let them be" in scriptis" excommunicated, and after forty days certified unto the chancery. This direction, touching the said first sort, will serve for the second, such as are of latter years revolted. Sixthly, of those that before stood excommunicated, and so have been publicly 5 denounced according to the said canon, if there be amongst them any of the said two sorts, then let two or three of the principallest of them, as is aforesaid, that have stood excommunicated forty days, be presently certified unto the said court. And for your better encourage- 10 ment herein, if you shall advertise me of any such certificate, I will use my uttermost endeavour to procure the writ "De excommunicato capiendo," and take such order as that the same shall be faithfully and speedily served; that so they, who have not learned how to use their 15 former liberty, may be better instructed by chastisement in prison. Your lordship knoweth, that the people are commonly carried away by gentlemen recusants, landlords, and some other ringleaders of that sort, so as the winning or punishing of one or two of them is a reclaim-2 ing, or kind of bridling of many, that do depend upon them; which hath induced me to prescribe to your lordship by the directions precedent such a moderation and course, as I think fit to be generally pursued; hoping that when they, who have been seduced under pretence 25 of toleration, or I know not what vain imagined thing, shall hereby find that such disobedient persons are no longer to be borne with, but that the laws, made in that behalf, are carefully to be executed, they will be better advised, and reform themselves; and that the rest of 30 such simple people will be more heedful hereafter, that they be not misled and carried away by lewd persuasions of any person whatsoever. Lastly, we that are bishops, being all of us (as is supposed) justices of the peace, it is much marvelled, that so many priests and Jesuits range 35 about in our dioceses, without any impeachment or regard

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almost had of them; we ourselves seldom or never seeking after them; it is said, that our remissness therein doth discourage the rest of the justices of peace from taking such pains in that behalf, as heretofore they have 5 been accustomed, and that they would be as ready as they were to join with us in that service, if they might see our willingness thereunto, either by effecting something ourselves, or by our intelligence (having all the ministers of our diocese at our commandment) would give them our best directions, where those impostors might be met with, and apprehended. These things, I fear, may justly be objected against some of us; and I am driven now and then into some straits, how to excuse such our security. I do therefore very heartily 15 pray your lordship, to think thereof, not that I have any cause to suspect you to be one of the number (if I shall speak properly), but rather to inform you what is expected at our hands, that with better discouragement we may therein discharge our duties. And thus not doubting, 20 but that your lordship will have due regard both of this last point, and likewise of all the premises, and letting you understand, that I keep the copy of this my letter, that if any of our brethren shall neglect them, or any part of them, I may have the same for my discharge, and 25 every one of us be driven to bear his own burden; I

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commit your lordship, with my hearty commendations, unto the tuition of Almighty God. From Lambeth the twelfth of March, MDCIV.

Your lordship's very loving friend and brother,

R. CANTUAR.

Postscript. After I had written this letter, I received, upon occasion, this direction from his majesty, that when your lordship depriveth any of your factious ministers for

their obstinacy, you shall take such order with the next incumbent, as that the party so deprived may have two or three months' liberty to remain still in the parsonage or vicarage house, if he have no other of his own; that so he may have that time to provide for himself, and not 5 be thrust out into the streets upon a sudden.

CXXIII.

Archiepisc. Cant.
RIC. BANCROFT 1.

Anno Christi
1605.

Reg. Angliæ
JACOB. I. 3.

Certain articles of abuses, which are desired to be reformed in granting of prohibitions; exhibited by Richard Bancroft, archbishop of Canterbury, in the name of the whole clergy, to the lords of the privy council.-Coke's II. Institut. fol. 601. seqq.

