Kingdom in all points wherein they do or may concern every or any of them according to this our Will and pleasure hereby signifyed and expressed The other thing I observe therein is that impartial Execution of them which is required to be made and by whom to be made upon all persons whatsoever that refuse to obey them so it afterwards follows Streightly charging and commanding all Arch-Bishops and all others that exercise any Ecclesiastical jurisdiction within this Realm to see and procure that the same Canons Constitutions Orders and Ordinances be in all points duly observed Not sparing to execute the penalties in them severally mentioned upon Any that shall wittingly or willingly break or neglect to observe the same as they tender the Honour of God the peace of the Church tranquility of the Kingdom and their duties and service unto Vs their King and Sovereign All are commanded to obey these none have an Immunity from being punished if they do not obey them In the last Canon of that Book It is decreed That if Any within this Nation shall despise and contemn the Constitutions thereof Ratified and confirmed by Regal power or affirm that none shall be subject to them but such as were present and gave their voyces to them He shall be Excommunicated and not restored until he shall publickly revoke his Error In the 140 Canon of the Church of England published Anno 1603. It is more particularly and expresly set down and declared that all manner of Persons both of Clergie and Laity are to be subject to the Decrees mentioned in them in causes Ecclesiastical Although they were not themselves particularly assembled in the same Sacred Synod Let us now put both these things observed together and the result is this Here is a jurisdiction declared in respect of certain matters and causes and in respect of Persons indefinitly set down over all And in whom is this jurisdiction declared to be namely in Arch-bishops Bishops c. over whom is it declared to be over all surely The injunction of inflicting penalties in case of disobedience is as universal and extensive subjectively as is the command of obedience Here is no distinction nor exemption made of any Persons under any qualification or Vested with any office or subordinate civil power so as they should be thereby priviledged from Ecclesiastical jurisdiction in matters appertaining thereunto And Vbi lex non distinguit ibi nec nos distinguere debemus where the Law makes none neither may we make any distinction I have made my first instance in these Canons as part of the Kings Ecclesiastical Lawes But I am not to learn that when the Authority of our Canons is urged and that obedience which is required to them is called for There are a generation of such as are wise in their own conceits men of mighty deep understandings who think they pierce further into things and understand more than their poor shallow Brethren are able to do And these will question the Validity of these Canons and their legal obligingness on the Kings Majesties Subjects To all such therefore I shall fairly offer a few considerations and then leave in to their own sober thoughts to determine wha◠Coherence there can be betwixt a disowning 〈…〉 the Authority of our Ecclesiastical 〈◊〉 and the profession of being dutiful and obediene Subjects 1 Many learned men both of the Municipal and Civil Law joyn in this opinion and affirm That the Kings Majesty may by virtue of His Supream Authority in matters Ecclesiastical confirm and ratifie into the force of Law Canons made in Convocations and that they be a part of the Kings Ecclesiastical Lawes Princeps tanquam supremus post Deum gubernator potest in causis Ecclesiasticis statuere quicquid verbo divino statutis consuetudinibus Regni sui non repugnaverit Cosen de Politeia Ecclesiastic Anglicana Tab. 1. A. And then he specifies the matter of his former Assertion thus viz. That this supream power of our King is in Condendis novis legibus sive canonibus in ijsdem administrandis relaxandis cirea statum Ecclesiasticum and this done cum Regius assensus fuerit adhibitus iis quae Synodus
coercive respectively to the manner of proceedings therein as the same Regal Authority is in the temporal Courts in matters belonging to them and respectively to the manner of proceedings therein The King hath both Jurisdictions united in Him as has been largely before shewed Rex habet omnia jura in manu sua It is a Maxim concerning the King which I read cited from Bracton lib. 2. c. 24. * So it is also said Rex est mixta persona quia tum Ecclesiasticam turn temporalem Jurisdictionem habet 11 Hen. 7.12 Now all is completed in these two Jurisdictions which although they may be diverse yet they are not contrary in him they are both radically and fundamentally in him and derivatively only in all Officers and Ministers of Justice in either kind Is the King then absolute in the one and yet limited in the other less powerful in his Ecclesiastical than in his civil Supremacy That is Supreme and not Supreme Thus to say is either to contradict ones self or neither better nor worse than plainly to derogate from the Kings Ecclesiastical Supremacy and to give him the Name but to deny the Thing It incurs the danger of implied if not direct disowning Regal Supremacy in all causes Ecclesiastical and over all persons that may be concerned therein It is plainly to make a magis and minus in that Authority which will not admit any such thing * Regia dignitas est indivisibilis Coke 4 Instit c. 48. it being alwayes equally and alike forcible in all that is chief and supreme in both Administrations Ecclesiastical and Civil Let 's state a Case or two for better illustration sake A Suit is commenced in the Ecclesiastical Court before the Bishop the Kings Ecclesiastical Judge presiding therein concerning a matter we will suppose not properly cognizable there The Defendant hereupon sues out a Prohibition which he exhibits before the Bishop the Ecclesiastical Judge This the Bishop refuses to admit and notwithstanding the same proceeds in the cause Complaint hereof being made to the Court granting the said Prohibition an Attachment is awarded against the Ecclesiastical Judge * It may be so and issues out of the Chanceâ—y although the Prohibition came from the King Bench or Common Pleas. Lord Coâ—e cap. 8. 4 Instit He is apprehended and brought to answer for his contempt in refusing to obey the Kings Prohibition I question not now but to have a free concurrency of every mans vote allowing this to be very legal and just because the Kings Authority in the Temporal Court and in such matters as belong thereunto is in this case contemned and disobeyed and therefore ought to be answered for by the contemners of it Now invert the case a little A Bishop the Kings Ecclesiastical Judge convents before him in the Kings Ecclesiastical Court a person bearing some civil Office suppose the Mayor of a Corporation or some Sheriff of a County perhaps at the instance of a party perhaps in a matter of correction This Mayor or Sheriff refuses to appear upon the Summoning or appearing refuses to obey such Injunctions as are given him by the Bishop and for his contempt therein has a censure inflicted on him Tell me now ought not this case be allowed as legal and just as the other The reason is certainly the same because the Kings Authority in his Ecclesiastical Court and matters belonging thereunto is contemned and disobeyed and therefore ought to be answered for by the contemners of it and if the reason be the same partiality or prejudice may make a disparity but in the true nature of the thing there is none at all For the Kings Authority being equally committed to both spiritual and temporal Judge in the concernancy of such things as belong to each the violaters and contemners of either be they of what quality and condition soever are justly punishable by those in either Jurisdiction who are vested with Authority respectively for executing the same But there are those who will not be satified with all this and that they may not seem to be without some grounds they are not without their Objections against it It will therefore be very pertinent to the present design to free our former Assertion from such Inferences as hence may be made contrary to it The Assertion was this That the Exercise of Episcopal Jurisdiction over persons in Office of civil power and trust is not any way intrenching upon or infringing His Majesties Prerogative Royal. To this there is first opposed that Branch and Article of the Statute of Clarenaon of which we find mention made by Matth. Paris in his History of the Reign of King Henry the second the chapter that begins thus Anno Domini 1164. in these words Nullus qui de Rege tenet in capite nec aliquis Dominicorum Ministrorum ejus Excommunicetur nec alicujus eorum terrae sub interdicto ponantur nisi prius Dominus Rex si in Regno fuerio