LEGES ANGLIAE.

THE LAWFULNESS OF Ecclesiastical Jurisdiction IN THE CHURCH of ENGLAND, Asserted and Vindicated In ANSWER to Mr HICKERINGILL's Late Pamphlet Stiled NAKED TRUTH, the 2d Part.

Gen. II. ult.
Naked—but not ashamed.

By Fran. Fullwood, D. D. Archdeacon of Totnes in Devon.

LONDON, Printed for R. Royston, Bookseller to the King's most Excellent Majesty, at the Sign of the Angel in Amen-Corner, 1681.

TO THE READER

I MUST beg my Readers pardon, that I have not chastified so spiteful an Adver­sary, according to his merits and provo­cations; for I verily want his Talent, and dislike the Sport.

I confess that when a Divine of the Church of England, who hath also a share in her Go­vernment, when such a one shall be taken throwing dirt in the face of his Mother, Fa­thers, Brethren, and his own Profession, he cannot but expect to be lasht to purpose, and to be told roundly, that none but accursed Children and very fools would speak such Na­ked Truth.

Some Censors, that observe his endeavours, to make not only the Canons of the Church, but the very Canon of Scripture it self to vail to the Law of the Land, would charge him with the profaneness of Hobbs: yea, others that find him playing tricks, and sporting (according to his little wit) with the very names of Ca­non, Clergie, Church and Church-men; and scoffing at almost all that's Sacred, will take [Page] him to be at Hugh Peters's game, and running his wretched race.

But while he damns the Presbyterians, Inde­pendents, and the Fifth-Monarchy, together with the Church of England, he tempts the Wits to produce thirty one reasons to prove he is something, viz. a Papist; notwith­standing his drollery and railery about Foppery and Popery.

Lastly, For Pride, Envy, Wrath, Malice, Spite and Revenge, some say he is a very Angel of Light, and in somewhat more excellent; for the Scriptures witness that the Devil him­self spake many words both of truth and sober­ness; and that he seldom or never speaks like an Atheist.

For my part, I say nothing of him further than this, That if others can find Truth in the man, I cannot: And though I am sure he lies open and naked enough, yet I had never troubled my self to expose him, had it not been to secure the Government, and to preserve the Simple from being betray'd to the danger of the Laws by the insolent Rant of a pitiful Sophister.

THE PROEME

The Contents of it.

1. Power purely Spiritual of Di­vine Right. 2. Emperors con­firm'd Bishops-Canons. 3. The force of our Canons not from Rome. 4. Officers of our Courts. 5. Magna Charta. 6. The Authors Concessions.

1. DIscoursing in the following Treatise of the Forensic Jurisdiction of this Church, as Establish'd by the Law of the Land, we had no direct or necessary occa­sion to speak of the Churches Power, as purely Spiritual, touching Preaching, the Sacra­ments and Censures.

For this is certainly of Divine Right; and was given to the Church by Christ himself, with the Keys of the Kingdom of Heaven; and was [Page] accordingly exercised in the Apostles times, and several hundred years after, without the allow­ance of the Civil Magistrate; and was also sup­posed, allowed, and admitted as such in our own Kingdom; and by all the world, even with their receiving Christianity, without question or Alteration, as is evident in all our Histories: and indeed our own Laws exclude this purely Spi­ritual Power of the Keys from the Supremacy of our Kings, except it be to see that Spiritual men do their duty therein.

2. Neither doth it concern me to enquire what Power the Church had, and exercised after the Empire became Christian: only it seems very clear, that Constantine, and the other eminent Christian Emperors never made any Ecclesia­stical Laws without the Counsel of Bishops; but only in Confirmation, or for the Execution of Ec­clesiastical Canons: Yet it cannot be denied, but they called Councils; they approved their Canons; and afterwards enter'd them into the body of their Laws; and still ratified the Sen­tences of Ecclesiastical Judges with Civil penal­ties.

3. Nor yet is't my present Province to recollect what Influence Imperial Christian Rome had upon the Tender Age, and immature State of the new born Church of England: though we do not deny, but it might be considerable, both as to the Form and Order of our External Jurisdicti­on [Page] in our inferiour Ministers and ancient Ca­nons.

But how great soever it was, it was at first on­ly by way of Example and Direction: and when afterwards it was by Command, it was such Command, as according to the Rights and Constitution of this Church, had no Legal obli­gation upon us, but by our own consent; and as it became part of our own Establishment, either by Custom or express Law; upon such an oc­casion the ancient State of England cry out, Nolumus mutare Leges Angliae. This Realm hath been and is free from Subjection to any mans Laws, but only to such as have been devi­sed—within this Realm, or to such other as by sufferance of your Grace and your Progenitors, the people of this Realm have taken at their free liberty, by their own consent to be used amongst them; and have bound themselves by long use and Custom to the observance thereof; not as to the observance of the Laws of any foreign Prince, 25 Hen. 8. 21.

For (as Coke declares in Cawdries Case) as the Romans fetching diverse Laws from Athens, yet being approved and allowed by the State there, called them Jus Civile Romano­rum; and as the Normans borrowing all or most of their Laws from England, yet baptized them by the name of the Laws or Customs of Norman­dy; so albeit, the Kings of England derived [Page] their Ecclesiastical Laws from others, yet so ma­ny as be proved, approved and allowed here, by and with a general consent, are aptly and rightly called, The Kings Ecclesiastical Laws of Eng­land.

4. As for the Inferior Ministers in the Eccle­siastical Courts, that seem to be so offensive to weak people, that they are not Popish, or so slan­derously to be reported, there is this plain demon­stration, that these Courts are the Kings Courts, and the Laws thereof are the Kings Laws; and that notwithstanding all the severe Statutes, espe­cially since the Reformation, against all foreign Jurisdiction, and all such as act under, or by ver­tue of any foreign Power within this Realm; yet such Ministers are both permitted and required to execute their places in the said Courts by the Laws and Statutes of the Kingdom.

But grave Mr. Hickeringill saith, there is not the least Specimen of Chancellors, Regi­sters, Sumners, Officials, Commissaries, Advocates, Notaries, Surrogates, &c. or any ejusdem farinae in holy Writ: and hence 'tis learnedly inferred by some, that we have made so many new Officers in the Church of Christ.

But how witless and Quaker-like is this? and how unlike Mr. Hickeringill? I should suspect he would call for Scripture, for an hour-Glass, and for Clerks and Sextons, were it not that he is so palpably in the service of a vile Hypothesis, [Page] that will stand upon no better grounds; for he knows, that these are not so many new Officers of the Church, but only Assistants allow'd by Law under Bishops, and such other Spiritual men as have proper power of Ecclesiastical Jurisdiction: he knows there is no other Canon, but the Law of the Land; and that the Civil Magistrate hath power to tell us what is Scripture: and that he hath told us S. Paul's Epistles are so, where we read of helps in 1 Cor. 12. 28. Government; and that Chancel­lors, Commissaries, Officials and Surrogates are but such helps under different names, from the several ways and degrees of their Delegati­on: That Registers are but to make and keep the Acts of Court, &c. Advocates and Pro­ctors to order and manage Causes; and Appa­rators to serve Processe, and execute Mandates: and that none but one in Orders meddles with the Keys, either for Excommunication or Absolu­tion; Mr. Hickeringill is a man of great expe­rience in Spiritual Jurisdiction, and need not be told of these plain matters.

5. And seeing the Statist will not be quieted, but by Argument taken from Law; I have writ­ten the following Treatise, wherein I hope I have sufficiently demonstrated, that our Ecclesiastical Courts are Establish'd in the Laws and Sta­tutes of this Kingdom. Our Magna Charta it self, or the great Charter of the English Liber­ties [Page] doth suppose and acknowledge the Legal exer­cise of Ecclesiastical Jurisdiction by the foremen­tioned Ministers, as one of the Ancient Rights and Liberties of this Church; and doth also rati­fie, confirm and establish it for ever; at least in the Judgment of my Lord Coke, in these words.

This Charter is Declaratory of the Ancient Law and Liberty of England.—[Et habeat omnia Jura sua integra] that is, that all Ec­clesiastical persons shall enjoy all their lawful Ju­risdictions, and other their Rights, wholy with­out any Diminution or Substraction whatsoever: and [Jura sua] shew plainly, that no new right was given unto them, but such as they had before, hereby are Confirmed.

Libertates suas illaesas] Libertates are here taken in two Sences; 1. For the Laws of Eng­land. 2. For Priviledges held by Parliament, Charter or Prescription more than Ordinary. Coke Magna Charta. By all which Titles the Church of England (Ecclesia non Moritur, but Moriuntur Ecclesiastici) holds her Ancient Liberty of keeping Courts to this day.

6. Yet I do not say but the manner of proceed­ings in these Courts may be justly and reasonably altered, as his gracious Majesty may be advised; and yet the true Liberty of the Church be ra­ther fortified than Violated.

Therefore, after some Overtures made lately, by a far greater Person, in a larger Sphere, my [Page] Narrower subject may suffer me humbly to offer my thoughts touching some Alterations, that per­haps might not prejudice our Ecclesiastical Mini­sters, or their Courts; with all due submission to my Superiors.

These things following have been long in my thoughts.

1. That a speedier way might be appointed for the dispatch of Causes in the Spiritual Courts than the present Legal Rules thereof will al­low.

2. That trivial matters (such as small Tithes and Church-Rates) might be summarily ended, without exposing the solemn Sentence of Excom­munication, as is generally complain'd. Espe­cially considering that the Statute touching the Writ de Excom. capi. (as well as Vulgar ap­prehension) makes a difference in Original Cau­ses; though indeed the immediate cause of all Excommunication is always the contempt of the King's Ecclesiastical Jurisdiction, in not obeying, either its Summons or Sentence; both these perhaps may be contrived by wise men, without prejudice to the said Jurisdiction.

3. That there is reason to reascertain the Fees for Probates of Wills, and granting Let­ters [Page] of Administration, with some moderate re­spect had to the difference of the value of Mony, when the former Act was made, and at this time, so as the Officers in the Kings Spiritual Courts may live upon their Employment.

4. And why Excommunication decreed in Court may not be sent to the Parochial Minister, to be, not only declared, but Executed by him, as the Bishops Surrogate; and convenient time allowed him to endeavour to reconcile the offender, and to prevent the Sentence, if it may be, I see not, if that may give any satisfaction.

Such kind of Alterations perhaps may be ad­mitted without real prejudice to the Church, or rather with advantage, as well as those made by the Conqueror, when he divided the Ecclesia­stical from the Civil Courts: The Law by which he made that Division is famous, the clau­ses of it concerning this matter may be desired by the Reader, therefore I shall take the pains to transcribe them; they are these:

Willielmus Gratia Dei, Rex Anglorum, &c. William by the Grace of God, King of Eng­land—
to all—that have Land in the Bi­shoprick of Lincoln;

know ye all, and all others my faithful People in England, that the Episco­pal Laws, that have [Non benè] not well been exercised, nor according to the Precepts of [Page] holy Canons, even to me time in this King­dom (Concilio Communi) with Common Counsel, and with the Counsel of the Bishops and Abbots, and all the chief men of my King­dom, I judge (fit) to be amended. Moreover, I Command, and by my Kingly Authority in­joyn, That no Bishop or Archadeacon de Legibus Episcopalibus, hold (Placita) Pleas any long­er in Hundret, nor bring any Ecclesiastical Cause to the Iudgment of Secular men; but whosoever shall be called or questioned for any Cause ac­cording to the Ecclesiastical Laws, he shall come to the place which the Bishop shall chuse, and there shall answer for his Cause; and not secun­dum Hundret; and he shall do right to God and the Bishop; not according to the Hundred, but ac­cording to the Canons and Episcopal Laws.

—But if any through pride will not appear [Venire ad Justiciam Episcopalem] let him be called the first, second and third time, and if yet he will not come, let him be Excommunicated, and if need be, let the Strength and Justice of the King or Sheriff, ad hoc Vindicandum adhibea­tur—This also I defend, and by my Authori­ty interdict, that no Sheriff or other Minister of the King, or any Lay-man do intermeddle with the Laws which belong to the Bishop.

Give me leave to subjoyn a few Notes upon this Law of the Conqueror and I have done.

1. The substance and matters of Ecclesia­stical Power and Connusance, was the same long [Page] before this Law was made, and not Altered by it: 'twas a Law of King Alured. Si quis Dei rectitudines aliquas deforciat, reddat lathlite cum Dacis, witam cum Anglis: And the same is afterwards confirmed and renewed by Ca­nutus and other Kings: whereby it appeareth, that long before the Conquest the Authority and Jurisdiction of the Church was maintained by the setled Laws of the Kingdom; and that Ecclesiastical Judges had power so anciently to Excommunicate; and had the help of the King and the Sheriff to proceed against the obsti­nate.

2. 'Tis yet very remarkable, that for the form and manner of their Spiritual Courts and pro­ceedings before the Conquest, it was not here in England as it was at Rome; and therefore our most Ancient Church-Government was not deri­ved or Received from Rome: This Law ob­serves, that before the Conqueror, the Precepts of holy Canons, as to distinct Jurisdictions, were not observed in England; that is, the Ca­nons of the Imperial Church, for six or seven Hundred years before the Jurisdiction of that Church was divided from the Civil, even by the Emperor Constantine himself; but for so ma­ny hundred years before the Conquest, our Ju­risdictions were exercised together in Hundret, as the Law acknowledgeth, and is confessed.

3. We here see a plain Establishment of our Spiritual Courts, with power of Excommuni­cation, for non-appearance, in the letter of this Ancient Law, under the Kings defence, and enforced with the Secular Arm; and 'tis observable, that the distinction of the Ecclesiasti­cal from the Civil Courts, was made in the Kings own Name, and not the Pope's, by the Kings power and none other; with the Coun­sel of his own Subjects only, and not of Rome that we read of; and only with respect, and not in any obedience to the ancient Canons or foreign methods: And thus the Jurisdiction in our Courts Ecclesiastical as distinct from the Civil, is as far from being Popish in their Original, as it was when they were conjoyned; and therein so unlike to the distinct proceedings of the Spiri­tual power beyond the Seas so many hundred years before: And thus our Spiritual Courts, both before they were divided, and when they came to be divided from our Civil Courts, stand firm in the Ancient Laws of this Land.

