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 ....

THE FIRST PART OF an Apologie of certeine proceedings in COVRTS ECCLESIASTICALL, wherein is chiefly shewed what matters be inci∣dent to Ecclesiasticall conusance, and so allowed by Statutes, and Common law. (Book 1)

CHAP. I. That a seuerall royall assent is not required to the executing of euery particular Canon.

IF no Canon or Constitution Ecclesiastiall might now be put in vre, but such as her Maiesties expresse assent is first had vn∣to; then do all their other opinions a∣gainst the ordinarie iurisdiction ecclesi∣asticall stand in no stead, and might be spared; because this would serue to cut off all at once, which they shoot at. For none that exercise ordinarie iurisdiction haue hitherto had it in particularity (which by the oppugners seemeth to be meant) otherwise then by permission of law, vnto euery of their proceedings. Neither in trueth, for the infinitie of it, and troublesomnesse to procure such assent from her Maiestie, for euery particular matter & dioecesse of this Realme (from time to time) were it possible to be vsed. Now if Ordinartes (from whom either mediately or immediately, ap∣pellations do lie vnto her Maiestie in the Chancerie) by reason of the want of such particular assent, vnto the execution of euery canon, shall (according to this conceit) haue nothing to doe; then cannot the Queenes delegates neither (to whom appellations from Ordinaries doe come) haue any thing wherein to bestow their trauell: and therefore this point seemeth first of all meet to be cleared, and to be bestowed in the first ranke.

The absurdity of this opinion (whosoeuer were the hatchers of it) will easily shew it selfe. For if matters testamentary & matri∣moniall (which all they grant to be ecclesiasticall) right of tithes,

and sundry other causes (which shall be also prooued so to be) shall not, ne can not, by reason of this want, be dispatched (as now they are) by ecclesiasticall iurisdiction, and yet can not be dealt in by any other authoritie, according to any law now in force: then is there a maine imperfection in the policie of this Common weale, viz. For men to haue a right, and yet no likely or readie meane to come by it: and for grosse oftences to be com∣mitted (that are by law punishable) and yet no man sufficiently authorized to execute such lawes.

The iudgement of whole Parliaments kept in seuerall Kings and Queenes reignes (since that act, whereupon this fancie see∣meth to be grounded) so many as haue had cause to speake of the iurisdiction ecclesiasticall, doe also fully conuince it. The 1 1.1 statute for delegates vpon appellations, doth argue, that Ordi∣naries might (without further leaue obteined, as in former times they did) execute their iurisdiction ecclesiasticall. For if there were to be no more ordinarie proceedings, till the king should giue his assent to the execution of euery canon; for what vse should appellations from the decrees and iudgements of Ordinaries, be there prouided for? Likewise 2 1.2 two statutes were not long after prouided in assistance of iurisdiction ordinary, and for the better and speedier recouerie of tithes in Courts ecclesiasticall, accor∣ding to the course of the ecclesiasticall lawes in that behalfe. And the 3 1.3 like was also enacted for recouerie of pensions, procu∣rations &c. withholden.

In the time of K. Edward the sixt, in 4 1.4 a statute (since repealed by queene Marie) a great number of particular causes of iuris∣diction ecclesiasticall, are there (by the way) rehearsed; that Ordi∣naries & other ecclesiasticall Iudges might, and did then deale in.

In the time of queene Marie (before the supremacie was gi∣uen vnto the Pope) the 5 1.5 act for not disturbing of diuine seruice or preaching, reserueth the iurisdiction that Ordinaries then had, for punishment thereof, by lawes ecclesiasticall, ouer and aboue the penalties (of new) thereby inflicted.

In the Queenes Matesties 6 1.6 time that now is; by the act for v∣niformitie of Common prayer, Ordinaries &c. may enquire &c. and punish the violations of that act, by censures &c. as heeretofore hath bene vsed in like cases, by the Queenes ecclesiasticall lawes.

The Statute De excom. capiendo, reckoneth 1 1.7 vp (particular∣ly) diuers Crimes and offences Ecclesiasticall; punishable by that iurisdiction, which were hindered much from punishment that apperteined, for want of due execution of that writte De ex∣com. capiendo, and therefore prouideth remedie therein. Which necessarily argueth the continuance and approbation of execu∣tion of Iurisdiction Ecclesiasticall by Ordinaries, without further obteyning of leaue.

By the statute against periurie (made at the same time) 2 1.8 it is prouided, that it should not extend to Courts Ecclesiasticall: but that offenders in periurie, or subornation in a Court Ecclesiastical, shall and may be punished by such vsual and ordinarie Lawes, as here∣tofore haue bene, and yet are vsed and frequented, in the saide Eccle∣siasticall Courts: which prooueth the vsuall practise of Iurisdiction Ecclesiasticall hitherto vsed (without any speciall assent) to be lawfull.

The statute against vsurie prouideth, 3 1.9 that such vsurie as is a∣boue ten pound in the hundred by yeere, shall (not withstanding the other penalties there newly inflicted) be also punished and corrected (as in times past) by the Lawes Ecclesiasticall. And by the 4 1.10 statute of dilapidations, the remedies that by the Lawes Ec∣clesiasticall were (afore) giuen against executors and administra∣tors of incumbents; are there extended also to donees and alie∣nees; to be (by the same authoritie) dealt with. In the which clauses of statutes, there is no repeale of any former particular statute or Lawe, nor any generall non obstante conteined. And therefore, if those Parliaments had bene of this iudgement; that no Canon might now be put in vre, without the Royall assent first obteined, there woulde haue bene added these, or some like words, viz. They the said Ordinaries first obteining the royall assent for the putting in vre of such Canon, as they minde in that cause to proceed by: that thereby (without all scruple of danger) their pro∣ceedings (so appointed to them) might haue bene warranted. But being altogether needelesse, it is no maruell though it were omitted. For can any man doubt (if it were needfull) but that there is a sufficient Royall assent had, when as it is giuen to the whole acte, before it can passe for a Lawe?

Lastly, the same statute out of 5 1.11 which (as I coniecture) this

opinion was stirred vp, doth establish all Canons which be not con∣trariant nor repugnant to the Lawes, Statutes, and customes of this Realme, nor to the dammage or hurt of the Kings prerogatiue Royall, that they shall now still be vsed and executed as they were afore the making of that acte, till they should be viewed &c. by the 32. persons, &c. which is not hitherto done. But such were vsed afore, with∣out any expresse or particular Royal assent (from time to time) ob∣teined: and therefore may still be vsed without any such newe assent. For to exact it were (in very deed) to bring in a quite dis∣use of all ordinarie Ecclesiasticall Iurisdiction in stead of vsing it: which hitherto (from planting of Christianitie) and in all succee∣ding times, hath neuerthelesse bene practised.

This opinion, as an arrow shot vnaduisedly at the Bishops, glan∣ceth off them, and woundeth very deadly the fauourers of the new Discipline (in whose behalfe it was framed.) for they are so farre from taking expresse leaue of the Prince, to put euery of their Constitutions ecclesiasticall in vre, that they holde, her Ma∣iestie hath nothing to doe to make or establish any Church-lawes. And the clause for vse of such former Canons and Constitutions synodall afore mentioned, as they were vsed afore that time, will not helpe the exercise of their synodicall cōstitutions made long after in a Conuenticle, called together by their Moderators writ. But belike (when they set vp) the statute of submission of the Cleargie shall be turned into a statute of submitting the Princes scepter, to the rule of their Presbyterie in all Church-matters.

The chiefest colour and pretence 1 1.12 for this opinion, is taken (as I coniecture) out of the now reuiued statute made in K. H. the eights time, of submission of the Cleargie. But the wordes thereof doe plainely discouer the weakenes of such collection. for it is not enacted simply, that they shall not put in vre, &c. any constitutions &c. but according to their aboue said submission and pe∣tition, which was, that they would not enacte nor put in vre any new Canons, &c. in their Conuocation, without the Kings royall assent and authoritie in that behalfe. Otherwise there were a flat contrarietie in the selfe same Acte, by reason of the last prouiso thereof (next afore repeated) where Canons already made (so they haue the qualities thereby limitted) are appointed to be vsed. For it is there said, shall be now still vsed and executed as they were before

the making of that Acte. And where in 1 1.13 the 27. yeere of the said King, the same submission and former Acte is repeated, there in the very body of the statute (touching not putting in vre of Ca∣nons, &c.) the same modification (as afore) is retained, viz. Accor∣ding to the said submission and petition of the Clergie, which concer∣neth onely newe Canons. For of those that were then already made, the very selfe same prouiso (as afore is set downe) appoin∣teth, that they shall still bee vsed and executed, as they were before the making of either of those Acts. Which was, without any such expresse assent (as by this opinion is enforced) and is therefore neither requisite, nor almost possible.

I haue also heard some alledge the 2 1.14 clause of the statute, made for vniting of all Ecclesiasticall Iurisdiction to the Crowne; against the exercise of Iurisdiction by any Ordinaries: which (to mine vnderstanding) is a very simple collection. Belike they meane, that no Iurisdiction is vnited to the Crowne, but there must be a Commission vnder the great Seale (to warrant the execution of it) vnto him, that is to exercise it. Then must euery Stewarde of a Leete, euery Constable, and sundrie other Officers be driuen to procure like warrant for the execution of their Temporall offi∣ces, for (I trust) it will not be denied by these men, but that all Temporall authoritie and Iurisdiction, is by Lawe also vnited to the Crowne.

In deede this reason would serue against either the one or the other Iurisdiction, if they were not deriued and claimed from the Crowne, but from some other authoritie immediatly; as the Po∣pish Clergie did theirs from God, by the meanes and direction of the Pope. Yea euen another 3 1.15 Parliament sheweth, howe farre this collection is from the minde of the makers of that Lawe. For that very clause 1. Eliz. ca. 1. (together with her Maiesties letters Patents, directed foorth for confirming and consecrating Archbishops and Bishops) is brought, in the Pre∣amble thereof, as a strong proofe without scruple and ambigui∣tie, that the authorities and Iurisdictions by them executed; be thereby giuen vnto them, from her Maiestie. And therefore this opinion doth remaine desti∣tute of any ground of Lawe.

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 1.16 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 1.17 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 1.18 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 1.19 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 1.20 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 1.21 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 1.22 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 1.23 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 1.24 thus: Nolumus quod libertas ecclesiastica, per nos vel ministros nostros quoscumque aliqualiter violetur. And againe, 7 1.25 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 1.26 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 1.27 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 1.28 (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 1.29 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 1.30 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 1.31 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 1.32 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 1.33 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 1.34 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 1.35 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 1.36 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 1.37 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 1.38 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 1.39 without baile or mainprise. Nither 4 1.40 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 1.41 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 1.42 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 1.43 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 1.44 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 1.45 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 1.46 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 1.47 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 1.48 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 1.49 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 1.50 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 1.51 the shiriffe is not to make deliue∣rance, till it appeare vnto him, that the party is (indeed) absol∣ued. Neither is 2 1.52 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 1.53 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 1.54 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 1.55 such sufficient caution of him) doe deliuer him. And if the shiriffe also shall appeare to be negligent or wilfull; the 6 1.56 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 1.57 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 1.58 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 1.59 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 1.60 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 1.61 Writte of Scire fasias first goeth foorth to the Shi∣riffe, that he doe 2 1.62 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 1.63 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 1.64 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 1.65 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 1.66 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 1.67 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 1.68 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 1.69 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 1.70 〈 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 * 1.71 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.

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 * 1.72 (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 * 1.73 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 1.74 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 1.75 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 1.76 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 1.77 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 1.78 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 1.79 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 1.80 executours can not sue for the goods of their testatour in a Court Ecclesiasticall, but at the Common Lawe. If 4 1.81 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 1.82 shalbe recouered in a Spirituall Court, and not in a Court Temporall. There∣fore 6 1.83 if a termor of certaine land bequeath his croppe, and die, the Spirituall Court shall hold plea thereof. Likewise, 7 1.84 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 1.85 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 1.86 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 1.87 a franke tene∣ment or inheritance deuised, is not demaundable in an Ecclesiasticall Court, but in the Temporall: therefore the 2 1.88 legatarie (according to the deuise) without further assignment or deliuerie, may enter into them, after the death of the testatour.

If a man 3 1.89 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 1.90 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 1.91 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 1.92 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 1.93 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 1.94 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 1.95 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 1.96 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 1.97 reported by Brooke. And if a man giue goods in 3 1.98 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 1.99 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 1.100 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 1.101 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 1.102 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 1.103 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 1.104 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 1.105 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 1.106 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 1.107 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 1.108 also reporteth it in his Nouanatura breuium. Bracton in like maner affirmeth it, 5 1.109 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 1.110 in his abridgement report, that the same was also else-where holden by 7 1.111 three, viz. Chocke, Townesend and Littleton: yet hee himselfe seemeth to doubt of it, and saith there is also great 8 1.112 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 1.113 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 1.114 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 1.115 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 1.116 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.

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 1.117 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 1.118 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 1.119 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 1.120 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 1.121 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 1.122 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 1.123 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 1.124 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 1.125 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 1.126 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.

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

The Common 2 1.128 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 1.129 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 1.130 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 1.131 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 1.132 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 1.133 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 1.134 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 1.135 dayes, thus: In tithes, oblations, obuentions, mortuaries, (sithence they are proposed vnder these names) the Kings prohibition shal holde no place. 3 1.136 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 1.137 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 1.138 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 1.139 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 1.140 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 1.141 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 1.142 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 1.143 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 1.144 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 1.145 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.

CHAP. VI. That suites forright of tithes belong to the ecclesiastical Iurisdiction, and how farre, is shewed out of the bookes and reportes of the cōmon lawe: so of places of buriall and Church-yardes, and of Pensions, Mortuaries, Oblations, &c.

THe reportes of iudgements and opinions of the Courtes at the Common lawe (conteyned in the bookes of termes and yeeres) called booke-cases, and other treatises of that lawe, are no lesse plaine & pregnant in this matter. An 5 1.146 attachement vpon a prohibition was sued against a plaintife in a Court Ecclesiasticall, surmising that he did sue there for hay and money, which touched neither matrimony nor testa∣ment: but vpon shewing the libel, which proued, it was for tithes & ob∣lations, a consultation was granted, for the spiritual court to proceede. And 6 1.147 where the right of tithes is in question, it is triable in the Court spiritual. Likewise, 7 1.148 so soone as it appeareth, that the right of tithes comes in debate, the Lay court shal cease, & shalbe out of iurisdiction: quod fuit concessum.

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The same is testified in the booke of Assises: 1 1.149 For if the Kings patentee of tythes renewing in a Forrest, that is in no Parish (in which case the tythes doe belong to the King) haue cause to sue any, that ought to yeelde tythes, and ought to seuer them from the nine partes; such suite shall goe to the spirituall Court.

In the booke of Entrees in the precedent of a 2 1.150 consultation graunted, it is thus said: In causis de decimis, de testamento, velma∣trimonio, quando sub eo nomine proponuntur, prohibitioni Regiae non est locus. And so 3 1.151 Bracton saith: Non pertinet ad Iudicem secula∣rem cognoscere de ijs quae sunt spiritualibus annexa, sicut de decimis, & alijs Ecclesiae prouentibus. 4 1.152 And againe afterward: Mutatur quando{que} iurisdictio de iurisdictione in iurisdictionem, mutatis rerum nominibus, vt si de Laico catallo fiat spirituale, (vt cùm res fuerint de∣cimatae) fiunt de Laico catallo res spirituales, & sic mutatur iurisdictio secularis in spiritualem. And therefore where it is reported in the booke of Assises, 38. pag. 20. that the Exchequer held plea in matter of tythes betwixt two parsons of Churches, because the one was the Kings debtour; it is 5 1.153 said, that neither of the Benches would haue done it, and that it was a marueile.

It appeareth in the Register by 6 1.154 sundry consultations graunted after prohibitions brought, that at the Common lawe, so declared and confirmed by Articuli cleri, tithes are of ecclesiasticall coni∣sance. And it is alledged 7 1.155 truely out of the Register, that for tithes happening due in time of vacation of a benefice, the Iudge eccle∣siasticall may cite ex officio. More particularly, sundry kindes of tithes are there expressed; which by consultations were prooued and allowed to belong to the determination of an ecclesiasticall Court. As first 8 1.156 tithe of wooll rising of sheepe killed or dead. Againe, 9 1.157 tithe of calues & lacticiniorū, that is, of milke, butter, & cheese, (as it may be gathered by another consultation) are both due to be paide, and demaundable in a court ecclesiastical. Third∣ly, another 10 1.158 cōsultation cōteineth, not only butter, cheese, & lacti∣cinium, to be due and demandable in court eccles. but also of pan∣nage, that is, tithe of maste, & of coltes. To these doth the Treatise of the 11 1.159 liberties of the Clergy adde tythes for hony, & waxe of bees. But why he should say further, that it seemeth all these must be by prescription, as if tithes of all kindes were not ipso iure due, sauing when some lawe doeth otherwise specially limit and determine:

I must confesse, y^t I can see no seeming, nor yet colourable reason.

And not onely the partie himselfe who deteineth tithes may be sued, but if he die, his executors may be sued also for them in court ecclesiasticall. For so is it 1 1.160 testified by a Consultation obtei∣ned for tithe of Wooll, denied by the Testator, and by his execu∣tors who brought the prohibition. And the 2 1.161 like is testified by the said treatise of the Liberties of the Clergie, touching tithes of Mils.

Whereas also for restraint of the malice of diuers, a prouinci∣all constitution was made by the Bishops of the Prouince of Can∣terbury, in their Synode at London, that such as hindered the gathe∣ring or cariage of tithes, by due and accustomed wayes should be excommunicated ipso facto: It happened that a parson bringing his action in court ecclesiasticall vpon that constitution; was hin∣dered and staied by prohibition, suggesting that it was instituted touching debts and chattels, being neither Testamentarie nor ma∣trimoniall. But the consultation 3 1.162 granted, doeth signifie; that the court ecclesiasticall may lawfully proceed in that plea, so farre foorth as the action reacheth but to the excommunication of the partie, by reason of his hindering the Parson to gather and carie tithes, by places due and accustomed, so that the said constitution and suites ecclesiasticall thereupon brought, be both allowable.

Yet we are to vnderstand, that neuerthelesse in some cases, the suite for tithes doeth not lie in an ecclesiasticall court: as for ex∣ample, where it is otherwise determined by statute. For it is pro∣uided, that 4 1.163 where a man is sued in a court Ecclesiasticall for tithes of great trees aboue 20 yeeres growth, which may serue for timber of ships or houses, the kings prohibition shall lie. But it was 5 1.164 agreed in the Parliament at Sarum, that a consultation lieth for Sylua caedua, albeit it renew not yeere by yeere.

It was also 6 1.165 adiudged in the case betwixt Sobie and Mullins, that of hornebeames, Sallowes, and such like trees, (that are of so base nature that they serue not for building, nor are of any endurance, and seruing for fewell and other meane vses) tithes should be paied, not on∣ly of the trees themselues, but of their boughes when they are lopped, of what age soeuer they be.

The 7 1.166 opinion of the Court in this case then, further also was, that if the tree it selfe by that statute (being but an affirmance of the Common lawe afore) bee priuiledged for tithes, as Oke, Ashe,

and such like; that the armes & boughes also of them (being of twen∣tie yeeres growth or aboue) shall be free likewise. And the reason is added, for they may serue for some vse in building.

So that here it may be doubted, if trees aboue twentie yeeres growth, being of a kind priuiledged and timberable, as Oke, Ashe, Elme, &c. be of themselues so little, so crooked, or so rotten, as that they can serue for nothing but blocks and fewell, and be al∣so so emploied: whether thereof tithes shall be paied, and bee demandable in a Court ecclesiasticall? For here the reason of that iudgement doeth cease, because they serue not for any vse in building, & cessante ratione, cessat lex.

This doubt is also enforced by the opinion 1 1.167 of Askham: who to maintaine the prohibition there brought (though the suite in the ecclesiasticall court were for great wood) was driuen to a∣uerre, that they were such great trees as might serue to build an house sufficient for any mans dwelling, according to the custome of the Countrey. Which allegation of matter in fact had not needed, if onely the kind and age of the trees had bene to be respected, to maintaine the Prohibition. But this question is to be discussed by the reuerend and learned Iudges.

I doe find a Note in the Register, but not set downe by whom nor when, touching immunitie of some things, from paying of tithes, to this 2 1.168 effect, viz. Note, that the Iustices say, that tithes shall not be yeelded but of such things as bring profite from yeere to yeere, and that by the memory of man; but this is against the Decretals, saieth he. Now admitting this report to be true; what might be the reason of such opinion of those that were Iustices then, is not expressed; & I cānot coniecture. for not only the Decretals & Ca∣nō law, but Gods written law, & before that, y^e law of nature (vn∣der which other thē such tithes were paid) do seem to be against it: & those Iustices had not (for any thing I can find) either former written law, or any report of vn writtē law or custome to y^t effect.

And if this should be receiued for lawe, as is here in words laid downe; then need no tithes be paid of Sylua caedua; yet was it de∣termined in the Parliament at Sarum, y^t they should: & so 3 1.169 it is at the Cōmon law also. And thē neither parsonall tithes, nor tithes of Mils, nor tithes of Licoras, nor of Saffron heads (being gathered commonly but once in 3. yeeres) nor tithes of corne out of fields

that lie fallow & without fruit euery other, or euery third yeere; nor tithe calues or lambes falling of such cattell, as do bring forth but euery other yeere, nor tithe of fruit trees, that beare but one yeere in three. And if tame elephants (for cariage) were vsed as commonly here as in some other countries (which go with yong two or three yeeres together) by like reason no tithe of thē nei∣ther might at all be demanded, because euerie of these are such, as bring no profite from yeere to yeere.

Where also is added, that this yeerely profite must haue had his continuance by the whole memorie of man: hereby would be cut of all tithes of grounds newly stubbed vp & turned to good medow, pasture or arable, from great timber trees. Likewise all tithes of any new sets and commodities; as of sundry rootes, artichocks, osiers, woad, rape-seed, hoppes, French wheate, and such like, being in most places but of late knowledge and small continuance, were wholy taken away. And so were all tithes of grounds lately left dry by the sea, or by fresh waters, or wonne by the industrie of man.

The same Note further reporteth, that the Iustices opiniō then was: that for tithes of pit-coles, quarries and other like, by no means a Consultation should be granted: because Parsons tooke tithe of the blades that grew on the ground ouer them, & therefore they should not take tithe of the coles. This opinion (as it seemeth to me) that very Note misliketh in these words: But (saith he) by the like reason, a man ought not to pay tithe of agistment, because hee yeeldeth tithe for the beasts that feed in his pasture. But I doe not well conceiue the trueth of that which he here insinuateth: as if Agistment money were to be paied for the herbage of the same beasts, which by their calfe, lambe, wooll or milke, doe bring commoditie to the Church. Yet if he meane that tithe of Agistment money is to be paid for barren cattel, though they depasture in the same pasture where fruitful cattel do, & at the same time; then doeth he come neerer to the purpose of confuting that reason, which implieth thus much, that seueral kinds of commodities in one yere, arising out of one ground, should yeeld but one kind of tithe. For if this were true, then where tithe of haie hath bene paied, nothing should be yeelded for the after-math (commonly being halfe the value of the haie) though it bee depastured with cattell,

which bring no commoditie to the church: then also might not the vicar of Tenham in Kent, haue tithes (as he hath) of the fruit of the great Orchard in Sommer, because he had tithe loppings of the trees in Winter, amounting to sundry loades of fagot. And then also should not the Church haue tithe fruite of such great yong Orchards turned from tillage, as still yeeld tithe corne, or haie growing vnder the trees for sundry yeeres together.

If to these obiections it be said, y^t there is great diuersitie; because these examples do in deed import seuerall fruits & commodities to be taken; yet either at diuers times of the yeere, or else arising out of seuerall parts of the ground: for replie I say, that the like may be also said of colepits & quarries, for so much of the groūd aboue as is digged, beareth at that time neither corne nor grasse. And albeit for coles (when men be come to a certaine veine and depth) they vse to dig side-long, leauing great pillars to support the earth frō falling: yet is it not the self same part of the ground below where they dig, that beareth grasse or corne aboue, and therefore herein no diuersitie. And with like reason might tithe of the seed of Woad be denied, because tithe of the leaues was a∣fore paied: or tithes of Saffron heads, because tithe Saffron was paied the same yeere. Yea, if this note were assured lawe, then should no tithes be paied of any Minerals: as of lead, tinne, cop∣per, quicksiluer, &c. how it goeth in Cornewall, Deuonshire, and at Mendiffe hils in Somerset shire for tinne and lead, I haue not en∣quired. but I am assured, that in the Peake in Darbishire, tithe lead is the chiefest part of the Ministers liuing, in such places where it is gotten. Which I feare me would hardlie bee yeelded (as it hath bene by time immemoriall) onely of pure good will; if the lawe in that point were against the Ministers. But the dis∣cussing and iudgement of these doubtes, I must referre who∣lie to the reuerend Iudges, because they doe surpasse my slender skill.

It seemeth also by the booke of Entrees, that 1 1.170 a prohibition li∣eth, where tithes of corne and wood bee sued for in an Ecclesiasticall Court, if an action of trespasse bee thereupon depending afore at the Common lawe. De hoc quaere. 2 1.171 Likewise if a man couenant to pay or set out his tithes truely, he must be sued in a Temporall Court vpon this acte of couenant, and not else where. Furthermore, tithes of

corne, &c. may be considered either before they be seuered from the nine parts, in which 1 1.172 case, if all the corne be caried away (it is said) the suite lieth in a spirituall Court: Or after seuerance; & then to carie the tithe away, after seuerance from the nine parts; is said to be a trespasse determinable at the Common law. But I finde (to mine vnderstanding) great opinion against this: as 2 1.173 first Bracton, where he saith: Cùm res fuerint decimatae, fiunt de Laico catallo res spirituales. For decimare must needes be to tithe and set out from the nine parts. Secondarily the opinion 3 1.174 of the whole Court. For vpon an action of trespasse brought by a Par∣son against the Vicar, the Vicar iustified, that he tooke them for tithes being seuered from the nine parts; and that he and his predecessours, time out of minde, had prescribed them to be due: whereupon the Iudges (ex officio, without petition of either partie) dismissed this plea, vnto the Spirituall court; as not perteining to their iurisdicti∣on. Soluat Apollo. But it seemeth to me, that the 4 1.175 statutes for tithes do now stint this strife, and makes both cases to be Eccle∣siasticall. Vpon 5 1.176 corne carried away, whereupon it comes to be tried betwixt two Parsons of Churches, who hath right to the tithes; this triall belongeth to the spirituall Court, and is not vpon action of tre∣spasse, to be brought to the Common law. And so it was adiudged; albeit that the defendant there said, that his Parsonage was then in lease. But if they 6 1.177 had ioyned issue, whether the place whence the sheaues were taken, were in the one Parish or the other, then it should haue bene tried at the Common law, because 7 1.178 the bounds of a Parish shall be tried by the Countrey, as is there said.

Yet in a litle Treatise 8 1.179 printed by Thomas Godfrey in K. Hen∣rie the eights time, it is testified, that it hath bene holden in times past &c. that the diuision and distinction of parish from parish, is a thing so meere spirituall, that no man may doe it but the Clergie. which asseueration though he disallow, if the Clergie claime it by any immediate power giuen them from God: yet (saith he) of these and of diuers other things; it is no doubt, but they haue holden plea in times past; rather by a custome and by a sufferance of princes; then for that they be meere spirituall: or that they of the Clergie, had authoritie so to do, by any immediate power of the law of God. So that he alloweth diuision and distinction of parishes, to haue bene (of olde) of ecclesiasticall conusance; though to be deriued from

the kings prerogotiue royall. And it 1 1.180 appeareth by a constitution prouinciall made in a Synode at Lambhith holden vnder Boniface then Archbishop of Canterburie, in the yeere of Christ 1260, that the Clergie then (vndoubtedly) held, and so practiced, touching limites parochiarum; that they meerely belonged to the court ecclesiasticall. And Lindwood comming 200 yeeres or thereabout, after him, in his Commentaries or Glosses therup∣on; maketh no doubt of it, but onely quoteth Canon law for it.

If a Parson grant to 2 1.181 me by deed all the tithes of his benefice, and yet afterward he sueth me in a Court Christian, for the tithes of mine owne landes, whereupon I bring mine action of couenant in the Tem∣porall Court; neuerthelesse I shall not haue a prohibition, because I may plead that matter in barre in the Ecolesiasticall court. Danbie and Chok.

But if a rent reserued vpon a lease of tithes or offerings, be 3 1.182 sued for in a Spirituall court, there lieth a prohibition, for this is a Lay rent: and so Bracton 4 1.183 holdeth in the place before alleged agree∣able to the statute of Articuli Cleri. It is holden, 5 1.184 that if a Pa∣tron hauing an Indenture to be quit of certeine tithes, be sued in a Court Christian for those tithes, hee shall haue a prohibition. But aske whether (this precedent of the Register notwithstanding) hee may not haue a consultation by the opinion of Danbie and Chok, afore recited: and the rather in this case then in the for∣mer, by how much it is more to be presumed to be a Symoniacall compact against him, that is Patron. For if it be not Symonia∣call, he may plead this couenant in barre, in a Court ecclesiasticall, as well as in the former case.

The competencie of the Court for suite of tithes, dependeth also much vpon the consideration of the parties, that contend for them. For 6 1.185 in an action of trespasse brought at the Common law, the defendant said, that the corne, whereof the plaintife complaineth, was growing in D. which is parcell of M. where he is Parson, and thereby he claimeth: And because in the pleadings they were both named Parsons; the opinion of the Court was; that it was out of their iurisdiction. In another 7 1.186 action of trespasse brought against a Lay man that claimed by lease from another Parson (notwithstanding that by M. 44. Ed. 3. it was alleged, that the Kings Bench in such case shall haue iurisdiction, because it is betweene a Lay man and a

Parson, and that by Articuli Cleri (by the contract) transcunt deci∣mae in catalla: yet because it was of tithes, which they might reconer in Court Christian, Gascoigne held; that the Temporall court ought to be out of iurisdiction: for (said he) though it had bin so done afore, yet it shall not be done so by vs here. And of the same opinion was Moile, in another like action of trespasse: that, 1 1.187 betweene a Par∣son and a Fermer of another Parson, action for tithes lies in a Spiri∣tuall court, because the Fermer claimes the tithes as due to himselfe during his terme, which none gainsaid.

But vpon the former of these two last cases, Brooke 2 1.188 doth thus collect: that, it thereby appeareth cleerely, that vpon contention for tithes betweene a Parson & a Lay seruant of another Parson, the Spi∣rituall court shall haue iurisdiction. For (saith he) the seruant doth claime to the vse of his Maister, and not to his owne vse, vpon any Lay contract. Yet how this collection may stand together, with other iudgements else-where reported to be giuen, may mooue some doubt: For, in 3 1.189 an action of trespasse brought by a Parson a∣gainst the seruant of another Parson: the seruant iustified for tithes of his Maister, and thereupon demanded iudgement, whether that Court would holde plea thereof: and it was not allowed, because the said defendant was a Lay man. Likewise, 4 1.190 it an action of trespasse brought by a Vicar for corne, taken by the seruant of another Par∣son, that claimed them as tithes of his Master; and the plaintife claimed them as tithes due to his Vicarage: it was adiudged by three, that the Court temporall had iurisdiction, because the plaintife had none action against the seruant, in a Court spirituall, at least as is there affirmed.

