Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	appear_v	error_n	writ_n	1,717	5	9.5204	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A19394	An apologie for sundrie proceedings by iurisdiction ecclesiasticall, of late times by some chalenged, and also diuersly by them impugned By which apologie (in their seuerall due places) all the reasons and allegations set downe as well in a treatise, as in certaine notes (that goe from hand to hand) both against proceeding ex officio, and against oaths ministred to parties in causes criminall; are also examined and answered: vpon that occasion lately reuiewed, and much enlarged aboue the first priuate proiect, and now published, being diuided into three partes: the first part whereof chieflie sheweth what matters be incident to ecclesiasticall conisance; and so allowed by statutes and common law: the second treateth (for the most part) of the two wayes of proceeding in causes criminal ... the third concerneth oaths in generall ... Whereunto ... I haue presumed to adioine that right excellent and sound determination (concerning oaths) which was made by M. Lancelot Androvves ....; Apologie: of, and for sundrie proceedings by jurisdiction ecclesiasticall	Cosin, Richard, 1549?-1597.; Andrewes, Lancelot, 1555-1626. Quaestionis: nunquid per jus divinum, magistratui liceat, a reo jusjurandum exigere? & id, quatenus ac quousque liceat?.	1593 (1593)	STC 5822; ESTC S118523	485,763	578

likewise that none shall bring them into the Realme or being perhaps brought in by another shall receiue them or being neither brought in by them nor yet receiued frō others but comming some way to their knowledge shall not make any notification or any other execution of them where neither within the realme nor without c. vpon paines there at large conteined Of those generall heads whereunto I said afore that all questions of Praemunire might be referred there be some that being expressed in these statutes are I thinke without all doubt to be within the compasse thereof as by the first of these two to draw any of the Queenes liegeance out of the realme in a plea whereof the conisance pertaineth or iudgements be giuen in the kings Court And that which is sayd of a Plea in the kings court is also drawen by some opinion vnto a court Ecclesiasticall for 1 9. Ed. 4. fol. 3. Yeluerton in the Kings bench held opinion oftentimes that if a Clerke doe sue another in the Court of Rome for a spiritnall matter whereof he may haue remedie within the realme that he is in case of Praemunire quia trahit in placitum extra regnum And 2 Fitzh Noua nat br fol. 44. lit H. Fitzh holdeth that for collation of a Prebend sued out of the realme a prohibition doeth lie Secondlie it is an vndoubted Praemunire by that statute to sue in another court to defeate or impeach the iudgements giuen in the kings court In these wordes of another court there seemeth to be an opposition and seuerance of such a court from the Kings court the rather because both the Preamble and the body of the statute do mention drawing men out of the realme in Plea Whereof at that time there was no colour for any man to be drawen any whither but onely to the court of the bishop of Rome whether he resided there at Auignon in France where the Popes about that time did lie 70. yeeres together at Bononie or elsewheresoeuer Therefore for the true vnderstanding of those words enquire If any of this realme of late yeeres whiles the parliament of Paris was established by the authoritie of the French king vpō colour that the Queenes mai●…stie is in very right Queene of France should haue brought processe thence against another subiect to appeare there whether this had not been a Praemunire by that statute likewise If any of the Q. Courts not authorised therunto by law vpon writ of errour should defeate a iudgement giuen in any other of the Queenes courts enquire whether this be within the meaning of those words notwithstanding the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and distinction whereby such another court seemeth to be seuered and made a distinct thing from all the Queenes court Thirdly it is an vndoubted Praemunire according to the later of the foresaid two statutes to purchase or pursue or to procure so to be done in the court of Rome or else-where any such translations c. or any other things which touch the King be against him his Crowne and Regaltie or his Realme as is there aforesaid or c. as is there further conteined Fitzherbert reporteth 1 Fitzh tit Praemunire nu 5. that the opinion of the court was Paschae II. H. 7. that Alibi in the said statute was vnderstood of Bishops courts so that if a man sue there for a thing that belongeth to the Common law he shall be in the Praemunire Therefore 2 Brooke titulo Praemu nu 21. was it holden by some that a benefice Donatiue by the Patron is a meere lay thing and the Bishop shall not visit it and therefore shall not depriue from it and if he meddle in this case it is a Praemunire and sayth that Barlow bishop of Bathe for depriuing the Deane that had it as a Donatiue by the Kings Letters patents was driuen to sue a pardon Fineux chiefe 3 15. H. 7. fol. 9. Iustice saith a spirituall man may execute temporall iurisdiction as the Bishop of Durham doth in his countie Palantine viz. as he hath iura regalia but not as a Bishop and saith he the Bishop shall punish his Clerks by Praemunire for suing in Spirituall courts for a cause temporall But whether that Bishop hath this authoritie seeing Praemunire is brought in by statute there is a Quaere inde made as of a matter doubtfull It is holden that a Prohibition doth 4 24. H. 8. titulo Praemu num 16. often lie where a Praemunire doth not as of tithes of great trees c. for the nature of the action doth belong to the Spirituall court albeit not that very cause in that forme but when it is of a lay matter or of a thing that neuer did belong vnto the Court spirituall herein as is said there lieth a Praemunire But these notwithstanding sundry doubts are made in this behalfe because at this day all iurisdiction Ecclesiasticall is