of sir Th. Mores grounded also vpon resemblance of the practise at the Common law vnto the ecclesiasticall in this behalfe viz. that a man may be at that law arrested and imprisoned onely vpō suspicion he frameth two answers The first of them is that at the common law there must be a fact precedent whereby a cause of suspicion must be grounded otherwise there lieth an actiō of false imprisonmēt What If an offence appeare to be done shal this be sufficient without all peril to ground a suspicion against any man whomsoeuer that it was he which did it so to imprison him Neither yet is it generall that a fact must be precedent before a man be arrested For if it be a fact of such qualitie nature as leaueth traces signes after it as murder Coining and such like which be called by Ciuilians facta permanentia in thē it is true that a fact must be precedent But in such facts as leaue no such traces behind them so y t it is not certain whether they be cōmitted at all or not yet probabilities thereof doe appeare as of speaches secret treaties of cōspiracie treason for such facts a suspected partie may be arrested and imprisoned though it be not assuredly knowen whether the fact be committed at all or not And these are called facta transeuntia Neuerthelesse this is not in any sort an answere vnto sir Th. Mores reason For admit that a fact must alwayes be precedent neuer the later this remaineth true that a Iustices onely suspicion may serue to arrest and imprison a man And yet the law ecclesiasticall for which More reasoneth doth in trueth require strōger grounds for enquitie special thē the Iudges only suspiciō as is afore at large in this secōd part declared The Note-gatherers later answere vnto that reason of Mores is that a felonie or murder being done and a fact manifest the partie apprehended and suspected knoweth that he is to answere that facte and not other by-wayes as is vsed in the ecclesiasticall proceedings Trulie of all that euer I heard these answeres be by-wayes and besides all way too of any reasonable answering obiections It may be that the partie himselfe especiallie if he be not guiltie knoweth not till hee be asked the very particular cause of his apprehension But it will be sayd that vpon his examination hee learneth what it is Why sir and so doe all that be conuented in courtes ecclesiasticall know by their examination the matter obiected Then where is the difference and the by-way that this man so talketh of But will you see his clerkelie vayne of reasoning herein For it is as if he had gathered it thus viz. A man arrested knoweth that he is to answere a fact which is committed Ergo Albeit at the common lawe a man may bee arrested vpon suspicion yet proceeding ex Officio is vnlawfull how good grounds soeuer there be for it farre sounder then suspicion For another inconuenience of proceeding by office importing with all a Contrarietie to the lawes of the Realme the Note-gatherer assigneth that thereby the Accessarie may be punished and the principall may escape which is contrarie to the Common law The consequence hereof he goeth about to prooue thus For that as he saieth the Principall may in those courtes be an Informer and a witnesse both against the Accessarie By which saying his slender skill or experience in those lawes appeareth For it is most notorious that there is no better nor more vsuall chalenge exception against an Informer or witnesse then to alleage quod est particeps vel socius criminis praetensi Albeit euen at the Common lawe we vsually see partakers and complices in coining in other kindes of treason and for sundry hainous crimes especially which are secretly contriued to be admitted to appeach and to be witnesses and to giue euidence against others their partners He affirmeth also but maketh no shew of proofe thereof that hereby the two Iurisdictions be confounded and that proceeding of office is derogatorie to the lawes liberties and customes of England In which respect it is sufficient that these be as easilie by vs denied as they be barelie boldly and vntruly by him auouched He further allegeth in three places as if it were a matter very considerable out of Hall and the Actes and Monuments of the Church that by the statute of 25. H. 8. cap. 14. all proceeding of Office is repealed and calleth the statute against Heresie 1. H. 4. the statute ex officio as if it had bene vnknowen before First that very statute 1 1. Eliz. cap. 1. it selfe of H. 8. standeth repealed Secondly it is very vntrue that it did at any time repeale proceeding of Office For it doth not so much as once mention it And therefore what any writers do name the sayd statute of H. 4. thereby repealed as I haue not sought so is it not materiall seeing they misunderstand it if they so write Yea the Notegatherer himselfe yeeldeth that the sayd statute of K. H. 8. doth establish proceeding of Office if he vnderstand what himselfe writeth For it doth appoint and so he allegeth it that from thenceforth proceedings against Heretikes should be vpon accusation or presentment If vpon Presentment then of consequence by the Iudges Office For so all lawes testifie and Presenters be not Accusers or parties For they are seuered counter-diuided euen in that very place one against the other The principall drift of that statute of K. H. 8. was to prouide that an Ordinarie vpon his owne onely suspicion should not call men into the dangerous question of heresie as it seemeth was afore vsed by some of them vpon colour of that statute 1. H. 4. and therefore there repealed The next statute which to the same purpose he quoteth 2 31. H. 8. ca. 14. is so farre from impugning proceeding of Office that for grounding proceeding ecclesiasticall euen in the crime of heresie it prouideth besides Accusation and Presentment not onely information by two witnesses but also enquirie and that is alwayes of Office But do not these men draw neere the lees when they are driuen thus to allege the statute of Sixe Articles being also repealed against proceeding of Office I had thought their courage in the pretended cause of sinceritie had bene so great that they would rather haue quit the place with losse of their cause then once to haue borrowed so much as the shadow of a weapon out of that store house Against this course the Note-gatherer also allegeth certeine bookes printed in king Henrie the eights dayes Cum priuilegio These hee termeth to be the maner of debating that cause in those dayes The first was made by S. German as it is thought and is intituled The diuision of the Spiritualtie and Temporaltie with his replie against Sir Thomas Moore intituled Salem and Bizance The next concerning the power of the cleargie and lawes of the Realme The third intituled Of
statutes and reports some whereof were made not long after and so from time to time downeward till these late challenges doe make it very manifest It is prouided by Statute that 2 24. Edw. 1. stat de consultatione the Chancellor or chiefe Iusticer of the King vpon sight of the libell whereupon any prohibition is brought if the case cannot be redressed by any Writte out of the Chancerie but that the Spirituall Court ought to determine the matter shall write to the Iudges where the cause was first mooued to proceede the prohibition directed notwithstanding So that wherein soeuer by custome and liberties of Holy Church Iudges Ecclesiasticall were wont to proceede if no Writ lie thereupon in Chancerie they may still holde plea and take conusance Also in the conclusion of the Statute of Articuli 1 Artic. Cleri 9. Ed. 2. ca. 16. Cleri where sundry matters besides Testamentarie and Matrimoniall are mentioned it is thus enacted that the Prelates Clergie and their successours shall vse execute and practise for euermore the Iurisdiction of the Church in the premisses after the tenor of the answeres aforesaid without quarell inquieting or vexation of our heires or any of our Officers whatsoeuer they be Likewise it is by Parliament 2 15. Ed. 3. ca. 6. accorded that the Ministers of holy Church for money taken for redemption of corporall penance nor for proofe and account of Testaments or for trauaile taken about the same nor for solemnitie of marriage nor for other things touching the Iurisdiction of the Church shall not be empeached nor arrested nor driuen to make answere before the Kings Iustices nor other Ministers and thereupon shall haue Writs in the Chancerie when they will demaund Where we finde that other things besides Commutations matters Testamentarie and Matrimoniall doe belong to the Iurisdiction of the Church And to like effect after in the same Kings dayes 3 18. Edw. 3. pro Clero c 6. Commissions to enquire of Iudges of Holy Church whether they made iust Proces or excessiue in causes Testamentarie and others which notoriously pertaine to the conisance of Holy Church were from thencefoorth forbidden Therefore these Statutes being still in force if Iudges Ecclesiasticall shall be found but to deale as they ought in matters appertaining meerely to Iurisdiction Ecclesiasticall how the vexations impeachments driuings to answere and strange enquiries against them vsed in some places may be iustified by Lawe is worthie the consideration of those that are or shall be procurers therein In a statute of King 4 1. Ric. 2. ca 13. Richard the second mention is made that the pursuites for Tithes and for some other causes of right ought and of olde times were wont to pertaine to the Spirituall Court. In a Statute of King Henrie the eight it is 5 24. H. 8. c. 12. in the praeamb testified that both the authorities and Iurisdictions Spirituall and Temporall doe conioyne together in the due administration of Iustice the one to helpe the other And that the Lawes Temporall are for triall of propertie of landes and goods and for the conseruation of the people of this Realme in vnitie and peace without rauin and spoyle And in the bodie of the Statute are particularly named and reckoned for Ecclesiasticall besides causes Testamentarie and Matrimoniall these viz. diuorces right of tythes oblations and obuentions of which it is affirmed that the knowledge of these causes by the goodnesse of Princes of this Realme and by the Lawes and customes of the same appertaineth to the Spirituall Iurisdiction of this Realme And because by that Statute remedie was onely prouided that appellations in those aforesaide cases should not be prosecuted out of the Realme there being also many other causes of Iurisdiction Ecclesiasticall wherein a like remedie was conuenient to be had therefore the next yeere after it was enacted that 1 25. H. 8. c. 19. all maner of appeales of what nature or condition soeuer they bee or what cause or matter soeuer they concerne shall bee made and had by the parties grieued c. after such maner as is limitted for causes of appeales in matters Testamentarie Matrimoniall tythes c. in the said former statute mentioned In a Statute of King 2 1. Ed. 6. c. 2. Edward the 6. besides matters of voluntarie Iurisdiction Ecclesiasticall as collations presentations Institutions inductions letters of orders and dimissories are reckoned in generall as Ecclesiasticall all suites and causes of instance betwixt partie and partie and all causes of correction And in particular all causes of bastardie or bigamie and enquirie De Iure patronatus besides matters of Testament of administration or of accounts vpon them And 3 5. Eliz. c. 23. in one Statute in her Maiesties reigne are reckoned in particular as the more grieuous sort of matters of correction in Ecclesiasticall Courtes heresie refusing to haue a childe baptized or to receiue the holy Communion or to come to diuine seruice errour in matters of religion or doctrine now receiued incontinencie vsurie Simonie periurie in the ecclesiasticall Court and Idolatrie And therefore Iudges Ecclesiasticall may lawfully cite men in certaine other causes besides Testamentarie or Matrimoniall and ought not eonomine tantùm to be vexed vnquieted impeached driuen to answere or arrested CHAP. V. That suites for title of Benefices vpon Voidance or Spoliation likewise that suites for tythes Oblations Mortuaries c. for Pensions Procurations c. are of Ecclesiasticall Iurisdiction is prooued by statutes MAtter 's and suites for the title of Benefices ecclesiastical so they touch not the trial of the patronage do belong also to the knowledge and iurisdiction of a court ecclesiastical by the lawes of the Realme For conisance of voidāce of benefices 1 25. Ed. 3. pro Clero ca. 8. and the discussing thereof de iure doe belong to Iudges of holy Church and not to the Lay Iudge The Common 2 Treatise of constitu Prou. Legatine ca. 9. printed by Tho. Godfrey tempore H. 8 lawe doth mention fiue causes of auoidance of a benefice viz. death resignation depriuation creation and cession But whether it may be deemed void in law vpō any of the last foure meanes of auoidance is by the law ecclesiasticall determinable And by the bookes of the Common lawe 3 M. 22. Edw. 4. fol. 24. whether the Church be full or not full or the Clerke able or not able is triable in an ecclesiasticall Court Townesend For if an 4 Regist. in br orig pag. 55. b. inferiour Ordinary shal differ or refuse to admit or institute a Clerke presented and the Clerke bring his double Querele being of the nature in some sort of an appellatiō from the Archbishops court and the aduerse parte doe bring a prohibition the said Clerke may haue hereupō his consultation so that the court eccles by colour hereof deale not with the right of patronage of the benefice Likewise for spoliation of a
not haue conusance of the breach of an othe voluntarily taken is when there lieth an action for the matter whereof the othe was confirmatorie at the Common Lawe therefore it was holden by Brian 6 T. 22. Ed. 4. fol. 20. not long after that if a man sweare to pay twentie pounds that he oweth at a certaine time and pay it not and for the periurie be brought into the Spiritual Court there shall lie a prohibition because saith he an action of debt lieth at the Common Lawe I make this a seueral cause and reason from the former because an othe may grow vpon a Temporall matter which was the former cause and yet none action lie for it And if I promise without any consideration to giue you twentie pounds and binde it with a voluntarie othe it seemeth the Common Lawe will holde it still but pro nudo pacto and so giue none action at all But some occasion is giuen vnto me to thinke that courts Ecclesiasticall de facto howsoeuer de iure helde plea of breach of othe and of faith falsified which 1 Lyndw. in cap. aeterâ—…ae sanctio verbo fidei transgressione de poenis amounteth to asmuch in some respects as breach of a corporall othe euen when such othe or faith voluntarie taken was for confirming of a matter Temporall For this I finde not onely before the Writ was framed de recognitionibus per sacrament a non faciendis de catallis debitis quae non sunt de testamento vel matrimonio but afterwarde also and that aswel by iudgement as by opinions deliuered and reported for booke cases albeit with certaine cautions which shall by the way be touched First then that Ecclesiastical Courtes handled this cause long afore that Writte was deuised I finde in a 2 Prou. Constitutio 〈◊〉 sanctio de poenis Prouinciall Constitution made at a Synode holden at Lambhith vnder Boniface then Archbishop of Canterburie in the time of King Henrie the third Anno Christi 1260. which constitution I doe alleadge not as being of force now for the purport thereof because it aimeth at the bridling of the Kings Prerogatiue and of his Temporall Courtes but thereby historically to shewe what was then held and practised vsually The effect of it to this purpose is that whereas Prelats doe take Conisance of sinnes and of misdemeanours of such as be vnder their Iurisdiction as of Periurie or breache of faith of Sacriledge of violation of Church liberties for infringing of which euen by the Kings Charter graunted to the Church of England such disturbers doe fall into Excommunication ipso facto and of such like causes which be meerely of Ecclesiastical Conisance yet are prohibitions directed foorth out of the Kings Court and Iudges Ecclesiasticall are called thither to answere as if they delt not concerning Periurie and breach of faith but suggesting that they deale touching chattels Therefore a little after is added this viz. 3 Dicta Prou. Const. And if perhaps the King in his attachements prohibitions and summons shall make mention not of Tithes but of right of Patronage not of faith falsified or periury but of Chattelles not of sacrilege or disturbance of ecclesiasticall liberties but of some trespasse pretended to be done by his subiects or bailiffes the â—…edresse whereof belongeth vnto him then let the Prelates aforesaid make knowen vnto him that they holde no plea neither intend to do concerning right of Patronage or chattelles or any other things belonging to his court but concerning tithes sinnes and other meere spirituall matters belonging to their office and iurisdiction and tonching the safety of mens soules c. So that the trueth of such allegation being manifested to the king they thought the plea sound and sufficient to obteinea discharge from such prohibitions c. if they were in those respects onely granted Yea and Lindwood who writ anno 1423 and long after that writ was framed who also by reason he was Officiall principall of Canterbury or Deane of the Arches had good experience in these causes maketh no 1 Lindw ibidem V. periurio doubt but that matter of periury or of breach of faith arising vpon what cause soeuer so farre foorth as it concerneth doubt whether such oath were lawfull or not and doe binde in conscience or not is of ecclesiasticall conisance And therefore teacheth how the libell in that case is to be framed that no cause of prohibition be giuen viz. the partie hath damnably broken his oath made for payment of so much money vnlawfully pretending that hee is not thereby bound or tied The statute Circumspecte agatis saith defamation shal be tried in a Spirituall court when money is not demanded but a thing done for punishment of the sinne and likewise for breaking an oath without distinction whether it arose of a temporall cause or not Since the said writ we haue a iudgement in the very point in the time 2 Lib. 22. Assis. fol. 70. of king Edward the third For if a man demand a debt of tenne pounds before the Ordinarie for that the defendant plight his faith to pay it c. and hath not payd it but broken his faith the Ordinarie cannot enioyne him to pay the debt for sauegard of his faith and if he do he doth it against the kings prohibition But he ought to enioyne him other corporall penance except the partie will willingly redeeme it For so Fitzherbert 3 Fitzherberts Abridgement tit Prohibition num 2. readeth those last wordes of exception more truely then my booke of Assises as it is printed carying indeed therein no sense at all The like appeareth in the reigne of king Henrie the sixt for there it 4 34. H. 6. 70. vt Brooke allegat tit Iurisdiction num 2. was holden that if a man buy an horse of me and sweare vpon the Euangelists to pay me ten pounds for him such a day and pay it not I shall haue action of debt at the Common law and also a citation pro laesione fidei at the Spirituall law and shall not therein offend the Common law because they are diuers things As for opinions afterward we finde it was held by Brian and Litleton in the time of K. Edward the fourth none there gainsaying it that 1 M. 20. Ed. 4. foâ—… 10. in laesione fidei arising vpâ—… a temporall matter the Spirituall court might punish it ex officio but not at the suite of the party To the same purpose also Mordant said in the time of K. Henrie the seuenth 2 T. 12. H. 7. fol. 22. that if a man be sued in a Court ecclesiasticall by a party pro laesione fidei in not paying a summe of money promised there shall lie a prohibition but if the Iudge ecclesiasticall shall do it ex officio then no prohibition shall lie which no man gainsaid or impugned These two opinions lest they should seeme to crosse the former iudgement in the booke of
layde downe in the printed Register especially by these wordes of them Recognitiones sacramenta provoluntate sua ipsis inuitis For full answere whereof to auoyde vnnecessarie length and vaine repetition I must referre the Reader ouer vnto the xj and xij Chapters in the first parte of this Apologie He affirmeth also that the practisers of such oathes are for that cause in a Pramunire and therefore gathereth the oathe to be contrary and repugnant to the common lawe I graunt the consequence to be good and sound but how doth hee prooue them to be thereupon in a Praemunire For proofe of this he assumeth that this manner of oathe is contrary to the Queenes regalitie and crowne as if his reasons afore brought had sufficiently euinced so much which wee doe vtterly and resolutely deny vnto him And yet as if he had fully cleared that point he addresseth himselfe to prooue that whereof there was lesse controuersie viz. that what is done by a Bishop or by an Ecclesiasticall Court against the Kings regalitie and crowne hath beene heretofore adiudged to be within the compasse of this worde Alibi contained in the Statute of Praemuuire 16. Ric. 2. For this he alledgeth two books of the common law yet 1 5. Ed. 4. sol 6. Praemunire the first of them doth but speake of an excommunication by a Bishop not of euery dealing whatsoeuer in a matter belonging to the Kings regalitie And what if it had beene twise so adiudged both of them in such corrupt times when as the royall prerogatiue of the Kings of this land to be Supreme Gouernours in all Iurisdiction Ecclesiasticall due to them in right and by Gods Lawe was not de facto vnited to the crowne For the Bishops then did not claime their Iurisdictions Ecclesiasticall next and immediately vnder God from the Crowne as now they doe But seeing this parte of Regall power is nowe no lesse truely and fully vested in the crowne then is the Temporall so as the Lawes allowed for the gouernement Ecclesiasticall are termed by sundry Parliaments The Queenes Ecclesiastical lawes and Lawes of the Realme as well as those which were first and originally made heere And the Bishops are proued to haue their authoritie and Iurisdiction Ecclesiasticall deriued downe vnto them from the Queenes Highnes vnder the great Seale of England as vpon fundrie incident occasions hath beene shewed afore Is it then the like reason still to comprise their Iurisdictions and Courts vnder that word of Alibi as if their Courts and Iurisdictions were not nowe the Queenes nor yet belonging vnto her Regalitie Nay let such as shall so affirme beware they incurre not hereby the danger of implied if not direct denyall of a part of her Highnesse Royall stile and the breach also of their oathes taken for assistance and defence of all Prerogatiues c. vnited or belonging to this Imperiall crowne Yea and though this might be truely verified of ordinarie Courts Ecclesiasticall yet is there no colour at all so to affirme of the Commission Ecclesiasticall exercised vnder the great Seale of England by force of the same Statute that restores the Supremacie Ecclesiasticall to the Crowne I omit here what is touched else where viz. howe by sundry learned it hath bene thought that by Alibi there was encluded or meant nothing els but matters of that quality there specified which were enterprised by and vnder the Papall authoritie though the Pope perhaps resided not then at Rome it selfe Therefore seeing this is not pregnant ynough for him to driue this matter neerer home to his purpose hee sayeth it is against the Kings Regalitie and so a Praemunire for an Ecclesiasticall Court to holde plea of a matter appertaining to the Iudgement of a Common Lawe Court or to deale in any cause not belonging to Ecclesiasticall Iurisdiction The first of these he prooueth by the pardon sued by Barlow Bishop of Bathe and Welles in king Ed. 6. his time by reason hee had depriued the Deane there being a meere donatiue of the Kings If there were but any probable doubt whether thereby hee were fallen into a Praemunire it was wisedome for him to procure a pardon afore hand if he could Alealitis resincertissima yet depriuing of one placed by the King is much more then bare holding of some plea that appertaineth to a temporall Court besides that there was a further matter in it then I last here to open The other allegation of his to like ende taken from a 1 38. Ed. 3. of Prouisours Statute doth make no shew of proofe thereof for it is but thus viz. the King chiefly desireth to susteine his people in tranquilitie and peace and to gouerne according to the Lawes Usages and Franchises of his land as hee is bound by his oathe made at his coronation And are not Ecclesiasticall persons nowe parte of the Queenes people Are not the Liberties and Franchises that bee giuen and confirmed vnto them by the goodnesse of Princes for holding plea in certaine matters the vsages of this Realme Are not the receiued Lawes which lawfully they may practise termed Ecclesiasticall Lawes of this Realme no lesse then temporall be And is not the Prerogatiue royall in and for causes Ecclesiasticall as high and as rightfully setled in the Prince and incident to her Highnesse Crowne and Regalitie as the same is for temporall power and authoritie What cause is there then seeing seu Alibi in the Statute signifieth in true construction anie place whatsoeuer besides Rome that euery holding plea by an Ecclesiasticall Court of a matter wherein it ought not to holde shoulde at this time bee reckoned a thing contrarie to the Queeenes Regalitie more then dealing in an Ecclesiasticall cause shoulde bee in anie temporall Court at Westminster For no Statute of Prouision or Praemunire assigneth these for causes which haue indeede but growen since by collections whiles the Popes vsurpation was continued in this land against which oftentimes the remedie by Prohibition coulde not serue the turne I graunt it is a contempt or great misprision in any but for this a Prohibition and attachment thereupon c. as afore those Statutes they did might sufficiently serue the turne Neuerthelesse all these matters are wholly impertinent to his purpose till he shall haue prooued the particular issue viz. that such oathe as wee treate of is against the Queenes Regalitie c. But if that might be prooued then vpon so generall interpretation of Alibi these oathes would fall into the case of Praemunire by what Court soeuer whether temporall or Ecclesiasticall they should be tendered And that which he vowcheth to the same effect out of Saint Germans booke of Doctor Student receiueth the like answere In the next place I set some of the Treatisors reasons that are made by collection and discourse of reason These collections he maketh partly from examples past and partly at large therefore touching the first of these two he impugneth these oathes and would prooue
