coÌ„uerteth a sinner from his erroneous way viz. being afore seduced from 3 Ibid. v. 19. the trueth he saues that soule from death and shall couer a multitude of sinnes This couering of sinnes is no merit of the conuerters as if his sinnes were thereby to be wiped a way in the sight of God as the Papistes haue dreamed but it is the hiding couering of the sinnes of him who is conuerted That this is the true sense of the place appeareth by the circumstance of Salomons wordes from whom y t phrase is borrowed hatred saith he 4 Prou. ca. 10. v. 12. stirreth vp strife but charitie couereth a multitude of sinnes euen so farre as with a good conscience may be done as Tremellius noteth If then vpon a seduced mans coÌ„uersion a multitude of his sinnes are kept hidden by him who conuerted him it wil followe that if he be not conuerted but still goe on in his error such his sinnes may yea and ought to be manifested abroad and discouered Therefore much more when in some degree they are before reuealed vnto the Magistrate that makes the Inquirie Nay a perswasion vnto Idolatrie which is a kinde of heresie also is a putting of it in practise we haue an expresse commandement of God voluntarily of our selues to reueale it how secretly or by how deare a friend soeuer it be committed or we by him intised vnto it If thy 1 Deut. 13. v. 6. 7. 8. brother the sonne of thy mother do secretly entise thee or if thine owne sonne or thy daughter or thy wife that lyeth in thy bosome or thy friend which is to thee as thine owne selfe saying let vs goe and worship other gods c. thou shalt not consent vnto him nor heare him neither shall thine eye pitie him nor shewe him mercie nor thou shalt not keepe him secret Where albeit we be commanded not to consent vnto such seduction yet is that other parte of the precept of not concealing him simple and absolute in it selfe and without any distinction whether the partie intised take holde of the perswasion or not For shall not the concealing be aswel a sinne to him that yeeldeth vnto the seduction as it is to him who resisteth it Saint Augustine sayeth let 2 Aug. ep 74. ad Deuterium vs then and not before trust an heretique who desireth to be receaued vpon his repentance when he shall be content to reueale vnto vs such other as he knoweth to bee of the same opinion Therefore to discouer their secret complices was by him holden to be no sinne nor yet performance of any bad office S. Chrysostome to the same effect 3 Chrysost. in psal 5. saith This is the office of an especiall wise minde not to reuenge his owne but to prosecute mightily the iniuries done to God And else where 4 Chrysost hom 5. in opere imperf more fully let vs learne saith he by Christes example courageously to beare the iniuries that are done to our selues but not to endure so much as the hearing of iniuries done to God For it is commendable to be patient in our owne iniuries but to dissemble the iniuries which are done to God is vngodly and wicked Leo the great an ancient Bishop of Rome thus exhorteth men to the reuealing of heretiques 5 Leo magnus ser. 4. de collectis wheresoeuer the Manichees do hide themselues shewe it vnto your priestes for it is a great part of godlines to bewraye the lurking places of the wicked and to vanquish the deuill him selfe in those who serue him And the same Father 6 Idem serm 4. de ieiunio decimi mensis else-where more fully Dearely beloued I beseech and warne you that if any of you doe know where any heretiques doe dwell where they teache whose companie they frequent and in whose societie they are delighted that you would truely shewe it vnto me who am most carefull hereof And further a litle after Those who thinke such are not to be bewrayed are to feare least at the Iudgement daye of Christ they be holden guiltie by reason of their silence yea albeit they be not defiled with assenting vnto them The same which he taught by doctrine he also 1 Prosper Aquitan in Chronico put in vre by his practise for it is reported of him that when Paternus Maximus were Consuls by the carefull diligence of the said Leo it was brought to light that many Manichees lurked priuily in the Citie Who bringing them forth of their secrete corners into the publicke sight of all the Church he made them both reueale all their foule opinions and also to condemne or abiure them and withall he burned their bookes whereof great quantities were taken It seemeth that this care of that holy man was inspired into him from God for it did much good not onely in Rome but throughout the whole world Insomuch as by the confessions of such as were apprehended in Rome it was made manifest what doctors or teachers what Bishoppes and what Priestes those of that sect had and in what prouinces and Cities they were And many Bishops of the East partes followed this carefull and good example of this Apostolique Bishop For as 2 Thom. Aqui. 2. 2. q. 33. art 7. Thomas sayeth By the very lawe of charitie the good of religion is alwayes to be preferred aboue the fame yea or the verie liues of the wicked 3 Plato li. 10. de legibus Plato but an heathen Philosopher thought good to tye all in his common-wealth vnto this lawe viz. If any man deale impiously or vngodly either by wordes or deedes let him that is present stand in defence of Gods cause and also relate it vnto the Magistrates Saint Hierome 4 Hierom. in 15. cap. Iob. requireth of all humble Christians this dutie of reuealing not onely heresies and erroneous opinions of other men but also other offences those saith he are truely wise in Christ who being conuerted vnto God doe faithfully confesse and doe by publique repentance satisfie the Church whether for their sinnes or their heresies and who not onely doe this but also discouer those that are meanes to bring them into those crimes or erroneous opinions I haue not hitherto heard of any besides certaine heretiques who at any time helde the like opinion vnto this of the Innouatours and factious persons in this Church Saint Augustine reporteth that the olde 5 August in lib. de haeresibus heretiques called Priscillianistae did teâ—…che their schollers not to reueale the doctrine which they learned yea though they were examined thereof vpon their oathes affirming withall that rather then faile it were better to be for sworne then to discouer it And therefore this saying was rife in their mouthes Iura periura secretáque prodere nolt Sweare saye they yea and for sweare your selues too rather then reueale these secrets This heresie was also afterwarde holden by an 1
though statutes for the most part bee not to the restraining and changing of the lawe of the realme His first speciall obiection doeth answere it selfe For if the Partie desire commutation of corporall penance into pecuniarie especially if he be a free man the Ordinarie may lawfully accept of that commutation and being so vnderstood circumspectè agatis iumpeth therein both with 2 Articuli Cleri 9. Ed. 2. cap. 2. 3. 4. lawe and practise Touching his second obiection against it of a pension I referre my selfe to that which hereof hath bene spoken in the 6. Chapter of this first part As concerning his alleaged booke of 19. Edward the 3. reporting it to be no Statute I must tell him that hee hath a larger printed booke then mine if hee haue any reports either of the 19. or 20. yeeres of king Edw. 3. But whatsoeuer either he that was Author of those two little Treatises or any other priuate or particular persons doe thinke may be collected or probablie spoken thereof I trust they will all be contented to submit their iudgements to an Acte of Parliament Therefore to cut of all doubts at once in this behalfe let them read the 3 1. 2. Ed. 6. 〈◊〉 cap. 13. in a Prouiso 〈◊〉 Acte for true paiment of tithes made in king Edward the 6. time where both Articuli Cleri Sylua caedua de regia prohibitione and also Circumspectè agatis bee called Statutes and are appointed to remaine in their entire as they were afore that new statute If a man lay 4 Stat. circums agatis 13. Ed. 1. violent hands on a Priest this offence is punishable also by ecclesiasticall Iudges Therefore it was determined in another Parliament that for excommunication pro violenta manuum iniectione in Clericum before 5 Art Cleri 9. Ed. 2. ca. 3. a Prelate where penance corporallis enioyned if the defendant will redeeme his penance by giuing money to the Prelate or partie grieued it shall be required before the Prelate and the kings prohibition shall not lie This seemeth to haue bene there determinable by some reports at the Common law euen afore these statutes 6 H. 7. H. 3. referente Fitzh tit Prohibition nu 30. For if a man enter into S. Iohns place and beate the brethren there and take their chattels for this violence he shall be sued in Court Christian and so it was adiudged by the Court. In a Consultation granted after a prohibition in this case was brought it is 1 Reg. fol 49. b. thus cōteined in the Register viz. si in causa iniectionis manuum violentarum in clericum in possessione Clericatus existentem quémque alter sciuit esse clericum non de violata pace nostra sed de excommunicatione ad correctionem animae tantummodo agatur tunc prohibitione nostra non obstante vlteriùs in eadem facere poteritis quod secundum forum ecclesiae de iure fore videritis faciendum But I find two cases where laying violent hands on a Clerke shall not bee sued in a Court Ecclesiasticall but there will lie a prohibition The first is If a Clerke be 2 Regist. fol. 42. 