proceed by that thereby without all scruple of danger their proceedings so appointed to them might haue bene warranted But being altogether needelesse it is no maruell though it were omitted For can any man doubt if it were needfull but that there is a sufficient Royall assent had when as it is giuen to the whole acte before it can passe for a Lawe Lastly the same statute out of 5 25. H. 8. ca. 19. which as I coniecture this opinion was stirred vp doth establish all Canons which be not contrariant nor repugnant to the Lawes Statutes and customes of this Realme nor to the dammage or hurt of the Kings prerogatiue Royall that they shall now still be vsed and executed as they were afore the making of that acte till they should be viewed c. by the 32. persons c. which is not hitherto done But such were vsed afore without any expresse or particular Royal assent from time to time obteined and therefore may still be vsed without any such newe assent For to exact it were in very deed to bring in a quite disuse of all ordinarie Ecclesiasticall Iurisdiction in stead of vsing it which hitherto from planting of Christianitie and in all succeeding times hath neuerthelesse bene practised This opinion as an arrow shot vnaduisedly at the Bishops glanceth off them and woundeth very deadly the fauourers of the new Discipline in whose behalfe it was framed for they are so farre from taking expresse leaue of the Prince to put euery of their Constitutions ecclesiasticall in vre that they holde her Maiestie hath nothing to doe to make or establish any Church-lawes And the clause for vse of such former Canons and Constitutions synodall afore mentioned as they were vsed afore that time will not helpe the exercise of their synodicall cōstitutions made long after in a Conuenticle called together by their Moderators writ But belike when they set vp the statute of submission of the Cleargie shall be turned into a statute of submitting the Princes scepter to the rule of their Presbyterie in all Church-matters The chiefest colour and pretence 1 25. H. 8. ca. 19. for this opinion is taken as I coniecture out of the now reuiued statute made in K. H. the eights time of submission of the Cleargie But the wordes thereof doe plainely discouer the weakenes of such collection for it is not enacted simply that they shall not put in vre c. any constitutions c. but according to their aboue said submission and petition which was that they would not enacte nor put in vre any new Canons c. in their Conuocation without the Kings royall assent and authoritie in that behalfe Otherwise there were a flat contrarietie in the selfe same Acte by reason of the last prouiso thereof next afore repeated where Canons already made so they haue the qualities thereby limitted are appointed to be vsed For it is there said shall be now still vsed and executed as they were before the making of that Acte And where in 1 27. H. 8. c. 15. the 27. yeere of the said King the same submission and former Acte is repeated there in the very body of the statute touching not putting in vre of Canons c. the same modification as afore is retained viz. According to the said submission and petition of the Clergie which concerneth onely newe Canons For of those that were then already made the very selfe same prouiso as afore is set downe appointeth that they shall still bee vsed and executed as they were before the making of either of those Acts. Which was without any such expresse assent as by this opinion is enforced and is therefore neither requisite nor almost possible I haue also heard some alledge the 2 1. Eliz. ca. 1. clause of the statute made for vniting of all Ecclesiasticall Iurisdiction to the Crowne against the exercise of Iurisdiction by any Ordinaries which to mine vnderstanding is a very simple collection Belike they meane that no Iurisdiction is vnited to the Crowne but there must be a Commission vnder the great Seale to warrant the execution of it vnto him that is to exercise it Then must euery Stewarde of a Leete euery Constable and sundrie other Officers be driuen to procure like warrant for the execution of their Temporall offices for I trust it will not be denied by these men but that all Temporall authoritie and Iurisdiction is by Lawe also vnited to the Crowne In deede this reason would serue against either the one or the other Iurisdiction if they were not deriued and claimed from the Crowne but from some other authoritie immediatly as the Popish Clergie did theirs from God by the meanes and direction of the Pope Yea euen another 3 8. Eliz. ca. 3. Parliament sheweth howe farre this collection is from the minde of the makers of that Lawe For that very clause 1. Eliz. ca. 1. together with her Maiesties letters Patents directed foorth for confirming and consecrating Archbishops and Bishops is brought in the Preamble thereof as a strong proofe without scruple and ambiguitie that the authorities and Iurisdictions by them executed be thereby giuen vnto them from her Maiestie And therefore this opinion doth remaine destitute of any ground of Lawe CHAP. II. The particular distribution of all other causes to be prooued to be of Ecclesiasticall conusance besides Testamentarie or Matrimonial with a discourse of Bishops certificats against persons excommunicate being a speciall point of their voluntarie Iurisdiction where there is no partie that prosecuteth THe next opinion viz. That by the lawes of this Realme none Ordinary may cite any whomsoeuer but in causes Testamentarie or Matrimoniall though it draw deepe yet it hath not so large a reach nor draweth so great a compasse as the former For this leaueth some ordinarie Iurisdiction Ecclesiasticall in these two cases where the other vpon the matter sweepeth away all But if this be simply true then the former must needes be false For if by Lawe an Ordinarie without more a doe may cite men in these two cases then may some Canon c. by Lawe be put in vre without any further Royall assent to execute the same But if it shall be prooued true that by the Law of the land in some causes besides Testamentarie or Matrimoniall an Ordinarie may cite Then this opinion that in no causes besides Testamentary or Matrimoniall an Ordinarie may cite being the contradictorie thereof must needes according to rule of reason be prooued false For it will not be denied by any but in what cause soeuer an Ordinarie may lawfully deale in that if neede be he may vse citation All matters done by Bishops who onely be immediate Ordinaries vnder her Maiestie either belong to their order and degree as ordeining of Ministers or Deacons cōfirmation of children dedication of Churches or Churchyards or to their Iurisdiction Their Iurisdiction is of two sorts the first is voluntarie that is when those whom they deale
statute 1 25. H. 8. c. 19. All such Canons cōstitutions ordinances synodals prouincial being already made which be not cōtrariant nor repugnant to the lawes statutes customes of this Realme nor to the dammage or hurt of the Kings prerogatiue royall shall now still bee vsed and executed as they were afore the making of that Acte c. So that no Canons establishing proceedings onely diuerse but Canons contrariant or repugnant to the Lawes c. be thereby repealed Nowe we are taught by the rules of Reason that two propositions reteyning otherwise the same termes the one being vniuersally negatiue and the other vniuersally affirmatiue be contrariant one to another And though in materia contingenti both such may be false yet they can neuer be both of them true Therefore if the one be true the other of them must needes be false For example of contraries the Common Lawe holdeth that All aduowsons or right of patronage may lawfully and without Simonie be bought and solde This proposition then being true the contrary proposition hereunto which is established by the Canon Lawe viz. that no right of patronage may lawfully or without Simonie be bought and solde must needes be false and therefore by the Common Lawe doth stand in this Realme repealed in respect of this contrarietie The word Repugnant in the saide statute we see is put after Contrariant as of a greater force and efficacie and therefore is to be vnderstoode according to the common course of our speach albeit the Logicians doe not so vse that worde for the contradictorie opposition consisting of an vniuersall affirmatiue and a particular negatiue or of an vniuersall negatiue and particular affirmatiue And