saide affirmatiō in that he confesseth Wolsey did grant benefices by way of Prouision for thereby he was within the very letter of the Statutes of Prouision and Praemunire and so consequently he preiudiced also the Kings regalitie and crowne and not Ecclesiasticall courts alone Yea and what is all this to the imposing of an oathe that we treate of seeing if it were true that euery practise of Antichristian decrees and Popish Canons were a Praemunire yet it may be truely affirmed that the very temporall Lawes of this Realme do allow vnto Ecclesiasticall Courts to minister such oathes as shall be prooued in the next chapter therefore not to be said to be practised by vertue of Canons only And also for that no Canons that are agreeing to those conditions and qualities which are required by the 1 25. H. 8. 27. H. 8. Statute of Submission of the Cleargie are Antichristian or Popish or foreine Lawes but are the Queenes Ecclesiasticall Lawes and Lawes of this Realme no lesse then such as were originally made within the land as is afore by occasion 2 Vide 1. part ca. 14. pag. 102. 103. shewed and prooued Insomuch as the Note-gatherer himselfe calleth them the ecclesiasticall Lawes of England Hee also telleth vs as to this purpose of a complaint by the Commons made 21. H. 8. vnto the said King touching grieuances by the Clergie offered but telleth not that it was this matter nor how iust or vniust the complaint was found to be nor yet of any remedy therein giuen He discourseth also of the particulars of an other complaint likewise made 23. H. 8. but hee doth not assigne oathes tendered in some criminall matter to be any part of that complaint The Note-gatherer saith the L. Audley then chosen Speaker did exhibite it and that it was for proceeding ex officio albeit the Treatisour do tell vs of many points besides which belike if he had pēned that complaint it should haue conteined This I haue answered in the second part of this Apologie Another reason by way of collection the Treatisor maketh at large thus viz. What if a Iustice by colour of his office should offer this generall othe to answer to all he will aske commit the partie refusing coulde any man iustifie his doing but rather crie out against him as a subuerter c Well howe strange a course soeuer hee maketh this and therefore so cryeth out neuerthelesse it may bee that little better hath beene vsed by some Iustices of Peace But I neither accuse any thereof nor wil excuse either them or any others which shal so deale either from the Treatisors or from any other mans outcries so that in this point we both agree But in one part of his Treatise he gathereth also thus against practising of Canons in ministring oath No Canons 1 25. H. 8. ca. 19. may be practised but such as be not contrary nor repugnant to the Prerogatiue royall nor to the lawes and Customes of this Realme but this Canon Law is not any part or portion of such lawes Whereupon it seemeth he would haue his Reader to conclude that no Canon at al may be practised First it is vntrue if you take the Canon Law indefinitely for all Canons absolutely and indistinctly to say that it is no portion of the Lawes and Customes of this Realme as hath bin afore shewed yea there was here an vse and custome thereof long afore it was accounted any parte of the Lawe of the Realme Secondly there be quatuor termini in this reason Lastly it consisteth all of Negatiues In both which respects it is vtterly inconcludent So that by all hitherto deliuered wee may perceiue that albeit there bee some diuersitie in sundrie the courses of proceeding betwixt the Ecclesiasticall and the temporall Lawes yet there is found not so much as any great diuersitie in the very point which is of ministring oathes in certaine criminall causes and much lesse is there any contrarietie or repugnancie in that behalfe Besides there is not so great diuersitie betwixt any part of the law Ecclesiasticall being now of force within this Realme and the Lawes temporall as is betwixt sundrie points of the customs of London the customes of the Stannerie the customes of Kent the customes of Halifax both in trying and executing offendors and by dealing by vertue of the Queenes Instructions at the Counsell of the Marches of Wales on the one side and betwixt sundry parts of the Common lawe on the other side as might but for auoiding of tediousnes by sundry particulars be exēplified yet none of those which practise thē are by reason of any such notable diuersity only thus threatned with danger of Praemunire In the last ranke of matters brought by him to this purpose I doe marshall the Treatisours shifting answeres vnto such obiections as himselfe imagineth will be or may be made by those who defend this kinde of oathe whereof we are now treating First to the obiection made of the like oathes ministred to defendants in causes criminall both in the Courts of Starre-chamber and Chancerie he answereth that if it were graunted that the like oathes be there vsed yet would it not followe that the same might be practised in courts Ecclesiasticall and why would it not followe vnlesse sayth he the like allowance thereto and consent of the whole Realme might be prooued Belike if it were not most euident he would also denie the like oaths to be vsed in those two courts The whole Realme is sayde to allowe and to consent vnto that which is enacted by Parliament Shall the same course then vsed also in the Chancerie that hath none Acte of Parliament to establish it be vnlawfull in his iudgement for hee cannot say that the whole Realme either indeede or representatiuely hath giuen consent hereunto albeit the prescription thereof be most ancient because al euery one in particular haue not had from time to time iudiciall matters there But yet since this prescription is good and will serue to mainteine that course there why shall it not also alike serue for Ecclesiasticall courts which haue reteined the practise of such oath beyond all memorie of man and beyond most Records nowe extant Neuerthelesse there be also Acts of Parliament to warrant the practise of these oathes in courts Ecclesiasticall vnlesse they could be prooued to be either contrary or repugnant to the Prerogatiue Royall or else to the Statutes lawes and customes of this Realme Neither yet are the examples of Starre-chamber and Chancerie to any other ende by vs alleaged but thereby onely to shewe that such defendants oathes inferring confession of some his owne crimes is neither to be holden vniust vnlawfull vnequall barbarous cruell nor yet Antichristian or Popish as they be challenged For a second answere hereunto he sayth that examples and Precedents be weake where an expresse lawe or certaine policie is to the contrary as if he should say though these two high
contrary to any the lawes or policie of this land Let 1 Constit proude haereticis c nullus no man saith that Constitution presume to dispute c. against othes which are made either in Ecclesiasticall or temporall Courtes in cases accustomed and in vsuall manner c. and from henceforth let it be commonly taught and preached that oathes may lawfully be taken by all to whom it appertaineth by touching the holie Gospels and vpon them in all cases by law expressed and which are vsual in both courts Seeing then it is most apparant that the oathes which wee here dispute of are both expressed and prescribed by lawes Ciuil and Ecclesiasticall and were also there vsed both at the very time of such Constitution and long afore it wil hereupon follow that the like oaths were then also vsed in temporall Courts and were by that Constitution aswel alowed vnto Ecclesiasticall courts as they were in their owne temporall courts Which thing is so much the more manifest in that a little Treatise purposely compiled I take it by Saint German in the time of king Hen. 8. euen against sundry such Constitutions both Legatine and Prouinciall yet saith thus of this very point viz. 2 A Treatise concerning Constit. Prouinciall and Legatine ca. 23. printed by Tho. Godfrey though such a mans saying viz against vsuall othes in both courts be vntrue yet it is none heresie He yeeldeth then that in all cases then accustomed in both courts othes might lawfully and also ought to be taken The practise of this oathe as in all former times so was it also receiued and vsed in the time of king Henry the eight as well after the Papacie was ouerthrowne heere as afore and so hath it continued euer since And after his time the 3 Actes and Mon. 2. edit 2. tom fol. 1495. Lords of the Counsell finding Bonner thē B. of London somthing slack in his duty did enioine him to cal afore him al refusers to come to diuine seruice to search out conuent punish al adulterers according to the ecclesiasticall lawes The 1 Ibid. fol. 1501. kings commissioners visiting the Church of Paules did examine al thē of that church by vertue of their oathe touching their doctrine and conuersation of life Wherevpon one Iohn Painter and others did confesse adulterie euen by themselues to haue bene committed yet this was a generall enquirie The Kings 2 Ibid. fol. 1511. commission to proceed against Bonner affirmeth that the commissioner shal proceed aswel by meere office as also by way of denūciation by either of thē or by any other means by their discretions By vertue 3 Ibid. fol. 1512. whereof they charged him w t a corporal oath ex officio in form of law to answer the positiōs that shuld be ministred which vpon his oath takē were after ministred vnto him But 4 Ibid. fol. 1516. for that he would not answer them fully he was pronounced contumax pro confesso was remaunded backe to prison as afore The 5 Ibid. fol. 1536. proceedings about that time also against Ste. Gardiner the oath ministred to him was ex officio in matters criminal penall as appeareth by the sentence of depriuation from his Bishopricke of Winchester And yet besides Bishops there were some of the Kings counsell some Ciuilians and also some Iudges of the land and other common lawyers who were then commissioners in that cause and knewe the lawes as sufficiently well as any doth which now impugneth this course In her 6 Circa 3. aut 4. regni domninae Elizabethae reginae Maiesties time that now is a special cōmission was directed forth by her highnes vnto certaine great persons both ecclesiastical lay wherof diuers were of the priuy counsel to proceed by way of enquiry ex officio against 2. great honorable personages in a cause of correction for incontinency for so the commission did runne Whereupon they were accordingly called and proceeded with and were put to answer the criminal articles vpon their corporal oaths Not onely at all general visitations holden in the beginning of her Maiesties reigne by speciall commissions grounded vpon the stat 1. El. c. 1. but also euer since by vertue of the commissiōs ecclesiastical this course of exacting such oaths hath bin practised and continued was it then so long together against papists and other delinquēis a most iust necessary oath such as against which no good subiect bearing the name of a professor of the gospel euer did open his mouth in any dislike and is it now become on a sodain a bloudy cruel vniust more then Spanish Inquisition bicause a few vaine factious Reformatists are vrged with the selfe same maner of oath Belike lawes themselues are but partial which in respect of acception of some mens persons doe so quickely turne their nature from sweete to sower and from iust to vniust When D. Grindal late Archb. of Canterb. was B. of London he cōplained to the Lords others of her Ma. most honorable priuy coūsel for that by vertue of the cōmission ecclesiastical he could not so duly thorowly proceed to the discouery punishment of certaine knights other great possessioners being Recusants as he ought because som Ciuilians common lawyers supposed thē by him to be like affected did sinisterly animate and aduise them not to take oath to answer vnto any articles obiected ex officio vnlesse some fame by presentment or such like were first found against thē which would proue said the B. a long troublesome and chargeable course if it should be pursued seing some of thē dwelt in remote places of the Realme where as the people also stood like affected so that they would neuer be induced to make any such presentment or discouery and yet that the matter was by denunciations by vehement presumptions and by good euidence giuen vnto the commissioners sufficiently otherwise detected or was so notorious as that by lawe they might ground an Enquiry of office against thē as by others no lesse sound Lawyers he was informed For redresse whereof and for furtherance of Iustice it pleased their honorable LL. to cal som both of the Ciuilians cōmon lawyers afore thē to the Counsel boord that had giuen such aduise thereupon three of the doctors and one counsellor at law were by thē cōmitted to the Fleet. which I think some of their honorable LL. others yet remaining can do wel remember By al which here premised it doth appeare how sufficiently manifoldly our intention in this behalf is grounded likewise to how smal purpose the Treatisor resoneth where he gathereth that ecclesiast courts must be restrained by the Q. prerogatiue roial common lawes in that their iurisdiction is from the Crown Considering none of the defenders of this oath wil deny either the antecedent or consequence hereof But that which couertly he would thēce inferre
AN APOLOGIE FOR SVNDRIE PROCEEDINGS by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuersly by them impugned By which Apologie in their seuerall due places all the Reasons and Allegations set downe as well in a Treatise as in certaine Notes that goe from hand to hand both against proceeding ex Officio and against Oaths ministred to parties in causes criminall are also examined and answered Vpon that occasion lately reuiewed and much enlarged aboue the first priuate proiect and now published being diuided into three partes the first part whereof chieflie sheweth what matters be incident to Ecclesiasticall conisance and so allowed by Statutes and Common law the second treateth for the most part of the two wayes of proceeding in causes Criminal viz. by way of Accusation ex officio Iudicis the third concerneth Oaths in generall but more specially the lawfulnesse of such as be ministred touching supposed offenses either of themselues that sweare or of their brethren Respectiuelie submitted to the graue iudgements of the reuerend Iudges and other Sages of the Common lawe of Iudicious Professors of the Ciuill lawe and of the right reucrend Prelates and other grounded Diuines in this Realme Whereunto for the learneds sake and for similitude of Argument and Iudgement I haue presumed to adioine that right excellent and sound determination concerning Oaths which was made by M. LANCELOT ANDROVVES Doctor in Diuinitie in the common Diuinitie Schoole of the Uniuersitie of Cambridge in Iulie An. 1591. Lex iustitiae Iustitia Reipub. basis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie THE GENERALL Preface conteining the Occasion and generall distribution of this Treatise following before it was meant to make it publike THE indeuours of such disturbers as haue bene the chiefest staies of a further propagation of the Gospell and the onely staines of her Maiesties happie reformation haue rested most in aduancing a new found discipline in discrediting the present gouernement Ecclesiasticall by their speeches and writings The later whereof they haue gone about as well by impugning the callings and forme of gouernement Ecclesiasticall as if they were contrary to Gods word as also by defacing the persons of the Gouernours with vnchristian gibes contumelies and other indignities But these succeeding not to their wish nor sorting to that effect they purposed sundry of thē haue entred into pursued a more politike course for by thēselues others more simple excited cunningly by them they chalenge diuers receiued proceedings in Courts Ecclesiasticall not to bee iustifiable by lawe pretending now their especiall griefe to rest herein for that they are delt with and oppressed contrary to law euen as if they did carie a principall and zealous care to haue all her Maiesties lawes dulie obserued By whose frequent clamours some very graue wise and learned no way affected to their other fansies either not being well informed of proceedings Ecclesiasticall or not weying for want of leisure certain points seeming to bee doubtfully reported in the bookes of Common lawe so throughly as their great learning therein doeth affoord in a kind of commiseration for so I interprete it towards some of those who seeme distressed and to be otherwise well meaning men haue lately called into question diuers proceedings Ecclesiastical both for matter and for circumstance or maner that they are contrary to the lawes of this Realme Yet all of them doe not iumpe in the selfe same opinions hereafter touched For they are seuerally holden by seuerall men the most whereof are stood in by men of meanest place and reckoning in that studie and such as are knowen to bee ouermuch addicted to factious innouations But all the chalenges whatsoeuer for contrarietie vnto the lawes of the realme only so farre foorth as they are hitherto commen to knowledge may fitly be reduced into this order summe They tende to the chalenging of proceedings Ecclesiasticall done either by those who proceed by her Maiesties immediate Commission who are either Iudges delegates dealing in matters onely betwixt partie and partie brought before them by appellation or Commissioners in causes Ecclesiasticall seruing especially for punishing of crimes offences or els such as be executed by those who deale in ordinary iurisdiction The exceptions that touch the very matter and obiect of Ecclesiasticall iurisdiction do in very deed by necessarie consequence tend either to the whole taking away of the Ordinarie iurisdiction as where it is affirmed that no Canon constitution nor ordinance prouinciall whatsoeuer may now be put in vre without her Maiesties expresse assent first had to execute the same or els do reach to the taking of it away but in part Those opinions that tend to the abridging of it but in some part doe goe about it partly by way of excluding Ecclesiasticall Iudges from the handling of certeine matters as by holding that none Ordinarie may cite any whomesoeuer but in causes Testamentarie and Matrimoniall and that no Lay man ought to be cited or summoned to appeare before any Iudge Ecclesiasticall to take an oath in any other cause then Testamentarie or Matrimoniall And partly by deriuing them from the conisance Ecclesiasticall vnto other Courts as that the iudgement of heresie now lieth rather in the Common law then in the law Ecclesiasticall and some other of them being defended by the same men that holde the next precedent opinion doe tend both to the excluding of Courts Ecclesiasticall and to the diuerting of such causes another way as that nothing now can be adiudged heresie but according to the statute 1. Eliz. cap. 1. As for the exceptions pretended to be taken from the lawes of the Realme against the circumstances or maner of proceeding in courts Ecclesiasticall they do either concerne such points as goe afore and are preparatories to the suite such is this that the Queenes Maiestie cannot giue nor any man receiue authoritie to vse any other processe in matters Ecclesiasticall then by citation Or do touch the maner of entring into the suite as that an Ecclesiasticall Court may not proceed without accusation or presentment and that Lay men may not be cited ex officio in any cause but Testamentarie or Matrimoniall Or they concerne the maner of handling and proceeding in the suite as that If a matter be duely presented against a man he may not be examined vpon his oath whereunto some belike meaning to qualifie and distinguish it do adde this viz. in a matter of incontinencie or such cause and that no man is bound to declare any matter against another except some be an accuser Or do concerne the sentence or iudgement of the Court Ecclesiasticall as that by none Ecclesiasticall authoritie a man may be depriued of his benefice being his freeholde being not endited and no suite of partie offered against him Or els doe touch the execution of the iudgement as that the Q. Maiestie cannot giue nor any man may take authority of
in sundry precedents of this kinde of writtes is onely conteyned 3 Reg. in br orig pag. 65. a. 66. a. 69. a. that the partie was excoÌ„municated propter suam manifestam contumaciam but what was the cause originall of his conuenting out of which such contumacie grewe is not at all declared and yet the certificates were allowed to be good in lawe Likewise in another precedent of the same writ though some more particularitie be founde yet is it left so generally as the certaine and speciall cause cannot thereby be knowen vnto the Court to which it is directed For it is 4 Ibid. pag. 65. b. certified that a partie was excommunicated propter suam manifestam contumaciam in non parendo certis mandatis licitis sibi factis but what those mandata were is not touched And as these Certificates doe only in generality mention the parties contumacies and disobediences so is there also a precedent there of crimes themselues certified but in a generality whereupon a writ of excommunicaâ—…o capiendo was neuerthelesse awarded For it is 1 Ibid. pag. 66. b. testified that a Clerke excommunicated propter manifestas offensas suas was appointed to be attached and thereupon imprisoned Notwithstanding this be a speciall right and libertie of this Church of England yet is not this writte de excommunicato capiendo alwayes to goe foorth and vpon euery certificate whatsoeuer of a Bishop or of other thereunto authorised albeit the certificate be contriued into neuer so due forme For if he 2 Reg. in breu orig pag. 67. b. in breu Iudic. pag. 39. 71. b. 72. 〈◊〉 s. that did excommunicate be himselfe for some supposed contempt to be attached at the suite of the partie certified then shall the execution of the attaching of the partie excommunicated be respited till the other plea of the Ordinaries attaching be determined least otherwise the parties suite against the Ordinarie should be hindered by his imprisonment Yet it is 3 Nou. nat br pag. 64. 65. f. to be vnderstoode that a Bishop shall haue Significauit vpon his owne certificat touching an excommunication for contumacie incurred euen in his predecessours time But albeit the certificate be duely made and the writte de excommunicato capiendo be thereupon awarded foorth yet if there be loose or corrupt execution thereof by the Sherife or by his vnder officers both the endeuour of the Bishop and care of the Queene to haue contemptuous persons iusticed are wholy frustrated Though this carelesnesse in times past were not so common as nowe it is yet it 4 Reg. in br orig pag. 65. a. seemeth by the Aliâs and Pluriès in the Register that Sherifes and their vnder officers were then also slacke ynough to perfourme this part of their duetie howbeit it is testified by the Kings writ in this behalfe 5 Ibid. pag. 65. b. that the vndue execution of it redoundeth in contemptum manifestum regis episcopi damnum non modicum grauamen ac iuris Ecclesiae suaelaesionem manifestam In which regard such a negligent Sherife is by lawe vpon a writ to be called into the Court whence the writ issued there to answere such his contempt The effect of the writ de excommunicato capiendo when he hath his due course and execution is double First vpon the very certificate of the Bishop the partie excommunicated is to be debarred action in all the Queenes Courts Yet if vpon an 1 Nou. nat br pag. 65. d. appellation by him made from the sentence of excommunication he be deliuered out of prison or haue a Supersedeas thereupon then is he not to be barred from action in respect of such certificate or of the sentence of excommunication Secondly the 2 Reg. in br orig pag. 65. a. b. partie is to be imprisoned by his body Per corpus suum secundum consuetudinem Angliae iusticies donec c. This iusticing by body according to the custome of England is committing to prison and that 3 Westm. 13. Ed. 1. cap. 15. 5. Eliz. cap 23. without baile or mainprise Nither 4 Nou. nat br pag. 66. e. doth the writ de homine replegiando lie in this case Now a man being thus in prison I finde in law but two meanes of his deliuery The first is by submitting himselfe to the bishop This submission may be in two sorts either by present satisfaction at or immediately vpon his deliuery or by caution put in that he will hereafter performe it Quia vicecomes saith a 5 Regi in br orig pag. 67. a. writ in the Register nulla inde facta satisfactione aut praestita cautione prout moris est de parendo mandatis ecclesiae in forma iuris quosdam deliberauit idcirco c. where we also see to what end the caution by the party excommunicate must be put in agreeably to sundry 6 Ibid. pag. 65. b bis 66. b. 67. a other precedents of this writ viz. de parendo mandatis ecclesiae in forma iuris Which is to performe that which the bishop shall reasonably and according to law enioyne vnto him For it was thought most inconuenient that he who had resisted the course of law contumaciously persisted in excommunication vntill his imprisonment should now be trusted without good security first giuen afore his deliuery This clause of those writs in the Register Fitzherbert 7 Nou. nat br pag. 63. c. doth translate thus into French viz. de estoier obeier les ordinances rules de seint esglise Vnder the clause in formaiuris is that other part of submission conteined which is prescribed by the law ecclesiasticall in this case of submission and of giuing caution viz. de parendo iuri This appeareth by that writ in the 8 Reg in br orig pag. 66. b. 67. a Register where a clerke imprisoned vpon the significauit offered caution to his ordinary the bishop of Elie de parendo iuri but yet could not thereupon alone be deliuered for that he expresly refused to satisfie tam de iniuria ecclesiae illata quà m de contemptu as the writ required This forme de contemptu iniuria is not only here but in 9 Reg. in br orig pag. 65. a. b. 68. a. other precedents also of this writ obserued as they be recorded in the Register And in another writ by words more generall yet tending to the same purpose viz. 1 Ibidem 65. b. ad satisfaciendum Deo sanctae ecclesiae sufficientem exposuit cautionem To satisfie God viz. for his continued contempt of the keies power of his church and to satisfie the church aswell for the euill example and scandall giuen as for the needlesse charges that he had put the officers vnto to bring him to conformity For it seemeth when a caution was put in onely thus de parendo iuri mandatis ecclesiae in forma iuris that by reason of the generall
the Realme the Treatise of the Liberties of the Clergie a man defame or publish one for false an adulterer or vsurer he may be sued in court ecclesiasticall And another Treatise published also in king Henry the 8. time by a common Lawyer saieth thus 3 That the bishop of Rome c. cap. 3. printed by Berthelet In some cases of diffamation and slander the kings courts and in some cases the Clergie haue holden plea thereof Therefore I doe the more maruell the lawe being so plaine at the Note that is set 4 Nota in Reg. pag. 54. b. downe in the Register touching this matter viz. All the Iustices are against a Consultation in a case of diffamation which is spoken indistinctly and indefinitely and therefore more generally perhaps touching any diffamation what so euer then the Iustices meant or then by Statutes and lawe may be warranted It may be that a booke case of Henry the 4. gaue occasion of this mistaking being not throughly weied for at first sight it seemeth to sound as if no diffamation at all were of ecclesiasticall conisance And so 5 Tit. Consultation nu a. alibi euen Brooke in his Abridgement seemeth to take it But the trueth is by that case is onely meant that such diffamation as ariseth vpon a Temporall matter is not of ecclesiasticall conisance which is the first exception of the generall rule set downe in the Statute of Circumspectè agatis where is sayd that diffamation shal be tried in the Spirituall court And that the said case is to be restrained to such diffamation onely will appeare most plamlie to him that considereth the scope of 6 M. 2. H. 4. fol. 15. Hankefords argument The Vicar of Saltashe had giuen an othe before the Popes Collecter in confirmation of an obligation by him made The Deane of Windsor sued the Vicar before the Collecter prolaesione fidei the Vicar purchased a prohibition Hankeford to maintaine this prohibition argueth that the periurie couldnot bee sued in an ecclesiasticall court for that it arose vpon a temporall cause Adding for proofe of his saying that himselfe had a matter vpon the like reason ruled for him and against the Archbishop of Canterbury H. 14. Edw. 3. par attachment sur Prohibition c. de ceo que il suist en court Christian pur diffamation The matter then was not ruled against the Archbishop simply for suing diffamation there but of such a kinde of diffamation For else this would not haue fitted the purpose of Hankefords argument because hee hauing to prooue that laesio fidei arising vpon a Temporall cause might not bee sued in an ecclesiasticall court could not make any colour of that assertion by alleaging of a iudgement that no diffamation at all might bee prosecuted there for that is not the like reason And therefore as that laesio fidei arose on a Temporall cause so did the diffamation there spoken of for which a prohibition did lie without Consultation That diffamatorie words touching a temporall cause may not be sued in court ecclesiasticall we haue also a prohibition 1 Regist. fol. 42. b in the Register without any Consultation granted For whereas one gaue witnesse in an Inquisition made by the king about his exchange in Yorke the partie touched sued the witnesse for diffaming him in a court ecclesiasticall whereupon the witnesse brought a Prohibition by reason the matter was a Temporall cause By Statute likewise it is 2 Ed. 3. c. 11. enacted that a Prohibition shall lie if a man be sued in court ecclesiasticall for diffamation in that hee endited the other I finde also another cause why some diffamation may not be sued in a court Ecclesiasticall and that is when action therefore lieth at the Common lawe As 3 P. 18. Ed. 4. fol. 6. where a man brought Action of trespasse for goods taken away the defendant hereupon sued him in a spirituall Court for diffamation But Hussey the kings Atturney in behalfe of the Plaintife desired a Prohibition because the plea in Court Christian was mooued the suite hanging there and had it graunted Quod nota So if I be robbed and speake of him that robbed mee before others so that hee sueth mee in a spirituall court for diffamation there lieth a Prohibition because I may haue an Action at the Common lawe videlicet mine appeale of the robberie There be also in the booke of 1 Booke of Entries tit Prohibition Entries precedents of Prohibitions granted agaynst those that for diffamation prosecuted such in court ecclesiasticall as sued them in temporall courtes for maime and for forging of euidences So that wee may conclude this point that out of the cases excepted the rule of Circumspecte agatis and Articuli Cleri for diffamation to bee of ecclesiasticall conisance hath place euen by allowance of the common lawe There resteth yet one point belonging to this place fit to be cleared There is alleaged for other purposes by the Note-gatherer a little olde printed Treatise Concerning the power of the Clergie and lawes of the Realme In which the Statute of Circumspectè agatis both here and elsewhere by me alleaged is auouched to bee no Statute but a bare constitution The words 2 Of the power of the Clergie and lawes of the realme cap. 8. bee these Wee neuer sawe any proofe that Circumspectè agatis was a Statute or taken out of the kings answeres and there bee in the sayd treatise diuers things that bee directlie agaynst the lawes of the Realme as it is in this point That Prelates for fornication auouterie and such other may sometime assigne bodilie paine and sometime pecuniarie payne And the lawe is that Prelates shall neuer assigne pecuniarie payne for correction of sinne but onely at the desire of the partie And also it is recited in the sayd Treatise that if the Prelate of any Church or his Aduocate aske of the person a pension that the suite should bee in the Spirituall Courte and the lawe of the Realme is euen to the contrarie And we thinke that if it had bene a Statute that the lawe should neuer haue bene vsed therein so directlie agaynst the Statute as it hath bene vsed And in the nineteenth yeere of King Edward the third in a Writte of Annuitie brought in the Kings Court against the sayd Article of the sayd Treatise it is sayd that the sayd Treatise is no Statute but named so to bee by the Prelates And also the sayde Writte of Annuitie is iudged to bee maintenable in the Kings Courte and that is directlie agaynst the Treatise of Circumspectè agatis wherefore wee thinke it is no Statute The verie like wordes are also vsed I thinke all by one Author in 1 Ibid. cap. 8. another Treatise of constitutions Prouinciall and Legatine Nowe in that to prooue it no Statute he saieth There bee in it diuers things directly against the lawes of the realme seemeth to me a strange reason As