51. arrested at the Common law if thereupon he sue in a spirituall Court pro violenta manuum iniectione in Clericum there lieth Prohibition Another case is 3 T. 11. H. 4. fol. 241. in alijs libris vel 88. vel 85. when a man is excommunicate for laying violent hands on a Clerke if the spirituall Court denie absolution till amends bee made to the partie for the batterie a prohibition also will be granted because it shall be entended he which sueth doeth it to recouer damages But though it be at the suite of the partie if onely the punishment of the offence and not any amends be sued for it is determinable in a Court ecclesiasticall albeit the 4 Art Cleri 3. 6. Temporall Court haue also the debating of the matter touching the amends and the batterie For saieth Thirning if a partie sue onely 5 Ibidem to enforme the Court that the other hath laid violent handes vpon him being a Clerke to the intent the sentence of holy Church may goe against him to be excomunicate for the wrong done to holy Church and not to recouer dammages peraduenture it might be tollerable To which an other booke agreeth 6 H. 22. Ed. 4. fol. that if a man beate a Clerke and he sue him in the spirituall Court for his sinne of excommunication he doeth well but if he sue to haue the matter there examined for amends there lieth a prohibition For we finde a 7 Entrees tit Prohibition precedent of a Consultation granted euen where a partie sued in Court Christian proviolenta manuum iniectione in Clericum And so is it testified by the 8 Gooddall of the Liberties of the Clergie booke of the Liberties of the Clergie by the lawes of the Realme in these words A Priest may sue to haue him excommunicated or corporallie punished that laid violent hands vpon him but not to haue amends Neuerthelesse if 9 Gooddall ibid. a man put to corporallpenance for diffamation or for beating a Clerke to redeeme his penance wil agree to pay mony to the partie damnified after contrary to his promise will not pay it he may then be sued by the partie damnified euen for the mony in a court ecclesiasticall And not onely the partie may thus sue to haue him punished but the 1 M. 20. Ed. 4. 10 Spiritual court may also punish it exofficio as Brian and Litleton there did hold To this accordeth the said litle booke where is sayd that the 2 Gooddall ibid. ecclesiasticall Iudge may of Office cite for laying violent hands on a Clerke to punish him corporally but not by money Whose opinion is well confirmed by a Consultation in the Register to that purpose For thence is 3 Reg. sol 51. 2. gathered both that such a beater of a Clerke doeth incurre excommunication ipso facto and that the ecclesiasticall Iudge ex Officio may lawfully proceed to enioyne him corporall punishment Touching Sacrilege that it is also punishable by lawe in a Court ecclesiasticall two adiudged cases may bee alleaged out 4 M. 4. H. 3. per Fitz. Prohib nu 14. of Fitzherberts great Abridgement For if a man take goods out of the Church or Churchyard hee that hath propertie may sue him in a Court Christian and may compell him to stand to the sentence and iudgement of the Spirituall court for this offence And againe 5 H. 17. H. 3. per Fitzh tit Prohib nu 26. If a man take trees that are growing in the Churchyard the Parson may sue for them in court Christian and for the sacrilege also Lyndwood speaking of Sacrilege 6 Lyndw. in V. Sacrilegio c. aeternae sanctio de poenis saieth It is not a crime meerelie ecclesiasticall because the conisance thereof
my part I haue not hitherto found mentioned in any Statute or any report of the Common lawe though I haue carefully sought for them Now I will resume againe after this long but I trust not vnnecessarie digression the second member of ecclesiasticall Iurisdiction called contentiosa Iurisdictio That is when such matters be handled against which some partie standeth or is delt with thereby against his will If it be contentiosae iurisdictionis whether it be for a right there demandable and determinable or else for a crime there punishable which are the heads of all litigious Iurisdiction ecclesiasticall it cannot be intended that parsrea is contra quem res agitur the partie to be delt against will gratis without processe appeare frō time to time attend except it happē somtimes by collusion w t the plaintife And in this respect amōgst others it is said that iudiciū redditur in inuitū Reus is called pars fugiens the partie presumed to come thither against his will and willing inough to be gone if he might Therfore if any cause besides those two shall be proued such as the Ordinarie may lawfully deale in it wil folow that in such a matter also he may vse a citation to call him Dato enim principali necessaria adiacentia veniunt in consequentiam But that an Ordinarie may deale in sundrie other causes besides these two it shall appeare both by Statutes which are the iudgements of the whole Realme and by the iudgements and vncontrolled opinions reported in the bookes of the Common lawe In discourse whereof will appeare not onely 1 Aristot. in lib. poste Analyt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the matter is so but also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the reason why and in what maner and sort it is determinable or punishable there being three principall questions to be opened for the perfect knowledge of anything that is to be handled and seruing in these controuersies to some further vse and profite which may lighten you in the length of the disputation Pursuing therefore the two former heads of that part of Ecclesiasticall Iurisdiction first the matters by litigious Iurisdiction demandable and determinable are either such as are yeelded to be meere Ecclesiasticall by the authors of this opinion viz. Testamentarie and Matrimoniall to the first whereof for affinitie sake I adde last Wils such as may not be termed Testaments Codicils Legacies Administrations Sequestrations of the deads goods commonly called letters ad colligendum and to the later I ioyne diuorces iactitation of Matrimonie questions of legitimation or bastardie for restitution of a mans wife taken away that a man shall receiue his wife againe and suites for goods or chattels promised with a woman in mariage or else they are such others claimed to bee Ecclesiasticall as remaine still by this opinion in controuersie All which I thinke may bee comprehended vnder the generall terme of reliqua iura Ecclesiastica And these are either some duetie arising at first vpon exercise of voluntarie Iurisdiction and yet by deniall made litigious such be reall compositions sought by some partie to be disanulled procurations pensions Synodals Pentecostals indemnities fees for probates c. or growing due only vpō exercise of litigious Iurisdiction these are either due to the Iudge himselfe as fees of citations fees of sentences c. or are due to others attendants in the Court as fees of Aduocats Proctors Registers Apparitors c. or else they are such as are due to Ministers in the Church that haue no title as wages for a Curate or a Clerke or vnto a Minister that hath title And this right of a Minister that hath title toucheth either something incident to him as to name the Parish Clerke or concerneth the whole title and interest in and to his benefice or else toucheth but his maintenance and liuing His interest and title tendeth either to attaine it when he pretendeth iust title to it or to reteine it being in his possession or else to recouer it being bereaued or spoiled of it The dueties which concerne Ministers maintenance are tithes of all kindes Oblations Obuentions Pensions Mortuaries Churchyard or place of buriall c. Or lastly it is something that is due to a whole Parish as to haue a Chapleine found or diuine seruice or Sacraments administred amongst them or something due to their Church to be deliuered or for a Parishioner to be contributorie with the rest to reparations of the Church to seates to bels to the buying of bookes of Vtensiles or of other ornaments and requisites in the Church Concerning crimes offences claimed to be punishable by Iurisdiction Ecclesiasticall they may al I thinke be reduced to some of the three heads touched by S. Paul viz. as being contrary either to Pietie vnto God to Iustice towards our neighbour or Sobrietie towards our selues That which is against God the Latinists cal by the name of Impietas that which is against a mās neighbour they terme Facinus and that which a man designeth against himselfe Flagitium albeit the two last be often confounded without any curious obseruation of such proprietie of wordes Against Pietie to God-wardes are these blsasphemie swearing idolatrie heresie errour in faith schisme apostacie from Christianitie not frequenting