conveniatur vei justitiarius ejus si fuerit extra Regnum ut rectum de eo faciat Et ita ut quod pertinebat ad Regis Curiam â—bi terminetur Et de eo quod spectat ad Curiam Ecclesiasticam ad eandem mittatur ut ibidem terminetur I did a little before and do now again acknowledge That the King of England may by His Prerogative Royal when and to whom he pleases give exemption from Ecclesiastical Jurisdiction But that He has done it to persons in subordinate Offices of civil power is not proved from this instance all the dispute will be who are comprehended under this expression Dominicorum Ministrorum what kind and sort of persons are pointed at thereby And here I say plainly that persons in subordinate Offices of civil power are not these Dominici Ministri Regis My Lord Cokes Exposition hereof is my warrantry and authority for saying so * 2 p. Instit Exposition on the 12th Article of the Statute called Articuli Cleri 9 Ed. 2. The place I refer to in the Margent will inform us That Dominici Ministri Regis are such as belonged to the Kings Houshold as the Tenentes de Capite are such as held of the King by Grand Serjeanty and Knights service and were to give their attendance on the Kings person whensoever required thereto To these is this exemption granted but note here withall that the exemption in this Statute is not absolute but proceeds with a reserve and a limitation that if the cause any such person is to be convented upon be judged by the King or His Justice in the Kings absence to belong to the Ecclesiastical Court thither both cause and person must be sent and that person notwithstanding such exemption be proceeded against and that cause there be determined That which is in the principal aim and provision of this Statute is this that the King be made acquainted before any censures be inflicted on any account upon any of His servants
nor Religion Here is no need of that Writ in the Kings behalf called Ad quod Damnum As what damage and prejudice will come to the King by confirming Episcopal Jurisdidiction and allowing the actual exercise thereof for in truth the exercise thereof kept in its right constitution and dependance for such a Jurisdiction is only here intended is so far from diminishing the Right and darkning the Jewels of the Crown that they receive a greater lustre and resplendency thereby We have spoken of the Kings Oath which He is pleased at the time of His Coronation to take for the benefit and security of His Subjects There is also the Subjects Oath which they are to take in Recognition of the Kings Sovereignty and in testimony of their fidelity to him I mean the Oath of Supremacy a consideration of which is very proper and pertinent to the matter in hand especially that one branch which the Taker there fâ—swears to and declares that To his power he will assist and defend all Jurisdictions Priviledges Preheminences and Authorities united and annexed to the Imperial Crown of this Realm In which words the Eâ—â— esiastical Jurisdiction is if not only yet speciaâ—ly aimed at Now let such persons that are pâ—aced in Offices of civil Power and Authority and conceit themselves not subject to Ecclesiasticaâ— Jurisdiction because of their being in such Offices and who yet do take this Oath at the entrance into their Offices let them I say soberly and advisedly bethink themselves how consistent an Oath taken for the observance and defence of the Ecclesiastical Jâ—râ—sdiction is with a plain disowning of such Juâ—â—ction as to themselves or impugning of it and bearing themselves disobediently to it or exempting themselves from it in matters which the Law has clearly appropriated to it or in a word to act any thing to the prejudice of the lawful proceedings thereof It is frivolous and vain to alledge that they acknowledge and will submit to this Jurisdiction in the King and yet at the same time deny their submission to the exercise of it by the Bishops This I say is a vain and frivolous Allegation because it is not a notional and speculative acknowledgment that such a Jurisdiction is united and annexed to the Imperial Crown of this Realm which only fulfills the impâ—rt of this Oath But it is an obedience in practice by submitting to the lawful exercise of it that is the soope and intendment of it Now the King exercises no judiciary power in His own person but commits it to His Judges the King hath wholly left matters of Judicature according to His Laws to His Judges * Lord Cole 4 Inâ—it p 71. And the Bishops are those Judges to whom the Ecclesiast Jurisdiction is committed and to them the execution thereof belongeth now what is done in deregation of that power and authority derivatively residing in them is done in like manner in deregation of the same power primitively that is as it is originally in and derives from the King Himself I have said thus much concerning this branch of the Oath of Supremacy not that I take upon me to judge any man but because I take it to be my duty to recommend the consideration of this thing as a matter of very weighty concernment and fit to be made with all sobriety and seriousness I sum up all delivered on this first Proposition under this Head That Bishops proceeding by Authority and deriving the actual exercise of their Jurisdiction from the King are the Kings Ecclesiastical Judges dispensing Justice in the Kings Ecclesiastical Courts according to the Kings Ecclesiastical Laws And that the same Jurisdiction reaches to and over all persons whatsoever within their respective Diocesses all which is agreeable to the Ecclesiastical Laws of these Kingdoms and not repugnant to the Temporal Laws thereof nor yet infringing in any kind the Kings Prerogative Royal and therefore the Bishop of Waterford's Jurisdiction in the Case before laid down was legally founded in respect of the persons proceeded against Prob. II. The second Proposition is this The Bishops Jurisdiction over these persons was legally founded in respect of the cause that this proceeding was made upon The cause was the rendring an accompt of Moneys given and received to pious uses and rendring of an accompt of a large Rate levied to the use of the Church as also concerning the Reparation of the Body of the Cathedrall Church at Waterford That the Bishop is the proper competent Judge to exact an accompt of all such Moneys so given and so to be disposed of will not I suppose be denied or if it be denyed the worst of it is 't is but the being put to the proof of it which is no very difficult task and for sureness sake shall by and by be made good And for the Reparation of Churches that the same belongs to Ecclesiastical though the Law be clear for it will yee be made more clear by having those Laws for it produced But before that be entred upon some notice must be taken of what has been alledged and passed roundly from the mouths of many that concern'd them selves much in his matter That by ancient contract the Mayor Sheriffs and Commonalty of Waterford stand obliged to the making good this Reparation whence the Inference it made That all contracts being of civil cognizance therefore the Bishop was no competent Judge of that branch of the cause which was brought before him the same being not cognizable in the Ecolesiastical Court This Allegation at the first hearing seemed mighty fair and plausible insomuch as some persons otherwise no Enemies to Episcopal Jurisdiction were much concerned and startled thereat And when they first heard it they concluded presently that the Bishop had taken a matter in hand which he ought not to have moved a hand towards as not appertaining to his jurisdiction and so has usurped on the Temporal Courts Nay so strangely transported were some that in their heats they did not stick to affirm that the Bishop by doing what he did had incur'd some heavy penalty which they would not abate of an Ace less than a praemunire it self And many and hard and bitter were the cenfures that several open mouths pronounced upon him But causes as well as persons are sometimes prejudged and both were so in this case As a preparative to the clearing and making good that both cause and person were thus prejudged I shall speak something concerning the matter of contract so mainly insisted upon and that which raised the cry as if the Bishop grounded his proceeding on that contract and therein encroached on the Temporal Jurisdiction Let it therefore for the present be supposed That the Bishop did ground his Ecclesiastical proceeding on that contract although indeed the cause was not so laid yet supposing it were the inference that is thence made peradventure is not good as that the doing thereof was an encroachment on the Temporal Jurisdiction Peradventure
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
