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
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
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
cruell mindes that they tyrannized in cruell maner that they forced men with rough and rigorous termes of disgrace reproch that they were mercilesse magistrates vsing sudden and raging committance that they promised in verbo sacerdotali if that be ought worth and he calleth them vnbridled Clergie men Pharisaicall Clergie men vniust lawlesse men with their bad practices and fond intentions mercilesse Ordinaries with their extraordinarie and lawlesse power their actions cruell and accursed dealings of Barbarous bloudy bishops murtherous mindes and intollerable iniquitie of bishops vsing a Barbarous course of inquisition He inueigheth also at large against their hypocrisie feined holinesse against their temporall possessions as the nurses of pride presumption and vaine pompe of the world Truly if this kinde of mislikers had that litle of temporalties which is still left how hūble they would be may iustly be doubted but I durst vndertake for them that they will vse no great pompe in hospitalitie nor in any thing els sauing in words Likewise against their ambition for he affirmeth that three Archb. inforced aboue the kings of the land against vsurping encroching vpon the kinges iurisdiction by Popish prelates to bring causes to their costly and lingering consistories against bringing in by them of forrein decrees corrupt canons and ceremonies of the accursed See of Rome against their claiming of exemption from taxes imposed by any other whomsoeuer then by the Popes authority and against certeine clergie men that in former times opposed themselues with great obstinacie against the paiment of a subsidie as if lay men had not done rebelliously as much as these did obstinately Against haughtie Hugh bishop of Lincolne who hee saith as a lusty champion of that irregular confederacy drew out his woodden dagger of excommunication against the kinges Iudges against a bishop of Winchester who was outlawed for a wilfull murther and a while refused the iudgement of the kings law against the Popes collectour who conuented the vicar of Saltash afore himselfe for breach of an othe giuen for strength of a bond against the Hospitallers and Templers who drew the kings subiects into suite before the conseruatour of their priuileges And against the proud prelate cardinall Woolseys court legatine and both his and Nixe the blinde bishop of Norwich his falling into praemunire for encroching vpon the kings iurisdiction Adding also a slie surmise of some other things in the times of Poperie to haue bene vsed which he doth but vainely imagine to be now practised by Commissioners Ecclesiasticall So that by this tricke of cunning conueyance he would induce and draw on his affectionate readers to beleeue the same to be now in all bishops present which was blame woorthie in any of their predecessours For his fauourers may not iudge that such a man as he would wander so farre wide as he doth from his purpose belike if these now do but any one action though neuer so iustifiable which the Papists haue done in times past they shall carry all the cōtumelies which they in any other respects haue either worthely or vnworthely deserued Whether this be a direct Christian course euery one that is in any place of iustice shall most sincerely discerne which will but consider with himselfe how vnequall he would iudge it to bee to haue his owne honestie discretion loialtie and religion measured and esteemed of according to the actions of the worst men that euer afore occupied the same place that he now doeth Vnto the third point which is reuiling of proceedings Ecclesiasticall in this behalfe all such speeches of his as these following doe appertaine of the whole Canon lawe indistinctlie and generally he speaketh thus that they be lawes and ordinances contumelious against God iniurious to Magistrates and especially established to maintaine Antichristian tyrannie Of an Oath of purgation or an oath ministred to answere in some cases vnto Articles and interrogatories criminall he saieth It is against law and reason an intollerable error and disorder a fowle and great abuse hard and vniust dealing vndiscreete vniust and vnlawfull forcing offensiue proceeding vsurped officious power and licentious pleasure contrarie to all due course of Iustice a violent course of iniurious inquisition examination and of wrested oaths a lawlesse proceeding which the Iustice of the land detesteth that they be vniust oaths and full of iniquitie strange oaths strong purgations not healthfull but hurtful poisoning purgations giuen for preseruatiues Catholique oaths a vicious and lawlesse inquisition and lastly a prophane and more then heathenish Inquisition The fourth point concerneth his vntrue and slanderous accusations of their proceedings who be Iudges Ecclesiastical as where he saieth that such generall oaths viz. as afore hath bene touched when I spake of the issue mistaken are exacted none accusation suite lawfull information presentment or inditement iudiciallie preceding that the Ecclesiasticall Commissioners terme themselues high and supreme Commissioners that it is exacted by euery ecclesiasticall Iudge to satisfie his iealous suspicion of any crime to appose by othe and compell men to their purgation or vpon euery bare surmise and vncertaine rumour that by the like reason vnto the practise of this othe there should bee erected a court of Inquisition more then Spanish to sift and ransacke by othe most secret thoughts That the Interrogatories vsed by Ecclesiasticall Iudges are not certaine but doe foolishly wander at the doubtfull will of a slie and subtill apposer that hauing snared the sillie subiect they doe either against lawe enforce him to accuse himselfe of his most secrete thoughts or contrarie to Christian charitie yea humanitie constraine him to answere against his naturall parents c. And that in defence of these abuses diuers euen of the learned sorte doe great violence to the Statute 1. Eliz. cap. 1. wresting the same to a wrong sense all which are verie calumnious accusations The fifth and last point of his lauish and loose speeches concerneth the impieties dangers and penalties wherewith he chargeth all that haue delt in any such Ecclesiastical cause As first that it is a great and prophane abuse of the holie name and maiestie of God that Gods sacred institution is thereby greatlie peruerted that it is hurtful to the Church and common weale that it is a great indignitie to the Crowne that they vsurpe conisance of pleas that they doe no lesse-then Thorpe sometime chiefe Iustice did who as much as in him lay broke the oath which the king is bound to keepe towardes the people that they are violaters of the king and iniurious dealers against his Regalitie Crowne and kingdome nay rather laie violent handes on him impugne his royall throne and scepter contrarie to the policie Iustice lawes customes and freedomes of this kingdome yea contrarie to the lawe of God it selfe that hereby they impugne the royall prerogatiues vnited to the Crowne with the breach of their owne oaths especiallie if they haue taken the oath for the maintenance of the supremacie royall
whereof hee maketh some doubt as it seemeth and aduiseth them of this danger as a 1 Scilicet welwiller that it is playne extortion and wrong vnto the partie And lastlie that they are all offenders and doe incurre the forfaiture of the penall lawes of Premunire Seeing then his wordes of this matter bee so bigge his termes so biting his speeches so confident and peremptorie and his accusations so grieuous Is there not in defence of Iustice and of so many good and great learned men in seuerall professions great occasion offered to haue it examined whether the force and weight of his reasons will beare out this copious haruest and hote raging feuer of wordes or whether these wordes were but vsed because matter wanted What weight and moment his reasons are of is not of this place particularlie to discusse but shall bee reserued to the seuerall partes of the Discourse following And I will not striue by bare wordes to returne these of-scowrings of a fowle mouth and a defiled penne vpon him agayne further then must needes cleaue fast to himselfe the Authour of them when they shall by reason bee wiped off from the persons charged and so are to rebound backe vpon their first owner And to giue you an inckling in the meane time that it is not otherwise like then to fall out so It shall not bee amisse a little to consider how gingerlie sometimes hee treadeth in this matter and how here and there himselfe minceth and qualifieth the state of the controuersie as it were waiuing his first issue notwithstanding all those his former high lookes and braue termes For first he granteth that diuers euen of the learned sort doe hold and that verie confidently meaning hereby as I take it sundrie professors of the Common lawe that these proceedings which he impugneth are warranted by the Statute 1. Eliz. cap. 1. and can he whosoeuer he be for a man shewing no more yet see more herein then so many of the learned sort can that be of an other iudgement And though he exclaime as yee haue heard mightilie that this kind of oath is contrarie and a stranger to the lawes Iustice and policie of this Realme yet in the verie closing vp of his treatise hauing sayd that it was neuer put in vre or vse by any Ciuill magistrate of this land by the strength of trueth is forced to adde thereunto this exception viz. but as it is corruptly crept in amongst other abuses by the sinister practises and pretenses of the Romish prelates thereby imploying that yet it hath bene vsed of long time by the Ciuill policie and magistrates of this Realme noting them withall I know not with what other abuses as being ouerrought which belike they also shall heare of as his leisure will permit him if they please him not in the meane time the better Likewise going about to answere the obiection that may be made for iustifying of this othe by the like approoued course in the Starre-chamber he vseth these wordes as a reason of his allowance of such proceeding there viz. The Starre-chamber requireth an answere to matter in fact done either to the iniurie of a priuate person or hurt to the publike State Then by like reason if Iudges and Commissioners Ecclesiasticall shall but require this oath to answere matter in facte as in very trueth they doe none otherwise done to the hurt of the publike State then is the cause in controuersie thus farre yeelded vp by him But can he in deed thinke it reasonable and iust to exact such oath for punishment of an iniurie done but to a priuate person in his temporall goods or such like and shall it bee in his iudgement vniust and vnreasonable to be exacted for discouerie and restraint of such enormities which cannot be denied to be preiudiciall both to the state of the Church Common weale wherein Iudges Ecclesiasticall most vsually doe practise it Vltrà non desidero habemus quasi confitentem reum In another place of the Treatise he sharpely inueieth for that the Commissioners Ecclesiasticall minister the oath before the partie be permitted to haue the Articles Now in his shewing of differences betwixt the proceedings by Commissioners ecclesiasticall and the Starre-chamber one of them is this that the defendant there hath the copie of the bill of Information to answere by his counsell ere hee take his othe for the trueth of it yet hee restraineth it thus viz. So the Information in the Starre-chamber bee not made Oretenus so that it must hereupon needes be yeelded that at sometime and vpon some occasion it may bee and therefore it is not simplie vniust to giue the oath before the defendant haue a copie nor for him to be debarred from counsell when he answereth but interrogatories of his owne fact or knowledge For in deed the defendant in the Starre-chamber is not allowed counsel whē he answereth to Interrogatories sorted into Articles but only is allowed counsel for the maner of framing of his answere to the Bill into due forme of law the Counseller not aduising him in the matters of fact least happily he draw the defendant into periurie For it were very vnreasonable that counsell should direct him in the matter and as it were to say vnto him answere not this thus though it be true for then you are like to be grieuouslie punished Nay rather as a writer in the Ciuill law aduiseth the counsell euen to the bill of Information ought to tell the defendant to this effect Si hoc modo respondeas perdes quidem causam sed si aliter quà m veritas se habet perdes animam Furthermore in one place where he reprehendeth forced and constrained oaths hee limiteth his meaning by these words viz. in that generall maner which is as afore he had surmised viz. to sift generally all a mans thoughts words and deeds and that without any accusation or complaint precedent so that it is not simply the vrging of them to take oath in a criminall cause which grieues him or is to be condemned but to doe it in that generall maner for all thoughts wordes and deeds If then no such matter be in very trueth euer practised the man it seemeth will easilie bee reconciled againe vnto them whom hee so eagerlie afore snatched at and tooke vp Lastly in one part of the Treatise hee speaketh in deed against oaths in criminall causes but it is with this taxatiue restraint especiallie saieth he in causes of life and death contrarie to the lawes of this realme so that if it be not ministred in any cause of life and death no nor yet in any cause of mutilation of limme as in very trueth it is not now by any court ecclesiastical a thing most notorious then there is no cause of offense giuen either to the lawes of the realme or vnto himself And therfore for this time the Treatiser and those which exercise Iurisdiction ecclesiasticall may seeme in some broken maner to bee growen
againe to a pretie kind of pacification hold as wel as long as it shall But there is another partie also that perhaps will venture to rip vp agayne the seames of this greene peace if hee may not in some sort bee satisfied For there came vnto mine handes a good while after the former Treatise certaine briefe Notes without discourse that are deliuered abroad into many hands by writing being commended to be gathered by a man of great reading and iudgement in Diuinitie I awe and in what not It beareth this title Notes to prooue the proceeding ex Officio and the oath and subscription which are now required to be against the word of God the ancient Fathers and Canons of the Church and the lawes liberties and customes of the realme of England the proceeding of Office and the oath required though hee telleth not how he conceiues it to bee required as the Treatiser did doe both fall into this disputation which we haue in hand As for the subscription vpon other occasion that may hereafter elsewhere be debated The seuerall points which in respect of the two former hee handleth are by himselfe distributed and sorted into these seuerall heads viz. First testimonies out of ancient Fathers that do mislike the proceeding ex Officio and oath now vsed Secondly English Martyrs that haue refused and misliked the oath now vsed Thirdly the proceeding against heretikes in Englād without exacting an oath c Fourthlie the Canon lawe teaching Inquisition and proceeding ex officio by oath Fiftly another order of proceeding but yet in causa fidei and not otherwise Sixtlie the bishops proceedings contrarie Seuenthly the lawes of England Eightlie the maner of the reuocation of the proceeding ex officio in king Henry the 8. time Ninthly the maner of debating of that cause in those dayes 10. Sir Thomas Mores reasons for maintenance of proceeding ex Officio the oath with summarie answeres to them 11. And lastly Inconueniences which come by the vse ex Officio contrary to the common lawe For proofe of some of which especially the first he is so plentifull in quotation onely of places without rehearsing their sayings out of the ancient Fathers counsels c. that for mine owne part I must confesse that vpon the first view of their names in his moster booke I was greatly astonished least I had too resolutelie defended a matter against such an armie of ancient Fathers and as it were against the generall consent of the olde Primitiue Church from which I meane not God willing casilic or rashlie to swarue But when I had approched neerer I well discerned this my feare to be all in vayne in that they had neither banner displaied nor weapons bent against this cause but rather against the faces of the aduersaries thereof as may plainelie appeare in the seuerall opportune places of this simple Discourse ensuing I may well resemble this dealing of the Note-gatherer vnto yong setters vp in London as Apothecaries and such like that be not at first well stored with stuffe who to furnish vp their shoppes vnto the best shewe are woont oftentimes to embellish them with good numbers of painted gallie pots boxes and glasses intituled on the outside euen with golden letters sometimes of such precious Waters Oyles Simples and other drugges of medicine which they neuer smelt of because such neuer came within them And perhaps I should saue him from suspicion of a greater fault that is eyther want of iudgement or of wilfull peruerting of the ancient Fathers if I should freelie deliuer my conceite in this behalfe which is that his leisure serued him not to looke what was indeede contained in those places which there hee quoteth but that hee did set them downe vpon trust out of the Pies or Indices of the sayd seuerall bookes wheresoeuer the bare wordes of Inquisition of Accusing of Oath or of Swearing was found For I dare auowe that hee which shal read thē in the Authors themselues will iudge that many of them were gathered together in condemnatiō of taking any oath at all an errour holden by the Anabaptists albeit being truely vnderstood according to the circumstances the places serue neither the one turne nor the other rather then that by any colour they may be wrested to speake either against oathes ministred in causes criminall or against proceeding by Iudges of Office Let thus much therefore if it be not too much suffice to haue deliuered in some generalitie touching the said Treatise and Notes both which are vndertaken for the whole substance of them to be here and there answered in this simple discourse ensuing THE CONTENTS OF the seuerall Chapters of the First part 1 THat a seuerall royall assent is not required to the executing of euery particular Canon 2 The particular distribution of all other causes to be proued to be of Ecclesiasticall conusance besides Testamentarie or Matrimoniall with a discourse of bishops certificates against persons excommunicated being a speciall point of their voluntarie iurisdiction where there is no partie which prosecuteth 3 That matters in the former chapter adioyned to Testamentarie Matrimoniall causes though properly they be not of Testament or Matrimony are of Ecclesiasticall conusance and how farre 4 Generall proofs out of statutes that sundry other causes besides Testamentarie or Matrimoniall are of Ecclesiasticall conusance 5 That suites for title of Benefices vpon voidance or spoliation likewise that suites for tithes oblations mortuaries c. for pensions procurations c. are of Ecclesiasticall iurisdiction is prooued by statutes especially 6 That suites for right of tithes belong to the Ecclesiasticall iurisdiction and how farre is shewed out of the books and reports of the Common law so of places of buriall and Churchyardes and of pensions mortuaries oblations c. 7 Of right to haue a Curate and of contributions to reparations and to other things required in Churches 8 Proofes in generall that sundry crimes and offences are punishable by Ecclesiasticall iurisdiction and namely idolatrie heresie periurie or laesio fidei and how farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments 9 That Simony Vsury defamation or slander beating of a Clerke sacriledge brawling or fighting in Church or Churchyarde dilapidations or waste of an Ecclesiasticall liuing and all incontinency are punishable by ecclesiasticall authority and how farre 10 That the matters and crimes here reckoned be also of ecclesiasticall iurisdiction and proofes that any subiects lay or other may be cited in any cause ecclesiasticall 11 That lay men may be cited and vrged to take oathes in other causes then Testamentarie or Matrimoniall 12 The grounds of the two next former opinions examined and confuted 13 That iudgement of heresie still remaineth at the Common law in iudges ecclesiasticall and that the prouiso touching heresie in the statute 1. Eliz. cap. 1. is onely spoken of ecclesiasticall commissioners
my part I haue not hitherto found mentioned in any Statute or any report of the Common lawe though I haue carefully sought for them Now I will resume againe after this long but I trust not vnnecessarie digression the second member of ecclesiasticall Iurisdiction called contentiosa Iurisdictio That is when such matters be handled against which some partie standeth or is delt with thereby against his will If it be contentiosae iurisdictionis whether it be for a right there demandable and determinable or else for a crime there punishable which are the heads of all litigious Iurisdiction ecclesiasticall it cannot be intended that parsrea is contra quem res agitur the partie to be delt against will gratis without processe appeare frō time to time attend except it happē somtimes by collusion w t the plaintife And in this respect amōgst others it is said that iudiciū redditur in inuitū Reus is called pars fugiens the partie presumed to come thither against his will and willing inough to be gone if he might Therfore if any cause besides those two shall be proued such as the Ordinarie may lawfully deale in it wil folow that in such a matter also he may vse a citation to call him Dato enim principali necessaria adiacentia veniunt in consequentiam But that an Ordinarie may deale in sundrie other causes besides these two it shall appeare both by Statutes which are the iudgements of the whole Realme and by the iudgements and vncontrolled opinions reported in the bookes of the Common lawe In discourse whereof will appeare not onely 1 Aristot. in lib. poste Analyt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the matter is so but also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the reason why and in what maner and sort it is determinable or punishable there being three principall questions to be opened for the perfect knowledge of anything that is to be handled and seruing in these controuersies to some further vse and profite which may lighten you in the length of the disputation Pursuing therefore the two former heads of that part of Ecclesiasticall Iurisdiction first the matters by litigious Iurisdiction demandable and determinable are either such as are yeelded to be meere Ecclesiasticall by the authors of this opinion viz. Testamentarie and Matrimoniall to the first whereof for affinitie sake I adde last Wils such as may not be termed Testaments Codicils Legacies Administrations Sequestrations of the deads goods commonly called letters ad colligendum and to the later I ioyne diuorces iactitation of Matrimonie questions of legitimation or bastardie for restitution of a mans wife taken away that a man shall receiue his wife againe and suites for goods or chattels promised with a woman in mariage or else they are such others claimed to bee Ecclesiasticall as remaine still by this opinion in controuersie All which I thinke may bee comprehended vnder the generall terme of reliqua iura Ecclesiastica And these are either some duetie arising at first vpon exercise of voluntarie Iurisdiction and yet by deniall made litigious such be reall compositions sought by some partie to be disanulled procurations pensions Synodals Pentecostals indemnities fees for probates c. or growing due only vpō exercise of litigious Iurisdiction these are either due to the Iudge himselfe as fees of citations fees of sentences c. or are due to others attendants in the Court as fees of Aduocats Proctors Registers Apparitors c. or else they are such as are due to Ministers in the Church that haue no title as wages for a Curate or a Clerke or vnto a Minister that hath title And this right of a Minister that hath title toucheth either something incident to him as to name the Parish Clerke or concerneth the whole title and interest in and to his benefice or else toucheth but his maintenance and liuing His interest and title tendeth either to attaine it when he pretendeth iust title to it or to reteine it being in his possession or else to recouer it being bereaued or spoiled of it The dueties which concerne Ministers maintenance are tithes of all kindes Oblations Obuentions Pensions Mortuaries Churchyard or place of buriall c. Or lastly it is something that is due to a whole Parish as to haue a Chapleine found or diuine seruice or Sacraments administred amongst them or something due to their Church to be deliuered or for a Parishioner to be contributorie with the rest to reparations of the Church to seates to bels to the buying of bookes of Vtensiles or of other ornaments and requisites in the Church Concerning crimes offences claimed to be punishable by Iurisdiction Ecclesiasticall they may al I thinke be reduced to some of the three heads touched by S. Paul viz. as being contrary either to Pietie vnto God to Iustice towards our neighbour or Sobrietie towards our selues That which is against God the Latinists cal by the name of Impietas that which is against a mās neighbour they terme Facinus and that which a man designeth against himselfe Flagitium albeit the two last be often confounded without any curious obseruation of such proprietie of wordes Against Pietie to God-wardes are these blsasphemie swearing idolatrie heresie errour in faith schisme apostacie from Christianitie not frequenting publike prayer neglect of the Sacraments periurie in an Ecclesiasticall Court or matter disturbance of diuine seruice vtolating and prophaning the Sabboth and such like Contrary to Iustice are these Simonie vsurie diffamation subornation of periurie in a Court Ecclesiasticall violence to a Minister sacrilege dilapidations not building of a Church enioyned by atestatour not fencing the Church-yard not repairing a Church or Chauncell or not keeping of it in comely sort or when a Church-warden refuseth to yeelde an account of the Church stocke goodes violating of a sequestration made for tithes not paide hindering to gather or carry tithes money promised for redeeming corporall penance and detained contempt to the ecclesiasticall iurisdiction fighting or brawling in Church or Churchyard and such like And against Sobrietie are these all Incontinencie not made death by the lawe of the Realme whether committed with one which is of his kindred in blood forbidden either in generalitie or by some of the degrees Leuitical or with one of his alliance so forbidden both which are called incest or committed by such whereof the one is married which is adulterie or where the one of them hath bin maried termed by some stuprum or where both be single termed simplex fornicatio or whether it be marying of two wines or being maried vnto two husbandes at once which is called Polygamie Sollicitation of a womans chastitte drunkennesse filthie speeche and such others There be also certaine punishments and censures besides these which I thinke will be yeelded to be matters of ecclesiasticall iurisdiction as enioyning of penance suspension from entrance into the Church or from the Lordes supper or from execution of a ministers office or
