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
to make such a briefe abridgement of so long a writ For it doeth not appeare that before the imprinting it was perused allowed by any the Iudges then being or by any others deputed by publike authoritie for the reuiewing and correcting of it No doubt if it had bin that I speake of nothing else so many grosse errors in the Latin both against cōgruity al sense as in every leafe almost of the copie which the Printer followed are to be found could not haue so escaped without cōtrolement and amendment But the former wordes set downe by Rastall at large in the writ in selfe where neither of these last recited clauses are to be found are too cleare in this point to be dimmed by any such light colours But if hereupon it be perhaps graūted as the authour of the Treatise doth that witnesses may take oath depose willingly in other ecclesiasticall causes at the request of some of the parties I must then call to their minde that I haue shewed afore that following their owne interpretation they may not though they be willing Yea though witnesses might if they were willing how can a reasonable man entend that the partie to be sued will come in at all but much lesse answere if he may not be cōpelled vnto neither viz. neque ad recognitionem faciendā neque praestandū sacramentū as Fitzherbert in his natura breuiū also doeth vnderstand and reade it And the wordes reach vnto all lay persons not distinguishing a partie from a witnesse Againe by that their interpretation of recognition oath they could neuer haue such witnesses that be indifferent as in part is afore touched For if witnesses may not be vrged to sweare or to answere further then they list themselues then will they onely answere to the matters propounded by him who produceth them and wil refuse to answere the Interrogatories propunded by the other partie for his defence by whom they were not requested to come Which course vpon the matter taking away all testimonie that ought to be indifferent for either partie in such pertinent matters as are to be demaunded is contrary to the lawe of God of nature of nations and to the very qualitie of a witnesse Decius saith 1 Decius in l. 2. C. de edendonu 43. Si testis deposuit pro vna parte interrogatus pro alia noluerit respōdere illi fides adhiberi non debet quia praesumitur supprimere veritatem And so the course being most vnreasonable that whereupon it followeth must needes be also very absurde and against Iustice. By all which premised discourse it is made I hope manifest whether Fitzherbert had good ground out of that fourme of Prohibition and Attachement to 2 Nou. nat breu fol. 41. litera a. gather not onely that Ordinaries must expresse a particular cause in all their Citations but also that if they expresse any cause at all in the Citation that it seemeth by that writte it must bee a cause matrimoniall or testamentarie For seeing they haue none other meanes besides Citations to summon men to their Courtes What is this latter collection built but vpon a doubtfull seeming else then an asseueration implied that none other of the causes afore proued to be of ecclesiasticall conisance shall euer be dealt in by any court ecclesiasticall and so vpon the matter in no court at all for that temporall courts be out of iurisdiction in those matters Which howe it may be defended from grosse absurditie I would gladly learne from any that patroniseth this opinion But if the lawe were so in deede that none should be called into ecclesiasticall courts but for those two causes I marueile what the Preshyteries so much doted after especially by sundry fauourers of this interpretation would doe here in this Realme when their Cōsistorial power should be so lopped that they could not call any man before them but either in testamentarie causes which they make in other mens dealings to be meere Ciuil causes or matrimoniall many of which also they now seeme willing to abandō as temporall matters for they should be driuen either to be kings of molehils or else to preache in the most vehement veine they haue against that lawe and those magistrates which in such sort would restraine them as if they were both Antichristian at least for hindering and so impounding of the pretended gouernement of Christ that thereby they might at length be set at libertie to deale in their Consistories against all crimes whatsoeuer according to their owne platfourmes Yet herein they should deale very vnequally because they will not nowe suffer that vnder this gouernment which themselues would practice against crimes in a farre more ample and peremptory maner then either nowe is done or were meete to be suffered In the bookes of the Common lawe I finde also some cases that giue strength to this interpretation For an 1 M. 44. E. 3. fol. 32. Attachement vpon a Prohibition was sued because they sued in a spirituall Court for haye and money which touched neither matrimonie nor testament and after vpon shewing the Libell which prooued that it was for tithes and oblations a consultation was graunted Likewise 2 M. 38. H. 6. fol. 14. a Prohibition was sued foorth of the Chauncery directed to the Iustices of the common Pleas to make an Attachement because the defendant had sued the plaintiffe in the spiritual court for debt which did not touch matter of matrimonie nor testament whereof the conisance belongs to the Kings Court and thereupon a prohibition was granted thence Wherein it is woorth the noting that Fitzherbert in his 1 Fitzh Prohibition nu 5. Abridgement leaueth out these words for debt contrary to the booke it selfe at large and also 2 Brooke Prohibition nu 6. to Brooke I will not say it was to giue colour to his opinion in his Natura breuium as if he ment to haue it sound that no matter at all but either matrimoniall or testamentarie might be sued in court spirituall whereas by these two reports it may appeare that Prohibitions did not lie in this respect for that the parties were sued and called into the ecclesiastical court against their wils in any other cause whatsoeuer then those two but onely for suing there for chattels debt which did touch neither matrimony nor testament Whereof may bee gathered that euer since the first framing of this writ either none in this point hath knowen the lawe vntill Fitzherbert for nō est instandum inproposito or else those words doe carie another meaning then is now fathered vpon thē which that they doeboth in the affirmatiue for ours negatiue against theirs I hope is somewhat plainely prooued And therefore we may conclude that these two last opinions the one for not citing any person in any other cause then these two the other for not citing laie men for not vrging them to take oath in any other cause
custome ought not by any singular person to be chaÌ„ged The reason of this course by them holden is weightie For 2 Clarus lib. 5. § fin q. 49. otherwise by the publication and copies of the Processe Informatiue giuen vp vnto them the supposed delinquents being instructed thereby what Euidence is to be vsed and giuen against them might and by likelihood would for their owne safegard practise with the witnesses and either withdrawe them cleane away or els suborne and corrupt them This Processe informatiue I meane the particular points of the euidence and presumptions yea and sometimes also the witnesses names that can testifie may be vsed in the court of Commission and in ordinarie courts ecclesiasticall are inserted into and conteined in the Articles obiected Nowe assoone as the conuented partie hath answered the Articles in this Realme of course he is if he wil to haue a copy deliuered both of them and of his answers made vnto them before any witnesses be called or vsed albeit indeede great inconueuience of subornation for auoyding punishment might thereby happen and be occasioned So litle cause haue these men to complaine of any rigorous or strict course vsed towards them as by the example of the generall custome of the world abroad might be folowed Neither haue they any cause to complaine hereof as of a thing vnusuall for not hauing other then a generall knowledge of the matters against them before they doe sweare If that 3 c. qualiter quando â—…l 2. de accusat Canon be obiected viz. exponenda sunt ei illa capitula de quibus fuerit inquirenduÌ„ vt facultatem habeat seipsum defendendi I answer that in ecelesiastical courts of this realme this is obserued euen before the oath is tendered after the partie hath answered he hath a copy not only of the heads of the matters obiected but of euery particularalso Howbeit this Canon distinguisheth not at what time these are to be opened vnto him otherwise then when hee is to vse his defence which commonly is after the witnesses be published when as he chalengeth and excepteth against their sayings or persons But if the Ciuill law be also vrged to this point which 1 L. vnius §. cogniturum ff de quastionibus L. 3. §. si ad diem ff de â—…e militari requireth copies indiciorum of the inducements or euidences to be giueÌ„ to defendants I answer that it is but before he is tortured that he may haue opportunitie to answere and to auoyde such presumptions before he susteine so irreuocable a dammage which reason hath no place in that matter which we nowe handle Besides this rule hath many limitations or excepted cases For first it 2 Campeg in addit ad ZanchinuÌ„ de haeretic ca. 9. is otherwise when the partie enquired of or accused was afore that time of euil fame Secondly when a copy of them is not desired by the defendant Thirdly when hee purposeth no defence but onely would labour to prooue the Indicia to be false Fourthly when the proceeding is by Enquirie accordâ—…ng to the fourme of somestatute Fifthly where there may be probable feare that the witnesses shal thereby be hurt or preiudiced Sixtly wheÌ„ the crime is notorious Seuenthly when the proceeding is of meere office Eightly when the defendant varieth faultreth in his answers Lastly wheÌ„ he afore refused to answer to y e Interrogatories By all which we see both y t the said rule is to be vnderstood of deliuering copies after publication of witnesses not before the defendaÌ„ts first examination also y t such disobedieÌ„t persons as refuse to answer y e Interrogatories as they ought though they were not proceeded with of Office yet are by law debarred from hauing copies of any necessitie otherwise then of curtesie And if the oath to be taken were so generall as they pretend whereas it is indeed by way of reference very particular certaine yet they might finde examples for approuing of the equitie of oaths more general then this both in the lawes of the Realme in the word of God wherof al the particularities neither at the taking of it were nor could be iudged of afore the oath taken First at the coÌ„mon law is not the oath of Iurors in the grand Enquest at al Sessions assises to enquire present al within that shire that be culpable of breach of any the lawes statutes which they