An apologie for sundrie proceedings by iurisdiction ecclesiasticall, of late times by some chalenged, and also diuersly by them impugned By which apologie (in their seuerall due places) all the reasons and allegations set downe as well in a treatise, as in certaine notes (that goe from hand to hand) both against proceeding ex officio, and against oaths ministred to parties in causes criminall; are also examined and answered: vpon that occasion lately reuiewed, and much enlarged aboue the first priuate proiect, and now published, being diuided into three partes: the first part whereof chieflie sheweth what matters be incident to ecclesiasticall conisance; and so allowed by statutes and common law: the second treateth (for the most part) of the two wayes of proceeding in causes criminal ... the third concerneth oaths in generall ... Whereunto ... I haue presumed to adioine that right excellent and sound determination (concerning oaths) which was made by M. Lancelot Androvves ....

CHAP. XI. That the lawes of the Realme do vse Enquiries and proceedings ex officio, and that they allow it in Courts Ecclesiasticall, with an∣swere to some obiections that are made to the contrary.

IN the next place I am to shew, that dealing by way of enquirie or enquest, ex officio, without suite of a partie; called by the Common law Office del Court, are both mentioned and pra∣ctised by the lawes of the Realme. In 1 1.1 Magna Charta mention is made of a writ of Inquisition of life and member. In an olde statute of king Edward the first, a

seuerance is made betwixt the suite of the King from the suite of a partie: and the King is thereby (as it were) bound to sue, and to lend his office, for prosecution of the misdemeanours. For it is 1 1.2 thus prouided, that if any take away a woman by force &c. the King at his suite that will sue, shall doe common right within fortie dayes: and if none commence his suite within fortie dayes, the King shall sue. Which suite being in his owne Court, and before him∣selfe, must needs be of office. For where there is Inquisitio, Enqui∣rie, there the King is partie: as by another statute of the same 2 1.3 Kings dayes appeareth: De Inquisitionibus coram Iusticiarijs qui∣buscunque capiendis, & in quibus D. Rex est pars qualitercun{que} con∣cordatum est &c. In a statute of 3 1.4 king Edward the third, arreign∣ment at the suite of the King (which is ex officio) as a distinct mat∣ter from that which is at the suite of a partie, is spoken of: and so 4 1.5 are also Commissions of inquisition afterward. Furthermore in K. 5 1.6 Henrie the sixt his time, en quest or inquisition of office is mentio∣ned: and in sundrie 6 1.7 statutes both after and afore, which are needlesse to be repeated. For (as I take the matter) euery en∣ditement is an Inquisition: which if it be at the prosecution of a partie, it is, as officium promotum: but if it be by the Iudges, for the Queene (in respect of the interest of the Common-wealth) then is it officium merum or nobile, as afore is declared.

This maner of dealing, in sundrie cases is so vsuall at the Com∣mon law; that there be whole titles made in the Abridgements, touching Inquisition and office del Court: viz. of enquiries and matters done by the Iudges vpon their discretions, without the instance of any partie.

In reports at the Common law, we finde it said, 7 1.8 that Iudges ex officio did charge an enquest to make enquirie of their owne collusi∣on, supposed to be committed among them. 8 1.9 Further: One of a Iurie, that departed from his fellowes after that he was sworne, was exami∣ned at his returne by the Iudges ex officio, whether he had since spo∣ken with the defendant or no? Likewise it is said, 9 1.10 that the Court ex officio ought to award an Assise to enquire (whether the disseisin were with force) by reason of the kings fine. In the booke of 10 1.11 Assises: The Court ex officio sent a man to prison, because they found he had not made fine. And a great number of particular articles are there set down, wherupon 11 1.12 enquest or inquisition ex officio in the Kings bench

is to be made. We finde of elder time by 1 1.13 Bracton, where the appel∣lor that prosecuteth, makes default or dieth, there the king may proceed ex officio. And againe there: Let the king ex officio suo, & for his peace proceed to inquisitiō, for the suspicion that he hath of the appeale.

Moreouer, where a Parson and Vicar were both willing e∣nough to sue before the Temporall Iudges: yet 2 1.14 the Iudges fin∣ding the plea to be of Ecclesiasticall iurisdiction, did ex officio, at no mans instance, dismisse it out of that court, as not perteining to their iurisdiction. And do we not often see the ordinarie course for en∣ditements, much assisted and holpen by the Iudges and Iustices search, examinations and dealing therein, (of office and duetie onely) both in treasons & felonies, and in other causes of more priuate interest, that be preferred by others? doe they not also vpon their owne discretion, & for causes knowen to themselues, without prosecution of any partie, (and so ex officio onely) often times commit persons of suspected behauiour to prison; and not dismisse them, till by a writ of enquirie de bono gestu & fama, they be found worthie to be set at libertie? So that by these few, and sundry other that might be brought, it may appeare; that pro∣ceeding and enquirie ex officio, is so farre from being, so much as a diuers course from the lawes of the Realme, that it is often pra∣ctised thereby, when no partie besides the Iudges themselues, do entermeddle.

