The Court of the Arches Jt is called in Latin Curia de Arcubus which is the chiefest and ancientest Consistory that belongeth to the Arch-Bishop of Canterbury for the debating of Spiritual Causes So called of the Church in London where they sit and hold this Consistory called Bow-Church which is in Latin Arcuum Ecclesia and called Sancta Maria de Arcubus Which Church was dedicated to our Lady and had that Denomination at first of Bow-Church by reason of building of the top of the Steeple Bow-wise or Arch-wise like so many Bows bent The Judge of this Court is called Dean of the Arches because with this Officialty is commonly joyned a peculiar Jurisdiction of thirteen Parishes in London termed a Deanry being exempted from the Authority of the Bishop of London and belonging to the Arch-Bishop of Canterbury Of which the Parish of Bow is one and the chief because the Court is there kept 4. The Court of Audience The Court of Audience says Coke is kept by the Arch-Bishop in his Palace and medleth not with any matter between Party and Party of contentious Jurisdiction but dealeth with matters pro Formâ as Confirmations of Bishops Elections Consecrations and the like And with matters of Voluntary Jurisdictions as the granting of the Guardianship of the Spiritualties Sede Vacante of Bishops Admission and Institution of Benefices dispensing with Banes of Matrimony and such like 5. The Court of Faculties This Court belongeth to the Arch-Bishop And for the granting of Faculties there is under him an especial Officer called Magister ad Facultates The Master of the Faculties Now a Faculty in the Common Law is used for a Privilege or especial Power granted unto a Man by Favour Indulgence and Dispensation to do that which by the Common Law he cannot do As to eat Flesh upon days prohibited to marry without Banes first asked to hold two or more Ecclesiastical Livings the Son to succeed the Father in a Benefice and such like 6. The Court of Peculiars The Arch-Bishop of Canterbury hath a Peculiar Jurisdiction in divers Parishes within the City of London and other Diocesses c. 7. The Consistory Courts of the Arch-Bishops and Bishops Consistory says one is the Counsel-House of Ecclesiastical Persons and it is a word borrowed of the Italians 〈…〉 f. 338. or rather the Lombards and signifies as much as Tribunal It is Vocabulum utriusque Juris and is used for the place of Justice in the Courts Christian or Spiritual The Consistory Court of every Arch-Bishop and Bishop in every Diocess in Ecclesiastical Causes is holden before his Chancellor or before his Commissary in places of the Diocess far remote and distant from the Bishop's Consistory so as the Chancellor cannot call them to the Consistory without great Travels and Vexation And he is called Commissarius Foraneus From these the Appeal is to the Arch-Bishop of either Province respectively Official Note Officialis in the Canon Law is especially taken for him to whom any Bishop doth generally commit the Charge of his Spiritual Jurisdiction And in this sence one in every Diocess is Officialis Principalis whom the Statutes and Laws of this Kingdom call Chancellor 32. H. 8. c. 15. The rest if there be more are by the Canon Law called Officiales Foranci but with us are termed Commissaries 8. The Court of the Arch-Deacon or his Commissary This Court is to be holden where and in what places the Arch-Deacon by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Arch-Deaconry And from him the Appeal is to the Diocesan He is called Oculus Episcopi 9. The Court of Delegates This Court is so vulgarly called because these Delegates do sit by force of the King's Commission under the Great Seal upon an Appeal to the King in the Court of Chancery in these Causes 1. When a Sentence is given in any Ecclesiastical Cause by the Arch-Bishop and his Official 2. When any Sentence is given in any Ecclesiastical Cause in places exempt 10. The Court of the Commissioners of Review Ad Revidendum Albeit the Acts of 24. H. 8. c. 12. and 25. H. 8. c. 19. do upon certain Appeals make the Sentence definitive as to any Appeal yet the King after such a definitive Sentence as Supreme may grant a Commission of Review ad Revidendum C. 4. Inst 341. And so it was resolved in the King's Bench. Trin. 39. Eliz. Hollingworth's Case Thus much may suffice to have been spoken concerning the Episcopal or Ecclesiastical Courts I proceed to the Sixth Particularity 6. By whom only Bishops are commanded to certifie IT is to be known that none but the King's Courts of Record Co. Litt. 〈…〉 4. 〈…〉 10◠〈◊〉 2. 