writ to the shirifs of London signifiyng that no Clerke though he forfeit his recognizance of statute merchant shal be attached or imprisoned by his body except there bee some cause why hee should not enioy the priuiledge of a Clerke Besides it is no new or strange thing to haue some forme of a writ which is set down in the Register to be vpon better aduise disallowed For I haue credibly heard that it was not long since adiudged that in an action for trespasse done in a warren of Conies a mā might not plead that they were cuniculi sui albeit the Register in that behalfe 1 Reg. fol 102. tit de transgressione frameth the writ so And in the selfe same title whence this forme of prohibition is taken a clause in a prohibition was 2 Reg. fol. 37. reiected by the court For it is said in the margēt Curia noluit concedere istam clausulam in prohibitione but if it were law assured the Iudges would not haue reiected it Fitzherbert who in his booke 3 No. na br fol. 37. G. of Nature of writs was the first that sucked this conceit thence in the selfe same booke touching this rule set downe in the Register viz. notandum est quòd quando rex praesentat vt in iure coronae tunc incurrit ei tempus saieth thus now this rule is not holden for lawe But it will bee said that Fitzherbert himselfe and sundry that follow him since doe hold this point we speake of for lawe This no doubt carieth a great presumption with it that worthily for the worth of the learning iudgements of such men Yet I wil shew that his saying from whom they all since do take it is none vndoubted rule of lawe therefore theirs neither that do gather from him I protest before God I wil not seeke after obiections against his booke but take only such two in stead of mo which I had in my mind because they do touch ecclesiasticall matters He saieth that 1 Fitzh ibid. fol. 269. D. at the Common law an heretike ere he can be condemned must be conuicted of heresie before the Archbishop the whole Clergie of the prouince after abiured thereupon after that of fresh conuicted condemned by the clergie of that prouince this must be in their general councel of conuocation holdeth there that at the Common law a bishop in his dioecesse might not condemne an heretike vntill 2. H. 4. 2 2. H. 4. cap. 15. did giue him authoritie that then he might not be committed to the secular power to be burnt vntil he had once abiured was againe relapsed into that or some other heresie But neither of these points be law so I haue heard the two chiefe Iustices the L. chief Baron some other Iudges the Queens learned councel resolue in a speciall consultation holden about the matter of heresie For albeit the Conuocation may in deed condemn an heretike yet euery B. at the Common law before any statute might at this day may also in his own dioecesse so condemn as the preamble of that very statute makes manifest so by thē all was it then holden for lawe notwithstanding Fitzh opinion there which was fully by thē considered of And albeit it may seeme needlesse yet for further strengthening of these reuerend mens opinions there is a 3 10. H. 7. fol. 17. booke in the very point For it is said that for heresie or any point against the faith the BB. had none other power to bring thē in but to make processe against them by citations vntill the Statute of Heresie 2. H. 4. ergo afore that statute they had power to proceed against heretikes in Ordinarie course of the lawe ecclesiasticall Which assertion the very Note-gatherer also maketh in his title of the lawes of England yet to another purpose howsoeuer in the maine point y t we now treat of he sticke fast to Fitzherbert Likewise 4 Fitzh no. na br fol. 30. F. he saith it appeareth that before the statute made pro clero in the 18. of king Edw. 3. cap. 7. the right of tithes were determinable in the Temporall court of the king and that the lawe was altered at that time herein by that statute Whereas in very trueth there appeareth no such matter other then a grieuance offered in this behalfe to the libertie of the Church which then was determined that it should afterward cease I know that Gooddall writing of the liberties of the Clergie by the lawes of the Realme concurreth in this point with Fitzherbert for thus he writeth It seemeth that before the Statute the right of tithes were determinable in the Temporall courte but that statute hath altered the law So that it may be coniectured the one of them borowed it of the other But this whole doubt whether causes of tithes before that statute of Edw. 3. were determinable in an ecclesiasticall court or no is resolued by a Treatise nipping in trueth wholie at the Clergie and lawes ecclesiasticall and so indifferent an Vmpier as that the Note-gatherer alleageth him for his purposes therefore in this case not to be refused by them who produce him for their witnesse For that 1 Of the power of the Clergie and lawes of the realme cap. 15. Treatise writeth thus viz. Long after that the kings courts of his Bench commō Pleas also all inferior courts were put out of iurisdiction for tithes yet neuerthelesse Writs of Scire facias were commonly sued in the Chancerie for tithes and the defendants were thereupon put to answere wherefore at the petition of the clergie and in consideration of a disme that the clergie grāted to the king it was enacted 18. E. 3. ca. vlt. that such Writs of Scire facias thenceforth should not be granted for tithes And a litle afore 2 Ibidem thus viz. That suites for tithes shal be taken in the Spirituall court is only groūded vpon a fauour that the kings of this realme the whole realme haue in times past borne to the clergie And 3 Ibidem againe in this sort We thinke that the kings courts be put out of iurisdictiō for tithes by a custome of the realme not by the immediate power of the lawe of God Therfore by this mans opinion it is the common law or custome of the land and not that statute which made tithes of conisance ecclesiasticall And in very trueth that tithes were demandable in a court ecclesiastical before this may appeare by statutes afore that time by reports after testifying that the conusance of right of tithes at the Common law is incident to iurisdiction ecclesiastical as in the peculiar 4 Ca. 4 5 6. huius Partis treatise thereof is afore shewed Lastly to shut vp this first point a precedent of a prohibition of all other Writs that can be deuised may with least reason bee said
Treatiser putteth vs in minde of viz. that in K. H. 3. time there was a iust sentence of curse and anathematization denounced by the Bishops against the violaters orbreakers of the said great Charter But what if Bishops should vse the like authority now to excommunicate indefinitely and aforehand all such as shall hereafter breake some temporall law it is to be doubted that the Treatiser would not in this case be the same man nor yet affirme it to be a iust sentence but would rather threaten them with a Praemunire for their kindnesse It is assured that par in parem non habet imperium and none authority can so binde it selfe by any law but that vpon good occasion and by like power it may be abrogated againe Yet how litle this plea of ours is needfull in this case is sufficiently shewed Yea rather the defenders of these such like opinions against the rights and liberties of the Church of England notoriously knowen so to be by the reported lawes customes thereof to them that know any thing in either had need more iustly to feare that censure of the Bishops if it be so iust if so be they cary any feare at all or reuerence vnto the censures of the Church which be so iustly inflicted as themselues do yeeld As these opinions do onely reach and shoot at the commission ecclesiasticall to impound and streine the authority thereof vnto so narrow a roome as that her Maiestie should thereby haue no seruice done by those her subiects which are imployed therein wherby the fansies of the fauorites of these men might more freely growe without discouery or any such penal◅ie as they thinke they need care for so for the iust defence herein of that commission I may allege the words of the same statute whereby it is established 1 1. Eliz. cap. 1. viz. They shall haue full power and authoritie by vertue of this act and of the said letters patents vnder your highnesse your heires or successors to exercise vse and execute all the premisses according to the tenour and effect of the said letters patents any matter or cause to the contrary in any wise notwithstanding By which words tenor literarum is signified whatsoeuer tenent in se viz. that which is expresly conteined in them by the effect of them is vnderstood whatsoeuer is within the true and vnforced meaning of any such letters patents So that if attachment fine imprisonment c. be either in the letters patents expresly conteined as in trueth they be or vndoubtedly meant by them then the vse and excercise of these shall thereby sufficiently be warranted and authorized vnto her Maiesty for granting and to the commissioners for so executing And if any doubt otherwise might be made yet there be two clauses in the words aforesaid that be called verba siue clausulae operatinae and do therefore supply many defects and wants in the exercise of a iurisdiction delegated by the Princes rescript The first of them are those words Full power authoritie and the other is the generall non obstante in transcendenti viz. of any matter or cause whatsoeuer But to all this is answered by some that these words viz. according to the tenour and effect of the said letters patents do worke thus much that her Maiestie need not grant all but so much iurisdiction as her Highnesse thinketh meet and that so many or few of them so they be two atleast may thereby be authorized vnder her Maiestie to exercise such iurisdiction It is true that those words so worke and import so much but doeth it heereof follow that nothing else is meant or can be comprehended thereby Nothing say they for other processe then citation or other censures or punishment then excommunication c. her Maiestie can not commit vnto them else might she also giue them authoritie to hang men What is there no more difference with these men betwixt attaching fining or imprisoning and plaine hanging What will they then say of the Starre Chamber which may impose all those three and yet cannot put any man to losse of limme or of life and this is great reason For we are taught by the Ciuill lawe and I thinke it is agreeable also to the lawes of the land that wheresoeuer an authoritie is giuen in neuer so generall or pregnant wordes it cannot be drawen foorth to reach vnto any mutilation of limme or paines capitall except they be plainely expressed Other some as the Treatisour doeth answere this obiection in this sort but yet to the ende of prouing othes of the parties in causes criminall to be vnlawfull a matter to be handled in the thirde part viz. that how general soeuer the words of the acte be in one place yet are they to be restrained to this particular viz. none other then such iurisdiction ecclesiasticall as may be lawfully vsed and entending per petitionem principij that such oathes be contrary to law But in this his interpretation he saith he contrarieth diuerse great learned men in that lawe whom it behoueth with a more narrowe eye to beholde this statute lawe Truely halfe an eye of a meane learned man will serue to discouer that he cautelously leaueth out one member of the disiunctiue alternation which is in that statute For it is thus viz. all Iurisdictions c. whatsoeuer by any Spirituall or Ecclesiasticall power or authoritie hath heretofore bene or may lawfully be exercised c. So that if either it haue bene exercised at any time or hauing not bene put in exercise yet lawfully may be it is here graunted to her Maiestie And were it in deede meete either in temporall or spiritual Iurisdictiō to leaue it to the dispute determinatiō of euery priuate subiect that is dealt with what may be lawfully and what may not so be done in either lawe The Treatisour nor any other cannot in answere hereof say that the worde lawfully must also be vnderstood as repeated in the first member First because it is a disiunctiue proposition and therefore that word should haue bin expressed in the first part if it had bin to be drawen vnto both and not to haue bin put in the second part onely Secondly for that it would then take away from her Maiestie all such ecclesiasticall authoritie being most lawfully in her Highnesse as was heretofore exercised by or vnder the Pope by vsurpation and therefore most vnlawfully Neuerthelesse the matters graunted and exercised by the commission which are by him chalenged I trust God willing shall be also otherwise prooued lawfull and warrantable Against imprisoning by vertue of the commission one of the speciall matters nowe in handling the said Treatisour obiecteth that such parties as refuse to sweare to answere the articles exhibited against them are imprisoned without baile or maineprise whereas by the lawe ecclesiasticall they ought not to be imprisoned but to be proceeded against as pro confessis It is true that by Ordinary authoritie
