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
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
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
them I cannot pass by although I do but touch at them the many Errors concurring in this latter Essay As that first the time of Appealing from that which they pretended themselves aggrieved with was lapsed when this Appeal was interposed Moreover that one and the same cause by the same persons at the same time was thus brought to tryal before two distinct Judicatories which is vexatious at least in those that procure the same to be done so That the intermediate Jurisdiction was passed by contrary to the ancient liberties and customs in such cases observed and which was among other matters digested into Articles and Chapters confirmed in the Parliament held at Clarendon in the Reign of King Henry 2d Anno Domini 1164. namely That all Appeals in England must proceed regularly from the Archdeacon to the Bishop from the Bishop to the Archbishop and if the Archbishop failed to do justice the last complaint must be to the King to give order for redress that is sayes my Lord Primate Bramhall Vindication of the Church of England p. 75. by fit Delegates See to this purpose The Statute of Appeals 24 Hen. 8. cap. 12. And this contrary to the 56 Canon of this Church Whereby the pain of Nullity is inflicted on all Acts which are sped in Appeals where the Jurisdiction intermediate is passed by for although it is true That the Kings Authority ought not to be disputed or disobeyed by any Subject where it does appear to be yet that must ever be esteemed a true and regular obedience which the King himself by Law has prescribed it should be And lastly supposing the Appeal entred by them to have been antecedently good that is good in respect of time and manner observed in interposing the same yet it is not good nor valid in its consequents because the time appointed for these pretended Appellants to receive their Apostles that is dimissory Letters from the Bishop or Judge Aquo intimating his deferring and yielding to the said Appeal and assigning of time for prosecution of the same is long since passed away without doing either And besides this slipping the Terminus Hominis that is the Term limited and appointed by the Judge from whom the Appeal is Moreover the primum fatale juris for prosecuting and ending of Appeals is likewise lapsed and no impediment can be warrantably alledged in favour and on behalf of the Appellants so as to enjoy benefit of restitution into and being allowed their secundum fatale or second year for prosecuting their former Appeal No impediment I say can warrantably be alledged by these Appellants to capacitate them for this restitution for although the matter and pretended Grievance complained of against the Bishop at the hearing thereof before the most Honourable Council was referâ—d to two Honourable Members of the same and in the issue thereof from those Hononrable Referrees something like the nature of a compromise was made between both parties which might seem sufficient to stop the running on of these Fatalia Juris namely in respect of the Complainants their engaging to perform what belonged to them to do and had been required from them by the Bishop as to give account of the Money received for the Churches use and making good the Reparation of the Body of the Cathedral and other particular matters before mentioned and in respect of the Bishop his promising to withdraw his proceedings against them thereupon Although I say this seeming compromise might appear as a sufficient ground of granting admission to the secundum fatale supposing the first to be irrecoverably past Nevertheless it is not at all sufficient thereto the reason is because conditions were not performed on which this respite and seeming compromise was grounded and this non-performance of conditions was on the Appellants own part The Bishop performed more than his part in desisting hitherto from any further proceeding against them And they not performing the conditions required on their parts not then nor since nor to this very day which yet they ought to have done forthwith the benefit therefore of the other fatale is not allowable to them but being uncapable of any restitution thereunto they are really in the lapse and the said Appeal may be pronounced pro desertâ and no advantage on the Appellants part to be expected therefrom And if the Bishop should thus pronounce and resume into his cognizance the whole proceeding again as there would be both Law and Right enough to justifie his so doing so there would be a want of both these and of every thing else that might be needful to make up a safe and warrantable defence for the Complainants It is a noted and approved Maxim in poenal proceedings That Contempts of all crimes are least capable of favour or lenity Upon the whole view it sufficiently appears how little of truth or reason this exception against the manner of proceedings has to bear its self up withall Look we upon the crimes censured they were deeply scandalous and provoking Look we upon the censure inflicted 't was comparatively to the crime and a greater censure that might have been inflicted moderate and easie Look we to the manner of proceeding it was proper and without the omission of any one requisite or formality that of right ought to be used therein Look we to the Order observed It was not loose and confused but grave and regular Look we upon the whole cognizance it self This was not hasty and precipitous but prudentially guided and proceeding with good maturity and deliberation convenient intervals of time dividing seasonably every Court throughout the whole Transaction and preventing any thing of surprize that might be suspected therein I pretend not much skill to these Affairs yet being upon the design of searching as well as I was able into the whole state of this matter I have viewed and reviewed the whole series of these proceedings with the several Acts of Court Decrees and other matters incident thereunto And according to the best of what I am able to judge I cannot find in the same where to fasten any Error no not in the very niceties and punctualities of practice much less in any material point and essential matter thereof And now after all If Offenders complaints against the forms and prescriptions of Courts may pass for just Exceptions and fair Vindications of themselves we shall have many crimes but few criminals many that will be bold to offend but few that will ever acknowledge their being legally convicted for their Offences 'T is high time for persons invested with judiciary power to look about them and provide some new wayes of securing the Authority of their judicial proceedings if every bold attempt to question the legality of them may pass for a justifiable Plea of not obeying them or imprint a nullity upon them When such Offenders so justly and mildly censured shall dare openly to tell my Lord the Kings Deputy and my Lords of His Majesties Council as