shall haue in charge afterward to be giuen as large yea and a more generall oath then to sweare to answer halfe a dozen or a dozeÌ„ articles or interrogatories remaining afore in court preferred By statute it is appointed that 1 Statut de Exon. de Inquisit super Coronatores Enquirors against Coroners shall make all the Bailifes sweare that they shal well and faithfully do that which they shall haue in charge by the king and his Counsell and shall conceale nothing of it Iustices of Peace by an old 2 12. Ric. 2. ca. 7. statute of Richard the second are to be sworne duely and without fauour to keepe and put in execution all the statutes and ordinances touching their Office The like oath and somewhat more generall is appointed vnto them by a later 3 27. H. 8. ca. 5. statute to be taken viz. that they shall keepe all statutes made and to be made The oath established to be taken by great Officers of the State and of Iustice vpon another occasion afore alleaged is also of greater generalitie For it is 4 15. Ed. 3. ca. 3. enacted that great Officers about the king and in his courts of Iustice shall from time to time forwarde be sworne when they shal be put in office to keepe and mainteine the priuiledges and franchises of holy Church and the points of the great Charter and the Charter of the Forest and all other statutes without breaking any point The oath appointed by the nowe repealed statute against heresie was very generall and yet that point thought agreeable ynough to equitie for this was not any ground of the repealing of it By it was determined that the 5 2. H. ca. 7. Chancelor Treasourer Iustices of the one Bench and of the other Iustices of Peace Maiors and Bailifes of cities townes al other Officers hauing gouernance of people should make an oath to put their whole power and diligence to destroy all maner of heresies and errors c. and to assist the Ordinaries and their Commissaries and them fauour and mainteine when they shal be required The circumstance of time in that the oath is tendered before the defendant hath particularly perused the Articles or Interrogatories is sufficiently iustified by the like general practise in the Starre-chamber and Chancerie and in examinations criminall made by other Iudges and Magistrates In all which the oath as I am credibly informed is taken before the examinates haue any copy or may peruse the Interrogatories where written
this principle is thereby wholy destroyed when as the detection made by fame by denunciatiō or presentment c. commeth from others and is not a mans owne detection of himselfe therefore it is not so much as a limitation properly but rather a true exposition how that rule ought to be vnderstood By as good reason it might be said that because a man is not at first by any course of Iustice bound to discouer the very facte against himselfe that therefore being called into question and touched by great presumptions and arraigned for it there is no Iustice to vrge him to pleade either not guiltie and so to lye or else guiltie and so to bewraye himselfe For proofe of an abuse of Gods name and Maiestie by purgations he sayeth to offer an oathe vnto persons diffamed concerning their owne corrupt life argueth a lightnes and want of good discretiō in the Magistrate For that he wittingly doeth minister an occasion of periurie I haue spoken of this point by occasion afore and I trust the Readers wil pardon my necessary repetitiōs sometime of one matter in diuers places considering the Treatisour vpon one reason seeketh very often to build many seuerall distinct conclusions First no man ought by any occasion whatsoeuer be drawen to goe against his oath or to periure himselfe a word most properly verified in an oathe Assertorie such as that of purgation is Secondly it is to bee denied that whatsoeuer a man of a bad minde may take for an occasion to forsweare himselfe that in euery such case it is lightnes and vndiscretion in the Magistrate to offer an oathe Which may appeare by decisorie oathes or wagers of lawe in actions reall or personall for landes and goods being such things which be as deepely by most men tendered and affected as their owne good names or honest reputations Thirdly it is too grieuous a charge to bring euery lightnes or vndiscretion of a Magistrate within the compasse of abusing Gods name maiestie though this were admitted to be such lightnes Fourthly no lawe presumeth so vncharitably as though euery one detected or presented of corrupt life were straightway of necessitie and in very deed guiltie of such crime nor yet is it to bee intended that most which be in trueth guiltie will rather forsweare themselues then confesse the trueth considering the penaltie inflicted by courtes Ecclesiasticall are not very grieuous and the chiefe end therein aymed at is but an inducement vnto a testification of the delinquēts repentance Fiftly euery one who vpon a fame is detected or presented cannot be truely said to be thereupō diffamed infamia iuris For a fame may rise yea very probable cause of suspition of a crime may also be giuen where neuerthelesse the fact is not at all committed Lastly it is not euery person suspected of any crime who in discretion of the Magistrate is not to be vrged with an oathe but it is such an one who is probably suspected to be more likely to forsweare himselfe then to confesse a trueth But herein he presseth vs yet further with a piece of old counsell viz. Dedecus magis quà m periculum vites Whosoeuer giues this counsell if hee shoulde meane that the perill of a mans soule were rather to be embraced then any worldly shame it were very vnsounde and wicked counsell For it is better to loose not onely our whole credites in the worlde yea all the world besides rather then our owne soules It is in trueth but an exhortation vnto valor and courage and that a man in a good cause should rather incurre any bodily perill then empaire or distaine his honor and loyaltie to his countrie by cowardise Besides in matters spirituall and belonging to the soule there is a shame which bringeth honor as Ecclesiasticus writeth He inueigheth also against them ex absurdo because if purgations should be vsed he saieth at the Common Lawe vpon Enditements of felonie or other criminall causes periurie would ouerflowe the land I am also of this minde that if for matters of life death a man might be acquited vpon his owne oathe and his Compurgators that many wilfull periuries would be committed But othes of purgation bee not imposed any more at the Ecclesiasticall lawe then they be at the Common lawe in any matters capitall And as purgation is onely a presumptiue kinde of clearing to remoue the offense for safegard of his credit who being infamed can iustly and truely performe it so is it no such finall acquitall but that the partie purged may againe be conuented for the same if any man by lawe allowed will vndertake the proofe not of the same but of the very crime and offense it selfe whereof hee was afore purged As for other criminall causes which endanger not life nor limme diuerse Temporall courtes though not vpon Enditements without such feare of driuing men to periurie do minister vrge the parties othes as hath bin shewed Yet not holding them purged or cleared thereby albeit they deny the crimes but enquiring further and examining witnesses also afterwardes touching the trueth of the offense Besides such othes be ministred in those Temporal courtes vpon no detection of fame or other presumption grounded vpon the othes of any but vpon the priuate vindicatiue minde of him which putteth in the bill and prosecuteth Lastly there bee fewe or none of the crimes called transeuntia and not capitall which be enquirable in any courtes temporal or if any be they are not in their owne nature so secretly and without possibilitie of direct proofe performed as the crime of incontinencie is touching which most purgations fall out in Ecclesiasticall courtes There was therefore small cause of that his question here viz. Why Ecclesiastical courtes offer not to the laitie the like good measure and vpright and sincere Iustice that themselues finde in courtes temporal Besides that by the same question hee indirectly also taxeth all courtes whatsoeuer that impose othe on the partie for want of good measure and of vpright and sincere Iustice. Vpon the former reasons against purgation he groūdeth another question also viz. Why these ordinaries which challenge or assume to themselues the goodly name and title of spiritual men doe not proceede to condemnation by good proofe of lawfull witnesses and againe absolue the partie diffamed where such sufficient proofe failes them I answere first Ordinaries doe not in these dayes eyther challenge or assume to thēselues such goodly name as he solaceth himselfe at but rather the title of persons or Iudges Ecclesiastical In deede that other name in times past was willingly embraced by the Cleargie and as they thought without any iniurie to other callings in respecte of the subiect matter of their profession which is spirituall And by no mans writings or speeches is it more often attributed vnto them euen vntill this day then it is in statutes of the Realme in reportes and vsuall speeches at the Commō law Therefore
me that it was otherwise fully meant to put mine aforesaide rawe discourse of these matters euen as it was vnto print againe to bee made publike Whereupon knowing this resolution and that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 might perhappes be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I condescended to assaye whether I coulde as it were licke ouer my discourse againe into any more tolerable fashion not omitting withall to answere the whole matter of the aforesaid Treatise seeming to me any way pertinent yet not in the same order as it is there set downe but in seuerall places of my booke as it falleth in most aptly after the method into which I had first plotted it Of which whole Treatise I trust I may without offense giue you a generall taste by this Epistle Truely I neither doe knowe nor haue heard who were any of the Authors or who was the Enditer of it If therefore it should happen that I did vse some measure though farre scanted of that libertie of speeche which is vppe-mette pressed downe and running ouer in the Treatisour against many in place I doubt not his betters and of as great woorth and sufficiencie as himselfe euery way I hope that I shall not iustly be noted to be caried with sharpnesse of humour against any particular person but to haue beene prouoked vnto a moderate necessary and generall defence Albeit I purpose rather to waye what is fitte for vs to speake then for him to heare Vnto the whole matter of the Treatise these three seuerall pointes might haue sufficed for a generall answere The first is that the state of the controuersie or issue is by him mistaken the second concerneth his arguments for he assumeth that as graunted which is not which in the schooles is called a fallacie petitionis principij the last and third is his sophisticall answering euen to such obiections as him selfe frameth For the first therefore yee are to vnderstand that in the Treatise it selfe this seemeth to be the generall issue by him tendered against which he would argue viz. the forcing of oathes by Ordinaries and Iudges Ecclesiasticall generally to answere to all such questions or interrogatories as they shall demaund or minister touching either the thoughts words or deedes of him that is to depose Vnto which in the title is also added another challenge for that they are ministred of office by the Iudges So that he conceiueth erroniously all proceeding of office to be onely in causes Criminall and in this respect alone worthie to bee chalenged because it is done by the Iudge without prosecution of a partie Nowe if hee doe reason as hee pretendeth against some matter practiced by Iudges and lawes Ecclesiasticall in this Realme then by charging them with exacting of oathes for men generally to answere vnto all their thoughtes wordes and deedes that they shall be enquired of that I speake but mildely it is a very vntrue and slanderous imputation both to the men and to the Lawe it selfe If it were mistaken by him through ignorance yet was it ouer great rashnesse thus to speake euill of such as be in 1 Iudae ep V. 8. 