Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	error_n	record_n	3,119	5	9.9836	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A28585	The continuation of An historicall discourse of the government of England, untill the end of the reigne of Queene Elizabeth with a preface, being a vindication of the ancient way of parliaments in England / by Nath. Bacon of Grais-Inne, Esquire.	Bacon, Nathaniel, 1593-1660.; Bacon, Nathaniel, 1593-1660. Historicall and political discourse of the laws & government of England.	1651 (1651)	Wing B348; ESTC R10585	244,447	342

Power or Authority formerly had been or might be lawfully exercised for Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all manner of Errours Heresies Schismes Abuses Offences Contempts and Enormities she had therefore neither absolute Empire nor absolute Jurisdiction over the Churches neither Power to make declare alter or repeal any Law neither did she ever exercise any such Power but onely by Act of Parliament she had a Power over Ceremonies in the Worship of God which was given her by the Parliament to execute by advice and therefore was limited as also was all the remainder of her Power in Jurisdiction Ecclesiastical for she could do nothing in her own Person but by Commission and these Commissioners must be Natives and Denizons not Forrainers and the same to be but in certain Cases and with certain Process Some Cases of Ecclesiastical Cognisance were referred to Triall at the Common Law viz. Such as concerned the publique Worship of God in Cases of Forfeiture and Imprisonment Lastly neither had the Queen nor her Commissioners nor Bishops absolute Power over the Church-Censures no Censure was regarded but Excommunication and that no further then in order to the Writ De Excommunicato capiendo and in all Cases the same was to be regulated according to the Statute in that Case provided or by the Common Law in Case of Action in all which we finde no Jurisdiction in Cases Ecclesiastical that is absolutely settled in the Crown In matters Temporal the thing is yet more clear she never altered continued repealed nor explained any Law otherwise then by Act of Parliament whereof there are multitudes of Examples in the Statutes of her Reign and what she did by her Judges was ever under Correction A Woman she was and therefore could be no Judge much less in the Cases of Difference concerning her self and her Crown A Queen she was and might make Judges but she must go according to the Law new Judicatories she could make none nor judicially make declare alter or determine the Power of any Court or Judge in Case of Difficulty but by her Parliament as in the Cases concerning the Power of the Lord Keeper the Powers of the Commissioners of Sewers and charitable uses the Courts at Westminster and the County Courts in the severall Statutes concerning the same may more fully appear And which is yet of a meaner size her Power extended not to redress any inconvenience in process of Errour or Delay in Courts of Law nor to remedy Errours in Judgements Fines Recoveries Attainders or other matters of Record or Triall whereof the Statutes of her time are full and also the opinions and judgements of the Judges of the Common Law concurring therewith I mention not the power of life and member which without all contradiction hath ever been under the protection of the known Law so as upon the whole Account it will be evident that this Queen had no absolute Pre-eminence in all Cases but either in contra-distinction to forrain Power or the power of any particular person and not in opposition to the joint interest of the Representative of England Queen Mary comes next although a Woman as well as she yea her elder sister and predecessor yet came short of her in the point of Supremacy by a double submission both unto the Law of a Husband and of a forrain power in cases Ecclesiastical although the same was with such qualifications as it was much more in Title and pretence then in reality and so in the conclusion neither approved her self to be good Wife good Catholique nor good Queen She could be no good Wife because she was too great for her Husband within the Realm and resolved not to be without A Catholique she was but the worst that ever held her place her Father appeared what he was spake plain English and was easily discerned But she told the Pope a fair Tale of disclaiming Supremacy and reconciling her Kingdom yet none of her Predecessors did go beyond her in irregularity of her proceedings Before ever she called Parliament she settled the great Work of Reformation or rather Deformation in the Worship of God by single Proclamation and not onely took away the partition-wall of Doctrine by the like power but gave way and power to Persecution thereupon to arise before any power or Order from the holy Sea then so called inabled her thereunto And after that she declared her self convinced that she ought not to exercise Ecclesiastical Jurisdiction and by her Instructions forbade the Bishops to use in their Process that Clause of Regia Autoritate fulcitus yet even these Instructions had no other Authority then her own and nevertheless she still inforced the Execution of all