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
7. 2. 3. Ed. 6. cap. 13. statutes for tithes do now stint this strife and makes both cases to be Ecclesiasticall Vpon 5 14. H. 4. 17. corne carried away whereupon it comes to be tried betwixt two Parsons of Churches who hath right to the tithes this triall belongeth to the spirituall Court and is not vpon action of trespasse to be brought to the Common law And so it was adiudged albeit that the defendant there said that his Parsonage was then in lease But if they 6 39. Ed. 3. 23. 5. H. 5. 10. had ioyned issue whether the place whence the sheaues were taken were in the one Parish or the other then it should haue bene tried at the Common law because 7 Brooke tit Iurisdict the bounds of a Parish shall be tried by the Countrey as is there said Yet in a litle Treatise 8 An answere to a letter cap. 1. printed by Tho. Godfrey circa 26. H. 8. printed by Thomas Godfrey in K. Henrie the eights time it is testified that it hath bene holden in times past c. that the diuision and distinction of parish from parish is a thing so meere spirituall that no man may doe it but the Clergie which asseueration though he disallow if the Clergie claime it by any immediate power giuen them from God yet saith he of these and of diuers other things it is no doubt but they haue holden plea in times past rather by a custome and by a sufferance of princes then for that they be meere spirituall or that they of the Clergie had authoritie so to do by any immediate power of the law of God So that he alloweth diuision and distinction of parishes to haue bene of olde of ecclesiasticall conusance though to be deriued from the kings prerogotiue royall And it 1 Prou. constit aeternae sanctio de poenis ibi Lindwood verb. limitibus paro chiarum appeareth by a constitution prouinciall made in a Synode at Lambhith holden vnder Boniface then Archbishop of Canterburie in the yeere of Christ 1260 that the Clergie then vndoubtedly held and so practiced touching limites parochiarum that they meerely belonged to the court ecclesiasticall And Lindwood comming 200 yeeres or thereabout after him in his Commentaries or Glosses therupon maketh no doubt of it but onely quoteth Canon law for it If a Parson grant to 2 M. 8. Edw. 4. fol. 13. me by deed all the tithes of his benefice and yet afterward he sueth me in a Court Christian for the tithes of mine owne landes whereupon I bring mine action of couenant in the Temporall Court neuerthelesse I shall not haue a prohibition because I may plead that matter in barre in the Ecolesiasticall court Danbie and Chok But if a rent reserued vpon a lease of tithes or offerings be 3 44. Ed. 3. 32. sued for in a Spirituall court there lieth a prohibition for this is a Lay rent and so Bracton 4 Lib. 5. ca. 16. holdeth in the place before alleged agreeable to the statute of Articuli Cleri It is holden 5 Regist. fol. 38. that if a Patron hauing an Indenture to be quit of certeine tithes be sued in a Court Christian for those tithes hee shall haue a prohibition But aske whether this precedent of the Register notwithstanding hee may not haue a consultation by the opinion of Danbie and Chok afore recited and the rather in this case then in the former by how much it is more to be presumed to be a Symoniacall compact against him that is Patron For if it be not Symoniacall he may plead this couenant in barre in a Court ecclesiasticall as well as in the former case The competencie of the Court for suite of tithes dependeth also much vpon the consideration of the parties that contend for them For 6 38. Edw. 3. 6. 31. H. 6. 11. 7 in an action of trespasse brought at the Common law the defendant said that the corne whereof the plaintife complaineth was growing in D. which is parcell of M. where he is Parson and thereby he claimeth And because in the pleadings they were both named Parsons the opinion of the Court was that it was out of their iurisdiction In another 7 Hill 7. H. 4. fol. 35. per quosdam libros 102. per alios action of trespasse brought against a Lay man that claimed by lease from another Parson notwithstanding that by M. 44. Ed. 3. it was alleged that the Kings Bench in such case shall haue iurisdiction because it is betweene a Lay man and a Parson and that by Articuli Cleri by the contract transcunt decimae in catalla yet because it was of tithes which they might reconer in Court Christian Gascoigne held that the Temporall court ought to be out of iurisdiction for said he though it had bin so done afore yet it shall not be done so by vs here And of the same opinion was Moile in another like action of trespasse that 1 6. Ed. 4. 3. betweene a Parson and a Fermer of another Parson action for tithes lies in a Spirituall court because the Fermer claimes the tithes as due to himselfe during his terme which none gainsaid But vpon the former of these two last cases Brooke 2 Brooke tit Iurisdict 82. doth thus collect that it thereby appeareth cleerely that vpon contention for tithes betweene a Parson a Lay seruant of another Parson the Spirituall court shall haue iurisdiction For saith he the seruant doth claime to the vse of his Maister and not to his owne vse vpon any Lay contract Yet how this collection may stand together with other iudgements else-where reported to be giuen may mooue some doubt For in 3 31. H. 6. 11. 1. H. 6. 5. an action of trespasse brought by a Parson against the seruant of another Parson the seruant iustified for tithes of his Maister and thereupon demanded iudgement whether that Court would holde plea thereof and it was not allowed because the said defendant was a Lay man Likewise 4 6. Edw. 4. 3. it an action of trespasse brought by a Vicar for corne taken by the seruant of another Parson that claimed them as tithes of his Master and the plaintife claimed them as tithes due to his Vicarage it was adiudged by three that the Court temporall had iurisdiction because the plaintife had none action against the seruant in a Court spirituall at least as is there affirmed Markham seemeth to be of opinion that if any 5 38. H. 6. 19. part of right of tithes do come in debate betweene two Patrons that there the court Ecclesiasticall can not holde plea. And if 6 25. H. 8. vt refert Brooke tit Iurisdict nu 95. the Lord of a Mannour claime tithes of certeine landes in D. to finde a Chapleine or Curate in D. therewith and the Parishioners there claime those tithes likewise for the selfe same end It was deliuered for law that
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
layde downe in the printed Register especially by these wordes of them Recognitiones sacramenta provoluntate sua ipsis inuitis For full answere whereof to auoyde vnnecessarie length and vaine repetition I must referre the Reader ouer vnto the xj and xij Chapters in the first parte of this Apologie He affirmeth also that the practisers of such oathes are for that cause in a Pramunire and therefore gathereth the oathe to be contrary and repugnant to the common lawe I graunt the consequence to be good and sound but how doth hee prooue them to be thereupon in a Praemunire For proofe of this he assumeth that this manner of oathe is contrary to the Queenes regalitie and crowne as if his reasons afore brought had sufficiently euinced so much which wee doe vtterly and resolutely deny vnto him And yet as if he had fully cleared that point he addresseth himselfe to prooue that whereof there was lesse controuersie viz. that what is done by a Bishop or by an Ecclesiasticall Court against the Kings regalitie and crowne hath beene heretofore adiudged to be within the compasse of this worde Alibi contained in the Statute of Praemuuire 16. Ric. 2. For this he alledgeth two books of the common law yet 1 5. Ed. 4. sol 6. Praemunire the first of them doth but speake of an excommunication by a Bishop not of euery dealing whatsoeuer in a matter belonging to the Kings regalitie And what if it had beene twise so adiudged both of them in such corrupt times when as the royall prerogatiue of the Kings of this land to be Supreme Gouernours in all Iurisdiction Ecclesiasticall due to them in right and by Gods Lawe was not de facto vnited to the crowne For the Bishops then did not claime their Iurisdictions Ecclesiasticall next and immediately vnder God from the Crowne as now they doe But seeing this parte of Regall power is nowe no lesse truely and fully vested in the crowne then is the Temporall so as the Lawes allowed for the gouernement Ecclesiasticall are termed by sundry Parliaments The Queenes Ecclesiastical lawes and Lawes of the Realme as well as those which were first and originally made heere And the Bishops are proued to haue their authoritie and Iurisdiction Ecclesiasticall deriued downe vnto them from the Queenes Highnes vnder the great Seale of England as vpon fundrie incident occasions hath beene shewed afore Is it then the like reason still to comprise their Iurisdictions and Courts vnder that word of Alibi as if their Courts and Iurisdictions were not nowe the Queenes nor yet belonging vnto her Regalitie Nay let such as shall so affirme beware they incurre not hereby the danger of implied if not direct denyall of a part of her Highnesse Royall stile and the breach also of their oathes taken for assistance and defence of all Prerogatiues c. vnited or belonging to this Imperiall crowne Yea and though this might be truely verified of ordinarie Courts Ecclesiasticall yet is there no colour at all so to affirme of the Commission Ecclesiasticall exercised vnder the great Seale of England by force of the same Statute that restores the Supremacie Ecclesiasticall to the Crowne I omit here what is touched else where viz. howe by sundry learned it hath bene thought that by Alibi there was encluded or meant nothing els but matters of that quality there specified which were enterprised by and vnder the Papall authoritie though the Pope perhaps resided not then at Rome it selfe Therefore seeing this is not pregnant ynough for him to driue this matter neerer home to his purpose hee sayeth it is against the Kings Regalitie and so a Praemunire for an Ecclesiasticall Court to holde plea of a matter appertaining to the Iudgement of a Common Lawe Court or to deale in any cause not belonging to Ecclesiasticall Iurisdiction The first of these he prooueth by the pardon sued by Barlow Bishop of Bathe and Welles in king Ed. 6. his time by reason hee had depriued the Deane there being a meere donatiue of the Kings If there were but any probable doubt whether thereby hee were fallen into a Praemunire it was wisedome for him to procure a pardon afore hand if he could Alealitis resincertissima yet depriuing of one placed by the King is much more then bare holding of some plea that appertaineth to a temporall Court besides that there was a further matter in it then I last here to open The other allegation of his to like ende taken from a 1 38. Ed. 3. of Prouisours Statute doth make no shew of proofe thereof for it is but thus viz. the King chiefly desireth to susteine his people in tranquilitie and peace and to gouerne according to the Lawes Usages and Franchises of his land as hee is bound by his oathe made at his coronation And are not Ecclesiasticall persons nowe parte of the Queenes people Are not the Liberties and Franchises that bee giuen and confirmed vnto them by the goodnesse of Princes for holding plea in certaine matters the vsages of this Realme Are not the receiued Lawes which lawfully they may practise termed Ecclesiasticall Lawes of this Realme no lesse then temporall be And is not the Prerogatiue royall in and for causes Ecclesiasticall as high and as rightfully setled in the Prince and incident to her Highnesse Crowne and Regalitie as the same is for temporall power and authoritie What cause is there then seeing seu Alibi in the Statute signifieth in true construction anie place whatsoeuer besides Rome that euery holding plea by an Ecclesiasticall Court of a matter wherein it ought not to holde shoulde at this time bee reckoned a thing contrarie to the Queeenes Regalitie more then dealing in an Ecclesiasticall cause shoulde bee in anie temporall Court at Westminster For no Statute of Prouision or Praemunire assigneth these for causes which haue indeede but growen since by collections whiles the Popes vsurpation was continued in this land against which oftentimes the remedie by Prohibition coulde not serue the turne I graunt it is a contempt or great misprision in any but for this a Prohibition and attachment thereupon c. as afore those Statutes they did might sufficiently serue the turne Neuerthelesse all these matters are wholly impertinent to his purpose till he shall haue prooued the particular issue viz. that such oathe as wee treate of is against the Queenes Regalitie c. But if that might be prooued then vpon so generall interpretation of Alibi these oathes would fall into the case of Praemunire by what Court soeuer whether temporall or Ecclesiasticall they should be tendered And that which he vowcheth to the same effect out of Saint Germans booke of Doctor Student receiueth the like answere In the next place I set some of the Treatisors reasons that are made by collection and discourse of reason These collections he maketh partly from examples past and partly at large therefore touching the first of these two he impugneth these oathes and would prooue