9. authoritie especially for matters hee perfectly knoweth not But if it were wilfully done then must I needs say that he peruerted and wrested the matter in controuersie of set purpose to make the men and whole calling odious and thereby to giue the better tang in some mens tastes vnto those Cart-loads of contumelies and spitefull 2 The Latines call this calumniam the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 reproches wherewith throughout the whole Treatise it pleaseth him to charge both them and their proceedings as in part shall by and by appeare For the seconde point of the three hee first defineth an oathe then hee sayeth it is a part of Gods worship hee telleth the ende and institution of oathes by Gods Lawe and that they are either priuate or publicke hee sheweth the necessitie of it in some priuate suites and what things are to be obserued by him that taketh it and what by the Magistrate that giueth it likewise hee setteth downe yet but in part certaine cases how an oathe is vsed in some Temporall Courts and how it ought to be vsed as he saith by the Canon Law All which I will not greatly now trauerse with him But hereupon hee inferreth that the oathes ex Officio vsed in Ecclesiastical Courts are against Gods Lawe Common Lawe and the Canon Lawe it selfe So that if he minde to reason out of those premisses it must needes be gathered for him to this effect viz. In the Law of God in the Common and Canon Lawes we finde oathes thus and thus prescribed and vsed But the oathes ministred in Courtes Ecclesiasticall touching matters Criminal are cōtrary to this prescription and vse Ergo. They are contrary to those three Lawes I will omit that this reason concludeth not necessarily being ex meris particularibus because it might bee that though sundry othes by those three Lawes were in deede of such forme neuerthelesse other there may be also farre different and yet both sorts allowable But for answere I say that the Assumption or second proposition which must be vnderstoode is by the Treatiser not once mentioned much lesse vndertaken to be proued but is taken vp by him as graunted which in trueth is flatly by vs denied For it shall bee prooued God willing that there is no such contrarietie as is by him surmised no nor great diuersitie betwixt the othes there ministred and those which Scripture mentioneth or Common Lawe practiseth Now touching the last point of the three Hee maketh it as a sufficient answere vnto obiections that may be made for assertion of such othes as hee impugneth if hee can but note any difference betwixt the things resembled together though such diuersitie bee not in the point for which the comparison is made no nor in any other point that is materiall As for example If a man affirme that Christes second comming may bee compared to the comming of a thiefe in the night meaning for the secresie thereof and want of expectation should hee well confute this comparison that woulde thus say No Sir that is vntrue for there is a great diuersitie betwixt their commings because Christ commeth to deale iustly but a thiefe to doe vniustly But to come neerer home If I did argue thus viz. The receiued vse of the Starre-Chamber to deny men counsell when they answere to Interrogatories is not against the Rules of Iustice therefore no cause is there why the like approoued vse in the Chauncerie should be counted against Iustice I pray ye should he reason soundly against it that would answere it in this sort Oh Sir there is a great diuersitie betwixt those two Courtes for the one proceedeth Criminallie to inflict penalties for the Queene the other but Ciuillie for priuate amendes in equitie vnto the partie Or if hee shoulde answere thus The Lordes of the Counsell bee Iudges in the one
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
statutes and reports some whereof were made not long after and so from time to time downeward till these late challenges doe make it very manifest It is prouided by Statute that 2 24. Edw. 1. stat de consultatione the Chancellor or chiefe Iusticer of the King vpon sight of the libell whereupon any prohibition is brought if the case cannot be redressed by any Writte out of the Chancerie but that the Spirituall Court ought to determine the matter shall write to the Iudges where the cause was first mooued to proceede the prohibition directed notwithstanding So that wherein soeuer by custome and liberties of Holy Church Iudges Ecclesiasticall were wont to proceede if no Writ lie thereupon in Chancerie they may still holde plea and take conusance Also in the conclusion of the Statute of Articuli 1 Artic. Cleri 9. Ed. 2. ca. 16. Cleri where sundry matters besides Testamentarie and Matrimoniall are mentioned it is thus enacted that the Prelates Clergie and their successours shall vse execute and practise for euermore the Iurisdiction of the Church in the premisses after the tenor of the answeres aforesaid without quarell inquieting or vexation of our heires or any of our Officers whatsoeuer they be Likewise it is by Parliament 2 15. Ed. 3. ca. 6. accorded that the Ministers of holy Church for money taken for redemption of corporall penance nor for proofe and account of Testaments or for trauaile taken about the same nor for solemnitie of marriage nor for other things touching the Iurisdiction of the Church shall not be empeached nor arrested nor driuen to make answere before the Kings Iustices nor other Ministers and thereupon shall haue Writs in the Chancerie when they will demaund Where we finde that other things besides Commutations matters Testamentarie and Matrimoniall doe belong to the Iurisdiction of the Church And to like effect after in the same Kings dayes 3 18. Edw. 3. pro Clero c 6. Commissions to enquire of Iudges of Holy Church whether they made iust Proces or excessiue in causes Testamentarie and others which notoriously pertaine to the conisance of Holy Church were from thencefoorth forbidden Therefore these Statutes being still in force if Iudges Ecclesiasticall shall be found but to deale as they ought in matters appertaining meerely to Iurisdiction Ecclesiasticall how the vexations impeachments driuings to answere and strange enquiries against them vsed in some places may be iustified by Lawe is worthie the consideration of those that are or shall be procurers therein In a statute of King 4 1. Ric. 2. ca 13. Richard the second mention is made that the pursuites for Tithes and for some other causes of right ought and of olde times were wont to pertaine to the Spirituall Court. In a Statute of King Henrie the eight it is 5 24. H. 8. c. 12. in the praeamb testified that both the authorities and Iurisdictions Spirituall and Temporall doe conioyne together in the due administration of Iustice the one to helpe the other And that the Lawes Temporall are for triall of propertie of landes and goods and for the conseruation of the people of this Realme in vnitie and peace without rauin and spoyle And in the bodie of the Statute are particularly named and reckoned for Ecclesiasticall besides causes Testamentarie and Matrimoniall these viz. diuorces right of tythes oblations and obuentions of which it is affirmed that the knowledge of these causes by the goodnesse of Princes of this Realme and by the Lawes and customes of the same appertaineth to the Spirituall Iurisdiction of this Realme And because by that Statute remedie was onely prouided that appellations in those aforesaide cases should not be prosecuted out of the Realme there being also many other causes of Iurisdiction Ecclesiasticall wherein a like remedie was conuenient to be had therefore the next yeere after it was enacted that 1 25. H. 8. c. 19. all maner of appeales of what nature or condition soeuer they bee or what cause or matter soeuer they concerne shall bee made and had by the parties grieued c. after such maner as is limitted for causes of appeales in matters Testamentarie Matrimoniall tythes c. in the said former statute mentioned In a Statute of King 2 1. Ed. 6. c. 2. Edward the 6. besides matters of voluntarie Iurisdiction Ecclesiasticall as collations presentations Institutions inductions letters of orders and dimissories are reckoned in generall as Ecclesiasticall all suites and causes of instance betwixt partie and partie and all causes of correction And in particular all causes of bastardie or bigamie and enquirie De Iure patronatus besides matters of Testament of administration or of accounts vpon them And 3 5. Eliz. c. 23. in one Statute in her Maiesties reigne are reckoned in particular as the more grieuous sort of matters of correction in Ecclesiasticall Courtes heresie refusing to haue a childe baptized or to receiue the holy Communion or to come to diuine seruice errour in matters of religion or doctrine now receiued incontinencie vsurie Simonie periurie in the ecclesiasticall Court and Idolatrie And therefore Iudges Ecclesiasticall may lawfully cite men in certaine other causes besides Testamentarie or Matrimoniall and ought not eonomine tantùm to be vexed vnquieted impeached driuen to answere or arrested CHAP. V. That suites for title of Benefices vpon Voidance or Spoliation likewise that suites for tythes Oblations Mortuaries c. for Pensions Procurations c. are of Ecclesiasticall Iurisdiction is prooued by statutes MAtter 's and suites for the title of Benefices ecclesiastical so they touch not the trial of the patronage do belong also to the knowledge and iurisdiction of a court ecclesiastical by the lawes of the Realme For conisance of voidāce of benefices 1 25. Ed. 3. pro Clero ca. 8. and the discussing thereof de iure doe belong to Iudges of holy Church and not to the Lay Iudge The Common 2 Treatise of constitu Prou. Legatine ca. 9. printed by Tho. Godfrey tempore H. 8 lawe doth mention fiue causes of auoidance of a benefice viz. death resignation depriuation creation and cession But whether it may be deemed void in law vpō any of the last foure meanes of auoidance is by the law ecclesiasticall determinable And by the bookes of the Common lawe 3 M. 22. Edw. 4. fol. 24. whether the Church be full or not full or the Clerke able or not able is triable in an ecclesiasticall Court Townesend For if an 4 Regist. in br orig pag. 55. b. inferiour Ordinary shal differ or refuse to admit or institute a Clerke presented and the Clerke bring his double Querele being of the nature in some sort of an appellatiō from the Archbishops court and the aduerse parte doe bring a prohibition the said Clerke may haue hereupō his consultation so that the court eccles by colour hereof deale not with the right of patronage of the benefice Likewise for spoliation of a