he nor the two Sheriffs did give the Bishop a meeting as was desired of them whereupon the Bishop orders a Process to issue out and Convents them before him in the Consistory They refuse to appear though being duly Summoned and so run into Contempt Being called again and then appearing they were for their former Contempt enjoined an easie Penance They aggravate their former with this new Contempt in disobeying the Bishops Injunction and thereupon are mildly Censured by the Bishop Not Excommunicated as was falsely rumor'd and mouth'd abroad by Men that regarded not what proceeded from them whether Truth or Falshood so it might but serve their purposes but large intermissions of time there were betwixt every of these Proceedings as will be shewed hereafter And thus stands the matter of Fact in this whole Transaction Upon a Reflection now made on this whole matter in one Review Will not the Carriage of these persons appear of a strange form and kind to any sober and indifferent Man Hardly I think will it be parallel'd by President of any such that has formerly been Hardly be entertained with Credit that any such had lately been And the whole Proceeding being so as is here briefly declared Let the Persons concerned herein be so ingenuous as freely to confess and acknowledge the same If yet this be denied so may the truest Narrative of things be and yet have never the less of Truth in it for all that yet there is so much and so clear Evidence to Verifie what has been set down That if any Attempt be made of standing to such a Denial then an easie producing of this Evidence will both shame those Deniers and add to the Confirmation of the Truth hereof Howbeit some particularities in several passages of this Proceeding may find in the following Sections a more seasonable Discovery and Enlargement In the mean time the Question de Jure falls in to be discussed concerning the justifiableness of the Bishops proceedings herein Three main Exceptions I find much insisted upon and urged against these Proceedings The first is in relation to the Persons thus Convented and Censured for they being the Mayor and Sheriffs of a City under His Majesties Government and representing His Person it is said That thereupon they became exempt from any Episcopal Jurisdiction The second Exception is in relation to the Cause they were called in question upon for that is affirmed not to be of Ecclesiastical but Civil cognizance because said to be grounded on a real Contract betwixt the Corporation and the Church and so the holding Plea and judging of Contracts belongs not to the Consistory but to the Temporal Courts The third Exception is in relation to the manner of Proceedings which are affirmed to have been precipitous and hasty without such form and regularity as ought to be observed therein and therefore illegal and unjustifiable To these three Exceptions I shall oppose and endeavour to make good these three following Propositions which will both invalidate any force that might be in the Exceptions and likewise assert and make good the Legality of what was done herein I. Prop. The Bishops Jurisdiction in the Case before mentioned was Legally founded in respect of the Persons proceeded against II. Prop. The Bishops Jurisdiction over these persons was Legally founded in respect of the Cause proceeded upon III. Prop. The Bishops Jurisdiction was Legally managed in this Cause against these Persons in respect of the manner observed in the proceedings thereof I. Prop. The first Proposition The Bishops Jurisdiction in the case before mentioned was legally founded in respect of the Persons proceeded against To make this good is that which I am first obliged to endeavour And I do it thus by laying my foundation in this received Maxime concerning Spiritual jurisdictions That in all matters and causes of Ecclesiastical cognizances all Persons within any Diocess regularly and de jure communi are subject to the jurisdiction of the Bishop of that Diocess The original proceeding of which institution I mean as to the actual Exercise of such jurisdiction depends upon and derives principally from the bounty and munificence of Christian Emperors and Princes As for jurisdiction meerly spiritual convei'd in and at the time of Consecration inhaerent in every Bishop as he is such I here speak not of otherwise than as it is the foundation and ground from which this Actual exercise does arise and has the enlargements made to it both subjectively in respect of persons made subordinate thereto and objectively in respect of matters and causes appropriated to it Sundry instances making this Assertion good might be had in the Imperial Law But so it will appear to be to him that will but consult Titulum de Episcopali judicio in Codice Theodosiano Et Titulum de Episcopali Audientia in Codice Justinaneo Et legomni innovatione cessante leg Privilegia ibidem de Sacro Sanctis Ecclesiis whence Tholosanus Syntagmat lib. 47. de divisione judicii num 12. 13. Inferrs this rule Prelati sunt ordinarii Judices Rerum Personarum suae jurisdictionis And moreover adds this Caesares tuentur defendunt sacerdotate judicium Privilegia ejus legibus stabiliunt And Gothofred on the former of these Laws infers this as a standing rule Innovatum contra Canones non subsistit By the ancient Canons Bishops were invested with this judiciary power Christian Emperours favourably confirm the same and any innovation thereupon is of no force The same power of jurisdiction in Bishops is allowed of and made good by Charles the Great In Capitular lib. 6. cap. 28. Paulus Fiacesius in his Book called Praxis Episcopalis cap. 4. Articul S.N.S. Layes down this Rule Episcopus in sua dioecesi habet intentionem fundatam super omnes de diaecesi And to confirm the said rule so laid down by him he produces there the Authority of many places in the body of the Canon Law Indeed where the matter is not of Ecclesiastical cognizance It is the incompetency of the matter or cause not the quality or place or office of any person that exempts him from that jurisdiction for as the fâ—rementioned Author observes Num. 2 Ibidem Episcopus alium Episcopum morantem in sua dioecesi ratione delicti ibidem commissi judicare punire potest If a Bishop have jurisdiction over another Bishop within his own Diocess where the Fuct is of Ecclesiastical cognizance there is certainly the â—ike if not a more forcible reason that the Bishops power should reach to all others of his Diocess And Javolenus has delivered this Rational and elegant Rule Cui jurisdictio Data est ea quoque concessa esse videntur sine quibus jurisdictio Explicari non potest L. 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 de jurisdictione omnium judicum The granting of a jurisdiction implyes a grant of all those things that conduce to a right discharge and exercise of it A power is included herein of presiding over and
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 King Edward the third Now if it be here said that these Constitutions were made before the Statute of Praemunire came forth and so proceeded more peremptorily and not with that submissive regard and dutiful obedience to the Crown as they ought to have done I answer by acknowledging those Constitutions to aim indeed at the restraining of the Kings Prerogative and of his Temporal Courts and therefore not of any force now or that proceedings should be guided thereby * Sir Tho. Ridley in his View c. leaves it without decision whether these constitutions be annulled by the Act of Parliament viz. 25. Hen. 8. c. 19. He determines not absolutely I say but refers it to better judgements But this mention is made of them to shew Historically what was then practised and held usually and moreover to evince that where the Rights of the Crown are not thereby impaired nor any of the Kings Temporal Courts invaded Ecclesiastical proceedings may be made against any Person and his being in any subordinate civil office does not exempt him therefrom I must yield to and acknowledge what the Statute 25 Hen. 8. cap. 19. has determined viz. All Canons Constitutions Ordinances and Synodals Provincial that had been then made are received into the body of the Ecclesiastical Laws and are Established to be the Ecclesiastical Lawes of England and become of good force and validity but with this necessary proviso herein quatenus consuetudinibus statutis Regninon repugnant nec prerogativae Regiae adversaâ—tur Dr. Zouch de jure Ecclesiast p. 1. Sect. 1. So the Statute it self reports of them that they are of force and still binding so far forth as they be not contrariant nor repugnant to the Laws customs and statutes of this Realm nor to the Danger or Hurt of the Kings prerogative Roya In the Formula of Juridical practice for causes Ecclesiastical set forth by Francis Clerk and which is approved in all the Consistories and other Ecclesiastical Courts of England and Ireland In this Formula I say There is a title namely the two hundred and fifteenth title of that Book after what manner to begin