publike prayer neglect of the Sacraments periurie in an Ecclesiasticall Court or matter disturbance of diuine seruice vtolating and prophaning the Sabboth and such like Contrary to Iustice are these Simonie vsurie diffamation subornation of periurie in a Court Ecclesiasticall violence to a Minister sacrilege dilapidations not building of a Church enioyned by atestatour not fencing the Church-yard not repairing a Church or Chauncell or not keeping of it in comely sort or when a Church-warden refuseth to yeelde an account of the Church stocke goodes violating of a sequestration made for tithes not paide hindering to gather or carry tithes money promised for redeeming corporall penance and detained contempt to the ecclesiasticall iurisdiction fighting or brawling in Church or Churchyard and such like And against Sobrietie are these all Incontinencie not made death by the lawe of the Realme whether committed with one which is of his kindred in blood forbidden either in generalitie or by some of the degrees Leuitical or with one of his alliance so forbidden both which are called incest or committed by such whereof the one is married which is adulterie or where the one of them hath bin maried termed by some stuprum or where both be single termed simplex fornicatio or whether it be marying of two wines or being maried vnto two husbandes at once which is called Polygamie Sollicitation of a womans chastitte drunkennesse filthie speeche and such others There be also certaine punishments and censures besides these which I thinke will be yeelded to be matters of ecclesiasticall iurisdiction as enioyning of penance suspension from entrance into the Church or from the Lordes supper or from execution of a ministers office or
the Lay Court should haue iurisdiction betweene them and not the Spirituall Court The last cause of drawing an action for spoliation of tithes from a Court ecclesiasticall that I finde is where the tithes in demand do amount to a fourth part of the yerely commodity of the whole benefice because hereby the right of Patronage may be touched or preiudiced which right of Patronage is to be handled in a court Temporall onely and by no meanes in Ecclesiasticall For so is it testified by 1 Lindwood c. aeternae sanct V. iute-patronatus const Prou. de poenis edita 1260. Lindwood himselfe to be the olde custome of the Realme and therefore the Common law of the land But in another place he seemeth to be of opinion that this notwithstanding no preiudice towards the Patronage can grow though the suite for all the whole tithes and oblations should be prosecuted in court Ecclesiasticall For saith he 2 Lindwood in verbo quarta pars bonorum c. 2. Prou. const de foro competenti the right of Patronage is founded vpon one of these three viz. building founding or endowing of a Church So that the right of Patronage doth no way respect tithes or oblations comming to the Church but rather the building of it the ground whereon it is situate or the endowment as of glebe c. assigned vnto it This he writeth saluo iudicio meliori and vnder the same reseruation I do holde that where a great part of tithes is by suite euicted from one Church vnto another the very patronage it selfe is much preiudiced and endamaged For if the Patron happen to sell it the lesse value the benefice is of the lesse recompence shall he haue for it Besides if 3 Stat. circumspectè agatis a pension be assigned out of the benefice vnto the Patron as it may be 4 Lindwood vbi supra V. pensionem vpon the foundation the more the benefice is empaired the more hard will the pension be to recouer Lastly for somuch as the Clerke presented is by law bound to relieue his Patron fallen in decay in this respect great preiudice groweth to the Patron when a fourth or greater part of the benefice is euicted That which Markham held as is aforesaid viz. that if any part of right of tithes doe come in debate betwixt two Patrons there the Court ecclesiasticall could not holde plea seemeth to be borrowed from a consultation in the 5 Reg. pag. 46. a. Register in these words viz. we being not willing to haue any thing derogated from iurisdiction ecclesiasticall do signifie that you may proceed according to the course of the ecclesiasticall court in the plea aforesaid so as the action reach but vnto spoliation of tithes and not to the aduowson or right of Patronage of any part of the Church sauing that he speaketh of the right of any part of the tithes and the Register goeth to the right of Patronage it selfe of any part of the Church But where 6 Stat. circum spectè agatis a fourth or greater part of tithes c. is not in demaunde betwixt two Parsons of Churches there the Plea goeth to the ecclesiasticall court The 1 Goodall of the liberties of the Clergie by the lawes of the Reà lme booke of Liberties of the Clergie hereof writeth thus one Parson of a Church may sue another in case of spoliation or taking of tithes or pension in court Christian so that the matter in demaund amount not to a fourth part of the value of the Church by reason thereby the right of Patronage seemeth to come in question but if they be both of one mans Patronage they may be sued there to what value soeuer the thing demaunded shall amount vnto That Pensions out of Churches are demaundable not onely by statute but also at the common lawe in a court ecclesiasticall is made plaine by 2 Reg. pag. 47. 〈◊〉 ibid. pag. 53. 2. Goodall vbi supra two consultations in the Register and by other bookes of law But Goodall further addeth that for a pension there lieth also a writte of Annuity at the common lawe so that it is at the plaintifes election where to sue but if there he doe declare vpon the prescription and after he sue in the spirituall court by the name of a Pension the other it seemeth may then haue a prohibition For Mortuaries that they at the common lawe be of ecclesiasticall conisance reade the two consultations in the Register and the other which 3 M. 9. H. 4. M. 10. H. 4. 1. Entres title of prohibition Reg. pag. 45. b. Reg. pag. 49. a. be here quoted And likewise 4 Reg. pag. 50. a. b. for oblations detained which ought saith 5 Goodall vbi supra Goodall to be paid at their vsuall dayes Another thing due to the Minister whereby also he hath a part of maintenance is demaundable and determinable in an ecclesiasticall Court viz. the places of buriall and the Churchyard Touching the first A Parson to an 6 Li. 44. assi pa. 8. assise brought against him for a house did pleade that he was Parson of P. and that to be parcell of his Church by time immemoriall and that there had bin burying of dead bodies whereupon Persey held opinion that the court temporall ought not to take conusance thereof For the second 7 44. E. 3. lib. assi it is a good plea against the iurisdiction of the temporall court to pleade that the land is his Churchyard The true reason hereof I take to be alledged by Bracton because it is dedicated and consecrated to God where thus he writeth 8 Bra. li. 5. ca. 16. Negocium terminabitur in foro seculari si de laico feodo agatur nisi fuerit dedicatum Deo sacratum sic enim res efficietur sacra hoc autem diet non potest de re in liberam perpetuam eleemosynam data For though a thing be giuen in Francke almoigne to an ecclesiasticall person yet it remaineth of lay fee still and is not said to be consecrated to God Therfore 9 19. H. 6. 20. a trespasse done vpon a Parsons glebe land which is a francke tenement cannot be tried in a spirituall court But it seemeth that in a trespasse done in a Churchyard it is otherwise for if a 1 H. 17. H. 3. Fitz. referente tit prohib 26. man take trees that are growing in a Churchyard the Parson may sue for them in Court Christian. Sed quaere And that matters of buriall doe belong to conusance ecclesiasticall is declared by a consultation in the 2 Reg. pag. 52. b. Register very plainely CHAP. VII Ofright to haue a Curate and of contributions to reparations and to other things required in Churches NOwe when a Parish or Hamlet hath right to haue a Curate found in their Chappell to say them diuine seruice If this be denied them and no circumstance otherwise be incident thereto to
