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 Commissioners thereby authorized THe two other opinions remaining that respect matters handled by Ecclesiasticall iurisdiction and come next to be treated of for the affinitie of them and because they both depend vpon 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 heresie but according to the statute primo of her Maiesties 1 1. Eliz. cap. 1. 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 proceed to the condemnation of an heretike and therefore seeing all former statutes made against heretikes stand now repealed he gathereth that no heretike may be delt with but according to the said statute made in the first yeere of her Maiesties reigne This opinion it may be he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 Fitzh in noua nat br fol. 269. D of Fitzherbert his Noua natura breuium yet I thinke rather it was his owne conceit 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 albeit he there also hold that at the Common lawe before such statute 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 2. H. 4. cap. 15. 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 dioecesse 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 heretikes 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. Eliz. cap. 1. 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 common people the high Commission shal not haue authoritie to adiudge any matter or cause to be heresie but onely such as hath bene so adiudged 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 determining or adiudging of a matter to be Heresie by the Commissioners ecclesiasticall there spoken of is a iudgement at or according to the course of the Common lawe as the Common law is taken in vsuall signification Or shall it be imagined that wheresoeuer any matter by occasion comes in to bee mentioned in a statute as for 1 13. Eliz. c. 12. example naming matters of faith mentioning errors in doctrine or the doctrine of the Sacraments that the determination 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 naturall borne subiects may take and vse in Ecclesiasticall causes attachments imprisonments and fines THe next opinion that comes to be treated on is Whether the Queens Maiestie by her letters patents vnder the great seale of England may authorise the vse of any other processe in matters ecclesiasticall 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 ecclesiastical 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 gouernment 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 aduisement 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 Magna charta cap. 39. 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 iudgement 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 infinite and an absolute power to themselues as some kings elsewhere did
ecclesiasticall no man may be imprisoned Therefore the vntying of this knot resteth vpon the whole matter here disputed of viz. whether that statute 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 commission though nowe that power be not altogether vsed graunteth the execution of foure statutes vnto them and alloweth them to proceede aswell by Iuries as by course of the lawe ecclesiasticall 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 also 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 expound that worde For the temporall Iudges are not to proceede in matters of ecclesiasticall iurisdiction and therefore their iurisdiction is not encroched vpon though in such matters ecclesiasticall attachements or imprisonments be vsed or fines imposed seeing 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 Reformatists 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 Imprisonning 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 established 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 exercise 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 Commissioners is visiting reforming redressing ordering correcting and amending 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 penalties or censures shal be 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 Commissioners and therefore of necessitie to be supplied by those generall wordes viz. According to the tenour and effect of the letters 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 Commission 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 murders 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 38. H. 8. ca. 28. Rastall Wales 32. wordes in an Acte of Parliament The President and Counsaile there shall haue power and authoritie to heare and determine by their wisdomes 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 particularitie of authoritie nor yet are of so much pregnancie to that purpose 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
of God and examples of holy Scripture I do not call to my slender remembrance where any criminall matters be appointed commanded to be prosecuted by a Partie but in very few places where any haue bene vsed who might properly be termed an Accuser or a Partie For albeit in sundry places of Scripture we finde Accusers mentioned yet in many of them such cannot be accusors or parties properly and strictly so termed but onely in a very large signification because their testimonies were receiued against those whom they denounced of crimes For where a man is partie himselfe making it as it were his owne cause and not the Iudges office there it is no reason that his owne testimony should be admitted 1 L. 1. §. in propria ff Quando appell Quia testimonium in propria causa vel quasi propria non valet And it may then be said to be a mans owne cause whereof he may reape benefit or dammage But more God willing shal be spoken hereof in his proper place Touching bringing crimes into question in Temporal Courts of this Realme that deale in matters ciuill or criminall it is to be first remembred that these Courts be of two sorts some vsing the Queenes immediate auctoritie yet the same still actually being in her Highnes as all the Courts at Westminster Others vsing but a kinde of mediate auctoritie deriued from the Crowne yet by her Graunt made in some sort their owne as deriued downe thereby vnto them For sundry subiects albeit they haue but a deriued power from the Queene as from whome through the dominions of this Crowne all iustice and iurisdiction to administer it whether Temporall or Ecclesiasticall doth originally flowe yet