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 PREFACE, wherein is declared, howe the foure opinions put ouer vnto this place doe fall in with the challenges of the Innouatours; and a generall distribution made of matters to be handled in the second and thirde Parts.

THe second part of this treatise contai∣neth our proofes, together with an∣swere to the obiections made against the maner of practise of iurisdiction Ecclesiasticall by those, who do euen professe themselues to endeuour an innouation in the frame of gouern∣ment of this Church of England. But wee meane not in this place to handle all, which they obiect in this behalfe, but only some such of them, as touch the maner and fourme of the proceedings in the exercise there∣of. For it is knowen they take sundry other exceptions, as a∣gainst the maner of calling to function Ecclesiasticall, against the ordination, against sundry the callings and the functions themselues, against deriuing of the iurisdiction

Ecclesiastical from the Prince, against the matters hand∣led by that iurisdiction, and against the maner of handling them in sundry other respects, condemning them as Anti∣christian and contrary to Gods word. All which are of ano∣ther consideration, and not fit here to be ripped vp.

I finde foure opinions (pretending that the lawes of the Realme be against the maner of entrance into some suites, and against certaine proceedings Ecclesiasticall) that are mentioned in the generall Preface to haue bene put off vnto this place, for auoyding of needelesse repetition, and as falling here more fit to be discussed, among other like obiections of the Innouatours.

The first of them that we put ouer vnto this place is, that an Ecclesiasticall court may not proceede without ac∣cusation or presentment: meaning (as I take it) a present∣ment by Officers sworne for that purpose. If this were true (according as the proprietie of the wordes importeth) then Ordinaries might not so much as deale in those two excep∣ted causes of matrimonie and testament, nor in any other concerning rights and dueties Ecclesiasticall, but onely in offences and crimes punishable by that iurisdiction. For an accusation or presentment hath none vse, but in matters of crime or offence incident vnto that iurisdiction to pu∣nish. Besides that, this opinion doth contradict the next fol∣lowing. For this implieth, that if the matter be Ecclesiasti∣call, and that there be either accusation or such presentment; then may the Iudge Ecclesiasticall proceede; so that if there be but a presentment without any accusation, his procee∣ding without a partie, which is to proceede ex officio, shall be warranted. Whereupon doeth followe, that proceeding ex officio is not tied to those two causes onely of Testament or Matrimonie, as the next opinion doth holde.

For the second is, that no lay person may bee cited ex

officio in any cause, but either restamentarie or matri∣moniall: which if it were true, though a lay man be dùely pre∣sented for any crime; yet shall hee neuer bee cited for it, or brought into question, for want of an accuser to prosecute it. Concerning the citing of laye persons, absolutely in any cause besides those two, ynough hath beene saide in the former part So that in this opinion the citing ex officio onely remai∣neth needefull to bee further spoken of. Truely if the authour of it had vnderstood what he writte, he would neuer haue put it in the tale or reckoning. For of all other causes Ecclesiasti∣call whatsoeuer, there can be least vse of proceeding ex offi∣cio in those two: because the chiefest, and almost onely vse of it is, in dealing against crimes and offences. But I wil bring these two opinions into a briefe thus: the first seemeth to per∣mit proceeding of Office in an Ecclesiasticall matter, so there be a solemne presentment precedent. The second condem∣neth all proceeding without a partie (sauing in those two cases) and so (in effect) in all causes, if it haue none vse in those two.

The third of those opinions is, that albeit a matter bee duely presented against a man, yet he may not be exa∣mined vpon his oath, as of incontinencie or such like. Whereby (I thinke) is meant, that hee may not be so exami∣ned of any criminall and penall matter.

