termed Accusers yet by his opinion they doe in very deede differ much in that the one is as he saith the triall of the Common lawe but not the other The true difference betwixt them he there prooueth also out of the Ciuill lawe vpon relation made vnto him by a Doctour in that facultie and willeth it to be noted as a saying which hee well alloweth By the Ciuill lawe sayeth 3 Brooke ibid. he Accusers be as parties and not as witnesses For witnesses ought to bee indifferent and not to come till they be called But accusers doe offer themselues to accuse For it is a good chalenge of a witnesse to say that hee was one of his accusers Quod nota Nowe howe vnreasonable were it to admitte the testimonie of a partie in his owne cause So that by the Ciuill lawe by which this prosecution is most properly handled Accusation truely so called is defined to bee Ius vlciscendi solenni poenali iudicio poenas ac delicta A right which the lawe yeeldeth to any of prosecuting crimes and offences for reuenge and punishment by publique and solemne iudgement For the explaning wherof we haue to note in this behalfe that crimes or offences be of two sorts Some be priuate whereby a cōmon person onely and no publique person nor the state of the Common wealth otherwise then by consequence is offended And this kinde cannot be prosecuted but by the very party grieued or by some of his kinne and propinquitie And it may be vrged either to the end of ciuil reuenge that is amends pecuniarie called actio vel accusatio criminalis ciuiliter or to the ende of a publique punishment called accusatio criminalis criminaliter mota The crimes that be publique are those that be heinous as more deeply touching the state of the whole cōmon wealth and publique peace then the former and therefore may be prosecuted by any man being called populares actiones quia competunt cuilibet de populo 1 l. de his C. qui accusare non possunt sauing that certaine persons for especiall causes are by lawe from accusation to be repelled Vnder the word of solemne iudgement be three things conteined and vnderstood that such an Accusour must vndergoe First 2 l. finali C. de accus he must present the name of the accused person in publique iudgement as an offender in such a speciall crime Then must he subscribe his owne name whereby he is said vinculum inscriptionis accipere And he must also be committed vnto the like custodie and ward that the Accused in regard of the qualitie of the fault and dignitie of the Accusour is to susteine vntill the suite be finished By this bande of Inscription or Subscription the 3 l. qui crimen C. qui accusare non possunt Accusour bindeth himselfe to prosecute the sute and professeth withall that if he proue not the Crime which he layeth against the Accused then he himselfe will and shall endure the same punishment that such crime when it is in deede committed doth deserue How vnusuall soeuer this be among vs or how seuere this course of punishment may seeme vnto some yet do we find the equitie of it in Scripture and that it is to be inflicted vpon such that calumniously impute false crimes vnto others If vpon diligent inquisition saith 4 Deut. 19. V. 16. sequent the Lord it be found by the Iudges that the witnesse is false and hath giuen false witnesse against his brother then shall ye doe vnto him as he had thought to doe vnto his brother c. Thine eye shall haue no compassion but life for life eye for eye toothe for toothe hand for hand foote for foote How much more then vpon a wilfull Accuser which calumniously seeketh for reuenge sake vpon an vntrue Accusation so knowen vnto himselfe to bring another man into so deepe danger An 1 Dan. cap. 13. example hereof we haue in the stoning of the two Elders that calumniously accused or witnessed against Susanna This poenatalionis or retaliation is also allowed by sundrie ecclesiasticall writers in like case as by 2 Epist. 2. ad Episcopos Siciliae Eutychianus and 3 Sixtus 3. Epist. 2. ca. 4. ad Episcopos Orientales Sixtus auncient Bishops of Rome For witnesses be sometimes compelled to beare witnesse who perhaps may slippe by affection inconsideration or want of remembrance which is therefore more excusable in them then in Accusers insomuch as these Accusers come willingly without any excitation of others to doe it For nemo inuitus agere vel 4 l. 1. C. vt nemo inuitus ag accusare compellitur No man is compelled to bring an Action or an Accusation sauing in especial cases as 5 l. Manichaeos C. de haeret in Heresie Omnes enim haereticum prodere atque accusare debent and in Treason also thus farre that he which doth not at least reueile it though a man be not bound to prosecute therein as an Accuser is to be punished as partaker of the Treason But this Inscription ad poenam Talionis to endure the penaltie due if he be not able to prooue his Accusation is 6 l. Fin. ff de priu delict l. fin ff de furtis not required in Accusations of priuate Crimes whether they be Ciuillie or Criminallie mooued and prosecuted Here perhaps some will marueile how this prosecution of Crimes by way of Accusation coulde be so vsuall as it was in former times in the common weales of Athens Rome and such like insomuch as it became there to be the most ordinarie meane of all others to bring Crimes and offences into question considering the great troubles and dangers that by Lawe did accompany the Accusers Such therefore are to vnderstand that fewe or none Accusers would deale so vnconsideratly as to vndertake it vntill they thought themselues sufficiently furnished with witnesses and other proofes able to conuince them whom they accused Next they are to remember the vse of it to haue bene greatest in populare Common weales where the readiest steppe to attaine vnto most honourable offices and dignities next vnto seruice in warres was to be able to speake and deliuer their mindes eloquently before the whole people who were the soueraigne Iudges in most of those causes either by way of Accusation or els in D◅fence of others being by Accusation called into dangerous question of their liues limmes honour libertie countrey or of their goods and landes Thirdly that when it was in most frequent vse the people were heathen and vninstructed in the true knowledge of God so that they thought to put vp an iniurie done either to themselues or to their friendes to be great pusillanimitie and a token of a base minded man and to be in deede a vice very discommendable euen as the contrary vice thereunto is viz. of doing Iniurie For so 1 Arist. lib. 5. Ethic. Aristotle teacheth in his Morall philosophie
