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not) yet they were in this case examinable in the ecclesiasticall court, because they are matters incident, which come not in that case finally to be sentenced and determined, but are used as a meane and furtherance for the decision of the maine matter in question. And so the case standeth in other such incident pleas by way of barre; for otherwise either party in every cause might at his pleasure, by pleading some matter temporal! by way of exception, make any cause ecclesiasticall whatsoever subject to a prohibition, which is contrary to the reason of the common law, and sundry judgments thereupon given, as wee hope the judges themselves will acknowledge, and thereupon yeeld to have such prohibitions hereafter restrained.

Answer. Matters incident that fall out to be meere temporall, are to be dealt withall in the temporail, and not in the ecclesiastical court, as is before particularly set downe in the eleventh article.

20. That no temporall judges, under colour of authority to interpret statutes, ought, in favour of their Prohibitions, to make causes ecclesiasticall to be of temporall cognizance.

much as the common Book and Articles of religion are established and confirmed by severall acts of parliament, the temporall judges may challenge to themselves an authority to end and determine of all causes of faith and religion, and to send out their prohibitions, if any ecclesiasticall judge shall deale or proceed in any of thein: which conceit, how absurd it is, needeth no proofe, and teacheth us, that when matters meerly ecclesiasticall are comprized in any statute, it doth not therefore follow, that the interpretation of the said matters doth belong to the temporal judges, who by their profession, and as they are judges, are not acquainted with that kind of learning: hereunto, when we shall receive the answer of the judges, we shall be ready to justifie every part of this article.

Answer. If any such have slipt, as is set downe in this article, without other circumstances to maintaine it, we make no doubt, but when that appeared to the king's temporall court, it hath cases, that we may deale both with marriages been presently remitted; and yet there be and matters of deprivation, as where they will call the marriage in question after the death of any of the parties, the marriage may not then be called in question, because it is to bastard Objection. Although of late dayes it hath and disinherit the issues, who cannot so well been strongly held by some, that the interpre- defend the marriage, as the parties both living tation of all statutes whatsoever doe belong to themselves might have done; and so is it, if the judges temporall, yet we suppose, by cer- they will deprive a minister not for matter aptain evil effects, that this opinion is to bee pertaining to the ecclesiasticall cognizance, but bounded within certaine limits; for the strong for that which doth meerly belong to the cogconceit of it hath already brought forth this nizance of the king's temporal courts. And fruit, that even those very statutes which doe for the judges expounding of statutes that conconcerne matters meerly ecclesiasticall, and cern the ecclesiasticall government or prowere made of purpose with great caution, to ceedings, it belongeth unto the temporall preserve, enlarge, and strengthen the juris-judges; and wee thinke they have been exdiction ecclesiasticall, have been by colour pounded as much to their advantage, as either thereof turned to the restraining, weakening, the letter or intention of lawes would or could and utter overthrow of the same, contrary to allow of. And when they have been exthe true intent and meaning of the said sta-pounded to their liking, then they could approve tutes: as for example (besides the strange interpretation of the statutes before mentioned, for the payment of tithes) when parties have been sued in the ecclesiastical courts, in case of an incestuous marriage, a prohibition hath been awarded, suggesting, under pretence of a statute in the time of king Hen. 8. that it appertaineth to the temporall courts, and not to the ecclesiasticall, to determine what marriages are lawful, and what are incestuous by the word of God. As also a minister, being upon point of deprivation for his insufficiency in the ecclesiastical court, a prohibition was granted, upon suggestion that all pleas of the fitnesse, learning, and sufficiency of ministers belong only to the kings temporall courts, relying, as wee suppose, upon the statute of 13 Eliz. by which kind of interpretation of statutes, if the naming, disposing, or ordering of causes ecclesiasticall in a statute shall make the same to be of temporal cognizance, and so abolish the jurisdiction of the ecclesiasticall court, without any further circumstances, or expresse words to warrant the same, it followeth, that foras

of it; but if the exposition be not for their purpose, then will they say, as now they doe, that it appertaineth not unto us to determine

of them.

