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
not haue conusance of the breach of an othe voluntarily taken is when there lieth an action for the matter whereof the othe was confirmatorie at the Common Lawe therefore it was holden by Brian 6 T. 22. Ed. 4. fol. 20. not long after that if a man sweare to pay twentie pounds that he oweth at a certaine time and pay it not and for the periurie be brought into the Spiritual Court there shall lie a prohibition because saith he an action of debt lieth at the Common Lawe I make this a seueral cause and reason from the former because an othe may grow vpon a Temporall matter which was the former cause and yet none action lie for it And if I promise without any consideration to giue you twentie pounds and binde it with a voluntarie othe it seemeth the Common Lawe will holde it still but pro nudo pacto and so giue none action at all But some occasion is giuen vnto me to thinke that courts Ecclesiasticall de facto howsoeuer de iure helde plea of breach of othe and of faith falsified which 1 Lyndw. in cap. aeterâ—…ae sanctio verbo fidei transgressione de poenis amounteth to asmuch in some respects as breach of a corporall othe euen when such othe or faith voluntarie taken was for confirming of a matter Temporall For this I finde not onely before the Writ was framed de recognitionibus per sacrament a non faciendis de catallis debitis quae non sunt de testamento vel matrimonio but afterwarde also and that aswel by iudgement as by opinions deliuered and reported for booke cases albeit with certaine cautions which shall by the way be touched First then that Ecclesiastical Courtes handled this cause long afore that Writte was deuised I finde in a 2 Prou. Constitutio 〈◊〉 sanctio de poenis Prouinciall Constitution made at a Synode holden at Lambhith vnder Boniface then Archbishop of Canterburie in the time of King Henrie the third Anno Christi 1260. which constitution I doe alleadge not as being of force now for the purport thereof because it aimeth at the bridling of the Kings Prerogatiue and of his Temporall Courtes but thereby historically to shewe what was then held and practised vsually The effect of it to this purpose is that whereas Prelats doe take Conisance of sinnes and of misdemeanours of such as be vnder their Iurisdiction as of Periurie or breache of faith of Sacriledge of violation of Church liberties for infringing of which euen by the Kings Charter graunted to the Church of England such disturbers doe fall into Excommunication ipso facto and of such like causes which be meerely of Ecclesiastical Conisance yet are prohibitions directed foorth out of the Kings Court and Iudges Ecclesiasticall are called thither to answere as if they delt not concerning Periurie and breach of faith but suggesting that they deale touching chattels Therefore a little after is added this viz. 3 Dicta Prou. Const. And if perhaps the King in his attachements prohibitions and summons shall make mention not of Tithes but of right of Patronage not of faith falsified or periury but of Chattelles not of sacrilege or disturbance of ecclesiasticall liberties but of some trespasse pretended to be done by his subiects or bailiffes the â—…edresse whereof belongeth vnto him then let the Prelates aforesaid make knowen vnto him that they holde no plea neither intend to do concerning right of Patronage or chattelles or any other things belonging to his court but concerning tithes sinnes and other meere spirituall matters belonging to their office and iurisdiction and tonching the safety of mens soules c. So that the trueth of such allegation being manifested to the king they thought the plea sound and sufficient to obteinea discharge from such prohibitions c. if they were in those respects onely granted Yea and Lindwood who writ anno 1423 and long after that writ was framed who also by reason he was Officiall principall of Canterbury or Deane of the Arches had good experience in these causes maketh no 1 Lindw ibidem V. periurio doubt but that matter of periury or of breach of faith arising vpon what cause soeuer so farre foorth as it concerneth doubt whether such oath were lawfull or not and doe binde in conscience or not is of ecclesiasticall conisance And therefore teacheth how the libell in that case is to be framed that no cause of prohibition be giuen viz. the partie hath damnably broken his oath made for payment of so much money vnlawfully pretending that hee is not thereby bound or tied The statute Circumspecte agatis saith defamation shal be tried in a Spirituall court when money is not demanded but a thing done for punishment of the sinne and likewise for breaking an oath without distinction whether it arose of a temporall cause or not Since the said writ we haue a iudgement in the very point in the time 2 Lib. 22. Assis. fol. 70. of king Edward the third For if a man demand a debt of tenne pounds before the Ordinarie for that the defendant plight his faith to pay it c. and hath not payd it but broken his faith the Ordinarie cannot enioyne him to pay the debt for sauegard of his faith and if he do he doth it against the kings prohibition But he ought to enioyne him other corporall penance except the partie will willingly redeeme it For so Fitzherbert 3 Fitzherberts Abridgement tit Prohibition num 2. readeth those last wordes of exception more truely then my booke of Assises as it is printed carying indeed therein no sense at all The like appeareth in the reigne of king Henrie the sixt for there it 4 34. H. 6. 70. vt Brooke allegat tit Iurisdiction num 2. was holden that if a man buy an horse of me and sweare vpon the Euangelists to pay me ten pounds for him such a day and pay it not I shall haue action of debt at the Common law and also a citation pro laesione fidei at the Spirituall law and shall not therein offend the Common law because they are diuers things As for opinions afterward we finde it was held by Brian and Litleton in the time of K. Edward the fourth none there gainsaying it that 1 M. 20. Ed. 4. foâ—… 10. in laesione fidei arising vpâ—… a temporall matter the Spirituall court might punish it ex officio but not at the suite of the party To the same purpose also Mordant said in the time of K. Henrie the seuenth 2 T. 12. H. 7. fol. 22. that if a man be sued in a Court ecclesiasticall by a party pro laesione fidei in not paying a summe of money promised there shall lie a prohibition but if the Iudge ecclesiasticall shall do it ex officio then no prohibition shall lie which no man gainsaid or impugned These two opinions lest they should seeme to crosse the former iudgement in the booke of
either for the greatnesse of the partie whom poore men dare not present or denounce or for the delinquents often remoouing from one Dioecesse to another or for the dwelling of the witnesses else where or for the offenders frequent friuolous and chargeable appeales or for such like considerable occasion or vpon credible information made by some great personage or of some that be in that Commission or being referred from her Maiestie or from the Lords of the Counsell or vpon complaint of some partie iustly grieued otherwise being without remedie or by complaint of a whole Parish or of a great part thereof or vpon frequent relation of sundry credible persons taking offence and griefe thereat and setting downe particular euidence of the facte or in aide and assistance of ordinarie Iurisdiction as when the delinquent hath no certaine place of abode or lastly by some notorietie of the fact as by the parties knowen hand-writing or for a matter done in great assembly of people and such like Hereupon Articles be framed wherein are conteined the place time and oftentimes the persons able to testifie informe further and all such other circumstances and Indicia which I interprete as the worde is commonly vsed Euidences tending to the plainer manifestation of the Crime The Articles are perused and allowed to be incident to the conisance of that Court and conteining sufficient detection to open a way to proceede by way of further enquirie ex officio into that crime by one of those three Commissioners at the least whereof one is of the Quorum that doe subscribe the Processe for conuenting of the partie This Processe is either by way of Citation commonly there called letters missiue or by way of attachment when the partie is fugitiue or flitting or the Crimes be grieuous and publikely offensiue so that it may probably be feared he will lurke or steppe out of the way for a time But in both courses some one is bound to the Queenes Maiestie to prosecute to furnish the Court with witnesses for proofe of the matter not to compound it priuately and to pay charges vnto the partie if it shal appeare he hath bene without iust cause troubled Yet where the Commissioners themselues are sufficiently enformed Indicijs viz. with euident matter against the partie and where no such prosecutor or relator doeth offer to follow it so that the Court it selfe takes chiefe care of the prosecution in some like fewe cases such bonde is omitted Nowe when as the partie appeareth for such iust considerations as hereafter are debated and prooued lawfull he is required on her Maiesties behalfe to take oathe to answere the Articles or Interrogatories truely being matters of his owne facte and knowledge so farre foorth as by lawe he is bound before euery particular thereof be made knowen vnto him least after perusall afore his oath taken he be drawen by counsell to answere cautelously indirectly or wholly to refuse to make answere perhaps because he sees they touch him ouer neerely as coniecturing by whom they may be prooued But after the oath is taken in setting downe his answere he may consider as aduisedly and deliberate for so long time as in any reason may be desired And thus farre foorth the partie conuented is for the most part without any partie at all proceeded with but ex officio Iudicum nobili vel mero to the intent he may not bee priuileged to say that he is not bounde to answere being at the suite of the Office and duetie of the Iudge for the publique interest of the Church and Common-weale as perhaps by Lawe he might if it were at first preferred and prosecuted by a partie But after he hath perfitely answered them for the most part a partie is then made who if sufficient matter be not confessed thereupon to proceede vnto a iudgement vpon the Articles and answere doeth take vpon him to prooue it by witnesses and then Interrogatories exceptions against witnesses and other defenses for the conuented partie are vsed almost wholly as in Ordinarie Courtes By which making of a partie that which was merum officium afore doeth afterward become officium mixtum viz. ex mero promoto When the matter comes to finall iudgement if the partie bee conuicted hee is punished either by penance for his reformation and for satisfaction of the Church offended or by imprisonment fine or censures of the Church or by so many of them as is thought fittest or by him or others most feared or to be most conuenient weighing alwayes the qualitie of the person and the offence together with other circumstances thereof In ordinarie Iurisdiction Crimes be vsually proceeded against either ex officio promoto that is at the instance and petition of some that will voluntarily stirre vp and sollicite the Iudge vnto his duetie or else ex officio Iudicis mero In the first of these albeit the partie conuented is bound to answere matters by oathe if it bee required so they bee not of the Crime obiected yet the rule is that he is not bounde to answere vpon oathe touching the very Crime it selfe notwithstanding a fame doe runne hereupon vntill he shal be enioyned his purgation But when an Ordinarie proceedeth against a crime without a partie promouent viz. ex officio mero then his proceeding must be grounded either vpon a presentment of a fame or of the crime made by such as be specially deputed thereunto as Church-wardens c. or proued by other witnesses or else vpon notorietie of the facte speeches and information of credible persons touching such fame or scandale thereupon risen brought often vnto his eares which is called clamosa insinuatio or by some other course allowed by lawe to be sufficient to open a way vnto such proceeding If it be vpon a perfite presentment of the crime or fame thereof the Iudge may safely without doubt of nullitie or grieuance in that behalfe proceede ex officio and so may vrge the partie presented to answere vpon his oath touching the very crime it selfe But if there be no such presentment but clamosa insinuatio delata ad aures suas or some equiualent matter whereby the partie becomes offensiue and scandalous though no man will prosecute or present him yet the Iudge may and ought ex officio of very duetie to proceede vnâ—…o the examination of neighbours there abouts touching such fame or crime which fame if it shall be by such enquirie found and prooued then he may proceede as afore But if vpon such denunciation and notification had from credible persons and the crime being not declared to be notorius nor none infamie or scandall prooued or presented nor any other sufficient meane to open way to such Enquirie he shal neuerthelesse proceede and vrge the partie to answere of the very crime vpon his oath this of it selfe shall make none errour or nullitie in the proceeding albeit not warranted by lawe For if the partie conuented shall make none opposition