〈…〉 325. as the Court of Common Pleas the King's Bench Justices of Goal-Delivery and the like can write to the Bishop to certifie Bastardy Mulierty Loyalty of Matrimony and the like Ecclesiastical Matters For 't is a Rule in Law that none but the King can write to the Bishop to certifie and therefore no inferior Court as London Norwich York or any other Corporation can write to the Bishop to certifie but in those Cases the Plea must be removed into the Court of Common Pleas and that Court must write to the Bishop and then remand the Record again And this was done in respect of the Honour and Reverence which the Law gave to the Bishop being an Ecclesiastical Judge and a Lord of Parliament by reason of the Barony which every Bishop hath And this was the reason a Quare Impedit did lie of a Church in Wales in the County next adjoyning for that the Lordships Marchers could not write to the Bishop neither shall Cognizance be granted in a Quare Impedit because the Inferior Court cannot write to the Bishop And herewith agreeth Antiquity Nullus alius praeter Regem potest Episcopo demandare inquisitionem faciendam Bracton 7. Bishops Proceedings in Ecclesiastical Courts under the Name Style Seal of the Bishops how warrantable At the Session of Parliament holden Anno 4 o. Jac. Co. 2. I◠〈…〉 685 686. 〈◊〉 Lib. 12 〈◊〉 upon a Branch of an Act made at the first Session in the first Year of King James his Reign for Continuance and Reviving divers Statutes it was enacted that an Act made in the first Year of Queen Mary Stat. 2. c. 2. entituled An Act for Repeal of certain Statutes made in the time of King Edward the sixth should stand repealed and void A doubt was moved concerning the Bishops which was divided into two Questions 1. Whether any Bishop made especially since the first day of that first Session of Parliament were lawful or no 2. Whether the Proceedings in the Bishops or other Ecclesiastical Courts being made under the Name Style and Seal of the Bishops were warranted by Law And the reason of these two Doubts was this By the Statute of 1 E. 6 c. 2. it was enacted that Bishops should not be Elective
f. 97. a 134. a. 344. a. Co. 2. Inst. f. 3. Stat. 25. E. 1. Carlisle that all Arch-Bishops and Bishops of England have been founded by the Kings of England and therefore it hath been declared in Parliament that the Holy Church of England was founded in the State of Prelacy within this Realm by the King and his Progenitors But here then may be queried who were the first Founders of the Bishopricks in Wales It is answered 10. H 4.6 b. Co. Litt. 97. â—â—o 2. Inst. f. 195. On the Stat. of West 1. c. 17. That the Bishopricks in Wales were founded by the Princes of Wales and the Principality of Wales was holden of the King of England as of his Crown and when the Prince of Wales committed Treason Rebellion c. the Principality was forfeited and the Patronages of the Bishops annexed to the Crown of England So as the King is to have Pensions for his Chaplains and Corodies for his Vadelers of them as of Bishops founded by himself 2. To whom the Custody of the Spiritualties and Temporalties of Bishops do appertain Sede Vacante Co. 2. Inst 15. West 1. c 21. Magna Charta 5. Prerog Regis c. 14. Rolls Abr. 2. p. f. 223. THe Custody of the Temporalties of every Arch-Bishop and Bishop says Coke within the Realm and of such Abbies and Priories as were of the King's Foundation after the same became void belonged to the King during the Vacation thereof by his Prerogative For as the Spiritualties belonged during that time to the Dean and Chapter de Communi Jure or to some other Ecclesiastical Person by Prescription or Composition so the Temporalties came to the King as Founder And this doth belong to the King being Patronus Protector Ecclesiae in so high a Prerogative incident to his Crown as no Subject can claim the Temporalties of an Arch-Bishop or Bishop when they fall by Grant or Prescription 3. How Bishops were and how now made IT is apparented by our Books of Law and History Co. Lit. f. 134. a. 344. a. Co. Lib. 3 Dean and Chapt. of Norwich 's case Rolls Rep. 2. part f. 102. Davy's Rep. f. 46. a. de Capitulariter congregatis that at the first all the Bishopricks in England were Donative per Traditionem Baculi i. e. the Crosier which was the Pastoral Staff and Annuli the Ring whereby he was married to the Church King Henry the first being requested by the Bishop of Rome to make them elective refused it But King John by his Charter bearing Date Quinto Junti Anno Decimo Septimo granted that the Bishopricks should be Eligible which afterwards was confirmed by divers Acts of Parliament And afterward the manner and order as well of Election of Arch-Bishops and Bishops as for the Confirmation of the Election and Consecration is enacted and expressed in the Statute of the Twenty fifth of Henry the Eighth But by the Statute of the thirty first of Henry the Eighth and the first of Edward the Sixth they were made Donative by the King's Letters Patents Both which Statutes are repealed and the Statute of the twenty fifth of Henry the Eighth doth yet remain in full force and effect 4. Their Jurisdiction what and whence derived AS to the Jurisdiction and Authority that appertains to Bishops are considerable two Particulars 1. Whence this Jurisdiction is derived 2. The Extent and Subject