But it is not onely by that law practised, but also allowed (by it) for a lawfull course of proceeding in Ecclesiasticall Courts a∣gainst crimes and offences. By a statute of 3 1.15 Henrie the fift, such an Inquisition of Hospitals of the Kings foundation, is appointed vn∣to Ordinaries: and in those that be of any other mans foundation, Ordinaries are authorised not onely to enquire of the foundation, e∣state, and gouernance of them, and of all other matters necessarie in that behalfe, but also to make thereof correction & reformation, after the lawes of holy Church, as to them belongeth. So that if Ecclesia∣sticall lawes doe warrant this enquirie and course of reformation and correction, then this statute will giue force vnto it. By 4 1.16 an∣other statute: If any Clerkes be conuicted of incontinent liuing in their bodies (being but afore perhaps openly noised thereof) before whom conuicted? afore Ordinaries. How? by examination, & o∣ther lawfull proofe requisite by the law of the Church, they may by the

Ordinarie, at his discretion, be committed to ward. Which toge∣ther with the committing, must needs be both done ex officio: for that no partie to prosecute is there mentioned to be required; and because the Ordinarie thereby may proceed, vpon the pub∣like infamie noised abroad.

The statute of 1 1.17 Citations made afterward, mentioneth a case where an inferior Ordinarie may be partie to a suite holden afore him: which may aswell be vnderstood in a cause mooued of Of∣fice for an offence, as in any other matter. But more plainely afterward: for there the very word ex Officio is vsed; and it is prouided, that the forfeiture of that statute, for calling a man out of the iurisdiction where he dwelleth, shall runne against him that cited, whether he proceed by vertue of his office, or at the suite of any person. Whereof may be gathered, that the lawes of the Realme take knowledge of that course ex officio to be as warrantable as the o∣ther, made at the suite of a partie: so that other requisites be ob∣serued. And though the statute against Heresie stand 2 1.18 now re∣pealed, yet it may serue to prooue, that not onely inquirie, but ex∣amination also of the partie himselfe, in a visitation by Ordinaries (both which are done ex officio) is holden for a course of the law ecclesiasticall not to be condemned or disallowed by the lawes of the Realme.

In a statute touching 3 1.19 Ordinaries seales now also repealed, certeine ecclesiasticall causes be rehearsed: among which, causes of instance betwixt partie and partie, are plainly seuered & distin∣guished from causes of correction: thereby giuing vs to vnder∣stand also, how rarely causes of correction be prosecuted by any partie; but by the Iudge ecclesiasticall himselfe alone proceeding of Office. And 4 1.20 by a statute in the first yeere of her Maiesties reigne, made for vniformitie of Common prayer, Ordinaries are au∣thorised to inquire and to punish &c. the violation of that act, as heretofore hath bene vsed in like cases, by the Queenes ecclesiasticall lawes. But that an enquiry is alwayes of office, and what the lawes ecclesiasticall be in this behalfe, and how the continuall vse hath bene, is shewed afore: so that none need remaine doubtfull in these points.

The very Common law not onely taketh knowledge of this course holden in Courts ecclesiasticall: but in some respect doth

also priuiledge it, euen aboue the proceeding by a partie. 1 1.21 For if an Ordinarie doe sequester goods of the dead for any contumacie, or ex Officio; which giueth no possession to him, the court spirituall (in this case) shall haue Iurisdiction. And it seemeth by that case, the lawe to be otherwise, when it is at the suite of a Partie. So in a case 2 1.22 of violent hands laied vpon a Clerke, both Brian and Litle∣ton held (no man gaine saying of it) that the spirituall court may pu∣nish it ex officio, but not at the suite of the partie: least the beater thereby bee kept from his absolution, till some temporall duetie bee con∣tented and paied. And Mordant 3 1.23 was of opinion; that if a man bee sued by a partie pro laesione fidei in not paying a summe of money promised, there shall lie a Prohibition: yet if the iudge ecclesia∣sticall shall doe it ex officio, that then no Prohibition shall lie. Neither doeth any gaine say him herein. Vnto which opinion of his, ano∣ther iudgement giuen in the 4 1.24 booke of Assises in like case, see∣meth to accord. To like effect also 5 1.25 Fitzherbert reporteth, that an Ordinarie may cite and proceed against a man ex Officio, pro vio∣lenta manuum iniectione in Clericum: likewise for tithes detained in the time of vacation of a benefice: so he may cite also such as re∣fuse to maintaine a Curate or Chaplaine: and for fornication or like offences.