the defendant was regard alwayes beyng had to his dignitie 1 l. Qui crimen C. Qui accus non possunt He was also then bound with good Caution of suerties to prosecute the suite Much like to the first of these was that lawe which was established by Crem 2 Suidas in verbo Bulgar the lawe-giuer vnto the Bulgarians who prouided that none accuser should haue audience giuen vntill being bound and brought to the torture it were by his owne examination found out vpon what probable grounds his accusation rested In the course of prosecution much trouble may grow vnto Accusers especially 3 Carrer de Hae. res cons. 117. in the crimes of Treason or Heresie For in both these not onely the defendant but the Accuser also is subiect to examination by torture vbi non subsunt indicia where no plaine or probable matter appeareth whether of them saieth truer The Inscription also aforesayd bindeth the Accuser to endure some punishment vpon detection of any rashe or vndue practise in the Accusation This rashnesse 4 l. 1. ad S. C. Turpillianum or lewd practise consisteth in three seuerall points and euery of them subiect to their punishments The first is when the Accuser doeth praeuaricari that is collude with the defendant in dealing against him Dicis causa pro forma tantùm for fashion sake perhaps to keepe others from it as by suppressing or concealing the best proofes and by admitting of false and slender defences brought and alleaged in the defendants excuse The second is when he doeth Tergiuersari that is giue ouer and desist from his prosecution vpon corruption c. The last is when hee doeth Calumniari that is wilfully 5 Gloss. in Clem. 1. de sentent re iudicat impute false crimes vnto the defendant which hee cannot prooue or make any vniust petition or by any other meanes deale deceitfully maliciouslie This may bee resembled to that which wee call at the Common lawe Conspiracie sauing that onely damages in money be giuen thereupon And this perill doeth fall out chieflie and is discouered vpon the euent of the suite when it is brought to an ende For if the Accuser be pronounced guiltie of such Calumniation then must hee endure the same punishment which the accused partie ought to haue suffered if hee had bene found guiltie called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and by others poena talionis This appeareth by the Ciuill lawe and is allowed also by the Ecclesiasticall By the Ciuill as namely by the Constitution of the Emperors Honorius and Theodosius where it is said to an Accuser 1 l. 17. C. de accus inscrip Necimpunitam fore nouerit licentiam mentiendi cum calumniantes ad vindictam poscat similitudo supplicij Let him not thinke hee hath free libertie giuen falslie to accuse others that without punishment seeing the course of Iustice requireth that for due reuenge Calumniators doe suffer the like punishment which they vniustly would haue brought vpon others It is also allowed by the lawe Ecclesiasticall 2 Damalus ep 3. ad Steph. Archiepisc For Calumniator si in accusatione defecerit talionem recipiat If an Accuser bee found to calumniate let him receiue the punishment due to the crime imputed 3 Hadâ—…ianus 2. q 3. c. qui non Qui non probauerit quod obiecit poenam quam ipse intulerit patiatur He that prooueth not his accusation let him suffer the same punishment into the danger of which hee brought another man And to the 4 Sixtus c. 4. in 1. volum concil verie same effect did Sixtus an ancient bishop of Rome write to the bishops of the East partes Yea besides the like penaltie it was decreed in a Councill 5 Concil Braccar 2. Can. 8. An. Dom. 610. that the Accuser that fayled in proofe should bee excommunicate If the Accuser can not saieth the Canon of the Councill prooue by witnesses that which hee obiecteth then let him endure that excommunication which the partie accused should haue done if hee had bene conuicted Neither can this be thought too grieuous for him that willinglie and maliciouslie without iust cause will conspire against an other let him impute his punishment to his own follie Actor debet venire paratus Besides the like punishment such an Accuser by the old 6 Gelasius ibid. c. si quis Canons was also pronounced an infamous person But from the grieuousnesse of this poena talionis or for Calumniation presumed all publike Officers who 7 l. post legatum §. Aduocatum ff de his quibus vt indignis l. qui cum maior §. penult ff de bonis libert by vertue of their office are bound to Accuse bee cleerelie freed and exempted Such are called Aduocati Promotores fiscales regij The kings Attorneis or Solliciters generall The reason hereof was because they did not of their owne voluntarie will or for reuenge as ordinarie Accusers vndertake such prosecution but for the benefite which redoundeth to the whole common wealth by the punishment of Offenders Besides they were not to reape any commoditie or gratification thereby 8 Bart. alij in l. Si quis in graui §. vtrum ff ad S. C. Syllanianum vnto themselues by part of the penaltie or fine whereby they might bee corrupted or drawen to doe more theÌ„ otherwise were expedient And therefore in both these respects such are freed from all suspicion of wilfull Calumniation or reuengefull bringing of men vnto a dangerous question and triall Thus much how perilous this Accusation is How hatefull it is vnto others and detested of most men for one willinglie as with delite to become a publike Accuser may appeare first by the restraint thereof 1 Arist. 