but not so in the other Considering that in all things being not the same there is diuersitie and yet a reason of comparison is concludent if there be no difference in the point for which it is brought If then the whole substance of that Treatise shall bee founde vpon discussing to labour of some of those three infirmities so that as himselfe affirmeth in the winding vp of all he might truely say hee hath vsed but fewe proofes I could therefore haue wished that hee had not shewed himselfe as Suffenus sibiipsi by setting the Garland vpon his owne head before the victorie where hee telleth vs that albeit his proofes by him brought be fewe yet saith he they are effectuall And thus much for the matter of that Treatise Now let vs here also consider the maner of penning and the briefe of the rest of his vnnecessarie wordes which are wholly besides the matter For the enditing surely I doe esteeme it for my part to be a very commendable easie and flowing if not ouerflowing stile Yet if I may be pardoned to speake freely that which I thinke truely it runneth altogether vpon an haughtie comptrolling contemptuous disdainefull and salte minerall veyne as may appeare by a taste of some particulars not vnfitte to bee opened which for order sake I will contriue into these fiue seuerall heades viz. 1. Of his discourteous and opprobrious termes vsed against sundrye particular persons and callings 2. His couert reproching and wounding of all Ecclesiasticall Iudges through the sides of Papists for their raging against Subiects and treacherie to their Soueraignes in former times 3. His reuiling the proceedings Ecclesiasticall which he there impugneth 4. His vntrue imputations and slander of these proceedings And lastly the pretended impieties supposed thereby to be committed with the dangers and penalties that hee chargeth all such to haue incurred which haue bene dealers in such practise of Ecclesiasticall Iurisdiction For the first of these as where hee termeth all that practise that part of Ecclesiasticall Iurisdiction whether Ordinaries or Commissioners by the names of Inquisitors rough and rigorous exactors and offensiue butchers Chargeth them to cloake and shadowe foule matters vnder glorious and painted glosses beautifull shewes and fained pretenses that of their Iudiciall Courtes and Consistories this saying of the Poet is verified viz. Victa iacet pietas tergo caede madentes Vltima coelestûm terras Astraea reliquit As if they had there murdered or vnlawfully put some to death Where hee also saith that Ordinaries challenge or assume to themselues the goodly name and title of Spirituall men that they are men to whome the sauour of gaine is sweete and therefore sayeth of them Auro loquente tacendum est Those Doctors also which by commandement do as afore seeke to iustifie the course that he oppugneth he calleth thorowe contempt English Doctours a terme vsually sastened but vpon such as beare the name of learned and yet besides English their mother tongue perhappes vnderstand none other language at all yet the meanest of such Doctors can tell that a Publican differeth from a Collectour and that regula Iuris signifieth not an example or precedent at both which he stumbleth He pleasantly also like a Sennor Soldado sorteth nine of them by rankes into more then two quaternions as the souldiers which kept S. Peter were sorted as if through their basenesse a quaternion of them were not woorthie to be laid in ballance with a messe of such as himselfe is or as though in a braue resolution of his owne single valour he valued them by dozzens together and durst encounter them all at once like as the single Spaniard doth with so many naked and contemptible Barbarians He termeth them also in scorne Learned Canonists as if he would insinuate that the litle skill they haue were in the Canon lawe onely which he nameth the Popes Testament and as if their degrees of schooles were taken in that profession Whereas it is well knowen that their profession and degree is in the Ciuill lawes a lawe being for the equitie and wisedome thereof by the space of sundrie quaternions of hundreths of yeeres the common lawe of all the Ciuill nations of the world saue one What he esteemeth of it greatly skilleth not but Tullie a man more wise then he doeth giue it exceeding great commendations And all the Christian worlde sauing ourselues are not destitute of reason for well esteeming and practising of it For the course of those Doctours education it hath beene in the liberall sciences in the languages called learned and perhaps in such of the vulgar also as be of any commendable note and in other sortes of good learning Wherein if they haue accordingly profited their employment happely may bee many wayes thereby as behoofefull to the seruice of their Countrey as that which some call learning is beneficiall and gainefull to themselues Likewise the poore Apparitors that serue in Ecclesiasticall Courtes he calleth them their hunting Spaniels malepert Apparitours Messengers and Pursuiuants men though in meane place and but ministeriall qualitie yet as necessary to be had in those Courtes as Errand-bailifs be for Temporall To come to the second may it be denied that the matters wherewith he reprocheth the Popish prelates of former times are bent per obliquum through their sides to wound all the Reuerend fathers and others nowe liuing who for proceeding of Office against some of his darlings are fallen as deepely into his indignation For haue these sharpe biting termes bene bestowed vpon any of their late Predecessours or vpon them till of late yeeres that certaine disordered persons ioyning though in other respectes with the Papistes to oppugne this Church haue bene dealt with in the same course that Papists are and were from the beginning of her Maiesties reigne before these other sprung vp If this were not his meaning for what ende is almost halfe his Treatise spent by way of Inuectiue against the Popish Prelates So that no doubt hee meant to lay vpon the present Iudges Ecclesiasticall the reproches of them whose steppes hee chargeth them to followe in that this course of proceeding was if wee may trust him vpon his bare worde brought in by the practice of the Popish Cleargie And therefore hee sayeth that Bishops nowe practice Antichristian decrees and Popish Canons the very heades of that Hellish Cerberus of Rome and the synewes of his tyrannicall authoritie For else this were but running of riot and vaine barking against the Moone Of this sort are those his other speeches also viz. that the Papisticall Cleargie most irreligiously practised the same that they finding it a fitte instrument to mainteine their Romish Hierarchie and to tyrannize ouer the consciences of good men most impiously violating the lawes both of God man imposed this maner of corrupt oath vpon the people that they were far more cruell then Claudius or Caligula mad men greedie deuouring Wolues that they fed with delight their fierce and
with doe not stand against it and such for the most part are Institutions probate of Wils and committing of administrations visitations Certificats of Bishops into the Q. Courts ordeining of Reall compositions in matters ecclesiasticall c. But something must here be said touching certificats of Bishops because none so fit a place hereafter doth fal out for this matter A little Treatise set out in the time of King Henry the eight and printed by Berthelet cum priuilegio prouing that by the lawes of this Realme the B. of Rome had not ne ought euer to haue had any supremacie here doeth 1 Cap. 1. thus write of these certificates If saith he Excommunication Bastardy Bigamie Deposition or Deraignement of a religious person or Diuorce be certified by a Bishop of this Realme it is admitted in the Kings Courtes but the Popes certificate is not admitted And as certificates of Bishops be in these cases admitted at the common lawe so haue sundry statutes since authorised their Certificates duely made into the Queenes Courtes in certaine other cases Neuerthelesse I finde two cases in the said Treatise where the Certificate of a mans excommunication from a Bishop shall not disable the partie excommunicated from his action as regularly excommunication doth when it is duely certified For first 2 Ibidem ca 4. if a Bishop be a partie to a suite and doe excommunicate his aduersarie such excommunication though it be certified doeth not disable his aduersary in his action Secondly 3 Ibidem where an action of debt was brought by an executour and an excommunication vnder a Bishops seale was pleaded against such executour this was adiudged no good plea because the executour was not to recouer any thing to his owne vse and for this there is alledged 14. and 21. Hen. 6. But if this were the onely ground and reason of such iudgement then where this reason is not found true in facte as it may often happen if the goodes and chattels be great the debtes and legacies small and where the executour hath clausulam de residuis by the will viz. all the remnant of the goodes and chattels bequeathed to him it woulde seeme to me vnder correction that in such a different case the lawe also should be otherwise because much commeth to the executours owne vse in particular This certificate of excōmunication by Bishops of all the others is most in vse and would be of more vse to the great cōmoditie of her Maiestie especially vpon the statute de excom capiendo and to the terrour of sundry malefactors were it not for the chargeablenes of that course vnto Ordinaries whom the tenth man that is certified doeth not satisfie againe and for the manifolde abuses about the execution of that writte committed by vnder officers and were it not that iura libertates the lawes or rightes and liberties of holy Church graunted and confirmed by the great Charter are not so inuiolably in these dayes mainteined as was meant by 1 15. Ed. 3. ca. 3. those actes of Parliament which doe exacte othes for obseruation and defence of them It is a libertie peculiar to this Church of England aboue all the Realmes in Christendome that I reade of that if a man stande wilfully fourtie dayes together excommunicate and be accordingly 2 Nota interlin pag. Regist. 