5 44. Ed. 3. 33. benefice a man is to be sued in Court Christian. But this lieth not but where a Clerke is in as an incumbent for if he be in as an vsurper of the Church being full or as a trespasser there lieth action of trespasse and not spoliation But if two 6 38. H. 6. 19. incumbents be in and the one claimeth by one patrone and the other by another there lieth no spoliation but where both claime to be in by one patrone or by meanes of one patrone then lieth action of spoliation and not otherwise For where the right of Aduouson may come in questiō there lieth no spoliation for that cannot goe to a Spirituall Court And againe a litle after 7 38. H. 6. 20. Spoliation and debate vpon an appropriation shal be determined in the Spirituall Court Touching tithes where they are to be sued it appeareth by actes of Parliament thus The 1 13. Ed. 1. ca. 5. Westm. 2. plea for tithes shall passe in the court Christian as farre foorth as it is derained in the Kings court In the next Kings 2 9. Ed. 2. ca. 1. Artic. Cleri dayes thus In tithes oblations obuentions mortuaries sithence they are proposed vnder these names the Kings prohibition shal holde no place 3 Ibidem cap. 5. And againe the Kings prohibition shal not lie for tithes of a Mill newly erected Likewise in the dayes of K. Richard the 2. it is thus 4 1. Ric. 2. ca. 13. conteined in a statute The Clergie complaine for that the people of holy Church pursuing in the spiritual court for their tithes and their other causes which of right ought and of olde times were woont to perteine to the spirituall court and that the Iudges of holy Church hauing conisance in such causes and other persons thereof medling according to the lawe be malitiously endited c. and by secular power oppressed and be forced by oathes obligations and many vndue meanes compelled to ceasse vtterly against the liberties franchises of holy Church It is enacted that such obligations made by violence should be voide and the enditors of malice when the enditees be acquit should incurre the paine of those that procure false appeales c. Likewise the preamble of a 5 23. H. 8. ca. 9. statute in K. Hen. the 8. dayes doeth argue that matters of tithes are to be heard and determined by Iudges Ecclesiasticall The same is also proued by that where in 6 24. H. 8. ca. 12. another statute it is said thus Inconueniences haue arisen by reason of appeales out of the Realme to the See of Rome in causes testamentarie causes of matrimonie and diuorces right of tithes oblations and obuentions And in 7 27. H. 8. ca. 20. the preamble of another statute Deteiners of tithes pursuing such their detestable enormities and iniuries haue attempted in late time past to disobey contemne and despise the processe lawes and decrees of the ecclesiasticall courtes of this Realme in more temerous and large manner then before this time hath bin seene And therefore it 8 Ibidem was then enacted that for subtraction of tithes offerings and other dueties of holy Church the partie grieued may by due processe of the kings ecclesiasticall lawes of the Church of England conuent the person offending before the Ordinarie and also compell him to yeelde their saide duties And likewise for any his contempt disobedience or other misdemeanor vpon complaint to any of the Counsell or to two Iustices of the peace to haue him committed vntill he shall be bound to giue due obedience to the processe proceedings decrees and sentences of the ecclesiasticall court of this Realme And 1 32 H. 8. ca. 7. afterward by another statute of the same King it is enacted that for denying to set out tithes for deteining withholding or refusing to paye tithes or offerings Ordinaries may proceede according to the course and processe of the ecclesiasticall lawes And in the 2 Ibidem preamble thereof it is directly affirmed that by order of the common lawes of this Realme a man cannot haue any due remedie against deteiners of tithes And the 3 2. Ed. 6. ca. 13. like also appeareth by the statute of tithes made in K. Edwardes reigne That which is afore affirmed and determined concerning tithes oblations obuentions and mortuaries may likewise be said of pensions portions corrodies procurations indemnities and other such dueties ecclesiasticall For it is enacted that 4 34. 35. H. 8. ca. 19. for these denied ecclesiasticall persons themselues may make such processe against the person denying or against the Church charged as heretofore they haue lawfully done and as by and according to the lawes and statutes of the Realme they nowe lawfully may doe And the person conuict according to the ecclesiasticall lawes shall pay to the plaintife the things recouered and his costes CHAP. VI. That suites forright of tithes belong to the ecclesiastical Iurisdiction and how farre is shewed out of the bookes and reportes of the cōmon lawe so of places of buriall and Church-yardes and of Pensions Mortuaries Oblations c. THe reportes of iudgements and opinions of the Courtes at the Common lawe conteyned in the bookes of termes and yeeres called booke-cases and other treatises of that lawe are no lesse plaine pregnant in this matter An 5 M. 44. Edw. 3. fol. 32. attachement vpon a prohibition was sued against a plaintife in a Court Ecclesiasticall surmising that he did sue there for hay and money which touched neither matrimony nor testament but vpon shewing the libel which proued it was for tithes oblations a consultation was granted for the spiritual court to proceede And 6 M. 22. Ed. 4. fol. 24. passim alibi where the right of tithes is in question it is triable in the Court spiritual Likewise 7 38. H. 6. fol. 21. so soone as it appeareth that the right of tithes comes in debate the Lay court shal cease shal be out of iurisdiction quod fuit concessum The same is testified in the booke of Assises 1 22. Assis. fol. 75. For if the Kings patentee of tythes renewing in a Forrest that is in no Parish in which case the tythes doe belong to the King haue cause to sue any that ought to yeelde tythes and ought to seuer them from the nine partes such suite shall goe to the spirituall Court In the booke of Entrees in the precedent of a 2 Prohibition consultation 2. consultation graunted it is thus said In causis de decimis de testamento velmatrimonio quando sub eo nomine proponuntur prohibitioni Regiae non est locus And so 3 Bracton lib. 5. cap. 2. Bracton saith Non pertinet ad Iudicem secularem cognoscere de ijs quae sunt spiritualibus annexa sicut de decimis alijs Ecclesiae prouentibus 4 Bracton lib. 5. cap. 16. And againe afterward Mutatur
they doe neuerthelesse without cause refuse to come and to testifie a trueth For then goeth a citation called Compulsories for them sub poena iuris to come and depose their knowledges in such a matter betwixt such parties So that the citation is not ad subeundum iuramentum albeit when they come they are not to set downe any deposition but vpon othe because it is iuris diuini naturalis gentium quòd non credatur testi iniurato Also the Authour of this opinion should haue done well to haue signified whether a Lay man being come thither without citation might then be vrged to take an othe Therefore if the Authour hereof wil hereby maintaine any controuersie against Courts Ecclesiasticall the issue must be either that to make the Defendant put in his answere vpon his othe so farre foorth as he by Lawe is bound or to make witnesses testifie vpon their othe is a thing contrary to the Lawes of the Realme But it appeareth by discourse vpon the former opinion in how many sundry causes of litigious Iurisdiction besides Testamentarie and Matrimoniall Ordinaries may holde Plea by the Lawes of this Realme according to the course of the Queenes ecclesiasticall Lawes That the ecclesiasticall Lawes doe require this course with the cautions aforesaide I thinke no man that knowes any thing in that Lawe will make doubt A Plea is a conflict in cause of Iudgement betwixt one that affirmeth and another that denieth There be but two wayes besides the parties confession which is not properly called a proofe to prooue any thing that is by witnesses or by a publicke instrument called by the Common Lawe matter of Record Now if witnesses might not be vrged to testifie vpon othe in any causes but Testamentarie or Matrimoniall then could no Plea be holden in any other cause when the chiefest and most vsuall meanes of proofe in recent facts be taken away This libertie and priuiledge of holding Plea in the causes afore shewed and in this maner as is now claimed 1 24. H. 8. c. 12. by the goodnes of Princes of this Realme and by the Lawes and customes of the same as a statute rehearseth appertaineth to the Spirituall Iurisdiction of this Realme and hath bene in all ages vsed in Courtes Ecclesiasticall without impeachment as by the Recordes thereof may appeare And therefore vpon any singular conceite newly taken vp by some priuate persons it is not safe to be nowe thus questioned and oppugned There is an olde Statute in force as I take it that may greatly bridle such newe quirkes except men were marueilous well assured of the groundes of so great and so generall an innouation For it is enacted that 2 15. Ed. 3. c. 3. great Officers about the King and in his Courtes of Iustice shall from time to time forwarde bee sworne when they shall be put in Office to keepe and mainteine the priuiledges and franchises of Holy Church c. Can it with any colour be intended that the Common Lawe doth allow Courts ecclesiastical to hold plea in those sundry other causes which we haue hitherto proued to be ecclesiasticall and yet that it wil not allow them any meanes or possibilitie whereby to hold such pleas For if no Lay man might be cited to an ecclesiasticall Court and there ordered to take othe in any other cause then those two then first the partie conuented if by Lawe he needed not would neuer answere to the Libel vpon his othe Yet hath this bene a course continually practised and by Lawe so appointed not onely in Ecclesiasticall but also in all Courtes of the Ciuill Lawe both here and throughout the rest of Christendome Againe if no Lay witnesses may be called to testifie in any other matter then should most men in those causes be hereby either quite foreclosed of their right and many grosse sinnes should passe wholly without reformation or punishment or else all such matters must needes be prooued onely by such witnesses that be of least indifferencie and therefore of least trueth and credite For those men be alwayes most indifferent which either be friendes or at least be no euill-willers to either partie Nowe seeing euery deposition must needes tende to the grieuance or hinderance of the one partie or the other can it be presumed of him which loues both and doth wish alike well vnto them that he will willingly and gratis without any processe come and depose and thereby doe one of his friendes a displeasure there resteth then that onely such will offer themselues to testifie who either be enemies vnto both or friendes to one and either enemies or strangres to the other and howe can these be vpright indifferent witnesses or else such who be meere strangers vnto both sides but it doth most rarely happen that meere strangers vnto both shal be able to depose any thing to purpose and more rare will it be that such will offer willingly of them selues to come in ad testificandum Besides these and many such like absurdities necessarily ensuing this opinion if it be yet still stoode in that the Common lawe permittes compulsion of lay men whether parties or witnesses to take othe in causes testamentarie and matrimoniall but denies it in all other cases let vs consider what may be imagined for a probable reasō of such differēce in proceeding betwixt causes that belong to the conisance of the selfe same courte For I haue read and often heard that the Common lawe is grounded vpon good and sound reason And it cannot be said in this case quamuis durum sit tamen ita lex scripta est for that this is no statute or written lawe but onely the reported opinion of one man whence all the rest haue since taken it Was it then meant to giue vnto subiects an ample meanes of comming by their rightes in these two causes but to restraine or debarre them in al other as namely for tithes and other rightes demaundable in ecclesiasticall courtes or was it the purpose of that lawe to haue men stand conuicted of most grieuous crimes that be of ecclesiasticall conisance as happely of Heresie being neither by them confessed nor yet proued by sincere and vpright witnesses but onely by such as doe thrust them selues in to beare witnesse whom not onely common speach but also sundry statutes doe terme Accusers and therefore doe hold at least for parties and men not indifferent May not many other ecclesiasticall causes be of as great importance preiudice as perhaps a will of goods vnder xl s. or a trifling legacie or a x. pound matter promised with a woman in mariage and if the law had bin so could no man hit of it from the Conquest vntill our fathers time when Fitzherbert writ his nouanatura breuiū was none of skil in Edw. the 1. time to put it into the statute of circūspectè agatis or in Ed. the 2. times to mention it in the statute of Articuli Cleri did none reade
writ to the shirifs of London signifiyng that no Clerke though he forfeit his recognizance of statute merchant shal be attached or imprisoned by his body except there bee some cause why hee should not enioy the priuiledge of a Clerke Besides it is no new or strange thing to haue some forme of a writ which is set down in the Register to be vpon better aduise disallowed For I haue credibly heard that it was not long since adiudged that in an action for trespasse done in a warren of Conies a mā might not plead that they were cuniculi sui albeit the Register in that behalfe 1 Reg. fol 102. tit de transgressione frameth the writ so And in the selfe same title whence this forme of prohibition is taken a clause in a prohibition was 2 Reg. fol. 37. reiected by the court For it is said in the margēt Curia noluit concedere istam clausulam in prohibitione but if it were law assured the Iudges would not haue reiected it Fitzherbert who in his booke 3 No. na br fol. 37. G. of Nature of writs was the first that sucked this conceit thence in the selfe same booke touching this rule set downe in the Register viz. notandum est quòd quando rex praesentat vt in iure coronae tunc incurrit ei tempus saieth thus now this rule is not holden for lawe But it will bee said that Fitzherbert himselfe and sundry that follow him since doe hold this point we speake of for lawe This no doubt carieth a great presumption with it that worthily for the worth of the learning iudgements of such men Yet I wil shew that his saying from whom they all since do take it is none vndoubted rule of lawe therefore theirs neither that do gather from him I protest before God I wil not seeke after obiections against his booke but take only such two in stead of mo which I had in my mind because they do touch ecclesiasticall matters He saieth that 1 Fitzh ibid. fol. 269. D. at the Common law an heretike ere he can be condemned must be conuicted of heresie before the Archbishop the whole Clergie of the prouince after abiured thereupon after that of fresh conuicted condemned by the clergie of that prouince this must be in their general councel of conuocation holdeth there that at the Common law a bishop in his dioecesse might not condemne an heretike vntill 2. H. 4. 2 2. H. 4. cap. 15. did giue him authoritie that then he might not be committed to the secular power to be burnt vntil he had once abiured was againe relapsed into that or some other heresie But neither of these points be law so I haue heard the two chiefe Iustices the L. chief Baron some other Iudges the Queens learned councel resolue in a speciall consultation holden about the matter of heresie For albeit the Conuocation may in deed condemn an heretike yet euery B. at the Common law before any statute might at this day may also in his own dioecesse so condemn as the preamble of that very statute makes manifest so by thē all was it then holden for lawe notwithstanding Fitzh opinion there which was fully by thē considered of And albeit it may seeme needlesse yet for further strengthening of these reuerend mens opinions there is a 3 10. H. 7. fol. 17. booke in the very point For it is said that for heresie or any point against the faith the BB. had none other power to bring thē in but to make processe against them by citations vntill the Statute of Heresie 2. H. 4. ergo afore that statute they had power to proceed against heretikes in Ordinarie course of the lawe ecclesiasticall Which assertion the very Note-gatherer also maketh in his title of the lawes of England yet to another purpose howsoeuer in the maine point y t we now treat of he sticke fast to Fitzherbert Likewise 4 Fitzh no. na br fol. 30. F. he saith it appeareth that before the statute made pro clero in the 18. of king Edw. 3. cap. 7. the right of tithes were determinable in the Temporall court of the king and that the lawe was altered at that time herein by that statute Whereas in very trueth there appeareth no such matter other then a grieuance offered in this behalfe to the libertie of the Church which then was determined that it should afterward cease I know that Gooddall writing of the liberties of the Clergie by the lawes of the Realme concurreth in this point with Fitzherbert for thus he writeth It seemeth that before the Statute the right of tithes were determinable in the Temporall courte but that statute hath altered the law So that it may be coniectured the one of them borowed it of the other But this whole doubt whether causes of tithes before that statute of Edw. 3. were determinable in an ecclesiasticall court or no is resolued by a Treatise nipping in trueth wholie at the Clergie and lawes ecclesiasticall and so indifferent an Vmpier as that the Note-gatherer alleageth him for his purposes therefore in this case not to be refused by them who produce him for their witnesse For that 1 Of the power of the Clergie and lawes of the realme cap. 15. Treatise writeth thus viz. Long after that the kings courts of his Bench commō Pleas also all inferior courts were put out of iurisdiction for tithes yet neuerthelesse Writs of Scire facias were commonly sued in the Chancerie for tithes and the defendants were thereupon put to answere wherefore at the petition of the clergie and in consideration of a disme that the clergie grāted to the king it was enacted 18. E. 3. ca. vlt. that such Writs of Scire facias thenceforth should not be granted for tithes And a litle afore 2 Ibidem thus viz. That suites for tithes shal be taken in the Spirituall court is only groūded vpon a fauour that the kings of this realme the whole realme haue in times past borne to the clergie And 3 Ibidem againe in this sort We thinke that the kings courts be put out of iurisdictiō for tithes by a custome of the realme not by the immediate power of the lawe of God Therfore by this mans opinion it is the common law or custome of the land and not that statute which made tithes of conisance ecclesiasticall And in very trueth that tithes were demandable in a court ecclesiastical before this may appeare by statutes afore that time by reports after testifying that the conusance of right of tithes at the Common law is incident to iurisdiction ecclesiastical as in the peculiar 4 Ca. 4 5 6. huius Partis treatise thereof is afore shewed Lastly to shut vp this first point a precedent of a prohibition of all other Writs that can be deuised may with least reason bee said
ecclesiasticall whatsoeuer but either testamentarte or matrimoniall are voyd of all ground of law nay are contrary to Statute lawe to Common lawe to practise for time immemoriall and also vnto reason in some sort CHAP. XIII That iudgement of heresie still remaineth at the Common law in Iudges ecclesiasticall and that the Prouiso touching heresie in the Statute 1. Eliz. cap. 1. is onely spoken of ecclesiastical Commissioners thereby authorized THe two other opinions remaining that respect matters handled by Ecclesiasticall iurisdiction and come next to be treated of for the affinitie of them and because they both depend vpon one and the selfe same grounds I purpose brieflie to handle together viz. whether the iudgement of Heresie nowe lieth rather in the Common lawe then Ecclesiasticall and whether nothing may at this day be adiudged heresie but according to the statute primo of her Maiesties 1 1. Eliz. cap. 1. reigne For in the true vnderstanding of that statute the decision of these two opinions will wholie rest It seemeth by the latter the author of them thinketh that before the statute 2. H. 4. Ordinaries at the Common law might not by their iurisdiction Ecclesiastical proceed to the condemnation of an heretike and therefore seeing all former statutes made against heretikes stand now repealed he gathereth that no heretike may be delt with but according to the said statute made in the first yeere of her Maiesties reigne This opinion it may be he gathered out 2 Fitzh in noua nat br fol. 269. D of Fitzherbert his Noua natura breuium yet I thinke rather it was his owne conceit both because he doeth not alleage Fitzherbert for it and for that Fitzh leaueth euen at the Common lawe authoritie in the whole Conuocation of a Prouince to condemne an heretike albeit he there also hold that at the Common lawe before such statute a Bishop in his dioecesse could not so condemne But I haue shewed in the twelfth chapter hereof by very great and good opinion the law in this point to be mistaken For proofe that it is so I also touched it something in the 8. chapter For in the Preamble of the statute it is thus conteined The 3 2. H. 4. cap. 15. dioecessans of the realme then complained that they could not by their iurisdiction spirituall without aide of the roiall Maiestie what not at all Nay but not sufficiently correct nor restraine the malice of heretikes Why because they wanted authoritie at all to deale with them No but because the heretikes goe from dioecesse to dioecesse and will not appeare before the dioecessans but contemne the keies of the Church and censures of the same So that had it not bene for their fugitiuenesse their refusing to appeare and contempt of the keies the ordinarie dioecessans had Iurisdiction spiritual to correct and restraine them In which respect and for better assistance of their former iurisdiction it was then first prouided that heretikes should be attached and imprisoned Other authorities out of Statutes I there in the eight Chapter alleaged also to this purpose The wordes of the Statute made primo of her 4 1. Eliz. cap. 1. Maiestie from which this second opinion is gathered doe make the matter cleere that nothing thereby is meant but that Commissioners for causes ecclesiasticall according to that Act termed by the common people the high Commission shal not haue authoritie to adiudge any matter or cause to be heresie but onely such as hath bene so adiudged by the authoritie of the Canonicall Scriptures or by the first foure generall Councels or by any other generall Councell wherein the same was declared Heresie by the expresse and playne wordes of the Canonicall Scriptures So that the iurisdiction of Ordinaries and of the Conuocation still remaineth as it did afore at the Common lawe But I muse greatly what colour or pretence he could haue to gather the first of these two opinions out of the aforesayd words for doeth he or can he thinke that the ordering determining or adiudging of a matter to be Heresie by the Commissioners ecclesiasticall there spoken of is a iudgement at or according to the course of the Common lawe as the Common law is taken in vsuall signification Or shall it be imagined that wheresoeuer any matter by occasion comes in to bee mentioned in a statute as for 1 13. Eliz. c. 12. example naming matters of faith mentioning errors in doctrine or the doctrine of the Sacraments that the determination of all such points and what and how many speciall matters are conteined vnder those generall heads whatsoeuer shall by reason of such incident mentioning of them in a statute be put ouer to the iudgement of a Iurie or to the determination of Temporall Iudges What other may conceiue I know not for my part I must take it till I be better informed to be so simple a conceit as is worthie rather to be dismissed with laughter then to be confuted with further reason CHAP. XIIII That by the Statute her Maiestie may commit authoritie and naturall borne subiects may take and vse in Ecclesiasticall causes attachments imprisonments and fines THe next opinion that comes to be treated on is Whether the Queens Maiestie by her letters patents vnder the great seale of England may authorise the vse of any other processe in matters ecclesiasticall then by citation as by letters missiue attachment or such like whereunto I adde the other two of the same author depending vpō the same string whether her highnesse may so authorise the vse in matters ecclesiastical of any other coërtion or punishmēt as by fine or imprisonment These opinions if they be not well grounded vpon lawe seeme to me to touch her Maiesties prerogatiue roiall and supreme gouernment that was yeelded vnto her highnesse by statute very deeplie whosoeuer be Author of them And if this authoritie that is hereby impugned be in trueth a preheminence vnited and annexed to the Imperiallcrowne of this realme by Parliament and if he be a man of any qualitie so that hee hath taken the oath of Obedience let him vse good aduisement how it may stand with such his oath and allegeance They are pretended both by the Treatiser and the Note-gatherer to be grounded vpon 1 Magna charta cap. 39. these words of Magna charta viz. No free man shall be taken or imprisoned or be disseised of his free hold or liberties or free customes or be outlawed or exiled or any otherwise destroyed nor we shal not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land Whereupon the Note-gatherer also doeth collect that none may be attached but such as be first endited But the end why this law was made and the time when it was made are needfull to be considered The ende was this that the Kings of this realme should not chalenge an infinite and an absolute power to themselues as some kings elsewhere did