6. l. Polit. cap. 5. Aristotle saieth That in a well ordered common weale Accusations ought to be most rare That very lawe by authoritie whereof it was most vsed prouideth That it shall not be lawfull at any time 2 l. Hos accusa §. l. Iulia. ff de accus l. cum rationib C. qui accus non possunt for a man to accuse more then two And an Accusers voyce is called an abhominable or deadlie voyce especiailie his that will Accuse the master of that familie where hee is commorant Let such an Accusers breath saieth that lawe 3 l. 20. C. Qui accus non possunt in the very beginning before it be heard be stopped with a sword Vocem enim funestam amputari oportet potiùs quà m audiri Furthermore it is naturallie giuen to vs all to pitie euen strangers when they bee brought into danger and distresse by others and in sort to abhorre them that doe wilfullie procure it They ought saieth Tullie in this behalfe 4 Cic. pro Muraena to weie with themselues that an Accusation is no meane matter but of great importance It is much for a man to addresse himselfe vnto
then shall ye doe vnto him as he had thought to doe vnto his brother Whereby may appeare that he that is said to accuse is termed a witnesse three times and his falsehood is to be found out by the Iudges inquisition This also appeareth more plainely by the story 7 Dan. 13. V. 34 40 62. of Susanna where the Elders were witnesses and there were none other Accusers So in the 8 Deu. cap. 21. V. 18 19 c. condemnation of a disobedient sonne there is none other Accuser but the very parents that make the complaint and beare witnesse also So that we finde in Scripture proceedings of office grounded vpon Denunciation of one person vpon heare-say vpon suspicion and vpon Notorietie of the fact aswell by Iudges Ciuill or Temporall adiudging vnto a temporall punishment by Iudges being both Ciuill and Ecclesiasticall and by ecclesiasticall alone inflicting the like penalty as also by ecclesiasticall Iudges proceeding to censures ecclesiasticall without any accusation or partie to prosecute other then the Iudges themselues And therefore criminal proceeding of office consequently without Accuser and likewise without any solemne presentment is by manifolde examples of Scripture sufficiently approued for lawfull godly CHAP. XVI An answere to such obiections as out of Scripture or ecclesiasticall writers be made against criminall proceeding of Office by the Note-gatherer and others AGainst this are obiected two places out of the Actes of the Apostles It is not the 1 Act. 25. V. 16. manner of the Romanes for fauour to deliuer any man to the death before that he which is accused haue the accusers before him and haue place to defende himselfe concerning the crime And the 2 Act. 23. V. vlt. other I will heare thee when thine accusers also are come By which they would gather that the very Heathens knew it to be contrary to equitie to proceede against a man otherwise then by Accusation But both receiue one answere In deede the vsuall and most ordinarie way of proceeding among the Romanes in veteri Republica before it was reduced to a Monarchie was at the first in crimes capitall where the people was Soueraigne Iudge by way of Accusation as is more largely touched afore And next vnto seruice in warre eloquently to accuse a man before the people was the readiest steppe that forward wittes sought 3 Cicero 2. offic Plutar. in Lucul credite and countenance by being an especiall meane to beare offices of honour in that Common-wealth Vpon which occasion it was in great credite and vse till through sundry calumniations to bring men wrongfully into perill of attainder they were forced per S. C. Turpilianum and other lawes to lay most grieuous penalties and dangers both vpon those that did not proue that which they obiected and therefore were presumed calumniari or who did praeuaricari i. collude tergiuersari wrangle or desist from prosecuting So that being so dangerous to the accusers in many respects it became afterwards to be lesse frequented Yet alwayes both before and after this they obserued that when there was any that woulde be Accuser or partie seriously without collusion there the Iudge neuer enquired ex Officio for vbi adest remedium ordinarium ibi cessat extraordinarium as that was holden then sauing in certaine cases afore by me touched But this Crime here obiected against Paul was accounted capitall by the Iewes and he had ynow that were his Accusers so that there needed to be none Enquirie ex officio mero against him That he had accusers who determined to prosecute him appeareth by these places The 1 Acts. 22. V. vlt. Captaine would know the certaintie wherefore he was accused of the Iewes Againe 2 Acts. 33. V. 29. he was accused of questions of their Lawe and further 3 Acts. 23. V. 30. Claudius Lysias the Colonell signifieth plainely by letter to Felix the Gouernour that he had commanded his accusers to speake before the Gouernour the things that they had against Paul So that the Gouernour not knowing the cause and knowing that the Accusers were commaunded to prosecute before him had iust occasion to say that he would then heare him when his Accusers came And in the next Chapter Tertullus an 4 Acts. 24. V. 2. Orator did accordingly come with others of the Iewes and accused him before Felix Likewise when he was afterwarde conuented before Porcius Festus the Gouernour that succeeded next the Iewes 5 Acts. 25. V. 7. 