do not their Processes runne in the Queenes name nor her seale is vsed to them Of such Temporall Courts as sit but by such a mediate and deriued auctoritie from the Queene vnto them and therefore vse not her Seale or name some were in times past established for causes Martiall as the 2 Ric. 2. cap. Constables of England and the Earle Marshall his Courts whereof I haue very small experience and some for matters perteyning to the Peace And of these last some be for causes growing within the land as Courts of Counties Palantine of cities and townes corporate Sherifs turnes and Court-Leets or views of Francke-pledge and others be for causes Marine as all the Courts of the Admiraltie In temporal courts of counties Palantine in courts of townes and cities corporate fauing where some speciall custome preuaileth as in London many in Sherifs turnes and in Leetes the course of the common Lawe is for the most part obserued In Admiral courts the order of the Ciuill lawe of the Romanes because it is the written Common law of most nations not barbarous with whom wee haue to deale is especially vsed sauing where by Statute or Custome it is otherwise directed Of such courts as exercise the Queenes immediate autoritie some haue no letters Patents of Commission to direct them as the Parlement which is called and sitteth by the Queenes onely writ the Chauncerie from whence all originall writs do come and yet the L. Chauncellour or L. Keeper haue no Commission by letters Patents but receiue their authority by deliuery vnto them of the great Seale as I am infourmed the Starre-Chamber established of the Queenes priuie Counsell and some others to be called partly by praescription and partly by Statute the court of Requests by custome and praescription And the Counsaile in the Principalitie and Marches of Wales auctorised by Act of Parliament vnto such and in such maner as her Maiestie by instructions vnder her Roial hand-writing shal from time to time direct But those Courtes Temporall which sit by Commission and letters Patents for exercising in stead of her Highnesse the Queenes owne and immediate autoritie are either such as be vsually now holden at Westminster as the Courts of the Queens Bench the common Pleas the Exchequer and the Court of Wards and Liueries or in other places of the Realme abroad as Courts of Generall Assises Nisipriùs Gaole deliuerie Sessions of the Peace the Counsell established in the North parts the Court of Stannery in Deuonshire and Cornewall and as I haue bene infourmed the Court for triall of life and death at Halisax and such like I know that by speach and by vse also in sundry mens writings touching the aforenamed Courts such only as it were by a kinde of appropriation be most vsually called Courts of the Common lawe wherein matters of fact touching hereditaments contracts or misdemeanours be tried by a Iurie of twelue men because this triall is more frequent then any other But yet we are not to thinke that none but these may truely so be named as though the other were contrary to the Lawe Common seeing they be also allowed by the Lawes Statutes or Customes of this Realme aswell as those which proceede to triall by Iuries In the Courts afore specified that proceede to the triall of crimes by Iuries of twelue if there be any Appellour as of murder robberie or such like then may the prosecution most properly and truely be said to be done by an Accuser and at the prosecution of a partie If it be for the Queene whether it be by way of enditemenâ—… and be preferred by the Iudges themselues or by the Queenes Atturney generall or by some priuate person oâ—… be by way of Information put vp against some offence made poenall and not capitall and this either by the Atturney generall or by some other person then all such proceedings are in trueth done ex officio Iudâ—… And this either of meere and entire office as when the Iudge himselfe preferreth it or ex officio promoto as when it is first related and preferred vp vnto him and prosecuted by any other But in this last case there is a kinde of mixt proceeding betwixt both And albeit the Informer do prosecute partly for himselfe yet is it for the Queene also whos 's the Court is and so may be truly said to be of office This appeareth plainely in that the Appeller because he Is a meere partie is not so fauoured assisted and pâ—…iuileged in many respects as when the prosecution is instituted of Office for the Queene For the Appellee may put it to triall of battell with the Appellour which he cannot doe vpon enditement at the suite of the Queene Like wise whosoeuer doth preferre the endiâ—…ement or information though the defendant happen to be acquited yet the preferrer payeth neither costs nor dammages nor is subiect to any action in that behalfe as an Accuser and partie both is and ought to be But if the defendant be conuicted so the crime be not capitall but fineable then is the fine if it be imposed by the Court to come wholly to the Queene If by poenâ—…ll statute then most commonly it accrueth by disposition thereof partly to her Highnesse and partly to such priuate
Ecclesiasticall and for rounder proceeding and for more grieuous punishment at least in these dissolute times more feared then can or may by Ordinarie 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 authoritie 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 Maiestie to be now exercised by the Commissioners Ecclesiasticall For proofe of the Minor I am to put you in minde what corporall 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. H. 7. ca. 4. Bishops and Ordinaries may lawfully at this day punish and chastise Priestes Clearkes and religious men within their Iurisdiction 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 trespasse 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 appoint 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 learned 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 sundry examples though holden by such learned men which neuerthelesse 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 Magistrate 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 commanded in any case by the Iudges of either Benche by the Exchequer by the Iustices of Assisse by the L. Treasourer by the L Chauncellour or L. Keeper nor yet by the whole Counsell boord He thinketh it also not iustifiable that any Magistrates should be commanded 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 omitted 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 surmising the Lords to do therein against Lawe because they commaunde him being a Iustice of Recorde and for that they signifie 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 Commissioners 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 serued 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 contrary 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 18. H. 6. cap. primo contrary to a Statute What was this quarrell which is now picked against it worth the practise 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
