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
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
If the shiriffe be too forward so that the bishop feareth that he will deliuer the 7 Nou. nat br pag. 63. 64. h. Reg. pag. 66. b. 67. prisoner by coulour of some writte without taking such caution as may be iudged sufficient then may the bishop purchase a writ to the shiriffe that in no case the prisoner be deliuered except in his presence he offer to the bishop cautionem saltem pignoratitiam at the least a gage or reall caution de satiffaciendo c. But if the Shiriffe shall in deede deliuer him out of prison without such sufficient caution which in the 1 Reg. p. 67. a. Nou. nat br pag. 64. b. Register is thus expressed nulla inde facta satisfactione aut praestita cautione prout moris est de parendo mandatis Ecclesiae in forma iuris then must a Writ goe foorth out of the Chancerie for the new attaching of the prisoner conteining also a Venire facias for the Shiriffe that hee doe appeare and answere his contempt For such his dealing is there sayd to be In laesionem libertatis ecclesiae contemptum manifestum regis Thus much touching the first meanes of deliuerance of a person excommunicated out of prison The other meane for deliuerance of such excommunicate person out of prison is when hee hath appealed to a superiour ecclesiasticall Iudge from the sentence of excommunication giuen against him as vniust or as voyde and erroneous For if hee rest in the sentence giuen then must hee needs submit himselfe and offer caution as afore is sayd But if hee holde himselfe to bee vniustlie delt with and therefore will not submit then ought he not to be enlarged out of prison but vpon Appellation made to the superiour Ecclesiasticall Iudge who is the onely competent and able Iudge in that behalfe to determine whether hee haue bene duelie proceeded with and rightfully excommunicated Iuxta canonicas sanctiones or not as 2 Reg. pag. 69. b. 70. a b. Nou. nat br pag. 64. c. appeareth by sundrie of these Writtes in the Register and otherwise The reasons why such one is not to bee detained in prison that hath appealed from the sentence of excommunication are first because vpon the Appellation the Iudge from whom it was made doeth thereby cease to bee his Iudge in that cause Secondlie for 3 Ibid. pag. 68. a. that the nature of an appellation is to put the Appellant into the same state that he was in before the sentence giuen for the doubtfulnesse that is in the meane time of the validitie or inualiditie of it Thirdlie by reason that where the presence of the Iudge to whom the Appellation is made may be had there the partie Appellant is for the time vsuallie absolued and released from the excommunication Lastlie least by his imprisonment hee bee hindered from the effectuall prosecution of his Appeale which may happen prooue to haue bene iust If allegation bee made to the court in his behalfe against whom the Writte de excommunicato capiendo is awarded and gone foorth that he hath appealed and yet it doe not authenticallie so appeare by publike instrument there shewed yea for the most part euen where such publike instrument hath bene shewed a 1 Reg. 69. b. 70. a. b. Nou. nat br pag. 65. b. c. Writte of Scire fasias first goeth foorth to the Shiriffe that he doe 2 Reg. pag. 70. b. warne the Bishop and him who did prosecute the partie imprisoned to come into the court and there to shew cause why the Shiriffe should not surcease from attaching him or deliuer him if he be afore in prison whiles the matter of the Appellation dependeth In the same Writ also for the most part is conteined that the partie if hee bee taken either shall bee brought 3 Reg. pag. 69. 70. Nou. nat br pag. 65. c. vp into the Chancerie vnder sure and safe gard or else shall find sufficient mainpernors that shall vndertake for him bodie for bodie for his personall apparance in court at the day prefixed also that he shall prosecute his Appeale and that hee shall receiue and endure what the court shall thinke good to order him vnto yea 4 Reg. pag. 70. b. that his mainpernours shall safely euen redeliuer him againe to the prison where he was if it shal happen that the court shall so order it Now if the Bishop when the proceeding was of Office or the partie at whose instance it was doe 5 Reg. pag. 70. a. not come vpon the Scire facias serued at the day prefixed or at furthest quarto die pòst vnto which day the custome of the Chancerie is to continue the Processe thē is the partie to be deliuered out of prison so that it doe first appeare by publike instrument that he hath in deed appealed But if the Bishop 6 Reg. pag. 70. b. Nat. br pag. 65. e. and hee that prosecuted either by themselues or by