may belong to a temporall Iudge at least touching the corporall penaltie but not concerning the censures of the Church that ought to bee laied vpon such 7 15. 6. Ed. 6. cap. 4. Concerning fighting quarelling and brawling in Church or Churchyard the Ordinarie in some degree is to punish it by suspension ab ingressu ecclesiae in a laie man and from ministration in his office in a Clerke and in another degree in either sorte Laie or Ecclesiasticall by denouncing the partie offending to bee excommunicate ipso facto by vertue of that Statute Dilapidations likewise waste made vpō a liuing Ecclesiasticall are determinable 8 13. Eliz. ca. 10. punishable by Ordinaries For the Statute made in her Maiesties time for remedy in Dilapidations prouideth that as afore by the lawes Ecclesiasticall iust actions and remedies might bee had against executors and administrators of deceased incumbents so they should by vertue thereof bee vsed against alienees and donees of the goods of such incumbents The Treatise of the Clergies liberties saieth that for 1 Liberties of the Clergie by the lawes of the Realme Dilapidation the parson may sue in courte Ecclesiasticall the executors of his predecessor So at the 2 M. 2. H. 4. sol 9. Common lawe Tirwhit did hold that if an ecclesiasticall person make waste of his benefice he shal be deposed as a Dilapidator of his Church But deposition cannot be iustified but by authoritie ecclesiasticall Those crimes which I sayd were opposite to sobrietie in a mans owne selfe are also punishable by ecclesiasticall authoritie 3 Stat. Circumspectè agatis 13. Ed. 1. For the Clergie are not to be punished for holding plea in court Christian of such things as bee meerelie spirituall that is to wit of penance enioyned for deadlie sinne as fornication adulterie and such like In which words of such like I doubt not but other incontinencies as Incest Stuprum and Polygamie be also vnderstood being all more grieuous then fornication and two of them more execrable then adulterie And so doeth Lyndwood interprete the word huiusmodi such like that 4 Lyndw. V. huiusmodi c. Circumspectè de foro competenti is to say saieth hee Incest whoredome and others which be contained vnder the sinne of Lecherie And to these are to bee added other crimes which also are to bee handled and punished in a court ecclesiasticall as namelie Sacrilege Usurie Heresie Simonie and Periurie to 5 c. Ecce 23. q. 4. which an old Canon also addeth such offenders as be Inspectatores nugarum and consulters of Starre-gazers Phanaticall persons Wisardes Fortune-tellers Drunkards and Idolaters And to make it more plaine that all vnlawfull companie of man and woman not being capitall by the lawes of the Realme is subiect to the Iurisdiction ecclesiasticall the 6 5. Eliz. ca. 23. generall worde of Incontinencie which comprehendeth all is vsed in the statute De excommunicato capiendo In the 7 Reg. sol 45. a. 57. b. Register there bee two precedents of Consultations granted in causes of Fornication agaynst which in both the Iudge also proceeded of office And the treatise of Clergie liberties saieth 1 Gooddall of Clergie Liberties Though a bishop may not visite the Kings free Chappell yet he may cite and punish the Chaplaine thereof for keeping a concubine Heare also what another olde Treatise written by a common Lawyer in those times 2 An answere to a letter cap. 1. Printed by Tho. Godfrey tempore H. 8. saieth in this behalfe viz. the Clergie ought to haue correction as of crimes meere spirituall of auoutrie fornication Simonie and Vsurie and to order matrimonie tithes oblations and periurie in some case and of diuers other things whereof it is no doubt but they haue holden plea in times past rather by a custome and by sufferance of princes then for that they be meere spirituall or that they had authoritie by the immediate power of God So that they bee by him yeelded of long time to haue bene of ecclesiasticall conisance CHAP. X. That the matters and crimes here reckoned bee also of ecclesiasticall Iurisdiction and proofes that any subiect laie or other may be cited in any cause ecclesiasticall THere doe yet remaine sundrie points which in the second Chapter of this part I haue set out as being of ecclesiasticall conisance hitherto not spoken vnto purposelie First then for ordaining of reall compositions being a matter of voluntarie iurisdiction and disanulling of them if they haue bene made contrarie to lawe and right which is for the most part of Iurisdiction contentious we haue in the Register some testimonie For 3 Reg. fol. 51. b. whereas an Ordinarie had made an ordination or reall composition for certaine Chaplains to serue from time to time in a Church which were not found by those that ought the bishop hereupon ex officio proceeded to interdict the Church and vnto other Canonicall paines And though thereupon a Prohibition was brought yet was it reuersed vpon debating by consultation and the bishops proceeding allowed for lawfull Touching 4 Reg. fol. 50. a. disanulling of a reall composition vnduely made in a Consultation there is thus conteined Significamus quod in negotio adnullationis Ordinationis pro Pensione tanquam iniquae non rationabiliter factae non de laico feodo in curia Christianitatis agitur procedere vlteriùs facere poteritis c. prohibitione nostra nonobstante Next follow the censures ecclesiasticall whereby Ordinaries punish or vrge execution of their sentences or decrees First suspension ab ingressu ecclesiae is 1 5. 6. Edw. 6. cap. 4. shewed to be an ecclesiasticall censure by a statute of king Edward the sixt forbidding brauling in Church or Church-yard The other suspension indistinctly taken whether ab officio tantùm or ab officio beneficio is mentioned for a censure ecclesiasticall by 2 1. Eliz. cap. 2. a statute 1. El. and by her 3 Iniunctiones in fine Highnesse Iniunctions Interdiction of a Church is also prooued so to be by the first allegation out of the Register in this chapter That Sequestration is another censure ecclesiasticall and the conisance of the violation thereof of that iurisdiction is prooued cleerely by a consultation in the Register For there a certeine Parishioner 4 Regi fol. 44. b. had cut downe Syluam caeduam not paying but deteining the tithe from the Parson Hereupon the bishop of Elie his Officiall did sequester the said wood cut downe The Parishioner did breake and violate the sequestration therefore the Officiall proceeded with him in causa violationis sequestri the defendant purchased a prohibition Neuerthelesse vpon discussing of the matter a consultation was granted in these wordes Licitè procedere poteritis quatenus de 5 Concordat Clem. vnica de sequest possess quoad violat interdicti Clem. grauis de sententia excomm violatione sequestri syluae caeduae excisae ratione
contradiction alwayes yeelded to be of ecclesiasticall conusance For being such matters as subiects haue a right vnto and yet no writ lying therefore as I take it at the Common law which 1 Stat. de Consultatione 24. Edw. 1. reason is the ground in statute for granting consultations and of leauing causes of that nature to the determination of an Ecclesiasticall court it will therefore follow that these also doe belong to iurisdiction ecclesiasticall But touching Clerkes wages called in the Prouinciall constitutions eleemosynae consuetae and in the Register conteined vnder the generall word of Largitiones charitatiuae I haue incidently spoken in this chapter afore There remaine yet some offences set out by me to be of Ecclesiasticall conusance which I finde not hitherto so auouched to be by any writer of the Common law yet are they so holden by the law Ecclesiasticall and by vsuall practice also without any prohibition or other impeachment The first 2 c. dura c. falsariorum de crimine falsi of them is forgerie in an ecclesiasticall mattter or the vsing and setting out of forged letters knowing them to be such as of letters testimonialles of orders taken of institution and such like Next is the burying in vsuall buriall for other Christians of 1 c. quicumque de haeret in 6. notorious Heretickes or of persons dying excommunicated and without repentance thereof Thirdly willing 2 c. si concubinae de sent excom and familiar cōuersing with persons whom they knowe to be excommunicated matori excommunicatione Fourthly 3 Bald. in ca. cōuentic de pace iureiurando firmanda frequenters of conuenticles which doth also come vnder schisme Lastly vnlawfull 4 Extrau detestandae de sepultura digging vp of corpses buried either vpon spite or in any other sinister respect whatsoeuer I haue hitherto stoode vpon matters wherein Ordinaries by Law may hold plea to shew thereby that they may cite in other causes then Testamentarie or Matrimoniall For deale in them or handle them they could not vnlesse the party which is pretended to offer the wrong or to be the offendour might be conuented which is by citation Therefore besides the authorities here and there in the former discourse falling in by other occasions which might sufficiently prooue that they may cite and compell men to come before them I will now briefly vse some further direct proofe to conuince that in other causes then those two men may be cited before Iudges Ecclesiasticall It appeareth by Articuli Cleri that for any matter Ecclesiasticall indefinitely men might be cited For vpon doubt mooued whether the Kings tenants were subiect thereto in such sort as others are it is decreed that 5 Artic. Cleri 9. Ed. 2. ca. 12. such as holde of the Kings tenure may bee cited before their Ordinaries and may bee excommunicate for their manifest contumacie and after 40. dayes may bee attached by the Kings Writte as others The 6 23. H. 8. c. 9. preamble of another statute proueth Citations euen of men wiues seruants and other the kings subiects for diffamations and tithes so they be vpon iust matter and in due order to be lawfull The body of that statute 7 Ibidem prouideth that no Citation be made out of the Dioecesse c. where the partie dwelleth but where some Spirituall Offence or Cause is committed or done c. so that à contrario sensu in any other offence or cause Spiritual as very many are afore proued to be any subiect may be cited within his or her Dioecesse and in those also there excepted may be cited out of the Dioecesse Likewise 8 Ibidem for Heresie the Archbishop of Canterbury may cite any of his Prouince if the immediate Ordinarie doe consent or do not his dutie In a statute 9 32. H. 8. cap. 7. made for tythes any man withholding them shall be conuented according to the Ecclesiasticall Lawes And there is also mentioned Compulsorie Processe and censures of the Church In a statute 1 1. Ed. 6. ca. 2. of King Edward the sixt though for the body thereof it be repealed yet thereby is testified that summons and citations be Processe Ecclesiasticall in all suites and causes of instance betwixt party and party and in all causes of correction Therefore seeing there is no colour that onely Ecclesiasticall persons shall fall out to be deteiners of such dueties Ecclesiasticall or that they onely will proue offenders in the crimes afore recited neither can all the Kings tenants nor yet men wiues seruants and other subiects be entended for the most part to be other then Lay persons we may safely conclude that not only in causes Testamentarie or Matrimoniall but in very many other afore noted any subiect whosoeuer may be cited before his Ordinarie or other competent Iudge Quoderat probandum as being the very contradictorie of the opinion that we are in handling CHAP. XI That Lay men may be cited and vrged to take othes in other causes then Testamentary or Matrimoniall THe thirde opinion nowe followeth which is that by the Lawes of the Realme no Layman ought to be summoned or cited to make or take as I thinke is meant an othe in any other cause then Testamentary or Matrimoniall This differeth from the former in two points The first is in the partie to be cited For the second opinion was that none whosoeuer including both Ecclesiasticall and Lay where as this is onely that no Lay man may be cited c. The second difference is in the end of the citation For here is said a lay man may not be cited to take an oth in any other cause thereby leauing as it might seeme the Ordinary at large to vrge persons ecclesiastical to take an othe in other causes also But all comes to one ende For if neither Lay nor Ecclesiasticall as the second opinion holdeth may be cited in any other cause then cannot Ecclesiasticall men be cited in any other cause to take an othe That which cannot be done at all cannot be done for any ende non entis nullae sunt qualitates so that both these runne to one point sauing that hereby is affirmed a citation may not be made to the intent a Lay man shall take an othe sauing in those two cases Now if this citing be meant of the partie defendant then doth it not impugne any proceeding ecclesiasticall in vse for the partie conuented is not cited ad subeundum iuramentum but ad respondendum tali in causa decimarum c. faciendum vlteriùs quod iuris fuerit rationis If it be meant of witnesses neither are they cited against their will not so much as in Testamentarie or Matrimoniall causes or any other to appeare till faith be made by the partie or by some other for him that they take them to be necessary witnesses for to testifie in that cause and that being required and their reasonable charges offered them
directly moued for the crime and not by way of exception or barre onely witnesses are to be compelled sauing that by later Canons Clerkes were not to be compelled to testifie in causes of blood But if the question be touching a crime by way of exception then either there may ensue thereupon some effect of punishment as vpon excepting a man to be criminous who then is to be preferred to a dignitie to a benefice or vnto orders in which case any witnesse may be compelled to giue testimonie or else no penaltie can thereupon follow as when the exception is taken onely to repell a man from testimonie or accusation and in this case witnesses are not compellable except the partie who excepteth be like to be grieuously thereby preiudiced if his witnesses cannot be gotten to depose There is nothing more conuenient then that euery court should vse his peculiar course of proceeding by that law wherin they deale prescribed And therefore 1 Anton. in c. quod clericis de foro competenti lay mens matters in a Court ecclesiasticall are to be handled according to the maner of proceeding by that law required euen as 2 Bartol in l. 3. § fin ff de testibus clerkes shall and ought to be dealt with in temporall or ciuill courts after the maners and orders of those courts Seeing then compelling of witnesses to testifie is not contrariant repugnant nor yet diuerse from the Common law nor by it forbidden but allowed vnto Ecclesiasticall courts according to the course of those lawes which doe require it as is shewed and no reason or equity leading to admit it rather in those two causes then in others of the same conisance therefore may any witnesses whatsoeuer be vrged to take oath and depose in Courts ecclesiasticall and in other matters ecclesiasticall then either testamentarie or matrimoniall But to descend yet to more particulars the Kings tenants may 3 Artic. Cleri 9. Ed. 2 cap. 12. be cited before their Ordinaries as others Therefore both they and others though Lay persons may be cited in all causes of that iurisdiction neither is it there distinguished whether they come in as witnesses or as parties Also they may 4 Ibidem as others be excommunicated for their manifest contumacie This contumacie after appearance groweth onely vpon peremptorie refusall to performe some decree or commandement of the Iudge as in refusing to be sworne or to be examined being sworne Seeing then for manifest contumacie the Kings tenants or others may be excommunicated and this is indefinitely set downe it will follow that as in any other not performance of the decrees of the Iudge according to the ecclesiasticall lawes so in refusall to be sworne whether he be partie principall or witnes there is manifest contumacie Vbi lex non distinguit nec nos distinguere debemus Particularly in matter of tithes being neither a cause Testamentarie nor Matrimoniall the 1 27. H. 8. contemners of the processe lawes and decrees of the Ecclesiasticall courts of this Realme are by statute condemned but an vrging to answer or testifie vpon oath is a decree of an Ecclesiasticall Court ergo may not be contemned The Ordinarie 2 Ibidem in a suite of tithes for any contempt contumacie disobedience or other misdemeanours vpon complaint may haue the partie committed till he shall be bound to giue due obedience to the processe c. decrees and sentences of the Ecclesiasticall court of the Roalme but requiring a parties or a witnesses oath is such a decree Therefore c. Likewise by another statute 3 32. H. 8. cap. 7. the Ordinarie may conuent for withholding tithes according to the lawes Ecclesiasticall therefore he may conuent and cite a man Lay or other if he be supposed to be a withholder to answere vpon his oath For so is the Ecclesiasticall law Further by that statute the 4 Ibidem Ordinarie may proceed to hearing and determination c. according to the course and processe of the ecclesiasticall lawes but the processe and course of hearing by that law is by the parties personall answere vpon oath if it be required and by compulsories of witnesses to depose by oath as is afore touched Therefore c. The statute of 5 2. 3. Edw. 6. cap. 13. king Edward touching tithes prouideth that both they and the costs charges and expenses in the suite shall be recouered before the Ecclesiasticall Iudge according to the kings Ecclesiasticall lawes but for recouery of them those lawes require in cases aforesaid both oath of partie and of witnesses ergo c. By that statute is established that the 6 Ibidem Ordinarie euen for personall tithes may call the partie afore him and by his discretion examine him by all lawfull and reasonable meanes other then the parties owne corporall oath concerning the true payment of such personall tithes Ergo a corporall oath is in other ecclesiasticall causes a lawfull and reasonable means for exceptions are alwayes of the nature of the rule and should be within the rule if they were not excepted and therefore also in all other tithes as prediall and mixt it is a lawfull and reasonable meanes to put the partie vnto his oath quia exceptio firmat regulam in casibus non exceptis The statute for Vniformity of Common 1 1. Elâ—…z cap. 2. ad finem prayer authoriseth ecclesiasticall Iudges to enquire to take accusations and informations and to punish the breaches of that act c. in like forme as before had bene vsed in like cases by the Queenes Ecclesiasticall lawes but in like cases by those lawes oathes both of parties witnesses haue bene vsually taken Therefore c. One only instance destroyes a generall assertion therefore if there were but any one instance to the contrary an oath by law may be vrged of some lay man in some other cause then testamentary or matrimoniall which being true and the very contradictory of the opinion that is in issue vpon this point betweene vs it must needs follow that the opinion is vntrue and therefore not grounded vpon law Quod probandum nobis proponebatur CHAP. XII The grounds of the two next former opinions examined and confuted THe ground of these two opinions last handled for any thing that I could euer learne doeth only rest vpon a precedent of a writ of prohibition and of attachment thereupon In treating whereof for that I shall be forced to gainsay something that is deliuered by graue learned and wise parsonages I must first protest before God in sinceritic of heart that I do it not calumniandi sed veritatis studio whereof I am something resolutely persuaded in this behalfe I do reuerence and esteeme them that are contrary persuaded being men of great learning in their profession neither contemning nor condemning any so much as my selfe as being most priuie to mine owne wants and therefore I trust something taught to measure my selfe by mine
owne foot Sed amicus Plato amicus Socrates magis amica veritas The copy of this writ I finde reported and set downe in two seuerall books In the 2 Register tit prohib Register contrary to the vse of other precedents there is deliuered but a parcel as seemeth of a writ in two or three lines in these words viz. Rex vicecomiti S. Praecipimus tibi quòd non permittas quòd aliqui laici ad citationem talis episcopi aliquo loco conueniant de caetero ad aliquas recognitiones faciendas vel sacramenta praestanda nisi in causis matrimonialibus testamentarijs T. c. And in the margent thus Prohibitio ne latci conuentant ad citationem episcopi ad recognitionem faciendam But the precedent of attachment framed vpon this writ runneth generally without excepting so much as these two causes euen as if a lay man whether partie or witnesse might not be vrged to answere or testifie or to take an oath except he lust in any cause ecclesiasticall at all For it is 1 Reg. in br orig fol. 36. b. tit Prohibitiones thus viz. Rex vicecomiti Salutem Pone per vadium c. talem episcopum quod sit coram iusticiarijs nostris c. ostensurus quare fecit summoueri per censuras ecclesiasticas distringi laicas personas vel laicos homines foeminas ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis in graue praeiudicium coronae dignitatis nostrae regiae necnon contra consuetudinem regni nostri habeas ibi nomina pleg c. T. c. And in in the margent it is entituled thus Attachiamentum inde Also in the Abridgement of statutes 2 Abr. Rastall cit prohib consult nu 6. gathered by Rastall I do finde a precedent of a prohibition set downe at large mentioning a writ to like purpose to haue bene sent to the shiriffe but none attachment thereupon where of those words rehearsed in the Register though something altered seeme to be a parcell In that point it is thus Rex episcopo Norw Salutem c. Mandauimus etiam vicecomiti nostro comitat Norf. Suff. c. quòd non permittant quòd aliqui laici in Balliua sua in aliquibus locis conueniant ad aliquas recognitiones per sacramenta sua faciendas nisi in causis matrimonialibus testamentarijs Whereby these three varieties do appeare betweene this and the former First that which is said heere by way ofrehearsall that the king had sent such a writ to the shiriffe seemeth in the Register to be set downe as conteining part of the writ it selfe directed to the shiriffe Secondly that which is here recognitiones facere per Sacramentum is in the Register with the disiunctiue viz. ad aliquas recognitiones faciendas vel Sacrament a praestanda Thirdly in the Register these words are added ad citationem talis episcopi That writ which Rastall setteth down at large whēcesoeuer he had it seemeth to be the perfect whole copy of the originall therfore of more credit It is also probable that the gatherer of the Register did abridge out of this Writ at large as hee thought good For in the very Writs that went foorth in deed the copies whereof bee in the Register letters for the most part bee put there in stead of the names of the parties whereas here it is ad citationem talis episcopi talem episcopum without name or any letter for it that might direct men to know of what Writ it was a parcell which argueth it was not verbatim copied foorth of the Writ Howsoeuer it be the one of them must expound the other seeing they concerne one and the selfe same matter In treating therefore hereof I mind first to shew that albeit these words did carie the sence y t is inforced yet it may be that the law is otherwise then y t they are not of that acceptiō lastlie how they are otherwise meant what is that true meaning For the first it is no lawe of necessitie being neither Statute nor Common lawe No statute for it is not in the Parliament rols nor in any printed booke of statutes at large nor in sundrie ancient written copies It is no common law for it is sayd to be formata prohibitio super articulis cleri 1 9. Edw. 2. which is a statute of late time in comparison and the precedent of that Prohibition as it is in the Register printed being vnderstood according to the mind of the Authors of this opinion is contrarie to the generall custome of the Realme For by time immemoriall all Ecclesiastical courts without impeachment haue cited both the parties principall for answere and witnesses also vrging them to depose by oath in all the other seuerall causes also that are prooued afore to be of ecclesiasticall iurisdiction and conusance I haue had of long time an olde Register in parchment written as may be euidently gathered and appeareth by the frame of the hand and letter about king Edward the seconds or king Edward the thirds time In it there is no such precedent of prohibition or of Attachment as either the printed Register or Rastals Abridgement of statutes setteth downe But there are many prohibitions vnto ecclesiasticall courts that run in this sort viz. Ne teneatis placitum in curia christianitatis de catallis debitis quae non sunt de testamento vel matrimonio And the first of this sort is thus entituled in the margent Prohibitio regia de catallis debitis quae non sunt de testamento vel matrimonto One thing besides I find there in mine opinion worth the noting for this purpose yet not obserued in the printed Register For such precedents of Originall Writs as exceeded the memorie of any man at what time they were first drawen framed that old booke setteth downe simply without any addition But if they were of later times deuised then this marke title is giuen vnto them in the margent viz. Prohibitio formata or breue c. formatū Now Rastals Abridgement giueth the like title to the writ wherupon this controuersie groweth viz. Prohibitio formata super articulis cleri which argueth that there is no such original writ of old at the common law but that it was thē newly deuised to meete with a new mischiefe Quae de nouo emergūt nouo indigent auxilio The being of it in the Register doth not make it of necessitie to be law for sundry of those writs were framed of late times as may appeare to any that wil peruse thē vpō particular mēs suits as occasiōs fel forth somtimes perhaps drawn vpō priuate suggestiōs of the counsel of one side though afterward allowed Nay in my said old written Register of writs there is a precedēt which as I take it goeth not now for lawe For there is a direct