Markham seemeth to be of opinion, that if any 5 1.191 part of right of tithes do come in debate betweene two Patrons, that there the court Ecclesiasticall can not holde plea. And if 6 1.192 the Lord of a Mannour claime tithes of certeine landes in D. to finde a Chapleine or Curate in D. therewith, and the Parishioners there claime those tithes like∣wise for the selfe same end: It was deliuered for law, that the Lay Court should haue iurisdiction betweene them, and not the Spirituall Court.

The last cause of drawing an action for spoliation of tithes from a Court ecclesiasticall, that I finde, is: where the tithes in de∣mand, do amount to a fourth part of the yerely commodity of the

whole benefice: because hereby, the right of Patronage, may be touched or preiudiced; which right of Patronage is to be hand∣led in a court Temporall onely, and by no meanes in Ecclesiasti∣call. For so is it testified by 1 1.193 Lindwood himselfe, to be the olde custome of the Realme; and therefore the Common law of the land. But in another place he seemeth to be of opinion, that (this notwithstanding) no preiudice towards the Patronage can grow, though the suite for all the whole tithes and oblations should be prosecuted in court Ecclesiasticall. For (saith he) 2 1.194 the right of Patronage is founded vpon one of these three, viz. building, founding, or endowing of a Church. So that the right of Patronage doth no way respect tithes or oblations comming to the Church, but rather the building of it, the ground whereon it is situate, or the en∣dowment (as of glebe &c.) assigned vnto it. This he writeth saluo iudicio meliori: and vnder the same reseruation, I do holde, that where a great part of tithes is (by suite) euicted from one Church vnto another; the very patronage it selfe is much preiudiced and endamaged. For if the Patron happen to sell it, the lesse value the benefice is of, the lesse recompence shall he haue for it. Besides, if 3 1.195 a pension be assigned out of the benefice vnto the Patron (as it may be 4 1.196 vpon the foundation) the more the bene∣fice is empaired, the more hard will the pension be to recouer. Lastly, for somuch as the Clerke presented is (by law) bound to relieue his Patron fallen in decay: in this respect, great preiudice groweth to the Patron, when a fourth or greater part of the be∣nefice is euicted.

That which Markham held (as is aforesaid) viz. that if any part of right of tithes doe come in debate betwixt two Patrons, there the Court ecclesiasticall could not holde plea: seemeth to be borro∣wed from a consultation in the 5 1.197 Register in these words, viz. we being not willing to haue any thing derogated from iurisdiction eccle∣siasticall, do signifie, that you may proceed, according to the course of the ecclesiasticall court, in the plea aforesaid; so as the action reach but vnto spoliation of tithes; and not to the aduowson or right of Pa∣tronage, of any part of the Church: sauing that he speaketh of the right of any part of the tithes, and the Register goeth to the right of Patronage it selfe, of any part of the Church.

But where 6 1.198 a fourth or greater part of tithes &c. is not in de∣maunde

betwixt two Parsons of Churches, there the Plea goeth to the ecclesiasticall court. The 1 1.199 booke of Liberties of the Clergie, hereof writeth thus: one Parson of a Church may sue another in case of spoliation or taking of tithes or pension, in court Christian: so that the matter in demaund, amount not to a fourth part of the value of the Church; by reason thereby the right of Patronage seemeth to come in question. but if they be both of one mans Patronage, they may be sued there, to what value soeuer the thing demaunded shall amount vnto.

That Pensions out of Churches, are demaundable (not onely by statute, but also at the common lawe) in a court ecclesiasticall: is made plaine, by 2 1.200 two consultations in the Register, and by other bookes of law. But Goodall further addeth: that for a pension, there lieth also a writte of Annuity at the common lawe; so that it is at the plaintifes election, where to sue. but if there he doe declare, vpon the prescription; and after he sue in the spirituall court, by the name of a Pension; the other (it seemeth) may then haue a prohibition.

For Mortuaries, that they at the common lawe be of ecclesiasti∣call conisance, reade the two consultations in the Register, and the other which 3 1.201 be here quoted. And likewise 4 1.202 for oblations detai∣ned; which ought (saith 5 1.203 Goodall) to be paid at their vsuall dayes.

Another thing due to the Minister, whereby also he hath a part of maintenance, is demaundable and determinable in an ecclesiasticall Court, viz. the places of buriall, and the Churchyard.

Touching the first: A Parson, to an 6 1.204 assise brought against him for a house, did pleade that he was Parson of P. and that to be parcell of his Church, by time immemoriall, and that there had bin burying of dead bodies: whereupon Persey held opinion, that the court tempo∣rall, ought not to take conusance thereof. For the second; 7 1.205 it is a good plea against the iurisdiction of the temporall court, to pleade, that the land is his Churchyard.

The true reason hereof I take to be alledged by Bracton (be∣cause it is dedicated and consecrated to God) where thus he wri∣teth: 8 1.206 Negocium terminabitur in foro seculari, si de laico feodo aga∣tur, nisi fuerit dedicatum & Deo sacratum: sic enim res efficietur sa∣cra: hoc autem diet non potest, de re in liberam & perpetuam elee∣mosynam data. For though a thing be giuen in Francke almoigne, to an ecclesiasticall person; yet it remaineth of lay fee still, and is not said to be consecrated to God. Therfore 9 1.207 a trespasse done vpon

a Parsons glebe land (which is a francke tenement) cannot be tried in a spirituall court. But it seemeth that in a trespasse done in a Churchyard, it is otherwise. for if a 1 1.208 man take trees that are growing in a Churchyard, the Parson may sue for them in Court Christian. Sed quaere.

And that matters of buriall doe belong to conusance ecclesia∣sticall, is declared by a consultation in the 2 1.209 Register very plainely.

CHAP. VII. Ofright to haue a Curate: and of contributions to reparations, and to other things required in Churches.

NOwe when a Parish or Hamlet hath right to haue a Curate found in their Chappell, to say them diuine seruice: If this be denied them, and no circumstance otherwise be incident there∣to, to drawe it to the Common lawe, it should seeme by all reason (of his owne nature) to be a matter belonging to the conusance of a court ecclesiasticall, ac∣cordingly as alwayes (without impeachment) it hath bin vsed. Yet I finde in the bookes of Common lawe, that 3 1.210 an action of the case was mainteinable for not saying diuine seruice, albeit it was there confessed, to be a spirituall matter. What the circumstances and cause thereof was, that it was so ruled in that case, Quaere.

It appeareth by the 4 1.211 Register; that a prohibition being brought vpon a suite in court ecclesiasticall, for withholding a Chauntery, a consultation was after graunted: whereby is affirmed; that pro sub∣tractione Cantariae, & debita punitione pro huiusmodi subtractione, the suite belongeth to a court ecclesiasticall: and the like (there∣fore) must needes be thought of a Chaplaine or Curate, not found to say diuine seruice, where it ought to be either by composition, or by prescription.

But that parishioners ought to be contributories, and may be ci∣ted in a cause of contribution towards the reparations of the body of the Church (termed Nauis ecclesiae) and to the charges of buy∣ing and furnishing other vtensiles, ornaments, and bookes, re∣quired (by lawe) to be bought of the common charge; doth ap∣peare partly by the Register, and partly by Fitzherbert in his noua

natura breuium, who doeth gather it thence. For if (saith he) a 1 1.212 Bishop doe cite any of the parishioners of a Church, to be contributo∣rie to the reparations of the parish Church, or of any Chappell annexed to it: if the partie sue a prohibition directed to the Bishop, surmising that he is impleaded (touching lay fee) in court Christian; the Bishop shall haue a consultation vpon this matter shewed in the Chancerie, on his behalfe. And partly also by the Iniunctions which were set out by the Queenes Maiestie in the first yeere of her reigne, and are vnder the great seale of England, for better record of the matter, her highnesse being thereunto authorised by acte of Parliament. For in 2 1.213 these are conteined, sundry vtensiles, ornaments, bookes, and other things, that by the common cost of euery Parish shal∣be prouided, and from time to time supplied: and whether they be wanting or no, is to be enquired by ecclesiastical Iudges; and the obseruation of the Iniunctions is by them to be vrged (against those, that shall infringe any of them) by processes and censures ecclesiasticall, according to the course of that lawe.

And herein the Iniunctions followe but the Cōmon law. For 3 1.214 if a terre-tenant holding land that hath vsually paid for such tene∣ment a pound of waxe, or such like, vnto the Church, doe with∣hold it; the Church-wardens may sue him for it, in a court eccles.

Also 4 1.215 if a man that withholdeth Church goods, doe by his last will enioyne his executours to make deliuerance; any of the Parish may sue the executours for them in court ecclesiasticall.

For proceeding ecclesiastically against refusers to contribute vnto the reparations of the body of the Church, there remaineth a iudgement in a consultation 5 1.216 (recorded in the Register) to this effect, viz. vobis significamus, quod super reparatione & emendatione defectuum corporis ecclesiae (iuxta consuetudinem approbatam) faci∣enda: procedere poteritis, & ea facere, quae ad forum ecclesiasticum noueritis pertinere, dicta prohibitione non obstante. And by reason of defectes in reparations of a Church, money it selfe may lawfully be sued for, in a court ecclesiastical, as 6 1.217 appeareth by another con∣sultatiō in the Register. And so is it also prouided by statute (in this behalfe) amongst other things, viz. 7 1.218 Prelates may punish for lea∣uing Churchyards vnclosed, or for that the Church is vncouered, or not conuentently decked: in which cases, none other penance can be en∣ioyned, but pecuniarie.

CHAP. VIII. Proofes in generall, that sundry crimes and offences are punishable by ecclesiasticall Iurisdiction: and namely, idolatrie, heresie, periurie, or laesio fidei, and howe farre the last of these is there to be corre∣cted: also of disturbance of diuine seruice, or not frequenting of it, and neglect of the Sacraments.

LAstly doe followe the testimonies of the lawes of the Realme for proofe, that many crimes also and offences are punishable by iurisdiction eccle∣siasticall: and first in generall, then in particular, for sundry of them: The King writ thus to his Iudges: 1 1.219 vse your selues circumspectly in all matters concerning the Bishop of Norwich & his Clergie, not punishing them, if they holde plea in court Christian of such things as be meerely spiri∣tuall, that is to wit, of penance enioyned for mortall sinne, &c.

In hospitals 2 1.220 that be of any others foundation then the Kings, it is enacted that Ordinaries shall enquire of the foundation, erection and gouernance of them, and of all other matters necessary in that behalfe: and thereupon make thereof correction and reformation after the lawes of holy Church, as to them belongeth.

In the statute of Citation, it is permitted, that a man may 3 1.221 be cited out of the Dioeces where he dwelleth; when some spirituall offence or cause is committed and done, or omitted, neglected, or fore∣slowed to be done by some, hauing spirituall iurisdiction.

In a statute of K. Edward the 6. 4 1.222 Causes of correction be recko∣ned as ecclesiasticall: which statute though it be repealed (for the principall purport there of being touching Ordinaries seales, and names not to be vsed any more, in their citations and processes) yet it bringeth sufficient euidence, that sundry matters of corre∣ction be of ecclesiasticall iurisdiction. And so Bracton testifieth, that it was vsed and holden in his time: for he saith, In 5 1.223 causis spiritualibus vel spiritualitati annexis, vt si propeccato vel transgres∣sione fuerit poenitentia iniungenda, iudex ecclesiasticus habet cogni∣tionem, quia non pertinet ad regem iniungere poenitentias, nec ad iudicem Secularem.

The sundry consultations set downe in the Register do shewe; that whē the proceeding is ad correctionem animae, for some sinne

not punishable in the Temporall Court; the conisance is Eccle∣siasticall. One 1 1.224 example shall suffice: viz. Nolumus, cognitionem ecclesiasticam, in ijs quae ad forum ecclesiae, & maximè ad correctio∣nem animae pertinent, contra iustitiam impedire.

But to descend to more particulars, and first concerning those which are contrary Pietati in Deum, That idolatrie is punishable by Iurisdiction ecclesiasticall; appeareth by the statute 2 1.225 De ex∣communicato capiendo, afore alleaged: and touching Heresie or errour in matter of Religion or doctrine (besides that Statute) others doe also shew, how it is inquirable, and punishable by Iu∣risdiction ecclesiasticall. For both the Preamble and Statute of Henrie the fourth, and the Statute of Henry the fift touching He∣resies, doe plainely testifie hereof. In the former whereof is said: 3 1.226 that the Dioecesans of the Realme, cannot by their Iurisdiction Spi∣rituall, without ayde of the Royall Maiestie, sufficiently correct nor restreine the malice of Heretickes; because they goe from Dioecesse to Dioecesse, and willnot appeare before the Dioecesans, but contemne the keyes of the Church, and censures of the same, &c. And in the 4 1.227 later: that the conusance of Heresie, errours and lollardies, belon∣geth to Iudges of holy Church, and not to secular Iudges. And like∣wise by a later 5 1.228 Statute then those, whereby it was prouided; that euery person being presented or indicted of any Heresie, or duely accused or detected thereof by two lawfull witnesses at the least, to any Ordinaries, &c. might by them bee proceeded against, &c. and none otherwise.

Neither is it materiall, though the said three statutes do stand repealed; for they shew (neuerthelesse) touching Heresie; what then was, and now is still at the Common Lawe. which offence to be still punishable at the Common Lawe, doeth also more plaine∣ly appeare by the statute of Citations, being stil in force. For there it is prouided, that (the said statute notwithstanding) 6 1.229 the Arch∣bishop may cite and summon any person of his prouince for cause of Heresie, if the immediate Ordinarie doe consent, or doe not his due∣tie: and that the prerogatiue of the Archbishop of Canterburie shall not be preiudiced by that Statute.

The like is testified of breach of an oathe, and of periurie in an ecclesiasticall Court or matter. For after that (amongst diuers other matters) in the statute of 7 1.230 Circumspectè agatis, breache of an

othe is mentioned, it is thus in the ende added: In all cases afore rehearsed, the Spiritual Iudge shall haue power to take knowledge, not∣withstanding the kings prohibition. And by the aforesaide 1 1.231 Statute De excommunicato capiendo (among sundry other crimes and of∣fences) Periurie in the Ecclesiasticall Court, is reckoned to be of Ecclesiasticall Iurisdiction. And so is it by a 2 1.232 prouiso in the statute against periurie, made at the same time.

By bookes of the Common Lawe, I finde two cases, wherein breach of othe called laesio fidei, in an othe voluntarily taken, whe∣ther priuately, or before an Ecclesiasticall Iudge (as was in those dayes much vsed) is to be determined in the Temporall, and not in the Ecclesiasticall Court. The one is such as fell out in the case of the vicar of Saltash; who had made an Obligation, and had bound it by an othe (that he would not goe against it) before the Popes collector in England; who pretended (though vniustly) some Iurisdiction Ecclesiasticall in himselfe. Against which othe, when the Uicar was supposed to deale, and was therefore con∣uented before the said Collector; there went foorth a prohibition, and no consultation could be obteined. For (said Hankeford) a 3 1.233 man shall not be sued before an Ordinarie for periurie, but where the principall matter whereupon the periurie grew, was a matter Spiritu∣all or touching it: and alledged this reason: for else, if the periurie should be found against him; hee should be straight awarded there, to performe the othe whereupon the periurie grewe, and where of hee is attainted: and so (though it were to pay debts) he should be there com∣pelled to pay them; and hereby, Lay contracts should be determined there, contrary to the Kings royaltie.

And againe, the same man, in the 4 1.234 same Kings dayes, (after∣ward) reporteth; that a man had sworne to make a feofment of his land; and because hee did it not, hee was vexed by the partie, in the Court Christian, as for the periurie: and because such suite shall be as a compulsion to performe a thing touching land and inheritance; it was adiudged in such maner, as if he had sued for the principall, in Court Christian.

And the effect 5 1.235 of both these cases is rehearsed (with the like reason) by Fortescue in the Eschequer Chamber; and was ex∣pressely graunted by some, and gainesaide by none. There∣fore 6 1.236 if a man and his wife doe aliene the right of his wife, and the

wife is sworne that shee will not sue the Cui in vita: and yet after the death of her husband brings the Writte, and the other sueth her in Court Christian for breache of her othe, shee shall haue her pro∣hibition.

Agreeable to which, is that iudgement long agone, that 1 1.237 if a man sue another in Court Christian pro laesione fidei, which othe a∣rose vpon a temporall contract or cause, a prohibition lieth. And 2 1.238 Bra∣cton that writ in that time, saith thus: In placito quod pertinet ad co∣ronam & dignitatem regis, etsi fides fuerit apposita in contractu, non propter hoc pertinebit cognitio super principali ad iudicium Ecclesia∣sticum. Hereof he allegeth a reason in another place of the same booke, 3 1.239 Iurisdictionem regiam non mutat fidei interpositio, sacra∣mentum praestitum, nec spontanea renuntiatio partium.

To which resolutions accordeth this booke case: In an 4 1.240 at∣tachment vpon a prohibition, where the plaintife was sued in Court Christian pro laesione fidei, in that hee had sworne to pay fifteene pounds, and did not: Brian held, that when the faith is made touching a matter Spirituall, then the breach there of shalbe punished in a Court Spirituall: (as if one should sweare to pay me his tithes truely, or a woman to marry with me) but if the faith be made vpon a mat∣ter Temporall, then the breache of faith shall not be punished there: because they will not assoile him (if he be conuict) till some Temporall duetie be contented and payed.

A later Treatise of the Common Lawe made in King Henry 8. his time, doth touche this 5 1.241 point thus, viz. In most cases of per∣iurie, the King and his Courtes haue had the punishment, and in some cases the Clergie in their Courtes, haue had the punishment, by the custome of the Realme onely: viz. such as haue risen vpon Spiri∣tuall causes.

Another case where the Ecclesiastical Law shall not haue co∣nusance of the breach of an othe voluntarily taken, is when there lieth an action for the matter (whereof the othe was confirmato∣rie) at the Common Lawe. therefore it was holden by Brian 6 1.242 not long after; that if a man sweare to pay twentie pounds, that he oweth, at a certaine time, and pay it not; and for the periurie be brought in∣to the Spiritual Court, there shall lie a prohibition: because (saith he) an action of debt lieth at the Common Lawe.

I make this a seueral cause and reason from the former, because

an othe may grow vpon a Temporall matter, (which was the for∣mer cause) and yet none action lie for it. And if I promise with∣out any consideration to giue you twentie pounds, and binde it with a voluntarie othe, it seemeth the Common Lawe will holde it still but pro nudo pacto, and so giue none action at all.

But some occasion is giuen vnto me to thinke, that courts Ec∣clesiasticall, de facto (howsoeuer de iure) helde plea of breach of othe and of faith falsified (which 1 1.243 amounteth to asmuch in some respects, as breach of a corporall othe) euen when such othe or faith voluntarie taken, was for confirming of a matter Tempo∣rall. For this I finde not onely before the Writ was framed de re∣cognitionibus per sacrament a non faciendis, de catallis & debitis, quae non sunt de testamento vel matrimonio: but afterwarde also, and that aswel by iudgement, as by opinions deliuered and reported for booke cases: albeit with certaine cautions; which shall (by the way) be touched.

First then, that Ecclesiastical Courtes handled this cause long afore that Writte was deuised; I finde in a 2 1.244 Prouinciall Constitu∣tion made at a Synode holden at Lambhith vnder Boniface then Archbishop of Canterburie, in the time of King Henrie the third, Anno Christi 1260. which constitution I doe alleadge, not as being of force now, for the purport thereof (because it aimeth at the bridling of the Kings Prerogatiue, and of his Temporall Courtes) but thereby (historically) to shewe, what was then held and practised vsually.

The effect of it (to this purpose) is: that whereas Prelats doe take Conisance of sinnes and of misdemeanours of such as be vnder their Iurisdiction; as of Periurie, or breache of faith, of Sa∣criledge, of violation of Church liberties, (for infringing of which, euen by the Kings Charter graunted to the Church of England, such disturbers doe fall into Excommunication ipso facto) and of such like causes which be meerely of Ecclesiastical Conisance: yet are prohibitions directed foorth out of the Kings Court; and Iudges Ecclesiasticall are called thither to answere; as if they delt not concerning Periurie and breach of faith; but suggesting that they deale touching chattels. Therefore a little after, is added this, viz. 3 1.245 And if perhaps the King in his attachements, prohi∣bitions, and summons shall make mention, not of Tithes, but of

right of Patronage: not of faith falsified or periury, but of Chattelles: not of sacrilege or disturbance of ecclesiasticall liberties, but of some trespasse pretended to be done by his subiects or bailiffes, the •…•…edresse whereof belongeth vnto him: then let the Prelates aforesaid make knowen vnto him; that they holde no plea, neither intend to do, con∣cerning right of Patronage, or chattelles, or any other things belong∣ing to his court: but concerning tithes, sinnes, and other meere spiri∣tuall matters, belonging to their office and iurisdiction, and tonching the safety of mens soules &c. So that the trueth of such allegation being manifested to the king, they thought the plea sound and sufficient, to obteinea discharge from such prohibitions, &c. if they were in those respects onely granted.

Yea, and Lindwood, who writ anno 1423, and long after that writ was framed (who also by reason he was Officiall principall of Canterbury or Deane of the Arches, had good experience in these causes) maketh no 1 1.246 doubt; but that matter of periury or of breach of faith, arising vpon what cause soeuer, so farre foorth as it con∣cerneth doubt, whether such oath were lawfull or not, and doe binde in conscience, or not; is of ecclesiasticall conisance. And therefore teacheth how the libell in that case is to be framed, that no cause of prohibition be giuen, viz. the partie hath damna∣bly broken his oath made for payment of so much money, vnlawfully pretending, that hee is not thereby bound or tied. The statute Cir∣cumspecte agatis saith: defamation shalbe tried in a Spirituall court when money is not demanded, but a thing done for punishment of the sinne, and likewise for breaking an oath; without distinction, whe∣ther it arose of a temporall cause or not.

Since the said writ, we haue a iudgement in the very point in the time 2 1.247 of king Edward the third. For if a man demand a debt of tenne pounds before the Ordinarie, for that the defendant plight his faith to pay it &c. and hath not payd it, but broken his faith: the Or∣dinarie cannot enioyne him to pay the debt for sauegard of his faith; and if he do, he doth it against the kings prohibition. But he ought to enioyne him other corporall penance, except the partie will willingly redeeme it. For so Fitzherbert 3 1.248 readeth those last wordes of ex∣ception, more truely then my booke of Assises (as it is printed) carying indeed therein no sense at all. The like appeareth in the reigne of king Henrie the sixt: for there it 4 1.249 was holden, that if a

man buy an horse of me, and sweare vpon the Euangelists to pay me ten pounds for him such a day and pay it not: I shall haue action of debt at the Common law, and also a citation pro laesione fidei at the Spiritu∣all law, and shall not therein offend the Common law, because they are diuers things.

As for opinions afterward, we finde it was held by Brian and Litleton in the time of K. Edward the fourth, none there gainsay∣ing it: that 1 1.250 in laesione fidei arising vp•…•… a temporall matter, the Spi∣rituall court might punish it ex officio, but not at the suite of the party.

To the same purpose also Mordant said in the time of K. Hen∣rie the seuenth, 2 1.251 that if a man be sued in a Court ecclesiasticall by a party pro laesione fidei, in not paying a summe of money promised, there shall lie a prohibition; but if the Iudge ecclesiasticall shall do it ex officio, then no prohibition shall lie. which no man gainsaid or impugned. These two opinions, lest they should seeme to crosse the former iudgement in the booke of assises, and the other booke case of 34. H. 6. (both which admit a party to sue in the Court ecclesiasticall) do seeme to me only therefore to reiect a partie, and to require proceeding ex officio Iudicis: because it was pre∣sumed; that a party would not prosecute, to haue the sinne alone punished; but rather for satisfaction of the thing promised to him. Yet this in truth may be otherwise by the law ecclesiasticall. So that vpon all that which hath herein bin last spoken, it might probably seeme to some; that punishment of periury or breach of faith, euen arising vpon a temporall cause, should be still (by the Common law) of ecclesiasticall conisance: so that penance for the sinne be but enioyned, and no temporall amends required. which doubt is to be referred to the reuerend Iudges resolutions.

That disturbance of diuine seruice is also punishable by iurisdi∣ction ecclesiasticall, the statute thereof made, in the time 3 1.252 of Q. Marie, doth prooue: for though it do prouide punishment tem∣porall therefore; yet it reserueth the iurisdiction that Ordinaries had, for punishment thereof by lawes ecclesiasticall. Not to fre∣quent or come to diuine seruice at times appointed, is declared to be subiect to proceeding and censures ecclesiasticall, aswell as to other punishments, by the statute 4 1.253 for Vniformitie of Com∣mon prayer: and so is both that, and neglect of the Sacraments; by the statute De excommunicato capiendo, heeretofore often

alleged, prooued to be of Ecclesiasticall conusance.

Long afore that statute, vpon a prohibition brought, a consul∣tation 1 1.254 was granted: whereby the Ordinaries proceeding ex of∣ficio, against one that refused to receiue the Communion, is allow∣ed and warranted. And so doth the litle 2 1.255 Treatise of the liberties of the Clergie, report this offence to be of Ecclesiasticall conusance. Thus much touching offences ecclesiasticall, being referred to impietie towards God.

CHAP. IX. That simony, vsury, defamation or slander, beating of a Clerke, sacri∣lege, brauling or fighting in Church or Churchyard, dilapidations, or waste of an Ecclesiasticall liuing, and all incontinencie, are pu∣nishable by Ecclesiasticall authority, and how farre.

AMongst such crimes as be offences against iu∣stice, I do place simony first; as participating also not a litle with the former sort, yet rightly sor∣ted hither: because it is, as a buying and selling of such things, as be not (in trueth) res mancipi (as the olde Romanes spake) things lying not in commerce betweene men to be bought and solde. This fault the said 3 1.256 statute De excommunicato capiendo, sheweth to be punisha∣ble by iurisdiction ecclesiasticall.

That vsurie is likewise, it doth appeare by authoritie of diuers Parliaments. The king and his 4 1.257 shall haue the conusance of the v∣surers dead, and the Ordinaries of holy church shall haue the conu∣sance of vsurers on liue, as to them apperteineth, to make compulsion by the censures of holy church for the sinne, and to make restitution of the vsuries taken, against the lawes of holy church.

By annother later act made against vsurie, 5 1.258 there are reser∣ued to the spiritnall iurisdiction, their lawfull punishments in euery cause of vsury. And so is it expresly also mentioned in the afore∣named statute De excommunicato capiendo: but this iurisdiction is since somewhat restreined, because 6 1.259 vsurie can not now ther∣by be punished nor corrected, except it reach aboue the rate of tenne in the hundred by yere.

By a consultation in the 7 1.260 Register, which was granted in allow∣ance of proceeding against one for his vsury, it is thus sayd, in

this behalfe: Quta in articulis Cleri continetur, quòd si Praelati imponant alicui poenitentiam pro peccato, prohibitioni nostrae non est locus, vobis significamus quòd ad correctionem animae praefati S. in hac parte (viz. pro vsura) dum tamen nihil aliud attentetis quod cedat in laesionem dignitatis nostrae, in curia Christianitatis procedere poteritis, prohibitione nostra non obstante. But this fault & sinne of Vsurie is mixti fori: that is to say, in some respect is of temporall, & in other regard of eccllesiasticall conisance, not only by the sta∣tutes of the Realme (as you haue heard) but also euen by the law ciuill, albeit in a diuers sort. For in countreyes where that law hath place, if it be 1 1.261 called in question, whether a contract be v∣surarious or not, the court ecclesiasticall doth determine this: but for to pronounce such a contract void and to execute that sen∣tence, belongeth to a temporall court.

For cause of defamation, it is 2 1.262 recorded by an olde statute, that it is alreadie granted, it shall be tried in a Spirituall court. And a∣gaine: In 3 1.263 defamation, prelates shall correct by penance corporall, the kings prohibition notwithstanding: but if the offender will redeeme the penance with money, the prelate may freely receiue the money, though the kings prohibition be shewed.

By the preamble also of the statute for 4 1.264 citations, it is plainely argued, that defamations belong to the comsance of iurisdiction ecclesiasticall, so they be duely and according to law prosecuted. Also by the bookes of Common law it appeareth throughout the arguments made in the great case of prohibition, in the time of 5 1.265 Henry the seuenth, that the suite for defamation belongeth to ecclesiasticall iurisdiction. for there, aswell by those Sergeants that stood against the consultation, as the others, and by the Iudges al∣so that granted the consultation (the originall cause being defa∣mation) it is yeelded, that the punishment of slander or defamation, is belonging to the Spirituall law.

Whereas there is a Prouinciall constitution, that decreeth a slanderer or defamer of another, to be ipso facto excommunicate, this is allowed by 6 1.266 consultation in the Register, vnto a court ec∣clesiasticall. And it is there added to this effect, viz. Si in causa diffamationis ad poenam canonicam imponendam agatur, tunc vlte∣rius licitè facere poteritis, quod ad forum ecclesiae noueritis pertinere, prohibitione nostra non obstante.

One that sued 1 1.267 another in a cause of diffamation in court ec∣clesiasticall, was there condemned in expenses to the defendant, who was absolued, for that the plaintife failed in his proofes. The plaintife to hinder the execution of the sentence, and to escape without expenses, procured a prohibition. Yet vpon debating of the matter; a Consultation was herein also awarded. So that wee see, both the Principall and the Accessarie cause, to be of ecclesia∣sticall conisance.

If (saieth 2 1.268 the Treatise of the Liberties of the Clergie) a man defame or publish one for false, an adulterer or vsurer, he may be sued in court ecclesiasticall. And another Treatise (published also in king Henry the 8. time by a common Lawyer) saieth thus: 3 1.269 In some cases of diffamation and slander, the kings courts; and in some cases the Clergie haue holden plea thereof.

Therefore I doe the more maruell (the lawe being so plaine) at the Note that is set 4 1.270 downe in the Register touching this mat∣ter, viz. All the Iustices are against a Consultation in a case of diffa∣mation. which is spoken indistinctly and indefinitely, and there∣fore more generally perhaps touching any diffamation what so euer, then the Iustices meant, or then by Statutes and lawe may be warranted.

It may be that a booke case of Henry the 4. gaue occasion of this mistaking, being not throughly weied. for at first sight it seemeth to sound, as if no diffamation at all were of ecclesiasticall conisance. And so 5 1.271 euen Brooke in his Abridgement seemeth to take it. But the trueth is, by that case is onely meant, that such diffamation as ariseth vpon a Temporall matter, is not of ecclesia∣sticall conisance: which is the first exception of the generall rule set downe in the Statute of Circumspectè agatis: where is sayd; that diffamation shalbe tried in the Spirituall court.