their Attorney doe come at the day prefixed and hee that was imprisoned or his mainepernours doe not come then a Writ for the reattachment of the excommunicated person goeth foorth to imprison him vntill hee satisfie tam de contemptu quà m de iniuria ecclesiae illata And likewise an Attachment for his mainpernours to be brought into the court to satisfie the King the Bishop and him that prosecuted and to receiue what the court shall further consider And this course of Scire facias before the partie be deliuered doth seeme chieflie to be obserued when there may be doubt made that some cause may be alleaged by those who haue interest why hee should not be deliuered If no such doubt may be made and when by very 1 Nou. nat br pag. 64. e. authenticall publike instruments shewed foorth in court his appellation euidently appeareth there sometimes without any Scire facias first awarded a Supersedeas is directed foorth vnto the Shiriffe 2 Ibid. Nota interlin in Reg. pag. 68. b. Neuerthelesse in this case the partie must within the yeere of his Appeale by witnesses or othe prooue his diligence in prosecuting his Appeale with effect For there are precedents of such Writs in the Register where no Scire facias before the Supersedeas went foorth for any thing that there appeareth viz. Quia C. appellauit A. 3 Reg. pag. 68. a. 69. a. b. Nou. nat br pag. 64. e. sententia excommunicationis tanquam ab iniqua prosequitur appellationem cum effectu proutper instrumenta publica apparet nos nolentes quòd praefato C. per praedictum breue nostrum via praecludatur quominus dictae appellationis suae negotium prosequi possit in forma iuris c. maximè cùm appellantium status debet esse integer ideo pendente appellatione supersedeas c. And thus farre of the second means of deliuering an excommunicated person out of prison But mo or other means then these two for
statutes and reports some whereof were made not long after and so from time to time downeward till these late challenges doe make it very manifest It is prouided by Statute that 2 24. Edw. 1. stat de consultatione the Chancellor or chiefe Iusticer of the King vpon sight of the libell whereupon any prohibition is brought if the case cannot be redressed by any Writte out of the Chancerie but that the Spirituall Court ought to determine the matter shall write to the Iudges where the cause was first mooued to proceede the prohibition directed notwithstanding So that wherein soeuer by custome and liberties of Holy Church Iudges Ecclesiasticall were wont to proceede if no Writ lie thereupon in Chancerie they may still holde plea and take conusance Also in the conclusion of the Statute of Articuli 1 Artic. Cleri 9. Ed. 2. ca. 16. Cleri where sundry matters besides Testamentarie and Matrimoniall are mentioned it is thus enacted that the Prelates Clergie and their successours shall vse execute and practise for euermore the Iurisdiction of the Church in the premisses after the tenor of the answeres aforesaid without quarell inquieting or vexation of our heires or any of our Officers whatsoeuer they be Likewise it is by Parliament 2 15. Ed. 3. ca. 6. accorded that the Ministers of holy Church for money taken for redemption of corporall penance nor for proofe and account of Testaments or for trauaile taken about the same nor for solemnitie of marriage nor for other things touching the Iurisdiction of the Church shall not be empeached nor arrested nor driuen to make answere before the Kings Iustices nor other Ministers and thereupon shall haue Writs in the Chancerie when they will demaund Where we finde that other things besides Commutations matters Testamentarie and Matrimoniall doe belong to the Iurisdiction of the Church And to like effect after in the same Kings dayes 3 18. Edw. 3. pro Clero c 6. Commissions to enquire of Iudges of Holy Church whether they made iust Proces or excessiue in causes Testamentarie and others which notoriously pertaine to the conisance of Holy Church were from thencefoorth forbidden Therefore these Statutes being still in force if Iudges Ecclesiasticall shall be found but to deale as they ought in matters appertaining meerely to Iurisdiction Ecclesiasticall how the vexations impeachments driuings to answere and strange enquiries against them vsed in some places may be iustified by Lawe is worthie the consideration of those that are or shall be procurers therein In a statute of King 4 1. Ric. 2. ca 13. Richard the second mention is made that the pursuites for Tithes and for some other causes of right ought and of olde times were wont to pertaine to the Spirituall Court. In a Statute of King Henrie the eight it is 5 24. H. 8. c. 12. in the praeamb testified that both the authorities and Iurisdictions