Ecclesiasticall and for rounder proceeding and for more grieuous punishment at least in these dissolute times more feared then can or may by Ordinarie Iurisdiction be inflicted Therefore if by the general words of that Acte 1. Elizabeth both these proceedings whereof wee here speake and many other particularities of maner persons times places and other circumstances might not be warranted then the authoritie there giuen to her Maiestie were of none vse at all neither could it possibly be practised But I thinke this power here by these opinions impugned may be also prooued directly out of the words of the very Acte thus whatsoeuer by any Spirituall or Ecclesiasticall power or authoritie hath heretofore bene or may lawfully bee exercised or vsed for visitation c. or reformation c. of all maner errours c. and enormities whatsoeuer that is vnited to the Crowne and by that Acte may be committed ouer by her Maiestie But Attaching imprisoning and such like corporall coërtion by some Spirituall or Ecclesiasticall power or authoritie hath heretofore lawfuly bene exercised And therefore may be appointed by her Maiestie to be now exercised by the Commissioners Ecclesiasticall For proofe of the Minor I am to put you in minde what corporall punishments and chastisements the superiours of euery Regular person as of Monke Frier and Nunne might and did lawfully from time to time lay vpon them that were vnder their Ecclesiasticall obedience and yet euen after their professing they remained still the Kings subiects Likewise when the statutes against Heresies were in force these Attachings imprisonings and other corporall chastisements were then lawfully exercised and vsed by Ecclesiasticall power and authoritie Lastly 1 1. H. 7. ca. 4. Bishops and Ordinaries may lawfully at this day punish and chastise Priestes Clearkes and religious men within their Iurisdiction being conuicted of incontinencie by committing them to warde and prison there to abide for such time as shall be thought to their discretions cōuenient for the qualitie and quantitie of their trespasse So that we may conclude that if any such power haue bene vsed then her Maiestie may as it please her vse it still and appoint the same to be vsed by her Highnesse Commissioners howe and vpon whom she thinketh good The Treatisour himselfe testifieth that diuers euen of the learned sort do hold and affirme and that very confidently that the Acte and Commission thereupon doe giue full power and authoritie for any course soeuer for the gouernment in causes Ecclesiasticall that shall be mentioned in the letters Patents This he exemplifieth by sundry examples though holden by such learned men which neuerthelesse he accounteth contrary to Lawe whereof some fall in most fitte for this place because they are bent against the saide Commission and others for other places of this Apologie First he thinketh it very absurde and not warrantable that the Commissioners Ecclesiasticall shoulde commaunde Iustices of Peace to assist any for attaching and imprisoning of offenders till they giue bonde for appearance And saith this is against Lawe and Iustice. The onely reason he rendreth of this his assertion is for that Iustices of Peace bee Magistrates and Commissioners of Recorde authorised as well as the other Belike himselfe is some Iustice of peace Hoc vrit hominem qui imperare non parêre didicit And will he then vpon his learning deliuer That no Magistrate or Commissioner of Recorde may be commaunded by another though no lesse be warranted by his Commission Hereupon would follow that Iustices of Peace and Sherifs might not be commanded in any case by the Iudges of either Benche by the Exchequer by the Iustices of Assisse by the L. Treasourer by the L Chauncellour or L. Keeper nor yet by the whole Counsell boord He thinketh it also not iustifiable that any Magistrates should be commanded by the Ecclesiasticall Commissioners to assist in Attaching or to attache any vpon a warrant called Quorum nomina For reason of vnlawfulnesse hereof he alledgeth that no cause or matter is therein expressed or declared But this might be de facto omitted in any other warrant as well as in that and yet is it vntrue that in this kinde of warrant no cause is declared But admit it were otherwise what Lawe of the Realme is against it And if the like warrant shall come from the Lords of the Counsell to him or any other Iustice of the Peace to be ayding and assisting vnto some Messenger in attaching of certaine persons to be caried vp vnto them as Prisoners whom the saide Messenger shall name vnto them will hee refuse to intermeddle in the seruice as surmising the Lords to do therein against Lawe because they commaunde him being a Iustice of Recorde and for that they signifie not by their Warrant what the particular cause is where with they minde to charge such persons that are to be Attached But if in so doing their Lordships doe nothing contrary to Lawe howsoeuer he doe foolishly and vndutifully to refuse to giue his assistance why shall the Lawe anymore be against the Commissioners doing but the like and that by expresse Warrant of her Maiesties letters Patents Another reason why such Warrant should not be iustifiable he doth alledge because the names of such persons to be Attached be not set downe by the Commissioners but are referred ouer vnto others to set them downe Mine answere hereunto is First that the Warrant of Quorum nomina is very rarely vsed by the Commission and the rarer the better Secondly when it is vsed the names of the parties are set downe and allowed afore by the Commissioners and not by others for anything that I can learne Neuerthelesse there may be good and weightie occasions to omit this course as when such Warrant is directed to a man of qualitie and good credite that he may put in the names for this ende lest when one is serued he bewray all to the rest whose names be also in the same Warrant that they may conuey themselues out of the way Howsoeuer it be in this behalfe I thinke the Treatisour will be long in finding out how this should be reckoned to be contrary to the Lawes of this Realme Hitherto touching the challenges made to some particular points in the maner of exercising that Commissun But the Note-gatherer to cut off all these particular disputes alleadgeth that it may be thought the whole Commission is voyde in Lawe For that as he surmiseth it beareth date in Iuly but was signed in Nouember next after 1 18. H. 6. cap. primo contrary to a Statute What was this quarrell which is now picked against it worth the practise of abusing a Counsellours name to procure a copie thereof Well both the Preamble and body of the statute also doth cleare this cauill For by the Preamble it appeareth that the mischiefe to be remedied was for that by grauntes antedated long before the King graunted them other grauntees who in very trueth had the first
likewise that none shall bring them into the Realme or being perhaps brought in by another shall receiue them or being neither brought in by them nor yet receiued froÌ„ others but comming some way to their knowledge shall not make any notification or any other execution of them where neither within the realme nor without c. vpon paines there at large conteined Of those generall heads whereunto I said afore that all questions of Praemunire might be referred there be some that being expressed in these statutes are I thinke without all doubt to be within the compasse thereof as by the first of these two to draw any of the Queenes liegeance out of the realme in a plea whereof the conisance pertaineth or iudgements be giuen in the kings Court And that which is sayd of a Plea in the kings court is also drawen by some opinion vnto a court Ecclesiasticall for 1 9. Ed. 4. fol. 3. Yeluerton in the Kings bench held opinion oftentimes that if a Clerke doe sue another in the Court of Rome for a spiritnall matter whereof he may haue remedie within the realme that he is in case of Praemunire quia trahit in placitum extra regnum And 2 Fitzh Noua nat br fol. 44. lit H. Fitzh holdeth that for collation of a Prebend sued out of the realme a prohibition doeth lie Secondlie it is an vndoubted Praemunire by that statute to sue in another court to defeate or impeach the iudgements giuen in the kings court In these wordes of another court there seemeth to be an opposition and seuerance of such a court from the Kings court the rather because both the Preamble and the body of the statute do mention drawing men out of the realme in Plea Whereof at that time there was no colour for any man to be drawen any whither but onely to the court of the bishop of Rome whether he resided there at Auignon in France where the Popes about that time did lie 70. yeeres together at Bononie or elsewheresoeuer Therefore for the true vnderstanding of those words enquire If any of this realme of late yeeres whiles the parliament of Paris was established by the authoritie of the French king vpoÌ„ colour that the Queenes maiâ—…stie is in very right Queene of France should haue brought processe thence against another subiect to appeare there whether this had not been a Praemunire by that statute likewise If any of the Q. Courts not authorised therunto by law vpon writ of errour should defeate a iudgement giuen in any other of the Queenes courts enquire whether this be within the meaning of those words notwithstanding the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and distinction whereby such another court seemeth to be seuered and made a distinct thing from all the Queenes court Thirdly it is an vndoubted Praemunire according to the later of the foresaid two statutes to purchase or pursue or to procure so to be done in the court of Rome or else-where any such translations c. or any other things which touch the King be against him his Crowne and Regaltie or his Realme as is there aforesaid or c. as is there further conteined Fitzherbert reporteth 1 Fitzh tit Praemunire nu 5. that the