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A40706 A dialogue betwixt Philautus and Timotheus in defence of Dr. Fullwood's Legas Angliæ against the vindicator of Naked truth, stiling himself Phil. Hickeringill. Fullwood, Francis, d. 1693. 1681 (1681) Wing F2499; ESTC R7930 24,716 36

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Tired and sore and art I believe heartily weary of the company of this same Totnes Arch-deacon as thou hast cause to complain p. 35. but thou must have patience a little longer while we make Hue and Cry after the Doctor 's fourth proposition lest if it should be lost Pag. 21. he sue thee for damages I have search'd Phil. as for a Needle in a bottle of Hay and at length I caught it by the skirts in p. 26. and afterwards as cast out into the Pag. 14. abstract of the premisses CHAP. XII The Doctor 's Fourth PROPOSITION The Act of 1 Eliz. 1. establishing the High Commission Court was not the foundation of ordinary Ecclesiastical Jurisdiction Tim. THou canst not but remember how fully and largely the Doctor both disproved and exposed thy singular Notion of this point and now with thy wonted Front taking little or no notice of the Author's discourse thou saist the same over again That Branch which gave the Queen power to settle the High Commission being repealed by 13 Car. 1. 12. For my part 't is beyond my apprehension to find out where the Authority of Ecclesiastical Courts can or does consist For thy part it's well thou speakst for thy self who is the dull fool now what not apprehend what every body else apprehends is a singular non-sensical notion and barrenness of Apprehension sufficient strength or warrant to batter Government Phil. I cannot beat it into my head who gave them that Authority they pretend to Not the Pope as of old not the Common I am sure nor can possibly the Canon-Law or Statute-Law ●●g 24. Tim. Well fare thee Phil what need of reason thou hast done all in a word and had not the Doctor demonstrated 1. That the Pope did never give us that Authority 2. That Ecclesiastical Jurisdiction is establish'd by Common-Law 3. By an infinite number of Statutes 4thly and lastly By that very Statute that takes off the power of the High-Commission we might have taken thy word but thou hast opened a wide door and set us in a large Field wherein we shall follow thee with patience upon the Heads mentioned and hasten to the end of our pleasant Journey SECT I. Our Ecclesiastical Courts not impowred originally from the Pope Phil. THat the Pope gave them their Authority of old is evident for the Arch-deacon rightly notes that till William the Conqueror there were no Bishops Courts in England but the Hundred Courts But the Pope made William the Conqueror set up such Ecclesiastical Courts as were at Rome to proceed according to the Canons of the Pope and was there ever any Statute made from William the Conqueror or rather Henry 3. to Hen. 8. but by the consent of the Popish Clergy that is to say the consent of the Pope their Head p. 6. Tim. Thou art a bold undertaker Phil. but is' t possible thou shouldst be ignorant that the Conqueror was not so much a slave to the Pope that he confirm'd and published the Laws of his Predecessor that he maintained the Ecclesiastical investiture in the Crown all which thou may'st find in Selden's Notes upon Eadm as also the Proclamation mentioned for the distinction of Courts seeing thou art at a loss about it Yea doth not that Law of the Conqueror suppose the prae-existence of our Ecclesiastical Jurisdiction tho' not in a distinct Court before the Conquest Yea canst imagine that when Spiritual Causes were tried in Hundret and at the Civil Courts of Judgment that Lay-men had any thing to do with them more than to be present quaere However did not the Doctor rightly observe that that very Law that divided the Courts was made by the King 's own power not the Pope's and with the Council of his own Realm alone Tho' William the Conqueror was a Papist doth it follow that he did nothing and made no Laws but quatenus a Papist and not as King of England Do not the Statutes of Hen. 8. and my Lord Coke plainly prove that Canons and Foreign Laws become the King's Laws when confirmed by Parliament or made so by reception voluntary consent or custom Must all our Laws before Hen. 8. and after the Conquest be thus damn'd for Popish Laws and the Pope's Laws and those too that were directly made in provision against the Pope himself and his Usurpations as before Was ever such stuff vented before it's well thou hast a Salvo rather from Hen. 3. tho' that also gives Sentence against thee SECT II. Ecclesiastical Courts by Common-Law Phil. BUT for him to say they keep Courts by Common-Law is the idlest of all dreams the Common-Law of England is ancienter than our Christianity But Bishops much less Arch-Bishops and Arch-Deacons as now in England are of later date therefore their Courts can have no foundation in Common-Law Tim. Thou art a Lawyer Phil. now with all thy Law canst thou deny this Proposition that long Ancient and general use is Common-Law in England as saith my Lord Coke or canst thou deny this Assumption that our Ecclesiastical Courts are of very ancient and general use in England if not as thou dost not dare what hinders this Conclusion that we keep those Courts by Common-Law 2. Again Phil. If there was such a thing as Ecclesiastical Jurisdiction in England before the Conquest as most certainly there was how stood it then thou grantest not by Canon-Law it was exercised contrary to the Canons I grant it stood not by Statute-Law viz. before we had any Statutes then it must stand before the Conquest upon Common-Law 3. And indeed since the Division of the Courts by the Conqueror the same ancient Ecclesiastical Authority is continued in its exercise as to its substance by Common-Law tho' in that new mode as distinguish'd from the Civil and in distinct Courts as matters of other nature that have their foundation in Common-Law tho' somewhat new modified by Statute continue to be Common-Law still so far as they are not altered as no Man of sence will deny 4. Yea the very Courts themselves tho' divided by the Conqueror continuing afterwards so long a time in general use in England before Statute-Law came thereby to be customary and contracted the nature of Common-Law and certainly there is no necessity that every particular in Common-Law should have its beginning before Christianity in England if it fall under the condition of ancient and general use and Phil. thou knowst that Statute that limits the time that is required to make a custom in England and before Christianity or from the beginning was never put into the definition of Common-Law 5. Lastly That they were so hath thus further demonstration That all the Statutes from Magna Charta suppose the Spiritual Court 's pre-existing i. e. by Common Law or ancient allowed usage of the whole Realm And my Lord Coke is express that Spiritual Causes belong to these Courts by Common Law But to put this crotchet out of thy head for ever I