and proceed in any Ecclesiastical cause perhaps at the instance of a party against any Community as Dean and Chapter Master Fellows and Scholars of any Colledge c. In the body of which title the manner of proceeding against any Mayor and Community of a City particularly that of London is described whence I make this Collection That what is declared as a matter to be observed in Ecclesiastical practice when occasion requires a proceeding against any Mayor or Community of a City that does certainly imply that such a Mayor and Community are subject to Ecclesiastical jurisdiction and consequently to such penal coercions and censures the matter so requiring it as are properly inflicted thereby Hitherto concerning the first particular that this position is agreeable to the Ecclesiastical Law 2. As this position is agreeable to the Ecclesiastical Law so it is not repugnant to the Kings Temporal Laws or the Municipal Laws of these Kingdoms It is not repugnant to the Statute Law The Statute called Magna Charta confirmed by King Henry the Third in the Ninth year of His Reign and by so many Kings since this Statute said to be the Ancientest written Law that is now extant and the Breviate and Summary of all the written Laws of England and most beneficial to the Subject declares in the first Chapter thereof That the Church of England shall be free and have all her Holy rights and liberties inviolable * Et habeant omnia jur a sua integra that is all Ecclesiastical persons shall enjoy all their lawful jurisdictions and other rights without any diminution or substraction whatsoever D. Coke on Magna Charta cap. 1. Jura sua sayes the same Author ibidem prove plainly that no new rights were given to them but such as they had before hereby are confirmed so that it followes that what amplytude and fulness of jurisdiction they had before is hereby confirmed In the Thirty seven Chapter of the said Statute There is a Reserve to all Archbishops Bishops c. Of all their Liberties and Priviledges one branch of which Liberties and Priviledges and Rights is this power of jurisdiction over all persons in their respective Diocesses Edward the first the Son and Successor of this King ordained the Statute called circumspecte Agatis in the thirteenth year of His Reign It has been affirmed concerning this Law that it was a prelatical Constitution because inserted in the Provincial Constitutions in the title de foro competenti or at the most one onely of the Kings Writs issuing out on some occasion leading thereunto But to confirm the Authority hereof My Lord chief Justice Coke determines of it after this manner though some have said this was no Statute but made by the Prelates themselves Yet that it is an Act of Parliament is not only proved by our Books but also by an Act of Parliament Instit p. 2. p. 487. In this Statute then set down as a boundary betwixt the Spiritual and Temporal jurisdiction full power and authority is given or confirmed rather to the exercise of jurisdiction Ecclesiastical over all persons indistinctly in such cases as belong to and are mentioned in it In the Ninth year of His Son and Successor King Edward the second came forth the statute called Articuli cleri by the form and purport of which it appeareth that for any matter Ecclesiastical indefinitely Men may be cited and if cited then subject to all judicial consequences therein In the Twelfth Chapter of this statute The question is put Whether the Kings Tenants be subject to the Ecclesiastical jurisdiction as others are and if they may be Excommunicated for their manifest contumacie and after forty dayes continuing so whether they may be signified and attached by the Kings Writ The answer given to the question is such It was never yet denyed nor shall be hereafter * The close of which Statute is after this manner Ratifying confirming and approving all and every of the Articles aforesaid with all and every of the Answers made and contained in the same do grant and command them to be kept firmly and observed for ever willing and gran ting for us and our Heirs that the foresaid Prelates and Clergie and their Succeâ—sors shall use execute and practise for ever the jurisdiction of the Church in the Premises after the Tenor of the Answers aforesaid without quarrel inquieting or vexation of our Heirs or any of our Officers whatsoever they be Poult Collect of statutes pâ— 101. in fine cap. 16. It seems the Kings Tenants supposed themselves such specially priviledged persons as to be thereby exempted from spiritual jurisdiction but that would not serve their turns And so a pari what would not be sufficient for them will not be sufficient for others though in office under the King During the long Reign
I say it is not For I will not be positive in what I am about to write but referring my self to better judgments I freely submit to their decisions herein This I propose then That all matters of contract arising from or upon causes originally of Spiritual cognizance are not excâ—â—ded from the Ecclesiastical Tribunal I put this case not much differing from that which we have before us Titius a parishioner of Dale with leave of the Parson and rest of the parishioners builds up an Isle or Out chappel adjoyning to the Parish Church of Dale and intends to reserve the same to himself and relations for the use of a burying place and undertakes to keep this Out-chappel from time to time in sufficient good and decent repair Notwithstanding this obligation so to do the repair of the same is neglected If the question were put to me before whom and in what Court Titius may be sued and compelled to make good the reparation thereof I should not doubt to answer that Titius may be proceeded against by the Ordinary ex Officio or impleaded by any voluntary Promoter of the Office in causa reparationis Capellae c. The Church wardens may present that neglect and the person guilty of it One Article usually given to present upon is this Whether the Church or Chappel in the Body and Chancel of it be in good repair If it be not through whose defaclt comes it to pass that it is not and this Article is grounded on the 93d Canon of this Church So then as the neglect and default is punishable by the Ordinary the reformation likewise thereof in making good the repair otherwise by contract undertaken for is to be enjoyned by the Ordinary Moreover Pensions out of Churches or any Annual Portion beeoming due from any Colledge Bishoprick Cathedral Church or Deanry to be paid to any Rector Vicar or Curate of a Parish Church if they be detained the same are demandable and to be recovered in the Ecclesiastical Court according to the Statute viz. 34 35 Hen. 8. cap. 19. Now the Right of paying any such Pensions and Annual Portions is grounded on Ancient-contract obliging thereunto In Compositions Real for Tythes made either between the Parson of one and the Parson of another parish for the stating and setling each others right and to prevent litigious impleadings of each other Also compositions made between the Parson and some one or more of his parishioners touching the not paying any Tythes at all but a certain setled and determinate sum in lieu thereof This is usual in this Kingdom for Mills that grind corn to compound for a certain sum to be paid instead of the Toll-tythe Now the Ecclesiastical Judge before whom these compositions are to be alledged may hear and determine thereof Tit. 120. Cler. Prax. Sir Thomas Ridley's View c. part 3. chap. 3. Sect. 6. Coseâ— Apol. p. 1. ch 10. There is a cause of Ecclesiastical cognizance called Negotium subtractionis Dotis causa nuptiarum promissae The case is thus Titius in consideration of Matrimony to be contracted and solemnized with his Daughter Partia by Sempronius promised Ten pounds to Sempronius The Matrimeny being solemnized and Titius not paying the promised sum Sempronius impleads him before the Ecclesiastical Judge for the same Titius sues out a prohibition Notwithstanding which Sempronius obtains a consultation wherein is affirmed That the Court Ecclefiastical may proceed therein This you may find reported by Dr. Cosen Apol. p. 1. pag. 26. And the several Opinions of Common Lawyers concurring therein More instances might be given of this kind to evince That all contracts arising from matters which are in their Original of Spiritual cognizance are not excluded from the Ecclesiastical Tribunal observe what is further said Although promises and contracts of Money are generally pleadable in the Courts of the common Law yet as Bracton writes Causae de rebus promissis ob causam Matrimonii in foro Ecclesiastico terminari debent quia cujus juris jurisdictionis est principale ejusdem erit accessorium And in another place he gives a reason for the same quia semper videndum propter quid aliquid sit aut permittatur Zouch Jurisdiction of the Admiralty p. 64. I do not affirm an absolute parity between