drawe it to the Common lawe it should seeme by all reason of his owne nature to be a matter belonging to the conusance of a court ecclesiasticall accordingly as alwayes without impeachment it hath bin vsed Yet I finde in the bookes of Common lawe that 3 22. H. 6. 32. an action of the case was mainteinable for not saying diuine seruice albeit it was there confessed to be a spirituall matter What the circumstances and cause thereof was that it was so ruled in that case Quaere It appeareth by the 4 Reg. pag. 56. a. Register that a prohibition being brought vpon a suite in court ecclesiasticall for withholding a Chauntery a consultation was after graunted whereby is affirmed that pro subtractione Cantariae debita punitione pro huiusmodi subtractione the suite belongeth to a court ecclesiasticall and the like therefore must needes be thought of a Chaplaine or Curate not found to say diuine seruice where it ought to be either by composition or by prescription But that parishioners ought to be contributories and may be cited in a cause of contribution towards the reparations of the body of the Church termed Nauis ecclesiae and to the charges of buying and furnishing other vtensiles ornaments and bookes required by lawe to be bought of the common charge doth appeare partly by the Register and partly by Fitzherbert in his noua natura breuium who doeth gather it thence For if saith he a 1 Fitzh no. na br tit Consult fol. 50. Bishop doe cite any of the parishioners of a Church to be contributorie to the reparations of the parish Church or of any Chappell annexed to it if the partie sue a prohibition directed to the Bishop surmising that he is impleaded touching lay fee in court Christian the Bishop shall haue a consultation vpon this matter shewed in the Chancerie on his behalfe And partly also by the Iniunctions which were set out by the Queenes Maiestie in the first yeere of her reigne and are vnder the great seale of England for better record of the matter her highnesse being thereunto authorised by acte of Parliament For in 2 Iniunctions published 1559. these are conteined sundry vtensiles ornaments bookes and other things that by the common cost of euery Parish shal be prouided and from time to time supplied and whether they be wanting or no is to be enquired by ecclesiastical Iudges and the obseruation of the Iniunctions is by them to be vrged against those that shall infringe any of them by processes and censures ecclesiasticall according to the course of that lawe And herein the Iniunctions followe but the Cōmon law For 3 Of the liberties of the Clergie by the lawes of the Realme if a terre-tenant holding land that hath vsually paid for such tenement a pound of waxe or such like vnto the Church doe withhold it the Church-wardens may sue him for it in a court eccles Also 4 Ibidem if a man that withholdeth Church goods doe by his last will enioyne his executours to make deliuerance any of the Parish may sue the executours for them in court ecclesiasticall For proceeding ecclesiastically against refusers to contribute vnto the reparations of the body of the Church there remaineth a iudgement in a consultation 5 Reg. pag. 45. 2. recorded in the Register to this effect viz. vobis significamus quod super reparatione emendatione defectuum corporis ecclesiae iuxta consuetudinem approbatam facienda procedere poteritis ea facere quae ad forum ecclesiasticum noueritis pertinere dicta prohibitione non obstante And by reason of defectes in reparations of a Church money it selfe may lawfully be sued for in a court ecclesiastical as 6 Reg. pag. 48. 2. appeareth by another consultatiō in the Register And so is it also prouided by statute in this behalfe amongst other things viz. 7 Circumspectè agatis 13. Ed. 1. Prelates may punish for leauing Churchyards vnclosed or for that the Church is vncouered or not conuentently decked in which cases none other penance can be enioyned but pecuniarie CHAP. VIII Proofes in generall that sundry crimes and offences are punishable by ecclesiasticall Iurisdiction and namely idolatrie heresie periurie or laesio fidei and howe farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments LAstly doe followe the testimonies of the lawes of the Realme for proofe that many crimes also and offences are punishable by iurisdiction ecclesiasticall and first in generall then in particular for sundry of them The King writ thus to his Iudges 1 Statut. Circumspectè agatis 13. E. 1. vse your selues circumspectly in all matters concerning the Bishop of Norwich his Clergie not punishing them if they holde plea in court Christian of such things as be meerely spirituall that is to wit of penance enioyned for mortall sinne c. In hospitals 2 2. H. 5. ca 1. that be of any others foundation then the Kings it is enacted that Ordinaries shall enquire of the foundation erection and gouernance of them and of all other matters necessary in that behalfe and thereupon make thereof correction and reformation after the lawes of holy Church as to them belongeth In the statute of Citation it is permitted that a man may 3 23. H. 8. ca. 9. be cited out of the Dioeces where he dwelleth when some spirituall offence or cause is committed and done or omitted neglected or foreslowed to be done by some hauing spirituall iurisdiction In a statute of K. Edward the 6. 4 1. Ed. 6. cap. 2. Causes of correction be reckoned as ecclesiasticall which statute though it be repealed for the principall purport there of being touching Ordinaries seales and names not to be vsed any more in their citations and processes yet it bringeth sufficient euidence that sundry matters of correction be of ecclesiasticall iurisdiction And so Bracton testifieth that it was vsed and holden in his time for he saith In 5 Bracton lib. 5. cap. 2. causis spiritualibus vel spiritualitati annexis vt si propeccato vel transgressione fuerit poenitentia iniungenda iudex ecclesiasticus habet cognitionem quia non pertinet ad regem iniungere poenitentias nec ad iudicem Secularem The sundry consultations set downe in the Register do shewe that whē the proceeding is ad correctionem animae for some sinne not punishable in the Temporall Court the conisance is Ecclesiasticall One 1 Regist. 45. a. b. example shall suffice viz. Nolumus cognitionem ecclesiasticam in ijs quae ad forum ecclesiae maximè ad correctionem animae pertinent contra iustitiam impedire But to descend to more particulars and first concerning those which are contrary Pietati in Deum That idolatrie is punishable by Iurisdiction ecclesiasticall appeareth by the statute 2 5. Eliz. cap. 23. De excommunicato capiendo afore alleaged and touching Heresie
Maiestie by her Letters Patents to 2 1. El. cap. 1. name such as shall execute all maner of iurisdictions touching or concerning any Spirituall or Ecclesiasticall power is brought 3 8. El. cap. 1. in the Preamble to prooue the sufficient ordinarie authoritie that Bishops haue giuen vnto them by the very Letters Patents directed from her Highnesse for their confirming and consecrating c. It is further alleged that such dealing of an Ordinary toucheth not the King against him his Crowne and Regalie or Realme as not falling into any of the mischiefs whereof that statute was meant to be a remedie And for that all iurisdiction Ecclesiasticall is now both in fact and Law vnited to the Crowne and from thence deriued if it should be sayd that the handling of a matter but in an incompetent court yet established by the Queenes authoritie were in that high degree of offence punishment against her Crowne some thinke it reacheth thus farre as to implie an incompatibilitie betwixt the Crowne and Ecclesiasticall iurisdiction and so by implication to denie her iust Royall prerogatiue ouer all persons and in all causes aswell Ecclesiasticall as Temporall as if these could not both flow from the Crowne nor stand together and meet in one person which is most erroneous to thinke and traiterous to affirme It is likewise alleged that this were to make in effect a Praemunire to lie in euery case where a Prohibition may and alwayes hath serued the turne Whereas a Praemunire seemeth to be as a remedie prouided where a Prohibition could not serue to stay the course of proceeding And that euen before the supremacy was acknowledged to the Crowne no Praemunire vpon this point onely is reported in the bookes of termes and yeeres to haue bene inflicted but onely for pursuing pleas of the conusance of the kings court out of the Realme seeking to defeat iudgements there giuen and procuring Bulles from the court of Rome in derogation of the lawes of the Realme Moreouer it is to this purpose alleged that by the 1 3. 4. Edw. 6. cap. 11. statute authorising two and thirtie persons to set downe lawes Ecclesiasticall though repealed it was prouided as they thinke in affirmance of the law that no man for executing any of them should haue incurred contempt paine forfeiture losse nor haue bene in danger of any action or suite of praemunire Yet if such lawes had bene framed the Iudges ecclesiasticall might by mistaking haue giuen some cause of prohibition Therefore it is gathered by like equitie to be very hard that an Ecclesiasticall Iudge meaning to do his dutie and but to execute Ecclesiasticall iurisdiction ecclesiastically yet by similitude and neere coherence of one matter with another mistaking and so exceeding his authoritie a thing very easie in the Common law wherein sometimes do happen varietie of iudgements amongst the oldest professers of it if before any prohibition brought as it were to forwarne him he should hereupon de drawen at the very first push into a praemunire For by like reason if a court Baron should heare plea of a matter aboue fortie shillings a praemunire in stead of a prohibition might be brought against them Therefore enquire and seeke to enforme your selfe aswell in the premisses as of these questions following what is to be holden for law viz. in holding plea in an Ecclesiasticall court 1. Doubt of a temporall matter whether there be not a difference when it is propounded