21. That persons imprisoned upon the writ

of de excommunicato capiendo are unduly delivered, and Prohibitions unduly awarded for their greater security.

Objection. Forasmuch as imprisonment upon the writ of excommunicato capiendo is the chiefest temporall strength of ecclesiasticall jurisdic tion, and that by the lawes of the realm none so committed for their contempt in matters of ecclesiasticall cognizance, ought to be delivered untill the ecclesiasticall courts were satisfied, or caution given in that behalfe, we would gladly be resolved by what authority the temporall judges do cause the sherifes to bring the said parties into their courts, and by their owne discretions set them at liberty, without notice thereof first given to the ecclesiasticall judges, or any satisfaction made either to the parties at whose suit he was imprisoned, or the eccle

siasticall court, where certaine lawfull fees are due and after all this, why doe they likewise send out their prohibitions to the said court, commanding, that all censures against the said parties shall be remitted, and that they be no more proceeded with for the same causes in those courts. Of this our desire, we hope your lordships do see sufficient cause, and will therefore procure us from the judges some reasonable answer.

Answer. We affirme, if the party excommunicate be imprisoned, wee ought upon complaint to send the kings writ for the body and the cause, and if in the returne no cause, or no sufficient 'cause appeare, then we doe (as we ought) set him at liberty; otherwise, if upon removing the body, the matter appeare to be of ecclesiasticall cognizance, then we remit him againe; and this we ought to doe in both cases; for the temporall courts must alwaies have an eye, that the ecclesiasticall jurisdiction usurp not upon the temporall.

gether destitute in effect of any meanes to uphold it, if the said proceedings by temporali judges shall be by them maintained and "justified; and therefore wee most humbly desire your lordships, that they may declare themselves herein, and be restrained hereafter, if there be cause found, from using the kings name in their prohibitions, to so great prejudice of his majesties said authority, as in debating the same before your lordships will hereafter more fully appeare.

Answer. We doe not, neither will we in any wise impugne the ecclesiasticall authority in any thing that appertaineth unto it; but if any by the ecclesiasticall authority commit any man to prison, upon complaint unto us that he is imprisoned without just cause, we are to send to have the body, and to be certified of the cause; and if they will not certifie unto us the particular cause, but generally, without expressing any particular cause, whereby it may appeare unto us to be a matter of the ecclesiastical cognizance, and his imprisonment be just, then we doe and ought to deliver him: and this is their fault, and not ours. And although some of us have dealt with them to make some such particular certificate to us, whereby wee may bee able to judge upon it, as by law they ought to doe, yet they will by no meanes doe it; and therefore their errour is the cause of this, and no fault in us for if we see not a just cause of the parties inprisonment by them, then we ought, and are bound by oath to deliver him.

23. No Prohibition to be granted, under pretence to reforme the manner of proceedings by the ecclesiasticall lawes, in causes confessed to be of ecclesiasticall cogni

zance.

22. The King's authority in ecclesiasticall causes is greatly impugned by Prohibitions. Objection. We are not a little perplexed touching the authority of his majestie in causes ecclesiasticall, in that we find the same to be so impeached by Prohibitions, that it is in effect thereby almost extinguished; for it seemeth, that the innovating humour is growne so rank, and that some of the temporall judges are come to be of opinion, that the commissioners appointed by his majesty for his causes ecclesiasticall, having committed unto them the execution of all ecclesiasticall jurisdiction annexed to his majesties imperiall crowne, by virtue of an act of parliament made in that behalfe, and according to the tenour and effect of his majesties letters patents, wherein they are authorised to imprison, and impose fines, Objection. Notwithstanding that the eccleas they shall see cause, cannot otherwise pro- siasticall jurisdiction hath been much impeach ceed, the said act and letters patents notwith-ed heretofore through the multitude of prohibistanding, then by ecclesiasticall censures onely: and thereupon of latter dayes, whereas certaine lewd persons (two for example sake) one for notorious adultery and other intolerable contempts, and another for abusing of a bishop of this kingdome with threatning speeches, and sundry railing termes, no way to be endured, were thereupon fined and imprisoned by the said commissioners, till they should enter into bonds to performe further orders of the said court; the one was delivered by an habeas corpus out of the kings bench, and the other by a like writ out of the common pleas: and sundry other prohibitions have been likewise awarded to his majesties said commissioners upon these suggestions, viz. that they had no authority either to fine or imprison any man; which innovating conceit being added to this that followeth, That the writ of de excommunicato capiendo cannot lawfully be awarded upon any certificate or significavit made by the said commissioners, wee find his majesties said supreme authority in causes ecclesiasticall, so largely amplified in sundry statutes, to be alto