yet do without iudgement lawful proceeding to take away any mans libertie life countrey goods or lands And it was at such time when the kings themselues thought that Iurisdiction ecclesiasticall was not in right no more then it was in fact at that time belonging to the crowne therefore in that it is here sayd Wee will not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land it is manifest that the wordes haue no relation to Iurisdiction ecclesiasticall for that which was done by that Iurisdiction was not at that time taken to be done by the King or by his authoritie and the lawes that ecclesiasticall Iudges practised were not then holden to be the Lawes of the Land or the Kings lawes as since the lawfull restitution of the ancient right in that behalfe to the crowne they be often called The 2 1. Eliz. cap. 2. pass alibi Kings or the Queenes ecclesiasticall lawes In the Preamble 1 25. H. 8. ca. 21. of a statute made in king Henrie the eights time it is to this effect said that the people of this Realme haue bound themselues by long vse and custome to the obseruance of certeine mans lawes besides those which were ordeined in this Realme not as to the obseruance of the lawes of any forren Prince Potentate or Prelate but as to the accustomed ancient lawes of this Realme originally established as lawes of the same by the sufferance of Kings and by consent and custome of the people and none otherwise And a litle after mention is there made of such lawes humane induced into this Realme by the said sufferance consents and custome This is brought to prooue that the Parliament or such as it shall authorize may dispense with those and with all other humane lawes of this Realme for so they be termed Whereupon in the body of the statute ensued that authoritie which the Archbishops of Canturburie haue of granting faculties c. And therefore the humane lawes spoken of in the Preamble are those Canon lawes which by such sufferance vse and custome are now as the accustomed and ancient lawes of this Realme originally established as lawes of the same howbeit by the meanes aforesaid but induced into the Realme and not here at first made nor ordeined There is 2 5. Eliz. cap. 25. another statute also made in her Maiesties time in the Preamble whereof they be called the Ecclesiasticall lawes of this Realme So that when whole Parliaments do aduow them to be lawes of the Realme yea that for proofe of another point perhaps doutfull we may then well make but light account of all the Treatisers exclamations to the contrary who calleth thē strange lawes and forren lawes c so long as we meane but of such Canons as haue bene of long time vsed and be 3 25. H. 8. ca. 19. not to the dammage or hurt of the Queenes Maiesties prerogatiue royall nor contrariant or repugnant to the lawes statutes and customes of the Realme Furthermore it is well and notoriously knowen that proceedings and condemnations Ecclesiasticall in ordinarie Courts were neuer made by the iudgement of a mans peeres viz. by a Iurie and therefore those words rehearsed can not be so farre extended as to include that iurisdiction Yet as institution vnto a benefice both before after Magna charta belonged alwayes to ecclesiasticall persons and iurisdiction so did also the destitution or depriuation from a benefice by the Common law in which respect Bishops that claime not the patronage do alwayes plead to a Quare impedit thus Nihil clamat praeter institutionem destitutionem Clericorum vt Ordinarius in dictarectoria de A. c. whereby may appeare that a man might by law be put out of his benefice being his freeholde otherwise then according to the forme of that statute And this by the way may also shew how vnsound a collection the Note-gatherer maketh out of those words of Magna Charta where because a benefice is a freeholde he would inferre that a Clerke may not be depriued of his benefice but by a iudgement at the Common law I haue also proued in the chapter next afore and in the eight and the twelft chapters that an Ordinarie in his dioecesse euen at the Common law might condemne a man for heresie whereupon after committing to the secular power such an heretike was put to death by burning but this was not done by any iudgement of his peeres and therfore those words of Magna Charta are no way to be construed of any iurisdiction ecclesiasticall Furthermore besides iudgement of a mans peeres there is added or by the law of the land which permitteth other triall then by Peeres as by battell c. Now seeing all iurisdiction and authoritie in this Realme aswell ecclesiasticall as temporall was euer in right but now is also iustly acknowledged and is infact vnited and incorporated vnto the crowne of this Realme therefore inquire whether vpon the premises it may not be probably said albeit not according to the vsuall speech that a iudgement duely giuen by the iurisdiction ecclesiasticall is giuen by the law of the land But this cloud or rather mist which they would cast is also plainely dispersed by the first chapter in Magna Charta for thereby is made a flat distinction and seuerance betwixt the grant there made to God with confirmation of the Church of Englands freedome rights and liberties for euermore from those grants that are after made to other the freemen of the whole Realme in the rest of that charter so that the iurisdiction of the Church can not be intended to be meant in any of all the rest except it be particularly expressed Yet if those words were admitted to be meant and stretched foorth vnto that iurisdiction also will not statutes made by the like authoritie of Parliament sufficiently qualifie or impeach thē Vnto this head is that obiection of the Note-gatherer to be referred where he allegeth out of the diary acts of the Clerke of the Parliament I know not how truly 1 4. H. 4. art 29. that the Commons exhibited a petition that Lollards arrested by the statute of 2. H. 4. should be bailed and that none should arrest but the shiriffe or other lawfull officers Buthe doth fully answere himselfe therein for the kings answere was saith he that Leroys ' aduisera which is the forme of dissent that the Kings and souereigne Queenes of this Realme do vse when they dissent or deny any statute or petition in Parliament offered vnto them to be confirmed for a law Whereby we see that arrests attaching for crimesmight be made without enditement precedent and by others then the shiriffe and also that albeit Magna Charta had bene to the contrary yet an act of Parliament comming after might change that law Wherofifneed were I could shew sundry other examples notwithstanding that which the
pursuite of the writ De excommunicato capiendo being ouer-trouble some and full of vnnecessary circumstances But hereunto he doth answer that we forget the olde and true saying Compendiaria res improbitas virtus longa Now if he will haue this to be a good answere then must he holde the shorter way alwayes to be the woorse and the longer the better And where is then the rule of Logike Frustrà fit per plura quod fieri potest per pauciora and how is he so suddenly fallen out with himselfe that else-where condemneth Courts ecclesiasticall for lingering consistories I perceiue neither long nor short will please him long together But his reason is a fallacie of the consequent For though it be but a short cut vnto wickednesse and the way vnto vertue be long and hard yet is not all length commendable nor yet are all short courses condemnable The latter opinion of the two here also to be handled doth crosse thwart other of their owne opinions for the Ciuill law saith Frustrà fertur sententia nisi parata sit executio A decree or iudgement is of no effect where execution of such sentence can not be had The Iudges ecclesiasticall haue no compulsorie meanes to put their iudgements vnto finall execution sauing excommunication the writ De excommunicato capiendo after forty dayes obstinacie Those of the impugners of ecclesiasticall iurisdiction vnder pretence of the lawes of the Realme that be straitest laced doe yeeld causes testamentarie and matrimoniall to be of ecclesiasticall conusance and I hope sundry others be prooued no lesse to be Now how shall any of those be euer effectually proceeded in seeing they are none of the tenne crimes reckoned in that statute if for not performance of that which is decreed the wilfull partie shall neuer be attached for persisting vnder excommunication It appeareth also plainly by the Preamble that the sayd statute was enacted for better assistance vnto iurisdiction ecclesiasticall by more due execution of the writ De excommunicato capiendo especially against offenders in crimes of ecclesiasticall conusance The Ordinaries afore this who had to deale in any matter ecclesiasticall and all subiects that sued any other there had this interest of hauing a contemptuous person being excommunicated and so remaining aboue fortie dayes to be attached and imprisoned by vertue of that writ vpon what originall cause ecclesiasticall soeuer such contempt grew Now if that statute prouiding but a straiter course for execution of that writ in tenne crimes onely should with all take away the force and vse of it as it stood afore at the Common law not onely in sundrie other crimes of ecclesiasticall conusance still there punishable but also in all causes Testamentarie Matrimoniall of tithes and in all other rights ecclesiasticall in that Court onely still demandable then should it worke a cleane contrary effect to the very true drift and scope aimed at and to the meaning it selfe of the Law-makers But this is very vnreasonable and absurd to imagine for quae in fauorem sunt introducta non debent in odium retorqueri and quae ad vnum effectnm parantur non debent contrarium operari effectum It is true that in the beginning of the body of that Statute the words be generall in this sort viz. Euery Writ of excommunicato capiendo that shall be granted out of the high court of Chancerie against any person or persons c. Whereupon some very learned in those lawes haue thought that the maner of granting it returning and deliuering it which be there especified doeth reach vnto all and euery writ de excommunicato capiendo but yet that the new penalties there prouided for such person excommunicate as shall not yeeld his bodie are to be restrained vnto those onely who by Significauit are certified to haue bene excommunicated vpon some cause or contempt arising vpon some originall matter of some of those ten crimes there especified This seemeth to carie great reason with it for in trueth that generalitie there not withstanding not only in the Preamble but in diuers partes of the body of that statute we find wordes taxatiue and of restraint carying the chiefe purport of that Act vnto such writs as be grounded vpon some of those ten crimes For the Preamble onely speaketh of persons offending in many great crimes and offences of continuing in their sinnefull and criminous life and of such offenders And the beginning of the bodie of the Statute is for redresse thereof be it c. and afterward this word of Limitation is often vsed viz. Such writ of excommunicato capiendo such persons excommunicate and such Significauit And therefore that statute nor any Prouiso in it cānot be entended generally to take away the writ de excommunicato capiendo in all causes sauing in those ten crimes as by this opinion is enforced But the clause thereof Sauing and reseruing to all persons hauing authoritie to certifie excommunicate persons doth put all this matter out of doubt and dispute For thereby is saued and reserued to them like authoritie to accept and receiue the submissions satisfactions to absolue and release and to signifie and thereupon to haue such writs c. in such maner and forme as heretofore respectiuelie they haue vsed as hath bene accustomed and as they or any of them had or ofright ought or might haue had anything in that statute specified or conteined to the contrary here of notwithstanding If then they may still signifie in like maner and forme shall haue writs thereupon may absolue and release receiue satisfaction and submission c. as they had done before that time then may and ought the writ de excommunicato capiendo to be awarded for contempt arising on other originall causes ecclesiasticall then any of those ten crimes in that statute reckoned For so Ordinaries did and had afore that time and since also whatsoeuer this opinion now doeth deliuer to the contrary CHAP. XVII Of a Prohibition what it is where it lieth not and where it doeth and how it ceaseth by a Consultation of the writ of Indicauit WHen any Court goeth beyond his bounds and dealeth in other matter or sort then the lawes of the land will warrant there lieth in some cases writs at the common lawe which are of Prohibition or Indicauit and in other cases a writ brought in by statute called Prouision and Premunire and the Prohibition and Praemunire doe lie as well against temporall as against ecclesiasticall Courts The Prohibition is a charge by the kings writ to forbeare to hold Plea either in some matter or maner which it is supposed a man dealeth in beyond his iurisdiction or otherwise then lawe will warrant Euery Prohibition is either Prohibitio iuris by the very lawe it selfe or Prohibitio hominis where the ministerie of the competent iudges in that behalfe is vsed Any Statute prohibitorie is 1 21. E. 3. fol. 29. Prohibitio Iuris a very prohibition
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
and so the iudgement then passed vpon this ground among others as 2 Brooke Consultation nu 5. Brooke testifieth And 3 T. 12. H. 7. fol. 22. there is a great diuersitie betwixt a duetie or summe of money or other things at the first demandable and determinable at the Common lawe and such a summe as before sentence giuen in the Spirituall lawe is not due at all For the first there lieth a Prohibition but not for the second for otherwise it would followe that the spirituall lawe might giue a iudgement which it could not put in execution but this were absurd per Reed Tremaile Fiftlie it is sayd that there lies a Prohibition when the partie sued hath an action giuen him at the Common lawe for the originall and principall matter whereupon the suite at the ecclesiasticall lawe did grow The case was thus Aman 4 T. 22. Ed. 4. fol. 20. reported that the Abbot of S. Albanes did detaine his wife in the said Abbots lodging against her will to the intent to make her his harlot the Abbot hereupon brought his action of Diffamation in the Court ecclesiasticall and the husband his prohibition nowe because the husband might haue his action of false imprisonment at the Common lawe agaynst the Abbot Brian held that a Consultation was not to be graunted de hoc quaere A prohibition ceaseth and looseth his force after a 5 Stat. de Consultat 24. Ed. 1. Consultation be once granted This may bee prooued by the Statute De Consultat for the Chanceller or chiefe Iusticer of the king vpon sight of the Libell c. if they can see no redresse by Writ c. shall write to the spiritual iudges c. to proceed notwithstanding the kings prohibition directed to them before But more plainlie after Where 6 50. Ed. 3. ca. 4. a consultation is once duely granted the Iudge may proceed in the cause notwithstanding any other prohibition thereupon to him to be deliuered so the matter in the Libell be not changed The writ of Indicauit is 7 Fitzh Natur. bâ—… tit Prohibition fol. 45. likewise a kind of Prohibition and lieth especially naturally for a suite of tithes which do amount to a fourth part or aboue of the whole benefice It lieth also for the Patrone where his Clerke is impleaded for the aduowson id est the right of Patronage in a spirituall Court the Patrone and Clerke that is sued in the court ecclesiasticall may sue it foorth both against the Ecclesiasticall Iudge and the partie that sueth there But it 1 34. Ed. 1. de coniunctim â—…fat lieth not till the Libell be brought to be viewed into the Chancerie lis 2 Fitzh ibid. etiam contestata and 3 Regist. fol. 47. it lieth onely before sentence be giuen in the Court ecclesiasticall for it is afterward voyd CHAP. XVIII An Analysis or vnfolding of the two speciall statutes touching Praemunire with sundrie questions and doubts about that matter requiring more graue resolution IN the matter of Praemunire which is a question falling often in doubt about execution of Ecclesiasticall iurisdiction wherein as in the matter of prohibition consultation you desired earnestly that I would write vnto you what I thought I cannot in any point satisfie my selfe much lesse you by reason that this matter is enwrapped in ouer many difficult doubts for me to vnfold yet I haue some thing considered of it do trust that I shal be able to point out vnto you certaine general heads whereunto most of the doubts coÌ„monly made or hapning may not vnfitly perhaps be referred that thereby tanquam Thesei filo you may be directed as opportunitie shal serue what how in this behalfe to enquire of the reuerend Iudges or of other great learned and graue men of that profession There be two statutes whereupon it is principally grounded The first is 4 27. Ed. 3. cap. 1. de Prouisor of Prouisors established in the time of king Edward the 3. the complaint and griefe there propounded was that the kings people were drawen out of the Realme to answere vnto things whereof the Conisance pertaineth to the kings Court and that iudgements there giuen were impeached in another court The mischiefes then noted thereupon were the preiudice and disherison of the king and of his crowne and of all the people of the Realme and the vndoing and destruction of the Common lawe of the Realme The remedie there giuen for these mischieues was that if any of what condition soeuer being of the kings liegeance should drawe any out of the realme in plea whereof the Conusance pertaineth to the kings court or of things whereof iudgements be giuen in the kings court or which do sue in another court to defeate or impeach the iudgements giuen in the kings court should haue day c. as is there more largelie by the sanction contriued The other statute is 1 16. R. 〈◊〉 cap. 5. of the time of king Richard the 2. there is shewed and laied foorth that the Conisance of plee of Presentments to Benefices belongeth onely to the kings court by the old right of his crowne and that Archbishops Bishops and other spirituall persons hauing the instituting vnto such Benefices within their iurisdictions be bound and haue made execution of such iudgements by kings commandements without interruption and that also they bee bound of right to make execution of many other of the kings commandements but it is there complained that processes and censures of excommunication vpon certaine Bishops of England were made by the Bishop of Rome because the sayd Bishops haue made execution of such commandements and that hee purposed to translate some Prelats out of the realme some froÌ„ one bishoprike to another within the Realme without the Kings knowledge and without their assent that so should be translated There are assigned also for mischiefes hereupon growing the open disherison of the crowne the destruction of the king of his lawe and realme and that these things are against the kings crowne and regalie that they defeate and destroy the statutes that they tend to make the realme submitted to the Bishop of Rome and the lawes and statutes of it by him to be defeated and destroied at his will that they drawe out of the realme against the kings will the sayd Prelates his liege persons of his councell that be much profitable and necessarie to the king and to all his realme and that these deuises will be are away the treasure of the Realme for remedie whereof it is prouided what shall not bee done viz. that none shall purchase or pursue or doe to bee purchased or pursued where in the Court of Rome or elsewhere what any such translations processes and sentences of excommunications buls instrumeÌ„ts or any other things of what sort which touch the king against him his crowne and his regalie or his realme in what maner touching these as is aforesayde and
