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. VIII. That to proceede sometimes against an offence, otherwise then vpon an Accusation or Presētment, or then vpon an Appeale or Endite∣ment (which two at the common lawe haue respectiue correspon∣dence vnto the two former) is no diuerse, much lesse any Contra∣rie or repugnant course to the lawes, statutes, and customes of this Realme. This is proued by common lawe, statutes, and practice in proceeding informatiue and punitiue: with answeres to certaine obiections made to the contrary.

SEeing then that not only by Canon, but also by the Ciuill lawes (within the compasse of which two learnings Accusation and Presentment doe properly fall) there be so many other meanes besides either of them, to open way to a Iudges proceeding against a crime: let it now be consi∣dered, why an ecclesiastical court may not be allowed an ecclesia∣sticall course of proceeding; or whether by the statutes or cōmon law of this Realme, an ecclesiastical Iudge be any way restrained and prohibited to proceede vpō any other groundes besides the one of them two. For if the Common or statute Lawe prohibite this; then are such Canons, &c: thereby in trueth reuersed and voyd, as contrary and repugnant to the Lawes and statutes of this land. But if no such contrarietie, repugnancie, or prohibition shall be found: then will there be no cause, why the proceedings of Iudges ecclesiastical against Crimes, may not (in this behalfe) stil continue, as in all times by-past they haue done.

Notwithstāding there be great diuersities in proceedings eccle∣siastical frō proceedings at the Cōmon law; as in the frame of the Libel; in the answering of it; in the ioyning of issue; in the pro∣duction, examination, & publication of witnesses; in exceptions or chalenges against them, & Corroboratories of them; in the gi∣uing of sentence or Iudgement in writing, and in very many other points besides, too long here to be rehearsed: yet such diuersitie a∣lone notwithstāding (so that the Cōmon law, or statute, do neither contrary nor contradict them) those proceedings shalbe neuerthe∣lesse iustifiable. For by statute 1 1.1 All such Canons, cōstitutions, ordi∣nances, & synodals prouincial, being already made, which be not cōtra∣riant nor repugnant to the lawes, statutes, & customes of this Realme,

nor to the dammage or hurt of the Kings prerogatiue royall; shall now still bee vsed and executed, as they were afore the making of that Acte, &c. So that no Canons establishing proceedings onely diuerse, but Canons contrariant or repugnant to the Lawes, &c. be thereby repealed. Nowe we are taught by the rules of Reason, that two propositions reteyning otherwise the same termes, the one being vniuersally negatiue, and the other vni∣uersally affirmatiue, be contrariant one to another. And though in materia contingenti both such may be false; yet they can ne∣uer be both of them true. Therefore if the one be true, the other of them must needes be false. For example of contraries; the Common Lawe holdeth that All aduowsons or right of patronage may lawfully, and without Simonie, be bought and solde. This pro∣position then being true; the contrary proposition hereunto, which is established by the Canon Lawe: viz. that no right of pa∣tronage may lawfully or without Simonie be bought and solde, must needes be false; and therefore by the Common Lawe, doth stand in this Realme repealed, in respect of this contrarietie.

The word Repugnant in the saide statute (we see) is put after Contrariant, as of a greater force and efficacie: and therefore is to be vnderstoode, according to the common course of our speach, (albeit the Logicians doe not so vse that worde) for the contradictorie opposition; consisting of an vniuersall affirmatiue and a particular negatiue; or of an vniuersall negatiue and particu∣lar affirmatiue. And these be so opposite ex diametro, and doe alwayes so directly thwart one another; that in euery subiect matter whatsoeuer, the one of them being true, the other must needs be false: & è conuerso. As for example; The Canon Lawe holdeth, that All fighting in Duello, that is to say, triall by battaile of one single man against another, is vnlawfull. But the Common Lawe (contradicting this) doth holde, that some triall by battaile (as in a writ of right, and in an Appeale of murder or robberie) is not vnlawful. And againe, the Canon Lawe holdeth, that none aduowsons or right of Patronages may be in grosse. But the Common Lawe is in the flat Contradictorie hereof, that some aduowsons be in grosse, as well as others be appurtenant to a manoure. And there∣fore in neither of those Cases such Canons haue place in this Realme, in respect of this Contradiction and Repugnancie.