And that the said case is to be restrained to such diffamation onely, will appeare most plamlie to him, that considereth the scope of 6 1.272 Hankefords argument. The Vicar of Saltashe had gi∣uen an othe before the Popes Collecter, in confirmation of an ob∣ligation by him made. The Deane of Windsor sued the Vicar be∣fore the Collecter, prolaesione fidei: the Vicar purchased a prohibi∣tion. Hankeford to maintaine this prohibition, argueth, that the periurie couldnot bee sued in an ecclesiasticall court, for that it arose

vpon a temporall cause. Adding for proofe of his saying, that him∣selfe had a matter vpon the like reason ruled for him, and against the Archbishop of Canterbury, H. 14. Edw. 3. par attachment sur Prohi∣bition, &c. de ceo que il suist en court Christian, pur diffamation. The matter then was not ruled against the Archbishop simply, for su∣ing diffamation there; but of such a kinde of diffamation. For else this would not haue fitted the purpose of Hankefords ar∣gument: because hee hauing to prooue that laesio fidei arising vpon a Temporall cause might not bee sued in an ecclesiasticall court: could not make any colour of that assertion, by allea∣ging of a iudgement that no diffamation at all might bee pro∣secuted there: for that is not the like reason. And therefore, as that laesio fidei arose on a Temporall cause; so did the diffama∣tion there spoken of, for which a prohibition did lie without Con∣sultation.

That diffamatorie words touching a temporall cause may not be sued in court ecclesiasticall; we haue also a prohibition 1 1.273 in the Register, without any Consultation granted. For whereas one gaue witnesse in an Inquisition made by the king about his ex∣change in Yorke: the partie touched, sued the witnesse (for dif∣faming him) in a court ecclesiasticall, whereupon the witnesse brought a Prohibition, by reason the matter was a Temporall cause.

By Statute likewise it is 2 1.274 enacted, that a Prohibition shall lie, if a man be sued in court ecclesiasticall for diffamation, in that hee en∣dited the other.

I finde also another cause, why some diffamation may not be sued in a court Ecclesiasticall: and that is, when action there∣fore lieth at the Common lawe. As 3 1.275 where a man brought Acti∣on of trespasse for goods taken away; the defendant hereupon sued him in a spirituall Court for diffamation. But Hussey the kings At∣turney, in behalfe of the Plaintife desired a Prohibition; because the plea in Court Christian was mooued, the suite hanging there: and had it graunted. Quod nota. So if I be robbed, and speake of him that robbed mee before others, so that hee sueth mee in a spiri∣tuall court for diffamation; there lieth a Prohibition: because I

may haue an Action at the Common lawe, videlicet, mine appeale of the robberie.

There be also in the booke of 1 1.276 Entries, precedents of Pro∣hibitions granted agaynst those that for diffamation prosecuted such in court ecclesiasticall, as sued them in temporall courtes, for maime, and for forging of euidences.

So that wee may conclude this point, that out of the cases excepted; the rule of Circumspecte agatis, and Articuli Cleri (for diffamation to bee of ecclesiasticall conisance) hath place, e∣uen by allowance of the common lawe.

There resteth yet one point belonging to this place; fit to be cleared. There is alleaged for other purposes by the Note∣gatherer, a little olde printed Treatise, Concerning the power of the Clergie, and lawes of the Realme. In which, the Statute of Circumspectè agatis (both here and elsewhere by me alleaged) is auouched to bee no Statute, but a bare constitution. The words 2 1.277 bee these: Wee neuer sawe any proofe that Circumspectè agatis, was a Statute, or taken out of the kings answeres. and there bee in the sayd treatise diuers things that bee directlie agaynst the lawes of the Realme as it is in this point. That Prelates for fornication, auou∣terie and such other, may sometime assigne bodilie paine, and some∣time pecuniarie payne. And the lawe is, that Prelates shall neuer assigne pecuniarie payne for correction of sinne, but onely at the de∣sire of the partie. And also it is recited in the sayd Treatise, that if the Prelate of any Church, or his Aduocate, aske of the person a pension; that the suite should bee in the Spirituall Courte: and the lawe of the Realme is euen to the contrarie. And we thinke, that if it had bene a Statute; that the lawe should neuer haue bene vsed therein, so directlie agaynst the Statute, as it hath bene vsed. And in the nineteenth yeere of King Edward the third, in a Writte of Annuitie brought in the Kings Court against the sayd Article of the sayd Treatise: it is sayd, that the sayd Trea∣tise is no Statute, but named so to bee by the Prelates. And al∣so the sayde Writte of Annuitie is iudged to bee maintenable in the Kings Courte, and that is directlie agaynst the Treatise of Circumspectè agatis, wherefore wee thinke it is no Statute.

The verie like wordes are also vsed (I thinke all by one Author) in 1 1.278 another Treatise of constitutions Prouinciall and Legatine.

Nowe, in that to prooue it no Statute, he saieth; There bee in it diuers things directly against the lawes of the realme, seemeth to me a strange reason. As though statutes (for the most part) bee not to the restraining and changing of the lawe of the realme.

His first speciall obiection doeth answere it selfe. For if the Partie desire commutation of corporall penance into pecuniarie, especially if he be a free man; the Ordinarie may lawfully accept of that commutation, and being so vnderstood, circumspectè agatis; iumpeth therein both with 2 1.279 lawe and practise.

Touching his second obiection against it, of a pension: I referre my selfe to that which hereof hath bene spoken in the 6. Chap∣ter of this first part. As concerning his alleaged booke of 19. Ed∣ward the 3. reporting it to be no Statute, I must tell him, that hee hath a larger printed booke then mine; if hee haue any reports, either of the 19. or 20. yeeres of king Edw. 3.

But whatsoeuer either he that was Author of those two little Treatises, or any other priuate or particular persons doe thinke may be collected or probablie spoken thereof: I trust they will all be contented to submit their iudgements to an Acte of Parlia∣ment. Therefore to cut of all doubts at once in this behalfe; let them read the 3 1.280 Acte for true paiment of tithes, made in king Ed∣ward the 6. time; where both Articuli Cleri, Sylua caedua, de re∣gia prohibitione, and also Circumspectè agatis bee called Statutes, and are appointed to remaine in their entire, as they were afore that new statute.

If a man lay 4 1.281 violent hands on a Priest, this offence is punish∣able also by ecclesiasticall Iudges. Therefore it was determined in another Parliament, that for excommunication pro violenta ma∣nuum iniectione in Clericum, before 5 1.282 a Prelate, where penance corporallis enioyned: if the defendant will redeeme his penance by gi∣uing money to the Prelate or partie grieued, it shall be required before the Prelate, and the kings prohibition shall not lie.

This seemeth to haue bene there determinable (by some re∣ports at the Common law) euen afore these statutes. 6 1.283 For if a man enter into S. Iohns place, and beate the brethren there, and take their chattels, for this violence he shall be sued in Court Christian, and so

it was adiudged by the Court.

In a Consultation granted after a prohibition in this case was brought, it is 1 1.284 thus cōteined in the Register, viz. si in causa iniecti∣onis manuum violentarum in clericum, in possessione Clericatus exi∣stentem, quém{que} alter sciuit esse clericum, non de violata pace nostra, sed de excommunicatione, ad correctionem animae tantummodo aga∣tur: tunc prohibitione nostra non obstante, vlteriùs in eadem facere po∣teritis, quod secundum forum ecclesiae, & de iure fore videritis faci∣endum.

But I find two cases where laying violent hands on a Clerke, shall not bee sued in a Court Ecclesiasticall, but there will lie a prohibition. The first is, If a Clerke be 2 1.285 arrested at the Common law, if thereupon he sue in a spirituall Court pro violenta manuum inie∣ctione in Clericum, there lieth Prohibition. Another case is, 3 1.286 when a man is excommunicate for laying violent hands on a Clerke, if the spirituall Court denie absolution till amends bee made to the partie for the batterie, a prohibition also will be granted: because it shall be en∣tended, he which sueth, doeth it to recouer damages.

But (though it be at the suite of the partie) if onely the pu∣nishment of the offence, and not any amends be sued for, it is de∣terminable in a Court ecclesiasticall, albeit the 4 1.287 Temporall Court haue also the debating of the matter, touching the amends and the batterie. For (saieth Thirning) if a partie sue onely 5 1.288 to enforme the Court that the other hath laid violent handes vpon him, being a Clerke; to the intent, the sentence of holy Church may goe against him, to be excomunicate for the wrong done to holy Church, and not to re∣couer dammages; peraduenture it might be tollerable. To which an other booke agreeth, 6 1.289 that if a man beate a Clerke, and he sue him in the spirituall Court for his sinne of excommunication, he doeth well: but if he sue to haue the matter there examined, & for amends; there lieth a prohibition. For we finde a 7 1.290 precedent of a Consultation granted, euen where a partie sued in Court Christian, proviolenta manuum iniectione in Clericum.

And so is it testified by the 8 1.291 booke of the Liberties of the Cler∣gie, by the lawes of the Realme, in these words: A Priest may sue to haue him excommunicated or corporallie punished that laid vio∣lent hands vpon him, but not to haue amends. Neuerthelesse, if 9 1.292 a man put to corporallpenance for diffamation, or for beating a Clerke,

to redeeme his penance, wil agree to pay mony to the partie damnified: & after contrary to his promise will not pay it; he may then be sued by the partie damnified, euen for the mony, in a court ecclesiasticall. And not onely the partie may thus sue to haue him punished, but the 1 1.293 Spiritual court may also punish it exofficio, as Brian and Litleton there did hold.

To this accordeth the said litle booke, where is sayd, that the 2 1.294 ecclesiasticall Iudge may of Office cite for laying violent hands on a Clerke, to punish him corporally, but not by money. Whose opinion is well confirmed by a Consultation in the Register, to that purpose. For thence is 3 1.295 gathered, both that such a beater of a Clerke, doeth incurre excommunication ipso facto: and that the ecclesia∣sticall Iudge ex Officio, may lawfully proceed to enioyne him cor∣porall punishment.

Touching Sacrilege, that it is also punishable by lawe in a Court ecclesiasticall, two adiudged cases may bee alleaged out 4 1.296 of Fitzherberts great Abridgement. For if a man take goods out of the Church or Churchyard, hee that hath propertie, may sue him in a Court Christian, and may compell him to stand to the sen∣tence and iudgement of the Spirituall court for this offence. And againe: 5 1.297 If a man take trees that are growing in the Churchyard, the Parson may sue for them in court Christian, and for the sacri∣lege also.

Lyndwood, speaking of Sacrilege, 6 1.298 saieth, It is not a crime meerelie ecclesiasticall: because the conisance thereof may belong to a temporall Iudge, at least touching the corporall penaltie: but not concerning the censures of the Church, that ought to bee laied vpon such.

7 1.299 Concerning fighting, quarelling, and brawling in Church or Churchyard, the Ordinarie in some degree is to pu∣nish it by suspension ab ingressu ecclesiae in a laie man, and from ministration in his office in a Clerke; and in another degree, in either sorte Laie or Ecclesiasticall, by denouncing the par∣tie offending to bee excommunicate ipso facto, by vertue of that Statute.

Dilapidations likewise, & waste made vpō a liuing Ecclesiasti∣call, are determinable & 8 1.300 punishable by Ordinaries. For the Sta∣tute made in her Maiesties time for remedy in Dilapidations pro∣uideth;

that as afore by the lawes Ecclesiasticall, iust actions and remedies might bee had against executors and administra∣tors of deceased incumbents: so they should by vertue thereof bee vsed against alienees and donees of the goods of such in∣cumbents.

The Treatise of the Clergies liberties saieth, that for 1 1.301 Dila∣pidation the parson may sue (in courte Ecclesiasticall) the executors of his predecessor.

So at the 2 1.302 Common lawe, Tirwhit did hold, that if an eccle∣siasticall person make waste of his benefice, he shal be deposed, as a Di∣lapidator of his Church. But deposition cannot be iustified, but by authoritie ecclesiasticall.

Those crimes which I sayd were opposite to sobrietie in a mans owne selfe, are also punishable by ecclesiasticall authoritie. 3 1.303 For the Clergie are not to be punished for holding plea in court Chri∣stian, of such things as bee meerelie spirituall, that is to wit, of pe∣nance enioyned for deadlie sinne, as fornication, adulterie, and such like. In which words of (such like) I doubt not but other incon∣tinencies, as Incest, Stuprum, and Polygamie be also vnderstood, be∣ing all more grieuous then fornication, and two of them more execrable then adulterie.

And so doeth Lyndwood interprete the word, huiusmodi, such like: that 4 1.304 is to say (saieth hee) Incest, whoredome, and others, which be contained vnder the sinne of Lecherie. And to these are to bee added other crimes, which also are to bee handled and puni∣shed in a court ecclesiasticall; as namelie, Sacrilege, Usurie, Here∣sie, Simonie, and Periurie, to 5 1.305 which an old Canon also addeth such offenders as be Inspectatores nugarum, and consulters of Starre∣gazers, Phanaticall persons, Wisardes, Fortune-tellers, Drunkards, and Idolaters.

And to make it more plaine, that all vnlawfull companie of man and woman, not being capitall by the lawes of the Realme, is subiect to the Iurisdiction ecclesiasticall, the 6 1.306 generall worde of Incontinencie (which comprehendeth all) is vsed in the statute De excommunicato capiendo.

In the 7 1.307 Register there bee two precedents of Consultations granted in causes of Fornication; agaynst which (in both) the Iudge also proceeded of office. And the treatise of Clergie liberties

saieth, 1 1.308 Though a bishop may not visite the Kings free Chappell, yet he may cite and punish the Chaplaine thereof for keeping a concu∣bine. Heare also what another olde Treatise written by a com∣mon Lawyer, in those times 2 1.309 saieth in this behalfe, viz. the Cler∣gie ought to haue correction (as of crimes meere spirituall) of auou∣trie, fornication, Simonie, and Vsurie, and to order matrimonie, tithes, oblations, and periurie (in some case) and of diuers other things: whereof it is no doubt, but they haue holden plea in times past, rather by a custome and by sufferance of princes; then for that they be meere spirituall, or that they had authoritie by the immediate power of God. So that they bee by him yeelded, of long time to haue bene of ecclesiasticall conisance.

CHAP. X. That the matters and crimes here reckoned bee also of ecclesiasti∣call Iurisdiction: and proofes, that any subiect laie or other, may be cited in any cause ecclesiasticall.

THere doe yet remaine sundrie points, which in the second Chapter of this part, I haue set out, as being of ecclesiasticall conisance, hitherto not spoken vnto purposelie. First then for ordai∣ning of reall compositions (being a matter of vo∣luntarie iurisdiction) and disanulling of them, if they haue bene made contrarie to lawe and right (which is for the most part of Iurisdiction contentious) we haue in the Regi∣ster some testimonie. For 3 1.310 whereas an Ordinarie had made an ordination or reall composition for certaine Chaplains to serue from time to time in a Church, which were not found by those that ought; the bishop hereupon ex officio proceeded to interdict the Church, and vnto other Canonicall paines. And though there∣upon a Prohibition was brought, yet was it reuersed (vpon de∣bating) by consultation, and the bishops proceeding allowed, for lawfull.

Touching 4 1.311 disanulling of a reall composition (vnduely made) in a Consultation there, is thus conteined: Significamus quod in negotio adnullationis Ordinationis pro Pensione, tanquam iniquae

& non rationabiliter factae, & non de laico feodo in curia Christiani∣tatis agitur, procedere, & vlteriùs facere poteritis, &c. prohibitione nostra nonobstante.

Next follow the censures ecclesiasticall, whereby Ordinaries punish or vrge execution of their sentences or decrees. First su∣spension ab ingressu ecclesiae, is 1 1.312 shewed to be an ecclesiasticall cen∣sure by a statute of king Edward the sixt, forbidding brauling in Church or Church-yard. The other suspension indistinctly taken, whether ab officio tantùm, or ab officio & beneficio; is mentioned for a censure ecclesiasticall, by 2 1.313 a statute 1. El. and by her 3 1.314 High∣nesse Iniunctions.

Interdiction of a Church is also prooued so to be, by the first allegation out of the Register in this chapter.

That Sequestration is another censure ecclesiasticall, and the conisance of the violation thereof of that iurisdiction, is prooued cleerely by a consultation in the Register. For there a certeine Parishioner 4 1.315 had cut downe Syluam caeduam, not paying but de∣teining the tithe from the Parson. Hereupon the bishop of Elie his Officiall, did sequester the said wood cut downe. The Pari∣shioner did breake and violate the sequestration. therefore the Officiall proceeded with him in causa violationis sequestri. the defendant purchased a prohibition. Neuerthelesse, vpon discus∣sing of the matter, a consultation was granted in these wordes: Licitè procedere poteritis, quatenus de 5 1.316 violatione sequestri syluae caeduae excisae (ratione decimae inde rectori ecclesiae debitae, iniustè detentae & non solutae) per vos sic interpositi, agitur: & vlteriùs facere poteritis, quod ad forum Ecclesiasticum noueritis perti∣nere.

That excommunication is a censure Ecclesiasticall almost all allegations afore, and consultations in the Register do shew.

That which next commeth to handling heere, is: that 6 1.317 the Parson and Vicar haue the appointing of the Parish Clerke: who being so appointed, is to haue the customable fees of the Parishioners for his seruice, or else he may sue for them in Court ecclesiasticall. That Constitution prouinciall calleth these eleemo∣synas consuetas: and (I thinke) they may be comprehended vn∣der the word 7 1.318 Largitiones charitatiuae, for which the Register hath a consultation, as being of ecclesiasticall conisance.

For goods (as a pound of waxe, &c.) due to a Church, and de∣teined; 1 1.319 the Register alloweth the Church-wardens to sue in court ecclesiastical, and to procure that the church may for them, be againe put in possession.

Now follow (in this place) certeine crimes of ecclesiasticall conusance: and first such, as be contrary to pietie towards God; namely blasphemie, which 2 1.320 though in partes on the other side Sea (where Ciuill law hath place) it be mixti fori, that is, enqui∣rable and punishable aswell in the temporall as in the ecclesiasti∣call court: yet in this Realme, I haue not learned of any punish∣ment thereof (or for swearing) by any temporall power. Also i∣dolatrie, and errour in religion; which are shewed to be of eccle∣siasticall conusance, by 3 1.321 the statute De excommunicato capiendo. Likewise Apostasie from Christianitie; which is the highest de∣gree of heresie: and therefore subiect to the same Court and pe∣naltie. Lastly, violation and prophanation of the Sabboth, to be punishable by a Court ecclesiasticall, both the continuall cu∣stome of the Realme, and the statute of Circumspectè agatis, (which doeth allow them to enioyne penance for sinne) doeth make very manifest.

But we are to vnderstand (as 4 1.322 Lindwood also well admoni∣sheth) that euery mortall sinne is not of Ecclesiasticall conusance: for then (faith hee) the iurisdiction of the temporall sword, were wholly ouerthrowen; seeing you could hardly name any cause, which vnder colour of the sinne, might not be brought vnto conusance ec∣clesiasticall. But the said statute is to be vnderstood, of such sinnes, the punishment whereof doth belong properly to a Court ecclesiasticall. That is all such (as I doe gather) for which no remedie is pro∣uided at the Common law, nor by the same forbidden to be dealt with, by a Iudge ecclesiasticall.

And of this sort, is subornation of periurie, in an ecclesiasticall court and matter, tending to the breach of iustice: and vnlawfull sollicitation of a womans chastity, drunkennesse, and filthie speech, referred to the violation of sobrietie.

Violation of a sequestration or of an interdiction, is in this chap∣ter touched afore. The hindering and disturbance to carry tithes by wayes due and accustomed, is handled in the sixt chapter of this part.

For sundry crimes, the court Ecclesiasticall may enioyne pe∣nance corporall, but not pecuniarie: and if it do, there lieth a pro∣hibition. 1 1.323 Notwithstanding, if Prelates enioyne a penance corporall, and the partie will redeeme such penances by money, if this money (so promised) be demanded before a Iudge spirituall, the kings prohibi∣tion shall holde no place. And againe: for 2 1.324 excommunication before a Prelate (for laying violent hands on a Clerke) where corporall pe∣nance is enioyned, if the defendant will redeeme it by giuing money to the Prelate or to the partie grieued; it shall be required before the Prelate, and the Kings prohibition shall not lie. Furthermore, 3 1.325 in defamation, Prelates shall correct in maner aboue said, the Kings pro∣hibition notwithstanding, first enioyning a penance corporall, which if the offender will redeeme, the Prelate may freely receiue the mo∣ney, though the Kings prohibition be shewed. And to the same ef∣fect, there is a consultation in the Register, 4 1.326 viz. in a plea for reco∣uerie of money promised to a Prelate or to the partie grieued for re∣deeming of corporall penance, (imposed for laying violent hands on a Clerke) you may lawfully proceed, our prohibition notwithstanding.

When a 5 1.327 partie proceeded with for some offence in Court Ecclesiasticall, submitteth himselfe to such order as the Iudge shall take with him, either at his absolution from the sentence of excommunication, or otherwise, doth after refuse; for such his refusall, he may be dealt with, and punished in Court eccle∣siasticall, and may be vrged by censures, to performe the order according to his submission, which the Ordinary shall set downe. Likewise may an Ordinary deale for contempt of his decrees or iurisdiction; as may be perceiued, both by the said consultation against one Lindsey last alleged, and 6 1.328 also by another reported in the Register.

And as Ordinaries may deale in the causes afore specified: so may they also in the necessarie accessories and dependences of those causes. And therefore they may adiudge expenses a∣gainst the partie ouercome in law; and by censures driue him, to payment of them. Example heereof we 7 1.329 haue in the Regi∣ster, where the plaintife in a cause of defamation failing in proofe, was condemned in expenses; and could not auoid the paiment of them by the prohibition which he brought. therefore in ano∣ther precedent there, it is thus said: Iuri est 8 1.330 consonum, quod vbi

cognitio causae principalis ad forum ecclesiasticum pertinet; & eius accessorium pertinere debeat. Vel sic: iuri est consonum, quod cui attribuitur cognitio in causa principali, eidem attribui debet executio eiusdem. And there it is further said, to this purpose: Si praedicti 40. S. pro misis & expensis in causa diffamationis adiudicati fuerint, tunc ad executionem inde faciendam licite procedere poteritis, prohi∣bitione nostra non obstante.

Fees due in Ecclesiasticall Courts, and Curates and Clerkes wa∣ges deteined, come next in this place to be prooued of Ecclesia∣sticall conusance. I must confesse that for the two former of these, I doe not call to minde, nor hitherto finde by turning of my few bookes of the Common law; that any thing is written of them.

Now seeing that from time to time, as occasions haue fallen out of due fees there to haue bene deteined, they haue bene de∣mandable in the same Court ecclesiasticall without bringing prohibition: it is some good inducement to leade vs to thinke, that they haue bene (without contradiction) alwayes yeelded to be of ecclesiasticall conusance. For, being such matters as subiects haue a right vnto, and yet no writ lying therefore (as I take it) at the Common law (which 1 1.331 reason is the ground in statute for granting consultations, and of leauing causes of that nature, to the determination of an Ecclesiasticall court) it will therefore follow, that these also doe belong to iurisdiction eccle∣siasticall.

But touching Clerkes wages, called in the Prouinciall constitu∣tions eleemosynae consuetae, and in the Register conteined vnder the generall word of Largitiones charitatiuae; I haue incidently spoken in this chapter afore.

There remaine yet some offences (set out by me to be of Ec∣clesiasticall conusance) which I finde not hitherto so auouched to be, by any writer of the Common law: yet are they so hol∣den by the law Ecclesiasticall, and by vsuall practice also with∣out any prohibition or other impeachment. The first 2 1.332 of them is forgerie in an ecclesiasticall mattter, or the vsing and set∣ting out of forged letters knowing them to be such: as of let∣ters testimonialles, of orders taken, of institution, and such like. Next, is the burying (in vsuall buriall for other Christians of

1 1.333 notorious Heretickes; or of persons dying excommunicated, and without repentance thereof.

Thirdly, willing 2 1.334 and familiar cōuersing with persons, whom they knowe to be excommunicated matori excommunicatione.

Fourthly 3 1.335 frequenters of conuenticles, which doth also come vnder schisme.

Lastly, vnlawfull 4 1.336 digging vp of corpses buried, either vpon spite, or in any other sinister respect whatsoeuer.

I haue hitherto stoode vpon matters, wherein Ordinaries (by Law) may hold plea: to shew thereby, that they may cite in other causes then Testamentarie or Matrimoniall. For deale in them, or handle them they could not, vnlesse the party which is pretended to offer the wrong, or to be the offendour, might be conuented, which is by citation. Therefore (besides the authorities here and there in the former discourse falling in by other occasions, which might sufficiently prooue that they may cite and compell men to come before them) I will now briefly vse some further direct proofe to conuince; that in other causes then those two, men may be cited before Iudges Ecclesiasticall.

It appeareth by Articuli Cleri, that for any matter Ecclesiasti∣call indefinitely, men might be cited. For vpon doubt mooued, whether the Kings tenants were subiect thereto, in such sort as others are: it is decreed, that 5 1.337 such as holde of the Kings tenure, may bee cited before their Ordinaries, and may bee excommunicate for their manifest contumacie, and after 40. dayes, may bee attached by the Kings Writte, as others. The 6 1.338 preamble of another statute proueth Citations euen of men, wiues, seruants, and other the kings subiects for diffamations and tithes (so they be vpon iust matter, and in due order) to be lawfull. The body of that statute 7 1.339 pro∣uideth, that no Citation be made out of the Dioecesse &c. where the partie dwelleth, but where some Spirituall Offence or Cause is com∣mitted or done, &c. so that à contrario sensu in any other offence or cause Spiritual (as very many are afore proued to be) any subiect may be cited within his or her Dioecesse, and in those also there excepted, may be cited out of the Dioecesse.

Likewise 8 1.340 for Heresie, the Archbishop of Canterbury may cite any of his Prouince if the immediate Ordinarie doe consent, or do not his dutie. In a statute 9 1.341 made for tythes, any man withholding them, shall

be conuented according to the Ecclesiasticall Lawes. And there is also mentioned Compulsorie Processe and censures of the Church. In a statute 1 1.342 of King Edward the sixt, though for the body there∣of it be repealed, yet thereby is testified; that summons and citati∣ons be Processe Ecclesiasticall in all suites and causes of instance be∣twixt party and party, and in all causes of correction.

Therefore seeing there is no colour, that onely Ecclesiasticall persons shall fall out to be deteiners of such dueties Ecclesiasti∣call, or that they onely will proue offenders in the crimes afore recited, neither can all the Kings tenants, nor yet men, wiues, ser∣uants and other subiects be entended (for the most part) to be other then Lay persons: we may safely conclude, that not only in causes Testamentarie or Matrimoniall, but in very many other afore no∣ted, any subiect whosoeuer, may be cited before his Ordinarie, or other competent Iudge. Quoderat probandum, as being the very contradictorie of the opinion, that we are in handling.

CHAP. XI. That Lay men may be cited and vrged to take othes in other causes, then Testamentary or Matrimoniall.

THe thirde opinion nowe followeth, which is: that by the Lawes of the Realme, no Layman ought to be summoned or cited to make (or take, as I thinke is meant) an othe, in any other cause then Testamentary or Matrimoniall. This diffe∣reth from the former in two points. The first is in the partie to be cited: For the second opinion was, that none whosoeuer, including both Ecclesiasticall and Lay: where as this is onely, that no Lay man may be cited, &c. The second difference is in the end of the citation: For here is said: a lay man may not be cited to take an oth in any other cause: thereby leauing (as it might seeme) the Ordinary at large, to vrge persons ecclesiastical to take an othe, in other causes also. But all comes to one ende. For if neither Lay nor Ecclesiasticall (as the second opinion holdeth) may be cited in any other cause: then cannot Ecclesiasticall men be cited in any other cause, to take an othe. That which cannot be done at all, cannot be done for any ende. non entis nullae sunt

qualitates. so that both these runne to one point, sauing that hereby is affirmed, a citation may not be made to the intent a Lay man shall take an othe, sauing in those two cases.

Now if this citing be meant of the partie defendant; then doth it not impugne any proceeding ecclesiasticall in vse. for the partie conuented, is not cited ad subeundum iuramentum, but ad respon∣dendum tali in causa decimarum, &c. & faciendum vlteriùs quod iuris fuerit & rationis. If it be meant of witnesses, neither are they cited (against their will) not so much as in Testamentarie or Ma∣trimoniall causes, or any other, to appeare; till faith be made by the partie, or by some other for him, that they take them to be necessary witnesses for to testifie in that cause; and that being re∣quired, and their reasonable charges offered them, they doe ne∣uerthelesse without cause refuse to come, and to testifie a trueth. For then goeth a citation called Compulsories for them, sub poena iuris to come and depose their knowledges in such a matter, be∣twixt such parties. So that the citation is not ad subeundum iura∣mentum, albeit when they come, they are not to set downe any deposition, but vpon othe: because it is iuris diuini, naturalis, & gentium, quòd non credatur testi iniurato. Also the Authour of this opinion should haue done well, to haue signified whether a Lay man being come thither without citation, might then be vr∣ged to take an othe. Therefore if the Authour hereof, wil here∣by maintaine any controuersie against Courts Ecclesiasticall; the issue must be, either that to make the Defendant put in his an∣swere vpon his othe, (so farre foorth as he by Lawe is bound) or to make witnesses testifie vpon their othe, is a thing contrary to the Lawes ofthe Realme.

But it appeareth by discourse vpon the former opinion, in how many sundry causes of litigious Iurisdiction, (besides Testa∣mentarie and Matrimoniall) Ordinaries may holde Plea (by the Lawes of this Realme) according to the course of the Queenes ecclesiasticall Lawes. That the ecclesiasticall Lawes doe require this course (with the cautions aforesaide,) I thinke no man that knowes any thing in that Lawe, will make doubt. A Plea is a conflict in cause of Iudgement, betwixt one that affirmeth, and another that denieth. There be but two wayes (besides the parties confession, which is not properly called a proofe) to

prooue any thing: that is, by witnesses, or by a publicke instrument, called by the Common Lawe, matter of Record. Now if witnesses might not be vrged to testifie vpon othe, in any causes but Testa∣mentarie or Matrimoniall; then could no Plea be holden in any other cause, when the chiefest and most vsuall meanes of proofe in recent facts, be taken away.

This libertie and priuiledge of holding Plea in the causes a∣fore shewed, and in this maner as is now claimed, 1 1.343 by the goodnes of Princes of this Realme, and by the Lawes and customes of the same (as a statute rehearseth) appertaineth to the Spirituall Iurisdiction of this Realme, and hath bene in all ages, vsed in Courtes Eccle∣siasticall without impeachment, as by the Recordes thereof may appeare. And therefore, vpon any singular conceite (newly taken vp by some priuate persons) it is not safe to be nowe thus questioned, and oppugned. There is an olde Statute in force (as I take it) that may greatly bridle such newe quirkes, ex∣cept men were marueilous well assured of the groundes of so great and so generall an innouation. For it is enacted, that 2 1.344 great Officers about the King, and in his Courtes of Iustice, shall from time to time forwarde, bee sworne when they shall be put in Of∣fice, to keepe and mainteine the priuiledges and franchises of Holy Church, &c.

Can it with any colour be intended, that the Common Lawe doth allow Courts ecclesiastical to hold plea in those sundry other causes, which we haue hitherto proued to be ecclesiasticall: and yet, that it wil not allow them any meanes or possibilitie where∣by to hold such pleas? For if no Lay man might be cited to an ec∣clesiasticall Court, and there ordered to take othe in any other cause then those two: then first the partie conuented (if by Lawe he needed not) would neuer answere to the Libel vpon his othe. Yet hath this bene a course continually practised, and by Lawe so appointed, not onely in Ecclesiasticall, but also in all Courtes of the Ciuill Lawe both here and throughout the rest of Chri∣stendome.