65. b. certified by the Bishop into the Chauncery that then he is to be committed to prison by vertue of a writ directed to the Sherife Notwithstanding that in one precedent in the Register of this writ it 3 Regist. in breu original pag. 68. a. is said quòd huiusmodi breue nostrum de gratia nostra procedat For a note in the same booke vpon the same worde vsed in another writte doth teache vs that such clause is but vsed pro honore regio etiamsiad id de iure teneatur And it appeareth by sundrie olde precedents of writtes there that the graunting of this writ is by lawe required as where in a writ de excommunicato capiendo 4 Reg. in br orig pag. 65. it is said quòd potestas regia sacrosanctae ecclesiae in suis querelis deesse non debet And in sundry other writtes of that kinde it is 5 Ibid. pag. 66. a. b. 68. a. 69. b. 65. b. affirmed to bee secundum consuetudinem Angliae which is the Common lawe of this Realme And therefore in other precedents of the same writte the King saith 6 Ibid. pag. 69. a. thus Nolumus quod libertas ecclesiastica per nos vel ministros nostros quoscumque aliqualiter violetur And againe 7 Ibidem Iura libertates ecclesiasticas illaesa volentes in omnibus obseruari In these Certificates the Bishops and others hauing in some cases authoritie to certifie as the Chauncellour of Oxford the Custos Spiritualitatis of a vacant See and the Bishops Officiall and vicar generall ipso in remotis agente that they make none errour must remember to obserue these three things First that it be 8 Noua nat breu pag. 64. f. expressed therein that the partie against whom they doe certifie is excommunicated maiori excommunicatione because for the lesser excommunication as happely for companying with an excommunicate person a man shal not be imprisoned Secondly that 9 Ibidem it be certified that he was by name and particularly so excommunicated and not in grosse in companie of a multitude as was often done in elder times or indefinitely and in generalitie as when the BB. excommunicated all whosoeuer should violate any part of the great charter For that excommunication saith Fitzherbert in that place must growe vpon a speciall suite against a man either ex officio or by a partie whereupon a Significauit may be grounded Thirdly 1 Reg. in bre orig pag 69. b. notainterlin pag. 65. b. if any inferiour officer vnder the Bishop or his Archdeacon did excommunicate the partie certified yet must the Bishops Certificate runne that it was done nostra autoritate ordinaria But that the expressing in the certificate of a particular cause of the excommunication is at the Common lawe of necessitie required I cannot gather out of any place of the Register or of Fitzherberts Natura Breuium It is true that when the proceeding is vpon any of the tenne crimes mentioned 2 5. Eliz. ca. 23. in the statute made for that purpose the particular originall cause must be expressed in the certificate Neuerthelesse when the proceeding is vpon any other crime ef ecclesiastical conisance orin matters testamentary matrimonial or for tithes c. whether moued of office or at the instance of the partie therethe Common lawe as it was afore is reteined Nowe I finde precedents of these writtes in the Register wherein no particular originall cause but onely generall be expressed which as in other certificates of Bishops as touching bastardy c. the Court beleeueth without further trauerse or examination namely
conceiuing thereof sundry tooke occasion to wrangle quarrell with that which was after enioyned vnto them as if it were not conteined within the words or meaning of their caution and therfore that clause that such should satisfie for their contempt for the iniury to the church was often vsed in the kings writs of that nature to auoid all cauill and for more full explanation In such caution two things besides are required the one that it be idonea sufficiens as appeareth by all the writs in this behalfe that be set downe in the Register the other that it be offered by the party who is to submit himselfe For it is 2 Ibid. pag. 66. b. 67. a. Nou. nat br pag. 63. c. said in one of those writs thus viz. Idem W. cautionem saltem pignoratitiam iuxta intentionem mandati nostri praedicti de satisfaciendo de huiusmodi contemptu iniuria antequam à prisona praedicta deliberetur offerre debet tenetur For a caution is not imposed by the Ordinarie but is accepted by him vpon the parties submission and offer therof when he seeketh to be absolued from the censure and deliuered out of prison But what may be reckoned to be idonea sufficiens cautio I finde not determined or colligible out of the bookes of Common law One kinde thereof which is pignoratitia a caution reall or by gage is mentioned in the next allegation afore And in that it is there said the party should put in cautionem saltem pignoratitiam we are thereby giuen to vnderstand that the courts of Common law doe take knowledge of some other kindes of cautions besides this and accounteth of this as being not of the most grieuous sort of cautions vnto the partie The word Cautio is a terme taken out of the Ciuill law for which at the Common law they 3 Nou. nat br pag. 63. c. vse securitie or obligation c. therefore what be the seuerall kindes of cautions must be taken out of that learning Cautions in Ciuill law be of three sorts one is Fideiussoria as when a man bindeth himselfe with sureties to performe somewhat another is Pignoratitia or realis Cautio as when a man gageth his plate or morgageth his land for performance the last is luratoria cautio as when the party which is to performe any thing taketh a corporall oath to do it By the Ciuill law a Iudge is not bound to accept of this last vnlesse the partie will also sweare that he is not able to put in either of the other And therefore where Ordinaries doe promiscuously at absolutions accept this Iuratorie caution offered de parendo iuri stando mandatis ecelesiae in forma iuris they doe more then they simply need to doe and rather gratifie then doe any grieuance to the partie as some haue thought For seeing this hath bin the most vsuall nay for a long time almost the only caution giuen at absolutions that they may lawfully still accept it is made manifest by statute viz. sauing and reseruing to allarchbishops and bishops and all others hauing authoritie to certifie any person excommunicated like authoritie to accept and receiue the submission and satisfaction of the said person so excommunicated in maner and forme heretofore vsed and him to absolue and release c. 5. Eliz. cap. 23. yet is not any of them so simple but he will thinke either of the other two if they be offered to be better security then the parties bare oath a matter so little regarded of most men in these latter times of this bad world For satius est incumbere rei quà m personae Reall securitie is more safe then personall Now when such caution is offered as the Ordinarie doth accept of for the parties performance of that which shall be enioyned vnto him shall he needs be forced to send for a writ of deliuerance vnto the Chancery No verely For the bishop himselfe if he will may enioyne the shiriffe to deliuer him Accedas saith 1 Reg. in br orig pag. 66. a. nou nat br pag. 63. c. d. the writ vnto the shiriffe in propria persona ad episcopum ex parte nostra moneas efficaciter indicas vt accepta cautione praedicta ipsum mandet deliberari à prisona And againe a writ to a bishop runneth thus Mandamus quòd accepta cautione praedicta ipsum deliberari mandetis alioquin quòd nostri est in hac parte exequemur And therefore Fitzherbert 2 Nou. nat br pag. 63. g. sayeth plainelie that the bishop or hee at whose certificate the partie was taken may command the shiriffe to deliuer him out of prison But what if the Ordinarie shall refuse to admit of the caution offered and thereupon to release him albeit the caution be good and sufficient shall the partie remaine still in prison Nay the writte de cautione admittenda is prouided for remedie in such a case This not deliuerance after sufficient caution offered may happen either vpon negligence delay in the bishops vnder-officers or vpon his owne wilfulnesse Vpon such vnder-officers delay as when the bishop willeth them to absolue the party excommunicated in which case 1 Reg. in br orig pag. 65. b. Nou. nat breu pag. 63. f. the shiriffe is not to make deliuerance till it appeare vnto him that the party is indeed absolued Neither is 2 Ibidem such officiall or archdeacon bound to certifie the shiriffe that they haue receiued letters from the bishop to absolue him but the shiriffe ought to go or sen to them to know the truth and accordingly to make deliuerance If it happen vpon the bishops owne wilfulnesse in such case I finde two degrees obserued in proceeding for first 3 Reg. pag. 66. a. Nou. nat breu pag. 63. d. there goeth a writte to the bishop himselfe that he admit of the caution and also that he command the partie imprisoned to be deliuered or else the king will doe that which apperteineth to him in like case to be done But if this will not serue the turne then secondly may the party haue a 4 Reg. in br orig pag. 66. a. Nou. nat breu pag. 63. d. writ directed to the shiriffe that in his owne person he repaire to the bishop and on the Queenes behalfe monish him and effectually require him that taking first such caution he command the prisoners deliuerance and that if he shall refuse in the shiriffes presence to doe it then the shiriffe himselfe taking 5 Reg. pag. 67. a. such sufficient caution of him doe deliuer him And if the shiriffe also shall appeare to be negligent or wilfull the 6 Reg. 66. a. partie may haue the like writte to the Coroners But they must likewise first before they deliuer him take sufficient caution of him viz. de parendo mandatis ecclesiae in forma iuris de satisfaciendo tam de contemptu quà m de iniuria ecclesiae illata
may belong to a temporall Iudge at least touching the corporall penaltie but not concerning the censures of the Church that ought to bee laied vpon such 7 15. 6. Ed. 6. cap. 4. Concerning fighting quarelling and brawling in Church or Churchyard the Ordinarie in some degree is to punish it by suspension ab ingressu ecclesiae in a laie man and from ministration in his office in a Clerke and in another degree in either sorte Laie or Ecclesiasticall by denouncing the partie offending to bee excommunicate ipso facto by vertue of that Statute Dilapidations likewise waste made vpō a liuing Ecclesiasticall are determinable 8 13. Eliz. ca. 10. punishable by Ordinaries For the Statute made in her Maiesties time for remedy in Dilapidations prouideth that as afore by the lawes Ecclesiasticall iust actions and remedies might bee had against executors and administrators of deceased incumbents so they should by vertue thereof bee vsed against alienees and donees of the goods of such incumbents The Treatise of the Clergies liberties saieth that for 1 Liberties of the Clergie by the lawes of the Realme Dilapidation the parson may sue in courte Ecclesiasticall the executors of his predecessor So at the 2 M. 2. H. 4. sol 9. Common lawe Tirwhit did hold that if an ecclesiasticall person make waste of his benefice he shal be deposed as a Dilapidator of his Church But deposition cannot be iustified but by authoritie ecclesiasticall Those crimes which I sayd were opposite to sobrietie in a mans owne selfe are also punishable by ecclesiasticall authoritie 3 Stat. Circumspectè agatis 13. Ed. 1. For the Clergie are not to be punished for holding plea in court Christian of such things as bee meerelie spirituall that is to wit of penance enioyned for deadlie sinne as fornication adulterie and such like In which words of such like I doubt not but other incontinencies as Incest Stuprum and Polygamie be also vnderstood being all more grieuous then fornication and two of them more execrable then adulterie And so doeth Lyndwood interprete the word huiusmodi such like that 4 Lyndw. V. huiusmodi c. Circumspectè de foro competenti is to say saieth hee Incest whoredome and others which be contained vnder the sinne of Lecherie And to these are to bee added other crimes which also are to bee handled and punished in a court ecclesiasticall as namelie Sacrilege Usurie Heresie Simonie and Periurie to 5 c. Ecce 23. q. 4. which an old Canon also addeth such offenders as be Inspectatores nugarum and consulters of Starre-gazers Phanaticall persons Wisardes Fortune-tellers Drunkards and Idolaters And to make it more plaine that all vnlawfull companie of man and woman not being capitall by the lawes of the Realme is subiect to the Iurisdiction ecclesiasticall the 6 5. Eliz. ca. 23. generall worde of Incontinencie which comprehendeth all is vsed in the statute De excommunicato capiendo In the 7 Reg. sol 45. a. 57. b. Register there bee two precedents of Consultations granted in causes of Fornication agaynst which in both the Iudge also proceeded of office And the treatise of Clergie liberties saieth 1 Gooddall of Clergie Liberties Though a bishop may not visite the Kings free Chappell yet he may cite and punish the Chaplaine thereof for keeping a concubine Heare also what another olde Treatise written by a common Lawyer in those times 2 An answere to a letter cap. 1. Printed