tions, yet the suggestions in them had some colour of justice, as pretending, that the judges ecclesiasticall dealt with temporall causes: but now, as it seemeth, they are subject to the same controlments, whether the cause they deale in be either ecclesiasticall or temporall, in that prohibitions of late are wrestled out of their owne proper course, in the nature of a writ of errour, or of an appeale for, whereas the true and onely use of a prohibition is to re straine the judges ecclesiasticall from dealing in a matter of temporall cognizance, now prohibitions are awarded upon these surmises, viz. that the libell, the articles, the sentence, and the ecclesiasticall court, according to the ecclesiasticall lawes, are grievous and insufficient, though the matter there dealt withall be meerly ecclesiastical: and by colour of such prohibitions, the temporall judges to alter and change the decrees and sentences of the judges ecclesiasticall, and to moderate the expences taxed in the ecclesiasticall courts, and to award consultations upon conditions: as for example, that the plaintife in the ecclesiasticall court shall except

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diction, with the rights and immunities belonging to the church; we think, that they ought to weigh their said oaths better together, and not so farre to extend the one, as that it should in any sort prejudice the other: the due consideration whereof (which we most instantly desire) would put them in mind, any suggestion to the contrary notwithstanding, to be as carefull not to doe any thing that may prejudice the lawful proceedings of the ecclesiasticall judges in ecclesiasticall causes, as they are circumspect not to suffer any impeachment, or blemish of their owne jurisdictions and proceedings in causes temporall.

of the one halfe of the costs awarded, and that the register shall lose his fees; and that the said plaintife shall be contented with the payment of his legacy, which was the principall sued for, and adjudged due unto him at such day, as they the said temporall judges shall appoint, or else the prohibition must stand. And also where his majesties commissioners, for causes ecclesiasticall, have not been accustomed to give a copy of the articles to any party, before he hath answered them; and that the statute of Hen. 5. touching the delivering of the libell, was not onely publikely adjudged in the kings bench, not to extend to the deliverance of articles, where the party is pro- Answer. We are assured, than none can ceeded with er officio, but likewise imparted to justly charge any of us with violating our oaths, his majestie, and afterwards divulged in the and it is a strange part to taxe judges in this starre-chamber, as a full resolution of the manner, and to lay so great an imputation upon judges, yet within 4 or 5 moneths after, a pro- us; and what scandall it will be to the justice hibition was awarded to the said commissioners of the realme to have so great levity, and so out of the kings bench, upon suggestion that the foule an imputation laid upon the judges, as is party ought to have a copy of the articles, being done in this, is too manifest. And we are ascalled in question ex officio, before he should an- sured it cannot be shewed, that the like bath swer them; and notwithstanding that a motion been done in any former age; and for lesse was made in full court shortly after for a consulta-scandals then this of the justice of the realme, tion, yet an order was entred, that the prohibi- divers have been severely punished. tion should stand untill the said partie had a copy of the said articles given him; which novell and extraordinary courses doe seem very strange unto us, and are contrary not onely to the whole course of his majesties lawes ecclesiasticall, but also to the very maximes and judgement of the common law, and sundry

statutes of this realme, as wee shall be ready to

justifie before your lordships, if the judges shall endeavour to maintaine these their proceedings.