4. There are certain great Epoche's of the Le­gal Establishment of the Churches power, which I shall but touch; 1. It was received with Chri­stianity, and grew and flourished by our Ancient Laws before the Conquest. 2. In the begin­ning of our Norman Constitution, it was thus distinguished and establish'd by the Conqueror. So it was in Magna Charta, the first Statute. [Page] 3. Ʋpon the Reformation in Hen. 8. it was re­establish'd. 4. So it was upon the Return of Reformation after Queen Mary by Queen Eliz. And 5. so likewise upon the Return of our present gracious Soveraign King Charles II.

5. Further, I hence observe, that some Alte­rations in Ecclesiastical proceedings may be made by Law, without any prejudice to the Churches power: 'Tis observed out of Spelman before, that by this Law the Conqueror did not lessen the Churches power: indeed some Inconvenien­ces are usually consequent to publick changes; and 'tis thought by our Civilians, that the many prohibitions which interrupt our Ecclesiastical Courts are occasioned by their being divided from the Temporal: but may not that inconvenience be accidental to that Division? Or if at any time there be just cause for the Church to com­plain in that respect, is it not rather of the Judg­es than the Laws or the Constitution?

But to the matter before us; admit, for In­stance, that after Summary hearing and Sen­tence of the Judge, in Cases of small Tithes, Church rates, and such trivial matters, a Ju­stice of the Peace, or some other person being le­gally certified, were impowered and obliged to grant Warrants of Distress: It seems to me a greater inconvenience in exposing Excommuni­cation in such light Causes would be hereby remo­ved, [Page] than any contracted by such an Alteration; and methinks no one should disdain the new Of­fice, seeing the Superior Judge hath been ever bound to issue out the Writ de Excom. Cap. and the Sheriff to imprison the party, upon a Certificate from the Bishop.

But I must humbly leave such things to wiser Judges.

THE CONTENTS OF THE CHAPTERS and SECTIONS.

CHAP. I.
  • THE general Proposi­tion.
  • The Ecclesiastical Juris­diction, as now Exer­cised in the Church of England, is Allow'd and Establish'd by the Laws of the Land.
  • Sect. 1. An Account of the Method. Page 1.
  • Sect. 2. Mr. Hickerin­gill's Reasoning Noted and Resolv'd. p. 2.
  • Sect. 3. The Propositions suggested by M. Hicke­ringill are these follow­ing. p.4.
CHAP. II.
  • Our Ecclesiastical Juris­diction in England was not derived from the Pope, but from the Crown before the Re­formation by Henry the Eighth. p. 5.
  • Proof against this Popish principle.
  • Sect. 1. From the root and branches of Ecclesiasti­cal Power, Donation, Investiture, Laws. p. 6.
  • Sect. 2. Jurisdiction. p. 7.
  • Sect. 3, 4, 5. p. 9, 11, 12.
CHAP. III.
  • King Hen. 8. did not by renouncing the Power pretended by the Pope, make void the Ecclesia­stical Jurisdiction: nei­ther was it void before it was restored by Edw. 6. 2. p. 13.
  • Sect. 2, 3. p. 16, 20.
CHAP. IV.
  • [Page]Ecclesiastical Jurisdicti­tion is lawfully exerci­sed, without the King's Name or Stile in Pro­cesses, &c. notwith­standing the 1 Edw. 6. 2. p. 22.
  • Sect. 1, 2, 3. p. 23, 24, 26.
  • Sect. 4. 1 Edw. 6. 2. Re­peal'd, appears from practice. p. 28.
  • Sect. 5. 1 Edw. 6. 2. Re­pealed in the Judgment of all the Judges, the King and Council. p. 31.
  • Sect. 6. Mr. H. Cary's Reason to the contrary considered. p. 36.
CHAP. V.
  • The Act of 1 Eliz. 1. Esta­blishing the High-Commission Court, was not the foundation of Ordinary Ecclesiasti­cal Jurisdiction in Eng­land, against Mr. Hickeringill. p. 41.
CHAP. VI.
  • How our Ecclesiastical Jurisdiction in Eng­land came at first, and is at present Establish'd by Law. p. 46.
  • Sect. 1. Jurisdiction of the Church in Common Law. p. 51.
  • Sect. 2. The Government Ecclesiastical is Esta­blish'd in the Statutes of this Realm. p. 54.
CHAP. VII.
  • Of Canons and Convoca­tions. p. 60.
  • The Conclusion. p. 64.
  • The Postscript. p. 67.

The Bookseller to the Reader.

THE absence of the Author, and his inconvenient distance from London, hath occasioned some small Errata's to escape the Press. The Printer thinks it the best instance of pardon, if his Escapes be not laid upon the Author, and he hopes they are no greater than an ordinary understand­ing may amend, and a little charity may forgive.

R. Royston.

CHAP. I. The General Proposition.

THE Ecclesiastical Jurisdiction, As now Exercised in the Church of England, is Allow'd and Establish'd by the Laws of the Land.

SECT. 1. An Account of the Method.

AFTER so many hundred years confirmation, both by Law and Practice, 'tis a marvellous thing this should be a question: yet, of late two worthy Gentlemen, treading in the steps of some former Male-contents, have ventured to make it one. Mr. Edmond Hickeringill, and Mr. H. Cary: the first, in his Book called Naked Truth, the Second part: the other, in his, modestly stiled, The Law of England: And it is to be ob­served, [Page 2] they were both Printed very sea­sonably for the setling our distractions through the fears and danger of Popery.

I shall note what they say, discover their gross and dangerous mistakes, answer and remove their pitiful Objections, and then endeavour to satisfie ordinary and honest enquirers both that, and how our Ecclesia­stical Jurisdication stands firm and unshaken upon the basis of our English Laws.

SECT. II. Mr. Hickeringill's Reasoning Noted and Re­solv'd.

Mr. Hickeringill is pleased to say, that upon the Stat. 1 Eliz. 1. was built the High Commission Court, and the Authority of all Canon-makers Synodical; but down came the Fabrick, when that Act was Repealed by 17 Car. 1. 11. and 13 Car. 2. 12.

Where provision was made by striking at the foundation 1 Eliz. 1. that no more Commissions of that nature be granted any more; only the Spiritual Courts by 13 Car. 2. 12. were to be in Statu quo, wherein they were 1639. What state? no great I'le warrant you, if the Basis, on which their Star-Chamber and High-Commission-Court were built, be taken away.

All Ecclesiastical Jurisdications till Hen. 8. were derived from the Pope, as Supream of the Church: this Head being beheaded, the [Page 3] Supremacy was invested in the Crown.

But 1 Edw. 6. 2. Enacts, that all Process Ecclesiastical should be in the Name and with the stile of the King, &c. So that if there be any Ecclesiastical Jurisdiction in England distinct from his Majesties Lay Courts, all their Processes must be in the Kings Name, &c.

'Tis true 1 Edw. 6. 2. is repealed by the 1 Mar. 2. but I care not for that, for 'tis revived by the Act of repeal 1 Jac. 25.

The Clergy in Convocation acknowledg­ed in their Petition, that their Ecclesi­astical power was at that time taken away.

So that their present Jurisdiction (being not from God; that's certain) 'tis not from Man, because his Majesty has promised 13 Car. 2. 12. never to empower them with any more Commissions to the worlds end.

But this I do not peremptorily assert.

I here protest, I know not by what Au­thority we do these things, considering the premises, and the repealing of 1 Eliz. 1.

By the Statute of Hen. 8. all these Ordina­ry Jurisdictions were cut off, and were re­vived by 1 Edw. 6. upon Conditions only.

This is the very Naked Truth, under his first Query, and in his Conclufion, and up and down this worthy Book; that is, such a shabbly lawless Logick; such a rude and shatter'd way of reasoning, as deserves to be reduc'd with a rod, and lasht into method and sence, and better manners.

Especially if you single out his false and sturdy begging Propositions; fraught with [Page 4] a wretched design of robbing his own Mo­ther, in the Kings high way, with which he challenges passage to cheat and abuse the Country.

My business is only to apprehend the Va­gabonds, and commit them to the justice of some more severe and smarter hand.

SECT. III.

The Propositions suggested by Mr. Hickerin­gill are these following.

I. That before Hen. 8. all Ecclesiastical Jurisdication in England was derived from the Pope: as Mr. Cary, p. 6.

II. That Hen. 8. when he annex'd the Ecclesiastical Jurisdiction to the Crown, he took it wholly away from our Ecclesiasti­cal Ministers.

III. That the Church had no Jurisdi­ction after Hen. 8. had annex'd it to the Crown, till 1 Edw. 6. 2.

IV. That if there be any Ecclesiastical Power in our Church, it cannot be execu­ted, but in the Name and with the Stile, &c. of the King, according to 1 Edw. 6. 2.

V. That all our Ecclesiastical Power was lately founded in 1 Eliz. 1. as it esta­blish'd the High-Commission-Court; [Page 5] and that Act being Repeal'd, all Ecclesi­astical Power was taken away with the Power of that High Commission.

On a Rock consisting of these Sands, stands our mighty Champion, triumphing with his Naked Truth; but we come now to sift them.

CHAP. II.

Our Ecclesiastical Jurisdiction in Eng­land was not derived from the Pope, but from the Crown before the Refor­mation by Henry the Eighth.

DARE any Protestant stand to the contrary? had the Pope really Autho­rity here before Henry the Eighth? did our Bishops indeed receive all their power, ex­ercised so many hundred years together, originally from the Pope? was not their Po­litical Jurisdiction derived from and depen­ding on the Crown Imperial? and founded in our own Laws, the Customs and Statutes of the Realm? are these the Popes Laws, and not the Kings? was there not Ecclesia­stical power in England, both for Legislati­on and Execution ab origine, before the Pa­pal Ʋsurpation? was not Popery at first, and all along, till Hen. 8. an illegal usurpation upon our more Ancient Government, ne­ver [Page 6] own'd much less establish'd in the true & Ancient Laws of England, and under that very Notion rejected and expelled by him?

How then did our Bishops, &c. derive all their power from the Pope before Hen. 8. to say so, is not more like an Hobbist than a Papist. I thought I had caught an Hobby, but War-Hawk.

Proof against this Popish principle.

SECT. 1.

From the root and branches of Ecclesiastical Power, Donation, Investiture, Laws.

I. It was a known Law long before Hen. 8. that the Church of England was founded25 Edw. 3. 25 Edw. 1. in Episcopacy by our Kings, &c. and not in the Papacy.

II. The Collation and Donation of Bi­shopricks, and Nomination of Bishops did always belong to the King; yea all the Bi­shopricks in this Realm are of the Kings Foundation: and the full Right of Investi­ture was ever in the Crown. Coke 1. Inst. 2. S. 648. to deny it may be a praemunire.

III. When once the Bishops are legally invested, their proper Jurisdiction came in­to35 Hen. 8. 20. their hands, by the Laws, without any power derived from the Pope: Who saith otherwise, knows nothing, or means ill.

IV. It was acknowledg'd, That Convo­cations are, always have been, and ought to [Page 7] be Assembled by the Kings Writ only: 'tis Law, 35 Hen. 8. 19.

V. As the power to make Laws for the Church was ever in the King, so the Laws themselves must be his, and none other bind us. This Realm Recognizing no Superiour 35 Hen. 8. 21. As 16 Rich. 2. 5. under God but the King, hath been, and is free from any Laws, but such as have been devised within this Realm, or at our Liberty, have been consented to, and made custom by use, and not by any foreign power.

SECT. II. Jurisdiction.

THUS our Ancient Ecclesiastical Go­vernours and Laws depended upon the Crown, and not upon the Pope, by the Laws of England, and in the Judgment of all the States of the Kingdom before Han. 8. and so did also the execution of those Laws by those Governours in the same publick Judg­ment: a little better than Mr. Hickeringill's Popish opinion.

2. In fundry old Authentick Histories and Chronicles, it is manifest, that this Realm is an Empire, having an Imperial Crown, to which belongs a body Politick, compacted of Spiritualty and Temporalty: furnished thus, with—Jurisdiction to yield Justice in all causes without restraint from any fo­reign Prince.

The body Spiritual having power, when any Cause of Divine Law hapned to come in question, the English Church, called the Spiritualty, which always hath been repu­ted, and also found of that sort, for know­ledge, &c. (without any exteriour person) to declare and determine all such doubts, and to administer all such offices as appertain to them: for the due administration where­of the Kings of this Realm have endowed the said Church both with honour and possessions: both these Authorities and Jurisdictions do conjoyn in the due Administration of Justice the one to help the other.

And whereas the King his most noble Progenitors, and the Nobility and Commons of this Realm at divers and sundry Parlia­ments, as well in the time of King Edw. 1. Edw. 3. Rich. 2. Hen. 4. (all which were certainly before Hen. 8.) and other noble Kings made sundry Ordinances, Laws, Statutes, and provisions for the entire and sure preservation of the Prerogatives and Jurisdiction Spiritual and Temporal of the said Imperial Crown, from the annoyance and Authority of the See of Rome from time to time, as often as any such attempt might be known or espied. Vid. 25 Hen. 8. 12.