these be so opposite ex diametro and doe alwayes so directly thwart one another that in euery subiect matter whatsoeuer the one of them being true the other must needs be false è conuerso As for example The Canon Lawe holdeth that All fighting in Duello that is to say triall by battaile of one single man against another is vnlawfull But the Common Lawe contradicting this doth holde that some triall by battaile as in a writ of right and in an Appeale of murder or robberie is not vnlawful And againe the Canon Lawe holdeth that none aduowsons or right of Patronages may be in grosse But the Common Lawe is in the flat Contradictorie hereof that some aduowsons be in grosse as well as others be appurtenant to a manoure And therefore in neither of those Cases such Canons haue place in this Realme in respect of this Contradiction and Repugnancie If then it may be shewed that some proceedings of the Common Lawe against crimes be also entred into without either Accusation or Presentment going afore then where the course of both Courts be not so much as diuers there cannot possibly be found either Contrarietie or Repugnancie vnlesse we should say that the Lawes and statutes doe condemne that as vnequall and vniust in Courts Ecclesiasticall which they establish and practise in Temporall Courts for good and iust As then an Appeale brought at the Common Lawe doth most neerely resemble an Accusation in the Ciuil and Common Lawes so hath enditement a correspondence and doeth answere vnto their Presentments being also in statute often called by the name of Presentment These two kinds of prosecution of Crimes at the Common Lawe be mentioned in a statute of K. Henry the fift in these words 1 7. H. 5. ca. vnico Diuers men of malice and enmitie and for gaine and vengeance haue often caused to be indited and appealed diuers of our true liege people of treasons or felonies in the Countie of Lancaster pretending by those Appeales and Inditements c. And though these two be the courses of bringing a man in processu punitiuo into trial of matters Capitall yet for infinite other offences and crimes not Capitall the Cōmon Law hath vse of Bils in the Starre-Chamber and of Informations in the other Courts at West-minster Neither of which can be truely called either Presentment or Accusation Not Presentment because no such peculiar charge of preferring vpon their oathes is layde vpon them as is vpon Iurors at Enquests that finde Inditements or as is vpon Church-wardens and Side-men who make Presentments Not Accusation because as is aforeshewed such Bils and Informations be both of them put vp ex officio promoto Againe they cannot be called Accusations because those who put them vp are not parties but the King is the partie For it is thus said in Statute 2 3. H. 5. ca. vnico He that will sue for the King to attaint them that pay or receiue such coyne as is there forbidden shall haue the one halfe of the forfaiture And after in the same Kings dayes 3 8. H. 5. ca. 3. He that will sue for the King in this behalfe shall haue the thirde part of that pecuniarie paine So that whosoeuer doth preferre or follow them yet the suite is the Kings and he the partie whose also the Court is where the suite is prosecuted It may appeare that at the Common Lawe other meanes besides Appeale and Enditements which respectiuely doe resemble Accusation and Presentment be receiued to ground a Iudges Enquirie vpon in Processu informatiuo whereupon also followeth oftentimes processus punitiuus that is the triall of the Offender As first by the common custome and practise of the land For doe not some seuerall Iustices of the Peace vpon their owne suspicion conceiued or vpon secret relation of others whome they credite send for men by warrant to be apprehended and brought afore them doe they not take informations sometimes against supposed offenders vpon depositions of witnesses before the partie be sent for Doe they not also without any such witnesses often-times examine the partie himselfe and according to their discretion binde him to the Peace or to his good behauiour or perhaps send him to the common gaole to be imprisoned Doe they not receiue and sometimes preferre and procure enditements to be found as of common Barattarie and such like Crimes vpon their owne onely suspicions or by information of some one other perhaps an enemie and vpon other as meane presumptions Are not sundrie persons trauelling through some towne or founde in some priuie searche lodging there with good reason oftentimes brought to a straite examination and enquirie of matters Criminall vpon the onely view of their persons and deportment without all further intelligence or cause of suspicion Yet be all these without Appeale or enditement and many times vpon as light and perhaps lighter suspicions and informations lesse likely and credible then any be admitted in like case by the Commissioners ecclesiasticall and much lesse by Ordinaries who must in case an Appellation be brought in a more strict course of Lawe be able soundly to iustifie the inducements that they had to leade them into those criminall questions and enquiries Yet vpon these grounds alone not onely
thereby authorised 14 That by the statute her Maiestie may commit authoritie and they may take and vse for ecclesiasticall causes attachments imprisonments and fines 15 That an ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie 16 That after fortie dayes an excommunicate person may be otherwise punished then vpon the writ De excomm capiendo and that the said writ may and ought to be awarded vpon contempts rising on other causes ecclesiasticall then any of those ten crimes that be mentioned in the stat 5. Eliz. cap. 23. 17 Of a prohibition what it is where it lieth not and where it doth and how it ceaseth by a consultation and of the writ of Indicauit 18 An analysis or vnfolding of the two speciall statutes touching Premunire with sundry questions and doubts about that matter requiring more graue resolution THE FIRST PART OF an Apologie of certeine proceedings in COVRTS ECCLESIASTICALL wherein is chiefly shewed what matters be incident to Ecclesiasticall conusance and so allowed by Statutes and Common law CHAP. I. That a seuerall royall assent is not required to the executing of euery particular Canon IF no Canon or Constitution Ecclesiastiall might now be put in vre but such as her Maiesties expresse assent is first had vnto then do all their other opinions against the ordinarie iurisdiction ecclesiasticall stand in no stead and might be spared because this would serue to cut off all at once which they shoot at For none that exercise ordinarie iurisdiction haue hitherto had it in particularity which by the oppugners seemeth to be meant otherwise then by permission of law vnto euery of their proceedings Neither in trueth for the infinitie of it and troublesomnesse to procure such assent from her Maiestie for euery particular matter dioecesse of this Realme from time to time were it possible to be vsed Now if Ordinartes from whom either mediately or immediately appellations do lie vnto her Maiestie in the Chancerie by reason of the want of such particular assent vnto the execution of euery canon shall according to this conceit haue nothing to doe then cannot the Queenes delegates neither to whom appellations from Ordinaries doe come haue any thing wherein to bestow their trauell and therefore this point seemeth first of all meet to be cleared and to be bestowed in the first ranke The absurdity of this opinion whosoeuer were the hatchers of it will easily shew it selfe For if matters testamentary matrimoniall which all they grant to be ecclesiasticall right of tithes and sundry other causes which shall be also prooued so to be shall not ne can not by reason of this want be dispatched as now they are by ecclesiasticall iurisdiction and yet can not be dealt in by any other authoritie according to any law now in force then is there a maine imperfection in the policie of this Common weale viz. For men to haue a right and yet no likely or readie meane to come by it and for grosse oftences to be committed that are by law punishable and yet no man sufficiently authorized to execute such lawes The iudgement of whole Parliaments kept in seuerall Kings and Queenes reignes since that act whereupon this fancie seemeth to be grounded so many as haue had cause to speake of the iurisdiction ecclesiasticall doe also fully conuince it The 1 25. H. 8. ca. 19. statute for delegates vpon appellations doth argue that Ordinaries might without further leaue obteined as in former times they did execute their iurisdiction ecclesiasticall For if there were to be no more ordinarie proceedings till the king should giue his assent to the execution of euery canon for what vse should appellations from the decrees and iudgements of Ordinaries be there prouided for Likewise 2 27. H. 8. ca. 20. 