purgationis where there be such parties is when in a cause criminally mooued by some accuser or partie the Iudge vpon defect of sufficient proofe doeth tender to the defendant an oath to cleare himselfe This though it be established by the Canon yet of long time it hath bene in vse aswell in Ciuill or Temporall courts on the other side of the Sea as in Ecclesiasticall so that if the defendant shall refuse to take it in either he is holden pro confesso conuicto The other oath of purgation or clearing simply when there is no formall partie in iudgement besides the defendant is that which by reason of fame scandall vehement presumption or vpon some other of those meanes that as I haue shewed afore doe open a way to Enquirie ex officio the Iudge doeth giue vnto the defendant to his clearing of the very crime obiected without any meaning then to seeke further proofes of that crime after the defendant hath taken such oath The other oath necessarie being partly of 2 Leuit. 5. v. 1. Num. 5. v. 12. sic deinceps Iosh. 7. v. 19. 1. Sam. 14. v. 43. clearing and partly of further enquirie is that which as is next aforesayd is giuen to the defendant vpon criminall matter obiected and vpon the circumstances thereof yea oftentimes with purpose to make further proofe in case the defendant shall not confesse it or not so fully in materiall circumstances as the Iudge hath cause to thinke may by witnesses or otherwise be prooued Yet if he shall confesse so farre as is thought may bee prooued then according to the qualitie of such his answere hee is presently either proceeded with thereupon vnto a iudgement or else dismissed as cleared thereof by his oath The examples and other iustification hereof shall more largely God willing be shewed in their proper place hereafter For this is the oath that the Innouators doe so much condemne and exclaime against But nowe touching voluntarie Iudiciall oathes whereof Suppletorium is that which is tendered to the plaintife or defendant according to the qualitie of the cause in a ciuill matter for supply of proofe made semiplenè tantùm as happily by one singular witnes being without all iuâ—…t exceâ—…tion Iuramentum in litem or Aestimatorium is then 1 L. 1. cum l. sequ ff de in litem iurando giuen by the Iudge when the defendant doeth not restore the very thing that is in demaund in which respect he is to be condemned in the value thereof according to such rate as the plaintife is endamaged taking it vpon his oath yet so as the Iudge by equitie may taxe and moderate the quantitie of the summe which he may not exceede and also when the partie hath sworne the Iudge may defalke thereof as he seeth cause in equitie Decisorium iuramentum delatum is that which 2 Exod. 22. v. 11. 1. Reg. 8. v. 31. Hebr. 6. v. 16. either the one or the other of the parties first offereth vnto his aduersarie to take according to that hee affirmeth or standeth in perhaps vpon confidence of his good conscience or for want of better proofe So that if he to whom it is so deferred shall take such oath then must the matter be adiudged according to his oath as if the parties had so agreed the cause But if he shall refuse it and yet will not referre it that is will not put it ouer vnto his oath that first made the offer then shall hee be ouerthrowen in the cause So that to referre an oath is nothing els but to offer it backe to be decided by his oath according to his owne issue that first made the offer 3 L. iusiurandum 34. § ait Praetor ff eodem l. generaliter 12. § se liuramento C. d. But if vpon such referring it ouer backe againe he also that made the first offer will not take the oath then hee that so referred it ouer againe shall haue iudgement passe with him as if he himselfe had sworne when it was first offered him for maximae turpitudinis est nec delatum subire nec referre iuramentum Examples of these decisorie oathes there be also at the common lawe for 4 19. H. 6. 43. where the defendant desires that the plaintife may be examined or sworne this is peremptorie to the plaintife in this point and so is the wager of lawe ex parte defendentis By the custome of London if the defendant desire to haue the plaintife sweare to his declaration and hee doe it the defendant is thereupon condemned But this oathe decisorie at the 5 Iul. Clarus li. 5. § finali qu. 63. ciuil Law is neuer vsed in matters criminall except they be mooued ciuilly not criminally that is for the plaintifes priuate amends and satisfaction or else the cause be but of small value or the proceeding in such criminall cause criminally be referred and intended to no corporall but to a pecuniarie punishment or fine onely Thus farre for a generall vnderstanding of the nature of euery seuerall kinde of oathe CHAP. IIII. That the ceremonies vsed in taking and giuing corporall oathes with laying handes vpon the Bible or Testament and swearing by the contents of it are not vnlawfull THe first challenge nowe comming to be spoken of that is made by some of them against the ceremonie vsed through this Realme in all corporall oathes taken either in Temporall or in Ecclesiasticall Courts is the laying of our hands vpon a booke when we take the oathe For the better approbation hereof it is meete to consider the generall ende of it the particular vse of it and the generall practise of that or of the like ceremony reported both in Scripture and in other writers to haue bene vsed in such action The generall and chiefe ende of this or of any the like ceremony vsed in this action is to signifie thereby that we do then aduisedly attend and giue heede to the oath wherewith we are charged and that we do accept of it and bind ourselues in sort as it is giuen The vse of this in particular is to strike a more aduised feare reuerence into vs when wee consider the reuerence due to an oathe as it is described in that booke the curses there threatned against those that for sweare themselues or shall take the name of God vainely This vse of such corporall ceremonie in taking of an oathe is touched in the 1 L. 3. C. si minor se maiorem dixerit ciuil law out of which it is gathered that by touching and by corporall taking of it the oath is holden to be more inuiolable and the harder vpon any plea to be recalled The practise of corporall oathes taken with some like effectuall and significant ceremonie by the godly is to be found in Scripture When 1 Gen. 24. v. 3. 9. Abraham caused his seruant that was vnder his authoritie to take a corporall Promissorie and necessarie oath for
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
quandoque iurisdictio de iurisdictione in iurisdictionem mutatis rerum nominibus vt si de Laico catallo fiat spirituale vt cùm res fuerint decimatae fiunt de Laico catallo res spirituales sic mutatur iurisdictio secularis in spiritualem And therefore where it is reported in the booke of Assises 38. pag. 20. that the Exchequer held plea in matter of tythes betwixt two parsons of Churches because the one was the Kings debtour it is 5 Brooke tit Iuris 9. said that neither of the Benches would haue done it and that it was a marueile It appeareth in the Register by 6 Regist. in br orig pag. 45. b. 46. 47. b. 48. b. sundry consultations graunted after prohibitions brought that at the Common lawe so declared and confirmed by Articuli cleri tithes are of ecclesiasticall conisance And it is alledged 7 Gooddall of the liberties of the Clergie Regist. pag. 51. a. D. truely out of the Register that for tithes happening due in time of vacation of a benefice the Iudge ecclesiasticall may cite ex officio More particularly sundry kindes of tithes are there expressed which by consultations were prooued and allowed to belong to the determination of an ecclesiasticall Court. As first 8 Reg. pag. 48. b. tithe of wooll rising of sheepe killed or dead Againe 9 Reg. pag. 48. a. tithe of calues lacticiniorū that is of milke butter cheese as it may be gathered by another consultation are both due to be paide and demaundable in a court ecclesiastical Thirdly another 10 Reg. pag. 49. a. cōsultation cōteineth not only butter cheese lacticinium to be due and demandable in court eccles but also of pannage that is tithe of maste of coltes To these doth the Treatise of the 11 Gooddall of the liberties of the Clergie by the lawes of the Realme liberties of the Clergy adde tythes for hony waxe of bees But why he should say further that it seemeth all these must be by prescription as if tithes of all kindes were not ipso iure due sauing when some lawe doeth otherwise specially limit and determine I must confesse y t I can see no seeming nor yet colourable reason And not onely the partie himselfe who deteineth tithes may be sued but if he die his executors may be sued also for them in court ecclesiasticall For so is it 1 Regist. in br origin pag. 48. a. Gooddall ibidem testified by a Consultation obteined for tithe of Wooll denied by the Testator and by his executors who brought the prohibition And the 2 Gooddall ibid. like is testified by the said treatise of the Liberties of the Clergie touching tithes of Mils Whereas also for restraint of the malice of diuers a prouinciall constitution was made by the Bishops of the Prouince of Canterbury in their Synode at London that such as hindered the gathering or cariage of tithes by due and accustomed wayes should be excommunicated ipso facto It happened that a parson bringing his action in court ecclesiasticall vpon that constitution was hindered and staied by prohibition suggesting that it was instituted touching debts and chattels being neither Testamentarie nor matrimoniall But the consultation 3 Reg. p. 46. b. 47. a. Gooddall of the Liberties of the Clergie granted doeth signifie that the court ecclesiasticall may lawfully proceed in that plea so farre foorth as the action reacheth but to the excommunication of the partie by reason of his hindering the Parson to gather and carie tithes by places due and accustomed so that the said constitution and suites ecclesiasticall thereupon brought be both allowable Yet we are to vnderstand that neuerthelesse in some cases the suite for tithes doeth not lie in an ecclesiasticall court as for example where it is otherwise determined by statute For it is prouided that 4 45. Ed. 3. ca. 7. where a man is sued in a court Ecclesiasticall for tithes of great trees aboue 20 yeeres growth which may serue for timber of ships or houses the kings prohibition shall lie But it was 5 Reg. in br origin pag. 49. a. in Notabili Brooke tit Consultat 11. agreed in the Parliament at Sarum that a consultation lieth for Sylua caedua albeit it renew not yeere by yeere It was also 6 Plowden 17. Eliz. inter Sobie Mullins adiudged in the case betwixt Sobie and Mullins that of hornebeames Sallowes and such like trees that are of so base nature that they serue not for building nor are of any endurance and seruing for fewell and other meane vses tithes should be paied not only of the trees themselues but of their boughes when they are lopped of what age soeuer they be The 7 Ibidem opinion of the Court in this case then further also was that if the tree it selfe by that statute being but an affirmance of the Common lawe afore bee priuiledged for tithes as Oke Ashe and such like that the armes boughes also of them being of twentie yeeres growth or aboue shall be free likewise And the reason is added for they may serue for some vse in building So that here it may be doubted if trees aboue twentie yeeres growth being of a kind priuiledged and timberable as Oke Ashe Elme c. be of themselues so little so crooked or so rotten as that they can serue for nothing but blocks and fewell and be also so emploied whether thereof tithes shall be paied and bee demandable in a Court ecclesiasticall For here the reason of that iudgement doeth cease because they serue not for any vse in building cessante ratione cessat lex This doubt is also enforced by the opinion 1 T. 11. H. 4. fol. 242. of Askham who to maintaine the prohibition there brought though the suite in the ecclesiasticall court were for great wood was driuen to auerre that they were such great trees as might serue to build an house sufficient for any mans dwelling according to the custome of the Countrey Which allegation of matter in fact had not needed if onely the kind and age of the trees had bene to be respected to maintaine the Prohibition But this question is to be discussed by the reuerend and learned Iudges I doe find a Note in the Register but not set downe by whom nor when touching immunitie of some things from paying of tithes to this 2 Nota in Reg. pag. 54. b. effect viz. Note that the Iustices say that tithes shall not be yeelded but of such things as bring profite from yeere to yeere and that by the memory of man but this is against the Decretals saieth he Now admitting this report to be true what might be the reason of such opinion of those that were Iustices then is not expressed I cānot coniecture for not only the Decretals Canō law but Gods written law before that y e law of nature vnder which other thē such
