Ecclesiasticall may also vpon euerie such oath denounce a cursse of consumption and rotting to the partie deposing in such the same maner as there is prescribed And as touchinge the inquisition for murther or manslaughter before remembred it is ordeyned that the Elders of that Citie which vpon measure taken falleth out to be next vnto the slayne man should washe their handes ouer a beheaded Heyfer protesting and saying in the presence of the Priestes Our hands haue not shed this bloud neyther haue our eyes seene the slear O Lorde be mercifull vnto thy people Israel whom thou hast redeemed lay no innocent bloud to the charge of this people c. Howe any thing here may proue the exacting of oathes to be lawfull I see not A man is slayne th'offendour vnknowen th'Elders by this especiall lawe of expiation doe protest as aforesaide But where is an oath in this case giuen to any particular person If this protestation shall bee thought in some sorte to conteruaile an oath of purgation yet where is there any protestation or oath required or taken to aunswere generallie to such Interrogatories as shal be propounded vpon vnknowne secret or barelie suspected matter Nay we see euidentlie the fact and felonie to th' offence both of God and man to bee publique and apparaunt th' offendor only lyeth hidden and vnknowne On the contrarie those Inquisitors ex officio haue the man before them whom they will examine but the matter for the most part is secreat and concealed which they enquire after and many tymes there is no matter at all but bare naked suspition or fame of a cry me neuer committed Concerning Achan and the proceeding against him we see by the sacred historie howe the offence in generall is by God him selfe made manifest vnto Joshua the Prince of the people vz That an excommunicate or cursed thing was taken and concealed c. th'offendour was onely to be founde out Inquisition being had by lot or otherwise God assisting Achan is deprehended as guiltie What followed He is by Iosua examined of the particular vsing these wordes My sonne I beseeche thee giue glorie to the Lord God of Israell and make confession vnto him and shewe me nowe what thou hast done hide it not from me Herevpon the detected Achan confesseth the trueth in particular But where doeth it appeare that hee was deposed or by what conceyued wordes or forme of oath doeth he sweare Except wee shall say there is no difference betweene the intreatie or charge of the Magistrate remembring the glorie of God and an oath taken and pronounced by th'offendour to confesse the trueth Which graunted it must consequentlie followe that whosoeuer is in that manner charged and confesseth not the trueth although he haue no will to sweare is both a liar and a person perjured which were a harde conclusion Nay rather such kinde of charge as adiuro te as a learned man sayeth Non est alium ad iurandum inducere Thomas Aquinas sed per similitu dinem juramenti alium ad aliud agēdum inducere And such speaches are also vsed for commaundementes in the name of the Diuine Maiestie Act. cap. 19.1 Thes ca. 5 as we reade done by the Exorcistes by Sain Paule who chargeth the Thessal in the Lord that his Epistle be read vnto all the brethren the Saints Otherwise if euerie such kinde of speache should straight way make an oath then would it followe wdich were absurde that the Deuill made our Sauiour to sweare at such time as he saide I charge thee by God that thou torment mee not I knowe very well what that learned and excellent light of Gods Church Maister Caluin saith in his booke of Institution of christian Religion That is howe Josua minding to driue Achan to confesse the trueth said My sonne giue glorie to the Lord God of Israell meaning thereby that the Lord is grieuouslie dishonored if a man sweare falslie by him And this maner of speach sayeth hee was vsed amonge the Iewes so oft as any was called to take an oath as appeareth by the like protestation that the Pharisees vse in the Gospell of Saint Iohn In the booke also of Ezra we reade the same phrase Giue prayse vnto the Lorde as some in Englishe haue translated it Cap. 9. but according to the Latine translation of the learned Tremelius Iunius the wordes are aedite confessionem Jehouae Deo So that although it bee graunted that where an oath was giuen for the confession of the trueth there the Magistrate vsed those wordes Giue glorie vnto God putting the partie in minde thereby of the Maiestie of Almightie God yet followeth it not that in euerie place where wee finde the same speach there the partie to whom it was spoken had taken an oath to confesse the matter whereof hee was demaunded But be it graunted that Achan made his confession by oath yet nothing will ensue thereof to justifie the dealings of those Inquisitors ex officio For if those rough and rigorous exactors of an oath followinge onely this legall course of inquisition set forth in this sacred historie That is after an offence committed so grieuous and daungerous to the publique estate and the same made knowen and notorious would then onelie seeke out the partie offending and that by due and lawfull