32. H. 8. cap. 7. two statutes were not long after prouided in assistance of iurisdiction ordinary and for the better and speedier recouerie of tithes in Courts ecclesiasticall according to the course of the ecclesiasticall lawes in that behalfe And the 3 34. 35. H. 8. cap. 19. like was also enacted for recouerie of pensions procurations c. withholden In the time of K. Edward the sixt in 4 1. Ed. 6. cap. 2. a statute since repealed by queene Marie a great number of particular causes of iurisdiction ecclesiasticall are there by the way rehearsed that Ordinaries other ecclesiasticall Iudges might and did then deale in In the time of queene Marie before the supremacie was giuen vnto the Pope the 5 1. Mar. cap. 3. act for not disturbing of diuine seruice or preaching reserueth the iurisdiction that Ordinaries then had for punishment thereof by lawes ecclesiasticall ouer and aboue the penalties of new thereby inflicted In the Queenes Matesties 6 1. Eliz. cap. 2. time that now is by the act for vniformitie of Common prayer Ordinaries c. may enquire c. and punish the violations of that act by censures c. as heeretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes The Statute De excom capiendo reckoneth 1 5. Eliz. ca. 23. vp particularly diuers Crimes and offences Ecclesiasticall punishable by that iurisdiction which were hindered much from punishment that apperteined for want of due execution of that writte De excom capiendo and therefore prouideth remedie therein Which necessarily argueth the continuance and approbation of execution of Iurisdiction Ecclesiasticall by Ordinaries without further obteyning of leaue By the statute against periurie made at the same time 2 5. Eliz. cap. 9. it is prouided that it should not extend to Courts Ecclesiasticall but that offenders in periurie or subornation in a Court Ecclesiastical shall and may be punished by such vsual and ordinarie Lawes as heretofore haue bene and yet are vsed and frequented in the saide Ecclesiasticall Courts which prooueth the vsuall practise of Iurisdiction Ecclesiasticall hitherto vsed without any speciall assent to be lawfull The statute against vsurie prouideth 3 13. Eliz. cap. 4. that such vsurie as is aboue ten pound in the hundred by yeere shall not withstanding the other penalties there newly inflicted be also punished and corrected as in times past by the Lawes Ecclesiasticall And by the 4 13. Eli. cap. 10. statute of dilapidations the remedies that by the Lawes Ecclesiasticall were afore giuen against executors and administrators of incumbents are there extended also to donees and alienees to be by the same authoritie dealt with In the which clauses of statutes there is no repeale of any former particular statute or Lawe nor any generall non obstante conteined And therefore if those Parliaments had bene of this iudgement that no Canon might now be put in vre without the Royall assent first obteined there woulde haue bene added these or some like words viz. They the said Ordinaries first obteining the royall assent for the putting in vre of such Canon as they minde in that cause to
yet do without iudgement lawful proceeding to take away any mans libertie life countrey goods or lands And it was at such time when the kings themselues thought that Iurisdiction ecclesiasticall was not in right no more then it was in fact at that time belonging to the crowne therefore in that it is here sayd Wee will not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land it is manifest that the wordes haue no relation to Iurisdiction ecclesiasticall for that which was done by that Iurisdiction was not at that time taken to be done by the King or by his authoritie and the lawes that ecclesiasticall Iudges practised were not then holden to be the Lawes of the Land or the Kings lawes as since the lawfull restitution of the ancient right in that behalfe to the crowne they be often called The 2 1. Eliz. cap. 2. pass alibi Kings or the Queenes ecclesiasticall lawes In the Preamble 1 25. H. 8. ca. 21. of a statute made in king Henrie the eights time it is to this effect said that the people of this Realme haue bound themselues by long vse and custome to the obseruance of certeine mans lawes besides those which were ordeined in this Realme not as to the obseruance of the lawes of any forren Prince Potentate or Prelate but as to the accustomed ancient lawes of this Realme originally established as lawes of the same by the sufferance of Kings and by consent and custome of the people and none otherwise And a litle after mention is there made of such lawes humane induced into this Realme by the said sufferance consents and custome This is brought to prooue that the Parliament or such as it shall authorize may dispense with those and with all other humane lawes of this Realme for so they be termed Whereupon in the body of the statute ensued that authoritie which the Archbishops of Canturburie haue of granting faculties c. And therefore the humane lawes spoken of in the Preamble are those Canon lawes which by such sufferance vse and custome are now as the accustomed and ancient lawes of this Realme originally established as lawes of the same howbeit by the meanes aforesaid but induced into the Realme and not here at first made nor ordeined There is 2 5. Eliz. cap. 25. another statute also made in her Maiesties time in the Preamble whereof they be called the Ecclesiasticall lawes of this Realme So that when whole Parliaments do aduow them to be lawes of the Realme yea that for proofe of another point perhaps doutfull we may then well make but light account of all the Treatisers exclamations to the contrary who calleth thē strange lawes and forren lawes c so long as we meane but of such Canons as haue bene of long time vsed and be 3 25. H. 8. ca. 19. not to the dammage or hurt of the Queenes Maiesties prerogatiue royall nor contrariant or repugnant to the lawes statutes and customes of the Realme Furthermore it is well and notoriously knowen that proceedings and condemnations Ecclesiasticall in ordinarie Courts were neuer made by the iudgement of a mans peeres viz. by a Iurie and therefore those words rehearsed can not be so farre extended as to include that iurisdiction Yet as institution vnto a benefice both before after Magna charta belonged alwayes to ecclesiasticall persons and iurisdiction so did also the destitution or depriuation from a benefice by the Common law in which respect Bishops that claime not the patronage do alwayes plead to a Quare impedit thus Nihil clamat praeter institutionem destitutionem Clericorum vt Ordinarius in dictarectoria de A. c. whereby may appeare that a man might by law be put out of his benefice being his freeholde otherwise then according to the forme of that statute And this by the way may also shew how vnsound a collection the Note-gatherer maketh out of those words of Magna Charta where because a benefice is a freeholde he would inferre that a Clerke may not be depriued of his benefice but by a iudgement at the Common law I haue also proued in the chapter next afore and in the eight and the twelft chapters that an Ordinarie in his dioecesse euen at the Common law might condemne a man for heresie whereupon after committing to the secular power such an heretike was put to death by burning but this was not done by any iudgement of his peeres and therfore those words of Magna Charta are no way to be construed of any iurisdiction ecclesiasticall Furthermore besides iudgement of a mans peeres there is added or by the law of the land which permitteth other triall then by Peeres as by battell c. Now seeing all iurisdiction and authoritie in this Realme aswell ecclesiasticall as temporall was euer in right but now is also iustly acknowledged and is infact vnited and incorporated vnto the crowne of this Realme therefore inquire whether vpon the premises it may not be probably said albeit not according to the vsuall speech that a iudgement duely giuen by the iurisdiction ecclesiasticall is giuen by the law