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. III. That matters in the former Chapter adioyned to testamentarie and matrimoniall causes (though properly they be not of testament or matrimonie) are of ecclesiasticall conusance, and howe farre.

TOuching such as I haue adioyned for necere∣nesse of qualitie, vnto matters testamentarie: First a mans last will, (whereby legacies be gi∣uen, but none is therein made executour) can∣not be called a testament. The like is to be said of a codicill: and a legacie though it be giuen by testament, yet may it also be giuen by such a last will, and can (in neither case) be properly called a matter testamentary, be∣cause it is but Delibatio haereditatis, or successio particularis. And by suite for a legacie, neither the testament commeth directly and principally to be proued, nor yet to be impugned. But much lesse may administrations and letters ad colligendum, be properly accounted matters testamentarie, because they are committed, when a man dieth intestate, or per viam intestati. Besides that, the course of graunting administrations was not at the common law, but came in by statute, long after this writte of Prohibition * 1.1 (whence this controuersie springeth) is pretended to haue beene framed.

As for diuorce (which by like reason I ioyned with matters of matrimonie) because it tendeth to the ouerthrowe and dissolu∣tion of marriage; it cannot be termed (properly) a matter of ma∣trimonie: (though no man can be diuorced but he which hath beene married) no more then blindnesse may be called seeing, for that nothing can truely and properly be said to be blind, but such as either once did see, or by nature of the thing, should haue eyes: Priuatio enins praesupponit habitum. This appeareth also by * 1.2 a statute; where diuorce is contrediuided and reckoned as a di∣uers suite from a cause of matrimonie.

Likewise iactitation of marriage, because it tendeth (by the in∣tention of him that bringeth the suite) to be cleered of a matri∣monie or contract matrimoniall, that is pretended by the other par∣tie; it can no more properly then the former, be called a matter of matrimonie. As for goods or chattels that are promised with a womā

in marriage, who seeth not, that it is a meere circumstance, no∣thing touching the validitie or inualiditie of a matrimonie? yet neuerthelesse (I take it) no man is so wedded to his opinion, that he will deny the conisance of these matters to belong to the Ecclesiastiall iurisdiction, aswell as causes properly termed testa∣mentary or matrimoniall.

But I purpose to make the matter a litle more plaine, and withall to shewe, aswell when and howe some matters testa∣mentary themselues, as the rest annexed to testamentary or matri∣monial causes (which I finde touched in the lawes of the realme) doe belong to the conisance of an ecclesiasticall Court, & when and howe vnto a temporall Court; beginning first with testa∣ments. 1 1.3 These are to be proued before Ordinaries, sauing in certaine places, where the lord in his temporall Court (by custome) prooues the testaments of his tenants.

The Canon lawe doeth not permit an Ecclesiasticall person to declare his will, and to dispose of such goodes as he hath gotten by reason of his ecclesiasticall promotions as he liste: but they must be left to that Church, by which he gotte them. But 2 1.4 the lawe of this Realme is, that Clerkes may make their willes as liberally and freely, as any Lay man may: and that though they haue them, for their spirituall ministration. And therefore by reason of this con∣tradiction and repugnancie to the Common lawe, such Canons are here of no force, nor in practice.

Touching executours, it is sometimes to be determined by the Common lawe, in what cases, and who may be made an execu∣tour: for a 3 1.5 woman (by the Common lawe) may make her husband executour of such things whereof she was executour to another before, or of a duetie due vnto her before co•…•…erture, or of rent being behinde, vpon a lease made vnto her for terme of life, or of a lease, or of any thing whereof the possession must be attained by action: but she cannot make him executour of that which she hath in possession. for by the very entermariage, the propertie is in her husband: albeit, by the Spi∣rituall law, aswell in the one case as in the other, she may make her hus∣band executour: which (saith Tremayle and Frowicke) whether it be their law or no, is not to be disputed by the Common law, because we are ignorant, and cannot iudge what is their lawe.

And if a man 4 1.6 be cōdemned in costs in a court ecclesiastical, & after

die, making an executour (by the opinion of King smell) it is as good reason to sue the executour in a spirituall cause, according to the Spi∣rituall Lawe, as to sue him for a temporall matter in the Temporall Lawe. Else (saith he) when an amends is adiudged in a Spirituall court, and the partie dieth, the ether shoulde be without remedy, which were no reason: and none did gainsay it. But a 1 1.7 man may not sue an executour in a Spirituall Court, for the testators debt: albeit if the testator enioyne the executor to pay the debt to him, hee may then sue for it in Court Spirituall, because of the iniunction and promise. And this sheweth how an Executor may be sued or not sued in an Ec∣clesiasticall Court.