These things plainly shew, that the whole State in Hen. 8's. time was not of Mr. Hickeringill's mind; but that before that time, the whole power of the Church was independent on the Pope, and not de­rived from him, but originally inherent in the Crown and Laws of England, whatever [Page 9] he blatters to the contrary. Vid. 25 Edw. 3. Stat. 4. cap. 22. pag. 123. Sect. 3. 27 Edw. 3. cap. 1. & 38 Edw. 3. c. 4. & Stat. 2. c. 1. 2 Rich. 2. cap. 6. 3 Rich. 2. c. 3. S. 2. 12 Rich. 2. c. 15. & 13 Rich. 2. Stat. 2. c. 2. 16 Rich. 2. c. 5. 2 Hen. 4. c. 3, & 4. 7 Hen. 4. c. 6. 9. Hen. 4. c. 8. 1 Hen. 5. 7. 3 Hen. 5. Stat. 2. c. 4. Adde to these Mr. Cawdries Case in my Lord Coke, and he must be unreasonably ill affected to the Church of England, that is not more than satisfied, that the chief and Supream Governours thereof, were the Kings of England, and not the Pope, before the Reign of Hen. 8.

3. Also it was the sence of the whole Kingdom, that the Pope's power and Juris­diction here, was usurped and illegal; con­trary to Gods Laws, the Laws and Statutes of this Realm; and in derogation of the IMperial Crown thereof: and that it was timorously and ignorantly submitted unto, before Hen. 8. as the words of that Statute are, 28 Hen. 8. cap. 16.

SECT. III.

BUT if our Gentleman be wiser than to believe their words; the matter is evi­dent in our ancient Laws, and constant practice accordingly, before Hen. 8. his time: Indeed all the Statutes of provision against foreign powers, are to own and de­fend the Ecclesiastical Jurisdiction at home, under this Crown. Yea all the Statutes made [Page 10] on purpose, to restrain and limit the Spiri­tual Jurisdiction in certain cases, and re­spects, do allow and establish it in others, exceptio confirmat Regulam in non exceptis.

2. Much plainer, all the Statutes that prohibit the Kings Civil Courts to interrupt the Ecclesiastical proceedings, but in such cases, and the Statutes granting consultati­ons in such cases; and the Statutes directing appeals in the Spiritual Courts, and appeals to the Chancery it self, and the Laws ratify­ing and effectually binding their Sentence by the Writ de exc. cap. much more plainly do these establish the Ecclesiastical Jurisdiction in the laws of the Land, before Hen. 8.

3. By this time 'tis vain to mention the Statutes which of old did specifie and allow particular matters to be tried only in the Ecclesiastical Courts: such as Tithes, 18 Edw. 3. 7. the offences of Ecclesiastical per­sons, 1 Hen. 7. c. 4. causes Testamentary, 18 Edw. 3. 6. Synodals and procurations, and pensions, &c. 15 Hen. 8. 19. Defamations, 9 Edw. 2. 3. 1 Edw. 3. c. 11, &c. all which are clear evidences that the Ecclesiastical Jurisdiction was establish'd by the Statute ­laws of this Realm, and consequently, did not depend upon, was not derived from any foreign power before the 20 of Hen. 8.

SECT. IV.

TO seek for the Original of our Eccle­siastical Jurisdiction and Courts, in the Statute-book, is more than ridiculous; see­ing they both stood in a flourishing estate long before the beginning of that book: and are among the number of the great things, which were then, secundum consuetudinem & leges Angliae, and are plainly establish'd in the Common Law of the Land: by which they have stood and been practis'd, ever since (as we shall prove more fully anon.)

2. Magna Charta, which is found first in the book of Statutes, and is said by Lawyers to be Common Law (i. e. shews us what is Common Law) in this Kingdom; begins thus, We have granted and confirmed for us and our Heirs for ever, that the Church of England shall be free; and shall have all her whole Rights and Liberties Inviolable. Re­serving to all Archbishops and Bishops, and all persons as well Spiritual as Temporal all their Free Liberties and free Customs, which they have had in times past, and which we have granted to be holden within this Realm; and all men of this Realm, as well Spiritual as Temporal, shall observe the same against all persons.

3. Now what can any man, that knows the practice of the Spiritual Courts, before that time, at that time, and ever since, imagine what is meant by the Liberties and [Page 12] Customs of the Church, (i. e. in the sence of Mr. Hickeringill) and the words of Magna Charta, Archbishops, Bishops, and all Spiri­tual men, but the Jurisdiction Ecclesiastical in the first and chief place? And these, by the great Charter, are confirm'd for ever; and the like confirmation hath been made by the many succeeding Kings and Parlia­ments, in their confirmation of Magna Charta.

4. Therefore I cannot but conclude, that the Ecclesiastical Jurisdiction being found­ed in the Common Law, Magna Charta, and the Statutes, by so long practice be­yond all Records, is in the very Constitution of the Kingdom: The great men of the Church having always had authority in the very making of Laws as they had before Magna Charta, and been reputed (as in the Statute of Eliz.) one of the three States in Parliament; and the Execution also of the Ecclesiastical Laws of the Church of Eng­land.

SECT. V.

LASTLY, All this is plainly con­firm'd by ancient Ecclesiastical Canons (which seems to be an Argument of great weight with Mr. Hickeringill) as well as by the Ancient Laws and Customs of the Land.

In the Apostles Canons 'tis ordained, that every National Church should have its own [Page 13] chief or head, and thence derive all Power under the Crown: 'Tis acknowledged, against the Papists, that we had our Arch­bishops and Bishops before the Ʋsurpation of the Pope: We were anciently a Patriarchate independent upon Rome: The four first Councils confirm'd the Apostles Canons; and establish'd our ancient Cyprian priviledge: Let after-encroachments of the Pope be ac­cordingly renounced as lawless Ʋsurpations: Let us quietly enjoy our restored ancient pri­viledges; and let ancient Custom prevail, according to the Sentence of the ancient Councils, in spight of all Papists and Hob­bists.

CHAP. III.

King Hen. 8. did not, by renouncing the Power pretended by the Pope, make void the Ecclesiastical Jurisdiction: neither was it void before it was resto­red by 1 Edw. 6. 2.

IT's somewhat difficult to make this Proposition than it is in its self more plain: pray Mr. Wise-man, where and by what words did Hen. 8. cut off, as you say, all those ordinary▪ Jurisdictions? Did that great Prince and his Parliament intend by any Statute then made, to cut them off, or not? If they did intend it, how came it to [Page 14] pass that they continued in their usual course of power and proceedings all the rest of his Reign? which may be presumed to be near ten years? Was that watchful Prince so asleep? was the whole Kingdom so stupid, so long a time, to suffer such oppression, by invasion of the Crown and the peoples Liber­ties, by a company of Church-men, now de­prived of the Pope's assistance, and without any power at all? or were the Ecclesiastical Governours so desperate or careless, as to lie under so much danger of praemunire, nei­ther desisting to act without power, nor to sue for it?

2. But perhaps, though the King and Parliament did not intend it, yet the words of the Statute express enough to dissolve and cut off all those ordinary Jurisdictions: and no body could see through this milstone, or tumble it upon the Churches head, be­fore Mr. Hickeringill was inspired to do it in a lucky time. I will answer him with a sto­ry; There was a certain Lord laid claim to a Mannor that was in another Lord's possessi­on: upon Trial it was found, that the Plaintiffe had the Right of it; and he that had had possession was thrown out, and the other (the Right Owner) was, as he ought to be, put into the possession of the said Mannor; but it was observed, that, though the Lords were changed, yet the Customs, and Courts, and Officers were not changed at all, but all things proceeded as before.

3. Thus King Hen. 8. and his Parliament express'd themselves as if on purpose to our [Page 15] present case; only that the Pope's power then was rather in a pretended claim, than in possession; as is evident from that no­table Statute 24 Hen. 8. c. 12. where we have the Kings Supremacy first asserted, with a body Politick of the Spiritualty and Temporalty, every way furnish'd with Au­thorities and Jurisdictions, to administer Justice to the whole Realm. Thus the Imperial Crown fully accomplish'd, throws off the pretence of the Pope, as King Edw. Rich. and Hen. 4. had done before, yet as they also did, reserves as well the Spiritu­alty and its Jurisdiction, as the Temporalty and its Jurisdiction. Afterwards

4. The King doth by his Royal assent, and by the assents of the Lords Spiritual and Temporal, and the Commons Assembled, and by the Authority of the same, Enact, Esta­blish and Ordain, that all Causes Testamen­tary, Causes of Matrimony and Divorces, rights of Tithes, Oblations and Obventions, the knowledge whereof, by the goodness of Princes of this Realm, and by the Laws and Customs of the same, appertaineth to the Spiritual Jurisdiction of this Realm, shall be from henceforth heard, examined, discuss'd, clearly, finally and definitively adjudged and determined in such Courts, Spiritual and Temporal, as the natures of the controversie shall require.

5. 'Tis plain therefore, that though Hen. 8. did cut off the Pope's pretence, which is the great intention of that excellent Law, yet the Ecclesiastical Jurisdiction was [Page 16] not dissolved, but annex'd or declared to be annex'd to the Imperial Crown of this Realm, and to continue to exercise its power in the Spiritual Courts, as before, according to the Laws and Customs of the Land. Read the Statute, and you will not only see a continuance of the Spiritual Courts supposed and allow'd, but special directions touching proceedings and Appeals therein.

SECT. II.

IF King Hen. 8. did take away the Ec­clesiastical Authority of the Church of Eng­land, he did either remove the Officers, or deny their power to make Canons, or destroy their Courts, and the exercise of their Juris­diction; but he did do neither, but rather by Acts of Parliament establish'd them all.

I. For the first, touching the Governours of the Church, consult Statute 31 Hen. 8. 3. that it may be Enacted by the Authority of this present Parliament, that all Archbishops and Bishops of this Realm, may, by Authori­ty of this present Parliament, and not by any provision, or other foreign Authority, enjoy and retain their Archbishopricks and Bishopricks in as large and ample manner, as if they had been promoted, elected, confirmed and Consecrated according to the due course of the Laws of this Realm: And that every Archbishop and Bishop of this Realm may minister, use and exercise all and every thing and things pertaining to the Office or Order [Page 17] of any Archbishop or Bishop, with all Tokens, Ensigns and Ceremonies thereunto lawfully be­longing.

Further, that all Ecclesiastical persons of the Kings Realm, all Archdeacons, Deans, and other having Offices, may by Authority of this Act (and not &c.) administer, use and exercise all things appertaining to their Dignities and Offices, so it be not expresly against the Laws of God and this Realm.

II. Neither did King Hen. 8. take away the power of the Bishops and others, to make Canons in Convocation, as appears by the Statute of the 25 of▪ Hen. 8. 19. In that Sta­tute, among other things, upon the Petition of the Clergy, two things are granted to our purpose, touching Ecclesiastical Canons.

1. The old ones; 'tis provided that such Canons being already made, which be not contrariant nor repugnant to the Laws, Statutes and Customs of this Realm, nor to the damage of the Kings prerogative Royal, shall now be used and exercised as they were before the making of this Act, till such time as they be viewed by the said Thirty two persons, according to the Tenor of this Act, which was never done; therefore such old Canons are yet of force by this Act. Vid. Sect. 6.

2. For the making of new Canons; the Convocation hath power reserved by this same Act, provided the Convocation be cal­led by the Kings writ▪ and that they have the Royal assent and licence to make, promul­gate, and execute such Canons: as you may [Page 18] read Sect. 1. of the said Statute. Indeed the Convocation used a larger power in ma­king Canons before, as is there noted, which, they say, they will not henceforth presume to do: but it therefore follows, that they may still use their power, so limited and derived from the Crown; which is the evident in­tention of the Act. For by restraining the Clergy thus to proceed in making Canons, the Law allows them the power so to do; and by making the exceptions and limitati­ons confirms their Authority so far as it is not excepted against.

III. Neither, lastly, did King Hen. 8. take away the ordinary Jurisdiction of Eccle­siastical Governours as exercised in the Spi­ritual Courts, according to the Laws and Canons of this Church: but indeed esta­blish'd them by Acts of Parliament, as is plainly to be seen in the 37 Hen. 8. c. 16. Sect. 4. in these words: May it therefore please your Highness, that it may be Enacted, that all singular persons which shall be made—deputed to be any Chancellor, Vicar-general, Commissary, Official, Scribe or Register, by your Majesty or any of your Heirs or Succes­sors, or by any Archbishop, Bishop, Arch­deacon or other person whatsoever, having Authority under your Majesty, your Heirs and Successors, to make any Chancellor, Vicar­general, Commissary, Official or Register, may lawfully execute all manner of Jurisdicti­on, commonly called Ecclesiastical Jurisdicti­on: and all Censures and Coercions appertain­ing unto the same, &c.

2. 'Tis acknowledged, that in the Sect. 2. of this Statute, it seems as if the Parlia­ment concluded, that by the 25 of Hen. 8. 19. the ancient Canons were abrogated, which I wonder Mr. Hickeringill his sagacity had not discovered: yet 'tis plain enough, that wise Parliament did not thereby reflect upon or intend all the Canons; but such Ca­nons, as the present matter before them was concerned in; that is, such Canons as forbad Ecclesiastical Officers to marry; as the words Sect. 1. are, that no Lay or married man should or might exercise any Ecclesi­astical Jurisdiction, &c. directly repug­nant to your Majesty's as Supream Head, your Grace being a Lay-man: then it follows in the next words, And albeit the said De­crees, viz. being contrary to the Royal pre­rogative as supream Head of the Church, be in the 25 year of your most Noble Reign ut­terly abolished.

That this is the meaning of that clause is reasonable to believe, because they take no further care to correct the matter, but only by enacting persons lawfully deputed, though they be Lay persons, though married or unmarried, shall have power, and may exercise Ecclesiastical Jurisdiction, notwith­standing any Law or Constitution to the contrary, as the Statute is concluded.

3. Besides, we are assured, that all the ancient Canons, that were not repugnant to the Kings Prerogative, or the Laws and Customs of this Realm were not abrogated, but declared to be of force, i. e. to be execu­ted [Page 20] in the Spiritual Courts, as was noted in the very letter of that Statute 25 Hen. 8. 19. and that this clause, speaking only of such Canons as were abrogated by that Statute, abrogates nothing that was not so, by the Act referred to.

4. And thus the Jurisdiction and Canons of the Church stood in force, at the latter end of the Reign of Hen. 8. this Statute being made in the last year, wherein any were made by that great Prince.