thereby authorised 14 That by the statute her Maiestie may commit authoritie and they may take and vse for ecclesiasticall causes attachments imprisonments and fines 15 That an ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie 16 That after fortie dayes an excommunicate person may be otherwise punished then vpon the writ De excomm capiendo and that the said writ may and ought to be awarded vpon contempts rising on other causes ecclesiasticall then any of those ten crimes that be mentioned in the stat 5. Eliz. cap. 23. 17 Of a prohibition what it is where it lieth not and where it doth and how it ceaseth by a consultation and of the writ of Indicauit 18 An analysis or vnfolding of the two speciall statutes touching Premunire with sundry questions and doubts about that matter requiring more graue resolution THE FIRST PART OF an Apologie of certeine proceedings in COVRTS ECCLESIASTICALL wherein is chiefly shewed what matters be incident to Ecclesiasticall conusance and so allowed by Statutes and Common law 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 vnto then do all their other opinions against the ordinarie iurisdiction ecclesiasticall 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 appellations 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 matrimoniall 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 committed 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 seemeth to be grounded so many as haue had cause to speake of the iurisdiction ecclesiasticall doe also fully conuince it The 1 25. H. 8. ca. 19. statute for delegates vpon appellations doth argue that Ordinaries 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 27. H. 8. ca. 20. 32. H. 8. cap. 7. two statutes were not long after prouided in assistance of iurisdiction ordinary and for the better and speedier recouerie of tithes in Courts ecclesiasticall according to the course of the ecclesiasticall lawes in that behalfe And the 3 34. 35. H. 8. cap. 19. like was also enacted for recouerie of pensions procurations c. withholden In the time of K. Edward the sixt in 4 1. Ed. 6. cap. 2. a statute since repealed by queene Marie a great number of particular causes of iurisdiction ecclesiasticall are there by the way rehearsed that Ordinaries other ecclesiasticall Iudges might and did then deale in In the time of queene Marie before the supremacie was giuen vnto the Pope the 5 1. Mar. cap. 3. 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. Eliz. cap. 2. time that now is by the act for vniformitie 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 5. Eliz. ca. 23. vp particularly 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 excom capiendo and therefore prouideth remedie therein Which necessarily argueth the continuance and approbation of execution of Iurisdiction Ecclesiasticall by Ordinaries without further obteyning of leaue By the statute against periurie made at the same time 2 5. Eliz. cap. 9. 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 heretofore haue bene and yet are vsed and frequented in the saide Ecclesiasticall Courts which prooueth the vsuall practise of Iurisdiction Ecclesiasticall hitherto vsed without any speciall assent to be lawfull The statute against vsurie prouideth 3 13. Eliz. cap. 4. that such vsurie as is aboue 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 13. Eli. cap. 10. statute of dilapidations the remedies that by the Lawes Ecclesiasticall were afore giuen against executors and administrators of incumbents are there extended also to donees and alienees 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 proceedings 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 25. H. 8. ca. 19. which as I coniecture this opinion was stirred vp doth establish all Canons which be not contrariant 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 without any expresse or particular Royal assent from time to time obteined and therefore may still be vsed without any such newe assent For to exact it were in very deed to bring in a quite disuse of all ordinarie Ecclesiasticall Iurisdiction in stead of vsing it which hitherto from planting of Christianitie and in all succeeding times hath neuerthelesse bene practised This opinion as an arrow shot vnaduisedly at the Bishops glanceth 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 Maiestie 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 25. H. 8. ca. 19. 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 petition 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 27. H. 8. c. 15. 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 Canons c. the same modification as afore is retained viz. According to the said submission and petition of the Clergie which concerneth onely newe Canons For of those that were then already made the very selfe same prouiso as afore is set downe appointeth 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. Eliz. ca. 1. 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 offices 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 Popish Clergie did theirs from God by the meanes and direction of the Pope Yea euen another 3 8. Eliz. ca. 3. 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 Preamble thereof as a strong proofe without scruple and ambiguitie that the authorities and Iurisdictions by them executed be thereby giuen vnto them from her Maiestie And therefore this opinion doth remaine destitute 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 excommunicate 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 Iurisdiction 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 children dedication of Churches or Churchyards or to their Iurisdiction Their Iurisdiction is of two sorts the first is voluntarie that is when those whom they deale
