Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

Cawdry versus Atton.

5. IN Trespasse brought by Robert Cawdry Clerk, against George Atton, * 1.1 for breaking his Close at North Luffenham in the County of Rutland, upon not guilty, and a speciall Verdict, the Case appeared to be this, to wit, that the Plaintiff was Rector Ecclesiae de North Luffenham aforesaid, of which the place was parcell, and being so seised, was deprived of his Rectory by the late Bishop of London and his Colleagues, by virtue of the high Com∣mission to them and others diverted, because he had pronounced and uttered slanderous and contumelious words against, and in depravation of the Book of Common-prayer; But the form of the sentence was, that the said Bishop by, and with the assent and consent of five others of the said Commissioners his Companions, and namely which deprived him.

And further, it was not found, that the Commissioners named were the naturall Subjects born of the Queen, as the Statute enacts that they should be: And if the deprivation be void, then they find the Defendant guilty, and if it were good, then they find him not guilty. And it was moved that the deprivation was void.

First, Because that wheras the Commission is to them, or any three of them, of which the said Bishop to be one amongst others, it ought to have been the sentence of them all, according to the authority given to them, which is equall, and not that it was done by one with assent of the other. Then be∣cause it is not found that the Commissioners are the naturall Subjects of the Queen born, as by the words of the Statute they should be.

Another is, because the punishment which the Statute provides for those of the Ministry which deprave this Book, is to loose the profits of all their Spirituall Promotions but for a year, and to be imprisoned by the space of six months, and not to be deprived untill the second Offence, after that he had been once committed, and therfore to deprive him for the first offence was wrongfull and contrary to the Statute. But by the whole Court for the form of the deprivation, it is, that which is used in the Ecclesiasticall Courts, which alway names the chief in Commission, that are present at the begin∣ning of the Sentence, and for the other they mention them only as here, but of their assent and consent to it, and in such cases we ought to give credit to their form, and therfore tis not to be compared to an authority given at Com∣men Law by Commission.

And for the matter that is not found, that the Commissioners were the na∣turall Subjects of the Queen born, it is to be intended that they were such, unlesse the contrary appear: But here at the beginning it is found that the Queen, secundum tenorem & effectum actus predict. had granted her Com∣mission to them in causis Ecclesiasticis, and therfore it appeareth sufficient∣ly that they were such as the Statute wills them to be.

And for the deprivation, they all agreed that it was good, being done by the authority of the Commission, for the Statute is to be understood where they prosecute upon the Statute by way of Inditement, and not to restrain the Ecclesiasticall Iurisdiction, being also but in the Affirmative.

And further by the Act and their Commission, they may proceed according to their discretion to punish the offence proved or confessed before them, and so are the words of their Commission warranted by the clause of the Act.

And further, the Ecclesiasticall Iurisdiction is saved in the Act.

And further, all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this clause in the Act: And now lately it was agreed by all the Iustices, that a Fine of 200. marks set upon one for a viti∣ous liver by the high commission was warranted by virtue of the Commissi∣on and Act: And therfore if the Act with the Commission, are to be consder∣ed in this case, wherupon it was agreed that the Plaintiff should take no∣thing by his Writ: Which you may see, Hill. 33. Eliz. Rot. 315.

Notes

• * 1.1

  Vide this Case Coke lib. 5. 1. pa.