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. II. The particular distribution of all other causes to be prooued to be of Ecclesiasticall conusance, besides Testamentarie or Matrimonial, with a discourse of Bishops certificats against persons excommu∣nicate, being a speciall point of their voluntarie Iurisdiction, where there is no partie that prosecuteth.

THe next opinion, viz. That by the lawes of this Realme none Ordinary may cite any whomsoeuer, but in causes Testamentarie or Matrimoniall (though it draw deepe) yet it hath not so large a reach, nor draweth so great a compasse as the former. For this leaueth some ordinarie Iuris∣diction Ecclesiasticall in these two cases; where the other (vpon the matter) sweepeth away all. But if this be simply true, then the former must needes be false. For if (by Lawe) an Ordinarie, without more a doe, may cite men in these two cases, then may some Canon, &c. (by Lawe) be put in vre, without any further Royall assent to execute the same.

But if it shall be prooued true, that (by the Law of the land) in some causes besides Testamentarie or Matrimoniall, an Ordinarie may cite: Then this opinion, that in no causes besides Testamentary or Matrimoniall, an Ordinarie may cite (being the contradictorie thereof) must needes (according to rule of reason) be prooued false. For it will not be denied by any, but in what cause soeuer an Ordinarie may lawfully deale, in that (if neede be) he may vse citation. All matters done by Bishops (who onely be immediate Ordinaries vnder her Maiestie) either belong to their order and degree, as ordeining of Ministers or Deacons, cōfirmation of chil∣dren, dedication of Churches or Churchyards, &c; or to their Iu∣risdiction. Their Iurisdiction is of two sorts: the first is voluntarie, that is, when those whom they deale with, doe not stand against it: (and such for the most part, are Institutions, probate of Wils, and committing of administrations, visitations, Certificats of Bi∣shops into the Q. Courts, ordeining of Reall compositions in mat∣ters ecclesiasticall, &c.)

But something must here be said touching certificats of Bishops; because none so fit a place hereafter doth fal out, for this matter. A little Treatise set out in the time of King Henry the eight, and

printed by Berthelet, cum priuilegio, (prouing that by the lawes of this Realme the B. of Rome had not, ne ought euer to haue had any supremacie here) doeth 1 1.1 thus write of these certificates. If (saith he) Excommunication, Bastardy, Bigamie, Deposition, or De∣raignement of a religious person, or Diuorce, be certified by a Bishop of this Realme, it is admitted in the Kings Courtes; but the Popes cer∣tificate is not admitted. And as certificates of Bishops be in these cases admitted at the common lawe, so haue sundry statutes since, authorised their Certificates duely made into the Queenes Courtes, in certaine other cases.

Neuerthelesse, I finde two cases in the said Treatise, where the Certificate of a mans excommunication from a Bishop, shall not disable the partie excommunicated from his action: as regularly excommunication doth when it is duely certified.

For first, 2 1.2 if a Bishop be a partie to a suite, and doe excommunicate his aduersarie; such excommunication (though it be certified) doeth not disable his aduersary in his action.

Secondly, 3 1.3 where an action of debt was brought by an executour, and an excommunication vnder a Bishops seale was pleaded against such executour; this was adiudged no good plea: because the execu∣tour was not to recouer any thing to his owne vse: and for this there is alledged 14. and 21. Hen. 6. But if this were the onely ground and reason of such iudgement, then where this reason is not found true in facte: as it may often happen, if the goodes and chattels be great, the debtes and legacies small, and where the executour hath clausulam de residuis by the will, viz. all the rem∣nant of the goodes and chattels bequeathed to him: it woulde seeme to me (vnder correction) that in such a different case, the lawe also should be otherwise: because much commeth to the executours owne vse in particular.

This certificate of excōmunication by Bishops of all the others is most in vse: and would be of more vse, to the great cōmoditie of her Maiestie (especially vpon the statute de excom. capiendo) and to the terrour of sundry malefactors: were it not for the chargeablenes of that course vnto Ordinaries (whom the tenth man that is certified, doeth not satisfie againe) and for the ma∣nifolde abuses about the execution of that writte, committed by vnder officers: and were it not that, iura & libertates, the lawes or

rightes, and liberties of holy Church, graunted and confirmed by the great Charter, are not so inuiolably in these dayes mainteined; as was meant by 1 1.4 those actes of Parliament, which doe exacte othes for obseruation and defence of them.