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 presumed 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 iurisdiction ecclesiasticall the statute thereof made in the time 3 1. Mar. cap. 3. of Q. Marie doth prooue for though it do prouide punishment temporall therefore yet it reserueth the iurisdiction that Ordinaries had for punishment thereof by lawes ecclesiasticall Not to frequent 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. Eliz. cap. 2. for Vniformitie of Common 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 consultation 1 Reg. pag. 50. a. b. was granted whereby the Ordinaries proceeding ex officio against one that refused to receiue the Communion is allowed and warranted And so doth the litle 2 Goodall of the liberties of the Clergie 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 sacrilege brauling or fighting in Church or Churchyard dilapidations or waste of an Ecclesiasticall liuing and all incontinencie are punishable by Ecclesiasticall authority and how farre AMongst such crimes as be offences against iustice I do place simony first as participating also not a litle with the former sort yet rightly sorted 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 Ibid. in fine statute De excommunicato capiendo sheweth to be punishable by iurisdiction ecclesiasticall That vsurie is likewise it doth appeare by authoritie of diuers Parliaments The king and his 4 15. E. 3. cap. 5. shall haue the conusance of the vsurers dead and the Ordinaries of holy church shall haue the conusance 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 11. H. 7. cap 8. there are reserued to the spiritnall iurisdiction their lawfull punishments in euery cause of vsury And so is it expresly also mentioned in the aforenamed statute De excommunicato capiendo but this iurisdiction is since somewhat restreined because 6 13 Eliz. cap. 8. vsurie can not now therby be punished nor corrected except it reach aboue the rate of tenne in the hundred by yere By a consultation in the 7 Reg. pag 49. b. Register which was granted in allowance 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 statutes 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 D D. in l. Titia ff soluto matrimonio called in question whether a contract be vsurarious or not the court ecclesiasticall doth determine this but for to pronounce such a contract void and to execute that sentence belongeth to a temporall court For cause of defamation it is 2 Stat. circumsp agatis 13. Ed. 1. recorded by an olde statute that it is alreadie granted it shall be tried in a Spirituall court And againe In 3 Artic. cleri 9. Ed. 2. cap. 4. 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 23. H. 8. cap. 9. 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 T. 12. H. 7. fol. 22. 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 also that granted the consultation the originall cause being defamation 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 Reg. pag. 49. a consultation in the Register vnto a court ecclesiasticall And it is there added to this effect viz. Si in causa diffamationis ad poenam canonicam imponendam agatur tunc vlterius licitè facere poteritis quod ad forum ecclesiae noueritis pertinere prohibitione nostra non obstante One that sued 1 Reg. pag. 51. 2. another in a cause of diffamation in court ecclesiasticall 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 ecclesiasticall conisance If saieth 2 Liberties of the Clergie by the lawes of
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 ecclesiasticall 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. Eliz. cap. 2. pass alibi Kings or the Queenes ecclesiasticall lawes In the Preamble 1 25. H. 8. ca. 21. 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 certeine 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 authorize 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 Canturburie haue of granting faculties c. And therefore the humane lawes spoken of in the Preamble are those Canon lawes which by such sufferance vse and custome are now as the accustomed 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 5. Eliz. cap. 25. 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 25. H. 8. ca. 19. not to the dammage or hurt of the Queenes Maiesties prerogatiue royall nor contrariant or repugnant to the lawes statutes and customes of the Realme Furthermore it is well and notoriously knowen that proceedings 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 respect Bishops that claime not the patronage do alwayes plead to a Quare impedit thus Nihil clamat praeter institutionem destitutionem 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 whereupon 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 Charta are no way to be construed of any iurisdiction ecclesiasticall Furthermore besides iudgement of a mans peeres there is added 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 aswell 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 iurisdiction 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 other 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 referred where he allegeth out of the diary acts of the Clerke of the Parliament I know not how truly 1 4. H. 4. art 29. that the Commons exhibited 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 Parliament offered vnto them to be confirmed for a law Whereby we see that arrests attaching for crimesmight be made without enditement precedent and by others then the shiriffe 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 notwithstanding that which the