Againe, if no Lay witnesses may be called to testifie in any other matter; then should most men in those causes, be hereby either quite foreclosed of their right; and many grosse sinnes should passe wholly without reformation or punishment: or else

all such matters must needes be prooued, onely by such wit∣nesses that be of least indifferencie; and therefore of least trueth and credite. For those men be alwayes most indifferent, which either be friendes, or at least be no euill-willers, to either partie. Nowe seeing euery deposition must needes tende to the grie∣uance or hinderance of the one partie or the other: can it be pre∣sumed of him which loues both, and doth wish alike well vnto them, that he will willingly and gratis without any processe come and depose, and thereby doe one of his friendes a displea∣sure? there resteth then, that onely such will offer themselues to testifie; who either be enemies vnto both, or friendes to one, and either enemies or strangres to the other (and howe can these be vpright & indifferent witnesses?) or else such who be meere stran∣gers vnto both sides. but it doth most rarely happen, that meere strangers vnto both, shalbe able to depose any thing to purpose: and more rare will it be, that such will offer willingly of them selues, to come in ad testificandum. Besides these and many such like absurdities, necessarily ensuing this opinion; if it be yet still stoode in, that the Common lawe permittes compulsion of lay men (whether parties or witnesses) to take othe in causes testamenta∣rie and matrimoniall, but denies it in all other cases: let vs consi∣der, what may be imagined for a probable reasō of such differēce in proceeding betwixt causes that belong to the conisance of the selfe same courte. For I haue read and often heard, that the Common lawe is grounded vpon good and sound reason. And it cannot be said in this case: quamuis durum sit, tamen ita lex scripta est. for that this is no statute, or written lawe; but onely the re∣ported opinion of one man, whence all the rest haue since taken it. Was it then meant, to giue vnto subiects an ample meanes of comming by their rightes in these two causes: but to restraine or debarre them in al other, as namely for tithes and other rightes demaundable in ecclesiasticall courtes? or was it the purpose of that lawe, to haue men stand conuicted of most grieuous crimes that be of ecclesiasticall conisance (as happely of Heresie) being neither by them confessed, nor yet proued by sincere and vpright witnesses: but onely by such, as doe thrust them selues in to beare witnesse; whom not onely common speach, but also sundry sta∣tutes doe terme Accusers, and therefore doe hold at least for par∣ties

and men not indifferent? May not many other ecclesiasticall causes be of as great importance & preiudice, as (perhaps) a will of goods vnder xl. s. or a trifling legacie, or a x. pound matter, pro∣mised with a woman in mariage? and if the law had bin so, could no man hit of it from the Conquest, vntill our fathers time, when Fitzherbert writ his nouanatura breuiū? was none of skil in Edw. the 1. time, to put it into the statute of circūspectè agatis: or in Ed. the 2. times, to mention it in the statute of Articuli Cleri? did none reade it in the Register that vnderstoode it, before Fitzher∣bert? or was it not put downe there, but in some late copies, as is most likely? And after he had set it downe, would not the law in that behalfe haue bin vrged against sundry Bishops, that practised the contrary in K. Hen. the 8. time, & continually since, if that o∣pinion had bin holden for good lawe? Touching this matter, the Treatisour saith thus in effect: that the not cōpelling of witnesses to sweare & to depose their knowledges, brings none other preiudice; but that the partie plaintife, faileth in his proofes thereby. Why? is that no small preiudice, for a man (which hath in deede a right) to haue the causes goe against him, through the wilfulnesse of witnesses, y^t neither will come of thēselues, nor may be cōpelled by others, as this opiniō importeth? Is not this to giue cause of ac∣quiting the wrōg doer, & of cōdemning him that hath the very right? and doth it not nourish or at least tolerate that sinne in the witnes, which i•…•… cōdemned by the law of God in these 1 1.345 wordes, viz. If any haue thus sinned, that is, if he haue heard the voyce of an oath, & he can be a witnes, whether he hath seene or knowen of it, if he doe not vtter it, he shall beare his iniquitie? In which place I doubt not, but all such be included; who knowing the matter which is in examination or question before a Magistrate; shall refuse ne∣uerthelesse (being duely called) to giue testimonie to the trueth, according to their knowledges. The Treatisour further saith: that it may be sufficiēt for a court ecclesiastical, to haue no better meanes for bringing in of witnesses to testifie, then tēporall courts haue. Truely if they might be allowed the same; I thinke none of them would desire any better. For when a witnesse is vnwilling to depose, vnlesse he be vrged by processe: what is more vsuall in tēporall courts, then to haue a sub-poena to charge him to appeare, and to testifie, at such a time & place? But because by this his say∣ing

(it seemeth) he entendeth, that the course of vrging witnesses to testifie (as is claimed, & alwaies hath bin vsed by courts eccle∣siasticall) conteineth some repugnancie against the lawes of the Realme: therefore, for cleering of that point, I wil briefely shew, that it is not so much as a diuerse, and much lesse a contrary or re∣pugnant order, vnto the lawes of this Realme.

First for practise; what is more frequent, then for Iustices of the peace to binde men by recognisance, to giue in euidenc at Sessions or Assises touching supposed offendours?

It would be ouer tedious to set downe the sundry cases repor∣ted by the booke of Assiles to this effect: viz. that where a deede is pleaded & denied; and processe against the witnesses is desired; that it shall go out to call them to testifie. It wilbe sufficient to referre you, to 1 1.346 Brookes Abridgemēt, where they be gathered: (yea though the actiō be 2 1.347 personall) if a deede with witnesses at it be pleaded & denied: pro∣cesse shalbe awarded for the witnesses per Markham & Rolfe.

Be not Iurours also (that be summoned to passe on trials) fined, if they appeare not? and what more equitie to amerce or fine them, then necessarie witnesses? seeing trials can no more be made without euidence; then they may without a Iurie?

By statute; 3 1.348 Iurours for triall of Periurie, are appointed to be fined, if they refuse to make apparance.

Likewise if any 4 1.349 witnesse be serued to testifie in a court of Re∣corde, and hauing tendred (according to his countenance) his necessa∣rie charges, doe not appeare: he shall forfeite tenne poundes, and make further recompence, according to the losse. So that we see, it is no contrary or repugnant course to the Common lawes, to haue witnesses vrged to testifie; being there also practised. But if here it be replied, that the Common lawe forbiddeth it vnto courtes ecclesiasticall, sauing in those two cases: it will easily appeare, that it is so farre from being forbidden, that it is indeede allowed vn∣to them, by Common lawe and by statutes. There be very many precedents in the Register of consultations graunted, vpō debating of the seuerall matters there, after that prohibitions had bene pur∣chased: in euery of which almost general wordes of allowance of the maner of proceedings, according to the lawe ecclesiasticall, be conteined, as 5 1.350 namely allowing of the proceeding iuxta Canoni∣cas sāctiones. & setting in the end of euery cōsultatiō there (except

two or three) these or the like wordes in effect, viz. Cicitè proce∣dere, & vlteriùs facere poteritis, prout ad forum ecclesiasticum noue∣ritis pertinere prohibitione nostra non obstante.

Nay let an instance be giuen (if any man can doe it) where of olde, any such prohibition hath gone foorth, and not bin reuersed againe by consultation, yea almost where it hath gone foorth at all; onely for censuring a wittiesse, that refused to come in and testifie, in any other matter of ecclesiasticall conisance, besides te∣stamentarie and matrimoniall. And yet hath it bin in continual and vninterrupted practice, for so long time as any ecclesiasticall actes now remaining, do mention pleas in those courtes to be holden.

Iustice Brooke in his Abridgement, both testifieth that by the Ciuill lawe, witnesses (which wilbe holden indifferent) should not come till they be called, and setteth it downe as a matter woorth the noting; whereby may be gathered his allowance thereof. The 1 1.351 wordes be these: By the Ciuill lawe, Accusers be as parties, and not as witnesses; for witnesses ought to be indifferent, and not to come till they be called: but Accusers doe offer themselues to Accuse &c. quod nota.

That by the Ciuill and Canon lawe witnesses may be vrged to giue testimonie, and in what sort, wil appeare by this distinction. By the Ciuill lawe, 2 1.352 witnesses may be vrged to giue testimonie, and that without distinction, whether the cause be Ciuil or Cri∣minall: be Ciuilly or Criminally, directly, or by way of exception moued: except their persons be priuiledged. As by 3 1.353 the law Ciuill men of 70. yeeres of age be in this behalfe; viz. that they may not (against their willes) be vrged to testifie.

By the Canon lawe, if the cause be Ciuill and not criminall, wit∣nesses may be compelled (without distinction also) except they be persons priuileged. Neuerthelesse euen 4 1.354 priuileged persōs may be cōpelled, in want and defect of other proofes; that the trueth may be found out.

If the 5 1.355 cause be criminall, whether Ciuilly or criminally moued, so the action be directly moued for the crime, and not by way of exception or barre onely: witnesses are to be compelled. sauing that by later Canons; Clerkes were not to be compelled to testi∣fie, in causes of blood.

But if the question be touching a crime, by way of exception:

then, either there may ensue thereupon some effect of punish∣ment, (as vpon excepting a man to be criminous, who then is to be preferred to a dignitie, to a benefice, or vnto orders) in which case any witnesse may be compelled to giue testimonie: or else no penaltie can thereupon follow, (as when the exception is ta∣ken onely to repell a man from testimonie or accusation) and in this case witnesses are not compellable, except the partie who excepteth, be like to be grieuously thereby preiudiced; if his witnesses cannot be gotten to depose.

There is nothing more conuenient, then that euery court should vse his peculiar course of proceeding, by that law (wher∣in they deale) prescribed. And therefore 1 1.356 lay mens matters in a Court ecclesiasticall, are to be handled according to the maner of proceeding by that law required: euen as 2 1.357 clerkes shall and ought to be dealt with in temporall or ciuill courts, after the maners and or∣ders of those courts.

Seeing then, compelling of witnesses to testifie, is not contra∣riant, repugnant, nor yet diuerse from the Common law; nor by it forbidden, but allowed vnto Ecclesiasticall courts, according to the course of those lawes; which doe require it (as is shewed) and no reason or equity leading to admit it rather in those two causes, then in others of the same conisance: therefore may a∣ny witnesses whatsoeuer be vrged to take oath and depose in Courts ecclesiasticall, and in other matters ecclesiasticall, then either testamentarie or matrimoniall.

But to descend yet to more particulars: the Kings tenants may 3 1.358 be cited before their Ordinaries as others. Therefore both they and others (though Lay persons) may be cited in all causes of that iurisdiction: neither is it there distinguished, whether they come in as witnesses, or as parties. Also they may 4 1.359 as others be excommunicated, for their manifest contumacie. This contumacie (after appearance) groweth onely vpon peremptorie refusall to performe some decree or commandement of the Iudge, as in re∣fusing to be sworne, or to be examined, being sworne. Seeing then for manifest contumacie the Kings tenants or others may be excommunicated, and this is indefinitely set downe: it will fol∣low, that as in any other not performance of the decrees of the Iudge (according to the ecclesiasticall lawes) so in refusall to be

sworne, whether he be partie principall or witnes, there is mani∣fest contumacie. Vbi lex non distinguit, nec nos distinguere debemus.

Particularly in matter of tithes (being neither a cause Testa∣mentarie nor Matrimoniall) the 1 1.360 contemners of the processe, lawes and decrees of the Ecclesiasticall courts of this Realme, are by sta∣tute condemned: but an vrging to answer or testifie vpon oath, is a decree of an Ecclesiasticall Court, ergo, may not be contem∣ned. The Ordinarie 2 1.361 in a suite of tithes for any contempt, contu∣macie, disobedience, or other misdemeanours (vpon complaint) may haue the partie committed, till he shall be bound to giue due obedience to the processe, &c. decrees, and sentences of the Ecclesiasticall court of the Roalme: but requiring a parties or a witnesses oath, is such a decree. Therefore, &c.

Likewise by another statute, 3 1.362 the Ordinarie may conuent for withholding tithes according to the lawes Ecclesiasticall: therefore he may conuent and cite a man Lay or other (if he be supposed to be a withholder) to answere vpon his oath. For so is the Ec∣clesiasticall law.

Further, by that statute, the 4 1.363 Ordinarie may proceed to hearing and determination &c. according to the course and processe of the ec∣clesiasticall lawes: but the processe and course of hearing by that law, is by the parties personall answere vpon oath, if it be required; and by compulsories of witnesses to depose by oath, as is afore touched. Therefore, &c.

The statute of 5 1.364 king Edward (touching tithes) prouideth, that both they and the costs, charges, and expenses in the suite shall be reco∣uered before the Ecclesiasticall Iudge, according to the kings Ecclesi∣asticall lawes: but for recouery of them, those lawes require (in cases aforesaid) both oath of partie and of witnesses: ergo, &c. By that statute is established, that the 6 1.365 Ordinarie euen for perso∣nall tithes may call the partie afore him, and by his discretion examine him by all lawfull and reasonable meanes, other then the parties owne corporall oath, concerning the true payment of such personall tithes. Ergo a corporall oath is in other ecclesiasticall causes a lawfull and reasonable means: for, exceptions are alwayes of the nature of the rule, and should be within the rule, if they were not excepted; and therefore also in all other tithes, as prediall and mixt, it is a lawfull and reasonable meanes to put the partie vnto his oath, quia

exceptio firmat regulam in casibus non exceptis.

The statute for Vniformity of Common 1 1.366 prayer, authoriseth ec∣clesiasticall Iudges to enquire, to take accusations, and informations, and to punish the breaches of that act &c. in like forme as before had bene vsed in like cases by the Queenes Ecclesiasticall lawes: but in like cases (by those lawes) oathes both of parties & witnesses haue bene vsually taken. Therefore, &c.

One only instance destroyes a generall assertion; therefore if there were but any one instance to the contrary, an oath by law may be vrged of some lay man in some other cause then testamen∣tary or matrimoniall: which being true, and the very contradictory of the opinion that is in issue (vpon this point) betweene vs, it must needs follow that the opinion is vntrue, and therefore not grounded vpon law: Quod probandum nobis proponebatur.

CHAP. XII. The grounds of the two next former opinions examined and confuted

THe ground of these two opinions last handled (for any thing that I could euer learne) doeth only rest vpon a precedent of a writ of prohibi∣tion and of attachment thereupon. In treating whereof (for that I shall be forced to gainsay something, that is deliuered by graue, learned, and wise parsonages) I must first protest before God in sinceritic of heart, that I do it not calumniandi, sed veritatis studio; whereof I am something resolutely persuaded, in this behalfe. I do reue∣rence and esteeme them that are contrary persuaded, being men of great learning in their profession: neither contemning nor condemning any, so much as my selfe, as being most priuie to mine owne wants, and therefore (I trust) something taught to measure my selfe by mine owne foot. Sed amicus Plato, amicus Socrates, magis amica veritas. The copy of this writ, I finde re∣ported and set downe in two seuerall books. In the 2 1.367 Register (contrary to the vse of other precedents there) is deliuered but a parcel (as seemeth) of a writ, in two or three lines, in these words, viz. Rex vicecomiti S. Praecipimus tibi, quòd non permittas quòd aliqui laici ad citationem talis episcopi aliquo loco conueniant de cae∣tero,

ad aliquas recognitiones faciendas vel sacramenta praestanda, nisi in causis matrimonialibus & testamentarijs. T. &c. And in the margent thus: Prohibitio ne latci conuentant ad citationem episco∣pi, ad recognitionem faciendam.

But the precedent of attachment framed vpon this writ, run∣neth generally, without excepting so much as these two causes; euen as if a lay man (whether partie or witnesse) might not be vr∣ged to answere or testifie, or to take an oath except he lust, in a∣ny cause ecclesiasticall at all. For it is 1 1.368 thus, viz. Rex vicecomiti Salutem. Pone per vadium &c. talem episcopum, quod sit coram iu∣sticiarijs nostris &c. ostensurus quare fecit summoueri, & per censu∣ras ecclesiasticas distringi laicas personas, vel laicos homines & foe∣minas; ad comparendum coram eo, ad praestandum iuramentum pro voluntate sua, ipsis inuitis; in graue praeiudicium coronae & dignitatis nostrae regiae; necnon contra consuetudinem regni nostri. & habeas ibi nomina pleg. &c. T. &c. And in in the margent it is entituled thus: Attachiamentum inde.

Also in the Abridgement of statutes 2 1.369 gathered by Rastall, I do finde a precedent of a prohibition set downe at large, mentio∣ning a writ to like purpose to haue bene sent to the shiriffe; but none attachment thereupon: where of those words rehearsed in the Register (though something altered) seeme to be a parcell. In that point it is thus: Rex episcopo Norw. Salutem &c. Man∣dauimus etiam vicecomiti nostro comitat. Norf. & Suff. &c. quòd non permittant quòd aliqui laici in Balliua sua, in aliquibus locis con∣ueniant, ad aliquas recognitiones per sacramenta sua faciendas, nisi in causis matrimonialibus & testamentarijs. Whereby these three varieties do appeare, betweene this, and the former: First, that which is said heere by way ofrehearsall, that the king had sent such a writ to the shiriffe; seemeth in the Register to be set downe as conteining part of the writ it selfe, directed to the shiriffe.

Secondly, that which is here recognitiones facere per Sacramen∣tum, is in the Register with the disiunctiue; viz. ad aliquas recog∣nitiones faciendas, vel Sacrament a praestanda. Thirdly, in the Re∣gister these words are added; ad citationem talis episcopi. That writ which Rastall setteth down at large (whēcesoeuer he had it) seemeth to be the perfect & whole copy of the originall, & ther∣fore of more credit. It is also probable, that the gatherer of the

Register did abridge out of this Writ at large, as hee thought good. For in the very Writs that went foorth in deed (the copies whereof bee in the Register) letters (for the most part) bee put there, in stead of the names of the parties: whereas, here it is ad citationem talis episcopi, & talem episcopum, without name or any letter for it; that might direct men to know, of what Writ it was a parcell; which argueth, it was not verbatim copied foorth of the Writ. Howsoeuer it be, the one of them must expound the o∣ther, seeing they concerne one and the selfe same matter.

In treating therefore hereof; I mind first to shew, that albe∣it these words did carie the sence y^t is inforced; yet it may be, that the law is otherwise, then y^t they are not of that acceptiō: & last∣lie how they are otherwise meant, & what is that true meaning.

For the first, it is no lawe of necessitie; being neither Statute, nor Common lawe. No statute: for it is not in the Parliament rols, nor in any printed booke of statutes at large, nor in sundrie anci∣ent written copies. It is no common law: for it is sayd to be for∣mata prohibitio super articulis cleri (1 1.370 which is a statute of late time in comparison) and the precedent of that Prohibition (as it is in the Register printed, & being vnderstood according to the mind of the Authors of this opinion) is contrarie to the generall cu∣stome of the Realme. For by time immemoriall, all Ecclesiastical courts (without impeachment) haue cited both the parties prin∣cipall for answere; and witnesses also, vrging them to depose by oath, in all the other seuerall causes also, that are prooued afore to be of ecclesiasticall iurisdiction and conusance.

I haue had of long time an olde Register in parchment writ∣ten (as may be euidently gathered, and appeareth by the frame of the hand and letter) about king Edward the seconds, or king Edward the thirds time. In it there is no such precedent of prohibi∣tion or of Attachment; as either the printed Register, or Rastals Abridgement of statutes, setteth downe. But there are many pro∣hibitions vnto ecclesiasticall courts, that run in this sort, viz. Ne te∣neatis placitum in curia christianitatis de catallis & debitis, quae non sunt de testamento vel matrimonio. And the first of this sort is thus entituled in the margent: Prohibitio regia de catallis & debitis quae non sunt de testamento vel matrimonto.

One thing besides I find there (in mine opinion) worth the no∣ting

for this purpose; yet not obserued in the printed Register. For such precedents of Originall Writs, as exceeded the memorie of any man, at what time they were first drawen & framed: that old booke setteth downe simply without any addition. But if they were of later times deuised; then this marke & title is giuen vnto them in the margent, viz. Prohibitio formata, or breue, &c. formatū. Now Rastals Abridgement giueth the like title to the writ (wher∣upon this controuersie groweth) viz. Prohibitio formata super arti∣culis cleri: which argueth that there is no such original writ of old at the common law; but that it was thē newly deuised to meete with a new mischiefe. Quae de nouo emergūt, nouo indigent auxilio.

The being of it in the Register, doth not make it of necessitie to be law; for sundry of those writs were framed of late times (as may appeare to any that wil peruse thē) vpō particular mēs suits (& as occasiōs fel forth) & somtimes (perhaps) drawn vpō priuate suggestiōs of the counsel of one side, though afterward allowed.

Nay in my said old written Register of writs, there is a precedēt which (as I take it) goeth not now for lawe. For there is a direct writ to the shirifs of London; signifiyng, that no Clerke (though he forfeit his recognizance of statute merchant) shalbe attached or imprisoned by his body: except there bee some cause why hee should not enioy the priuiledge of a Clerke.

Besides, it is no new or strange thing, to haue some forme of a writ which is set down in the Register, to be vpon better aduise disallowed. For I haue credibly heard, that it was not long since adiudged, that in an action for trespasse, done in a warren of Co∣nies, a mā might not plead that they were cuniculi sui; albeit the Register (in that behalfe) 1 1.371 frameth the writ so. And in the selfe same title (whence this forme of prohibition is taken) a clause in a prohibition was 2 1.372 reiected by the court. For it is said in the margēt, Curia noluit concedere istam clausulam in prohibitione: but if it were law assured, the Iudges would not haue reiected it.

Fitzherbert (who in his booke 3 1.373 of Nature of writs, was the first that sucked this conceit thence) in the selfe same booke touching this rule, set downe in the Register, viz. notandum est, quòd quando rex praesentat vt in iure coronae, tunc incurrit ei tempus: saieth thus; now this rule is not holden for lawe. But it will bee said, that Fitz∣herbert himselfe, and sundry that follow him since, doe hold this point we speake of, for lawe. This (no doubt) carieth a great pre∣sumption

with it, & that worthily; for the worth of the learning & iudgements of such men. Yet I wil shew that his saying (from whom they all since do take it) is none vndoubted rule of lawe; & therefore theirs neither, that do gather from him. I protest be∣fore God, I wil not seeke after obiections against his booke; but take only such two (in stead of mo) which I had in my mind, be∣cause they do touch ecclesiasticall matters. He saieth, that 1 1.374 at the Common law, an heretike ere he can be condemned, must be conuicted of heresie before the Archbishop, & the whole Clergie of the prouince, & after abiured thereupon; & after that (of fresh) conuicted & con∣demned by the clergie of that prouince: & this must be in their general councel of conuocation: & holdeth there; that at the Common law, a bishop in his dioecesse might not condemne an heretike, vntill 2. H. 4. 2 1.375 did giue him authoritie: & that then he might not be committed to the secular power to be burnt, vntil he had once abiured, & was againe relapsed into that, or some other heresie. But neither of these points be law; & so I haue heard the two chiefe Iustices, the L. chief Ba∣ron, & some other Iudges, & the Queens learned councel, resolue in a speciall consultation holden about the matter of heresie. For albeit the Conuocation may (in deed) condemn an heretike, yet e∣uery B. at the Common law (before any statute) might (& at this day may also) in his own dioecesse so condemn; as the preamble of that very statute makes manifest: & so by thē all, was it then hol∣den for lawe, notwithstanding Fitzh. opinion there; which was fully by thē considered of. And albeit it may seeme needlesse, yet for further strengthening of these reuerend mens opinions, there is a 3 1.376 booke in the very point. For it is said, that for heresie or any point against the faith, the BB. had none other power to bring thē in, but to make processe against them by citations, vntill the Statute of Heresie, 2. H. 4. ergo, afore that statute, they had power to pro∣ceed against heretikes, in Ordinarie course of the lawe ecclesiasti∣call. Which assertion the very Note-gatherer also maketh in his title of the lawes of England, yet to another purpose: howsoeuer in the maine point y^t we now treat of, he sticke fast to Fitzherbert.

Likewise, 4 1.377 he saith it appeareth, that before the statute made pro clero in the 18. of king Edw. 3. cap. 7. the right of tithes were determi∣nable in the Temporall court of the king; and that the lawe was alte∣red at that time herein, by that statute. Whereas (in very trueth)

there appeareth no such matter; other then a grieuance offered (in this behalfe) to the libertie of the Church, which then was determined, that it should afterward cease.

I know that Gooddall (writing of the liberties of the Clergie, by the lawes of the Realme) concurreth in this point with Fitzher∣bert: for thus he writeth; It seemeth that before the Statute, the right of tithes were determinable in the Temporall courte: but that statute hath altered the law. So that it may be coniectured, the one of them borowed it of the other.

But this whole doubt, whether causes of tithes, before that statute of Edw. 3. were determinable in an ecclesiasticall court or no, is resolued by a Treatise nipping (in trueth) wholie at the Clergie and lawes ecclesiasticall, and so indifferent an Vmpier, as that the Note-gatherer alleageth him for his purposes: there∣fore in this case not to be refused by them, who produce him for their witnesse. For that 1 1.378 Treatise writeth thus, viz. Long after that the kings courts of his Bench & commō Pleas, & also all inferior courts were put out of iurisdiction for tithes: yet neuerthelesse Writs of Scire facias were commonly sued in the Chancerie for tithes, and the defendants were thereupon put to answere: wherefore at the peti∣tion of the clergie, and in consideration of a disme that the clergie grā∣ted to the king, it was enacted 18. E. 3. ca. vlt. that such Writs of Scire facias, thenceforth should not be granted for tithes. And a litle afore 2 1.379 thus, viz. That suites for tithes shalbe taken in the Spirituall court, is only groūded vpon a fauour, that the kings of this realme, & the whole realme, haue in times past borne to the clergie. And 3 1.380 againe in this sort: We thinke that the kings courts be put out of iurisdictiō for tithes, by a custome of the realme, & not by the immediate power of the lawe of God. Therfore (by this mans opinion) it is the common law or custome of the land; and not that statute, which made tithes of conisance ecclesiasticall.

And in very trueth that tithes were demandable in a court ec∣clesiastical before this; may appeare by statutes afore that time, & by reports after; testifying that the conusance of right of tithes (at the Common law) is incident to iurisdiction ecclesiastical, as in the peculiar 4 1.381 treatise thereof, is afore shewed.

Lastly, (to shut vp this first point) a precedent of a prohibition of all other Writs that can be deuised, may with least reason bee

said, necessarily to report what is lawe: for that Prohibitions are so often reuersed & disanulled againe, by consultations: as might haue happened in this very-matter; for any thing that can be certainely knowen, as well as in any other such like.

For the second point, that Recognitionem facere, simply and absolutely, cannot signifie the answere vnto the Libel of the par∣tie conuented, nor the deposition of witnesses, may appeare: be∣cause this fourme of Prohibition, is said to be formata super Arti∣culis Cleri, But out of them no such matter can (with any colour) be gathered; & therefore being taken in such sense, must needes be a glose besides his text.

Againe, I finde in the fourme of another writ in Fitzherbert, where Sacramento recognoscere, so being ioyned together, 1 1.382 doth signifie a testification by oath. Likewise in sundry 2 1.383 writs of the Register, recognitio per sacramentū velrecognoscere per Sacramentū, is vsed for a deposition, vpon oath. But where Recognitionem fa∣cere (without further addition) should signifie a parties answere, or witnesses deposition, I doe not call to minde that I haue read in any, so much as pretending to write Latine.

Howesoeuer it might be shewed in other, surely in that Prohi∣bition, which is in the Register (for auoiding many absurdities) it cannot so signifie. for the Register reades it, that the Sherife shall not permit laye men to come together in any place, ad recogni∣tiones faciendas, vel Sacramenta praestanda, but in those two cau∣ses. So that by the disiunctiue (Vel) whatsoeuer recognitionem fa∣cere be there: neither that may be done, nor an oath in any other cause may be taken by any Lay man whatsoeuer, though other∣wise he were willing. For the word Laici is indefinite, not restrai∣ned to any one sort of Lay men: and so that which is here forbid∣den, is simply forbiddento all Lay persons, and in al other causes, whether they be parties or witnesses, willing or vnwilling, with oathe or without oathe. For in the Prohibitiō there, no mentiō is made of that clause, which the attachement thereupō doth inserte, viz. ipsis inuitis. So that, if that precedent of Prohibition be of it self perfite: this which I haue said, doth thereupon necessarily follow. But if any thing be to be vnderstood, which is not expressed: then why may we not (for recōciling of Rastels writ & this together) safely affirme; that they be both to be vnderstood, of recognitions

and oathes giuen (in deede) in eccles. courtes, but yet touching goodes & chattels, no way concerning matter, either testamentarie, or matrimoniall. It cānot be truely said, that recognoscere is Sacra∣mentū praestare, or recognitio, to be the same that Sacramentū ipsū, the oath it self. This is proued by the precedēt of that very prohi∣bitiō in the Register: where they are distinguished, as two seueral things, with a particle disiunctiue. And like wise by the writ, in Ra∣stals Abridegemēt. for there the recognitiō is forbiddē to be made, per Sacramentū: & therfore not the same, but diuerse things: see∣ing no matter is the selfe same thing with that; which is but his adiuncte. Then being not the same things, & both forbiddē; and presupposing the interpretatiō that is vrged: it wil follow that no Lay defendant neede, nay he may not recognise (though without oath) or make any answere at all, in any other cause eccles. then those two. So that there wil neuer be issue ioyned; and so no plea ecclesiasticall, sauing in those two causes. For will any defendant (thinke ye) make any answere at al, either whē a thing is demaū∣ded of him that he list not to yeeld vnto; or when he is cited to be punished; if neither he neede doe it, nor yet may by law, though he would? But admit the defendant would be willing, & would aduenture the daunger of lawe, for answering to the plaintife, & ioyning issue with him: yet how many such pleas could proceede any further; whē no lay witnesses might be vsed, either with oath or without oathe, to make recognition, or to depose? And if Rastals writ be law, & so to be vnderstood, as is nowe enforced: so that witnesses may not testifie in other causes then those two super sa∣cramenta sua; their depositiōs (as of men vnsworne) must needes be meerely void, by al lawes diuine & humane. So that if the pro∣hibition be not meant of holding plea touching goodes or chattels in other causes, it must needes sort to this point; that in no cause (besides those two) any lay persō may (by law) though he would, come to answere or testifie, with an oath or without an oath, in a court ecclesiastical. But this is absurd & vnreasonable to imagine, and wilbe so confessed, euen by those who stand in this opinion: and therefore that must needes be also absurd, whereupon it ne∣cessarily followeth. For omne verum vero cōsentaneū: and, by the rule of reason we knowe, Ex veris possunt nil nisi vera sequi.

Nowe for proofe that it is absurd and contrary to lawe, thus I

proceede: No plea can be holden, but where there is one that af∣firmeth, and another which denieth that which is affirmed: and then either matter of recorde or witnesses must be vsed, to proue the intention of the plaintife: But in sundry other causes then those two, pleas (by law) may be holden in a court ecclesiasticall; (as I hope) manifoldely and sufficiently, is afore shewed in this Treatise: and therefore in those other causes, Lay men may, and ought to answere and testifie: which is the contradictorie of that, which doeth necessarily followe, vpon this their interpretation. So that this conclusion being true, the contradictory of it is vn∣true; and then that vntrue also, whereupon it is necessarily con∣sequent. For (as I said afore) I trust no reasonable man will con∣ceiue, that onely ecclesiasticall men will prooue deteiners of such ecclesiastical dueties, and culpable in those offences, that are pro∣ued (afore) to be of ecclesiasticall conusance: nor yet that they on∣ly shal alwayes happen to be present, and able to beare witnesse, in all those other seuerall ecclesiasticall causes, afore touched.