of the land But this cloud or rather mist which they would cast is also plainely dispersed by the first chapter in Magna Charta for thereby is made a flat distinction and seuerance betwixt the grant there made to God with confirmation of the Church of Englands freedome rights and liberties for euermore from those grants that are after made to other the freemen of the whole Realme in the rest of that charter so that the iurisdiction of the Church can not be intended to be meant in any of all the rest except it be particularly expressed Yet if those words were admitted to be meant and stretched foorth vnto that iurisdiction also will not statutes made by the like authoritie of Parliament sufficiently qualifie or impeach thē Vnto this head is that obiection of the Note-gatherer to be referred where he allegeth out of the diary acts of the Clerke of the Parliament I know not how truly 1 4. H. 4. art 29. that the Commons exhibited a petition that Lollards arrested by the statute of 2. H. 4. should be bailed and that none should arrest but the shiriffe or other lawfull officers Buthe doth fully answere himselfe therein for the kings answere was saith he that Leroys ' aduisera which is the forme of dissent that the Kings and souereigne Queenes of this Realme do vse when they dissent or deny any statute or petition in Parliament offered vnto them to be confirmed for a law Whereby we see that arrests attaching for crimesmight be made without enditement precedent and by others then the shiriffe and also that albeit Magna Charta had bene to the contrary yet an act of Parliament comming after might change that law Wherofifneed were I could shew sundry other examples notwithstanding that which the
and matters Temporall betweene which and causes ecclesiasticall as is noted afore there was made both in those times and also long after a plaine seuerance and distinction in the groundes of their seuerall authorities and iurisdictions so that the one was called the Kings Court and the other a Spirituall or Court Christian. and therefore as nothing was in that Charter anewe graunted but confirmed onely vnto the Church of England so is it to be iudged on all handes that the king would not make lawes there to restraine the courses of proceeding ecclesiasticall because it could not be without disanulling and reuoking of that which immediately afore euen by the same Acte hee had first of all confirmed vnto them Secondly a Bailife onely is there mentioned which should put or not put a man to his oath which cannot well and properlie be vnderstood of any but of some officer temporall Thirdly these wordes are no way appliable to the practise of courtes ecclesiasticall for albeit vnder the name of Bailife an Ordinarie might be vnderstood which were very harsh insomuch as a Bailife is but a Reeue of a Baile or Libertie yet is it not holden by any lawe ecclesiasticall that vpon an Ordinaries owne bare saying whether he haue witnesses after to bee produced or not a man may bee put to an oath for there must bee some better matter of inducement to open way to the enquirie whereupon the oath ensueth Lastly this statute will rather hurt then helpe forward these mens purposes if an Ordinarie might here be vnderstood by a Baylife because if I conceiue the matter aright by this is implyed that so an Ordinarie be able to bring in good witnesses he may then vpon his bare saying put a man to his open lawe or to an oath But hereupon would followe that Criminall prosecution without any accuser or other partie and so ex officio mero yea and without any presentment too may bee lawfully admitted and which is most to our present purpose in handling that an oath in such case by him may bee imposed in any matter aswell Criminall as other For heere is no distinction made of any one kinde of cause from another and they which alledge it doe bring it to impugne proceeding by the defendants oath against crimes The allegation of the Treatisour out of the statute of Marlebridge or Marleborough falleth next in time to bee considered the whole wordes 1 Marlebr 52. H. 3. cap. 22. whereof are these none from hencefoorth may distreyne his freeholders to answere for their free holdes nor for any thing touching their freeholde without the kings writ nor shall cause his freeholders to sweare against their willes for no man may doe that without the kings commaundement But the Treatisour leaueth out the first part which sheweth howe the second that he alledgeth is to be vnderstoode And because like the lapwing with her diuerting c◅ies hee would leade vs further and further from the matter herein chiefly to be respected or for that he thought wee would make some aduantage hereof he saith that the kings commaundement importeth here thus much viz. according to the law Iustice of this Realme and for this quoteth a booke thus 2. R. 3. The booke he meaneth as I gesse is in 2 Mich. 2. R. 3. sol 11. these words wheresoeuer a man for offence misprision or otherwise is to make fine or redemption all the Iustices agreed that those Iustices before whome he was committed c. should take suretie and pledges for the fine c. and after by their discretion they should assesse the fine and not the king in his chamber nor otherwise before him but by his Iustices and so is the kings will in statute to be taken viz. by his Iustices and his lawe which to say in effect is all one c. Where you see that the booke speaking of Iustices viz. the men before whome the conuiction was made he referreth this to the Iustice of the land But though it be neither off nor on to our Principall purpose neuerthelesse it seemeth this booke is not truely applied by him vnto this statute and that by the kings commaundement in the statute the kings writ is to be vnderstood as in the first part of that statute is plainely expressed rather then any determination or Act of his Iustices of the Bench. Touching the statute it selfe the wordes doe euidently shew that neither oath in cause criminall nor any Court Ecclesiasticall is thereby meant there is onely forbidden that lords of manors shall not inforce their Freeholders that holde lande of them whether it be by distresse or oathes to answere in their Courtes baron touching the estates they haue in their landes because neither the lordes owne courts in such a case be competent or indifferent for feare of vnlawfull euiction nor the goodnesse or weakenesse of the states men holde are meete to be fished out by their owne oathes in satisfaction of their lordes greedinesse to haue their lands except the king by his writ shall so especially command And yet hereby wee see the statute leaueth it at large at the kings pleasure to warrant euen this course and therefore this is not simply vniust but inconuenient onely for lords so to vrge their tenants He alledgeth further against these oathes a statute as hee saith made 43. Ed. 3. ca. 9. that no man be put to answere without presentment before Iustice or matter of Record or by due proces or by writ originall after the ancient lawes of this land But I doe finde no such statute either in that yeere or in any other like number of Chapter of that king and that Parliament which he voucheth hath not so many Chapters But admitting it what is this to proue an vnlawfulnesse of oathes ministred vnto defendants in matters criminall whereof there is no shadowe of mention it rather speaketh of matters that ought to goe afore proceedings criminall at the common lawe and what makes this against Courts Ecclesiasticall woulde hee haue them to proceede in the selfe same maner that common lawe courts doe hee might aswell exact of them Indictments and afterward tryals by Iuries of twelue and yet Ecclesiasticall courts put none to answere but vpon moe then one of these or at least that which is equiualent at that lawe vnto these at the common lawe For first courts Ecclesiastical haue great vse of presentments and complaints or denunciations before the partie be called to answere as is shewed in the second part Then the defendant is not called neither but by due processe as by letters missiue or by attachment in Courtes of Commission by Primarie citation in Ordinarie Courtes which haue a correspondence vnto originall writs at the cōmon law So that of foure matters wherof some one or other of them is thereby required three of them be vsed in Ecclesiasticall proceedings against crymes His next proofe of this kinde cōming to be discussed is out of the 1 25.