5. Thus we have found in the time of King Hen. 8. an Ecclesiastical Jurisdiction exercis'd in England, without any depen­dance on the Pope, and other Authority for Canon-makers Synodical (as Mr. Hickeringill cants) besides the Statute for the High Commission 1 Eliz. upon which Statute of Eliz. Mr. Hickeringill very learnedly asserts the Authority of all Canon-makers Synodical was built: qu. Naked Truth.

SECT. III.

NO more is needful under this Head, but to shew my respect to Mr. Hickeringill his doughty and only Argument, taken out of the Petition of the Clergy to Queen Mary; whereby he would fain prove, that the ex­tinguishing Act of Hen. 8. took away all ordinary Jurisdiction from the Church of England, and that there was no such thing till she revived it.

2. The words of the Petition, from whence he thus argues, you shall have in his own Translation, in this manner: they pray that her Majesty would make such provision, that those things which belong to our Ecclesia­stical Jurisdiction and Liberties (without which we cannot duly discharge, &c.) and taken from us lately by the Iniquity of the times, may be again restored; and that all Laws which have taken away, or do any ways hin­der our Ecclesiastical Jurisdiction and liber­ties, may be made null and void. Hence he concludes, that in the judgment of the Con­vocation at that time, their Jurisdiction and Liberties were taken away. Is this proof sufficient against all the laws and practice of the Kingdom during the Reign of Hen. 8. after the extinguishing Act? or do they say that Hen. 8. took away the Ecclesiastical Jurisdiction? how can Mr. Hickeringill di­vine that it was not the renouncing the Pope as Head of their Jurisdiction and Liberties, that was the very grievance that they com­plain'd of?

3. This is certain, that Queen Mary suc­ceeded Edw. 6. that Edw. 6. did require more express Testimonies of the Clergie's Re­cognition of the Crown, in the exercise of the Ecclesiastical Jurisdiction by the Statute (of which we shall take more notice present­ly) than Hen. 8. did; and 'tis past Mr. Hicke­ringill his skill to prove, that the Convocation in their said Petition, did not principally, if not only intend that severe Act of Edw. 6. However that pass, Mr. Hickeringill his ar­gument, [Page 22] deserves not the strength of a Con­vocation to confute it.

4. I leave it to Mr. Hickeringill himself; for if he think, that that Convocation spake that which was not true, he hath said no­thing to the purpose: but if he think they did speak truth, then he thinks, that the Jurisdiction of the Church of England, as derived from the King, according to the Statute of Edw. 6. or in Hen. 8's time, was no lawful Jurisdiction, that is, Mr. Hicke­ringill thinks as the Papists think; War Hawk again Mr. Hickeringill, and a praemunire too.

But this brings us to consider the Statute of Edw. 6.

CHAP. IV.

Ecclesiastical Jurisdiction is lawfully ex­ercis'd, without the Kings Name or Stile in Processes, &c. notwithstand­ing the 1 Edw. 6. 2.

THat all Ecclesiastical Processes should be in the Name and Stile of the King, &c. according to the Statute of 1 Edw. 6. 2. is the great and old Objection, not only of Mr. Hickeringill, but several others.

SECT. I.

Answ. But first, if this Statute were not repealed (as indeed it is) there are several things in the body of it very considerable against Mr. Hickeringill, and to our advan­tage.

1. The Statute observes in the very foun­dation of it, that it's justly acknowledged by the Clergy of the Realm, that all Courts Ecclesiastical within the Realms of England and Ireland, be kept by no other Power or Authority, but by the Authority of the King; which, it seems, was then known without the Testimonies thereof, then to be required; and indeed is so still by the Oaths which all Ecclesiastical persons chearfully take before their Instalment.

2. That there was such a thing in practice before the making this Act, as Ecclesiastical Jurisdiction in the Church of England: for the Statute saith, that Archbishops, &c. do use to make and send out their Summons, &c. in their own names at that time, who yet acknowledged all their Authority from the Crown, Sect. 3.

3. The Statute allows the Ecclesiastical Jurisdiction it self; and that the Archbi­shops and Bishops shall make, admit, &c. their Chancellors, and other Officers and Substitutes, which supposeth the Constitu­tion of the Spiritual Courts, under their own names, and with their own Seals, Sect. 6.

4. This Statute also allows, that some things are limited by the Laws and Customs of this Realm, and if such things are depen­ding in the Kings Courts of Record at Com­mon Law, are to be remitted to the Spiritual Courts to try the same, Sect. 7.

5. But what is the penalty if they do not use the Kings Name and Stile, and put the Kings Arms into their Seals of Office? This is considerable. 'Tis well the Statute provi­dedSect. 4. a better hand to punish the delinquents than Mr. Hickeringill, and a milder punish­ment than he interprets the Law to do: the punishment is the Kings displeasure, and imprisonment during his pleasure; not the voiding the Jurisdiction, as Mr. Hicke­ringill would have it: And while the King knows the Statute is repealed, as shall next appear, we fear not but his Majesty is plea­sed with, and will defend our Jurisdicti­ons, while we humbly acknowledge their dependency on the Crown, and exercise the same, according to his Laws, though we presume not to use his Name, and Stile, and Arms, without the warrant of Law.

SECT. II.

1. FOR that Statute of 1 Edw. 6. 2. was repealed by the first and second of Philip and Mary, c. 8. wherein we have these plain words; ‘The Ecclesiastical Jurisdiction of the Archbishops and Ordinaries (are de­clared) to be in the same state for process [Page 25] of suits, punishment of crimes, and exe­cution of the Censures of the Church, with knowledge of causes belonging to the same; and as large in these points, as the said Jurisdiction was the said twentieth year of Hen. 8. whereby that Statute is al­so revived, as my L. Coke affirmeth.’

Thus, by Act of Parliament, of which that Queen was the undoubted Head, (and by the power of the Crown of England, and not the Pope) the Ecclesiastical Jurisdiction of this Realm was established by our own Law in the same state wherein it stood be­fore the twentieth of Hen. 8. and then, we find, that by our ancient Laws and Customes, it was dependent on the Crown, whatever some Church-men thought to the contrary.

2. I have read, that this same Queen Ma­ry wore the Title of Head of the Church of England her self; though in other points too too zealous for Popery: and by this very Statute it is Enacted, That nothing in this Act shall be construed to diminish the Liber­ties, Prerogatives, or Jurisdictions, or any part thereof, which were in the Imperial Crown of this Realm the twentieth year of Hen. 8. or any other the Queens progenitors before: And we have found, that the Ec­clesiastical Jurisdiction of this Kingdom was subject to, and dependent on the Imperial Crown, secundum consuetudinem & legem Angliae in her Ancestors time: We have found also, that this was the undoubted Judgment of the whole Kingdom in the Sta­tutes of Hen. 8. Edw. 6. Queen Eliz. King James, &c.

Now let it be shewn, that this clause of the Statute of Queen Mary is repealed, which is so agreeable to the ancient Customs and Rights of the Crown; let this be shewn, and you do something: This Statute of my Lord Coke's is not repealed by the 1 of Eliz. or King James, though the 1 of Mary should be granted to be so. Also the 25 Hen. 8. 20. being contrary to 1 Edw. 6. 2. is revived by 1 Eliz. and never repealed. Rep. Coke 12. p. 9.

I. Mr. Hickeringill indeed is bold enough, but I find Mr. Cary timerous in the point, though against the hair: for though he toll on his weak and prejudic'd readers, to their great hazard, in putting their whole case upon this one point, whether the Court can shew the broad Seal, &c. yet when he comes home to the matter, he tells them, that the aforesaid Statute of Edw. 6. not being men­tioned by King James's Act of repeal, and expresly revived, is thought not to be of force; so that a citation in the Bishops own name, may, at this day, be good in Law. Law of Engl. c. 2. p. 12. Mr. Hickeringill should have taken the advice of this his friend, a great Lawyer certainly, that en­titles his minute and thin piece, the Law of England.

SECT. III.

Mr. CARY indeed mistakes the Sta­tute; for it is the first of King James 25. [Page 27] not the fourth: yet we have his learned opinion, that Citations in the Bishops own name, may, at this day, be good in Law; and for ought I know, his reason for it may be good too, viz. because the Statute of Queen Mary, especially that of the first and second of Phil. and Mar. c. 8. is not in the said Act of repeal expresly revived, accord­ing to the express words of the Act, vid. 1 Eliz. sect. 13. But, O Mr. Cary! though we have here your opinion and your reason, where was your Conscience? where was your kind­ness to your beloved dissenting Clients? when you dared to betray them to the Devil and the Gaoler (to speak in Mr. Hickerin­gill's language) (a far heavier sentence than Curse ye Meroz) and that upon no other ground, that I can find, in your Eng­lish Law, but this Statute only; which yet for the reason aforesaid, you say, is thought not to be of force; and though, you say, the Bishops may at this day send forth Citati­ons in their own names by Law; yet your grave advice to those friends is this; When you are Cited, appear and demand, whether they have any Patent from the King for the same, and under his great Seal or no; if they will not shew you by what Authority—protest against their proceedings, and go your way, i. e. the way of disobedience, con­tempt; the way to the Gaol and the Devil; but that's no matter, he hath shewed his spite to Ecclesiastical Authority against his own Law and Conscience: he was not to sa­tisfie a doubt, but a lust; and his confidence [Page 28] is as able to secure the deluded people from the danger of contempt of the Kings Ecclesi­astical Courts, as his wise Notion of Magna Charta, c. 14. from paying their Tithes. See this point excellently and fully argued on both sides, and the Judges, &c. Opini­on and Reasons silencing this Objection in King James's time, Coke Rep. 12. p. 7, 8, 9.

SECT. IV.

1 Edw. 6. 2. repeal'd appears from practice.

II. A further Argumeut, that the Stat. 1 Edw. 6. 2. is repeal'd is taken from the un­interrupted practice, both of the Ecclesiasti­cal Jurisdiction, and the Kings of England, and their own immediate Courts, contrary to it: and I think it is a rule in Law, that in doubtful cases, Lex currit cum praxi.

1. The Ecclesiastical Judges have, ever since the Repealing Act of Queen Mary, be­fore and since the Statute of Queen Eliz. and King James, called Statutes of repeal, un­controulably proceeded in their own names, and not expresly in the name or stile of the King (let one instance be shewn to the con­trary) then who can imagine without a fancy possest, that the Crown and States of the Realm should intend so great an altera­tion in the Ecclesiastical government; and that in the behalf of the supremacy, and for the Rights of the Crown, as is pretended, by reviving that Act of 1 Edw. 6. and yet, [Page 29] neither then, nor ever since, expect a con­formity to, and observance of it? Were Queen Eliz. and King James so easie and careless of their Crowns as this would make them? were all the Bishops, who were con­cerned in making those Acts of Repeal, and all Ecclesiastical Judges ever since, so dull and stupid, as not to know the force of those Acts; not to mind either their duty, or their safety, in so great and hazardous a point, as some would have it of a praemu­nire? or so fool-hardy, as to bear against the Crown it self, on which alone they know they depend against plain Acts of Parlia­ment, in the midst of froward and watching enemies on every side them? who can think it? I must conclude, that if it be possible that the Act of Queen Mary should be repeal'd in this point, either by Queen Eliz. or King James, 'tis more than ever the Law-makers themselves thought of, understood or in­tended.

2. For secondly, the practice of the Crown that was in the first place highly con­cern'd in that Stat. 1 Edw. 6. 2. hath been ever since the Act of Queen Mary that re­peal'd it, directly contrary to it; and, in a very great point or flower of the suprema­cy, manag'd it self ever since, just as it did before that Act of Edw. 6. and, as I said, directly contrary to it: therefore 'tis past all doubt but that the sence of the Queen and Kings of England, and the sence of those great Lawyers and States-men, that direct the Crown in such great affairs, is [Page 30] evident, that the Statute of Edw. 6. stands repealed, and is not revived; for in that Stat. 1 Edw. 6. 2. 'tis expresly enacted, that whereas elections of Bishops by Deans and Chapters upon a Writ of Congee d'eslire—seeming derogatory and prejudicial to the Kings prerogative Royal; for a due refor­mation thereof, be it enacted, that from henceforth no such Congee d'eslire be grant­ed, nor election made, but, &c. yet ever since Congee d'eslires have been granted, and such elections thereupon have been returned and accepted.

3. The Kings immediate Courts, so far as they have been concerned with Jurisdicti­on of the Church, and the Kings Civil Judg­es therein, have ever since own'd, and as occasion hath required, ratified, fortified, and made effectual all our Ecclesiastical pro­ceedings ever since, though not acted in the Kings name, contrary to the said Statute; though 'tis a great part of their places and offices to secure the Prerogative against all Invasion, especially of the Church: thus by their constant practice it appears, that they never understood that Statute of Edw. 6. to be in force, since Queen Mary repeal­ed it: Was the whole Kingdom so long, and in so deep a sleep, to be awakened by such impertinent and little barkings?

SECT. V.

1 Edw. 6. 2. Repealed in the Judgment of all the Judges, the King and Council.

THE objection from the 1 Edw. 6. is no new light of Mr. Hickeringill's, we find it busie in the time of King Charles the first, Anno 1637. and by the Kings Proclamation it seems it had troubled the Kingdom be­fore, as indeed it had in the Fourth of King James. In that year 1637. upon an order out of the Star-chamber, the learned Judges were commanded to give their opinion in this matter: and they all met together, and deliberately, and distinctly, and fully declared, that the 1 Edw. 6. 2. is repealed, and is not in force; and that the Ecclesiasti­cal Judges did (in all the points called in question) act legally, and as they ought to do; hereupon the King and Council being satisfied, issued forth the said Proclamation to silence and prevent all such objections against Ecclesiastical Judges, Courts and proceedings for the future; and the judg­ment of the Judges under their hands, was inrolled in the Courts of Exchequer, Kings Bench, Common Pleas, &c. as Law; where any one may find it that desires to be further satisfied in the truth of it.