Furthermore to make it more plaine, and to deliuer it in seue∣ralty; recognitionem facere cannot signifie (in this place) the an∣swere of the party conuented. For if a lay man against whō there is cause of action, vpon some other of the matters ecclesiasticall list not, nay if he neede not, and which is more, if (by law) he may neither come to the place, nor (being come) may answere either yea or no; then could no plea at all in any such ecclesiastical cause be holden. If it be said, that a Lay man must answere, but not by oath in such other cause: I replie againe, that either the Register hath not the writ aright printed, or else this no way can be so meant. For by the disiunctiue (vel) when the proposition is nega∣tiue and prohibitiue, as it is here, both the one and the other is forbidden to be done. 1 1.384 A disiunctiue argueth seueral things, that had neede to be expressed by seuerall wordes.

And by like reason it cannot be meant of witnesses depositions: for if the partie conuented shall be content de facto, (though he be not compellable by lawe, as this opinion presupposeth) to de∣nie the intention of his aduersarie; then no Lay witnesse might in any such other cause ecclesiasticall, be vsed, either to depose with oathe or without oathe; because both be forbidden, and so no plea in any such other ecclesiasticall cause coulde be holden,

which is afore prooued to be otherwise: and therefore conse∣quently, that is not the meaning of these wordes of the writte, which is (by 1 1.385 Fitzherbert and others that follow him) enforced.

Touching the writ of Attachement thereupon whether (as it is set out in the Register) it may be holden to haue bin an originall writ at the Common law, drawen (at first) by the grauest aduise in the Realme; & to be so perfite, as that nothing (further then is expressed by the words) neede therein to be vnderstood to come by the true meaning: may partly be gathered by that which fol∣loweth. First it is said, pone talem episcopū, not vsing letters for his name, as in most of the other writs. Next, a Bishop (who in that he hath a Barony, is presumed to haue temporalties whereon to be distreined) is here appointed to finde vadios & plegios. Thirdly, it hath laicos homines & foeminas; as if women were not homines; seeing homo is the cōmon gender. Fourthly, though the prohibiti∣on (whereupō it is framed) forbiddeth both recognitiōs to be made, and oathes also to be taken by lay men: yet the Attachement wholly omitteth the making of recognitions. And yet howe many oathes soeuer should be giuen if none answeres or depositions doe there∣upon euer followe (which two the opinion that we impugne, meaneth by recognition) what colour of preiudice doeth or can growe, that either Prohibition or Attachement, should neede to be awarded? Fiftly, neither by Ciuill nor Canon lawe; neither yet by practice; doth any sommons or citation goe out of an ecclesi∣asticall court, in such sort, as this Attachement assigneth, to be a preiudice vnto the royall dignitie, viz. ad comparendum coram eo, ad praestandum iuramentum, pro voluntate sua; ipsis inuitis. For it were a grieuance giuen (euen at the Canon lawe) if an Ordinarie should either call any being not a partie or necessarie witnesse in some matter depending, or should call witnesses against their will, not being first required, and hauing their charges offered; or if he should do it, when there is no cause, but 2 1.386 for his owne plea∣sure, as this writ implieth. Sixtly, the proceeding hereby condem∣ned, is saide to be done; in praeiudicium graue, coronae & dignitatis nostrae regiae. But if no matters be thereby drawen from the kings courtes, as in deede none be (though you followe the in∣terpretatiō thereof by some enforced) then what preiudice com∣meth to the crowne? For, though lay men be vrged to depose

vpon their othes, in all other causes besides, that be of Ecclesiasti∣call conisance; what damage or detriment doth the Crowne and dignitie royall thereby susteine; more then it doth by their com∣pulsiue deposing with othe, in causes Testamentarie and Matri∣moniall, which this opinion admitteth and alloweth of? For if none other causes Ecclesiasticall then those two, could conueni∣ently be proceeded in, nor any remedy could be giuen by a court Ecclesiastical, for want either of the parties answere, or witnesses de∣positions vpon othe: yet could not Temporall Courts (as the Lawe standeth) giue any more remedy in them. And so no preiudice to them or to the Crowne, that Courtes Ecclesiasticall do proceed as they do, to the determination of such causes. Nay rather on the other side it were a preiudice to the Crowne, that subiects should offend, and no good meanes should be found by Law to punish them; or to haue a right, & yet no way for them to come by it.

Seuenthly, that which is there condemned, is said to be 1 1.387 con∣tra consuetudinem regni nostri. which doeth strongly argue, that vrging parties in other Ecclesiastical causes to put in their answere vpō their othes, or witnesses so to testifie; is neither by that fourme of Prohibition forbidden, nor by the Attachment thereupon, ment to be disallowed. For (first) the custome of diuers Courts Tem∣poral, requireth parties answeres vpon othe; and likewise alloweth Writs of sub poena and other processe (in sundry cases) to compel witnesses to come in, and to testifie their knowledge.

And againe; in Courts Ecclesiastical, the custome hath alwayes bene, to require othes of parties and witnesses (though otherwise vnwilling) in maner as is a fore touched. Which may appeare, both in that the Lawes Ciuill and also Canon, which they deale by, doe require it: and that no bookes of Actes Ecclesiasticall (as I am verely perswaded) can be shewed, whether of olde or later times; by which it may not appeare, that this course of compel∣ling parties and witnesses to take othes, in other causes then those two; hath bene vsed, so often as occasion hath required. And therefore not this, but some other maner of proceeding it was; which by the Writte of Attachment is meant, to be contra con∣suetudinem regni.

Lastly, this fourme of Attachment, mentioneth not so much, as excepting of compelling to take othe, in causes Testamentarie

and Matrimoniall; albeit the prohibition haue that exception. And therefore for auoyding of iarre betwixt them, something must necessarily be vnderstood, to haue bene at first in the Writ it selfe (whereof this is a minute) further then is here expressed. And why shall not then, the clause de catallis & debitis be vnder∣stood therein, aswell as this other; seeing so strong probabili∣ties doe leade it, and so many absurdities and inconueniences be thereby auoyded; which the late enforced interpretation doth (necessarily) inferre with it selfe?

Therefore wee may conclude this second point: that to de∣barre Courtes Ecclesiasticall, in any cause of that Iurisdiction, from exacting parties conuented to put in their answeres vpon their othes, or from compelling such witnesses (by censures) to testifie, who being required, and their necessary charges being offered, doe neuerthelesse refuse to testifie a trueth: is not, nor yet can be, the meaning of that Prohibition, or of the Attachment thereupon.

The last point of the three to be touched, is concerning the true meaning of those wordes of the Writte, whence these con∣trouersies haue flowed. It is therefore to be remembred, that it was very vsuall for men in those dayes, at making of any con∣tracts, whether in matters of Lay fee or others, for their more se∣curitie, to make faith or othe, for performance. This they either did priuately, for confirming of deedes drawen betwixt them: or else (for more readinesse of dispatch and better testimonie) they 1 1.388 would recognize one to another such contractes, with faithful promise (called fidei praestatio) and sometimes with 2 1.389 cor∣porall othes voluntarily taken before Ordinaries, and therefore procure an Acte to be made by a publicke Notary. Then, if ei∣ther paertie failed in performance, he was by Processe Ecclesiastical called before the Ordinary, as to answere for an Acte done afore him, or fidei laesione: which failing, being confessed or proued, the Offendour was enioyned grieuous penance, and (no doubt) oftentimes compelled by censures, to keepe his faith or othe, by satisfying of the other partie.

This course being so ready at their owne doores in euery Dioe∣ces, and of so speedy execution; for the great feare then caried (by most sorts of men) vnto the censures Ecclesiasticall, and for grie∣uousnes

of the penance otherwise; grew to be very vsuall in eue∣ry place; as may partly appeare by the often disputes vpon pro∣hibitions brought hereupon (euen after this Writte was framed) that are here and there mentioned in the bookes of the Common Law, and are afore touched by me in 1 1.390 the 8. Chapter: and partly may be shewed by sundry old euidences and instruments, recor∣ded in ancient legers, and in Acts of Ecclesiasticall Courts, before the time of Edward the second, which I haue seene and perused. Namely I haue ready to be shewed, a solemne contract in wri∣ting made almost 400. yeres agone: wherein the Earle of Arun∣del, vpon a concord then made for himselfe and his heires, pro∣miseth and graunteth to the Archbishop of Canterbury and to his successors, certaine red deere and fallow of both seasons, yeerely for euer, to be at a certaine place deliuered for the Archbishop, out of the forest of Arundel. For the obseruation whereof, he there bindeth himselfe and his heires, by a corporall othe taken; and further graunteth, that if he or they faile herein, then the Arch∣bishop shall excommunicate them so failing, and keepe them vn∣der the same censure, till the purport of that agreement be per∣fourmed.

I haue likewise to be shewed, an olde written booke of 2 1.391 Acts Ecclesiasticall, sped in the Audience Court of the Archbishop of Canterbury in the reigne of King Edward the first, wherein sun∣dry suites pro laesione fidei of that nature be conteined. The thing which gaue colour hereunto, was the pretence of auoy∣ding and punishing the sinne of Periurie. For the Canon Lawe saith thus: Iuramenti causa, regulariter quis forum Ecclesiasticum, & non seculare sortitur. c. praedicandum. 22. q. & D D. in c. cum sit ex. de foro competenti.

If (saith a learned writer on 3 1.392 the Canon Lawe) the Action be touching an othe in respect of the Court Poenitentiall, or be commen∣ced for release of the bonde of such othe, so that it respect not princi∣pally the commoditie of some Lay person: or if it bee doubted, whe∣ther the othe be lawfull or not, be to be kept or not; then the conisance of it doeth belong to a Court Ecclesiasticall. And in 4 1.393 another place thus: When the partie to bee damaged by violation of the othe, is such, as cannot vse Action: or when enquirie is made for the correction of the Crime; then may the Iudge Ecclesiasticall

enquire euen against a Lay man not obseruing his othe. Insinuating, that in all other cases, violating of othes by that Lawe belongeth to the conisance of a Temporall Court. And the statute also of circumspectè agatis which alloweth punishment by the Court Ec∣clesiasticall for breach of an othe, but distinguisheth not there, in what causes or how farre, did giue herein some incouragement. So that the mischiefe that grew hereupon was this: that most Lay contracts of goods and chattels were by this meanes drawen into Ecclesiasticall Courts, though (in trueth as I thinke) contra∣ry to the Common Lawe of the Realme. For if the principall mat∣ter be of Lay conusance, for confirmation whereof such faith is made, or othe taken; then (according to the distinction 1 1.394 afore prooued out of the Common Law) it is not such faith or othe, that will change the authoritie of the Court, to make it simply of Ec∣clesiasticall Iurisdiction. For so 2 1.395 Bracton writing in the time of Henry the 3. testifieth, and withall giueth good light and eui∣dence, to the interpretation hereafter following, of those words of this Writ: Iurisdictionem regiam non mutat fidei interpositio, sa∣cramentum praestitum, nec spontanea partium renuntiatio, quamuis sibijpsis in hac parte praeiudicent per consensum: & illud idem dicen∣dum erit de debitis & catallis, quae non sunt de Testamento vel Ma∣trimonio, vel eorum sequela.

It was 3 1.396 one of the hundred Grieuances which the Germaine na∣tion complained of: that Ciuill causes and contracts, by pretence of faith or othe giuen, were drawen into Ecclesiasticall conisance.

Therefore to meete with this mischiefe, and to cut off the oc∣casion, this Writte of Prohibition seemeth to haue bene framed, viz. to forbid Lay men in any place, either before Ordinaries, or in priuate amongs themselues, to make any recognitions or ac∣knowledgings: whereof? of debts, or of cōtracts touching goods and chattels by their faiths or othes taken, in any cause whatsoeuer, besides Testamentary or Matrimoniall. For in these two causes neither then, nor at any time since (as in part is afore shewed) was it vnlawfull, for Lay men to make acknowledgement and depose in a Court Ecclesiasticall vpon othe, though it touched goods and chattels. In matters Testamentary, as in Probats, and in legacies of goods and chattels in demaund; in matter of inuen∣taries, and of accounts of the deads goods and chattels. In mat∣ters

matrimoniall, as in money promised with a woman in mariage, as is more fully shewed in the 3. Chapter. And so this writ is not simply prohibitorie of all Recognitions and Oathes (by lay men) in Ecclesiasticall Courtes, excepting those two causes: but onely forbiddeth Recognitions and oathes in other causes made or taken, that doe touch debtes, goods and chattels, or other such lay contracts, and all citing of parties to take them, or which haue taken them, and all citing or compelling of witnesses to depose touching such contracts about goods and chattels: though confirmed by faith or othe of the contractours.

Nay there is strong euidence to be brought; that not many scores of yeeres, before the 9. of Edward the 2. (when as Articuli Cleri were enacted, whereupon that Prohibition is said to be fra∣med) the Clergie both vsed, and thought they shoulde haue wrong to be barred from hearing all breaches of faith and periu∣iurie arising of, or touching what cause soeuer: so they dealt not with the very Temporal causes themselues whereupon such faith or othe was confirmatorie. If (saith a Constitution 1 1.397 Prouinciall of Canterbury) perhaps our Lord the King in his Attachments, prohibi∣tions, summons, shall make mention not of tithes, but of right of Patro∣nage: not of breach of faith or periurie, but of chattels: not of Sacri∣lege, or disturbance of liberties Ecclesiasticall, but of trespasses of his subiects, the correction of which, he affirmeth doth belong to him: then let the aforesaid Prelats make known vnto him, that they neither take conisance, nor minde to doe, touching Patronage, chattels, or other things belonging to his Courts: but of tithes, sinnes, and other causes meere Spiritual, belonging to their Office and Iurisdiction. Where∣by we first gather, that the Common Law herein was not then re∣solutely agreed vpon; in that they conceiued, this allegation tou∣ching faith broken and periury, would satisfie the King and his Courts. And secondly that the Kings Writs of prohibition and At∣tachement (in this behalfe) were then awarded, but for faith and othes made, concerning goods and chattels, because by that pre∣tence, the conisance of chattels was drawen into Ecclesiasticall Courtes.

I do finde in an old written parchment booke of statutes, rea∣ching downe but to H. 5. death; many matters of marke contei∣ned amongs the statutes. As among others there be, regiae con∣suetudines

apud Claringdon promulgatae. which (as is there rehear∣sed) were by K. Henry the second, propounded in Parliament vn∣to Thomas Becket, then Archbishop of Canterbury long before that Prouinciall constitution. Most of which, he did condemne by his censure, as preiudiciall to the liberties of the Church: And this is said there, to haue bene the originall cause, first of his banish∣ment, and afte•• of his death. But some of those customes, Becket did tolerate; whereof this is one, seruing to our present purpose, viz. Placita de debitis, quae fide interposita debentur, vel absque inter∣positione fidei, sint in curia regis. Hoc tolerauit.

At the ende of that Treatise it is saide; that foure yeeres after Beckets death, viz. 1174 of Christ; the King repenting himselfe, did together with the Prelates and greatmen of his kingdome, abro∣gate and condemne those euill and vniust customes; appointing onely those that were good, to be thencefoorth obserued. Yet (saith he) some of those that were so abrogated by the king, and condemned by the Church; are still obserued in the kingdome. If this be with the kings knowledge and allowance, let the King looke to it, for God know∣eth it.

The chiefe cause why I note it, is this: that it was euen then thought a Custome of the Realme; and by Becket himselfe allow∣able and tolerable; that Pleas of debts, though faith or othe were giuen for their payment, belonged to the Kings temporall Courtes. Next is, that hence may be gathered, how the Recognitions and othes forbidden to be made in Courts Ecclesiasticall by the Writs which we here dispute of; are to be vnderstood of such of them onely, as concerne debts or chattels; sauing that in causes Testa∣mentary and Matrimoniall onely, they may be there made and acknowledged, albeit they concerne debts and chattels.

It may also appeare euidently, that the Recognitions forbidden to be made in Courts Ecclesiasticall in any cause sauing of Testa∣ment or Matrimony, ought to be vnderstoode of Recognitions and othes about debts and chattels. For lightly in euery place, where these two matters of Testament and matrimony are spoken of, there also debts and chattels are spoken of to this effect; that in these two cases, Pleas of debts and chattels may be handled in Courts Ecclesiasticall, but in none other. Bracton (who wrote before this Writte was framed) saith 1 1.398 thus: Si Clericus petat

versus Clericum vel Laicum, debitum, quod non sit de Testamento vel Matrimonio, sequi debet forum Laicale. And 1 1.399 againe a litle after: Non pertinet ad regem cognoscere de catallis, quae sunt de Testamento vel Matrimonio. Likewise in a precedent of a prohi∣bition, he 2 1.400 vseth this addition: Nec teneatis placitum in curia Christianitatis de catallis vel debitis, quae non sunt ex Testamento vel Matrimonio.

In the 3 1.401 booke of Entrees the like is often found, as Attachia∣tus fuit ad respondendum tam Domino regiquàm N. de placito, qua∣re secutus est placitum versus eum in curiae Christianitatis, de catallis & debitis, quae non sunt de Testamento vel Matrimonio. And in a 4 1.402 copie of Consultation there: callidè machinans impedire, sugge∣rénsque in Cancellaria nostra ipsum tractum fuisse in placitum coram vobis in curia Christianitatis, de catall•…•…s & debitis quae non erant de Testamento vel Matrimonio &c. Yea, and in 5 1.403 the Register it is set downe more plaine a great deale in a copie at large of a Pro∣hibition, vpon the same point, and with the same causes excep∣ted, being the next following to that which wee (principally) doe here treate of. For the very worde of Recognitio before an Ordinary, is there vsed and applied to a debt or contract touching goods and chattels. Cum recognitiones debitorum (quae non sunt de Testamento vel Matrimonio) ad nos, coronam & dignitatem no∣stram (& non ad alios) pertineant in regno nostro: & executiones earundem per nos & ministros nostros (& non per alios) fieri debe∣ant: ac iam ex querela I. acceperimus quod vos ipsum I. ad viginte solidos, quos coram vobis nuper in curia Christianitatis recognouit se debere A. eidem A. soluendos intra certum tempus iam praete∣ritum monuistis, & in ipsum I. pro eo, quod praedictos viginti solidos in∣tra tempus praedictum, ad monitionem vestram soluere recusauit, (quanquam huiusmodi recognitio Testamentum vel Matrimonium non tangat) &c. excommunicationis sententiam fulminastis &c. vo∣bis prohibemus, &c. And the very like words, to the same effect, and with like exceptions, are there vsed in the fiue precedents of Prohibitions, next in order following.

And in the olde written Register (afore spoken of) there be many copies of Prohibitions set downe; in all which whensoeuer that exception of causes Testamentary and Matrimonial is men∣tioned, that clause de catallis & debitis quae non sunt de testam. &c,

commeth in with all. In the printed Register among the Writs Iudicial, we haue these 1 1.404 words: Quare secuti sunt placitum in cu∣ria Christianitatis de catallis & debitis quae non sunt de Testamento vel Matrimonio. And againe: 2 1.405 cum traxisset in placitum in curia Christianitatis de catallis & debitis, quae non sunt de Testamento vel Matrimonio &c. prohibitionem impetrauit. We haue further, in the Register of originall Writtes, to this effect: 3 1.406 Quatenus ad corre∣ctionem animae & non placita de catallis & debitis concernunt, &c. li∣citè ex officio procedere poteritis, &c. And in diuers other Writs of 4 1.407 Consultation there, to this purpose: Prohibitionem nostram impe∣trauit, asserens se trahi in placitum in curia Christianitatis, de catal∣lis & debitis quae non sunt de Testamento vel Matrimonio &c. In∣so much, that this 5 1.408 Writ is entituled as by his name thus: Prohi∣bitio nostra, or regia de catallis &c.

I finde a Consultation in the 6 1.409 Register, where is rehearsed: that certaine Lay men of Couentree were by compulsories, called into an Ecclesiasticall Court, as necessary witnesses (in trueth) in a cause of legacie; yet they to auoyde apparance, and to obteine a Pro∣hibition; suggested that they were drawen into the Court Chri∣stian to testifie, about chattels and debts, not belonging to testament or Matrimony. Now if that meaning (of the Writ in controuer∣sie) which we here impugne, were true; what needed they to haue mentioned chattels and debts at all? for then, the other part of their suggestion (though false) had bene (in Lawe) sufficient, to haue obteined the prohibition, viz. That they were called, a∣gainst their wils, to testifie in a Court Ecclesiasticall, touching mat∣ters, being neither Testamentary nor Matrimoniall. But seeing they were driuen to pleade both: it argueth, that citing men to take othes, and to depose against their wills, in any other cause then those two; is not simply and absolutely prohibited; but for that the matter concerneth chattels and debts, and yet is neither Testamentary nor Matrimonial. And therefore not that (which of late is enforced) but this meaning of the Writ by me deliuered, is the true interpretation thereof.

The very Writte it selfe set downe by 7 1.410 Rastall at large, doth establish this interpretation: Rex Episcopo Norwicensi &c. salu∣tem. Cùm cognitiones placitorum, &c. super turatis Recognitionibus Laicum feodum contingentibus, & rebus alijs ac causis pecuniarum,

& alijs catallis & debitis (quae non de testamento vel matrimonio) ad coronam & dignitatem nostram pertineant &c. for, if Iurata recog∣nitio (being in the same writ) should signifie a diuerse thing: then must we needes say, that the recital speakes of a matter to be re∣medied, and yet the remedie giuen is of another nature, and so not pursuant to the former.

Furthermore, the tenour of that writ runneth to the Bishop of Norwich, and to his Archdeacons, &c. yet those wordes thereof, (whereupon the doubt riseth) are not directed to them, as if they should be charged thereby (which had bin most apt, if any such thing had bin meant) not so to cite lay men, or that they should not charge them with such oathes, or that they should not suffer such Recognitions to be made afore them: but it is there saide, that the King had commaunded the Sherife, that he should not permit, quod laici conueniant in aliquibus locis ad faciendas recognitiones, &c. which vse of the wordes ne laici conueniant, and the changing of the persons, argue strongly that it was meant of such recogni∣tions of debts and chattels, and such oathes, as Lay men of them∣selues were willing ynough to make; and therefore had neede of such restraint, by the Sherifes authoritie. which their volunta∣rie perfourming thereof, without vrging by censures; is also ar∣gued by that which is there said of the Ordinaries accepting at Lay mens hands of such things: viz. vobis praemissa, & alia consi∣milia, in partibus illis, acceptantibus. This of their willingnesse without constraint, is also prooued by the wordes immediatly following the point in controuersie, viz. & ne super huiusmodi feo∣dis, debitis & catallis, coram vobis & alijs iudicibus Ecclesiasticis, in praeiudicium iurisdictionis nostrae regiae ad coronam & dignitatem nostram spectantibus, subire praesumant.

Whereby (as in a thing needefull) Lay men are charged not to dare or presume in any other causes before Ordinaries to make any such Recognition or oathe, touching goods or chattels, preiu∣diciall to the Crowne: by which wordes, this our interpretation is expressely established. Nowe if those wordes in the copie of the Prohibition and of the Attachement in the Register shalbe ob∣iected against this, viz. Ad citationem talis Episc. And those, Ipsis inuitis: I answere, that for many absurdities thereupō following, which are afore noted; these wordes cannot stand with the writ

in Rastall, nor with the interpretatiō that is by some of late vrged. But vnderstanding them (as I declare) of citations and compulso∣ries to make answere or testifie by oathe, concerning chattels and debtes, not belonging vnto matter testamentary or matrimoniall; maketh al most aptly to agree together. For whether we say, that Ordinaries then vsed to cite all in generall of their Dioecesse, who had made promises or contractes in lay causes, by worde onely, (or by writing) to come and confirme them, by their faith giuen, or by their corporall oathes before them, for better confirmation and securitie of the bargaine, as some wise and learned haue thought very 1 1.411 probably: or whether they be meant of citing par∣ties to put in their answeres by oath concerning such chattels & debtes in demaund, confirmed by faith or oath giuen; or of wit∣nesses being not willing to depose in those causes, or of all these three: it is assured, that he, who findeth himselfe grieued thereby, wilbe vn willing: and that albeit the pretence of such Ordinarie be to punish the sinne onely; yet hereby (per obliquum) the coni∣sance of lay contractes wilbe drawen to eccles. courtes, and so the Kings courtes (vnto which they properly belong) shall thereby be encroched vpon, & preiudiced. But this cannot be truely said, touching matters of meere ecclesiastical conisance, being neither testamentarie, nor matrimoniall; though lay men be vrged by courtes eccles. to answere or testifie in them vpon their oathes.

Besides, what damage cōmeth to the cause nowe by vs defen∣ded; if we say, that the absurdities following vpō such their inter∣pretatiō being not a fore wel weyed, & he out of whose copy the Register was printed, vnderstāding it as they doe; was content to adde those two clauses, for an explanatiō of the said writs, accor∣ding to his owne meaning; or that he was willing they should so be vnderstood? which perhaps enduced him to make such a briefe abridgement, of so long a writ. For it doeth not appeare, that be∣fore the imprinting, it was perused & allowed by any the Iudges then being; or by any others, deputed by publike authoritie, for the reuiewing and correcting of it. No doubt if it had bin (that I speake of nothing else) so many grosse errors in the Latin both a∣gainst cōgruity & al sense, as in every leafe (almost) of the copie which the Printer followed, are to be found; could not haue so escaped, without cōtrolement and amendment. But the former

wordes set downe by Rastall at large in the writ in selfe (where neither of these last recited clauses are to be found) are too cleare in this point, to be dimmed by any such light colours. But if here∣upon it be perhaps graūted (as the authour of the Treatise doth) that witnesses may take oath & depose willingly, in other ecclesia∣sticall causes, at the request of some of the parties: I must then call to their minde, that I haue shewed afore, that (following their owne interpretation) they may not, though they be willing. Yea though witnesses might, if they were willing; how can a reasona∣ble man entend, that the partie to be sued, will come in at all, but much lesse answere, if he may not be cōpelled vnto neither: viz. ne{que} ad recognitionem faciendā, ne{que} praestandū sacramentū: as Fitz∣herbert (in his natura breuiū) also doeth vnderstand and reade it. And the wordes reach vnto all lay persons, not distinguishing a partie from a witnesse.

Againe, by that their interpretation of recognition & oath, they could neuer haue such witnesses that be indifferent, as in part is afore touched. For if witnesses may not be vrged to sweare or to answere further then they list themselues; then will they onely answere to the matters propounded by him who produceth them, and wil refuse to answere the Interrogatories propunded by the other partie for his defence, by whom they were not reque∣sted to come. Which course (vpon the matter) taking away all testimonie, that ought to be indifferent for either partie, in such pertinent matters as are to be demaunded; is contrary to the lawe of God, of nature, of nations, and to the very qualitie of a witnesse. Decius saith: 1 1.412 Si testis deposuit pro vna parte, & interrogatus pro alia noluerit respōdere, illi fides adhiberi non debet; quia praesumitur sup∣primere veritatem. And so the course being most vnreasonable, that whereupon it followeth, must needes be also very absurde, and against Iustice. By all which premised discourse, it is made (I hope) manifest, whether Fitzherbert had good ground out of that fourme of Prohibition and Attachement to 2 1.413 gather; not onely that Ordinaries must expresse a particular cause in all their Citations: but also, that if they expresse any cause at all in the Citation, that (it seemeth by that writte) it must bee a cause ma∣trimoniall or testamentarie. For seeing they haue none other meanes besides Citations to summon men to their Courtes:

What is this latter collection (built but vpon a doubtfull see∣ming) else then an asseueration implied; that none other of the causes (afore) proued to be of ecclesiasticall conisance; shall euer be dealt in, by any court ecclesiasticall? and so (vpon the matter) in no court at all; for that temporall courts be out of iurisdiction in those matters. Which howe it may be defended from grosse ab∣surditie, I would gladly learne from any, that patroniseth this o∣pinion. But if the lawe were so in deede, that none should be cal∣led into ecclesiasticall courts, but for those two causes: I marueile what the Preshyteries (so much doted after especially by sundry fauourers of this interpretation) would doe here in this Realme, when their Cōsistorial power should be so lopped, that they could not call any man before them, but either in testamentarie causes (which they make in other mens dealings to be meere Ciuil cau∣ses) or matrimoniall, many of which also they now seeme willing to abandō, as temporall matters? for they should be driuen, either to be kings of molehils; or else to preache in the most vehement veine they haue, against that lawe and those magistrates, which (in such sort) would restraine them: as if they were both Anti∣christian, at least for hindering and so impounding of the preten∣ded gouernement of Christ: that thereby they might at length be set at libertie, to deale in their Consistories against all crimes whatsoeuer, according to their owne platfourmes. Yet herein they should deale very vnequally; because they will not nowe suffer that, vnder this gouernment; which themselues would pra∣ctice against crimes in a farre more ample, and peremptory ma∣ner, then either nowe is done, or were meete to be suffered.

In the bookes of the Common lawe I finde also some cases, that giue strength to this interpretation. For an 1 1.414 Attachement vpon a Prohibition was sued, because they sued in a spirituall Court for haye and money, which touched neither matrimonie nor testament: and after vpon shewing the Libell, which prooued that it was for tithes and oblations, a consultation was graunted.

Likewise 2 1.415 a Prohibition was sued foorth of the Chauncery (dire∣cted to the Iustices of the common Pleas) to make an Attachement, because the defendant had sued the plaintiffe in the spiritual court for debt, which did not touch matter of matrimonie nor testament, where∣of the conisance belongs to the Kings Court: and thereupon a prohi∣bition

was granted thence. Wherein it is woorth the noting, that Fitzherbert (in his 1 1.416 Abridgement) leaueth out these words (for debt) contrary to the booke it selfe at large, and also 2 1.417 to Brooke. I will not say it was to giue colour to his opinion in his Natura breuium, as if he ment to haue it sound, that no matter at all, but either matrimoniall or testamentarie, might be sued in court spiri∣tuall, whereas by these two reports it may appeare, that Prohibi∣tions did not lie in this respect for that the parties were sued and called into the ecclesiastical court against their wils in any other cause whatsoeuer then those two: but onely, for suing there for chattels & debt, which did touch neither matrimony nor testament. Whereof may bee gathered, that euer since the first framing of this writ, either none in this point hath knowen the lawe, vntill Fitzherbert (for nō est instandum inproposito:) or else those words doe carie another meaning then is now fathered vpon thē: which that they doeboth in the affirmatiue for ours, & negatiue against theirs (I hope) is somewhat plainely prooued. And therefore we may conclude, that these two last opinions, the one for not citing any person, in any other cause then these two: the other for not citing laie men, & for not vrging them to take oath, in any other cause ecclesiasticall whatsoeuer, but either testamentarte or matrimoniall, are voyd of all ground of law: nay are contrary to Statute lawe, to Common lawe, to practise for time immemoriall, and also vnto reason in some sort.

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 1.418 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 1.419 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 1.420 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 1.421 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 1.422 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.

CHAP. XIIII. That by the Statute her Maiestie may commit authoritie, and na∣turall borne subiects may take and vse in Ecclesiasticall cau∣ses, attachments, imprisonments, and fines.