Now an Executor may sue another in a Spirituall Court tou∣ching his testatours goods, in this case, viz. If a 2 1.8 man deuise or bequeath corne growing, or goods, vnto one, and a stranger will not suf∣fer the executor to performe the testament for this legacie, he shall sue the stranger for it, in a Spirituall Court. But if a man take from the executors, goods bequeathed: for this, the executor must vse his action of trespasse, and not sue in the Spirituall Court: for 3 1.9 executours can not sue for the goods of their testatour in a Court Ecclesiasticall, but at the Common Lawe. If 4 1.10 a testament beare date at Cane in Nor∣mandie, and be prooued in England, the executour may vpon such te∣stament haue action.

Of legacies or deuises it will be sufficient to touch a few points. In the books of the Common Law it is set downe, that they 5 1.11 shalbe recouered in a Spirituall Court, and not in a Court Temporall. There∣fore 6 1.12 if a termor of certaine land bequeath his croppe, and die, the Spirituall Court shall hold plea thereof. Likewise, 7 1.13 where one sued in Court Christian, for goods deuised by testament, which another clai∣med by deede of gift, and thereupon brought a prohibition, and shewed the deed of gift, and alledged withall, that the defendant was neither executor nor administrator: yet because it was by name of a legacie, it was adiudged to belong to the Spiritual court, by which it was to be de∣termined, and the circumstances to be tried, whether the deuise were good or not. And in respect, a man hath such action against the executor for a legacie before the Ecclesiasticall Iudge, therefore the 8 1.14 legatarie or deuisee may not of his owne head, take the goods or chattels deuised to himselfe, out of the possession of the executour. And for this also especially, because 9 1.15 the Lawe doeth not binde

that the legacies shall be assigned, payed, or deliuered, untill the debts of the testatour be satisfied and payed: But because 1 1.16 a franke tene∣ment or inheritance deuised, is not demaundable in an Ecclesiasticall Court, but in the Temporall: therefore the 2 1.17 legatarie (according to the deuise) without further assignment or deliuerie, may enter into them, after the death of the testatour.

If a man 3 1.18 by his testament do bequeath goods to the fabricke of a Church: for this legacie the executors may be sued in court Ecclesiasticall. Also, if 4 1.19 wardship or chattels reall (as a lease) be be∣queathed by will; a man may sue for them in the Court Ecclesiasti∣call, but not so for lands deuised.

If a 5 1.20 testatour by his testament doth charge his executors to pay his debts: the creditours (in respect of such charge) may sue for them in the Court Ecclesiasticall. When a 6 1.21 man (as I doe interprete it, being executour or legatary, and so enioyned by will) doth refuse to collate or erect a Grammer Schoole, and is therefore sued in a Court Ecclesiasticall, if he purchase a prohibition: the other partie shall haue a consultation.

Touching committing of administrations, by the very statute whereby they were established it is enacted, that 7 1.22 where a man dieth intestate, the Ordinaries shall depute the next and most lawfull friends of the dead person intestate, to administer his goods: which de∣puties, as they haue action against others in the Kings Court, for to re∣couer the debts owing to the dead, so in that Court there lieth action against them, for such as the dead did owe: but they are made accoun∣table to the Ordinaries, as executours be, in the case of testament &c. And 8 1.23 when such letters of administration be shewed vnder the Ordi∣naries seale, or when a testament is so shewed, a man hath no direct trauerse against it, in the Temporall Court.

That to sequester the goods of an intestate, cōmonly called let∣ters ad colligendum, belongeth to the Ordinary, appeareth by this case: If an 9 1.24 Ordinary sequester the goods of an intestate to another man, and a third disturbeth, here the Ordinary hath an action of tres∣passe at the Common law, though the sequestration be a spiritual acte, because he had possession: yet he cannot haue an action of debt, albeit actions of debt in this case runne against him. But if the Ordinary do sequester the goods (ex officio, or for any contumacie) which giueth no possession to him, there the Spirituall Court shall haue iurisdiction.

That diuorces are of Spirituall iurisdiction, is apparant by ma∣ny bookes at the Common Lawe, needlesse to be rehearsed: but whereas prohibition 1 1.25 lay in Corbets case vpon a suite brought in the Spiritual court, to repeale a diuorce, and cōsequently to make the issue of the second wife bastards, whereupon no Consultation would be graunted (which may therefore seeme to make this point doubtful) it was not, for that the Court Ecclesiasticall might not hold plea of diuorces: but the prohibition lay, because the title and discent were comprised in the libell: and this was agreed to be the cause, by the Court: and so it is 2 1.26 reported by Brooke. And if a man giue goods in 3 1.27 mariage with a woman vnto the husband, if they be afterward diuorced, it was holden, that the woman diuorced may wel sue for those goods in Court Christian. But if any further doubt should (herein) vpon the former case of Corbet remaine: That statute which 4 1.28 affirmeth, that diuorces (by appellation) were caried forth of this Realme vnto Rome, like as other causes Ecclesiasticall of testament, of matrimonie, of right of tithes, oblations, and obuentions, and appointeth how delegates (vpon such appellations made) shall determine them all within the Realme, doth put it cleare out of doubt.