7. 2. 3. Ed. 6. cap. 13. statutes for tithes do now stint this strife and makes both cases to be Ecclesiasticall Vpon 5 14. H. 4. 17. corne carried away whereupon it comes to be tried betwixt two Parsons of Churches who hath right to the tithes this triall belongeth to the spirituall Court and is not vpon action of trespasse to be brought to the Common law And so it was adiudged albeit that the defendant there said that his Parsonage was then in lease But if they 6 39. Ed. 3. 23. 5. H. 5. 10. had ioyned issue whether the place whence the sheaues were taken were in the one Parish or the other then it should haue bene tried at the Common law because 7 Brooke tit Iurisdict the bounds of a Parish shall be tried by the Countrey as is there said Yet in a litle Treatise 8 An answere to a letter cap. 1. printed by Tho. Godfrey circa 26. H. 8. printed by Thomas Godfrey in K. Henrie the eights time it is testified that it hath bene holden in times past c. that the diuision and distinction of parish from parish is a thing so meere spirituall that no man may doe it but the Clergie which asseueration though he disallow if the Clergie claime it by any immediate power giuen them from God yet saith he of these and of diuers other things it is no doubt but they haue holden plea in times past rather by a custome and by a sufferance of princes then for that they be meere spirituall or that they of the Clergie had authoritie so to do by any immediate power of the law of God So that he alloweth diuision and distinction of parishes to haue bene of olde of ecclesiasticall conusance though to be deriued from the kings prerogotiue royall And it 1 Prou. constit aeternae sanctio de poenis ibi Lindwood verb. limitibus paro chiarum appeareth by a constitution prouinciall made in a Synode at Lambhith holden vnder Boniface then Archbishop of Canterburie in the yeere of Christ 1260 that the Clergie then vndoubtedly held and so practiced touching limites parochiarum that they meerely belonged to the court ecclesiasticall And Lindwood comming 200 yeeres or thereabout after him in his Commentaries or Glosses therupon maketh no doubt of it but onely quoteth Canon law for it If a Parson grant to 2 M. 8. Edw. 4. fol. 13. me by deed all the tithes of his benefice and yet afterward he sueth me in a Court Christian for the tithes of mine owne landes whereupon I bring mine action of couenant in the Temporall Court neuerthelesse I shall not haue a prohibition because I may plead that matter in barre in the Ecolesiasticall court Danbie and Chok But if a rent reserued vpon a lease of tithes or offerings be 3 44. Ed. 3. 32. sued for in a Spirituall court there lieth a prohibition for this is a Lay rent and so Bracton 4 Lib. 5. ca. 16. holdeth in the place before alleged agreeable to the statute of Articuli Cleri It is holden 5 Regist. fol. 38. that if a Patron hauing an Indenture to be quit of certeine tithes be sued in a Court Christian for those tithes hee shall haue a prohibition But aske whether this precedent of the Register notwithstanding hee may not haue a consultation by the opinion of Danbie and Chok afore recited and the rather in this case then in the former by how much it is more to be presumed to be a Symoniacall compact against him that is Patron For if it be not Symoniacall he may plead this couenant in barre in a Court ecclesiasticall as well as in the former case The competencie of the Court for suite of tithes dependeth also much vpon the consideration of the parties that contend for them For 6 38. Edw. 3. 6. 31. H. 6. 11. 7 in an action of trespasse brought at the Common law the defendant said that the corne whereof the plaintife complaineth was growing in D. which is parcell of M. where he is Parson and thereby he claimeth And because in the pleadings they were both named Parsons the opinion of the Court was that it was out of their iurisdiction In another 7 Hill 7. H. 4. fol. 35. per quosdam libros 102. per alios action of trespasse brought against a Lay man that claimed by lease from another Parson notwithstanding that by M. 44. Ed. 3. it was alleged that the Kings Bench in such case shall haue iurisdiction because it is betweene a Lay man and a Parson and that by Articuli Cleri by the contract transcunt decimae in catalla yet because it was of tithes which they might reconer in Court Christian Gascoigne held that the Temporall court ought to be out of iurisdiction for said he though it had bin so done afore yet it shall not be done so by vs here And of the same opinion was Moile in another like action of trespasse that 1 6. Ed. 4. 3. betweene a Parson and a Fermer of another Parson action for tithes lies in a Spirituall court because the Fermer claimes the tithes as due to himselfe during his terme which none gainsaid But vpon the former of these two last cases Brooke 2 Brooke tit Iurisdict 82. doth thus collect that it thereby appeareth cleerely that vpon contention for tithes betweene a Parson a Lay seruant of another Parson the Spirituall court shall haue iurisdiction For saith he the seruant doth claime to the vse of his Maister and not to his owne vse vpon any Lay contract Yet how this collection may stand together with other iudgements else-where reported to be giuen may mooue some doubt For in 3 31. H. 6. 11. 1. H. 6. 5. an action of trespasse brought by a Parson against the seruant of another Parson the seruant iustified for tithes of his Maister and thereupon demanded iudgement whether that Court would holde plea thereof and it was not allowed because the said defendant was a Lay man Likewise 4 6. Edw. 4. 3. it an action of trespasse brought by a Vicar for corne taken by the seruant of another Parson that claimed them as tithes of his Master and the plaintife claimed them as tithes due to his Vicarage it was adiudged by three that the Court temporall had iurisdiction because the plaintife had none action against the seruant in a Court spirituall at least as is there affirmed Markham seemeth to be of opinion that if any 5 38. H. 6. 19. part of right of tithes do come in debate betweene two Patrons that there the court Ecclesiasticall can not holde plea. And if 6 25. H. 8. vt refert Brooke tit Iurisdict nu 95. the Lord of a Mannour claime tithes of certeine landes in D. to finde a Chapleine or Curate in D. therewith and the Parishioners there claime those tithes likewise for the selfe same end It was deliuered for law that
drawe it to the Common lawe it should seeme by all reason of his owne nature to be a matter belonging to the conusance of a court ecclesiasticall accordingly as alwayes without impeachment it hath bin vsed Yet I finde in the bookes of Common lawe that 3 22. H. 6. 32. an action of the case was mainteinable for not saying diuine seruice albeit it was there confessed to be a spirituall matter What the circumstances and cause thereof was that it was so ruled in that case Quaere It appeareth by the 4 Reg. pag. 56. a. Register that a prohibition being brought vpon a suite in court ecclesiasticall for withholding a Chauntery a consultation was after graunted whereby is affirmed that pro subtractione Cantariae debita punitione pro huiusmodi subtractione the suite belongeth to a court ecclesiasticall and the like therefore must needes be thought of a Chaplaine or Curate not found to say diuine seruice where it ought to be either by composition or by prescription But that parishioners ought to be contributories and may be cited in a cause of contribution towards the reparations of the body of the Church termed Nauis ecclesiae and to the charges of buying and furnishing other vtensiles ornaments and bookes required by lawe to be bought of the common charge doth appeare partly by the Register and partly by Fitzherbert in his noua natura breuium who doeth gather it thence For if saith he a 1 Fitzh no. na br tit Consult fol. 50. Bishop doe cite any of the parishioners of a Church to be contributorie to the reparations of the parish Church or of any Chappell annexed to it if the partie sue a prohibition directed to the Bishop surmising that he is impleaded touching lay fee in court Christian the Bishop shall haue a consultation vpon this matter shewed in the Chancerie on his behalfe And partly also by the Iniunctions which were set out by the Queenes Maiestie in the first yeere of her reigne and are vnder the great seale of England for better record of the matter her highnesse being thereunto authorised by acte of Parliament For in 2 Iniunctions published 1559. these are conteined sundry vtensiles ornaments bookes and other things that by the common cost of euery Parish shal be prouided and from time to time supplied and whether they be wanting or no is to be enquired by ecclesiastical Iudges and the obseruation of the Iniunctions is by them to be vrged against those that shall infringe any of them by processes and censures ecclesiasticall according to the course of that lawe And herein the Iniunctions followe but the Cōmon law For 3 Of the liberties of the Clergie by the lawes of the Realme if a terre-tenant holding land that hath vsually paid for such tenement a pound of waxe or such like vnto the Church doe withhold it the Church-wardens may sue him for it in a court eccles Also 4 Ibidem if a man that withholdeth Church goods doe by his last will enioyne his executours to make deliuerance any of the Parish may sue the executours for them in court ecclesiasticall For proceeding ecclesiastically against refusers to contribute vnto the reparations of the body of the Church there remaineth a iudgement in a consultation 5 Reg. pag. 45. 2. recorded in the Register to this effect viz. vobis significamus quod super reparatione emendatione defectuum corporis ecclesiae iuxta consuetudinem approbatam facienda procedere poteritis ea facere quae ad forum ecclesiasticum noueritis pertinere dicta prohibitione non obstante And by reason of defectes in reparations of a Church money it selfe may lawfully be sued for in a court ecclesiastical as 6 Reg. pag. 48. 2. appeareth by another consultatiō in the Register And so is it also prouided by statute in this behalfe amongst other things viz. 7 Circumspectè agatis 13. Ed. 1. Prelates may punish for leauing Churchyards vnclosed or for that the Church is vncouered or not conuentently decked in which cases none other penance can be enioyned but pecuniarie CHAP. VIII Proofes in generall that sundry crimes and offences are punishable by ecclesiasticall Iurisdiction and namely idolatrie heresie periurie or laesio fidei and howe farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments LAstly doe followe the testimonies of the lawes of the Realme for proofe that many crimes also and offences are punishable by iurisdiction ecclesiasticall and first in generall then in particular for sundry of them The King writ thus to his Iudges 1 Statut. Circumspectè agatis 13. E. 1. vse your selues circumspectly in all matters concerning the Bishop of Norwich his Clergie not punishing them if they holde plea in court Christian of such things as be meerely spirituall that is to wit of penance enioyned for mortall sinne c. In hospitals 2 2. H. 5. ca 1. that be of any others foundation then the Kings it is enacted that Ordinaries shall enquire of the foundation erection and gouernance of them and of all other matters necessary in that behalfe and thereupon make thereof correction and reformation after the lawes of holy Church as to them belongeth In the statute of Citation it is permitted that a man may 3 23. H. 8. ca. 9. be cited out of the Dioeces where he dwelleth when some spirituall offence or cause is committed and done or omitted neglected or foreslowed to be done by some hauing spirituall iurisdiction In a statute of K. Edward the 6. 4 1. Ed. 6. cap. 2. Causes of correction be reckoned as ecclesiasticall which statute though it be repealed for the principall purport there of being touching Ordinaries seales and names not to be vsed any more in their citations and processes yet it bringeth sufficient euidence that sundry matters of correction be of ecclesiasticall iurisdiction And so Bracton testifieth that it was vsed and holden in his time for he saith In 5 Bracton lib. 5. cap. 2. causis spiritualibus vel spiritualitati annexis vt si propeccato vel transgressione fuerit poenitentia iniungenda iudex ecclesiasticus habet cognitionem quia non pertinet ad regem iniungere poenitentias nec ad iudicem Secularem The sundry consultations set downe in the Register do shewe that whē the proceeding is ad correctionem animae for some sinne not punishable in the Temporall Court the conisance is Ecclesiasticall One 1 Regist. 45. a. b. example shall suffice viz. Nolumus cognitionem ecclesiasticam in ijs quae ad forum ecclesiae maximè ad correctionem animae pertinent contra iustitiam impedire But to descend to more particulars and first concerning those which are contrary Pietati in Deum That idolatrie is punishable by Iurisdiction ecclesiasticall appeareth by the statute 2 5. Eliz. cap. 23. De excommunicato capiendo afore alleaged and touching Heresie