If then it may be shewed, that some proceedings of the Com∣mon Lawe against crimes, be also entred into without either Ac∣cusation or Presentment going afore: then where the course of both Courts be not so much as diuers; there cannot possibly be found either Contrarietie or Repugnancie: vnlesse we should say, that the Lawes and statutes doe condemne that, as vnequall and vniust in Courts Ecclesiasticall, which they establish and practise in Temporall Courts for good and iust.

As then an Appeale brought at the Common Lawe, doth most neerely resemble an Accusation in the Ciuil and Common Lawes: so hath enditement a correspondence, and doeth answere vnto their Presentments, being also in statute, often called by the name of Presentment. These two kinds of prosecution of Crimes, at the Common Lawe be mentioned in a statute of K. Henry the fift, in these words: 1 1.2 Diuers men of malice and enmitie, and for gaine, and vengeance, haue often caused to be indited and appealed diuers of our true liege people, of treasons or felonies in the Countie of Lan∣caster; pretending by those Appeales and Inditements, &c. And though these two be the courses of bringing a man in processu punitiuo into trial of matters Capitall: yet for infinite other offen∣ces and crimes not Capitall, the Cōmon Law hath vse of Bils in the Starre-Chamber, and of Informations in the other Courts, at West-minster. Neither of which can be truely called either Present∣ment or Accusation. Not Presentment, because no such peculiar charge of preferring vpon their oathes is layde vpon them, as is vpon Iurors at Enquests, that finde Inditements; or as is vpon Church-wardens and Side-men, who make Presentments. Not Ac∣cusation, because (as is aforeshewed) such Bils and Informations, be both of them put vp, ex officio promoto. Againe, they cannot be called Accusations, because those, who put them vp, are not parties; but the King is the partie. For it is thus said in Statute, 2 1.3 He that will sue for the King to attaint them, that pay or receiue such coyne (as is there forbidden) &c; shall haue the one halfe of the for∣faiture. And after in the same Kings dayes: 3 1.4 He that will sue for the King in this behalfe, shall haue the thirde part of that pecuniarie paine. So that whosoeuer doth preferre or follow them; yet the suite is the Kings, and he the partie; whose also the Court is, where the suite is prosecuted.

It may appeare, that at the Common Lawe, other meanes be∣sides Appeale and Enditements (which respectiuely doe resemble Accusation and Presentment) be receiued to ground a Iudges Enquirie vpon, in Processu informatiuo; whereupon also follow∣eth oftentimes processus punitiuus; that is, the triall of the Offen∣der. As first, by the common custome and practise of the land. For doe not some seuerall Iustices of the Peace, vpon their owne suspicion conceiued, or vpon secret relation of others (whome they credite) send for men by warrant to be apprehended and brought afore them? doe they not take informations sometimes against supposed offenders, vpon depositions of witnesses, be∣fore the partie be sent for? Doe they not also without any such witnesses, often-times examine the partie himselfe, and (accor∣ding to their discretion) binde him to the Peace, or to his good behauiour: or perhaps send him to the common gaole to be im∣prisoned? Doe they not receiue and sometimes preferre and procure enditements to be found (as of common Barattarie and such like Crimes) vpon their owne onely suspicions, or by infor∣mation of some one other (perhaps an enemie) and vpon other as meane presumptions? Are not sundrie persons trauelling through some towne, or founde in some priuie searche lodging there (with good reason) oftentimes brought to a straite exami∣nation and enquirie of matters Criminall; vpon the onely view of their persons and deportment, without all further intelligence or cause of suspicion? Yet be all these without Appeale or endite∣ment; and many times vpon as light and perhaps lighter suspici∣ons, and informations lesse likely and credible, then any be ad∣mitted (in like case) by the Commissioners ecclesiasticall; and much lesse by Ordinaries, who must (in case an Appellation be brought) in a more strict course of Lawe, be able soundly to iustifie the in∣ducements, that they had to leade them into those criminall que∣stions and enquiries. Yet vpon these grounds alone, not onely the apprehension of the parties, their examinations personall, and the taking of informations from others against them, is founded: but also (as often falleth out) other penalties and disgraces be in∣flicted; as binding to the Peace, or to their good behauiour, ma∣king them to answere enditements of Barattarie, or such like; im∣prisonment of them by a good space, sometimes till the next