saide affirmatiō in that he confesseth Wolsey did grant benefices by way of Prouision for thereby he was within the very letter of the Statutes of Prouision and Praemunire and so consequently he preiudiced also the Kings regalitie and crowne and not Ecclesiasticall courts alone Yea and what is all this to the imposing of an oathe that we treate of seeing if it were true that euery practise of Antichristian decrees and Popish Canons were a Praemunire yet it may be truely affirmed that the very temporall Lawes of this Realme do allow vnto Ecclesiasticall Courts to minister such oathes as shall be prooued in the next chapter therefore not to be said to be practised by vertue of Canons only And also for that no Canons that are agreeing to those conditions and qualities which are required by the 1 25. H. 8. 27. H. 8. Statute of Submission of the Cleargie are Antichristian or Popish or foreine Lawes but are the Queenes Ecclesiasticall Lawes and Lawes of this Realme no lesse then such as were originally made within the land as is afore by occasion 2 Vide 1. part ca. 14. pag. 102. 103. shewed and prooued Insomuch as the Note-gatherer himselfe calleth them the ecclesiasticall Lawes of England Hee also telleth vs as to this purpose of a complaint by the Commons made 21. H. 8. vnto the said King touching grieuances by the Clergie offered but telleth not that it was this matter nor how iust or vniust the complaint was found to be nor yet of any remedy therein giuen He discourseth also of the particulars of an other complaint likewise made 23. H. 8. but hee doth not assigne oathes tendered in some criminall matter to be any part of that complaint The Note-gatherer saith the L. Audley then chosen Speaker did exhibite it and that it was for proceeding ex officio albeit the Treatisour do tell vs of many points besides which belike if he had pēned that complaint it should haue conteined This I haue answered in the second part of this Apologie Another reason by way of collection the Treatisor maketh at large thus viz. What if a Iustice by colour of his office should offer this generall othe to answer to all he will aske commit the partie refusing coulde any man iustifie his doing but rather crie out against him as a subuerter c Well howe strange a course soeuer hee maketh this and therefore so cryeth out neuerthelesse it may bee that little better hath beene vsed by some Iustices of Peace But I neither accuse any thereof nor wil excuse either them or any others which shal so deale either from the Treatisors or from any other mans outcries so that in this point we both agree But in one part of his Treatise he gathereth also thus against practising of Canons in ministring oath No Canons 1 25. H. 8. ca. 19. may be practised but such as be not contrary nor repugnant to the Prerogatiue royall nor to the lawes and Customes of this Realme but this Canon Law is not any part or portion of such lawes Whereupon it seemeth he would haue his Reader to conclude that no Canon at al may be practised First it is vntrue if you take the Canon Law indefinitely for all Canons absolutely and indistinctly to say that it is no portion of the Lawes and Customes of this Realme as hath bin afore shewed yea there was here an vse and custome thereof long afore it was accounted any parte of the Lawe of the Realme Secondly there be quatuor termini in this reason Lastly it consisteth all of Negatiues In both which respects it is vtterly inconcludent So that by all hitherto deliuered wee may perceiue that albeit there bee some diuersitie in sundrie the courses of proceeding betwixt the Ecclesiasticall and the temporall Lawes yet there is found not so much as any great diuersitie in the very point which is of ministring oathes in certaine criminall causes and much lesse is there any contrarietie or repugnancie in that behalfe Besides there is not so great diuersitie betwixt any part of the law Ecclesiasticall being now of force within this Realme and the Lawes temporall as is betwixt sundrie points of the customs of London the customes of the Stannerie the customes of Kent the customes of Halifax both in trying and executing offendors and by dealing by vertue of the Queenes Instructions at the Counsell of the Marches of Wales on the one side and betwixt sundry parts of the Common lawe on the other side as might but for auoiding of tediousnes by sundry particulars be exēplified yet none of those which practise thē are by reason of any such notable diuersity only thus threatned with danger of Praemunire In the last ranke of matters brought by him to this purpose I doe marshall the Treatisours shifting answeres vnto such obiections as himselfe imagineth will be or may be made by those who defend this kinde of oathe whereof we are now treating First to the obiection made of the like oathes ministred to defendants in causes criminall both in the Courts of Starre-chamber and Chancerie he answereth that if it were graunted that the like oathes be there vsed yet would it not followe that the same might be practised in courts Ecclesiasticall and why would it not followe vnlesse sayth he the like allowance thereto and consent of the whole Realme might be prooued Belike if it were not most euident he would also denie the like oaths to be vsed in those two courts The whole Realme is sayde to allowe and to consent vnto that which is enacted by Parliament Shall the same course then vsed also in the Chancerie that hath none Acte of Parliament to establish it be vnlawfull in his iudgement for hee cannot say that the whole Realme either indeede or representatiuely hath giuen consent hereunto albeit the prescription thereof be most ancient because al euery one in particular haue not had from time to time iudiciall matters there But yet since this prescription is good and will serue to mainteine that course there why shall it not also alike serue for Ecclesiasticall courts which haue reteined the practise of such oath beyond all memorie of man and beyond most Records nowe extant Neuerthelesse there be also Acts of Parliament to warrant the practise of these oathes in courts Ecclesiasticall vnlesse they could be prooued to be either contrary or repugnant to the Prerogatiue Royall or else to the Statutes lawes and customes of this Realme Neither yet are the examples of Starre-chamber and Chancerie to any other ende by vs alleaged but thereby onely to shewe that such defendants oathes inferring confession of some his owne crimes is neither to be holden vniust vnlawfull vnequall barbarous cruell nor yet Antichristian or Popish as they be challenged For a second answere hereunto he sayth that examples and Precedents be weake where an expresse lawe or certaine policie is to the contrary as if he should say though these two high
though statutes for the most part bee not to the restraining and changing of the lawe of the realme His first speciall obiection doeth answere it selfe For if the Partie desire commutation of corporall penance into pecuniarie especially if he be a free man the Ordinarie may lawfully accept of that commutation and being so vnderstood circumspectè agatis iumpeth therein both with 2 Articuli Cleri 9. Ed. 2. cap. 2. 3. 4. lawe and practise Touching his second obiection against it of a pension I referre my selfe to that which hereof hath bene spoken in the 6. Chapter of this first part As concerning his alleaged booke of 19. Edward the 3. reporting it to be no Statute I must tell him that hee hath a larger printed booke then mine if hee haue any reports either of the 19. or 20. yeeres of king Edw. 3. But whatsoeuer either he that was Author of those two little Treatises or any other priuate or particular persons doe thinke may be collected or probablie spoken thereof I trust they will all be contented to submit their iudgements to an Acte of Parliament Therefore to cut of all doubts at once in this behalfe let them read the 3 1. 2. Ed. 6. 