H. 4. ca. 15. which he termeth the twise damned and repealed Statute and a bloody and boyling lawe will be alleaged for proofe of these oathes In trueth wee should be brought to a very straite exigend if we were forced as he is to runne vnto such repealed statutes for proofe of any principall point in controuersie Yet let vs see howe he assayeth to vntye this knot which he doeth two wayes First he sayth it appeareth not that thereby any authoritie was giuen to impose any such generall oath if then no such thing appeare why doth the Notegatherer so confidently Repugnancie betweene the Treatisour and Note-gatherer and so often affirme that this oath was then first brought in and established and therefore hee calleth that the statute ex officio though ex officio or oath be not once named there thereby confounding the very course of proceeding with that one Act thereof viz. of ministring an oath The Treatisour goeth further and sayth it appeareth not that any authoritie was thereby giuen to compell by oath the prisoner to become his owne Accuser for that and especially in causes of life and death had bene against the lawes and iustice of the land By which restraint in this worde especially he seemeth little lesse then to yeelde that in other cases not capitall this oath is not against the lawes nor iustice of the land But it is very vntrue to thinke that whatsoeuer is wholly forborne in Temporal courts should therfore straight way be accounted to be against them For there is great difference betwixt not vsing or forbearing and plaine forbidding of a thing to be done Furthermore we are commanded in 1 1. Pet. ca. 3. ver 15. Scripture to be ready to giue an account to euery one that asketh vs a reason of the hope that is in vs with meeknes and feare If to euery one much more to a Magistrate What then if he hauing also authoritie to impose oathes will exact it in this case may he not as lawfully doe it as without oath he may aske and interrogate the partie Nowe it is no more lawfull before God for vs being but asked of our fayth or hope euen by a priuate man to dally with him or to say vntruly though it might saue our life then wee may say vntruly when wee be sworne to tell the trueth thereof vnto a Magistrate 2 Ecclesiast 4. ver 30. doe not gaine say the trueth in any case saith the wiseman and againe be 3 Ecclesiast 41. ver 21. ashamed of vntrueth before a Magistrate or a man in authoritie So that hereupon it may seeme to be against Gods lawe to set any man at libertie from answering truely touching his fayth and hope and so in heresie when howe and by whomsoeuer he shal be interrogated yea though danger of death might ensue thereby vnto him His second answere to that statute is that if this oath be implyed vnder the worde of Canonicall sanctions mentioned in that statute then was it no binding law nor gaue sufficient authoritie c. because all lawes of man repugnant to the lawe of God are meerely voyd Where he assumeth as graunted that this oath is repugnant to Gods law which shal God willing be prooued far otherwise The last point which to this purpose he supposeth wil be obiected is that the kings heretofore haue graunted Commissions to examine by oath This he thinketh cannot be prooued and though it could yet sayth he such Commissions are against law and therefore voyde Therefore vntill they be prooued to be herein against lawe this answere will fall to nought and the obiection will remaine till then good and sound And so I ende this tedious Chapter made in answer of all that which I finde brought for proofe that these oathes whereof we argue should be contrarie or repugnant vnto the statutes common lawe or customes of this Realme CHAP. VIII That ministring of such oathes is by the Lawes of the Realme allowed vnto Iudges of Ecclesiasticall courts and some fewe obiections made to the contrary are answered THat the lawes of the Realme allowe it vnto courts Ecclesiasticall which point comes next to be declared these few allegatiōs folowing may suffice 1 〈◊〉 H. 5. ca. 〈◊〉 Ordinaries are authorized to enquire of the foundation estate and gouernance of Hospitals being not of the Kings foundation and of all other matters necessarie in that behalfe and vpon that to make correction and reformation howe after the lawes of holy Church as to them belongeth Now by those lawes Enquirie touching crimes not capitall is made by the defendants oath as in the next Chapter folowing is declared So that if any such faultes be the persons visited are to discouer them vpon their oathes which cannot be entended but that they may be criminall and penall to them selues because the statute sayth that they are to be corrected and reformed If 2 Clerkes be conuicted before Ordinaries of incontinency by examination and by other lawfull proofe requisite by the lawes of holy Church they may be committed to ward But it is shewed afore that examination euen at the cōmon law like as at the Ecclesiasticall is vpon oath So that such oath is by the iudgment of that statute deemed a lawfull proofe requisite by the lawes of holy Church Executors 1 21. H. 8. ca. 5. administrators must giue oath before Ordinaries of the trueth of such Inuentaries as they doe exhibite Yet this may implye in it either periurie or some discouery of a mans owne fault if he haue dealt therein corruptly and fraudulently And another 2 27. H. 8. ca. 10. statute though standing repealed yet giueth good testimonie that not onely Enquirie at an Ordinaries visitation but also that the parties owne examination of whome the enquirie criminall ex officio is made is holden for a due course of the lawe ecclesiasticall not disallowed of by the lawes of the Realme And such examination is done by oath according both to that lawe and to the Temporall in like behalfe as hath bene shewed out of Iustice Brookes abridgement Moreouer 3 1. Eliz. ca. 2. Ordinaries are authorized to enquire to punish c. the violation of the Act made for vniformity of common prayer howe euen as heretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes But such enquirie generall is prescribed and so was alwayes practised by the oathes of men and the enquirie speciall is and was vsed by the defendants owne oath in case he should stand in deniall The oath of 4 5. Eliz. ca. 1. Supremacie may be giuen ex officio by any Ordinarie to a Clerke being within his iurisdiction yet if such Clerke doe cary a contrary perswasion it vrgeth him to reueale and discouer himselfe and his erroneous opinion by refusall of the oath or els to be foresworne which if he list not to be but rather refuse then falleth he thereby into a Praemunire which