Sessions or generall Assises; and sometime extending discretion euen to condemne men to be whipped publickely vpon the sin∣gle Denunciation of a woman being infamous, and partie in the pretended Crime: one who is as easie to be suborned to speake and charge a man falsely, as to deale lewdly; and whose testi∣monie (though it were not singular) is of no weight and credite. Much lesse therefore (being but one) ought she to be taken for sufficient to condemne any, flat contrary to Gods owne Morall Lawe.

I haue also knowen Articles put vp against a good Minister and Preacher, to haue bene reiected in respect of their insufficien∣cie, by the Commission ecclesiasticall. Yet the same Articles (being preferred euen by his aduersarie, but assisted with some of coun∣tenance in the Countrey) haue afterwards serued to haue an En∣ditement found against him, to be a Common Barattour: yea by those and before those, who perhaps might all of them be appo∣sed, to tell directly, what Barattaria truely signifieth and impor∣teth; and whence it is deriued.

Likewise doe we not see, that vpon the like grounds to some of these, a man may be touched with great disgrace and discre∣dite; and that not vniustly? As when some great and potent man in a Countrey (against whom fewe or none there abouts dare openly deale) is put out of all Commissions and publicke charge in his Countrey, vpon priuate (yet credible) information giuen to some of the great officers of the Kingdome, touching his oppression, or other ill demeanour of himselfe?

Doe not the like grounds of Suspicion, of priuate Complaint and Information exhibited vnto them, iustly and sufficiently (of∣ten times) mooue and warrant the Lords of the Counsell, to call some great malefactours into question, and to deteine them, till they be acquited or condemned by due triall?

Besides this vsuall practise, doe not the very Lawes of the land allow of these and like inducements to take informations, and to enquire into matters Criminall? 1 1.5 For in an Action of false imprisonment, it is a good plea for the defendant to shewe the fe∣lonie, and to pleade that he tooke the plaintife for suspicion of such felonie: per Frowick. And why then, may not three or moe of the Queenes Commissioners ecclesiasticall, be in reason as deepely

trusted vpon their suspicions (though in trueth they vse it not in this sort) as some one single Iustice of Peace may be, vpon his owne onely suspicion? And is it not 〈◊〉〈◊〉 •…•…ikely, that they will haue as good ground of their suspicion, as he hath of his; and as much care of Iustice and of their owne credite?

In an old 1 1.6 statute we finde, that Notoriousnes of a facte, an euill name of a man, yea and light suspicion also of Felonie, may any of them serue, to imprison a man. Albeit in the two first cases such a person is by that statute appointed to endure hard and strong im∣prisonment: yet aske whether in the originall Rolles, this statute doe speake of imprisoning; or else of strong and hard poenance, which such be appointed to suffer, that refuse to be iustified by the Common lawe of the land.

And as these and like inducements doe serue to ground the processe informatiue: so doe they no lesse, euen in Processe punitiue, when the enquirie and examination is to punish the offender. For if any the Iudges at Westminster or of Assises, haue iust occa∣sion of suspicion ministred of a misdemeanour to be committed by some belonging to that Court, touching matters of their Courts and present iurisdiction: may they not, and is it not vsu∣all with them, euen hereupon onely, without any enditement or other prosecution of partie, to call such supposed offender vnto examination before them, to the effect of punishing him, according as the qualitie of the facte shall fall out to require?