The last opinion of the saide foure, is: that no man is bound to declare any matter against another, except there be some, that is an accuser. So that by this last, no witnesses shall euer be had, when the Iudge proceedeth ex of∣ficio, except themselues list, which commonly none wil thrust himselfe into, but vpon some pique or humor of enmitie. And so an accuser who for the most part commeth in of ma∣lice shall (by this opinion) haue compulsories to force witnes∣nesses to testifie: but a magistrate proceeding for satisfaction

of his dutie only, shall not. By the way may be noted, that here∣by also that opinion is ouerthrowen which holdeth, no man to be bound against his will to testifie, but in causes matrimo∣niall or testamentary: for accusation is onely of offences. By this opinion is implied, that when there is an accuser, a man may bee compelled and is bound to declare a trueth a∣gainst another. Which last being ioyned to the former, viz. that albeit a matter be duely presented (that is crimi∣nall, and may be penall to him) yet he may not be exa∣mined of it, vpon his owne oath: doth come to this passe, that of an Ecclesiasticall crime, there is (by lawe) no way to conuict a man, except some man will be an accuser, or els by voluntarie witnesses qui sese ingerunt ad testimonium: viz. such, whome the very lawe of nations doth entend to be enemies vnto the partie, because they thrust themselues into the matter.

You are not to marueile that the opinions of those, who shoote at one generall marke, are so absurd, and do so varie and iarre among themselues, and doe as it were confront one ano∣ther. For you remember, quòd vno absurdo dato, multa consequuntur: and that trueth is simple, constant, and like it selfe, and therefore no trueth is disagreeing from another trueth: whereas vntrueth is manifold, and variable from it selfe. For two contraries can neuer be both true, but they may be, and are oftentimes both of them false.

The first of these opinions then taketh away all proceeding, either in crimes, or in any other causes, where there wanteth an accusation or such solemne presentment, as the author of it meaneth. The second (in effect) taketh away all proceeding ex officio, but especially in crimes and offences. The third impugneth all examination by the othe of the partie, in a mat∣ter criminall and penall. The last woulde ouerthrowe all vr∣ging of witnesses to testifie, in a cause moued ex officio, viz.

where there is none accuser, yea though there bee a solemne presentment.

These foure challenges (among others) are also made a∣gainst iurisdiction Ecclesiasticall, by the innouators, not onely for contrarietie vnto the lawes of the Realme, but for contra∣rietie also to Canon lawe, to Ciuill lawe, to Gods lawe, and vnto reason, as is by them pretended.

But aswell their other exceptions, that of late haue beene taken by any of them, and stirred vp against the maner of exercising iurisdiction Ecclesiasticall, (so farre as I can learne) as also these foure last recited falling in with them (albeit all their said opinions be not holden by euery of them, but according to the varietie of their humors and seuerall ca∣pacities) may be reduced (not vnfitly) vnto these two heads.

They doe respect, either the manner of entrance into the suite, or els the fourme of proceeding in it. In the maner of entrance (you see) they challenge it, for that it is not either at the suite of some accuser, or vpon a so∣lemne Presentment: Or for being ex officio in any other cause, then those two of testament, or matrimony, wherein (in very deede) such proceeding hath little or none vse.

In the course of proceeding in the suite, they take ex∣ception, partly against some principall acte therein vsed: and partly against some meaner circumstances.

In that more principall acte (viz. of giuing an othe) they impugne either the examination vpon othe of the partie himselfe, or the examination of witnesses, concerning their brethrens actions. Touching the othe of the par∣tie, both fault is found by some with the ceremonie vsed in giuing the othe, and because the othe is giuen in a cause criminal and penal to themselues. In the ceremonie at ta∣king an oth, there is reprehended (by some) the laying of the hand on a booke, and the swearing by the booke, or by

the contents of it. Of meaner circumstances (falling out in proceeding) that they challenge, some are concurring with the very tender of the oath (as that they haue not distinct knowledge of euery particular, whereupon they are to be examined, before they resolue, whether to take the othe or not: and other are ensuing the othe and exami∣nation: as that the Iudges doe not rest in that which is affirmed or denied vpon their oth, but oftentimes pro∣ceede to a further examination by witnesses, vpon the same pointes. All which I mind (God willing) to prosecute, in the same order, that I haue here set foorth: hauing first touched some matters, that I holde not vnnecessary to be knowen by the vnlearned sort, for the bet∣ter opening and vnderstanding of the di∣sputations following.