viz. that therfore they may not giue oths but as the cōmon law doth wil not any way follow thereupon because the Q. prerogatiue royall and common lawes are so farre from restraining or forbidding these oathes that as it hath beene prooued they allow them and the Temporall Courts in many like cases vse not so much as a different course from this which is in speciall controuersie Now if it shall be said which also some very learned men do hold as the Treatisour confesseth that the Statute law made the first of her Maiestie warranteth and alloweth this manner of oathe then to shew this to be as he conceiueth it absurde hee telleth vs of some other points also defended vpon the generall words of that Acte and of the Commission by the saide learned men which seeme vnto him to be also no lesse absurdities then is the ministring an oath in a cause criminall therfore the one no better warranted thereby then the other for to what other purpose then this he should bring them I cānot possibly cōiecture The first fault he findeth with such learned mens sayings is for that they iudge it to be warranted by the Act and by the Cōmission to put men to othes none accusation sute or lawful informatiō presentment or indictment iudicially preceeding or depending He may father vpon such learned men what he please but is it likely that he himself would thus obiect as if he required bils of Information Inditements as it is at the cōmon law to be vsed also in courts ecclesiastical seing both himselfe and the Note-gatherer do tie the Commission to causes only ecclesiastical and they also to be dealt in only ecclesiastically Such learned mēs sayings may wel truly be defended as namely whē either the offence is notorious or is knowen to the Iudges themselues to be dangerous scandalous to be suffered For these two cases be out of all those that hee nameth yea though he should most vniuersally take suite for any prosecution by another and information for any priuate credible suggestion or denunciation made The second errour which he assigneth to be holden by them is for that secret information may be admitted suppresso nomine notificantis and he calleth such informations secret accusations and the men malicious calumniators adding that all good lawes and well gouerned common wealths haue such hidden backbyters for apparant accusers But if all good Lawes and well gouerned common-weales do indeed hold such men for apparant accusers then doth it follow that when such Information is giuen there is no want of an apparant accusation Yet in very deede euery relation made to a Magistrate by such as will not prosecute nor perhaps bee seene in the cause for some good consideration is not by any law nor in any common weale that I know of holden for an accusation for a malitious calumniation or for any secret backbiting nor yet deseruedly by any necessitie is so to bee accounted For besides other countreys which I haue read of such priuate informations haue oftentimes their manifolde good vse euen in this Realme yea and amongs ech degree of Magistrates And if they should be 1 Vide 2. part pag. 85. wholy reiected or neglected might sometime bring an whole subuersion vnto vs all I pray were those that gaue the first information of Babingtons damnable conspiracie to be misliked as secret backbiters or was the examination of these traitors and the proceedings vniust because the names of the intelligence-giuers were to this day suppressed By this example then you may wey consider of sundry the like Howbeit such informations in ordinarie courtes Ecclesiasticall be not holden for sufficient ground of Speciall Enquirie except they be very frequent and the offence scandalous and in Commssion courtes they bee as rarely receiued as in any courts Temporall of this Realme whatsoeuer and then but from very great and credible persons The third fault he findeth with such learnedmens opinions is that the Iudge may professe himselfe to be an Accuser which lawlesse proceeding the Iustice of this land he saith detesteth for that no man may be accuser and witnes or Inditour and a Iurour therefore much lesse may the Iudge be an Accuser For answere whereof first the lawes ciuill and ecclesiasticall holde not the Iudge proceeding of office to be any accuser but that whereupon the Enquiry is grounded to represent the accusation and so there is no need for them to pleade such plea as he here surmiseth Secondly that an accuser may in some case and sort be a witnes c. is 2 Vide 2. part pag. 110. 111. elsewhere declared and so his antecedent false Thirdly his reason foloweth not for why might not a Iudge be an accuser albeit neither an accuser could be a witnesse nor the Inditour a Iurour Fourthly if it were true that the Iustice of this land and the common lawe did not vse something which an Ecclesiasticall court doeth may it thereupon bee inferred that therein is a contrarietie and thereby for such difference onely a detestation of the other course This maner of reasoning is more cōmon with him others in these causes then any way sound substantial For the one court doeth it the other doeth it not be no contraries nor yet propositions in any other degree of opposition in that subiectum propositionis in both is not the same and therefore doe import no more but a diuersity For is this which is the very like any good reason viz. an Ecclesiasticall court readeth dissinitiue sentences de scripto but a Temporall court doeth it not in giuing iudgement therefore there is contrarietie betwixt these courts so the reading de scripto in a court ecclesiastical vtterly vnlawfull Whereof I thought it not amisse once for all to aduertise the Reader because this erroneous argument is so vsuall Lastly if all these were to be graunted vnto the Treatisour euen as he setteth them down yet what would it auaile his cause For admit these collections were absurdly gathered from the generality of the words of the Act Commission would it therefore folow that authority to minister oaths to defendāts in causes criminal could not thence be argued without absurdities being wholly another point why if euery thing cannot well be inferred thereon may therefore nothing at all be Yet vpon these such like speeches rather thē reasons of his elsewhere by sundry occasions touched the Treatisour wisheth the said learned men wiselier to aduise these Cōmissioners ecclesiastical to respect the ends expressed in the statute viz. the pleasure of God increase of vertue conseruation of peace and vnitie of this Realme rather then the ample and large words of the statute and height of their Iurisdiction as if these ends could not possibly concurre with tender of such oaths But whēsoeuer he or any other learned or vnlearned haue sufficiently indeed prooued that these cannot stand together I doubt not but that the