〈◊〉 cap. 13. in a Prouiso 〈◊〉 Acte for true paiment of tithes made in king Edward the 6. time where both Articuli Cleri Sylua caedua de regia prohibitione and also Circumspectè agatis bee called Statutes and are appointed to remaine in their entire as they were afore that new statute If a man lay 4 Stat. circums agatis 13. Ed. 1. violent hands on a Priest this offence is punishable also by ecclesiasticall Iudges Therefore it was determined in another Parliament that for excommunication pro violenta manuum iniectione in Clericum before 5 Art Cleri 9. Ed. 2. ca. 3. a Prelate where penance corporallis enioyned if the defendant will redeeme his penance by giuing money to the Prelate or partie grieued it shall be required before the Prelate and the kings prohibition shall not lie This seemeth to haue bene there determinable by some reports at the Common law euen afore these statutes 6 H. 7. H. 3. referente Fitzh tit Prohibition nu 30. For if a man enter into S. Iohns place and beate the brethren there and take their chattels for this violence he shall be sued in Court Christian and so it was adiudged by the Court. In a Consultation granted after a prohibition in this case was brought it is 1 Reg. fol 49. b. thus cōteined in the Register viz. si in causa iniectionis manuum violentarum in clericum in possessione Clericatus existentem quémque alter sciuit esse clericum non de violata pace nostra sed de excommunicatione ad correctionem animae tantummodo agatur tunc prohibitione nostra non obstante vlteriùs in eadem facere poteritis quod secundum forum ecclesiae de iure fore videritis faciendum But I find two cases where laying violent hands on a Clerke shall not bee sued in a Court Ecclesiasticall but there will lie a prohibition The first is If a Clerke be 2 Regist. fol. 42. 51. arrested at the Common law if thereupon he sue in a spirituall Court pro violenta manuum iniectione in Clericum there lieth Prohibition Another case is 3 T. 11. H. 4. fol. 241. in alijs libris vel 88. vel 85. when a man is excommunicate for laying violent hands on a Clerke if the spirituall Court denie absolution till amends bee made to the partie for the batterie a prohibition also will be granted because it shall be entended he which sueth doeth it to recouer damages But though it be at the suite of the partie if onely the punishment of the offence and not any amends be sued for it is determinable in a Court ecclesiasticall albeit the 4 Art Cleri 3. 6. Temporall Court haue also the debating of the matter touching the amends and the batterie For saieth Thirning if a partie sue onely 5 Ibidem to enforme the Court that the other hath laid violent handes vpon him being a Clerke to the intent the sentence of holy Church may goe against him to be excomunicate for the wrong done to holy Church and not to recouer dammages peraduenture it might be tollerable To which an other booke agreeth 6 H. 22. Ed. 4. fol. that if a man beate a Clerke and he sue him in the spirituall Court for his sinne of excommunication he doeth well but if he sue to haue the matter there examined for amends there lieth a prohibition For we finde a 7 Entrees tit Prohibition precedent of a Consultation granted euen where a partie sued in Court Christian proviolenta manuum iniectione in Clericum And so is it testified by the 8 Gooddall of the Liberties of the Clergie booke of the Liberties of the Clergie by the lawes of the Realme in these words A Priest may sue to haue him excommunicated or corporallie punished that laid violent hands vpon him but not to haue amends Neuerthelesse if 9 Gooddall ibid. a man put to corporallpenance for diffamation or for beating a Clerke to redeeme his penance wil agree to pay mony to the partie damnified after contrary to his promise will not pay it he may then be sued by the partie damnified euen for the mony in a court ecclesiasticall And not onely the partie may thus sue to haue him punished but the 1 M. 20. Ed. 4. 10 Spiritual court may also punish it exofficio as Brian and Litleton there did hold To this accordeth the said litle booke where is sayd that the 2 Gooddall ibid. ecclesiasticall Iudge may of Office cite for laying violent hands on a Clerke to punish him corporally but not by money Whose opinion is well confirmed by a Consultation in the Register to that purpose For thence is 3 Reg. sol 51. 2. gathered both that such a beater of a Clerke doeth incurre excommunication ipso facto and that the ecclesiasticall Iudge ex Officio may lawfully proceed to enioyne him corporall punishment Touching Sacrilege that it is also punishable by lawe in a Court ecclesiasticall two adiudged cases may bee alleaged out 4 M. 4. H. 3. per Fitz. Prohib nu 14. of Fitzherberts great Abridgement For if a man take goods out of the Church or Churchyard hee that hath propertie may sue him in a Court Christian and may compell him to stand to the sentence and iudgement of the Spirituall court for this offence And againe 5 H. 17. H. 3. per Fitzh tit Prohib nu 26. If a man take trees that are growing in the Churchyard the Parson may sue for them in court Christian and for the sacrilege also Lyndwood speaking of Sacrilege 6 Lyndw. in V. Sacrilegio c. aeternae sanctio de poenis saieth It is not a crime meerelie ecclesiasticall because the conisance thereof
contrary to any the lawes or policie of this land Let 1 Constit proude haereticis c nullus no man saith that Constitution presume to dispute c. against othes which are made either in Ecclesiasticall or temporall Courtes in cases accustomed and in vsuall manner c. and from henceforth let it be commonly taught and preached that oathes may lawfully be taken by all to whom it appertaineth by touching the holie Gospels and vpon them in all cases by law expressed and which are vsual in both courts Seeing then it is most apparant that the oathes which wee here dispute of are both expressed and prescribed by lawes Ciuil and Ecclesiasticall and were also there vsed both at the very time of such Constitution and long afore it wil hereupon follow that the like oaths were then also vsed in temporall Courts and were by that Constitution aswel alowed vnto Ecclesiasticall courts as they were in their owne temporall courts Which thing is so much the more manifest in that a little Treatise purposely compiled I take it by Saint German in the time of king Hen. 8. euen against sundry such Constitutions both Legatine and Prouinciall yet saith thus of this very point viz. 2 A Treatise concerning Constit. Prouinciall and Legatine ca. 23. printed by Tho. Godfrey though such a mans saying viz against vsuall othes in both courts be vntrue yet it is none heresie He yeeldeth then that in all cases then accustomed in both courts othes might lawfully and also ought to be taken The practise of this oathe as in all former times so was it also receiued and vsed in the time of king Henry the eight as well after the Papacie was ouerthrowne heere as afore and so hath it continued euer since And after his time the 3 Actes and Mon. 2. edit 2. tom fol. 1495. Lords of the Counsell finding Bonner thē B. of London somthing slack in his duty did enioine him to cal afore him al refusers to come to diuine seruice to search out conuent punish al adulterers according to the ecclesiasticall lawes The 1 Ibid. fol. 1501. kings commissioners visiting the Church of Paules did examine al thē of that church by vertue of their oathe touching their doctrine and conuersation of life Wherevpon one Iohn Painter and others did confesse adulterie euen by themselues to haue bene committed yet this was a generall enquirie The Kings 2 Ibid. fol. 1511. commission to proceed against Bonner affirmeth that the commissioner shal proceed aswel by meere office as also by way of denūciation by either of thē or by any other means by their discretions By vertue 3 Ibid. fol. 1512. whereof they charged him w t a corporal oath ex officio in form of law to answer the positiōs that shuld be ministred which vpon his oath takē were after ministred vnto him But 4 Ibid. fol. 1516. for that he would not answer them fully he was pronounced contumax pro confesso was remaunded backe to prison as afore The 5 Ibid. fol. 1536. proceedings about that time also against Ste. Gardiner the oath ministred to him was ex officio in matters criminal penall as appeareth by the sentence of depriuation from his Bishopricke of Winchester And yet besides Bishops there were some of the Kings counsell some Ciuilians and also some Iudges of the land and other common lawyers who were then commissioners in that cause and knewe the lawes as sufficiently well as any doth which now impugneth this course In her 6 Circa 3. aut 4. regni domninae Elizabethae reginae Maiesties time that now is a special cōmission was directed forth by