Maiestie by her Letters Patents to 2 1. El. cap. 1. name such as shall execute all maner of iurisdictions touching or concerning any Spirituall or Ecclesiasticall power is brought 3 8. El. cap. 1. in the Preamble to prooue the sufficient ordinarie authoritie that Bishops haue giuen vnto them by the very Letters Patents directed from her Highnesse for their confirming and consecrating c. It is further alleged that such dealing of an Ordinary toucheth not the King against him his Crowne and Regalie or Realme as not falling into any of the mischiefs whereof that statute was meant to be a remedie And for that all iurisdiction Ecclesiasticall is now both in fact and Law vnited to the Crowne and from thence deriued if it should be sayd that the handling of a matter but in an incompetent court yet established by the Queenes authoritie were in that high degree of offence punishment against her Crowne some thinke it reacheth thus farre as to implie an incompatibilitie betwixt the Crowne and Ecclesiasticall iurisdiction and so by implication to denie her iust Royall prerogatiue ouer all persons and in all causes aswell Ecclesiasticall as Temporall as if these could not both flow from the Crowne nor stand together and meet in one person which is most erroneous to thinke and traiterous to affirme It is likewise alleged that this were to make in effect a Praemunire to lie in euery case where a Prohibition may and alwayes hath serued the turne Whereas a Praemunire seemeth to be as a remedie prouided where a Prohibition could not serue to stay the course of proceeding And that euen before the supremacy was acknowledged to the Crowne no Praemunire vpon this point onely is reported in the bookes of termes and yeeres to haue bene inflicted but onely for pursuing pleas of the conusance of the kings court out of the Realme seeking to defeat iudgements there giuen and procuring Bulles from the court of Rome in derogation of the lawes of the Realme Moreouer it is to this purpose alleged that by the 1 3. 4. Edw. 6. cap. 11. statute authorising two and thirtie persons to set downe lawes Ecclesiasticall though repealed it was prouided as they thinke in affirmance of the law that no man for executing any of them should haue incurred contempt paine forfeiture losse nor haue bene in danger of any action or suite of praemunire Yet if such lawes had bene framed the Iudges ecclesiasticall might by mistaking haue giuen some cause of prohibition Therefore it is gathered by like equitie to be very hard that an Ecclesiasticall Iudge meaning to do his dutie and but to execute Ecclesiasticall iurisdiction ecclesiastically yet by similitude and neere coherence of one matter with another mistaking and so exceeding his authoritie a thing very easie in the Common law wherein sometimes do happen varietie of iudgements amongst the oldest professers of it if before any prohibition brought as it were to forwarne him he should hereupon de drawen at the very first push into a praemunire For by like reason if a court Baron should heare plea of a matter aboue fortie shillings a praemunire in stead of a prohibition might be brought against them Therefore enquire and seeke to enforme your selfe aswell in the premisses as of these questions following what is to be holden for law viz. in holding plea in an Ecclesiasticall court 1. Doubt of a temporall matter whether there be not a difference when it is propounded vnder the very name of a temporall action and when it is propounded vnder the name of an ecclesiast matter And whether the Iudge be in danger before the matter be 2. Doubt opened vnto him or no For I thinke in no Court temporall or ecclesiasticall the Iudges peruse the writs declarations c. when they are first put in And whether it be as great an offence in law but to hold plea 3. Doubt as to giue iudgement and to award execution in an Ecclesiasticall court of a temporall matter Also whether it be like degree of offence for an ecclesiasticall 4. Doubt Iudge to execute a temporall matter by censures ecclesiasticall as it is to execute it or a matter ecclesiasticall by temporall viz. fine imprisonment losse of limme or such like Likewise of what qualitie the offence is to go on in plea in a 5. Doubt Court ecclesiasticall after a meere temporall matter as right of aduowson c. falleth in controuersie principally to be determined Or to holde plea there in a matter worthie of redresse yet neuer of custome handled either in temporall or ecclesiasticall 6. Doubt Court nor whereof any remedie lieth at the Common law Also what offence it is to make lawes temporall or ecclesiasticall without the Princes assent 7. Doubt What it is to deale in temporall causes or courts without 8. Doubt commission and what in ecclesiasticall And lastly of what degree and qualitie of offence is it for a 9. Doubt Court temporall to holde plea of a meere ecclesiasticall cause or to deale in censures ecclesiasticall Or for such a court to holde plea of a temporall matter being 10. Doubt no competent Iudges thereof as for example if the Court of Common pleas or the Eschequer should deale in pleas of the Crowne that be capitall with such like a great number And so thus much for the first part The end of the first part THE SECOND PART OF AN APOLOGIE FOR SVNDRIE PROceedings by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuerslie by them impugned This second part especiallie treateth of the two seuerall wayes of proceeding in causes Criminall viz. by way of Accusation and ex Officio Iudicis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie ¶ THE PREFACE wherein is declared howe the foure opinions put ouer vnto this place doe fall in with the challenges of the Innouatours and a generall distribution made of matters to be handled in the second and thirde Parts THe second part of this treatise containeth our proofes together with answere to the obiections made against the maner of practise of iurisdiction Ecclesiasticall by those who do euen professe themselues to endeuour an innouation in the frame of gouernment of this Church of England But wee meane not in this place to handle all which they obiect in this behalfe but only some such of them as touch the maner and fourme of the proceedings in the exercise thereof For it is knowen they take sundry other exceptions as against the maner of calling to function Ecclesiasticall against the ordination against sundry the callings and the functions themselues against deriuing of the iurisdiction Ecclesiastical from the Prince against the matters handled by that iurisdiction and against the maner of handling them in sundry other respects condemning them as Antichristian and contrary to Gods word All which are of another consideration and not fit here to
contagious plague vnto it Lastly Accusation may not be vsed for gaine and lucres sake For such Accusers especially are odious to all men Another heathen writer could say thus heereof 1 Quintil. siue Tacitus de claris Orator The vse of this gainefull and bloudie eloquence is sprung vp of late times by corrupt custome and was deuised as one Aper was woont to say but instead of a iaueline or dart to thrust men thorow with In locum teli repertus So that if men could keepe themselues strictly within these former boundes then prosecution by Accusation would neither be so perilous to the Accuser nor yet so hurtfull vnto others but that it might still haue a tollerable and profitable vse in Christian Common weales And then that which Tullie writeth might haue place where hee sayth that 2 Pro S. Roscio Amer. it is profitable to haue many Accusers in a Common weale yet so as that men be not abused by such Accusations And thus much for prosecution of crimes by a partie CHAP. V. Of the seuerall acceptions of this word Officium the signification of Inquisitio Quaestio Crimina ordinaria extraordinaria Cognitio ordinaria or perpetua extraordinaria the reason why Enquirie by Office came in place of Accusation of Enquirie generall and speciall Enquirie speciall ex officio nobili siue mero mixto promoto and the priuileges of proceeding ex mero officio aboue the other NOw because the aforesaid Cautions be so hard to obserue and for that Accusation is so odious and of so perillous consequence albeit these foure points were kept in case either the Magistrate or people among whome wee liue should not so construe our doings as perhaps we doe sincerely meane them therefore where there be so many difficulties incident to Accusation lest crimes and offences should remaine wholly vndiscouered and so vnpunished to the great detriment of the whole body of the Common weale and Church It was very necessarily prouided in most places of the world to haue the Iudges office by Enquirie to supply this want and scarsitie of Accusers and parties which is the other generall meane afore spoken of whereby offences may be brought into question examination The Office or duetie of the Iudge is the cause efficient of this prosecution and Enquirie is the peculiar effect and act which in Criminall matters that cause produceth or the course whereby the Office doth proceed and is that kinde of prosecution which is counterdiuided against Accusation and prosecution by a partie The word Officium in the Ciuill law from whence it is taken hath diuers acceptions It signifieth either priuate dueties and thinges of conueniencie to be regarded and practiced in the common life and societie of man with man or els some more publike function And in this latter signification we reade of it to be taken two wayes By the first for a ministeriall function vnto some Court hauing iurisdiction And by the second for the power authoritie or iurisdiction it selfe of the Court I doe obserue three seuerall ministeriall functions termed in the Ciuill lawes by this name Officium The first are those persons that were publikely appointed to present crimes vnto the Magistrates as in these words 1 L. ea quidem C. de accus inscrip Quae per officium praesidibus nunciantur The second denoteth vnto vs an Apparatour as in these words 2 L. 1. C. de Ap. parit Procoss lib. 12. Officio quod tuis meritis obsecundat non Curialem quenquam nec excaeteris corporibus volumus aggregari c. The third an Actuarie that entred the acts of the Court as in these lawes 3 L. 11. C. de Numerarijs Actuarijs li. 12. Officio tuae magnitudinis datis precibus postulant c. And againe 4 L. 1. C. de offic Comitis sacri patrimonij Officium Hellesponti adijt rogauit c. In both which lawes by the word Officium an Actuarie is vnderstood But Officium signifying the authoritie and iurisdiction of the Iudge is that power whereby he may deale of himselfe without the petition or instance of a partie And this Office is exercised either in actions Ciuill or in Criminall In actions Ciuill 5 L. 56. ff locati l. 51. §. fin ff de act empti sometimes the Iudge doth of Office decree a thing which he findeth to be equall besides the action and besides the bond whereupon the action riseth and 6 L. Si longiùs §. 1 ff de iudic l. cum siliusfam ff de reb creditis l. 7. C. de iudic alibi passim sometimes also vpon a point in equitie hee relieueth by his Office such as the strict law giueth none action vnto Calistratus reduceth all causes Ciuill wherein a Iudge hath conusance extraordinarie vnto these two generall heads Per cognitionem 1 L. 5. ff de extraord cognit viz. extraordinariam siue officio Iudicis factam aut de honoribus siue muneribus gerendis agitatur aut de re pecuniaria disceptatur A Iudge exerciseth his authoritie extraordinarie in causes Ciuill either when hee taketh knowledge of bearing offices and functions or of causes pecuniarie But in causes Criminall hee practiseth this authoritie of Office aut cum 2 Callistratus ibid. de existimatione alicuius cognoscitur aut cùm de capitali crimine quaeritur when hee sitteth to take knowledge whether a mans honour or reputation ought to be atteinted or when he enquires and makes inquisition of some crime capitall viz. whereby a mans libertie countrey or life may bee endamaged This Office Ouid touched 3 Ouid. lib. 1. de Tristib in these wordes Iudicis Officium est vt res ita tempora rerum Quaerere The effect of the Iudges Office and the course which hee thereupon doth followe is called Enquirie Inquirere saith Bartolus est 4 Bartol in l. transigere nu 13. C. de transaction quasi intus quaerere diligentiùs abdita indagare secreta detegere in iudicium deducere It is to search into a matter deepely and carefully that is kept close to bring it to triall of iudgement which it deserueth This Enquirie in the old common wealth of Rome was more commonly called 5 l. 1. § item illud ff de S. C. Syllan Quaestio Which word hath two significations in that lawe The one more generall signifying any enquirie The other that enquirie and examination which was vsed vpon bond slaues and men of the meaner sort by torture Quaestionem sic accipimus sayeth the Ciuill lawe to this purpose non tormenta tantùm sed omnem inquisitionem defensionem or as another reading hath it detectionem mortis Where we see that the worde Inquisitio is also vsed Of this worde Quaestio such as dealt by it were called Quaesitores and so doth 6 Virgil. 6. Aeneid Virgil call Minos a Iudge quaesitorem Out of which by abbreuiation came the
testibus euen after publication moe witnesses may be receiued because the feare of subornation in this case ceaseth being the onely reason of that rule viz. that after publication moe witnesses may not be receiued Insomuch as depositions of witnesses are alwayes published vnto the Iudge But new witnesses may not be receiued when it is at the prosecution of a voluntarie partie for feare of suborning them in the pointes where he findes the former depositions came too short of his purpose So that in these respects the rather this proceeding of meere Office might be termed Nobile Iudicis Officium Thus farre touching Office and Enquirie by vertue thereof CHAP. VI. Of Denunciation a speciall meanes of stirring vp the Office the manifolde vse thereof in the olde Common weale and Empire of Rome and at this present on the other side the Sea the generall acception of that word 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 BVt because it is not possible for a Iudge of all other men by himselfe alone to haue knowledge of most crimes committed or probably entended to be committed therefore haue those lawes deuised sundrie meanes to bring and preferre them vnto his knowledge and Office Among which Denunciation is principall and indeed so generall that by sundry writers it is made a third and seuerall kinde of proceeding against crimes and by them counterdiuided against Accusation and Enquirie In which respect I thinke it not inconuenient for the present purpose to haue the nature of it also something opened Neuerthelesse it is in deed no different course from Enquirie 1 Spec. tit de deâ—…unc nu 16. but a speciall meanes or instrument eliciendi potentiam in Actum viz. of drawing the Iudges power and Office into action by Enquirie Denunciation in a generall signification may be described thus viz. A relating of some mans crime vnto a Iudge to the end to haue the Offender reformed or punished yet without that solemne inscription by the Denouncer which the law requires in an Accusation But I holde it requisite first to note what vse hereof and assistance vnto the Office of Enquiry the olde Romanes had in their policie by Denunciators as it is recorded to memorie in the Ciuill lawes of that people Which I do the rather in this place as in the former discourse I haue done to meet with the childish and sinister conceit of some who suppose euery thing deuised and brought in by any Canon how olde or necessarie soeuer it be to be no better then Popish Antichristian and eo ipso without further a doe or iudgement to bee condemned For I hope they will not iudge the lawes and policie of the Romanes to be Popish Antichristian or vnreasonable being for ciuill prudence the wisest and mightiest people that euer was and altogether Heathens when those lawes were framed and practised Of those whom we now commonly call Denunciators the law Ciuill hath two sorts One sort are those who being priuate men doe willingly for gaines sake denounce others Of these 1 L. Res quae § vlt. ft. ad S. C. Turpill that law thus speaketh As no man is at first compelled Nunciare to denounce any crime against another so cannot such a Delatour desist when it pleaseth himselfe So that these be both Nunciatores and Delatores Of these Delatours being a kinde of Parties I haue spoken before The other are such as by reason of some Office or publicke charge layed vpon them are to Denounce offenders vnto the Iudge to be by him proceeded with vnto punishment These in generall by the Emperour Constantinus haue this title giuen vnto them 2 L. 1. C. de custodia reorum Publicae solicitudinis cura the care and regard of publike watchfulnesse His wordes to that purpose be these In quacunque causa reo exhibito siue accusator existat siue eum publicae solicitudinis cura perduxerit statim debet Quaestio fieri vt noxius puniatur innocens absoluatur Where we see the two kindes of Criminall prosecution are touched and the proceeding of Office is there counterdiuided against Accusation And these hauing such charge be also of two seuerall sortes The first whereof besides their Denunciation and relating of crimes vnto superiour Magistrates had authoritie also to enter into some Enquirie and Examination Of these certeine were called Curatores Viarum 3 L. pen. ff de via publica Dion Cassius li. 54. who also had a kinde of iurisdiction for meaner faultes committed in the high wayes and had two Lictores or Sergeants for that purpose attending them They enquired of Office vpon offenders and disturbers of the publike peace in high wayes Others were called Latrunculatores who sought vp and made generall Enquirie for offenders and persons to be suspected being not altogether vnlike vnto our Prouost Marshalles I reade 4 L. D. Adrianus ff de custod exhib reis also of some called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is principall conseruatours of common peace and tranquillitie These also praeficiebantur disciplinae publicae corrigendis moribus 1 L. vlt. ff de mun honor There were also men hauing charge and Office not vnlike to these Conseruatours called Stationarij whereof one sort called Milites Stationarij limitibus Imperij praepositi did 2 L. 1. §. fin ff de offic praeâ—… vrbi provide for the common peace and also for the securitie of wayfaring men in the high wayes especially about the borders of their prouinces hauing authoritie to enquire and examine any persons who they were of what condition and state of life from whence and whither they trauelled And these made relation to the Magistrates of such suspected persons as they found and of the whole state of things abroad Another sort 3 L. 1. C. de curiosis Stationar li. 12. called also Stationarij simply without addition were onely to make Enquirie generall and to denounce and present crimes and after to furnish the Office with proofes of the crimes detected by them And these were of the second kinde of such publike denouncers hauing none authoritie to make examination but did onely generally enquire of faultes and present them vp Such were called also by this appellatiue name Officium 4 L. 7. ea quidem C. de Accusat as in that law of Gordianus the Emperour where it is sayd to the purpose in handling thus Ea quae per Officium Praesidibus denunciantur citra solemnia Accusationum posse perpendi incognitum non est Verùm si falsis nécne Notorijs insimulatus sit perpenso iudicio dispici debet These were called also Officiales and 5 L. 1. C de priuat
S. C. Turpillian Notorium or as others read it in the feminine gender Notoria which is a relation or a presentment vnto a Iudge of some crime And so it is taken in those words of the Ciuil law 3 l. ea quidem C. de accusat Nuntiatores notorijs suis assistere iubentur Presenters viz. voluntarie relatours and not Officers thereunto specially appointed except their Calumniation be manifest and apparant as the best writers doe interpret must make good and iustifie that which they present And againe 4 Vide August epist. 150. 160. Trebel Pol. in Claudio Verùm si falsis necne Notorijs insimulatus sit perpenso iudicio dispici debet Now the second of these two Notoria doeth open sufficient way to special Enquirie but the first 5 Clarus ibid. qu. 9. serueth not onely hereunto but euen to the conuiction also of such Notorious offender Yet before the party may vpon such Notorietie be pronounced conuicted it is required 6 Pract. Conrad fol. 240. that this Notorietie be made to appeare iudicially in Actes vnto the Iudge vnto the speeding whereof the Defendant also must be called and not onely by extraiudiciall information brought vnto him Vpon which Iudiciall 7 Ferret Cons. 31. nu 5. 35. proceeding had the Iudge before he proceede to sentence of condemnation must by interlocutorie decree pronounce such a fact to be notorious A seuenth meanes seruing to produce first Enquirie in Processu informatiuo and after in punitiuo is that which is called incidens cognitio when vpon examination of one offendour it falleth out another of his complices to be discouered For thereupon as it is the common opinion 8 Lud. Rom. in l. si certus ff ad S. C. Syllan of writers the Iudge may ground his further enquirie and taking of Informations albeit the supposed offendour 9 Bart. in l. 2. ff de adult § si publico be not at first cited thereunto But this appeachment made by him that is partaker in a crime is not to be holden so good as the saying of a witnesse 10 Clarus ibid. q. 21. but as of a bare Relatour which yet may giue iust occasion vnto the Iudge to enter into further Enquirie thereof by taking Informations as the saying of any other meane or bad person also might in like case An eight meanes to open way and to occasion the Iudges speciall enquirie in processu punitiuo is Enormitas criminis the great heinousnesse of some crime For it is holden 1 Arg. l. Si quis in hoc C. de Epis. Clericis Bart. in l. 2. ff ad l. Iul. de adulterijs that euen in strict termes of law against such a grieuous crime a Iudge hath power so to proceede yea without any fame or Indicia viz. Euidences iudicially proued and set downe in the Actes of the Court afore Ninthly the Iudge may lawfully descend to speciall enquirie of office if he shal perceiue the Accuser 2 Alph. Villag li. 3. c. 17. concl 18. to collude with the accused or to goe about to transact by secret cōposition to shut vp the matter betwixt them So if he which is supposed to be robbed 3 Bart. in l. inter omnes § rectè ff de furtis will collude with the theefe and say that he was not robbed yet if there be likelihood to the contrary he is not to be beleeued but the Iudge therevpon is to make speciall enquirie Quia interest reipub puniri furtum A tenth meanes besides presentment or any of the former which may iustifie a Iudges proceeding in this behalfe is when it is growen so farre without 4 gl in c. 1. de elect c. 2. de accus in 6. the defendants alledging that none infamie or any of the former meanes lieth against him as that it is come to some act vsually spedde post litis contestationem that is after issue ioyned For then by the common 5 Aretin in c. Qualiter cl 〈◊〉 de accusat Foller Pract. cri fol. 102. opinion of writers in lawe it shal be too late for the defendant to obiect the want of fame and of other Inducements c. So that the proceeding for want of the defendants reclaiming in time shall stand sound and shall not be auoyded hereupon for nullitie or any errour The last occasion of a Iudges iustifiable proceeding by enquirie against an offendour without any of the former inducements hitherto spoken of is when his proceeding 6 Alph. li. 10. concl 5. tendeth to a fatherly and spirituall correction for the soules health onely and not vnto any publike corporall and exemplarie punishment So that vpon all which hath bin spoken in this behalfe we may conclude in the very contradictorie of this opinion That a Courte ecclesiasticall by the lawes both Ciuill and Canon may many wayes proceede against an offendour without either Accusation or Presentment CHAP. VIII That to proceede sometimes against an offence otherwise then vpon an Accusation or Presētment or then vpon an Appeale or Enditement which two at the common lawe haue respectiue correspondence vnto the two former is no diuerse much lesse any Contrarie or repugnant course to the lawes statutes and customes of this Realme This is proued by common lawe statutes and practice in proceeding informatiue and punitiue with answeres to certaine obiections made to the contrary SEeing then that not only by Canon but also by the Ciuill lawes within the compasse of which two learnings Accusation and Presentment doe properly fall there be so many other meanes besides either of them to open way to a Iudges proceeding against a crime let it now be considered why an ecclesiastical court may not be allowed an ecclesiasticall course of proceeding or whether by the statutes or cōmon law of this Realme an ecclesiastical Iudge be any way restrained and prohibited to proceede vpō any other groundes besides the one of them two For if the Common or statute Lawe prohibite this then are such Canons c thereby in trueth reuersed and voyd as contrary and repugnant to the Lawes and statutes of this land But if no such contrarietie repugnancie or prohibition shall be found then will there be no cause why the proceedings of Iudges ecclesiastical against Crimes may not in this behalfe stil continue as in all times by-past they haue done Notwithstāding there be great diuersities in proceedings ecclesiastical frō proceedings at the Cōmon law as in the frame of the Libel in the answering of it in the ioyning of issue in the production examination publication of witnesses in exceptions or chalenges against them Corroboratories of them in the giuing of sentence or Iudgement in writing and in very many other points besides too long here to be rehearsed yet such diuersitie alone notwithstāding so that the Cōmon law or statute do neither contrary nor contradict them those proceedings shal be neuerthelesse iustifiable For by