It is a libertie peculiar to this Church of England, aboue all the Realmes in Christendome, that I reade of: that if a man stande wilfully fourtie dayes together excommunicate, and be accordingly 2 1.5 certified by the Bishop into the Chauncery, that then he is to be committed to prison, by vertue of a writ directed to the Sherife. Notwithstanding, that in one precedent (in the Re∣gister) of this writ, it 3 1.6 is said; quòd huiusmodi breue nostrum, de gra∣tia nostra procedat.

For a note in the same booke vpon the same worde (vsed in another writte) doth teache vs; that such clause is but vsed, pro ho∣nore regio, etiamsiad id de iure teneatur. And it appeareth by sun∣drie olde precedents of writtes there, that the graunting of this writ, is by lawe required: as where in a writ de excommunicato capiendo 4 1.7 it is said: quòd potestas regia sacrosanctae ecclesiae in suis querelis deesse non debet. And in sundry other writtes of that kinde, it is 5 1.8 affirmed to bee, secundum consuetudinem An∣gliae, which is the Common lawe of this Realme. And there∣fore in other precedents of the same writte, the King saith 6 1.9 thus: Nolumus quod libertas ecclesiastica, per nos vel ministros nostros quoscumque aliqualiter violetur. And againe, 7 1.10 Iura & libertates ec∣clesiasticas illaesa volentes in omnibus obseruari.

In these Certificates, the Bishops, and others, hauing in some cases authoritie to certifie (as the Chauncellour of Oxford, the Custos Spiritualitatis of a vacant See, and the Bishops Officiall, and vicar generall, ipso in remotis agente) that they make none errour; must remember to obserue these three things. First, that it be 8 1.11 expressed therein, that the partie against whom they doe certifie, is excommunicated maiori excommunicatione: because for the lesser excommunication (as happely for companying with an excommunicate person) a man shal not be imprisoned. Secondly, that 9 1.12 it be certified, that he was by name and particu∣larly so excommunicated; and not in grosse, in companie of a multitude (as was often done in elder times) or indefinitely and in generalitie, as when the BB. excommunicated all, whosoeuer

should violate any part of the great charter. For that excommu∣nication (saith Fitzherbert in that place) must growe vpon a spe∣ciall suite against a man either ex officio, or by a partie, whereupon a Significauit may be grounded.

Thirdly, 1 1.13 (if any inferiour officer vnder the Bishop or his Archdeacon, did excommunicate the partie certified) yet must the Bishops Certificate runne, that it was done nostra autoritate ordinaria.

But that the expressing in the certificate of a particular cause of the excommunication, is at the Common lawe (of necessitie) re∣quired; I cannot gather out of any place of the Register, or of Fitzherberts Natura Breuium.

It is true, that when the proceeding is vpon any of the tenne crimes mentioned 2 1.14 in the statute, made for that purpose; the particular originall cause must be expressed in the certi∣ficate.

Neuerthelesse, when the proceeding is vpon any other crime ef ecclesiastical conisance, orin matters testamentary, matrimonial, or for tithes &c. whether moued of office, or at the instance of the partie; therethe Common lawe (as it was afore) is reteined.

Nowe I finde precedents of these writtes in the Register, wherein no particular originall cause, but onely generall be ex∣pressed; which, as in other certificates of Bishops as touching ba∣stardy, &c. the Court beleeueth, without further trauerse or exa∣mination. namely in sundry precedents of this kinde of writtes, is onely conteyned, 3 1.15 that the partie was excōmunicated propter suam manifestam contumaciam: but what was the cause origi∣nall of his conuenting, out of which such contumacie grewe, is not at all declared; and yet the certificates were allowed to be good in lawe.

Likewise in another precedent of the same writ, though some more particularitie be founde; yet is it left so generally, as the certaine and speciall cause cannot thereby be knowen vnto the Court, to which it is directed. For it is 4 1.16 certified, that a partie was excommunicated, propter suam manifestam contumaciam, in non parendo certis mandatis licitis sibi factis: but what those mandata were, is not touched.