Matters of this Jurisdiction 1. Whence derived The King of England is and of Right always was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his Dominions And this is evident our by Books The Right Reverend Prelate Matthew Parker Arch-Bishop of Canterbury a man very expert in matters of Antiquity affirms in his Book set forth in Latin Anno Domini Co. lib. 9. Hensloes Case 1573. Quod Rex Angliae olim erat Conciliorum Ecclesiasticorum praeses vindex temeritatis Romanae Propugnator Religionis nec ullam babebant Episcopi Authoritatem praeter eam quam a Rege acceptam referebant Jus testamenti probandi non habebant Administrationis potestatem cuique delegare non poterant It was resolved in the Tryal touching Legitimation Davy's Reports f. 51. b. 52. a. and Bastardy that although all Matrimonial Causes have been a long time determinable in the Ecclesiastical Courts and are now properly within the Jurisdiction and Cognisance of the Clergy Vide Davy's Reports Le Case de Premunire 97. b. 98. a. Yet Ab Initio non fuit sic For as well Causes of Matrimony as Causes Testamentary were Civil Causes and apertained to the Jurisdiction of the Civil Magistrate as it is well known to all Civilians until the Christian Emperors and Kings for the honouring of Prelates of the Clergy have granted or allowed to them the Cognizance and Jurisdiction in those Cases And therefore the Kings of England although they have allowed the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertained to their Cognizance yet by the Rules of the Common Law he hath a Superintendency upon their proceeding with power of Direction when and how they shall proceed and of Restraint and Correction if they proceed not duely and orderly in many Cases as it is manifested by the Writs of several natures directed to the Bishops whereby the King commands them to certifie Bastardy Excommunication Profession Accouplement in Loyal Matrimony Of Admitting Clerks De Cautione Admittenda c. And also by Writs of Prohibition Consultation and Attachments for Prohibition 2. What is their Jurisdiction For the deciding of Controversies says Sir Edward Coke and distribution of Justice there be two distinct Jurisdictions The one Secular and General for that it is guided by the common and general Law of the Realm Co. Lit. f. 96. a. The other Ecclesiastical limited to certain spiritual and particular Cases and the Court wherein the Causes are handled is called Forum Ecclesiasticum in which the Bishops are Judges and immediate Officers to the King's Courts of Justice in Causes Ecclesiastical Now the Spiritual or Ecclesiastical Causes accarding to the usage and custom of England are Blasphemy Apostacy from Christianity Heresies Schisms Holy Orders Admissions Institution of Clerks Celebration of Divine Service Rights of Matrimony Divorces General Bastardy Subtraction and Right of Tithes Oblations Obventions Dilapidations Excommunication Reparation of Churches Probate of Testaments Administrations and Accounts upon the same Symony Incest Fornications Adulteries Sollicitation of Chastity Pensions Procurations Appeals in Ecclesiastical Cases Commutation of Penance All which are determined by Ecclesiastical Judges That the Reader may the better know the Extent and Latitude of the Episcopal Jurisdiction and Authority let him take with him these Rules that I have met withal in our Books 1. Rule That where the Right is Spiritual Co. Lit. 96 a. and the Remedy therefore only by the Ecclesiastical Law the Cognisance thereof doth appertain to the
as before that time they had been but Donative by the King's Letters Patents Secondly By the said Act is provided that all Summons Citations and Process in Ecclesiastical Courts should be made in the Name and Style of the King and that their Process should be sealed with a Seal of the King's Arms c. And it was strongly urged that this Act of the first of Edward the Sixth was now in force and consequently all Bishops made at the least since it became of force by Election c. and not by Donation according to the said Act of the first of Edward the Sixth are unlawful and all their Process Proceedings being in their own Names Styles and Seals where by the said Act they ought to have been in the King's Name and under his Seal were all unlawful and void And to prove that the said Act of Ann. 1. Ed. 6. was now in force they alledged that this Act of the first of Edward the Sixth was repealed by the said Act of the first of Mary above mentioned which Act of Repeal being repealed by the said Branch of the first of Jacobus consequently the said Act of the first of Edward the Sixth was thereby revived For when an Act of Repeal is repealed the first Act that was repealed is revived and herewith agreeth the Book-Case in the fifteenth of Edward the Third Tit. Petition Pl. 2. And this is true and cannot be denied The King having understanding hereof and being informed of the Consequents thereof being matters tending