in Bishops proceedings against the Canons 3 c. statuta de haeret in 6. is that they suffer not publication to be made of the witnesses depositions which is a meere slander without any colour of truth Neuerthelesse when by publication of the witnesses names that haue deposed in matter of heresie great perill might grow vnto them through the friends of the impeached or otherwise in that case only the Canons with certeine moderation and cautions do permit vpon the Iudges discretion the names of the witnesses to be suppressed from the defendant and to be kept from being published abroad at all Thus much concerning obiections made by the Treatiser Note-gatherer out of the Ciuill and Canon lawes against all proceeding of Offfce with offenders CHAP. XV. Enquiry and proceeding of Office r◅thout an accuser and grounded vpon some other of the meanes afore prooued sufficient to enter into such enquiry is approoued by sundry examples of Scripture FOr proceding against crimes by enquirie and of Office sometimes vpon the denunciation of one sometimes vpon fame or heare-say sometimes vpon notoriousnesse of the fact and sometimes vpon a suspicion onely conceiued but still without partie to accuse and prosecute we finde diuers not obscure traces in the Scripture it selfe Vnder the law of nature when 1 Gene. 38. V. 24. 25. one tolde Iudah prince or head of his familie and therefore a magistrate that Thamar his daughter in law in her widowhood was begot with childe at that mans onely relation without further accusation and vpon the notorious euidence of the fact of Office he gaue sentence that she should be burned When Ioseph 2 Gen. 44. V. 5 6 7 8 9 10. had caused his siluer cup to be put in Beniamins sacke had sent his steward to search them all who also charged them with this theft and vpon pretended suspicion only did enter to an enquirie and to make further search yet there was none of them that appealed to the law of nations as if they were vniustly dealt with hauing none accuser but ioyned issue with him and flatly denied the matter In the trial of 3 Num. 5. V. 12. deinceps ielousy vpon the only suspicion of the husband though somthing be extraordinary therein and ceremoniall yet by that enquiry of the Priests to the apparant great perill of the woman if she were faultie we may note this part of iustice in course of that iudgement viz. that there is none accuser or party that pretendes he can or will prooue it For of the husband who findes himselfe grieued and therfore onely denounceth her to the Priest it is said this enquirie shall be made because 4 Vers. 14. the spirit of ielousie is vpon him It is also there said to be done when 5 Vers. 13. the sinne is secret and the husband knoweth it not but only suspecteth it when there is no witnes against her nor she taken in the maner and therfore such as it may not be intended the husband becomes the accuser pretending to make proofe of the very fact yet neuertheles it is testified there that for bringing her to so dangerous an enquiry trial the 1 Ibid. V. 31. husband shall be free from sinne If a man bee entised secretly to Idolatrie by him or her that is dearest and nearest vnto him God commandeth thus in this case 2 Deut. 13. V. 6 7 8 9 10. Thou shalt not consent vnto him nor heare him neither shall thine eye pitie him nor shew mercy nor keepe him secret but thou shalt euen kill him thine hand shall bee first vpon him to put him to death and then the hands of all the people and thou shalt stone him with stones that he die In that it is here sayd Thou shalt not keepe him secret that the hands of all the people must be vpon him it appeareth y t the iudgement must be publike not done by priuate authoritie alone for 3 Mat. 26. V. 52. euery one that by vsurpatiō taketh the sword shall perish with the sword Then if this iudgement must be publike where is there any Accuser for he that reueileth and denounceth it is a witnesse in that his hand must be vpon him according to that other part of the law viz. The 4 Deut. 17. V. 7. hands of the witnesses shal be first vpō him to kill him and afterwards the hands of all the people Nay how can such an entiser possibly be condemned except it be vpon his owne examination and so by course of enquirie seeing 5 Nomb. 35. V. 30. Deut. 17. V. 6. one witnesse shall not testifie against a person to cause him to die so that here we haue in Gods owne law a iudiciall course in a capital matter and secret instituted vpon one priuate mans denunciation who is so farre from being an Accuser properly taken that he is a witnes and the sinne to be found out by course of enquirie vpon the parties owne examination in so much as there can bee in this case none other way of conuiction Likewise in the same chapter it is prescribed thus that 6 Deut. 13. V. 12 13 14 15. if thou shalt heare say concerning any of the cities which the Lord thy God hath giuen thee to dwel in wicked men are gone out from among you and haue drawen away the inhabitants of their citie saying Let vs go and serue other gods which ye haue not knowen then thou shalt seeke and make search and enquire diligently and if it be true the thing certaine c. thou shalt euen slay the inhabitants of that citie with the edge of the sword destroy it vtterly and all that is therein the cattell thereof with the edge of the sword where we plainly find diligent enquirie vpon heare-say and fame commanded and prosecuted of office euen vnto condemnation and execution without any mention of Accuser or prosecuter of the cause In the same booke afterwards and for the crime of idolatrie likewise it is thus appointed 1 Deut. 17. V. 4 5 If it be told vnto thee and thou hast heard it then thou shalt enquire diligently and if it bee true and the thing certaine that such abomination is wrought in Israel then shalt thou bring foorth that man c. and shalt stone him with stones till hee die So that here also we haue a fame or perhaps but the denunciation of one man whereupō the magistrates enquirie is grounded and vpon the enquirie the magistrates sentence finding the matter true and certaine the execution of the iudgement all without Accuser or prosecuter For grounding proceeding criminall without accusation vpon the notoriousnesse of the fact we haue a course prescribed in these 2 Deut. 22. V. 22. words If a man be found lying with a woman maried to a mā then both twaine shall die And 3 Ibid. V. 28. againe If a man find a maid that is
Let vs see then whether they retained Accusation as the onely lawfull course It is true 1 Mat. 27. V. 12. Luke 23. V. 2. three of the Euangelists doe report that the chiefe Priests and Elders accused him before Pilate and 2 Mark 15. V. 3. as one of them saith of many things as 3 Luk. 23. V. 10. another of them saith they accused him before Herod vehemently Yet whoso will attentiuely way and consider of that historie shal well perceiue that our Sauiour was condemned afore by the Eldership and that these imputations of crimes against him before Pilate and Herode called there Accusing was nothing else but to approoue vnto them the iustice of the sentence formerly giuen by the Sanedrin or great Councill vpon him to the intent that they might obteine a decree for his executing at Pilates or at Herodes handes For albeit the Iewes after they were conquered by Pompeius Magnus had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their owne lawes ordinances and ceremonies left vnto them yet had they not iuâ—… gladij the power of life and death in them and so they signifie vnto Pilate when he was willing to haue shaken them off and to haue had no dealing at all in that action For when he saide 4 Ioh. 19. V. 31. take ye him and iudge him after your owne lawe then the Iewes saide vnto him It is not lawfull for vs to put any man to death And Pilates decree was nothing else but that it shouldbe 5 Luk. 23. V. 24. as they required What that was two other Euangelistes doe expresse viz. that he might be 6 Mat. 27. V. 23. Iohn 19. V. 16. deliuered vnto them to be crucified Lo whereunto his decree tended vnto Christs execution but not to condemnation for he had afore washed his handes and pronounced Iesus innocent For proofe that he was first condemned by the Eldership and then execution only sought for by Pilates authoritie it appeareth in the 26. chapter of 7 Vers. 65. 66. S. Matthew thus behold nowe ye haue heard his blasphemie what thinke ye they answered and said he is worthie to die And this Council was holden ouernight immediatly after his apprehension This action Saint Marke sheweth plainely to haue bin his condemnation They 1 Mar. 14. V. 64. all condemned him saith he to be worthy of death Thus hauing condemned him when 2 Mat. 27. V. 1. 2 the morning was come they helde a Councill againe to put him to death and thereupon ledde him bounde to Pilate the gouernour to procure a decree for his execution For in the next verse after it is directly said 3 Ibid. V. 3. thus then when Iudas c. sawe that he was condemned he repented himselfe c. which was afore his appearance before Pilate and afore he had dealt with him at all What then was the course whereby the great CouÌ„cill proceeded with him not by Accusation made by any other then themselues but vpon witnesses though false by them suborned and vpon pretence of his owne coÌ„fession 4 Mat. 26. V. 59 60. They sought false witnesses c. at the last came two false witnesses c. a litle after what 5 Ibid. V. 65. haue we more neede of witnesses behold now ye haue heard his blasphemie And S. Luke 6 Luk. 22. V. vlt. thus then said they what neede we any further witnesses for we haue heard it of his owne mouth Whereby it is made manifest that albeit the Priestes and other Elders sought by all meanes possible outwardly to approue their proceeding against Christ vnto Pilate and the people yet did they neuer seeke or require any third person to preferre vp Accusation against him and therefore a course of proceeding not of necessity to be obserued by Gods law as they al then conceiued vnderstood it Likewise when the first martyr S. Steuen was proceeded with by the same Councill Eldership residing at Ierusalem none accuser but 7 Act. 6. V. 11. 13 witnesses only were vsed For though the Libertines CyreniaÌ„s vpoÌ„ spite toward SteueÌ„ did suborne the witnesses yet did they not appeare themselues openly in the action as Accusers Neuerthelesse it bare the shew at first of a 8 Ibid. V. 15. due and Iudicial proceeding in Councill howsoeuer the execution of him after was done without iudgement giuen and 9 Act. 7. V. 57 58 59. by tumult of the people Nowe least any man should surmise that this was but a corrupt custome crept into those later times we will therfore looke something higher what was done in former ages In the proceeding against Naboth though it was a most wicked iudgement grounded vpon periury and subornation yet we may 10 1. Reg. cap. 21. V. 9 10 11 12 13. see the plot was so laid as it might seeme to cary apreteÌ„ce of a due Iudiciall course whereupon may be truely gathered something touching the maner of proceeding then vsed For in a solemne fast when Naboth sate Iudicially with the rest of the Elders and chiefe of the people vpon the onely witnessing of two wicked men in his presence that he blasphemed God and the king Naboth was condemned to be stoned The matter for which I note it is this that the processe was without any Accuser or party For there are named onely the witnesses the elders and gouernours Naboth the party condemned By which together with the historie of the adulteresse 1 Ioh. 8. cap. 10. mentioned in the Gospel being conferred with 2 Deut. 17. Deuteronomie I do gather that ostentimes in their Iudiciall proceedings the Iewes had none other persons that any way dealt but witnesses Iudges and the party against whom they proceeded For in the Gospel albeit those that told Christ of the womans adultery are 3 Ioh. 8. V. 10. called Accusers in these wordes Where be those thine accusers yet such of 4 Verse 7. them as were without sinne were willed by him to cast the first stone at her Alluding therein to that lawe 5 Deut. 17. V. 7. that the hands of the witnesses shal be first vpon an offendour condemned to kill him So that there were none other Accusers but the witnesses This is more plainely proued out of the same booke 6 Deut. ca. 19. V. 15 16 17 18 19. afterwardes For where it is saide that one witnesse shall not rise against a man for any trespasse or for any sinne or for any fault that he offendeth in but in the mouth of two or three witnesses shall the matter be established it is foorthwith added thus If a false witnesse rise vp against a man to accuse him of trespasse then both the men which striue together shall stand before the Lord euen before the Priests and the Iudges which shall be in those dayes and the Iudges shall make diligent inquisition and if the witnesse be found false and hath giuen false witnesse against his brother
will vse no vaine cauillations and delayes or foorth of Iudgement as an oathe of alleageance or they are obligationis introductoria when the very oath worketh the bond in lawe for something afterward to be done But this bonde is only by the 5 Tot. tit ex de Iureiurando Canon and not by the Ciuill lawes sauing in one case that I can call to minde which is the 6 L. vt iurisiuraÌ„di ff de operis libertorum oathe of a man once a bondslaue and now set free called libertus that is made vnto his patron to performe some workes or other thing vnto him For in this case the very oathe is obligationis introductorium and maketh the freed man bound by that Law to performe it in vim turamenti Furthermore a promissorie oath whether taken in iudgement or out of iudgement is either necessarie as when it is imposed by the Magistrate vpon his subiect or it is voluntarie An oath assertorie being of chiefest vse and therefore most to be stood vpon and explaned is also either extraiudiciall or iudiciall and both these be either necessary or voluntarie The iudiciall necessarie oath Assertory is sometimes giuen to the defendant when there is formally another partie besides in iudgement sometimes when there is no such partie beside but the Iudge that proceedeth ex officio When there is a partie it is either iuramentum calumniae veritatis or purgationis but if there be no such partie beside it is either purgatorium tantum or partim purgatorium partim inquisitorium The Iudiciall and voluntarie oath is either suppletorium aestimatortum in litem or decisorium Which last is oftentimes confounded with iudiciale iuramentum without further addition by reason of the more frequent vse of it in Ciuill lawe courts in elder times when men durst trust one anothers conscience better then nowe generally they haue cause to doe The decisory oath is either delatum or relatum by the one of the parties that are in sute together Nowe I minde briefly and plainely without tying my selfe to any exact definitions to describe these vnto you with onely quotations of the Scripture where examples of them may be found as I conceiue it for auoyding of tediousnesse by particular rehearsall 1 Gen. 43. v. 3. 1. Sam. 25. v. 26. 1. SaÌ„ 26. v. 10 16. 1. Sam. 29. v. 6. 2. Sam. 4. v. 9. 2. Sam. 19. v. 7. Assertorie is when by oath any thing past or present is affirmed or denyed to be A 2 Gen. 24. v. 3. 9. Gen. 47. v. 31. Leuit. 5. v. 4. Num. 30. v. 3. 14. Iosh. 1. v 6. Iosh. 2. v. 12. Iosh. 2. v. 22. Iosh. 9. v. 15. 18. 19. 20. Iudg 15. v. 12. 1. Sam. 14. v. 45. 1. Sam. 28. v. 10. 2. Sam. 3. v 35. 2. Sam. 19. v. 13. 1. Reg. 1. v. 13. 17. Promissorie oath is when any thing is by oath promised to be done or not done In a Promissorie oath there is a double bond before God the one is that it is sinne if trueth be wanting and the other is that he is bound to doe hat which he promiseth But in an Assertorie oath there is no bond but onely this that the matter be true which is affirmed thereby or denyed The effect of a Promissorie oath is that he is bound to make that true which he hath sworne but if it were not in his power to doe it then there wanted in such oath iudgement and discretion except it were in his power to doe it when he swore but became impossible by some casuall euent after happening that could not be before thought on In which case neuerthelesse hee is bound to perfourme it as farre forth as lyeth any way in him so the oath be such which did binde as carying with it none impietie But if the promissorie oath be made touching such a thing as was in his power yet such as ought not to bee done either because it was in it selfe euill or is an hinderance or let of something that is good then in such an oath Iustice is wanting An 1 Gen. 21. v. 31. Gen. 26. v. 31. Iudg. 21. v. 1. 1. Sam. 19. v. 6. 1. SaÌ„ 20. v. 13. 17. 1. Sam. 30. v. 15. 2. Sam. 19. v. 23. 2. Sam. 21. v. 17. 1. Reg. 1. v. 29. 30. 51. 1. Reg. 2. v. 8. 23. 24. 2. Reg. 25. v. 24. 2. Chro. 15. v. 14. Nehe. 7. v. 18. Nehe. 10. v. 29. Ierem. 38. v. 16. Ierem. 40. v. 9. Hebr. 6. v. 16. 17. oathe promissorie and confirmatorie is when it is made for more full assurance of some act to be done or not to bee done A 2 1. Sam. 14. v. 24. 28. 1. SaÌ„ 24. v. 22. 23. 1. Reg. 2. v. 42. 43. Ezra 10. v. 5. Nehe. 5. v. 12. Iosh. 23. v. 7. In these wordes Nor cause to sweare by them necessarie oath generally whether there be two parties formally or the Iudge proceedeth ex officio is that which a Magistrate causeth those that be vnder his authoritie to take for some conuenient purpose and ende In law it is defined to be 3 Postilla in v. iureiur L. in bonae fidei C. de reb cred iureiur such as you neither may referre or put ouer to the other partie to take his oath to the contrarie nor yet may be refused by your selfe For 4 L. 11. § quitaâ—…it ff de interrog act L. 11. de periurio ff de in litem iurando ibi ex necessitate if you doe you shall be holden as conuicted and the sute must goe against you This necessarie oath is tendered by the Iudge whensoeuer hee seeth cause in equitie to mooue him albeit no partie make petition and then it is called Nobile vel merum Iudicis officium or els it is tendered and ministered by him at the petition of a partie and then it is termed mercenarium Iudicis officium because thereby hee seemeth but as it were to serue his turne that maketh the petition The first of this necessarie sort where there bee formallie two parties is Iuramentum calumniae which is when one is vrged to sweare that hee moues a cause alledgeth or answereth some Iudiciall matter bona fide that is truely directly and not captiously and that he beleeues it to be true and thinkes he can indeede make proofe of it and that hee doeth it not to vexe his aduersary but to relieue himselfe and not of any purpose to delay the sute Necessarium iuramentum veritatis is 5 Mascard de probat vol. 1. pag. 18. nu 6. that which is ministred to witnesses and that also which is ministred to the partie who is to answere vnto Positions or Articles And that also is so called whereby the Iudge doeth interrogate and examine either of the parties or the witnesses to the intent to bee more fully instructed in the cause 1 1. Reg. 8. v. 31. luramentum
purgationis where there be such parties is when in a cause criminally mooued by some accuser or partie the Iudge vpon defect of sufficient proofe doeth tender to the defendant an oath to cleare himselfe This though it be established by the Canon yet of long time it hath bene in vse aswell in Ciuill or Temporall courts on the other side of the Sea as in Ecclesiasticall so that if the defendant shall refuse to take it in either he is holden pro confesso conuicto The other oath of purgation or clearing simply when there is no formall partie in iudgement besides the defendant is that which by reason of fame scandall vehement presumption or vpon some other of those meanes that as I haue shewed afore doe open a way to Enquirie ex officio the Iudge doeth giue vnto the defendant to his clearing of the very crime obiected without any meaning then to seeke further proofes of that crime after the defendant hath taken such oath The other oath necessarie being partly of 2 Leuit. 5. v. 1. Num. 5. v. 12. sic deinceps Iosh. 7. v. 19. 1. Sam. 14. v. 43. clearing and partly of further enquirie is that which as is next aforesayd is giuen to the defendant vpon criminall matter obiected and vpon the circumstances thereof yea oftentimes with purpose to make further proofe in case the defendant shall not confesse it or not so fully in materiall circumstances as the Iudge hath cause to thinke may by witnesses or otherwise be prooued Yet if he shall confesse so farre as is thought may bee prooued then according to the qualitie of such his answere hee is presently either proceeded with thereupon vnto a iudgement or else dismissed as cleared thereof by his oath The examples and other iustification hereof shall more largely God willing be shewed in their proper place hereafter For this is the oath that the Innouators doe so much condemne and exclaime against But nowe touching voluntarie Iudiciall oathes whereof Suppletorium is that which is tendered to the plaintife or defendant according to the qualitie of the cause in a ciuill matter for supply of proofe made semiplenè tantùm as happily by one singular witnes being without all iuâ—…t exceâ—…tion Iuramentum in litem or Aestimatorium is then 1 L. 1. cum l. sequ ff de in litem iurando giuen by the Iudge when the defendant doeth not restore the very thing that is in demaund in which respect he is to be condemned in the value thereof according to such rate as the plaintife is endamaged taking it vpon his oath yet so as the Iudge by equitie may taxe and moderate the quantitie of the summe which he may not exceede and also when the partie hath sworne the Iudge may defalke thereof as he seeth cause in equitie Decisorium iuramentum delatum is that which 2 Exod. 22. v. 11. 1. Reg. 8. v. 31. Hebr. 6. v. 16. either the one or the other of the parties first offereth vnto his aduersarie to take according to that hee affirmeth or standeth in perhaps vpon confidence of his good conscience or for want of better proofe So that if he to whom it is so deferred shall take such oath then must the matter be adiudged according to his oath as if the parties had so agreed the cause But if he shall refuse it and yet will not referre it that is will not put it ouer vnto his oath that first made the offer then shall hee be ouerthrowen in the cause So that to referre an oath is nothing els but to offer it backe to be decided by his oath according to his owne issue that first made the offer 3 L. iusiurandum 34. § ait Praetor ff eodem l. generaliter 12. § se liuramento C. d. But if vpon such referring it ouer backe againe he also that made the first offer will not take the oath then hee that so referred it ouer againe shall haue iudgement passe with him as if he himselfe had sworne when it was first offered him for maximae turpitudinis est nec delatum subire nec referre iuramentum Examples of these decisorie oathes there be also at the common lawe for 4 19. H. 6. 43. where 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 By the custome of London if the defendant desire to haue the plaintife sweare to his declaration and hee doe it the defendant is thereupon condemned But this oathe decisorie at the 5 Iul. Clarus li. 5. § finali qu. 63. ciuil Law is neuer vsed in matters criminall except they be mooued ciuilly not criminally that is for the plaintifes priuate amends and satisfaction or else the cause be but of small value or the proceeding in such criminall cause criminally be referred and intended to no corporall but to a pecuniarie punishment or fine onely Thus farre for a generall vnderstanding of the nature of euery seuerall kinde of oathe CHAP. IIII. That the ceremonies vsed in taking and giuing corporall oathes with laying handes vpon the Bible or Testament and swearing by the contents of it are not vnlawfull THe first challenge nowe comming to be spoken of that is made by some of them against the ceremonie vsed through this Realme in all corporall oathes taken either in Temporall or in Ecclesiasticall Courts is the laying of our hands vpon a booke when we take the oathe For the better approbation hereof it is meete to consider the generall ende of it the particular vse of it and the generall practise of that or of the like ceremony reported both in Scripture and in other writers to haue bene vsed in such action The generall and chiefe ende of this or of any the like ceremony vsed in this action is to signifie thereby that we do then aduisedly attend and giue heede to the oath wherewith we are charged and that we do accept of it and bind ourselues in sort as it is giuen The vse of this in particular is to strike a more aduised feare reuerence into vs when wee consider the reuerence due to an oathe as it is described in that booke the curses there threatned against those that for sweare themselues or shall take the name of God vainely This vse of such corporall ceremonie in taking of an oathe is touched in the 1 L. 3. C. si minor se maiorem dixerit ciuil law out of which it is gathered that by touching and by corporall taking of it the oath is holden to be more inuiolable and the harder vpon any plea to be recalled The practise of corporall oathes taken with some like effectuall and significant ceremonie by the godly is to be found in Scripture When 1 Gen. 24. v. 3. 9. Abraham caused his seruant that was vnder his authoritie to take a corporall Promissorie and necessarie oath for