or errour in matter of Religion or doctrine besides that Statute others doe also shew how it is inquirable and punishable by Iurisdiction ecclesiasticall For both the Preamble and Statute of Henrie the fourth and the Statute of Henry the fift touching Heresies doe plainely testifie hereof In the former whereof is said 3 2. H. 4. ca. 15. that the Dioecesans of the Realme cannot by their Iurisdiction Spirituall without ayde of the Royall Maiestie sufficiently correct nor restreine the malice of Heretickes because they goe from Dioecesse to Dioecesse and willnot appeare before the Dioecesans but contemne the keyes of the Church and censures of the same c. And in the 4 2. H. 5. ca. 7. later that the conusance of Heresie errours and lollardies belongeth to Iudges of holy Church and not to secular Iudges And likewise by a later 5 25. H. 8. c. 14 Statute then those whereby it was prouided that euery person being presented or indicted of any Heresie or duely accused or detected thereof by two lawfull witnesses at the least to any Ordinaries c. might by them bee proceeded against c. and none otherwise Neither is it materiall though the said three statutes do stand repealed for they shew neuerthelesse touching Heresie what then was and now is still at the Common Lawe which offence to be still punishable at the Common Lawe doeth also more plainely appeare by the statute of Citations being stil in force For there it is prouided that the said statute notwithstanding 6 23. H. 8. c. 9. the Archbishop may cite and summon any person of his prouince for cause of Heresie if the immediate Ordinarie doe consent or doe not his duetie and that the prerogatiue of the Archbishop of Canterburie shall not be preiudiced by that Statute The like is testified of breach of an oathe and of periurie in an ecclesiasticall Court or matter For after that amongst diuers other matters in the statute of 7 Circumspectè agatis 13. Ed. 1. Circumspectè agatis breache of an othe is mentioned it is thus in the ende added In all cases afore rehearsed the Spiritual Iudge shall haue power to take knowledge notwithstanding the kings prohibition And by the aforesaide 1 5. Eliz. ca. 23. Statute De excommunicato capiendo among sundry other crimes and offences Periurie in the Ecclesiasticall Court is reckoned to be of Ecclesiasticall Iurisdiction And so is it by a 2 5. Eliz. cap. 9. prouiso in the statute against periurie made at the same time By bookes of the Common Lawe I finde two cases wherein breach of othe called laesio fidei in an othe voluntarily taken whether priuately or before an Ecclesiasticall Iudge as was in those dayes much vsed is to be determined in the Temporall and not in the Ecclesiasticall Court The one is such as fell out in the case of the vicar of Saltash who had made an Obligation and had bound it by an othe that he would not goe against it before the Popes collector in England who pretended though vniustly some Iurisdiction Ecclesiasticall in himselfe Against which othe when the Uicar was supposed to deale and was therefore conuented before the said Collector there went foorth a prohibition and no consultation could be obteined For said Hankeford a 3 M. 2. H. 4. 15. Concordat 24. H. 1. per Brooke praemunire 16. Doct. stud lib. 2 cap. 24. man shall not be sued before an Ordinarie for periurie but where the principall matter whereupon the periurie grew was a matter Spirituall or touching it and alledged this reason for else if the periurie should be found against him hee should be straight awarded there to performe the othe whereupon the periurie grewe and where of hee is attainted and so though it were to pay debts he should be there compelled to pay them and hereby Lay contracts should be determined there contrary to the Kings royaltie And againe the same man in the 4 T. 11. H. 4. fol. 241. secund vnam impress 88. vel 85. secund aliam same Kings dayes afterward reporteth that a man had sworne to make a feofment of his land and because hee did it not hee was vexed by the partie in the Court Christian as for the periurie and because such suite shall be as a compulsion to performe a thing touching land and inheritance it was adiudged in such maner as if he had sued for the principall in Court Christian. And the effect 5 P. 38. H. 6. 29. of both these cases is rehearsed with the like reason by Fortescue in the Eschequer Chamber and was expressely graunted by some and gainesaide by none Therefore 6 Fitzh tit proh 12. ex Regist. if a man and his wife doe aliene the right of his wife and the wife is sworne that shee will not sue the Cui in vita and yet after the death of her husband brings the Writte and the other sueth her in Court Christian for breache of her othe shee shall haue her prohibition Agreeable to which is that iudgement long agone that 1 M. 4. H. 3. referente Fitzh prohib 15. if a man sue another in Court Christian pro laesione fidei which othe arose vpon a temporall contract or cause a prohibition lieth And 2 Bracton lib. 5. cap. 2. Bracton that writ in that time saith thus In placito quod pertinet ad coronam dignitatem regis etsi fides fuerit apposita in contractu non propter hoc pertinebit cognitio super principali ad iudicium Ecclesiasticum Hereof he allegeth a reason in another place of the same booke 3 Idem lib. 5. cap. 9. Iurisdictionem regiam non mutat fidei interpositio sacramentum praestitum nec spontanea renuntiatio partium To which resolutions accordeth this booke case In an 4 M. 20. Ed. 4. fol. 10. attachment vpon a prohibition where the plaintife was sued in Court Christian pro laesione fidei in that hee had sworne to pay fifteene pounds and did not Brian held that when the faith is made touching a matter Spirituall then the breach there of shal be punished in a Court Spirituall as if one should sweare to pay me his tithes truely or a woman to marry with me but if the faith be made vpon a matter Temporall then the breache of faith shall not be punished there because they will not assoile him if he be conuict till some Temporall duetie be contented and payed A later Treatise of the Common Lawe made in King Henry 8. his time doth touche this 5 A Treatise that the B. of Rome had neuer Supremacie here by the Lawes of the Realme cap. 1. point thus viz. In most cases of periurie the King and his Courtes haue had the punishment and in some cases the Clergie in their Courtes haue had the punishment by the custome of the Realme onely viz. such as haue risen vpon Spirituall causes Another case where the Ecclesiastical Law shall
the Realme the Treatise of the Liberties of the Clergie a man defame or publish one for false an adulterer or vsurer he may be sued in court ecclesiasticall And another Treatise published also in king Henry the 8. time by a common Lawyer saieth thus 3 That the bishop of Rome c. cap. 3. printed by Berthelet In some cases of diffamation and slander the kings courts and in some cases the Clergie haue holden plea thereof Therefore I doe the more maruell the lawe being so plaine at the Note that is set 4 Nota in Reg. pag. 54. b. downe in the Register touching this matter viz. All the Iustices are against a Consultation in a case of diffamation which is spoken indistinctly and indefinitely and therefore more generally perhaps touching any diffamation what so euer then the Iustices meant or then by Statutes and lawe may be warranted It may be that a booke case of Henry the 4. gaue occasion of this mistaking being not throughly weied for at first sight it seemeth to sound as if no diffamation at all were of ecclesiasticall conisance And so 5 Tit. Consultation nu a. alibi euen Brooke in his Abridgement seemeth to take it But the trueth is by that case is onely meant that such diffamation as ariseth vpon a Temporall matter is not of ecclesiasticall conisance which is the first exception of the generall rule set downe in the Statute of Circumspectè agatis where is sayd that diffamation shal be tried in the Spirituall court And that the said case is to be restrained to such diffamation onely will appeare most plamlie to him that considereth the scope of 6 M. 2. H. 4. fol. 15. Hankefords argument The Vicar of Saltashe had giuen an othe before the Popes Collecter in confirmation of an obligation by him made The Deane of Windsor sued the Vicar before the Collecter prolaesione fidei the Vicar purchased a prohibition Hankeford to maintaine this prohibition argueth that the periurie couldnot bee sued in an ecclesiasticall court for that it arose vpon a temporall cause Adding for proofe of his saying that himselfe had a matter vpon the like reason ruled for him and against the Archbishop of Canterbury H. 14. Edw. 3. par attachment sur Prohibition c. de ceo que il suist en court Christian pur diffamation The matter then was not ruled against the Archbishop simply for suing diffamation there but of such a kinde of diffamation For else this would not haue fitted the purpose of Hankefords argument because hee hauing to prooue that laesio fidei arising vpon a Temporall cause might not bee sued in an ecclesiasticall court could not make any colour of that assertion by alleaging of a iudgement that no diffamation at all might bee prosecuted there for that is not the like reason And therefore as that laesio fidei arose on a Temporall cause so did the diffamation there spoken of for which a prohibition did lie without Consultation That diffamatorie words touching a temporall cause may not be sued in court ecclesiasticall we haue also a prohibition 1 Regist. fol. 42. b in the Register without any Consultation granted For whereas one gaue witnesse in an Inquisition made by the king about his exchange in Yorke the partie touched sued the witnesse for diffaming him in a court ecclesiasticall whereupon the witnesse brought a Prohibition by reason the matter was a Temporall cause By Statute likewise it is 2 Ed. 3. c. 11. enacted that a Prohibition shall lie if a man be sued in court ecclesiasticall for diffamation in that hee endited the other I finde also another cause why some diffamation may not be sued in a court Ecclesiasticall and that is when action therefore lieth at the Common lawe As 3 P. 18. Ed. 4. fol. 6. where a man brought Action of trespasse for goods taken away the defendant hereupon sued him in a spirituall Court for diffamation But Hussey the kings Atturney in behalfe of the Plaintife desired a Prohibition because the plea in Court Christian was mooued the suite hanging there and had it graunted Quod nota So if I be robbed and speake of him that robbed mee before others so that hee sueth mee in a spirituall court for diffamation there lieth a Prohibition because I may haue an Action at the Common lawe videlicet mine appeale of the robberie There be also in the booke of 1 Booke of Entries tit Prohibition Entries precedents of Prohibitions granted agaynst those that for diffamation prosecuted such in court ecclesiasticall as sued them in temporall courtes for maime and for forging of euidences So that wee may conclude this point that out of the cases excepted the rule of Circumspecte agatis and Articuli Cleri for diffamation to bee of ecclesiasticall conisance hath place euen by allowance of the common lawe There resteth yet one point belonging to this place fit to be cleared There is alleaged for other purposes by the Note-gatherer a little olde printed Treatise Concerning the power of the Clergie and lawes of the Realme In which the Statute of Circumspectè agatis both here and elsewhere by me alleaged is auouched to bee no Statute but a bare constitution The words 2 Of the power of the Clergie and lawes of the realme cap. 8. bee these Wee neuer sawe any proofe that Circumspectè agatis was a Statute or taken out of the kings answeres and there bee in the sayd treatise diuers things that bee directlie agaynst the lawes of the Realme as it is in this point That Prelates for fornication auouterie and such other may sometime assigne bodilie paine and sometime pecuniarie payne And the lawe is that Prelates shall neuer assigne pecuniarie payne for correction of sinne but onely at the desire of the partie And also it is recited in the sayd Treatise that if the Prelate of any Church or his Aduocate aske of the person a pension that the suite should bee in the Spirituall Courte and the lawe of the Realme is euen to the contrarie And we thinke that if it had bene a Statute that the lawe should neuer haue bene vsed therein so directlie agaynst the Statute as it hath bene vsed And in the nineteenth yeere of King Edward the third in a Writte of Annuitie brought in the Kings Court against the sayd Article of the sayd Treatise it is sayd that the sayd Treatise is no Statute but named so to bee by the Prelates And also the sayde Writte of Annuitie is iudged to bee maintenable in the Kings Courte and that is directlie agaynst the Treatise of Circumspectè agatis wherefore wee thinke it is no Statute The verie like wordes are also vsed I thinke all by one Author in 1 Ibid. cap. 8. another Treatise of constitutions Prouinciall and Legatine Nowe in that to prooue it no Statute he saieth There bee in it diuers things directly against the lawes of the realme seemeth to me a strange reason As
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
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
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