And as these Certificates doe only in generality mention the

parties contumacies, and disobediences: so is there also a prece∣dent there, of crimes themselues certified but in a generality, whereupon a writ of excommunica•…•…o capiendo, was neuerthelesse awarded. For it is 1 1.17 testified that a Clerke excommunicated prop∣ter manifestas offensas suas, was appointed to be attached, and thereupon imprisoned.

Notwithstanding this be a speciall right and libertie of this Church of England; yet is not this writte de excommunicato ca∣piendo alwayes to goe foorth, and vpon euery certificate whatso∣euer of a Bishop, or of other thereunto authorised; albeit the cer∣tificate be contriued into neuer so due forme. For if he 2 1.18 that did excommunicate, be himselfe for some supposed contempt to be attached at the suite of the partie certified: then shall the exe∣cution of the attaching of the partie excommunicated be respi∣ted, till the other plea of the Ordinaries attaching be determi∣ned: least otherwise the parties suite against the Ordinarie should be hindered by his imprisonment. Yet it is 3 1.19 to be vnderstoode, that a Bishop shall haue Significauit vpon his owne certificat, tou∣ching an excommunication for contumacie, incurred euen in his predecessours time.

But albeit the certificate be duely made, and the writte de ex∣communicato capiendo be thereupon awarded foorth: yet if there be loose or corrupt execution thereof by the Sherife, or by his vnder officers; both the endeuour of the Bishop, and care of the Queene to haue contemptuous persons iusticed, are wholy fru∣strated. Though this carelesnesse in times past were not so com∣mon as nowe it is; yet it 4 1.20 seemeth by the Aliâs and Pluriès in the Register, that Sherifes, and their vnder officers were then al∣so slacke ynough, to perfourme this part of their duetie: howbeit it is testified by the Kings writ in this behalfe, 5 1.21 that the vndue execution of it, redoundeth in contemptum manifestum regis, epis∣copi damnum non modicum & grauamen, ac iuris Ecclesiae suaelaesio∣nem manifestam. In which regard, such a negligent Sherife is (by lawe) vpon a writ to be called into the Court, whence the writ issued; there to answere such his contempt.

The effect of the writ de excommunicato capiendo, (when he hath his due course and execution) is double. First, vpon the ve∣ry certificate of the Bishop, the partie excommunicated, is to be

debarred action in all the Queenes Courts. Yet if vpon an 1 1.22 ap∣pellation by him made from the sentence of excommunication, he be deliuered out of prison; or haue a Supersedeas thereupon; then is he not to be barred from action in respect of such certificate, or of the sentence of excommunication. Secondly, the 2 1.23 partie is to be imprisoned by his body. Per corpus suum secundum consue∣tudinem Angliae, iusticies, donec &c. This iusticing by body ac∣cording to the custome of England, is committing to prison; and that 3 1.24 without baile or mainprise. Nither 4 1.25 doth the writ de ho∣mine replegiando, lie in this case. Now a man being thus in pri∣son, I finde in law but two meanes of his deliuery. The first is, by submitting himselfe to the bishop. This submission may be in two sorts: either by present satisfaction, at or immediately vpon his deliuery; or by caution put in, that he will hereafter performe it. Quia vicecomes (saith a 5 1.26 writ in the Register) nulla inde facta satisfactione, aut praestita cautione prout moris est, de parendo man∣datis ecclesiae in forma iuris, quosdam deliberauit; idcirco &c. where we also see, to what end the caution (by the party excommuni∣cate) must be put in, agreeably to sundry 6 1.27 other precedents of this writ, viz. de parendo mandatis ecclesiae, in forma iuris. Which is to performe that which the bishop shall reasonably and accor∣ding to law, enioyne vnto him. For it was thought most incon∣uenient, that he who had resisted the course of law, & contuma∣ciously persisted in excommunication, vntill his imprisonment; should now be trusted without good security first giuen, afore his deliuery. This clause of those writs in the Register, Fitzher∣bert 7 1.28 doth translate thus into French, viz. de estoier & obeier les ordinances & rules de seint esglise.