these cases and that which is before us I refer'd my self before and do now still submit what is said to the judicious decisions of others But this is yet upon the supposal that what is objected was really so as is objected the contrary to which is most clear for as touching what relates to this Vindication there is no need at all to strain any doubtful or disputable case to make it favour the matter in hand for the contract here pretended was not insisted upon so as to make a foundation of any jurisdictive proceeding in the Ecclesiastical Court thereupon 'T is true the contract gave occasion to the Bishop to call upon and admonish the Mayor and Sheriffs of Waterford to look after what belonged to their duty to be done They being thus stirred up make rates levy and collect Money from the several Inhabitants for this end of repairing the Body of the Cathedral c. They receive the voluntary contributions for the Bells The Money thus levied collected and received is little disposed of for the uses intended The Church remains unrepaired the other works are neglected now what was regularly and legally to be done in this case was regularly and legally entred upon the work of reparation it self the accounting for Money levied raised contributed and received for that purpose and other matters relating to the Church are the grounds of this proceeding as by the several Acts of Court remaining in the Registry of Waterford may more fully appear Now that these are justisiable grounds whereon legally to found an Ecclesiastical proceeding comes to be made good which I shall do by laying down and proving these three Assertions 1. The rendring an accompt of Moneys given and received for pious causes and the right disposing thereof belongs to the Bishop within his own Diocess to call for and see performed 2. Reparations of Churches with all the incidents thereunto both by Temporal and Spiritual Law appertain to Ecclesiastical cognizance 3. The penalty of Praemunire will not be incurr'd by any Ecclesiastical Judge for making such proceedings 1. The rendring an accompt of Moneys given and received for pious causes and the right disposing thereof belongs to the Bishop within his own Diocess to call for and see performed Pious causes are set down in the Law to be of many and various kinds and to enjoy many and various priviledges for the many and various kinds of them see Leg. illud Leg. Sancimus Cod. de Sacro-sanctis Ecclesiis and Lindwood in cap. it a quorundam ad Verb. pias causas de Testamentis lib. 3. Provincial Constitut Among which these especially fall under our disquisition namely Legacies or other Donations
Sect. 37. And note sayes he That the Ecclesiastical Court hath cognizance of the reparation of the Body of the Church He instances in the Body of the Church because not-excluding the other parts mention is there made of the Parishioners to whom the repair belongs and who are to contribute to the same Dr Cosen in the First part of his Apology cap. 7 informs us thus touching this matter When a Prohibition was sued out sayes he for proceeding Ecclesiastically in a matter concerning the Reparation of the Body of a Church A judgement was given thereupon in a consultation to this effect which he sayes is recorded in the Register cited by him thus pag. 43. a. Vobis igitur significamus quod super emendatione reparatione defectuum corporis Ecclesiae juxta consuetudinem approbatam facienda procedere poteritis ea facere quae ad forum Ecclesiasticum nover it is pertinere 〈◊〉 a prohibitione non obstante And by reason of defects in the reparation of a Church sayes the same Author ibid. Money it self may lawfully be sued for in a Court Ecclesiastical as appears by another consultation Reg. pag. 48. a. And so it is provided in the very Stature of circumspecte agatis The words are these mentioned in it In which case none other penance can be enjoyned but pecuniary See Lindwood ad verbum Sub poena cap. Sint Ecclesiarum Rectores De Officio Archidiaconi Lord Coke de jure Regis Ecclesiastico p 9. 3. The penalty of praemunire will not be incurred by any Ecclesiastical Judge on account of any proceedings of this Nature The proof of this Assertion depends upon two things viz. The truth of the two former Assertions that the cause proceeded upon was properly belonging to the Ecclesiastical Tribunal and that the Bishop the Ecclesiastical Judge proceeding therein acted not by or from any foreign jurisdiction or power Both these are so manifestly true that I might supersede my self the labour of saying any more therein But because some mens mouths were opened wide and loud in that point as if when by Law they could not they would yet by their clamorous votes and confident affirmings involve the Bishop in the penalty of this Statute It will therefore I think be both a seasonable undertaking and proper to our purpose to write something more particularly concerning the same and the rather because the imputation of incurring the penalty contained in that Statute is oftentimes at least threatned against those that are careful and active in the discharge of their Office of Trust in matters of Ecclesiastical Jurisdiction It has been the observation of a late Historian Fuller Church History Book 4. p. 149. that this Statute of pramunire has had the hard hap not to be honoured with so many readings thereon as other Statutes And therefore I suppose the course now taken by me in speaking something hereof will appear the more excusable If not having opportunity of viewing the few readings that have been made thereon by the Learned in the Common Law I have recourse to such other Writers as upon some occasional emergency or other incidental matter have treated thereof The Writ of praemunire facias grounded principally on the Statute made in the 16 year of King Richard the Second cap. 5. is awarded against those that have procured any Process or Bull of the Pope from Rome or elsewhere for any Ecclesiastical place or preferment within this Realm or doth sue in any foreign Ecclesiastical Court to defeat or impeach the Kings Courts and the party offending herein is liable to grievous penalties mentioned in the said Statute This account of a praemunire as abstracted by him from the Statute I take from Sir Thomas Ridley in his View of the Civil and Ecclesiastical Laws p. 3. c. 1. Sect. 1. Some later Statutes sayes Dr. Cowell in the word praemunire do cast this punishment on other offenders As denying the Kings Supremacy the second time by the Statute 1 Elizab. 1. falls under the punishment of praemunire And by the Statute 13 Eliz. cap. 2. He that affirmeth the Authority of the Pope and refuses to take the Oath of Supremacy falls under the like penalty so they do likewise by the Statute of the 13 of the Q. cap. 1. that are seditious talkers or affirm the Q. Majesty to be an Heretick Now let us put all these together and whatsoever else is collected from the Statutes made before and after the Reign of King Richard the Second touching these matters Put all these I say together and what either in gross or tale will they make to disadvantage the matter we have in hand or what can be found either in the Bishop or his proceedings impeachable from thence Is it his being appointed to and setled in the Epâ—scopal See of Waterford and Lismore None can affirm that For he receives not this by any Bull from Rome but by Donation and Investiture from the King of England Is it the actual exercising of Ecclesiastical Jurisdiction within his Diocess That cannot be neither because he is not empowred to this by any Foreign Authority but by his Majesties Letters Patents for his Consecration and by His Majesties Letters Patents for restauration of the Temporalities Are any of his proceedings against the Kings Crown and Dignity No They tend not to promote any foreign power but to maintain the Kings Prerogative and Supremacy over all persons in causes Ecclesiastical Does he refuse to take the Oath of Supremacy or fall under any of those crimes mentioned in the Statutes of Q. Elizabeth and which are liable to the penalties of praemunire This cannot be said He took the Oath of Supremacy on other occasions required by Law And he took it as is appointed at the time of his Consecration Lastly are any things done by him whereby the Kings Courts are impeached and defeated Not this because He the Kings Ecclesiastical Judge in the Diocess of Waterford and Lismore hears and determines matters of Ecclesiastical cognizance in the Kings Ecclesiastical Court there according to and by the Kings Ecclesiastical Laws Whence then may we conceive arises this imputation of a praemunire There is indeed no ground for it but in the fancies and would I had not reason to say in the wishes of such as are so ill affected that they do not patiently endure the Episcopal office much less allow the exercise of any Jurisdiction by a Bishop Observation of former times and reading besides present experience of things now brings to our knowledge the restless practises of some that endeavour by all contrivances of wit and policy to load with odious charges the exercise of Episcopal Jurisdiction and if it may be done to draw it within the penalties appointed by this Statute of Praemunire yet there are many sober and wise men who have declared openly enough their opinion That as all Jurisdiction whatsoever in these Kingdoms is radically in the King and so an Union of Ecclesiastical and Temporal