in it selfe and therfore it is a contempt to sue against it In a prohibition we are to consider In what matter it lieth not at what time it lieth not where and when it lieth how it ceaseth or looseth his force For the first it is 2 18. Edw. 3. pro clero ca. 5. prouided by statute and the king there determineth thus that no prohibition shall goe out of the Chancerie but in such case where we haue the Conisance of right ought to haue And therefore Thirning 3 M. 2. H. 4. fol. 15. said when we see the iurisdiction belongeth not to vs wee will graunt a Consultation So that if the matter be meere Ecclesiasticall there lieth no Prohibition Touching the second point it seemeth a Prohibition is not to be granted till by sight of the Libel there appeare cause to grant it For 4 31. H. 6. fol. 14. Henkstone held that by the statute de Regia prohibitione de coniunctim fe offatis in fine a man shall not haue prohibition antequam lis sit contestata in curia spirituali which is till a libell be put in and the partie put to answere it this is to be certified to the Chancellor by the view of the Libell which Fortescue granted But this hath two exceptions one is when the copie of the Libell contrary to the Statute 2. H. 5. is denied for vpon this cause I finde a 1 M. 4. E. 4. fol. 37 prohibition granted that the Ordinarie should surcease till the copie of the Libell according to that statute were deliuered another exceptiō is in some court where a surmise is made that the suite in trueth is for some other matters then are expressed in the Libell for Brooke reporteth that 2 Brooke tit prohib nu 17. a man may haue a prohibition in the kings Bench vpon such a surmise as for example by surmising the suite to be in deede for great timber though it bee demanded in the Libel vnder the name of Sylua caedua but he saith it is otherwise in the Common Pleas. Touching the third point for what causes a Prohibition is granted I find it may be granted either in respect of some of the parties to the sute or in regard of the Iudge before whom it is or for the very matter handled For the first of these three If a 3 T. 12. H. 7. fol. 22. Parson of a Church do sue another Parsons farmour or seruant for right of tithes being not such as can trie the right of tithes Fineux held that a prohibition may be granted Here of see further in the 6. chap. afore Touching the second it may be granted either for the Iudges contempt as in not deliuering copie of the Libell as is afore touched or for that he hath not in deed any iurisdiction for so it was iudged by Hankeford and by the whole Court as it seemeth in the vicar of Saltash his 4 M. 2. H. 4. fol. 15. case being cōuented before the Popes Collector Though a Consultation did otherwise lie the court wil not grant it to one that hath no iurisdiction in right Concerning the third and last poynt of the three if the matter bee Temporall that is such as 5 Stat. de consultat 24. Ed. 1. there lieth redresse for by some Writte in the Chancerie then there lieth a Prohibition as seemeth by Statute to which agreeth the 6 Lib. 2. ca. 24. place before alleaged out of the booke of Doctor Student Yet this hath also two exceptions one is whereas the Spirituall Court holdeth Plea quite to another end For 7 Artic. Cleri 9. Ed. 2. cap. 6. when one the selfe same case is debated before Iudges spiritual and temporal as for beating of a Clerke there the statute is that notwithstanding the spirituall iudgement the kings Court also shall debate it For both these conisances tending the one to the amends the other to the excommunication may stand together as is shewed in the 8. chapter The second exception hereof seemeth to be 1 T. 9. H. 3. per Fitzh Prohib when one Clerke sueth another in the spirituall Court for the goods of his house for there lies no prohibition as when one Abbot sueth another Secondly a prohibitiō lieth where a matter being at first ecclesiasticall brings at last in debate a meere temporall matter with it to be determined Therefore it was holden that so soone 2 38. H. 6. fol. 21 as it appeareth that the right of tithes comes in debate the laie Court shall cease and be out of iurisdiction and the same law is of the spirituall Court for if it may appeare that the right of aduowson may come in debate although it appeared not at first the spirituall Court must surcease quod fuit concessum This may happen as for example when suite is brought at first for right of tithes and it fals out by depositions or otherwise that the tithes 3 Circumspectè agatis 13. Ed. 1. demanded amount to the 4. part of the benefice by yeere in which case it is determined that the temporall Court shall haue conusance euen as if the right of Patronage were in demand principally Thirdlie a prohibition lieth for such a cause 4 Doctor Student Loco d. as albeit there lie none action for it in a temporall Court yet the matter is such as of custome neuer belonged to an ecclesiastical court As if an ecclesiasticall court would hold Plea against an executor vpon a bare contract made by his testator for neither the court may heare it nor yet there lieth action for it in a Temporall court Fourthlie there lieth Prohibition when the suite tendeth to determine and giue execution in a temporall matter as money c. being due otherwise then by the iudgement giuen in the Court ecclesiasticall Therefore if a composition by indenture 5 11. H. 4. fol. 85. be made by an Ordinarie betwixt two ecclesiasticall persons that the one shall haue tithes the other an annuitie with penaltie for default of paiment the suite for this shall bee at the Common lawe but the suite for any thing that riseth vpon a iudgement giuen in the spirituall Court shal be there per Hill For 6 T. 12. H. 7. fol. 22. though amends bee to bee made by a certaine summe of money this is no necessarie cause to grant a prohibition no more then when the suite is for tithes yet the condemnation in money being the valew of them nor when a penance is redeemed by the partie for money which may be sued for in a spirituall court per Butler Because when an offence is done to a man it is 1 Ibidem reason that he haue amends for it but there can be no more proper amends then money because euery thing may be valued by money per Keble Which they speake to prooue that amends in money may be awarded in an ecclesiasticall Court for Diffamation
and so the iudgement then passed vpon this ground among others as 2 Brooke Consultation nu 5. Brooke testifieth And 3 T. 12. H. 7. fol. 22. there is a great diuersitie betwixt a duetie or summe of money or other things at the first demandable and determinable at the Common lawe and such a summe as before sentence giuen in the Spirituall lawe is not due at all For the first there lieth a Prohibition but not for the second for otherwise it would followe that the spirituall lawe might giue a iudgement which it could not put in execution but this were absurd per Reed Tremaile Fiftlie it is sayd that there lies a Prohibition when the partie sued hath an action giuen him at the Common lawe for the originall and principall matter whereupon the suite at the ecclesiasticall lawe did grow The case was thus Aman 4 T. 22. Ed. 4. fol. 20. reported that the Abbot of S. Albanes did detaine his wife in the said Abbots lodging against her will to the intent to make her his harlot the Abbot hereupon brought his action of Diffamation in the Court ecclesiasticall and the husband his prohibition nowe because the husband might haue his action of false imprisonment at the Common lawe agaynst the Abbot Brian held that a Consultation was not to be graunted de hoc quaere A prohibition ceaseth and looseth his force after a 5 Stat. de Consultat 24. Ed. 1. Consultation be once granted This may bee prooued by the Statute De Consultat for the Chanceller or chiefe Iusticer of the king vpon sight of the Libell c. if they can see no redresse by Writ c. shall write to the spiritual iudges c. to proceed notwithstanding the kings prohibition directed to them before But more plainlie after Where 6 50. Ed. 3. ca. 4. a consultation is once duely granted the Iudge may proceed in the cause notwithstanding any other prohibition thereupon to him to be deliuered so the matter in the Libell be not changed The writ of Indicauit is 7 Fitzh Natur. bâ—… tit Prohibition fol. 45. likewise a kind of Prohibition and lieth especially naturally for a suite of tithes which do amount to a fourth part or aboue of the whole benefice It lieth also for the Patrone where his Clerke is impleaded for the aduowson id est the right of Patronage in a spirituall Court the Patrone and Clerke that is sued in the court ecclesiasticall may sue it foorth both against the Ecclesiasticall Iudge and the partie that sueth there But it 1 34. Ed. 1. de coniunctim â—…fat lieth not till the Libell be brought to be viewed into the Chancerie lis 2 Fitzh ibid. etiam contestata and 3 Regist. fol. 47. it lieth onely before sentence be giuen in the Court ecclesiasticall for it is afterward voyd CHAP. XVIII An Analysis or vnfolding of the two speciall statutes touching Praemunire with sundrie questions and doubts about that matter requiring more graue resolution IN the matter of Praemunire which is a question falling often in doubt about execution of Ecclesiasticall iurisdiction wherein as in the matter of prohibition consultation you desired earnestly that I would write vnto you what I thought I cannot in any point satisfie my selfe much lesse you by reason that this matter is enwrapped in ouer many difficult doubts for me to vnfold yet I haue some thing considered of it do trust that I shal be able to point out vnto you certaine general heads whereunto most of the doubts coÌ„monly made or hapning may not vnfitly perhaps be referred that thereby tanquam Thesei filo you may be directed as opportunitie shal serue what how in this behalfe to enquire of the reuerend Iudges or of other great learned and graue men of that profession There be two statutes whereupon it is principally grounded The first is 4 27. Ed. 3. cap. 1. de Prouisor of Prouisors established in the time of king Edward the 3. the complaint and griefe there propounded was that the kings people were drawen out of the Realme to answere vnto things whereof the Conisance pertaineth to the kings Court and that iudgements there giuen were impeached in another court The mischiefes then noted thereupon were the preiudice and disherison of the king and of his crowne and of all the people of the Realme and the vndoing and destruction of the Common lawe of the Realme The remedie there giuen for these mischieues was that if any of what condition soeuer being of the kings liegeance should drawe any out of the realme in plea whereof the Conusance pertaineth to the kings court or of things whereof iudgements be giuen in the kings court or which do sue in another court to defeate or impeach the iudgements giuen in the kings court should haue day c. as is there more largelie by the sanction contriued The other statute is 1 16. R. 〈◊〉 cap. 5. of the time of king Richard the 2. there is shewed and laied foorth that the Conisance of plee of Presentments to Benefices belongeth onely to the kings court by the old right of his crowne and that Archbishops Bishops and other spirituall persons hauing the instituting vnto such Benefices within their iurisdictions be bound and haue made execution of such iudgements by kings commandements without interruption and that also they bee bound of right to make execution of many other of the kings commandements but it is there complained that processes and censures of excommunication vpon certaine Bishops of England were made by the Bishop of Rome because the sayd Bishops haue made execution of such commandements and that hee purposed to translate some Prelats out of the realme some froÌ„ one bishoprike to another within the Realme without the Kings knowledge and without their assent that so should be translated There are assigned also for mischiefes hereupon growing the open disherison of the crowne the destruction of the king of his lawe and realme and that these things are against the kings crowne and regalie that they defeate and destroy the statutes that they tend to make the realme submitted to the Bishop of Rome and the lawes and statutes of it by him to be defeated and destroied at his will that they drawe out of the realme against the kings will the sayd Prelates his liege persons of his councell that be much profitable and necessarie to the king and to all his realme and that these deuises will be are away the treasure of the Realme for remedie whereof it is prouided what shall not bee done viz. that none shall purchase or pursue or doe to bee purchased or pursued where in the Court of Rome or elsewhere what any such translations processes and sentences of excommunications buls instrumeÌ„ts or any other things of what sort which touch the king against him his crowne and his regalie or his realme in what maner touching these as is aforesayde and
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 froÌ„ 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 vpoÌ„ colour that the Queenes maiâ—…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 cohereÌ„ce 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