Spirituall and Temporall doe conioyne together in the due administration of Iustice the one to helpe the other And that the Lawes Temporall are for triall of propertie of landes and goods and for the conseruation of the people of this Realme in vnitie and peace without rauin and spoyle And in the bodie of the Statute are particularly named and reckoned for Ecclesiasticall besides causes Testamentarie and Matrimoniall these viz. diuorces right of tythes oblations and obuentions of which it is affirmed that the knowledge of these causes by the goodnesse of Princes of this Realme and by the Lawes and customes of the same appertaineth to the Spirituall Iurisdiction of this Realme And because by that Statute remedie was onely prouided that appellations in those aforesaide cases should not be prosecuted out of the Realme there being also many other causes of Iurisdiction Ecclesiasticall wherein a like remedie was conuenient to be had therefore the next yeere after it was enacted that 1 25. H. 8. c. 19. all maner of appeales of what nature or condition soeuer they bee or what cause or matter soeuer they concerne shall bee made and had by the parties grieued c. after such maner as is limitted for causes of appeales in matters Testamentarie Matrimoniall tythes c. in the said former statute mentioned In a Statute of King 2 1. Ed. 6. c. 2. Edward the 6. besides matters of voluntarie Iurisdiction Ecclesiasticall as collations presentations Institutions inductions letters of orders and dimissories are reckoned in generall as Ecclesiasticall all suites and causes of instance betwixt partie and partie and all causes of correction And in particular all causes of bastardie or bigamie and enquirie De Iure patronatus besides matters of Testament of administration or of accounts vpon them And 3 5. Eliz. c. 23. in one Statute in her Maiesties reigne are reckoned in particular as the more grieuous sort of matters of correction in Ecclesiasticall Courtes heresie refusing to haue a childe baptized or to receiue the holy Communion or to come to diuine seruice errour in matters of religion or doctrine now receiued incontinencie vsurie Simonie periurie in the ecclesiasticall Court and Idolatrie And therefore Iudges Ecclesiasticall may lawfully cite men in certaine other causes besides Testamentarie or Matrimoniall and ought not eonomine tantùm to be vexed vnquieted impeached driuen to answere or arrested CHAP. V. That suites for title of Benefices vpon Voidance or Spoliation likewise that suites for tythes Oblations Mortuaries c. for Pensions Procurations c. are of Ecclesiasticall Iurisdiction is prooued by statutes MAtter 's and suites for the title of Benefices ecclesiastical so they touch not the trial of the patronage do belong also to the knowledge and iurisdiction of a court ecclesiastical by the lawes of the Realme For conisance of voidāce of benefices 1 25. Ed. 3. pro Clero ca. 8. and the discussing thereof de iure doe belong to Iudges of holy Church and not to the Lay Iudge The Common 2 Treatise of constitu Prou. Legatine ca. 9. printed by Tho. Godfrey tempore H. 8 lawe doth mention fiue causes of auoidance of a benefice viz. death resignation depriuation creation and cession But whether it may be deemed void in law vpō any of the last foure meanes of auoidance is by the law ecclesiasticall determinable And by the bookes of the Common lawe 3 M. 22. Edw. 4. fol. 24. whether the Church be full or not full or the Clerke able or not able is triable in an ecclesiasticall Court Townesend For if an 4 Regist. in br orig pag. 55. b. inferiour Ordinary shal differ or refuse to admit or institute a Clerke presented and the Clerke bring his double Querele being of the nature in some sort of an appellatiō from the Archbishops court and the aduerse parte doe bring a prohibition the said Clerke may haue hereupō his consultation so that the court eccles by colour hereof deale not with the right of patronage of the benefice Likewise for spoliation of a
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