18. that came thither from Ierusalem layde many and grieuous complaints against him And after more plainely thus against whom when the Accusers stood vp they brought no Crime of such things as I supposed But to make it plaine euen out of that place that the Romanes besides the way of Accusation vsed also vpon cause to enquire of Office Lysias the Colonell by occasion of the crie and vprore made against Paul did without any mans 6 Acts. 22. V. 24. instigation and therefore of Office commaund that hee should be scourged and examined that he might knowe wherefore they cried so on him Where by the way appeareth not onely that he was then proceeded with of Office but also it was meant that hee should be vpon those onely enducements examined by torture of matters that might be Poenall to himselfe Neither did Paul take exception against this course as vnlawful nor the Captaine conceiue feare that he had done more then he could iustifie in any other respect but this because Paul was a Citizen of Rome For they had a law 1 Duodecim Tab. that a Citizen might not be beaten with roddes nor tortured any way but by decree of the people And yet any other of their subiects might be and were often so vsed It is notorious to them that haue read any thing almost of the state of that Common-wealth that the Dictators who for their halfe yeere had a Soueraigne authoritie did enquire and punish euen capitally ex Officio as they in discretion thought meete The Censors of maners had and practised for their fiue yeeres space the Enquirie and punishment ex Officio of sundry misdemeanors and dissolute courses of life not capitally but either by deposing men from their offices and degrees by noting them with infamie by corporal punishments of the lighter sort or by fine or by all these But the Note-gatherer maketh also moe quotations out of the ancient fathers which because they mention not an othe at all I doe therefore referre them to this place as brought by him to prooue that no proceeding Criminall may be vpon the Iudges Office alone First none of the places quoted out of Origen haue any resemblance of this matter That which he quoteth out of S. Ambrose 2 Ambr. li. 8. â—…pist 64. in respect of some difficultie doth require to be plainly opened Syagrius bishop of Verona had called afore him one Indicia sanctificata benedictione a professed Virgin as I take
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
further care I thinke it will not be so supposed The like then may be sayd of Ecclesiasticall officers and offences notwithstanding all generall Enquiries in Senes or Synodes and in visitations But it will perhaps be sayd in the one Court they may bee presented by the sworne men and in the other by enditement of the grand Iurie at Sessions and Assises c. It is true they may be but how many I pray you are so found out and endited from time to time by the grand Iuries of their own enquiries knowledges if either some partie grieued in particular doe not giue euidence or the Iudges or Iustices of themselues do not informe them and vrge them notwithstanding the straitnesse of their charge and oath and that they be taken out of the seuerall parts of euery shire But be it that some notorious murtherer or felon is soby them endited at some times how many other offenders in penall statutes being men of any reckoning in the shire are endited at all thorowout the Realme in many yeeres if none of the bench do take care to vrge the Iuries as Recusants in comming to diuine seruice such as haue and keepe Reteiners and giue liueries contrary to statute onely to band in quarrels and to mainteine bad actions or yet such as goe excessiuely in apparell or which violate the statutes appointed for not eating flesh vpon certeine dayes Nay it falleth out often times that the more to giue edge to such Iuries to do their duties euidence hath bene giuen vnto them in these offences yea such and so good as vpon lesse euidence they would perhaps haue endited a man of felonie to the hazzard of his life especially if he were but some base fellow Now when none almost will be found to giue euidence sauing in such a cause where he findes himselfe or some of his pinched yea and not in such neither if the other partie be a man of any tolerable reckoning or ability and very few albeit themselues do perfectly know it or haue reasonable good euidence giuen against some man of power that will finde an enditement against such an one although both he that giueth the euidence secretly and all the Iurie may be in some hope not to be knowen who it was that did principally stirre in it because they be sworne to keepe the Queenes counsell their fellowes and their owne can it then with reason be imagined that any man almost will be found voluntarily to become an Accuser and to prosecute at his owne costs and charges Experience teacheth that most men will not few that dare and those onely such as take themselues in some particular respect wronged We see in a great multitude of penall statutes at the Common law how men by third parts and moities of forfeitures besides great priuileges in proceeding are as it were allured and entised to informe against offenders yet very few notwithstanding such great gaine as thereby might be got are found besides such as make an occupation of it that will voluntarily preferre informations albeit there be enow that want the money and could well be content to finger it out of what male factours purse soeuer it came The reasons of this backwardnesse in informing I take to be the charge trouble common obloquie and offence taken by them that be prosecuted and thereby feare and perill to come vnto some further mischiefe vpon their procurement or for