Supremacy is in him there can therefore lie no Praemunire at this day against any man exercising Jurisdiction subordinately under the King which every Ecclesiastical Judge both doth and acknowledges himself to do See to this purpose Dr. Cosen in his Apol. p. 1. cap. 18. Sir Tho Ridley ut supra Dr. Cowell in the word Praemnnire Whatsoever sayes he is now wrought or threatned against the Jurisdiction Ecclesiastical by colour of the same Statute of Praemuniâ—e is but in emulation of one Court to another and by consequent a derogation to that Authority from which all Jurisdiction is now derived and the maintenance whereof was by those Princes especially purposed Nam cessante ratione cessat Lek Sir Thomas Smith a person of great judgment one who well understood His Sovereigns Right and Prerogative and wouâ—d not detract any thing in the least manner from it declares his sense herein after this manner Verum in praesentiarum Curia Christianitatis perinde atque caeterae omnes virtutem vim authoritatem imperium jurisdictionemque suam praeterquam Serenissimae Majesti Diademâ—ti Regio post immortalem Deum Potestati aut Principi accepta resert Nemini Id si verum esse concedas quod esse constat verissimum tum Sanctioni Statuariae de Praemunire nullus per Angliam locus relinquitur quando alibi quam in Curia Regis ac Reginae jus nullum dicitur De Repub Anglicana lib. 3. cap. 11. There is a certain word indeed in that Statute viz. alibi the Court of Rome or elsewhere and this word is supposed to be meant of and refer to Bishops Courts So I read that Fitz. herbert a great Lawyer reporteth it Tit. praemunire num 5. Howbeit saving all respect to so great a Lawyer yet this is judged by many grave and learned persons see those before mentioned to be a forced and groundless construction made thereof The word it self is of an ambiguous and variable signification it may refer to the Bishops Consistories and it may as well not refer to them it may refer to any Forreign Courts and Judicatories and any other Courts of these Kingdoms that are not Courts of common Law * So it seems it may refer to the Court of Admiralty in my Lord Coke's opinion 4. Instit cap. 22. or any Courts whatsoever most agreeable to the purport of that Statute wherein any thing is done in derogation of the Regality of our Lord the King it is a slippery and uncertain word none can take sure hold of it no determinate and precise meaning can be affixed to it This word then being so doubtful and uncertain and the penalty of this Statute being so severe as Imprisonment during life for feiture of Goods Lands Chattels Tenements Ejection out of the Kings favour and protection and since the noted Rule is this in poenalibus causis benignius interpretandum est L. 145. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 de Reg. Juris parag finali Now it would be so far from a benigne as to prove indeed a most rigorous sentence to pronounce the falling under so great a penalty on occasion of this expression so full of ambiguity and uncertainty May I presume with the good leave of the Learned in the Municipal Laws of this Kingdom to interpose my conjecture concerning this word Alibi or elsewhere for where there is ambiguity there is room for conjecture I have the ground of what I have to say from Dr Cosen Apol. p. 1. cap. 18. It was in the sixteenth year of King Richard the second that this Statute was Enacted that was in the year of our Lord One thousand three hundred ninety and three at which time and for some time after the Schism about creating of Popes which is reckoned and so called the Twenty ninth Schism Isaacksons Cronolog p. 353. was very rife and hot in agitation Boniface the Ninth was at Rome and Clement called the Seventh made by the French Cardinals was at Avignion in France here was at the same time as had been before two Popes actually exercising Papal Jurisdiction both making Cardinals and both striving to extend their power and authority so far that other Kingdoms as well as the places where they were resident might be under the influence thereof Now so it was that this Statute of Praemunire being intended for the utter exclusion of all Forreign Authority it might be judged necessary to cut off all intercourse betwixt the Kings Subjects and the Popes Consistory whether at Rome or elsewhere and that Processes and other judicial Writs as well dated from Avignion or any other place as from Rome might make the purchasers and pursuers of them liable to the penalties intended by that Statute But there is something further alledged here That although the Ecclesiastical Courts as now established are not in the general intent included within this Statute yet then surely they are when causes belonging to the Temporal Courts are by Ecclesiastical Judges retained and proceeded in I know it passes as a very current Opinion among many That for an Ecclesiastical Judge to deal in any cause not belonging to his Jurisdiction is Praemunire Great is the Authority that bears up this Opinion and for the greatness sake of the Authority many are the Adherers to it In my Lord chief Baron Boltons Justice of the Peace cap. praemunire There is first a recital of the several Statutes concurring in and concerning this crime then follows certain Book cases or resolutions as his Lordship expresses it added for the better explanation of those Statutes One of the said cases is to this effect viz. the 21. Note that the words of the Statute are in Curia Romana vel alibi which is intended in Curia Episcopi And therefore if a man be Excommunicated or profecuted in the Spiritual Court for a thing which appertains to the common Law he that prosecutes such a Suit is in case of praemunire for this there is alledged in the margent 5 Ed. 4. fo 6. Before I was stopped with what is thus set down and what I find affirmed by others to the same effect I was ready to say That it must be a very forc't streining of that Statute that will be able to wring such a sense out of it But who am I that I should oppose my obscure meaness to the authority of so great a person May I have fair leave therefore to offer only a few things to be considered of touching this matter in behalf of the Ecclesiastical Jurisdiction and the Judges belonging to the same And first whereas it is said that by the word alibi in the Statute is intended Curia Episcopi I refer the Reader to what has been before spoken of this particular thing and further I may now seasonably notifie one thing observable in the very Statute it self that may lead us by a more certain hand to perceive what this word alibi has a reference to and what it has not For whereas in the aforesaid Statute of
truly this is bad enough but not so bad neither as to bring under the guilt of praemunire If it were observe the consequence what that would be for it would as certainly and unavoidably expose a temporal Judge to the penalty of a praemunire if he proceed to hear and determine in a matter of Ecclesiastical cognizance because that is beyond his Commission as 〈◊〉 would expose a spiritual Judge to the same penalty that he intermeddles with causes of temporal cognizunce for observe well what Bracton sayes in relation to both Jurisdictions and the proper Judges of each Cum diversi sint hinc inde Jurisdictiones diversi Judices diversae causae debet quilibet ipsorum imprimis aestimare an sua sit Jurisdictio ne falcem videatur ponere in Messem alienam Again Non pertinet ad Judices Soeculares non pertinet cognoscere de iis quae sunt spiritualibus annexa sicut de decimis c. Bract. l. 5. c. 2. apud Hookerum Ecclesiast Pol. lib. 8. p. 218. I may be thought to have made a strange confident and odd inversion upon these two cases but for my share freely I do acknowledge that it is above the reach of my reason to conceive of any difference herein for as both Spiritual and Ecclesiastical Courts are now constituted deriving from the same Regal Supremacy that the Temporal Courts do the consequence is as good on one hand as on the other Indeed I should not have exposed my self to the censure of being thought too bold in the concerns of Temporal Courts and Temporal Judges especially in such an inversion as this so lyable to be frown'd upon But the truth is I found it made to my hand by the person whose name I have often used and whose Authority I much depend upon