writ to the shirifs of London signifiyng that no Clerke though he forfeit his recognizance of statute merchant shal be attached or imprisoned by his body except there bee some cause why hee should not enioy the priuiledge of a Clerke Besides it is no new or strange thing to haue some forme of a writ which is set down in the Register to be vpon better aduise disallowed For I haue credibly heard that it was not long since adiudged that in an action for trespasse done in a warren of Conies a mā might not plead that they were cuniculi sui albeit the Register in that behalfe 1 Reg. fol 102. tit de transgressione frameth the writ so And in the selfe same title whence this forme of prohibition is taken a clause in a prohibition was 2 Reg. fol. 37. reiected by the court For it is said in the margēt Curia noluit concedere istam clausulam in prohibitione but if it were law assured the Iudges would not haue reiected it Fitzherbert who in his booke 3 No. na br fol. 37. G. of Nature of writs was the first that sucked this conceit thence in the selfe same booke touching this rule set downe in the Register viz. notandum est quòd quando rex praesentat vt in iure coronae tunc incurrit ei tempus saieth thus now this rule is not holden for lawe But it will bee said that Fitzherbert himselfe and sundry that follow him since doe hold this point we speake of for lawe This no doubt carieth a great presumption with it that worthily for the worth of the learning iudgements of such men Yet I wil shew that his saying from whom they all since do take it is none vndoubted rule of lawe therefore theirs neither that do gather from him I protest before God I wil not seeke after obiections against his booke but take only such two in stead of mo which I had in my mind because they do touch ecclesiasticall matters He saieth that 1 Fitzh ibid. fol. 269. D. at the Common law an heretike ere he can be condemned must be conuicted of heresie before the Archbishop the whole Clergie of the prouince after abiured thereupon after that of fresh conuicted condemned by the clergie of that prouince this must be in their general councel of conuocation holdeth there that at the Common law a bishop in his dioecesse might not condemne an heretike vntill 2. H. 4. 2 2. H. 4. cap. 15. did giue him authoritie that then he might not be committed to the secular power to be burnt vntil he had once abiured was againe relapsed into that or some other heresie But neither of these points be law so I haue heard the two chiefe Iustices the L. chief Baron some other Iudges the Queens learned councel resolue in a speciall consultation holden about the matter of heresie For albeit the Conuocation may in deed condemn an heretike yet euery B. at the Common law before any statute might at this day may also in his own dioecesse so condemn as the preamble of that very statute makes manifest so by thē all was it then holden for lawe notwithstanding Fitzh opinion there which was fully by thē considered of And albeit it may seeme needlesse yet for further strengthening of these reuerend mens opinions there is a 3 10. H. 7. fol. 17. booke in the very point For it is said that for heresie or any point against the faith the BB. had none other power to bring thē in but to make processe against them by citations vntill the Statute of Heresie 2. H. 4. ergo afore that statute they had power to proceed against heretikes in Ordinarie course of the lawe ecclesiasticall Which assertion the very Note-gatherer also maketh in his title of the lawes of England yet to another purpose howsoeuer in the maine point y t we now treat of he sticke fast to Fitzherbert Likewise 4 Fitzh no. na br fol. 30. F. he saith it appeareth that before the statute made pro clero in the 18. of king Edw. 3. cap. 7. the right of tithes were determinable in the Temporall court of the king and that the lawe was altered at that time herein by that statute Whereas in very trueth there appeareth no such matter other then a grieuance offered in this behalfe to the libertie of the Church which then was determined that it should afterward cease I know that Gooddall writing of the liberties of the Clergie by the lawes of the Realme concurreth in this point with Fitzherbert for thus he writeth It seemeth that before the Statute the right of tithes were determinable in the Temporall courte but that statute hath altered the law So that it may be coniectured the one of them borowed it of the other But this whole doubt whether causes of tithes before that statute of Edw. 3. were determinable in an ecclesiasticall court or no is resolued by a Treatise nipping in trueth wholie at the Clergie and lawes ecclesiasticall and so indifferent an Vmpier as that the Note-gatherer alleageth him for his purposes therefore in this case not to be refused by them who produce him for their witnesse For that 1 Of the power of the Clergie and lawes of the realme cap. 15. Treatise writeth thus viz. Long after that the kings courts of his Bench commō Pleas also all inferior courts were put out of iurisdiction for tithes yet neuerthelesse Writs of Scire facias were commonly sued in the Chancerie for tithes and the defendants were thereupon put to answere wherefore at the petition of the clergie and in consideration of a disme that the clergie grāted to the king it was enacted 18. E. 3. ca. vlt. that such Writs of Scire facias thenceforth should not