their fauour Now where men that are so well hired and by reason the Queene is partie to such informations so fully in all reason protected will not lust not or dare not preferre matter penall against others shall wee looke for better courage to be shewed by priuate persons against offenders in Ecclesiasticall crimes where they can expect no such countenance nor remuneration to lighten the other burthens and dangers and therefore either of Office to be prosecuted or must be wholly left vnpunished In riots committed and done vpon others we see iust cause of griefe for the iniury receiued and thereby occasion giuen to seeke lawfull reuenge There was good remedy also prouided for them at the Common law Yet in the time of king Henrie the seuenth for a further remedie and repressing of them by the Lords of the Starre-chamber the State was driuen to make a statute By authority whereof their Lordships proceed in that and others ex officio albeit in many causes they haue some partie grieued that by way of complaint promoteth and prosecuteth the office Yet the proceeding is as was touched afore by way of enquirie in that no man there sueth for priuate recompense but the scope of the whole processe is criminall ad vindictam publicam vel corporalem vel pecuniariam applicandâ—…m fisco non parti So that where men haue â—…ust cause of griefe yet was it thought very expedient requisite to prouide a sharper course by way of enquirie of office How much more then is this course needfull to be holden for punishing Ecclesiasticall crimes which by the policy of this Realme haue no other punishment and where no man hath for the most part any priuate iniury whervpon to complaine himselfe Here perhaps it will be said that he which can giue information of a crime to a iudge may accuse or procure a presentment in an Eccelesiasticall Court if it be of that iurisdiction or may informe and procure an enditement if the cause be Temporall or els that it were meet his information be not beleeued but that he should be holden as a slanderer and a malicious person We are to remember that if this Dilemma viz. either thou must accuse and prosecute him c. or else thou art but a slanderer had not quiddam tertium to minister answere vnto it many grieuous faults should passe vnpunished and many poore men should be sore pinched For experience teacheth that 1 Clarus ibid. q. 6. often times euen in crimes publikly committed you shall hardly finde witnesses that will depose their direct knowledge when it tendeth to the offence of some man of countenance that may do them a displeasure after And therefore they will either say they saw it not heard it not marked it not or at that time remember it not Yet it is knowen that a witnesse is vrged by the religion of an oath and is not entended to thrust himselfe into the matter willingly which as it ought to serue to take away all offence conceiued by him whom he toucheth so ought it to wash away all feare and other affection in the witnesse Then how much more probably may it be supposed that there is many a meane man though otherwise able to giue good and true information perhaps of three or foure witnesses which doe know the matter more fully and touching other particularities sufficient for a Iudge to enquire and to looke into the partie so denounced who neuerthelesse in many respectes dare not become an open Accuser or a preferrer of presentment of
testamentarie nor matrimoniall But it may perhaps be sayd that great abuse may hereupon folow if the Iudge list to vexe a man wrongfully for he may pretend strong Euidence and Information or a common fame to be against a man or such like afore shewed whereof he is crediblie aduertised Well if it be but so much that the ecclesiasticall Iudge when he is called by his superiour must be able to make proofe of some such it is more then a Iudge or Iustice of Peace neede shew why he calleth any man into question or bindeth him to the peace or to the good behauiour And what lawes can be deuised but they may be abused whatsoeuer hath an vse hath also an abuse sauing vertue saieth 3 Aristot. in Rhetoric Aristotle Yet if he be an Ordinarie as hath bin aforeshewed such grounds of his proceeding must appeare in Acts Iudiciallie or be well prooued or else vpon an Appellation his proceeding is to be refourmed Besides is it not more probable that a Partie which will accuse shall doe it of malice to vexe oftentimes an innocent and to bring him into perill then a Iudge who reapeth no commoditie thereby but satisfaction of his duetie and is not he more like to deale in these causes with sinceritie then quilibet è vulgo yet by this opinion such are permitted to accuse and to preferre matter against any though no fame nor other matter no not so much as suspicion doe appeare against them Is it not then all one whether the innocent man be wrongfully vexed by the Iudge or by a priuate person who in a maner professeth that he doeth it of malice neuerthelesse for all this inconuenience and abuse that may happen it will not be thought conuenient I trust to damme vp the way from euery man both Iudge partie to preferre suites against offenders For if it should so be in short time there would bee neither Iudge nor other but lewd persons onely and they might liue as they list Yea but it seemeth vnreasonable will some man say that a man should be called into question and not to know his Accuser Surelie if the way of proceeding by Accusation be taken he is to know him but when by Enquirie though for the most part the Denouncer is knowen yet there be many weightie and very considerable causes why euen witnesses in cause of heresie and much lesse those that gaue the information should not bee knowen which euerie man of himselfe without rehearsall can weie and call to mind Besides this