In the time of King Henry the seuenth it was prouided by 2 1.7 Par∣liament, for suppressing of Retainours; That two Iustices (where∣of one to be of the Quorum) might call all such persons, as they shall thinke to be suspected of any Retaynour, and them to examine of all such Retaynours by their discretion: and their certificate into the K. Benche against all of them so examined, and by that examination found in default, to be against them as a conuiction: and their certi∣ficate of any persons by that examination accused to be Retainours, to be of like effect and strength against them, as an Enditement.

By the same it was also 3 1.8 enacted, that such Iustices (as afore) or the Lord Chaunceller, or Lord Keeper, or three of the Kings Coun∣sell attending him, shoulde haue full power and auctoritte without any sute or information made or put before them or any of them, to sende for by Writte, Sub poena, Priuie seale, Warrant, or otherwise

by their discretion, for any person so offending; and the same person to examine by othe or otherwise by their discretion: and to adiudge such as should bee founde guiltie by verdict, confession, examina∣tion, proues, or otherwise, in the forfeitures and paines, as though they were condemned after the course of the Common lawe, &c. So that it was thought then by the whole state of the Realme, none vn∣iust course (no not in a Temporall Court) for Magistrates to call some offenders into question criminall, whom they did but thinke to be suspected, and to condemne them without either Endite∣ment, Appeale, suite, or Information made.

By a Statute made in her Maiesties time it is enacted; 1 1.9 That if any man be in prison for supposed speaking in behalfe of forreigne Supremacie, and happen not to be endited within one halfe yeere of the offence committed; that then he shall be set at libertie. Where∣by appeareth, that a man may happen to be brought into Que∣stion criminall, and to be in prison also (which is an Attachment, and some punishment) without any Enditement or Appeale precedent.

The statute for 2 1.10 Uniformitie in Common prayer, mentioneth three meanes of Conuiction by the course of the Temporall lawe: viz. Verdict of twelue men; the parties confession; and the notorious euidence of the facte. If then the Notorious euidence of the fact without Appeale or Enditement, Verdict, or Confession, may (at that Lawe) serue for a Conuiction: may it not with as good iustice, and equitie serue for the same purpose, at the Ecclesiastical lawe, without either Accusation or Presentment?

If here it be said by any, that though such practise of Tempo∣rall Iudges be lawfull, and the Lawes and Statutes be iust in this behalfe; yet perhaps the Common Lawe will not giue so large a scope vnto Iudges ecclesiasticall: against such doubters I will ob∣iect those wordes of 3 1.11 Magna Charta, where it is not a newe graunted, but Confirmed onely, That for euermore the Church of England shalbe free, and shall haue all her whole rights and liberties inuiolable. And this is a confirmation of their rights and liber∣ties, before any graunt was made to the rest of the Realme be∣sides: being yeelded at such time, when as (through generall ig∣norance) it was vntruly holden, that the state Ecclesiasticall (signified there by those wordes, The Church of England) had

not their Iurisdictions from the Prince, but from God alone, de∣riued downe to them by the meanes of the Pope: and therefore that their Courtes and Lawes, (whereby they proceeded) were not in any respect to be accounted for Courts holden by the Kings auctoritie, or their Lawes the Kings Lawes. Whereupon arose that vntrue and preiudiciall phrase of seuerance of a Court Chri∣stian, from the Kings Court. So that if they were confirmed to them, when their Iurisdictions (in facte) were not holden of the King, as now they be, and ought to be by Gods Lawe: is there not then more iust cause so to continue them at this time; seeing they be not so much as a diuerse course from the Customes and Lawes of the Realme in Courts Temporall?

But that this course of proceeding in causes Criminall, some∣times without either Accusation or Presentment, is in trueth a right and libertie of the Church of England, may appeare by that, which to this point hath bene afore deliuered; and by the continuall practise also of those Courts, in all ages: as the Acts thereof from time to time doe make very manifest.

Yet, this is more particularly and neerely prooued, in the very point that we handle, by a 1 1.12 statute made in her Maiesties reigne; where it is prouided, that Ordinaries not only at any other time and place, then at their visitations and Synods may take accusations and informations (a word of farre more large signification, then Pre∣sentment:) but may also enquire else-where within their iurisdiction. Which Enquirie is afore shewed to be alwayes ex Officio; and (being absolutely spoken without further addition, and in some sort seuered from all ki•…•…de of Informations) must necessarily be without Presentment.