and the other is forbidden to be done 1 Arg. l. 13. cùm ita ff de rebus dubiis A disiunctiue argueth seueral things that had neede to be expressed by seuerall wordes And by like reason it cannot be meant of witnesses depositions for if the partie conuented shall be content de facto though he be not compellable by lawe as this opinion presupposeth to denie the intention of his aduersarie then no Lay witnesse might in any such other cause ecclesiasticall be vsed either to depose with oathe or without oathe because both be forbidden and so no plea in any such other ecclesiasticall cause coulde be holden which is afore prooued to be otherwise and therefore consequently that is not the meaning of these wordes of the writte which is by 1 Fitzh nou na breu fol. 41. a. Fitzherbert and others that follow him enforced Touching the writ of Attachement thereupon whether as it is set out in the Register it may be holden to haue bin an originall writ at the Common law drawen at first by the grauest aduise in the Realme to be so perfite as that nothing further then is expressed by the words neede therein to be vnderstood to come by the true meaning may partly be gathered by that which followeth First it is said pone talem episcopū not vsing letters for his name as in most of the other writs Next a Bishop who in that he hath a Barony is presumed to haue temporalties whereon to be distreined is here appointed to finde vadios plegios Thirdly it hath laicos homines foeminas as if women were not homines seeing homo is the cōmon gender Fourthly though the prohibition whereupō it is framed forbiddeth both recognitiōs to be made and oathes also to be taken by lay men yet the Attachement wholly omitteth the making of recognitions And yet howe many oathes soeuer should be giuen if none answeres or depositions doe thereupon euer followe which two the opinion that we impugne meaneth by recognition what colour of preiudice doeth or can growe that either Prohibition or Attachement should neede to be awarded Fiftly neither by Ciuill nor Canon lawe neither yet by practice doth any sommons or citation goe out of an ecclesiasticall court in such sort as this Attachement assigneth to be a preiudice vnto the royall dignitie viz. ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis For it were a grieuance giuen euen at the Canon lawe if an Ordinarie should either call any being not a partie or necessarie witnesse in some matter depending or should call witnesses against their will not being first required and hauing their charges offered or if he should do it when there is no cause but 2 Pro voluntate sua for his owne pleasure as this writ implieth Sixtly the proceeding hereby condemned is saide to be done in praeiudicium graue coronae dignitatis nostrae regiae But if no matters be thereby drawen from the kings courtes as in deede none be though you followe the interpretatiō thereof by some enforced then what preiudice commeth to the crowne For though lay men be vrged to depose vpon their othes in all other causes besides that be of Ecclesiasticall conisance what damage or detriment doth the Crowne and dignitie royall thereby susteine more then it doth by their compulsiue deposing with othe in causes Testamentarie and Matrimoniall which this opinion admitteth and alloweth of For if none other causes Ecclesiasticall then those two could conueniently be proceeded in nor any remedy could be giuen by a court Ecclesiastical for want either of the parties answere or witnesses depositions vpon othe yet could not Temporall Courts as the Lawe standeth giue any more remedy in them And so no preiudice to them or to the Crowne that Courtes Ecclesiasticall do proceed as they do to the determination of such causes Nay rather on the other side it were a preiudice to the Crowne that subiects should offend and no good meanes should be found by Law to punish them or to haue a right yet no way for them to come by it Seuenthly that which is there condemned is said to be 1 Consuetudine praed vsi fuerimus semper libettatibus huiusmodi Prohibition in Rastell tit Prohib nu 6. contra consuetudinem regni nostri which doeth strongly argue that vrging parties in other Ecclesiastical causes to put in their answere vpō their othes or witnesses so to testifie is neither by that fourme of Prohibition forbidden nor by the Attachment thereupon ment to be disallowed For first the custome of diuers Courts Temporal requireth parties answeres vpon othe and likewise alloweth Writs of sub poena and other processe in sundry cases to compel witnesses to come in and to testifie their knowledge And againe in Courts Ecclesiastical the custome hath alwayes bene to require othes of parties and witnesses though otherwise vnwilling in maner as is a fore touched Which may appeare both in that the Lawes Ciuill and also Canon which they deale by doe require it and that no bookes of Actes Ecclesiasticall as I am verely perswaded can be shewed whether of olde or later times by which it may not appeare that this course of compelling parties and witnesses to take othes in other causes then those two hath bene vsed so often as occasion hath required And therefore not this but some other maner of proceeding it was which by the Writte of Attachment is meant to be contra consuetudinem regni Lastly this fourme of Attachment mentioneth not so much as excepting of compelling to take othe in causes Testamentarie and Matrimoniall albeit the prohibition haue that exception And therefore for auoyding of iarre betwixt them something must necessarily be vnderstood to haue bene at first in the Writ it selfe whereof this is a minute further then is here expressed And why shall not then the clause de catallis debitis be vnderstood therein aswell as this other seeing so strong probabilities doe leade it and so many absurdities and inconueniences be thereby auoyded which the late enforced interpretation doth necessarily inferre with it selfe Therefore wee may conclude this second point that to debarre Courtes Ecclesiasticall in any cause of that Iurisdiction from exacting parties conuented to put in their answeres vpon their othes or from compelling such witnesses by censures to testifie who being required and their necessary charges being offered doe neuerthelesse refuse to testifie a trueth is not nor yet can be the meaning of that Prohibition or of the Attachment thereupon The last point of the three to be touched is concerning the true meaning of those wordes of the Writte whence these controuersies haue flowed It is therefore to be remembred that it was very vsuall for men in those dayes at making of any contracts whether in matters of Lay fee or others for their more securitie to make faith or othe for performance This they either did priuately for
very Temporal causes themselues whereupon such faith or othe was confirmatorie If saith a Constitution 1 CoÌ„stit aeternae sanctio de poenisin Concilio apud Lambhith sub Bonifacio Anno 1260. tempore Henrici 3. Prouinciall of Canterbury perhaps our Lord the King in his Attachments prohibitions summons shall make mention not of tithes but of right of Patronage not of breach of faith or periurie but of chattels not of Sacrilege or disturbance of liberties Ecclesiasticall but of trespasses of his subiects the correction of which he affirmeth doth belong to him then let the aforesaid Prelats make known vnto him that they neither take conisance nor minde to doe touching Patronage chattels or other things belonging to his Courts but of tithes sinnes and other causes meere Spiritual belonging to their Office and Iurisdiction Whereby we first gather that the Common Law herein was not then resolutely agreed vpon in that they conceiued this allegation touching faith broken and periury would satisfie the King and his Courts And secondly that the Kings Writs of prohibition and Attachement in this behalfe were then awarded but for faith and othes made concerning goods and chattels because by that pretence the conisance of chattels was drawen into Ecclesiasticall Courtes I do finde in an old written parchment booke of statutes reaching downe but to H. 5. death many matters of marke conteined amongs the statutes As among others there be regiae consuetudines apud Claringdon promulgatae which as is there rehearsed were by K. Henry the second propounded in Parliament vnto Thomas Becket then Archbishop of Canterbury long before that Prouinciall constitution Most of which he did condemne by his censure as preiudiciall to the liberties of the Church And this is said there to haue bene the originall cause first of his banishment and afteâ— of his death But some of those customes Becket did tolerate whereof this is one seruing to our present purpose viz. Placita de debitis quae fide interposita debentur vel absque interpositione fidei sint in curia regis Hoc tolerauit At the ende of that Treatise it is saide that foure yeeres after Beckets death viz. 1174 of Christ the King repenting himselfe did together with the Prelates and greatmen of his kingdome abrogate and condemne those euill and vniust customes appointing onely those that were good to be thencefoorth obserued Yet saith he some of those that were so abrogated by the king and condemned by the Church are still obserued in the kingdome If this be with the kings knowledge and allowance let the King looke to it for God knoweth it The chiefe cause why I note it is this that it was euen then thought a Custome of the Realme and by Becket himselfe allowable and tolerable that Pleas of debts though faith or othe were giuen for their payment belonged to the Kings temporall Courtes Next is that hence may be gathered how the Recognitions and othes forbidden to be made in Courts Ecclesiasticall by the Writs which we here dispute of are to be vnderstood of such of them onely as concerne debts or chattels sauing that in causes Testamentary and Matrimoniall onely they may be there made and acknowledged albeit they concerne debts and chattels It may also appeare euidently that the Recognitions forbidden to be made in Courts Ecclesiasticall in any cause sauing of Testament or Matrimony ought to be vnderstoode of Recognitions and othes about debts and chattels For lightly in euery place where these two matters of Testament and matrimony are spoken of there also debts and chattels are spoken of to this effect that in these two cases Pleas of debts and chattels may be handled in Courts Ecclesiasticall but in none other Bracton who wrote before this Writte was framed saith 1 Bracton lib. 5. cap. 2. thus Si Clericus petat versus Clericum vel Laicum debitum quod non sit de Testamento vel Matrimonio sequi debet forum Laicale And 1 Ibidem againe a litle after Non pertinet ad regem cognoscere de catallis quae sunt de Testamento vel Matrimonio Likewise in a precedent of a prohibition he 2 Ibidem lib. 5. cap. 3. cap. 10. 13. vseth this addition Nec teneatis placitum in curia Christianitatis de catallis vel debitis quae non sunt ex Testamento vel Matrimonio In the 3 Prohib Consul nu 3. 7. booke of Entrees the like is often found as Attachiatus fuit ad respondendum tam Domino regiquà m N. de placito quare secutus est placitum versus eum in curiae Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And in a 4 Consultat 2. copie of Consultation there callidè machinans impedire suggerénsque in Cancellaria nostra ipsum tractum fuisse in placitum coram vobis in curia Christianitatis de catallâ—…s debitis quae non erant de Testamento vel Matrimonio c. Yea and in 5 Register Ibidem tit Prohibitiones the Register it is set downe more plaine a great deale in a copie at large of a Prohibition vpon the same point and with the same causes excepted being the next following to that which wee principally doe here treate of For the very worde of Recognitio before an Ordinary is there vsed and applied to a debt or contract touching goods and chattels Cum recognitiones debitorum quae non sunt de Testamento vel Matrimonio ad nos coronam dignitatem nostram non ad alios pertineant in regno nostro executiones earundem per nos ministros nostros non per alios fieri debeant ac iam ex querela I. acceperimus quod vos ipsum I. ad viginte solidos quos coram vobis nuper in curia Christianitatis recognouit se debere A. eidem A. soluendos intra certum tempus iam praeteritum monuistis in ipsum I. pro eo quod praedictos viginti solidos intra tempus praedictum ad monitionem vestram soluere recusauit quanquam huiusmodi recognitio Testamentum vel Matrimonium non tangat c. excommunicationis sententiam fulminastis c. vobis prohibemus c. And the very like words to the same effect and with like exceptions are there vsed in the fiue precedents of Prohibitions next in order following And in the olde written Register afore spoken of there be many copies of Prohibitions set downe in all which whensoeuer that exception of causes Testamentary and Matrimonial is mentioned that clause de catallis debitis quae non sunt de testam c commeth in with all In the printed Register among the Writs Iudicial we haue these 1 Regist. in Br. Iudic. fol. 38. a. words Quare secuti sunt placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And againe 2 Ibid. fol. 39. a.
cum traxisset in placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio c. prohibitionem impetrauit We haue further in the Register of originall Writtes to this effect 3 Regist. in Br. origin fol. 57. b. Quatenus ad correctionem animae non placita de catallis debitis concernunt c. licitè ex officio procedere poteritis c. And in diuers other Writs of 4 Regist. in Br. orig fol. 46. qua ter 49. a. Consultation there to this purpose Prohibitionem nostram impetrauit asserens se trahi in placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio c. Inso much that this 5 Regist. in Br. origin fol. 46. b. 49. a. in fine Writ is entituled as by his name thus Prohibitio nostra or regia de catallis c. I finde a Consultation in the 6 Regist. in Br. orig fol. 54. a. Register where is rehearsed that certaine Lay men of Couentree were by compulsories called into an Ecclesiasticall Court as necessary witnesses in trueth in a cause of legacie yet they to auoyde apparance and to obteine a Prohibition suggested that they were drawen into the Court Christian to testifie about chattels and debts not belonging to testament or Matrimony Now if that meaning of the Writ in controuersie which we here impugne were true what needed they to haue mentioned chattels and debts at all for then the other part of their suggestion though false had bene in Lawe sufficient to haue obteined the prohibition viz. That they were called against their wils to testifie in a Court Ecclesiasticall touching matters being neither Testamentary nor Matrimoniall But seeing they were driuen to pleade both it argueth that citing men to take othes and to depose against their wills in any other cause then those two is not simply and absolutely prohibited but for that the matter concerneth chattels and debts and yet is neither Testamentary nor Matrimonial And therefore not that which of late is enforced but this meaning of the Writ by me deliuered is the true interpretation thereof The very Writte it selfe set downe by 7 Abridgement of the statutes Prohibition 6. Rastall at large doth establish this interpretation Rex Episcopo Norwicensi c. salutem Cùm cognitiones placitorum c. super turatis Recognitionibus Laicum feodum contingentibus rebus alijs ac causis pecuniarum alijs catallis debitis quae non de testamento vel matrimonio ad coronam dignitatem nostram pertineant c. for if Iurata recognitio being in the same writ should signifie a diuerse thing then must we needes say that the recital speakes of a matter to be remedied and yet the remedie giuen is of another nature and so not pursuant to the former Furthermore the tenour of that writ runneth to the Bishop of Norwich and to his Archdeacons c. yet those wordes thereof whereupon the doubt riseth are not directed to them as if they should be charged thereby which had bin most apt if any such thing had bin meant not so to cite lay men or that they should not charge them with such oathes or that they should not suffer such Recognitions to be made afore them but it is there saide that the King had commaunded the Sherife that he should not permit quod laici conueniant in aliquibus locis ad faciendas recognitiones c. which vse of the wordes ne laici conueniant and the changing of the persons argue strongly that it was meant of such recognitions of debts and chattels and such oathes as Lay men of themselues were willing ynough to make and therefore had neede of such restraint by the Sherifes authoritie which their voluntarie perfourming thereof without vrging by censures is also argued by that which is there said of the Ordinaries accepting at Lay mens hands of such things viz. vobis praemissa alia consimilia in partibus illis acceptantibus This of their willingnesse without constraint is also prooued by the wordes immediatly following the point in controuersie viz. ne super huiusmodi feodis debitis catallis coram vobis alijs iudicibus Ecclesiasticis in praeiudicium iurisdictionis nostrae regiae ad coronam dignitatem nostram spectantibus subire praesumant Whereby as in a thing needefull Lay men are charged not to dare or presume in any other causes before Ordinaries to make any such Recognition or oathe touching goods or chattels preiudiciall to the Crowne by which wordes this our interpretation is expressely established Nowe if those wordes in the copie of the Prohibition and of the Attachement in the Register shal be obiected against this viz. Ad citationem talis Episc. And those Ipsis inuitis I answere that for many absurdities thereupō following which are afore noted these wordes cannot stand with the writ in Rastall nor with the interpretatiō that is by some of late vrged But vnderstanding them as I declare of citations and compulsories to make answere or testifie by oathe concerning chattels and debtes not belonging vnto matter testamentary or matrimoniall maketh al most aptly to agree together For whether we say that Ordinaries then vsed to cite all in generall of their Dioecesse who had made promises or contractes in lay causes by worde onely or by writing to come and confirme them by their faith giuen or by their corporall oathes before them for better confirmation and securitie of the bargaine as some wise and learned haue thought very 1 Pro huiusmodi rebus per vices trahitis coram vobis Prohibition in Rastall vbi supra probably or whether they be meant of citing parties to put in their answeres by oath concerning such chattels debtes in demaund confirmed by faith or oath giuen or of witnesses being not willing to depose in those causes or of all these three it is assured that he who findeth himselfe grieued thereby wil be vn willing and that albeit the pretence of such Ordinarie be to punish the sinne onely yet hereby per obliquum the conisance of lay contractes wil be drawen to eccles courtes and so the Kings courtes vnto which they properly belong shall thereby be encroched vpon preiudiced But this cannot be truely said touching matters of meere ecclesiastical conisance being neither testamentarie nor matrimoniall though lay men be vrged by courtes eccles to answere or testifie in them vpon their oathes Besides what damage cōmeth to the cause nowe by vs defended if we say that the absurdities following vpō such their interpretatiō being not a fore wel weyed he out of whose copy the Register was printed vnderstāding it as they doe was content to adde those two clauses for an explanatiō of the said writs according to his owne meaning or that he was willing they should so be vnderstood which perhaps enduced him
to make such a briefe abridgement of so long a writ For it doeth not appeare that before the imprinting it was perused allowed by any the Iudges then being or by any others deputed by publike authoritie for the reuiewing and correcting of it No doubt if it had bin that I speake of nothing else so many grosse errors in the Latin both against cōgruity al sense as in every leafe almost of the copie which the Printer followed are to be found could not haue so escaped without cōtrolement and amendment But the former wordes set downe by Rastall at large in the writ in selfe where neither of these last recited clauses are to be found are too cleare in this point to be dimmed by any such light colours But if hereupon it be perhaps graūted as the authour of the Treatise doth that witnesses may take oath depose willingly in other ecclesiasticall causes at the request of some of the parties I must then call to their minde that I haue shewed afore that following their owne interpretation they may not though they be willing Yea though witnesses might if they were willing how can a reasonable man entend that the partie to be sued will come in at all but much lesse answere if he may not be cōpelled vnto neither viz. neque ad recognitionem faciendā neque praestandū sacramentū as Fitzherbert in his natura breuiū also doeth vnderstand and reade it And the wordes reach vnto all lay persons not distinguishing a partie from a witnesse Againe by that their interpretation of recognition oath they could neuer haue such witnesses that be indifferent as in part is afore touched For if witnesses may not be vrged to sweare or to answere further then they list themselues then will they onely answere to the matters propounded by him who produceth them and wil refuse to answere the Interrogatories propunded by the other partie for his defence by whom they were not requested to come Which course vpon the matter taking away all testimonie that ought to be indifferent for either partie in such pertinent matters as are to be demaunded is contrary to the lawe of God of nature of nations and to the very qualitie of a witnesse Decius saith 1 Decius in l. 2. C. de edendonu 43. Si testis deposuit pro vna parte interrogatus pro alia noluerit respōdere illi fides adhiberi non debet quia praesumitur supprimere veritatem And so the course being most vnreasonable that whereupon it followeth must needes be also very absurde and against Iustice. By all which premised discourse it is made I hope manifest whether Fitzherbert had good ground out of that fourme of Prohibition and Attachement to 2 Nou. nat breu fol. 41. litera a. gather not onely that Ordinaries must expresse a particular cause in all their Citations but also that if they expresse any cause at all in the Citation that it seemeth by that writte it must bee a cause matrimoniall or testamentarie For seeing they haue none other meanes besides Citations to summon men to their Courtes What is this latter collection built but vpon a doubtfull seeming else then an asseueration implied that none other of the causes afore proued to be of ecclesiasticall conisance shall euer be dealt in by any court ecclesiasticall and so vpon the matter in no court at all for that temporall courts be out of iurisdiction in those matters Which howe it may be defended from grosse absurditie I would gladly learne from any that patroniseth this opinion But if the lawe were so in deede that none should be called into ecclesiasticall courts but for those two causes I marueile what the Preshyteries so much doted after especially by sundry fauourers of this interpretation would doe here in this Realme when their Cōsistorial power should be so lopped that they could not call any man before them but either in testamentarie causes which they make in other mens dealings to be meere Ciuil causes or matrimoniall many of which also they now seeme willing to abandō as temporall matters for they should be driuen either to be kings of molehils or else to preache in the most vehement veine they haue against that lawe and those magistrates which in such sort would restraine them as if they were both Antichristian at least for hindering and so impounding of the pretended gouernement of Christ that thereby they might at length be set at libertie to deale in their Consistories against all crimes whatsoeuer according to their owne platfourmes Yet herein they should deale very vnequally because they will not nowe suffer that vnder this gouernment which themselues would practice against crimes in a farre more ample and peremptory maner then either nowe is done or were meete to be suffered In the bookes of the Common lawe I finde also some cases that giue strength to this interpretation For an 1 M. 44. E. 3. fol. 32. Attachement vpon a Prohibition was sued because they sued in a spirituall Court for haye and money which touched neither matrimonie nor testament and after vpon shewing the Libell which prooued that it was for tithes and oblations a consultation was graunted Likewise 2 M. 38. H. 6. fol. 14. a Prohibition was sued foorth of the Chauncery directed to the Iustices of the common Pleas to make an Attachement because the defendant had sued the plaintiffe in the spiritual court for debt which did not touch matter of matrimonie nor testament whereof the conisance belongs to the Kings Court and thereupon a prohibition was granted thence Wherein it is woorth the noting that Fitzherbert in his 1 Fitzh Prohibition nu 5. Abridgement leaueth out these words for debt contrary to the booke it selfe at large and also 2 Brooke Prohibition nu 6. to Brooke I will not say it was to giue colour to his opinion in his Natura breuium as if he ment to haue it sound that no matter at all but either matrimoniall or testamentarie might be sued in court spirituall whereas by these two reports it may appeare that Prohibitions did not lie in this respect for that the parties were sued and called into the ecclesiastical court against their wils in any other cause whatsoeuer then those two but onely for suing there for chattels debt which did touch neither matrimony nor testament Whereof may bee gathered that euer since the first framing of this writ either none in this point hath knowen the lawe vntill Fitzherbert for nō est instandum inproposito or else those words doe carie another meaning then is now fathered vpon thē which that they doeboth in the affirmatiue for ours negatiue against theirs I hope is somewhat plainely prooued And therefore we may conclude that these two last opinions the one for not citing any person in any other cause then these two the other for not citing laie men for not vrging them to take oath in any other cause