now truely acknowledged and is in deed as it was alwayes in law in the Souereigne prince and from her prerogatiue royall deriued downe to others no lesse then the Admirall court is or the court of the Constable of England in times past was when it was vsed albeit they vsed their peculiar seales and names to the processes there sped And I haue heard very credibly that some reuerend and great learned Iudges whiles they liued were of opinion that for an Ecclesiasticall Iudge to deale in a matter apperteining in very truth to a Temporall court yet for some neerenesse and coherēce by him probably supposed to be an ecclesiasticall cause could not at this day be a Praemunire but subiect onely to a Prohibition and punishable as a contempt as it was at the Common law vpon an attachment after Prohibition Which opinion if it be sound then the Treatiser is farre wide from the truth where he saith that for men to deale in any cause not belonging to their iurisdiction is Praemunire This were very hard and rigorous if euerie mistaking or going beyond their commission by Iustices of Peace by any Iudges ecclesiasticall or temporall should be no lesse then Praemunire I haue heard it deliuered by great Lawyers that so to do doth but make the Actvoid as being coram non Iudice and inferreth no such grieuous penaltie For it is alleged that Alibi in the statute was put in to enclude processes deriued from the Popes authoritie albeit he kept his abode any where els then at Rome In which respect it is affirmed in a 1 25. H. 8. ca. 21. statute that the said statute of Prouision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the kings crowne and dignitie royall And it seemeth to some that Alibi can not now signifie Bishops and their Courts which are called the Queenes Ecclesiasticall courts and Iudges and the Canons by law established the Queenes Ecclesiasticall lawes Insomuch as the power giuen by statute to her

AN APOLOGIE FOR SVNDRIE PROCEEDINGS by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuersly by them impugned By which Apologie in their seuerall due places all the Reasons and Allegations set downe as well in a Treatise as in certaine Notes that goe from hand to hand both against proceeding ex Officio and against Oaths ministred to parties in causes criminall are also examined and answered Vpon that occasion lately reuiewed and much enlarged aboue the first priuate proiect and now published being diuided into three partes the first part whereof chieflie sheweth what matters be incident to Ecclesiasticall conisance and so allowed by Statutes and Common law the second treateth for the most part of the two wayes of proceeding in causes Criminal viz. by way of Accusation ex officio Iudicis the third concerneth Oaths in generall but more specially the lawfulnesse of such as be ministred touching supposed offenses either of themselues that sweare or of their brethren Respectiuelie submitted to the graue iudgements of the reuerend Iudges and other Sages of the Common lawe of Iudicious Professors of the Ciuill lawe and of the right reucrend Prelates and other grounded Diuines in this Realme Whereunto for the learneds sake and for similitude of Argument and Iudgement I haue presumed to adioine that right excellent and sound determination concerning Oaths which was made by M. LANCELOT ANDROVVES Doctor in Diuinitie in the common Diuinitie Schoole of the Uniuersitie of Cambridge in Iulie An. 1591. Lex iustitiae Iustitia Reipub. basis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie THE GENERALL Preface conteining the Occasion and generall distribution of this Treatise following before it was meant to make it publike THE indeuours of such disturbers as haue bene the chiefest staies of a further propagation of the Gospell and the onely staines of her Maiesties happie reformation haue rested most in aduancing a new found discipline in discrediting the present gouernement Ecclesiasticall by their speeches and writings The later whereof they haue gone about as well by impugning the callings and forme of gouernement Ecclesiasticall as if they were contrary to Gods word as also by defacing the persons of the Gouernours with vnchristian gibes contumelies and other indignities But these succeeding not to their wish nor sorting to that effect they purposed sundry of thē haue entred into pursued a more politike course for by thēselues others more simple excited cunningly by them they chalenge diuers receiued proceedings in Courts Ecclesiasticall not to bee iustifiable by lawe pretending now their especiall griefe to rest herein for that they are delt with and oppressed contrary to law euen as if they did carie a principall and zealous care to haue all her Maiesties lawes dulie obserued By whose frequent clamours some very graue wise and learned no way affected to their other fansies either not being well informed of proceedings Ecclesiasticall or not weying for want of leisure certain points seeming to bee doubtfully reported in the bookes of Common lawe so throughly as their great learning therein doeth affoord in a kind of commiseration for so I interprete it towards some of those who seeme distressed and to be otherwise well meaning men haue lately called into question diuers proceedings Ecclesiastical both for matter and for circumstance or maner that they are contrary to the lawes of this Realme Yet all of them doe not iumpe in the selfe same opinions hereafter touched For they are seuerally holden by seuerall men the most whereof are stood in by men of meanest place and reckoning in that studie and such as are knowen to bee ouermuch addicted to factious innouations But all the chalenges whatsoeuer for contrarietie vnto the lawes of the realme only so farre foorth as they are hitherto commen to knowledge may fitly be reduced into this order summe They tende to the chalenging of proceedings Ecclesiasticall done either by those who proceed by her Maiesties immediate Commission who are either Iudges delegates dealing in matters onely betwixt partie and partie brought before them by appellation or Commissioners