Likewise where it is affirmed by a farre elder statute, that Ordi∣naries are 5 1.29 both to certifie and trie of bastardie and bigamie, which (for the most part) cannot be done, without the conusance of di∣uorces, whereupon the former (especially) doth depend.

As for 6 1.30 questions touching Bastardie or Legitimation of any, it appeareth that at the Common Lawe, they do belong to a court Ecclesiastical; and vpon a writ, are to be certified into the Queenes Courts, by the Bishop. If 7 1.31 a man be spoyled of the possession of his wife: so farre forth as the Action doth but extend to be resto∣red to her possession; it must be handled in a Court Ecclesiasti∣call: notwithstanding (8 1.32 sayeth Gooddall in the Booke afore∣saide) that a man for his wife onely, may haue Action of trespasse at the Common Lawe; and also a writte, de vxore abducta cum bo∣nis viri.

Also for a man that liueth asunder from his wife, there lyeth Action in a Court Ecclesiastical, for him to receiue her againe and to cohabite with her; as may be gathered by 9 1.33 that statute of Westminster the second; where it is prouided; that a woman eloped

from her husband, shall loose her dower: except the husband (without compulsion Ecclesiasticall) doe receiue her againe. Therefore for a man to receiue his wife againe, compulsion Eccles. may (in some case) be vsed, with allowance of the statutes of this Realme.

Lastly, it remaineth to shew here when, and howe, goods and chattels promised with a woman in marriage (after the marriage ac∣complished) be demandable and determinable in the Court Ec∣clesiasticall. For besides one or two cases afore rehearsed, where (by the way) so much is implied, it appeareth by many conso∣nant iudgements in the very point. For if a 1 1.34 contract be made be∣tweene two men, that if the one will take to wife the others daughter, then he will giue him tenne pounds: In this case, if the money be to be demaunded, it shall be demaunded in the kings Court: because hee did not promise the money with his daughter in mariage, but by way of co∣uenant, that he should marry his daughter. But if he had promised the money with his daughter in marriage, then it shoulde haue bene de∣maunded in Court Christian.

Likewise 2 1.35 in an action of debt, the plaintife declared, that he had married the daughter of the defendant, and that he should haue twen∣tie pounds in respect thereof: and by agreement of all the Iustices of the Common Plees, without any answere of the defendant, it was de∣creed that the plaintife should haue nothing vpon his writ, because it is determinable in a Court Christian, and is of the same nature, as the very marriage is. So doth 3 1.36 Brooke also collect out of the Register, that for marriage money and pensions, the suite lieth in the Spirituall Court: and agreeable to the former distinction of Thorpe, Fitz∣herbert 4 1.37 also reporteth it in his Nouanatura breuium. Bracton in like maner affirmeth it, 5 1.38 and yeeldeth a reason thereof: for hee (speaking of Ecclesiasticall iurisdiction) saith thus: Sic de rebus datis vel promissis ob causam matrimonij principaliter: & sic de rebus quae accidunt matrimonio, vt sipe cunia promissa fuerit ob causam ma∣trimonij: quia eiusdem iuris, id est iurisdictionis, esse debet accessori∣um, cuius est principale. And albeit Brooke 6 1.39 in his abridgement report, that the same was also else-where holden by 7 1.40 three, viz. Chocke, Townesend and Littleton: yet hee himselfe seemeth to doubt of it, and saith there is also great 8 1.41 opinions against it, be∣cause there is quid pro quo, and therefore likely to be determina∣ble in a Temporall Court.

Therefore it may probably bee thought that these opinions which hee speaketh of in this behalfe 37. Hen. 6. either were meant in such a case, as grewe to a lay contract, such as Thorpe speaketh of in the booke of Assises (afore alleaged) or else there was some couenant for the money, by deede. For 1 1.42 in an Acti∣on of debt brought vpon a couenant by deed, that if the plaintife should marry the defendants daughter, the defendant should giue him an hundred pounds, which condition of marriage the plaintife had per∣formed: it was adiudged, that (notwithstanding Articuli Cleri) the matter did belong to the Temporall Court, because it was by deede: but it had not belonged to it, but to the Court Ecclesiasticall, if it had bene without deede.

And the rather may it be thought, because this hath bene ta∣ken for Lawe both afore and since; notwithstanding those opi∣nions mentioned by Brooke.