Answer. To this we say, that though where parties are proceeded withall er officio, there needeth no libell, yet ought they to have the cause made knowne unto them for which they are called ex officio, before they be examined, to the end it may appeare unto them before their examination, whether the cause be of ecclesiasticall cognizance, otherwise they ought not to examine them upon oath. And touching the rest of this article, they doe utterly mistake it.

25. That Excommunication is as lawfull, as Prohibition, for the mutuall preservation of both his majesties supreme jurisdiction. Objection. To conclude, whereas for the better preserving of his majesties two supreme siasticall and the temporall, that the one might jurisdictions before mentioned, viz. the ecclefore have of ancient time been ordained, that not usurp upon the other, two meanes heretois to say, the censure of Excommunication, and the writ of Prohibition; the one to restraine the croachment of the temporall jurisdiction upon the ecclesiasticall, the other of the ecclesiastisire your lordships, that by your meanes the upon the temporall, we most humbly deJudges may be induced to resolve us, why excommunications may not as freely be put in ure for the preservation of the jurisdiction ecclesiasticall, as prohibitions under are, pretence to defend the temporall, especially against such contentious persous, as doe wittingly and willingly, upon false and frivolous suggestions, to

call

and great scandall of ecclesiasticall jurisdictions, daily procure, without feare either of God or men, such undue prohibitions, as we have heretofore mentioned.

Answer. The excommunication cannot be

gain-said, neither may the prohibition be denied upon the surmise made, that the matter pursued in the ecclesiasticall court is of temporall cognizance, but as soon as that shall appeare unto us judicially to be false, we grant the consultation.

24. That temporall Judges are sworne to de- the delay of justice, vexation of the subjects, fend the Ecclesiastical Jurisdiction. Objection. We may not omit to signifie unto your lordships, that, as wee take it, the temporall judges are not onely bound by their ancient oath, that they shall doe nothing to the dis-herison of the crown, but also by a latter oath unto the king's supremacy, wherein they doe sweare, that, to their power, they will assist and defend all jurisdictions, priviledges, preheminences, and authorities united and annexed to the imperiall crowne of this realme; in which words the ecclesiasticall jurisdiction is specially aimed at so that whereas they doe oftentimes insist upon for their oath, for doing of justice in temporall causes, and do seldome make mention of the second oath taken by them for the defence of the ecclesiasticall juris

For the better satisfaction of his majesty, and your lordships, touching the objections delivered against Prohibitions, we have thought good to set downe (as may be perceived by that which hath been said) the ordinary proceeding in his majesties courts therein: where

:

by it may appeare both what the judges doe, and ought to doe in those causes; and the ecclesiastical judges may doe well to consider, what issue the course they herein hold can have in the end and they shall find it can be no other, but to cast a scandall upon the justice of the realme; for the judges doing but what they ought, and by their oaths are bound to doe, it is not to be called in question; and if it fall out, that they erre in judgement, it cannot otherwise be reformed, but judicially in a

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' and descent, nor a way in any degree likely to attain that important end, that the one should 'be set as a judge over the other, and prescribe bounds to it and take to itself the cognizance ' of whatever matters itself shall please. I shall not say how well the bounds in the present case are preserved upon that foot, but certainly it would not be thought a good expedient for

