An apologie for sundrie proceedings by iurisdiction ecclesiasticall, of late times by some chalenged, and also diuersly by them impugned By which apologie (in their seuerall due places) all the reasons and allegations set downe as well in a treatise, as in certaine notes (that goe from hand to hand) both against proceeding ex officio, and against oaths ministred to parties in causes criminall; are also examined and answered: vpon that occasion lately reuiewed, and much enlarged aboue the first priuate proiect, and now published, being diuided into three partes: the first part whereof chieflie sheweth what matters be incident to ecclesiasticall conisance; and so allowed by statutes and common law: the second treateth (for the most part) of the two wayes of proceeding in causes criminal ... the third concerneth oaths in generall ... Whereunto ... I haue presumed to adioine that right excellent and sound determination (concerning oaths) which was made by M. Lancelot Androvves ....

CHAP. XIII. That iudgement of heresie still remaineth (at the Common law) in Iudges ecclesiasticall: and that the Prouiso touching heresie, in the Statute, 1. Eliz. cap. 1. is onely spoken of ecclesiastical Com∣missioners thereby authorized.

THe two other opinions remaining, that respect matters, handled by Ecclesiasticall iurisdiction (and come next to be treated of) for the affini∣tie of them, and because they both depend vp∣on one and the selfe same grounds, I purpose (brieflie) to handle together: viz. whether the iudgement of Heresie nowe lieth rather in the Common lawe, then

Ecclesiasticall: and whether nothing may at this day be adiudged he∣resie, but according to the statute primo of her Maiesties 1 1.1 reigne: For in the true vnderstanding of that statute, the decision of these two opinions will wholie rest. It seemeth by the latter, the author of them thinketh, that before the statute, 2. H. 4. Ordinaries at the Common law might not by their iurisdiction Ecclesiastical, pro∣ceed to the condemnation of an heretike: and therefore (seeing all former statutes made against heretikes, stand now repealed) he gathereth; that no heretike may be delt with, but according to the said statute, made in the first yeere of her Maiesties reigne.

This opinion (it may be) he gathered out 2 1.2 of Fitzherbert his Noua natura breuium: yet I thinke rather, it was his owne con∣ceit, both because he doeth not alleage Fitzherbert for it; and for that Fitzh. leaueth (euen at the Common lawe) authoritie in the whole Conuocation of a Prouince, to condemne an heretike, al∣beit he there also hold, that (at the Common lawe before such sta∣tute) a Bishop in his dioecesse, could not so condemne. But I haue shewed in the twelfth chapter hereof, by very great and good opinion, the law in this point to be mistaken. For proofe that it is so, I also touched it something in the 8. chapter.

For in the Preamble of the statute it is thus conteined: The 3 1.3 dioecessans of the realme then complained, that they could not by their iurisdiction spirituall (without aide of the roiall Maiestie) what? not at all? Nay, but not sufficiently correct, nor restraine the malice of heretikes: Why? because they wanted authoritie at all to deale with them? No, but because the heretikes goe from dioecesse to dioe∣cesse, and will not appeare before the dioecessans, but contemne the keies of the Church, and censures of the same. So that, had it not bene for their fugitiuenesse, their refusing to appeare, and contempt of the keies; the ordinarie dioecessans had Iurisdiction spiritual, to correct and restraine them. In which respect, and for better assistance of their former iurisdiction, it was then first prouided, that here∣tikes should be attached and imprisoned. Other authorities out of Statutes, I there (in the eight Chapter) alleaged also to this purpose.

The wordes of the Statute made primo of her 4 1.4 Maiestie (from which this second opinion is gathered) doe make the matter cleere; that nothing thereby is meant, but that Commissioners for

causes ecclesiasticall, according to that Act (termed by the com∣mon people the high Commission) shal not haue authoritie to adiudge any matter or cause to be heresie, but onely such, as hath bene so ad∣iudged, by the authoritie of the Canonicall Scriptures, or by the first foure generall Councels, or by any other generall Councell; wherein the same was declared Heresie, by the expresse and playne wordes of the Canonicall Scriptures. So that the iurisdiction of Ordinaries, and of the Conuocation, still remaineth as it did afore at the Common lawe.

But I muse greatly what colour or pretence he could haue, to gather the first of these two opinions out of the aforesayd words: for doeth he or can he thinke, that the ordering, deter∣mining or adiudging of a matter to be Heresie by the Commissio∣ners ecclesiasticall (there spoken of) is a iudgement at, or accor∣ding to the course of the Common lawe, as the Common law is ta∣ken in vsuall signification? Or shall it be imagined, that where∣soeuer any matter by occasion comes in to bee mentioned in a statute (as for 1 1.5 example, naming matters of faith, mentioning er∣rors in doctrine, or the doctrine of the Sacraments) that the de∣termination of all such points, and what and how many speciall matters, are conteined vnder those generall heads whatsoeuer; shall (by reason of such incident mentioning of them in a statute) be put ouer to the iudgement of a Iurie, or to the determination of Temporall Iudges? What other may conceiue, I know not; for my part, I must take it (till I be better informed) to be so simple a conceit, as is worthie rather to be dismissed with laughter, then to be confuted with further reason.

Notes

• 1 1.1

  1. Eliz. cap. 1.
• 2 1.2

  Fitzh. in noua nat. br. fol. 269. D
• 3 1.3

  2. H. 4. cap. 15.
• 4 1.4

  1. Eliz. cap. 1.
• 1 1.5

  13. Eliz. c. 12.