in causes Ecclesiasticall seruing especially for punishing of crimes offences or els such as be executed by those who deale in ordinary iurisdiction The exceptions that touch the very matter and obiect of Ecclesiasticall iurisdiction do in very deed by necessarie consequence tend either to the whole taking away of the Ordinarie iurisdiction as where it is affirmed that no Canon constitution nor ordinance prouinciall whatsoeuer may now be put in vre without her Maiesties expresse assent first had to execute the same or els do reach to the taking of it away but in part Those opinions that tend to the abridging of it but in some part doe goe about it partly by way of excluding Ecclesiasticall Iudges from the handling of certeine matters as by holding that none Ordinarie may cite any whomesoeuer but in causes Testamentarie and Matrimoniall and that no Lay man ought to be cited or summoned to appeare before any Iudge Ecclesiasticall to take an oath in any other cause then Testamentarie or Matrimoniall And partly by deriuing them from the conisance Ecclesiasticall vnto other Courts as that the iudgement of heresie now lieth rather in the Common law then in the law Ecclesiasticall and some other of them being defended by the same men that holde the next precedent opinion doe tend both to the excluding of Courts Ecclesiasticall and to the diuerting of such causes another way as that nothing now can be adiudged heresie but according to the statute 1. Eliz. cap. 1. As for the exceptions pretended to be taken from the lawes of the Realme against the circumstances or maner of proceeding in courts Ecclesiasticall they do either concerne such points as goe afore and are preparatories to the suite such is this that the Queenes Maiestie cannot giue nor any man receiue authoritie to vse any other processe in matters Ecclesiasticall then by citation Or do touch the maner of entring into the suite as that an Ecclesiasticall Court may not proceed without accusation or presentment and that Lay men may not be cited ex officio in any cause but Testamentarie or Matrimoniall Or they concerne the maner of handling and proceeding in the suite as that If a matter be duely presented against a man he may not be examined vpon his oath whereunto some belike meaning to qualifie and distinguish it do adde this viz. in a matter of incontinencie or such cause and that no man is bound to declare any matter against another except some be an accuser Or do concerne the sentence or iudgement of the Court Ecclesiasticall as that by none Ecclesiasticall authoritie a man may be depriued of his benefice being his freeholde being not endited and no suite of partie offered against him Or els doe touch the execution of the iudgement as that the Q. Maiestie cannot giue nor any man may take authority of

my part I haue not hitherto found mentioned in any Statute or any report of the Common lawe though I haue carefully sought for them Now I will resume againe after this long but I trust not vnnecessarie digression the second member of ecclesiasticall Iurisdiction called contentiosa Iurisdictio That is when such matters be handled against which some partie standeth or is delt with thereby against his will If it be contentiosae iurisdictionis whether it be for a right there demandable and determinable or else for a crime there punishable which are the heads of all litigious Iurisdiction ecclesiasticall it cannot be intended that parsrea is contra quem res agitur the partie to be delt against will gratis without processe appeare frō time to time attend except it happē somtimes by collusion w t the plaintife And in this respect amōgst others it is said that iudiciū redditur in inuitū Reus is called pars fugiens the partie presumed to come thither against his will and willing inough to be gone if he might Therfore if any cause besides those two shall be proued such as the Ordinarie may lawfully deale in it wil folow that in such a matter also he may vse a citation to call him Dato enim principali necessaria adiacentia veniunt in consequentiam But that an Ordinarie may deale in sundrie other causes besides these two it shall appeare both by Statutes which are the iudgements of the whole Realme and by the iudgements and vncontrolled opinions reported in the bookes of the Common lawe In discourse whereof will appeare not onely 1 Aristot. in lib. poste Analyt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the matter is so but also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the reason why and in what maner and sort it is determinable or punishable there being three principall questions to be opened for the perfect knowledge of anything that is to be handled and seruing in these controuersies to some further vse and profite which may lighten you in the length of the disputation Pursuing therefore the two former heads of that part of Ecclesiasticall Iurisdiction first the matters by litigious Iurisdiction demandable and determinable are either such as are yeelded to be meere Ecclesiasticall by the authors of this opinion viz. Testamentarie and Matrimoniall to the first whereof for affinitie sake I adde last Wils such as may not be termed Testaments Codicils Legacies Administrations Sequestrations of the deads goods commonly called letters ad colligendum and to the later I ioyne diuorces iactitation of Matrimonie questions of legitimation or bastardie for restitution of a mans wife taken away that a man shall receiue his wife againe and suites for goods or chattels promised with a woman in mariage or else they are such others claimed to bee Ecclesiasticall as remaine still by this opinion in controuersie All which I thinke may bee comprehended vnder the generall terme of reliqua iura Ecclesiastica And these are either some duetie arising at first vpon exercise of voluntarie Iurisdiction and yet by deniall made litigious such be reall compositions sought by some partie to be disanulled procurations pensions Synodals Pentecostals indemnities fees for probates c. or growing due only vpō exercise of litigious Iurisdiction these are either