matters concerning the publique Worship of God and Government of the Church when as yet the Pope had no admittance unto his ancient claim It is very true that the Pope long ere now had made a fair offer and the Queen had lent her ear but her Train was too great to move as fast as was pretended so as no meeting could be had till the Queens Marriage with Spain was past and such as were dis-affected found it was bootless to stop the Current of two such mighty streams of Power now joyned into one and so that unclean spirit returned seven times worse then when he went out and took Seisin meerly upon Repeal of the Laws made by Henry the eighth in the Negative without further Grant or Livery for though an express Embassage was sent to Rome to perform the solemnity of the submission yet the Pope died before the arivall of the Embassie and the solemnity failing left the Title of the Crown much blemished yet was it not wholly defaced for if the Statutes in Henry the eighth and Edward the sixths time did but confirm the possession its evident that the repealing of those Statutes took away no right from the Crown nor gave legal possession to the Pope that had formerly neither possession nor right but left him to his Remitter as in his ancient right or rather in his ancient wrong Yet right or wrong de facto he both did win and wear the Keys so long as the Queen lived and so far as she pleased for her devotion would not allow of absolute obedience in that kinde nor all for Gospel that the Pope said or did but by her self and Councel executed the powers of Supremacy of Jurisdiction in Church matters not onely in pursuance of the Papall Authority but in crossing the same where the Popes way crossed her opinion as in the cases of the War between her Husband and France and the Power Legatine of Cardinal Pool her condemning of Doctrines and Books to be Heretical by Proclamation establishing both Prayers and Dirges and other Orders of publique Worship whereof more fully in the publique Histories of those Times and in the Queens Injunction upon

the State would trust it with and because it pretended Cognisance onely of matters of Record before them they found out a way of examining of witnesses by Commission and returning their Depositions in writing which being become a Record before them they gave their Sentence upon the whole matter without the ancient ordinary tryall Per pares It becomes a kinde of Peculiar exempting it selfe from the ordinary course in manner of triall and from the ordinary rules of Law in giving of Sentence and as a back doore for the Kings Arbitry in case of Judicature in matters of Common Pleas as the Councell Table was in Crowne Pleas they both are looked upon with a very pleasing eye of Majesty which loves not to be straite laced yet all is imbattelled under the colours of Equity Honor Conveniency and Conscience like a Monopoly that is bred under the wings of the Publique but feeds it selfe upon it That this had attained the Title of a Court so anciently as in K. Stevens time as the Honorable Reporter noteth I much question by the Title that Fleta gives it in later times nor under his favour will that Testimony cited out of the History of Ely warrant it but upon a mistaken ground of misplacing the note of distinction for I take the words to be thus translated King Etheldred determined and granted that the Church of Ely should for ever in the Kings Court hold the dignitie of the Chancery and not hold the dignitie of the Kings Court of Chancery Neverthelesse its clear that these times brought it to that condition that it might well carry that name if formerly it had not For it grew very fast both in honour and power and this not by usurpation though it did exceed but by expresse donation from the Parliament Yet is this power much darkned in the limits and extent thereof chiefly in regard that the Chancellor is betrusted with many things whereof there is no evidence for the Chancery to claim any Cognisance For he was in these times a person of many interests and relations being one of the Quorum in the Star-Chamber of the Kings Councell chief in the Chancery most commonly a Clergy man and therewith Legate è latere and in these severall Relations might act directly and yet in severall Courts And therefore though he had power with others to punish neglects of Execution of the Statutes of Wines by Act of Parliament and also of the Statute concerning Victuall and to determine matters of controversie between parties in Cases depending before the Parliament and in some matters that concern the Kings Revenue yet cannot these be said to be the proper worke belonging to the Cognisance of the Chancery but to the Chancellor by speciall Commission in another relation Allbeit I cannot deny but the Court it selfe had Cognisance in matters of as strange a nature Viz. To punish disturbances of Merchants in their trade to see to the executing of the Statutes of Purveiors and to remedy greivances contrary to other Statutes which generall words let in a wilde liberty to that Court to intermeddle in Lawes which were never intended for their touch to punish Nusances according to discretion to give remedy to Merchants upon the