ecclesiasticall no man may be imprisoned Therefore the vntying of this knot resteth vpon the whole matter here disputed of viz. whether that statute 10. Eliz. doe not warrant her Maiestie to graunt by her Highnes letters patents power to imprison for such contempt as this obiection importeth To prooue that her Maiestie may not so graunt nor they take such authoritie the Note-gatherer affirmeth that the commission bindeth them precisely to crimes punishable by the ecclesiasticall lawe and to proceede according to the ecclesiasticall lawes of this Realme and not according to the temporall quoting fiue statutes for this albeit there be in none of them any such matter but both the first and second part of this obiection is vntrue For the commission though nowe that power be not altogether vsed graunteth the execution of foure statutes vnto them and alloweth them to proceede aswell by Iuries as by course of the lawe ecclesiasticall And when Doctor Grindall was Bishop of London sundry crimes ecclesiasticall by vertue of the commission were tried by Iuries before him and certaine Iudges and other professours also of the common lawe being then in that commission Yet is the Note-gatherer vpon this vntrue ground bold to inferre that to doe otherwise is to encroche vpon the temporall iurisdiction and to make an hotchepot in one commission Truely this his collection is not worth an hotchepot that is a pudding as Littleton doeth expound that worde For the temporall Iudges are not to proceede in matters of ecclesiasticall iurisdiction and therefore their iurisdiction is not encroched vpon though in such matters ecclesiasticall attachements or imprisonments be vsed or fines imposed seeing they themselues cannot in those causes vse or impose them When the whole Realme at the beginning of her Maiesties reigne was visited by vertue of this statute by Diuines Ciuiliās and Common Lawiers in that seruice imploied who had authority by their seuerall cōmissions to attache imprison fine c. aswell as to vse censures ecclesiasticall al which they did accordingly then and at that time none of these quicke narrow sighted fellowes lately sprung vp were to be found that could see more then the reuerend Iudges and could so roundly tel her Maiestie that she did graunt more authoritie to her Commissioners then by that statute was giuen to her selfe Oh belike it was lawe then and good iustice against Papistes but to deale against pretended Reformatists it commeth farre too short But the Treatisour vrgeth this matter yet further he saith that no learned man wil affirme any Iurisdiction by that acte 10. Eliz. to be vnited to the crowne but spirituall or ecclesiasticall And that none such can affirme that any iurisdictiō c. repugnant or offensiue to the Common or Ciuill Policie of this Kingdome is established by that Acte for that there is none Antinomy or contrarietie of lawes Whereupon he woulde inferre that Attaching Imprisonning and Fining c. by vertue thereof is not warranted to be graunted In answere whereof let him vnderstand that his argument followeth not vpon either of those Antecedents For the first though the matters of iurisdiction thereby vnited to the crowne be onely ecclesiasticall yet the maner of conuenting or punishing in them is not in that Acte so restrained but that such other courses may be vsed as to her Maiesties wisedome shall seeme most fitte which by and by shall be shewed God willing For the second we deny the maner of conuenting and punishing established by the commission to be repugnant or offensiue any way to the Ciuill Policie of this kingdome for it is warranted by that Acte This point if the wordes of that whole clause be aduisedly weyed and considered will be made most plaine In the exercise of a criminall iurisdiction there is the matter wherein it is bestowed the maner of conuenting and sanction or penaltie to be inflicted vpon offenders which are to be considered Now the matter of this iurisdiction and authoritie graunted to her Highnes and that may be assigned ouer by her Maiestie vnto Commissioners is visiting reforming redressing ordering correcting and amending all such errours heresies schismes abuses offences contemptes and enormities whatsoeuer which by any spirituall c. Yet what course is to be holden in calling and conuenting and what kind of penalties or censures shal be inflicted vpon offenders by that authoritie are by no wordes of that acte expresly graunted to her Highnes or mentioned that they may be assigned by her vnto the Commissioners and therefore of necessitie to be supplied by those generall wordes viz. According to the tenour and effect of the letters patentes For els by such an interpretation of theirs we should haue matters for a Iurisdiction but neither any maner to conuent and compell to come afore the Commissioners nor yet punishment to lay vpon enormious offendours against whom it was intended Which because it is very vnreasonable therefore that opinion whereupon it necessarily followeth must needes be more absurd and without ground of reason Yea say other of them be this as it may and let them seeke out what processes c. may and shall be vsed by the Commission Ecclesiasticall for it is contrary to the lawe to graunt by Commission authoritie to inflict any punishment vpon a faul◅ which by lawe ought not to be inflicted and therefore they gather that the Queene cannot authorise nor any man may take power to attache to fine or to imprison men by that Commission Thus farre it is true that a Cōmission may not be graunted to alter or change any lawe in force but I trust it is not contrary to the Common lawe and custome of the Realme by acte of Parliament to alter and change that which stoode otherwise afore at the Common lawe If this so did by the course of the Common lawe no man may be put to the racke or torture especially about felonies or murders thereby to drawe him to confesse of himselfe or of other men his complices Yet is it notorious that in Wales and the Marches thereof the President and Counsaile there established doe vse and lawfully may put men to such torture by warrant of instructions onely sent vnto them from time to time vnder her Maiesties gratious hand This their authoritie I take it is deriued from these 1 38. H. 8. ca. 28. Rastall Wales 32. wordes in an Acte of Parliament The President and Counsaile there shall haue power and authoritie to heare and determine by their wisdomes and discretions such causes and matters as be or hereafter shall bee assigned to them by the Kings Maiestie as heretofore hath bene accustomed and vsed Which doe conteine no more particularitie of authoritie nor yet are of so much pregnancie to that purpose as the wordes that establish the Commission Ecclesiasticall be for Attachment fine and imprisonment to be vsed if it shall please her Maiestie so to commit them The deuise of the Commission Ecclesiasticall was for assistance and ayde of Ordinary Iurisdiction
in it selfe and therfore it is a contempt to sue against it In a prohibition we are to consider In what matter it lieth not at what time it lieth not where and when it lieth how it ceaseth or looseth his force For the first it is 2 18. Edw. 3. pro clero ca. 5. prouided by statute and the king there determineth thus that no prohibition shall goe out of the Chancerie but in such case where we haue the Conisance of right ought to haue And therefore Thirning 3 M. 2. H. 4. fol. 15. said when we see the iurisdiction belongeth not to vs wee will graunt a Consultation So that if the matter be meere Ecclesiasticall there lieth no Prohibition Touching the second point it seemeth a Prohibition is not to be granted till by sight of the Libel there appeare cause to grant it For 4 31. H. 6. fol. 14. Henkstone held that by the statute de Regia prohibitione de coniunctim fe offatis in fine a man shall not haue prohibition antequam lis sit contestata in curia spirituali which is till a libell be put in and the partie put to answere it this is to be certified to the Chancellor by the view of the Libell which Fortescue granted But this hath two exceptions one is when the copie of the Libell contrary to the Statute 2. H. 5. is denied for vpon this cause I finde a 1 M. 4. E. 4. fol. 37 prohibition granted that the Ordinarie should surcease till the copie of the Libell according to that statute were deliuered another exceptiō is in some court where a surmise is made that the suite in trueth is for some other matters then are expressed in the Libell for Brooke reporteth that 2 Brooke tit prohib nu 17. a man may haue a prohibition in the kings Bench vpon such a surmise as for example by surmising the suite to be in deede for great timber though it bee demanded in the Libel vnder the name of Sylua caedua but he saith it is otherwise in the Common Pleas. Touching the third point for what causes a Prohibition is granted I find it may be granted either in respect of some of the parties to the sute or in regard of the Iudge before whom it is or for the very matter handled For the first of these three If a 3 T. 12. H. 7. fol. 22. Parson of a Church do sue another Parsons farmour or seruant for right of tithes being not such as can trie the right of tithes Fineux held that a prohibition may be granted Here of see further in the 6. chap. afore Touching the second it may be granted either for the Iudges contempt as in not deliuering copie of the Libell as is afore touched or for that he hath not in deed any iurisdiction for so it was iudged by Hankeford and by the whole Court as it seemeth in the vicar of Saltash his 4 M. 2. H. 4. fol. 15. case being cōuented before the Popes Collector Though a Consultation did otherwise lie the court wil not grant it to one that hath no iurisdiction in right Concerning the third and last poynt of the three if the matter bee Temporall that is such as 5 Stat. de consultat 24. Ed. 1. there lieth redresse for by some Writte in the Chancerie then there lieth a Prohibition as seemeth by Statute to which agreeth the 6 Lib. 2. ca. 24. place before alleaged out of the booke of Doctor Student Yet this hath also two exceptions one is whereas the Spirituall Court holdeth Plea quite to another end For 7 Artic. Cleri 9. Ed. 2. cap. 6. when one the selfe same case is debated before Iudges spiritual and temporal as for beating of a Clerke there the statute is that notwithstanding the spirituall iudgement the kings Court also shall debate it For both these conisances tending the one to the amends the other to the excommunication may stand together as is shewed in the 8. chapter The second exception hereof seemeth to be 1 T. 9. H. 3. per Fitzh Prohib when one Clerke sueth another in the spirituall Court for the goods of his house for there lies no prohibition as when one Abbot sueth another Secondly a prohibitiō lieth where a matter being at first ecclesiasticall brings at last in debate a meere temporall matter with it to be determined Therefore it was holden that so soone 2 38. H. 6. fol. 21 as it appeareth that the right of tithes comes in debate the laie Court shall cease and be out of iurisdiction and the same law is of the spirituall Court for if it may appeare that the right of aduowson may come in debate although it appeared not at first the spirituall Court must surcease quod fuit concessum This may happen as for example when suite is brought at first for right of tithes and it fals out by depositions or otherwise that the tithes 3 Circumspectè agatis 13. Ed. 1. demanded amount to the 4. part of the benefice by yeere in which case it is determined that the temporall Court shall haue conusance euen as if the right of Patronage were in demand principally Thirdlie a prohibition lieth for such a cause 4 Doctor Student Loco d. as albeit there lie none action for it in a temporall Court yet the matter is such as of custome neuer belonged to an ecclesiastical court As if an ecclesiasticall court would hold Plea against an executor vpon a bare contract made by his testator for neither the court may heare it nor yet there lieth action for it in a Temporall court Fourthlie there lieth Prohibition when the suite tendeth to determine and giue execution in a temporall matter as money c. being due otherwise then by the iudgement giuen in the Court ecclesiasticall Therefore if a composition by indenture 5 11. H. 4. fol. 85. be made by an Ordinarie betwixt two ecclesiasticall persons that the one shall haue tithes the other an annuitie with penaltie for default of paiment the suite for this shall bee at the Common lawe but the suite for any thing that riseth vpon a iudgement giuen in the spirituall Court shal be there per Hill For 6 T. 12. H. 7. fol. 22. though amends bee to bee made by a certaine summe of money this is no necessarie cause to grant a prohibition no more then when the suite is for tithes yet the condemnation in money being the valew of them nor when a penance is redeemed by the partie for money which may be sued for in a spirituall court per Butler Because when an offence is done to a man it is 1 Ibidem reason that he haue amends for it but there can be no more proper amends then money because euery thing may be valued by money per Keble Which they speake to prooue that amends in money may be awarded in an ecclesiasticall Court for Diffamation
found by some with the ceremonie vsed in giuing the othe and because the othe is giuen in a cause criminal and penal to themselues In the ceremonie at taking an oth there is reprehended by some the laying of the hand on a booke and the swearing by the booke or by the contents of it Of meaner circumstances falling out in proceeding that they challenge some are concurring with the very tender of the oath as that they haue not distinct knowledge of euery particular whereupon they are to be examined before they resolue whether to take the othe or not and other are ensuing the othe and examination as that the Iudges doe not rest in that which is affirmed or denied vpon their oth but oftentimes proceede to a further examination by witnesses vpon the same pointes All which I mind God willing to prosecute in the same order that I haue here set foorth hauing first touched some matters that I holde not vnnecessary to be knowen by the vnlearned sort for the better opening and vnderstanding of the disputations following THE CONTENTS OF the Chapters of the Second part of this Apologie OF the distinction of offences and seuerall kindes and endes in punishing chapter 1 them with the necessity of punishments Of two sorts of prosecution of crimes and offences viz. by a party of office chapter 2 the practice of them in Scripture and in the seuerall Courtes of this Realme Of the sundry kindes of obiecting crimes by a party mentioned in the Ciuill law as by reason of a mans publike charge and function also by way of chapter 3 Exception Supplication Complaint Delation and Accusation The true signification of the word Accusatio his diuers acceptions definition exposition thereof with some reason of the frequencie of accusation in courts of the Ciuill lawes in former times is also declared That the prosecution of crimes by way of Accusation is in most places forbidden chapter 4 or growen into disuse the reasons hereof be partly the danger to the Accusers and partly the hatefulnesse of that course Therein also is disputed whether all Accusation be vnlawfull and certeine points deliuered to be obserued by all them that will accuse others Of the seuerall acceptions of this word Officium the signification of Inquisitio chapter 5 Quaestio Crimina ordinaria extraordinaria the reason why Inquiry by office came in place of Accusation of Enquiry generall and speciall of Enquiry speciall ex officio nobili siue mero mixto promoto and of the priuileges of proceeding ex mero officio aboue the other Of Denunciation a speciall meanes of stirring vp the Office of the manifolde chapter 6 vse thereof in the olde Common weale and Empire of Rome and at this present on the other side the Sea the general acception of that word and of foure kindes of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expenses And what course of dealing against crimes and offences is holden both in courts of the Ecclesiasticall Commission and in Ordinary courts Ecclesiasticall in this Realme That the Ciuill and Canon lawes allow sundry meanes to ground a Speciall Enquiry chapter 7 of office against a crime besides Accusation and Presentment therein is also conteined an answere to a supposed rule and declared how from Generall they descend to Speciall enquiry and that besides those two either à Fame or Clamosa insinuatio or Priuate Iudiciall Denunciation or Canonicall Denunciation or Indicia or taking with the maner or other Notoriety of the fact or appeachment by some of the complices or collusion of the Accuser or the not obiecting in due time that euery of these do want or when the Enquiry tendeth but to a Spirituall punishment may seuerally any of them serue to warrant such Enquiry with some obseruations touching the nature of most of these That to proceed sometimes against an offence otherwise then vpon an Accusation chapter 8 or Presentment or then vpon an Appeale or Enditement which two at the Common law haue respectiue correspondence vnto the two former is no diuers much lesse any contrary or repugnant course to the lawes statutes and customes of this Realme this is prooued by Common law statutes and practice in proceeding informatiue and Punitiue with answere to certeine obiections made to the contrary How the second opinion here to be treated of is that no lay person may chapter 9 be cited of office in any cause but testamentary or matrimoniall and that the drift of that opinion is against proceeding of office in matters criminall the necessary vse and equity of proceeding sometimes criminally by the Iudges office in courts both Temporall and Ecclesiasticall Conteineth an answere to some further obiections made against the conueniency chapter 10 and reasonablenesse of proceeding against crimes of office That the lawes of the Realme do vse Enquiries and proceedings ex officio that chapter 11 they allow it in courts Ecclesiasticall with answere to some obiections that are made to the contrary Is set downe a replie to the Note-gatherers answers giuen to certeine reasons chapter 12 that haue bene made long agone for to shew the like course to be also practised in Temporall courts and an answere to his reasons brought to proue that in proceeding of office there is some contrariety vnto the lawes of England That the Enquiry ex officio against crimes is allowed both in Ciuill or Temporall chapter 13 courts and in Ecclesiasticall also by the two lawes Canon and Ciuill Conteineth an answere to such obiections as vpon the Ciuill or Canon lawes chapter 14 are brought against all proceedings of office in causes Criminall by the Treatiser and the Note-gatherer Enquiry and proceeding of office without an accuser and grounded vpon chapter 15 some other of the meanes afore prooued sufficient to enter into such Enquiry is approoued by sundry examples of Scripture An answere is made to such obiections as out of Scripture or Ecclesiasticall chapter 16 writers be made against criminall proceeding of office by the Note-gatherer and others THE SECOND PART of the Apologie published in defence of sundrie proceedings by Iurisdiction Ecclesiasticall CHAP. I. Containing a distinction of offences and seuerall kindes and ends in punishing them with the necessitie of punishments ALl the controuersies remaining to bee handled in either of the two partes ensuing doe rest chieflie about the maner of discouering of such crimes as are punishable by ecclesiasticall Iurisdiction And because many bee talkers of these matters who vnderstand but litle the true nature of them therefore to giue light vnto the whole disputation to make it appeare to be a matter of no small consequence but much to be stood vpon before I proceed further I mind to touch some necessarie points seruing for the better vnderstanding of all proceedings against crimes And first of the diuersitie of faults in generall then the seuerall kindes of punishment of
person as informeth And the enditements be termed vpon their beginning Enquiries or Inquisitions which are alwayes ex officio Now these and such like be notes and markes whereby you may discerne proceedings of these Courtes in criminall causes prosecuted by an Accusour or partie from that which is done vpon the office of the Court for these two prosecutions doe differ in the end and they differ also in certeine priuileged points which that of Office hath aboue that which is by a partie In the end thus they differ because prosecution of Office aimeth at publicam vindictam a publique punishment whether pecuniarie to acerue to the Queene or corporall In deed in all capitall causes vindicta is in truth publique and exemplarie albeit both the Appellour onely doe prosecute perhaps after the Queene haue pardoned it and that he also seeke nothing els but priuate reuenge for his owne iniurie receiued rather then for an example to be made of the offender or for the Common weales satisfaction and contentment Of the contrary side prosecution in these Courtes of an offence criminall being not capitall by an Accuser or partie propoundeth for the most part but a Ciuill end that is some satisfaction and amends to be made vnto the complainant damaged as in actions of sundry trespasses in actions of the case c. And then doe the Ciuilians terme this Causa criminalis ciuiliter and the former Causa criminalis criminaliter mota Besides such difference in the end there be also some priuileges that are granted to the one course of proceeding which are denied to the other whereby those two kindes of prosecution doe differ As that in proceeding of Office for the Queene as was touched afore the defendant may not gage battell against the preferrer as he may doe against the Appellour neither hath any defendant in an enditement or information though he be acquited any costs allowed when the suite is for the Queene as he both hath and ought in iustice to haue when the suite against him is onely prosecuted by a priuate and wrongfull Accuser that was not able to iustifie his declaration as wee may terme it accusatorie of such priuate offence or misdemeanour whereupon he sued him Now let vs consider also how those Courtes which haue none vsuall triall by Iuries doe proceed against offences First the high Court of Parliament hath no great vse that I know of dealing against Offences but such as happen to be committed either by some member of the house during the time of Parliament or against the liberties and orders of that Court. In both which cases they proceed to examination of them either vpon the Notoriety of the fact happening among them or vpon credible relation of some but wholly without any Accuser or partie taking vpon him the proofe thereof with any hazzard of so much as Charges for wrongfull vexation if it should so fall out to be accounted And therefore such proceeding is also of meere Office In the Starre Chamber onely crimes and misdemeanours bee inquired of but especially those which I called afore Extraordinaria Crimina viz. such as haue either no certaine name or at least no set and determinate punishment by Lawe appointed and may not be punished there by losse of life or of limme but either by Fine by open shame and infamie by imprisonment by nayling or cutting of eares or deforming the face by banishing from some certaine place of the Realme or foorth of all the Queenes dominions or vnto a certaine place abroad or by condemnation vnto the Galleis perpetually or for a time c. The misdemeanours punishable in the Starre Chamber bee brought thither into question for the Queene onely either by her Maiesties Atturney generall and that is by bill of information or Ore tenus or els be brought vpon bill preferred by some priuate person that is grieued In all which Cases albeit there be found one which doth prosecute yet can he not truely be called an Accusour or a partie for the reasons before alleaged viz. of the end propounded which is publica vindicta and for other great assistance and priuiledge which that Court giueth to the prosecutor against the def in respect that it is for the Queene And namelie that he is to answere not onely to the Bill vpon his oath but also to Interrogatories more particularly criminall then the Bill and the Interrogatories without counsell which in trueth therefore needeth not because they are brieflie drawen article-wise and concerne but matters of fact within his owne knowledge as is entended Vpon all which matter it followeth that the prosecutour there is but as a relatour partly to stirre vp and partly to ease the office of that Court by furnishing it with proofes Neuerthelesse I am not ignorant that sometimes when it appeareth manifestlie to their Lordships that the plaintife being some priuate person hath calumniously and of malice onely vexed the def then such plaintife there is and iustly also may be condemned in costes and damages for his apparant calumniation and wrongfull molestation of the def Vnto which courses of the Starre Chamber I take the Courts of the Queenes Counsell established in the Marches of Wales and in the North partes to bee also agreeable in their inquiries and examinations of crimes and misdemeanors In the Chancerie and Court of Requests being both Courtes of equitie if any misdemeanours or crimes be diduced and laied downe in the Bils which happeneth very often yet are they not Criminallie laid to haue the def punished for them but onely Ciuilly to the intent that the plaintife may haue an amends and priuate satisfaction as shall be deemed to bee equitie And therefore such prosecution is not by Office of the Court but onely at the parties suite albeit the Office in the Chancerie doe thus farre assist the plaintife for sifting out of a trueth that the def must answere euen to the Criminall points of the Bill vpon his corporall oath But he may not in those two Courts be put to answere the plaintifes interrogatories vpon his oath except the plaintife will be concluded by the def answere vnto them and seeke to make no further proofes But of all the Courts temporall aforesaid aswell those which proceed to the triall of misdemeanours by Iurie as of others I thinke this may bee generally affirmed That when any lewde practice abuse or contempt not capitall not tending to mutilation is supposed to be done against the Court there euen of meere Office without any Accusation or prosecution of any partie by Bill the Iudges of such Courts doe Enquire thereof by examining and by interrogating euery one that is holden suspected thereof or to be priuie thereto vpon their corporall oathes first taken Let thus much then suffice for the two sortes of prosecution and bringing Crimes into question by the course mentioned in Scripture and by vse and practice in Temporall courts of this Realme CHAP. III. Of the sundry kindes of obiecting
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
of custome turned to a more moderate and sase course not onely for the Prosecuter but also for the defendant For mitiùs agitur 2 Abbas in ca. inquis de accusat cum inquisito conuicto quà m cum accusato He that is cōuicted by way of Accusation especially by the Canon law is more grieuously punished then he which is conuicted vpon Enquirie Which yet is alwayes so tied that being a prosecution of Office the Iudge needs not lend his assistance but where he seeth good and probable inducement to ground it vpon All Enquirie is either Generall or Speciall 1 Bald. in l. ea quidem C. de accusat Generall Enquirie is a preparatoriecourse proceeding of meere Office purposed to enquire and finde out criminous persons within some certaine territorie or compasse This is of three sortes The first is generall in respect of the persons but speciall in respect of the fault as when the Coroner inquireth of a murder committed and no certaine person knowen or an Ordinarie of a forgerie in some cause Ecclesiasticall And by this 2 l. 1. C. de falsa moneta l. 1. C. de rapt Virgin Enquirie generall in certaine hainous crimes euerie priuate person may enquire to bring the Offenders in by lawe to be iustified The second is generall in respect of the faultes but speciall in regard of the persons as when some Hospitall College or Cathedrall Church is visited The third and last is generall both in respect of the persons and faults as a generall visitation of a whole Dioecesse or an Enquirie made by the grand Iurie at an Assise or Sessions of the Peace for the whole Countie 3 Summa Antonini part 3. t. 9. c. 7. Speciall Enquirie is when some certaine and singular person and crime also is enquired of and brought by due course of iudgement vnto triall to the intent to be punished This Enquirie is done either when there is a kinde of prosecuter besides the Iudge albeit the proceeding bee of Office or when there is absolutelie no prosecuter besides the Iudge himselfe against the partie conuented There may besides the Iudge be prosecuters of the Office in two seuerall degrees One that doeth prosecute throughout the whole suite as when an Information for the Queene alone or for the Queene and Informer is put vp at the Common lawe and is termed by the lawe Ecclesiasticall Officium promotum The other which doeth but prosecute or sollicite in some part of the suite as by furnishing the Court with proofes c. which is called Officium mixtum in some temporall courtes a Relater Likewise 4 Abbas in e. cum dilectis de Purg. canonica Officium promotum is of two sortes The first is when a man voluntarilie offereth himselfe to prosecute called Promotor voluntarius officij and he differeth a litle from a Partie The second is when the Court assigneth one to sollicite the Office who is termed Necessarius promotor officij because hee may not refuse this emploiment But when no persecuter at all doeth stirre in the matter then the Court onely doeth it in duetie to the Common wealth and to see sinne and disorder punished Then is this Enquirie termed Officium simplie or Officium merum by the Canon lawe and by the Ciuill lawes Officium Nobile as of more woorth and dignitie then the other course which is by a Partie and at his petition and instance For by a more base appellation in comparison of the former that lawe termeth this Officium Mercenarium ac si merccde aliquâ propositâ alterius petitiont quasi deseruiret that-is when the Office of the Iudge is as it were hired and employed but at another mans becke to serue his turne For albeit in temporall courtes of other realmes long custome which is 1 Crauetta Consil 238. nu 7. the Wel-spring of all their iurisdiction hath 2 Alph. lib. 3. c. 11. established the verie same course of proceeding in causes criminall euen at the instance of a Partie with that which may bee done when the Office of the Court alone proceedeth neuerthelesse the lawe it selfe hath giuen greater priuiledges vnto proceeding of Meere Office then vnto the other which was some occasion also why it was the rather called Nobile Officium Iudicis The first priuiledge is that whereas by lawe nowe altered by Custome an Accuser or Partie properlie so called is in danger of Poenatalionis if he faile in his proofes Propter praesumptam Calumniam yet the presumption and entendment 3 Arg. c. in nostr de procur in c. ad audientiam de praescrip of lawe runneth not so agaynst a Iudge exercising but the publike lawes by his Office as it doeth against a Partie And therefore is hee not subiect to that penaltie as a prosecuteris 4 l. iniuriarū §. 1. ff de iniurijs Non videtur facere iniuriam qui iure publico vtitur The next priuiledge by lawe yeelded vnto proceeding of Office in a Criminall cause which is denied to a prosecuter yea though he bee not an Accuser or Partie properlie so called is that the Iudge proceeding 5 Panor in c. qualiter el. 2. de accusat of Office may giue an othe to the defendant to answere some criminall matter But it is otherwise when the suite is at the instance of a partie which prosecuteth because the defendant ought not to bee driuen to furnish vp his aduersaries intention Thirdly an Ordinarie or delegate Advniuersitatem causarum that proceedeth of Office is not bound to make proofes of the 6 Pan. ibid. alij DD. fame sauing before his superiour Iudge if an appellation be brought and doe lie because it sufficeth that the fame is apparant and knowen vnto himselfe But it is otherwise in a delegate of one cause or vpon the instance of one that voluntarily prosecuteth Fourthly when the sute is at the instance of a partie contrarie proofes for proofe of the defendants good fame are admitted But this need not be granted vpon proceeding of Office because 1 Arg. c. in nostr de procur c. ad audientiam de praescrip the law doth not entend and presume against the sinceritie of the Iudge as against the partie prosecuting Fiftly vpon the instance of a voluntarie prosecutour or preferrer vnto the Office 2 Hostiens in c. cum clamor de testibus fit litis contestatio as I may English it an issue is ioyned betweene the two parties But if either one be but a soliciter and assistant to the Office or els a preferrer assigned by the Iudge or that the proceeding be of meere Office there is then no contestation in the sute properly so to be termed but a kinde of contradiction in sted thereof required betwixt the fame or denunciation c. on the one side and the defendants answere by deniall on the other side Lastly when the proceeding is of Office 4 Arg. c. cum clamor de
