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. Anno Christi Reg. Anglia 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 elergy, to the lords of the privy council.-Coke's II. Institut. fol. 601. seqq. 66 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 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 15 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. courses, forasmuch as they are against the rules of the common law in like cases, as we take it, and do tend so greatly to the delay of justice, vexation and charge of the subject, and the disgrace and discredit of his majesty's 5 jurisdiction ecclesiastical, the judges, as we suppose, notwithstanding their great learning in the laws, will be hardly able in defence of them to satisfy your lordships. IV. "Prohibitions unduly awarded heretofore in all causes almost of ecclesiastical cognizance." Whereas it 10 will be confessed, that causes concerning testaments, matrimony, benefices, churches, and divine service, with many offences against the I. II. III. IV. V. VII. Ix. and x. commandments, are by the laws of this realm of ecclesiastical cognizance; yet there are few of them, wherein 15 sundry prohibitions have not been granted, and that more ordinarily of latter times, than ever heretofore; not because we, that are ecclesiastical judges, do give greater cause of such granting of them, than before have been given, but for that the humour of the time is grown to 20 be too eager against all ecclesiastical jurisdiction. For whereas (for example's sake) during the reign of the late queen of worthy memory, there have been 488. prohibitions, and since his majesty's time 82. sent into the court of the arches; we humbly desire your lordships, that the 25 judges may be urged to bring forth one prohibition of ten, nay, the twentieth prohibition of all the said 488. and but 2. of the said 82. which upon due considerations with the libels in the ecclesiastical court, they shall be able to justify to have been rightly awarded: we suppose they 30 cannot; our predecessors and we ourselves have ever been so careful not to exceed the compass and limits of the ecclesiastical jurisdiction; which if they shall refuse to attempt, or shall not be able to perform, then we refer ourselves to your lordships' wisdoms, whether we have not 35 just cause to complain, and crave restraint of this overlavish granting of prohibitions in every cause without respect. That which we have said of the prohibitions in the court of the arches, we verily persuade ourselves may be truly affirmed of all the ecclesiastical courts in England, which does so much the more aggravate this abuse. 20 V. "The multiplying of prohibitions in one and the 5 same cause, the libel being not altered." Although it hath been anciently ordained by a statute, that when a consultation is once duly granted upon a prohibition made to the judge of holy church, the same judge may proceed in the cause, by virtue of that consultation, notwithstand- to ing any other prohibition to him delivered, provided that the matter in the libel of the same cause be not engrossed, enlarged, or otherwise changed; yet notwithstanding prohibitions and consultations in one and the same cause, the libel being no ways altered according to the said statute, 15 are lately so multiplied, as that in some one cause, as aforesaid, two, in some three, in some other six prohibitions, and so many consultations have been awarded, yea, divers are so granted out of one court. As for example, when after long suit a consultation is obtained, it is thought a sufficient cause to send out another prohibition in revocation of the said consultation, upon suggestion therein contained, that the said consultation "minus commode emanavit." By which pretty device the judges of those courts, which grant prohibitions, may, notwith- 25 standing the said statute, upon one libel not altered, grant as many prohibitions as they list, commanding the ecclesiastical judges in his majesty's name, not to proceed in any cause, that is so divers times by them prohibited; whereby the poor plaintiffs do not know, when their con- 30 sultations, procured with great charge, will hold, and so finding such and so many difficulties, are driven to go home in great grief, and to leave the causes in Westminster hall, the ecclesiastical judges not daring to hold any plea of them. Now may it please your lordships, the premises being true, we humbly desire to hear, what the 35 |