An ansvvere to the fifth part of Reportes lately set forth by Syr Edvvard Cooke Knight, the Kinges Attorney generall Concerning the ancient & moderne municipall lawes of England, vvhich do apperteyne to spirituall power & iurisdiction. By occasion vvherof, & of the principall question set dovvne in the sequent page, there is laid forth an euident, plaine, & perspicuous demonstration of the continuance of Catholicke religion in England, from our first Kings christened, vnto these dayes. By a Catholicke deuyne.

Instances out of the raigne of K. Edvvard the fourth, the sixtenth King after the Conquest. §. I.

The Attorney.

6.

In the raigne of K. Edward the 4. the Pope graunted to the Prior of S. Iohns, * 1.1 to haue Sanctuarie within his Priorie, and this was pleaded and claimed by the Prior; but it was resolued by the Iudges, that the Pope had no power to graunt anie Sanctuarie within this Realme, and therefore by iudgment of law the same was disallowed.

The Catholicke Deuine.

M. Attorney repeateth still the word Law, to shew thereby that he is a lawyer, * 1.2 and delighteth in the word that hath byn so be∣neficiall vnto him; but yet alleadgeth here no law at all, nor can

he doe. For what law is that, by iugment wherof the Sanctuarie of S. Iohns Church in London graūted by the Pope, was disalowed, for so much as all other Sanctuaries had, and haue from that Sea, their franquises, and liberties? Was it Common-law, or Canon and Ecclesiasticall? Not Ecclesiasticall. For that all such law dependeth from thence, and consequently cannot be sup∣posed to haue disanulled the Popes authority in graunting Sanctuary. Common law if it were, it must appeare how it came in, by whom it was admitted, by what right it came to haue conusaūce of this Ecclesiasticall cause, which M. Attorney so often hath denyed before to apperteyne to his Common-law, wherof ensueth that eyther those temporall Iudges exceeded their limi∣tes in handling this cause, or that there was some temporall cir∣cumstance therein that brought it into that Courte.

10. And surely it may bee that this Sanctuarie pretended by the Prior of the Knights of S. Iohns in London, might not onlie bee the ordinary Sanctuarie of their Church and appurtenances the∣reunto (which all Churches haue by Canon law more or lesse) but also of some greater circuite, * 1.3 round about their said Church and habitatiō; which (they being Knights and souldiars) might importe some inconueniences to the common wealth by occa∣sion of contentions, fights, & brawles that might there fall out, the temporall officers hauing no accesse by reason of the said pretended Sanctuary. And so this case not being meere spirituall, but mixt also with temporall interest of the Common-wealth, the common Iudges, vntill the matter were better discussed and resolued in ecclesiasticall right, might put difficultie about the admission or execution of the said priuiledges, without the Kings expresse consent. And this is answered, according to M. Attorneys allegation (supposing it to bee sincere) not hauing by me the bookes, as before I haue said, out of which he hath taken the same, the view whereof no doubt would discouer more, therfore I recommend the examination to the Reader, that may haue commoditie to see, and read the places. But let vs see ano∣ther Instance of two more of his, out of this Kinges raigne.

The Attorney.

* 1.4There it appeareth that the opinion of the Kings-bench had been oftentimes, that if one spirituall person, sue another spiri∣tuall man in the Courte of Rome, for a matter spirituall, where he

might haue remedy before his Ordinary, that is the Bishop of that Diocesse within the Realme; Quia trabit ipsum in placitum ex∣traregnum, * 1.5 incurreth the daūger of a Premunire, a hainons offence, being contra legiantiae suae debitum, in contemptum Domini Regis, & contra ••oronam, & dignitatem suas.

By which it appeareth how greiuous an offence it was, against the King, his Crowne, and dignity, if any subiect, although both the persons, & cause were spirituall, did seeke for iustice out of the Realme, as though either there wanted iurisdiction, or iustice was not executed in the Ecclesia∣stical Courts within the same, which as it hath byn said, was an high offence contra Regem, Coronam, & dignitatem suas.

The Catholicke Deuine.