2. Hence I argue, that that Statute of 1 Edw. 6. is repealed in Law; at least that the subjects ought so to esteem it, until they have the judgment of the Judges declared other­wise; [Page 32] yea, though those Judges (which is profane to imagine) did erre in that their Declaration through ignorance or fear of the High Comission, as Mr. Hickeringill meek­ly insinuates, p. ult.

For the Law is known to the subject, ei­ther by the letter or by the Interpretation of it: and if the letter of the Law be not plain, or be doubtful, we take the Interpre­tation of it from such as by law are of right to make the Interpretation, to be the law; and this I think is the Common Law of Eng­land, and believe that Mr. Cary himself thinks so too.

3. Now, who is or can be thought to be the most proper Interpreter of a doubtful Law, but the King with his Council, by all the Judges of the Land? especially if that law concern Ecclesiastical Jurisdiction, and the Ecclesiastical Supremacy of the Crown, as the law in question plainly doth. But the King himself with his Council, by all the Judges of the Land, hath solemnly decla­red, that the 1 Edw. 6. 2. is repealed, and not of force; this is a legal interpretation of the law; this is law, and ought so to be taken, rebus sic stantibus, by all the subjects of Eng­land, whatever little men that talk of the law in their own narrow and private senti­ments presume to vent, to the scandal of the people, the trouble of the Kingdom and slander of the Church, and Ecclesiastical proceedings: and indeed it would be an in­sufferable sawciness, to say no worse, for any Ecclesiastical Judge to act by a law that [Page 33] is none, against the so solemn declaration of the King, the Council, and all the Judges of the Land, and this is the case.

I shall therefore trouble, if not pleasure, my reader with the Declaration of the Judges, and the sence of the King and Coun­cil of it.

Primo Julii 1637. The Judges Certificate concerning Ec­clesiastical Jurisdiction.

May it please your Lordships,

ACcording to your Lordships Order made in his Majesties Court of Star-Chamber the Twelfth of May last, we have taken consideration of the parti­culars, wherein our Opinions are required by the said Order, and we have all agreed:

That Processes may issue out of the Ec­clesiastical Courts, and that a Patent un­der the great Seal is not necessary for the keeping of the said Ecclesiastical Courts, or for the enabling of Citations, Suspen­sions, Excommunications, or other Cen­sures of the Church; and that it is not necessary that Summons, Citations, or other Processes Ecclesiastical in the said Courts, or Institutions, or Inductions to [Page 34] Benefices, or Correction of Ecclesiastical Offences by Censure in those Courts, be in the Name or with the Stile of the King, or under the Kings Seal; or that their Seals of Office have in them the Kings Arms. And that the Statute of primo Edvardi Sexti c. 2. which Enacted the Contrary, is not now in force.

We are also of Opinion, that the Bi­shops, Archdeacons, and other Ecclesi­astical Persons may keep their Visitations as usually they have done, without Com­mission under the great Seal of England so to do.

  • John Brampstone,
  • John Finch,
  • Humph. Davenport,
  • Will. Jones,
  • Jo. Dinham,
  • Ri. Hutton,
  • George Crooke,
  • Tho. Trevor,
  • George Vernon,
  • Ro. Berkley,
  • Fr. Crawly,
  • Ri. Weston.

Inrolled in the Courts of Exchequer, Kings Bench, Common Pleas; and Regi­ster's in the Courts of High Commission and Star-Chamber.

Hereupon followed the Kings Proclama­tion, declaring that the proceedings of his Majesties Ecclesiastical Courts and Ministers are according to the Law of the Land; as are the words of the Title. I shall only [Page 35] transcribe the Conclusion of the Proclamation, which you have faithfully in these words.

AND his Royal Majesty hath thought fit, with the Advice of his Coun­cil, that a publick Declaration of these Opinions and Resolutions of his Reverend and Learned Iudges, being agreeable to the Judgment and Resolutions of for­mer times, should be made known to all his Subjects, as well to Vindicate the legal proceedings of his Ecclesiastical Courts and Ministers, from the unjust and Scan­dalous imputation of invading or en­trenching on his Royal Prerogative, as to settle the minds, and stop the mouths of all unquiet Spirits; that for the future they presume not to censure his Ecclesi­astical Courts and Ministers in these their Iust and Warranted proceedings: And hereof his Majesty admonisheth all his Subjects to take Darning, as they shall answer the Contrary at their Perils: Given at the Court at Lindhurst, Aug. 18. in the Thirteenth Year of his Maje­sties Reign▪

God save the King.

You may see the Cafe fully, the Reasons on both sides, and the Judges determination the Fourth of King James, to which this Proclamation may refer, Coke Rep. 12. p. 7, 8.

Now I could almost submit it to Mr. Cary or Mr. Hickeringill himself, whether it be fitter or safer for Ecclesiastical Judges to proceed in their Courts as they now do; or alter their proceedings, and presume upon the King, by using his Royal Name, and Stile, and Arms, contrary to all this Evidence, and Reason, and Law.

SECT. VI.

Mr. H. Cary's Reason to the contrary consi­dered.

BUT Mr. Cary saith, He seeth not a drachm of Reason, why the Spiritual Courts should not make their Processe in the Kings name, as well as the Temporal Courts, since those, as well as these, are the Kings Courts.

He seems to talk Pothecary, without so much as a drachm of Reason; the usage of the Courts, and the evidence aforesaid, is better Law than his pitiful guesses. Nei­ther is there colour of Reason in what he saith, if these two things appear.

1. That the Ecclesiastical Ministers do sufficiently and openly acknowledge the de­pendance of their Courts upon the Crown without using his Majesties Name, or Stile, or Arms.

2. That there is not the same reason that the Spiritual Courts should use the Kings Name, &c. that there is for the Temporal.

1. For the first, the Ecclesiastical Judges accept their places thankfully as the Kings donation, and not the Popes: then they readily grant they depend upon the Crown, even for the exercise of their Spiritual fun­ction; and that they receive all coercive and external Jurisdiction immediately from the Crown and the Laws of the Land, and not from the Pope. Again, they all take the Oaths of Supremacy and Allegiance before their Instalment, which are the fence of the Crown against Popery. And then in all their publick Prayers before their Sermons, the Bishops and Archdeacons, &c. do Recognize the Kings Supremacy in all Ecclesiastical things and causes as well as Civil. Again, they Take the late Test and the same Oaths at the publick Sessions. And lastly, Mr. Cary himself confesseth, that they ac­knowledge the said Supremacy in their pub­lick Canons or Constitutions of the whole Church of England, as he notes p. 2. in Can. 1, 2. 1603. And are all these less signifi­cant to testifie their dependance on and ac­knowledgement of their derivation from the Crown, than the Kings Name, and Stile, and Arms (which may be far enough from the Conscience) in a Processe?

2. For the second, that there is not the same reason to use the Kings name in Ecclesi­astical as in Civil Courts, is apparent from the true cause of using it in the Civil Courts, [Page 38] which being not known or well heeded, may be the cause of the exception: for Bi­shop Sanderson hath well observed the true reason of using the Kings name in any Court, is not thereby to acknowledge the Emanation of the power or Jurisdiction of that Court from, or the subordination of that power unto the Kings power or Au­thority, as the objector seems to suppose; but rather to shew the same Court to be one of the Kings own immediate Courts, where­in the King himself is supposed (in the con­struction of the Law) either by his personal or virtual power to be present: and the not using the Kings name in other Courts doth not signifie, that they do not Act by the Kings Authority, but only that the Judges in them are no immediate representatives of the Kings person; nor have consequently, any allowance from him to use his Name in the execution of them.

1. This difference is evident among the Common Law Courts of this Kingdom; for though all the immediate Courts of the King do act expresly in his Name, yet many other more distant Courts do not; as all Courts-Baron, Customary-Courts of Copyhol­ders, &c. and such Courts as are held by the Kings grant, by Charter to Corporati­ons, and the Universities: in all which Summons are issued out, and Judgments gi­ven, and all Acts and proceedings made and done in the name of such persons as have chief Authority in the said Courts, and not in the Name of the King; thus [Page 39] their stiles run; A. B. Major Civitatis Ex­on. N. M. Cancellarius Ʋniversitatis Oxon. and the like, and not Carolus Dei gratia.

2. Once more a little nearer to our case; there are other Courts that are guided by the Civil (as distinguish'd from the Common) Law; as the Court-Marshal and the Court of Admiralty; the Kings Name in these is no more used, than it is in the Courts Spi­ritual; but all Processes, Sentences, and Acts in these Courts, are in the Name of the Constable, Head Marshal, or Admiral, and not in the Kings Name.

3. I shall conclude this with those grave and weighty words of the same most admi­rable Bishop Sanderson, in his excellent Treatise, shewing, that Episcopacy as Esta­blished by Law in England, is not prejudicial to Regal Power; worthy of every English­man's reading: his words to our purpose are these; ‘Which manner of proceeding, like that of the Spiritual Courts, constant­ly used in those several Courts before men­tioned; sith no man hath hitherto been found to interpret, as any diminution at all or disacknowledgment of the Kings Sove­raignty over the said Courts: it were not possible the same manner of proceeding in the Ecclesiastical Courts should be so confi­dently charged with so hainous a crime, did not the intervention of some wicked lust or other prevail with men of corrupt minds to become partial judges of evil thoughts, p. 68, 69.’

Mr. Hickeringill is one of those whom the Bishop describes, i. e. that so confidently chargeth the Ecclesiastical Courts with that hainous crime, and foundeth that confidence in the Statute of the 1 Eliz. 1. In charity to him, I shall give him such words out of that Statute, as do not only secure the Act of Queen Mary that repealed the Act of 1 Edw. 6. 2. (requiring the use of the Kings Name in our proceedings) from repeal in that particular; but directly and expresly ratifies and confirms the same, and our con­trary proceedings accordingly. So that our proceedings in the Ecclesiastical Courts without using the Kings Name, or Stile, or Arms, according to 1 Edw. 6. 2. are al­low'd and established by this very Act of Queen Eliz. thus; Further Enacted by the Authority aforesaid, that all other Laws and branches of any Act repealed by the said Act of repeal of Mar. and not in this Act specially mention'd and revived, shall stand and be repealed in such manner and form as they were before the making of this Act; any thing herein contained to the contrary notwithstanding, 1 Eliz. 1. 13. but the Act of 2 Phil. and Mar. was not specially mentioned in this Act of Repeal, nor any other: And the Learned Judges in 4 Jac. observe, that this Act of 1 Eliz. revives an Act of Hen. 8. repealed by Queen Mary, and in both these Statutes 1 Edw. 6. 2. is made void; and the present proceeding of Spiritual Courts without the Kings Name, &c. plainly confirm'd; but vid. Coke Rep. 12. p. 7.

CHAP. V.

The Act of 1 Eliz. 1. Establishing the High-Commission Court, was not the foundation of ordinary Ecclesiastical Jurisdiction in England, against Mr. Hickeringill.

THE worthy Gentleman, though he useth much Modesty, and will not peremptorily assert; and hath only fitted the matter for the consideration of wiser men (if he can think there be any such) reasons wonderfully after this new and unheard of manner, or to this purpose, if at all.

The Statute of Eliz. for the High-Com­mission Court was the only Basis of all Ec­clesiastical power; this continued indeed during her time, and King James's; but being repealed by 17 Car. 1. 11. and 13 Car. 2. 12. down came the Fabrick; their great foundation thus torn up, now they have neither power from God nor man, nor ever shall; for his Majesty hath by Statute En­acted never to empower them with any more Commissions to the worlds end. Now their basis is taken away, I cannot discern where their Authority lies, Nak. T. q. 1. p. 4, 5, 6. This is the Spirit of his Reason, which he confesseth is not infallible; for he [Page 42] saith as before, he doth not peremptorily assert it.

But can a man have the face to write this first, and then to say he is not peremptory? Would a man in his wits expose himself in this manner in Print, and blunder out so much prejudice, envy, spite and wrath against Government? and talk such pitiful unadvised stuff about Law? and think to shake the Fabrick of Ecclesiastical Jurisdicti­on, that hath stood firm so long in the midst of all its enemies, with shadows of straws? Had he advised with the learned Sage, his Friend Mr. Cary, who is the Author of the Law of England, certainly he could never have talk'd so idly and impertinently, but would have put some colours at least upon his honest designs, as Mr. Cary himself hath done.

But what if this wise Mr. Hickeringill erre fundamentally all this while? and the clause of 1 Eliz. and consequently the Stat. of Car. 1. and 2. touch not, concern not the ordi­nary Jurisdiction of the Church at all? as certainly they do not; and the only won­der is, so wise a man should not see it: A man of so great, and long experience, and practice in the Jurisdiction and Laws of the Church: So diligent and accurate in his writings, and especially of Naked Truth; wherein he assures us, nothing is presented crude or immature, but well digested; as a few of those things that his head and heart, that is, his stomach have been long full of; as he saith, if you will believe him, p. ult.

But doth not that clause that establisheth the High-Commission affect our ordinary Ju­risdictions at all? what pity 'tis, that so excellent a Book as this second part of Na­ked Truth is, should miscarry in its main project, and in the very foundation too: the fundamental supposition, on which all its strength is built; and in a maxim pecu­liar to the Authors invention, and singular­ly his own, for ought I know; and where­in he seems to place his glory, especially seeing, as he tells us, p. ult. he has no pique, private interest, or revenge to gratifie: and writes only to cure old Ʋlcers; and with such hearty wishes that Ecclesiastical Jurisdiction, which is his Interest as well as others, were of force, strength and vertue, and not so disorderly uncertain and precari­ous; as he proves it to be, without one Ar­gument, if this beloved one, taken from the High-Commission, fail him.

