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. V. That suites for title of Benefices vpon Voidance or Spoliation: like∣wise that suites for tythes, Oblations, Mortuaries, &c. for Pensi∣ons, Procurations, &c. are of Ecclesiasticall Iurisdiction, is proo∣ued by statutes.

MAtters 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 1.1 and the discussing thereof, de iu∣re doe belong to Iudges of holy Church, and not to the Lay Iudge.

The Common 2 1.2 lawe doth mention fiue causes of auoidance of a be∣nefice, 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 1.3 whether the Church be full or not full, or the Clerke able or not able, is triable in an eccle∣siasticall Court. Townesend.

For if an 4 1.4 inferiour Ordinary shal differ or refuse to admit or in∣stitute a Clerke presented, and the Clerke bring his double Querele (being of the nature in some sort of an appellatiō) from the Arch∣bishops 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 5 1.5 benefice, a man is to be sued in Court Christian. But this lieth not, but where a Clerke is in, as an incumbent. for if he be in, as an vsurper of the Church being full, or as a trespasser, there lieth action of trespasse, and not spoliation. But if two 6 1.6 incum∣bents be in, and the one claimeth by one patrone, and the other by ano∣ther, there lieth no spoliation: but where both claime to be in by one pa∣trone, or by meanes of one patrone, then lieth action of spoliation, and not otherwise. For where the right of Aduouson may come in questiō, there lieth no spoliation, for that cannot goe to a Spirituall Court. And againe a litle after: 7 1.7 Spoliation and debate vpon an appropriation, shalbe determined in the Spirituall Court.

Touching tithes where they are to be sued, it appeareth by actes of Parliament thus: The 1 1.8 plea for tithes shall passe in the court Christian, as farre foorth as it is derained in the Kings court. In the next Kings 2 1.9 dayes, thus: In tithes, oblations, obuentions, mortuaries, (sithence they are proposed vnder these names) the Kings prohibition shal holde no place. 3 1.10 And againe, the Kings prohibition shal not lie for tithes of a Mill, newly erected.

Likewise in the dayes of K. Richard the 2. it is thus 4 1.11 contei∣ned in a statute: The Clergie complaine for that the people of holy Church pursuing in the spiritual court for their tithes, and their other causes which of right ought, and of olde times were woont to perteine to the spirituall court, and that the Iudges of holy Church hauing co∣nisance in such causes, and other persons thereof medling (according to the lawe) be malitiously endited, &c. and by secular power oppressed, and be forced by oathes, obligations, and many vndue meanes compel∣led to ceasse vtterly, against the liberties & franchises of holy Church: It is enacted, that such obligations made by violence should be voide: and the enditors of malice when the enditees be acquit, should incurre the paine of those that procure false appeales, &c. Likewise the pre∣amble of a 5 1.12 statute in K. Hen. the 8. dayes doeth argue, that mat∣ters of tithes are to be heard and determined by Iudges Ecclesia∣sticall.

The same is also proued by that, where in 6 1.13 another statute it is said thus: Inconueniences haue arisen by reason of appeales out of the Realme to the See of Rome, in causes testamentarie, causes of matri∣monie, and diuorces, right of tithes, oblations, and obuentions. And in 7 1.14 the preamble of another statute, Deteiners of tithes. pursuing such their detestable enormities and iniuries, haue attempted in late time past, to disobey, contemne and despise the processe, lawes, and decrees of the ecclesiasticall courtes of this Realme, in more temerous and large manner, then before this time hath bin seene. And therefore it 8 1.15 was then enacted, that for subtraction of tithes, offerings, and other due∣ties of holy Church, the partie grieued, may by due processe of the kings. ecclesiasticall lawes of the Church of England, conuent the person of∣fending, before the Ordinarie, and also compell him to yeelde their saide duties. And likewise for any his contempt, disobedience, or o∣ther misdemeanor, vpon complaint to any of the Counsell, or to two Iu∣stices of the peace, to haue him committed, vntill he shall be bound to

giue due obedience to the processe, proceedings, decrees, and sentences of the ecclesiasticall court of this Realme. And 1 1.16 afterward by ano∣ther statute of the same King, it is enacted, that for denying to set out tithes, for deteining, withholding, or refusing to paye tithes or offe∣rings, Ordinaries may proceede according to the course and processe of the ecclesiasticall lawes. And in the 2 1.17 preamble thereof, it is di∣rectly affirmed, that by order of the common lawes of this Realme, a man cannot haue any due remedie against deteiners of tithes. And the 3 1.18 like also appeareth by the statute of tithes, made in K. Ed∣wardes reigne.

That which is afore affirmed and determined, concerning tithes, oblations, obuentions, and mortuaries, may likewise be said of pensions, portions, corrodies, procurations, indemnities, and other such dueties ecclesiasticall. For it is enacted, that 4 1.19 for these denied, ec∣clesiasticall persons themselues, may make such processe against the person denying, or against the Church charged, as heretofore they haue lawfully done, and as by, and according to the lawes and statutes of the Realme, they nowe lawfully may doe. And the person conuict, (ac∣cording to the ecclesiasticall lawes) shall pay to the plaintife, the things recouered, and his costes.

Notes

• 1 1.1

  25. Ed. 3. pro Clero. ca. 8.
• 2 1.2

  Treatise of con∣stitu. Prou. & Le∣gatine. ca. 9. prin∣ted by Tho. God∣frey. tempore H. 8
• 3 1.3

  M. 22. Edw. 4. fol. 24.
• 4 1.4

  Regist. in br. orig. pag. 55. b.
• 5 1.5

  44. Ed. 3. 33.
• 6 1.6

  38. H. 6. 19.
• 7 1.7

  38. H. 6. 20.
• 1 1.8

  13. Ed. 1. ca. 5. Westm. 2.
• 2 1.9

  9. Ed. 2. ca. 1. Artic. Cleri.
• 3 1.10

  Ibidem cap. 5.
• 4 1.11

  1. Ric. 2. ca. 13.
• 5 1.12

  23. H. 8. ca. 9.
• 6 1.13

  24. H. 8. ca. 12.
• 7 1.14

  27. H. 8. ca. 20.
• 8 1.15

  Ibidem.
• 1 1.16

  32, H. 8. ca. 7.
• 2 1.17

  Ibidem.
• 3 1.18

  2. Ed. 6. ca. 13.
• 4 1.19

  34. & 35. H. 8. ca. 19.