this answere may serue vnto all his quotations touching examples of omission as of William Swinderby and others which are brought by him to shewe proceedings to haue beene in England against Heretiques without exacting an oath Besides it is not the exacting of an oath in heresie but in other crimes Ecclesiasticall that we doe principally mainteine howsoeuer he doe seeme rather to allowe it in matter of faith then in others of lesse moment Thirdly if when they were proceeded with in those countries they knew the matter first then is not that true which he said afore of them viz. that their refusals were like vnto that of the aforenamed martyrs of England And by this word first he seemeth at vnawares to implie a confession that they were neuerthelesse examined afterward by their oathes howsoeuer in the selfe same sentence he denie it Fourthly if by the copulatiue which he puts betwixt accusation and denunciation he meaneth both them ioyntly together then doth hee affirme impossibilities for they bee diuers courses of proceeding Fifthly the ground of his mislike is rather vpon the order of time when the oath is ministred then for the Criminall matter which we speake of Lastly vpon an accusers instance an oath cannot be ministred in any crime by the Ciuill lawe which those Countries mentioned doe most followe much lesse then vpon an accusation of heresie Furthermore in that he saith no Martyr in Q. Maries time was forced to an oath vntill the statute exofficio so he calleth 2. H. 4. then reuiued for attaching of heretiques and the Popes authoritie were restored which authoritie is now abolished It seemeth he would collect that to minister an oath in a criminall cause is vngodly as being onely builded vpon the Popes authoritie Indeede if it were onely so grounded then were it no lesse impious in this Realme to builde it vpon y e vnlawfull authoritie then his other vsurpations are But there were none martyred nor I thinke so much as examined of heresie till that statute was established viz. in the 1 1. 2. Phil. Mar. caâ—… An. 1554. Parliament begun 11. Nouemb. ended 16. Ianuar. For the sentence against Rogers who first of all was condemned to be burned was 2 Fox pag. 1030. 〈◊〉 edit pronounced 19. Ianuarie 1555. viz. the yeere after Then what maruaile is it when as further then imprisonmeÌ„t they were not dealt with or examined though an oath were not ministred to any of them But that in any ordinary Ecclesiastical court from the commingin of Q. Marie till the end of that Parliament wherein that statute was reuiued such oath was not for any other crimes tendered is I beleeue ouer pregnant a Negatiue then that it can be prooued by him or by any man And therefore neither the examples of those who are pretended to haue misliked it nor the supposed omitting of it vnto some that were dealt with for heresie doe not nor can serue to prooue any vnlawfulnesse or vngodlinesse to be in such oath as we defend So that we may conclude that our former reasons vsed to prooue the lawfulnesse of it by Gods word doe rest yet vnshaken notwithstanding any obiections hitherto made to the contrary CHAP. XIII Foure seuerall opinions of the Innouators against the parties taking of oath in criminall causes with answeres also vnto their reasons and obiections AGainst the ministring and taking of this oath by a mans owne selfe the Innouatours doe also holde sundrie opinions and doe make many other obiections and arguments meete to be viewed and briefly as may be answered It may not be looked for that I should touch them all because not many of them are come to mine handes neither if they were will leasure serue nor if it would serue were it worth the while they be so friuolous but especially because their conceits and opinions in this behalfe are so manifold so variable and intricated with such contradictions one against another and of the same man against himselfe as I doe assure you it is a worke of more labour to set downe certainely what they holde about this matter then to confute them But it is meete that errours should so be viz. diuided into many heads one of them hissing against another howsoeuer they be tied together by the tayles like Samsons foxes to set both Church Common wealth on fire So neere as I can collect them their opinions be of foure sortes The first is of those who being required to take such oath truely to answere the matters whereof they be brought into question the chiefe heads whereof are also made knowen first vnto them will answere neither yea nor nay either touching the trueth of the matters or what they resolue to doe but onely thus viz. if you haue matters against me that be manifest then proceede to prooue them by witnesses if they be hidden then tarie till the Lord come who will 1 1. Cor. 4. V. 5. lighten things that are hidden in darkenesse and make the Counsels of the hearts manifest And these commonly will call for an accuser And if it be tolde them that the common voyce a presentment or other iudiciall denunciation or the publike interest c. is their accuser that brings them into question then come they againe to the first poynt and bid their accusers and their witnesses to come and stand forth against them This dealing as it is most peremptorie and franticke of all the rest so it is most vnreasonable and dangerous for it tendeth to the taking away of all Iudiciall courses both criminall and Ciuill To what purpose should a man produce witnesses before the defendant hath answered directly what hee confesseth and what he denieth and would haue prooued Neither is this to deale sincerely iustly and vprightly as we woulde haue others to deale with vs. For we should speake the trueth one to another and not seeke to circumuent any by cautels and frustratorie shifts but least of all in matter of iudgement where by law and by the Magistrate that is lex loquens we are required and be in conscience also bound to procure that controuersies doubtfull may be composed with least adoe and trouble to the intent that which is right and trueth in euery cause expedient to be knowen may quickly be knowen and come to light Such froward answeres as this is doe rather put off the Iudge with contempt and disdaâ—…e then yeelde any good reason why such oath should be refused This pretended dilemma of theirs hath many media or meanes to make it easie to be dissolued First a crime may be so manifested that the supposed offender becomes thereby noted infamed and scandalous and therefore fit to be enquired of albeit happely the thing be done so couertly or of his owne nature be so hidden as it cannot be exactly prooued by witnesses For wicked and lewde persons make all prouision that may be that there may be no witnesses of their wickednesse And therefore it