Maiestie by her Letters Patents to 2 1. El. cap. 1. name such as shall execute all maner of iurisdictions touching or concerning any Spirituall or Ecclesiasticall power is brought 3 8. El. cap. 1. in the Preamble to prooue the sufficient ordinarie authoritie that Bishops haue giuen vnto them by the very Letters Patents directed from her Highnesse for their confirming and consecrating c. It is further alleged that such dealing of an Ordinary toucheth not the King against him his Crowne and Regalie or Realme as not falling into any of the mischiefs whereof that statute was meant to be a remedie And for that all iurisdiction Ecclesiasticall is now both in fact and Law vnited to the Crowne and from thence deriued if it should be sayd that the handling of a matter but in an incompetent court yet established by the Queenes authoritie were in that high degree of offence punishment against her Crowne some thinke it reacheth thus farre as to implie an incompatibilitie betwixt the Crowne and Ecclesiasticall iurisdiction and so by implication to denie her iust Royall prerogatiue ouer all persons and in all causes aswell Ecclesiasticall as Temporall as if these could not both flow from the Crowne nor stand together and meet in one person which is most erroneous to thinke and traiterous to affirme It is likewise alleged that this were to make in effect a Praemunire to lie in euery case where a Prohibition may and alwayes hath serued the turne Whereas a Praemunire seemeth to be as a remedie prouided where a Prohibition could not serue to stay the course of proceeding And that euen before the supremacy was acknowledged to the Crowne no Praemunire vpon this point onely is reported in the bookes of termes and yeeres to haue bene inflicted but onely for pursuing pleas of the conusance of the kings court out of the Realme seeking to defeat iudgements there giuen and procuring Bulles from the court of Rome in derogation of the lawes of the Realme Moreouer it is to this purpose alleged that by the 1 3. 4. Edw. 6. cap. 11. statute authorising two and thirtie persons to set downe lawes Ecclesiasticall though repealed it was prouided as they thinke in affirmance of the law that no man for executing any of them should haue incurred contempt paine forfeiture losse nor haue bene in danger of any action or suite of praemunire Yet if such lawes had bene framed the Iudges ecclesiasticall might by mistaking haue giuen some cause of prohibition Therefore it is gathered by like equitie to be very hard that an Ecclesiasticall Iudge meaning to do his dutie and but to execute Ecclesiasticall iurisdiction ecclesiastically yet by similitude and neere coherence of one matter with another mistaking and so exceeding his authoritie a thing very easie in the Common law wherein sometimes do happen varietie of iudgements amongst the oldest professers of it if before any prohibition brought as it were to forwarne him he should hereupon de drawen at the very first push into a praemunire For by like reason if a court Baron should heare plea of a matter aboue fortie shillings a praemunire in stead of a prohibition might be brought against them Therefore enquire and seeke to enforme your selfe aswell in the premisses as of these questions following what is to be holden for law viz. in holding plea in an Ecclesiasticall court 1. Doubt of a temporall matter whether there be not a difference when it is propounded vnder the very name of a temporall action and when it is propounded vnder the name of an ecclesiast matter And whether the Iudge be in danger before the matter be 2. Doubt opened vnto him or no For I thinke in no Court temporall or ecclesiasticall the Iudges peruse the writs declarations c. when they are first put in And whether it be as great an offence in law but to hold plea 3. Doubt as to giue iudgement and to award execution in an Ecclesiasticall court of a temporall matter Also whether it be like degree of offence for an ecclesiasticall 4. Doubt Iudge to execute a temporall matter by censures ecclesiasticall as it is to execute it or a matter ecclesiasticall by temporall viz. fine imprisonment losse of limme or such like Likewise of what qualitie the offence is to go on in plea in a 5. Doubt Court ecclesiasticall after a meere temporall matter as right of aduowson c. falleth in controuersie principally to be determined Or to holde plea there in a matter worthie of redresse yet neuer of custome handled either in temporall or ecclesiasticall 6. Doubt Court nor whereof any remedie lieth at the Common law Also what offence it is to make lawes temporall or ecclesiasticall without the Princes assent 7. Doubt What it is to deale in temporall causes or courts without 8. Doubt commission and what in ecclesiasticall And lastly of what degree and qualitie of offence is it for a 9. Doubt Court temporall to holde plea of a meere ecclesiasticall cause or to deale in censures ecclesiasticall Or for such a court to holde plea of a temporall matter being 10. Doubt no competent Iudges thereof as for example if the Court of Common pleas or the Eschequer should deale in pleas of the Crowne that be capitall with such like a great number And so thus much for the first part The end of the first part THE SECOND PART OF AN APOLOGIE FOR SVNDRIE PROceedings by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuerslie by them impugned This second part especiallie treateth of the two seuerall wayes of proceeding in causes Criminall viz. by way of Accusation and ex Officio Iudicis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie ¶ THE PREFACE wherein is declared howe the foure opinions put ouer vnto this place doe fall in with the challenges of the Innouatours and a generall distribution made of matters to be handled in the second and thirde Parts THe second part of this treatise containeth our proofes together with answere to the obiections made against the maner of practise of iurisdiction Ecclesiasticall by those who do euen professe themselues to endeuour an innouation in the frame of gouernment of this Church of England But wee meane not in this place to handle all which they obiect in this behalfe but only some such of them as touch the maner and fourme of the proceedings in the exercise thereof For it is knowen they take sundry other exceptions as against the maner of calling to function Ecclesiasticall against the ordination against sundry the callings and the functions themselues against deriuing of the iurisdiction Ecclesiastical from the Prince against the matters handled by that iurisdiction and against the maner of handling them in sundry other respects condemning them as Antichristian and contrary to Gods word All which are of another consideration and not fit here to
In which respect all danger to themselues was the lesse regarded by them Lastly they thought themselues bounde in strict termes of duetie no lesse to persecute and to plague their enemies by all meanes then they were to doe good and to shew kindenesse vnto their friendes Therefore the same 2 Arist. 2. li. Topic. Philosopher makes this to be a good argument and consequence Wee must doe good to our friendes therefore we must hurt and annoy our enemies But Christ refuteth this heathenish opinion in the Gospel Matth. 5. vers 43. 44. Now for proofes of that wee haue saide in this behalfe we are furnished of them out of the grauest writers among the Greekes and Latines Plutarch saith thus 3 Plut. in vita Luculli Publique Iudgements and Accusations haue bene of long time ordeined to th'entent young men might be bredde vp in the studie of Eloquence and that they might thereby be excited to the valoure of a braue minde that like as dogs of the best kinde by naturall instinct doe at first sight fiercely assaile wilde beastes euen so noble youthes should be kindled and inflamed with great courage thus by accusations to set vpon lewde and euill members in a Common weale To like purpose 4 Quintil. li. 1â—… ca. 7. writeth Quintilian Crediti sunt clari Iuuenes obsidem dare Reipub. malorum Ciuium accusationem quia nec odisse improbos nec simultatem prouocare nisi exfiduciâ bonae mentis videbantur Tullie assigneth three seuerall motiues whereby without any discommendation in those times a man might be drawen to become an Accuser of others A man may be well induced saith he 5 Cic. pro 〈◊〉 to be an Accuser either Pietate in a duetifull care by necessitie or els by reason of his yeeres If hee willingly enter into it I doe attribute it to his Pietie If he were commanded then vnto necessitie If in hope to attaine glory and renowne I ascribe it to his youth But vpon any other occasion to doe it doth rather deserue resistance then pardon He also else-where teacheth for what ende we may enter into Accusation of others Of accusing we are not saith he 1 Cic. li. 2. Offic. to make as it were an vsuall trade or profession neither are we at any time to doe it but either in behalfe of the Common weale as the two Luculli did or for our nearest friends and allies being tyrannously and piteously oppressed whom we haue receiued to our patronizing as M. Cato Cn. Domitius and others did or els but once onely as happely in our flourishing youth for attayning honour thereby But it seemeth that the chiefest ende among the rest was for procuring with the people glorie reputation of eloquence vnto theÌ„selues For so Apuleius an auncient writer testifieth where he 2 Apuleius in 2. defens Mag. saith thus He doth not accuse me for to procure vnto himselfe glorie as M. Antonius did Cn. Carbo c. For it was vsuall saith he with yong men of greatest ripenesse in learning for their commendation to vndertake to accuse others thereby to giue an experiment of themselues in Iudiciall Courts to the entent that at some notable Iudgement or arraignement they might become knowen vnto the multitude of Ciâ—…izens Yet this Custome which in olde time was permitted vnto yong beginners to set out thereby the forwardnesse and sharpenesse of their wittes is long agone saith he growne into disuse But what might be the very true causes of the giuing ouer of such Accusations it will not be amisse here also to examine as being very requisite for the perfite vnderstanding of the nature of it and of some other discourses following CHAP. IIII. That the prosecution of crimes by way of Accusation is in most places forbidden or growne into disvse the reasons hereof be partly the dangers to the Accusers and partly the Hatefulnesse of that course Therein is also declared whether all Accusation be vnlawfull and certaine points deliuered to be obserued by all them that will accuse others IT is very assured that how vsual soeuer it was in those populare Common weales yet of very long time it hath not nor is now practised in most ciuil Common weales or kingdomes that I haue read of But in place thereof is come either proceeding of meere Office or els some way mixt partly of that proceeding and partly of prosecutioÌ„ by a Partie who is not properly to be termed an Accuser First in this kingdom how rarely Appeales be brought and prosecuted against any supposed offenders sauing murderers those scarse two in an age euery one but of meane experience knoweth I doe call to mind one Appeale of robberie brought by Benet Smith against Giles Rufford in the beginning of Queene Maries raigne as appeareth by the preamble of a Statute 2 3. Phil. Mariae c. 17. And this kind of prosecution of Crimes though of all those which we haue it resemble neerest the Accusation practised amongst the olde Romanes and others yet in some points it doeth also somewhat differ from it In Flanders all Accusation is altogether inhibited In the kingdome of Naples it is onely permitted 1 Clarus q. 10. vnto those which in that sort will prosecute some iniurie or enormitie done vpon them or theirs In the 2 Decianus Venetian common weale it is wholie forbidden vnto priuate persons to Accuse so that the care of prosecuting offences is wholie left to the publike magistrate In France none but the kings generall Atturneis whereof there be three may take vpon him 3 Gul. Bened. in c. Rainutius V. mortuo nu 200. de testam to be an Accuser and yet those not properly so to bee called And this reason is alleaged by a learned writer in Law of that nation Least too great opportunitie of calumniation and of oppressing the meanest by the power of the mightie should there by be giuen and for retaining of publike tranquillitie in the kingdome It is testified by a graue learned Ciuilian writer 4 Clarus li. 5. §. fin q. 11. that the solemne maner of Accusation mentioned in the Ciuill law of the Romanes is almost generally now growen in disuse The chiefest causes of such disuse thereof as I doe coniecture hath growen by these two wayes The first because it is so full of danger and trouble The second because it is and hath bene so odious and abhorred of most men in all ages The danger and trouble may be considered at the beginning of the fuite in the course of prosecuting it and vpon the euent which may ensue of it At the entrance of the suite vpon the Accusers inscription 5 l. 16. C. de accus inscrip which contained the hainousnesse of the crime and the time of committing it the Accuser was by and by to 6 l. 17. ibidem endure Custodiae similitudinem habitâ tamen dignitatis aestimatione to bee committed to the like safe custodie that