vnder the very name of a temporall action and when it is propounded vnder the name of an ecclesiast matter And whether the Iudge be in danger before the matter be 2. Doubt opened vnto him or no For I thinke in no Court temporall or ecclesiasticall the Iudges peruse the writs declarations c. when they are first put in And whether it be as great an offence in law but to hold plea 3. Doubt as to giue iudgement and to award execution in an Ecclesiasticall court of a temporall matter Also whether it be like degree of offence for an ecclesiasticall 4. Doubt Iudge to execute a temporall matter by censures ecclesiasticall as it is to execute it or a matter ecclesiasticall by temporall viz. fine imprisonment losse of limme or such like Likewise of what qualitie the offence is to go on in plea in a 5. Doubt Court ecclesiasticall after a meere temporall matter as right of aduowson c. falleth in controuersie principally to be determined Or to holde plea there in a matter worthie of redresse yet neuer of custome handled either in temporall or ecclesiasticall 6. Doubt Court nor whereof any remedie lieth at the Common law Also what offence it is to make lawes temporall or ecclesiasticall without the Princes assent 7. Doubt What it is to deale in temporall causes or courts without 8. Doubt commission and what in ecclesiasticall And lastly of what degree and qualitie of offence is it for a 9. Doubt Court temporall to holde plea of a meere ecclesiasticall cause or to deale in censures ecclesiasticall Or for such a court to holde plea of a temporall matter being 10. Doubt no competent Iudges thereof as for example if the Court of Common pleas or the Eschequer should deale in pleas of the Crowne that be capitall with such like a great number And so thus much for the first part The end of the first part THE SECOND PART OF AN APOLOGIE FOR SVNDRIE PROceedings by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuerslie by them impugned This second part especiallie treateth of the two seuerall wayes of proceeding in causes Criminall viz. by way of Accusation and ex Officio Iudicis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie ¶ THE PREFACE wherein is declared howe the foure opinions put ouer vnto this place doe fall in with the challenges of the Innouatours and a generall distribution made of matters to be handled in the second and thirde Parts THe second part of this treatise containeth our proofes together with answere to the obiections made against the maner of practise of iurisdiction Ecclesiasticall by those who do euen professe themselues to endeuour an innouation in the frame of gouernment of this Church of England But wee meane not in this place to handle all which they obiect in this behalfe but only some such of them as touch the maner and fourme of the proceedings in the exercise thereof For it is knowen they take sundry other exceptions as against the maner of calling to function Ecclesiasticall against the ordination against sundry the callings and the functions themselues against deriuing of the iurisdiction Ecclesiastical from the Prince against the matters handled by that iurisdiction and against the maner of handling them in sundry other respects condemning them as Antichristian and contrary to Gods word All which are of another consideration and not fit here to
robbed yet if there be likelyhood to the contrary the partie is not beleeued but the Iudge proceedeth ex Officio quia interest Reipub. puniri furtum Touching the penaltie due vpon such proceeding some writers holde that 7 D D. in c. qualiter el. 2. de accus the ordinarie paine appointed by Lawe is not to be inflicted vpon proceeding of Office But they also make these exceptions viz. that this doth not holde 8 Innoc in d. ca. where the Crime is notorious nor 9 Card. Alexand in c. de accusat col 39. where the defendant vpon the enquirie confesseth the Crime nor by the 10 Plerique omnes D D. course of the Ciuill Lawe For in these cases they affirme that the very ordinarie paine expressed in the Law may be imposed But it is assured 11 Clarus lib. 5. § fin qu. 49. that by Custome at both these Lawes not onely a milder paine but the very set paine of Lawe it selfe may be inflicted euen when a Iudge hath proceeded of Office But here some may obiect that those Lawes do seeme sometimes to require an Accuser It is true but neither alwayes nor of necessitie as hath bene opened And it is shewed afore that publike interest stands in steede of an Accuser Likewise the 1 c. qualiter quando cl 2. de accusat Lawe accounteth fame precedent to be a kinde of Accuser And where fame wanteth other 2 Bartol in l. congruit ff de Off. praesidis presumptions and Indicia or euidences are in this behalfe equiualent vnto a fame It may further perhaps be vrged that by Ciuill lawe this Enquirie ex officio is counted an extraordinarie remedie If it were so admitted to be what would this auaile those that oppugne it simply for the rule is Vbi cessat remedium Ordinarium ibi decurritur ad extraordinarium And it is not holden nor is otherwise likely if a partie will seriously and with effect prosecute but that the Ordinarie Iudge will cease further to deale therein ex officio yet it is a little afore signified that by reason of such generall custome this Enquirie ex officio is become euen by the Ciuill Lawe to be an Ordinarie remedie And besides that custome wheresoeuer 3 Specul Marran de Inquisit nu 39. Enquirie of office is specially permitted either by Lawe as in many cases or by statute there it is as ordinarie a remedie as Accusation And by the 4 Ibid. nu 48. Canon Lawe it is absolutely an ordinarie remedie I haue also heard it to haue bene obiected against this course that bad and infamous persons suggestions haue bene accepted If it be so it is but the fault of persons not of the Lawe And if by an Appellation from any ordinarie Court this point come to hammering it wil not be found absolutely iustifiable yet experience teacheth that not onely Relatours that be infamous and bad persons be in some cases admitted by the Lawes of this Realme but which is more they are permitted also to be witnesses As both infamous persons and those that be partakers with the appeached in treasons murders and felonies which is permitted in fauour of the Prince and common wealth in detestation of such grieuous crimes and for the very nature of the crimes which are for the most part so perfourmed as none honest persons but such as themselues are or can be priuie vnto them Vpon the same grounds the Ciuil Law also admitteth the like witnesses Therefore is it testified to be 4 Decius consilio 342. nu 8. the common opinion of writers in that Law that for the horriblenes of some crimes witnesses otherwise disabled in Law may be receiued as in here sie and in Treason Also when the trueth of the matter cannot otherwise bee had therefore the rule is that when the facte is of such qualitie that other witnesses cannot by any possibilitie be had in such case those shal be admitted that are in other cases forbidden by lawe Therefore none of these nor any such like friuolous obiections will be able to ouerthrowe this course so manifoldly grounded both vpon those former seuerall lawes and also vpon reason CHAP. XIIII An answere to such obiections as vpon the Ciuill or Canon lawes are brought against all proceeding of Office in causes Criminall by the Treatisour and the Note-gatherer AGainst all that is or may be brought out of those two lawes for confirmation hereof the Treatisour rather exclaimeth then obiecteth that they are strange lawes strange and forreigne proceedings and I knowe not against what pretended strange courses he bitterly inueieth as if nothing that is vsed els-where in the world could sauour of Iustice besides our owne or might be receiued amongst vs howe apt or beneficiall soeuer it be otherwise Neuerthelesse we finde in the bookes of termes and yeeres many things reported out of the Ciuill and Canon lawes yea many rules taken out of them which are there both alledged and allowed of That sage and prudent Senate with the whole people of Rome when of twelue Tables which conteined the ground of all their lawes tenne of them were transcribed taken out of the lawes of sundry common weales then in Greece they neither helde it any disparage to their owne Nation nor in that respect accounted them the lesse to be Romane lawes Though it were graunted that the proceeding of office in Courtes Ciuil and Ecclesiasticall with vs was drawen at first from those two lawes yet the same or like proceeding which is vsed in sundry temporall Courtes here perhaps will not be iudged to haue bin taken and borrowed from those two lawes but rather to haue bin the very olde originall custome and Common lawe of the land Which consideration if it be true must needes in mine opinion make much for the approuing of the reasonablenesse and equitie of that proceeding when as seuerall nations by one instinct of the light of reason haue so long iumped hitte vpō one the same course without borrowing it the one of the other But frō whencesoeuer any of these courtes in this lād haue borrowed their proceeding of office seeing temporall Courts of the Realme haue practice of the like course those lawes do allow it also vnto Courtes ecclesiastical according to the vse euen of so many hundreths of yeeres as this Nation hath bin Christian therefore these 1 Vide preamb. stat 25. H. 8. c. 21. proceedings ought not now at length to be accounted either forreine or strange from our policy but rather as our owne homebred English lawes and her Maiesties lawes ecclesiastical as they be often termed in actes of Parliament It is true which is said out of the Ciuil law Ea nostra facimus quibus auctoritatem 2 l. 1. C. de Vet. iure emendando nostram impartimur Those things we make ours vpon which we bestowe our authoritie whether expresly or by implication vpon long continuance of