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
Ed. 4. 23. the Iudges finding the plea to be of Ecclesiasticall iurisdiction did ex officio at no mans instance dismisse it out of that court as not perteining to their iurisdiction And do we not often see the ordinarie course for enditements much assisted and holpen by the Iudges and Iustices search examinations and dealing therein of office and duetie onely both in treasons felonies and in other causes of more priuate interest that be preferred by others doe they not also vpon their owne discretion for causes knowen to themselues without prosecution of any partie and so ex officio onely often times commit persons of suspected behauiour to prison and not dismisse them till by a writ of enquirie de bono gestu fama they be found worthie to be set at libertie So that by these few and sundry other that might be brought it may appeare that proceeding and enquirie ex officio is so farre from being so much as a diuers course from the lawes of the Realme that it is often practised thereby when no partie besides the Iudges themselues do entermeddle But it is not onely by that law practised but also allowed by it for a lawfull course of proceeding in Ecclesiasticall Courts against crimes and offences By a statute of 3 2. H. 5. cap. 1. Henrie the fift such an Inquisition of Hospitals of the Kings foundation is appointed vnto Ordinaries and in those that be of any other mans foundation Ordinaries are authorised not onely to enquire of the foundation estate and gouernance of them and of all other matters necessarie in that behalfe but also to make thereof correction reformation after the lawes of holy Church as to them belongeth So that if Ecclesiasticall lawes doe warrant this enquirie and course of reformation and correction then this statute will giue force vnto it By 4 1. H. 7. cap. 4. another statute If any Clerkes be conuicted of incontinent liuing in their bodies being but afore perhaps openly noised thereof before whom conuicted afore Ordinaries How by examination other lawfull proofe requisite by the law of the Church they may by the Ordinarie at his discretion be committed to ward Which together with the committing must needs be both done ex officio for that no partie to prosecute is there mentioned to be required and because the Ordinarie thereby may proceed vpon the publike infamie noised abroad The statute of 1 23. H. 8. ca. 9. Citations made afterward mentioneth a case where an inferior Ordinarie may be partie to a suite holden afore him which may aswell be vnderstood in a cause mooued of Office for an offence as in any other matter But more plainely afterward for there the very word ex Officio is vsed and it is prouided that the forfeiture of that statute for calling a man out of the iurisdiction where he dwelleth shall runne against him that cited whether he proceed by vertue of his office or at the suite of any person Whereof may be gathered that the lawes of the Realme take knowledge of that course ex officio to be as warrantable as the other made at the suite of a partie so that other requisites be obserued And though the statute against Heresie stand 2 27. H. 8. ca. 10 now repealed yet it may serue to prooue that not onely inquirie but examination also of the partie himselfe in a visitation by Ordinaries both which are done ex officio is holden for a course of the law ecclesiasticall not to be condemned or disallowed by the lawes of the Realme In a statute touching 3 1. Ed. 6. cap. 2. Ordinaries seales now also repealed certeine ecclesiasticall causes be rehearsed among which causes of instance betwixt partie and partie are plainly seuered distinguished from causes of correction thereby giuing vs to vnderstand also how rarely causes of correction be prosecuted by any partie but by the Iudge ecclesiasticall himselfe alone proceeding of Office And 4 1. Eliz. cap. 2. by a statute in the first yeere of her Maiesties reigne made for vniformitie of Common prayer Ordinaries are authorised to inquire and to punish c. the violation of that act as heretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes But that an enquiry is alwayes of office and what the lawes ecclesiasticall be in this behalfe and how the continuall vse hath bene is shewed afore so that none need remaine doubtfull in these points The very Common law not onely taketh knowledge of this course holden in Courts ecclesiasticall but in some respect doth also priuiledge it euen aboue the proceeding by a partie 1 7. H. 4. 18. For if an Ordinarie doe sequester goods of the dead for any contumacie or ex Officio which giueth no possession to him the court spirituall in this case shall haue Iurisdiction And it seemeth by that case the lawe to be otherwise when it is at the suite of a Partie So in a case 2 M. 20. E. 4. 10. of violent hands laied vpon a Clerke both Brian and Litleton held no man gaine saying of it that the spirituall court may punish it ex officio but not at the suite of the partie least the beater thereby bee kept from his absolution till some temporall duetie bee contented and paied And Mordant 3 T. 12. H. 7. sol 22. was of opinion that if a man bee sued by a partie pro laesione fidei in not paying a summe of money promised there shall lie a Prohibition yet if the iudge ecclesiasticall shall doe it ex officio that then no Prohibition shall lie Neither doeth any gaine say him herein Vnto which opinion of his another iudgement giuen in the 4 Assis. lib. 22. pag. 70. booke of Assises in like case seemeth to accord To like effect also 5 Fitzh nou nat breu tit Consultation fol. 50. c. Fitzherbert reporteth that an Ordinarie may cite and proceed against a man ex Officio pro violenta manuum iniectione in Clericum likewise for tithes detained in the time of vacation of a benefice so he may cite also such as refuse to maintaine a Curate or Chaplaine and for fornication or like offences Fitzherbert 6 Nou. nat br pag. 64. E. in another place also thus writeth If a man saieth he be sued in court Christian or if the bishop sue and cite him ex Officio and excommunicate him c. And againe 7 Ibid. litera F. thus Significauit lieth not but where the partie is excommunicate by name maiori excōmunicatione vpon a spectall suite against him ex Officio or by a partie therefore both are alike lawfull and allowable by the common lawe And that for wrongfull detaining of tithes in time of vacation of a benefice the ecclesiasticall Iudge may cite and proceed ex Officio doeth plainly appeare euen by 8 Liberties of the Clergie out of the lawes of the realme by Iohn Gooddall Printed by Rob. Wier
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
Formall cause of the vse of Oathes chapter 1 An answere to certaine doubtes made concerning Oathes as namely why in Scripture God is said to haue sworne how by Oath he is said to be called to witnesse an Oath no chapter 2 tempting of God but a part of his worship way neuerthelesse some are repelled from taking Oath whether Adiuration be lawfull after whose meaning an Oath is to bee vnderstoode whether euery Pr◅m ssor◅e Oath bee simply to be kept whether an Oath may bee dispensed with and how farre and whether a Christian may by mutuall Oathes contract with him that sweareth by false gods Diuision of Oathes according to the outward forme of taking them according to the matter and inward forme of them with plaine description of euery kind of oathe chapter 3 That the ceremonies vsed in taking and giuing corporall oathes with laying hands vpon chapter 4 the Bible or Testament and swearing by the contents of it are not vnlawfull The true issue of the next opinion in question two sortes of crimes and offences prohibited in what cases an oath here spoken of may not be ministred and the manifolde conueniencie chapter 5 and necessitie of an oath sometimes to be ministred in a cause criminall and penall vnto the partie with some fewe obiections touching inconueniencie thereof an◅wered That oathes of men touching matters dammageable criminall and penall to themselues chapter 6 are vrged and exacted by temporall Courts and by the lawes of this Realme Wherein are conteyned answeres to such obiections and reasons as be made for proofe of a chapter 7 contrarietie or repugnācie in these oathes vnto the statutes lawes or customes of this Realme and a Replie to the Treatisors answers made vnto certaine obiections supposed likely to be made in Iustification of this kind of oath by the temporall lawes That ministring of such oathes is by the Lawes of the Realme allowed vnto Iudges of Ecclesiasticall chapter 8 courts and some fewe obiections made to the contrary are answered That such oath touching a mans owne crime is allowed both by the Canon and Ciuill chapter 9 lawes how faire and in what sort and that the like is established and thought equall by the lawes and customes of sundry other nations a◅well ancient as moderne An answere to some obiections pretended to be made against this kind of oath from the chapter 10 lawes Ciuill or Canon That not onely such an oath may be taken but also being by Magistrates duely commaunded chapter 11 ought not to be refused is approoued 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 An answere to such obiections as be pretended to be gathered from Diuinitie Diuines chapter 12 and from the Examples of godly men against ministring oathes vnto parties in matters of their owne crimes Foure seuerall opinions of the Innouators against the parties taking of oath in criminall chapter 13 causes with answeres also vnto their reasons and obiections That a man being charged by authoritie to discouer his knowledge touching some offence chapter 14 which his Christian brother is supposed to haue done is bound to reueale it though it may breede trouble and punishment to his brother and the reasons to the contrary are answered and refuted Their arguments are answered that condemne the ministring and taking of an oath as chapter 15 vnlawfull because they haue not distinct knowledge giuen vnto them of euery particular before the taking of it and the like course by examples is approoued lawfull and godly That after the partie hath answered vpon his oath it is neyther vnusuall vnlawfull not chapter 16 vngodly to seeke to conuince him by witnesses or other triall if hee bee supposed not to haue deliuered a plaine and full trueth and somewhat also in approbation of Canonicall Purgations with answere to the Treatisours obiections against them The third part of an Apologie for certaine proceedings by Ecclesiasticall iurisdiction of late times by some chalenged CHAP. I. Matters in this third part to be handled Of the lawfulnesse of Oathes What an Oath is and the reason or originall Formall cause of the vse of Oathes THat which followeth in this third part of Apologie to be handled according to the order that I haue proposed to my selfe in the Preface before the second are the chalenges taken either to the oath of the partie which is sued conuented they are either against the ceremony outward actions vsed in taking it or els because it is giuen to tie the party to answer in a cause criminall penall vnto himself or else they are against examining vrging men to depose touching actions of their brethren being criminall or at least such as albeit the examiners do hold and make to be criminall and misdemeanors yet the examinates themselues doe take them for good and godly not deseruing any punishment but rather high commendation Or they doe touch some circumstance concurring with the tender of the oath as that the examinates haue not distinct knowledge of euery particular whereupon they are to bee examined before they resolue whether to take the oath or not Or lastly they concerne some euent ensuing the oath and examination as that the Iudges doe not rest in that which is affirmed or denied vpon the parties oath but oftentimes proceed to a further examination by witnesses concerning the same points This matter of an oath is a principall chalenge of theirs which they drawe and spinne out into these particular exceptions and chalenges as yousee And it is the thing together with proceeding against crimes and offences by way of Enquirie Ex officio wherein you most especially desired a full resolution which would to God either in the rest or in this I were as able to doe as I am readie and willing and as the matter it selfe and goodnesse of the cause would yeeld and affoord to a skilful and sufficient man But the rather to performe my promised vtmost endeuour I hold it not amisse for better vnderstanding of the rest to touch as brieflie and plainly as I can the nature of an oath and some I trust not vnnecessarie questions about that matter which I haue collected First I will touch but very briefly not taking vpon me to doe it in sort as Diuines could the lawfulnesse of oaths with answere to some obiections which is the question An sit I will stand the lesse herein least I seeme to seeke to drawe any of them into hatred as if these innouating disciplinarians did directly condemne oathes before Magistrates which most solemnly they protest they doe not Albeit if all their positions hereabouts were scanned and compared together some holden deliuered by one and some by others of them both shrewd and lewde conclusions pricking fast forwarde to this point would necessarily thereupon follow Next I wil handle what an oath is which is the question Quid sit Then the originall Formall
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
plaintife sworne to the trueth of his declaration and shall haue it If the plaintife sweare the defendant is condemned and if the plaintife refuse he is barred And may not this delation of such decisorie oath occasion and causatiuely vrge the plaintife sometimes to discouer himselfe to haue demaunded a debt not due which is dishonestie and vniustice or perhaps induce him to periurie partly for filthie lucres sake partly that he may not seeme to haue dishonestly demaunded what was not due vnto him if then a priuate person neuerthelesse may so deferre an oath but in a priuate money matter how much more may a magistrate in a publike crime these doubts and perils notwithstanding And the like decisorie oathes be not onely receiued in that Citie alone but also at the common lawe For 3 19. H. 6. 43. when the defendant desires that the plaintife may be examined or sworne this is peremptorie to the plaintife in this point and so is the wager of lawe ex parte defendentis In an action of 4 44. Ed. 3. 41. detinue brought against a Deane for a chest sealed with certaine golde siluer and Charters in it as being deliuered to his predecessour the Deane tendered his law that is his oath quod non detinet and the opinion of the court was that he should haue it Now who seeth not howe many wayes this course may no lesse induce men vnto periurie For doeth not common experience teach vs howe readily for a trifling piece of gaine tradesmen in buying and selling will sweare falsely or els cautelously which is all one fault before God yea when as no such matter is required or exspected at their hands therefore howe much more strongly may periurie bee feared in a matter of good weight especially when men by the vexation and sute of their aduersaries are whetted on and where as they hauing a good while stoode in deniall their credits amongs other men might otherwise be called in question and seeme to be impayred And yet this danger that periurie may perhaps ensue is no sufficient reason to change the common lawe in this behalfe Howe then can most of the Treatisours arguments holde which are chiefly grounded vpon perill of periurie which he saith is likely a man will fall into rather then haue his good name and honestie brought into question and hazarded I haue also credibly heard that in the time of that Reuerend Iudge Dyer the court of Common pleas examined certaine by their corporall oathes touching a very lewde plat layde by some of them and the names of the dealers pro contra in that cause were as I remember Greuill Pyue and Hockam which being so found out was condignely also punished in some of the offendours both by perpetuall infamie and with other punishment CHAP. VII Wherein are conteyned answeres to such obiections and reasons as bee made for proofe of a contrarietie or repugnancie in these oathes vnto the statutes lawes or Customes of this Realme and a Replie to the Treatisors answeres made vnto certaine obiections supposed likely to be made in Iustification of this kinde of oath by the temporall lawes IN this Chapter I purpose God willing to answere those poynts which by the Treatisour or Note-gatherer are brought to perswade that such oath as here we handle is either plainely impugned or closely contraryed by the lawes temporall of this Realme Vnder this consideration doe fall certaine bare affirmations about this matter their reasons for this assertion and their answeres to such obiections as are by them supposed may be made in defense of this kinde of oath Among their bare affirmations about this matter I recken some things which they imagine to be sayde or practised by Ecclesiasticall Courtes or persons and that which they affirme the common lawe either holdeth or practiseth on the one side or els on the other side forbeareth to put in vse in this behalfe To the poynt of practise by persons and Courtes Ecclesiasticall are referred those the Treatisours imputations whereby he surmiseth generall oathes for all a mans thoughts wordes and workes to bee ministred by them and that vpon the Ecclesiasticall Iudges onely iealousie and suspition without any other lawfull inducement precedent Likewise that it is tendered in matters tending to losse of life or of limme All which I haue else-where shewed to bee very vntrue and slanderous Hither also is to be reduced another speech of the Treatisours for whereas the defenders of this oath doe affirme it as it is practised but not in such a catholike or vniuersall maner as he sporteth himselfe at to be warranted by the temporall lawes he saith that this is a foule sclander both to our lawes and to the Iustice of our land The trueth or falsehoode of which his fowle saying will appeare vpon perusall of the next precedent of this and of the next Chapters following And so will also these other his speeches to like purpose viz. where hee calleth it an alien heretofore entruded as a trouble some ghest into the house of our common wealth And where he saith that as Sir William Thorpe by his corrupt dealing so much as in him lay had broken the oath which the king is bound to keepe towards his people so the ecclesiasticall Iudges practising in their Courts and tribunall seates the selfe same vniust and vnlawfull maner of proceedings against the kings people coulde not escape the seuere sentence of lawe pronouncing them offensiue butchers and violatours of the king and iniurious dealers agaynst his Regalitie crowne and kingdome and so consequently c. in a Praemunire But for any testimonie of this corrupt dealing of Sir William Thorpes which here hee speaketh of or of his breaking of the kings oath and so seuere sentence of lawe passed in that respect against his butcherie and violation of the kings Regalitie c. though I haue sought for it yet can I not finde neither doth the Treatisour giue vs any direction for it His meaning herein though couered with slye wordes is easie to bee discerned through his vizard For if the oath were made by the king onely how could it bee broken by Thorpe and the king bee vnblameable for no man is simplie bound by oath to performe other mens integrities and seeing hee chargeth ecclesiasticall Iudges with the selfe same vniust and vnlawfull maner of proceeding though his conclusion drawen from the likenesse betwixt these cases be onely this videlicet that they are thereby fallen into Praemunire yet his very meaning and what conclusion was by him meant to haue followed thereon by the former part of the comparison is made apparant videlicet a couert disloyall and most lewde charge as if some now had no lesse broken the oath which they haue taken howbeit procured or induced thereunto by Iudges and Courtes ecclesiasticall But if such Ecclesiasticall Iudges haue neither indeuoured any such breach neither yet their practise of the oathe by him here condemned bee impugned by any
and matters Temporall betweene which and causes ecclesiasticall as is noted afore there was made both in those times and also long after a plaine seuerance and distinction in the groundes of their seuerall authorities and iurisdictions so that the one was called the Kings Court and the other a Spirituall or Court Christian. and therefore as nothing was in that Charter anewe graunted but confirmed onely vnto the Church of England so is it to be iudged on all handes that the king would not make lawes there to restraine the courses of proceeding ecclesiasticall because it could not be without disanulling and reuoking of that which immediately afore euen by the same Acte hee had first of all confirmed vnto them Secondly a Bailife onely is there mentioned which should put or not put a man to his oath which cannot well and properlie be vnderstood of any but of some officer temporall Thirdly these wordes are no way appliable to the practise of courtes ecclesiasticall for albeit vnder the name of Bailife an Ordinarie might be vnderstood which were very harsh insomuch as a Bailife is but a Reeue of a Baile or Libertie yet is it not holden by any lawe ecclesiasticall that vpon an Ordinaries owne bare saying whether he haue witnesses after to bee produced or not a man may bee put to an oath for there must bee some better matter of inducement to open way to the enquirie whereupon the oath ensueth Lastly this statute will rather hurt then helpe forward these mens purposes if an Ordinarie might here be vnderstood by a Baylife because if I conceiue the matter aright by this is implyed that so an Ordinarie be able to bring in good witnesses he may then vpon his bare saying put a man to his open lawe or to an oath But hereupon would followe that Criminall prosecution without any accuser or other partie and so ex officio mero yea and without any presentment too may bee lawfully admitted and which is most to our present purpose in handling that an oath in such case by him may bee imposed in any matter aswell Criminall as other For heere is no distinction made of any one kinde of cause from another and they which alledge it doe bring it to impugne proceeding by the defendants oath against crimes The allegation of the Treatisour out of the statute of Marlebridge or Marleborough falleth next in time to bee considered the whole wordes 1 Marlebr 52. H. 3. cap. 22. whereof are these none from hencefoorth may distreyne his freeholders to answere for their free holdes nor for any thing touching their freeholde without the kings writ nor shall cause his freeholders to sweare against their willes for no man may doe that without the kings commaundement But the Treatisour leaueth out the first part which sheweth howe the second that he alledgeth is to be vnderstoode And because like the lapwing with her diuerting c◅ies hee would leade vs further and further from the matter herein chiefly to be respected or for that he thought wee would make some aduantage hereof he saith that the kings commaundement importeth here thus much viz. according to the law Iustice of this Realme and for this quoteth a booke thus 2. R. 3. The booke he meaneth as I gesse is in 2 Mich. 2. R. 3. sol 11. these words wheresoeuer a man for offence misprision or otherwise is to make fine or redemption all the Iustices agreed that those Iustices before whome he was committed c. should take suretie and pledges for the fine c. and after by their discretion they should assesse the fine and not the king in his chamber nor otherwise before him but by his Iustices and so is the kings will in statute to be taken viz. by his Iustices and his lawe which to say in effect is all one c. Where you see that the booke speaking of Iustices viz. the men before whome the conuiction was made he referreth this to the Iustice of the land But though it be neither off nor on to our Principall purpose neuerthelesse it seemeth this booke is not truely applied by him vnto this statute and that by the kings commaundement in the statute the kings writ is to be vnderstood as in the first part of that statute is plainely expressed rather then any determination or Act of his Iustices of the Bench. Touching the statute it selfe the wordes doe euidently shew that neither oath in cause criminall nor any Court Ecclesiasticall is thereby meant there is onely forbidden that lords of manors shall not inforce their Freeholders that holde lande of them whether it be by distresse or oathes to answere in their Courtes baron touching the estates they haue in their landes because neither the lordes owne courts in such a case be competent or indifferent for feare of vnlawfull euiction nor the goodnesse or weakenesse of the states men holde are meete to be fished out by their owne oathes in satisfaction of their lordes greedinesse to haue their lands except the king by his writ shall so especially command And yet hereby wee see the statute leaueth it at large at the kings pleasure to warrant euen this course and therefore this is not simply vniust but inconuenient onely for lords so to vrge their tenants He alledgeth further against these oathes a statute as hee saith made 43. Ed. 3. ca. 9. that no man be put to answere without presentment before Iustice or matter of Record or by due proces or by writ originall after the ancient lawes of this land But I doe finde no such statute either in that yeere or in any other like number of Chapter of that king and that Parliament which he voucheth hath not so many Chapters But admitting it what is this to proue an vnlawfulnesse of oathes ministred vnto defendants in matters criminall whereof there is no shadowe of mention it rather speaketh of matters that ought to goe afore proceedings criminall at the common lawe and what makes this against Courts Ecclesiasticall woulde hee haue them to proceede in the selfe same maner that common lawe courts doe hee might aswell exact of them Indictments and afterward tryals by Iuries of twelue and yet Ecclesiasticall courts put none to answere but vpon moe then one of these or at least that which is equiualent at that lawe vnto these at the common lawe For first courts Ecclesiastical haue great vse of presentments and complaints or denunciations before the partie be called to answere as is shewed in the second part Then the defendant is not called neither but by due processe as by letters missiue or by attachment in Courtes of Commission by Primarie citation in Ordinarie Courtes which haue a correspondence vnto originall writs at the cōmon law So that of foure matters wherof some one or other of them is thereby required three of them be vsed in Ecclesiasticall proceedings against crymes His next proofe of this kinde cōming to be discussed is out of the 1 25.