due to the Iudge himselfe as fees of citations fees of sentences c. or are due to others attendants in the Court as fees of Aduocats Proctors Registers Apparitors c. or else they are such as are due to Ministers in the Church that haue no title as wages for a Curate or a Clerke or vnto a Minister that hath title And this right of a Minister that hath title toucheth either something incident to him as to name the Parish Clerke or concerneth the whole title and interest in and to his benefice or else toucheth but his maintenance and liuing His interest and title tendeth either to attaine it when he pretendeth iust title to it or to reteine it being in his possession or else to recouer it being bereaued or spoiled of it The dueties which concerne Ministers maintenance are tithes of all kindes Oblations Obuentions Pensions Mortuaries Churchyard or place of buriall c. Or lastly it is something that is due to a whole Parish as to haue a Chapleine found or diuine seruice or Sacraments administred amongst them or something due to their Church to be deliuered or for a Parishioner to be contributorie with the rest to reparations of the Church to seates to bels to the buying of bookes of Vtensiles or of other ornaments and requisites in the Church Concerning crimes offences claimed to be punishable by Iurisdiction Ecclesiasticall they may al I thinke be reduced to some of the three heads touched by S. Paul viz. as being contrary either to Pietie vnto God to Iustice towards our neighbour or Sobrietie towards our selues That which is against God the Latinists cal by the name of Impietas that which is against a mās neighbour they terme Facinus and that which a man designeth against himselfe Flagitium albeit the two last be often confounded without any curious obseruation of such proprietie of wordes Against Pietie to God-wardes are these blsasphemie swearing idolatrie heresie errour in faith schisme apostacie from Christianitie not frequenting publike prayer neglect of the Sacraments periurie in an Ecclesiasticall Court or matter disturbance of diuine seruice vtolating and prophaning the Sabboth and such like Contrary to Iustice are these Simonie vsurie diffamation subornation of periurie in a Court Ecclesiasticall violence to a Minister sacrilege dilapidations not building of a Church enioyned by atestatour not fencing the Church-yard not repairing a Church or Chauncell or not keeping of it in comely sort or when a Church-warden refuseth to yeelde an account of the Church stocke goodes violating of a sequestration made for tithes not paide hindering to gather or carry tithes money promised for redeeming corporall penance and detained contempt to the ecclesiasticall iurisdiction fighting or brawling in Church or Churchyard and such like And against Sobrietie are these all Incontinencie not made death by the lawe of the Realme whether committed with one which is of his kindred in blood forbidden either in generalitie or by some of the degrees Leuitical or with one of his alliance so forbidden both which are called incest or committed by such whereof the one is married which is adulterie or where the one of them hath bin maried termed by some stuprum or where both be single termed simplex fornicatio or whether it be marying of two wines or being maried vnto two husbandes at once which is called Polygamie Sollicitation of a womans chastitte drunkennesse filthie speeche and such others There be also certaine punishments and censures besides these which I thinke will be yeelded to be matters of ecclesiasticall iurisdiction as enioyning of penance suspension from entrance into the Church or from the Lordes supper or from execution of a ministers office or

the Booke aforesaide that a man for his wife onely may haue Action of trespasse at the Common Lawe and also a writte de vxore abducta cum bonis viri Also for a man that liueth asunder from his wife there lyeth Action in a Court Ecclesiastical for him to receiue her againe and to cohabite with her as may be gathered by 9 13. Ed. 1. c. 34. that statute of Westminster the second where it is prouided that a woman eloped from her husband shall loose her dower except the husband without compulsion Ecclesiasticall doe receiue her againe Therefore for a man to receiue his wife againe compulsion Eccles. may in some case be vsed with allowance of the statutes of this Realme Lastly it remaineth to shew here when and howe goods and chattels promised with a woman in marriage after the marriage accomplished be demandable and determinable in the Court Ecclesiasticall For besides one or two cases afore rehearsed where by the way so much is implied it appeareth by many consonant iudgements in the very point For if a 1 22. Assisatum fol. 70. per Thorpe cui concordat M 16. H. 3. per Fitzh proh 22. contract be made betweene two men that if the one will take to wife the others daughter then he will giue him tenne pounds In this case if the money be to be demaunded it shall be demaunded in the kings Court because hee did not promise the money with his daughter in mariage but by way of couenant that he should marry his daughter But if he had promised the money with his daughter in marriage then it shoulde haue bene demaunded in Court Christian. Likewise 2 14. Ed. 4. 6. in an action of debt the plaintife declared that he had married the daughter of the defendant and that he should haue twentie pounds in respect thereof and by agreement of all the Iustices of the Common Plees without any answere of the defendant it was decreed that the plaintife should haue nothing vpon his writ because it is determinable in a Court Christian and is of the same nature as the very marriage is So doth 3 Reg. fol. 46. 