The other being complained of by him to S. Augustine their Bishoppe did replie that Bonifacius seeing hee could not as he would abuse his chastitie did seeke of spite in that sort to touche his good name Touching this reciprocall Crimination of one of them against the other S. Augustine 1 August Epist. 137. saith thus When this matter had long troubled mee saith he finding no meane whereby the one of the two might be conuinced albeit I beleeued the Priest better I thought at first to leaue them both to God vntill some such iust and plaine cause might appeare in th' one of them whom in deede I greatly held suspected whereby I might turne him out of mine house But afterwards calling to minde that at the Sepulchers of some Martyrs it pleased God sometimes to worke myraculously I willed them both to goe to the place where the Martyr Foelix of Nola was buried because from thence whatsoeuer should happen from God to be reueiled vpon either of them might most easily and faithfully be signified vnto me by writing Can any thing hereof be gathered against Criminall Processe made of Office Why It mentioneth neither the one course nor the other But perhaps it will be saide that S. Augustine put neither of them to a Corporallothe Therein he did most orderly and according to Lawe For no Lawe would permit it in this case the Crime being not manifested abroade by any Fame c. And the Criminations being mutual eche of them being Denounced and charged by the other to be Criminous But for treating of such othes this is not the peculiar place Another of his places quoted out of S. Augustine I cannot coniecture why hee bringeth except hee meant to alledge it against Accusation because speaking to a Donatist of a Donatist 1 August Ep. 164. he saith thus Emeritum certè non decet defendere Optatum sed fortasse nec accusare By the quotation out of 2 Greg. Ep. ex Regist. li. 5. ca. 125. Gregorius Magnus writing to Maximus that had entred into the Bishopricke of Salona and was accused of Simony I thinke he meant these wordes if any Seeing saith he the charge of making proofes is not layde vpon thee but vpon him that accuseth see thou repaire vnto vs without delay and then there shall either an Accuser be readie which shall duely prooue that which is obiected touching Simoniacall heresie and other matters or else some other wholesome due course as the exigence of the cause doth require shal be taken c. What Because the Accuser must proue where that course is pursued doth it therefore follow that none other maner of proceeding is lawfull Nay rather this place though somewhat obscurely insinuateth that though the Accuser come not at all yet the fault shall not be wincked at or left vndealt with By the way let me note vnto you out of this place that Gregorie did in the meane time suspend the said Bishop from celebration of the Sacrament till triall of his matter might be had In the place which he quoteth out of Theodoret concerning proceeding of Bishops no matter sounding any thing that way can I finde S. Basil in the place 1 Basil. Ep. 70. by him quoted complayning of the iniurious persecutions then vsed against Christian Bishops saith thus Whereas no wicked man is cōdemned sine certis indicijs without certaine Euidence yet Bishops are condemned by meere calumnies And a litle after he saith thus Some know not their Accusers nor haue at any time appeared in the Iudiciall place nor haue bene complained of at all and yet being taken away at midnight haue bene straight-way driuen into banishment Who denieth when the proceeding is by Accusation but that the defendant should know his Accuser that hee may be allowed his iust exceptions But what is this to proue that no course is lawfull besides Accusation And the fault is not alone assigned hereupon but also because they were banished before euer they were either complained of or were brought vnto any Iudiciall place In Concilio Triburiensi by him quoted and likewise in the ninth Canon of any of the seuen Councils holden at Carthage there is nothing lesse or more touching either Accusation Othe or proceeding of Office to be found And that which is in Balsamon in the ninth Canon of the Carthaginian Councill holden sub Honorio Theodosio Paruo is nothing but a Decree that an excommunicate person shall not bee receiued to the Communion by any other Bishoppe or Priest vpon paine of the like Excommunication to him that receiueth him And the Tripartite historie in the tenth booke and foureteenth chapter hath no more then the said former places haue that way In the seuenth Chapter of the same booke quoted also by him it is said that the old Accusers of Iohn Chrysostome were againe excited against him That which he pointeth at by his quotation of Marcellus Eishop of Rome as I coniecture is conteined in these wordes Hee dehorteth Maxentius from persecuting Christian Bishops and wisheth that they be not called in question till that which hath bene wrongfully taken away be restored vnto them 2 Marcel ad Maxentium inter opera Clementis And then saith he let him answere his Accusers and if it bee needefull let him haue a competent time of deliberation to wey those things that bee obiected against him lest being innocent hee be ouer-throwen by any fraude or deceite Because it is not lawfull to iudge or condemne any man before hee haue lawfull Accusers present and haue libertie for his defence to auoyde the Crimes imputed to him Another B. of Romes authoritie he also voucheth to the same effect The wordes he meaneth I take it are these 1 Damasus Papa Ep. 3. ad Steph. Concil Afric in 1. vol. Concil Let not the same men be Accusers Iudges but Accusers by themselues Iudges by themselues witnesses by themselues and the accused by themselues euery one in his due order For first of all Inscription must alwayes be made to the ende that he which accuseth if he doe calumniate may himselfe receiue the punishment appointed for that Crime For before this Inscription no man may be iudged or condemned seeing euen the 2 Leges seculi temporall Lawes doe retaine the same course Both which places doe shew what things are required when the proceeding is by Accusation but speake nothing to the condemnation of any other course But would they who to abolish all proceeding of Office do bring these places yea or would any other in these dayes thinke you for conscience sake and onely to see reformation aduenture this Inscription ad poenam talionis in case the defendant shal be acquited custodiae similitudinem which these places and the Lawes doe require and also endure excōmunication which the Canons do in that case establish to be inflicted For they may not with reason thinke it ouer hard to be bound by those Lawes and
a meere 2 10. Petr. Ferrar. forma Inquisit ver forma publica Ciuilian writer and no Canonist as he supposed with whom he hath the same and no better lucke then he had afore with the other for want of knowledge to distinguish betwixt Processe informatiue and Punitiue for thereof onely Petr. de Ferrarijs there speaketh not once mentioning an oath Albeit the Treatisour doe gather both that and other things also thereof which bee not there conteyned which I will not nowe trauerse with him because they tende not to our principall purpose Out of the lawe it selfe hee taketh holde of that Rule which the sayde Doctors did alledge viz. nemo tenetur seipsum prodere but that proditus per famam c. tenetur seipsum ostendere purgare c. which they did also adioyne he cannot in any sorte brooke or digest as a glosse he sayeth confounding the text yet is it not any glosse but aswell warranted by lawe as the rule it selfe neither doth it confound but shewe howe that rule is truely to bee vnderstoode so that one part of the lawe without any antinomie may stand with another This himselfe might haue remembred to bee lawe euen by occasion of his owne allegation else-where viz. that such as refuse to sweare or answere vnto Articles are by the Ecclesiasticall lawe to bee holden pro confessis If then that lawe doe so deepely punish the contemptuous in that behalfe as to conuict them therefore of the very crime imputed may wee not gather that the lawes Ciuill and Canon require men to answere euen matters Criminall vpon their oathes But if the Canon lawe-shall bee by others alledged to auouch such oath as we heere treate of to this allegation in seuerall places the Treatisour maketh these seuerall answeres following First hee sayeth that such oath is against Gods word and therefore no binding lawe for which consequence hee alledgeth Saint Germaine in his booke of Doctor and Studient Secondly that the two statutes of Submission of the Clergie made in king Henrie the eight his time still 1 25. H. 8. 