her highnes vnto certaine great persons both ecclesiastical lay wherof diuers were of the priuy counsel to proceed by way of enquiry ex officio against 2. great honorable personages in a cause of correction for incontinency for so the commission did runne Whereupon they were accordingly called and proceeded with and were put to answer the criminal articles vpon their corporal oaths Not onely at all general visitations holden in the beginning of her Maiesties reigne by speciall commissions grounded vpon the stat 1. El. c. 1. but also euer since by vertue of the commissiōs ecclesiastical this course of exacting such oaths hath bin practised and continued was it then so long together against papists and other delinquēis a most iust necessary oath such as against which no good subiect bearing the name of a professor of the gospel euer did open his mouth in any dislike and is it now become on a sodain a bloudy cruel vniust more then Spanish Inquisition bicause a few vaine factious Reformatists are vrged with the selfe same maner of oath Belike lawes themselues are but partial which in respect of acception of some mens persons doe so quickely turne their nature from sweete to sower and from iust to vniust When D. Grindal late Archb. of Canterb. was B. of London he cōplained to the Lords others of her Ma. most honorable priuy coūsel for that by vertue of the cōmission ecclesiastical he could not so duly thorowly proceed to the discouery punishment of certaine knights other great possessioners being Recusants as he ought because som Ciuilians common lawyers supposed thē by him to be like affected did sinisterly animate and aduise them not to take oath to answer vnto any articles obiected ex officio vnlesse some fame by presentment or such like were first found against thē which would proue said the B. a long troublesome and chargeable course if it should be pursued seing some of thē dwelt in remote places of the Realme where as the people also stood like affected so that they would neuer be induced to make any such presentment or discouery and yet that the matter was by denunciations by vehement presumptions and by good euidence giuen vnto the commissioners sufficiently otherwise detected or was so notorious as that by lawe they might ground an Enquiry of office against thē as by others no lesse sound Lawyers he was informed For redresse whereof and for furtherance of Iustice it pleased their honorable LL. to cal som both of the Ciuilians cōmon lawyers afore thē to the Counsel boord that had giuen such aduise thereupon three of the doctors and one counsellor at law were by thē cōmitted to the Fleet. which I think some of their honorable LL. others yet remaining can do wel remember By al which here premised it doth appeare how sufficiently manifoldly our intention in this behalf is grounded likewise to how smal purpose the Treatisor resoneth where he gathereth that ecclesiast courts must be restrained by the Q. prerogatiue roial common lawes in that their iurisdiction is from the Crown Considering none of the defenders of this oath wil deny either the antecedent or consequence hereof But that which couertly he would thēce inferre
Ecclesiasticall and for rounder proceeding and for more grieuous punishment at least in these dissolute times more feared then can or may by Ordinarie Iurisdiction be inflicted Therefore if by the general words of that Acte 1. Elizabeth both these proceedings whereof wee here speake and many other particularities of maner persons times places and other circumstances might not be warranted then the authoritie there giuen to her Maiestie were of none vse at all neither could it possibly be practised But I thinke this power here by these opinions impugned may be also prooued directly out of the words of the very Acte thus whatsoeuer by any Spirituall or Ecclesiasticall power or authoritie hath heretofore bene or may lawfully bee exercised or vsed for visitation c. or reformation c. of all maner errours c. and enormities whatsoeuer that is vnited to the Crowne and by that Acte may be committed ouer by her Maiestie But Attaching imprisoning and such like corporall coërtion by some Spirituall or Ecclesiasticall power or authoritie hath heretofore lawfuly bene exercised And therefore may be appointed by her Maiestie to be now exercised by the Commissioners Ecclesiasticall For proofe of the Minor I am to put you in minde what corporall punishments and chastisements the superiours of euery Regular person as of Monke Frier and Nunne might and did lawfully from time to time lay vpon them that were vnder their Ecclesiasticall obedience and yet euen after their professing they remained still the Kings subiects Likewise when the statutes against Heresies were in force these Attachings imprisonings and other corporall chastisements were then lawfully exercised and vsed by Ecclesiasticall power and authoritie Lastly 1 1. H. 7. ca. 4. Bishops and Ordinaries may lawfully at this day punish and chastise Priestes Clearkes and religious men within their Iurisdiction being conuicted of incontinencie by committing them to warde and prison there to abide for such time as shall be thought to their discretions cōuenient for the qualitie and quantitie of their trespasse So that we may conclude that if any such power haue bene vsed then her Maiestie may as it please her vse it still and appoint the same to be vsed by her Highnesse Commissioners howe and vpon whom she thinketh good The Treatisour himselfe testifieth that diuers euen of the learned sort do hold and affirme and that very confidently that the Acte and Commission thereupon doe giue full power and authoritie for any course soeuer for the gouernment in causes Ecclesiasticall that shall be mentioned in the letters Patents This he exemplifieth by sundry examples though holden by such learned men which neuerthelesse he accounteth contrary to Lawe whereof some fall in most fitte for this place because they are bent against the saide Commission and others for other places of this Apologie First he thinketh it very absurde and not warrantable that the Commissioners Ecclesiasticall shoulde commaunde Iustices of Peace to assist any for attaching and imprisoning of offenders till they giue bonde for appearance And saith this is against Lawe and Iustice. The onely reason he rendreth of this his assertion is for that Iustices of Peace bee Magistrates and Commissioners of Recorde authorised as well as the other Belike himselfe is some Iustice of peace Hoc vrit hominem qui imperare non parêre didicit And will he then vpon his learning deliuer That no Magistrate or Commissioner of Recorde may be commaunded by another though no lesse be warranted by his Commission Hereupon would follow that Iustices of Peace and Sherifs might not be commanded in any case by the Iudges of either Benche by the Exchequer by the Iustices of Assisse by the L. Treasourer by the L Chauncellour or L. Keeper nor yet by the whole Counsell boord He thinketh it also not iustifiable that any Magistrates should be commanded by the Ecclesiasticall Commissioners to assist in Attaching or to attache any vpon a warrant called Quorum nomina For reason of vnlawfulnesse hereof he alledgeth that no cause or matter is therein expressed or declared But this might be de facto omitted in any other warrant as well as in that and yet is it vntrue that in this kinde of warrant no cause is declared But admit it were otherwise what Lawe of the Realme is against it And if the like warrant shall come from the Lords of the Counsell to him or any other Iustice of the Peace to be ayding and assisting vnto some Messenger in attaching of certaine persons to be caried vp vnto them as Prisoners whom the saide Messenger shall name vnto them will hee refuse to intermeddle in the seruice as surmising the Lords to do therein against Lawe because they commaunde him being a Iustice of Recorde and for that they signifie not by their Warrant what the particular cause is where with they minde to charge such persons that are to be Attached But if in so doing their Lordships doe nothing contrary to Lawe howsoeuer he doe foolishly and vndutifully to refuse to giue his assistance why shall the Lawe anymore be against the Commissioners doing but the like and that by expresse Warrant of her Maiesties letters Patents Another reason why