And yet alas! it will fail him do what we can: for the clause in the Stat. 1 Eliz. 1. 18. granted a power to the Crown to establish the High-Commission Court, as a Court ex­traordinary; consisting of extraordinary and choice Ministers, not restrained to ordi­nary Ecclesiastical Officers: and the ordinary Jurisdiction did never derive from it, was never disturbed or altered by it; but was ever from the beginning of it, consistent with and subordinate to it; therefore was it call'd the High-Commission. This is evi­dent, as from the concurrence of both Juris­dictions all a long; so from the letter of the [Page 44] Statute it self, and clearly declared to be so by my Lord Coke.

This clause (saith he) divideth it self in­to two branches, the first concerning the Visitation of the Ecclesiastical state and per­sons; this branch was Enacted out of ne­cessity, for that all Bishops and most of the Clergy of England, being then Popish, it was Necessary to raise a Commission to de­prive them that would not deprive them­selves: and in case of Restitution of Religi­on, to have a more Summary proceeding than by the ordinary and prolix course of Law is required. This branch concerns only Ecclesiastical persons: so that, as Neces­sity did cause this Commission, so it should be exercis'd but upon Necessity; for it was never intended that it should be a continual standing Commission; for that should pre­judice all the Bishops in their Ecclesiastical Jurisdictions, and be grievous to the Subject, to be drawn up from all the remote parts of the Realm, where before their own Diocesan they might receive Justice at their own doors.

So that this power of the High-Commissi­on, neither granted any new power to the ordinary Ecclesiastical Jurisdiction, nor took away any of the old. Yea, it plainly supposeth the prae-existence and exercise of the Ecclesiastical Jurisdiction in an ordinary way, and meddles no further with it than to take its measures from it, which by conse­quence allows it in it self, as well as for a Rule of its own proceedings, as my Lord Coke observes in these words.

That your Highness—shall name—to execute under your Highness—all manner of Jurisdiction, &c. and to visit and reform, &c. all errors, &c. which by any manner Spiritual or Ecclesiastical power—can or may lawfully be reformed, &c.

Now if the ordinary Jurisdiction by Bi­shops, &c. did not derive from, or depend on that High-Commission, the repealing the Statute (I mean the clause) that impowred the High-Commission can no wise affect, much less destroy that ordinary Jurisdiction; and Mr. Hickeringill's foot is gone from his ground, and the ordinary Jurisdiction of the Church of England stands fix'd upon its ancient Bottom, on which it stood before the High-Commission, and ever since, not­withstanding the High-Commission is ta­ken away, and should never be granted more.

Now I cannot but observe, that Mr. Hickeringill hath the ill luck to cut his own fingers with every tool he meddles with. The Stat. of 13 Car. 2. 12. which continues the repeal of the clause in 1 Eliz. for the High-Commission by the 17 of Car. 1. which also took away our Ecclesiastical Jurisdicti­on; I say this Stat. 13 Car. 2. 12. restores the ordinary Ecclesiastical Jurisdiction, and excludes the power of the High-Commissi­on.

Whence it is plain, that the Ecclesiasti­cal Jurisdiction does not Essentially de­pend on, but may and doth now stand by Act of Parliament without the High-Commissi­on.

Again, whereas 'tis provided that the Jurisdiction so restored shall not exceed in power, what it was in 1639. it is clear, that the Church had a lawful Jurisdiction before the Wars, otherwise nothing is restored: yea, 'tis non-sence, or a delusion unworthy of a Parliament, if they that made that Act did not suppose and allow, that the ordinary exercise of Jurisdiction in the Spiritual Courts in 1639. was according to Law; and I am sure that was just such as is now exer­cised.

CHAP. VI.

How our Ecclesiastical Jurisdiction in England came at first, and is at pre­sent Establish'd by Law.

TO shew how the Ecclesiastical Juris­diction came at first to be Establish'd by Law, is a point not so difficult as much desir'd.

'Tis agreed, I hope, that all Kindreds, Tongues and Nations owe their Obedience to the Gospel, when and wheresoever it comes: and that England was one of the first of the Nations that embrac'd it, and became a Church of Christ; then we were a rude unpolish'd and Barbarous people, and knew little of Civil Policy or order of Go­vernment; [Page 47] but by the gracious Ministery of Holy men sent from God, our manners began to be softned, and our minds sweet­ned and enlightned, and our Princes became early nourishers and honourers of Religion and Religious persons; and good nursing Fa­thers and nursing Mothers to the Church then planting among us; and began to endow it with wealth and power.

Arviragus, Marius, Coilus (as the three Kings in Malmesh. are named by Capgravius) entertain'd Christians exploded from all parts of the World, in this Kingdom: and gave them peace, and provided them a Country to dwell in; and first gave liberty to build and defend Churches in publick Lucius the first Christian King, built Churches at his own charge; first constitu­ted Bishops Seats, and built dwellings for Priests, and much enriched all things of that nature: and that Religious men might with more safety enjoy what they had given them, amplis munivit privilegiis, fortified them with large priviledges.

Here was born also (as Baronius confes­seth) Constantine the Great, who brought peace to the whole Church; who was the first Christian Emperor; and likewise the first Christian Queen, his Mother Helen.

If we come to the Kings of the Ages fol­lowing, quis non stupeat, as Spelman saith, who can chuse but be astonish'd at the exi­mious Piety, incredible Zeal (Ardorem) extraordinary (Insignes) Alms, manifold works of mercy, munificence towards Gods [Page 48] Ministers, and their magnificent and won­derful (profusionem) liberality and expence in building, adorning, inriching Churches, insomuch, as one saith, Mirum tunc fuerat Regem videre non sanctum: And as another, There were more holy Kings found in Eng­land than in any one, though the most po­pulous Province in the World.

The day would fail (that worthy Anti­quary adds in his most excellent Epistle be­fore his Councils, enough to enflame the coldest Age with zeal for Religion) The day would fail me, saith he, should I speak of Edwin, Ina, Offa, Ethered, Edmund, Ethelstan, Canute, Edward the Confessor, and many others; seeing among all the Il­lustrious Kings, who were West-Saxons, the third is scarce found, qui Ecclesiam Dei, in Aliquibus, non Ornaverit, Auxerit, Di­taverit, who did not Adorn, Augment and Inrich the Church of God.

In these early times of Zeal and Piety among the Kings of England, the Jurisdi­ction and Authority of the Church took root, and began and proceeded to flourish; now, no doubt, but Religion sincerely managed by good and meek Church-men, was a great mean to move the Nation towards a better Order in the Civil State, both in Govern­ment and Law. Now I say (to use Spel­man's words) when Os Sacerdotis Oraculum esset plehis, Os Episcopi, Oraculum Regis & Reipublicae, The mouth of the Priest was an Oracle to the People, and the mouth of the Bishop was an Oracle to the King and the [Page 49] Commonwealth. In the time of Ethelbert, the first Christian King of the Saxons, we find a Convention at Canterbury of Bishops and Lords, to settle the affairs of Church and State. In the time of the Heptarchy Summons was, Ad Episcopos, Principes, &c. Decrees were made afterward, Cum Conci­lio Episcoporum, thus during the time of the Saxons, &c. and until the Pope got footing here by the Conqueror, Ecclesiastical Au­thority went on apace: Yea 'tis evident, that it went on step by step with the progress of the Civil, and was gradually own'd, en­larged and establish'd in the very Essence and degrees, and together with the Esta­blishment of the Civil State.

Insomuch, that Ecclesiastical Jurisdiction was so twisted and Interwoven, and, as it were, wrapt in the very Bowels of the Ci­vil; and the Ecclesiastical Law so concern'd and intimately wrought into the Temporal Law and Government, that 'twas hard to make the separation, or indeed clearly to assign the distinction betwixt them; which hath taken up the care, both of Lawyers and Statutes to do it effectually and through­ly; and perhaps may be in some measure a Reason of many Prohibitions against Ecclesi­astical Prohibitions to this day.

Hence also it was, that beyond all known time of Christianity in England, our great Church-men have had no small hand in ma­king all our Laws, both Ecclesiastical and Civil: and also sate many hundred years together with our Temporal Judges in all [Page 50] places of publick Judicature. ‘Primi igitur sedebant in omnibus Regni Comitiis & Tri­bunalibus Episcopi: In Regali quidem pa­latio cum Regni magnatibus: in Comitatu unà cum Comite & Justitiario Comitatus: in Turno Vicecomitis cum Vicecomite: in Hundredro cum Domino Hundredi.’ So that in promoting Justice every where the sword might aid the sword, & nihil incon­sulto Sacerdote (qui velut suburra in Navi fuit) ageretur, Sp. Epis. Conc.

Yet we must remember, and 'tis careful­ly minded in our Statutes before mentioned, that our Kings were the true and acknow­ledged fountains of the beginning and en­crease of that wealth, and honour, and pow­er, which the Church and Church-men then enjoy'd; and that the Kings of England were ever Supream over this Church, and all its Ministers; and not the Pope, or any foreign power; the Pope's Collector or Mi­nister (so say our ancient Books) had no Jurisdiction in this Land, Lord Coke of Courts, p. 321.

In our Law before the Conquest, the King was the Vicar of the highest King, ordained to this end, that he should above all govern the Church, Edw. Laws, c. 19. and this hath been carefully maintained by our Laws ever since. See Cawdries Case.

SECT. I.

Jurisdiction of the Church in Common Law.

THUS the power and Jurisdiction Ec­clesiastical grew up with and received much perfection by and in Common Law.

By Common Law, I mean, long and general use in the whole Land; for as I take it, my Lord Coke saith, That time and use make a Custom: when that's general in England, it's called Common Law; that is my mean­ing; whether my Notion be right, I weigh not, if the matter and Argument prove and express the manner of the Churches ancient Authority and Jurisdiction before the Sta­tutes.

'Tis most evident, William the Conqueror found the Bishops and other Ecclesiastical Ministers in great power and with large Ju­risdiction, which they had long enjoy'd, according to the Law and Custom of the Realm. Call that Law what you will, by that they enjoy'd their ancient Rights and government, and that's enough.

'Tis true indeed, William changed the ancient Custom we spake of, and distin­guish'd the Tribunals one from the other: but saith Spelman, Secrevit, non diminuit Jurisdictionem Cleri, he did not lessen the Ju­risdiction of the Clergy: Yea, by swearing he confirm'd the Laws of holy Church, Quo­niam per eam Rex & Regnum solidum sub­sistendi [Page 52] habent fundamentum. Prooemium ll. suarum, ut Spel. Epis. because, by the Church both King and Kingdom have a solid foundation of subsisting. Thus the Church­es Rights, in being before, were confirm'd by the Conqueror.

My Lord Coke notes two excellent Rules of Common Law to our purpose.

1. The Law doth appoint every thing to be done by those unto whose office it properly apper­taineth.

2. 'Tis a Maxim of the Common Law, that where the Right is Spiritual, and the Remedy thereof only by the Ecclesiastical Law, the Connusance thereof doth belong to the Spiritual Court, Coke Instit. p. 1.

3. Hence it follows, that there being many Cases in which there is no remedyVid. Caw­dries Case, Answ. to Object. 4. any other way provided, by Common Law they belong to the Spiritual Courts, and the Common Law both impowers and requires those Courts to give Remedy in those Cases.

Thus stood Ecclesiastical Jurisdiction in England by Common Law before our Statutes took so much notice of it; and our Statutes since, whenever they mention it, do gene­rally mention it, as a Government supposed, upon grounds good and firm in Law to have existed before, and also then to be in use, and to flourish in its present exercise, and proceedings in its proper course and Courts.

'Tis as idle a thing to look in the Statute ­books for the beginning of Ecclesiastical Power and its Courts, as for the Beginning [Page 53] of Courts-Baron, which are such by Com­mon Law, as Coke saith, or the Court of Marshalsea, which, as Coke's words are, hath its foundation in Common Law; or Courts of Copyholders, which are such by Custom: And for the same reason to questi­on the lawfulness of these Courts, because, in their original, they were not Established by Act of Parliament, as well as the legali­ty of the Courts Spiritual; these being equally founded in the Ancient usage, Cu­stom and Law of England; and all taken care for in Magna Charta, that ancient Au­thentick account of our Common Law.

And why are Ecclesiastical Judges (I mean not Bishops only, whom Mr. Hicke­ringill finds in Scripture, but) Archdeacons, Chancellors, Officials, &c. as well Establish'd in their proper power, as Coroners, High-Constables, &c. that have the Origine of their Offices before Statutes? Have not Ec­clesiastical Officers, when lawfully invested, power, as well as they, to Act in their proper Jurisdictions, by the same Common Law? by long, ancient and establisht Custom; or as the usual word in our Statutes in this very Case is, secundum Consuetudines & Leges Angliae?

My Lord Coke saith, The Kings Preroga­tive is a principal part of the Common Law, which also flourisheth in this part of it, the Ecclesiastical Power and Jurisdiction, as well as in the Civil State and Government. Thus we acknowledge, the Ecclesiastical State, and External, and Coercive Jurisdi­ction [Page 54] derives from and depends upon the Crown of England by Common Law: And I am bold to add, that the former cannot ea­sily be Abolish'd and destroy'd (I do not say altered) without threatning the latter, I mean the Crown (at least some prejudice to it) on which it depends.

Thus Ecclesiastical Jurisdiction stands by Common Law, on which also most of our Civil Rights depend; but we confess it is bounded (as my Lord Coke) by the same Common Law; and in all reason it must be so, it being subordinate to the King as Su­pream, who is supposed to be personally or virtually present in his great Courts of Com­mon Law; and is so declared to be by Acts of Parliament. Instit. p. 1. pag. 344. of my Lord Coke.

SECT. II.

The Government Ecclesiastical is Established in the Statutes of this Realm.

THE Ecclesiastical Jurisdiction being thus found Establisht by Law before the Statute-books were made, the Statutes do Establish it as much as any reasonable un­prejudic'd man can expect or desire.

We shall begin with Magna Charta, which is Statute as well as Common Law, and seems to unite and tye them together: This stands at the beginning of our Statute ­book; and the first thing in this, is a grant [Page 55] and establishment for ever of the Rights and Liberties of the Church; that must be un­derstood of the Rights and Liberties then in being; and among the rest, sure the great Right and Liberty of the Churches Power, and the free use of her Ecclesiastical Juris­diction.