opinion of the court was Paschae II. H. 7. that Alibi in the said statute was vnderstood of Bishops courts so that if a man sue there for a thing that belongeth to the Common law he shall be in the Praemunire Therefore 2 Brooke titulo Praemu nu 21. was it holden by some that a benefice Donatiue by the Patron is a meere lay thing and the Bishop shall not visit it and therefore shall not depriue from it and if he meddle in this case it is a Praemunire and sayth that Barlow bishop of Bathe for depriuing the Deane that had it as a Donatiue by the Kings Letters patents was driuen to sue a pardon Fineux chiefe 3 15. H. 7. fol. 9. Iustice saith a spirituall man may execute temporall iurisdiction as the Bishop of Durham doth in his countie Palantine viz. as he hath iura regalia but not as a Bishop and saith he the Bishop shall punish his Clerks by Praemunire for suing in Spirituall courts for a cause temporall But whether that Bishop hath this authoritie seeing Praemunire is brought in by statute there is a Quaere inde made as of a matter doubtfull It is holden that a Prohibition doth 4 24. H. 8. titulo Praemu num 16. often lie where a Praemunire doth not as of tithes of great trees c. for the nature of the action doth belong to the Spirituall court albeit not that very cause in that forme but when it is of a lay matter or of a thing that neuer did belong vnto the Court spirituall herein as is said there lieth a Praemunire But these notwithstanding sundry doubts are made in this behalfe because at this day all iurisdiction Ecclesiasticall is now truely acknowledged and is in deed as it was alwayes in law in the Souereigne prince and from her prerogatiue royall deriued downe to others no lesse then the Admirall court is or the court of the Constable of England in times past was when it was vsed albeit they vsed their peculiar seales and names to the processes there sped And I haue heard very credibly that some reuerend and great learned Iudges whiles they liued were of opinion that for an Ecclesiasticall Iudge to deale in a matter apperteining in very truth to a Temporall court yet for some neerenesse and cohereÌ„ce by him probably supposed to be an ecclesiasticall cause could not at this day be a Praemunire but subiect onely to a Prohibition and punishable as a contempt as it was at the Common law vpon an attachment after Prohibition Which opinion if it be sound then the Treatiser is farre wide from the truth where he saith that for men to deale in any cause not belonging to their iurisdiction is Praemunire This were very hard and rigorous if euerie mistaking or going beyond their commission by Iustices of Peace by any Iudges ecclesiasticall or temporall should be no lesse then Praemunire I haue heard it deliuered by great Lawyers that so to do doth but make the Actvoid as being coram non Iudice and inferreth no such grieuous penaltie For it is alleged that Alibi in the statute was put in to enclude processes deriued from the Popes authoritie albeit he kept his abode any where els then at Rome In which respect it is affirmed in a 1 25. H. 8. ca. 21. statute that the said statute of Prouision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the kings crowne and dignitie royall And it seemeth to some that Alibi can not now signifie Bishops and their Courts which are called the Queenes Ecclesiasticall courts and Iudges and the Canons by law established the Queenes Ecclesiasticall lawes Insomuch as the power giuen by statute to her
the apprehension of the parties their examinations personall and the taking of informations from others against them is founded but also as often falleth out other penalties and disgraces be inflicted as binding to the Peace or to their good behauiour making them to answere enditements of Barattarie or such like imprisonment of them by a good space sometimes till the next Sessions or generall Assises and sometime extending discretion euen to condemne men to be whipped publickely vpon the single Denunciation of a woman being infamous and partie in the pretended Crime one who is as easie to be suborned to speake and charge a man falsely as to deale lewdly and whose testimonie though it were not singular is of no weight and credite Much lesse therefore being but one ought she to be taken for sufficient to condemne any flat contrary to Gods owne Morall Lawe I haue also knowen Articles put vp against a good Minister and Preacher to haue bene reiected in respect of their insufficiencie by the Commission ecclesiasticall Yet the same Articles being preferred euen by his aduersarie but assisted with some of countenance in the Countrey haue afterwards serued to haue an Enditement found against him to be a Common Barattour yea by those and before those who perhaps might all of them be apposed to tell directly what Barattaria truely signifieth and importeth and whence it is deriued Likewise doe we not see that vpon the like grounds to some of these a man may be touched with great disgrace and discredite and that not vniustly As when some great and potent man in a Countrey against whom fewe or none there abouts dare openly deale is put out of all Commissions and publicke charge in his Countrey vpon priuate yet credible information giuen to some of the great officers of the Kingdome touching his oppression or other ill demeanour of himselfe Doe not the like grounds of Suspicion of priuate Complaint and Information exhibited vnto them iustly and sufficiently often times mooue and warrant the Lords of the Counsell to call some great malefactours into question and to deteine them till they be acquited or condemned by due triall Besides this vsuall practise doe not the very Lawes of the land allow of these and like inducements to take informations and to enquire into matters Criminall 1 10. H. 7. fol. 17. For in an Action of false imprisonment it is a good plea for the defendant to shewe the felonie and to pleade that he tooke the plaintife for suspicion of such felonie per Frowick And why then may not three or moe of the Queenes Commissioners ecclesiasticall be in reason as deepely trusted vpon their suspicions though in trueth they vse it not in this sort as some one single Iustice of Peace may be vpon his owne onely suspicion And is it not 〈◊〉 â—…ikely that they will haue as good ground of their suspicion as he hath of his and as much care of Iustice and of their owne credite In an old 1 3. Ed. x. ca. 12. statute we finde that Notoriousnes of a facte an euill name of a man yea and light suspicion also of Felonie may any of them serue to imprison a man Albeit in the two first cases such a person is by that statute appointed to endure hard and strong imprisonment yet aske whether in the originall Rolles this statute doe speake of imprisoning or else of strong and hard poenance which such be appointed to suffer that refuse to be iustified by the Common lawe of the land And as these and like inducements doe serue to ground the processe informatiue so doe they no lesse euen in Processe punitiue when the enquirie and examination is to punish the offender For if any the Iudges at Westminster or of Assises haue iust occasion of suspicion ministred of a misdemeanour to be committed by some belonging to that Court touching matters of their Courts and present iurisdiction may they not and is it not vsuall with them euen hereupon onely without any enditement or other prosecution of partie to call such supposed offender vnto examination before them to the effect of punishing him according as the qualitie of the facte shall fall out to require In the time of King Henry the seuenth it was prouided by 2 19. H. 7. ca. 14. Parliament for suppressing of Retainours That two Iustices whereof one to be of the Quorum might call all such persons as they shall thinke to be suspected of any Retaynour and them to examine of all such Retaynours by their discretion and their certificate into the K. Benche against all of them so examined and by that examination found in default to be against them as a conuiction and their certificate of any persons by that examination accused to be Retainours to be of like effect and strength against them as an Enditement By the same it was also 3 Ibidem enacted that such Iustices as afore or the Lord Chaunceller or Lord Keeper or three of the Kings Counsell attending him shoulde haue full power and auctoritte without any sute or information made or put before them or any of them to sende for by Writte Sub poena Priuie seale Warrant or otherwise by their discretion for any person so offending and the same person to examine by othe or otherwise by their discretion and to adiudge such as should bee founde guiltie by verdict confession examination proues or otherwise in the forfeitures and paines as though they were condemned after the course of the Common lawe c. So that it was thought then by the whole state of the Realme none vniust course no not in a Temporall Court for Magistrates to call some offenders into question criminall whom they did but thinke to be suspected and to condemne them without either Enditement Appeale suite or Information made By a Statute made in her Maiesties time it is enacted 1 1. Eliz. ca. 1. That if any man be in prison for supposed speaking in behalfe of forreigne Supremacie and happen not to be endited within one halfe yeere of the offence committed that then he shall be set at libertie Whereby appeareth that a man may happen to be brought into Question criminall and to be in prison also which is an Attachment and some punishment without any Enditement or Appeale precedent The statute for 2 1. Eliz. ca. 2. Uniformitie in Common prayer mentioneth three meanes of Conuiction by the course of the Temporall lawe viz. Verdict of twelue men the parties confession and the notorious euidence of the facte If then the Notorious euidence of the fact without Appeale or Enditement Verdict or Confession may at that Lawe serue for a Conuiction may it not with as good iustice and equitie serue for the same purpose at the Ecclesiastical lawe without either Accusation or Presentment If here it be said by any that though such practise of Temporall Iudges be lawfull and the Lawes and Statutes be iust in this behalfe yet perhaps the