such Warrant should not be iustifiable he doth alledge because the names of such persons to be Attached be not set downe by the Commissioners but are referred ouer vnto others to set them downe Mine answere hereunto is First that the Warrant of Quorum nomina is very rarely vsed by the Commission and the rarer the better Secondly when it is vsed the names of the parties are set downe and allowed afore by the Commissioners and not by others for anything that I can learne Neuerthelesse there may be good and weightie occasions to omit this course as when such Warrant is directed to a man of qualitie and good credite that he may put in the names for this ende lest when one is serued he bewray all to the rest whose names be also in the same Warrant that they may conuey themselues out of the way Howsoeuer it be in this behalfe I thinke the Treatisour will be long in finding out how this should be reckoned to be contrary to the Lawes of this Realme Hitherto touching the challenges made to some particular points in the maner of exercising that Commissun But the Note-gatherer to cut off all these particular disputes alleadgeth that it may be thought the whole Commission is voyde in Lawe For that as he surmiseth it beareth date in Iuly but was signed in Nouember next after 1 18. H. 6. cap. primo contrary to a Statute What was this quarrell which is now picked against it worth the practise of abusing a Counsellours name to procure a copie thereof Well both the Preamble and body of the statute also doth cleare this cauill For by the Preamble it appeareth that the mischiefe to be remedied was for that by grauntes antedated long before the King graunted them other grauntees who in very trueth had the first
graunt and great seale set to it yet bearing date truely were expelled by colour of letters Patents bearing the elder date In the body of the Acte is conteined this particle Such which is of restraint viz. That the King willing to put out such slye deuises or imaginations did ordeine by Parliament that letters Patents should be dated the day of their deliuery into the Chauncery or else be voyde Now if this Statute were to be vnderstood of all letters Patents whatsoeuer where is the reason of that Lawe found in a Commission but ratio est animalegis cessante ratione cessat Lex Therefore this Statute can be stretched to none other letters Patents but Such as the mischiefe mentioned in the Preamble may happen into Yea if it were otherwise to be vnderstoode he must ere any will beleeue him bring more euident matter then this viz It is thought and It may bee thought Let him then goe seeke the Records in the Chauncery and see whether the date and the day of the deliuery of it doe not agree and so may hee haue more colour to wrest the statute when he doth not misreport the matter in facte as herein hee hath done CHAP. XV. That an Ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie IN the next opinion I minde to be very short it is this that by none ecclesiasticall authoritie a man may be depriued of his benefice which is his freeholde being not endited and no suite of partie offered against him Whereby we see he requireth both an enditement and a suite of some partie It seemeth his meaning is that a Minister cannot be depriued but by way of enditement at the Common law and that the Iudge of Office may not preferre such enditement but it must needs be at the sute of a partie I can not well coniecture whereupon he pretendeth to ground this opinion If vpon the 29 chapter of Magna Charta it is shewed in the chapter next precedent not to be vnderstood of Ecclesiasticall iurisdiction or of the practice thereof And moreouer that chapter in Magna Charta requireth no suite of partie to preferre the enditement so that it may be done by the Iudges of Office well enough But this conceit is very strange that Bishops shall not haue authoritie to depriue an Ecclesiasticall person from his benefice It is shewed in the chapter afore that by vsuall and allowed course of pleading to a Quare impedit the Ordinarie doeth claime as of common right institutionem destitutionem Clericorum in benefices within his iurisdiction And the olde rule was Cuius estinstituere eius est destituere But perhaps it will be said he meant that a Bishop might doe it but not of Office that is without a partie albeit he put a Copulatiue in stead of a Disiunctiue But if his meaning be such he meaneth more then is true And further what priuilege or benefite is this to the partie conuented to be prosecuted by a partie and therefore perhaps of malice and by subornation of proofs rather then by the ordinarie proceeding of office and duetie for whose sinceritie we may more probably presume and intend Moreouer what if one that hath a benefice will come vnto the Bishop and there stoutly defend Atheisme Apostasie or denying of Christ or any other heresie grosse blasphemy or idolatry may he not till some accuser be found or a partie to prosecute depriue such a person from his benefice ex Officio What if the beneficed person will confesse before the Ordinarie that he was neuer called to the Ministerie but hath vsurped it by colour of forged testimonials of Orders or that he hath committed Simonie Incest Adulterie or hath two wiues liuing at once or 1 13. Eliz. ca. 12. that he neuer subscribed nor read the Articles of religion or being once conuicted do againe defend some errour against such Articles may not the Bishop ex officio in all or in any of these cases depriue or declare his benefice void except some other will come and make himselfe a partie But that he may do it appeareth 2 1. Eliz. cap. 2. by the statute 1. of her Maiestie for there it is said he may enquire which is alwayes ex officio as shall be more plainly shewed in the second part and may punish by Depriuation c. as in like cases hath bene vsed by the Queenes ecclesiasticall lawes CHAP. XVI That after fortie dayes an excommunicate person may be otherwise punished then vpon the writ De excommunicato capiendo And that the said writ may and ought to be awarded vpon contempts rising on other originall causes ecclesiasticall then any of those ten crimes mentioned in the statute 5. Eliz. cap. 23. THe last opinions to be handled in this part be these viz. that an excommunicate person standing so aboue fortie dayes may in none other sort be punished then vpon the writ De excommunicato capiendo The other is that the said writ De excommunicato capiendo ought not at all to be awarded vpon contempts rising from any other originall causes then vpon some of the tenne crimes that be mentioned in the statute 5. Eliz. cap. 23. The first is easily impugned for he may be punished twentie pounds by moneth for absence from diuine prayer neither shall his excommunication excuse him for it is in his owne default Besides it is a great contempt in an ecclesiasticall cause and therefore punishable by the Ecclesiasticall commission vpon the expresse wordes vsed in that Act which doeth establish that Commission And this standeth with reason where there are great numbers of such wilfull persons or slacke execution by Vnder-shirifs and Bailifs of that writ as often falleth out besides the great charges in suing of it out For I dare auow that in sundrie dioecesses in the Realme the whole yeerely reuenues of the Bishops there would not reach to the iusticing of all such contemners being of the baser sort of persons by the course of this writ They might happely to the great charge of the shire keepe many of them in prison long enough yet they should neuer procure the fees backe againe that first whether for rich or poore must be defrayed for want of ability in the persons so excommunicated Lastly the law ecclesiasticall very reasonably grauely prouideth in this behalfe that if a 1 c. excommunicamus §. qui autem ex de haeretic man stand excommunicate aboue an whole yere he may be proceeded with for suspicion of heresy because the law presumeth that such a mā hath smal feeling of religion but rather contemneth it and nourisheth some damnable opinion against God and his Church And therefore such an excommunicate person may be punished by reason thereof otherwise then by that writ All the colour of reason that I find alleged against this course by the Treatiser is thus that on our behalfe it will be said this is a shorter way then the other