layde downe in the printed Register especially by these wordes of them Recognitiones sacramenta provoluntate sua ipsis inuitis For full answere whereof to auoyde vnnecessarie length and vaine repetition I must referre the Reader ouer vnto the xj and xij Chapters in the first parte of this Apologie He affirmeth also that the practisers of such oathes are for that cause in a Pramunire and therefore gathereth the oathe to be contrary and repugnant to the common lawe I graunt the consequence to be good and sound but how doth hee prooue them to be thereupon in a Praemunire For proofe of this he assumeth that this manner of oathe is contrary to the Queenes regalitie and crowne as if his reasons afore brought had sufficiently euinced so much which wee doe vtterly and resolutely deny vnto him And yet as if he had fully cleared that point he addresseth himselfe to prooue that whereof there was lesse controuersie viz. that what is done by a Bishop or by an Ecclesiasticall Court against the Kings regalitie and crowne hath beene heretofore adiudged to be within the compasse of this worde Alibi contained in the Statute of Praemuuire 16. Ric. 2. For this he alledgeth two books of the common law yet 1 5. Ed. 4. sol 6. Praemunire the first of them doth but speake of an excommunication by a Bishop not of euery dealing whatsoeuer in a matter belonging to the Kings regalitie And what if it had beene twise so adiudged both of them in such corrupt times when as the royall prerogatiue of the Kings of this land to be Supreme Gouernours in all Iurisdiction Ecclesiasticall due to them in right and by Gods Lawe was not de facto vnited to the crowne For the Bishops then did not claime their Iurisdictions Ecclesiasticall next and immediately vnder God from the Crowne as now they doe But seeing this parte of Regall power is nowe no lesse truely and fully vested in the crowne then is the Temporall so as the Lawes allowed for the gouernement Ecclesiasticall are termed by sundry Parliaments The Queenes Ecclesiastical lawes and Lawes of the Realme as well as those which were first and originally made heere And the Bishops are proued to haue their authoritie and Iurisdiction Ecclesiasticall deriued downe vnto them from the Queenes Highnes vnder the great Seale of England as vpon fundrie incident occasions hath beene shewed afore Is it then the like reason still to comprise their Iurisdictions and Courts vnder that word of Alibi as if their Courts and Iurisdictions were not nowe the Queenes nor yet belonging vnto her Regalitie Nay let such as shall so affirme beware they incurre not hereby the danger of implied if not direct denyall of a part of her Highnesse Royall stile and the breach also of their oathes taken for assistance and defence of all Prerogatiues c. vnited or belonging to this Imperiall crowne Yea and though this might be truely verified of ordinarie Courts Ecclesiasticall yet is there no colour at all so to affirme of the Commission Ecclesiasticall exercised vnder the great Seale of England by force of the same Statute that restores the Supremacie Ecclesiasticall to the Crowne I omit here what is touched else where viz. howe by sundry learned it hath bene thought that by Alibi there was encluded or meant nothing els but matters of that quality there specified which were enterprised by and vnder the Papall authoritie though the Pope perhaps resided not then at Rome it selfe Therefore seeing this is not pregnant ynough for him to driue this matter neerer home to his purpose hee sayeth it is against the Kings Regalitie and so a Praemunire for an Ecclesiasticall Court to holde plea of a matter appertaining to the Iudgement of a Common Lawe Court or to deale in any cause not belonging to Ecclesiasticall Iurisdiction The first of these he prooueth by the pardon sued by Barlow Bishop of Bathe and Welles in king Ed. 6. his time by reason hee had depriued the Deane there being a meere donatiue of the Kings If there were but any probable doubt whether thereby hee were fallen into a Praemunire it was wisedome for him to procure a pardon afore hand if he could Alealitis resincertissima yet depriuing of one placed by the King is much more then bare holding of some plea that appertaineth to a temporall Court besides that there was a further matter in it then I last here to open The other allegation of his to like ende taken from a 1 38. Ed. 3. of Prouisours Statute doth make no shew of proofe thereof for it is but thus viz. the King chiefly desireth to susteine his people in tranquilitie and peace and to gouerne according to the Lawes Usages and Franchises of his land as hee is bound by his oathe made at his coronation And are not Ecclesiasticall persons nowe parte of the Queenes people Are not the Liberties and Franchises that bee giuen and confirmed vnto them by the goodnesse of Princes for holding plea in certaine matters the vsages of this Realme Are not the receiued Lawes which lawfully they may practise termed Ecclesiasticall Lawes of this Realme no lesse then temporall be And is not the Prerogatiue royall in and for causes Ecclesiasticall as high and as rightfully setled in the Prince and incident to her Highnesse Crowne and Regalitie as the same is for temporall power and authoritie What cause is there then seeing seu Alibi in the Statute signifieth in true construction anie place whatsoeuer besides Rome that euery holding plea by an Ecclesiasticall Court of a matter wherein it ought not to holde shoulde at this time bee reckoned a thing contrarie to the Queeenes Regalitie more then dealing in an Ecclesiasticall cause shoulde bee in anie temporall Court at Westminster For no Statute of Prouision or Praemunire assigneth these for causes which haue indeede but growen since by collections whiles the Popes vsurpation was continued in this land against which oftentimes the remedie by Prohibition coulde not serue the turne I graunt it is a contempt or great misprision in any but for this a Prohibition and attachment thereupon c. as afore those Statutes they did might sufficiently serue the turne Neuerthelesse all these matters are wholly impertinent to his purpose till he shall haue prooued the particular issue viz. that such oathe as wee treate of is against the Queenes Regalitie c. But if that might be prooued then vpon so generall interpretation of Alibi these oathes would fall into the case of Praemunire by what Court soeuer whether temporall or Ecclesiasticall they should be tendered And that which he vowcheth to the same effect out of Saint Germans booke of Doctor Student receiueth the like answere In the next place I set some of the Treatisors reasons that are made by collection and discourse of reason These collections he maketh partly from examples past and partly at large therefore touching the first of these two he impugneth these oathes and would prooue
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 Pâ—…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
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
Temporall courts doe practise it yet is it contrary to an expresse lawe or certaine policie for else he sayth iust nothing to the purpose and yet he doth no lesse dutifully say it then he prooues it substantially euen out of the Ciuill lawe viz. ius non ex regula sumatur sed ex iure quod est regula fiat I pray yee who euer heard afore that regula here signifieth an example or a Precedent The true vnderstanding therefore of that part of Ciuill lawe is this when many cases runne one way so that for roundnes or better memories sake they haue bene by Iudicious men contriued into a summarie rule then whatsoeuer might be comprised vnder the generalitie of the words of such rule was not straight way to be reckoned for lawe because it is not possible in this great weaknesse of mans wit so to comprehend the lawe being to guide such infinite varietie of mens particular externall actions in a briefe rule as that it shall not haue sundry exceptions and limitations and therefore rarò est quin regula fallat And againe in this place non ex regula ius sumitur c. that is you can not conclude it necessarily to be lawe because you may apply vnto it some rule of lawe but because the lawe runneth accordingly in sundry cases you may therefore conueniently drawe them into a short rule which some doe call maximes in lawe yet abusiuely Thirdly he sayth to this obiection that by better Logicke we might conclude thus viz. because in these two courts answeres bee put in vpon oath therefore the same may be vsed in the Kings Bench and common Pleas which neuerthelesse were an absurde conclusion No Sir it is so farre from better that it is not any Logicke at all so to conclude except you adde more vnto it for if you could truely adde that the Kings Bench and common Pleas had time out of minde vsed that course for answeres to Billes in crimes not capital nor tending to mutilation of limme which may be verified of courts Ecclesiasticall besides the direction of that lawe by which they proceede then with very good Logicke might you conclude thus the same course hath time out of minde bene vsed in all those courts and it is not vniust nor cruell c. in the one and therefore not in the other for the diuersitie of places where they sit nor diuersitie of persons which doe sit as Iudges nor any other like circumstance cannot make a matter iust and equall if in his owne nature and simply it were vniust cruell or barbarous as this is often by him and others challenged to be Fourthly he sayth that in the Starre-chamber there is a bill of complaint formerly exhibited and so be there Articles in an Ecclesiasticall court Fiftly that there is also a knowen accuser Not alwayes an accuser for the office or common Interest of the Prince whose the court is oftentimes is there excited stirred vp by her Maiesties Atturney or Solicitour without any danger of them to be punished or condemned in charges though the matter should not fall out fully against the defendants euen as it is in courtes Ecclesiasticall when they proceede of Office albeit these more often proceede hauing a priuate Prosecutour especially in the court of Commission then they doe ex mero officio Sixtly that in the Starre-chamber they haue a copie of the complaint yet he himselfe doeth limit it thus viz. so it be not ore tenus Well then vpon some good occasion it is none vniustice though the defendant want a copie altogether of the matter obiected but in all ordinarie courts and in the Commission Ecclesiasticall at the furthest when they haue answered the articles they haue copies of them Seuenthly in the Starre-chamber the defendants are allowed counsell in answering the Bill and yet when this is ore tenus he knoweth they cannot haue counsell neither are they there alowed any counsell for answering to Interrogatories nor yet to haue a copy of them til they haue fully answered to them which Interrogatories vpon crimes in that court haue a correspondence vnto articles criminall preferred in Ecclesiasticall courts Lastly sayth he in the Starre-chamber if the Interrogatories be impertinent the defendant without offence may refuse to answere them and so may he refuse also to answere such articles in an Ecclesiasticall court But who shall then iudge whether they be impertinent or not shall the partie himselfe no verily but as it is in the Starre-chamber the court it selfe or else some of them that are skilfull in lawe being thereunto required by the rest Whereupon what great difference there is in any circumstance much lesse in matter of substance betwixt the proceedings in these courtes may easily be considered howsoeuer he doe largely conclude thereupon after his olde maner that there be mightie and great dissimilitudes For in his conclusion hereof he encludeth also other differences more bitterly and not spoken of at all in any his premisses whereupon he inferreth it albeit that such his additions be also very vntrue as that Ecclesiasticall courts giue oathes without all course of iudgement that the oathes there are made suddenly without all discretion vpon vncertaine demaunds that their oathes doe foolishly wander at the doubtfull will of a subtil and slye opposer and that the oathe in Ecclesiasticall courtes constraineth the reuealing of wordes deedes and thoughts though neuer offensiue to any Belike then where others be offended he mindes and will not sticke to allowe vnto those courts the ministring euen of these generall oathes which he so often besides the purpose harpeth vpon Let vs then lay aside these imputations being vtterly vntrue which hee coucheth together in his conclusion made of this point viz. concerning the like course obiected to be vsed in the Starre-chamber what then doe all or any the former differences of proceeding by him noted betwixt the Starre-chamber and courts Ecclesiasticall make to prooue the vnlawfulnesse of ministring an oath in a criminall cause which is the matter onely in issue here betwixt vs yea though they were admitted to bee indeede differences which is shewed to bee farre otherwise For albeit these courts should differ in many other points yet such difference cannot prooue an equitie to bee in the very like oath when it is vsed in the Starre-chamber and an iniquitie to be in it when an Ecclesiasticall court doeth in the like case minister it Truely he might out of those differences as wel conclude thus the Starre-chamber is kept and the oath is ministred at Westminster and they haue in that court but three or foure Atturneys therefore the very like oath ministred in the Consistorie at Paules where there be a dozen Procurators sometimes present is vniust and vnequall This therefore falleth into that point which in the Epistle to the Reader I affirmed to be his sophisticall answering of obiections He also doubteth that the Statute authorizing the attaching of heretikes by Ordinaries made 2.