First in the 2 1.43 Register wee finde to this effect, a certaine wo∣man in consideration of Matrimonie to be contracted with her daughter promised 40. marks: the Matrimonie was accordingly celebrated: the woman dieth, making executours. Then for not paiment thereof the husband bringeth his Action in the Court Ecclesiasticall: the executours obteine a prohibition: whereupon, the matter comming to scanning; a Consultation is neuerthelesse graunted; whereby is affirmed, that the Ecclesiasticall Court may lawfully proceede therein.

Yea, and long after these opinions deliuered, Fitzherbert af∣firmeth, that such suite belongeth to the Court Ecclesiasticall, as hath bene alleadged. And so doth the little Treatise of the liber∣ties of the Clergie, by the Lawes of the Realme, in these 3 1.44 wordes, viz. If he that promised money with his daughter in marriage, dieth: hee that married her, may sue the executours for the money, in the Spirituall Courts. There is in the saide little Treatise, another case touched & affirmed to be of Ecclesiasticall conisance; which belongeth to this Chapter. It is 4 1.45 this: If a man (saith hee) giue goods with his daughter in marriage, and after there is a Diuorce: the same may sue for those goods in Ecclesiasticall Court. But hee sheweth not whether vpon any Diuorce whatsoeuer, the goods be there recouerable, viz. whether, aswell when the Diuorce a∣rose of the womans adulterie; as when it grew vpon some con∣sanguinitie

or other Canonicall impediment, founde out after mariage. Hitherto concerning those kindes of Iurisdiction Ec∣clesiasticall, which I adioyned to causes Testamentarie and Ma∣trimoniall.

Notes

• * 1.1

  31. Ed. 3. cap. 11.
• * 1.2

  24. H. 8. ca. 12.
• 1 1.3

  M. 2. H. 3. Fitz. testa. 4.
• 2 1.4

  Treatise of Const. prou. & legatine, printed by Thomas God∣frey tempore H. 8. cap. 13.
• 3 1.5

  T. 12. H. 7. sol. 22.
• 4 1.6

  T. 12. H. 7.
• 1 1.7

  H. 6. H. 3. re∣ferente Fitzh. tit. prohib. 17.
• 2 1.8

  T. 4. H. 3 re∣ferente Fitzh. tit. prohib. nu.
• 3 1.9

  2. R. 3. 17.
• 4 1.10

  T. 18. Ed. 2. testa. 6.
• 5 1.11

  37. H. 6. pag. 9.
• 6 1.12

  H. 8. H. 3. ex Fitzh. tit. pro∣hib. 19.
• 7 1.13

  46. E. 3. fol. 32.
• 8 1.14

  M. 20. E. 4. 9.
• 9 1.15

  T. 2. H. 6. 15.
• 1 1.16

  Bracton. lib. 5. cap. 16.
• 2 1.17

  Perkins tit. deuises.
• 3 1.18

  Reg. in br. orig. pag. 48. b.
• 4 1.19

  Liberties of the Clergie, by the Lawes of the Realme, by Iohn Gooddall. Prin∣ted by Rob. Wier, tempore Hen. 8.
• 5 1.20

  Ibidem.
• 6 1.21

  Ibidem.
• 7 1.22

  31. Ed. 3. ca. 11.
• 8 1.23

  36. H. 6. 31. referente Perk. tit. testa.
• 9 1.24

  7. H. 4. 18.
• 1 1.25

  12. H. 7. 24.
• 2 1.26

  Brooke tit. prohib. nu. 9.
• 3 1.27

  T. 13. H. 3. re∣ferente Fitzh. tit. Prohib. nu. 21.
• 4 1.28

  24. H. 8. ca. 12.
• 5 1.29

  18. Ed. 3. pro Clero cap. 2.
• 6 1.30

  Regist. in bre. iudicialibus. pag. 5. a. & 26. a.
• 7 1.31

  Regist. in bre. iudic. pag. 53. 2.
• 8 1.32

  Goodall, of the liberties of the Clergie, by the Lawes of the Realme.
• 9 1.33

  13. Ed. 1. c. 34.
• 1 1.34

  22. Assisatum fol. 70. per Thorpe cui con∣cordat M 16. H. 3. per Fitzh. proh. 22.
• 2 1.35

  14. Ed. 4. 6.
• 3 1.36

  Reg. fol. 46. & 48. per Brooke tit. prohib.
• 4 1.37

  Fitzh. no. na. br. tit. proh. fol.
• 5 1.38

  Bracton. lib. 5. cap. 16.
• 6 1.39

  Brooke t. t. iutisdict.
• 7 1.40

  17. E. 4. fol. 4.
• 8 1.41

  37. H. 6. fol. 9.
• 1 1.42

  45. E. 3. fol. 24. per Br, iuris∣dict. 11.
• 2 1.43

  Reg. in Br. orig. pag. 46. b.
• 3 1.44

  Goodall, of the liberties of the Clergie.
• 4 1.45

  Ibidem.