not only to the infinite prejudice of his Subjects in Cases of great Importance especially if any Diocess had no Lawful Bishop or Ordinary but to the scandal and impeachment of his Majesty's Justice not only in those Proceedings but also in Administration of Justice in certain Cases in his Courts of Common Law at Westminster commanded his two Chief Justices to consider of the said Objections and to inform him of the true State thereof that either the scruple conceived might be cleared and satisfied or the Inconvenience if any were timely provided for and prevented who upon timely consideration had of the said Objection agreed the Law to be as the said Case was put as it had been taken But upon further search and consideration had other manifest and direct matters were found to satisfie and clear the said scruple and question which afterwards was agreed and resolved accordingly by the Chief Baron and other Judges then attending in the Upper House of Parliament For the understanding whereof it is to be observed that the said Act of the first of Edward the Sixth was repealed by three several Acts of Parliament viz. 1. By the said Statute of Ann. 1. Mar. in the whole 2. By the Act of 1. 2. Ph. Mar. c. 8. by sufficient words as concerning the Name Style and Seal of their Process c. And Lastly By the Statute of 1. Eliz. c. 1. the whole Act of 1. E. 6. is also repealed For Leges posteriores priores contrarias abbrogant And as a Man that is strongly bound with three Cords or Ligaments albeit one or two of them be untied or cut asunder remains bound notwithstanding by and with the second or third which remain firm and untouched so a Statute repealed by force of three several Acts remains repealed so long as any of them remain in force albeit one or two of them be made void And therefore although the Act of 1. Mar. be repealed by 1. Jac. yet the other two Acts remaining in force the Act of Ann. Prim. E. 6. remains repealed First therefore As to the Name Style and Seal c. in Ecclesiastical Courts it is enacted by the 1. 2. Ph. Mar. c. 8. in these words And the Ecclesiastical Jurisdiction of the Arch-Bishops Bishops and Ordinaries to be in the same state for Process of Suits punishment of Crimes and Execution of Censures of the Church with knowledge of Causes belonging to the same and as large in those points as the said Jurisdiction was in Ann. 20. H. 8. By which Clause if the Act of Repeal of 1. Mar. now repealed had never been made the Act of 1. E. 6. as to the Name Style and Seal in Ecclesiastical Proceedings had been repealed by this latter Act of 1. 2. Ph. Mar. Secondly But it was objected that the Act of 1. 2. Ph. Mar. which is the second Cord or Ligament is repealed by the Act of 1. Eliz. c. 1. To this it was answered and resolved that this second Cord or Ligament remains in force for true it is that the Act of 1. Eliz. repeals the Act of 1. 2. Ph. Mar. Secundum quid but not Simpliciter for the Act of 1. Eliz. doth repeal every Branch and Article of 1. 2. Ph. Mar. other than for such Branches as therein be excepted And afterwards by another Branch of the said Act of 1. Eliz. it is enacted that all other Laws and Statutes repealed and made void by the said Act of 1. 2. of Ph. Mar. and not in that Act specially mentioned and revived should stand remain and be repealed and void as the same were before the making of that Act. But that Act of 1. Ed. 6. as it hath been often said is sufficiently repealed by the Act of 1. 2. Ph. Mar. as to the Name Style and Seal c. and the Act of 1. Ed. 6. is not specially mentioned and revived by the Act of 1. Eliz. so the same remain repealed by the Act of 1. 2. Ph. Mar. Thirdly The third Act which clearly repeals and annuls the Act of 1 Ed. 6. as well for the making and constituting Bishops as for the Name Style and Seal of Process is the Act of 1. Eliz. c. 1. for that Act doth revive the Act of 25. H. 8. c. 20. and further enacteth that the same shall stand in full force and effect to all intents Constitutions and Purposes By which Act of 25. H. 8. it is enacted as followeth And that of every Avoidance of any Arch-Bishoprick or Bishoprick the Kinâ— his Heirs and Successors may grant to the Prior and Covent or to the Dean and Chapter a License under the Great Seal as of old time hath been accustomed to proceed to an Election of an Arch-Bishop or Bishop with a Letter Missive containing the Name of the Person which they shall elect and chuse c. And according to this Statute revived by Ann. 1. Eliz. all Arch-Bishops and Bishops at this day be made and if they were made according to the Act of 1. E. 6. they were unlawful And further it is enacted by the said Act of 25 H. 8. That every Person chosen elected invested and consecrated Arch-Bishop or Bishop according to the form and effect of this Act c. shall do and execute in every thing and things touching the same as any Arch-Bishop or Bishop of this Realm c. might at any time heretofore