But how farre and in what maner may they so doe? Truely in like fourme as heretofore hath bene vsed in like cases, by the Queenes ecclesiastical Lawes. If then to proceed Criminally with∣out either of them two, be warranted & practised by the Queenes ecclesiasticall Lawes (as afore is shewed) assuredly this Statute doth auouche and iustifie them.

To this disputation may be referred that obiection, which the Notegatherer maketh touching a 2 1.13 statute of K. Henry the seuenth; * 1.14 whereupon (he saith) Empson and Dudley proceeded, that was 3 1.15 repealed by another in the time of K. Henry the eight; although

he putteth it vnder his title of the lawes of England, as by them seeking to impugne al proceeding ex officio; albeit vnder present∣ment (which this opinion alloweth) proceeding ex Officio, is necessarily implied, and presupposed.

For answere whereof; it is true, that the saide statute was so repealed: but whether it were the same and the onely statute, whereupon Empson and Dudley proceeded, is left there vncer∣taine and vntouched. Howsoeuer it was in this behalfe, seeing it authorised all Iustices of Assise and of the Peace, to proceede thereby; it is most probable, that many besides them two, did also deale by vertue thereof.

The effect of the saide statute was, that vpon information to be made for the King afore Iustices vpō any penal statute not extending to life or member, they might (without enditement) heare and deter∣mine all offences against the forme of any statute in force.

The reason of making the said statute, is signified by the pre∣amble to haue bin; for that, although at Sessions charge was giuen to enquire of many offences against statutes; and Enquests to that ef∣fect were straightly sworne and charged to enquire and to preferre the trueth: yet they were letted to be found by imbracerie, maintenance, corruption, and fauour; by occasion whereof the statutes coulde not be put in due execution. And againe in the same place: The twelue men, for the causes afore rehearsed, will not finde, nor present the trueth. Howesoeuer this were at that time, it may bee feared, that it is in some place too true still, euen vntill this day. So that if this were then a sufficient cause to make such a statute; the cause still continuing, if not encreasing; that statute will seeme to haue beene (in that regarde) lesse vnreasonable.

In the statute of Repeale thereof, for the reason of abrogating * 1.16 it, is onely assigned; That thereby many sinister, craftie, feigned, and forged informations haue beene pursued, to the great damage and wrongfull vexation of the subiectes. But this might aswell happen, euen when men be prosecuted by way of enditement. For is it not vsuall to finde them vpon any one mans euidence and information, the Iurie not regarding (oftentimes) what enimitie rests betwixt them? Therefore it was not the course by information that displeased; but the badnes of the informations

that gaue occasion of repeale. For by statute, euen in K. Hen. 8. * 1.17 his dayes, an Information was made equiualent vnto a presentment by verdict of twelue, in matter of heresie, that is far more penal, then the former. Which cruell statute I would not haue alledged, but that the Note-gatherer groundeth himselfe thereupon, for ano∣ther purpose.

And we see, that there is no such cause alledged, as the Note∣gatherer insinuateth; either as if it were an vniust & vnreasonable course, or in respect that it was ex officio, at the instigation and so∣licitation of some one person; or yet, that it was without Appeale or Enditement. For if it had bin simply vniust; then all the treasure which had bin leuied by colour thereof, should haue bin resto∣red. And it is euident, that Bils and Informations against offenders, are still in frequent vse, and may be preferred for the Queene by any, and against any, whomseuer. And those which be found of∣fenders, may (without either Appeale or Enditement) be condem∣ned and punished thereupon in sundry geat penalties and losses both pecuniarie, corporall, and of their good name and credite.