27. H. 8. continuing in force doe take away the Canon lawe Thirdly that this kinde of oath is contrary to the lawes of the Realme All which asseuerations are nothing else but begging of that which is the principall controuersie Touching the first of these it commeth in the next Chapter to bee disoussed whether ministring of such oath be against Gods word or no. For the second those two statutes are so farre from taking the Canon lawe away that both of them doe in trueth establish all Canons being of that qualitie as is there expressed vnto all which wee auerre this oath to bee consonant The Clergie in deede doe there promise not to enact or put in vre any newe Canons c. without the kings expresse assent of which sorte this oath is none for it hath beene prooued by farre elder Canons then that time Concerning the third wee haue shewed that there is not any great diuersitie betwixt those two lawes in this poynt therefore much lesse can there bee any contrarietie or repugnancie Lastly hereto hee answereth that if any man shall seeke by long practise and continuance to giue a new probate vnto the Pontificall lawe after so publike a condemnation and firing thereof by Doctor Luther such must vnderstand from him that this kingdome is not subiect to any forreine made lawes saue such as 1 25. H. 8. ca. 21. agree to the Preamble of the statute establishing dispensations A man woulde thinke if any part of Canon lawe should swarue from those conditions required to make them English lawes that dispensations which of all other are most strict and neuer afore that time spedde in this Realme shoulde bee holden for forren lawes rather then this kinde of oath so vsuall afore and since in most courtes yet these dispensations are also there approoued for English lawes Let him therefore vnderstand that all those things there required viz. sufferance consent and custome to make the Canons establishing such oathes to be accounted the customed and ancient lawes of this Realme originally established as lawes of the same doe in these oathes so aptly concurre as hath beene prooued that none of his confident denials thereof can or shall bee able any more to empeach them from so being then the burning of the Canon lawe at Wittenberge by Luther when the Pope had burnt his bookes at Rome either did was meant or yet coulde abrogate the continuall vse of a great part thereof in Germanie euen vntill this day or then it coulde or ought to haue any force to disanull it here in England for the statute establishing such Canons as there bee mentioned was made in the selfe same Parliament and Session thereof that this Preamble was before the statute of Dispensations whereby hee woulde nowe ouerthrowe the Canon lawe wholly And both of those statutes at the beginning of her Maiesties reigne were reuiued againe in one Act. Howe can there then bee any such contrarietie or abrogation generall of the Canon lawe as this man dreameth of except all that were present in those two Parliaments had bene fast on sleepe when they twise passed them both together for statutes Others perhaps to as good purpose will obiect that ancient custome of Rome viz. 1 Gell. lib. 10. cap. 15. Fenest de Sacerd cap. 6. Virginem Vestalem Flaminem Dialem in me a iurisdictione iurare non cogam hereof 2 Plutarch probl 43. Plutarch doth set downe three reasons first that an oath is a kinde of torture to a free man Secondly for that it is absurd in smaller causes not to credite their wordes who for the highest matters touching God are credited and put in trust Thirdly for that an oath draweth after it an imprecation or curse in case hee shoulde be forsworne which seemeth to be a detestable omination towards the Priests of God First then wee see hereby in so much as this was a peculiar priuiledge graunted to these that therefore all others might by Magistrates be put to their oathes And secondly that it was from all swearing absolutely and not in matters criminall onely which is our present controuersie For so Liuie also 3 Liuius lib. 32. testifieth hereof where hee sayth that Flamen Dialis amongs the Romanes might in no case at all sweare least at any time he shoulde for sweare which in him was holden as the most heynous thing that coulde happen Thus farre in answere vnto obiections made out of those two lawes CHAP. XI That not onely such an oath may be taken but also being by Magistrates duely commaunded ought not to be refused is approued by Scriptures by practise of the Primitiue Church and of late times together with a Replie vnto certaine answeres made vnto some proofes here vsed THe Innouators finding but small reliefe in the lawes being rightly vnderstoode doe flee as it is meete vnto the word of God yet as
happily ought to take an oath of him If a man offer himselfe to beare witnesse the Iudge may and of some happily ought to take an oath but to compell a man to beare witnesse he ought not I would gladly hereupon aske a question of the Notegatherer who presseth vs with this mans iudgement whether hee himselfe doe as the words lye allow absolutely of this and of other his writings both concerning oathes and other matters If hee doe not but somewhere reiect him then must hee giue vs leaue also to leaue him and not to beleeue him in case he condemne all necessarie oathes imposed by Superiours vpon inferiors so well warranted vnto vs by Scripture both in humane and in diuine matters But if Tyndall meane but hereby to disalowe absolute compulsion to take oathes in worldly matters then may his speech be better accepted For vpon refusall thereof in these matters the lawes appoint not the parties to be tortured till hee doe it which were an absolute compulsion but either doe punish his contumacie and disobedience to the example of others or els doe pronouÌ„ce him pro confesso which is but a causatiue compulsion And if Tyndall be thought in his wordes afore to condemne also euery causatiue or inducing compulsion then doeth hee contrary himselfe for in his owne example of an oath giuen at taking of an office there is this causatiue compulsion to be found because there is no man but by his good will had rather omit such oath then to take it if he take it not then is he to be put back from bearing that office which is at least a causatiue compulsion in case he desire the office but if he be vnwilling to haue such Office and yet may haue as Tyndall sayth an oath imposed then some oathes may be exacted and all be not voluntarie onely It is not safe nor sound to imbrace without all choise or difference whatsoeuer any godly or learned man hath holden for being men sometime they faile and sometimes through heate of coÌ„tradiction they haue their affections like vnto others And there is no kinde of men I thinke now liuing who with greater facilitie yea disdaine too do shake off all learned writers authorities not only newe but also of the oldest where they fit not their purposes then such as now be the chiefest and almost the only oppugners of this kinde of oath amongs those who make profession of the Gospell If this our plea neuerthelesse will not be accepted I wish the Note-gatherer would tell mee whether he also will allowe of Tyndals iudgement in the points folowing viz. though the 1 Obed. of 〈◊〉 Christian pag. 137. kings sayth he by the falâ—…hood of the Bishops and Abbots be sworne to defend the liberties of the Church yet ought they not to keepe their oathes but to breake them then in his iudgement not onely they may but they ought to breake their oathes taken for obseruance of Magna Charta and other matters at their Coronations He elswhere also writeth 2 Tyndall pag. opeâ—…m 209. that the lie of Dauid vnto Achish king of Gath wheÌ„he had killed the people sacked the countreis 3 1. SaÌ„ 27. v. 10. of the Gesharites Girsites Amalekites was no sinne in him In that to perswade a sicke maÌ„ that bitter medicine is sweet is charitie no sinne And by the like 4 2. Sam. 17. vâ—… 7. c. example of the dissimulation of Chushai Furthermore Tindall thus 1 Tind pag. 207. writeth If a man go out of the country from his wife come not at a certaine day to be prefixed as within a yere or so let his wife be free to marry where she wil. And againe 2 Tin pag. 208. If the woman departe causelesse and will not be reconciled though shee commit none adulterie the man ought of right to be free to marrie againe And towards the ende of his booke of practise of Prelates as it was first printed in octauo in a Dutch letter he not only defendeth it to bee lawfull for a brother to marrie his deceassed brothers wife dying without issue albeit carnally knowen by him but vrgeth it vehemently as a matter of necessitie and of Gods morall law at this day to be performed of all Christians which no doubt he writte in hatred of king Henrie the eight and of his then mariage with the Q. Maiesties mother In which respect I thinke those who after gathered together printed his whole workes did leaue out all that vnsound disputation of his But if the Notegatherer or any other will say they haue good reason to dissent from him in those pointes let them then permitte it like wise vnto vs in this behalfe vpon no lesse reason especially if Tindal meant to condemne all oathes simply which are not meerely voluntarie From their allegations out of Canons and later diuines writings I come to their examples some whereof be vrged positiuely and some negatiuely that is where this oathe was omitted Of positiue that example of Sir Iohn Oldecastell L. Cobham and martyr mentioned by the Notegatherer commeth here to bee handled for his mislike and refusal of this oathe as is pretended Yet M. Foxe 3 〈◊〉 Vol. pag. 666. 