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
praemunire Anno 16. Richard 2d cap. 5. It is Ordained That none shall purchase or pursue in the Count of Rome or elsewhere any Processes Bulls c. nor the same bring within the Realm viz. these His Majesties Dominions This be it spoken under correction cannot rationally be intended de Curia Episcopi here within this Blealm the reason is plain because Curia Bomana velâ—alibi where such Processes and Bulls c. are purchased and pursued and from whence they are brought within the Realm these I say must be somewhere out of the Realm for the bringing in of a thing excludes the obeing of that thing there already but the Bishops Courts are within the Realm and none of these Processes brought into the Realm can be from them and therefore this word alibi has no reference to nor can it be intended of them Add hereunto That the occasion inducing this Statute and recited in the preamble to lit seems not all to favour this sense of the word The Coinmons in Parliament having with great vehemency and earnestness represented the several Grievances the Kingdom lay under among others these are especially mentioned viz. The Popes Excommunicating of Bishops for executing the Kings Commandments the Popes translating of them from See to See sometimes out of the Kingdom against their own and contrary to the Kings Will The Lords Spiritual being therefore demanded as the Lords Temporal had been before what their Advice and Will was in these cases The Archbishops and Bishops and other Prelates openly disclaimed the Popes insolent carriage towards the King and His Subjects and declared That they would and ought to stand with the King in these cases in lawfully maintaining of His Crown and in all other cases touching His Crown and Regality as they be bound by their Allegiance Whereupon sayes the Statute It is Ordained and Enacted That if any purchase or pursue c. from the Court of Rome or elsewhere c. May I not here well demand what relation either in the occasion or sense of the Stature can be made up betwixt Bishops Consistories and this word Alibi Bishops in their Jurisdictions were troubled by the Pope as the King Himself was in the right of His Crown both are complained of both redressed by this Statute How can that which is the Grievance complained of in the preamble of the Statute come to be the thing aggrieving in the latter part of it The truth is provision is here made against the setting up and abetting of all Forreign Authority but Domestical proceedings in Ecclesiastical Courts are not related to This I am confident to affirm by this Authority following The preamble sayes my Lord Coke from Pl. Com. fo 369. Stowells case in every Statute is to be considered for it is the Key to open the meaning of the makers of the Act and mischiefs which they intend to remedy Also from a case 4 Ed. 4. fo 4. 12. The same learned Judge declares thus Every Statute ought to be expounded according to the intent of them that made it where the words thereof are doubtful and uncertain and according to the rehearsal of the Statute and there a general Statute is construed particularly upon consideration had of the cause of making the Act and of the rehearsal of all the parts of the Act c. 4 Instit cap. 74. It is a general Rule allowed by all Laws in construction of Statutes Quamvis lex generaliter loquatur restringenda tamen est ut cessante ratione ipsa cesset cum enim ratio sit Anima vigorque ipsius legis non videtur Legislator id sensisse quod ratione careat etiamsi Verborum generalitas prima facie aliter suadeat Idem Ibidem And for the Book-case related to and the inference made therefrom hear what a learned person has delivered very fully and appositely concerning that not in answer to this Judges opinion for he wrote many years before him but to invalidate an Assertion of the same nature with this and from the same Book-case viz. 5 Ed. 4. fol. 6. praemunire and made by one he then contended with This case does but speak of the Excommunication by a Bishop and not of every dealing whatsoever in a matter belonging to the Kings Regality and what if it had been twice so adjudged both of them in such corrupt times when as the Royal Prerogative of the Kings of this Land to be Supreme Governors in all Jurisdiction Ecclesiastical due to them in Right and by Gods Law was not de facto united to the Crown For the Bishops then did not claim their Jurisdiction Ecclesiastical next and immediately under God from the Crown as now they do but seeing this part of Regal power is now no less truly and fully vested in the Crown than is the Temporal so as the Laws allowed for the Ecclesiastical Government are termed by sundry Parliaments the Queens Ecclesiastical Laws and Laws of this Realm as well as those that were first originally made here And the Bishops are proved to have their Authority and Jurisdiction Ecclesiastical derived down unto them from the Queens Highness under the Great Seal of England Is it then the like reason still to comprise their Jurisdictions and Courts under that word of Alibi as if their Courts and Jurisdictions were not now the Queens nor yet belonging to Her Regality Cosen Apol. p. 3. ch 7. Furthermore the holding plea of a matter belonging to the common Law by an Ecclesiastical Judge so constituted as he ought to be and now is does not tend to the disinherision of the Crown that is not to the impairing of any Regality Power or Preheminence belonging to the same and therefore cannot be the crime of praemunire The Statute 25 Hen. 8. cap. 21. declares concerning whom and how offending the Statute of the 16 Richard secundi was framed namely such as sue to the Court of Rome against the Kings Crown and Dignity Royal one Statute best explains another So then where the Authority that is acted by is the same a mistake in the matter to be proceeded upon or manner of proceeding in does not infringe that authority The reason is because the Kings authority empowring to act is still acknowledged and what is judicially done thereby proceeds by power derived from Him not from any power set up against him I presume it will be readily granted That the upholding and securing the Kings Supremacy in all causes and over all persons is that which principally if not solely is aimed at by this Statute And then it plainly follows that where that Supremacy is maintained no breach of that Statute can be made nor penalty incur'd by any for a mistake only of the matter that any Plea in Subordination to the King as Supream is held upon The worst that is to be said in this case is this That he who being a spiritual Judge does take cognizance of any temporal matter offends in going beyond his Commission and