48. per Brooke tit prohib Brooke also collect out of the Register that for marriage money and pensions the suite lieth in the Spirituall Court and agreeable to the former distinction of Thorpe Fitzherbert 4 Fitzh no. na br tit proh fol. also reporteth it in his Nouanatura breuium Bracton in like maner affirmeth it 5 Bracton lib. 5. cap. 16. and yeeldeth a reason thereof for hee speaking of Ecclesiasticall iurisdiction saith thus Sic de rebus datis vel promissis ob causam matrimonij principaliter sic de rebus quae accidunt matrimonio vt sipe cunia promissa fuerit ob causam matrimonij quia eiusdem iuris id est iurisdictionis esse debet accessorium cuius est principale And albeit Brooke 6 Brooke t. t. iutisdict in his abridgement report that the same was also else-where holden by 7 17. E. 4. fol. 4. three viz. Chocke Townesend and Littleton yet hee himselfe seemeth to doubt of it and saith there is also great 8 37. H. 6. fol. 9. opinions against it because there is quid pro quo and therefore likely to be determinable in a Temporall Court Therefore it may probably bee thought that these opinions which hee speaketh of in this behalfe 37. Hen. 6. either were meant in such a case as grewe to a lay contract such as Thorpe speaketh of in the booke of Assises afore alleaged or else there was some couenant for the money by deede For 1 45. E. 3. fol. 24. per Br iurisdict 11. in an Action of debt brought vpon a couenant by deed that if the plaintife should marry the defendants daughter the defendant should giue him an hundred pounds which condition of marriage the plaintife had performed it was adiudged that notwithstanding Articuli Cleri the matter did belong to the Temporall Court because it was by deede but it had not belonged to it but to the Court Ecclesiasticall if it had bene without deede And the rather may it be thought because this hath bene taken for Lawe both afore and since notwithstanding those opinions mentioned by Brooke First in the 2 Reg. in Br. orig pag. 46. b. Register wee finde to this effect a certaine woman in consideration of Matrimonie to be contracted with her daughter promised 40. marks the Matrimonie was accordingly celebrated the woman dieth making executours Then for not paiment thereof the husband bringeth his Action in the Court Ecclesiasticall the executours obteine a prohibition whereupon the matter comming to scanning a Consultation is neuerthelesse graunted whereby is affirmed that the Ecclesiasticall Court may lawfully proceede therein Yea and long after these opinions deliuered Fitzherbert affirmeth that such suite belongeth to the Court Ecclesiasticall as hath bene alleadged And so doth the little Treatise of the liberties of the Clergie by the Lawes of the Realme in these 3 Goodall of the liberties of the Clergie wordes viz. If he that promised money with his daughter in marriage dieth hee that married her may sue the executours for the money in the Spirituall Courts There is in the saide little Treatise another case touched affirmed to be of Ecclesiasticall conisance which belongeth to this Chapter It is 4 Ibidem this If a man saith hee giue goods with his daughter in marriage and after there is a Diuorce the same may sue for those goods in Ecclesiasticall Court But hee sheweth not whether vpon any Diuorce whatsoeuer the goods be there recouerable viz. whether aswell when the Diuorce arose of the womans adulterie as when it grew vpon some consanguinitie or other Canonicall impediment founde out after mariage Hitherto concerning those kindes of Iurisdiction Ecclesiasticall which I adioyned to causes Testamentarie and Matrimoniall CHAP. IIII. Generall proofes out of Statutes that sundry other causes besides Testamentarie or Matrimonial are of Ecclesiastical conusance BEfore I proceed further to shewe in particular what matters besides be of Ecclesiasticall conisance and Iurisdiction and how farre I holde it nothing amisse to shew in some generalitie first that there are some other such which be neither Testamentarie nor Matrimoniall nor yet any way depending or of affinitie to them The Great Charter to the obseruation and propugnation whereof the King and the great Nobles and Officers were wont to be sworne layeth this ground-worke of all which followeth We haue granted to God and by this our present 1 Mag. Chart. cap. 1. Charter confirmed for vs and our heires for euermore that the Church of England shal be free and shall haue all her whole rights and liberties inuiolable But that the Church had these rights and liberties then which are now claimed the Actes of Courtes Ecclesiastical in those and former times and in all succeeding ages without prohibition or other oppugnation with the

pursuite of the writ De excommunicato capiendo being ouer-trouble some and full of vnnecessary circumstances But hereunto he doth answer that we forget the olde and true saying Compendiaria res improbitas virtus longa Now if he will haue this to be a good answere then must he holde the shorter way alwayes to be the woorse and the longer the better And where is then the rule of Logike Frustrà fit per plura quod fieri potest per pauciora and how is he so suddenly fallen out with himselfe that else-where condemneth Courts ecclesiasticall for lingering consistories I perceiue neither long nor short will please him long together But his reason is a fallacie of the consequent For though it be but a short cut vnto wickednesse and the way vnto vertue be long and hard yet is not all length commendable nor yet are all short courses condemnable The latter opinion of the two here also to be handled doth crosse thwart other of their owne opinions for the Ciuill law saith Frustrà fertur sententia nisi parata sit executio A decree or iudgement is of no effect where execution of such sentence can not be had The Iudges ecclesiasticall haue no compulsorie meanes to put their iudgements vnto finall execution sauing excommunication the writ De excommunicato capiendo after forty dayes obstinacie Those of the impugners of ecclesiasticall iurisdiction vnder pretence of the lawes of the Realme that be straitest laced doe yeeld causes testamentarie and matrimoniall to be of ecclesiasticall conusance and I hope sundry others be prooued no lesse to be Now how shall any of those be euer effectually proceeded in seeing they are none of the tenne crimes reckoned in that statute if for not performance of that which is decreed the wilfull partie shall neuer be attached for persisting vnder