Common Lawe will not giue so large a scope vnto Iudges ecclesiasticall against such doubters I will obiect those wordes of 3 Magna Charta cap. 1. Magna Charta where it is not a newe graunted but Confirmed onely That for euermore the Church of England shal be free and shall haue all her whole rights and liberties inuiolable And this is a confirmation of their rights and liberties before any graunt was made to the rest of the Realme besides being yeelded at such time when as through generall ignorance it was vntruly holden that the state Ecclesiasticall signified there by those wordes The Church of England had not their Iurisdictions from the Prince but from God alone deriued downe to them by the meanes of the Pope and therefore that their Courtes and Lawes whereby they proceeded were not in any respect to be accounted for Courts holden by the Kings auctoritie or their Lawes the Kings Lawes Whereupon arose that vntrue and preiudiciall phrase of seuerance of a Court Christian from the Kings Court So that if they were confirmed to them when their Iurisdictions in facte were not holden of the King as now they be and ought to be by Gods Lawe is there not then more iust cause so to continue them at this time seeing they be not so much as a diuerse course from the Customes and Lawes of the Realme in Courts Temporall But that this course of proceeding in causes Criminall sometimes without either Accusation or Presentment is in trueth a right and libertie of the Church of England may appeare by that which to this point hath bene afore deliuered and by the continuall practise also of those Courts in all ages as the Acts thereof from time to time doe make very manifest Yet this is more particularly and neerely prooued in the very point that we handle by a 1 1. Eliz. ca. 2. statute made in her Maiesties reigne where it is prouided that Ordinaries not only at any other time and place then at their visitations and Synods may take accusations and informations a word of farre more large signification then Presentment but may also enquire else-where within their iurisdiction Which Enquirie is afore shewed to be alwayes ex Officio and being absolutely spoken without further addition and in some sort seuered from all ki◅de of Informations must necessarily be without Presentment But how farre and in what maner may they so doe Truely in like fourme as heretofore hath bene vsed in like cases by the Queenes ecclesiastical Lawes If then to proceed Criminally without either of them two be warranted practised by the Queenes ecclesiasticall Lawes as afore is shewed assuredly this Statute doth auouche and iustifie them To this disputation may be referred that obiection which the Notegatherer maketh touching a 2 11. H. 7. ca. 3. statute of K. Henry the seuenth Note gatherer whereupon he saith Empson and Dudley proceeded that was 3 1. H. 8. ca. 6. repealed by another in the time of K. Henry the eight although he putteth it vnder his title of the lawes of England as by them seeking to impugne al proceeding ex officio albeit vnder presentment which this opinion alloweth proceeding ex Officio is necessarily implied and presupposed For answere whereof it is true that the saide statute was so repealed but whether it were the same and the onely statute whereupon Empson and Dudley proceeded is left there vncertaine and vntouched Howsoeuer it was in this behalfe seeing it authorised all Iustices of Assise and of the Peace to proceede thereby it is most probable that many besides them two did also deale by vertue thereof The effect of the saide statute was that vpon information to be made for the King afore Iustices vpō any penal statute not extending to life or member they might without enditement heare and determine all offences against the forme of any statute in force The reason of making the said statute is signified by the preamble to haue bin for that although at Sessions charge was giuen to enquire of many offences against statutes and Enquests to that effect were straightly sworne and charged to enquire and to preferre the trueth yet they were letted to be found by imbracerie maintenance corruption and fauour by occasion whereof the statutes coulde not be put in due execution And againe in the same place The twelue men for the causes afore rehearsed will not finde nor present the trueth Howesoeuer this were at that time it may bee feared that it is in some place too true still euen vntill this day So that if this were then a sufficient cause to make such a statute the cause still continuing if not encreasing that statute will seeme to haue beene in that regarde lesse vnreasonable In the statute of Repeale thereof for the reason of abrogating 1. Hen. 8. c. 6. it is onely assigned That thereby many sinister craftie feigned and forged informations haue beene pursued to the great damage and wrongfull vexation of the subiectes But this might aswell happen euen when men be prosecuted by way of enditement For is it not vsuall to finde them vpon any one mans euidence and information the Iurie not regarding oftentimes what enimitie rests betwixt them Therefore it was not the course by information that displeased but the badnes of the informations that gaue occasion of repeale For by statute euen in K. Hen. 8. 31. Hen. 8. c. 14. his dayes an Information was made equiualent vnto a presentment by verdict of twelue in matter of heresie that is far more penal then the former Which cruell statute I would not haue alledged but that the Note-gatherer groundeth himselfe thereupon for another purpose And we see that there is no such cause alledged as the Note-gatherer insinuateth either as if it were an vniust vnreasonable course or in respect that it was ex officio at the instigation and solicitation of some one person or yet that it was without Appeale or Enditement For if it had bin simply vniust then all the treasure which had bin leuied by colour thereof should haue bin restored And it is euident that Bils and Informations against offenders are still in frequent vse and may be preferred for the Queene by any and against any whomseuer And those which be found offenders may without either Appeale or Enditement be condemned and punished thereupon in sundry geat penalties and losses both pecuniarie corporall and of their good name and credite And for further proofe that it is at this day holden none vniustice by the tempor all lawes for to ground an enquirie yea and also a Conuiction without either Appeale or enditement is plainely prooued by a latter statute which is yet in force For Iustices of 5. 6. Edw. 6. cap. 25. Peace at their Sessions haue authoritie to enquire of the offences of them which be admitted to keepe Ale-houses not onely by Presentment but by Information or otherwise by their discretion c.
by the King and his Counsell and that they shall conceale nothing of it Their charge is not onely of misdemeanors of Coroners but also of concealements of murders and felonies and letting such escape c. done happely in default of a whole towneship in generall and perhaps in default of the very Bailifes particularly who be sworne and therefore criminall or penall to them yet by vertue of their oathes not to be concealed 6 9. Ed. 3 stat de â—…oneta ca 9. Maiors and Bailifes in euery port where merchants and ships be shall take an oath of merchants and masters of shippes going and returning that they shall not doe any fraude against that ordinance touching money in any point By which oath it seemeth they not onely are to promise not to doe it for they are to take it at their going but also that they haue not done it being abroad because they must take that oath also at their returning And this being concerning fraude not to haue bene committed toucheth matter of discouering a mans owne turpitude offence besides the penaltie due to the offender If a bill or information bee put vp in any court of Recorde against a man vpon the statute of 1 8. Ed. 4. ca. 2. Liueries and Reteiners being very criminall and penall to the offendors after the Informer hath taken oathe that his complaint is rightfull where by the way wee may see some vse in these courtes of that iuramentum calumniae which is required by the Ciuill lawes if it be demaunded by either of the parties the defendant shall bee brought in and put to answere to such bill or billes by such information And the same Iudges and euery of them in euery of the sayde Courts shall haue power in their seuerall Iurisdictions to examine all persons defendants and euery of them vppon such information and to iudge him or them conuict or attainted aswell by such examination as by triall as the case requireth after the discretion of the Iudges Vpon 2 11. H. 7. ca. 25. complaint by any touching periurie and certified by a Iustice of Peace vnto the lorde Chancelour it was enacted in the time of King Henry the seuenth that the partie complained of might bee compelled to come afore the Chancelour and Treasourer of England the chiefe Iustice of either Bench and Clerke of the Rolles for the time being and they had full power and authoritie by their discretion to examine him of all things in the bill of complaint and by their discretion to punish such as by examination should bee found offendours aswell in periurie as in other offences viz. in maintenance imbracerie or corruption in any Officer c. In the sayde Kings dayes a statute was afterwarde made against Reteiners whereby 3 19. H. 7. 〈◊〉 14. Iustices at their Sessions of Peace were authorized to examine all such by their discretion as they should thinke to bee suspected of any Reteinour and their Certificate into the Kings Bench against any examined and found faultie was against such as a conuiction and against others as an Inditement The same 4 Ibidem statute also giueth authoritie to diuers great persons to examine defendants informed against for certaine offenses and breach of Statutes as well by oath as otherwise by their discretion and to adiudge c. Likewise authoritie is giuen by 1 3. H 7. ca. 1. 21. H. 8. ca. 10. 5. Eliz. ca. 9. two seueral statutes vnto certaine great officers of the kingdome Lordes c. to call such grieuous offenders as there be named vpon bill or information and them and others by their discretions by whom the trueth may be knowen to examine That this examination is by a corporall oath taken the continuall custome in that honorable court of Starre-chamber obserued doeth shewe for the breach of the sayd statutes is there to be punished And if examination were not so to be taken for the parties owne oath then coulde it not so bee vnderstoode of the witnesses For the word examine is indiffererently vsed for them all And 2 Brooke tit examination nu 32. Brooke in his Abridgement doth testifie that examination spoken of in lawe is vpon oathe If a 3 24. H. 8. ca. 6. Vintener shall refuse to sell his wine in grosse without iust cause vnto such as offereth him the set price thereof in ready money he shall forfeite as much as the price of the wine Such vintener also may at the discretion of any Officer there named be put to affirme and depose vpon his bodily oath what and howe much quantitie and sortes of wines hee shall haue and whether hee keepeth them to sell by retaile or in grosse and if after such affirmance of intent to retaile them hee shall sell any of them in grosse hee forfeites the double value By a statute of 4 34. H. 8. ca. 4. Bankrupts the lordes there named may vpon relation to them giuen call any person suspected to conceale such offenders goods and may examine them by their oathes and otherwayes as in discretion they shall thinke meete vpon the specialtie certaintie true declaration and knowledge of such offenders goods or debts owing to him And if he shewe not the whole trueth to be after prooued by witnesses c. then he forfeiteth double the goods concealed The like 5 13. Eliz. ca. 7. authority is also giuen to certaine Commissioners to be appointed by vertue of a later statute to tender an oath But in this later the double penaltie runnes against him If either hee doe not vpon his oath disclose the whole trueth or shall denie to sweare The 6 5. Eliz. ca. 1. oath of Supremacie or obedience is a necessarie oath to be taken by such as the L. Chancelour shall thinke fit ex officio to haue it tendered vnto Yet if the party carying a contrary perswasion shall refuse it it becomes very criminall and penall vnto him Such 1 13. Eliz. ca. 3. as be supposed to be parties and priuy to the fraude collusion and couin vsed in conueyances by fugitiues ouer the sea which fraude c. are there affirmed to be things detested and abhorred by all good lawes may be Commissioners appointed or by the Barons of the Exchequer be examined vpon their corporall oathes to open and declare plainely the very trueth to such Interrogatories as shall bee ministred vnto them touching the premisses and the circumstances and dependances of the same vpon paine if they shall refuse to loose such a fine and fines for the saide contempt as shall be assessed by such before whome such examination shoulde be made In which as in the other Statutes mentioned it is euident by how many wayes it may happen that such oathes shall tend to the vrging of them to discouer matters criminall and penall to themselues that are appointed to take them And the foure last alledged concerne oathes giuen where neither bill nor yet information is preferred