Vnder the clause in formaiuris, is that other part of submission conteined: which is prescribed by the law ecclesiasticall in this case of submission and of giuing caution; viz. de parendo iuri. This appeareth by that writ in the 8 1.29 Register, where a clerke im∣prisoned vpon the significauit offered caution to his ordinary (the bishop of Elie) de parendo iuri; but yet could not thereupon alone be deliuered, for that he expresly refused, to satisfie tam de iniuria ecclesiae illata, quàm de contemptu, as the writ required. This forme de contemptu & iniuria, is not only here, but in 9 1.30 other precedents also of this writ obserued, as they be recorded in the Register.

And in another writ by words more generall, yet tending to the same purpose, viz. 1 1.31 ad satisfaciendum Deo & sanctae ecclesiae suffi∣cientem exposuit cautionem. To satisfie God, viz. for his continued contempt of the keies & power of his church: and to satisfie the church, aswell for the euill example and scandall giuen, as for the needlesse charges that he had put the officers vnto, to bring him to conformity. For it seemeth when a caution was put in onely thus: de parendo iuri & mandatis ecclesiae, in forma iuris: that by reason of the generall conceiuing thereof, sundry tooke occasion to wrangle & quarrell with that, which was after enioyned vnto them, as if it were not conteined within the words or meaning of their caution: and therfore that clause that such should satisfie for their contempt, & for the iniury to the church, was often vsed in the kings writs of that nature, to auoid all cauill, and for more full ex∣planation. In such caution, two things besides are required: the one, that it be idonea & sufficiens, as appeareth by all the writs in this behalfe, that be set downe in the Register: the other, that it be offered by the party, who is to submit himselfe. For it is 2 1.32 said in one of those writs thus, viz. Idem W. cautionem saltem pigno∣ratitiam (iuxta intentionem mandati nostri praedicti) de satisfacien∣do de huiusmodi contemptu & iniuria, antequam à prisona praedicta deliberetur, offerre debet & tenetur. For a caution is not imposed by the Ordinarie, but is accepted by him vpon the parties sub∣mission and offer therof; when he seeketh to be absolued from the censure, and deliuered out of prison.

But what may be reckoned to be idonea & sufficiens cautio, I finde not determined or colligible out of the bookes of Com∣mon law. One kinde thereof which is pignoratitia, a caution reall or by gage, is mentioned in the next allegation afore. And in that it is there said, the party should put in cautionem saltem pig∣noratitiam, we are thereby giuen to vnderstand, that the courts of Common law doe take knowledge of some other kindes of cautions besides this, and accounteth of this, as being not of the most grieuous sort of cautions vnto the partie.

The word Cautio is a terme taken out of the Ciuill law; for which (at the Common law) they 3 1.33 vse securitie or obligation &c. therefore what be the seuerall kindes of cautions, must be taken out of that learning.

Cautions in Ciuill law be of three sorts: one is Fideiussoria, as when a man bindeth himselfe with sureties to performe some∣what, another is Pignoratitia or realis Cautio, as when a man ga∣geth his plate, or morgageth his land for performance, the last is luratoria cautio, as when the party which is to performe any thing, taketh a corporall oath to do it. By the Ciuill law, a Iudge is not bound to accept of this last, vnlesse the partie will also sweare, that he is not able to put in either of the other. And therefore where Ordinaries doe promiscuously at absolutions accept this Iuratorie caution offered de parendo iuri, & stando mandatis ecelesiae, in forma iuris; they doe more then they sim∣ply need to doe; and rather gratifie then doe any grieuance to the partie, as some haue thought.

For seeing this hath bin the most vsuall, nay (for a long time) almost the only caution giuen at absolutions; that they may law∣fully still accept it, is made manifest by statute, viz. sauing and reseruing to allarchbishops and bishops, and all others hauing authori∣tie to certifie any person excommunicated, like authoritie to accept and receiue the submission and satisfaction of the said person so ex∣communicated, in maner and forme heretofore vsed, and him to ab∣solue and release. &c. 5. Eliz. cap. 23. yet is not any of them so simple, but he will thinke either of the other two (if they be of∣fered) to be better security then the parties bare oath; a matter so little regarded of most men in these latter times of this bad world. For satius est incumbere rei quàm personae: Reall securi∣tie is more safe then personall.

