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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.
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 But first, if this Statute were not repealed (as indeed it is) there are several things in the body of it very considerable against Mr.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 advan∣tage.
1. The Statute observes in the very foun∣dation 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 Archbi∣shops and Bishops shall make, admit, &c. their Chancellors, and other Officers and Substitutes, which supposeth the Constitu∣tion 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 depen∣ding in the Kings Courts of Record at Com∣mon 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 provi∣ded a better hand to punish the delinquents than Mr. Hickeringill, and a milder punish∣ment 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. Hicke∣ringill would have it: And while the King knows the Statute is repealed, as shall next appear, we fear not but his Majesty is plea∣sed with, and will defend our Jurisdicti∣ons, while we humbly acknowledge their dependency on the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.
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 de∣clared) to be in the same state for process
of suits, punishment of crimes, and exe∣cution 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 al∣so 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 is the same state wherein it stood be∣fore the twentieth of Hen. 8. and then, we find, that by our ancient Laws and Customs, it was dependent on the Crown, whatever some Church-men thought to the contrary.
2. I have read, that this same Queen Ma∣ry 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 Liber∣ties, 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 Ec∣clesiastical 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 Sta∣tutes 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 shown, 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 men∣tioned 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 en∣titles his minute and thin piece, the Law of England.
Mr. CARY indeed mistakes the Sta∣tute; for it is the first of King James 25.
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, accord∣ing 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 kind∣ness to your beloved dissenting Clients? when you dared to betray them to the Devil and the Gaoler (to speak in Mr. Hickerin∣gill's language▪) (a far heavier sentence than Curse ye Meroz) and that upon no other ground, that I can find, in your Eng∣lish 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 Citati∣ons 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, con∣tempt 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 sa∣tisfie a doubt, but a lust; and his confidence
is as able to secure the deluded people from the danger of contempt of the Kings Ecclesi∣astical 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. Opini∣on and Reasons silencing this Objection in King James's time, Coke Rep. 12. p. 7, 8, 9.
II. A further Argument, that the Stat. 1 Edw. 6. 2. is repeal'd is taken from the un∣interrupted practice, both of the Ecclesiasti∣cal 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, be∣fore and since the Statute of Queen Eliz. and King James, called Statutes of repeal, un∣controulably proceeded in their own names, and not expresly in the name or stile of the King (let one instance be shewn to the con∣trary) then who can imagine without a fancy possest, that the Crown and States of the Realm should intend so great an altera∣tion 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,
neither then, not even since, expect a con∣formity 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 con∣cerned 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 praemu∣nire? or so fool-hardy, as to bear against the Crown it self, on which alone they know they depend against plain Acts of Parlia∣ment, 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 in∣tended.
2. For secondly, the practice of the Crown that was in the first place highly con∣cern'd in that Stat. 1 Edw. 6. 2. hath been ever since the Act of Queen Mary that re∣peal'd it, directly contrary to it; and, in a very great point or flower of the suprema∣cy, 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
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 refor∣mation thereof, be it enacted, that from henceforth no such Congee d'eslire be grant∣ed, not 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 Jurisdicti∣on of the Church, and the Kings Civil Judg∣es therein, have ever since own'd, and as occasion hath required, ratified, fortified, and made effectual all our Ecclesiastical pro∣ceedings 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 repeal∣ed it: Was the whole Kingdom so long, and in so deep a sleep, to be awakened by such impertinent and little barkings?
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 be∣fore, 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 Ecclesiasti∣cal 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 judg∣ment 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 other∣wise;
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 meek∣ly insinuates, p. ult.
For the Law is known to the subject, ei∣ther 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 Interpre∣tation 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 Eng∣land, 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 decla∣red, 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 Eng∣land, whatever little men that talk of the law in their own narrow and private senti∣ments 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 in∣sufferable sawciness, to say no worse, for any Ecclesiastical Judge to act by a law that
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 Coun∣cil of it.
The Judges Certificate concerning Ec∣clesiastical 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 parti∣culars, wherein our Opinions are required by the said Order, and we have all agreed:
That Processes may issue out of the Ec∣clesiastical Courts, and that a Patent un∣der the great Seal is not necessary for the keeping of the said Ecclesiastical Courts, or for the enabling of Citations, Suspen∣sions, Excommunications, or other Cen∣sures 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
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 Bi∣shops, Archdeacons, and other Ecclesi∣astical Persons may keep their Visitations as usually they have done, without Com∣mission 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 Regi∣ster'd in the Courts of High Commission and Star-Chamber.
Hereupon followed the Kings Proclama∣tion, 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
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 Coun∣cil, that a publick Declaration of these Opinions and Resolutions of his Reverend and Learned Iudges, being agreeable to the Judgment and Resolutions of for∣mer times, should be made known to all his Subjects, as well to Vindicate the legal proceedings of his Ecclesiastial Courts and Ministers, from the unjust and Scan∣dalous imputation of invading or en∣trenching 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 Ecclesi∣astical Courts and Ministers in these their Iust and Warranted proceedings: And hereof his Majesty admonisheth all his Subjects to take Warning, as they shall answer the Contrary at their Perils:
Given at the Court at Lindhurst, Aug. 18. in the Thirteenth Year of his Maje∣sties Reign.
God save the King.
You may see the Case 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.
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. Nei∣ther 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 de∣pendance 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 fun∣ction; 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 ac∣knowledge the said Supremacy in their pub∣lick Canons or Constitutions of the whole Church of England, as he notes p. 2. in Can. 1, 2, 1603. And are all these less signifi∣cant to testifie their dependance on and ac∣knowledgement 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 Ecclesi∣astical as in Civil Courts, is apparent from the true cause of using it in the Civil Courts,
which being not known or well heeded, may be the cause of the exception: for Bi∣shop 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 Au∣thority, as the objector seems to suppose; but rather to shew the same Court to be one of the Kings own immediate Courts, where∣in the King himself is supposed (in the con∣struction 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 Copyhol∣ders, &c. and such Courts as are held by the Kings grant, by Charter to Corporati∣ons, and the Universities: in all which Summons are issued out, and Judgments gi∣ven, 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
their stiles run; A. B. Major Civitatis Ex∣on. 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 Spi∣ritual; 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 admi∣rable Bishop Sanderson, in his excellent Treatise, shewing, that Episcopacy as Esta∣blished by Law in England, is not prejudicial to Regal Power; worthy of every English∣man's reading: his words to our purpose are these;
Which manner of proceeding, like that of the Spiritual Courts, constant∣ly used in those several Courts before men∣tioned; sith no man hath hitherto been found to interpret, as any diminution at all or disacknowledgment of the Kings Sove∣raignty over the said Courts: it were not possible the same manner of proceeding in the Ecclesiastical Courts should be so confi∣dently 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 con∣trary 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 al∣low'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.
Sect. 4.