Statute of Staple so that its clear enough the Parliament intended it should be a Court and gave their Seale to their power of Judicature Nor as it seemeth was this any regret to the Courts of Common Law but as a thing taken for granted For the Reports tell us that if the King grants Tythes arising from without the bounds of any Parish the Patentee shall sue in the Chancery by Scire Facias and shall there proceed to issue or demurrer and then to the common Law where upon triall if the Defendant make default the Plaintiffe shall have Judgement and Execution And if the Heire be in Ward to the King the Mother shall sue and recover her Dower in the Chancery And they tell us that it had power to prohibite Spirituall Courts and Courts of common Law yea to over-rule or reverse judgements and yet the common Law held its ground when it was concerned for neither were all suites there by Bill as in cases of Equity nor determined according to such rules nor did the power of Judicature rest in the breast of one Chancellor but in him joyntly with other Councell of the King which were also learned Judges of the Law For the Report informeth that Edward the Second had granted a Rent in Taile to the Earle of Kent who dying his Sonne under age and Ward to the King Edward the Third seised amongst other Lands the rent and granted it to Sir John Molins Upon Petition the King refers the matter to the Arch Bishop and others of the Councell calling to them the Chancellor A Scire Facias goes forth to Sir John Molins he upon appearance pleaded to the jurisdiction as a case belonging to the common Law but it would not be allowed because it was to repeale the Kings Charter And whereas it was objected that the reference was to the Arch Bishop and others and therefore the cause ought not to be determined in the Chancery it was resolved that it did properly belong to the Chancery by the Law And in the Argument of the case it appeares clearely that the Kings Councell there were learned in the Law And the same is yet more evident by the Title of Bills in those dayes exhibited in the Chancery which was directed to the Chancellor and the Kings Councell and the rule given Per tout les Justices which I rather note for the shortnesse of the forme of Bills in those dayes farre different from these times wherein the substance of the complaint however small in it selfe is oftentimes blowne out into so great a bubble that it breakes to nothing And the Statutes formerly mentioned do assert the same thing as touching the Kings Councell For though they speake of the Councell or Chancery in the English Tongue yet in the Originall the words are Conceill en Chancery Having thus touched upon the matters under the Judicatory of the Chancery and Judges in the same in the next place the manner of proceedings comes to consideration For it seems they had been formerly very irregular and that contrary to the Grand Charter upon a bare suggestion in the Chancery the party complained of was imprisoned and no proceedings made thereupon for remedy whereof it was ordained that upon suggestions so made the complainant was to finde Sureties to pursue the suggestions and that the processe of Law should issue forth against the party without imprisoning him and that if the suggestions were not proved true the complainant should incur the like penalty that the Defendant should have done in case be had beene found guilty but afterwards this later clause was altered by another Statute because it was full of uncertainty and it was ordained that in such case the Complainant

was holden to be before this Statute was made In the next place although it cannot be denied but the triall of Bastardy beyond the Sea might as well lye in the Cognisance of the Lay Magistrate as in that of the Ecclesiasticall yet seeing the Clergy had already attained the Cognisance of the thing the place proved but a matter of Circumstance especially they having the advantage of the Civill Magistrate in this That in regard the Ecclesiasticall Persons beyond the Sea had also obtained the Cognisance of that matter amongst themselves their Testimony or Certificate would come with more credit to the Clergy in this Kingdome then to the Civill Magistrate whose Cognisance in such Cases they did disallow Lastly concerning Priories whereas some were presentative and filled by Induction from the Ordinary and others were Donative having their Priors meerly at the will of the Abbot to be placed and displaced as he thought most expedient if then the point in Issue depends upon this knot this Law referreth the triall unto the Ordinary who by common Presumption best knowes whether any Institution and Induction had passed his Registry and Seale or not And thus though a kinde of Judiciall power seemeth to be carried along herewith yet is all in a ministeriall and subservient way unto the Civill Magistrate and neverthelesse with such credit and authority that the main hinge of the Judicatory in such cases depends upon the dash of their Penne. No Bishop nor Archbishop shall be impeached before the Civill Magistrate without the Kings expresse Warrant The former particulars concerned matter of Authority this and others insuing concern