the Imposers of them to be in a Praemunire for incroching vpon the Kings rights and prerogatiues and for conuenting subiects by forrein made Lawes and for practising Antichristian Decrees and Popish Canons which hee sayeth appeareth by the Praemunire brought by Hunne against a person suing the said Hunne for his yoong deceased infants bearing-cloth by the name of a Mortuarie in an Ecclesiasticall Court howe doth this inferre that it is Praemunire either to encroch vpon the Kings rights prerogatiues though this peraduenture by some circumstances may amounte sometimes to no lesse or to conuent subiects by foreine made lawes It may not be thought that euery intrusion deteiner or concealement which is incroching vpon the Kings right or rauishment of his wardes which hee ought to haue by his Prerogatiue Royall is straightway and necessarilie a Praemunire neither were the Kings Temporall Courtes in this case encroched vpon because they could not giue remedie for deteining a Mortuary if this were so in trueth to be accounted neither yet is there so much as any mention made of foreine lawes which the Ecclesiasticall Court then proceeded by or practised This course of the Treatisour is rather to prophesie then to reason thus to tell vs afore hand vpon the very bringing of the action of Praemunire by Hunne what the iudgement was in that matter yea and vpon what ground the iudgement was giuen in a cause which neuer receiued iudgement for any thing I can learne To this point he also mentioneth the Praemunire wherein blind Nixe sometimes Bishop of Norwich was condemned and addeth to the aforesaid two points that by that also appeareth Iudges Ecclesiasticall are in Praemunire whensoeuer they exceede their Iudiciall authority But if euery exceeding of authoritie were a Praemunire then what Iudge is there of any court of either sort so skilfull or alwayes so aduised but might iustly feare that at one time or other he shall not escape this rigorous doom of Praemunire In trueth this example prooueth all his three points iust alike that is none of them at all I doe verily beleeue the Treatisour neuer sawe that Record if he haue either he makes verie bolde with his Reader or else with the Arte of reasoning thus to collect I haue perused the Record 1 H. 25 H. 8. Rot. 42. Suffolk it selfe it containeth a suite of Praemunire brought against the saide Bishop by the Kings Attourny generall on the Friday after the Pâ—…rification pleading the Statute of 16. Ric. 2 and adding that al Indictments Presentments and Impetitions in any court of the Kings 2 B. Nixe his condemnation in a Praemunite or in any Court of a subiects which is in any sort deriued or diduced from the Kings crowne duely taken or found are to be tried iudged in that Court where they were found or in some of the Kings Courts and not in any Ecclesiasticall Court and that whereas there was an old custome in the Towne of Thetford that whosoeuer should trouble any of the Kings or Duke of Lancasters tenants commorant in that Towne and shoulde call them by citation into an Ecclesiasticall Court out of the Deanery of the saide Towne shoulde thereby forfeit and he also that should execute such processe should also forfeit 6 shillings 8. pence which custom by a Iurie of twelue men being accordingly presented before the Maior the said B. cited the Maior two others to appeare personally before him in his Mannor and Chappell at Hoxne or Hoxstone in Suffolke The Maior and the one of the other two appearing and hauing nothing obiected but that presentment made were by the B. enioyned vpon paine of excommunication at the next court of the Kings to be holden in Thetford to call the same Iurours together and therepublikely to adnull and reuoke the said presentment as being against Gods Lawe so that saith the Record the B. did in an Ecclesiasticall Court iudge of the presentment being duely made in the Kings court and enioyned the reuoking and disanulling of it against the King his regalitie crowne c. wherevpon immediately the Bishop appeared and desired libertie of imparlance till monday next after and had it graunted vpon good mainprise c. On the prefixed monday the B. appeared againe and said he could not deny but that he was culpable in all the premisses put himselfe thereupon into the Kings hands c. so had iudgement to be from thenceforth out of the Kings protection and al his lands and tenements goods chattels to be forfeited to the King and that he should remaine in the custody of the Marshall quousque c. but presently vpon special grace of of the Court he was let to baile in a far lesse summe then afore for his appearance in Easter terme next after At what time hee appeared by his Atturney and both he and his pledges were discharged by vertue of an Act of Parliament made the same yeere Whereby wee may see that encroching vpon the Kings rights c. is not heere specially assigned for any cause of such iudgement and much lesse is the practising of any Canons or forreine made Lawes for they are not once mentioned and least of all that euery exceeding of their authoritie by any Court shoulde be a Praemunire For the originall and onely cause hereof was the B. enioyning of the Maior and of another townesman of Thetford vpon paine of censures to adnull and make voyde a presentment first duly made in a temporall Court of the Kings It is also to be noted out of the generall Atturneys bill in this Record where it is saide that presentments c. found or made in the Kings or in a subiects Court which is in any sort deriued from the Kings crowne must be tried there or in some of the Kings Courts and not in an ecclesiasticall Court that at this time Courts ecclesiasticall were not holden to be deriued any way from the Kings Crowne as no we they are and so bee acknowledged and indeede by conferring the times I finde that this fault of the Bishop was done in Nouember 24. H. 8. hee was attainted in Hilarie terme 25. H. 8. which is a yeere and more after and it was in a Parliament time that was continued till 30. Martij next aster Now the supremeheadship ouer the English Church was not yeelded vnto the King vntill the Parliament by prorogation holden the third of Nouember then next following viz. 26. H. 8. That which the Treatisour collecteth by Cardinall Wolseys Praemunire and the whole Cleargies also for assenting to and assisting the Court Legatiue which the saide Wolsey had erected hee himselfe doth sufficiently confute for albeit hee doe affirme that Wolsey was in a Praemunire for preiudicing but ecclesiasticall Courtes and not the Kings and thence gathereth thus How much more those which practise Antichristian Lawes and Popish Canons repugnant to the royall Matestie and policie of this laend yet doeth hee by implication contrary his owne
CoÌ„missioners wil take it as a great benefit to haue bin instructed by theÌ„ in a point touching the pleasure of God increase of vertue conseruation of vnitie which by most of their large trauels in Diuinitie by themselues they haue not hitherto fouÌ„d Howbeit this last part of his saying seemeth vnto me to sound as if he would not stick any more to grant vnto vs that the large words of the Act doe allow of this oath So that we finde nothing any way materiall by him alleaged to impeach our former conclusion viz. that the common lawes and statutes of this Realme allowe such oaths to be tendered by Ecclesiastical Iudges therfore the oath of the partie in some matter of crime that may be daÌ„mageable penal vnto him is both in practise is alowed also to be practised in courts ecclesiastical by y e lawes of this realme CHAP. IX That such oath touching a mans owne crime is allowed both by the Canon and Ciuill lawes howe farre and in what sort and that the like is established and thought equall by the lawes customes of sundry other nations aswell ancient as moderne SEing then the giuing of an oath in a cause criminall penall to a mans owne selfe is practised by the lawes of the Realme and allowed by them vnto courts Ecclesiasticall in both which respects such Canons as prescribe it are by statute warranted to be still vsed as they were before the making of the Act. 25. H. 8. and in trueth haue bene alwayes since let vs therefore see whether this course be iustifiable also by Canon and Ciuill lawes and by them allowed and practised First the lawes of the realme that do allow certaine matters to be of ecclesiasticall conusance caÌ„not be intended but to allow an ecclesiastical forme of proceeding by such lawes receiued For it were as vnreasonable to barre them from proceeding in a cause ecclesiasticall according to that lawe as it would be to require of them to deale by way of Inditements and Iuries Those lawes are so plentisull in this point that it were vaine to set downe but a tenth part of that which in this behalfe might be sayd Therefore I holde it best to shewe vnto you what is the lawe herein agreeable also to the practise in ordinarie courts ecclesiasticall as I conceiue it in as great briefnes as I can which may boâ—…h declare that by those lawes it is allowed how farre and why it is lawfull may also serue to answere by true distinction vnto all obiections drawen out of either of those lawes against this course An oath touching a criminall position or matter is either taken by a witnes or by a partie A witnes by the very nature of testimonie must depose indifferently aswell for the partie against whom he is produced as for him which produceth him And therefore is to answere truely not onely to the positions and articles giuen in by him by whom he is produced but also vnto the lawfull and pertinent Interrogatories ministred euen by the aduerse part In which Interrogatories two seuerall sortes of matters may be conteined tending to disable him from giuing testimonie The first is an Interrogatorie tending to the discouerie of his owne turpitude and vnto 1 Felinus in ca. cum causam de testibus nu 10. per communem opinionem this whether it concerne any crime supposed to be committed by the witnes or his confession thereof or the fame and infamie against him of such crime or a sentence thereof or an excommunication thereupon gone out against him or any such like matter he is not bound to answer vpon his oath though he haue done penance for it and thereby be presumed to be reformed The reason hereof is truely alleaged to be this 2 Io. Andr. in ca. 2. de confessis nu 6. per c. ex tu arum de purgat Canon c. because the end of such a criminous Interrogatory ministred by way of exception or barre to a witnes or to an accuser is onely to disable him from accusing or witnessing not to the acquitall or condemnation of the person so challenged of the crime as the ende is where a Purgation of a mans owne selfe is to be enioyned therefore no reason to aske it of himselfe For as one wel saith by the 3 Alph. Villag in Pract. Can. li. 3. c. 13. conclus 3. order of charitie eche man is bound to loue his owne body and fame one degree sooner and neerer then his neighbours insomuch as the loue towards our selues is made the rule howe to loue our neighbours in which respect it is sayd that ordinaria charitas incipit a seipsa and therefore no man is bound to furnish one that standeth opposeth himselfe against him euen against himselfe in matter of crimes but sayth he it is otherwise when a man is vrged to the like by a Magistrate that is his competent Iudge Whereby the reason of the 4 Vide 2. Part. pag. 36. priuilege of an oath ministred ex officio aboue that which is at the instance of a partie appeareth The second sort of Interrogatories tending to the disabling of a witnes is such as conteine no turpitude in themselues as 5 Felin ibid. per Baldum Interrogatories touching his condition as whether he be bond or free or of his pouertie kindred or aliance and such like and to these he is bound to answere When a criminall matter is obiected as to be answered by him that is partie vnto the suite it either toucheth the crime of some witnesse by him produced or else the partie his owne crime if 1 Specul de teste § iam de interrogat it toucheth a crime of his owne witnesse he must answere it by the vertue of that part of Iuramentum calumniae by him taken which is that he shal not burthen more then needs his aduersary in making his proofes but shall himselfe confesse a trueth therein when he is asked But when it toucheth the parties owne crime it is of two diuers considerations for either the cause is Ciuilly mooued for the priuate interest of the prosecutor or els criminally for publike punishment If the suite be but ciuilly mooued the criminous position or interrogatorie may concerne such a crime as being concealed brings benefit commoditie to him with another mans losse And in 2 Bartol in l. Manellus §. qui rerum nu 30. ff rerum amotarum this case albeit there be no fame or no detection precedent the partie is bound to answere it vpon his oath But if the concealing of it cannot procure his gaine with another mans losse 3 L. qui iurasse §. qui pater ff de iureiur ibi glo l. si a te ff de excep rei iudic then is not the partie himselfe in such case bound to answere a position criminous so mooued by his oath yet euen in this 4 Bartol vbi supra
refused they neither had any wages nor any oyle or oliues For as it is by 2 c. fin §. 1. de iuram calum c. inter solicitudines d. lawe that when probable tokens or presumptions c. doe appeare hee that refuseth to take oathe though the cause bee criminall is reputed conuicted thereof So was it holden among the olde Romanes for an assured note of guiltinesse to refuse to take such oathe as may bee noted by the historie of Victorinus when hee was lord Generall of Germanie for 3 Xiphilinus in Commodo hauing his Legate or Lieutenant in some suspicion for corruption he did priuately seeke to perswade with him to take an oathe that hee would not suffer himselfe to be bribed which when he could not obtaine of him the Generall himselfe came into the Tribunall seate and there did sweare that he neither had nor euer would accept of anie bribes then he commanded his Legate to take and binde himselfe with the like oathe which because hee refused the Generall commanded that hee should giue ouer his office and place And that it might bee better discerned whether any man vpon guiltinesse of his owne conscience would at taking his oathe blanch alter the very words of the oath they somtimes deuied to haue a solemne oath whereby he that gaue the oath did vtter certaine set and conceiued words as he thought fittest which he that sware was preciselie to follow or else it serued not his turne as afore hath bene noted This they called Conceptis verbis iurare and the Graecians termed it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a solemne imposed oath An example hereof in a very fowle cause we reade in 4 Tacit. lib. 〈◊〉 Annalium Cornelius Tacitus The Senate couceiued a forme of oath and the chiefe of them first beginning to take it prouoked by their example all the rest of the Magistrates as they were asked their voyces to call God to witnesse that by their meanes nothing had bene done whereby the safetie of any citizen might bee hurt nor that they had gotten either reward or honour through the calamitie of any other Citizens but it was perceiued that such as had a guiltie conscience herein did come but tremblinglie to it and chaunged the set conceiued wordes of the oathe like as those are woont to doe who sweare falsely or cautelouslte When the Praetor one of the 1 Lex Seruilia Glauciae apud Sigonium li. 2. ca. 6 de iudicijs chiefe Magistrates of Rome had made choice of 450. Judges for deciding of causes he was by lawe for his owne clearing to sweare that hee had not wittingly chosen any of them dolo malo viz. by fraud mal-engine or for any other sinister respect By all which the premisses out of the Canon Ciuill and the lawes and customes of other nations may appeare how lawfull and equall a course it was by them also holden vpon sundry occasions to vrge oaths though some matter criminall in the partie himselfe might thereby be disclosed CHAP. X. An answere to some obiections pretended to be made against this kind of oath from the lawes Ciuil or Canon IN this Chapter such obiections as already are and some which perhaps hereafter may bee made against this kind of oath from the Ciuill or Canon lawes come to be answered Of these most be made by the Treatisour c. and some may hereafter be obiected perhaps by others The Treatisours be either against some circumstances about it or else against the oath it selfe But first touching his by-matters or circumstances Because the priuate Schedule concerning these oaths which was set downe by certaine Doctors as is mentioned in the epistle to the Reader conteineth that the defendant in a cause criminall is to answere other Articles so they be not tending to the crime it selfe though it be at the suite of a partie hee saieth that the Maxime of nemo tenetur seipsum prodere is thereby so weakened as it will scarcely nowe serue for a Minime For reason of this consequence hee asketh if this be not to goe like the crabbe oblique and to proceed the same way although not to treade the direct steppes and asketh also what should be meant by other articles but such as concerne circumstances and inducements to the crimes He is therefore to vnderstand that at the suite of a partie a man by those lawes is neither to answere criminous articles diducing 1 Angelus de maleficijs the very crime it selfe nor yet such as haue any neere coherence thereto or be propinqui Actus ipsi maleficio But of other matters hauing none affinitie with the very crime as whether he be of that Iurisdiction and such like the defendant is by vertue of his oath euen at another mans suite to answere and therefore no such crooked measure is offered herein at all But he seeth no reason he saith why there should be any difference betweene the suite and instance of the partie and the proceeding ex officio in that the reason alledged for to make a difference is but this Penancies enioyned by Ordinaries are not taken in lawe for poenae but medicina If he see not this why there should be any difference betweene those two proceedings I maruaile then what cause he can see so highly else-where to magnifie the course of proceeding by an Accusour as very equall and iust but to condemne simply all proceeding of Office as vniust forreine cruell heathenish and prophane and I know not what That he may therefore see great cause of difference betwixt these two let him a litle weigh with himselfe what the reason at the common law should be why an Appellee is allowed more freedome in sundry respects then a man endited at the Q. suite ex officio simply and why he may then put it to tryall by battaile with the appellor but cannot haue that tryall vpon an Inditement And also why a defendant against whom an Information is preferred for some criminall matter in the Courtes of the Q. Bench common pleas or Exchequer which neuerthelesse is by a kinde of proceeding mixt of both the kindes shall not be vrged to answere the bill or any interrogatories vpon his oath as all defendants in Criminall causes be forced to doe in the Starchamber He is also to be put in minde that men vse not in such briefe schedules as that was to alledge for euery matter all the reasons they can yet that one alledged is of it selfe a reason sufficient of such diuersitie for is there as great reason that I should vpon mine oath discouer my crimes being no way therof duely infamed or they otherwise proued for the satisfaction onely of mine aduersaries malicious humor by mine owne more grieuous punishment as there is when these or some like be precedent that I should to mine Ordinary or Spirituall father who in a farre milder course for his duties sake in charitie seeketh my good by reformation of me
iointly if some one of these must necessarily be foūd in euery lawful oth then to what purpose serue those other seueral ends of oathes here not required nor mentioned viz. that honor may be giuen to God Innocencie protected and Iustice mainteined Seing there may be assurance of dutie couenant contract or promise giuen without any seeking to glorifie God thereby as heathens othes of obediēce to their superiors any other mens oathes for assurance of promises c. without respect to protection of Innocencie and without such Iudiciall course namely as may happen in priuate cōmerce betwixt man man From these reasons by him simply propounded I wil now come to his reasons by way of cōparison He cōdemneth this othe by comparing it to Herods othe that as that was generall to giue whatsoeuer the damsell woulde aske so these are to answere whatsoeuer shal bee demaunded This his imputation vnto Ecclesiasticall courtes of tendering such generall oathes which he so often and almost onely beateth vpon to the entent to giue a better lustre to the weakenes of the cause he defendeth I haue as seueral occasions haue bene giuē declared to be a meere slaunder Neuerthelesse it was not the generalitie of Herods othe which was cōdemned For the prophet Ieremie made vnto y e king as generall a promise of answering what he would demaunde of him as Herod made of giuing vnto the dauncing damsell But it was the rashe vnaduisednes of it rising vpon a carnall delight and when he had made it a more vnlawfull performance of a thing simply wicked which are the things therein to be condemned Next to his collections by discourse of reason I place his answeres vnto obiections which are supposed may be made for establishing general othes or other more particular yet in causes criminal to the partie examined The first of which is that of 1 Ioann 18. v. 19. 20. 21. the high Priests who examined Christ of his disciples and doctrine he put them of to those that heard him saying he had spoken nothing in secret But neither answering to interrogatories being so general as this was nor general othes are defended And if they were yet it is not the example of the high Priest refelled by Christ that any would alledge as he pleasantly doth insinuate to burden them and the cause with the greater weight of enuie and preiudice But touching this obiection the true vnderstanding thereof more fully in the next Chapter as in a more fit place Touching the next supposed obiection he saith It is not any sufficient allegation to saye that the partie deponent is no further bound to answere then the lawe requireth how generall soeuer his oath be since it is not safe for the conscience of such a deponent to stand vpon termes and questions how farre by lawe and by what law he is bound to answere Not safe for his conscience c is not this plainly and directly to leaue it vnto the libertie free choise of ech deponent in euery cause whatsoeuer to refuse to take any oath thē which what can giue greater strength vnto that detestable error of Anabaptisme for if it be not safe for his conscience to put it vpon the question how farre by law he is bound then may and also ought the Anabaptist and euery other fantastike to be a Iudge for himselfe whether to take any oath at all or onely so far and in what cause himselfe listeth vnder pretense of his conscience In that hee saith how farre by lawe c. it seemeth to me that he is in doubt both that Gods lawe and all the lawes of the land are against the refusall of such oathe and yet that hee would neuerthelesse arme all deponents against taking this oath because it may not be done forsooth with a safe consciēce In y t he further addeth and by what law it is probable he would thereby insinuate that howsoeuer it wil not be thought good by many of thē to be resused when it shal be imposed in courts of the temporol law yet if the same oath be imposed by force of ecclesiastical law that it cannot then be so safe vnto the deponents conscience Assuredly it is most strange that men pretending such pietie and sinceritie will teach others thus to dally with lawes and with their owne consciences as if the thing were godly enough to be exacted in one court but perillous to conscience in another Court albeit as well authorised vnto the one as it is vnto the other Insomuch as here he yeeldeth that this cōdition of not being bound by any such oth taken further then law requireth is obserued or vnderstood in ministring the oths which he impugneth doth he not thereby plainely discouer himselfe to be an oppugner of that which is but by law vrged and an encourager of others to oppose thēselues against lawes or else it must follow that none that be in authoritie do know the lawe therein besides himselfe or at least will not deliuer it truly doth he not also therein imply that in some cases the lawes allow of such oathes and that his charge of ministring oathes that are generall vnto all a mans thoughts words and deedes is a plaine slander insomuch as no law requireth that and yet the takers of this oathe are no further bound then the law it selfe bindeth And lastly it appeareth hereby if these oths restrained but vnto that which law requires be neuertheles vniust cruel vngodly tyrannicall that then the lawes of this realme establishing thē must needes endure his like hard vntrue and disloyall censure It hath bin often and no lesse truly said that none but Iesuites Seminary priests such like obstinate Papists haue refused this oth in hir Maiesties time or haue charged it to be vngodly vntil these new reforming Innouators did start vp that both the sorts of thē do build vpon the selfe same grounds of argument In answer of this he saith that by the ancient godly writing entituled The praier and complaint of the Plowman it appeareth that this kind of generall othes and examinations ex officio mero were not first misliked by Iesuites and Seminarie Priests and from them deriued to others that mislike gouernement and would bring the Church to an Anarchie as the world hath bene borne in hand For general oaths we stand not but who first misliked examinatiō ex officio mero or which of these two sorts of mislikers haue troden in the others steps by imitation is not so material as with what trueth or soundnes of reason it is misliked by either of thē I haue not the Ploughmans booke to peruse what is indeed there said here of neither greatly skilleth it though he were perhaps a good diuine disguised vnder a ploughmans title and stile If he had vsed any reason for his saying I doubt not but the Treatisour would haue enforced it But it followeth not that whatsoeuer in elder times hath bin by