By this instance a man may greatly suspect, that M. Attorney dea∣leth not sincerely, but amplifieth and exaggerateth matters to his purpose. * 1.6 But howsoeuer this bee, cleere it is, that he dea∣leth not substantially. For heere only the note alleadged, saith that the opinion of the Kings-bench had byn oftentymes, that if one spirituall, or Ecclesiasticall person, should sue another in the Courte of Rome, when he might haue remedy before his Ordinary at home, he incurreth the daunger of a Premunire; for that he draweth a Plea out of the Kingdome without neces∣sity. Well then: this is but the opinion of some temporall lawyers of the Kings-bench, that a man that should doe this, should be in daunger of a Premunire, for that he draweth a Plea out of the Kingdome, when he might haue sufficient remedy by his spirituall Iudge at home. And this is according to the Statutes before made, vnder King Edward the third, and Richard the second, as you haue heard, that matters may not be carryed to Rome, at the first instance, but by way of appellation, when they cannot haue iustice at home. And this taketh not away the Popes authority, as you see, but rather con∣firmeth the same, and punisheth only disorderly people, that will vex, and trouble men, with citing them to Rome without ne∣cessitie.

12. Which being so, you will see, how friuolous M Attorneys exaggeration is heer, in painting out vnto vs with so great an hy∣perbole of words this haynons offence, against the duty of loyalty, in con∣tempt of the King our Lord, and contrary to his crowne and dignity, &c. And why is all this adoe?

For that (saith he) a subiect of the realme doth seeke for iustice out of the Realme in spirituall causes, as though there wanted iurisdiction or iustice within the Realme, which is an high offence

contra Regem, coronam, & dignitatem suas. Whereto I auns∣were, that what high offence it may be against suas (here twise repeated in the English, but corrected by the Latyn Interpreter) I know not, but sure I am, that against King, Crowne or Royall dignity it can be none, no more in England then in other Catho∣licke Kingdomes round about vs. And the reason here alleadged by M. Attorney excludeth all appellations betwene subordinate Courts, as wel within the Realme, as without, if it should be ad∣mitted and taken for good. Wherefore when he writeth in the margent, Note, as though some great argument were alleadged for his purpose, It is a note that he hath small store of substance to note, when he standeth so much vpon such a toy.

The Attorney.

* 1.7

In the Kings Courts of Record, where felonies are determined, the Bishop or his deputy ought to giue his attendance, to the end that yf any, that is indicted, and arraigned for felony, doe de∣maund the benefit of his Clergy, * 1.8 that the Ordinary may in∣forme the Court of his sufficiency, or insufficiency, that is, whe∣ther he can read, as a Clarke, or not, wherof notwithstanding the Ordinary is not to Iudge, but is a minister to the Kings Court, & the Iudges of that Court, are to Iudge of the sufficien∣cy, or insufficiency of the party, whatsoeuer the Ordinary doe informe them, and vpon due examination of the party, may giue iudgement against the Ordinaryes information: For the Kings Iudges, are Iudges of the cause.

The Catholicke Deuine.

* 1.913. I am content to admitt anie iudges in this cause, whether it be not impertinent to M. Attorneys purpose, to bring in this in∣stance. For howsoeuer he goeth about in words to dazel this case, yet is it euident, that for so much, as the Church by her pri∣uiledge of Superioritie, taketh out of the hands of temporall iu∣stice, men condemned to dy for felony, onlie for that they can read like Clerkes, though they bee no Clarkes indeed (for if they were, and had but so much as primam tonsuram, * 1.10 they could not bee held, nor iudged by that Court as often before hath byn shewed) it is euident where the eminencie of authoritie laie in those daies, to wit, in the spiritualtie, aboue the temporaltie: & vayne it is to stand vpon other trifling circumstances, whether the Bishops deputie sent to demaund the liberty of those felons by

law, did giue attendance vpon the Kings Courts, or no; or whe∣ther he, or the Iudges that were lay-men, must iudge of this suf∣ficiēcy or insufficiency; whether the fellon did read as a Clarke, or not. For if the temporall Iudges must discerne therof, as M. At∣torney auerreth, then in vaine was the Bishops Deputy called thi∣ther, without whom it might haue byn done by the Iudges alone. But if he were of necessity to be called thither, and vpon his oath, to pronounce, si legit vt Clericus, and that vpon his ver∣dict, the Iudge must giue sentence to admit the fellon to the be∣nefit of Clergy, and thervpon to haue pardon of his life, and to be deliuered vnto the Bishops prison, as of higher authority: then is it manifest, that this instance impugneth rather, then helpeth M. Attorneys assertion, as commonly doe all the rest, when they are well examined.

The Attorney.