excommunication It appeareth also plainly by the Preamble that the sayd statute was enacted for better assistance vnto iurisdiction ecclesiasticall by more due execution of the writ De excommunicato capiendo especially against offenders in crimes of ecclesiasticall conusance The Ordinaries afore this who had to deale in any matter ecclesiasticall and all subiects that sued any other there had this interest of hauing a contemptuous person being excommunicated and so remaining aboue fortie dayes to be attached and imprisoned by vertue of that writ vpon what originall cause ecclesiasticall soeuer such contempt grew Now if that statute prouiding but a straiter course for execution of that writ in tenne crimes onely should with all take away the force and vse of it as it stood afore at the Common law not onely in sundrie other crimes of ecclesiasticall conusance still there punishable but also in all causes Testamentarie Matrimoniall of tithes and in all other rights ecclesiasticall in that Court onely still demandable then should it worke a cleane contrary effect to the very true drift and scope aimed at and to the meaning it selfe of the Law-makers But this is very vnreasonable and absurd to imagine for quae in fauorem sunt introducta non debent in odium retorqueri and quae ad vnum effectnm parantur non debent contrarium operari effectum It is true that in the beginning of the body of that Statute the words be generall in this sort viz. Euery Writ of excommunicato capiendo that shall be granted out of the high court of Chancerie against any person or persons c. Whereupon some very learned in those lawes haue thought that the maner of granting it returning and deliuering it which be there especified doeth reach vnto all and euery writ de excommunicato capiendo but yet that the new penalties there prouided for such person excommunicate as shall not yeeld his bodie are to be restrained vnto those onely who by Significauit are certified to haue bene excommunicated vpon some cause or contempt arising vpon some originall matter of some of those ten crimes there especified This seemeth to carie great reason with it for in trueth that generalitie there not withstanding not only in the Preamble but in diuers partes of the body of that statute we find wordes taxatiue and of restraint carying the chiefe purport of that Act vnto such writs as be grounded vpon some of those ten crimes For the Preamble onely speaketh of persons offending in many great crimes and offences of continuing in their sinnefull and criminous life and of such offenders And the beginning of the bodie of the Statute is for redresse thereof be it c. and afterward this word of Limitation is often vsed viz. Such writ of excommunicato capiendo such persons excommunicate and such Significauit And therefore that statute nor any Prouiso in it cānot be entended generally to take away the writ de excommunicato capiendo in all causes sauing in those ten crimes as by this opinion is enforced But the clause thereof Sauing and reseruing to all persons hauing authoritie to certifie excommunicate persons doth put all this matter out of doubt and dispute For thereby is saued and reserued to them like authoritie to accept and receiue the submissions satisfactions to absolue and release and to signifie and thereupon to haue such writs c. in such maner and forme as heretofore respectiuelie they haue vsed as hath bene accustomed and as they or any of them had or ofright ought or might haue had anything in that statute specified or conteined to the contrary here of notwithstanding If then they may still signifie in like maner and forme shall haue writs thereupon may absolue and release receiue satisfaction and submission c. as they had done before that time then may and ought the writ de excommunicato capiendo to be awarded for contempt arising on other originall causes ecclesiasticall then any of those ten crimes in that statute reckoned For so Ordinaries did and had afore that time and since also whatsoeuer this opinion now doeth deliuer to the contrary CHAP. XVII Of a Prohibition what it is where it lieth not and where it doeth and how it ceaseth by a Consultation of the writ of Indicauit WHen any Court goeth beyond his bounds and dealeth in other matter or sort then the lawes of the land will warrant there lieth in some cases writs at the common lawe which are of Prohibition or Indicauit and in other cases a writ brought in by statute called Prouision and Premunire and the Prohibition and Praemunire doe lie as well against temporall as against ecclesiasticall Courts The Prohibition is a charge by the kings writ to forbeare to hold Plea either in some matter or maner which it is supposed a man dealeth in beyond his iurisdiction or otherwise then lawe will warrant Euery Prohibition is either Prohibitio iuris by the very lawe it selfe or Prohibitio hominis where the ministerie of the competent iudges in that behalfe is vsed Any Statute prohibitorie is 1 21. E. 3. fol. 29. Prohibitio Iuris a very prohibition

Let vs see then whether they retained Accusation as the onely lawfull course It is true 1 Mat. 27. V. 12. Luke 23. V. 2. three of the Euangelists doe report that the chiefe Priests and Elders accused him before Pilate and 2 Mark 15. V. 3. as one of them saith of many things as 3 Luk. 23. V. 10. another of them saith they accused him before Herod vehemently Yet whoso will attentiuely way and consider of that historie shal well perceiue that our Sauiour was condemned afore by the Eldership and that these imputations of crimes against him before Pilate and Herode called there Accusing was nothing else but to approoue vnto them the iustice of the sentence formerly giuen by the Sanedrin or great Councill vpon him to the intent that they might obteine a decree for his executing at Pilates or at Herodes handes For albeit the Iewes after they were conquered by Pompeius Magnus had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their owne lawes ordinances and ceremonies left vnto them yet had they not iu●… gladij the power of life and death in them and so they signifie vnto Pilate when he was willing to haue shaken them off and to haue had no dealing at all in that action For when he saide 4 Ioh. 19. V. 31. take ye him and iudge him after your owne lawe then the Iewes saide vnto him It is not lawfull for vs to put any man to death And Pilates decree was nothing else but that it shouldbe 5 Luk. 23. V. 24. as they required What that was two other Euangelistes doe expresse viz. that he might be 6 Mat. 27. V. 23. Iohn 19. V. 16. deliuered vnto them to be crucified Lo whereunto his decree tended vnto Christs execution but not to condemnation for he had afore washed his handes and pronounced Iesus innocent For proofe that he was first condemned by the Eldership and then execution only sought for by Pilates authoritie it appeareth in the 26. chapter of 7 Vers. 65. 