Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	peace_n	say_a	town_n	3,331	5	7.0217	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A19394	An apologie for sundrie proceedings by iurisdiction ecclesiasticall, of late times by some chalenged, and also diuersly by them impugned By which apologie (in their seuerall due places) all the reasons and allegations set downe as well in a treatise, as in certaine notes (that goe from hand to hand) both against proceeding ex officio, and against oaths ministred to parties in causes criminall; are also examined and answered: vpon that occasion lately reuiewed, and much enlarged aboue the first priuate proiect, and now published, being diuided into three partes: the first part whereof chieflie sheweth what matters be incident to ecclesiasticall conisance; and so allowed by statutes and common law: the second treateth (for the most part) of the two wayes of proceeding in causes criminal ... the third concerneth oaths in generall ... Whereunto ... I haue presumed to adioine that right excellent and sound determination (concerning oaths) which was made by M. Lancelot Androvves ....; Apologie: of, and for sundrie proceedings by jurisdiction ecclesiasticall	Cosin, Richard, 1549?-1597.; Andrewes, Lancelot, 1555-1626. Quaestionis: nunquid per jus divinum, magistratui liceat, a reo jusjurandum exigere? & id, quatenus ac quousque liceat?.	1593 (1593)	STC 5822; ESTC S118523	485,763	578

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

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.

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 〈◊〉 ●…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

duelie done either preciselie or by that which is aequiualent vnto them And so we may conclude that to proceed in an Ecclesiasticall Court agaynst a crime otherwise then either by Accusation or such Presentment is not contrary or repugnant vnto the lawes of the Realme but rather the like course often practised by them and thereby the Iustice equitie of such proceeding more stronglie confirmed and iustified vnto vs and the contrarie opinion quite ouerthrowen CHAP. IX The second opinion here to be treated of is that No laie person may be cited of Office in any cause but Testamentarie or Matrimoniall the drift of that opinion is against proceeding of Office in matters criminall the necessarie vse and equitie of proceeding criminallie sometimes by the Iudges office in courtes both temporall and ecclesiasticall THe very drift of the second opinion that commeth here to be disputed of is that a Iudge ecclesiasticall may not proceed at all of Office or make speciall Enquirie which is the effect produced by that cause against any crimes or offences of late persons For in debarring them frō Citing any such the very whole proceeding against them vnto which that is the introduction is thereby also debarred and by restraining their citing of Office vnto causes onely Testamentarie or Matrimoniall all dealing against Crimes without there be an Accuser is thereby taken away Which second opinion therfore quite ouerthroweth the presenting of any laie persons though criminous allowed by the generalitie of the next precedent opinion insomuch as vpon Presentments followeth proceeding of Office by Enquirie and yet both these opinions had one Author So well bee these mens conceits digested But let vs first examine what may be the colourable occasion of this second opinion ouer and aboue the impounding of all ecclesiastical proceeding vnto those two heads spoken of in the first part sauing where the partie conuented himselfe is willing Which willingnesse in the partie for rights that may be supposed to be by him deteined but especially for crimes supposed by him to bee committed can neuer with any reason be intended that it shall bee obtained at his hands considering there is so small vse of any proceeding by office but against crimes and least of all in causes Matrimoniall or Testamentarie That no laie persons then should be delt with at all for such crimes as I haue before prooued to bee of ecclesiasticall cognisance but be suffred to do them without controlment I thinke in charitie not to be their meaning It must needs then follow that it is the proceeding against crimes ex officio Iudicis viz. without an Accuser which is hereby principallie condemned as vnreasonable or vniust Therefore to prooue it reasonable I mind here somewhat further to shew the necessarie vse equitie thereof as well in the one court as in the other And to cleare it from vniustice I wil declare first that it is both practised by the temporall lawes also is by common and statute law an allowed proceeding vnto courtes ecclesiastical next that it is practised not onely by the law Canon which many would take for a sufficient disallowance of it but also by the Ciuill lawes subiect to no such exception insomuch as they are vsed by the rest of Christendome for their Common law by the grounds whereof all their customarie lawes ordinances be argued disputed And lastly that such course of proceeding was vsed is allowed by sundry exāples in holy Scripture together with answeres vnto the obiections made to the contrary as they fall fittest into each of the seuerall parts of this disputation The equitie and necessarie vse of this course to bee holden may be shewed by the partie which by lawe is supposed to be the exciter stirrer vp of a Iudge vnto it whē none other person is found that wil prosecute This partie I meane is the 1 Clarus ibid. q. 7 publike interest which the Church or Commō welth hath to haue crimes punished Interest Reip. prouinciā purgari malis hominibus ne maleficia remaneant impunita poena enim vnius terror est multorū Bonis nocet qui malis parcit Sicut est misericordia puniēs sic est crudelitas parcens w t sundry other like rules of law Canon partly afore touched Now the publike interest doth not only rest in this when some benefite is comming towards the common treasure but is chieflie shewed by procuring common tranquillitie and repose of the subiect with sinceritie of religion and integritie of conuersation And it was called by the Romanes especially after the popular state was turned into a monarchie by the name of Fiscus and may well and significantly with vs in respect of the meaning be termed the interest of the crowne dignitie royall which by all offences are sayd to be violated Therefore doe the 2 Practica Millei fol. 3. nu 31. Ciuilians of other nations say In quocunque crimine fiscus est accusator against euery crime the benefit of the Common-wealth is an accuser And another 3 Clarus ibid. q. 10. saieth that in what crime soeuer a Iudge may proceed of office there Fiscus the common benefite stands in stead of a Partie And it is testified to bee a 1 Decius consilio 170. nu 1. common rule that euen in an offence but against a priuate person principally the iudge oftentimes is of office to proceed to the inflicting of some penaltie not expreslie set downe in lawe against such an offence for so is poena extraordinaria ment in the Ciuill lawe by reason of the very interest the Common wealth hath to haue misdemeanors punished In which 2 Clarus ibid. q. 12. respect some mā that by law may not vse action yet is not forbidden implorare officium Iudicis to stirre vp the Iudge by petition to proceed for his owne office and duties sake If her Maiesties most honourable councell together and euerie one apart if the Iudges of the land if carefull and vpright gentlemen of the Commission of Peace in euery countrey of office and for their dueties sake for the most part without any so much as priuate complaint much lesse professed Accuser or Partie but perhaps vpon some generall muttering yea and sometimes without so much for a care and vpon a feare at large onely conceiued what may happen did not or should not enquire looke into and take informations of riots violences disturbances of peace conspiracies felonies murders and of other misdemeanors and outrages and so seeke further to discouer them and to punish them or bring them to Iustice might it not iustly be feared that the realme would much more abound and ouerflow in all kinde of mischiefe Would the Constables abroad Headboroughs Bursholders and such other inferior officers and ministers of themselues preferre such vp or being found out and presented by others would they effectually folow and prosecute them as appertaineth so that the magistrates need not to take

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 ●…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

custome ought not by any singular person to be chāged 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 ●…l 2. de accusat Canon be obiected viz. exponenda sunt ei illa capitula de quibus fuerit inquirendū 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 ●…e militari requireth copies indiciorum of the inducements or euidences to be giuē 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 Zanchinū 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 accord●…ng to the fourme of somestatute Fifthly where there may be probable feare that the witnesses shal thereby be hurt or preiudiced Sixtly whē the crime is notorious Seuenthly when the proceeding is of meere office Eightly when the defendant varieth faultreth in his answers Lastly whē 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 defendāts first examination also y t such disobediēt 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 cōmon 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 dozē 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