The resolutions of the judges upon the several statutes of bankrupts as also, the like resolutions upon 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by T.B., Esq.

Case of Premunire.

In Doctor Cosines Book, intituled, An Answer, &c. and publisht 1584. And a Pamphlet lately publisht by Doctor Ridley, they would obtrude upon the World, That in regard by the Act 10 Eliz. cap. 1. all Spiritual and Ecclesiastical Power within the Realm is annexed to the Crown, and the Law thereof is the Kings Ecclesi∣astical Law; That therefore no Premunire lyes against any Spiritual Judge for any cause whatsoever; And the Reasons some of their Profession give to confirm it are,

1. That when the Statute of Premunire was made, the Pope usurped Ecclesiastical Jurisdiction, though de jure it belonged to the King: But now since the King as well de facto as de jure is Supream Head of all; The cause being changed, the Law is changed also.

2. ••T conclusion of the Writ of Premunire is in Domini Regis contemptum et prejudicium et dictae Coronae et dignita∣tum suarum Laesionem et exhaeredationem manifestam et contra forman statuti, &c. which proves the Jurisdictions united to the Crown; and what is united to, and derived from

the Crown, cannot be said contra Coronam et dignitatem Regis.

3. The High Commission Court is the Kings Court, and therefore though it may be said, The Consistory Courts are Curiae Episcoporum, yet that Court, by force of the High Commission, is the Kings, and so their Pro∣ceeding•• shall not be lyable to the Premunire.

4. This new Court is erected by Act of Parliament, &c. And because the S••atute of R. 2. speaks de curia Romana seu alibi, &c. This (alibi) cannot extend to a Court erected by Act of Parliament, 10 Eliz. But to these Ob∣jections it was answered and resolved by divers Justices in this Term, That without Question the•• Statutes of 27 Ed. 3. 16 R. 2. &c. de Premunire, are yet in force. And all proceedings before any Ecclesiastical Judge, that were in danger of Premunire before 1 Eliz. are now in case of Premunire after the said Act, the said Acts of Premunire not being repealed by 1 Eliz.

1. 2. And as to first and second Objections, it was answered, That true it is, The Crown of England hath as well Ecclesiastical as Temporal Jurisdiction annex'd to it, as appears by the Resolution in Cawdryes Case from Age to Age. And though this was de jure, yet where the Pope became so Potent, he usurped upon the Kings Ecclesiastical Power in this Realm, but this was meer Usurpation. And therefore all the Kings of this Realm, Totis viribus proinde, for establishing of their Temporal Law, by which they inherit their Crown, and by which, &c. were alwayes jealous in any part or point it should be incroached upon; And if the Ecclesiastical Law did usurp upon the Temporal, it was severely punished, and the Offender judged an Enemy to the King by the anci∣ent Statutes; and every one might have killed him be∣fore the Statute of 5 Eliz. And this is the Reason, the Crown it self is directed descendable by the Common Law, and Treason against the Crown is punished by this Law. And therefore usurpation by an Ecclesiasti∣call

Judge upon it, is said to be contra Coronam et digni∣tatem Regis: And all Prohibitions since 1 Eliz. do con∣clude contra Coronam et dignitatem Regiam; for as 'twas resolved by all the Justices, Pasch. 4 Jac. Regis, est contra Coronam, &c. when any Ecclesiastical Judge doth usurpe upon the Temporal Law, for the cause of the Subject is drawn ad aliud examen, when his Cause is not ended by the Common Law, whereto by Birth-right he is inheritable.

3. As to the Third, though the Court by force of High-Commission is the Court of the King, yet their proceedings are Ecclesiastical: And therefore if they usurpe upon the Temporal Law, this is the same offence which was before the Act, 10 Eliz.

4. As to the Fourth, though it be a new Court, yet the antient Statutes extend to it, in this word (Alibi) and in H. 8. times several new Bishopricks were erected; yet never any question, but the old Acts of Premuri did ex∣tend to them. But to answer all Objections at once, whereas the Act 1 Eliz. repealed the Statute 1 & 2 P. & M. cap. 8. yet there is an express Proviso in the said Act 1 Eliz. That it shall not extend to Repeal any Clause or Matter contained in the 1 et 2 P. M. which in any sort concerneth any matter or cause of Premunire, but that all of that stand in force. See the said two Acts, and also 16 R. 2. Also the Act of 1 Eliz. revives the Act 25 H. 8. cap. 10. which makes a Premunire in a Dean and Chapter, &c. for not electing, certifying, or admitting a Bishop elected; by all which, it appears the said Act of 1 Eliz. never intended to take away the offence of Premunire.

But note in what Cases a Premunire lyes, and in what not.

1. In all Causes, when the Cause originally belongs to the Cognizance of the Ecclesiastical Court and Suit is prosecuted there, as belonging to their Cognizance, (though in truth (if rightly examined) it ought to be

determined ••t Common Law) yet no Premunire lyes there, but a Prohibition. As if Tythes are severed from the nine parts, and are carried away; if the Parson sue for the Substraction of these Tythes in the Spiritual Court, this is not in the case of Premunire, Vide 10 H. 4. 2. agreeing with this Opinion. So if a Parson sue for Tythes of surmising that they were Sylvae Caduae, under the age of 20 years, where in truth they were above; yet a Prohibition lyeth, and no Premunire.