against the parties examined and therefore to be tendered more then ex mero officio In matters that may induce dammage to him that sweareth there be sundrie examples at the Common lawe one or two may suffice If 2 T. 25. Ed. 3. fol. 44. a woman couertbaron being to acknowledge a fine it be doubted whether she be 21. yeeres of age or no she shall be examined vpon her oathe In an 3 P. 3. Hen. 6. 38. action of detinue of goods supposed to be deliuered in Fleetstreete the Plaintife was examined where they were deliuered An 4 H. 3. H. 6. 30. obligation bare date in the Countie of Lincolne and a Scriueners name was put to it that remained in London hereupon the Plaintife was examined where the obligation was made Besides the dammage hereof the circumstances of this might be such as might haue vrged him to discouer perhaps a forgerie It is a commō practise in this land straitly to examine persons holden suspected of some crime or offence and to vrge their answers or else the Magistrate will and must needes holde them greatly violently to be suspected litle lesse then conuicted If an vnlikely person but suspected at large be found in a priuie search or stayed as he passeth and be brought before a Iustice of peace or higher Officer is he not straitly thereupon to be examined of his abilitie course of life trade and place of abode c. which may importe Roguerie that is both criminall and very penall to him if he be such an one in deede and shall choose rather to endure the penaltie of lawe then to lye before God and his Magistrate If to this it be answered that such examination is without oath I replye that this is but as it happeneth but admit it so be yet the matter is hereby nothing holpen For as to this purpose of being vrged to discouer him selfe which these men call accusing in a matter criminall penall it comes all to one passe because he must either holde his peace altogether or confesse the truth plainly both which may bring him to punishment or else he must lie whereby he grieuously offendeth God though not in so high degree indeede as in periurie neuerthelesse this bond of not saying vntruely before a Magistrate must needes be counted a kinde of causatiue vrging of a man that hath any conscience to discouer matter of crime against himselfe if he be guiltie in deede of that which is asked of him If a Sherife Stewarde of Liberties Reeue Bedell of Strayes and wayues rentgatherer sheepe-Reeue Baylife Baylife of husbandry or other accountant to the Prince or any great Lorde be vrged by their Auditour to giue vp their account vpon their oathes as is vsually done doeth not this in case they haue done negligently or deceitfully tend to bewray or if ye wil accuse them selues in a matter ignominious to themselues and in it selfe criminall The Treatisour himselfe though he bend most of his ordinance against this point yet when he had more exactly a little waded into and weyed the matter seemeth but onely to finde fault with sifting generally by oath of all mens thoughts words and deedes and especially sayth he in another place in matters of life and death which his issues if he will not waiue and relinquish there is none I thinke in this Realme that will impugne that his assertion either by colour of lawe or by rigour of practise For euen at the common lawe oathes in matters criminall and penall to the parties bee oftentimes necessarily to bee taken when they are enioyned For if 1 Stanford Pleas of the Crowne li. 3. ca. 14. a man sue an appeale of murder against another who will bee tryed by battaile the defender that is appealed must before the battaile holding his aduersarie by the hand solemnely sweare thus Heare this you whome I holde by the hand who call your selfe by such a name I haue not feloniously murdered your father c. so helpe mee God and all Saints Of Oathes ministred at the Common lawe tending to the discouerie of matter criminall and penall to the partie himselfe I finde these examples One 1 M. 34. Ed. 3. fol. 3. sworne of a Iurie did after departe from his fellowes In the meane time an other was sworne in his roome But when the first returned hee was by the Iudges ex officio examined vpon his booke oathe whether hee had talked with the defendant or beene in his company since he was sworne This if he had confessedit as it is an offence so had it beene very penall vnto him Neuerthelesse for his apparant fault of departure hee was committed and fined In an action 2 T. 7. H. 4. fol. 19 of Formedon the tenant of the land was supposed to confesse the action of the demandant by couin and was thereupon examined by the Iudges and the couin being thereby founde it was decreed there should be no iudgement and that he should be punished by their discretion A 3 P. 9. H. 5. 1. woman brought an appeale for the death of her husband but as it was supposed by another name then she had in very deede vpon which couin she should haue beene fined and thereupon she was examined A 4 H. 35. H. 6. Fitzh Abridgem tit examinat nu 17. Iurie after they were gone together were supposed to haue receiued a letter on the behalfe of the defendant which in law is said to be a grieuous fault and it is to be grieuously fined yet all the Iurours were thereupon examined vpon their oathes A 5 M. 35. H. 6. 11. Sherife returned that certaine witnesses who should haue appeared were dead whereof it was desired he might be examined because the returne was razed and two of the witnesses were saide to be aliue whereof one was then in the Hall and had his remaining in the Countrey Whereupon the Sherife was examined which Prisot enformed and hee deposed that the returne was made by a Clearke and neither by him nor by his Vnder-sherife and that he knew two of the witnesses were liuing Now if he could not with a good conscience thus haue cleared himselfe vpon his oathe had not this crime of razure and false returne beene verie penall and shamefull vnto him being so directly contrary to honestie and to his oath taken at the entrance into his office 1 H. 10. Ed. 4. 16. And it was at another time the opinion of the whole court if the parties in a cause had then had a day in courte that they might haue examined them touching their couin and lewd practise tending to defeate another man of his lawfull action They haue a certaine custome in London and it is allowed for good by the Common lawe of the Realme 2 Brooke tit ley gager nu 77. That if the defendant thinke the plaintife haue made a false declaration in an action of debt he may desire to haue the
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
H. 4. ca. 15. which he termeth the twise damned and repealed Statute and a bloody and boyling lawe will be alleaged for proofe of these oathes In trueth wee should be brought to a very straite exigend if we were forced as he is to runne vnto such repealed statutes for proofe of any principall point in controuersie Yet let vs see howe he assayeth to vntye this knot which he doeth two wayes First he sayth it appeareth not that thereby any authoritie was giuen to impose any such generall oath if then no such thing appeare why doth the Notegatherer so confidently Repugnancie betweene the Treatisour and Note-gatherer and so often affirme that this oath was then first brought in and established and therefore hee calleth that the statute ex officio though ex officio or oath be not once named there thereby confounding the very course of proceeding with that one Act thereof viz. of ministring an oath The Treatisour goeth further and sayth it appeareth not that any authoritie was thereby giuen to compell by oath the prisoner to become his owne Accuser for that and especially in causes of life and death had bene against the lawes and iustice of the land By which restraint in this worde especially he seemeth little lesse then to yeelde that in other cases not capitall this oath is not against the lawes nor iustice of the land But it is very vntrue to thinke that whatsoeuer is wholly forborne in Temporal courts should therfore straight way be accounted to be against them For there is great difference betwixt not vsing or forbearing and plaine forbidding of a thing to be done Furthermore we are commanded in 1 1. Pet. ca. 3. ver 15. Scripture to be ready to giue an account to euery one that asketh vs a reason of the hope that is in vs with meeknes and feare If to euery one much more to a Magistrate What then if he hauing also authoritie to impose oathes will exact it in this case may he not as lawfully doe it as without oath he may aske and interrogate the partie Nowe it is no more lawfull before God for vs being but asked of our fayth or hope euen by a priuate man to dally with him or to say vntruly though it might saue our life then wee may say vntruly when wee be sworne to tell the trueth thereof vnto a Magistrate 2 Ecclesiast 4. ver 30. doe not gaine say the trueth in any case saith the wiseman and againe be 3 Ecclesiast 41. ver 21. ashamed of vntrueth before a Magistrate or a man in authoritie So that hereupon it may seeme to be against Gods lawe to set any man at libertie from answering truely touching his fayth and hope and so in heresie when howe and by whomsoeuer he shal be interrogated yea though danger of death might ensue thereby vnto him His second answere to that statute is that if this oath be implyed vnder the worde of Canonicall sanctions mentioned in that statute then was it no binding law nor gaue sufficient authoritie c. because all lawes of man repugnant to the lawe of God are meerely voyd Where he assumeth as graunted that this oath is repugnant to Gods law which shal God willing be prooued far otherwise The last point which to this purpose he supposeth wil be obiected is that the kings heretofore haue graunted Commissions to examine by oath This he thinketh cannot be prooued and though it could yet sayth he such Commissions are against law and therefore voyde Therefore vntill they be prooued to be herein against lawe this answere will fall to nought and the obiection will remaine till then good and sound And so I ende this tedious Chapter made in answer of all that which I finde brought for proofe that these oathes whereof we argue should be contrarie or repugnant vnto the statutes common lawe or customes of this Realme CHAP. VIII That ministring of such oathes is by the Lawes of the Realme allowed vnto Iudges of Ecclesiasticall courts and some fewe obiections made to the contrary are answered THat the lawes of the Realme allowe it vnto courts Ecclesiasticall which point comes next to be declared these few allegatiōs folowing may suffice 1 〈◊〉 H. 5. ca. 〈◊〉 Ordinaries are authorized to enquire of the foundation estate and gouernance of Hospitals being not of the Kings foundation and of all other matters necessarie in that behalfe and vpon that to make correction and reformation howe after the lawes of holy Church as to them belongeth Now by those lawes Enquirie touching crimes not capitall is made by the defendants oath as in the next Chapter folowing is declared So that if any such faultes be the persons visited are to discouer them vpon their oathes which cannot be entended but that they may be criminall and penall to them selues because the statute sayth that they are to be corrected and reformed If 2 Clerkes be conuicted before Ordinaries of incontinency by examination and by other lawfull proofe requisite by the lawes of holy Church they may be committed to ward But it is shewed afore that examination euen at the cōmon law like as at the Ecclesiasticall is vpon oath So that such oath is by the iudgment of that statute deemed a lawfull proofe requisite by the lawes of holy Church Executors 1 21. H. 8. ca. 5. administrators must giue oath before Ordinaries of the trueth of such Inuentaries as they doe exhibite Yet this may implye in it either periurie or some discouery of a mans owne fault if he haue dealt therein corruptly and fraudulently And another 2 27. H. 8. ca. 10. statute though standing repealed yet giueth good testimonie that not onely Enquirie at an Ordinaries visitation but also that the parties owne examination of whome the enquirie criminall ex officio is made is holden for a due course of the lawe ecclesiasticall not disallowed of by the lawes of the Realme And such examination is done by oath according both to that lawe and to the Temporall in like behalfe as hath bene shewed out of Iustice Brookes abridgement Moreouer 3 1. Eliz. ca. 2. Ordinaries are authorized to enquire to punish c. the violation of the Act made for vniformity of common prayer howe euen as heretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes But such enquirie generall is prescribed and so was alwayes practised by the oathes of men and the enquirie speciall is and was vsed by the defendants owne oath in case he should stand in deniall The oath of 4 5. Eliz. ca. 1. Supremacie may be giuen ex officio by any Ordinarie to a Clerke being within his iurisdiction yet if such Clerke doe cary a contrary perswasion it vrgeth him to reueale and discouer himselfe and his erroneous opinion by refusall of the oath or els to be foresworne which if he list not to be but rather refuse then falleth he thereby into a Praemunire which
putteth him out of the Queenes protection forfeiteth all his lands c. and condemneth him to perpetuall imprisonment In a statute made against 5 5. Eliz. ca. 9. periurie the same time this prouiso is cōteined y t the said Act nor any thing therein cōteined shal not extend to any spiritual or ecclesiastical court or courts within the Realme of England or Wales or the Marches of the same but that al euery such offender and offenders that shall offend in forme aforesayd shall and may be punished by such vsuall and ordinarie lawes as heretofore hath bene and yet is vsed and frequented in the sayd Ecclesiasticall courts any thing in this present Acte to the contrary notwithstanding Where I thinke it will not be doubted but that vnder that worde punish is vnderstood the whole course also vsed by those lawes which must neeedes goe afore and doe tend to the conuicting of such faults as be thereby to be punished It was neuer claimed nor vsed by any Ecclesiasticall courts either afore or after to punish any periurie or subornation of periurie but either for breach of oathes voluntarily taken called laesio fidei in sort as is shewed in the first part or else for periurie or subornation thereof committed in an Ecclesiasticall court matter So that it can not be intended but that this statute meaning to reserue vnto courts Ecclesiasticall if not more yet at least the punishment of all false oaths there made did minde withal rather to establish then to preiudice oathes there appointed to be taken by such vsuall and ordinarie lawes Ecclesiasticall For if oathes especially in criminall causes were neuer there to be taken there could then be none at all or at least there would be much lesse danger of any periurie and breach of oath In the 1 5. Eliz. ca. 23. statute de excōmunicato capiēdo sundry grieuous crimes being of ecclesiasticall conusance are reckoned vp thereby it is also prouided that the significauit frō the Ordinarie vpon any of them must cōteine that the excōmunication proceeded vpon some cause or contempt of some originall matter of some of the said crimes there mentioned Now it is sure that after appearance yeelded cōtempts most vsually are committed by not performing something that is cōmanded according to that law as by refusing to sweare or being sworne to answere directly as a man ought So that this statute leaueth the determination of all such contempts to the disposition of that law by which the proceeding is made I haue touched afore in the second part certaine cases where the common law not only alloweth but also in some sort aboue the other course doeth priuilege vnto courts Ecclesiasticall the proceeding ex officio against crimes punishable by that Iuridiction As namely that in proceeding against an offence for laying violent hands vpon a Clerke Bryan and Littleton helde no man gainesaying it that the 2 M. 20. Ed. 4. 10. spirituall court may punish it ex officio but not at the sute of the partie least the beater be thereby kept from his absolution till some temporall duetie be contented and payde And 1 T. 12. H. 7. fol. 22. Mordant was of opinion that if a man be sued by a party prolaesione 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 shal lie And a iudgement giuen long afore in the booke of 2 Lib. 22. Assis. fol. 70. Assises seemeth to accorde herewith and to strengthen this opinion Fitzherbert in his Nouanaturabreuium reporteth the Lawe to be that an 3 Nou. nat breu tit consultation fo 50. deinceps Ordinary may cite proceede against a man ex officio pro violenta manuum iniectione in clericum Likewise for tithes deteined in the time of the vacation of a Benefice so also hee may cite those who refuse to mayntaine a Curate or Chapleine and for fornication and like offences But by the law ecclesiasticall according to which the proceeding is the course of proceeding against crimes and offences for the most part is by the parties corporall oathe vnto articles or positions of the very crime it selfe so there be precedent a donunciation a fame notoriousnes of the facte taking in the maner or anie other matter sufficient in law to open a way to such Enquirie That enquirie is allowed by common law vnto Courts ecclesiasticall and so consequently these oaths appeareth also further by two precedents of consultations set down in the Register The 4 Register tit Consultat fol. 48. a. former of them mentioneth alloweth of an Inquisition made by the Deane of Yorkes Officiall and of his proceeding therevpon for defects in a Chancell and for want of sundrie ornamēts and other requisites in a Church The 5 Ibid. fol. 54. b. other beside a consultation doth conteine also a cōmandement to the Ordinarie to take full information euen by way of Inquisition and by other meanes touching the value of tithes and to certifie into the Chancerie Now al Enquirie generally as is shewed afore is ex officio and is by oathes of other men in generall enquirie and in processu informatiuo and may be by the oath of the defendant in processu punitiuo so the crime be not capitall or of multilation of limme But to speake more particularly for proceeding of Office we finde there that an 6 Ibid. fol. 51. b. Ordinarie proceeded ex officio as for a crime against a parishioner for tithes deteined by him whiles a benefice was vacant That it is 7 Ibid. fol. 49. 〈◊〉 allowed vnto them to proceede against crimes ad correctionem animae we haue a precedent there of an Ordinaries proceeding against a lay man for vsurie euen at the instance of a partie grieued That against crimes defects and excesses they may proceede obiect articles ex ossicio 1 Ibid. fo 51. b. appeareth by the precedēt there set downe where an Ordinarie proceeded ex officio to the interdicting of a church by reason a part of diuine seruice as it was then holden founded to be vsed in that Church was withdrawen Where an 2 Ibid. fo 43. b. Ordinarie proceeded ex officij sui debito to the correcting of crimes and excesses of those that were vnder his Iurisdiction and among others obiected articles against a Knight for not sufficient reparations of a Church tending to the correction of his soule by reason of his deteining of that which hee ought not this is there allowed to belong to the court Ecclesiasticall and to the liberties of the Church Likewise we find there an 3 Ibid. fo 51. a. Ordinaries dealing allowed who proceeded ex officio against one that had laied violent hands vpon a Clearke so farre foorth as he dealt but for correction of the delinquent to the excommunication of him punishment of his sinne without adiudging any
amends to the partie wronged for this belongeth to a Temporall Court 4 Ibid. fo 50. a. b. Vpon a publike fame arisen that a certaine parishioner did with hold his due oblations refused to be confessed to the priest to receiue the communiō at least once a yere the Ordinary ex officio did call him to the intent to inflict some corporall paine vpon him for correction of his soule and this proceeding is there allowed vnto Ordinaries to be of their iurisdiction and lawfull One 5 Ibid. 54. b. 55. a. Lindsey a publike Notary being infamed aswel of a crimeof fornication for so I take it that it ought to be read by him cōmitted as for contēpts done to that court was ex officio proceeded against by y e Deane of the Arches for correctiō of his soule maners both which are there allowed together with such proceeding to belong to y e libertie of the church to eccles iurisdiction In which copie of consultation it is to be noted that towards the end therof also in the title of it in the margent this word defamationis is vsed in steed of the word fornicationis for actions of defamatiō be seldom or neuer sued ex officio but at the instance of some partie grieued Besides mention is there made of committing it within that iurisdiction which in desamation that is not properly said to be committed is not material so the defendant remaine then in that iurisdiction and therefore where in the beginning of that Writ the wordes are printed Super formationis c. and conuerso which hath no sence nor yet is any Latin no doubt it ought to be super crimine fornicationis c. commisso As for the 1 Ibid. fol. 45. 〈◊〉 crime of fornication it is twise besides noted by the Register that Ordinaries proceeded against it in that forme In the first wherof it is said that the Ordinary proceeded ex officij debito as bound by his office duty against a chapleine that kept a cōcubine publikely to the danger of his owne soule with scandall of others Therefore this crime was obiected against him ex officio for his correction and for reformation of his maners In the 2 Ibid. fol. 57. b. later of them the Official of Canterb. proceeded ex officio against a vicar for the same crime for contēpts also by him made against that court ad correctionē animae suae And there it is said of both the faults as in al the former cōsultatiōs to like effect that this is cognitio spiritualis quae ad forū Ecclesiasticum pertinet in praemissis And the said writ runneth thus Cùm vos nuper ex officio vestro fama publica referente quod T. c. vestrae iurisdictionis C. in amplexibus fornicarijs tenet ipsum corā vobis in curia christianitatis pro correctione animae suae in hac parte citari feceritis procedentes contra eum ibidem iuxta canonicas sanctiones c. vobis significamus quod in causis praedictis ex officio vestro quatenus ad correctionem ipsius vicarij non concernunt placita de catallis debitis in curia Christianitatis procedere vlterius ibidem pro salute animae suae statuere facere poteritis quod ad officium vestrum speciale noueritis de iure pertinere prohibitione nostra praedicta non obstante So that by these so many precedēts of consultations by citations proceeding against crimes c. being of that iurisdiction by way of inquisition or enquiry by y e authorising of ecclesiasticall iudges in al of thē to proceed therein to do quod ad forum ecclesiasticū nouerint pertinere by the obiecting of the crimes to the parties enquired of ex officio iuxta canonicas sanctiones ius libertatē eccl which maybe by oath in matters aswell prohibita quia mala as mala quia prohibita against lay aswell as ecclesiasticall persons we do conclude gather that by so many iudgemēts of the cōmon law for crimes of ecclesiasticall conisance and consequently in matters neither Testamentarie nor Matrimonial any persons whether lay or ecclesiasticall being vnder that iurisdiction may be cited though against their wils by Ordinaries Iudges Ecclesiasticall ex officio ipsorum mero And vpon apparance may by censures ecclesiastical c. be vrged vpō their oaths vnto examinatiō to answer matter though it concerne their owne crimes And therfore that the lawes of this land do warrāt alow the ministring of that othe wherof we intreat vnto Courts ecclesiasticall We do onely say that the defendant may lawfully be vrged in due proceeding of office to answere concerning some crimes of his owne by vertue of his oathe But according to the Treatisour Note-gatherer and others who seeme to confound all proceeding ex officio with the very ministring of an oathe to a defendant touching a crime obiected against him we might a great deale more peremptorily conclude that if these two as they holde be but in trueth all one thing then wheresoeuer proceeding of office is there such oathe of necessitie must be also ministred and taken These proofes last alleadged are gathered out of Writtes of Consultation after that by the parties conuented Prohibitions had beene brought to remooue the causes from ecclesiasticall Courts And therefore no doubt but that the Lawe before the Consultations awarded was thoroughly debated and that the parties delinquent were cited and proceeded with altogether against their willes For can any be so simple as once to imagine that a man who is cited to answere in a cause criminall and to be punished or corrected for it will willingly appeare and answere if hee neede not to come at all and were therein also by Lawe protected Or that he wil be at cost to procure a prohibitiō to stay the dealing where he is willing enough to be proceeded with But besides allowance hereof by the Statutes and Common Lawe vnto Courtes ecclesiasticall the practise also by time immemoriall hath runne accordingly as may positiuely appeare by Acts of Ecclesiasticall Courts and by way of abnegation may be shewed from the Recordes at the common Lawe In that as I thinke it will not in them be found that any Prohibition hath vpon this point onely beene awarded thence or at least vpon debate for obtaining of a Consultation such hath not stoode nor beene mainteined And albeit either vpon this consideration or some other as weake certaine euill disposed and factious persons haue long agone disputed and maintained opinion against oathes ministred both in Courtes temporall and Ecclesiasticall yet vpon generall mislike of such fond opinions as may be gathered a Prouinciall constitution was then agreed vpon and concluded to make euen all disputations against oathes ministred in either court to be heresie which Constitution I haue not hitherto found to haue bene misliked much lesse condemned at any time since as