by Tho. Godfrey tempore H. 8. saieth in this behalfe viz. the Clergie ought to haue correction as of crimes meere spirituall of auoutrie fornication Simonie and Vsurie and to order matrimonie tithes oblations and periurie in some case and of diuers other things whereof it is no doubt but they haue holden plea in times past rather by a custome and by sufferance of princes then for that they be meere spirituall or that they had authoritie by the immediate power of God So that they bee by him yeelded of long time to haue bene of ecclesiasticall conisance CHAP. X. That the matters and crimes here reckoned bee also of ecclesiasticall Iurisdiction and proofes that any subiect laie or other may be cited in any cause ecclesiasticall THere doe yet remaine sundrie points which in the second Chapter of this part I haue set out as being of ecclesiasticall conisance hitherto not spoken vnto purposelie First then for ordaining of reall compositions being a matter of voluntarie iurisdiction and disanulling of them if they haue bene made contrarie to lawe and right which is for the most part of Iurisdiction contentious we haue in the Register some testimonie For 3 Reg. fol. 51. b. whereas an Ordinarie had made an ordination or reall composition for certaine Chaplains to serue from time to time in a Church which were not found by those that ought the bishop hereupon ex officio proceeded to interdict the Church and vnto other Canonicall paines And though thereupon a Prohibition was brought yet was it reuersed vpon debating by consultation and the bishops proceeding allowed for lawfull Touching 4 Reg. fol. 50. a. disanulling of a reall composition vnduely made in a Consultation there is thus conteined Significamus quod in negotio adnullationis Ordinationis pro Pensione tanquam iniquae non rationabiliter factae non de laico feodo in curia Christianitatis agitur procedere vlteriùs facere poteritis c. prohibitione nostra nonobstante Next follow the censures ecclesiasticall whereby Ordinaries punish or vrge execution of their sentences or decrees First suspension ab ingressu ecclesiae is 1 5. 6. Edw. 6. cap. 4. shewed to be an ecclesiasticall censure by a statute of king Edward the sixt forbidding brauling in Church or Church-yard The other suspension indistinctly taken whether ab officio tantùm or ab officio beneficio is mentioned for a censure ecclesiasticall by 2 1. Eliz. cap. 2. a statute 1. El. and by her 3 Iniunctiones in fine Highnesse Iniunctions Interdiction of a Church is also prooued so to be by the first allegation out of the Register in this chapter That Sequestration is another censure ecclesiasticall and the conisance of the violation thereof of that iurisdiction is prooued cleerely by a consultation in the Register For there a certeine Parishioner 4 Regi fol. 44. b. had cut downe Syluam caeduam not paying but deteining the tithe from the Parson Hereupon the bishop of Elie his Officiall did sequester the said wood cut downe The Parishioner did breake and violate the sequestration therefore the Officiall proceeded with him in causa violationis sequestri the defendant purchased a prohibition Neuerthelesse vpon discussing of the matter a consultation was granted in these wordes Licitè procedere poteritis quatenus de 5 Concordat Clem. vnica de sequest possess quoad violat interdicti Clem. grauis de sententia excomm violatione sequestri syluae caeduae excisae ratione
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
graunt and great seale set to it yet bearing date truely were expelled by colour of letters Patents bearing the elder date In the body of the Acte is conteined this particle Such which is of restraint viz. That the King willing to put out such slye deuises or imaginations did ordeine by Parliament that letters Patents should be dated the day of their deliuery into the Chauncery or else be voyde Now if this Statute were to be vnderstood of all letters Patents whatsoeuer where is the reason of that Lawe found in a Commission but ratio est animalegis cessante ratione cessat Lex Therefore this Statute can be stretched to none other letters Patents but Such as the mischiefe mentioned in the Preamble may happen into Yea if it were otherwise to be vnderstoode he must ere any will beleeue him bring more euident matter then this viz It is thought and It may bee thought Let him then goe seeke the Records in the Chauncery and see whether the date and the day of the deliuery of it doe not agree and so may hee haue more colour to wrest the statute when he doth not misreport the matter in facte as herein hee hath done CHAP. XV. That an Ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie IN the next opinion I minde to be very short it is this that by none ecclesiasticall authoritie a man may be depriued of his benefice which is his freeholde being not endited and no suite of partie offered against him Whereby we see he requireth both an enditement and a suite of some partie It seemeth his meaning is that a Minister cannot be depriued but by way of enditement at the Common law and that the Iudge of Office may not preferre such enditement but it must needs be at the sute of a partie I can not well coniecture whereupon he pretendeth to ground this opinion If vpon the 29 chapter of Magna Charta it is shewed in the chapter next precedent not to be vnderstood of Ecclesiasticall iurisdiction or of the practice thereof And moreouer that chapter in Magna Charta requireth no suite of partie to preferre the enditement so that it may be done by the Iudges of Office well enough But this conceit is very strange that Bishops shall not haue authoritie to depriue an Ecclesiasticall person from his benefice It is shewed in the chapter afore that by vsuall and allowed course of pleading to a Quare impedit the Ordinarie doeth claime as of common right institutionem destitutionem Clericorum in benefices within his iurisdiction And the olde rule was Cuius estinstituere eius est destituere But perhaps it will be said he meant that a Bishop might doe it but not of Office that is without a partie albeit he put a Copulatiue in stead of a Disiunctiue But if his meaning be such he meaneth more then is true And further what priuilege or benefite is this to the partie conuented to be prosecuted by a partie and therefore perhaps of malice and by subornation of proofs rather then by the ordinarie proceeding of office and duetie for whose sinceritie we may more probably presume and intend Moreouer what if one that hath a benefice will come vnto the Bishop and there stoutly defend Atheisme Apostasie or denying of Christ or any other heresie grosse blasphemy or idolatry may he not till some accuser be found or a partie to prosecute depriue such a person from his benefice ex Officio What if the beneficed person will confesse before the Ordinarie that he was neuer called to the Ministerie but hath vsurped it by colour of forged testimonials of Orders or that he hath committed Simonie Incest Adulterie or hath two wiues liuing at once or 1 13. Eliz. ca. 12. that he neuer subscribed nor read the Articles of religion or being once conuicted do againe defend some errour against such Articles may not the Bishop ex officio in all or in any of these cases depriue or declare his benefice void except some other will come and make himselfe a partie But that he may do it appeareth 2 1. Eliz. cap. 2. by the statute 1. of her Maiestie for there it is said he may enquire which is alwayes ex officio as shall be more plainly shewed in the second part and may punish by Depriuation c. as in like cases hath bene vsed by the Queenes ecclesiasticall lawes CHAP. XVI That after fortie dayes an excommunicate person may be otherwise punished then vpon the writ De excommunicato capiendo And that the said writ may and ought to be awarded vpon contempts rising on other originall causes ecclesiasticall then any of those ten crimes mentioned in the statute 5. Eliz. cap. 23. THe last opinions to be handled in this part be these viz. that an excommunicate person standing so aboue fortie dayes may in none other sort be punished then vpon the writ De excommunicato capiendo The other is that the said writ De excommunicato capiendo ought not at all to be awarded vpon contempts rising from any other originall causes then vpon some of the tenne crimes that be mentioned in the statute 5. Eliz. cap. 23. The first is easily impugned for he may be punished twentie pounds by moneth for absence from diuine prayer neither shall his excommunication excuse him for it is in his owne default Besides it is a great contempt in an ecclesiasticall cause and therefore punishable by the Ecclesiasticall commission vpon the expresse wordes vsed in that Act which doeth establish that Commission And this standeth with reason where there are great numbers of such wilfull persons or slacke execution by Vnder-shirifs and Bailifs of that writ as often falleth out besides the great charges in suing of it out For I dare auow that in sundrie dioecesses in the Realme the whole yeerely reuenues of the Bishops there would not reach to the iusticing of all such contemners being of the baser sort of persons by the course of this writ They might happely to the great charge of the shire keepe many of them in prison long enough yet they should neuer procure the fees backe againe that first whether for rich or poore must be defrayed for want of ability in the persons so excommunicated Lastly the law ecclesiasticall very reasonably grauely prouideth in this behalfe that if a 1 c. excommunicamus §. qui autem ex de haeretic man stand excommunicate aboue an whole yere he may be proceeded with for suspicion of heresy because the law presumeth that such a mā hath smal feeling of religion but rather contemneth it and nourisheth some damnable opinion against God and his Church And therefore such an excommunicate person may be punished by reason thereof otherwise then by that writ All the colour of reason that I find alleged against this course by the Treatiser is thus that on our behalfe it will be said this is a shorter way then the other
likewise that none shall bring them into the Realme or being perhaps brought in by another shall receiue them or being neither brought in by them nor yet receiued froÌ„ others but comming some way to their knowledge shall not make any notification or any other execution of them where neither within the realme nor without c. vpon paines there at large conteined Of those generall heads whereunto I said afore that all questions of Praemunire might be referred there be some that being expressed in these statutes are I thinke without all doubt to be within the compasse thereof as by the first of these two to draw any of the Queenes liegeance out of the realme in a plea whereof the conisance pertaineth or iudgements be giuen in the kings Court And that which is sayd of a Plea in the kings court is also drawen by some opinion vnto a court Ecclesiasticall for 1 9. Ed. 4. fol. 3. Yeluerton in the Kings bench held opinion oftentimes that if a Clerke doe sue another in the Court of Rome for a spiritnall matter whereof he may haue remedie within the realme that he is in case of Praemunire quia trahit in placitum extra regnum And 2 Fitzh Noua nat br fol. 44. lit H. Fitzh holdeth that for collation of a Prebend sued out of the realme a prohibition doeth lie Secondlie it is an vndoubted Praemunire by that statute to sue in another court to defeate or impeach the iudgements giuen in the kings court In these wordes of another court there seemeth to be an opposition and seuerance of such a court from the Kings court the rather because both the Preamble and the body of the statute do mention drawing men out of the realme in Plea Whereof at that time there was no colour for any man to be drawen any whither but onely to the court of the bishop of Rome whether he resided there at Auignon in France where the Popes about that time did lie 70. yeeres together at Bononie or elsewheresoeuer Therefore for the true vnderstanding of those words enquire If any of this realme of late yeeres whiles the parliament of Paris was established by the authoritie of the French king vpoÌ„ colour that the Queenes maiâ—…stie is in very right Queene of France should haue brought processe thence against another subiect to appeare there whether this had not been a Praemunire by that statute likewise If any of the Q. Courts not authorised therunto by law vpon writ of errour should defeate a iudgement giuen in