Now when such caution is offered as the Ordinarie doth ac∣cept of, for the parties performance of that which shall be enioy∣ned vnto him: shall he needs be forced to send for a writ of de∣liuerance vnto the Chancery? No verely. For the bishop himselfe, if he will, may enioyne the shiriffe to deliuer him. Accedas (saith 1 1.34 the writ vnto the shiriffe) in propria persona ad episcopum, & ex parte nostra moneas & efficaciter indicas, vt accepta cautione praedicta, ipsum mandet deliberari à prisona. And againe, a writ to a bishop runneth thus: Mandamus quòd accepta cautione praedicta, ipsum deliberari mandetis, alioquin quòd nostri est in hac parte exequemur. And therefore Fitzherbert 2 1.35 sayeth plaine∣lie, that the bishop, or hee at whose certificate the partie was

taken, may command the shiriffe to deliuer him out of prison.

But what if the Ordinarie shall refuse to admit of the caution offered, and thereupon to release him, albeit the caution be good and sufficient: shall the partie remaine still in prison? Nay, the writte de cautione admittenda, is prouided for remedie in such a case. This not deliuerance, after sufficient caution offered, may happen either vpon negligence & delay in the bishops vnder-of∣ficers; or vpon his owne wilfulnesse. Vpon such vnder-officers delay; as when the bishop willeth them to absolue the party ex∣communicated: in which case 1 1.36 the shiriffe is not to make deliue∣rance, till it appeare vnto him, that the party is (indeed) absol∣ued. Neither is 2 1.37 such officiall or archdeacon bound to certifie the shiriffe, that they haue receiued letters from the bishop to ab∣solue him: but the shiriffe ought to go or sen to them, to know the truth, and accordingly to make deliuerance. If it happen vpon the bishops owne wilfulnesse; in such case I finde two de∣grees obserued in proceeding: for first 3 1.38 there goeth a writte to the bishop himselfe, that he admit of the caution, and also that he command the partie imprisoned to be deliuered; or else the king will doe that which apperteineth to him, in like case to be done.

But if this will not serue the turne, then secondly may the party haue a 4 1.39 writ directed to the shiriffe: that in his owne per∣son he repaire to the bishop, and on the Queenes behalfe monish him, and effectually require him; that taking first such caution, he command the prisoners deliuerance: and that if he shall re∣fuse in the shiriffes presence to doe it, then the shiriffe himselfe (taking 5 1.40 such sufficient caution of him) doe deliuer him. And if the shiriffe also shall appeare to be negligent or wilfull; the 6 1.41 partie may haue the like writte to the Coroners. But they must likewise first (before they deliuer him) take sufficient caution of him, viz. de parendo mandatis ecclesiae in forma iuris: & de satis∣faciendo tam de contemptu, quàm de iniuria ecclesiae illata.

If the shiriffe be too forward, so that the bishop feareth that he will deliuer the 7 1.42 prisoner by coulour of some writte, without ta∣king such caution, as may be iudged sufficient; then may the bi∣shop 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 sa∣tiffaciendo, &c.

But if the Shiriffe shall in deede deliuer him out of prison without such sufficient caution (which in the 1 1.43 Register is thus ex∣pressed; 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, & con∣temptum 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 gi∣uen 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 Appella∣tion made to the superiour Ecclesiasticall Iudge, who is the onely competent and able Iudge (in that behalfe) to deter∣mine; whether hee haue bene duelie proceeded with, and right∣fully excommunicated, Iuxta canonicas sanctiones, or not: as 2 1.44 ap∣peareth by sundrie of these Writtes in the Register, and other∣wise.