Fitzherbert 6 1.26 in another place also thus writeth: If a man (saieth he) be sued in court Christian, or if the bishop sue and cite him ex Officio and excommunicate him, &c. And againe 7 1.27 thus: Signi∣ficauit lieth not, but where the partie is excommunicate by name, ma∣iori excōmunicatione: vpon a spectall suite against him ex Officio, or by a partie: therefore both are alike lawfull, and allowable by the common lawe. And that for wrongfull detaining of tithes in time of vacation of a benefice, the ecclesiasticall Iudge may cite and proceed ex Officio, doeth plainly appeare euen by 8 1.28 one of those books which the Note gatherer doth alleage against this course; though (in trueth) it haue no one word tending that way. Belike he thought no man had the booke but himselfe; because (it may be) he casuallie happened vpon it in rifeling amongst other olde bookes cast aside in some Stationers shoppe. To like effect the same booke hath; that 9 1.29 if a man bequeath a bullocke to a church for reparation of it, or of the churchyard: if he that hath him will not de∣liuer him, either the Church-wardens may sue for such detinue in a

court ecclesiasticall, or the Ordinarie may ex Officio call him, and vrge him to deliuerie. And the like is there testified (being taken out of the Register) in a more grieuous crime of ecclesiasticall cognisance. For (saieth he) 1 1.30 if the Iudge ecclesiasticall cite a man of office for fornication, &c. & a prohibition or appeale being brought, he after renounceth all delayes, and submitteth himselfe: the Iudge shall proceed ad poenam Canonicam imponendam, vpon a consul∣tation or writ vnto him to be directed.

Likewise the Register is very plentifull in this behalfe; as first where 2 1.31 Enquirie (which is alwayes ex officio) is not onely allow∣ed, but commanded to be made by a Iudge ecclesiasticall: 3 1.32 Uo∣bis mandamus, quòd habita super praemissis per Inquisitionem & alios modos informatione pleniori, &c. and for the very word of procee∣ding ex officio: as where it was written vnto the Officiall of the court of Canterbury or his Commissarie thus: 4 1.33 Cum vos nuper ex Officio vestro, fama publica referente, quod T. &c. vestrae iurisdictio∣nis C. in amplexibus fornicarijs tenet, ipsam corā vobis in curia chri∣stianitatis pro correctione animae suae in hac parte citari feceritis, pro∣cedentes contra eum (ibidem) iuxta Canonicas sanctiones, &c. vobis significamus, quòd in causis praedictis, ex officio vestro, quatenus ad correctionem animae, &c. procedere & facere poteritis, quod ad offici∣um vestrum speciale de iure noueritis pertinere, &c.

Likewise in another Consultation it is conteined thus: viz. Cum vos 5 1.34 nuper (vt acce•…•…imus) iuxta officij vestri debitum obieceritis Io∣anni de E. parochiano de C. quòd ipse, &c. detinet, &c. vobis significa∣mus quòd in causa praedicta quatenus adrestitutionem, &c. & ad poe∣nam canonicam eidem I. pro detentione eorundem legatorum impo∣nendam coram vobis agitur licite procedere &c. poteritis. And a∣gaine thus: Cumper 6 1.35 vos contra H. de Lyndesey Notariū publicum super 7 1.36 fornicationis crimine infra iurisdictionem vestram commisso grauiter infamatum, tum super dicto crimine, quam super eo quòd iu∣risdictionem vestram per tumultum & rixas, executionésque vestras in hac parte debitè faciendas nequiter impediuit, ex officio ad animae suae correctionem fuisset processum, &c. vobis significamus, &c. quod procedere poteritis. Mention is also there made in a precedent of a Consultation, of proceeding 8 1.37 ex officio ad promotionem parochiano∣rū, in these words: Cum ex officio ad promotionē dictorum parochia∣norum,