any other of the Queenes courts enquire whether this be within the meaning of those words notwithstanding the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and distinction whereby such another court seemeth to be seuered and made a distinct thing from all the Queenes court Thirdly it is an vndoubted Praemunire according to the later of the foresaid two statutes to purchase or pursue or to procure so to be done in the court of Rome or else-where any such translations c. or any other things which touch the King be against him his Crowne and Regaltie or his Realme as is there aforesaid or c. as is there further conteined Fitzherbert reporteth 1 Fitzh tit Praemunire nu 5. that the opinion of the court was Paschae II. H. 7. that Alibi in the said statute was vnderstood of Bishops courts so that if a man sue there for a thing that belongeth to the Common law he shall be in the Praemunire Therefore 2 Brooke titulo Praemu nu 21. was it holden by some that a benefice Donatiue by the Patron is a meere lay thing and the Bishop shall not visit it and therefore shall not depriue from it and if he meddle in this case it is a Praemunire and sayth that Barlow bishop of Bathe for depriuing the Deane that had it as a Donatiue by the Kings Letters patents was driuen to sue a pardon Fineux chiefe 3 15. H. 7. fol. 9. Iustice saith a spirituall man may execute temporall iurisdiction as the Bishop of Durham doth in his countie Palantine viz. as he hath iura regalia but not as a Bishop and saith he the Bishop shall punish his Clerks by Praemunire for suing in Spirituall courts for a cause temporall But whether that Bishop hath this authoritie seeing Praemunire is brought in by statute there is a Quaere inde made as of a matter doubtfull It is holden that a Prohibition doth 4 24. H. 8. titulo Praemu num 16. often lie where a Praemunire doth not as of tithes of great trees c. for the nature of the action doth belong to the Spirituall court albeit not that very cause in that forme but when it is of a lay matter or of a thing that neuer did belong vnto the Court spirituall herein as is said there lieth a Praemunire But these notwithstanding sundry doubts are made in this behalfe because at this day all iurisdiction Ecclesiasticall is now truely acknowledged and is in deed as it was alwayes in law in the Souereigne prince and from her prerogatiue royall deriued downe to others no lesse then the Admirall court is or the court of the Constable of England in times past was when it was vsed albeit they vsed their peculiar seales and names to the processes there sped And I haue heard very credibly that some reuerend and great learned Iudges whiles they liued were of opinion that for an Ecclesiasticall Iudge to deale in a matter apperteining in very truth to a Temporall court yet for some neerenesse and cohereÌ„ce by him probably supposed to be an ecclesiasticall cause could not at this day be a Praemunire but subiect onely to a Prohibition and punishable as a contempt as it was at the Common law vpon an attachment after Prohibition Which opinion if it be sound then the Treatiser is farre wide from the truth where he saith that for men to deale in any cause not belonging to their iurisdiction is Praemunire This were very hard and rigorous if euerie mistaking or going beyond their commission by Iustices of Peace by any Iudges ecclesiasticall or temporall should be no lesse then Praemunire I haue heard it deliuered by great Lawyers that so to do doth but make the Actvoid as being coram non Iudice and inferreth no such grieuous penaltie For it is alleged that Alibi in the statute was put in to enclude processes deriued from the Popes authoritie albeit he kept his abode any where els then at Rome In which respect it is affirmed in a 1 25. H. 8. ca. 21. statute that the said statute of Prouision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the kings crowne and dignitie royall And it seemeth to some that Alibi can not now signifie Bishops and their Courts which are called the Queenes Ecclesiasticall courts and Iudges and the Canons by law established the Queenes Ecclesiasticall lawes Insomuch as the power giuen by statute to her
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
contagious plague vnto it Lastly Accusation may not be vsed for gaine and lucres sake For such Accusers especially are odious to all men Another heathen writer could say thus heereof 1 Quintil. siue Tacitus de claris Orator The vse of this gainefull and bloudie eloquence is sprung vp of late times by corrupt custome and was deuised as one Aper was woont to say but instead of a iaueline or dart to thrust men thorow with In locum teli repertus So that if men could keepe themselues strictly within these former boundes then prosecution by Accusation would neither be so perilous to the Accuser nor yet so hurtfull vnto others but that it might still haue a tollerable and profitable vse in Christian Common weales And then that which Tullie writeth might haue place where hee sayth that 2 Pro S. Roscio Amer. it is profitable to haue many Accusers in a Common weale yet so as that men be not abused by such Accusations And thus much for prosecution of crimes by a partie CHAP. V. Of the seuerall acceptions of this word Officium the signification of Inquisitio Quaestio Crimina ordinaria extraordinaria Cognitio ordinaria or perpetua extraordinaria the reason why Enquirie by Office came in place of Accusation of Enquirie generall and speciall Enquirie speciall ex officio nobili siue mero mixto promoto and the priuileges of proceeding ex mero officio aboue the other NOw because the aforesaid Cautions be so hard to obserue and for that Accusation is so odious and of so perillous consequence albeit these foure points were kept in case either the Magistrate or people among whome wee liue should not so construe our doings as perhaps we doe sincerely meane them therefore where there be so many difficulties incident to Accusation lest crimes and offences should remaine wholly vndiscouered and so vnpunished to the great detriment of the whole body of the Common weale and Church It was very necessarily prouided in most places of the world to haue the Iudges office by Enquirie to supply this want and scarsitie of Accusers and parties which is the other generall meane afore spoken of whereby offences may be brought into question examination The Office or duetie of the Iudge is the cause efficient of this prosecution and Enquirie is the peculiar effect and act which in Criminall matters that cause produceth or the course whereby the Office doth proceed and is that kinde of prosecution which is counterdiuided against Accusation and prosecution by a partie The word Officium in the Ciuill law from whence it is taken hath diuers acceptions It signifieth either priuate dueties and thinges of conueniencie to be regarded and practiced in the common life and societie of man with man or els some more publike function And in this latter signification we reade of it to be taken two wayes By the first for a ministeriall function vnto some Court hauing iurisdiction And by the second for the power authoritie or iurisdiction it selfe of the Court I doe obserue three seuerall ministeriall functions termed in the Ciuill lawes by this name Officium The first are those persons that were publikely appointed to present crimes vnto the Magistrates as in these words 1 L. ea quidem C. de accus inscrip Quae per officium praesidibus nunciantur The second denoteth vnto vs an Apparatour as in these words 2 L. 1. C. de Ap. parit Procoss lib. 12. Officio quod tuis meritis obsecundat non Curialem quenquam nec excaeteris corporibus volumus aggregari c. The third an Actuarie that entred the acts of the Court as in these lawes 3 L. 11. C. de Numerarijs Actuarijs li. 12. Officio tuae magnitudinis datis precibus postulant c. And againe 4 L. 1. C. de offic Comitis sacri patrimonij Officium Hellesponti adijt rogauit c. In both which lawes by the word Officium an Actuarie is vnderstood But Officium signifying the authoritie and iurisdiction of the Iudge is that power whereby he may deale of himselfe without the petition or instance of a partie And this Office is exercised either in actions Ciuill or in Criminall In actions Ciuill 5 L. 56. ff locati l. 51. §. fin ff de act empti sometimes the Iudge doth of Office decree a thing which he findeth to be equall besides the action and besides the bond whereupon the action riseth and 6 L. Si longiùs §. 1 ff de iudic l. cum siliusfam ff de reb creditis l. 7. C. de iudic alibi passim sometimes also vpon a point in equitie hee relieueth by his Office such as the strict law giueth none action vnto Calistratus reduceth all causes Ciuill wherein a Iudge hath conusance extraordinarie vnto these two generall heads Per cognitionem 1 L. 5. ff de extraord cognit viz. extraordinariam siue officio Iudicis factam aut de honoribus siue muneribus gerendis agitatur aut de re pecuniaria disceptatur A Iudge exerciseth his authoritie extraordinarie in causes Ciuill either when hee taketh knowledge of bearing offices and functions or of causes pecuniarie But in causes Criminall hee practiseth this authoritie of Office aut cum 2 Callistratus ibid. de existimatione alicuius cognoscitur aut cùm de capitali crimine quaeritur when hee sitteth to take knowledge whether a mans honour or reputation ought to be atteinted or when he enquires and makes inquisition of some crime capitall viz. whereby a mans libertie countrey or life may bee endamaged This Office Ouid touched 3 Ouid. lib. 1. de Tristib in these wordes Iudicis Officium est vt res ita tempora rerum Quaerere The effect of the Iudges Office and the course which hee thereupon doth followe is called Enquirie Inquirere saith Bartolus est 4 Bartol in l. transigere nu 13. C. de transaction quasi intus quaerere diligentiùs abdita indagare secreta detegere in iudicium deducere It is to search into a matter deepely and carefully that is kept close to bring it to triall of iudgement which it deserueth This Enquirie in the old common wealth of Rome was more commonly called 5 l. 1. § item illud ff de S. C. Syllan Quaestio Which word hath two significations in that lawe The one more generall signifying any enquirie The other that enquirie and examination which was vsed vpon bond slaues and men of the meaner sort by torture Quaestionem sic accipimus sayeth the Ciuill lawe to this purpose non tormenta tantùm sed omnem inquisitionem defensionem or as another reading hath it detectionem mortis Where we see that the worde Inquisitio is also vsed Of this worde Quaestio such as dealt by it were called Quaesitores and so doth 6 Virgil. 6. Aeneid Virgil call Minos a Iudge quaesitorem Out of which by abbreuiation came the