be granted for tithes And a litle afore 2 Ibidem thus viz. That suites for tithes shal be taken in the Spirituall court is only groūded vpon a fauour that the kings of this realme the whole realme haue in times past borne to the clergie And 3 Ibidem againe in this sort We thinke that the kings courts be put out of iurisdictiō for tithes by a custome of the realme not by the immediate power of the lawe of God Therfore by this mans opinion it is the common law or custome of the land and not that statute which made tithes of conisance ecclesiasticall And in very trueth that tithes were demandable in a court ecclesiastical before this may appeare by statutes afore that time by reports after testifying that the conusance of right of tithes at the Common law is incident to iurisdiction ecclesiastical as in the peculiar 4 Ca. 4 5 6. huius Partis treatise thereof is afore shewed Lastly to shut vp this first point a precedent of a prohibition of all other Writs that can be deuised may with least reason bee said
and the other is forbidden to be done 1 Arg. l. 13. cùm ita ff de rebus dubiis A disiunctiue argueth seueral things that had neede to be expressed by seuerall wordes And by like reason it cannot be meant of witnesses depositions for if the partie conuented shall be content de facto though he be not compellable by lawe as this opinion presupposeth to denie the intention of his aduersarie then no Lay witnesse might in any such other cause ecclesiasticall be vsed either to depose with oathe or without oathe because both be forbidden and so no plea in any such other ecclesiasticall cause coulde be holden which is afore prooued to be otherwise and therefore consequently that is not the meaning of these wordes of the writte which is by 1 Fitzh nou na breu fol. 41. a. Fitzherbert and others that follow him enforced Touching the writ of Attachement thereupon whether as it is set out in the Register it may be holden to haue bin an originall writ at the Common law drawen at first by the grauest aduise in the Realme to be so perfite as that nothing further then is expressed by the words neede therein to be vnderstood to come by the true meaning may partly be gathered by that which followeth First it is said pone talem episcopū not vsing letters for his name as in most of the other writs Next a Bishop who in that he hath a Barony is presumed to haue temporalties whereon to be distreined is here appointed to finde vadios plegios Thirdly it hath laicos homines foeminas as if women were not homines seeing homo is the cōmon gender Fourthly though the prohibition whereupō it is framed forbiddeth both recognitiōs to be made and oathes also to be taken by lay men yet the Attachement wholly omitteth the making of recognitions And yet howe many oathes soeuer should be giuen if none answeres or depositions doe thereupon euer followe which two the opinion that we impugne meaneth by recognition what colour of preiudice doeth or can growe that either Prohibition or Attachement should neede to be awarded Fiftly neither by Ciuill nor Canon lawe neither yet by practice doth any sommons or citation goe out of an ecclesiasticall court in such sort as this Attachement assigneth to be a preiudice vnto the royall dignitie viz. ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis For it were a grieuance giuen euen at the Canon lawe if an Ordinarie should either call any being not a partie or necessarie witnesse in some matter depending or should call witnesses against their will not being first required and hauing their charges offered or if he should do it when there is no cause but 2 Pro voluntate sua for his owne pleasure as this writ implieth Sixtly the proceeding hereby condemned is saide to be done in praeiudicium graue coronae dignitatis nostrae regiae But if no matters be thereby drawen from the kings courtes as in deede none be though you followe the interpretatiō thereof by some enforced then what preiudice commeth to the crowne For though lay men be vrged to depose vpon their othes in all other causes besides that be of Ecclesiasticall conisance what damage or detriment doth the Crowne and dignitie royall thereby susteine more then it doth by their compulsiue deposing with othe in causes Testamentarie and Matrimoniall which this opinion admitteth and alloweth of For if none other causes Ecclesiasticall then those two could conueniently be proceeded in nor any remedy could be giuen by a court Ecclesiastical for want either of the parties answere or witnesses depositions vpon othe yet could not Temporall Courts as the Lawe standeth giue any more remedy in them And so no preiudice to them or to the Crowne that Courtes Ecclesiasticall do proceed as they do to the