THe next opinion that comes to be treated on, is: Whether the Queens Maiestie by her letters pa∣tents vnder the great seale of England, may au∣thorise the vse of any other processe in matters ec∣clesiasticall, then by citation, as by letters missiue, attachment, or such like? whereunto I adde the

other two of the same author, & depending vpō the same string: whether her highnesse may so authorise the vse (in matters ecclesia∣stical) of any other coërtion or punishmēt, as by fine or imprisonment? These opinions if they be not well grounded vpon lawe, seeme to me to touch her Maiesties prerogatiue roiall, and supreme go∣uernment (that was yeelded vnto her highnesse by statute) very deeplie; whosoeuer be Author of them.

And if this authoritie that is hereby impugned, be (in trueth) a preheminence vnited and annexed to the Imperiallcrowne of this realme, by Parliament: and if he be a man of any qualitie, (so that hee hath taken the oath of Obedience) let him vse good aduise∣ment, how it may stand with such his oath and allegeance. They are pretended both by the Treatiser and the Note-gatherer to be grounded vpon 1 1.423 these words of Magna charta, viz. No free man shall be taken or imprisoned, or be disseised of his free hold or liberties, or free customes, or be outlawed, or exiled, or any otherwise destroyed, nor we shal not passe vpon him nor condemne him, but by lawfull iudge∣ment of his peeres, or by the lawe of the land. Whereupon the Note∣gatherer also doeth collect, that none may be attached, but such as be first endited. But the end why this law was made, and the time when it was made, are needfull to be considered. The ende was this, that the Kings of this realme should not chalenge an in∣finite and an absolute power to themselues, (as some kings else∣where did, & yet do) without iudgement & lawful proceeding, to take away any mans libertie, life, countrey, goods or lands.

And it was at such time when the kings themselues thought, that Iurisdiction ecclesiasticall, was not (in right) no more then it was in fact at that time belonging to the crowne: therefore in that it is here sayd, Wee will not passe vpon him, nor condemne him, but by lawfull iudgement of his peeres, or by the lawe of the land; it is manifest, that the wordes haue no relation to Iurisdiction eccle∣siasticall: for that which was done by that Iurisdiction, was not (at that time) taken to be done by the King or by his authoritie: and the lawes that ecclesiasticall Iudges practised; were not then holden to be the Lawes of the Land, or the Kings lawes; as (since the lawfull restitution of the ancient right in that behalfe to the crowne) they be often called, The 2 1.424 Kings or the Queenes eccle∣siasticall lawes.

In the Preamble 1 1.425 of a statute made in king Henrie the eights time, it is to this effect said: that the people of this Realme, haue bound themselues by long vse and custome, to the obseruance of cer∣teine mans lawes (besides those which were ordeined in this Realme) not as to the obseruance of the lawes of any forren Prince, Potentate, or Prelate: but as to the accustomed & ancient lawes of this Realme, originally established as lawes of the same, by the sufferance of Kings, and by consent and custome of the people, and none otherwise. And a litle after, mention is there made, of such lawes humane, induced into this Realme; by the said sufferance, consents, and custome. This is brought to prooue; that the Parliament or such as it shall autho∣rize, may dispense with those, and with all other humane lawes of this Realme: for so they be termed. Whereupon, in the body of the statute, ensued that authoritie, which the Archbishops of Can∣turburie haue, of granting faculties, &c. And therefore the hu∣mane lawes (spoken of in the Preamble) are those Canon lawes; which by such sufferance, vse, and custome are (now) as the accu∣stomed and ancient lawes of this Realme, originally established as lawes of the same: howbeit by the meanes aforesaid, but induced into the Realme, and not here at first made nor ordeined.

There is 2 1.426 another statute also, made in her Maiesties time; in the Preamble whereof, they be called the Ecclesiasticall lawes of this Realme. So that when whole Parliaments do aduow them to be lawes of the Realme, yea & that for proofe of another point perhaps doutfull: we may then well make but light account of all the Treatisers exclamations to the contrary, who calleth thē strange lawes and forren lawes &c: so long as we meane but of such Canons, as haue bene of long time vsed, and be 3 1.427 not to the dam∣mage or hurt of the Queenes Maiesties prerogatiue royall, nor con∣trariant or repugnant to the lawes, statutes, and customes of the Realme.

Furthermore, it is well and notoriously knowen, that procee∣dings and condemnations Ecclesiasticall in ordinarie Courts were neuer made by the iudgement of a mans peeres, viz. by a Iurie: and therefore those words rehearsed, can not be so farre extended, as to include that iurisdiction. Yet as institution vnto a benefice, both before & after Magna charta, belonged alwayes to ecclesiasticall persons and iurisdiction; so did also the destitution

or depriuation from a benefice by the Common law: in which re∣spect, Bishops (that claime not the patronage) do alwayes plead to a Quare impedit, thus; Nihil clamat praeter institutionem & de∣stitutionem Clericorum, vt Ordinarius in dictarectoria de A. &c. whereby may appeare, that a man might (by law) be put out of his benefice (being his freeholde) otherwise then according to the forme of that statute. And this (by the way) may also shew, how vnsound a collection the Note-gatherer maketh, out of those words of Magna Charta; where, because a benefice is a freeholde, he would inferre that a Clerke may not be depriued of his benefice, but by a iudgement at the Common law.

I haue also proued in the chapter next afore, and in the eight, and the twelft chapters; that an Ordinarie in his dioecesse (euen at the Common law) might condemne a man for heresie; where∣upon (after committing to the secular power) such an heretike was put to death, by burning: but this was not done by any iudgement of his peeres, and therfore those words of Magna Char∣ta, are no way to be construed of any iurisdiction ecclesiasticall.

Furthermore, besides iudgement of a mans peeres, there is ad∣ded, or by the law of the land; which permitteth other triall then by Peeres: as by battell, &c.

Now seeing all iurisdiction and authoritie in this Realme, as∣well ecclesiasticall as temporall, was euer in right, but now is also (iustly) acknowledged, and is infact, vnited and incorporated vnto the crowne of this Realme: therefore inquire, whether vpon the premises it may not be probably said (albeit not according to the vsuall speech) that a iudgement duely giuen by the iuris∣diction ecclesiasticall, is giuen by the law of the land? But this cloud, or rather mist, which they would cast, is also plainely dispersed by the first chapter in Magna Charta: for thereby is made a flat distinction and seuerance, betwixt the grant there made to God, (with confirmation of the Church of Englands freedome, rights, and liberties for euermore) from those grants that are after made, to o∣ther the freemen of the whole Realme, in the rest of that charter: so that the iurisdiction of the Church, can not be intended to be meant in any of all the rest, except it be particularly expressed. Yet if those words were admitted to be meant and stretched foorth vnto that iurisdiction also, will not statutes made by the

like authoritie of Parliament, sufficiently qualifie or impeach thē?

Vnto this head, is that obiection of the Note-gatherer to be re∣ferred, where he allegeth out of the diary acts of the Clerke of the Parliament, I know not how truly, 1 1.428 that the Commons exhibi∣ted a petition, that Lollards arrested by the statute of 2. H. 4. should be bailed, and that none should arrest, but the shiriffe or other lawfull officers. Buthe doth fully answere himselfe therein: for the kings answere was (saith he) that Leroys' aduisera; which is the forme of dissent, that the Kings and souereigne Queenes of this Realme do vse, when they dissent or deny any statute or petition in Parli∣ament offered vnto them to be confirmed for a law. Whereby we see, that arrests & attaching for crimesmight be made with∣out enditement precedent; and by others then the shiriffe &c; and also, that albeit Magna Charta had bene to the contrary, yet an act of Parliament comming after, might change that law. Wherofifneed were I could shew sundry other examples: not∣withstanding, that which the Treatiser putteth vs in minde of, viz. that in K. H. 3. time, there was a iust sentence of curse and a∣nathematization, denounced by the Bishops; against the violaters or∣breakers of the said great Charter. But what if Bishops should vse the like authority now, to excommunicate indefinitely and afore∣hand, all such as shall hereafter breake some temporall law? it is to be doubted, that the Treatiser would not in this case be the same man, nor yet affirme it to be a iust sentence; but would ra∣ther threaten them with a Praemunire, for their kindnesse.

It is assured, that par in parem non habet imperium: and none authority can so binde it selfe by any law; but that (vpon good occasion and by like power) it may be abrogated againe. Yet how litle this plea of ours is needfull in this case is sufficiently shewed. Yea rather the defenders of these & such like opinions against the rights and liberties of the Church of England notori∣ously knowen so to be, by the reported lawes & customes there∣of, to them that know any thing in either: had need more iustly to feare that censure of the Bishops, if it be so iust; if so be they cary any feare at all or reuerence vnto the censures of the Church, which be so iustly inflicted, as themselues do yeeld.

As these opinions do onely reach and shoot at the commission ecclesiasticall, to impound and streine the authority thereof vnto

so narrow a roome; as that her Maiestie should thereby haue no seruice done by those her subiects which are imployed there∣in; wherby the fansies of the fauorites of these men, might more freely growe without discouery, or any such penal•…•…ie as they thinke they need care for: so for the iust defence (herein) of that commission, I may allege the words of the same statute, whereby it is established; 1 1.429 viz. They shall haue full power and authoritie, by vertue of this act, and of the said letters patents, vnder your highnesse, your heires or successors, to exercise, vse and execute all the premisses, according to the tenour and effect of the said letters patents, any mat∣ter or cause to the contrary, in any wise notwithstanding. By which words, tenor literarum, is signified whatsoeuer tenent in se, viz. that which is expresly conteined in them: by the effect of them is vnderstood, whatsoeuer is within the true and vnforced mea∣ning, of any such letters patents. So that if attachment, fine, im∣prisonment, &c. be either in the letters patents expresly contei∣ned (as in trueth they be) or vndoubtedly meant by them; then the vse and excercise of these, shall thereby sufficiently be war∣ranted and authorized vnto her Maiesty for granting; and to the commissioners, for so executing. And if any doubt (otherwise) might be made, yet there be two clauses in the words aforesaid, that be called verba siue clausulae operatinae: and do therefore sup∣ply many defects and wants in the exercise of a iurisdiction, dele∣gated by the Princes rescript. The first of them are those words, Full power & authoritie: and the other is, the generall non obstan∣te, in transcendenti, viz. of any matter or cause whatsoeuer.

But to all this is answered by some, that these words, viz. ac∣cording to the tenour and effect of the said letters patents, do worke thus much: that her Maiestie need not grant all, but so much iu∣risdiction, as her Highnesse thinketh meet: and that so many or few of them (so they be two atleast) may thereby be autho∣rized vnder her Maiestie, to exercise such iurisdiction. It is true, that those words so worke and import so much: but doeth it heereof follow, that nothing else is meant or can be compre∣hended thereby? Nothing (say they:) for other processe then citation, or other censures or punishment then excommunica∣tion, &c. her Maiestie can not commit vnto them: else might she also giue them authoritie to hang men. What? is there no more

difference with these men, betwixt attaching, fining or impriso∣ning, and plaine hanging? What will they then say of the Starre Chamber, which may impose all those three, and yet cannot put any man to losse of limme or of life? and this is great reason. For we are taught by the Ciuill lawe, (and I thinke it is agreeable al∣so to the lawes of the land) that wheresoeuer an authoritie is gi∣uen (in neuer so generall or pregnant wordes) it cannot be dra∣wen foorth to reach vnto any mutilation of limme, or paines ca∣pitall, except they be plainely expressed.

Other some, as the Treatisour, doeth answere this obiection in this sort: but yet to the ende of prouing othes of the parties, in cau∣ses criminall to be vnlawfull, a matter to be handled in the thirde part, viz. that how general soeuer the words of the acte be in one place, yet are they to be restrained to this particular, viz. none other then such iurisdiction ecclesiasticall, as may be lawfully vsed: and enten∣ding (per petitionem principij) that such oathes, be contrary to law. But in this his interpretation (he saith) he contrarieth diuerse great learned men in that lawe, whom it behoueth with a more nar∣rowe eye to beholde this statute lawe.

Truely halfe an eye of a meane learned man, will serue to dis∣couer, that he cautelously leaueth out one member of the disiun∣ctiue alternation, which is in that statute. For it is thus, viz. all Iu∣risdictions &c. whatsoeuer, by any Spirituall or Ecclesiasticall power or authoritie, hath heretofore bene, or may lawfully be exercised, &c. So that if either it haue bene exercised at any time, or hauing not bene put in exercise, yet lawfully may be; it is here graunted to her Maiestie. And were it in deede meete either in temporall or spiri∣tual Iurisdictiō, to leaue it to the dispute & determinatiō of euery priuate subiect that is dealt with; what may be lawfully, and what may not so be done, in either lawe?

The Treatisour, nor any other, cannot in answere hereof, say: that the worde lawfully, must also be vnderstood as repeated in the first member. First because it is a disiunctiue proposition; and therefore that word should haue bin expressed in the first part, if it had bin to be drawen vnto both; and not to haue bin put in the second part onely. Secondly, for that it would then take away from her Maiestie all such ecclesiasticall authoritie (being most lawfully in her Highnesse) as was heretofore exercised by, or

vnder the Pope, by vsurpation; and therefore most vnlawfully. Neuerthelesse the matters graunted and exercised by the com∣mission, which are by him chalenged; (I trust, God willing) shall be also otherwise prooued lawfull and warrantable. Against im∣prisoning by vertue of the commission (one of the speciall matters nowe in handling) the said Treatisour obiecteth: that, such par∣ties as refuse to sweare to answere the articles exhibited against them, are imprisoned without baile or maineprise: whereas by the lawe ec∣clesiasticall, they ought not to be imprisoned, but to be proceeded a∣gainst, as pro confessis.

It is true, that by Ordinary authoritie ecclesiasticall, no man may be imprisoned. Therefore the vntying of this knot, resteth vpon the whole matter here disputed of, viz. whether that sta∣tute 10. Eliz. doe not warrant her Maiestie, to graunt by her Highnes letters patents, power to imprison, for such contempt, as this obiection importeth.

To prooue that her Maiestie may not so graunt, nor they take such authoritie: the Note-gatherer affirmeth, that the commission bindeth them precisely to crimes punishable by the ecclesiasticall lawe; and to proceede according to the ecclesiasticall lawes of this Realme, and not according to the temporall: quoting fiue statutes for this, albeit there be in none of them any such matter. but both the first and second part of this obiection, is vntrue. For the commissi∣on (though nowe that power be not altogether vsed) graun∣teth the execution of foure statutes vnto them, and alloweth them to proceede aswell by Iuries, as by course of the lawe eccle∣siasticall. And when Doctor Grindall was Bishop of London, sundry crimes ecclesiasticall (by vertue of the commission) were tried by Iuries, before him and certaine Iudges, and other professours al∣so of the common lawe; being then in that commission. Yet is the Note-gatherer, vpon this vntrue ground bold to inferre, that to doe otherwise, is to encroche vpon the temporall iurisdiction: and to make an hotchepot in one commission. Truely this his collection is not worth an hotchepot, that is a pudding, as Littleton doeth ex∣pound that worde. For the temporall Iudges are not to proceede in matters of ecclesiasticall iurisdiction: and therefore their iurisdi∣ction is not encroched vpon, though in such matters ecclesiasticall attachements or imprisonments be vsed, or fines imposed; see∣ing

they themselues cannot (in those causes) vse or impose them.

When the whole Realme at the beginning of her Maiesties reigne was visited (by vertue of this statute) by Diuines, Ciuiliās, and Common Lawiers in that seruice imploied; who had authority by their seuerall cōmissions to attache, imprison, fine, &c. aswell as to vse censures ecclesiasticall; al which they did accordingly: then and at that time, none of these quicke & narrow sighted fellowes (lately sprung vp) were to be found; that could see more then the reuerend Iudges, and could so roundly tel her Maiestie, that she did graunt more authoritie to her Commissioners, then by that statute was giuen to her selfe. Oh, belike it was lawe then, and good iustice against Papistes: but to deale against pretended Re∣formatists, it commeth farre too short.

But the Treatisour vrgeth this matter yet further: he saith, that no learned man wil affirme, any Iurisdiction (by that acte 10. Eliz.) to be vnited to the crowne, but spirituall or ecclesiasticall. And that none such can affirme, that any iurisdictiō &c. repugnant or offensiue to the Common or Ciuill Policie of this Kingdome, is established by that Acte: for that there is none Antinomy or contrarietie of lawes. Whereupon he woulde inferre, that Attaching, Im∣prisonning, and Fining &c. (by vertue thereof) is not warranted to be graunted.

In answere whereof, let him vnderstand, that his argument followeth not vpon either of those Antecedents. For the first, though the matters of iurisdiction thereby vnited to the crowne, be onely ecclesiasticall: yet the maner of conuenting, or punishing in them, is not in that Acte so restrained, but that such other courses may be vsed, as to her Maiesties wisedome shall seeme most fitte: which by and by shall be shewed God willing. For the second: we deny the maner of conuenting and punishing establi∣shed by the commission, to be repugnant or offensiue any way to the Ciuill Policie of this kingdome: for it is warranted by that Acte.

This point (if the wordes of that whole clause be aduisedly weyed and considered) will be made most plaine. In the exer∣cise of a criminall iurisdiction, there is the matter, wherein it is bestowed, the maner of conuenting, and sanction or penaltie to be inflicted vpon offenders, which are to be considered. Now the matter of this iurisdiction and authoritie graunted to her Highnes,

and that may be assigned ouer by her Maiestie vnto Commissio∣ners, is visiting, reforming, redressing, ordering, correcting, and amen∣ding all such errours, heresies, schismes, abuses, offences, contemptes and enormities whatsoeuer, which by any spirituall, &c. Yet what course is to be holden in calling and conuenting, and what kind of penal∣ties or censures shalbe inflicted vpon offenders by that authoritie; are by no wordes of that acte expresly graunted to her Highnes, or mentioned, that they may be assigned by her vnto the Com∣missioners; and therefore of necessitie to be supplied by those generall wordes, viz. According to the tenour and effect of the let∣ters patentes. For els (by such an interpretation of theirs) we should haue matters for a Iurisdiction, but neither any maner to conuent and compell to come afore the Commissioners; nor yet punishment to lay vpon enormious offendours, against whom it was intended. Which, because it is very vnreasonable; therefore that opinion, whereupon it necessarily followeth, must needes be more absurd, and without ground of reason.

Yea (say other of them) be this as it may; and let them seeke out what processes, &c. may and shall be vsed by the Commission Ecclesiasticall: for it is contrary to the lawe, to graunt (by Commis∣sion) authoritie to inflict any punishment vpon a faul•…•…, which (by lawe) ought not to be inflicted: and therefore they gather that the Queene cannot authorise, nor any man may take power to attache, to fine, or to imprison men, by that Commission. Thus farre it is true, that a Cōmission may not be graunted to alter or change any lawe in force: but I trust it is not contrary to the Common lawe and custome of the Realme, by acte of Parliament, to alter and change that which stoode otherwise afore, at the Common lawe.

If this so did by the course of the Common lawe, no man may be put to the racke or torture (especially about felonies or mur∣ders) thereby to drawe him to confesse of himselfe, or of other men, his complices: Yet is it notorious, that in Wales and the Marches thereof, the President and Counsaile there established, doe vse, and lawfully may put men to such torture; by warrant of instructions onely sent vnto them from time to time, vnder her Maiesties gratious hand.

This their authoritie (I take it) is deriued from these 1 1.430 wordes

in an Acte of Parliament: The President and Counsaile there, shall haue power and authoritie, to heare and determine, by their wis∣domes and discretions, such causes and matters, as be or hereafter shall bee assigned to them by the Kings Maiestie, as heretofore hath bene accustomed and vsed. Which doe conteine no more particulari∣tie of authoritie, nor yet are of so much pregnancie to that pur∣pose; as the wordes (that establish the Commission Ecclesiasticall) be, for Attachment, fine, and imprisonment to be vsed, if it shall please her Maiestie so to commit them.

The deuise of the Commission Ecclesiasticall, was for assistance and ayde of Ordinary Iurisdiction Ecclesiasticall; and for roun∣der proceeding, and for more grieuous punishment at least (in these dissolute times) more feared; then can or may by Ordi∣narie Iurisdiction be inflicted. Therefore, if by the general words of that Acte, 1. Elizabeth, both these proceedings whereof wee here speake, and many other particularities of maner, persons, times, places, and other circumstances might not be warranted: then the authoritie (there) giuen to her Maiestie, were of none vse at all, neither could it possibly be practised.

But I thinke this power here by these opinions impugned, may be also prooued directly, out of the words of the very Acte, thus: whatsoeuer by any Spirituall or Ecclesiasticall power or autho∣ritie hath heretofore bene, or may lawfully bee exercised or vsed for visitation, &c. or reformation, &c. of all maner errours, &c. and enormities whatsoeuer, that is vnited to the Crowne, and by that Acte may be committed ouer by her Maiestie: But Attaching, imprisoning, and such like corporall coërtion, by some Spirituall or Ecclesiasticall power or authoritie, hath heretofore lawfuly bene exercised: And therefore may be appointed by her Ma∣iestie to be now exercised by the Commissioners Ecclesiasticall.

For proofe of the Minor, I am to put you in minde, what cor∣porall punishments and chastisements the superiours of euery Regular person, as of Monke, Frier, and Nunne, might and did lawfully from time to time lay vpon them that were vnder their Ecclesiasticall obedience; and yet (euen after their professing) they remained still the Kings subiects.

Likewise, when the statutes against Heresies were in force, these Attachings, imprisonings, and other corporall chastisements

were then lawfully exercised and vsed by Ecclesiasticall power and authoritie.

Lastly, 1 1.431 Bishops and Ordinaries may lawfully at this day punish and chastise Priestes, Clearkes, and religious men within their Iu∣risdiction, being conuicted of incontinencie, by committing them to warde and prison, there to abide, for such time as shall be thought to their discretions cōuenient, for the qualitie and quantitie of their tre∣spasse. So that we may conclude, that if any such power haue bene vsed, then her Maiestie may (as it please her) vse it still; and ap∣point the same to be vsed by her Highnesse Commissioners, howe and vpon whom, she thinketh good.

The Treatisour himselfe testifieth, that diuers euen of the lear∣ned sort, do hold and affirme (and that very confidently) that the Acte and Commission thereupon, doe giue full power and authoritie for any course soeuer, for the gouernment in causes Ecclesiasticall, that shall be mentioned in the letters Patents. This he exemplifieth by sun∣dry examples, though holden by such learned men, which neuer∣thelesse he accounteth contrary to Lawe: whereof some fall in most fitte for this place (because they are bent against the saide Commission) and others for other places of this Apologie.

First he thinketh it very absurde and not warrantable; that the Commissioners Ecclesiasticall shoulde commaunde Iustices of Peace, to assist any for attaching and imprisoning of offenders till they giue bonde for appearance. And saith, this is against Lawe and Iustice. The onely reason he rendreth of this his assertion, is: for that Iustices of Peace bee Magistrates, and Commissioners of Recorde, authorised, as well as the other. Belike himselfe is some Iustice of peace: Hoc vrit hominem, qui imperare, non parêre didicit.

And will he then (vpon his learning) deliuer; That no Magi∣strate or Commissioner of Recorde, may be commaunded by another; though no lesse be warranted by his Commission? Hereupon would follow, that Iustices of Peace and Sherifs might not be comman∣ded in any case by the Iudges of either Benche, by the Exchequer, by the Iustices of Assisse, by the L. Treasourer, by the L Chauncel∣lour or L. Keeper; nor yet by the whole Counsell boord. He thin∣keth it also not iustifiable, that any Magistrates should be comman∣ded by the Ecclesiasticall Commissioners to assist in Attaching, or to

attache any, vpon a warrant, called Quorum nomina. For reason of vnlawfulnesse hereof, he alledgeth: that no cause or matter is therein expressed or declared. But this might be (de facto) omit∣ted, in any other warrant, as well as in that. and yet is it vntrue, that in this kinde of warrant, no cause is declared. But admit it were otherwise; what Lawe of the Realme is against it? And if the like warrant shall come from the Lords of the Counsell to him, or any other Iustice of the Peace, to be ayding and assisting vnto some Messenger, in attaching of certaine persons to be caried vp vnto them as Prisoners, whom the saide Messenger shall name vnto them: will hee refuse to intermeddle in the seruice as sur∣mising the Lords to do therein against Lawe; because they com∣maunde him being a Iustice of Recorde; and for that they signi∣fie not by their Warrant, what the particular cause is, where with they minde to charge such persons that are to be Attached? But if in so doing their Lordships doe nothing contrary to Lawe, howsoeuer he doe foolishly and vndutifully to refuse to giue his assistance: why shall the Lawe anymore be against the Commis∣sioners, doing but the like; and that by expresse Warrant of her Maiesties letters Patents?

Another reason, why such Warrant should not be iustifiable, he doth alledge: because the names of such persons to be Attached be not set downe by the Commissioners, but are referred ouer vnto others to set them downe.

Mine answere hereunto is: First, that the Warrant of Quorum nomina, is very rarely vsed by the Commission, and the rarer, the better. Secondly, when it is vsed, the names of the parties are set downe and allowed (afore) by the Commissioners, and not by others, for anything that I can learne. Neuerthelesse there may be good and weightie occasions, to omit this course: as when such Warrant is directed to a man of qualitie and good credite, that he may put in the names; for this ende lest when one is ser∣ued, he bewray all to the rest, whose names be also in the same Warrant, that they may conuey themselues out of the way. Howsoeuer it be in this behalfe, I thinke the Treatisour will be long in finding out how this should be reckoned, to be contra∣ry to the Lawes of this Realme.

Hitherto touching the challenges made to some particular points, in the maner of exercising that Commissun.

But the Note-gatherer, (to cut off all these particular disputes) alleadgeth; that it may be thought, the whole Commission is voyde in Lawe. For that (as he surmiseth) it beareth date in Iuly, but was signed in Nouember next after; 1 1.432 contrary to a Statute. What? was this quarrell which is now picked against it, worth the pra∣ctise, of abusing a Counsellours name, to procure a copie thereof? Well, both the Preamble and body of the statute also doth cleare this cauill. For by the Preamble it appeareth; that the mischiefe to be remedied was: for that by grauntes antedated long before the King graunted them, other grauntees who (in very trueth) had the first graunt and great seale set to it, (yet bearing date truely) were expelled by colour of letters Patents, bearing the elder date. In the body of the Acte is conteined this particle Such, which is of restraint, viz. That the King (willing to put out such slye deuises or imaginations) did ordeine by Parliament; that letters Patents should be dated the day of their deliuery into the Chauncery; or else be voyde. Now if this Statute were to be vnderstood of all letters Patents whatsoeuer, where is the reason of that Lawe found in a Commission? but, ratio, est animalegis: & cessante ra∣tione, cessat Lex. Therefore this Statute can be stretched to none other letters Patents but Such, as the mischiefe mentioned in the Preamble, may happen into.

Yea, if it were otherwise to be vnderstoode; he must (ere any will beleeue him) bring more euident matter then this: viz, It is thought, and It may bee thought. Let him then goe seeke the Re∣cords in the Chauncery; and see, whether the date and the day of the deliuery of it, doe not agree: and so may hee haue more colour to wrest the statute, when he doth not misreport the matter in facte, as herein hee hath done.

CHAP. XV. That an Ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie.

IN the next opinion, I minde to be very short: it is this, that by none ecclesiasticall authoritie, a man may be depriued of his benefice (which is his freeholde) being not endited, and no suite of partie offered against him. Whereby (we see) he requi∣reth both an enditement, and a suite of some partie. It seemeth his meaning is, that a Minister cannot be de∣priued, but by way of enditement at the Common law, and that the Iudge (of Office) may not preferre such enditement; but it must needs be at the sute of a partie. I can not well coniecture, whereupon he pretendeth to ground this opinion. If vpon the 29 chapter of Magna Charta; it is shewed in the chapter next precedent, not to be vnderstood of Ecclesiasticall iurisdiction, or of the practice thereof. And moreouer, that chapter in Magna Charta requireth no suite of partie to preferre the enditement; so that it may be done by the Iudges of Office well enough.

But this conceit is very strange, that Bishops shall not haue au∣thoritie to depriue an Ecclesiasticall person from his benefice. It is shewed in the chapter afore, that by vsuall and allowed course of pleading to a Quare impedit, the Ordinarie doeth claime (as of common right) institutionem & destitutionem Cle∣ricorum, in benefices within his iurisdiction. And the olde rule was, Cuius estinstituere, eius est destituere. But perhaps it will be said, he meant, that a Bishop might doe it, but not of Office, that is, without a partie, albeit he put a Copulatiue in stead of a Disiunctiue.

But if his meaning be such, he meaneth more then is true. And further, what priuilege or benefite is this to the partie con∣uented, to be prosecuted by a partie, (and therefore perhaps of malice and by subornation of proofs) rather then by the ordina∣rie proceeding of office and duetie, for whose sinceritie, we may more probably presume and intend?

Moreouer, what if one that hath a benefice will come vnto the Bishop, and there stoutly defend Atheisme, Apostasie, or de∣nying

of Christ, or any other heresie, grosse blasphemy, or idolatry: may he not (till some accuser be found, or a partie to prosecute) depriue such a person from his benefice ex Officio? What if the beneficed person will confesse before the Ordinarie, that he was neuer called to the Ministerie, but hath vsurped it, by colour of forged testimonials of Orders: or that he hath committed Simo∣nie, Incest, Adulterie, or hath two wiues liuing at once, or 1 1.433 that he neuer subscribed nor read the Articles of religion, or being once conuicted, do againe defend some errour against such Ar∣ticles: may not the Bishop ex officio in all, or in any of these cases, depriue or declare his benefice void, except some other will come and make himselfe a partie? But that he may do it, appea∣reth 2 1.434 by the statute 1. of her Maiestie: for there it is said, he may enquire (which is alwayes ex officio, as shall be more plainly she∣wed in the second part) and may punish by Depriuation, &c. as in like cases hath bene vsed by the Queenes ecclesiasticall lawes.

CHAP. XVI. That after fortie dayes, an excommunicate person may be otherwise punished, then vpon the writ De excommunicato capiendo: And that the said writ may and ought to be awarded vpon contempts, rising on other originall causes ecclesiasticall, then any of those ten crimes mentioned in the statute 5. Eliz. cap. 23.

THe last opinions to be handled in this part, be these: viz. that an excommunicate person stan∣ding so aboue fortie dayes, may in none other sort be punished then vpon the writ De excommunica∣to capiendo. The other is: that, the said writ De excommunicato capiendo, ought not at all to be a∣warded vpon contempts rising from any other originall causes then vpon some of the tenne crimes, that be mentioned in the statute 5. Eliz. cap. 23. The first is easily impugned: for he may be pu∣nished twentie pounds by moneth, for absence from diuine prayer: neither shall his excommunication excuse him, for it is in his owne default. Besides, it is a great contempt in an ecclesi∣asticall cause, and therefore punishable by the Ecclesiasticall com∣mission, vpon the expresse wordes vsed in that Act, which doeth

establish that Commission.

And this standeth with reason, where there are great num∣bers of such wilfull persons, or slacke execution by Vnder-shirifs and Bailifs of that writ, as often falleth out; besides the great charges, in suing of it out. For I dare auow that in sundrie dioe∣cesses in the Realme, the whole yeerely reuenues of the Bishops there, would not reach to the iusticing of all such contemners (being of the baser sort of persons) by the course of this writ. They might happely to the great charge of the shire, keepe ma∣ny of them in prison long enough: yet they should neuer pro∣cure the fees backe againe, that first, whether for rich or poore must be defrayed, for want of ability in the persons so excom∣municated.