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Mr. Justice Foster, before he was made a judge, published a Tract entitled "An Examination of the Schism of Church power, laid down in the Codex Juris Ecclesiastici Anglicani, &c." It is ably written, and contains Inuch learning relative to the ecclesiastical law and history of England, but it is composed with too much spleen towards bishop Gibson, the author of the Codex. This Case is much con-preserving bounds of any other kind to imsidered in it, and the following passage is power one to judge for both (i. e. to impower thought worth insertion here: "It may easily him to encroach upon his neighbour and enbe made appear, if it shall be thought necessary, large his own bounds at pleasure) as oft as that Prohibitions have gone from the temporal any controversy shall arise.'-The force of to the spiritual courts, as from a superior to an this reasoning from the equality of original, inferior jurisdiction, ever since the two juris- I think lies here; the temporal and spiritual dictions have been separated; and, indeed, the courts flow equally (or rather alike) from the notion of a subordination of jurisdictions im- crown, or are equal in point of original and plies that it is the province of the one to re- descent; therefore they are or ought to he strain and correct the excesses of the other. equal in point of jurisdiction; the one ought not This supremacy of the Courts of Westminster- to have a restrictive power over the other. If hall over the Ecclesiastical, hath in all ages this be not his lordship's inference how can it given great disturbance to that part of the be said that the setting one of the courts as Clergy who have affected an absolute independ-judge over the other seems not agreeable to their ance on the state. The arguments, indeed, equality of original and descent? But if his which have been employed against it, have been lordship intended to infer an equality in point different, as the temper of the times and the of jurisdiction from 'what he is pleased to call circumstances of the Church have varied. But an equality of original and descent, he will be the point in view hath been generally the same, pleased to apply the same reasoning to every the independance of the Church. In popish other court in the kingdom from the high court times, when the Church could scold and thunder of Parliament to the court of Pipowder, and if with impunity, this independency was claimed it should appear that they all flow equally or alike in direct terms; and the king and all his civil from the same original law and immemorial ministers were admonished not to disturb custom, I fear his argument will conclude the Church in the exercise of spiritual discipline against any manner of subordination among by prohibitions and attachments grounded on them in point of jurisdiction, which would be them, under pain of excommunication, suspen- carrying the matter much farther than he in sion, and interdict. But since the supremacy tended; though, I confess, I do not know where of the crown in ecclesiastical causes hath been to stop, if the argument grounded on the equaesteemed a fundamental principle of our con- lity of original, with regard to the spirituals and stitution, that very supremacy hath been thought temporals, concludes at all in favour of the a sufficient argument for overthrowing the an- former. But his lordship has favoured us with cient jurisdiction of the temporal, over the another train of reasoning against Prohibitions, spiritual courts. Archbishop Bancroft made grounded on the seeming absurdity and inconthis use of the regal supremacy, in the Articlesvenience of setting one court as judge over the he exhibited to the lords of the Privy Council against the Judges of Westminster Hall upon the head of Prohibitions. His lordship (Gibson bishop of London) hath adopted the argument, and pressed it with all the advantage it is capable of: The authority of spiritual courts and temporal courts of law flowing equally from the crown, and it being of so great importance to the good of the community that each be kept within its proper bounds, it seems by no means agreeable to that equality of original

other, in questions touching the bounds of their several jurisdictions; and if the case was, as his lordship represents it, the absurdity and inconvenience would be great indeed, if the temporal court might lawfully take to itself the cognizance of whatever matters itself shall please ; or was empowered to encroach upon the spiritual, and to enlarge its own bounds at pleasure: if this, I say, was implied in the right claimed by the temporal courts, of giving remedy against the encroachments of the ecclesiastical,

(which is all that is intended by the writ of Prohibition) the absurdity would be as great as his lordship endeavours to represent it. But his lordship will forgive me, if I say the absurdity lies only in his state of the case. Our excellent constitution is not chargeable with it. The bounds of ecclesiastical jurisdiction are already settled by law and immemorial custom, to which the judges are obliged by oath and by the duty of their place to conforin themselves. The granting Prohibitions is not a power to be exercised or not at the pleasure of the court. It is not the court's taking to itself the cognizance of whatever matters itself shall please, or enlarging its own jurisdiction, at pleasure; no, it is a matter of mere right, in which the judges are to be guided by the known laws of the land,

He

and not by will and pleasure.”—See also “A short View of the Conduct of the English Clergy so far as relates to civil affairs from the Conquest to the Revolution," published 1737, and said to be written by sir Edmund Thomas, bart. Collier argues resolutely against the authority of these determinations of the Judges. maintains that the questions arising out of a contest for jurisdiction between the temporal and ecclesiastical judges ought not to be determined by either of those parties. Against ford Coke, he cites lord Co. 8 Rep. 117 et seq. and other common law authorities. See Coll. Eccl. Hist, vol. 1, 510, et seq.: vol. 2, 688. Repeated instances of a collision between the Judges, and Bishops occur in lord Coke's 12th Report.