And for further proofe, that it is at this day holden none vn∣iustice by the tempor all lawes for to ground an enquirie, yea, and also a Conuiction without either Appeale or enditement, is plainely prooued by a latter statute, which is yet in force. For Iustices of * 1.18 Peace at their Sessions haue authoritie to enquire of the offences of them, which be admitted to keepe Ale-houses, not onely by Present∣ment, but by Information, or otherwise by their discretion &c. and may heare and determine the same by all such wayes and meanes, as by their discretion shall be thought good. And a litle after it is there enacted; that the Certificate of the Iustices touching euery such Recognisance and offence, shall be a sufficient conuiction in the lawe of such offence. So that for this one kinde of offence, as much is established by this statute, as was for sundry others, by the aforesaid repealed Acte. And therefore it is no course of proceeding condemned as simplie vniust; howsoeuer the fa∣mous King Henrie the eight, was willing at the very entrance of his reigne, to gratifie his subiectes by that Repeale.

Another obiection in this behalfe is taken out of the preamble of the repealed statute for heresie, made in the time of the afore∣said king Henrie the 8. the wordes are these: viz. It standeth not * 1.19

with the right order of Iustice, nor good equitie, that any person should be conuict, and put to the losse of his life, good name, or goods; vnlesse it were by due accusation and witnesse, or by presentment, verdict, confession, or processe of outlawrie. Which wordes (you see) doe speake of conuiction, and of being put to losse of one of those three, and not of the calling into question and maner of pro∣ceeding. This doeth appeare, in that to the worde Accusation is ioyned Witnesse, with a copulatiue: whereas the opinion (whereof we treate) implieth, that either vpon any Accusation or yet vpon Presentment (without any more adoe) an Ordinary may grounde his further proceeding. But a man may not be conuicted in a Court Ecclesiasticall, either vpon a bare Accusa∣tion or Presentment without witnesses, or his owne confession: to which (I thinke) may well and with good reason be added, wil∣full contumacte, and not presumed onely; which contumacie both in Ecclesiasticall Courtes, and some others of this Realme, a∣mounteth to as much (in construction of lawe) as a confession: and it hath a correspondence vnto an Outlawrie, that is a kind of conuiction, at the Common lawe, grounded vpon wilfulnesse onely presumed.

Moreouer, this preamble doth not rest in the two wordes of Accusation or Presentment, being the onely things required (by this opinion) to warrant proceeding Ecclesiasticall; but addeth also witnesse, verdict, confession, or processe of outlawrie: and there∣fore cannot (by any meanes) be referred vnto enducements, to ground proceedings vpon, but onely vnto meanes of conuiction: and the rather, because in that whole sentence, no verbe passiue is vsed, but conuicting and putting to losse, &c. which maketh me the more to maruell, how the word Presentment, with a disiunctiue, came in amongst the rest: as if by a Presentment alone, a man might be conuicted, or put to losse of any of these three.

Some other wordes following in the same preamble, are also * 1.20 brought for this purpose, viz. wherefore it is not reasonable, that any Ordinarie, by any suspicion conceiued of his owne fant asie with∣out due Accusation or Presentment, shoulde put any subiect of this Realme, in the infamie and slaunder of heresie, to the perill of losse of life, losse of name and goods. These wordes are inferred vpon the former, and are directed vnto none other crime but Heresie,

where the perill and penaltie is so grieuous, as losse of life, losse of name and goods, ioyntly together; & therefore can by no reason be drawne & stretched vnto euery other crime ecclesiastical, where no such perill of penaltie, or of punishment resteth. For wordes of statutes are of strict interpretation, and are most strict in mat∣ters criminall and penall, and therefore may not be extended vn∣to other crimes, then are expressely mentioned; yea though there were (in both) a like reason. Whereas (in trueth) betwixt the punishment of Heresie, Atheisme or Apostacie, and other crimes ecclesiastical, there is as great dissimilitude as may be. For death in those three is not inflicted, but when all hope of amendement and reformation of the partie himselfe is past, and he is therefore taken away by death, to the intent others may be terrified by the example, and that he haue none opportunitie to entise any moe to his heresies, or to continue in his blasphemies against God. But in the correcting of all other crimes ecclesiasticall (though secondarily sometimes the terrour of others is sought) yet principally the parties owne reformation, and bringing vnto penitency and amendement, is intended. For hereby he sustai∣neth no losse at all, not so much as of his good name, but rather a gaine; because after his reformation and repentance, he ought to be (of al Christians) holden as deare and precious in Gods sight, * 1.21 as if by falling into the sinne, his credite had neuer bin impaired. In which respect those Canonicall penances were by the fathers of the Church, and by the olde and pure Canons said to be medicinae animae, rather then poenae: yet not as satisfactorie for the sinne, but as good inducements vnto, and also testimonies of repentance.

