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. IIII. Generall proofes out of Statutes, that sundry other causes besides Testamentarie or Matrimonial, are of Ecclesiastical conusance.

BEfore I proceed further to shewe (in parti∣cular) what matters besides be of Ecclesi∣asticall conisance and Iurisdiction, and how farre; I holde it nothing amisse to shew (in some generalitie) first; that there are some other such, which be neither Testamentarie nor Matrimoniall, nor yet any way depen∣ding, or of affinitie to them. The Great Charter (to the obser∣uation and propugnation whereof, the King and the great No∣bles and Officers were wont to be sworne) layeth this ground∣worke of all which followeth: We haue granted to God, and by this our present 1 1.1 Charter confirmed, for vs and our heires for euermore; that the Church of England shalbe free, and shall haue all her whole rights and liberties inuiolable. But that the Church had these rights and liberties then, (which are now claimed) the Actes of Courtes Ecclesiastical in those and former times, and in all succee∣ding ages, (without prohibition, or other oppugnation,) with the 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 1.2 the Chancellor or chiefe Iusti∣cer 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 mat∣ter) shall write to the Iudges (where the cause was first mooued) to proceede; the prohibition directed, notwithstanding. So that, where∣in soeuer (by custome and liberties of Holy Church) Iudges Ec∣clesiasticall 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 1.3 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 Iurisdi∣ction 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 1.4 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 Mi∣nisters: and thereupon shall haue Writs in the Chancerie, when they will demaund. Where we finde, that other things besides Commu∣tations, matters Testamentarie and Matrimoniall, doe belong to the Iurisdiction of the Church.

And to like effect after, in the same Kings dayes: 3 1.5 Commissi∣ons to enquire of Iudges of Holy Church, whether they made iust Pro∣ces 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 mat∣ters appertaining meerely to Iurisdiction Ecclesiasticall; how the vexations, impeachments, driuings to answere, and strange en∣quiries 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 1.6 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 1.7 testified, that both the au∣thorities 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 Matrimo∣niall,) 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 Iuris∣diction Ecclesiasticall, wherein a like remedie was conuenient to be had) therefore the next yeere after it was enacted, that 1 1.8 all ma∣ner 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 ap∣peales, in matters Testamentarie, Matrimoniall, tythes, &c. in the said former statute mentioned.

In a Statute of King 2 1.9 Edward the 6. (besides matters of volun∣tarie Iurisdiction Ecclesiasticall, as collations, presentations, Insti∣tutions, 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 1.10 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 bapti∣zed, 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 Idola∣trie. And therefore Iudges Ecclesiasticall may lawfully cite men, in certaine other causes, besides Testa∣mentarie or Matrimoniall: and ought not (eonomine tantùm) to be vexed, vn∣quieted, impeached, driuen to answere, or arrested.

Notes

• 1 1.1

  Mag. Chart. cap. 1.
• 2 1.2

  24. Edw. 1. stat. de consultatione.
• 1 1.3

  Artic. Cleri. 9. Ed. 2. ca. 16.
• 2 1.4

  15. Ed. 3. ca. 6.
• 3 1.5

  18. Edw. 3. pro Clero. c 6.
• 4 1.6

  1. Ric. 2. ca 13.
• 5 1.7

  24. H. 8. c. 12. in the praeamb.
• 1 1.8

  25. H. 8. c. 19.
• 2 1.9

  1. Ed. 6. c. 2.
• 3 1.10

  5. Eliz. c. 23.