66. S. Matthew thus behold nowe ye haue heard his blasphemie what thinke ye they answered and said he is worthie to die And this Council was holden ouernight immediatly after his apprehension This action Saint Marke sheweth plainely to haue bin his condemnation They 1 Mar. 14. V. 64. all condemned him saith he to be worthy of death Thus hauing condemned him when 2 Mat. 27. V. 1. 2 the morning was come they helde a Councill againe to put him to death and thereupon ledde him bounde to Pilate the gouernour to procure a decree for his execution For in the next verse after it is directly said 3 Ibid. V. 3. thus then when Iudas c. sawe that he was condemned he repented himselfe c. which was afore his appearance before Pilate and afore he had dealt with him at all What then was the course whereby the great Coūcill proceeded with him not by Accusation made by any other then themselues but vpon witnesses though false by them suborned and vpon pretence of his owne cōfession 4 Mat. 26. V. 59 60. They sought false witnesses c. at the last came two false witnesses c. a litle after what 5 Ibid. V. 65. haue we more neede of witnesses behold now ye haue heard his blasphemie And S. Luke 6 Luk. 22. V. vlt. thus then said they what neede we any further witnesses for we haue heard it of his owne mouth Whereby it is made manifest that albeit the Priestes and other Elders sought by all meanes possible outwardly to approue their proceeding against Christ vnto Pilate and the people yet did they neuer seeke or require any third person to preferre vp Accusation against him and therefore a course of proceeding not of necessity to be obserued by Gods law as they al then conceiued vnderstood it Likewise when the first martyr S. Steuen was proceeded with by the same Councill Eldership residing at Ierusalem none accuser but 7 Act. 6. V. 11. 13 witnesses only were vsed For though the Libertines Cyreniās vpō spite toward Steuē did suborne the witnesses yet did they not appeare themselues openly in the action as Accusers Neuerthelesse it bare the shew at first of a 8 Ibid. V. 15. due and Iudicial proceeding in Councill howsoeuer the execution of him after was done without iudgement giuen and 9 Act. 7. V. 57 58 59. by tumult of the people Nowe least any man should surmise that this was but a corrupt custome crept into those later times we will therfore looke something higher what was done in former ages In the proceeding against Naboth though it was a most wicked iudgement grounded vpon periury and subornation yet we may 10 1. Reg. cap. 21. V. 9 10 11 12 13. see the plot was so laid as it might seeme to cary apretēce of a due Iudiciall course whereupon may be truely gathered something touching the maner of proceeding then vsed For in a solemne fast when Naboth sate Iudicially with the rest of the Elders and chiefe of the people vpon the onely witnessing of two wicked men in his presence that he blasphemed God and the king Naboth was condemned to be stoned The matter for which I note it is this that the processe was without any Accuser or party For there are named onely the witnesses the elders and gouernours Naboth the party condemned By which together with the historie of the adulteresse 1 Ioh. 8. cap. 10. mentioned in the Gospel being conferred with 2 Deut. 17. Deuteronomie I do gather that ostentimes in their Iudiciall proceedings the Iewes had none other persons that any way dealt but witnesses Iudges and the party against whom they proceeded For in the Gospel albeit those that told Christ of the womans adultery are 3 Ioh. 8. V. 10. called Accusers in these wordes Where be those thine accusers yet such of 4 Verse 7. them as were without sinne were willed by him to cast the first stone at her Alluding therein to that lawe 5 Deut. 17. V. 7. that the hands of the witnesses shal be first vpon an offendour condemned to kill him So that there were none other Accusers but the witnesses This is more plainely proued out of the same booke 6 Deut. ca. 19. V. 15 16 17 18 19. afterwardes For where it is saide that one witnesse shall not rise against a man for any trespasse or for any sinne or for any fault that he offendeth in but in the mouth of two or three witnesses shall the matter be established it is foorthwith added thus If a false witnesse rise vp against a man to accuse him of trespasse then both the men which striue together shall stand before the Lord euen before the Priests and the Iudges which shall be in those dayes and the Iudges shall make diligent inquisition and if the witnesse be found false and hath giuen false witnesse against his brother