And you knowe, how absurd a kind of reasoning it is, either to argue from one thing to another à dissimilibus: or to reason from that which is more likely to be, vnto that which is much lesse likely (viz. à maiori ad minus) affirmatiuely, as must needes be out of this place: for thus their obiection must bee gathered: Without accusation or presentment of heresie; none shalbe put in perill of losse of life, losse of name, and goods: therefore without the one of these two, an Ordinarie may not proceede to the punishment of any other lesse offence ecclesiasticall. Yea though no one of these three, and much lesse all of them be any way thereby hazarded, or brought into perill.

Furthermore in these last recited wordes there lieth a plaine op∣position, betwixt any suspicion conceiued of the Ordinaries owne fantasie: and a due accusation or Presentment. Therefore, if sound and credible information, notice, euidence, or other sufficient matter may appeare to be brought vnto him, so that hee cannot be sayd suspiciouslie to conceiue it of his owne fantasie onely, then the true intent hereof is thereby satisfied. But shall the Preamble of this repealed Statute stand for sound authoritie, and shall not the equitie and reason of the very bodie of the Statute it selfe, 11. H. 7. though afterward repealed (much rather then a Preamble) be receiued for a good argument; proouing that it is neither vniust nor vnreasonable, at some times to ground a Iudges proceeding criminall, without either Appeale or Inditement?

Lastlie, here seemeth a due accusation or els a due Present∣ment of Heresie, in reason and equitie to bee required: but it is not here, neither (as I take it) else-where by the lawes of the Realme determined, what may bee accounted a due accusa∣tion or a due Presentment of a crime in an Ecclesiasticall court. Then (as I construe the lawe) must it bee left vnto the lawe ec∣clesiasticall to determine, when these may bee sayd to bee due∣lie done, either preciselie, or by that which is aequiualent vnto them.

And so we may conclude, that to proceed in an Ecclesiasti∣call Court agaynst a crime, otherwise then either by Accusati∣on or such Presentment, is not contrary or repugnant vn∣to the lawes of the Realme, but rather the like course often practised by them: and thereby the Iu∣stice & equitie of such proceeding more stronglie confirmed and iustified vnto vs, and the contrarie opinion quite ouer∣throwen.

Notes

• 1 1.1

  25. H. 8. c. 19.
• 1 1.2

  7. H. 5. ca. vnico.
• 2 1.3

  3. H. 5. ca. vnico.
• 3 1.4

  8. H. 5. ca. 3.
• 1 1.5

  10. H. 7. fol. 17.
• 1 1.6

  3. Ed. x. ca. 12.
• 2 1.7

  19. H. 7. ca. 14.
• 3 1.8

  Ibidem.
• 1 1.9

  1. Eliz. ca. 1.
• 2 1.10

  1. Eliz. ca. 2.
• 3 1.11

  Magna Char∣ta. cap. 1.
• 1 1.12

  1. Eliz. ca. 2.
• 2 1.13

  11. H. 7. ca. 3.
• * 1.14

  Note gathe∣rer.
• 3 1.15

  1. H. 8. ca. 6.
• * 1.16

  1. Hen. 8. c. 6.
• * 1.17

  31. Hen. 8. c. 14.
• * 1.18

  5. & 6. Edw. 6. cap. 25.
• * 1.19

  25. H. 8. ca. 14.
• * 1.20

  Ibidem.
• * 1.21

  The Angels re∣ioyce at the con∣uersion of a sin∣ner, and doe not vpbraide.