what they are lawfully commanded albeit trouble and punishment by that occasion shal happen vnto them that so take offence So that this example doth make flat against their owne purpose and intention and can no way helpe them Another example they bring of 2 1. Reg. 1◅ ver 4 13. Obadiah who hid 100. Prophets in two caues secretly and susteined them with necessaries when Iesabel slewe the other Prophets whom she could hit vpon But this commeth farre short of the purpose for which it is brought For who euer denied it to be lawfull to shewe charitie vnto the Lords Prophets then there appeareth no commaundement to the contrary but that he might receiue them againe it doth not appeare that he was euer by authoritie charged to reueile them or to tel his knowledge what was become of those Prophets and therefore it is vnlike to the case in handling furthermore it was wholly an vniust wilfull and tyrannous persecution without warrant of law or colour of any iudiciall proceeding besides if he had bene charged by Iesabel to discouer where they were or had beene commaunded by her to relieue none such yet had it bene no disobedience towards the Magistrate for it is not noted to be the doings of the king but that Iesabel slew them Now the kings wife is no soueraigne but a subiect her selfe Moreouer the killing of the Prophets for no pretence or colour of cause at all is in it selfe so apparant an euill as no man can haue any shadow to giue a lawfull consent vnto it Lastly a man cannot gather a generall doctrine in a matter doubtfull and not plainely deliuered els where in Scripture out of any particular mans fact because all the circumstances which then fell out are not knowen But most especially an example can neuer serue to the ouerthrow of the generall commandement of obeying the Magistrate And viuendum est legibus non exemplis Out of the first booke of Samuel they bring three other examples 1. Sam. 19. ver 1. 2. The first that Saul spake to Ionathan his sonne and to all his seruants that they should kill Dauid but Ionathan Sauls sonne had a great fauour vnto Dauid and bade him take heede c. The second when Saul said to Ionathan Send and fetch Dauid vnto 1. Sam. 20. ver 31. 32. me for he shall surely die Ionathan answered Wherefore shall hee die What hath he done the third that when Saul commanded his seruants to fall vpon the Priests of the Lord to slay them they would 1. Sam. 22. ver 17. not moue their hands to fall vpon the Priests of the Lord. To these three one answere may serue and therfore they are thus set together First these commandements though of the king yet they were when he was enraged and in a furie after the Lord was departed from him an euil spirit was come vpon him Againe it is apparantly vngodly in it self for any to kill an Innocent vpon the tyrannous and vnaduised commandement of the king euen without all colour of any lawful Iudiciall course Lastly Dauid was knowen vnto them to be afore appoynted yea their annointed king from the Lord howsoeuer Saul was tolerated de facto to continue in place till the measure of his iniquitie was fulfilled And therfore in this respect was it vnlawful to kil either him or those that fauoured him especially the Lords Priests whose linnen Ephod should be a protection vnto them against Ibid. ver 18. al such precipitate executions where neither conisance of their cause nor any due conuiction and iudgement was precedent Another example they bring of the mid wiues of the Israelites to proue their intention It is thus written they feared God and did Exod. 1. ver 17. not as the king of Egypt commanded them but preserued aliue the men children This obiection carrieth his answere with him For it is said they feared God therefore did not herein as the king cōmanded noting vnto vs that the cōmandement was such as could no way stand with the feare of God There is no Prince in the world to bee obeyed when he commaundeth any thing directly forbidden by God for it is better to obey God then man The Prince is no God nor yet Gods Lieutenant but a meere man in that which he cōmandeth directly contrary to God That this was of that kinde it appeareth for to kil is manifestly by y e moral law of God nature forbidden Yet this hath his exception viz. that it is no murder when we execute the penaltie of lawe vpon murderers other wicked persons duely conuicted condemned For he that Gene. 9. ver 6. sheddeth mans blood his blood shall be shed by man saith the Lord. But there could be no colour or apparance of any actual wickednesse in children newly borne why they should be executed being but by a generall iudgement condemned most wickedly and tyrannously euen before they were non censetur existere saith the law qui adhuc est in vtero matris Now let vs compare these last foure examples with the scope and purpose for which they are vsed The very act of murdering a person notoriously innocent in that he is neither conuicted nor condemned is malumper se a thing simply and absolutely in his owne nature euill without any further circumstance But to declare what a man knoweth to be done by another the very authours themselues of this opinion must needes confesse to bee sometimes lawfull and requisit and therefore they must at least graunt it to be medius Actus such as by circumstance may be lawfull howsoeuer by the circumstances of this case as it is propounded they will perhaps hold it vnlawfull And therefore there is such dissimilitude and diuersitie betwixt these examples and that which they holde as they can neuer serue this purpose Therefore to fit their turne in the very poynt of the issue they must proue vnto vs that it is vngodly for any man though charged by lawfull authoritie to declare his knowledge of another mans actions if hee that is vrged so to make declaration doe iudge afore-hand that the Magistrate mindes to punish such action either where he ought not at all or in other sort then Gods law permitteth For this purpose they alledge as strongest the example 1 Iosh. 2. ver 3. 4. of Rahab who would not tell the king of Iericho where the two spies of Israel were though she were by him commanded to bring them foorth and she is commended for it by the 2 Heb. 11. ver 31. holy Ghost In answere hereof I say we reade not that the king asked her whether they were there still or not albeit shee 3 Iosu. 2. ver 5. answered that they went out but she was commanded to bring them forth which is something more then to tell where they were if she had beene so asked Secondly by 4 Heb. ibid. Iosu ibid. V. 10. faith
7. 2. 3. Ed. 6. cap. 13. statutes for tithes do now stint this strife and makes both cases to be Ecclesiasticall Vpon 5 14. H. 4. 17. corne carried away whereupon it comes to be tried betwixt two Parsons of Churches who hath right to the tithes this triall belongeth to the spirituall Court and is not vpon action of trespasse to be brought to the Common law And so it was adiudged albeit that the defendant there said that his Parsonage was then in lease But if they 6 39. Ed. 3. 23. 5. H. 5. 10. had ioyned issue whether the place whence the sheaues were taken were in the one Parish or the other then it should haue bene tried at the Common law because 7 Brooke tit Iurisdict the bounds of a Parish shall be tried by the Countrey as is there said Yet in a litle Treatise 8 An answere to a letter cap. 1. printed by Tho. Godfrey circa 26. H. 8. printed by Thomas Godfrey in K. Henrie the eights time it is testified that it hath bene holden in times past c. that the diuision and distinction of parish from parish is a thing so meere spirituall that no man may doe it but the Clergie which asseueration though he disallow if the Clergie claime it by any immediate power giuen them from God yet saith he of these and of diuers other things it is no doubt but they haue holden plea in times past rather by a custome and by a sufferance of princes then for that they be meere spirituall or that they of the Clergie had authoritie so to do by any immediate power of the law of God So that he alloweth diuision and distinction of parishes to haue bene of olde of ecclesiasticall conusance though to be deriued from the kings prerogotiue royall And it 1 Prou. constit aeternae sanctio de poenis ibi Lindwood verb. limitibus paro chiarum appeareth by a constitution prouinciall made in a Synode at Lambhith holden vnder Boniface then Archbishop of Canterburie in the yeere of Christ 1260 that the Clergie then vndoubtedly held and so practiced touching limites parochiarum that they meerely belonged to the court ecclesiasticall And Lindwood comming 200 yeeres or thereabout after him in his Commentaries or Glosses therupon maketh no doubt of it but onely quoteth Canon law for it If a Parson grant to 2 M. 8. Edw. 4. fol. 13. me by deed all the tithes of his benefice and yet afterward he sueth me in a Court Christian for the tithes of mine owne landes whereupon I bring mine action of couenant in the Temporall Court neuerthelesse I shall not haue a prohibition because I may plead that matter in barre in the Ecolesiasticall court Danbie and Chok But if a rent reserued vpon a lease of tithes or offerings be 3 44. Ed. 3. 32. sued for in a Spirituall court there lieth a prohibition for this is a Lay rent and so Bracton 4 Lib. 5. ca. 16. holdeth in the place before alleged agreeable to the statute of Articuli Cleri It is holden 5 Regist. fol. 38. that if a Patron hauing an Indenture to be quit of certeine tithes be sued in a Court Christian for those tithes hee shall haue a prohibition But aske whether this precedent of the Register notwithstanding hee may not haue a consultation by the opinion of Danbie and Chok afore recited and the rather in this case then in the former by how much it is more to be presumed to be a Symoniacall compact against him that is Patron For if it be not Symoniacall he may plead this couenant in barre in a Court ecclesiasticall as well as in the former case The competencie of the Court for suite of tithes dependeth also much vpon the consideration of the parties that contend for them For 6 38. Edw. 3. 6. 31. H. 6. 11. 7 in an action of trespasse brought at the Common law the defendant said that the corne whereof the plaintife complaineth was growing in D. which is parcell of M. where he is Parson and thereby he claimeth And because in the pleadings they were both named Parsons the opinion of the Court was that it was out of their iurisdiction In another 7 Hill 7. H. 4. fol. 35. per quosdam libros 102. per alios action of trespasse brought against a Lay man that claimed by lease from another Parson notwithstanding that by M. 44. Ed. 3. it was alleged that the Kings Bench in such case shall haue iurisdiction because it is betweene a Lay man and a Parson and that by Articuli Cleri by the contract transcunt decimae in catalla yet because it was of tithes which they might reconer in Court Christian Gascoigne held that the Temporall court ought to be out of iurisdiction for said he though it had bin so done afore yet it shall not be done so by vs here And of the same opinion was Moile in another like action of trespasse that 1 6. Ed. 4. 3. betweene a Parson and a Fermer of another Parson action for tithes lies in a Spirituall court because the Fermer claimes the tithes as due to himselfe during his terme which none gainsaid But vpon the former of these two last cases Brooke 2 Brooke tit Iurisdict 82. doth thus collect that it thereby appeareth cleerely that vpon contention for tithes betweene a Parson a Lay seruant of another Parson the Spirituall court shall haue iurisdiction For saith he the seruant doth claime to the vse of his Maister and not to his owne vse vpon any Lay contract Yet how this collection may stand together with other iudgements else-where reported to be giuen may mooue some doubt For in 3 31. H. 6. 11. 1. H. 6. 5. an action of trespasse brought by a Parson against the seruant of another Parson the seruant iustified for tithes of his Maister and thereupon demanded iudgement whether that Court would holde plea thereof and it was not allowed because the said defendant was a Lay man Likewise 4 6. Edw. 4. 3. it an action of trespasse brought by a Vicar for corne taken by the seruant of another Parson that claimed them as tithes of his Master and the plaintife claimed them as tithes due to his Vicarage it was adiudged by three that the Court temporall had iurisdiction because the plaintife had none action against the seruant in a Court spirituall at least as is there affirmed Markham seemeth to be of opinion that if any 5 38. H. 6. 19. part of right of tithes do come in debate betweene two Patrons that there the court Ecclesiasticall can not holde plea. And if 6 25. H. 8. vt refert Brooke tit Iurisdict nu 95. the Lord of a Mannour claime tithes of certeine landes in D. to finde a Chapleine or Curate in D. therewith and the Parishioners there claime those tithes likewise for the selfe same end It was deliuered for law that
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
an offendour vpon any course of proceeding besides Accusation but only that a man shal not for a supposed offence in the meane time be kept from bearing offices vntill he shal be iudicially called into question for it This will more plainely appeare so to be if we shall call to our remembrance how many sundry sortes of Denounciatours afore spoken of were receiued and vsed by the Ciuill law in the olde Romane Common weale and Empire who were not tied to any Inscription And besides these denunciatours 1 L. 1. §. Quoties ff de offic prat vibi l 4. ff ad L. Iuli. pecul l. 3 ff de offi praes §. vlt. D. Collat. in Nouâ—…l l. 1. C. de custod reorum l. si quis in hoc C. de epis the magistrates themselues also are by that law required euen without any denunciatours to search out robbers and other disturbers of the Common peace and to punish them seuerely And in truth it must needs turne to the great preiudice of the Common weale if no Magistrates at all should deale against any offenders vntill some Accusers yea or denouncers might be found Furthermore the Emperour Traiane writing to Plinius would not haue the Christians 2 Lib. 10. epist. Plinij whom as it seemeth he somewhat fauored purposely sought vp enquired for by the Magistrates appointment but to be punished onely when they were voluntarily preferred vp vnto theÌ„ by others Which doth argue plainly that the custome was then to haue other sorts of offenders sought for and found out by the Iudges and Magistrates yea though none other man preferred matter against them Yea the words of the law in this behalfe are clere 3 L. 4. §. 1. ff ad L. Iul. Peculatus Mandatis cauetur de sacrilegijs vt praesides sacrilegos latrones plagiarios conquirant prout quisque deliquerit in eum animaduertant Et sic constitutionibus cauetur vt sacrilegi extra ordinem dignâ poenâ puniantur Neuerthelesse to the entent that Iudges may put away from themselues all suspicion of calumniation and conspiracie against men the said learned man aduiseth them not to descend to Enquirie of office against any especiall person but vpon some publike fame or other good occasion of inducement to leade them thereunto But as for generall Enquirie the Iudge in duetie is bound so often to make it as the prescript of lawes doth beare that thereby supposed offenders being found out and discouered may be brought into question and vnto speciall triall Now therefore I will shew that there is allowed prosecution of speciall crimes of Office yet without any such Presentment precedent as by this opinion is implied It is true by the Rule of law that generall Enquiry is precedent as a preparatorie course to make way vnto the Iudges Office of proceeding by speciall Enquirie against such as thereby shall be detected denounced presented In which respect it is said that 4 c. qualiter el. 2. deaccusat as Inscription goeth before Accusation so doth Presentment before Enquirie Now vpon detection made vnto them either vpon generall enquirie or otherwise as it is testified by learned 1 Salycetus in l. fin C. de Quaest. Iul. Clarus lib. 5. §. fin q 11. writers in the Ciuill law such Iudges as be discreet and sage doe customably in most prouinces secretly receiue the witnesses depositions in writing for the information of the Court before the supposed offender be cited either really by attachment or verbally by processe serued on him This they doe thus afore-hand in two respects both that the defendant be not forewarned to flie or to hide himselfe and that the witnesses by subornation or other sinister practise of the defendant be not drawen away afterward to denie the trueth and to depose the contrary If the defendant shall afterward make his apparance and denie the matter obiected against him then be the witnesses re-examined and sworne againe in his presence But if he shall still wilfully absent himselfe in that case the first examination of the witnesses may serue for the Iudge to proceed by euen vnto definitiue sentence against him This first receiuing of information from witnesses is called in that law Processus informatiuus and the rest of the whole proceeding of the Iudge after the defendants apparance or his wilfull absence is processus punitiuus And vnto the taking of the processe informatiue though some haue disputed otherwise it is commonly holden 2 Ferretus Consil 31. num 11. not to be necessarie that the supposed delinquent should be called Which course of taking informations doth very much resemble the examination and enquiry against suspected malefactors which commonly is vsed by Iustices of the peace and other Magistrates here in England But albeit detection rising vpon generall enquirie doe in this sort often and very vsually make way to speciall yet neuerthelesse both those lawes do mention many and sundry other receiued meanes besides whereupon to ground a Iudges speciall enquirie So that albeit Presentment be one yet is it not the onely meanes to open a way vnto proceeding of Office by enquirie The first of such meanes is a Fame of an offence to be by some certeine person committed For albeit no Fame be presented by officers specially appointed yet if there be such a fame in deed to be prooued when need shall require 3 Panor in c. Inquisitionis de accusat then an Ordinarie Iudge may hereupon proceed to speciall enquirie against the offender so by fame discoured This word Fame is deriued from the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and both of them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi à fando of speaking as a thing often spoken and by many And therefore is it by Tullie 1 Cic. in Topicis defined to be testimonium multituainis the testimony of a multitude The proper effect of fame is thus declared by olde Grammarians writing of the differences of such words as be of nere signification 2 Cornel. Fronto in differentijs Opinio ostendit Rumor tumultuatur Fama indicat The opinion or weening of men giues an inckling Rumour tosseth a matter to and fro but fame giues an euidence And albeit Plutarch 3 Plutar. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do report that this was a common prouerbe 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In warre and in heare-say be many vaine and vntrue matters yet the olde heathen Poets in an admiration of fame doe attribute a kinde of diuine qualitie and eternitie vnto it 4 Hesiodus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Fame being a thing which many people bruite abroad doth neuer altogether fall to nothing for it is of a certeine diuine nature And therefore by law 5 Arg. l. sin ff de haered instituendis he that is mooued with fame or by the assertions of men woorthy to be credited is said not to be mooued vniustly or without
cause Fames be of two seuerall degrees The one rising 6 c. Sanctum dist 4. de con secrat vpon suspicion onely and from an vncerteine authour and this is not of force to make such proofe that by reason thereof 7 c. Cum in iuuentute de purg Can. l. Decuriones C. de poenis the fault should be straight way beleeued albeit such fame be coadiuuant vnto other proofes And it worketh a presumption onely against the partie 8 c. Tua nos de cohab cler mulier seruing to put him vnto his purgation The second degree in Fame is when it sprung vp and had his originall from a certeine and likely presumption and from probable matter In which case it may of it selfe make proofe either in a fact done long agone as to prooue by Fame that a man is dead or of a fact that 9 D D. in l. Siquidem C. de adulter cannot easily by direct proofs be conuinced but presumptiuely as the very fact of adulterie For a fame with probable presumption growing vpon some knowen acte comming neere vnto such a crime doth make proofe of the very fact so that the ende of the prosecution be not of verie 10 L. vbi adhuc C. de iure dot great preiudice as for example It may serue for proofe of adulterie to the effect of debarring a womans cohabitation or maintenance from her husband but not 1 D D. in c. Veniens de testio that she may be punished by death where that penaltie is the Ordinarie punishment of that crime A fame may then be sayde to be blowen abroad not onely 2 c. inquisitionis in fin de Accus when the greater part of the whole neighbour-hood or towne doe speake thereof as occasion is offered but also in case the fact be of that nature that 3 Panor in c. cū oporteat de Accus it is restrained but vnto certeine persons which by likelyhood may know of it then is it a sufficient fame though none besides the greater part of such certeine persons doe speake thereof If it be bruited among some few onely and not by the greater part of such then is it 4 c. super co de co qui cognouit consang vxor properly to be termed a Rumor and no Fame Now whensoeuer a fame touching some offence runneth against any person the Iudge may thereupon ground his Enquirie For it is the common opinion of writers 5 Card. A'exan in c. de Accus col 14. in those lawes that Fame doth succeed in place of an Accusation One reason hereof is because the very people among whom fame flieth do seeme in some sort thereby to preferre matter vp against a person so infamed which ought to be as sufficient to excite the Iudge knowing of it to doe his Office as if one certeine person or moe did present it vnto him For by fame alone 6 Alph. Villag li. 3. c. 6 conc 3. an offence is sayd to be made knowen vnto a Iudge though not thereby to conuince the partie yet to the entent of Enquirie and of descending to a triall by that occasion And as was afore alleged 7 Petr. de Palud in 4. Sent. 19. q 4. a man vpon fame alone may be said publikly detected of a crime Some Diuines for the times they liued in most excellently learned could say 8 Thom. 2. 2. that a publike fame concerning any crime doth stand in stead of an accusation and thereunto doe applie that of Genesis where the bloud of Abell is sayd to crie out against Cain when he had secretly murthered him What hast thou done sayd God to Cain 9 Gen. 4. V. 10. The voice of thy brothers bloud cryeth vnto me from the earth as if that crie of the bloud did occasion the Lord to enter vnto the examination of the impeached person Therefore doth God though he knew all things say vnto Cain What hast thou done If Fame be very brimme and rife 10 Panor c. Tertio loco de probat c. Tua nos de appellat then is it none in iustice for a Iudge though he be but an Ordinarie from whom an Appellation doth lie to omit to make any proofe Iudicially in actes of such fame before hee proceed Albeit if an Appellation bee brought he must then be able to prooue that there was in trueth such a fame before he proceeded But if the fame be not so strong and vehement then it is expedient for such a Iudge to haue the fame being not presented to be in Actes first Iudiciallie prooued by deposition of two witnesses at least For 1 Clarus vbi supra q. 6. so many will suffice to prooue a fame though they be none Officers thereunto assigned But two alone where a greater number is cannot make a fame But when the prince or such magistrates from whom none Appellation lieth doe proceed vpon a fame not presented whether it be verie brimme and vehement or otherwise yet in them it is not requisite to be prooued in Acts 2 Panor in c. cum oporteat de accusationib that there was such fame precedent because it is sufficient to bee so vpon information made knowen vnto them extraiudiciallie For the law presumeth more stronglie for their integrities and freedome from Calumniation Conspiracie and wilfull vniust vexation then of euerie inferiour ordinarie Iudges That Rule which is set downe by Interpreters that A fame ought to appeare or be prooued before a Iudge doe proceed when as there is no Presentment is subiect to diuers exceptions in lawe For first it hath 3 Felyn in c. Qualiter el. 2. de accusat Clar. q. 6. no place in the crime of heresie wherein by the common opinion of writers a vehement suspicion grounded vpon any credible relation doeth suffice to begin a speciall enquirie Secondly that Rule faileth 4 Bald. in l. Nullus nu 1. C. ad l. Iul. Maiest Innoc. in c. cū oporteat nu 5. de accusat when special enquiries be framed either by commandement or by knowledge of the prince himselfe so such commission be obtained motuproprio for the princes own seruice but not at the instance of any partie particularlie interessed therein and such is the Commission ecclesiasticall Thirdly it holdeth not 5 Abbas in c. 1. de offi Ordinar when such enquirie is made not to the end of punishing corporallie but of reforming the partie spiritually for his soules health Fourthly fame is not required 6 Innoc. in c. Qualiter el. 2. de accusat where the enquirie is neither made for any punishment corporall or spirituall but onely to the end to find out whether he that is presented or elected to an ecclesiastical function be worthie thereof or not For in such case to the end of keeping backe an vnwoorthie person the superiour without either fame or other inducement ought to enquire of meere office very
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
hoping fall worst that may to bee iudges thereof in their owne causes and so to shrowd their disobedience in refusing to be examined vpon oath vnder pretence of conscience and of a religious care not to offend God thereby And therefore they holde that they are by Gods lawe bound not to answere in that sort vpon their oath which is more then if they had onely sayd that they are not bound and so left at libertie either to answere or not as themselues should thinke good whereby they would leaue a dangerous impression in the peoples mindes that such lawes of this land wherein they are borne subiects and by which they are to be gouerned may not be obeyed of Gods people with a safe conscience as being contrary to the word of God A matter assuredly of most perillous consequence to leaue vnto the onely scanning and finall determination of euery priuate subiect how farre he neede to obey the positiue lawes of his countrey As it commeth therefore orderly in this place so is it also a matter most fit to be discussed whether the oath of a partie in a cause criminall penall to himselfe may be exacted vrged by the Magistrate without breach of Gods law and consequently not to be refused by the subiect It is said in 1 Rom. 13. ver 1. 2. 5. Scripture that euery soule must be subiect vnto the higher powers for there is no power but of God the powers that be are ordeined of God and therefore whosoeuer resisteth the power resisteth the ordinance of God and that they which resist shall receiue to themselues iudgement That we 2 Tit. 3. ver 1. must be subiect not because of wrath onely but also for conscience sake And 3 1. Pet. 2. ver 13. we are commanded to be subiect to Principalities and Powers and to be obedient And to submit our selues 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to all manner ordinance of man viz. publike gouernement for the Lords sake By which power ordinance of man or publike gouernment are not onely vnderstood all kindes of Magistracie and superiour authoritie and that we may not resist doe violence or offer contempt to their persons but much more that we are to fulfill and obserue all their politique lawes without wilfull breach of them so they be not repugnant vnto Gods word For if this happen then that hath 1 Act. Apost ca. 5. v. 29. place It is better to obey God then man And if they command contrary things we must remember that wee 2 Matt. 6. v. 24. cannot serue two masters Yet Godsword doeth not abrogate lawes common wealthes nor ciuill policies but doeth establish them Therefore except they which refuse to take such oath can shew some direct Prohibition either expressed or to be necessarilie and immediately gathered out of Gods worde against it they must know that their contempt and disobedience in this behalfe reacheth vnto God himselfe whose ordinance both the Magistrate and his lawes be S. 3 August de verb. Domini serm 57. Augustine hereof writeth thus contumaciae crimen est quod iubetur contemnere quod praecipitur nolle quod imperatum est declinare But more particularly to our purpose in handling it may bee prooued by a generall Councell that hee which holdeth his peace when he is asked or will not directly answere is wilfully disobedient and may bee conuicted for such his stubbernnesse For 4 Synod General 8. Actione 5. when as one Photius was demaunded by the Councell whether he would admit of the ordinances of the holy Fathers and he answered not any thing thereto the Presidents of the Synode signified vnto him that by his silence he should not escape from being condemned which thereby was made more manifest And to like purpose a late Schooleman writeth 5 Sotus de iust iure lib. 5. q. 6. When any thing is asked of the defendant but according to order of lawe he is vponpaine of deadly sinne bound to reueale the trueth yea though he be not sworne but much more vpon his oath Therefore is it well gathered that he which beyng duely interrogated though it be touching an offence and refuseth to answere as hee ought first offendeth against Iustice and against the 6 Iosu. 7. glorie of God Secondlie hee offendeth agaynst the reuerence of the Iudge whom he is bound to obey if he bee vnder his iurisdiction Lastly against the Common-weale which hath 1 l. ita vulneratus §. ad l. Aquil. a great interest to haue crimes discouered and punished Concerning the second of these it is by great and some of them ancient 2 Cyuus alij in l. 2. §. quod si actor C. de iuram calum Ciuill interpreters deliuered If a man who hath sworne that he will neuer take oath yet hauing a suite shall be commanded by the Iudge according to lawe to take iur amentum calumniae and thereupon doeth take it that he shall not thereby be accounted to be periured because such commaundement of the Iudge doeth excuse him For mine owne part I haue alwayes taken it to be a 3 T. C. grosse error in Diuinitie to affirme that a man may not holde any humane matter with a certaine perswasion nor doe any thing in externall actions but such onely as we haue a positiue or affirmatiue warrant for in the word of God For if this were a true position then a man might beleeue no historie to be true which is not in the Bible no Maximes or grounds of any sciences nor common principles left knowen vnto vs by the light of nature as that two and two make foure nor that there is any such countrey as America c. neither might a man with safe conscience doe infinite many things permitted by humane lawes and sundry of them also commaunded to be done because all these histories and Principles and the most of these lawes be such as can neuer by any sound reason be positiuely immediately and particularly prooued out of Scripture but onely by this generalitie that therefore they may be beleeued or done because they are not contrary to Scripture are agreeable to the vncorrupted light of nature or to sundry credible mens experience or are by the politique lawes of our countrey receiued For who can giue any other sound reason directly drawen from the Scripture that theft shall be punished with death that matters of fact shall bee tried by a Iurie of twelue led sometimes not by witnesses but by circumstances and probable inducements that the eldest sonne shall haue all his fathers land by descent from the rest of his brethren though they bee neuer so many who no lesse then the eldest are descending from him that my kinsman remooued perhaps fiue or sixe degrees descending of the whole bloud from my fathers brother shall and lawfully may inherite my lande before mine owne fathers sonne by another wife that at one and twentie yeeres a man may effectually