2 Ordonnance du France premier an 1539. art 38. the parties are bounde by oathe to affirme touching the factes conteined in their billes and additions and by their answere vpon oathe vnto Interrogatories to confesse those which be within their knowledge In other matters criminall it is reported to be the 3 Marcus decisione 674. custome of France for the partie defendant onely to make fayth when they are obiected and hee is thereupon to answere whether he haue committed them or not but hee is not to take a corporall oathe betwixt which two before God there is no difference But by the 4 Grand Coustuâ—…er entre les coustumes de Normandie customes of Normandie I finde that the appealed of murther or such like when it is to bee tried by battaile must vpon his oathe holding his aduersarie by the hand solemnelie sweare whether hee hath committed such facte or no in the very selfe same wordes and maner as Stanford afore alleadged affirmeth to bee the lawe of England in like case of Appeale Generally y t to giue 5 Bâ—…tol in l. inter omnes §. reâ—… fl de furtis an oath to the partie conueÌ„ted in a cause criminall to tell the trueth is the present vsuall practise of most nations abroad and 1 August ad Angel de maleficijs in ver comparuerunt Bertrand consil 321. nu 3. li. 3. in prima parte Marsil in l. quaestio habeÌ„dae nu 72. ff de quaestionibus Conradus in Practica fol. 280. Go. mez ca. 1. Delictorum nu 65. that the common opinion of writers in these two lawes is that it may bee so giuen euen by the lawe Ciuill which is their common lawe doeth appeare by the places of Authors here quoted in the margent Amongst nations of farre elder times in most flourishing common weales we finde oathes in all causes whether Ciuillie or Criminallie mooued to haue bene taken both by the plaintifes and also by the defendants Amongst the 2 Ex Polluce Sigonius li 4. ca. 4. de republica Atheniensi Suidas in verbo Athenians both parties tooke oathes and besides that did lay downe a certaine summe of money to be forfeited by him that should bee ouerthrowen The Plaintifes or Accusers oath was that he would obiect nothing but true crimes and matters This was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the defendant sware that he would deale and answere plainlie not fraudulently and cautelously and this was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 When Aeschines accused Timarchus of a fowle crime supposed to be done vpon him by one 3 Aeschines contra Timarchum pag. 7. Graece Misgolas he saieth thus that if Misgolas being called and vrged to beare witnesse shall denie it to the intent to gratifie Timarchus hee shall thereby doe him no good because Aeschines can prooue it by witnesses but shall only for sweare himselfe and withall shew how cunningly hee can couer such villanies Whereby appeareth that in that common wealth oaths might bee giuen in matters criminall tending to the opening of their owne turpitude as well as of other mens Radamanthus for his seuere and strict course of Iustice holden was fained by Poets like as Aeacus and Minos also were to be a Iudge in another world ouer ghosts deceassed Of him 4 Plato lib. 12. de legibus Plato thus writeth to our purpose I am perswaded saieth he that Radamanthus deserued to bee had in great admiration for he perceiued how in those dayes all men confessed that there were gods which had regard ouer humane actions therefore he thought best to commit deciding of matters in iudgement vnto gods and not vnto men So that by a very plaine and easie course hee ended all matters of iudgement for hee exacting an oath in euery cause in controuersie vsed thereby no lesse speedily then safely to giue his iudgements 5 Libr. 3. Polit. c. 10. Aristotle also Plato his scholer testifieth the like that in olde times supposed offenders that were called into question were some of them proceeded with vpoÌ„ their oaths other without and their oath was performed by holding vp of a scepter The historie of Glaucus 1 Herodotus in Etato lib. 6. an auncient Spartan doeth giue plaine euidence that amongst that most iust people of Greece a man that would denie a thing to haue bene left with him in deposito that is in trust to keepe was to take his oathe whether it was so left with him or not and consequentlie was to sweare of matter tending either to periurie or to his dishonestie and shame hauing once vniustly denied it afore to the defeating of his right who had trusted him For the said Glaucus his whole house and posteritie was rooted out by Gods vengeance onely for that a while hee denied it and had once in purpose to haue forsworne the money which was in deede left with him vpon trust and thereupon consulted with the Oracle at Delphos whether he had best forsweare himselfe or deliuer the money The vse of an oath in matters criminall amongst the people of Greece may be prooued to be most ancient by that purgation which king Agamemnon made to cleare himselfe that he had not liued incontinently with Hippodamia this his purgation is recorded to haue bene made in this forme 2 Dictyâ—… Cretensis lib. 2. belli Troiani Hee commanded two Sergeants to bring the hoste or sacrifice which being by two lifted vp from the earth Agamemnon drewe out his sworde and therewith diuided it into two partes and caused it in the presence of all to be laied downe then holding in his hand the bloudie sworde hee went betwixt the two partes of the sacrifice and when hee was passed through he then sware that he had neuer polluted Hippodamia by incontinencie Homer 3 Homer lib. 19. Iliad v. 257. mentioneth that the same king in another forme cleared himselfe that he had not violated Briseis For at that purgation a Boare was offered vp by Talthibius then Agamemnon cut off some of the Boares bristles and offered them to Iupiter swearing withall that he had not violated Briseis and the Boare was after tumbled into the sea For clearing men from suspicion of all lewd and sinister dealing not onely those which came to striue 4 Pausanias in Eliacis at the solemne exercises and games of Olympus but their parents also and brethren were sworne ouer the entrailes of a sacrificed hogge that they had vsed no fraude or deceit whatsoeuer nor done otherwise then the ordinnances for Olympus did permit So much then for the vse thereof among the old Graecians In the old Romane common 1 Cato de re rust ca. 144. 145. wealth we read that euen priuate housholders did lawfully impose such an oathe vpon their labourers that gathered Oliues videlicet that neither themselues nor yet any other by their couin or fraude had stollen or embezelled away either oyle or oliues which oathe if they
sell his lande but not the day before albeit hee haue receiued my money that the wrecke of the sea albeit the owner of the goods bee certainely knowen shall bee confiscated and belong to the Prince that a straie proclaimed according to lawe after a yeere and a day shall belong to the lord of the Mannour where it was taken vp with infinite such like Therefore it is no good nor safe ground that the Innouatours doe stand vpon when as being pressed to take such oath according to the lawes of the Realme they alleage that in conscience they may not doe it because they finde no direct warrant for it by Scripture whereupon to staie their consciences For if it were graunted vnto them that there bee no commaundements no examples no footesteppes or traces thereof in Scriptures yet if it be not by them prohibited or condemned the generall obedience of subiects will tie them thereunto But I purpose also here to shew the lawfulnesse of it euen positiuely out of the worde of God First declaring that Magistrates may laie oathes vpon their Subiectes which are necessarilie by them to be taken Then that they may be tendered and taken in causes criminall and penall to the parties themselues and lastly I minde in the next chapter God willing to answere the obiections that I finde brought to the contrarie That when an oathe is duely imposed there is a necessitie enioyned the subiect to take it doeth appeare by the commandement of God himselfe Thoushalt feare the Lord thy God and serue him and shalt sweare by his name which words being dispositiue not onely to the maner of the oath viz. by Godsname but also to the action it selfe offwearing doth argue euidently that there be oaths as well necessarie as there be voluntarie The like commandement is giuen by the Lord in the prophet 1 Iere. 4. v. 2. Ieremie O Israel thoushalt sweare The Lord liueth in trueth in iudgement and in righteousnesse Wherein there is both a commandement of that action and an instruction in what sorte an oathe is to be taken and with what necessarie adiuncts In the charge that 1 Iosh. 23. v. 2. Iosua gaue to all the Magistrates of Israel viz. to their Elders to their heads their Iudges and their Officers this amongst other things is conteined that they shall not make mention of 2 Ver. 7. the Gods of other nations nor shal cause to sweare by them And therefore Magistrates haue authoritie to cause those that be vnder them to sweare and to take oaths For an example of such charge giuen wee haue that of king Saul who not onely 3 1. Sam. 14. v. 24 28. charged the people with an oathe but made them vowe with a curse not to eate any food that day till night Therefore one of them reported thus to Ionathan Sauls sonne that his Father had made the people to sweare The most wise king Salomon when he meant for a punishment to confine and imprison Shimei within the compasse of Ierusalem for his reuilings of king Dauid telleth what hee did 4 1. Reg. 2. v. 42. 43. vnto him Did I not make thee saieth he to sweare by the Lord and protested vnto thee saying c. why then hast thou not kept the oath of the Lord and the commandement wherewith I charged thee And yet this oath and promise was without excepting of any cause though most important to him and most necessary that might happen to occasion him to goe out of the Citie and therefore did bring apparant danger with it to entangle him as deepe as his life And albeit the cause which he had of going afterward out of the Citie might seeme something reasonable in that he 5 Ibid. v. 39. 40. went foorth but to fetch home two of his seruants that had runne away from him yet did this breache of his oathe and of the kings adiuration to him wherewith hee had charged him most iustlie cost Shimei his life So king Saul 6 1. Sam. 24. v. 22. 23. vrged Dauid to sweare vnto him that he would not destroy his posteritie after him For a priuate offence and iniurie only betweene neighbour and neighbour king Salomon testifieth that a necessarie oath of purgation may be required by the 7 1. Reg. ca. 8. v. 31. 32. complainant When a man shall trespasse against his neighbour and he lay vpon him an oathe to cause him to sweare and the swearer shall come before thine altar in this house then heare O Lorde in heauen and do and iudge thy seruants that thou condemne the wicked to bring his way vpon his owne head and iustifie the righteous according to his righteousnes Where we see that a priuate person vpon a supposed offence and trespasse agaynst him may vrge his aduersarie vnto a necessarie oath albeit the matter be criminall and penall to him if either he shal refuse it or be afterwards otherwise conuicted How much more then may a Magistrate vrge it for the publike interest especially for an offence supposed to be done against the Church or Commonwealth King Iosias also meaning to reforme religion and to restore the true worship of God greatly then decayed did make a 1 2. Chro. 34. v. 31. 32. couenant and vowe and caused all that were found in Ierusalem and Beniamin to stand to it So 2 Ezra ca. 10. v. 5. Ezra the Scribe being also a Magistrate caused the chiefe Priestes the Leuites and all Israel to sweare that they would doe according to this worde which oathe that by vertue of his office it was imposed necessarilie vpon them and not onely voluntarilie by them taken wee haue good testimonie in the wordes 3 Ibid. v. 4. next going before Rise saieth Sechaniah vnto Ez-ra for this matter belongeth to thee and we will be with thee or assist thee confirmare bee thou resolute and effect it And likewise out of the booke of 4 1. Esdr. Apocr ca. 8. v. 92. 93. Esdras Apocryphall where that storie is reported for it is there sayd thus To thee it doeth appertaine and we are with thee to make thee strong whereupon is added And 5 Ibid. v. 94. 95. hee made them sweare By which wee may gather that if any of them would not haue sworne vpon his commaundement they should haue bene compelled thereunto by some Ciuill constraint When the richer Iewes had receiued the lands of the poorer sorte to Morgage and they were forfeited vnto them yea and their very sonnes and daughters were drawen into bondage for satisfaction of such things as they had borowed for their necessarie sustentation 6 Nehe. 5. v. 11. 12. 13. Nehemias caused the Priests to sweare to restore these againe and to forgiue the hundreth part of the very principall due vnto them So by the premisses we see that Magistrates may exact oaths of those that be vnder them which ought not to be refused The Treatisour himselfe will
this answere may serue vnto all his quotations touching examples of omission as of William Swinderby and others which are brought by him to shewe proceedings to haue beene in England against Heretiques without exacting an oath Besides it is not the exacting of an oath in heresie but in other crimes Ecclesiasticall that we doe principally mainteine howsoeuer he doe seeme rather to allowe it in matter of faith then in others of lesse moment Thirdly if when they were proceeded with in those countries they knew the matter first then is not that true which he said afore of them viz. that their refusals were like vnto that of the aforenamed martyrs of England And by this word first he seemeth at vnawares to implie a confession that they were neuerthelesse examined afterward by their oathes howsoeuer in the selfe same sentence he denie it Fourthly if by the copulatiue which he puts betwixt accusation and denunciation he meaneth both them ioyntly together then doth hee affirme impossibilities for they bee diuers courses of proceeding Fifthly the ground of his mislike is rather vpon the order of time when the oath is ministred then for the Criminall matter which we speake of Lastly vpon an accusers instance an oath cannot be ministred in any crime by the Ciuill lawe which those Countries mentioned doe most followe much lesse then vpon an accusation of heresie Furthermore in that he saith no Martyr in Q. Maries time was forced to an oath vntill the statute exofficio so he calleth 2. H. 4. then reuiued for attaching of heretiques and the Popes authoritie were restored which authoritie is now abolished It seemeth he would collect that to minister an oath in a criminall cause is vngodly as being onely builded vpon the Popes authoritie Indeede if it were onely so grounded then were it no lesse impious in this Realme to builde it vpon y e vnlawfull authoritie then his other vsurpations are But there were none martyred nor I thinke so much as examined of heresie till that statute was established viz. in the 1 1. 2. Phil. Mar. caâ—… An. 1554. Parliament begun 11. Nouemb. ended 16. Ianuar. For the sentence against Rogers who first of all was condemned to be burned was 2 Fox pag. 1030. 〈◊〉 edit pronounced 19. Ianuarie 1555. viz. the yeere after Then what maruaile is it when as further then imprisonmeÌ„t they were not dealt with or examined though an oath were not ministred to any of them But that in any ordinary Ecclesiastical court from the commingin of Q. Marie till the end of that Parliament wherein that statute was reuiued such oath was not for any other crimes tendered is I beleeue ouer pregnant a Negatiue then that it can be prooued by him or by any man And therefore neither the examples of those who are pretended to haue misliked it nor the supposed omitting of it vnto some that were dealt with for heresie doe not nor can serue to prooue any vnlawfulnesse or vngodlinesse to be in such oath as we defend So that we may conclude that our former reasons vsed to prooue the lawfulnesse of it by Gods word doe rest yet vnshaken notwithstanding any obiections hitherto made to the contrary CHAP. XIII Foure seuerall opinions of the Innouators against the parties taking of oath in criminall causes with answeres also vnto their reasons and obiections AGainst the ministring and taking of this oath by a mans owne selfe the Innouatours doe also holde sundrie opinions and doe make many other obiections and arguments meete to be viewed and briefly as may be answered It may not be looked for that I should touch them all because not many of them are come to mine handes neither if they were will leasure serue nor if it would serue were it worth the while they be so friuolous but especially because their conceits and opinions in this behalfe are so manifold so variable and intricated with such contradictions one against another and of the same man against himselfe as I doe assure you it is a worke of more labour to set downe certainely what they holde about this matter then to confute them But it is meete that errours should so be viz. diuided into many heads one of them hissing against another howsoeuer they be tied together by the tayles like Samsons foxes to set both Church Common wealth on fire So neere as I can collect them their opinions be of foure sortes The first is of those who being required to take such oath truely to answere the matters whereof they be brought into question the chiefe heads whereof are also made knowen first vnto them will answere neither yea nor nay either touching the trueth of the matters or what they resolue to doe but onely thus viz. if you haue matters against me that be manifest then proceede to prooue them by witnesses if they be hidden then tarie till the Lord come who will 1 1. Cor. 4. V. 5. lighten things that are hidden in darkenesse and make the Counsels of the hearts manifest And these commonly will call for an accuser And if it be tolde them that the common voyce a presentment or other iudiciall denunciation or the publike interest c. is their accuser that brings them into question then come they againe to the first poynt and bid their accusers and their witnesses to come and stand forth against them This dealing as it is most peremptorie and franticke of all the rest so it is most vnreasonable and dangerous for it tendeth to the taking away of all Iudiciall courses both criminall and Ciuill To what purpose should a man produce witnesses before the defendant hath answered directly what hee confesseth and what he denieth and would haue prooued Neither is this to deale sincerely iustly and vprightly as we woulde haue others to deale with vs. For we should speake the trueth one to another and not seeke to circumuent any by cautels and frustratorie shifts but least of all in matter of iudgement where by law and by the Magistrate that is lex loquens we are required and be in conscience also bound to procure that controuersies doubtfull may be composed with least adoe and trouble to the intent that which is right and trueth in euery cause expedient to be knowen may quickly be knowen and come to light Such froward answeres as this is doe rather put off the Iudge with contempt and disdaâ—…e then yeelde any good reason why such oath should be refused This pretended dilemma of theirs hath many media or meanes to make it easie to be dissolued First a crime may be so manifested that the supposed offender becomes thereby noted infamed and scandalous and therefore fit to be enquired of albeit happely the thing be done so couertly or of his owne nature be so hidden as it cannot be exactly prooued by witnesses For wicked and lewde persons make all prouision that may be that there may be no witnesses of their wickednesse And therefore it
is meete that such being probably touched that witnesse instar omnium be vsed and called on by them who knoweth all things before whom the whole world stands as a 1 Apocal. 4. v. 6. sea of pure Christall Some examples of such crimes are shewed in the eleuenth Chapter by the Scriptures And what shall witnesses neede if the partie himselfe will not denie it Or what if the witnesses be not meete to be knowen at first least the partie vpon his oath or otherwise discouer no more when he once knoweth them then he supposeth by them can be deposed Or what if at the parties first conuenting no witnesses be knowen that can testifie but doe come afterward vnto the Iudges knowledge Touching hidden crimes if they be simply hidden and in such sorte as is meant by that place of S. Paul and by the like rules in lawe it is very true that they are not to bee enquired after by any Magistrate neither is any man bound to reueale such Therefore it may not bee asked of any man as was done in Popish shrift what faults and sinnes hee knoweth by himselfe Such be the counsels and secrete thoughts of mens hearts spoken of by Saint Paul in that place and all actions also not come abroade at all nor manifested either by fame or by other good presumptions or euidences For before they be at least so manifested it is not of any possibilitie to make enquirie or question after particular crimes when they bee not so much as supposed to be done Concerning which crimes what the law Ecclesiasticall and practise is I referre you to the ninth chapter of this third part But if they shall be once so manifested abroad as before is declared then is not the fault simplie hidden but in part is manifested and brought to light and therefore is it fit and conuenient that the partie be either cleared of it or corrected for it Besides that place of S. Paul is not meant of any Iudiciall proceedings but of priuate rash and vncharitable iudging of our brother in the worst part without any iust ground thereof as if wee would take vpon vs Gods owne office and would iudge the inward cogitations of another mans heart Such peruerse iudging our Sauiour Christ also 1 Matth. 7. v. 1. Rom. 2. v. 1. condemneth in the Gospell But it pertaineth nothing vnto such enquirie by oath as the Magistrate hath good enducements and presumptions for to enter into Another sorte no lesse pernicious then the former are those who will pretend not to refuse to take an oath in a cause criminall but yet they will doe it with this limitation and protestation that they entend not thereby to be bound either to accuse themselues or their brethren By accusation meaning the reuealing of any thing for which they or their brethren may be troubled or punished Vpon what ground other then the generall reasons of the rest and of the Iesuites as if it were against nature and charitie c. these should build this opinion I for my part cannot wel coniecture But it sorteth to this passe that seeing we are all brethren and members one of another therefore it shall not be lawful for the Magistrate to punish any sinne or transgression sauing where himselfe doeth take the offender with the maner yea and scarse then too For they will hardly I beleeue allowe that the same man shall be accuser witnesse and Iudge For they conceiue howbeit erroneouslie the Iudge who proceedeth of office to be an accuser This plainlie followeth of it because no sinne may lawfully be punished but where the partie is conuicted There can be none other conuiction but either by the parties owne confession or vpon depositions of witnesses So that if no Christian be bound nor ought before a Magistrate to reueale either his owne or his brothers offences then doeth it followe that crimes shall neuer be punished till the offenders themselues being moued in conscience if happily they shall euen then by these men be suffered to accuse or discouer themselues shal wilfully come in and desire for Gods sake to be hanged vp or otherwise punished as the qualitie of their offence leadeth Amongst the heathens I reade of no nation but they vsed and had oathes in great estimation and necessarie practise sauing 1 Alex. ab Alex. Genial Dierum li. 5. cap. 10. the foolish Phrygians who onely condemned them And amongst Christians the olde heretikes Manichees of later times the Anabaptistes and now lastly these fellowes who albeit not in plaine wordes yet in very deede doe vpon the matter take away all oathes in matters criminall and consequently all both Ciuill and Ecclesiasticall punishments and censures from among men For 2 Cyprian in exposit Symboli Manes the olde heretique taught that it was not lawfull for Christians to sweare at all The third sort of opinions being deliuered by diuers of the more learned sorte of the Innouatours are of such as holde that they may reueale both their owne and their brothers crimes and offences to remoue euill from the land as they speake when they are duely charged thereunto by oathe But some actions there be which they beleeue to be well and lawfully done and yet by lawe or iniquitie of the time they holde to be such as may bring trouble and punishment vpon them And those they saye they are bound in conscience not to declare at all This opinion for y e first part thereof is directly cōtrarie to the next afore precedent But who shall iudge whether such matters as they be enquired of ought to be accounted for faults and offenses and which being punished will remoue euill from the land or whether they be in deed and trueth good vertuous actions I greatly feare that these men wil not in this point be content to be ouer-ruled either by the lawes of the Realme or by the Magistrates Iudges that be interpreters of the lawes But no remedie an oathe they will not take till they shal be satisfied and resolued which they can make as long in doing as them selues lust that such actions be iustly and lawfully to be condemned for Crimes and offenses by Gods lawe So that this is nothing else then to permitte vnto euery priuate subiect the iudgement how farre in what causes and against whom he needeth to declare his knowledge of anymatter how expedient soeuer for her Maiestie and vnto the whole common-wealth it be to be knowen Is not this to put a sure buckler into the hands of Iesuites other traitors murderers felons and euery lewde companion to holde foorth against the lawfull examination of Magistrates touching themselues or their complices For if they neede not declare any thing by oathe much lesse will they haue conscience to doe it when they are not sworne which forbearing of the parties own oath in examination of crimes that may be capitall to him is alwayes obserued in this Realme Perhappes vnto this absurditie