Lastly, the law ecclesiasticall very reasonably & grauely proui∣deth in this behalfe, that if a 1 1.435 man stand excommunicate aboue an whole yere, he may be proceeded with for suspicion of here∣sy: because the law presumeth, that such a mā hath smal feeling of religion, but rather contemneth it, and nourisheth some dam∣nable opinion against God and his Church. And therefore, such an excommunicate person, may be punished by reason thereof, otherwise then by that writ.

All the colour of reason that I find alleged against this course, by the Treatiser, is thus: that on our behalfe it will be said; this is a shorter way then the other pursuite of the writ De excommuni∣cato capiendo; being ouer-trouble some and full of vnnecessary cir∣cumstances. But hereunto he doth answer, that we forget the olde and true saying: Compendiaria res improbitas, virtus longa. Now if he will haue this to be a good answere, then must he holde; the shorter way alwayes to be the woorse, and the longer the bet∣ter. And where is then the rule of Logike, Frustrà fit per plura, quod fieri potest per pauciora? and how is he so suddenly fallen out with himselfe, that else-where condemneth Courts ecclesiasti∣call for lingering consistories? I perceiue neither long nor short will please him long together. But his reason is a fallacie of the con∣sequent. For though it be but a short cut vnto wickednesse; and the way vnto vertue be long and hard: yet is not all length commen∣dable, nor yet are all short courses condemnable.

The latter opinion of the two, here also to be handled; doth

crosse & thwart other of their owne opinions: for the Ciuill law saith: Frustrà fertur sententia, nisi parata sit executio. A decree or iudgement is of no effect, where execution of such sentence can not be had. The Iudges ecclesiasticall haue no compulsorie meanes to put their iudgements vnto finall execution, sauing excommu∣nication, & the writ De excommunicato capiendo, after forty dayes obstinacie. Those of the impugners of ecclesiasticall iurisdiction (vnder pretence of the lawes of the Realme) that be straitest la∣ced; doe yeeld causes testamentarie and matrimoniall to be of ec∣clesiasticall conusance; and (I hope) sundry others be prooued no lesse to be.

Now how shall any of those be euer effectually proceeded in, seeing they are none of the tenne crimes reckoned in that sta∣tute; if for not performance of that which is decreed, the wil∣full partie shall neuer be attached, for persisting vnder excom∣munication?

It appeareth also plainly by the Preamble, that the sayd sta∣tute was enacted, for better assistance vnto iurisdiction ecclesi∣asticall, by more due execution of the writ De excommunicato capiendo; especially against offenders in crimes of ecclesiasticall conusance. The Ordinaries (afore this) who had to deale in a∣ny matter ecclesiasticall, and all subiects that sued any other there, had this interest; of hauing a contemptuous person being excommunicated, and so remaining aboue fortie dayes; to be attached and imprisoned by vertue of that writ; vpon what o∣riginall cause ecclesiasticall soeuer such contempt grew. Now if that statute prouiding but a straiter course for execution of that writ, in tenne crimes onely; should with all take away the force and vse of it, as it stood afore at the Common law; not onely in sundrie other crimes of ecclesiasticall conusance still there punishable; but also in all causes Testamentarie, Matri∣moniall, of tithes, and in all other rights ecclesiasticall in that Court onely still demandable: then should it worke a cleane contrary effect to the very true drift and scope aimed at; and to the meaning it selfe of the Law-makers. But this is very vnrea∣sonable and absurd to imagine. for, quae in fauorem sunt introdu∣cta, non debent in odium retorqueri: and, quae ad vnum effectnm pa∣rantur, non debent contrarium operari effectum.

It is true, that in the beginning of the body of that Statute, the words be generall in this sort, viz. Euery Writ of excommuni∣cato capiendo, that shall be granted out of the high court of Chancerie, against any person or persons, &c. Whereupon some very learned in those lawes haue thought, that the maner of granting it, retur∣ning and deliuering it, which be there especified; doeth reach vn∣to all and euery writ de excommunicato capiendo: but yet that the new penalties there prouided for such person excommunicate, as shall not yeeld his bodie; are to be restrained vnto those one∣ly, who by Significauit are certified to haue bene excommunicated vpon some cause or contempt, arising vpon some originall matter of some of those ten crimes, there especified.

This seemeth to carie great reason with it: for in trueth (that generalitie there not withstanding) not only in the Preamble, but in diuers partes of the body of that statute, we find wordes taxa∣tiue and of restraint; carying the chiefe purport of that Act vnto such writs, as be grounded vpon some of those ten crimes. For the Preamble onely speaketh, of persons offending in many great crimes and offences: of continuing in their sinnefull and criminous life, and of such offenders. And the beginning of the bodie of the Statute is: for redresse thereof be it, &c. and afterward this word of Limi∣tation is often vsed, viz. Such writ of excommunicato capiendo: such persons excommunicate; and such Significauit. And therefore that statute nor any Prouiso in it cānot be entended, generally to take away the writ de excommunicato capiendo, in all causes, sauing in those ten crimes; as by this opinion is enforced.

But the clause thereof, Sauing and reseruing to all persons hauing authoritie to certifie excommunicate persons; doth put all this mat∣ter out of doubt and dispute. For thereby is saued and reserued to them like authoritie to accept and receiue the submissions & satisfa∣ctions: to absolue and release, and to signifie: and thereupon to haue such writs, &c. in such maner and forme as heretofore (respectiue∣lie) they haue vsed, as hath bene accustomed; and as they or any of them had, or ofright ought or might haue had: anything in that sta∣tute specified or conteined, to the contrary here of, notwithstanding. If then they may still signifie in like maner and forme, shall haue writs thereupon, may absolue and release, receiue satisfaction and submis∣sion, &c. as they had done before that time: then may and ought the

writ de excommunicato capiendo, to be awarded for contempt ari∣sing on other originall causes ecclesiasticall, then any of those ten crimes in that statute reckoned. For so Ordinaries did, and had afore that time, and since also; whatsoeuer this opinion now doeth deliuer to the contrary.

CHAP. XVII. Of a Prohibition, what it is, where it lieth not, and where it doeth: and how it ceaseth by a Consultation: & of the writ of Indicauit.

WHen any Court goeth beyond his bounds, and dealeth in other matter or sort, then the lawes of the land will warrant; there lieth in some cases writs at the common lawe, which are of Prohibition or Indicauit: and in other cases, a writ brought in by statute, called Prouision and Premunire: and the Prohibition and Praemunire doe lie as well a∣gainst temporall, as against ecclesiasticall Courts.

The Prohibition is a charge by the kings writ, to forbeare to hold Plea, either in some matter or maner, which it is supposed a man dealeth in, beyond his iurisdiction, or otherwise then lawe will warrant. Euery Prohibition is either Prohibitio iuris by the very lawe it selfe; or Prohibitio hominis, where the ministerie of the competent iudges (in that behalfe) is vsed. Any Statute pro∣hibitorie is 1 1.436 Prohibitio Iuris; a very prohibition in it selfe, and ther∣fore it is a contempt, to sue against it.

In a prohibition we are to consider; In what matter it lieth not, at what time it lieth not, where and when it lieth, & how it cea∣seth or looseth his force. For the first, it is 2 1.437 prouided by statute, and the king there determineth thus: that no prohibition shall goe out of the Chancerie, but in such case, where we haue the Conisance, & of right ought to haue. And therefore Thirning 3 1.438 said; when we see the iurisdiction belongeth not to vs; wee will graunt a Consultation. So that if the matter be meere Ecclesiasticall, there lieth no Pro∣hibition.

Touching the second point, it seemeth a Prohibition is not to be granted, till by sight of the Libel, there appeare cause to grant it. For 4 1.439 Henkstone held, that by the statute de Regia prohibitione &

de coniunctim fe offatis in fine, a man shall not haue prohibition, ante∣quam lis sit contestata in curia spirituali: which is, till a libell be put in, and the partie put to answere it: & this is to be certified to the Chan∣cellor by the view of the Libell: which Fortescue granted.

But this hath two exceptions: one is, when the copie of the Libell (contrary to the Statute 2. H. 5.) is denied: for vpon this cause, I finde a 1 1.440 prohibition granted, that the Ordinarie should sur∣cease, till the copie of the Libell, according to that statute, were deliue∣red. another exceptiō is in some court, where a surmise is made, that the suite (in trueth) is for some other matters, then are ex∣pressed in the Libell: for Brooke reporteth that 2 1.441 a man may haue a prohibition in the kings Bench vpon such a surmise (as for example by surmising the suite to be (in deede) for great timber, though it bee demanded in the Libel, vnder the name of Sylua caedua) but he saith it is otherwise in the Common Pleas.

Touching the third point, for what causes a Prohibition is granted: I find it may be granted either in respect of some of the parties to the sute, or in regard of the Iudge before whom it is, or for the very matter handled. For the first of these three: If a 3 1.442 Par∣son of a Church do sue another Parsons farmour or seruant for right of tithes, being not such as can trie the right of tithes: Fineux held that a prohibition may be granted. Here of see further in the 6. chap. afore.

Touching the second; it may be granted, either for the Iud∣ges contempt; as in not deliuering copie of the Libell, as is afore touched: or for that he hath not (in deed) any iurisdiction. for so it was iudged by Hankeford and by the whole Court, (as it see∣meth) in the vicar of Saltash his 4 1.443 case being cōuented before the Popes Collector. Though a Consultation did otherwise lie, the court wil not grant it to one, that hath no iurisdiction in right.

Concerning the third and last poynt of the three, if the mat∣ter bee Temporall, that is such, as 5 1.444 there lieth redresse for, by some Writte in the Chancerie, then there lieth a Prohibition, as seemeth by Statute: to which agreeth the 6 1.445 place before alleaged, out of the booke of Doctor & Student. Yet this hath also two excep∣tions: one is, whereas the Spirituall Court holdeth Plea quite to another end. For 7 1.446 when one & the selfe same case is debated before Iudges spiritual and temporal (as for beating of a Clerke) there the statute is; that (notwithstanding the spirituall iudgement) the kings

Court also shall debate it. For both these conisances tending the one to the amends, the other to the excommunication; may stand together, as is shewed in the 8. chapter.

The second exception hereof seemeth to be, 1 1.447 when one Clerke sueth another in the spirituall Court, for the goods of his house; for there lies no prohibition: as when one Abbot sueth another. Se∣condly, a prohibitiō lieth, where a matter (being at first ecclesiasti∣call,) brings at last in debate, a meere temporall matter with it, to be determined. Therefore it was holden, that so soone 2 1.448 as it appea∣reth, that the right of tithes comes in debate, the laie Court shall cease, and be out of iurisdiction: and the same law is of the spirituall Court: for if it may appeare, that the right of aduowson may come in debate, although it appeared not at first, the spirituall Court must surcease: quod fuit concessum. This may happen (as for example) when suite is brought (at first) for right of tithes; and it fals out by de∣positions or otherwise; that the tithes 3 1.449 demanded amount to the 4. part of the benefice by yeere: in which case it is determined, that the temporall Court shall haue conusance, euen as if the right of Patro∣nage were in demand principally.

Thirdlie, a prohibition lieth for such a cause, 4 1.450 as albeit there lie none action for it in a temporall Court, yet the matter is such, as of custome neuer belonged to an ecclesiastical court. As if an ec∣clesiasticall court would hold Plea against an executor, vpon a bare contract made by his testator: for neither the court may heare it, nor yet there lieth action for it in a Temporall court.

Fourthlie, there lieth Prohibition, when the suite tendeth to determine and giue execution in a temporall matter; as money, &c. being due otherwise, then by the iudgement giuen in the Court ecclesiasticall. Therefore if a composition by indenture 5 1.451 be made by an Ordinarie betwixt two ecclesiasticall persons; that the one shall haue tithes, the other an annuitie, with penaltie for default of paiment: the suite for this shall bee at the Common lawe: but the suite for any thing that riseth vpon a iudgement giuen in the spirituall Court, shalbe there, per Hill. For 6 1.452 though amends bee to bee made by a certaine summe of money, this is no necessarie cause to grant a prohibition, no more then when the suite is for tithes, yet the condemnation in money being the valew of them: nor when a penance is redeemed by the par∣tie for money, which may be sued for in a spirituall court, per Butler.

Because when an offence is done to a man, it is 1 1.453 reason that he haue a∣mends for it: but there can be no more proper amends then money, be∣cause euery thing may be valued by money, per Keble. Which they speake to prooue; that amends in money may be awarded in an ecclesiasticall Court for Diffamation: and so the iudgement then passed, vpon this ground (among others) as 2 1.454 Brooke testifieth.

And 3 1.455 there is a great diuersitie betwixt a duetie or summe of money or other things at the first demandable and determinable at the Com∣mon lawe; and such a summe as before sentence giuen in the Spiritu∣all lawe, is not due at all. For the first, there lieth a Prohibition, but not for the second: for otherwise, it would followe, that the spirituall lawe might giue a iudgement, which it could not put in execution. but this were absurd, per Reed & Tremaile.

Fiftlie, it is sayd that there lies a Prohibition, when the partie sued hath an action giuen him at the Common lawe, for the ori∣ginall and principall matter, whereupon the suite at the ecclesiasti∣call lawe did grow. The case was thus: Aman 4 1.456 reported that the Abbot of S. Albanes did detaine his wife in the said Abbots lodging against her will; to the intent to make her his harlot. the Abbot here∣upon brought his action of Diffamation in the Court ecclesiasticall; and the husband his prohibition. nowe because the husband might haue his action of false imprisonment at the Common lawe agaynst the Abbot, Brian held, that a Consultation was not to be graunted. de hoc quaere.

A prohibition ceaseth and looseth his force, after a 5 1.457 Consulta∣tion be once granted. This may bee prooued by the Statute De Consultat. for the Chanceller or chiefe Iusticer of the king vpon sight of the Libell, &c. if they can see no redresse by Writ, &c. shall write to the spiritual iudges, &c. to proceed, notwithstanding the kings prohibi∣tion directed to them before. But more plainlie after: Where 6 1.458 a con∣sultation is once duely granted, the Iudge may proceed in the cause, notwithstanding any other prohibition thereupon to him to be deliue∣red: so the matter in the Libell be not changed.

The writ of Indicauit is 7 1.459 likewise a kind of Prohibition; and lieth especially & naturally for a suite of tithes, which do amount to a fourth part or aboue, of the whole benefice. It lieth also for the Patrone, where his Clerke is impleaded for the aduowson (id est) the right of Patro∣nage, in a spirituall Court. the Patrone and Clerke that is sued in the

court ecclesiasticall may sue it foorth both against the Ecclesiasticall Iudge, and the partie that sueth there. But it 1 1.460 lieth not till the Libell be brought to be viewed into the Chancerie, & lis 2 1.461 etiam contesta∣ta. and 3 1.462 it lieth onely before sentence be giuen in the Court ecclesiasti∣call: for it is afterward voyd.

CHAP. XVIII. An Analysis or vnfolding of the two speciall statutes touching Prae∣munire, with sundrie questions and doubts about that matter, re∣quiring more graue resolution.

IN the matter of Praemunire (which is a question falling often in doubt about execution of Eccle∣siasticall iurisdiction, wherein as in the matter of prohibition & consultation you desired earnestly that I would write vnto you what I thought) I cannot in any point satisfie my selfe, much lesse you: by reason that this matter is enwrapped in ouer many dif∣ficult doubts for me to vnfold. yet I haue some thing considered of it, & do trust that I shal be able to point out vnto you certaine general heads, whereunto most of the doubts cōmonly made or hapning, may not vnfitly perhaps be referred: that thereby tan∣quam Thesei filo you may be directed (as opportunitie shal serue) what & how in this behalfe to enquire of the reuerend Iudges, or of other great learned and graue men of that profession.

There be two statutes, whereupon it is principally grounded. The first is 4 1.463 of Prouisors, established in the time of king Edward the 3. the complaint and griefe there propounded was, that the kings people were drawen out of the Realme, to answere vnto things, whereof the Conisance pertaineth to the kings Court: and that iudge∣ments there giuen were impeached in another court. The mischiefes then noted thereupon were, the preiudice and disherison of the king and of his crowne, and of all the people of the Realme: and the vndo∣ing and destruction of the Common lawe of the Realme. The remedie there giuen for these mischieues was: that if any of what conditi∣on soeuer (being of the kings liegeance) should drawe any out of the realme in plea, whereof the Conusance pertaineth to the kings court, or of things, whereof iudgements be giuen in the kings court, or which do

sue in another court to defeate or impeach the iudgements giuen in the kings court, should haue day, &c. as is there more largelie by the sanction contriued.

The other statute is, 1 1.464 of the time of king Richard the 2. there is shewed and laied foorth, that the Conisance of plee of Present∣ments to Benefices, belongeth onely to the kings court by the old right of his crowne: and that Archbishops, Bishops, and other spirituall per∣sons hauing the instituting vnto such Benefices (within their iurisdi∣ctions) be bound, and haue made execution of such iudgements, by kings commandements, without interruption: and that also they bee bound of right, to make execution of many other of the kings comman∣dements: but it is there complained, that processes and censures of excommunication vpon certaine Bishops of England, were made by the Bishop of Rome, because the sayd Bishops haue made execution of such commandements: and that hee purposed to translate some Pre∣lats out of the realme, & some frō one bishoprike to another within the Realme, without the Kings knowledge, and without their assent that so should be translated. There are assigned also for mischiefes here∣upon growing, the open disherison of the crowne, the destruction of the king, of his lawe and realme, and that these things are against the kings crowne and regalie, that they defeate and destroy the statutes, that they tend to make the realme submitted to the Bishop of Rome, and the lawes and statutes of it by him to be defeated and destroied at his will, that they drawe out of the realme (against the kings will) the sayd Prelates his liege persons of his councell, that be much profitable and necessarie to the king, and to all his realme, and that these deuises will be are away the treasure of the Realme: for remedie whereof it is prouided, what shall not bee done: viz. that none shall pur∣chase or pursue, or doe to bee purchased or pursued: where? in the Court of Rome or elsewhere: what? any such translations, proces∣ses, and sentences of excommunications, buls, instrumēts, or any other things: of what sort? which touch the king, against him, his crowne and his regalie, or his realme: in what maner touching these? as is aforesayde, and likewise, that none shall bring them into the Realme: or being perhaps brought in by another, shall receiue them; or being neither brought in by them, nor yet receiued frō others, but comming (some way) to their knowledge, shall not make any notification, or any other execution of them:

where? neither within the realme nor without, &c. vpon paines there at large conteined.

Of those generall heads whereunto I said afore, that all que∣stions of Praemunire might be referred, there be some that being expressed in these statutes, are (I thinke) without all doubt, to be within the compasse thereof: as by the first of these two, to draw any of the Queenes liegeance out of the realme in a plea, whereof the conisance pertaineth, or iudgements be giuen in the kings Court. And that which is sayd of a Plea in the kings court, is also drawen by some opinion, vnto a court Ecclesiasticall, for 1 1.465 Yeluerton in the Kings bench held opinion oftentimes, that if a Clerke doe sue another in the Court of Rome for a spiritnall matter, whereof he may haue re∣medie within the realme, that he is in case of Praemunire, quia trahit in placitum extra regnum. And 2 1.466 Fitzh. holdeth, that for collation of a Prebend sued out of the realme, a prohibition doeth lie.

Secondlie, it is an vndoubted Praemunire by that statute to sue in another court, to defeate or impeach the iudgements giuen in the kings court. In these wordes of (another court) there seemeth to be an opposition and seuerance of such a court, from the Kings court: the rather, because both the Preamble and the body of the statute do mention, drawing men out of the realme in Plea. Where∣of at that time there was no colour for any man to be drawen a∣ny whither, but onely to the court of the bishop of Rome, whe∣ther he resided there at Auignon in France, (where the Popes a∣bout that time did lie 70. yeeres together) at Bononie, or else∣wheresoeuer.

Therefore for the true vnderstanding of those words enquire: If any of this realme of late yeeres (whiles the parliament of Pa∣ris was established by the authoritie of the French king) vpō co∣lour, that the Queenes mai•…•…stie is in very right Queene of France, should haue brought processe thence against another subiect to appeare there: whether this had not been a Praemunire by that statute? likewise, If any of the Q. Courts (not authorised therunto by law vpon writ of errour) should defeate a iudgement giuen in any other of the Queenes courts: enquire, whether this be within the meaning of those words, notwithstanding the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 and di∣stinction, whereby such another court seemeth to be seuered and made a distinct thing from all the Queenes court?

Thirdly, it is an vndoubted Praemunire according to the later of the foresaid two statutes, to purchase or pursue, or to procure so to be done, in the court of Rome or else-where, any such translations &c. or any other things, which touch the King, be against him, his Crowne and Regaltie, or his Realme, as is (there) aforesaid: or &c. as is there further conteined.

Fitzherbert reporteth, 1 1.467 that the opinion of the court was (Pas∣chae II. H. 7.) that Alibi in the said statute was vnderstood of Bi∣shops courts: so that if a man sue there, for a thing that belongeth to the Common law, he shall be in the Praemunire. Therefore 2 1.468 was it holden by some, that a benefice Donatiue by the Patron is a meere lay thing, and the Bishop shall not visit it, and therefore shall not depriue from it, and if he meddle in this case, it is a Praemunire: and sayth that Barlow bishop of Bathe, for depriuing the Deane that had it as a Donatiue by the Kings Letters patents, was driuen to sue a pardon.

Fineux chiefe 3 1.469 Iustice, saith; a spirituall man may execute tem∣porall iurisdiction, as the Bishop of Durham doth in his countie Pa∣lantine (viz. as he hath iura regalia, but not as a Bishop) and (saith he) the Bishop shall punish his Clerks by Praemunire for suing in Spirituall courts for a cause temporall. But whether that Bishop hath this authoritie (seeing Praemunire is brought in by statute) there is a Quaere inde made, as of a matter doubtfull.

It is holden, that a Prohibition doth 4 1.470 often lie, where a Praemu∣nire doth not: as of tithes of great trees &c. for the nature of the a∣ction doth belong to the Spirituall court, albeit not that very cause in that forme; but when it is of a lay matter, or of a thing that neuer did belong vnto the Court spirituall, herein (as is said) there lieth a Prae∣munire.

But these notwithstanding, sundry doubts are made in this behalfe, because at this day all iurisdiction Ecclesiasticall is now truely acknowledged, and is in deed (as it was alwayes in law) in the Souereigne prince, and from her prerogatiue royall deriued downe to others, no lesse then the Admirall court is, or the court of the Constable of England in times past was, when it was vsed: albeit they vsed their peculiar seales, and names to the processes there sped. And I haue heard very credibly, that some reuerend and great learned Iudges (whiles they liued) were of opinion,

that for an Ecclesiasticall Iudge to deale in a matter apperteining (in very truth) to a Temporall court, yet for some neerenesse and coherēce, by him probably supposed to be an ecclesiasticall cause; could not at this day be a Praemunire; but subiect onely to a Pro∣hibition, and punishable as a contempt, as it was at the Common law, vpon an attachment after Prohibition. Which opinion if it be sound; then the Treatiser is farre wide from the truth, where he saith: that for men to deale in any cause not belonging to their iu∣risdiction, is Praemunire. This were very hard and rigorous, if eue∣rie mistaking or going beyond their commission by Iustices of Peace, by any Iudges ecclesiasticall or temporall, should be no lesse then Praemunire. I haue heard it deliuered by great Law∣yers, that so to do, doth but make the Actvoid, as being coram non Iudice, and inferreth no such grieuous penaltie. For it is alle∣ged, that (Alibi) in the statute was put in, to enclude processes deriued from the Popes authoritie, albeit he kept his abode any where els then at Rome. In which respect it is affirmed in a 1 1.471 sta∣tute; that the said statute of Prouision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the kings crowne and dignitie royall. And it seemeth to some, that Alibi can not now signifie Bishops and their Courts, which are called the Queenes Ecclesiasticall courts and Iudges, and the Ca∣nons by law established, the Queenes Ecclesiasticall lawes. In∣somuch, as the power giuen by statute to her Maiestie, by her Let∣ters Patents to 2 1.472 name such as shall execute all maner of iurisdictions touching or concerning any Spirituall or Ecclesiasticall power, is brought 3 1.473 to prooue the sufficient ordinarie authoritie, that Bishops haue giuen vnto them, by the very Letters Patents directed from her Highnesse, for their confirming and consecrating, &c.

It is further alleged, that such dealing of an Ordinary toucheth not the King, against him, his Crowne and Regalie, or Realme, as not falling into any of the mischiefs, whereof that statute was meant to be a remedie.

And for that (all iurisdiction Ecclesiasticall is now both in fact and Law vnited to the Crowne, and from thence deriued) if it should be sayd that the handling of a matter but in an incompe∣tent court (yet established by the Queenes authoritie) were in that high degree of offence & punishment against her Crowne:

some thinke it reacheth thus farre; as to implie an incompatibi∣litie betwixt the Crowne and Ecclesiasticall iurisdiction; and so by implication, to denie her iust Royall prerogatiue ouer all persons, and in all causes aswell Ecclesiasticall as Temporall; as if these could not both flow from the Crowne, nor stand together and meet in one person; which is most erroneous to thinke, and traiterous to affirme.

It is likewise alleged, that this were to make in effect a Prae∣munire to lie in euery case, where a Prohibition may, and alwayes hath serued the turne. Whereas a Praemunire seemeth to be as a remedie prouided, where a Prohibition could not serue, to stay the course of proceeding. And that euen before the supremacy was acknowledged to the Crowne, no Praemunire vpon this point (onely) is reported in the bookes of termes and yeeres, to haue bene inflicted: but onely for pursuing pleas of the conusance of the kings court out of the Realme, seeking to defeat iudgements there giuen, and procuring Bulles from the court of Rome, in de∣rogation of the lawes of the Realme.

Moreouer, it is to this purpose alleged, that by the 1 1.474 statute au∣thorising two and thirtie persons to set downe lawes Ecclesiasti∣call, though repealed, it was prouided (as they thinke) in affir∣mance of the law, that no man for executing any of them, should haue incurred contempt, paine, forfeiture, losse, nor haue bene in dan∣ger of any action or suite of praemunire. Yet if such lawes had bene framed, the Iudges ecclesiasticall might (by mistaking) haue giuen some cause of prohibition. Therefore it is gathered by like equi∣tie, to be very hard, that an Ecclesiasticall Iudge meaning to do his dutie, and but to execute Ecclesiasticall iurisdiction ecclesiastically, yet by similitude and neere coherence of one matter with ano∣ther, mistaking and so exceeding his authoritie (a thing very ea∣sie in the Common law, wherein sometimes do happen varietie of iudgements, amongst the oldest professers of it) if before any prohibition brought (as it were to forwarne him) he should here∣upon de drawen at the very first push into a praemunire. For by like reason, if a court Baron should heare plea of a matter aboue fortie shillings, a praemunire in stead of a prohibition might be brought against them.

Therefore enquire, and seeke to enforme your selfe aswell

in the premisses, as of these questions following, what is to be holden for law: viz. in holding plea in an Ecclesiasticall court * 1.475 of a temporall matter, whether there be not a difference, when it is propounded vnder the very name of a temporall action, and when it is propounded vnder the name of an ecclesiast. matter?

And whether the Iudge be in danger before the matter be * 1.476 opened vnto him, or no? For I thinke in no Court temporall or ecclesiasticall, the Iudges peruse the writs, declarations &c. when they are first put in.

And whether it be as great an offence in law but to hold plea, * 1.477 as to giue iudgement, and to award execution in an Ecclesiasti∣call court of a temporall matter?

Also whether it be like degree of offence for an ecclesiasticall * 1.478 Iudge to execute a temporall matter by censures ecclesiasticall, as it is to execute it, or a matter ecclesiasticall by temporall, viz. fine, imprisonment, losse of limme, or such like?

Likewise of what qualitie the offence is to go on in plea in a * 1.479 Court ecclesiasticall after a meere temporall matter (as right of aduowson, &c.) falleth in controuersie, principally to be deter∣mined?

Or to holde plea there in a matter worthie of redresse, yet ne∣uer of custome handled either in temporall or ecclesiasticall * 1.480 Court, nor whereof any remedie lieth at the Common law?

Also what offence it is to make lawes temporall or ecclesia∣sticall without the Princes assent? * 1.481

What it is to deale in temporall causes or courts, without * 1.482 commission? and what in ecclesiasticall?

And lastly of what degree and qualitie of offence is it, for a * 1.483 Court temporall to holde plea of a meere ecclesiasticall cause? or to deale in censures ecclesiasticall?

Or for such a court to holde plea of a temporall matter, be∣ing * 1.484 no competent Iudges thereof? as for example, if the Court of Common pleas, or the Eschequer should deale in pleas of the Crowne, that be capitall? with such like a great number. And so thus much for the first part.

The end of the first part.