Magna Charta it self expounds what it means by holy Church, i. e. the Bishops and Ministers of it, which King Hen. 8. in the Statute saith is commonly called the Spiritu­alty: and Mr. Hickeringill, for all his scof­fing, knows that the Church of England al­lows a larger sence of the word [Church] viz. the Congregation of all faithful men, &c. And when we call the Clergie, or the Go­verning-part of the Church, the Church, we use it in a Law-sence, and as a term of Law, as Acts of Parliament as well as the Civil or Canon-Law do: But this by the way.

2. When the subsequent Acts of Parlia­ment do so frequently mention the Spiritual Courts, and their Jurisdiction; this to me is a legal allowance of them; and indeed a Tacit or implicit acknowledgment of their more ancient antecedent Power and Common right and liberty, by the undoubted Custom, i. e. the Common Laws of the Land. Yea those very Statutes that look at least ob­liquely upon them; that say they are bounded by the Common Law; that do of themselves limit and prohibit the Ecclesiasti­cal Courts in some cases, seem plainly to ac­knowledge them in other cases not excepted from their Jurisdiction. But,

3. More plainly and directly, those Acts of Parliament that appear in the behalf of Ecclesiastical Jurisdiction in times of its tri­al and danger, and vindicate its Rights, and preserve and maintain its Liberties when most in question: there have hapned such occasions, wherein the Statutes have res [...]ed and replevied the Ecclesiastical Power; in all which the Statutes have been thus fa­vourable to it; three of late, not to menti­on many formerly.

1. Thus, when some might imagine, that by the alteration made by King Hen. 8. the Bishops and their Power was shaken: the Statutes made in his time assure us, that it was but to restore the ancient Jurisdiction, and not to destroy it; that Bishops should be elected and act as formerly; especially as Coke noteth, by the 25 Hen. 8. c. 20. it is Enacted, That every person chosen, in­vested, Consecrated, Archbishop or Bishop, according to this Act, shall do and exe­cute every thing and things as any Archbi­shop or Bishop of this Realm, without offen­ding of the Prerogative Royal of the Crown, and the Laws and Customs of the Realm at any time heretofore have done.

Note, that this Statute, contrary to the 1 Edw. 6. 2. was revived by Queen Eliz. 1. cap. 1. which the Judges thought and judged a full answer to all the Objections against the Churches proceedings contrary to the 1 Edw. 6. 2. and by this very Statute 1 Edw. 6. 2. stands clearly repealed, as my Lord Coke observes Rep. 12. 8, 9. which caused [Page 57] me to make choice of it for my present pur­pose.

2. The second is observed in the time of Phil. and Mar. when the manner of Eccle­siastical Jurisdiction had been altered by the 1 Edw. 6. the Statute establisheth the same as it was before in these words: And the Ec­clesiastical Jurisdictions of the Archbishops, Bishops, and (other) Ordinaries, to be in the same estate for Processe of Suits, punish­ment of crimes, and execution of Censures of the Church, and knowledge of causes be­longing to the same; and as large in those points, as the said Jurisdiction was the 20 Hen. 8. which Statute of Phil. and Mar. re­pealed the 1 Edw. 6. 2. and was never repeal­ed since, as the Judges resolved in the fore­said Case 4 Jac. but evidently revived by 1 Eliz. 1. Sect. 13.

3. When thirdly, the long Parl. 17 Car. 1. had disabled the Jurisdiction of the Courts Ecclesiastical, it was very carefully restored and established by the Stat. 13 Car. 2. in these words; Neither this Act—shall take away any ordinary Jurisdiction from the said Archbishops, &c. but that they, and every of them, may proceed—in all manner of Ecclesiastical Jurisdiction; and in all Cen­sures and Coercions belonging to the same, as they did and might lawfully have done be­fore the making of the said Act. Vid. 17 Car. 1.

4. 'Tis sufficient, yet I cannot but sub­joyn one notable way more Argumentative enough, alone by it self, to prove the Eccle­siastical [Page 58] Courts to be allow'd and confirm'd by Statute, viz. when the Statutes direct such particulars to be tried in these Courts; and require these Spiritual Courts to use their power for the punishment of offenders, and the doing Justice: And I think there cannot be a better medium or clearer evi­dence than we have in this matter.

For if the Spiritual Courts have no power to try such matters, and pass Judgment, and punish in such cases, why do the Sta­tutes direct and remit such matters to them? and why do the Statutes enjoyn them to take Connusance and proceed accordingly? that so they do, is plain.

In the 18 of Edw. 3. 6. 'tis said, that Pro­cesse in Causes Testamentary notoriously ap­pertaineth to holy Church. We must not blemish the Franchize of Holy Church: And in the 18 of Edw. 3. 6. parties are to be dismissed from Secular Judges in Cause of Tithes, and left to the Church: Ordina­ries have power to punish Ministers and Priests; as in 1 Hen. 7. c. 4.

Synodals, Proxies, Pensions, &c. are to be recovered in the Spiritual Courts. Vid. 15 Hen. 8. c. 7. Sect. 7.

The like is known touching Causes Ma­trimonial and Defamations, &c. I shall on­ly instance one more, viz. in the great Cause of Non-Conformity; and that in an Act that is nearer to us, and of unquestionable Au­thority, which both directs what we should punish, and most solemnly requires by its own Authority to exercise our Ecclesiastical Pow­er, [Page 59] by the very rules and proper methods of our Spiritual Courts; in these words, 1 Eliz. before the Common Prayer: Pro­vided always, and be it Ordained and Enacted by the Authority aforesaid, That all and sin­gular Archbishops and Bishops, and every of their Chancellors, Commissaries, Arch­deacons, and other Ordinaries, having any peculiar Ecclesiastical Jurisdiction, shall have full power and Authority by vertue of this Act, as well to enquire in their Visitations, Synods, and elsewhere, within their Juris­diction, at any other time or place, to take ac­cusation and informations of all and every the things above mentioned, done, committed or perpetrated within the limits of their Ju­risdictions and Authority, as to punish the same, by Admonition, Excommunication, Sequestration, or Deprivation, and other Censures and Processe, in like form as here­tofore hath been used in like cases, by the Queens Ecclesiastical Laws. This doubt­less is very plain.

And hereupon, 'tis solemnly required in these words a little before: For the due execution hereof, they do in Gods name ear­nestly require and charge all Archbishops, Bishops, and other Ordinaries, that they shall endeavour themselves to the utmost of their knowledges, that the due and true execution hereof may be had, throughout their Dioceses and Charges, as they will answer before God for such evils and plagues, whereby Almighty God may justly punish his people for neglecting this good and wholsom Law.

Now if in like cases it had not been law­ful before this Act, for the Spiritual Courts so to proceed, why are the former Laws and use to be followed by these directions? Or if this Act cannot impower us, give us rea­son or Law against it. Or if any thing be a greater grievance to you in the Spiritual Courts, than the punishment provided for the crimes mentioned in this Act, say what it is, or say nothing.

But if these cases be not sufficient, Mr. Cary can tell you of at least ten particu­lar matters, upon which the Law is, to grant the Writ de Excommunicato capiendo: and according to a known Act of Parliament made after this, viz. 5 Eliz. 23. which sufficiently allows and confirms our Eccle­siastical proceedings to the sences of too many, as some complain.

CHAP. VII.

Of Canons and Convocations.

WE see what Reason Mr. Hickeringill had to keep such a pother about the force of Ecclesiastical Canons, and the Au­thority of Convocations. Especially,

1. Seeing the late mentioned Act of 1 Eliz. supposeth the Ecclesiastical Laws, i. e. the Canons to be her own Laws; and re­quires [Page 61] Ecclesiastical Judges so severely to put them in execution.

2. Seeing, since the Reformation, most of the matters of Canons are expressed and enjoyned in Acts of Parliament; insomuch, that Ecclesiastical Jurisdiction might stand and proceed well enough, had we no other Canon but Acts of Parliament, as Mr. Hicke­ringill insinuates: and 'tis worthy his ob­servation, that the greatest complaints of Dissenters, since the Kings happy return, have been upon the execution of Acts of Par­liament, and that not so much by Ecclesia­stical as Civil Ministers.

Indeed the Statute of Car. 2. that restored the Ecclesiastical Jurisdiction, hath a Provi­so, That by vertue of that Act, the Canons of 1640. shall not be of force; and that no Canons are made of force by that Act that were not formerly confirm'd by Acts of Parliament, or by the establish'd Laws of the Land, as they stood in Ann. 1639.

But 'tis evident enough, that by the 25 Hen. 8. c. 19. the old Canons, not against Law or Prerogative, are of force; and that the King with the Convocation, may make new ones, with the same Conditions; and in­deed, while the Convocation is so limited by that Act, their power seems not very formidable.

My Lord Coke, who was not a Bigot for Spiritual Power, declares the Law in both those Cases; and tells us, That it was re­solved by the Judges at a Committee of Lords, these restraints of the Convocation were grounded on that Statute.

[Page 62]1. They cannot Assemble without the assent of the King.

2. They cannot Constitute any Canons without his licence.

3. Nor execute them without his Royal assent.

4. Nor after his assent, but with these four limitations.

1. That they be not against the Kings Prerogative.

2. Nor against Common Law.

3. Nor against Statute Law.

4. Nor against any Custom of the King­dom, Rep. 12. p. 720. And my Lord Coke adds, That these restraints put upon the Convocation by the 25 Hen. 8. are but an affirmance of what was before the Statute; and, as he saith (in his book of Courts) are but declaratory of the old Common Law: Pag. 323. consequently the Courts of Common Law are to bound and over-rule all Ecclesiastical exe­cutions of Canons, and secure the Crown and the Laws against them.

But what Acts of Parliament have abro­gated the Authority of the Synod 1603. and quite annihilated the very beings of Convoca­tions, I am yet to learn; though Mr. Hicke­ringill so boldly after his own way vents so wild a notion p. 3. & 12. or when that of 25 Hen. 8. 19. was repealed, or how they are made less than nothing at this day, than they were before, since that Statute of limitations, as he is pleased to insult?

He saith, They are far from being the Representative Church of England; for that [Page 63] the people have not the least Vote in their Election. Pray, when was it otherwise than 'tis now? If the Law by Institution make the Clerk a guide to his flock in Spiritu­als; if the people do expresly make choice of him for such, or virtually consent in Law he should be so; and thereupon the Law al­lows this Clerk to elect members for the Con­vocation, and also reckons the Convocation to be the Representative Church of England; how comes it that Mr. Hickeringill who is so great a stickler for a Legal Religion should be so much wiser than the Law? and to scoff at its Constitutions?

I wish Mr. Hickeringill to beware of touch­ing Foundations with his rude and bold Fan­cies, and disturbing the frame of Govern­ment. I am sure he will not abide by his own Rule, if he be well advised of the manner of Electing the great Representative of the people of England: 'tis our duty to study to be quiet, but some study to be otherwise. The wisest word in his Naked Truth is this; If men once come to dispute Authority, and the wisdom of the Laws and Law-makers, the next step is Confusion and Rebellion, p. 11.

The Conclusion.

THUS you have a Taste of the Spirit and Sence that runs through the Book called Naked Truth; his other little gross mistakes are not worthy observing, much less insisting on: such as these:

1. First, That all Archdeaconries have Corpses annex'd, which is certainly other­wise, in most Archdeaconries in some Dio­ceses.

2. Then that Archdeacons require Procu­rations when they do not Visit; which is not done in some, and I hope in no Diocese.

3. Lastly, That Procurations and Syno­dals are against Law, and not to be recove­red by Law or Conscience; when he him­self confesseth that they are due by ancient Composition: That provision (notwith­standing his old Canons) in Visitations is due; for which the money, paid for Procu­rations, is paid for them by vertue of that Composition: and whereas, they are due by undoubted and long possession and Custom, which is as Law in England: And to con­clude, are not only expresly allow'd as due, but declared to be recoverable in the Ecclesi­astical Courts, by the Statute of 34 Hen. 8. 19.

I have, at this time, done with his Mate­rials; and for the Manner of his Writing, let the Sentence of every Reader reproach and shame him. I like not the office of Raking Kennels or emptying Jakes; and all the harm I return him, is to pray heartily for him, That God would give him Grace soberly to read over his own Books, and with tears to wash these dirty sheets, wherein he hath plai'd the wanton; and indeed defiled him­self more than his own Nest (whatever the unlucky Bird intended) and that with such a barbarous wit, and vile Railery, as is justly offensive to God and Man: with such wild triumphs of scorn and contempt of his own Order and Office, his Betters and Supe­riors; with such a profligate neglect of Go­vernment and Peace; and of his own Consci­ence and Law (against which, he confesseth, he still acts) yea, against his own Interest, Safety, and his very Reputation.

For all which Notorious and publick Mis­carriages, I wish he thought it fit to do pub­lick Penance in another new and cleaner Sheet.

I have to do with two Adversaries, Mr. Hickeringill and Mr. Cary: the first wisheth the Church of England had more pow­er than it now hath; the other, that it had less. I presume in the name of the true Sons of this Church, that we are very thankful for the power we have, by the favour of our gracious King and his good Laws.

And as we do, and always shall acknow­ledge the Dependance of our Ecclesiastical [Page 66] Jurisdiction upon the Imperial Crown of this Realm: So whether it seem good to the King and his High Court of Parliament, to augment or lessen it, or to continue it as it is, we shall still maintain our Loyalty, and ma­nifest our duty, and chearfully submit our selves. But, Lord, forgive our Enemies, Persecutors and Slanderers, and turn their hearts.

THE POSTSCRIPT.

I Have reserved a few Authorities for the satisfaction of such as have no mind or leisure to read the Book; which alone are sufficient to oppose and expose my Adver­saries Objections.

I.