SO. The Trials of ROBERT WINTER, THOMAS WINTER, GUY FAWKES, JOHN GRANT, AMBROSE ROOKWOOD, ROB. KEY ES, THOMAS BATES, and Sir EVERARD DIGBY, at Westminster, for High Treason, being Conspirators in the Gunpowder-Plot: * 3 JAC. I. 27th Jan. A. D. 1606. THE Commissioners were, the Earls of Notringham, Suffolk, Worcester, Devonshire, Northampton, and Salisbury; the Lord Chief Jusfice of England, sir John Popham, the Lord Chief Baron of the Exchequer, Thomas Fleming; and sir Peter Warburton, knight, one of the Justices of the Common-Pleas.

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maliciously, falsely, and traitorously move ' and persuade as well the said Thomas Winter, Guy Fawkes, Robert Keyes, and Themas 'Bates, as the said Robert Catesby, Thomas Percy, John Wright, Christopher Wright, and "Francis Tresham, That our said sovereign lord 'the king, the nobility, clergy, and whole com'monalty of the realm of England, (papists exThe Effect of the INDICTMENT. cepted) were heretics; and that all heretics THAT whereas our sovereign lord the king were accursed and excommunicate; and that had, by the advice and assent of his council, none heretic could be a king; but that it was for divers weighty and urgent occasions con- ' lawful and meritorious to kill our said sovereign cerning his majesty, the state, and defence of lord the king, and all other heretics within the church and kingdom of England, appointed this realm of England, for the advancing and a Parliament to be holden at his city of West- ' enlargement of the pretended and usurped minster; That Henry Garnet, Superior of the authority and jurisdiction of the bishop of Jesuits within the realm of England, (called Rome, and for the restoring of the superstialso by the several names of Wally, Darcy,tious Romish religion within this realm of Roberts, Farmer, and Henry Philips) Oswald 6 England. To which traitorous persuasions, Tesmond, Jesuit, otherwise called Oswald 'the said Thomas Winter, Guy Fawkes, RoGreenwell, John Gerrand, Jesuit, (called alsobert Keyes, Thomas Cates, Robert Catesby the several names of Lee and Brooke) Ro-by, Thomas Percy, John Wright, Christobert Winter, Thomas Winter, gentlemen, Guypher Wright, and Francis Tresham, traitoFawkes gent, otherwise called Guy Johnson, Robert Keyes gent. and Thomas Bates yeoman, late servant to Robert Catesby esquire; together with the said Robert Catesby, and Thomas Percy esquires, John Wright and Christopher Wright gentlemen, in open Rebellion and Insurrection against his majesty, • lately slain, and Francis Tresham esq. lately dead; as false Traitors agsinst our said sovereign lord the king, did traitorously meet and assemble themselves together; and being so met, the said Henry Garnet, Oswald Tesmond, John Gerrard, and other Jesuits, did

* For the Proccedings in Parliament respecting this Plot, see 1 Cobb, Parl. Hist. 1052, et seq,

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rously did yield their assents; And that there

upon the said Henry Garnet, Oswald Tes'mond, John Gerrard, and divers other Je'suits; Thomas Winter, Guy Fawkes, Robert Keyes, and Thomas Bates, as also the said Robert Catesby, Thomas Percy, John Wright, Christ. Wright, and Francis Tresham, traitorously amongst themselves did conclude and agree, with Gunpowder, as it were with one blast, suddenly, traitorously and barbarously to blow up and tear in pieces our said sovereign lord the king, the excellent, virtuous, and gracious queen Anne, his dearest wife, the most noble prince Henry, their eldest son, and future hope and joy of England; and 'the lords spiritual and temporal, the reverend 'judges of the realm, the knights, citizens and

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