Is not sayes he the Prerogative Royal in and for causes Ecclesiastical as high and as rightly setled in the Prince and incident to Her Highness Crown and Regality as the same is for Temporal power and authority What cause is there then seeing seu alibi in the Statute signifieth in true construction any place â—hatsoever besides Rome That every holding Plea by an Ecclesiastical Court of a matter wherein it ought not to hold should at this time be reckoned a thing contrary to the Queens Regality more than dealing in any Ecclesiastical cause should be in any temporal Court at Westminster for no Statute of provision or praemunire assigneth these for causes which have indeed grown since by collections whil'st the Popes usurpation was continued in the Land Against which oftentimes the Remedy by prohibition could not serve the turn Cosen Apol. par 3. ch 7. p. 87. But admit the worst let there be a disparity allowed let the failing be on the Ecclesiastical Judges side yet still he is the Kings Ecclesiastical Judge And there is a favour alwayes on a Judges side so far as to presume That he is fit to Act in what he is appointed to and that he does Act according to what he is best informed of by his skill and from his conscience Sacrilegii instar est dubitare an is Dignus sit quem Imperator elegerit That persons merit and integrity is not to be doubted of whom his Princes will has appointed to any publick Office and Employment say the Emperors Grat. Valent. Theod. in Leg. Tertia C. de crimine Sacrilegii Now it is not to be rationally supposed that any one exercising the Office of a Judge will designedly and purposely hold Plea of such a cause which he either knows to be or is propounded to him as belonging to Temporal cognizance But it may so happen that by nearness and coherence of one cause with another that which indeed is a Temporal may be supposed to be an Ecclesiastical cause and if an Ecclesiastical Judge minding to do his duty as the nature of his office doth require do yet by resemblance and near coherence of one cause with another proceed in that which is Temporal shall this presently cast him under a Praemunire That is shall the exceeding some bounds and limits that the Prince under whom he exercises Jurisdiction has prescribed to him bring him under such punishments as the very enemies and underminers of his State are to endure This certainly were very harsh and rigorous I know nothing more to be declined than such an Office where the exercise of it puts a man into that ticklish and tottering condition That he is ready every day without that exact circumspection as is morally impossible for the carefullest man alive alwayes to have to fall into the greatest penalties and dangers It has been said That a corrivality betwixt the Ecclesiastical and common Lawyer has still made the one seek his own elevation by the depression of the other But here the common Lawyer has got an insuperable advantage over the other for let him but hold to this Opinion and by his Authority make it good That the bare holding Plea of a Temporal cause in an Ecclesiastical Court makes liable to the penalties of Prâ—â—munire and the contest is at end There will then be few that will care to study the Ecclesiastical Laws fewer that will dare to execute any Ecclesiastical Jurisdiction A grave and sober person delivers his mind touching this matter with a great deal of ingenuous freedom and truth Hoc Austerum supplicium speaking of Braemunire aliqui Jurisperiti nostri Lucri Ambitionis aestu accensi verborum quae in uno Statuto observant generalitatem ad quemvis levem Judicum lapsum praesertim Ecclesiasticorum nimis violenter extendunt sed hic corum candorem desideramus aliquorum etiam inscitiam lugemus Dr. Cowell Instit de Publicis Judicis Sect. 43. King James a wise and discerning Prince easily discovered the Grievances that this profession laboured under and was pleased earnestly to concern himself in redressing of them This great King speaking of the usefulness of the Civil and Canon Law among His own Subjects in matters of Pyracy Wills Marriages and things of like nature proceeds thus And this Law has been so much encroached upon sithence my coming to the Crown and so had in contempt that young men are discouraged from studying it and the rest weary of their lives that do profess it and would be glad to seek any other craft * K. James's Speech in the Star Chamber to the Judges about the 14th year of His Reign And some pages after in the same speech when He comes to give His particular charge to the Judges he has these words What greater misery can there be to the Law than contempt of the Law and what readier way to contempt then when questions come what shall be determined in this Court and what in that whereupon two Evils do arise the one that men come not now to Courts of Justice to hear matters of right pleaded and Decrees given accordingly But only out of a curiosity to hear questions of the
Jurisdictions of Courts disputed and to see the event which Court is like to prevail above the other and the other evil that does arise is this That Plea's are turned from Court to Court in an endless circular motion as upon Ixions wheel and this was the reason why I found just fault with that multitude of prohibitions And then having given a notable instance relating to what He had before spoken of in the concern of Ecclesiastical causes and their being turn'd off and tossed from Court to Court He gives this direction to the Judges Therefore the only way to avoid this is for you to keep your own bounds and nourish not the people in contempt of other Courts but teach them Reverence to Courts in your publick Speeches both in your Benches and in your Circuits Such was the rare providence of that wise King to keep up the Esteem of the Ecclesiastical Courts and with fair countenance and good encouragement to cherish the Professors of the Ecclesiastical Laws for the Ecclesiastical Laws are such that as Himself is pleased to testifie in another place of the same Speech in many cases cannot be wanting in his Kingdom Not permitting any encroachments to be made thereon much less that the Professors and Judges thereof should be terrified at every turn and awed with the heaviest poenal inflictions upon the least irregular motion and undue proceeding especially since other milder yet as effectual means are provided to rectifie such irregularities and reduce them to the right course again For the wisdom of our Princes has by express provision of Law so well ordered both Jurisdictions that as both flow from them so both shall be kept to prevent confusion in either within their proper bounds and therefore if the Ecclesiastical Judge intermeddles with any thing that appertains not to his Jurisdiction the same Royal Hand that gave forth other things to him restrains him in that And thus by Writs of Prohibition the Ecclesiastical Judge is stopped from proceeding in that which is reserved for another Tribunal And if it were not thus to what end would Prohibitions serve wherefore were they invented why should so solemn a proceeding be before they are granted why so long debating and consulting before they cease and lose their force Lastly why not laid aside as superfluous and needless things after Praemunire was established In the third year of King James certain Articles of Complaint were Exhibited by Archbishop Bancroft before the Kings Majesty and His most Honourable Privy Council touching Abuses in granting Prohibitions The matter mainly canvassed betwixt the Judges of both Jurisdictions was touching the right stating and setling the reasons and grounds of granting Prohibitions All along which contest there is not any the least mention made of Prohibitions granted with respect to the persons who were impleaded but only on the Account of the incompetency of the matter or cause which they were impleaded upon whereas it is acknowledged on both sides that where a matter truly appertaining to the Temporal Jurisdiction is brought into Plea before the Ecclesiastical Judge there any further proceeding in the same is and ought to be restrained by the Writ of Prohibition but it is not said at all that the penalty of Praemunire is incurred thereby And here let me entreat the Reader to fix his eye and understanding a little more intensely upon that which now follows In the twenty fifth and last of those Articles it is thus set down * Vid. Sir Ed. Coke second part of the Institutes of the Laws of England p. 617. Whereas for the better preserving of His Majesties two Supreme Jurisdictions before mentioned viz. the Ecclesiastical and the Temporal that the one might not usurp upon the other two means heretofore have been of ancient time ordained that is to say the censure of Excommunication and the Writ of Prohibition the one to restrain the encroachment of the Temporal Jurisdiction upon the Ecclesiastical