viz. that therfore they may not giue oths but as the cōmon law doth wil not any way follow thereupon because the Q. prerogatiue royall and common lawes are so farre from restraining or forbidding these oathes that as it hath beene prooued they allow them and the Temporall Courts in many like cases vse not so much as a different course from this which is in speciall controuersie Now if it shall be said which also some very learned men do hold as the Treatisour confesseth that the Statute law made the first of her Maiestie warranteth and alloweth this manner of oathe then to shew this to be as he conceiueth it absurde hee telleth vs of some other points also defended vpon the generall words of that Acte and of the Commission by the saide learned men which seeme vnto him to be also no lesse absurdities then is the ministring an oath in a cause criminall therfore the one no better warranted thereby then the other for to what other purpose then this he should bring them I cānot possibly cōiecture The first fault he findeth with such learned mens sayings is for that they iudge it to be warranted by the Act and by the Cōmission to put men to othes none accusation sute or lawful informatiō presentment or indictment iudicially preceeding or depending He may father vpon such learned men what he please but is it likely that he himself would thus obiect as if he required bils of Information Inditements as it is at the cōmon law to be vsed also in courts ecclesiastical seing both himselfe and the Note-gatherer do tie the Commission to causes only ecclesiastical and they also to be dealt in only ecclesiastically Such learned mēs sayings may wel truly be defended as namely whē either the offence is notorious or is knowen to the Iudges themselues to be dangerous scandalous to be suffered For these two cases be out of all those that hee nameth yea though he should most vniuersally take suite for any prosecution by another and information for any priuate credible suggestion or denunciation made The second errour which he assigneth to be holden by them is for that secret information may be admitted suppresso nomine notificantis and he calleth such informations secret accusations and the men malicious calumniators adding that all good lawes and well gouerned common wealths haue such hidden backbyters for apparant accusers But if all good Lawes and well gouerned common-weales do indeed hold such men for apparant accusers then doth it follow that when such Information is giuen there is no want of an apparant accusation Yet in very deede euery relation made to a Magistrate by such as will not prosecute nor perhaps bee seene in the cause for some good consideration is not by any law nor in any common weale that I know of holden for an accusation for a malitious calumniation or for any secret backbiting nor yet deseruedly by any necessitie is so to bee accounted For besides other countreys which I haue read of such priuate informations haue oftentimes their manifolde good vse euen in this Realme yea and amongs ech degree of Magistrates And if they should be 1 Vide 2. part pag. 85. wholy reiected or neglected might sometime bring an whole subuersion vnto vs all I pray were those that gaue the first information of Babingtons damnable conspiracie to be misliked as secret backbiters or was the examination of these traitors and the proceedings vniust because the names of the intelligence-giuers were to this day suppressed By this example then you may wey consider of sundry the like Howbeit such informations in ordinarie courtes Ecclesiasticall be not holden for sufficient ground of Speciall Enquirie except they be very frequent and the offence scandalous and in Commssion courtes they bee as rarely receiued as in any courts Temporall of this Realme whatsoeuer and then but from very great and credible persons The third fault he findeth with such learnedmens opinions is that the Iudge may professe himselfe to be an Accuser which lawlesse proceeding the Iustice of this land he saith detesteth for that no man may be accuser and witnes or Inditour and a Iurour therefore much lesse may the Iudge be an Accuser For answere whereof first the lawes ciuill and ecclesiasticall holde not the Iudge proceeding of office to be any accuser but that whereupon the Enquiry is grounded to represent the accusation and so there is no need for them to pleade such plea as he here surmiseth Secondly that an accuser may in some case and sort be a witnes c. is 2 Vide 2. part pag. 110. 111. elsewhere declared and so his antecedent false Thirdly his reason foloweth not for why might not a Iudge be an accuser albeit neither an accuser could be a witnesse nor the Inditour a Iurour Fourthly if it were true that the Iustice of this land and the common lawe did not vse something which an Ecclesiasticall court doeth may it thereupon bee inferred that therein is a contrarietie and thereby for such difference onely a detestation of the other course This maner of reasoning is more cōmon with him others in these causes then any way sound substantial For the one court doeth it the other doeth it not be no contraries nor yet propositions in any other degree of opposition in that subiectum propositionis in both is not the same and therefore doe import no more but a diuersity For is this which is the very like any good reason viz. an Ecclesiasticall court readeth dissinitiue sentences de scripto but a Temporall court doeth it not in giuing iudgement therefore there is contrarietie betwixt these courts so the reading de scripto in a court ecclesiastical vtterly vnlawfull Whereof I thought it not amisse once for all to aduertise the Reader because this erroneous argument is so vsuall Lastly if all these were to be graunted vnto the Treatisour euen as he setteth them down yet what would it auaile his cause For admit these collections were absurdly gathered from the generality of the words of the Act Commission would it therefore folow that authority to minister oaths to defendāts in causes criminal could not thence be argued without absurdities being wholly another point why if euery thing cannot well be inferred thereon may therefore nothing at all be Yet vpon these such like speeches rather thē reasons of his elsewhere by sundry occasions touched the Treatisour wisheth the said learned men wiselier to aduise these Cōmissioners ecclesiastical to respect the ends expressed in the statute viz. the pleasure of God increase of vertue conseruation of peace and vnitie of this Realme rather then the ample and large words of the statute and height of their Iurisdiction as if these ends could not possibly concurre with tender of such oaths But whēsoeuer he or any other learned or vnlearned haue sufficiently indeed prooued that these cannot stand together I doubt not but that the
assises and the other booke case of 34. H. 6. both which admit a party to sue in the Court ecclesiasticall do seeme to me only therefore to reiect a partie and to require proceeding ex officio Iudicis because it was presumed that a party would not prosecute to haue the sinne alone punished but rather for satisfaction of the thing promised to him Yet this in truth may be otherwise by the law ecclesiasticall So that vpon all that which hath herein bin last spoken it might probably seeme to some that punishment of periury or breach of faith euen arising vpon a temporall cause should be still by the Common law of ecclesiasticall conisance so that penance for the sinne be but enioyned and no temporall amends required which doubt is to be referred to the reuerend Iudges resolutions That disturbance of diuine seruice is also punishable by iurisdiction ecclesiasticall the statute thereof made in the time 3 1. Mar. cap. 3. of Q. Marie doth prooue for though it do prouide punishment temporall therefore yet it reserueth the iurisdiction that Ordinaries had for punishment thereof by lawes ecclesiasticall Not to frequent or come to diuine seruice at times appointed is declared to be subiect to proceeding and censures ecclesiasticall aswell as to other punishments by the statute 4 1. Eliz. cap. 2. for Vniformitie of Common prayer and so is both that and neglect of the Sacraments by the statute De excommunicato capiendo heeretofore often alleged prooued to be of Ecclesiasticall conusance Long afore that statute vpon a prohibition brought a consultation 1 Reg. pag. 50. a. b. was granted whereby the Ordinaries proceeding ex officio against one that refused to receiue the Communion is allowed and warranted And so doth the litle 2 Goodall of the liberties of the Clergie Treatise of the liberties of the Clergie report this offence to be of Ecclesiasticall conusance Thus much touching offences ecclesiasticall being referred to impietie towards God CHAP. IX That simony vsury defamation or slander beating of a Clerke sacrilege brauling or fighting in Church or Churchyard dilapidations or waste of an Ecclesiasticall liuing and all incontinencie are punishable by Ecclesiasticall authority and how farre AMongst such crimes as be offences against iustice I do place simony first as participating also not a litle with the former sort yet rightly sorted hither because it is as a buying and selling of such things as be not in trueth res mancipi as the olde Romanes spake things lying not in commerce betweene men to be bought and solde This fault the said 3 Ibid. in fine statute De excommunicato capiendo sheweth to be punishable by iurisdiction ecclesiasticall That vsurie is likewise it doth appeare by authoritie of diuers Parliaments The king and his 4 15. E. 3. cap. 5. shall haue the conusance of the vsurers dead and the Ordinaries of holy church shall haue the conusance of vsurers on liue as to them apperteineth to make compulsion by the censures of holy church for the sinne and to make restitution of the vsuries taken against the lawes of holy church By annother later act made against vsurie 5 11. H. 7. cap 8. there are reserued to the spiritnall iurisdiction their lawfull punishments in euery cause of vsury And so is it expresly also mentioned in the aforenamed statute De excommunicato capiendo but this iurisdiction is since somewhat restreined because 6 13 Eliz. cap. 8. vsurie can not now therby be punished nor corrected except it reach aboue the rate of tenne in the hundred by yere By a consultation in the 7 Reg. pag 49. b. Register which was granted in allowance of proceeding against one for his vsury it is thus sayd in this behalfe Quta in articulis Cleri continetur quòd si Praelati imponant alicui poenitentiam pro peccato prohibitioni nostrae non est locus vobis significamus quòd ad correctionem animae praefati S. in hac parte viz. pro vsura dum tamen nihil aliud attentetis quod cedat in laesionem dignitatis nostrae in curia Christianitatis procedere poteritis prohibitione nostra non obstante But this fault sinne of Vsurie is mixti fori that is to say in some respect is of temporall in other regard of eccllesiasticall conisance not only by the statutes of the Realme as you haue heard but also euen by the law ciuill albeit in a diuers sort For in countreyes where that law hath place if it be 1 D D. in l. Titia ff soluto matrimonio called in question whether a contract be vsurarious or not the court ecclesiasticall doth determine this but for to pronounce such a contract void and to execute that sentence belongeth to a temporall court For cause of defamation it is 2 Stat. circumsp agatis 13. Ed. 1. recorded by an olde statute that it is alreadie granted it shall be tried in a Spirituall court And againe In 3 Artic. cleri 9. Ed. 2. cap. 4. defamation prelates shall correct by penance corporall the kings prohibition notwithstanding but if the offender will redeeme the penance with money the prelate may freely receiue the money though the kings prohibition be shewed By the preamble also of the statute for 4 23. H. 8. cap. 9. citations it is plainely argued that defamations belong to the comsance of iurisdiction ecclesiasticall so they be duely and according to law prosecuted Also by the bookes of Common law it appeareth throughout the arguments made in the great case of prohibition in the time of 5 T. 12. H. 7. fol. 22. Henry the seuenth that the suite for defamation belongeth to ecclesiasticall iurisdiction for there aswell by those Sergeants that stood against the consultation as the others and by the Iudges also that granted the consultation the originall cause being defamation it is yeelded that the punishment of slander or defamation is belonging to the Spirituall law Whereas there is a Prouinciall constitution that decreeth a slanderer or defamer of another to be ipso facto excommunicate this is allowed by 6 Reg. pag. 49. a consultation in the Register vnto a court ecclesiasticall And it is there added to this effect viz. Si in causa diffamationis ad poenam canonicam imponendam agatur tunc vlterius licitè facere poteritis quod ad forum ecclesiae noueritis pertinere prohibitione nostra non obstante One that sued 1 Reg. pag. 51. 2. another in a cause of diffamation in court ecclesiasticall was there condemned in expenses to the defendant who was absolued for that the plaintife failed in his proofes The plaintife to hinder the execution of the sentence and to escape without expenses procured a prohibition Yet vpon debating of the matter a Consultation was herein also awarded So that wee see both the Principall and the Accessarie cause to be of ecclesiasticall conisance If saieth 2 Liberties of the Clergie by the lawes of