Notes

• 1 1.1

  25. H. 8. ca. 19.
• 2 1.2

  27. H. 8. ca. 20. 32. H. 8. cap. 7.
• 3 1.3

  34. & 35. H. 8. cap. 19.
• 4 1.4

  1. Ed. 6. cap. 2.
• 5 1.5

  1. Mar. cap. 3.
• 6 1.6

  1. Eliz. cap. 2.
• 1 1.7

  5. Eliz. ca. 23.
• 2 1.8

  5. Eliz. cap. 9.
• 3 1.9

  13. Eliz. cap. 4.
• 4 1.10

  13. Eli. cap. 10.
• 5 1.11

  25. H. 8. ca. 19.
• 1 1.12

  25. H. 8. ca. 19.
• 1 1.13

  27. H. 8. c. 15.
• 2 1.14

  1. Eliz. ca. 1.
• 3 1.15

  8. Eliz. ca. 3.
• 1 1.16

  Cap. 1.
• 2 1.17

  Ibidem ca 4.
• 3 1.18

  Ibidem.
• 1 1.19

  15. Ed. 3. ca. 3.
• 2 1.20

  Nota interlin. pag. Regist. 65. b.
• 3 1.21

  Regist. in breu original. pag. 68. a.
• 4 1.22

  Reg. in br. orig. pag. 65.
• 5 1.23

  Ibid. & pag. 66. a. & b. 68. a. & 69. b. & 65. b.
• 6 1.24

  Ibid. pag. 69. a.
• 7 1.25

  Ibidem.
• 8 1.26

  Noua nat. breu. pag. 64. f.
• 9 1.27

  Ibidem.
• 1 1.28

  Reg. in bre. orig. pag 69. b. & notainterlin. pag. 65. b.
• 2 1.29

  5. Eliz. ca. 23.
• 3 1.30

  Reg. in br. orig. pag. 65. a. 66. a. 69. a.
• 4 1.31

  Ibid. pag. 65. b.
• 1 1.32

  Ibid. pag. 66. b.
• 2 1.33

  Reg. in breu. orig. pag. 67. b. & in breu. Iudic. pag. 39. 71. b. & 72. 〈◊〉〈◊〉s.
• 3 1.34

  Nou. nat. br. pag. 64. & 65. f.
• 4 1.35

  Reg. in br. orig. pag. 65. a.
• 5 1.36

  Ibid. pag. 65. b.
• 1 1.37

  Nou. nat. br. pag. 65. d.
• 2 1.38

  Reg. in br orig. pag. 65. a. & b.
• 3 1.39

  Westm. 13. Ed. 1. cap. 15. 5. Eliz. cap 23.
• 4 1.40

  Nou. nat. br. pag. 66. e.
• 5 1.41

  Regi. in br orig. pag. 67. a.
• 6 1.42

  Ibid. pag. 65. b bis 66. b. & 67. a
• 7 1.43

  Nou. nat. br. pag. 63. c.
• 8 1.44

  Reg in br. orig. pag. 66. b. & 67. a
• 9 1.45

  Reg. in br. orig. pag. 65. a. b. 68. a.
• 1 1.46

  Ibidem 65. b.
• 2 1.47

  Ibid. pag. 66. b. & 67. a. Nou. nat. br. pag. 63. c.
• 3 1.48

  Nou. nat. br. pag. 63. c.
• 1 1.49

  Reg. in br. orig. pag. 66. a. & nou. nat. br. pag. 63. c. d.
• 2 1.50

  Nou. nat. br. pag. 63. g.
• 1 1.51

  Reg. in br. orig. pag. 65. b. Nou. nat. breu. pag. 63. f.
• 2 1.52

  Ibidem.
• 3 1.53

  Reg. pag. 66. a. Nou. nat. breu. pag. 63. d.
• 4 1.54

  Reg. in br. orig. pag. 66. a. Nou. nat. breu. pag. 63. d.
• 5 1.55

  Reg. pag. 67. a.
• 6 1.56

  Reg. 66. a.
• 7 1.57

  Nou. nat. br. pag. 63. & 64. h. Reg. pag. 66. b. & 67.
• 1 1.58

  Reg. p. 67. a. Nou. nat. br. pag. 64. b.
• 2 1.59

  Reg. pag. 69. b. & 70. a & b. Nou. nat. br. pag. 64. c.
• 3 1.60

  Ibid. pag. 68. a.
• 1 1.61

  Reg. 69. b. 70. a. & b. Nou. nat. br. pag. 65. b. c.
• 2 1.62

  Reg. pag. 70. b.
• 3 1.63

  Reg. pag. 69. & 70. Nou. nat. br. pag. 65. c.
• 4 1.64

  Reg. pag. 70. b.
• 5 1.65

  Reg. pag. 70. a.
• 6 1.66

  Reg. pag. 70. b. Nat. br. pag. 65. e.
• 1 1.67

  Nou. nat. br. pag. 64. e.
• 2 1.68

  Ibid. & Nota interlin. in Reg. pag. 68. b.
• 3 1.69

  Reg. pag. 68. a. & 69. a. & b. Nou. nat. br. pag. 64. e.
• 1 1.70

  Aristot. in lib. poste:. Analyt.
• * 1.71

  Quaere of these two first named: & see for the first Lyndwood e. oecernae. de poenis. verbo regis An∣gliae.
• * 1.72

  31. Ed. 3. cap. 11.
• * 1.73

  24. H. 8. ca. 12.
• 1 1.74

  M. 2. H. 3. Fitz. testa. 4.
• 2 1.75

  Treatise of Const. prou. & legatine, printed by Thomas God∣frey tempore H. 8. cap. 13.
• 3 1.76

  T. 12. H. 7. sol. 22.
• 4 1.77

  T. 12. H. 7.
• 1 1.78

  H. 6. H. 3. re∣ferente Fitzh. tit. prohib. 17.
• 2 1.79

  T. 4. H. 3 re∣ferente Fitzh. tit. prohib. nu.
• 3 1.80

  2. R. 3. 17.
• 4 1.81

  T. 18. Ed. 2. testa. 6.
• 5 1.82

  37. H. 6. pag. 9.
• 6 1.83

  H. 8. H. 3. ex Fitzh. tit. pro∣hib. 19.
• 7 1.84

  46. E. 3. fol. 32.
• 8 1.85

  M. 20. E. 4. 9.
• 9 1.86

  T. 2. H. 6. 15.
• 1 1.87

  Bracton. lib. 5. cap. 16.
• 2 1.88

  Perkins tit. deuises.
• 3 1.89

  Reg. in br. orig. pag. 48. b.
• 4 1.90

  Liberties of the Clergie, by the Lawes of the Realme, by Iohn Gooddall. Prin∣ted by Rob. Wier, tempore Hen. 8.
• 5 1.91

  Ibidem.
• 6 1.92

  Ibidem.
• 7 1.93

  31. Ed. 3. ca. 11.
• 8 1.94

  36. H. 6. 31. referente Perk. tit. testa.
• 9 1.95

  7. H. 4. 18.
• 1 1.96

  12. H. 7. 24.
• 2 1.97

  Brooke tit. prohib. nu. 9.
• 3 1.98

  T. 13. H. 3. re∣ferente Fitzh. tit. Prohib. nu. 21.
• 4 1.99

  24. H. 8. ca. 12.
• 5 1.100

  18. Ed. 3. pro Clero cap. 2.
• 6 1.101

  Regist. in bre. iudicialibus. pag. 5. a. & 26. a.
• 7 1.102

  Regist. in bre. iudic. pag. 53. 2.
• 8 1.103

  Goodall, of the liberties of the Clergie, by the Lawes of the Realme.
• 9 1.104

  13. Ed. 1. c. 34.
• 1 1.105

  22. Assisatum fol. 70. per Thorpe cui con∣cordat M 16. H. 3. per Fitzh. proh. 22.
• 2 1.106

  14. Ed. 4. 6.
• 3 1.107

  Reg. fol. 46. & 48. per Brooke tit. prohib.
• 4 1.108

  Fitzh. no. na. br. tit. proh. fol.
• 5 1.109

  Bracton. lib. 5. cap. 16.
• 6 1.110

  Brooke t. t. iutisdict.
• 7 1.111

  17. E. 4. fol. 4.
• 8 1.112

  37. H. 6. fol. 9.
• 1 1.113

  45. E. 3. fol. 24. per Br, iuris∣dict. 11.
• 2 1.114

  Reg. in Br. orig. pag. 46. b.
• 3 1.115

  Goodall, of the liberties of the Clergie.
• 4 1.116

  Ibidem.
• 1 1.117

  Mag. Chart. cap. 1.
• 2 1.118

  24. Edw. 1. stat. de consultatione.
• 1 1.119

  Artic. Cleri. 9. Ed. 2. ca. 16.
• 2 1.120

  15. Ed. 3. ca. 6.
• 3 1.121

  18. Edw. 3. pro Clero. c 6.
• 4 1.122

  1. Ric. 2. ca 13.
• 5 1.123

  24. H. 8. c. 12. in the praeamb.
• 1 1.124

  25. H. 8. c. 19.
• 2 1.125

  1. Ed. 6. c. 2.
• 3 1.126

  5. Eliz. c. 23.
• 1 1.127

  25. Ed. 3. pro Clero. ca. 8.
• 2 1.128

  Treatise of con∣stitu. Prou. & Le∣gatine. ca. 9. prin∣ted by Tho. God∣frey. tempore H. 8
• 3 1.129

  M. 22. Edw. 4. fol. 24.
• 4 1.130

  Regist. in br. orig. pag. 55. b.
• 5 1.131

  44. Ed. 3. 33.
• 6 1.132

  38. H. 6. 19.
• 7 1.133

  38. H. 6. 20.
• 1 1.134

  13. Ed. 1. ca. 5. Westm. 2.
• 2 1.135

  9. Ed. 2. ca. 1. Artic. Cleri.
• 3 1.136

  Ibidem cap. 5.
• 4 1.137

  1. Ric. 2. ca. 13.
• 5 1.138

  23. H. 8. ca. 9.
• 6 1.139

  24. H. 8. ca. 12.
• 7 1.140

  27. H. 8. ca. 20.
• 8 1.141

  Ibidem.
• 1 1.142

  32, H. 8. ca. 7.
• 2 1.143

  Ibidem.
• 3 1.144

  2. Ed. 6. ca. 13.
• 4 1.145

  34. & 35. H. 8. ca. 19.
• 5 1.146

  M. 44. Edw. 3. fol. 32.
• 6 1.147

  M. 22. Ed. 4. fol. 24. & passim alibi.
• 7 1.148

  38. H. 6. fol. 21.
• 1 1.149

  22. Assis. fol. 75.
• 2 1.150

  Prohibition. consultation. 2.
• 3 1.151

  Bracton lib. 5. cap. 2.
• 4 1.152

  Bracton lib. 5. cap. 16.
• 5 1.153

  Brooke tit. Iu∣ris. 9.
• 6 1.154

  Regist. in br. orig. pag. 45. b. 46. 47. b. 48. b.
• 7 1.155

  Gooddall of the liberties of the Clergie. Regist. pag. 51. a. D.
• 8 1.156

  Reg. pag. 48. b.
• 9 1.157

  Reg. pag. 48. a.
• 10 1.158

  Reg. pag. 49. a.
• 11 1.159

  Gooddall of the liberties of the Clergie, by the lawes of the Realme.
• 1 1.160

  Regist. in br. origin. pag. 48. a. & Gooddall ibi∣dem.
• 2 1.161

  Gooddall ibid.
• 3 1.162

  Reg. p. 46. b. & 47. a. & Gooddall of the Liberties of the Clergie.
• 4 1.163

  45. Ed. 3. ca. 7.
• 5 1.164

  Reg. in br. ori∣gin. pag. 49. a. in Notabili. Brooke tit. Consultat. 11.
• 6 1.165

  Plowden. 17. Eliz. inter Sobie & Mullins.
• 7 1.166

  Ibidem.
• 1 1.167

  T. 11. H. 4. fol. 242.
• 2 1.168

  Nota in Reg. pag. 54. b.
• 3 1.169

  Reg. pag. 44.
• 1 1.170

  Tit. Prohibitiō.
• 2 1.171

  38. Ed. 3. fol. 8.
• 1 1.172

  38. Edw. 3. 6. 50. Edwa. 3. 10. 38. Edw. 3. 8.
• 2 1.173

  Bract. lib. 5. cap. 16.
• 3 1.174

  M. 22. Ed. 4. fol. 23.
• 4 1.175

  27. H. 8. ca. 20. 32. H. 8. cap. 7. 2. & 3. Ed. 6. cap. 13.
• 5 1.176

  14. H. 4. 17.
• 6 1.177

  39. Ed. 3. 23. 5. H. 5. 10.
• 7 1.178

  Brooke tit. Iurisdict.
• 8 1.179

  An answere to a letter cap. 1. printed by Tho. Godfrey circa 26. H. 8.
• 1 1.180

  Prou. constit. aeternae sanctio. de poenis. & ibi Lindwood verb. limitibus paro. chiarum.
• 2 1.181

  M. 8. Edw. 4. fol. 13.
• 3 1.182

  44. Ed. 3. 32.
• 4 1.183

  Lib. 5. ca. 16.
• 5 1.184

  Regist. fol. 38.
• 6 1.185

  38. Edw. 3. 6. 31. H. 6. 11. 7
• 7 1.186

  Hill. 7. H. 4. fol. 35. per quos∣dam libros, & 102. per alios.
• 1 1.187

  6. Ed. 4. 3.
• 2 1.188

  Brooke tit. Iu∣risdict. 82.
• 3 1.189

  31. H. 6. 11. 1. H. 6. 5.
• 4 1.190

  6. Edw. 4. 3.
• 5 1.191

  38. H. 6. 19.
• 6 1.192

  25. H. 8. vt re∣fert Brooke tit. Iurisdict. nu. 95.
• 1 1.193

  Lindwood c. aeternae sanct. V. iute-patrona∣tus. const. Prou. de poenis. edita 1260.
• 2 1.194

  Lindwood in verbo quarta pars bonorum. c. 2. Prou. const. de foro competenti.
• 3 1.195

  Stat. circum∣spectè agatis.
• 4 1.196

  Lindwood, vbi supra. V. pensio∣nem.
• 5 1.197

  Reg. pag. 46. a.
• 6 1.198

  Stat. circum. spectè agatis.
• 1 1.199

  Goodall of the liberties of the Clergie by the lawes of the Reàlme.
• 2 1.200

  Reg. pag. 47. 〈◊〉〈◊〉. ibid. pag. 53. 2. Goodall, vbi supra.
• 3 1.201

  M. 9. H. 4. M. 10. H. 4. 1. Entres, title of prohibition. Reg. pag. 45. b. Reg. pag. 49. a.
• 4 1.202

  Reg. pag. 50. a. b.
• 5 1.203

  Goodall, vbi supra.
• 6 1.204

  Li. 44. assi. pa. 8.
• 7 1.205

  44. E. 3. lib. assi.
• 8 1.206

  Bra. li. 5. ca. 16.
• 9 1.207

  19. H. 6. 20.
• 1 1.208

  H. 17. H. 3. Fitz. referente, tit. prohib. 26.
• 2 1.209

  Reg. pag. 52. b.
• 3 1.210

  22. H. 6. 32.
• 4 1.211

  Reg. pag. 56. a.
• 1 1.212

  Fitzh. no. na. br. tit. Consult. fol. 50.
• 2 1.213

  Iniunctions published 1559.
• 3 1.214

  Of the liberties of the Clergie by the lawes of the Realme.
• 4 1.215

  Ibidem.
• 5 1.216

  Reg. pag. 45. 2.
• 6 1.217

  Reg. pag. 48. 2.
• 7 1.218

  Circumspectè agatis, 13. Ed. 1.
• 1 1.219

  Statut. Cir∣cumspectè a∣gatis. 13. E. 1.
• 2 1.220

  2. H. 5. ca 1.
• 3 1.221

  23. H. 8. ca. 9.
• 4 1.222

  1. Ed. 6. cap. 2.
• 5 1.223

  Bracton lib. 5. cap. 2.
• 1 1.224

  Regist. 45. a. b.
• 2 1.225

  5. Eliz. cap. 23.
• 3 1.226

  2. H. 4. ca. 15.
• 4 1.227

  2. H. 5. ca. 7.
• 5 1.228

  25. H. 8. c. 14
• 6 1.229

  23. H. 8. c. 9.
• 7 1.230

  Circumspectè agatis. 13. Ed. 1.
• 1 1.231

  5. Eliz. ca. 23.
• 2 1.232

  5. Eliz. cap. 9.
• 3 1.233

  M. 2. H. 4. 15. Concordat 24. H. 1. per Brooke praemunire 16. Doct. & stud. lib. 2 cap. 24.
• 4 1.234

  T. 11. H. 4. fol. 241. secund. vnam impress. & 88. vel. 85. se∣cund. aliam.
• 5 1.235

  P. 38. H. 6. 29.
• 6 1.236

  Fitzh. tit. proh. 12. ex Regist.
• 1 1.237

  M. 4. H. 3. re∣ferente Fitzh. prohib. 15.
• 2 1.238

  Bracton lib. 5. cap. 2.
• 3 1.239

  Idem lib. 5. cap. 9.
• 4 1.240

  M. 20. Ed. 4. fol. 10.
• 5 1.241

  A Treatise that the B. of Rome had neuer Supremacie here, by the Lawes of the Realme. cap. 1.
• 6 1.242

  T. 22. Ed. 4. fol. 20.
• 1 1.243

  Lyndw. in cap. aeter•…•…ae sanctio. verbo fidei trans∣gressione. de poenis.
• 2 1.244

  Prou. Consti∣tutio, 〈◊〉〈◊〉 san∣ctio. de poenis.
• 3 1.245

  Dicta. Prou. Const.
• 1 1.246

  Lindw. ibidem V. periurio.
• 2 1.247

  Lib. 22. Assis. fol. 70.
• 3 1.248

  Fitzherberts Abridgement tit. Prohibition. num. 2.
• 4 1.249

  34. H. 6. 70. vt Brooke allegat tit. Iurisdiction num 2.
• 1 1.250

  M. 20. Ed. 4. fo•…•…. 10.
• 2 1.251

  T. 12. H. 7. fol. 22.
• 3 1.252

  1. Mar. cap. 3.
• 4 1.253

  1. Eliz. cap. 2.
• 1 1.254

  Reg. pag. 50. a. b.
• 2 1.255

  Goodall of the liberties of the Clergie.
• 3 1.256

  Ibid. in fine.
• 4 1.257

  15. E. 3. cap. 5.
• 5 1.258

  11. H. 7. cap 8.
• 6 1.259

  13 Eliz. cap. 8.
• 7 1.260

  Reg. pag 49. b.
• 1 1.261

  D D. in l. Titia. ff. soluto matri∣monio.
• 2 1.262

  Stat. circumsp. agatis. 13. Ed. 1.
• 3 1.263

  Artic. cleri 9. Ed. 2. cap. 4.
• 4 1.264

  23. H. 8. cap. 9.
• 5 1.265

  T. 12. H. 7. fol. 22.
• 6 1.266

  Reg. pag. 49. a
• 1 1.267

  Reg. pag. 51. 2.
• 2 1.268

  Liberties of the Clergie, by the lawes of the Realme.
• 3 1.269

  That the bi∣shop of Rome, &c. cap. 3. prin∣ted by Berthelet.
• 4 1.270

  Nota in Reg. pag. 54. b.
• 5 1.271

  Tit. Consulta∣tion, nu. a. & alibi.
• 6 1.272

  M. 2. H. 4. fol. 15.
• 1 1.273

  Regist. fol. 42. b
• 2 1.274

  Ed. 3. c. 11.
• 3 1.275

  P. 18. Ed. 4. fol. 6.
• 1 1.276

  Booke of En∣tries, tit. Prohi∣bition.
• 2 1.277

  Of the power of the Clergie and lawes of the realme, cap. 8.
• 1 1.278

  Ibid. cap. 8.
• 2 1.279

  Articuli Cleri. 9. Ed. 2. cap. 2. 3. & 4.
• 3 1.280

  1. & 2. Ed. 6. 〈◊〉〈◊〉 cap. 13. in a Pro∣uiso. 〈◊〉〈◊〉
• 4 1.281

  Stat. circums. agatis, 13. Ed. 1.
• 5 1.282

  Art. Cleri. 9. Ed. 2. ca. 3.
• 6 1.283

  H. 7. H. 3. refe∣rente Fitzh. tit. Prohibition, nu. 30.
• 1 1.284

  Reg. fol, 49. b.
• 2 1.285

  Regist. fol. 42. & 51.
• 3 1.286

  T. 11. H. 4. fol. 241. in alijs libris vel 88. vel 85.
• 4 1.287

  Art. Cleri. 3. & 6.
• 5 1.288

  Ibidem.
• 6 1.289

  H. 22. Ed. 4. fol.
• 7 1.290

  Entrees. tit. Prohibition.
• 8 1.291

  Gooddall of the Liberties of the Clergie.
• 9 1.292

  Gooddall ibid.
• 1 1.293

  M. 20. Ed. 4. 10
• 2 1.294

  Gooddall, ibid.
• 3 1.295

  Reg. sol. 51. 2.
• 4 1.296

  M. 4. H. 3. per Fitz. Prohib. nu. 14.
• 5 1.297

  H. 17. H. 3. per Fitzh. tit. Prohib. nu. 26.
• 6 1.298

  Lyndw. in V. Sacrilegio. c. aeternae sanctio. de poenis.
• 7 1.299

  15. & 6. Ed. 6. cap. 4.
• 8 1.300

  13. Eliz. ca. 10.
• 1 1.301

  Liberties of the Clergie by the lawes of the Realme.
• 2 1.302

  M. 2. H. 4. sol. 9.
• 3 1.303

  Stat. Circum∣spectè agatis. 13. Ed. 1.
• 4 1.304

  Lyndw. V. hu∣iusmodi. c. Cir∣cumspectè. de fo∣ro competenti.
• 5 1.305

  c. Ecce. 23. q. 4.
• 6 1.306

  5. Eliz. ca. 23.
• 7 1.307

  Reg. sol. 45. a. & 57. b.
• 1 1.308

  Gooddall of Clergie Liber∣ties.
• 2 1.309

  An answere to a letter, cap. 1. Printed by Tho. Godfrey, tem∣pore H. 8.
• 3 1.310

  Reg. fol. 51. b.
• 4 1.311

  Reg. fol. 50. a.
• 1 1.312

  5. & 6. Edw. 6. cap. 4.
• 2 1.313

  1. Eliz. cap. 2.
• 3 1.314

  Iniunctiones in fine.
• 4 1.315

  Regi. fol. 44. b.
• 5 1.316

  Concordat. Clem. vnica de sequest. possess. & (quoad violat. interdicti) Clem. grauis. de senten∣tia excomm.
• 6 1.317

  Const. prou. Bonifacij. c. a no∣stris. de concess. praebendae. & ibi Lindwood.
• 7 1.318

  Reg. fol. 52. b.
• 1 1.319

  Reg. fol. 50. b.
• 2 1.320

  c. 2. de maled.
• 3 1.321

  5. Eliz. c. 23.
• 4 1.322

  Lindwood in c. circumspectè. de foro competenti. V. mort. peccato.
• 1 1.323

  A•…•…tic. Cleri. 9. Edw. 2. cap. 2.
• 2 1.324

  Ibid. cap. 3.
• 3 1.325

  Ibid. cap. 4.
• 4 1.326

  Reg. fol. 53. b.
• 5 1.327

  Reg. fol. 55. a.
• 6 1.328

  Reg. fol. 57. b.
• 7 1.329

  Reg. fol. 51. a.
• 8 1.330

  Reg. fol. 53. b. Goodall, of the liberties of the Clergie, by the lawes of the Realme.
• 1 1.331

  Stat. de Con∣sultatione, 24. Edw. 1.
• 2 1.332

  c. dura. &c. fal∣sariorum. de cri∣mine falsi.
• 1 1.333

  c. quicumque de haeret. in 6.
• 2 1.334

  c. si concubinae. de sent. excom.
• 3 1.335

  Bald. in ca. cō∣uentic. de pace iureiurando fir∣manda.
• 4 1.336

  Extrau. dete∣standae. de sepul∣tura.
• 5 1.337

  Artic. Cleri. 9. Ed. 2. ca. 12.
• 6 1.338

  23. H. 8. c. 9.
• 7 1.339

  Ibidem.
• 8 1.340

  Ibidem.
• 9 1.341

  32. H. 8. cap. 7.
• 1 1.342

  1. Ed. 6. ca. 2.
• 1 1.343

  24. H. 8. c. 12.
• 2 1.344

  15. Ed. 3. c. 3.
• 1 1.345

  Leuit. 5. V. 1.
• 1 1.346

  Brooke titulo testmoignes.
• 2 1.347

  1. H. 6. 5.
• 3 1.348

  23. H. 8. ca. 3.
• 4 1.349

  5. Eliz. ca. 9.
• 5 1.350

  Reg. in br. orig. fol. 56. b. & fol. 57. b.
• 1 1.351

  Brooke tit. Corone. nu. 220.
• 2 1.352

  l. si quando C. de testibus.
• 3 1.353

  l. inviti. ff. de testibus.
• 4 1.354

  Panor. min c. dilectorum. de testibus cogendis.
• 5 1.355

  Alphon. Villag. lib. 3. ca. 15. con∣clus. 12.
• 1 1.356

  Anton. in c. quod clericis. de foro compe∣tenti.
• 2 1.357

  Bartol. in l. 3. § fin. ff. de testibus.
• 3 1.358

  Artic. Cleri. 9. Ed. 2 cap. 12.
• 4 1.359

  Ibidem.
• 1 1.360

  27. H. 8.
• 2 1.361

  Ibidem.
• 3 1.362

  32. H. 8. cap. 7.
• 4 1.363

  Ibidem.
• 5 1.364

  2. & 3. Edw. 6. cap. 13.
• 6 1.365

  Ibidem.
• 1 1.366

  1. El•…•…z. cap. 2. ad finem.
• 2 1.367

  Register tit. prohib.
• 1 1.368

  Reg. in br. orig. fol. 36. b. tit. Pro∣hibitiones.
• 2 1.369

  Abr. Rastall cit. prohib. & consult. nu. 6.
• 1 1.370

  9. Edw. 2.
• 1 1.371

  Reg. fol 102. tit. de transgressi∣one.
• 2 1.372

  Reg. fol. 37.
• 3 1.373

  No. na. br. fol. 37. G.
• 1 1.374

  Fitzh. ibid. fol. 269. D.
• 2 1.375

  2. H. 4. cap. 15.
• 3 1.376

  10. H. 7. fol. 17.
• 4 1.377

  Fitzh. no. na. br. fol. 30. F.
• 1 1.378

  Of the power of the Clergie, and lawes of the realme, cap. 15.
• 2 1.379

  Ibidem.
• 3 1.380

  Ibidem.
• 4 1.381

  Ca. 4, 5, & 6. huius Partis.
• 1 1.382

  Fitzh. nou. na. breu. fol. 31.
• 2 1.383

  Reg. in br. Iu∣dic. fol. 7. a. 12. a. & 75. a.
• 1 1.384

  Arg. l. 13. cùm ita ff. de rebus dubiis.
• 1 1.385

  Fitzh. nou. na. breu. fol. 41. a.
• 2 1.386

  Pro voluntate sua.
• 1 1.387

  Consuetudine praed. vsi fueri∣mus semper li∣bettatibus huius∣modi. Prohibi∣tion in Rastell. tit. Prohib. nu. 6.
• 1 1.388

  Register. pag. 37.
• 2 1.389

  Register. pag. 43. monstrauit nobis Matilda.
• 1 1.390

  c. 8. huius part.
• 2 1.391

  23. Ed. primi.
• 3 1.392

  Panorm. in c. cum sit. de foro competenti.
• 4 1.393

  Panor. in c. qualiter. el. 2. de accusat.
• 1 1.394

  Cap. huius partis 8.
• 2 1.395

  Bracton. lib. 5. cap. 9.
• 3 1.396

  Grauam. 64.
• 1 1.397

  Cōstit. aeternae sanctio. de poenis∣in Concilio apud Lambhith sub Bonifacio Anno 1260. tempore Henrici 3.
• 1 1.398

  Bracton lib. 5. cap. 2.
• 1 1.399

  Ibidem.
• 2 1.400

  Ibidem. lib. 5. cap. 3. & cap. 10. & 13.
• 3 1.401

  Prohib. & Consul. nu. 3. & 7.
• 4 1.402

  Consultat. 2.
• 5 1.403

  Register. Ibidem tit. Prohibitiones.
• 1 1.404

  Regist. in Br. Iudic. fol. 38. a.
• 2 1.405

  Ibid. fol. 39. a.
• 3 1.406

  Regist. in Br. origin. fol. 57. b.
• 4 1.407

  Regist. in Br. orig. fol. 46. qua ter. & 49. a.
• 5 1.408

  Regist. in Br. origin. fol. 46. b. & 49. a. in fine.
• 6 1.409

  Regist. in Br. orig. fol. 54. a.
• 7 1.410

  Abridgement of the statutes. Prohibition. 6.
• 1 1.411

  Pro huiusmodi rebus (per vices) trahitis coram vobis. Prohibiti∣on in Rastall, vbi supra.
• 1 1.412

  Decius in l. 2. C. de edendo∣nu. 43.
• 2 1.413

  Nou. nat. breu. fol. 41. litera a.
• 1 1.414

  M. 44. E. 3. fol. 32.
• 2 1.415

  M. 38. H. 6. fol. 14.
• 1 1.416

  Fitzh. Prohi∣bition, nu. 5.
• 2 1.417

  Brooke. Prohi∣bition, nu. 6.
• 1 1.418

  1. Eliz. cap. 1.
• 2 1.419

  Fitzh. in noua nat. br. fol. 269. D
• 3 1.420

  2. H. 4. cap. 15.
• 4 1.421

  1. Eliz. cap. 1.
• 1 1.422

  13. Eliz. c. 12.
• 1 1.423

  Magna charta, cap. 39.
• 2 1.424

  1. Eliz. cap. 2. & pass. alibi.
• 1 1.425

  25. H. 8. ca. 21.
• 2 1.426

  5. Eliz. cap. 25.
• 3 1.427

  25. H. 8. ca. 19.
• 1 1.428

  4. H. 4. art. 29.
• 1 1.429

  1. Eliz. cap. 1.
• 1 1.430

  38. H. 8. ca. 28. Rastall, Wales 32.
• 1 1.431

  1. H. 7. ca. 4.
• 1 1.432

  18. H. 6. cap. primo.
• 1 1.433

  13. Eliz. ca. 12.
• 2 1.434

  1. Eliz. cap. 2.
• 1 1.435

  c. excommuni∣camus. §. qui au∣tem. ex. de haere∣tic.
• 1 1.436

  21. E. 3. fol. 29.
• 2 1.437

  18. Edw. 3. pro clero. ca. 5.
• 3 1.438

  M. 2. H. 4. fol. 15.
• 4 1.439

  31. H. 6. fol. 14.
• 1 1.440

  M. 4. E. 4. fol. 37
• 2 1.441

  Brooke tit. prohib. nu. 17.
• 3 1.442

  T. 12. H. 7. fol. 22.
• 4 1.443

  M. 2. H. 4. fol. 15.
• 5 1.444

  Stat. de con∣sultat. 24. Ed. 1.
• 6 1.445

  Lib. 2. ca. 24.
• 7 1.446

  Artic. Cleri. 9. Ed. 2. cap. 6.
• 1 1.447

  T. 9. H. 3. per Fitzh. Prohib.
• 2 1.448

  38. H. 6. fol. 21
• 3 1.449

  Circumspectè agatis. 13. Ed. 1.
• 4 1.450

  Doctor & Stu∣dent. Loco. d.
• 5 1.451

  11. H. 4. fol. 85.
• 6 1.452

  T. 12. H. 7. fol. 22.
• 1 1.453

  Ibidem.
• 2 1.454

  Brooke Con∣sultation. nu. 5.
• 3 1.455

  T. 12. H. 7. fol. 22.
• 4 1.456

  T. 22. Ed. 4. fol. 20.
• 5 1.457

  Stat. de Con∣sultat. 24. Ed. 1.
• 6 1.458

  50. Ed. 3. ca. 4.
• 7 1.459

  Fitzh Natur. b•…•…. tit. Prohibi∣tion. fol. 45.
• 1 1.460

  34. Ed. 1. de coniunctim •…•…∣fat.
• 2 1.461

  Fitzh. ibid.
• 3 1.462

  Regist. fol. 47.
• 4 1.463

  27. Ed. 3. cap. 1. de Prouisor.
• 1 1.464

  16. R. 〈◊〉〈◊〉. cap. 5.
• 1 1.465

  9. Ed. 4. fol. 3.
• 2 1.466

  Fitzh. Noua nat. br. fol. 44. lit. H.
• 1 1.467

  Fitzh. tit. Prae∣munire. nu. 5.
• 2 1.468

  Brooke titulo Praemu, nu. 21.
• 3 1.469

  15. H. 7. fol. 9.
• 4 1.470

  24. H. 8. titulo Praemu. num. 16.
• 1 1.471

  25. H. 8. ca. 21.
• 2 1.472

  1. El. cap. 1.
• 3 1.473

  8. El. cap. 1. in the Preamble.
• 1 1.474

  3. & 4. Edw. 6. cap. 11.
• * 1.475

  1. Doubt.
• * 1.476

  2. Doubt.
• * 1.477

  3. Doubt.
• * 1.478

  4. Doubt.
• * 1.479

  5. Doubt.
• * 1.480

  6. Doubt.
• * 1.481

  7. Doubt.
• * 1.482

  8. Doubt.
• * 1.483

  9. Doubt.
• * 1.484

  10. Doubt.