the Imposers of them to be in a Praemunire for incroching vpon the Kings rights and prerogatiues and for conuenting subiects by forrein made Lawes and for practising Antichristian Decrees and Popish Canons which hee sayeth appeareth by the Praemunire brought by Hunne against a person suing the said Hunne for his yoong deceased infants bearing-cloth by the name of a Mortuarie in an Ecclesiasticall Court howe doth this inferre that it is Praemunire either to encroch vpon the Kings rights prerogatiues though this peraduenture by some circumstances may amounte sometimes to no lesse or to conuent subiects by foreine made lawes It may not be thought that euery intrusion deteiner or concealement which is incroching vpon the Kings right or rauishment of his wardes which hee ought to haue by his Prerogatiue Royall is straightway and necessarilie a Praemunire neither were the Kings Temporall Courtes in this case encroched vpon because they could not giue remedie for deteining a Mortuary if this were so in trueth to be accounted neither yet is there so much as any mention made of foreine lawes which the Ecclesiasticall Court then proceeded by or practised This course of the Treatisour is rather to prophesie then to reason thus to tell vs afore hand vpon the very bringing of the action of Praemunire by Hunne what the iudgement was in that matter yea and vpon what ground the iudgement was giuen in a cause which neuer receiued iudgement for any thing I can learne To this point he also mentioneth the Praemunire wherein blind Nixe sometimes Bishop of Norwich was condemned and addeth to the aforesaid two points that by that also appeareth Iudges Ecclesiasticall are in Praemunire whensoeuer they exceede their Iudiciall authority But if euery exceeding of authoritie were a Praemunire then what Iudge is there of any court of either sort so skilfull or alwayes so aduised but might iustly feare that at one time or other he shall not escape this rigorous doom of Praemunire In trueth this example prooueth all his three points iust alike that is none of them at all I doe verily beleeue the Treatisour neuer sawe that Record if he haue either he makes verie bolde with his Reader or else with the Arte of reasoning thus to collect I haue perused the Record 1 H. 25 H. 8. Rot. 42. Suffolk it selfe it containeth a suite of Praemunire brought against the saide Bishop by the Kings Attourny generall on the Friday after the P●…rification pleading the Statute of 16. Ric. 2 and adding that al Indictments Presentments and Impetitions in any court of the Kings 2 B. Nixe his condemnation in a Praemunite or in any Court of a subiects which is in any sort deriued or diduced from the Kings crowne duely taken or found are to be tried iudged in that Court where they were found or in some of the Kings Courts and not in any Ecclesiasticall Court and that whereas there was an old custome in the Towne of Thetford that whosoeuer should trouble any of the Kings or Duke of Lancasters tenants commorant in that Towne and shoulde call them by citation into an Ecclesiasticall Court out of the Deanery of the saide Towne shoulde thereby forfeit and he also that should execute such processe should also forfeit 6 shillings 8. pence which custom by a Iurie of twelue men being accordingly presented before the Maior the said B. cited the Maior two others to appeare personally before him in his Mannor and Chappell at Hoxne or Hoxstone in Suffolke The Maior and the one of the other two appearing and hauing nothing obiected but that presentment made were by the B. enioyned vpon paine of excommunication at the next court of the Kings to be holden in Thetford to call the same Iurours together and therepublikely to adnull and reuoke the said presentment as being against Gods Lawe so that saith the Record the B. did in an Ecclesiasticall Court iudge of the presentment being duely made in the Kings court and enioyned the reuoking and disanulling of it against the King his regalitie crowne c. wherevpon immediately the Bishop appeared and desired libertie of imparlance till monday next after and had it graunted vpon good mainprise c. On the prefixed monday the B. appeared againe and said he could not deny but that he was culpable in all the premisses put himselfe thereupon into the Kings hands c. so had iudgement to be from thenceforth out of the Kings protection and al his lands and tenements goods chattels to be forfeited to the King and that he should remaine in the custody of the Marshall quousque c. but presently vpon special grace of of the Court he was let to baile in a far lesse summe then afore for his appearance in Easter terme next after At what time hee appeared by his Atturney and both he and his pledges were discharged by vertue of an Act of Parliament made the same yeere Whereby wee may see that encroching vpon the Kings rights c. is not heere specially assigned for any cause of such iudgement and much lesse is the practising of any Canons or forreine made Lawes for they are not once mentioned and least of all that euery exceeding of their authoritie by any Court shoulde be a Praemunire For the originall and onely cause hereof was the B. enioyning of the Maior and of another townesman of Thetford vpon paine of censures to adnull and make voyde a presentment first duly made in a temporall Court of the Kings It is also to be noted out of the generall Atturneys bill in this Record where it is saide that presentments c. found or made in the Kings or in a subiects Court which is in any sort deriued from the Kings crowne must be tried there or in some of the Kings Courts and not in an ecclesiasticall Court that at this time Courts ecclesiasticall were not holden to be deriued any way from the Kings Crowne as no we they are and so bee acknowledged and indeede by conferring the times I finde that this fault of the Bishop was done in Nouember 24. H. 8. hee was attainted in Hilarie terme 25. H. 8. which is a yeere and more after and it was in a Parliament time that was continued till 30. Martij next aster Now the supremeheadship ouer the English Church was not yeelded vnto the King vntill the Parliament by prorogation holden the third of Nouember then next following viz. 26. H. 8. That which the Treatisour collecteth by Cardinall Wolseys Praemunire and the whole Cleargies also for assenting to and assisting the Court Legatiue which the saide Wolsey had erected hee himselfe doth sufficiently confute for albeit hee doe affirme that Wolsey was in a Praemunire for preiudicing but ecclesiasticall Courtes and not the Kings and thence gathereth thus How much more those which practise Antichristian Lawes and Popish Canons repugnant to the royall Matestie and policie of this laend yet doeth hee by implication contrary his owne