the Imposers of them to be in a Praemunire for incroching vpon the Kings rights and prerogatiues and for conuenting subiects by forrein made Lawes and for practising Antichristian Decrees and Popish Canons which hee sayeth appeareth by the Praemunire brought by Hunne against a person suing the said Hunne for his yoong deceased infants bearing-cloth by the name of a Mortuarie in an Ecclesiasticall Court howe doth this inferre that it is Praemunire either to encroch vpon the Kings rights prerogatiues though this peraduenture by some circumstances may amounte sometimes to no lesse or to conuent subiects by foreine made lawes It may not be thought that euery intrusion deteiner or concealement which is incroching vpon the Kings right or rauishment of his wardes which hee ought to haue by his Prerogatiue Royall is straightway and necessarilie a Praemunire neither were the Kings Temporall Courtes in this case encroched vpon because they could not giue remedie for deteining a Mortuary if this were so in trueth to be accounted neither yet is there so much as any mention made of foreine lawes which the Ecclesiasticall Court then proceeded by or practised This course of the Treatisour is rather to prophesie then to reason thus to tell vs afore hand vpon the very bringing of the action of Praemunire by Hunne what the iudgement was in that matter yea and vpon what ground the iudgement was giuen in a cause which neuer receiued iudgement for any thing I can learne To this point he also mentioneth the Praemunire wherein blind Nixe sometimes Bishop of Norwich was condemned and addeth to the aforesaid two points that by that also appeareth Iudges Ecclesiasticall are in Praemunire whensoeuer they exceede their Iudiciall authority But if euery exceeding of authoritie were a Praemunire then what Iudge is there of any court of either sort so skilfull or alwayes so aduised but might iustly feare that at one time or other he shall not escape this rigorous doom of Praemunire In trueth this example prooueth all his three points iust alike that is none of them at all I doe verily beleeue the Treatisour neuer sawe that Record if he haue either he makes verie bolde with his Reader or else with the Arte of reasoning thus to collect I haue perused the Record 1 H. 25 H. 8. Rot. 42. Suffolk it selfe it containeth a suite of Praemunire brought against the saide Bishop by the Kings Attourny generall on the Friday after the Pâ—…rification pleading the Statute of 16. Ric. 2 and adding that al Indictments Presentments and Impetitions in any court of the Kings 2 B. Nixe his condemnation in a Praemunite or in any Court of a subiects which is in any sort deriued or diduced from the Kings crowne duely taken or found are to be tried iudged in that Court where they were found or in some of the Kings Courts and not in any Ecclesiasticall Court and that whereas there was an old custome in the Towne of Thetford that whosoeuer should trouble any of the Kings or Duke of Lancasters tenants commorant in that Towne and shoulde call them by citation into an Ecclesiasticall Court out of the Deanery of the saide Towne shoulde thereby forfeit and he also that should execute such processe should also forfeit 6 shillings 8. pence which custom by a Iurie of twelue men being accordingly presented before the Maior the said B. cited the Maior two others to appeare personally before him in his Mannor and Chappell at Hoxne or Hoxstone in Suffolke The Maior and the one of the other two appearing and hauing nothing obiected but that presentment made were by the B. enioyned vpon paine of excommunication at the next court of the Kings to be holden in Thetford to call the same Iurours together and therepublikely to adnull and reuoke the said presentment as being against Gods Lawe so that saith the Record the B. did in an Ecclesiasticall Court iudge of the presentment being duely made in the Kings court and enioyned the reuoking and disanulling of it against the King his regalitie crowne c. wherevpon immediately the Bishop appeared and desired libertie of imparlance till monday next after and had it graunted vpon good mainprise c. On the prefixed monday the B. appeared againe and said he could not deny but that he was culpable in all the premisses put himselfe thereupon into the Kings hands c. so had iudgement to be from thenceforth out of the Kings protection and al his lands and tenements goods chattels to be forfeited to the King and that he should remaine in the custody of the Marshall quousque c. but presently vpon special grace of of the Court he was let to baile in a far lesse summe then afore for his appearance in Easter terme next after At what time hee appeared by his Atturney and both he and his pledges were discharged by vertue of an Act of Parliament made the same yeere Whereby wee may see that encroching vpon the Kings rights c. is not heere specially assigned for any cause of such iudgement and much lesse is the practising of any Canons or forreine made Lawes for they are not once mentioned and least of all that euery exceeding of their authoritie by any Court shoulde be a Praemunire For the originall and onely cause hereof was the B. enioyning of the Maior and of another townesman of Thetford vpon paine of censures to adnull and make voyde a presentment first duly made in a temporall Court of the Kings It is also to be noted out of the generall Atturneys bill in this Record where it is saide that presentments c. found or made in the Kings or in a subiects Court which is in any sort deriued from the Kings crowne must be tried there or in some of the Kings Courts and not in an ecclesiasticall Court that at this time Courts ecclesiasticall were not holden to be deriued any way from the Kings Crowne as no we they are and so bee acknowledged and indeede by conferring the times I finde that this fault of the Bishop was done in Nouember 24. H. 8. hee was attainted in Hilarie terme 25. H. 8. which is a yeere and more after and it was in a Parliament time that was continued till 30. Martij next aster Now the supremeheadship ouer the English Church was not yeelded vnto the King vntill the Parliament by prorogation holden the third of Nouember then next following viz. 26. H. 8. That which the Treatisour collecteth by Cardinall Wolseys Praemunire and the whole Cleargies also for assenting to and assisting the Court Legatiue which the saide Wolsey had erected hee himselfe doth sufficiently confute for albeit hee doe affirme that Wolsey was in a Praemunire for preiudicing but ecclesiasticall Courtes and not the Kings and thence gathereth thus How much more those which practise Antichristian Lawes and Popish Canons repugnant to the royall Matestie and policie of this laend yet doeth hee by implication contrary his owne
that euery one in authoritie that requireth an answere of a guiltie person being vnder his power in a matter of crime must needes either driue him to a lie which 1 Sapient 1. slayeth the soule or else to accuse himselfe of a matter dishonest as these men speake and gainesay When Peter and Iohn 2 Act. 4. V. 7. 8 were examined in the great Councell vpon this Interrogatorie By what power or in what name they had doone that miracle Peter full of the holy Ghost answered plainely and truely though happely it might haue beene capitall vnto him Then what are they full of who being required by authoritie to answer vnto matters of no such danger vnto them doe neuerthelesse refuse to answere directly or who will not answere at all for vpon a mans owne confession Iudiciall though he be not sworne he may aswell be conuicted as if hee had answered vpon his oathe In the proceeding 3 Act. 6. vers 11. against Saint Stephen there were in trueth none Accusers but those who by subornation denounced him to the Priestes and who are twise 4 Ibid. V. 13. ca. 7. vers 58. called witnesses because they deposed against him yet when the high Priest asked him 5 Act. ca. 7. vers 1. c. thus Are these things so Stephen refused not to make answere and that truly howbeit they made his Apologie to be capitall vnto him Likewise when the 6 Act. 21. vers 38. 39. Captaine asked of Saint Paul whether hee were not that Aegyptian which had made a sedition c. Paul answered directly and slatly denied it Likewise the same Saint Paul 7 Act. c. 24 25. 26. in all his other seuerall conuentings before authoritie mentioned in the Acts euen at the suite accusation of a partie refused not particularly truly to answer to all that was obiected by confessing some denying other some of the crimes by his aduersaries and accusers imputed to him But if hee had learned the readie way that is nowe deuised not onely to answere accusers obiections but the Magistrates owne questions hee might haue wiped them off quickely without such long Apologies and haue willed them onely to prooue what they sayde yet neither expressely affirming nor denying any thing No doubt though the Apostle or any of those other godly men mentioned had beene guiltie of anie thing yet being duely asked they would not haue stood mute nor haue answered doubtfully neither would they haue affirmed more without it then they would haue doone vpon their oaths if the course of the proceeding had admitted it and that their oathes had bene required It is therefore well 1 Chromatius in 5. Matth. facit can 36. concil Tolet. quart saide by an ancient and learned Writer thus Dominus inter iuramentum loquelam nostram nullam vult esse differentiam God makes no difference betwixt our speech whether it be without oath or vpon our oath And 2 Thom. 2. secundae qu. 69. art 1. Aquinas saith if he which is brought into question and interrogated by the Iudge without his oathe shall answere vntruely that therein he sinneth deadly The olde Christians in the Primitiue Church were as farre off from these shifts of answering vnto most dangerous Interrogatories demanded of them euen by heathen Magistrates as they were from all vntrue answeres thereunto which point I minde to make apparant out of such of the Ancient Fathers especiallie as bee auowched by the Note-gatherer for condemnation of these examinations and of exacting men to confesse their owne crimes so that heereby it may bee the better iudged howe sclenderlie their Writinges by him quoted doe serue this turne Tertullian herein is very plentifull especially in his Booke called Apologeticon yet is hee quoted by the Note-gatherer for a condemner of examining and interrogating men touching their owne crimes of which sort y e very profession of Christianitie was then accounted to be A Christian 3 Tertull. in Apolog cap 1. sayth he if he be endited or denounced to the Magistrate he reioyceth in it if he be accused he propoundeth no defence when he is interrogated he most willingly confesseth and when he is condemned he giueth them or God thanks By his complaint in the same place for that Christians were not dealt with as other offenders were he both sheweth what then was practised in Criminall proceedings by the lawes Ciuill and also his owne good lyking thereof At the Chrstians handes 1 Tertul. ibidem saith he that onely is expected which suffiseth to stirre vp the peoples hatred against them that is an onely confession of the name of a Christian not an examination of his crime whereas if you hold conisance against any offendour as a mansleaer sacrilegious incestuous person or publique enemie to the state these being vsuall praises giuen vnto vs Christians you doe not pronounce sentence vpon the bare confession of the name of the crime but you enquire also of the qualitie of the facte the number place manner time priuies and partners But concerning vs you obserue no such matter which you ought no lesse to doe then with those others And againe 2 Ibid. Apolog. cap. 7. We are still said to be murderers of infants and incestuous persons yet you haue no care to finde that out which of so long time hath bene said of vs. Therefore either get it out of vs if ye beleeue it or else refuse to beleeue it because you cannot finde it to be so Then 3 Ibidem followeth this You commaund Christians by a farre stranger kinde of torture viz. not that they should declare what they doe commit but that they should deny themselues to be the men which in deed they are Which vrging of Christians to declare what they had committed that Tertullian doeth not disallow if the Magistrates would haue taken that course with them appeareth also by 4 Tertull. Apo log cap. 3. another place Whatsoeuer we are charged saith he to haue committed secretly though by others the same be committed openly yet we will answere it point by point or euery iote yea euen that for which we are reputed as pestilent persons as vaine and as men worthie to be scorned and condemned by others Saint Augustine also in his verie booke alledged by the Notegatherer doeth plainely establish and allowe of Othes taken concerning a mans owne offenses being in deede such also in their owne nature If perhappes saith he 5 August serm 28. de verbis Apostol cap. 6. thine oathe be vrged meaning a Decisorie oathe be exacted of thee by a priuate person say not I will not sweare for it commeth of euill which thou doest but yet of his euil that doeth exact it of thee Insomuch as thou hast none other meanes but thine oathe to purge and cleare thy selfe of the matter in handling But it may perhappes be said that the oathe here meant may be aswel in a cause