obiection maketh nothing against all proceeding ex officio For when it is grounded and instituted vpon a Presentment by officers speciallie appointed their names are knowen to him whose processe is made Yet I must tell you that hereby it commeth oft times to passe that meane men in parishes abroad and for very foule crimes do rather make choise to be bold with their oath and conscience then with a delinquent whom they haue some occasion to feare But I pray what necessitie is there in Iustice of knowing the Relatours may not a Iurie endite a man without any cause openly appearing as when the matter is either knowen to some of them aforehand or the Euidence as some times happeneth is not giuen openlie which cases happening the partie endited shall neuer know who gaue the information because they are sworne to keepe secret the Queenes their owne their felowes counsell Which course for the trouble of the partie supposed to be delinquent doeth amount to as much as if the Iudge ex officio mero had done it When the Lords of the Counsell haue a supposed malefactor in examination are they bound in Iustice or were it but good policie to signifie vnto him who it is that giues the information and to confront them together at first dash but howsoeuer these by circumstances should be thought fit to be caried it is neither to nor fro to the condemnation of all proceeding vpon the office of the Iudges onely as vniust whether a man know or be ignorant who made the Denunciation CHAP. XII A Replie to the Note-gatherers answers giuen to certaine reasons that haue bene made long agone for to shew the like course to be also practised in temporall courtes and an answere to his reasons brought to prooue that in proceeding of Office there is some contrarietie to the lawes of England SIr Thomas More in his aforesayd Treatises to shew that it is not simply vniust vpon some occasion to conceale the names of those that gaue the information alleageth that in like sort at the Common law a man may be endited none euidence openly giuen at the barre and that the enditers be bound to keepe the kings counsaile close To this the Note-gatherer answereth first that before the partie answere or bee arraigned he knoweth the matter wherewith he is charged So doeth he also in ecclesiasticall courtes so soone as the matter is obiected vnto him Secondly that the inditement goeth to particular matter it must be certaine And so do articles also in a court ecclesiasticall Thirdly that they which indite him shall not be Iudges of him nor arraigne him No more shall they who present or denounce a man to an ecclesiasticall Iudge be Iudges of him and therefore whatsoeuer the Note-gatherer say to the contrarie it is not aliter ex officio Fourthly that Iudges in such a case are to proceed circumspectlie And so must they doe in other cases as well as this and so must ecclesiasticall Iudges also Fiftlie that two witnesses must be at the arraignment vnlesse the partie willingly confesse the same And so it is in courts ecclesiastical For without the parties confession or two witnesses none may be absolutely conuicted And yet this which he here saieth is not generall in all arraignments For the statute 1 1. Edw. 6. c. 12. made the 1. yeere of K. Edward the 6. which hereunto he voucheth mentioneth to this purpose onely treason and misprision thereof The said statute is also repealed since by Q. Mary The other statute 2 1 2. Ph. Mar. cap. 10. 1 2. of Philip Mary that he alleageth is onely for such triall of treasons that be made treasons by that Act. For the self same Act doth appoint all other trials of treason to be made according to the due order course of the Commō lawes But though it were so that at all trials two witnesses should of necessitie be present though it were admitted that his other foure answers were true in fact that the courses of proceedings ecclesiastical were to the contrary yet these do not any way impugne or ouerthrow sir Th. Mores reason viz. that mē may be endited not know who gaue the euidence or preferred it in like sort as some know not who preferred vp matter of crime against them into courts ecclesiasticall and therefore this must needs be wholy impertinent and besides the purpose Vnto another reason
the liberties of the clergie collected out of the lawes of the Realme by Iohn Goodall and printed by Robert Wier but without priuilege And the last Marsilij Patauini Defensor Pacis in English with the Kinges and her Maiesties mothers armes which belike hee mentioneth that they may stand in stead of priuilege But will you see what great and strong debating there was of this matter by the sayd foure bookes Truely sauing in the first of them there is not a word mentioned against proceeding of Office And in Goodalles booke by sundrie places thereof as is else-where in this Apologie alleged this kinde of proceeding is plainely auouched to be a Libertie of the Clergie giuen vnto them by the lawes of the Realme And all that is sayd in that one booke 1 Of diuision betwixt the temporaltie and spiritualtie cap. 7. and one onely place thereof is no more but thus worde by worde viz. Another cause of diuision for that diuers suites haue bene taken ex officio so that the parties haue not knowen who haue accused them and thereupon they haue bene caused to abiure in cause of heresie sometime to doe penance and to pay great summes of money for redeeming Which vexation they thought came by the Iudges and the Officers Therefore the fault that hee then found was not the very proceeding of Office but for that it was handled in such sort that the partie knew not who gaue the information which he calleth Accusing and for that it was in cause of heresie being a crime of farre more important danger to the partie then any other offence Ecclesiasticall yet