lawe then can it not bee auoided but that the Treatisour in very deede had such an vnduetifull and slaunderous purpose and reach in his words aforesayd To the second degree of their bare affirmations such speaches of Temporall Courts practise or forbearing to practise as these following bee doe belong videlicet that such a generalloathe or such like ex officio was neuer offered nor taken for you may perceiue he is not resolued throughly whether of these two hee had best insist vpon or take for his issue And that the common lawes haue euer reiected and impugned it Likewise that it was neuer put in vre by any Ciuill Magistrate of the land but as it is corruptly crept in amongst other abuses by the smister practises and pretenses of the Romish Prelates and Clergie-men which asseueration as it is in that part voyd of all likelyhood where it is surmised that the practises pretenses of Clergie-men did first shoulder this oath into Ciuill or Temporall Courts so is it yet an implied kind of confession that it is not such an Alien to the Ciuill pollicie of the Realme nor by it wholie reiècted impugned as in his treatise he beareth vs strangelie in hand Besides that such implication is flat repugnant contradictorie to y e Note-gatherer who writeth that it was neuer vsed here to make men accuse themselues for by this accusing he meaneth giuing of oaths to defendants touching discouerie of some their owne offences Lastly that where losse of life libertie or good name may ensue the Common law hath forborne oathes As for losse of life it is yeelded to be true which he here saith but not so for the other two for the Starre-chamber being a Temporall or Ciuill Court imposeth oathes where both infamie may and doeth follow for punishment and where libertie is restrained most often by imprisonment and sometimes also by banishment Vnto the other head of their bare affirmations which is what the Common lawe holdeth in this behalfe such of their speaches as these following doe appertaine videlicet to giue oath they meane to the defendants in causes of life and death is contrarie to the Iustice of the lande This albeit it no way impugne any practise Ecclesiasticall yet is it flat repugnant to the Note-gatherers assertion spoken vnto in the 1 ca. 10. pag. 93. second part Agayne that the Common lawes haue not appoynted an oath to bee vsed but according to the right institution thereof and that in causes capitall or criminall these lawes neither vrge by oath nor force by torment a thing most cruell and barbarous and therefore agaynst torturing he alleageth master Fortescue in his booke De laudibus legum Angliae It is wholie besides my purpose either to auow or disauow here the course of finding out trueth by torture yet much might on both sides probablie bee sayd therein both by reason and also by graue authoritie That the defendants oath in causes capitall neither is vsed nor allowed by the lawes of this Realme I doe yeeld vnto him as afore I haue sayd but for torture let me neuerthelesse put him in minde that it may perhaps be thought of very hard to haue it thus affirmed that the torturing of supposed Capitall offenders not only vsed in Campes but also within the Marches principalitie of Wales euen in time of peace well warranted by her Maiesties instructions and by Act of Parliament in the Tower of London for matters of treason should all of them be accounted absolutely contrary to lawe or which is more to bee courses most cruell and barbarous The other poynt thereof which is of not vrging a defendant by oathe in any cause criminall is the maine point here trauersed betwixt vs and therefore may not be caried thus away by him per petitionem principij without some sound reason All these aforesayde speaches I doe muster amongst their bare affirmations and haue the longer stoode vpon them because themselues doe not so much as assaie or vndertake to prooue most of thē by any colourable argument or authoritie for that the reasons which they tacke on vnto some of them doe not hang together by any consequence and for that diuers of them might bee granted without any detriment to the cause which wee defend for they be but voluntarie speaches let slip at randome this therefore commeth vnder his mistaking of the true issue yet they be such as seemed not vnmeete to bee mentioned least if the Author of them doe happilie holde them for sound reasons hee should complaine to haue a piece of wrong offered vnto him for that all his booke was not spoken vnto and answered Next doe follow those their reasons to be discussed which they take from the lawes of this Realme and first concerning such of them as be made out of Statutes and afterward we will come to their booke cases That which hee speaketh of Magna charta albelt he handle it last yet for the ancientie seemeth to deserue the first ranke he auoucheth no particular part thereof but taking as graunted a contrarietie belike in his opinion not trauersable to be betwixt proceeding by this oath and the sayd Statute he onely in high wordes telleth vs of a most iust curse of Anathematizing laied by the Bishops then against all wilfull infringers of that Charter If I should gesse what poynt thereof it is which hee intendeth to bee so contrary to these oathes I would take the nineteenth chapter thereof if any to bee meant both because putting to an oathe is there mentioned and for that I haue heard it to like purpose alleaged by some other Howbeit the Treatisour hauing farre better insight as seemeth in lawe then hee that so alleaged it thought good to skippe it ouer without all allegation for feare it would not so wel helpe his turne The wordes are these videlicet No 1 Magna charta ca. 19. Bailiffe shall from hencefoorth put any man to his open lawe nor to an oathe vpon his owne bare saying without faythfull witnesses brought in for the same I must confesse that these wordes are some thing too obscure and darke for mee to vnderstand what is positiuely and preciselie meant by them and so much the rather because I know not the vsage afore that time which thereby was ment to be remedied except I should coniecture that the bare saying there spoken of is to bee referred to the man that taketh the oath and not to the Bailife and then would it seeme to establish that practise which is vsed in waging of lawe with two or more witnesses or handes concurring with his oath that sweareth Howsoeuer it be in verie deed to be vnderstood it is easie inough to gather what can not be meant by it First therefore it cannot any way be extended to proceedings and courtes Ecclesiasticall for whatsoeuer is in that Statute graunted after confirmation of the Churches liberties except it bee otherwise plainely expressed is referred to Courtes
and matters Temporall betweene which and causes ecclesiasticall as is noted afore there was made both in those times and also long after a plaine seuerance and distinction in the groundes of their seuerall authorities and iurisdictions so that the one was called the Kings Court and the other a Spirituall or Court Christian. and therefore as nothing was in that Charter anewe graunted but confirmed onely vnto the Church of England so is it to be iudged on all handes that the king would not make lawes there to restraine the courses of proceeding ecclesiasticall because it could not be without disanulling and reuoking of that which immediately afore euen by the same Acte hee had first of all confirmed vnto them Secondly a Bailife onely is there mentioned which should put or not put a man to his oath which cannot well and properlie be vnderstood of any but of some officer temporall Thirdly these wordes are no way appliable to the practise of courtes ecclesiasticall for albeit vnder the name of Bailife an Ordinarie might be vnderstood which were very harsh insomuch as a Bailife is but a Reeue of a Baile or Libertie yet is it not holden by any lawe ecclesiasticall that vpon an Ordinaries owne bare saying whether he haue witnesses after to bee produced or not a man may bee put to an oath for there must bee some better matter of inducement to open way to the enquirie whereupon the oath ensueth Lastly this statute will rather hurt then helpe forward these mens purposes if an Ordinarie might here be vnderstood by a Baylife because if I conceiue the matter aright by this is implyed that so an Ordinarie be able to bring in good witnesses he may then vpon his bare saying put a man to his open lawe or to an oath But hereupon would followe that Criminall prosecution without any accuser or other partie and so ex officio mero yea and without any presentment too may bee lawfully admitted and which is most to our present purpose in handling that an oath in such case by him may bee imposed in any matter aswell Criminall as other For heere is no distinction made of any one kinde of cause from another and they which alledge it doe bring it to impugne proceeding by the defendants oath against crimes The allegation of the Treatisour out of the statute of Marlebridge or Marleborough falleth next in time to bee considered the whole wordes 1 Marlebr 52. H. 3. cap. 22. whereof are these none from hencefoorth may distreyne his freeholders to answere for their free holdes nor for any thing touching their freeholde without the kings writ nor shall cause his freeholders to sweare against their willes for no man may