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 1.45 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 va∣liditie or inualiditie of it. Thirdlie, by reason that where the pre∣sence 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 impri∣sonment 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 authenti∣callie so appeare by publike instrument there shewed; yea (for the most part) euen where such publike instrument hath bene shewed: a 1 1.46 Writte of Scire fasias first goeth foorth to the Shi∣riffe, that he doe 2 1.47 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 1.48 vp into the Chancerie, vnder sure and safe gard, or else shall find sufficient mainpernors that shall vndertake for him bo∣die for bodie, for his personall apparance in court at the day pre∣fixed; 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 1.49 that his mainpernours shall safely euen redeli∣uer 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 1.50 not come vpon the Scire fa∣cias serued at the day prefixed, or at furthest quarto die pòst, (vnto which day the custome of the Chancerie is to continue the Pro∣cesse) 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 1.51 and hee that prosecuted, either by them∣selues 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 per∣son goeth foorth to imprison him; vntill hee satisfie tam de con∣temptu, quàm de iniuria ecclesiae illata. And likewise an Attach∣ment for his mainpernours, to be brought into the court to sa∣tisfie the King, the Bishop, and him that prosecuted; and to re∣ceiue 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 1.52 authenti∣call publike instruments (shewed foorth in court) his appellation e∣uidently appeareth; there sometimes without any Scire facias first awarded, a Supersedeas is directed foorth vnto the Shiriffe. 2 1.53 Neuerthelesse (in this case) the partie must within the yeere of his Appeale, by witnesses or othe; prooue his diligence in prose∣cuting 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 1.54 sententia excom∣municationis tanquam ab iniqua, & prosequitur appellationem cum effectu, proutper instrumenta publica apparet: nos nolentes quòd prae∣fato 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 my part) I haue not hitherto found mentio∣ned in any Statute, or any report of the Common lawe; though I haue carefully sought for them.

Now I will resume againe (after this long, but I trust not vn∣necessarie digression) the second member of ecclesiasticall Iuris∣diction; called contentiosa Iurisdictio. That is, when such matters be handled; against which some partie standeth, or is delt with thereby against his will. If it be contentiosae iurisdictionis, whether it be for a right there demandable and determinable, or else for a crime there punishable, (which are the heads of all litigious Iuris∣diction ecclesiasticall) it cannot be intended, that parsrea, is contra quem res agitur, the partie to be delt against, will gratis without processe appeare, & frō time to time attend: except it happē som∣times by collusion w^t the plaintife. And in this respect (amōgst o∣thers) it is said, that iudiciū redditur in inuitū: & Reus is called pars fugiens, the partie presumed to come thither against his will, and willing inough to be gone if he might. Therfore if any cause, be∣sides those two, shall be proued such, as the Ordinarie may law∣fully deale in; it wil folow, that in such a matter also he may vse a

citation to call him. Dato enim principali, necessaria adiacentia ve∣niunt in consequentiam.

But that an Ordinarie may deale in sundrie other causes be∣sides these two, it shall appeare both by Statutes (which are the iudgements of the whole Realme) and by the iudgements and vncontrolled opinions reported in the bookes of the Common lawe.

In discourse whereof will appeare not onely 1 1.55 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that the matter is so, but also 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the reason why, and in what maner and sort it is determinable or punishable there: being three principall questions to be opened, for the perfect knowledge of anything that is to be handled: and seruing in these controuer∣sies, to some further vse and profite, which may lighten you in the length of the disputation.

Pursuing therefore the two former heads of that part of Ec∣clesiasticall Iurisdiction: first the matters by litigious Iurisdiction demandable and determinable, are either such as are yeelded to be meere Ecclesiasticall (by the authors of this opinion) viz. Testa∣mentarie and Matrimoniall: to the first whereof (for affinitie sake) I adde last Wils, (such as may not be termed Testaments,) Codicils, Legacies, Administrations, & Sequestrations of the deads goods, (commonly called letters ad colligendum:) and to the later, I ioyne diuorces, iactitation of Matrimonie, questions of legitimation or bastardie, for restitution of a mans wife taken a∣way, that a man shall receiue his wife againe, and suites for goods or chattels promised with a woman in mariage: or else they are such others (claimed to bee Ecclesiasticall) as remaine still (by this opinion) in controuersie. All which (I thinke) may bee comprehended vnder the generall terme of reliqua iura Eccle∣siastica.

And these are either some duetie arising at first vpon exer∣cise of voluntarie Iurisdiction, and yet by deniall made litigious: & such be reall compositions sought by some partie to be disanul∣led, procurations, pensions, Synodals, Pentecostals, indemnities, fees for probates, &c. or growing due only vpō exercise of litigious Iurisdi∣ction: & these are either due to the Iudge himselfe (as fees of citati∣ons, fees of sentences, &c.) or are due to others attendants in the Court, (as fees of Aduocats, Proctors, Registers, Apparitors, &c.)

or else they are such as are due to Ministers in the Church, that haue no title, as wages for a Curate, or a Clerke, or vnto a Minister, that hath title. And this right of a Minister that hath title, tou∣cheth either something incident to him, as to name the Parish Clerke: or concerneth the whole title and interest in and to his benefice, or else toucheth but his maintenance and liuing. His in∣terest and title tendeth either to attaine it when he pretendeth iust title to it, or to reteine it being in his possession, or else to reco∣uer it being bereaued or spoiled of it.