The Popes excommunication is of no force within the Realme of England. * 1.11

In the raigne of King Edward the 4. a Legat from the Pope came to Calles, to haue come into England, * 1.12 but the King and his Counsell would not suffer him to come within England, vntill he had taken an oath, that he should attempt nothing against the King or his Crowne; and so the like was done in his raigne to another of the Popes Legats, & this is so reported in 1. H. 7. fol. 10.

The Catholicke Deuyne.

14. The first parte of this instance, about the validitie of the Popes excōmunication, hath oftentimes been answered before, * 1.13 what circumstance, and conditions were agreed vpon, to bee obserued in the execution thereof, for auoiding inconueniences, that came by false suggestions of some troublesome people, and among other, * 1.14 that it should allwaies bee directed to some B••s••op, whose certificate should bee required for the lawfvllnes therof, * 1.15 as before hath been shewed out of the 3. yeare of K. Edward the 3. & hath appea∣red also before out of King Richards Statute, where all the Bis∣hops expounded themselues, that it was not meant to derogate by that Statute from the Popes authoritie, to excōmunicate, &c. And in this very place, and next words after this present instance, hath M. Attor∣ney another instance out of King Richard the 3. in these words. It is resolued by the Iudges, that the iudgment of excommunication in the Courte of Rome, should not bind, or preiudice anie man within England at the Com∣mon-law.

Wherby is cleerly declared the meaning of the former cause, to wit, that the popes excommunication, which is a spirituall sen∣tence, or punishement for spirituall affaires, may not preiudice temporall all suites at the Common-law in temporall matters; and it is not much sinceritie in M. Attorney, to alleadg these parcells of his Iudges determina∣tions so nakedly, as he doth, without distinction, or explication, to the end his simple Reader may be put in error therby.

15. The other instance of the Popes Legate staied at Calles, and not suffered to come into England, vntill he had taken an oath to attempt nothing against the King, or his Crowne; sheweth that King Edward rather doubted, and feared his authoritie, then contem∣ned or denied the same; especially he being in that controuersy about the Crowne, as then hee was, and the Pope interposing his spirituall authoritie, between K. Henry the 6. and him. And as well he might alleadge the example of the Popes messenger de∣tained in Calles, by commaundement of King Phillip, and Q. Marie, when he brought the Cardinals hat, from Paulus 4. to Friar Peto, * 1.16 for that the said Princes would not suffer him to come into the Realme, vntill they had otherwise informed the said Pope by their Embassadours in Rome, that the same was not expedient. And yet did not this proue, that they either contemned the Po∣pes authoritie, or thought this soueraigntie of spirituall iuris∣diction to bee in themselues. And it is a case, that often falleth out in the affaires of Catholicke Princes with Popes, when they doubt anie thing will proceed against them from the said Sea Apostolicke, to keep off the execution, or notification therof by what means they can, vntill matters bee compounded. And we haue had many examples therof before, namely in the raignes of K. Henry the 2. K. Iohn. K. Henry the 3. and two King Edwards follo∣wing him, who fearing excommunication, were vigilant in prohibiting, that no messenger from Rome should enter the Realme without their licence, which was an argument rather of their esteeme, then disesteeme of that place, and power.

Notes

• * 1.1

  The first instance .1. H. 7.20.
• * 1.2

  The an∣svvere.
• * 1.3

  Hovv the cause of Sanctuary might be handled by tempo∣rall Iud∣ges.
• * 1.4

  The secōd Instance 9. E. 4 ••. vid•• Fuz.
• * 1.5

  Na. Br. fol. 44. H. agreeing heervvith. Note
• * 1.6

  The An∣svvere.
• * 1.7

  The third Instance.
• * 1.8

  9 E. 4.28.
• * 1.9

  The an∣svvere.
• * 1.10

  VV••o must iud∣ge vvhe∣ther a fel∣lon de∣serue the benefit of Clergie.
• * 1.11

  The 4 In∣stance.
• * 1.12

  12. E 4. fol. 16.
• * 1.13

  The an∣svvere.
• * 1.14

  S••a 16. Rich. 2. cap. 5.
• * 1.15

  Hovv the Popes ex∣commu∣nication had place or not place in England vnder K. Ed. the 4. 2. Rich. 3. fo••. 22.
• * 1.16

  VVhy Ca∣tholick Kings somtymes prohibi∣ted the entrance of the Po∣pes Lega∣tes.