Episcopal Government in the Church of England is as Ancient as the Church; and at first was subordinate, under God, only to our Kings, without any relation to or dependance on the Pope; and declared to be so, with the grounds and reasons thereof, very early by Edw. 1. and Edw. and so Established by Acts of Parliament.

Read 25 Edw. 3. the summ is thus.

Here we have a Recital of the first Statute against Provisors, to this effect; Whereas [Page 68] the Holy Church of England was founded in the Estate of Prelacy by the Grandfather of this King and his Progenitors, &c. and by them endowed with great Possessions, &c. for them to inform the People in the Law of God; to keep Hospitality, &c. And whereas the King and other founders of the said Prelacies were the Rightful Adow­ers thereof; and upon Avoidance of such Ecclesiastical Promotions, had power to advance thereunto their Kinsmen, Friends, and other Learned men of the birth of this Realm; which being so advanced, became able and worthy to serve the King in Coun­cil, and other places in the Common­wealth: The Bishop of Rome Usurping the Seigniory of such Possessions and Benefices, did give the same to Aliens,—as if he were Rightful Patron of those Benefices; whereas, by the Law of England, he never had the Right Patronage thereof: whereby in short time all the Spiritual Promotions in this Realm would be ingrossed into the hands of strangers, Canonical Elections of Prelates would be abolished, works of Cha­rity would cease, the Founders and true Patrons would be disinherited, the Kings Council weakned, and the whole Kingdom impoverished, and the Laws and Rights of the Realm destroyed.

Upon this complaint it was resolved in Parliament, That these Oppressions and grievances should not be suffered in any manner; and therefore it was Enacted, [Page 69] That the King and his Subjects should thenceforth enjoy their Rights of Patro­nage: that free Elections of Archbishops and Bishops, and other Prelates Elective should be made according to the Ancient Grants of the Kings Progenitors and their Founders; and that No Provision from Rome should be put in Execution; but that those Provisors should be Attached, Fined and Ransom'd at the Kings Will; and withal imprisoned, till they have renounced the benefit of their Bulls, satisfied the Party grieved, and given sureties not to commit the like offence again.

II.

Before this forementioned Act was made, the Spiritual Courts were in Being, and had Power by the Law of the Land, to try such Causes as were not to be tried by Common Law: so declared and Establish'd by Acts of Parliament. Vid. in the time of Edw. 1. and Edw. 2. near four Hundred years since.

Circumspectè agatis, 13 Edw. 1. An. 1285.

The King to his Judges sendeth greet­ing: Use your selves circumspectly, in all matters concerning the Bishop of Norwich and his Clergy; not punishing them if they hold Plea in things as be meer Spiritual, as Penance enjoyned by Prelates, Corporal [Page 70] or Pecuniary—for Fornication, Adultery, or such like: for Tithes and Oblations due and accustomed; Reparations of the Church and Church-yard; Mortuaries, Pensions, laying violent hands upon a Clerk, Causes of De­famation, Perjury: All such demands are to be made in the Spiritual Courts; and the Spiritual Judge shall have power to take knowledge of them notwithstanding the Kings Prohibition.

III.

Hereupon a Consultation was to be granted 24 Edw. 1. as followeth.

Whereas Ecclesiastical Judges have often surceased to proceed by force of the Kings Writ of Prohibition in Cases, whereas Re­medy could not be had in the Kings Courts—our Lord the King Willeth and Command­eth, That where Ecclesiastical Judges do surcease in the aforesaid Cases, by the Kings Prohibition, that the Chancellor or the Chief Justice, upon sight of the Libel, at the instance of the Plaintiff (if they can see that the Case cannot be redressed by Writ out of Chancery, but that the Spiritu­al Court ought to determine the Matters) shall write to the Ecclesiastical Judge, that he proceed therein, notwithstanding the Kings Prohibition.

More particularly, Those Cases reserved by Law and Statute, against which no Pro­hibition [Page 71] can be legally granted, are enu­merated in Articul. Cleri, 9 Edw. 2.

IV.

Thus the proceedings of the Spiritual Courts, and the Causes belonging to them were supposed, directed, allowed, and Esta­blish'd by these Ancient Statutes.

And left those Causes have not been suf­ficiently specified, no Prohibition shall be awarded out of Chancery, but in Case where we have the connusance, and of Right ought to have; as it is in the 18 of Edw. 3. provided.

Whence 'tis a general Rule, both in Law and Statute, That such cases as have no re­medy provided in the other Law, belong to the Spiritual Courts: and indeed, it hence appears they have ever done so; be­cause we no where find in our Laws, that the Common Law did ever provide for them: and because the Kingdom of England is an intire Empire, where the King is furnish'd with a Temporalty and Spiritualty, sufficient to administer Justice to all persons, and in all Causes whatsoever: And consequent­ly, what Causes are not in the connusance of the Common Law, belong to the Spiritual Jurisdiction, which is plainly implied in 24 Hen. 8. c. 12. and other Statutes.

Upon the same ground in Law depend three great truths. 1. The Antiquity of Ecclesiastical Courts. 2. Their dependance upon the Crown. 3. The perfection of the Government, to administer Justice in all cases to all persons, from the Supream Power exercised in the Temporal and Spiri­tual Courts; all which lie in the Preamble of that Statute according to our Ancient Laws.

For, saith my Lord Coke in the conclu­sion of Cawdries Case, it hath appeared, as well by the ancient Common Laws of this Realm, by the Resolution of the Judges and Sages of the Laws of England in all successi­on of Ages, as by Authority of many Acts of Parliament, ancient and of latter times, That the Kingdom of England is an abso­lute Monarchy, and that the King is the on­ly Supream Governour, as well over Eccle­siastical persons, and in Ecclesiastical Cau­ses, as Temporal: To the due observation, of which Laws, both the King and the Sub­ject are sworn.

V.

IF you desire a more full and particular account of such Cases, as being not provi­ded for at Common Law, are therefore, and have been ever under the Spiritual power, take this excellent Enumeration of my LordCawdri [...]s Case. Coke.

Observe (good Reader) seeing that the determination of Heresies, Schisms, and Errors in Religion, Ordering, Examinati­on, Admission, Institution and Deprivation of men of the Church (which do concern God's true Religion and Service) of right of Matrimony, Diverces, and general Ba­stardy, (whereupon depend the strength of mens Descents and Inheritances) of Pro­bate of Testaments, and Letters of Admini­stration (without which no debt or duty due to any dead man can be recovered by the Common Law) Mortuaries, Pensions, Procu­rations, Reparations of Churches, Simony, Incest, Adultery, Fornication and Inconti­nency, and some others, doth not belong to the Common Law, how necessary it was for administration of Justice, that his Ma­jestie's Progenitors, Kings of this Realm, did by publick Authority authorize Ecclesia­stical Courts under them, to determine those great and important Causes Ecclesiastical (exempted from the Jurisdiction of the Com­mon Law) by the Kings Laws Ecclesiastical, which was done originally for two causes. 1. That Justice should be administred under the Kings of this Realm, within their own Kingdom, to all their Subjects, and in all causes. 2. That the Kings of England should be furnished upon all occasions, ei­ther foreign or domestical, with Learned Professors, as well of the Ecclesiastical as Temporal Laws.

VI.

Ecclesiastical Laws are the Kings Laws, though Processe be not in the Kings Name.

Now, albeit the proceedings and Processe Coke, Cawdr. Case, lat­ter end. of the Ecclesiastical Courts be in the Name of the Bishops, &c. it followeth not there­fore, that either the Court is not the Kings, or the Law, whereby they proceed, is not the King's Law. For taking one example for many, every Leet or View of Frank­pledge holden by a Subject is kept in the Lords Name, and yet it is the Kings Court, and all the proceedings therein are directed by the Kings Laws.

VII.

Spiritual Causes secured from Prohibiti­ons, notwithstanding, by Acts of Parlia­ment. Lord Coke, Cawdries Case in Edw. 2.

Albeit, by the Ordinance of Circumspeete N. B. agatis made in the 13 year of Edw. 1. and by general allowance and usage, the Ecclesi­astical Court held Plea of Tithes, Obventions, Oblations, Mortuaries, Redemptions of Pe­nance, laying of violent hands upon a Clerk, Defamations, &c. yet did not the Clergie [Page 75] think themselves assured, nor quiet from Prohibitions purchased by Subjects, until that King Edw. the Second by his Letters Patents, under the Great Seal, in, and by consent of Parliament, upon the Petitions of the Clergie, had granted unto them to have Jurisdiction in those Cases. The King in a Parliament holden in the Ninth year of his Reign, after particular Answers made to their Petitions concerning the matters abovesaid, doth grant and give his Royal assent in these words.

We desiring, as much of right as we may, to provide for the state of the Church of Eng­land, and the tranquillity and quiet of the Prelates of the said Clergie, to the honour of God, and the amendment of the state of the said Church, and of the Prelates and Clergie; ratifying and approving all and singular the said Answers which appear in the said Act; and all and singular things in the said Answers contained, We do for Ʋs and Our Heirs grant and command, that the said be inviolably kept for ever: willing and granting for Ʋs and Our Heirs, that the said Prelates and Cler­gie, and their Successors for ever, do exercise Ecclesiastical Jurisdiction in the Premises, according to the tenour of the said Answer.

VIII.

The Ecclesiaestical Jurisdiction is a branch of the Kings Supremacy; and he that deni­eth [Page 76] it, denieth the King to be a compleat Mo­narch, Cawdries Case. and Head of the whole intire body of the Realm, as my Lord Coke assures us, both from the Common Law and many Statutes in all Ages—made on purpose, from time to time, to vindicate the Crown and secure our own Church and its Jurisdiction under the Crown from the Pope, and his illegal En­croachments and Ʋsurpations before, and more especially by Hen. 8. and since the Re­formation; as is very amply proved by my Lord Coke, in his most excellent discourse on Cawdrie's Case, and since very learned­ly and fully by Sir John Davis, Atturny General in Ireland, in his Case of Praemuni­re, called Labor's Case; both which should be well read by all that desire satisfaction in this weighty point.

Thus the Jurisdiction of this Church, in subordination to the Supream Head of it, hath proceeded through all time, in the Laws and Statutes of our own Kingdom; and was never legally interrupted, till the 17 of Car. 1. but that Act repeal'd by the 13 of our present gracious King, it stands firm again, according to the letter of the said last Act, upon its ancient legal Basis.

IX.

The old Objection, that the Spiritual Courts do not Act in the Kings Name, &c. is fully Answered in the Book; but, because it is only mentioned there, that [Page 77] the Case was resolved by the Judges in L. Coke, Rep. 12. p. 7. King James's time: I shall here set it down, as abridg'd (for brevity) out of [...] Lord Coke by Manly.

Pasch. 4. Jac. Regis.

At this Parliament, it was strongly urg'd at a grand Committee of the Lords and Com­mons in the Painted Chamber; that such Bi­shops as were made after the first day of the Session, were not lawful Bishops.

1. Admitting them Bishops, yet the Man­ner and Form of their Seals, Stiles, Processe and proceedings in their Ecclesiastical Courts, were not consonant to Law; be­cause, by the Stat. 1 Edw. 6. 2. it is provi­ded, that thenceforth Bishops should not be Elective, but Donative, by Letters Patents of the King; and for that, at this day, all Bishops were made by Election, not Donati­on of the King; therefore the said Bishops are not lawful.

2. By the same Act it is provided, that all Summons, &c. and Processe in Ecclesia­stical Courts shall be made in the Kings Name and Stile, and their Seals engraven with the Kings Arms, and Certificates made in the Kings Name: it was therefore conclu­ded, that the said Statute being still in force, by consequence all the Bishops made after the Act of 1 Jac. were not lawful Bi­shops; and the proceedings being in the [Page 78] Name of the Bishop, makes them unlawful, quia non observata forma infertur adnullatio Actus.

Upon consideration of these Objections, by the Kings Commandment, it was Re­solved by Popham Chief Justice of England, and Coke Atturny of the King, and after affirmed by the Chief Baron, and the other Justices attendant to the Parliament, that the said Act of 1 Edw. 6. 2. is not now in force; being Repealed, Annulled and Anni­hilated by three several Acts of Parliament; any whereof being in force, it makes that Act of 1 Edw. 6. that it cannot stand, quia Leges posteriores priores contrarias abrogant: And by the Act of the 25 Hen. 8. c. 20. is set forth the manner of Election and Con­secration of Archbishops and Bishops; and also for the making and Execution of all things which belong to their Authority: with which words the Stile and Seal of their Courts, and the manner of their proceed­ings are included: which Act of 25 Hen. 8. is Revived by 1 Eliz. c. 1. and consequently, that of 1 Edw. 6. c. 2. is Repealed.

I advise the Reader to see it, as more at large, expressed; and the repealing Sta­tutes particularly mentioned, and argued in my Lord Coke, 12 Rep. p. 7, 8, 9. and bid him farewel, and not be wiser than the Law.

FINIS.

A Catalogue of some Books lately Printed for Richard Royston.

ROma Ruit: The Pillars of Rome bro­ken: wherein all the several Pleas for the Pope's Authority in England, with all the Material Defences of them, as they have been urged by Romanists from the beginning of our Reformation to this day, are Revised and Answered. By Fr. Fullwood, D. D. Archdeacon of Totnes in Devon.

The New Distemper: Or the Dissenters Usual Pleas for Comprehension, Tolerati­on, and the Renouncing the Covenant, Consider'd and Discuss'd; with some Re­flections upon Mr. Baxter's and Mr. Alsop's late Pamphlets, published in Answer to the Reverend Dean of S. Paul's Sermon con­cerning Separation.

The Lively Picture of Lewis du Moulin, drawn by an incomparable Hand. Toge­ther with his Last Words: Being his Re­tractation of all the Personal Reflections he had made on the Divines of the Church of England, (in several Books of his) Signed by himself on the Fifth and the Seventeenth of October, 1680.

Christ's Counsel to his Church: In Two Sermons preached at the two last Fasts. By S. Patrick, Dean of Peterburgh, and Chaplain in Ordinary to his Majesty.

THE END.

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