The dueties which concerne Ministers maintenance, are tithes of all kindes, Oblations, Obuentions, Pensions, Mortuaries, Churchyard or place of buriall, &c. Or lastly, it is something, that is due to a whole Parish, as to haue a Chapleine found, or diuine seruice, or Sacraments administred amongst them, or something due to their Church to be deliuered, or for a Parishioner to be contributo∣rie with the rest to reparations of the Church, to seates, to bels, to the buying of bookes, of Vtensiles, or of other ornaments, and requisites in the Church.

Concerning crimes & offences claimed to be punishable by Iu∣risdiction Ecclesiasticall: they may al (I thinke) be reduced to some of the three heads, touched by S. Paul: viz. as being contrary ei∣ther to Pietie vnto God, to Iustice towards our neighbour, or Sobrietie towards our selues. That which is against God; the Latinists cal by the name of Impietas; that which is against a mās neighbour, they terme Facinus; and that which a man designeth against himselfe, Flagitium. albeit the two last be often confounded, without any curious obseruation of such proprietie of wordes.

Against Pietie to God-wardes, are these: blsasphemie, swearing, idolatrie, heresie, errour in faith, schisme, apostacie from Christianitie, not frequenting publike prayer, neglect of the Sacraments, periurie in an Ecclesiasticall Court or matter, disturbance of diuine seruice, vto∣lating and prophaning the Sabboth, and such like. Contrary to Iu∣stice are these: Simonie, vsurie, diffamation, subornation of periurie in a Court Ecclesiasticall: violence to a Minister, sacrilege, dilapida∣tions, not building of a Church enioyned by atestatour; not fencing the Church-yard; not repairing a Church or Chauncell, or not keeping of it in comely sort; or when a Church-warden refuseth to yeelde an ac∣count of the Church stocke, & goodes; & violating of a sequestration

made for tithes not paide; hindering to gather or carry tithes; money promised for redeeming corporall penance, and detained; contempt to the ecclesiasticall iurisdiction, fighting or brawling in Church or Churchyard, and such like. And against Sobrietie are these: all Incontinencie (not made death by the lawe of the Realme) whe∣ther committed with one which is of his kindred in blood, for∣bidden either in generalitie, or by some of the degrees Leuitical, or with one of his alliance so forbidden, both which are called incest: or committed by such whereof the one is married, which is adulterie: or where the one of them hath bin maried, termed by some stuprum: or where both be single, termed simplex forni∣catio: or whether it be marying of two wines, or being maried vnto two husbandes at once, which is called Polygamie: Sollicitation of a womans chastitte, drunkennesse, filthie speeche, and such others.

There be also certaine punishments and censures (besides these) which I thinke will be yeelded to be matters of ecclesiasti∣call iurisdiction, as enioyning of penance; suspension from entrance into the Church, or from the Lordes supper, or from execution of a ministers office, or from his benefice; sequestration of a bene∣fice; interdiction of some place, from hauing seruice or sacra∣ments there administred; interdiction of some certaine acte, (as not to marry, whiles a suite matrimoniall dependeth) and excom∣munication, the lesse and the greater.

I doe also finde in writers of the Ciuil and Ecclesiasticall lawes, certeine offences affirmed to be of ecclesiasticall conusance: which may seeme (euen in this Realme) to be such, albeit I doe not ex∣presly reade them to be so accounted, in statutes or reportes of the Common lawes. As for violation or perturbation of liberties ec∣clesiasticall: for admitting of excommunicated persons, vnto * 1.56 action or testimonie in a temporall Court: forging of letters and matters ecclesiasticall, as testimonials for ordeining &c. or vsing and putting them in practice wittingly: burying excommuni∣cate persons, or notorious heretikes in the vsuall places of good Christians: abbettours and voluntary company keepers with persons excom∣municate: and diggers vp of corpses buried.