course of triall and hauing founde him then after so mylde and curteous a manner and in the name of God intreat or if they thinke good depose him to reueale the trueth in particular No man I suppose would finde him self grieued with their proceedings But this their vnjust dealinge in this great abuse of an oath can not by authoritie of the holie scriptures be any way defended or mainteyned Wiselie therefore and with good discretion did that godlie man William Thorp in the time of King Henry the fourth William Thorp being willed by that bloodie persecutor of the true Christians Archb. Arundell to lay his hande vpon the booke and sweare faithfullie to submit him selfe to his correction to stande vnto and fulfill his ordinaunce desired firste to knowe wherefore he should be corrected and vnto what ordinaunce he was to be obliged which being declared to this effect that he should forsake all the opinions of the sectes of Lollardes in deede the true Christians that hee should preache no more vnto the people that he should from thenceforth become an accusor of such as him selfe was He vtterlie refused to take any such oath least thereby he should haue fallen into many foule and heynous sinnes and offences against God as the abjuringe of true Religion the forsaking of his lawfull calling against his conscience to his publique reproach to become a bloodie accusor or as he him selfe sayth an appeallor of his brethren euerie Bishops espie and the somner of all Englande deepely detesting such a bad office as vnméete for a Minister of the word nay altogither vnbeseeming a faithfull Christian If any
their lawfull writing or matter of recorde for that these are testimonies and proofes sufficient wherevnto faith and credite ought to be giuen much more might bee saide in such particulars but these may suffice to shewe howe in suites for goods chattels debtes or personall dueties the common lawes of this Realme admit no ydle vaine suspitious or vnnecessarie oathes neyther compell any man to sweare concerning them but vppon cause allowe of the plâ—and desertes volontarie and necessarie oath for an ende of the controuersie As touching the causes and controuersies for landes and inheritaunces depending in fuyte eyther in admitting or requiring of oathes some fewe cases there be Neuerthelesse where an oath for them is vsed As if a Praecipe quod reddat be brought of lande wherein the tenaunt was not lawfullie sommoned he may vpon returne of the proces of graund cape wage his lawe for none sommons and thereby as not well executed abate the demaundentes writ in which case an oath seemeth rightlie to bee admitted since the cause is both of weight and necessitie to the tenaunt this being the onely way to relieue him against the vntrue returne of the Sherife whereby his lande for want of apparaunce was to bee recouered against him For as the lawe seemeth to way a triall of this sommons by 12. men is not allowable And although it may bee saide that the tenaunt vpon his losse by default might haue a writ of deceipt and recouer againe his lande 33. H. 6. fo yet that often times falleth out to be a faint remedie the death of such as were returned sommoners depriuing him of that aduantage In the case also of deceipt vpon a recouerie by default the sommoners viewers and perueors are judiciallie examined by oath whether they haue duelie accordinge to the lawes of the lande executed and perfourmed that whiche appertayneth vnto them who in this case are vsed but as witnesses to search and sifte out by them the good or euill dealing of the Sherife by whom the execution of the writ and processe was committed 41. Ed. 3. fo In like maner if the plaint in a scire facias recouer by default the defendent bring this action of deceipt against the Sherife the bailife and the partie that sued execution of the lande processe shal be awarded against the supposed garnishers and vppon their apparaunce they shal be examined and that by oath concerning the maner of the garnishment and the same beeing founde insufficient the plaintife shal be restored to his lande with the prosites meane We may finde also in such reall actions an oath required in another maner but yet to good purpose that is to take away vnnecessarie delayes of Iustice For if the tenaunt in a praecipe of lande will cast an Essoyne of the Kings seruice the Essoygner shall sweare and that directlie the same to be no feined excuse otherwise the Essoyne shall not be allowed Some fewe other particular cases of like nature may peraduenture be shewed where an othe is admitted or required in these reall actions but none I am sure tending to anie such purpose as these oathes commaunded and enforced ex officio In criminall causes and suytes Criminall causes whereby eyther the losse of life libertie member of the bodie or good name may ensue which among worldlie things are most deare and pretious vnto men the common lawes of this lande haue wholie forborne and that for just respectes to vrge or impose an oath vpon the accused For in wisedome it was foreseene that the frailtie of man for the safetie of life the preseruation of libertie credite