doe that without the kings commaundement But the Treatisour leaueth out the first part which sheweth howe the second that he alledgeth is to be vnderstoode And because like the lapwing with her diuerting c◅ies hee would leade vs further and further from the matter herein chiefly to be respected or for that he thought wee would make some aduantage hereof he saith that the kings commaundement importeth here thus much viz. according to the law Iustice of this Realme and for this quoteth a booke thus 2. R. 3. The booke he meaneth as I gesse is in 2 Mich. 2. R. 3. sol 11. these words wheresoeuer a man for offence misprision or otherwise is to make fine or redemption all the Iustices agreed that those Iustices before whome he was committed c. should take suretie and pledges for the fine c. and after by their discretion they should assesse the fine and not the king in his chamber nor otherwise before him but by his Iustices and so is the kings will in statute to be taken viz. by his Iustices and his lawe which to say in effect is all one c. Where you see that the booke speaking of Iustices viz. the men before whome the conuiction was made he referreth this to the Iustice of the land But though it be neither off nor on to our Principall purpose neuerthelesse it seemeth this booke is not truely applied by him vnto this statute and that by the kings commaundement in the statute the kings writ is to be vnderstood as in the first part of that statute is plainely expressed rather then any determination or Act of his Iustices of the Bench. Touching the statute it selfe the wordes doe euidently shew that neither oath in cause criminall nor any Court Ecclesiasticall is thereby meant there is onely forbidden that lords of manors shall not inforce their Freeholders that holde lande of them whether it be by distresse or oathes to answere in their Courtes baron touching the estates they haue in their landes because neither the lordes owne courts in such a case be competent or indifferent for feare of vnlawfull euiction nor the goodnesse or weakenesse of the states men holde are meete to be fished out by their owne oathes in satisfaction of their lordes greedinesse to haue their lands except the king by his writ shall so especially command And yet hereby wee see the statute leaueth it at large at the kings pleasure to warrant euen this course and therefore this is not simply vniust but inconuenient onely for lords so to vrge their tenants He alledgeth further against these oathes a statute as hee saith made 43. Ed. 3. ca. 9. that no man be put to answere without presentment before Iustice or matter of Record or by due proces or by writ originall after the ancient lawes of this land But I doe finde no such statute either in that yeere or in any other like number of Chapter of that king and that Parliament which he voucheth hath not so many Chapters But admitting it what is this to proue an vnlawfulnesse of oathes ministred vnto defendants in matters criminall whereof there is no shadowe of mention it rather speaketh of matters that ought to goe afore proceedings criminall at the common lawe and what makes this against Courts Ecclesiasticall woulde hee haue them to proceede in the selfe same maner that common lawe courts doe hee might aswell exact of them Indictments and afterward tryals by Iuries of twelue and yet Ecclesiasticall courts put none to answere but vpon moe then one of these or at least that which is equiualent at that lawe vnto these at the common lawe For first courts Ecclesiastical haue great vse of presentments and complaints or denunciations before the partie be called to answere as is shewed in the second part Then the defendant is not called neither but by due processe as by letters missiue or by attachment in Courtes of Commission by Primarie citation in Ordinarie Courtes which haue a correspondence vnto originall writs at the cōmon law So that of foure matters wherof some one or other of them is thereby required three of them be vsed in Ecclesiasticall proceedings against crymes His next proofe of this kinde cōming to be discussed is out of the 1 25.
H. 8. cap. 14. preamble of a statute of king Henry y e 8. which preamble for breuitie sake he omitteth yet hee omitteth not to gather therefrom that which was neuer scattered viz. so we see saith he that vnder cloked and couert termes of Canonicall sanctions viz. vsed in the statute 2. H. 4. the clergie men vsurped vniustly iurisdiction ouer the people ministring vnto them captious and snarling Interrogatories and as it should seeme by histories vpon oath contrary to the true meaning of the lawe and lawe-makers and against the right order of Iustice and all good equitie impugning thereby the royall prerogatiue the imperiall Crowne the Princely scepter lawes and policie of this kingdome for which cause he saith it was repealed These be imputations of great and high matters which he auowcheth to be by such oath impugned which though he say we see by that preamble though indeede hee would not let vs see it yet when all is cast vp his proofes are no more but thus viz. as it should seeme but how much hereof may in trueth thence be seene either plainely or by any seeming I would the clearest sighted of that opinion would take the paines to peruse that hee may withall discerne with what vpright mindes and sinceritie some of his chiefe complices doe write of this matter For the very true and onely causes of repeale of the statute of heresie 2. H. 4. by the preamble of the saide statute 25. H. 8. nowe likewise standing also it selfe repealed are assigned to be these viz. the not declaring thereby what should be heresie The terme of Canonicall sanctions and other termes thereof so generall that the best learned coulde scarse auoyde the danger of heresie if he should bee examined vpon captious Interrogatories the vnreasonablenesse of being put to losse of life c. vpon suspition and without accusation or presentment whereas for treason it must bee vpon presentment verdict confession or proces of outlawrie and for that speaking or doing against the Canons c of Popes being but humaine yea and many of them contrarie to the kings Prerogatiue Royall is by the sayde Canons made to bee heresie so that there is not one word mentioning much lesse tending to the condemnation of ministring oath no not so much as in the crime of heresie which is capitall nor yet any of the other great thunderclaps which the Treatisour pretendeth he sawe or heard of in that Preamble against oathes in some criminall causes To this purpose he woulde haue vs further note that the statute of sixe Articles doth not enact nor allowe but that it seemeth rather to disallowe and ◅iect these oathes Why Sir it speaketh not of them at all and can you therefore gather that it doth not allowe but rather disallowe them you might so reason against them from all the statutes that euer were made touching any different matter whatsoeuer But say you it seemeth rather to disallowe them is not this seeming a sound demonstratiue argument to ouerthrowe a course so long and so manifoldly vsed and that in the courts of both sortes but why doth it so seeme forsooth because the king is by that statute authorised to direct Commissions to Ordinaries and others to take information and accusation by the oathes of two sufficient persons at the least or by verdict of twelue men What then therefore the examination of the partie vpon his owne oath when he is found out because it is omitted is disallowed Though this loose reason should followe yet none oath should thereby bee touched other then ministred in matters of heresie But if he might reason thus because those Cōmissioners might beginne and grounde their proceedings done by way of speciall enquirie in processu punitiuo vpon such information accusation or verdict therefore they might not proceede afterward according to any course of the lawe ecclesiasticall then might he as well also argue that they might not deale vpon an heretiques owne voluntarie confession for confession is no more mentioned in that Statute then the defendants oath is But what if that Statute had expressely disallowed that oathe is it not nowe repealed and is it woorthie to bee alleaged seeing hee else-where chargeth it to be A bloudie and cruell Statute I perceiue it is verie loose and badde stuffe which hee will not take holde of where hee may haue but as much as a shadowe or glimpse of any thing to his purpose May it bee thought that any man of iudgement can bee in deede ignorant but that such sharpe and pregnant conclusions as throughout his whole Treatise he inferreth cannot possiblie be grounded vpon so feeble and vnconsequent premisses yet hee sticketh not vpon these allegations aforesayd euen as if hee tooke them for good and sound arguments as a well-willer of Ordinaries to disswade them from further practise of such oathe least they bee found thereby not onely impugners of the Roiall Prerogatiue but discredited further by the breach of their owne oathes taken to the Queenes supremacie Neuerthelesse least I be mistaken by any it is to be remembred that he commonlie limiteth all his hote conclusions with some warie wordes of restraint as these videlicet such oaths and such like c. alwayes conueying vnder them a reference vnto generall oathes according to his first vntrue issue Well this helpeth his cause neuer a deale for if none of his reasons brought doe so much as ouerthrow those vnreasonable oathes which are by no man defended howe much lesse can they touche those particular oathes to matter in fact onely that we doe reason and treate of The reasons which he setteth downe as taken from the Reports of the common law doe now follow which are partly by propounding some examples how oaths be there vsed partly by auouching some cases seeming vnto him to inferre a cōdemnation of defendants oaths in any causes criminal Before he come to the first of these two there bee sundry conclusions propounded by him for proofe whereof all his reports out of the Common lawe be laied downe First that he may as he saieth deliuer our lawes Iustice of our land from so foule a slander as that they should bee sayde to allowe of such Catholique oathes Next to assure others like as himselfe is sure that such a generall oathe or such like ex officio was neuer offered by any Magistrate nor taken by any subiect by authoritie of the common lawe Thirdly that the Common lawes haue not imposed or appoynted an oath to bee vsed otherwise then according to the right institution thereof and the godly rules before by him remembred What those rules are I haue noted in the Epistle to the Reader Nowe if by these wordes videlicet such like ex officio he meane onely such generall oathes as afore he had vntruely imputed to Ecclesiasticall courtes then will I not trauerse any of these conclusions whether the oath shall be ministred vpon the Iudges office onely or at a parties instance Yet
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