traxeritis in placitum, &c. vobis significamus, quòd procede∣re poteritis, &c. Furthermore, there is mention made of one, who by that course was proceeded lawfullie with, for refusing to pay his vsuall oblations, to be confessed to the Priest, and to receiue the Communion, in these wordes: 1 1.38 cum ipsum ex Officio vestro coram vobis ex causis praemissis euocari feceritis, ad procedendum contra eum, ad poenam corporalem sibi pro correctione animae suae in hac parte infligendam, &c. vobis significamus, quòd in dicto placito, sic coram vobis ex Officio vestro, moto; procedere & vlterius facere poteritis in curia Christianitatis, quod ad vos, & ad forum ecclesi∣asticum noueritis pertinere, prohibitione nostra non obstante. And vpon a prohibition brought by a knight to his Ordinarie, that proceeded ex Officio agaynst him, for certaine his crimes and excesses; a Consultation was 2 1.39 granted: the wordes of the Regi∣ster are these: Cum vos nuper ad corrigendum crimina & excessus subditorum vestrorum iuxta Officij vestri debitum procedentes, R. de C. militi obieceritis, &c.

The like consultation is there founde agaynst a Chaplaine proceeded with ex Officio for fornication; that had also brought a prohibition. The wordes 3 1.40 of the Writ vnto the Ordinarie be these, videlicet, Cum vos T. de W. capellano, ex Officij vestri debito obieceritis, quòd ipse carnaliter cognouit, &c. in animae suae periculum & scandalum aliorum, vnde contra eundem ad correcti∣onem animae, &c. As in other consultations there, after prohi∣bitions (vpon vntrue suggestions) had bene purchased.

An example is also 4 1.41 there of allowing (by Consultation) of proceeding ex Officio; to the ende of enioyning corporall pu∣nishment; agaynst one that laied violent hands vpon a Clerke; whereby hee incurreth (saieth the Writ) excommunication ip∣so facto.

Likewise an 5 1.42 Ordinaries proceeding ex. Officio, to the in∣terdicting of a Church, and to the inflicting of other Canonicall paines for with-holding and not finding of a Chaplaine or Cu∣rate to serue, (according to an ordination or reall composition there∣of made) is there approoued lawfull by Consultation gran∣ted. And so is the like proceeding of Office allowed for 6 1.43 tithes with-holden, falling due to the Bishop and Archdeacon in the time of vacation of the benefice; for by the lawe and custome

then, in 1 1.44 most Dioecesses of this realme, tithes of vacant benefices were due to them.

In the writ of Consultation alleaged afore out of the 57. page of the Register for allowing proceeding ex Officio against a fornica∣tor: it is 2 1.45 also conteined; that the partie before prohibition by him brought, had submitted himselfe: for which cause of the parties violating his owne submission, and for his contempt mandatorum sibi factorum: the Ordinarie is authorized and war∣ranted to deale against him, (as afore he had begun) ex officio. By all which may appeare, both the practise of Inquisition, and proceeding ex officio in some cases by the lawes of the Realme, and the allowance also by those lawes, of such course holden in courtes ecclesiasticall both in offences and in other causes also, that be neither testamentarie nor matrimoniall.

But it may perhaps be sayd, that great abuse may hereupon folow, if the Iudge list to vexe a man wrongfully: for he may pre∣tend strong Euidence and Information or a common fame to be a∣gainst a man, or such like afore shewed, whereof he is crediblie aduertised. Well, if it be but so much, that the ecclesiasticall Iudge (when he is called by his superiour) must be able to make proofe of some such: it is more then a Iudge or Iustice of Peace neede shew, why he calleth any man into question, or bindeth him to the peace, or to the good behauiour. And what lawes can be de∣uised, but they may be abused? whatsoeuer hath an vse, hath also an abuse, sauing vertue, saieth 3 1.46 Aristotle. Yet if he be an Ordinarie (as hath bin aforeshewed) such grounds of his proceeding must appeare in Acts Iudiciallie, or be well prooued: or else (vpon an Appellation) his proceeding is to be refourmed.

Besides, is it not more probable that a Partie which will ac∣cuse, shall doe it of malice to vexe oftentimes an innocent, and to bring him into perill; then a Iudge who reapeth no commodi∣tie thereby, but satisfaction of his duetie? and is not he more like to deale in these causes with sinceritie, then quilibet è vulgo? yet by this opinion, such are permitted to accuse and to preferre mat∣ter against any, though no fame nor other matter, no not so much as suspicion doe appeare against them.

Is it not then all one, whether the innocent man be wrong∣fully vexed by the Iudge, or by a priuate person, who (in a maner)

professeth, that he doeth it of malice? neuerthelesse for all this in∣conuenience and abuse that may happen, it will not be thought conuenient (I trust) to damme vp the way from euery man both Iudge & partie, to preferre suites against offenders. For if it should so be, in short time there would bee neither Iudge nor other, but lewd persons onely; and they might liue as they list.