Notes

• 1 1.1

  Cap. 1.
• 2 1.2

  Ibidem ca 4.
• 3 1.3

  Ibidem.
• 1 1.4

  15. Ed. 3. ca. 3.
• 2 1.5

  Nota interlin. pag. Regist. 65. b.
• 3 1.6

  Regist. in breu original. pag. 68. a.
• 4 1.7

  Reg. in br. orig. pag. 65.
• 5 1.8

  Ibid. & pag. 66. a. & b. 68. a. & 69. b. & 65. b.
• 6 1.9

  Ibid. pag. 69. a.
• 7 1.10

  Ibidem.
• 8 1.11

  Noua nat. breu. pag. 64. f.
• 9 1.12

  Ibidem.
• 1 1.13

  Reg. in bre. orig. pag 69. b. & notainterlin. pag. 65. b.
• 2 1.14

  5. Eliz. ca. 23.
• 3 1.15

  Reg. in br. orig. pag. 65. a. 66. a. 69. a.
• 4 1.16

  Ibid. pag. 65. b.
• 1 1.17

  Ibid. pag. 66. b.
• 2 1.18

  Reg. in breu. orig. pag. 67. b. & in breu. Iudic. pag. 39. 71. b. & 72. 〈◊〉〈◊〉s.
• 3 1.19

  Nou. nat. br. pag. 64. & 65. f.
• 4 1.20

  Reg. in br. orig. pag. 65. a.
• 5 1.21

  Ibid. pag. 65. b.
• 1 1.22

  Nou. nat. br. pag. 65. d.
• 2 1.23

  Reg. in br orig. pag. 65. a. & b.
• 3 1.24

  Westm. 13. Ed. 1. cap. 15. 5. Eliz. cap 23.
• 4 1.25

  Nou. nat. br. pag. 66. e.
• 5 1.26

  Regi. in br orig. pag. 67. a.
• 6 1.27

  Ibid. pag. 65. b bis 66. b. & 67. a
• 7 1.28

  Nou. nat. br. pag. 63. c.
• 8 1.29

  Reg in br. orig. pag. 66. b. & 67. a
• 9 1.30

  Reg. in br. orig. pag. 65. a. b. 68. a.
• 1 1.31

  Ibidem 65. b.
• 2 1.32

  Ibid. pag. 66. b. & 67. a. Nou. nat. br. pag. 63. c.
• 3 1.33

  Nou. nat. br. pag. 63. c.
• 1 1.34

  Reg. in br. orig. pag. 66. a. & nou. nat. br. pag. 63. c. d.
• 2 1.35

  Nou. nat. br. pag. 63. g.
• 1 1.36

  Reg. in br. orig. pag. 65. b. Nou. nat. breu. pag. 63. f.
• 2 1.37

  Ibidem.
• 3 1.38

  Reg. pag. 66. a. Nou. nat. breu. pag. 63. d.
• 4 1.39

  Reg. in br. orig. pag. 66. a. Nou. nat. breu. pag. 63. d.
• 5 1.40

  Reg. pag. 67. a.
• 6 1.41

  Reg. 66. a.
• 7 1.42

  Nou. nat. br. pag. 63. & 64. h. Reg. pag. 66. b. & 67.
• 1 1.43

  Reg. p. 67. a. Nou. nat. br. pag. 64. b.
• 2 1.44

  Reg. pag. 69. b. & 70. a & b. Nou. nat. br. pag. 64. c.
• 3 1.45

  Ibid. pag. 68. a.
• 1 1.46

  Reg. 69. b. 70. a. & b. Nou. nat. br. pag. 65. b. c.
• 2 1.47

  Reg. pag. 70. b.
• 3 1.48

  Reg. pag. 69. & 70. Nou. nat. br. pag. 65. c.
• 4 1.49

  Reg. pag. 70. b.
• 5 1.50

  Reg. pag. 70. a.
• 6 1.51

  Reg. pag. 70. b. Nat. br. pag. 65. e.
• 1 1.52

  Nou. nat. br. pag. 64. e.
• 2 1.53

  Ibid. & Nota interlin. in Reg. pag. 68. b.
• 3 1.54

  Reg. pag. 68. a. & 69. a. & b. Nou. nat. br. pag. 64. e.
• 1 1.55

  Aristot. in lib. poste:. Analyt.
• * 1.56

  Quaere of these two first named: & see for the first Lyndwood e. oecernae. de poenis. verbo regis An∣gliae.