not challenging the very proceeding thereby for vnlawfull but as being with such circumstances some cause of diuision betweene the two states as he surmised The soundnesse of which iudgement I minde not here to examine The Note-gatherer vrgeth further that the Popish bishops were depriued in king Edward the sixt his time by Accusation or Presentment though as it seemeth hee knoweth not by whether of them But what if they at that time had bene proceeded with otherwise then of Office Woulde this prooue all proceeding of Office to be contrarie to the lawes of England which is his drift and purpose Yet I haue often shewed afore that Presentment is a preparatorie course peculiar onely to proceeding by speciall enquirie of office But for plaine proofe in fact that they were in deed proceeded with ex officio Iudicum I referre me to the actes iudiciall of their depriuation yet remaning and to that also which I haue written in a certeine chapter of the third part of this booke Heere it will not be vnseasonable to admonish the Reader once for all of a palpable 1 Aduertisement of an errour mistaking both of the Note-gatherer and Treatisour in a materiall point who by the whole course of their writings and titles of their bookes seeme to imagine proceeding ex Officio to signifie nothing els then ministring of an oath to the suspected partie in a cause criminall Whereas in verie trueth there may be some proceeding of Office though that oath be not at all vrged or vsed yea and where it ought not to be imposed though it were vrged Like as on the contrarie side there may be proceeding euen by way of Accusation where the oath may and ought to be exacted for the parties purgation perhappes burthened by great probabilities yet not being so pregnant as to conuict him And therefore without all colour of reason and ignorantlie doe they and some others as the late Petitioner to her Maiestie confound proceeding of Office with ministring of an oath being but one Act thereof which is in deed sometimes but not alwayes no nor yet alonely vsed in that course of proceeding Neuerthelesse taking it whether way they lust the sayd Popish bishops were in trueth proceeded with of Office though denounced by certeine and as is expreslie set downe of some of them were vrged and did answere the Articles obiected vpon their corporall oathes which by lawe they needed not and therefore as it is likely would not haue done if the Denunciatours had beene parties To prooue this course to be against law he allegeth also out of a booke made 2 Defence of Priests marriages pag. 175. by D. Parker sometime Archbishop of Canterbury these words viz. The very front of her Graces articles meaning Queene Marie chargeth the ecclesiasticall Ordinaries to put in execution the Canons and Ecclesiasticall lawes none other but such as were vsed in the time of king Henrie the eight And commandeth also moreouer that those should no further be put in execution but as they may stand with the lawes and statutes of the land What then Ergo all proceeding of Office though continuallie practiced in sundrie matters in both their reignes without contradiction is contrarie to the Lawes of the Realme Truely if there be one methode of sound reasoning as Ramus holdeth concerning teaching of Artes I would be sorie this kinde of disputing should be it For I haue not bene taught nor shall euer learne I thinke either to reason thus or to put such Enthymemata into true Syllogismes viz. Such Canons onely were then to be put in execution as might stand with the lawes of the Realme Ergo proceeding of Office is contrarie to the lawes of the Realme His last allegation falling into this place to be discussed that he bringeth in maymed also to prooue this proceeding to be against the lawes of England is out of one of her Maiesties Iniunctions 1 Iniunction 50. Against slanderous and infamous wordes which is thus verbatim viz. Her Maiestie straitly commandeth all maner her subiects to forbeare all vaine and contentious disputations in matters of religion and not to vse in despight or rebuke of any person these conuicious wordes Papist or Papisticall heretike Schismatike or Sacramentarie or any such like wordes of reproch But if any maner of person shall deserue the accusation of any such that first he be charitablie admonished thereof and if that shall not amend him then to denounce the offender to the Ordinarie or to some higher power hauing authoritie to correct the same But what I pray can be gathered hereof more then a care to reteine priuate persons in a charitable course one towardes another without reprochfull wordes vpon any differences of opinions Or doth this reach to the abrogating of any course of proceeding Nay rather it doeth establish it seeing vpon Denunciation which is heere mentioned proceeding of Office may be grounded but not Accusation But the Treatiser saith that heereby the same man is Iudge and Accuser which is contrary to the policy of this Realme that suffereth not an Accusor to be a witnesse nor an Enditour to be a Iuror for triall of the fact I answer that the first is vntrue For that which openeth way to the Iudges Enquirie is holden by Lawe as the Accusour and not the Iudge Touching the second I haue shewed out of