the other of the Ecclesiastical upon the Temporal We most humbly desire your Lordships that by your means the Judges may be induced to resolve us why Excommunications may not as freely be put in ure for the preservation of the Jurisdiction Ecclesiastical as Prohibitions are under pretence to defend the Temporal especially against such contentious persons as do uittingly and willingly upon false and frivolous suggestions to the delay of Justice vexation of the Subjects and great scandal of Ecclesiastical Jurisdiction daily procure without fear either of God or meâ— such undue Prohibitions as we have heretofore mentioned At the reading of this Article I was in great expectation what Answer would be given thereto considering that the business of restraining either Jurisdictions encroaching on the other was thus brought to a short and plain issue for so it seems that if either the Ecclesiastical Court encroached on the Temporal or the Temporal Court encroached on the Ecclesiastical the coercive means applyable for the restraint of either were respectively these two viz. the censure of Excommunication and the Writ of Prohibition but Praemunire is not mentioned at all But come we to the Answer it self and therein we find a full and ample concession of all that is set down in the Article and so as it is set down there what the Ecclesiastical Judges had desired to be resolved in is granted to them according to the very stating thereof proposed by them Take the Answer in the very words thereof set down by the same Author The Excommunication cannot be gainfaid neither may the Prohibition he denyed upon surmise made that the matter pursued in the Ecclesiastical Court is of Temporal cognizance but as soon as that shall appear unto us judicially to be false we grant the consultation A thrifty improver of Advantages would find this concession useful to him in making and urging many inferences from thence to serve well his purpose but the intelligent Reader cannot but have his thoughts full of them and I shall therefore forbear the proposing of any only this I say That by what was set down in the Article and by what is declared in the Answer to it there appears plaiâ—ly That Encroachers on the Spiritual Jurisdiction â—re as subject to Excommunication as Encroachers on the Temporal Jurisdiction are subject to Prohibitions That which my present design leads me to is to conclude from hence That since Prohibitions are by Law the means of restraining any Encroachments on the Temporal Jurisdiction therefore Praemunire does not lie in that case And indeed how should it for is not every Ecclesiastical Court the Kings Ecclesiastical Court and the Laws Ecclesiastical are they not the Kings Ecclesiastical Laws And if in execution of these Laws by the Kings Ecclesiastical Judges there should happen any exceeding of due limits in those Courts as who can say of any Court that it never exceeds yet Praemunire cannot lie thereupon for as I may very well apply that which King James said in that Speech of His
these men did That a Bishop the Kings principal Ecclesiastical Judge within his own Diocess has put the Inhabitants of a City into very much disorder by such arbitrary and unheard of manner of proceedings when all the disorder proceeded from themselves and no other but legal proceedings have been used herein this comes very near the saying That they are wronged in spight of any thing that can be said against it and that if they to whom they make their Application will not believe and redress them as they would have it themselves they will venture to speak as hardly of them too They will commit faults and then complain and be pettish and froward if they be not stroak't and soothed up in their complaints He that charges any in subordinate power with arbitrariness of proceedings and may escape so will at the next turn charge as bad upon those that are in superiour Authority if he have but any matter of concern then at stake and may think to be secure when he does so This begins in the Ecclesiastical Courts but will it end there it's to be feared it will not Success impunity and hopes of being countenanced therein will embolden such men to go further even to pronounce the like upon all judiciary proceedings in Civil Courts where their persons or interests are concerned and where they may be heard with freedom and safety of popular approbation it might pass for a pretty smooth contrivance for a Criminal to avoid the force of a judiciary sentence by first traducing it and to get free from the Obligation of submitting to what is decreed by affirming confidently and standing to it That the proceedings were illegal and therefore not to be obeyed If this would serve the turn who would be such a Fool as ever to be guilty or so careless of his own ease as ever to undergo any punishment But 't is worth the wonder of a sober man to think that any one should shew himself and believe others ought to think him serious herein But in truth what has preceded so much out-does this that all our wonder may be well spent upon it That men called to answer in Law should question the known and approved course and proceedings thereof carries something extraordinary with it but here is much more That they themselves should against Law so plainly fore-judge their own cause and their own persons as to exempt both from what and to confine them to what Jurisdiction they themselves best liked of The Enquiry into the absurdity unreasonableness and ill consequences of which and the evincing the Right of Episcopal Jurisdiction in the case in hand against any such illegal pretensions and attempts The putting a new mound about that ancient and established Jurisdiction which every pragmatical pettish and conceited Novelist is now seeking either by detraction in his speech or other crafty Machinations in his practice first to retrench a little and by and by utterly to abolish has hitherto employed my Thoughts and my Pen. In prosecution of which design it is now no more than time I should tell the Reader so much I have promiscuously made use of English Statutes since the time of King Henry the seventh and some memorable passages of Ecclesiastical Jurisdiction done in England as well as what peculiarly relates to this Kingdom And I cannot altogether deny but that I have done this for the Nonce for setting aside some particular Statutes relating to the peculiar state and condition of this Kingdom As to Ecclesiastical Jurisdiction we here conform in the practice and exercise of it and in the Rules and Laws it is exercised by to the same that are used in England If I be blamed for this I protect my self with what a Learned person has collected from Sir John Davys Reports in Case de commendam Ex quibus constat Hibernos sese accomodare non ad jura Anglicana tantum sed ad Leges Caesareas etiam jus Canonicum quatenus ea inter Leges Anglicanas admittuntur Dr. Duck de Authoritate Juris Civilis in Regno Hiberniae Sect 8. To whom I may add the Authority of that greatly Learned Prelate Primate Vsher for to this Chapter of the said Book as he did to all the rest he gave his particular Attestation under his own hand I mentioned at first two ends which I proposed to my self in this undertaking these I have had all along in my eye The one was that by the best reason I had and was able to improve and by the best authority I could find and was able to prâ—duce I might justifie the Right and in the present case the right proceedings of Ecclesiastical Jurisdiction and so give my self a true satisfaction therein The other end is to give a satisfaction to others also for what concerns my self I have sufficiently attained it for what concerns others I have at least endeavoured to do something in Order thereto FINIS Some mistakings or omissions in Pointing the intelligent Reader may easily observe and correct And that he may please to do the like in such Lapses as are either Literal or tend to vitiate the Sense they are here in one view set down before him ERRATA PAge 17 line 7 for Jurisdictions read Jurisdiction ibid. line 8 for cognizances read cognizance page 24 margent line 2 for Statutis read Statute page 25 line 29 for in read is ibid. line 32 for paenes read penes ibid. line 34 for sine read five page 26 line 4 for vir read viz. ibid. line 8 for tali read rati ibid. line 27 for sanctis read sanctio page 29 margent Sect. 2 for amplytude read amplitude page 30 margent line 32 for without read without page 32 line 16 instead of propper cause read a proper cause page 34 line 13 for Clerii read Cleri page 41 line 20 for Regie read Regiae ibid. line 32 for Prerogativa read Praerogativa page 44 line 34 for King read King page 56 line 26 for beee read been page 68 line 15 for cognizanced read cognizance page 73 line 12 for powers read power page 82 line 4 for has read had page 103 line 26 for diversi read diversae FINIS