The establish'd church, or, A subversion of all the Romanist's pleas for the Pope's supremacy in England together with a vindication of the present government of the Church of England, as allow'd by the laws of the land, against all fanatical exceptions, particularly of Mr. Hickeringill, in his scandalous pamphlet, stiled Naked truth, the 2d. part : in two books / by Fran. Fullwood ...

SECT. I.

Jurisdiction of the Church in Common Law.

THUS the power and Jurisdiction Ec∣clesiastical 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 mean∣ing; 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 Sta∣tutes.

'Tis most evident, William the Conqueror found the Bishops and other Ecclesiastical Ministers in great power and with large Ju∣risdiction, 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 distin∣guish'd the Tribunals one from the other: but saith Spelman, Secrevit, non diminuit Jurisdictionem Cleri, he did not lessen the Ju∣risdiction of the Clergy: Yea, by swearing, he confirm'd the Laws of holy Church, Quo∣niam per eam. Rex & Regnum solidum sub∣sistendi

sistendi habent fundamentum. Prooemium ll. suarum, ut Spel. Epis. because, by the Church both King and Kingdom have a solid foundation of subsisting. Thus the Church∣es 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 apper∣taineth.

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 remedy 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 gene∣rally 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

of Courts-Baron, which are such by Com∣mon 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 questi∣on the lawfulness of these Courts, because, in their original, they were not Established by Act of Parliament, as well as the legali∣ty of the Courts Spiritual; these being equally founded in the Ancient usage, Cu∣stom and Law of England; and all taken care for in Magna Charta, that ancient Au∣thentick account of our Common Law.

And why are Ecclesiastical Judges (I mean not Bishops only, whom Mr. Hicke∣ringill 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 Ec∣clesiastical 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 Preroga∣tive 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 Jurisdi∣ction

derives from and depends upon the Crown of England by Common Law: And I am bold to add, that the former cannot ea∣sily 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 Su∣pream, who is supposed to be personally or virtually present in his great Courts of Com∣mon Law; and is so declared to be by Acts of Parliament. Instit. p. 1. pag. 344. of my Lord Coke.

Notes

• Vid. Caw∣dries Case, Answ. to Object. 4.