I." HIS majesty hath power to reform abuses in prohibitions." The clergy well hoped, that they had taken a good course in seeking some redress at his majesty's hands concerning sundry abuses offered to his 10

15

Certain articles of abuses] Connected with the claims advanced at this period by the lovers of prerogative was the attempt made by the archbishop in these articles to ensure to the ecclesiastical courts the right of interpreting all statute laws concerning the clergy." The articles were exhibited in Michaelmas term anno 3 Jacobi regis to the lords of the privy council against the judges of the realm; and the answers thereunto upon mature deliberation and consideration, in Easter term following, by all the judges of England and the barons of the exchequer, were with one unanimous consent under their hands (resolutions of highest authorities in law) delivered to the lords of the council." 20 "Which answers and resolutions although they were not enacted by authority of parliament (as our statute of Articuli cleri in 9 Edw. II. was), yet being resolved unanimously by all the judges of England and

ecclesiastical jurisdiction, by the over frequent and undue granting of prohibitions; for both they and we supposed (all jurisdiction both ecclesiastical and temporal being annexed to the imperial crown of this realm) that his 5 highness had been held to have had sufficient authority in himself, with the assistance of his council, to judge what is amiss in either of his said jurisdictions, and to have reformed the same accordingly; otherwise a wrong course is taken by us, if nothing may be reformed, that is To now complained of, but what the temporal judges shall of themselves willingly yield unto. This is therefore the first point, which upon occasion lately offered before your lordships by some of the judges, we desire may be cleared; because we are strongly persuaded, as touching the valid15 ity of his majesty's said authority, and do hope we shall be able to justify the same, notwithstanding any thing that the judges or any other can allege to the contrary.

II. "The forms of prohibitions prejudicial to his majesty's authority in causes ecclesiastical." Concerning the 20 form of prohibitions, forasmuch as both the ecclesiastical and temporal jurisdictions be now united in his majesty, which were heretofore "de facto" though not "de jure" derived from several heads, we desire to be satisfied by the judges, whether, as the case now standeth, the former

25 barons of the exchequer, are for matters in law of highest authority next unto the court of parliament." It was resolved by all the judges of England that the interpretation of all statutes concerning the clergy, being parcel of the laws of the realm, do belong to the judges of the common law." Coke's Inst. P. 2. pp. 601, 618. See also 30 Collier, vol. ii. p. 688. Hallam, vol. i. p. 349. The archbishop made another attempt in favour of his articles in the year 1608; but the opposition of the judges was so strong, that the king was unwilling to support him. (Rapin, vol. ii. p. 176.) The ecclesiastical jurisdiction and the mode of exercising it were matter of constant complaint on the 35 part of the house of commons, and made an important addition to the list of grievances presented by them to the king in the year 1610 (see No. CXXVI.). But the rudest shock, which that power experienced

manner of prohibitions heretofore used, importing an ecclesiastical court to be "aliud forum a foro regio,” and the ecclesiastical law not to be "legem terræ," and the proceedings in those courts to be "contra coronam et dignitatem regiam," may now without offence and derogation 5 to the king's ecclesiastical prerogative be continued, as though either the said jurisdictions remained now so distinguished and severed, as they were before, or that the laws ecclesiastical, which we put in execution, were not the king's and the realm's ecclesiastical laws, as well as 10 the temporal laws.

III. "A fit time to be assigned for the defendant, if he will seek a prohibition." As touching the time when prohibitions are granted, it seemeth strange to us, that they are not only granted at the suit of the defendant in 15 the ecclesiastical court after his answer, whereby he affirmeth the jurisdiction of the said court, and submitteth himself unto the same, but also after all allegations and proofs made on both sides, when the cause is fully instructed and furnished for sentence; yea after sentence, 20 yea after two or three sentences given, and after execution of the said sentence or sentences, and when the party for his long continued disobedience is laid in prison upon the writ of" De excommunicato capiendo;" which

during the reign of James, was in the year 1611, when sir Edward 25 Coke, then chief justice of the common pleas, refused to sit as a member of the high commission, and the superior jurisdiction of the common law courts was successfully maintained before the privy council in a case of adultery by the firmness of his court. On that occasion " the king declared that by the advice of the council, and by the advice of the 30 justices of the king's bench, and the barons, he would reform the high commission in divers points, and reduce it to certain spiritual causes. And the lord treasurer (Cecil, earl of Salisbury) said that the principal feather was plucked from the high commissioners, and nothing but stumps remaining; and that they should not intermeddle with matters 35 of importance, but of petit crimes." Coke's 12 Report, pp. 82. 84. Instit. 1. 4. c. 74. P. 335.