determination of such causes Nay rather on the other side it were a preiudice to the Crowne that subiects should offend and no good meanes should be found by Law to punish them or to haue a right yet no way for them to come by it Seuenthly that which is there condemned is said to be 1 Consuetudine praed vsi fuerimus semper libettatibus huiusmodi Prohibition in Rastell tit Prohib nu 6. contra consuetudinem regni nostri which doeth strongly argue that vrging parties in other Ecclesiastical causes to put in their answere vpō their othes or witnesses so to testifie is neither by that fourme of Prohibition forbidden nor by the Attachment thereupon ment to be disallowed For first the custome of diuers Courts Temporal requireth parties answeres vpon othe and likewise alloweth Writs of sub poena and other processe in sundry cases to compel witnesses to come in and to testifie their knowledge And againe in Courts Ecclesiastical the custome hath alwayes bene to require othes of parties and witnesses though otherwise vnwilling in maner as is a fore touched Which may appeare both in that the Lawes Ciuill and also Canon which they deale by doe require it and that no bookes of Actes Ecclesiasticall as I am verely perswaded can be shewed whether of olde or later times by which it may not appeare that this course of compelling parties and witnesses to take othes in other causes then those two hath bene vsed so often as occasion hath required And therefore not this but some other maner of proceeding it was which by the Writte of Attachment is meant to be contra consuetudinem regni Lastly this fourme of Attachment mentioneth not so much as excepting of compelling to take othe in causes Testamentarie and Matrimoniall albeit the prohibition haue that exception And therefore for auoyding of iarre betwixt them something must necessarily be vnderstood to haue bene at first in the Writ it selfe whereof this is a minute further then is here expressed And why shall not then the clause de catallis debitis be vnderstood therein aswell as this other seeing so strong probabilities doe leade it and so many absurdities and inconueniences be thereby auoyded which the late enforced interpretation doth necessarily inferre with it selfe Therefore wee may conclude this second point that to debarre Courtes Ecclesiasticall in any cause of that Iurisdiction from exacting parties conuented to put in their answeres vpon their othes or from compelling such witnesses by censures to testifie who being required and their necessary charges being offered doe neuerthelesse refuse to testifie a trueth is not nor yet can be the meaning of that Prohibition or of the Attachment thereupon The last point of the three to be touched is concerning the true meaning of those wordes of the Writte whence these controuersies haue flowed It is therefore to be remembred that it was very vsuall for men in those dayes at making of any contracts whether in matters of Lay fee or others for their more securitie to make faith or othe for performance This they either did priuately for
not so much as iiij s. towards their charges that Iustices of Peace be allowed by Statute at such times as they serue at Sessions of the Peace c whereas Commissioners are employed and serue therein freely at their owne charges with losse of time and intermitting their owne businesse only of dutie and conscience to her Maiestie and to the Common weale So that if it were not in this respect the Commissioners ecclesiasticall both might and would sit still with more ease to themselues and lesse obloquie howbeit by the worst of euery sort of Subiects As for Courts of Ordinaries I knowe some of the greatest of them in England that haue not two matters ex Officio mero prosecuted in them in three yeeres space And for such ordinarie Courts as haue some moe causes of that nature alas what great fee is it for the Iudge ecclesiasticall to haue iij. pence for a Citation or vj. pence for examination of a witnesse or vpon an acte of Absolution or such like to make him desirous in that respect to entertaine the cause seeing hee will hardly be excused with xx pound charges that euery such seuerall matter may put him vnto if an Appellation be brought vpon any errour or mistaking that may happen to be found in his proceedings of Office Besides that the like fees are due to the Iudge no lesse vpon the prosecution of a partie then they be vpon proceeding by office and therefore none inconuenience heereupon more in the one course which this opinion alloweth then there is in the other Yea may some say all prooue not offenders that be so called and that are thereby put vnto trouble and charges It is true yet meet to be called if the law be obserued in