2. edit mentioneth no such refusall of an oathe by him in respect it was criminall but for that he would not be sworne in all thinges to submit himselfe to the Church and so take what penance the Archbishop would enioyne him The Notegatherer further sayeth That many examples of like refusing might be shewed out of the bookes of the Dutch French and Spanish martyrs so that it is no new thing He that voucheth so many quotations afore to so small purpose if he had had such readie it is likely would not haue spared his paines herein though in trueth it would haue giuen small furderance or aduantage to his cause for vivendum est legibus non exemplis Euery refusall of a matter by a godly man cannot bring in an absolute condemnation thereof But if those examples he coulde haue brought be like as he saith to that of Sir Iohn Old-castles Philpots Cranmers or Lamberts then are they not like to serue his turne for none of theÌ„ refused in respect they were to be examined of matters criminall as it commeth to be discussed hereafter But hee saieth also that all the late fierie Placarts in case of heresie in France Flanders Germanie and Spaine were by inquisition vpon the parties oath post accusationem denunciationem so as the partie knewe the matter first If hee had shewed this which he saith to be true and that oathes in case of heresie were not giuen in those countries to the defendants to the contrary whereof wee haue direct euidence from writers of those nations yet serueth it nothing at all to prooue an vnlawfulnesse in this oath much lesse absolutely for a non facto ad non ius will prooue but a sorie argument And
gappe For the proofe of this their assertion that where winesses may be had there a man may not be examined vpon his oathe First they saye for Iudges finding out by Inquisition what is spoken or done they finde two wayes in Scripture One by witnesse of others where they may be had which they goe about to proue by these 1 Deut. 13. v. 12. 15. Deut. 17 v. 2. 7. Num. 35. v. 30. Deut. 19. v. 15. Ioan. 18. v. 20. 21. 1. Tim. 5. v. 19. places quoted in the margent The other way by the parties owne testimonie where witnesse cannot be had for the thing spoken or done whereof necessarie inquisition is made which they would proue by these other 2 Iosu. 7. v. 19. Exod. 22. v. 7. 8. 10. 11. Num. 5. v. 13. 19. places here also quoted But is this a good consequence these two wayes be mentioned in Scripture Ergo there be no more but two or if it were admitted there bee no moe wayes mentioned for Inquisition of crimes doeth it followe that therefore all positiue lawes of Common-weales kingdomes for inquisition and triall of crimes in any other sorte are vnlawful against Gods worde what is this else then plainely to ouerthowe condemne as vngodly not onely the Inquisition and trial by Iuries and verdicts of twelue men vsed in this Realme and not mentioned in Scripture but also the proceedings Iudicial of all y e world besides if they do not wholy iumpe in manner fourme with y e Inquisitions trials mentioned in scripture * This erroneous couceit Barrow held in his last booke printed at Dordrecht And so instead of all our positiue laws to bring in place the Iudicials of Moyses giuen onely to the people of the Iewes not onely for the equitie of thē but for the very substance fourme of them also whereby the Priestes shal be Iudges what is lawe in euery difficult controuersed point in whose iudgements vpon paine of death euery man must rest contented Neuerthelesse by this their owne position I thus proue against themselues that they doe wickedly in refusing to take their oathes Wheresoeuer in an Inquisition of a crime no witnesses can be had there by the lawe of God the parties themselues must take their oathes and declare the whole trueth But of their framing of a booke of new Discipline Ecclesiasticall and Synodical of their subscribing to it of putting some of it in practise of meeting in Classical assemblies or Conferences in Synodes and general assemblies of matters there treated of concluded against the lawes and gouernement of this Church of England of secret writing and dispersing of their slaunderous bookes and libels conteining erroneous and hereticall opinions and seditious incitements which last pointes are Prohibita quia mala And touching the circumstances of these and euery of them no witnesses can bee had as experience it selfe sheweth for they were kept as close secret as could be they were done in priuate places chambers from whence all other were secluded sauing the very parties themselues being all principal delinquents and not called thither or being there as witnesses Therefore by the lawe of God they ought hereupon to take their oathes and to declare the whole trueth in these matters For so is their owne position Nowe I will examine their seuerall proofes brought for this opinion The first is this 1 Deut. 13. v. 12. 13. 14. 15. c. If thou shalt heare saye concerning any of the cities which the Lord thy God hath giuen thee to dwel in wicked men are gone out from among you and haue drawen away the inhabitants of their Citie saying let vs goe and serue other Gods which ye haue not knowen then thou shalt seeke and make searche and enquire diligently and if it bee true and the thing certaine that such abhomination is wrought among you thou shalt euen slay the inhabitants of the Citie with the edge of the sword destroye it vtterly and all that is therin the cattel thereof with the edge of the sword Where you see the punishmēt is vniuersall though the first perswasion came happely frō a fewe and therefore the defection frō God vnto Idolatrie was there amongst the men also generall For the iustice of God is that 2 Ezech. 18. v. 4. the soule which sinneth that shall dye How can this prooue that no partie to the sinne was examined but that they were conuinced onely by witnesses Nay the contrary rather is manifest For who is so fit and so likely to haue knowledge of things done in a Citie as those that dwell in it and therefore the lawe alloweth Citizens for good witnesses of matters there done euen when it is for their owne benefit because by common entendement others cannot be had I will aske then whether this generall condemnation and execution against a whole citie might proceede onely vpon hearesay this were very vniust and cruel and it is saide in the text it must be knowen certeinely But if vpon certeine and sure conuiction then cannot it be otherwise then by the examination of some persons of that citie who onely can knowe the certeintie thereof But these are all parties Quia quos par culpa eosdem tenet par poena è conuerso For God hath appointed this negatiue Iustice in his lawe that 1 Deut. 24. v. 16. the father shall not be put to death for the children nor the children put to death for the father but euery man shall be put to death for his owne sinne And in the Affirmatiue it was decreed in a Councell thus 2 Concil Tolet. 4. Can. 78. Oportet vt vna poena teneat obnoxios quos similis error inuenerit implicatos such as be guiltie of the same fault must needes bee subiect to the selfe same punishment And therefore it followeth that this Inquisition here spoken of was founde out by some of the parties owne examinations rather then by any other witnesses dwelling abroad and therefore not able to deliuer any certeintie But in so penall a matter a man will hardly confesse without torture or oathe and 3 Hebr. 6. v. 16. an oathe is for confirmation And therefore it may happen by the equitie of Gods lawe that a man in a matter criminall and euen capitall to himselfe may bee examined by his oathe Howe much more then of a crime not so penall That other place of the 17. of Deuteronomie is left at large without expressing whether the partie condemned there of Idolatrie were to be examined vpon his owne oath or not Besides in matters capitall and where there is an Accuser as in some sort is there no man in this Realme vrgeth an oath But it is necessarilie to be gathered that at least the partie conuented did answere the Accusation or Inquisition there by deniall before the witnesses were produced which many of this sorte of men will not doe either the