and estimation would not spare to prophane euen that which is most holie and by committing sinfull perjurie cast both soule and bodie into eternall perdition This knewe the subtill serpent our aduersarie full well in generall although he were deceyued in the particular when as he saide vnto God concerning the holie man Iob Skinne for skinne Iob cap. 2. and whatsoeuer a man hath will hee giue for him selfe and for his life but stretch out thy hande sayth Sathan and touche his bones and his fleshe and see if he will not then blaspheme thee to thy face Moreouer euerie wise Magistrate may well conceyue vpon howe weake and feeble a foundation he shall ground his sentence trusting to such an oath when before hande the suspition and presumption of perjurie is so pregnant Therefore in causes capitall or otherwise criminall these our lawes neyther vrge by oathe nor force by torment any man to accuse or excuse him selfe but rejecte the oath as vnbeseeming a well gouerned state or common wealth And condemne the torture as a thing most cruel barbarous wherof although they neede no other proofe theÌ„ the dailie practize and proceedinges against parties suspected of such offences yet concerning the inquisitions by torture we may see the same affirmed by that learned Iudge Maister Fortescue in his commentaries of the Pollicie of this Kingdome 49. Ed. 3. And for th' other there are sufficient authorities in the reportes of the lawes them selues therfore in the booke of Assizes it appeareth that diuers Iurours were challenged as lesse indifferent some for matters that founded to their reproach and dishonestie as that corruptlie they had taken money of one of the parties in the suite whervpon it was ordered by the Iustices that such as were challenged for causes not dishonest should bee sworne to declare the trueth the other for the reason aforesaide not to be examined at all but the challenge to be tried without their oath The same lawe is againe reported vnto vs Anno 49. Ed. 3. fol. 1. Vpon the like reason is the refolutioÌ„ of the chiefe Iustices of the Iudges Saunders and Whiddon 12. R. Eliz. That if a bill of perjurie committed in the Chauncere against the forme of the statute made in the fifte yeare of her Maiesties reigne were exhibited in the same Court that the defendent should not be compelled to make aunswere vpon his oath eyther to bill or intertogatories but that the parties ought to descende to yssue and the triall to be had by Iurie in the Kings Benche I shall not neede to spende time in declaring after the parties in suite haue ioyned yssue triall by Iurie howe many wayes an oath is vsed about the triall of such matters of fact as the oath of Iurors them selues and of their triars vpon challenge or to speake any thing of the oath to be ministred vnto suck as require the suertie of peace neither to discourse of the doing of homage or fealtie by the tenaunt to the Lord since these and such like are well known to euery one although but of meane judgement to bee necessarilie vsed for the better administration of Iustice and assuraunce of dueties making nothing at all for those phantasticall and officious oathes and examinations proceeding rather ab officio the verbe then ex officio the nowne Neyther is it necessarie to
Deane of Welles whose Deanrie was a donatiue passing therein beyonde the limites of his jurisdiction fell into the daunger of premunire And being called into question and hauinge no just defence was faine to appeale to the Kings mercie and obteyned a pardon And that booke of 5. E. 4. before remembred setteth downe the reason noting these wordes of this statute in curia Romana vel alibi In which wordes alibi sayeth that booke is intended the Courtes of Bb. So that if a man be excōmunicate in any of their Courts for a thing which apperteyneth to the Royal Maiest that is to say sayeth that booke in a matter of the common lawe the partie excommunicate shall haue a premunire facias and so was it adjudged In whiche wordes among other is speciallie to be noted that when so euer a wrong or injurie is offered to the common lawe of this lande there the Kinge is saide to be touched and his Royall Maiestie impeached For accordinge to the Princelie speach of that most Noble King Ed. 3. in the statute of Prouision made in the 38. yeare of his raigne the Kinges Regalitie chieflie consisteth in this To susteine his people in peace and tranquillitie and to gouerne them according to the lawes vsages and franchises of this Lande wherevnto he is bounde by his sacred oath made at his Coronation If then by vsurping cognizance of plea in causes cōcerning the common lawe and the jurisdiction of the Kinges Courtes the Ecclesiasticall Iudges touch the King in Capite doe against him his Crown Regalitie Realme so cōsequentlie incurre the forfeiture penalties of Premunire Howe much more doe they touch the King nay rather lay violent handes on him impugne his Royall Throne and Scepter who contrarie to the Pollicie Iustice Lawes Customes and Freedomes of this Kingdome yea the lawe of God it selfe enforce constraine by censure of excommunication otherwise the