this point that there must be afore a sufficient ground of inducement thereto Neither doe all those prooue to be offenders that are prosecuted by a partie or by an Accuser and thereby be put to no lesse charges and trouble euen when besides the malice of the preferrer there was no colourable ground of the accusation The like may be also truely said of many others who be called euen before temporall Iudges and Iustices of the peace either by warrant writte or otherwise Yet is this no cause heereupon wholly to disallow these conuentings And there is no more reason to finde fault with the fees due vnto the Iudges ecclesiasticall in regard that euery one which happeneth to be conuented prooueth not guiltie of the matter imputed to him then there ought to be with the fees that are due to Iudges in temporall Courts for iudiciall or originall writtes c. because many of such suites be commenced as often falleth out in the end without good matter on the Plaintifs or Informers behalfe Thus much in answere to the obiections made against the reasonablenesse and conueniencie of proceeding by Office CHAP. XI That the lawes of the Realme do vse Enquiries and proceedings ex officio and that they allow it in Courts Ecclesiasticall with answere to some obiections that are made to the contrary IN the next place I am to shew that dealing by way of enquirie or enquest ex officio without suite of a partie called by the Common law Office del Court are both mentioned and practised by the lawes of the Realme In 1 Mag. Charta cap. 26. Magna Charta mention is made of a writ of Inquisition of life and member In an olde statute of king Edward the first a seuerance is made betwixt the suite of the King from the suite of a partie and the King is thereby as it were bound to sue and to lend his office for prosecution of the misdemeanours For it is 1 3. Ed. 1. cap. 13. thus prouided that if any take away a woman by force c. the King at his suite that will sue shall doe common right within fortie dayes and if none commence his suite within fortie dayes the King shall sue Which suite being in his owne Court and before himselfe must needs be of office For where there is Inquisitio Enquirie there the King is partie as by another statute of the same 2 Star de Inquis capiend 33. Ed. 1. Kings dayes appeareth De Inquisitionibus coram Iusticiarijs quibuscunque capiendis in quibus D. Rex est pars qualitercunque concordatum est c. In a statute of 3 18. Edw. 3. pro Clero c. 2. king Edward the third arreignment at the suite of the King which is ex officio as a distinct matter from that which is at the suite of a partie is spoken of and so 4 42. Ed. 3. c. 4. are also Commissions of inquisition afterward Furthermore in K. 5 8. H. 6. c. 16. Henrie the sixt his time en quest or inquisition of office is mentioned and in sundrie 6 11 H. 7. c. 25. 1. H. 8 c. 12. statutes both after and afore which are needlesse to be repeated For as I take the matter euery enditement is an Inquisition which if it be at the prosecution of a partie it is as officium promotum but if it be by the Iudges for the Queene in respect of the interest of the Common-wealth then is it officium merum or nobile as afore is declared This maner of dealing in sundrie cases is so vsuall at the Common law that there be whole titles made in the Abridgements touching Inquisition and office del Court viz. of enquiries and matters done by the Iudges vpon their discretions without the instance of any partie In reports at the Common law we finde it said 7 M. 20. H. 6. 38. that Iudges ex officio did charge an enquest to make enquirie of their owne collusion supposed to be committed among them 8 34. Edw. 3. 3. Further One of a Iurie that departed from his fellowes after that he was sworne was examined at his returne by the Iudges ex officio whether he had since spoken with the defendant or no Likewise it is said 9 11. H. 4. 17. that the Court ex officio ought to award an Assise to enquire whether the disseisin were with force by reason of the kings fine In the booke of 10 Assis. lib. 16. pag. 4. Assises The Court ex officio sent a man to prison because they found he had not made fine And a great number of particular articles are there set down wherupon 11 Assis. lib. 27. pag. 138. enquest or inquisition ex officio in the Kings bench is to be made We finde of elder time by 1 Bracton li. 4. c. 8. fol. 302. Bracton where the appellor that prosecuteth makes default or dieth there the king may proceed ex officio And againe there Let the king ex officio suo for his peace proceed to inquisitiō for the suspicion that he hath of the appeale Moreouer where a Parson and Vicar were both willing enough to sue before the Temporall Iudges yet 2 M. 22.