Interrogatories be vsed and where they are not written there is no possibilitie of knowing all particularly that shal be demaunded insomuch as one question necessarily riseth vpon the answeres that shall bee made to the former I reade a report of the Canon lawe where in an 1 15. E. 4. 〈◊〉 action of debt brought against the husband and his wife for the wiues debt before the couerture the woman without the husband could not be suffered to wage her lawe And is not this oath of the husbands part though lawfull as farre from that assured perswasion of the very trueth thereof and is there not as great want of the husbands certaine iudgement herein as when an oath is taken to answere articles in themselues finite and certaine though particularly not perused by him afore For nothing to the contrary can be heere I thinke alledged sauing that it may bee the husband himselfe had afore the wager of lawe payde the said debt of his wife There is a 2 2. H. 5. ca. 9. statute saith the Notegatherer which requireth a copie of the Libell put vp in a court Ecclesiasticall to be deliuered to the defendant and thereupon is there a writte framed and put in the Register pro copia libelli deliberanda It is very true which by him is alledged the reason was for that the defendants coulde not then procure prohibitions from temporall courtes without their viewe of the Libell which in that respect was sometime by Iudges Ecclesiasticall denied and the lawe as it seemeth was at that time so taken but if the lawe were not onely so taken but so practised still for my part I should hold it more agreeable to reason and that it would preuent many long delayes and other great inconueniences Neuerthelesse when one thing seemeth cautelously to bee in demaund by the Libell and another thing in trueth not incident to an Ecclesiasticall court is vnder hand shot at then and in such case only vpon apparant probabilities thereof shewed vnto the temporall Iudges it cannot be thought inconuenient for them to graunt a Prohibition yea though the Libell be not viewed afore by them nor cōteine expresly any matter belonging to a temporal court But seeing the statute speaketh but of a Libell it cannot be extended to all articles or Interrogatories whatsoeuer ministred in a Criminall cause especially where there is no likelyhood or colour but that the cause is meerely Ecclesiasticall or where it is handled by vertue of Commission vnder the great Seale of England grounded vpon the statute For if her Maiesties Supreme Royall auctoritie and power Ecclesiasticall granted by cōmission to others be as highly vested in her crowne as is her Temporall then will it bee probably gathered both of them being in their seuerall kindes supreme and the exercise of them cōmitted ouer to others vnder the great seale that the one of them is not to be abridged restrained or controlled by the other In 1 Gen. 21. V. 23. Scripture by the oath that Abimelech ministred to Abraham and which he tooke appeareth that thereby Abraham was to deale well with him or as the Hebrew word is not to deale falsly orlye vnto him nor vnto his children and that he should deale well both with him and the whole Countrey according to the mercie and kindnesse there shewed vnto him which poynts be of greater largenesse and generalitie then that all the particulars falling vnder that oath can possibly before-thought or called to mind at the very taking of it By Iacobs 2 Gen. 25. V. 33. requiring an oath of Esau for confirmation of the sale of his birthright a thing of greater generalitie yea consequence also then Esau could or did then consider may be gathered that an oath may be ministred though euery particular included therein be not specially rehearsed for this oath was approued and stood ratified The like generall league and couenant that was betwixt Abimelech and Abraham was also 3 Gen. 26. v. 29. 31. made sworne betwixt Isaac and the said Abimelech And albeit it be not directly set downe that the king exacted an oath of the Prophet Ieremy yet we 4 Ierem. 38. ver 14. 15. find a promise of the said Prophets then made after the kings charge was laid vpon him of answering truely what he should aske him yea without expressing any particular matters afore-hand what y e king would aske Yet may we not therefore charge the Prophet to haue done this without faith or foolishly vnaduisedly or without Iudgement And it is sure that a godly man ought to haue no lesse regard to performe what he promiseth to deale truely when by his Soueraigne Prince he is in like sort charged then if hee were to answere it vpon his Corporal oath So that we may conclude that it is not vnlawful or vngodly to take an oath that we wil performe some such matter whereof euery particular is not afore-hand or at the very time remembred vnto vs or then can bee called to minde or knowne by vs in distinct and speciall maner CHAP. XVI That after the partie hath answered vpon his oath it is neither vnusuall vnlawfull nor vngodly to seeke to conuince him by witnesses or other triall if he be supposed not to haue deliuered a plaine full trueth and somewhat also in approbation of Canonicall purgations with answere to the Treatisours obiections against them THeir next exception set out afore in this order to be spoken of which this sorte of men doe make vnto the maner of proceeding Ecclesiasticall being of a thing ensuing after the oath and examination is for that Iudges Ecclesiasticall doe not alwayes rest in that which is affirmed or denied vpon the parties oath but doe oft times proceede to a further enquirie by examination of witnesses vpon the poynts denied by the partie A man might iustly maruell what should mooue them thus to require all other men to thinke so well of their single oathes and especially in their owne cause as if they had some indignitie offered vnto them onely because their owne single oathes are not perfitly beleeued but that proofes by witnesses are after made to conuince them of that which is denied by them But for this they bring also some pretence as for the rest of their opinions out of the Scriptures It is said in the Epistle to 1 Heb. 6. v. 16. the Hebrewes that an oath for confirmation is amongst men an ende of all strife Whereupon they gather that whatsoeuer they shall deliuer vpon their oathes it ought to be finall peremptorie to conclude the cause of necessitie without any more adoe The vse of the oath which is in that place spoken of is especially and most properly appliable to two kindes of oathes The first is an oath Promissorie when for more assurance of the promise to bee kept the parties agree that it shall bee taken which thing is argued by the circumstance of the place as being
euen in thesi of his owne nature and in generall For the slender remnants of honest and vnhonest left euen to the very reprobate euer since the fall of our first parent doth remooue this action euen where it may be lawfully committed from the sight and knowledge of others so much as may be And in this 1 Ibid. V. 13. place it is hidden and secret exipsa hypothesi because the case is put that there neither bee witnes nor shee taken with the manner and yet the husband hath her in iealousie So that if God in his diuine wisedome found it equall and iust for satisfaction onely of the strange humour of iealousie not onelie vpon paine of conuiction to make her vndertake so perillous a kind of purgation but also to charge her by an oathe and a most solemne curse to declare the trueth in a crime of this quality and consequence to her life howe can the wisedome of those that chalenge oaths of farre more apparant mildenes in diuers points noted stand so opposite to the wisedome of an whole Realme for many ages together and being so strongly warranted by the wisedome of God both in this and the former Iudicialles seruing for the gouernance of his owne peculiar people In answere of this example out of Gods lawe the Treatisour saieth that the woman is not heere called for ex officio but vpon the complaint of her husband But if it be conuenient and equall vpon that most slender ground of iealousie and vpon the husbandes suspicious denunciation who perhappes is weary of his wife and mindeth to put her away if his iealous humor in that behalfe be not satisfied how much more then is it equall and iust vpon the Iudges office to be done who is no way priuatly interessed for the satisfaction or preseruation of the church or common weale to remoue a common scandall and offence by the parties clearing or by his punishment The consequence of this mine argument to be good for proofe of a farre greater equitie in the one then in the other viz. rather to minister such oathe of office then vpon an Accusers complaint the lawes both Ciuil and Canon and the customes of all nations abroade doe warrant vnto vs. all which doe permit an oathe touching a crime to be ministred vnto the defendant ex officio Iudicis and yet they all doe denie it vpon an accusation or vpon a complaint made by a voluntarie and priuate partie And therefore this difference by him taken is such as maketh flat against him without working of anie diuersitie to inferre an equitie in the one and an vniustice in the other as is pretended therefore vntruely and vainely doeth hee surmise that out of this example we wil conclude that euery Iudge Ecclesiasticall to satisfie his iealous suspition of any crime may appose by oathe and compell men to their purgation a matter repugnant vnto reason vnto lawe and vnto all practise For no man 's onlie bare suspition besides an husbands can by any equity worke an interest to driue an other to purgation of such a crime by his or her oathe The examples also of godly men reported in Scriptures doe sufficiently condemne the froward disobedience of refusers of such oathes in these dayes For they being asked sometimes particular questions dangerous to thēselues if they had not stood cleare and sometimes charged euen but in generalitie to answer what should be demanded of them they vsed not any such friuolous tergiuersations and euasions as this sorte of people and as Seminarie Priestes doe that is to say Let me knowe euery point afore that you will aske me and then I will tell you what I will doe or I will answere so far as I am bound by law and by a good conscience whereof by your leaue I my selfe will be Iudge or I will not sweare to accuse my selfe or my brother for that is contrarie to charitie or where be mine accusers let thē stand forth or if you haue any thing against me proue it by witnesses with such like a number For when the Prophet Ieremy 1 Ierem. 38. vers 14 15. was charged by the King in a generalitie to answere that which hee woulde aske him hee stoode not vpon refusall till hee might knowe what it was but made this doubt onely whether if hee tolde trueth the King woulde not kill him which when the King had promised hee woulde not then Ieremy condescended to answere what hee woulde demaunde of him signifying thereby to vs that being asked by a Magistrate if it were not a matter capitall vnto him hee ought and woulde discouer it If this were done vpon an oathe then must wee doe the like in the like case also If hee did yeelde to answere vnto Interrogatories vncertaine and vnknowen vnto him both in generalitie and also in particularitie and yet thought himselfe bounde to saie the trueth without oath then much the rather would hee haue done it vnto those whereof the qualitie he should haue knowen afore hand but especially vpon his oath And so ought wee being so deepely charged Yet these questions so generally to be propounded vnto him might haue beene of matters both criminall and very penall vnto himselfe and vnto others also When the same 2 Ierem. 37. vers 13. 14. Prophet was charged with a particular crime of intended defection and fleeing to the Chaldeans by Irijah a chiefe officer sitting Iudicially in the gate of Beniamin hee did not refuse directly to answere by putting him off to prooue it by witnesses or by anie such like dilatorie but answereth roundely and truely in the very contradictorie as it were ioyning issue with him and sayeth That is false I flee not to the Chaldeans Nowe if the Prophet had beene guiltie woulde hee haue falsely denied it or haue made anie shiftes to auoyde it thinke yee or woulde hee say vntruely being vnsworne more then being sworne I thinke no man will so imagine of the holie Prophet and therefore by this example a Magistrate in authoritie or a superiour must bee directly dealt with in questions pertinent that he shall aske whether vpon oathe or without oathe so farre as godlie Lawes doe require albeit the matter be criminall as it was in this case vnto the partie Interrogated When 3 2. Reg. ca. 5. Elisha the Prophet vpon none other detection but diuine reuelation entred to the examination of Gehazi his seruant touching a criminall matter and that without any accuser formall or representatiue besides himselfe did hee not require an answere of him and was not the seruant before God bound to answere him and that truely If heere it bee saide that he ministred none oathe vnto him it is true yet was it no more lawfull for Gehazi being his seruant and vnder his authoritie to deny it by falsehoode as hee did or to haue answered not directly or else nothing at all then it would haue bene for him to haue slatly forsworne it So