2. But though the Cause originally may appertain to the Cognizance of the Ecclesiastical Judge, yet if he sue for it in the nature of a Suit, which doth not belong to the Ecclesiastical Court, but to the Common Law, there a Premunire lyeth: As in the former Case, If the Parson after severing of Tythes, will in any Ecclesiasti∣cal Court sue for carrying away his Tythes from the 9 parts, which Action pertains to the Common Law: In such case both the Actor and Judge incurr the danger of Premunire. And so it was adjudged 17 H. 8. as Spillm••n Reports it: One Turb••rvile sued a Premunire against a Parson, that convened him into the Ecclesiasti∣cal Court, and there libell'd against him for taking of Ty hes which were sever from the nine parts, and the Parson was condemned to be out of the protection of the King, to forfeit all his Lands, Goods, and Chattels, and his Body to perpetual Imprisonment, and damages to the Party. So of a Mortuary delivered and re-taken; if the Parson sue for this as for a Mortuary to him delive∣red, he is in case of Premunire, 10 H. 4. 2. So in the case put for tythe of Wood, if it appear by the Libell that the Cognizance of the Case doth not belong to Court Christian, the Premunire lyes, as you may see in the Book of Entries▪ tit. Dismes, fol. 221. But the tit. Prohibition, fol. 449. Divisione Dismes, Ps. 2, 3, 4, 5, & 6. If the suit be pro Sylva caedua, &c. and the Suit be framed so as the Cognizance belongs to Court Christian, though the truth be otherwise; no Premunire, but a Prohibition lyes.

3. When the cause originally belongs to the Cogni∣zance of the Common Law, and not to the Ecclesiasti∣cal Court; there though they Libel for it according to the course of the Ecclesiastical Law, yet the Premunire lyeth, because that this draws the cause which is deter∣minable at Common Law ad aliud examen, viz. to be decided by the Civil Law, and so deprives the Subject of the Common Law, his Birth-right; and wi••h this agrees the Book of Entries, tit. Premunire, fol. 229. b. & 430. a. So that if the Original cause be Temporal, though that they proceed by Citation, Libel, &c. in Ecclesi∣astical manner, yet this is in danger of Premunire. And the reason of this is, because he endeavours to draw Cog∣nitionem quae ad Curiam domini Regis pertinet ad aliud exa∣men; that is, that the Debt, the Cognizance whereof belongs to the Court of the King; he intends by the Original Suit to draw it to be determined by the Eccle∣siastical Court.

And note, In the Indictment of Premunire against Cardinal Wools••y, Mich. 21 H. 8. 14. it is said, Quod Praedictus Cardinalis intend. finaliter antiquissimas leges Angliae penitus subvertere et enervare, univer sumque hoc Regnum Angliae et ejusdem Angliae populum, legibus imperia∣libus, vuilgo dict. legibus Civilibus, et ••orum legum Canonibus isperpetuum subjurare, &c. And this included within these words, Ad aliud examen trahere, viz. to decide that by the Civil Law, which is determinable by the Common Law. And upon this was a notable Case in Hill. an. 25 H. 8. of Nicholas, Bishop of Norwich, against whom, he then being in the Custody of the Marshall, the Kings Attorney did prefer a Bill of Premunire, the matter whereof was this, In Thetford in Com. Norfolke hath been de tempore cujus, &c. such Custom that all Ecclesiastical Causes rising in that Town should be de∣termined before the Dean of that Town, who hath parti∣cular Jurisdiction there, and that none in that Town shall be drawn in Plea in any other Court-Christian,

unless before the same Dean: And if it ought to be done against the same Custom, this to be presented before the Mayor of the same Town, and the Party to forfeit 6 s. 8 d. That One such sued in the Consistory of the Bishop for a thing arising within the said Town, which was presented before the Mayor, for which he forfeited 6 s. 8 d. The Bishop cited the Mayor to appear before him at his House at Hoxin in Suffolk, generally pro salute animae, but upon appearance••, 〈◊〉〈◊〉 upon all the Matter, and enjoyn'd him on pain of Excommunication, to annul the said Presentment: The Bishop had Council assigned him, who objected, That as well the Present∣ment as Custom was void, and therefore not contra Co∣ronam, &c. nor drawn by the Bishop ad aliud exa∣men.

2. They objected, That the Bishop's Court was not intended within the Act of 16 R. 2. but in Cur. Romana aut alibi, and this (alibi) ought not to be out of the Realm; but it was,

Resolved by Fitz James, chief Justice, Et. per to∣tam Curiam, that be the Custom or Presentment good or bad, this is a Temporal thing, determinable at Common Law, and not in Spiritual Court; and therefore the Bishop hath incurred the Premunire.

3. That alibi extends as well to the Bishop's Courts, &c. as well within the Realm, as else-where; and so the Court said it had been often adjudged: whereupon the Bishop confessed the Indictment. And Judgment was given, That he shall be out of the King's Protection, and that his Lands, Goods, and Chattels, should be for∣feited, and his Body to be imprisoned ad voluntatem Regis; &c.