and matters Temporall betweene which and causes ecclesiasticall as is noted afore there was made both in those times and also long after a plaine seuerance and distinction in the groundes of their seuerall authorities and iurisdictions so that the one was called the Kings Court and the other a Spirituall or Court Christian. and therefore as nothing was in that Charter anewe graunted but confirmed onely vnto the Church of England so is it to be iudged on all handes that the king would not make lawes there to restraine the courses of proceeding ecclesiasticall because it could not be without disanulling and reuoking of that which immediately afore euen by the same Acte hee had first of all confirmed vnto them Secondly a Bailife onely is there mentioned which should put or not put a man to his oath which cannot well and properlie be vnderstood of any but of some officer temporall Thirdly these wordes are no way appliable to the practise of courtes ecclesiasticall for albeit vnder the name of Bailife an Ordinarie might be vnderstood which were very harsh insomuch as a Bailife is but a Reeue of a Baile or Libertie yet is it not holden by any lawe ecclesiasticall that vpon an Ordinaries owne bare saying whether he haue witnesses after to bee produced or not a man may bee put to an oath for there must bee some better matter of inducement to open way to the enquirie whereupon the oath ensueth Lastly this statute will rather hurt then helpe forward these mens purposes if an Ordinarie might here be vnderstood by a Baylife because if I conceiue the matter aright by this is implyed that so an Ordinarie be able to bring in good witnesses he may then vpon his bare saying put a man to his open lawe or to an oath But hereupon would followe that Criminall prosecution without any accuser or other partie and so ex officio mero yea and without any presentment too may bee lawfully admitted and which is most to our present purpose in handling that an oath in such case by him may bee imposed in any matter aswell Criminall as other For heere is no distinction made of any one kinde of cause from another and they which alledge it doe bring it to impugne proceeding by the defendants oath against crimes The allegation of the Treatisour out of the statute of Marlebridge or Marleborough falleth next in time to bee considered the whole wordes 1 Marlebr 52. H. 3. cap. 22. whereof are these none from hencefoorth may distreyne his freeholders to answere for their free holdes nor for any thing touching their freeholde without the kings writ nor shall cause his freeholders to sweare against their willes for no man may doe that without the kings commaundement But the Treatisour leaueth out the first part which sheweth howe the second that he alledgeth is to be vnderstoode And because like the lapwing with her diuerting c◅ies hee would leade vs further and further from the matter herein chiefly to be respected or for that he thought wee would make some aduantage hereof he saith that the kings commaundement importeth here thus much viz. according to the law Iustice of this Realme and for this quoteth a booke thus 2. R. 3. The booke he meaneth as I gesse is in 2 Mich. 2. R. 3. sol 11. these words wheresoeuer a man for offence misprision or otherwise is to make fine or redemption all the Iustices agreed that those Iustices before whome he was committed c. should take suretie and pledges for the fine c. and after by their discretion they should assesse the fine and not the king in his chamber nor otherwise before him but by his Iustices and so is the kings will in statute to be taken viz. by his Iustices and his lawe which to say in effect is all one c. Where you see that the booke speaking of Iustices viz. the men before whome the conuiction was made he referreth this to the Iustice of the land But though it be neither off nor on to our Principall purpose neuerthelesse it seemeth this booke is not truely applied by him vnto this statute and that by the kings commaundement in the statute the kings writ is to be vnderstood as in the first part of that statute is plainely expressed rather then any determination or Act of his Iustices of the Bench. Touching the statute it selfe the wordes doe euidently shew that neither oath in cause criminall nor any Court Ecclesiasticall is thereby meant there is onely forbidden that lords of manors shall not inforce their Freeholders that holde lande of them whether it be by distresse or oathes to answere in their Courtes baron touching the estates they haue in their landes because neither the lordes owne courts in such a case be competent or indifferent for feare of vnlawfull euiction nor the goodnesse or weakenesse of the states men holde are meete to be fished out by their owne oathes in satisfaction of their lordes greedinesse to haue their lands except the king by his writ shall so especially command And yet hereby wee see the statute leaueth it at large at the kings pleasure to warrant euen this course and therefore this is not simply vniust but inconuenient onely for lords so to vrge their tenants He alledgeth further against these oathes a statute as hee saith made 43. Ed. 3. ca. 9. that no man be put to answere without presentment before Iustice or matter of Record or by due proces or by writ originall after the ancient lawes of this land But I doe finde no such statute either in that yeere or in any other like number of Chapter of that king and that Parliament which he voucheth hath not so many Chapters But admitting it what is this to proue an vnlawfulnesse of oathes ministred vnto defendants in matters criminall whereof there is no shadowe of mention it rather speaketh of matters that ought to goe afore proceedings criminall at the common lawe and what makes this against Courts Ecclesiasticall woulde hee haue them to proceede in the selfe same maner that common lawe courts doe hee might aswell exact of them Indictments and afterward tryals by Iuries of twelue and yet Ecclesiasticall courts put none to answere but vpon moe then one of these or at least that which is equiualent at that lawe vnto these at the common lawe For first courts Ecclesiastical haue great vse of presentments and complaints or denunciations before the partie be called to answere as is shewed in the second part Then the defendant is not called neither but by due processe as by letters missiue or by attachment in Courtes of Commission by Primarie citation in Ordinarie Courtes which haue a correspondence vnto originall writs at the cōmon law So that of foure matters wherof some one or other of them is thereby required three of them be vsed in Ecclesiasticall proceedings against crymes His next proofe of this kinde cōming to be discussed is out of the 1 25.