Fallit iurantem iuratio facta per artem A cautelous crafty oath in trueth deceiues none so much as him that taketh it if by his owne fraude he thinke to escape periurie therefore wheresoeuer any fraude or cauill is vsed by him that taketh the oath there periurie in the sight of God is committed 4 Martial li. 6. Epigr. Martiall butan heathen Poet could discerne thus much Iurat capillos esse quos emit suos Fabulla nunquid ille Paulle peierat A man weares haire on his head that he bought and yet sweares they be his own haires I pray you sir is he for sworne or not Friuolous then and ridiculous is that excuse whereby Popish writers would excuse their S. Francis of a lye vnder pretence of his charitie and good zeale 5 Angel in li. 3. § si tibi iudic ff de condict ob turpem causam For on a time a manslayer came fleeing away by him and being pursued with hue and crye Fryer Francis was asked by one of the pursuants whether he saw such a man passe that way or no whereunto putting first his hand into his sleeue or as some write his finger in his eare he answered that he saw no such maÌ„ passing that way meaning through his owne sleeue or eare In deede such deceitfull answering or swearing is so farre from excusing a man from vntrueth periurie that 6 Cic. lib. 3. Offic Tully sayth thereof thus fraus distringit non dissoluit periurium fraude and cautelous dealing doeth not excuse or qualifie but tyeth harder and enwrappeth a man further into periurie Hereupon it is also said in lawe thus 7 Gl. in c. quemadmodum de iureiurando Conditiones tacite subintellectae non faciunt iuramentum conditionale conditions and priuate protestations which hee that sweareth frameth in himselfe or keepeth in his owne minde doe not make the oath to bee conditionall which is giuen him simply It may also be asked whether euery promissorie oath is simply and absolutely to be kept or howe farre For answeâ—… hereof I wil note vnto you what I finde probably sayde and then leaue the exact resolution thereof vnto graue Diuines Euery such oath is simply to be kept if it happen not into some of the three cases here touched The first of these cases is when the thing by oath promised or vowed to be done was in very trueth euen at the first taking of it simply and in it selfe euill howbeit perhaps not then discerned so to be by him who tooke the oath And in this case the partie sinnes grieuously in swearing but more grieuously hee should sinne if hee kept his oath For euery oath must be made * Ierem. 4. V. 2. in iustitia in righteousnesse And 1 22. q. 4. per totuÌ„ praesertim c. inter caetera Augusti Seuero c. quaÌ„ to de iureiurando iuramentum non est vinculum iniquitatis vel cuiuscunque criminis sayeth Saint Augustine an oath tyeth no man to doe that which is wicked To like effect sayth Isidorus In 2 Ibidem c. in malis ex l sidoro in synony lib. 2. malis promissis rescinde fidem in turpi voto muta decretum quod incautè vouisti ne facias impia est enim promissio quae scelere adimpletur The seconde case is when that which is promised by such oath is an hinderance and impediment to a greater good as if a sufficient man for it should sweare neuer to be a minister of Gods worde and Sacraments what desire soeuer him selfe should afterward haue thereunto or what neede soeuer the Church of God should haue of his helpe in the ministerie In such a case hee sinnes by his rash swearing but not in keeping the oath as the Schoolemen holde albeit they thinke it better he should breake the like oath then that he should keepe it The thirde case is when as some vnlooked for accident is discouered or falleth out afterwarde that was not thought vpon before Nowe if by such euent ensuing the oath cannot be perfourmed without crime and impietie then without doubt is such perfourmance of the oathe a sinne as well as in the first case of the three Saint Ambrose in this 3 Ambros. de offic lib. 3. c. 12. behalfe sayth thus It is sometime against Christian duetie to perfourme a vowe promised by oathe so Herode offended which put Iohn Baptist to death rather then he would goe backe with his oath and promise Yea euen where such oath might bee perfourmed without sinne yet may there be sundry cases wherein the partie is thought not to be bound vnto performance As imagine that I being to receiue 1 L. finali C. de non numer pecunia money which is in telling for mee doe in the meane time in assured hope to receiue it seale an obligation and withall sweare to pay vnto him so much money at such a day Neuerthelesse if the intended creditor shall thereupon refuse to deliuer me any money or if any other accident without my default doe happen whereby I could not receiue it in such a case neither mine oath nor obligation doeth binde me to performance and paiment Therefore these rules ensuing are gathered out of that and sundry other like lawes viz. iuramentum non porrigitur vltra consensum 2 Arg. l. Quod Seruius ft. decondictio causa dati Censetur clausula apposita in iuramento quod promissio valebit rebus in eodem statu remanentibus 3 c. tua nos de eccles aedific Iuramentum non extenditur ad inopinata Non 4 c. veniens c. Quinta vallis de iureiurando c. ex multiplici de decimis Arg. c. audita de restitut spoliatorum extenditur ad ea de quibus non est cogitatum And Iuramentum 5 c. ad nostram el. 2. de iureiurando non extenditur ad incognita And vpon these grounds it was that the Emperour Vespasian did 6 Sueton. in vita Vespasiani release or as we more vsually nowe speake dispense with a certaine knight of Rome for his oath This knight had solemnly sworne vnto his wife that he would neuer put her away Which he might otherwise lawfully haue done by the heathenish custome of that Citie then either for any iust cause or for no cause at all After this oath the wife was taken in adulterie therefore the Emperour dispensing with her husbands oath because in all likelihoode the knight in so swearing neuer dreamed of such a trecherie the knight then without scruple did repudiate and forsake his adulteresse wife For the like 7 L. vlt. ff ad municipialem reason did Antonius and Uerus Emperours dispense with the oath of one being chosen Duumvir a chiese Magistrate in Municipio not much vnlike vnto one of the Consuls in Rome who had afore sworne that hee would neuer after that time be present in any meetings or assemblies of the Senators or