matter of immunity which or most of which were formerly for a long time within the Fancy of the Canon but never came to the height of Parlimentary approbation or authority till now that it comes in as a Peace-offering to pacifie the quarrell between the Arch-Bishop Stratford and the King For he being ingaged in the French Warres so resolved to continue and therefore to maintain distempers at home he held neither Honourable nor safe Their Temporalties shall not be wasted during the Vacancy Nor shall they be seised but by Judgement of the Court. The first of these was an ancient Law grounded upon great reason although dulled by time and by covetousnesse of the needy Patrons next to laid aside if not quite put out of countenance So as a new Law must be made to revive it and to abolish that corrupt custome or practice of depredating those Possessions given to a holy use in common supposall contrary to the trust by them undertaken and the use still continuing But the second Branch is in nature of a Law of Restraint set upon the Common Law for the persons of these Spiritualized men were of so aiery constitution as they could not be holden by hands made out of the Clay such as the rude Laity were and therefore the Civill Magistrate upon all occasions used to lay hold upon that whereof there was some feeling which were called Temporalties and thereby drew them to appearance at the Lay Courts for however Spirituall the Clergy were they would not easily part with their Lay Fees But now by this Law the times are so attenuated that the very Temporalties are made so Spirituall as not to be medled with by the Lay Magistrate unlesse upon judgement first obtained against them And sutably thereunto within twelve yeares following another Law was made more punctuall that their Temporalties should not be seised upon for contempts but that their Persons should be seised yet within twenty yeares after that this Law begins to be out of Countenance and the Opinions of the Judges began to grow bold upon the ancient rule that their Temporalties were Temporall though their Persons were Spirituall and that it was more dangerous to imprison the person of a Clergy man then to attache his Possessions And therefore they held that if the Ordinary remove not the Incumbent when the Kings Writ commands him so to doe his Temporalties should be seised And if the Ordinary should certifie one to be a Clerke which is none the like course is to be taken They shall depute the next and most lawfull Freinds of the Intestate to Administer his goods The Statute at Westminster the second having given formerly a kinde of allowance that the Ordinary should be Administrator to the Intestate so far as to answer the Intestates debts lent him thereby an opportunity to possesse himself of the whole to all intents and purposes which being observed by the Parliament by this Law they made way for Administration to fall through the hands of the Ordinary into the lap of Administrators made by the Authority of the Parliament but of the Ordinaries nomination according to the authority hereby to him given These Administrators thus made had a greater power then ever the Ordinary had or could give For though the Ordinary by the Statute at Westminster was bound to pay the Debts of the Testator yet could he never bring Action as the Administrator to all intents by this Law is inabled to doe And though it be true that the Administrator is by this Law ordered to account to the Ordinary yet doth not that intitle the Ordinary to any interest in the personall Estate but onely gives him a bare authority to take the account without any compulsory power by Ecclesiasticall censures to inforce him thereto Secondly it is such an account as is no Evidence in any Court of Record And Lastly if upon the foot of the account any arreare remained or surplusage of Estate the Ordinary could neither recover nor order the same because by the Law anciently the next freinds had the sole interest therein and being by this Statute made Administrators the whole power of ordering the Estate is vested in them To conclude this Statute was made in favour and for the ease of the Ordinaries if they would please so to take it for they could get no benefit by executing the Administration in their owne Persons if they intended to Administer according to the Law The Persons of the Clergy are priviledged from Arrests during the Holy Actions of their Officiating This was plotted since Anselmes time he and his Successors indeavoured by Constitution and Canon continually to minde the Civill Magistrate thereof but could never nurse it up to the Degree of a Law till now they gained the advantages of the times growing into a more tender apprehension of Devotion then formerly The penalty of transgressing this Law is left in generall and therefore did the lesse scare but within three yeares after it was confirmed with a certain penalty of Fine and Imprisonment as to the Kings suite and dammages to the party offended and the Priviledge was inlarged for and during their continuance in the Consecrated ground in order to such Services and not upon Fraud or Collusion to avoyde Arrests But by neither of these Lawes was the