Yea, but it seemeth vnreasonable (will some man say) that a man should be called into question and not to know his Ac∣cuser. Surelie if the way of proceeding by Accusation be taken, he is to know him: but when by Enquirie, though for the most part the Denouncer is knowen, yet there be many weightie and very considerable causes, why euen witnesses in cause of heresie: and much lesse those that gaue the information, should not bee knowen; which euerie man of himselfe, without rehearsall, can weie and call to mind.

Besides, this obiection maketh nothing against all proceeding ex officio. For when it is grounded and instituted vpon a Present∣ment by officers speciallie appointed, their names are knowen to him whose processe is made. Yet I must tell you, that hereby it commeth oft times to passe, that meane men in parishes abroad, and for very foule crimes, do rather make choise to be bold with their oath and conscience, then with a delinquent, whom they haue some occasion to feare.

But (I pray) what necessitie is there (in Iustice) of knowing the Relatours? may not a Iurie endite a man without any cause openly appearing, as when the matter is either knowen to some of them aforehand, or the Euidence (as some times happeneth) is not giuen openlie? which cases happening; the partie endited shall neuer know who gaue the information, because they are sworne to keepe secret the Queenes, their owne, & their felowes counsell. Which course for the trouble of the partie supposed to be delinquent, doeth amount to as much, as if the Iudge ex officio mero had done it.

When the Lords of the Counsell haue a supposed malefactor in examination, are they bound in Iustice, or were it but good poli∣cie to signifie vnto him, who it is that giues the information; and to confront them together at first dash? but howsoeuer these (by circumstances) should be thought fit to be caried, it is neither to

nor fro, to the condemnation of all proceeding vpon the office of the Iudges onely, as vniust, whether a man know or be ignorant, who made the Denunciation.

Notes

• 1 1.1

  Mag. Charta. cap. 26.
• 1 1.2

  3. Ed. 1. cap. 13.
• 2 1.3

  Star. de Inquis. capiend. 33. Ed. 1.
• 3 1.4

  18. Edw. 3. pro Clero. c. 2.
• 4 1.5

  42. Ed. 3. c. 4.
• 5 1.6

  8. H. 6. c. 16.
• 6 1.7

  11 H. 7. c. 25. & 1. H. 8 c. 12.
• 7 1.8

  M. 20. H. 6. 38.
• 8 1.9

  34. Edw. 3. 3.
• 9 1.10

  11. H. 4. 17.
• 10 1.11

  Assis. lib. 16. pag. 4.
• 11 1.12

  Assis. lib. 27. pag. 138.
• 1 1.13

  Bracton. li. 4. c. 8. fol. 302.
• 2 1.14

  M. 22. Ed. 4. 23.
• 3 1.15

  2. H. 5. cap. 1.
• 4 1.16

  1. H. 7. cap. 4.
• 1 1.17

  23. H. 8. ca. 9.
• 2 1.18

  27. H. 8. ca. 10
• 3 1.19

  1. Ed. 6. cap. 2.
• 4 1.20

  1. Eliz. cap. 2.
• 1 1.21

  7. H. 4. 18.
• 2 1.22

  M. 20. E. 4. 10.
• 3 1.23

  T. 12. H. 7. sol. 22.
• 4 1.24

  Assis. lib. 22. pag. 70.
• 5 1.25

  Fitzh. nou. nat. breu. tit. Consultation, fol. 50. &c.
• 6 1.26

  Nou. nat. br. pag. 64. E.
• 7 1.27

  Ibid. litera F.
• 8 1.28

  Liberties of the Clergie, out of the lawes of the realme, by Iohn Gooddall. Printed by Rob. Wier.
• 9 1.29

  Ibid.
• 1 1.30

  Ibid. ex Re∣gist. in br. orig. pag. 45. a.
• 2 1.31

  Berous in rubr. de accusa∣tionibus, nu. 10.
• 3 1.32

  Register, pag. 54 b.
• 4 1.33

  Register. pag. 57. b.
• 5 1.34

  Register. pag. 57. a.
• 6 1.35

  Register. pag. 54 b.
• 7 1.36

  Vide 3. part. c.
• 8 1.37

  Register. pag. 51. b.
• 1 1.38

  Register. pag. 50. b.
• 2 1.39

  Register. pag. 44. b.
• 3 1.40

  Reg. pag. 45. a.
• 4 1.41

  Reg. pag. 51. a.
• 5 1.42

  Reg. pag. 51. b. & 52. a.
• 6 1.43

  Reg. pag. 51. a.
• 1 1.44

  Changed by the statute, 28. H. 8.
• 2 1.45

  Reg. pag. 57. B.
• 3 1.46

  Aristot. in Rhetoric.