happely he knoweth there can be no pregnant no nor any likely euidence brought against him whether in foro conscientiae without any sinne may such a man pleade not guiltie vnto the matter of inditement for the time place and other wordes of fourme and course are not trauersable on the other side if in this case hee pleade guiltie being so in deede whether is he thereby guiltie of his owne death or not But if for auoyding of sinne before God such one ought in conscience to plead guiltie rather then lyeÌ„ and yet shall not thereby be made guiltie of his owne death why shall y e declaring of the trueth touching other mens actioÌ„s make him y t reuealeth it being charged thereunto guiltie or coÌ„senting vnto their punishmeÌ„ts how vniust soeuer otherwise they might be surmised to be for if any mans faults may be spared a man might most lawfully spare himselfe quia Ordinaria charitas incipit à seipsa And to presse this reason à Paribus at least if not à fortiori a little further If such a man shoulde chuse rather to be pressed to death for standing wilfully mute and not answering directly vnto either should he not de iure poli euen in true termes of Diuinitie be accounted guiltie of his owne death to be in the sight of God a murderer of himselfe the very like therefore is to bee iudged of these persons viz. that their punishment as coÌ„uicted of the crime is most iust that their blood is vpon their owne heads that none are causes of y e punishment inflicted vpon them but themselues for standing obstinately mute without direct answering in fourme of lawe as they ought though it were admitted that such their actions whereof they bee interrogated were all good and they innocents And as the reuealing of other mens actions when we are duly charged maketh vs not guiltie or consenting to their punishment so our refusing to answere neither is any meanes in deed nor yet is so appointed of God to serue for their deliueraÌ„ce For God wil not allowe to haue innocents deliuered by our disobedience to his LieutenaÌ„ts on earth nor by concealemeÌ„t of any trueth expedient to be knowen according to law commanded to be declared And therefore y e place of the Prouerbes by theÌ„ brought fitteth not this purpose For if they for their obedience sake with a single heart without intent to hurt the innocent and being charged shall deliuer but the very plaine trueth how vniustly soeuer the magistrate may seeme to deale afterward yet shal not the discouerer of the trueth bee a partaker of the magistrates sinne For it is but he 1 Prouerb 24. ver 8. which imagineth to doe euil whome men shall call an authour of wickednesse as is recorded in the same Chapter The other place out of y e Acts is nothing like to y e matter case that we haue in hand For Paul was not there charged by autoritie to bewray any thing he knewe against Steuen much lesse to deale at all in that action But hee willingly as one forwarde of himselfe and of a malice against the very profession which he then detested did thrust himselfe into the cause and rather then he would not be some stickler in it he thought good to do some office of kindenes vnto the tormeÌ„ters executioners of that holy Martyr though it were but by keeping their clothes thereby he directly gaue approbation and consent vnto Steuens death Yea this their opinion is without any other like example in any text of Scripture except perhappes they will gather it from an obseruation and note pretended to be collected from the next Chapter following For I finde an opinion collected thence which iumpeth with theirs in this behalfe 1 Rhemish Testament in annotat cap. 23. Act. A. post ver 12. If thou bee put to an oathe saith that note to accuse Catholikes for seruing God as they ought to doe or to vtter any innocent man vnto Gods enemies and his thou oughtest first to refuse such vnlawfull oathes But if thou haue not constancie and courage so to doe yet knowe thou that such oathes binde not at all in conscience and lawe of God but may and must be broken vnder paine of damnation They will not confesse that they haue sucked this opinion from hence and they may not be endured to flappe vs out with T. C. their olde dogge tricke and to say they borrowed it not of the Papistes but obserued so much themselues by reading of the Bible For this were both to iustifie their owne and with-all this corrupt doctrine of the Iesuites as if they both so well agreeing together were arightly grounded vpon the worde of God But they bring seuerall places and examples whereby they thinke this is prooued The officers of the children of Israel that were appointed by Pharaohs taske-masters to looke that the people shoulde make as much Bricke by day and gather the strawe themselues as they did when strawe was found to their handes seeing that the people were not able to perfourme it and yet were beaten for not doing it did signifie the impossibilitie vnreasonablenes of this vnto the king But the king gaue them a resolute answere that they shoulde doe it vpbraiding them that it was but idlenesse which made them pretend that they would goe to offer sacrifice vnto their God Which thing was the ground of Moyses and Aarons suite vnto him that the people might haue leaue to goe into the wildernesse So when these officers comming with this hard answere from the king did meete with Moyses and Aaron they expostulated thus with them Ye 1 Exod. 5. vâ—… 21. haue made our sauour to stinke before Pharaoh and his seruants in that ye haue put a sword in their hands to slay vs meaning that their sute for going forth to sacrifice did so discontent y e king that he would in that respect oppresse them euen vnto death But what is this to purpose doth this phrase of putting a sword into another mans hand so please these men that they will imagine by what occasion soeuer a wicked man pickes quarell to oppresse Gods children that such a thing whereupon the occasion is taken of necessitie is vnlawfull to be done from the best actions of godly men tyrants will oftentimes take occasion to persecute the whole Church shall therefore all exercises of religion be intermitted Euen in this place the message that Moyses and Aaron brought to Pharaoh which occasioned such oppression to the children of Israel was put in their mouthes by the Lord. And therefore they sinned not albeit this was like to haue turned to be as a sword to destroy vp all the children of Israel but rather these officers did offend that thus did mutine and grudge against those who fulfilled Gods coÌ„mandement and did but as they ought to do Euen so shall they offend likewise that shall be displeased with such as doe