gappe For the proofe of this their assertion that where winesses may be had there a man may not be examined vpon his oathe First they saye for Iudges finding out by Inquisition what is spoken or done they finde two wayes in Scripture One by witnesse of others where they may be had which they goe about to proue by these 1 Deut. 13. v. 12. 15. Deut. 17 v. 2. 7. Num. 35. v. 30. Deut. 19. v. 15. Ioan. 18. v. 20. 21. 1. Tim. 5. v. 19. places quoted in the margent The other way by the parties owne testimonie where witnesse cannot be had for the thing spoken or done whereof necessarie inquisition is made which they would proue by these other 2 Iosu. 7. v. 19. Exod. 22. v. 7. 8. 10. 11. Num. 5. v. 13. 19. places here also quoted But is this a good consequence these two wayes be mentioned in Scripture Ergo there be no more but two or if it were admitted there bee no moe wayes mentioned for Inquisition of crimes doeth it followe that therefore all positiue lawes of Common-weales kingdomes for inquisition and triall of crimes in any other sorte are vnlawful against Gods worde what is this else then plainely to ouerthowe condemne as vngodly not onely the Inquisition and trial by Iuries and verdicts of twelue men vsed in this Realme and not mentioned in Scripture but also the proceedings Iudicial of all y e world besides if they do not wholy iumpe in manner fourme with y e Inquisitions trials mentioned in scripture * This erroneous couceit Barrow held in his last booke printed at Dordrecht And so instead of all our positiue laws to bring in place the Iudicials of Moyses giuen onely to the people of the Iewes not onely for the equitie of thē but for the very substance fourme of them also whereby the Priestes shal be Iudges what is lawe in euery difficult controuersed point in whose iudgements vpon paine of death euery man must rest contented Neuerthelesse by this their owne position I thus proue against themselues that they doe wickedly in refusing to take their oathes Wheresoeuer in an Inquisition of a crime no witnesses can be had there by the lawe of God the parties themselues must take their oathes and declare the whole trueth But of their framing of a booke of new Discipline Ecclesiasticall and Synodical of their subscribing to it of putting some of it in practise of meeting in Classical assemblies or Conferences in Synodes and general assemblies of matters there treated of concluded against the lawes and gouernement of this Church of England of secret writing and dispersing of their slaunderous bookes and libels conteining erroneous and hereticall opinions and seditious incitements which last pointes are Prohibita quia mala And touching the circumstances of these and euery of them no witnesses can bee had as experience it selfe sheweth for they were kept as close secret as could be they were done in priuate places chambers from whence all other were secluded sauing the very parties themselues being all principal delinquents and not called thither or being there as witnesses Therefore by the lawe of God they ought hereupon to take their oathes and to declare the whole trueth in these matters For so is their owne position Nowe I will examine their seuerall proofes brought for this opinion The first is this 1 Deut. 13. v. 12. 13. 14. 15. c. If thou shalt heare saye concerning any of the cities which the Lord thy God hath giuen thee to dwel in wicked men are gone out from among you and haue drawen away the inhabitants of their Citie saying let vs goe and serue other Gods which ye haue not knowen then thou shalt seeke and make searche and enquire diligently and if it bee true and the thing certaine that such abhomination is wrought among you thou shalt euen slay the inhabitants of the Citie with the edge of the sword destroye it vtterly and all that is therin the cattel thereof with the edge of the sword Where you see the punishmēt is vniuersall though the first perswasion came happely frō a fewe and therefore the defection frō God vnto Idolatrie was there amongst the men also generall For the iustice of God is that 2 Ezech. 18. v. 4. the soule which sinneth that shall dye How can this prooue that no partie to the sinne was examined but that they were conuinced onely by witnesses Nay the contrary rather is manifest For who is so fit and so likely to haue knowledge of things done in a Citie as those that dwell in it and therefore the lawe alloweth Citizens for good witnesses of matters there done euen when it is for their owne benefit because by common entendement others cannot be had I will aske then whether this generall condemnation and execution against a whole citie might proceede onely vpon hearesay this were very vniust and cruel and it is saide in the text it must be knowen certeinely But if vpon certeine and sure conuiction then cannot it be otherwise then by the examination of some persons of that citie who onely can knowe the certeintie thereof But these are all parties Quia quos par culpa eosdem tenet par poena è conuerso For God hath appointed this negatiue Iustice in his lawe that 1 Deut. 24. v. 16. the father shall not be put to death for the children nor the children put to death for the father but euery man shall be put to death for his owne sinne And in the Affirmatiue it was decreed in a Councell thus 2 Concil Tolet. 4. Can. 78. Oportet vt vna poena teneat obnoxios quos similis error inuenerit implicatos such as be guiltie of the same fault must needes bee subiect to the selfe same punishment And therefore it followeth that this Inquisition here spoken of was founde out by some of the parties owne examinations rather then by any other witnesses dwelling abroad and therefore not able to deliuer any certeintie But in so penall a matter a man will hardly confesse without torture or oathe and 3 Hebr. 6. v. 16. an oathe is for confirmation And therefore it may happen by the equitie of Gods lawe that a man in a matter criminall and euen capitall to himselfe may bee examined by his oathe Howe much more then of a crime not so penall That other place of the 17. of Deuteronomie is left at large without expressing whether the partie condemned there of Idolatrie were to be examined vpon his owne oath or not Besides in matters capitall and where there is an Accuser as in some sort is there no man in this Realme vrgeth an oath But it is necessarilie to be gathered that at least the partie conuented did answere the Accusation or Inquisition there by deniall before the witnesses were produced which many of this sorte of men will not doe either the
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
of him he not knowing what they will demand neither whether it be lawfull for to shew them the trueth of their demands or no for such things there be that are not lawful to be shewed This he exemplifieth thus as if saith he I were accused of fornication and none could be found in me if then they should require me to sweare to bewray any other that I haue knowen to offendin that vice I suppose it were expedient c. not to follow their will c. He also further findeth fault with such Iudges for that sometimes not knowing by any due proofe that such as haue to do afore them are culpable yet will enforce them by an oth to detect themselues in opening before them their hearts For answer hereuÌ„to First there is none that defendeth any such generall exacting of an oth to answer whatsoeuer shal be demaÌ„ded Besids what is here any way sounding to the condeÌ„nation of ministring an oth for answering to particular Interrogatories touching certain knoweÌ„ points opened before vnto y e party SecoÌ„ndly the iudgement of LaÌ„bert that a man is not bouÌ„d in distinctly to bewray whoÌ„soeuer hee knoweth to haue offended is also allowable For a man being so generally asked is not bouÌ„d by any law that I know to take oth to bewray whatsoeuer he knowes touching al other mens faults so they be meerely secret not manifested at al abroad nor bringing any scandal or apparant danger either to the church or common weale or vnto the soules of a multitude where of he may ought in charitie presume that the offendors be repentant Thirdly I take this iudgemeÌ„t also to be very sound both in diuinity and law that a man may not be vrged in any humane court to disclose what hee thinketh in his heart vnles by word or deed it be come vnto some ouert Acte For if it come so far there may be then sundrie occasions why a man should be examined what he thinketh or beleeueth As if a man wil alledge iudicially something desire it to be admitted which ought so to be in case he propound it bonafide not calumniously the Iudge may here vrge him to declare by his oth whether he beleeueth the said matter to be true that he thinketh it may be prooued Likewise he that shall be detected to haue spoken like an Atheist or an Heretike against God may be examined vpon his oath touching his beleefe neither is the bewraying of himselfe herein capitall vnto him vnles he shall wilfully persist in his error and blasphemy and therefore I thinke that by the lawes and policie of this realme it is otherwise in a person which hath once abiured is againe relapsed that he ought not to be examined by oath touching his heresies by him vttered and holden because if he be conuinced to haue relapsed he ought by lawe to be burned notwithstanding he shall then againe pretend reuocation of his error and hearty repentance Out of this answere of Lamberts vnto that article I obserue that the Treatisour in my copie at least hath some what changed these words viz. and none could be found in me if then they should require me c. for insteede of if then hee hath put these viz. or if because he would not haue them sound any way as if Lambert meant that a man might bee sworne touching the crime of fornication imputed to himselfe albeit hee were not bound to bewray all others whome he knewe to haue offended that way Besides by Lamberts said answer it appeareth that he thought Magistrates might cause subiects to sweare though against their wils that they are bound to obey them therein which he exemplifieth by that which Salomon might haue done with the two women which contended about the childe if otherwise he could not haue found out the trueth thereof And he concludeth his answere to that article thus viz. that he thinketh it lawfull at the commandement of a Iudge to take an oath to say the trueth specially if the Iudge require it duely and in lawfull wise whereby we see Tyndals iudgement by Lambert to be controlled where he writeth absolutely that no Iudge ought to make a man sweare against his will Lastly Lambert there concludeth that a Iudge may cause a man to make an oath in any other case conuenient and that also for purgation of infamie when any infamie is lawfully laide against a man So that the Treatisour himselfe who condemneth all such oathes of clearing as purgations poysonfull for that they may induce periurie is by this his owne allegation which he may notrefuse well confuted The Notegatherer auoucheth also three examples where men were proceeded with for matter of pretended heresie and yet had a copy of the Articles deliuered vnto them But he telleth not whether they were afore that or afterwarde sworne But howsoeuer some were then thought good to be proceeded with yet cannot this prooue that it was holden to be vnlawfull to doe otherwise For I haue also knowen the like fauour vsed vnto sundry pretending scruple in this point who in very deed little deserued it for they were neuer the neerer afterward to make oath to answere them The equitie of this proceeding yea farre aboue the lawfull practise of courts on the other side the sea in their proceeding against crimes euen capitall by the course of the Ciuil lawes may appeare by comparing of them in some points together They haue there two Processes in most criminall matters the first is called processus informatiuus which conteineth al the Indicia or the EuideÌ„ces presumptions sayings of those which can testifie against the partie enquired of These be taken aforehand for the priuate instruction of the Iudge euen in the absence of the partie serue for to ground his Enquirie The other is y e very Processe criminall or punitiue whereunto the partie conuented is to answere and resembleth much our Inditements at the common lawe which inditing in France they call making a mans Processe Nowe it is by 1 Conrad fol. 255. Foller in Pract. crim fol. 165. nu 9. Iodoc in Pract. fol. 24. nu 18. Maranta in Specul fol. 8. nu 8. a general custome obserued where the Ciuill lawe in that behalfe hath place that the supposed delinquent is interrogated and examined and the witnesses also after production in his presence are againe vpon their oaths repeated in the processe punitiue before the partie may haue a copy of the euidâ—…nces and presumptions that were taken against him vpon the processe informatiue And it is testified that the Iudge should doe euil if he should otherwise obserue it For 1 Inâ—…oc in c. bonz el. 〈◊〉 na 5. de elect Bâ—…us in l. edita in repetit Patau nu 30. C. de edendo in l. ea quidem r. u. 42. c. de Acâ—…sat al. j pluriâ—…ni that which hath receiued interpretation approbation of equitie by continual practise long
Interrogatories be vsed and where they are not written there is no possibilitie of knowing all particularly that shal be demaunded insomuch as one question necessarily riseth vpon the answeres that shall bee made to the former I reade a report of the Canon lawe where in an 1 15. E. 4. 〈◊〉 action of debt brought against the husband and his wife for the wiues debt before the couerture the woman without the husband could not be suffered to wage her lawe And is not this oath of the husbands part though lawfull as farre from that assured perswasion of the very trueth thereof and is there not as great want of the husbands certaine iudgement herein as when an oath is taken to answere articles in themselues finite and certaine though particularly not perused by him afore For nothing to the contrary can be heere I thinke alledged sauing that it may bee the husband himselfe had afore the wager of lawe payde the said debt of his wife There is a 2 2. H. 5. ca. 9. statute saith the Notegatherer which requireth a copie of the Libell put vp in a court Ecclesiasticall to be deliuered to the defendant and thereupon is there a writte framed and put in the Register pro copia libelli deliberanda It is very true which by him is alledged the reason was for that the defendants coulde not then procure prohibitions from temporall courtes without their viewe of the Libell which in that respect was sometime by Iudges Ecclesiasticall denied and the lawe as it seemeth was at that time so taken but if the lawe were not onely so taken but so practised still for my part I should hold it more agreeable to reason and that it would preuent many long delayes and other great inconueniences Neuerthelesse when one thing seemeth cautelously to bee in demaund by the Libell and another thing in trueth not incident to an Ecclesiasticall court is vnder hand shot at then and in such case only vpon apparant probabilities thereof shewed vnto the temporall Iudges it cannot be thought inconuenient for them to graunt a Prohibition yea though the Libell be not viewed afore by them nor cōteine expresly any matter belonging to a temporal court But seeing the statute speaketh but of a Libell it cannot be extended to all articles or Interrogatories whatsoeuer ministred in a Criminall cause especially where there is no likelyhood or colour but that the cause is meerely Ecclesiasticall or where it is handled by vertue of Commission vnder the great Seale of England grounded vpon the statute For if her Maiesties Supreme Royall auctoritie and power Ecclesiasticall granted by cōmission to others be as highly vested in her crowne as is her Temporall then will it bee probably gathered both of them being in their seuerall kindes supreme and the exercise of them cōmitted ouer to others vnder the great seale that the one of them is not to be abridged restrained or controlled by the other In 1 Gen. 21. V. 23. Scripture by the oath that Abimelech ministred to Abraham and which he tooke appeareth that thereby Abraham was to deale well with him or as the Hebrew word is not to deale falsly orlye vnto him nor vnto his children and that he should deale well both with him and the whole Countrey according to the mercie and kindnesse there shewed vnto him which poynts be of greater largenesse and generalitie then that all the particulars falling vnder that oath can possibly before-thought or called to mind at the very taking of it By Iacobs 2 Gen. 25. V. 33. requiring an oath of Esau for confirmation of the sale of his birthright a thing of greater generalitie yea consequence also then Esau could or did then consider may be gathered that an oath may be ministred though euery particular included therein be not specially rehearsed for this oath was approued and stood ratified The like generall league and couenant that was betwixt Abimelech and Abraham was also 3 Gen. 26. v. 29. 31. made sworne betwixt Isaac and the said Abimelech And albeit it be not directly set downe that the king exacted an oath of the Prophet Ieremy yet we 4 Ierem. 38. ver 14. 15. find a promise of the said Prophets then made after the kings charge was laid vpon him of answering truely what he should aske him yea without expressing any particular matters afore-hand what y e king would aske Yet may we not therefore charge the Prophet to haue done this without faith or foolishly vnaduisedly or without Iudgement And it is sure that a godly man ought to haue no lesse regard to performe what he promiseth to deale truely when by his Soueraigne Prince he is in like sort charged then if hee were to answere it vpon his Corporal oath So that we may conclude that it is not vnlawful or vngodly to take an oath that we wil performe some such matter whereof euery particular is not afore-hand or at the very time remembred vnto vs or then can bee called to minde or knowne by vs in distinct and speciall maner CHAP. XVI That after the partie hath answered vpon his oath it is neither vnusuall vnlawfull nor vngodly to seeke to conuince him by witnesses or other triall if he be supposed not to haue deliuered a plaine full trueth and somewhat also in approbation of Canonicall purgations with answere to the Treatisours obiections against them THeir next exception set out afore in this order to be spoken of which this sorte of men doe make vnto the maner of proceeding Ecclesiasticall being of a thing ensuing after the oath and examination is for that Iudges Ecclesiasticall doe not alwayes rest in that which is affirmed or denied vpon the parties oath but doe oft times proceede to a further enquirie by examination of witnesses vpon the poynts denied by the partie A man might iustly maruell what should mooue them thus to require all other men to thinke so well of their single oathes and especially in their owne cause as if they had some indignitie offered vnto them onely because their owne single oathes are not perfitly beleeued but that proofes by witnesses are after made to conuince them of that which is denied by them But for this they bring also some pretence as for the rest of their opinions out of the Scriptures It is said in the Epistle to 1 Heb. 6. v. 16. the Hebrewes that an oath for confirmation is amongst men an ende of all strife Whereupon they gather that whatsoeuer they shall deliuer vpon their oathes it ought to be finall peremptorie to conclude the cause of necessitie without any more adoe The vse of the oath which is in that place spoken of is especially and most properly appliable to two kindes of oathes The first is an oath Promissorie when for more assurance of the promise to bee kept the parties agree that it shall bee taken which thing is argued by the circumstance of the place as being
praestitum iuramentum The like may be saide ofsundrie lawes of nature wherein this kinde of dispensation by interpretation hath place no lesse then in the former and are needelesse to be further here exemplified Touching the second member of the matters of Promissorie oathes viz. whereby an oath is taken for a fuller confirmation of that whereunto we are also bound by positiue lawe it is much more assured that according to the second acception of dispensation such oathe may be interpreted and declared not to binde where indeede it ought not by the true meaning of the Lawe howsoeuer the generalitie or pregnancie of the wordes may strongly perhappes seeme to weigh vnto the contrary Yea and in the first sense a dispensation of relaxation by a Soueraigne Prince or other thereunto aucthorized may be graunted for release of an oathe made in performance of some positiue lawe But this is onely by way of abrogating such Lawe or Statute either altogether or as towardes that person or for some particular action and time and not by way of releasing the very bond of the oathe which is not subiect to mans power For when such Lawe or Statute is disanulled and gone as locall Statutes of Colledges c. may bee euen heere in Englande then the Oathe made vnto them as vnto Lawes or Statutes must needes withall so farre cease and be released When the matter is such as for performance whereof otherwise then by our voluntarie oathe taken we no way stoode bounde whether it bee in Actions Religious or Ciuill the bonde of our Oathe if in verie trueth wee did at first in foro poli stande tyed may not by anie man bee released Neuerthelesse a dispensation of true interpretation hath place in this very especially and such interpretation may bee needefull sometimes in respect of the very matter promised by Oathe to bee perfourmed being indeede no due matter for an oathe As the oathe for single life vowed by such as haue not the speciall gift of Continencie Sometimes it may bee requisite in respect of after-euents as if I sweare and vowe to God to keepe some certaine spare and so straite a diet as through weakenesse and infirmities after happening I can not possiblie obserue without apparent daunger of the losse of my life And sometimes this kinde of dispensation may haue necessarie place whereas some thing doth after fall out or at least is discouered which I neuer forethought or if I had by all probabilitie I woulde neuer haue vowed or vndertaken so much Examples of these you may frame many out of that which hath beene answered to that question whether all promissorie oathes were absolutely to be kept or no Lastly some doubt may be stirred whether a Christian may capitulate or contracte by mutuall oathes giuen and taken with a Pagan or heathen Prince or other priuate person that taketh his oathe by Idoles or by false gods seeing in so swearing hee sinneth greatly in that hee giueth thereby that reuerence vnto them which is onely due to the true and euerliuing God This verie question was asked of Saint 1 Aug. ep 154. ad Publicolam Augustine by Publicola and hee did thus answere him hee that vseth sayeth he the credite of him that sweareth by false gods not vnto euill but vnto good hee doeth not communicate with that sinne of swearing by Diuelles but is partie onelie to those lawfull couenants wherein the other perfourmeth what hee sware Yet if a Christian shoulde any way induce or drawe an other to sweare by them heerein hee shoulde sinne grieuously And least any man weigh this learned fathers iudgement heerein ouer light wee haue also an example heereof in Scripture and vncontrolled for 2 Genes 31. vers 53. Iacob tooke an oathe of Laban swearing by the God of Nachor Nowe we 3 Iosh. 24. vers 2. reade in Scripture that this Nachor was an Idolater and serued strange gods Hitherto of some doubts that may be mooued touching oathes CHAP. III. Diuision of Oaths according to the outward forme of taking them according to the matter and inward forme of them with plaine description of euery kinde of oathe NExt followeth to bee discussed howe manie sortes and seuerall kindes of oathes there bee and howe they differ one from another An Oathe as touching the outwarde forme of taking it is eyther verbally or corporally taken Uerball when by wordes or speeche onelie wee conceiue the forme of the Oathe as God is my witnesse The Lorde liueth c. Corporall when by some outward gesture or acte in taking the Oathe wee testifie that wee accept of it as it is ministred as by laying hande on a booke on our breast or vnder the thigh of him that ministreth it as Abrahams seruant did Againe some oathe is solenne iuramentum and others be not that oath is called 4 L. 3. 5. l. in fine 34. §. qui iusiurandum ff de iurciurando solenne which hath certain solēnities prescribed and endited either by the parties thēselues by the Iudge or by the Lawe with certaine set-conceiued wordes from which he that sweareth may not vary but if hee doe his Oath shall not be accepted All these may be giuen and taken in two seuerall sortes Either simply as thus I speake it before God c. or with some imprecation to our selues or others whome wee holde very deare vnto vs adioyned thereunto as thus So and so 1 1. Reg. ca. 3. do God vnto me and more for thereby wee doe expresly as it were deuote and binde our selues or them vnto the punishment of God if that be not true which wee sweare Of this kinde I finde examples in Scripture that 2 1. Sam. 14. vers 24. Neh. 5. vers 12 13. some were so imposed by Magistrates and 3 1. Sam. 14. vers othersome were voluntarily so taken The examples of them both you may see in their seuerall places according to the directions giuen by quotations in the margent An example of an oathe taken voluntarily by imprecation wee also finde in the 4 4. 1. Sam. 20. vers 13. 2. Sam. 3. vers 9. 35. 2. Samu 19. vers 13. Neh. 10. vers 29. 42. Cor. 1. ver 23 new Testament for Paul saieth I call God to witnesse vnto my soule which is to execrate his owne soule if he had not sworne truely So much of the outward forme of an oath There are besides that two principall diuisions of an oath the one respecting the matter of it according to the circumstance of time the other which considereth the inward forme with other circumstances For the first euery oath is either concerning a thing past or present and this is called Assertorium iuramentum or else touching a thing to come and it is called Iuramentum promissorium For the second diuision an oath may be made either iudicially or extraiudicially And both these in oathes promissorie are either Confirmatoria actus futuri as in iudgement that I