Kings people to appeare before them and extort from them an oath to accuse them selues And for more plaine demonstration if plainer may be put the case that a Iudge Iustice or Commissioner authorised by the Kinge to execute justice according to the lawes of this Realme should take vpon him by colour of his office and authoritie to conuent the Kings people before him and vppon their apparaunce to offer vnto them this general oath to aunswere vnto all such questions as him selfe should propounde playing in causes criminall the part both of accusor and Iudge or seekinge by oath and captious Interrogatories matter of accusation wherevppon to proceede to condemnation and to commit the partie refusing such oath to streight prison without bayse or mainprise could any man justifie this his doing to stande with lawe or justice Nay rather might not euerie man justlie cry out against him as against a subuerter of lawe and judgement and a hatefull enimie to our pollicie common wealth yea should not that bee verified of him which is recorded in the judgement against Sir William Thorp sometime chiefe Iustice of Englande for his corrupt dealing which is that as muche as in him laye he had broken the oath which the King is bounde to keepe towardes his people If all this may truelie be affirmed of such a one howe then shall the Ecclesiasticall Iudges practizing in their Courtes and Tribunal Seates the self-same vnjust and vnlawfull manner of proceeding against the Kings people escape the seuere sentence of law pronouncing them offensiue touchers and violaters of the King and injurious dealers against his Regalitie Crown and Kingdome so consequentlie worthie to suffer the paines and penalties declared in this statute of Premunire That this is no newe opinion or construction wee finde the resolution of that learned man Saint Germaine in his booke of Doctor and Student well agreeing where he writeth in this maner Jf any man bee excommunicate in the spirituall Court for debt trespas or such other thing as belongeth to the Kings Crowne and to his Royall dignitie there he ought to be assoyled without making any satisfaction for they not onelie offended the partie in calling him to aunswere before them of such things as belong to the law of the Realme but also the King who by reason of such suites looseth a great aduantage which he might haue of the writs originalles judicialls fines amerciamentes and such other thangs if the suites had bene in his Courtes accordinge to his lawes Hee sheweth further That if the Ecclesiasticall Iudges will not make the partie his letters of absolutiō where hee ought the partie shall haue his action against him Hee affirmeth also The Lawe to bee according where a man is accursed he meaneth excommunicate for a thinge that the Judge had no power to accurse him in notwithstandinge that he may haue his suite of premunire facias Againe we reade howe the late Cardinall Woolsey the Popes Legate here in Englande erected a newe Court or Consistorie called The Court of the Legate in which he tooke vppon him to proue Testamentes and to heare and determine causes in prejudice of the jurisdiction Ecclesiasticall of this Realme And howe by his vsurped power Legatiue he gaue and bestowed benefices by preuention to the disinheritance of the Kings subjectes and vifiting the state Ecclesiasticall vnder coulor of reformation gained to him selfe exceeding great treasure But this loftie height of vnlawfull authoritie weake and feeble in foundation could not long continue For in the one and twentieth yeare of the reigne of King Henrie the eight this proude prieste with all his glorious pompe and glittering shewe of all his Crosses Siluer Pillers guylt Axes imbrodered Cloakbagges and purple Hattes was attainted by his owne confession in a Premunire and the next yeare following all the Lordes spirituall hauinge deserued the same paines and punishmentes for their vnjust maintenaunce and supportation were called to aunswere in the Kinges Benche and knowing them selues guiltie before their day of appearaunce exhibited to the Kinge their humble submission joyninge therevnto an offer of a 100000. pounde to purchase their peace whiche after much suite the King accepted and by Parliament gaue them a pardon If then this Romish Legate for assuming to him selfe jurisdiction by authoritie Papall in prejudice not of the Kinges Courtes but of the Courtes Ecclesiasticall neuerthelesse to the hurt of the Royall Maiestie and for disturbaunce of the rightes and inheritaunce of the Kinges subjectes fell into the daunger and penaltie of Premunire and all the Bishops and Ordinaries of this Realme likewise through their maintayning onelie and supporting the same may we not safelie conclude that the Bishops and Ordinaries in these dayes vsurping power and jurisdiction in like sorte and maner although not in the same particulars by coulor of Antichristian decrees or practizing those popishe Cannons the verie head of that hellishe Cerberus of Rome as a learned man well termed them and the sinewes of his tyrannicall authoritie repugnant to the Royall Maiestie and Pollicie of this