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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

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

plaintife sworne to the trueth of his declaration and shall haue it If the plaintife sweare the defendant is condemned and if the plaintife refuse he is barred And may not this delation of such decisorie oath occasion and causatiuely vrge the plaintife sometimes to discouer himselfe to haue demaunded a debt not due which is dishonestie and vniustice or perhaps induce him to periurie partly for filthie lucres sake partly that he may not seeme to haue dishonestly demaunded what was not due vnto him if then a priuate person neuerthelesse may so deferre an oath but in a priuate money matter how much more may a magistrate in a publike crime these doubts and perils notwithstanding And the like decisorie oathes be not onely receiued in that Citie alone but also at the common lawe For 3 19. H. 6. 43. when the defendant desires that the plaintife may be examined or sworne this is peremptorie to the plaintife in this point and so is the wager of lawe ex parte defendentis In an action of 4 44. Ed. 3. 41. detinue brought against a Deane for a chest sealed with certaine golde siluer and Charters in it as being deliuered to his predecessour the Deane tendered his law that is his oath quod non detinet and the opinion of the court was that he should haue it Now who seeth not howe many wayes this course may no lesse induce men vnto periurie For doeth not common experience teach vs howe readily for a trifling piece of gaine tradesmen in buying and selling will sweare falsely or els cautelously which is all one fault before God yea when as no such matter is required or exspected at their hands therefore howe much more strongly may periurie bee feared in a matter of good weight especially when men by the vexation and sute of their aduersaries are whetted on and where as they hauing a good while stoode in deniall their credits amongs other men might otherwise be called in question and seeme to be impayred And yet this danger that periurie may perhaps ensue is no sufficient reason to change the common lawe in this behalfe Howe then can most of the Treatisours arguments holde which are chiefly grounded vpon perill of periurie which he saith is likely a man will fall into rather then haue his good name and honestie brought into question and hazarded I haue also credibly heard that in the time of that Reuerend Iudge Dyer the court of Common pleas examined certaine by their corporall oathes touching a very lewde plat layde by some of them and the names of the dealers pro contra in that cause were as I remember Greuill Pyue and Hockam which being so found out was condignely also punished in some of the offendours both by perpetuall infamie and with other punishment CHAP. VII Wherein are conteyned answeres to such obiections and reasons as bee made for proofe of a contrarietie or repugnancie in these oathes vnto the statutes lawes or Customes of this Realme and a Replie to the Treatisors answeres made vnto certaine obiections supposed likely to be made in Iustification of this kinde of oath by the temporall lawes IN this Chapter I purpose God willing to answere those poynts which by the Treatisour or Note-gatherer are brought to perswade that such oath as here we handle is either plainely impugned or closely contraryed by the lawes temporall of this Realme Vnder this consideration doe fall certaine bare affirmations about this matter their reasons for this assertion and their answeres to such obiections as are by them supposed may be made in defense of this kinde of oath Among their bare affirmations about this matter I recken some things which they imagine to be sayde or practised by Ecclesiasticall Courtes or persons and that which they affirme the common lawe either holdeth or practiseth on the one side or els on the other side forbeareth to put in vse in this behalfe To the poynt of practise by persons and Courtes Ecclesiasticall are referred those the Treatisours imputations whereby he surmiseth generall oathes for all a mans thoughts wordes and workes to bee ministred by them and that vpon the Ecclesiasticall Iudges onely iealousie and suspition without any other lawfull inducement precedent Likewise that it is tendered in matters tending to losse of life or of limme All which I haue else-where shewed to bee very vntrue and slanderous Hither also is to be reduced another speech of the Treatisours for whereas the defenders of this oath doe affirme it as it is practised but not in such a catholike or vniuersall maner as he sporteth himselfe at to be warranted by the temporall lawes he saith that this is a foule sclander both to our lawes and to the Iustice of our land The trueth or falsehoode of which his fowle saying will appeare vpon perusall of the next precedent of this and of the next Chapters following And so will also these other his speeches to like purpose viz. where hee calleth it an alien heretofore entruded as a trouble some ghest into the house of our common wealth And where he saith that as Sir William Thorpe by his corrupt dealing so much as in him lay had broken the oath which the king is bound to keepe towards his people so the ecclesiasticall Iudges practising in their Courts and tribunall seates the selfe same vniust and vnlawfull maner of proceedings against the kings people coulde not escape the seuere sentence of lawe pronouncing them offensiue butchers and violatours of the king and iniurious dealers agaynst his Regalitie crowne and kingdome and so consequently c. in a Praemunire But for any testimonie of this corrupt dealing of Sir William Thorpes which here hee speaketh of or of his breaking of the kings oath and so seuere sentence of lawe passed in that respect against his butcherie and violation of the kings Regalitie c. though I haue sought for it yet can I not finde neither doth the Treatisour giue vs any direction for it His meaning herein though couered with slye wordes is easie to bee discerned through his vizard For if the oath were made by the king onely how could it bee broken by Thorpe and the king bee vnblameable for no man is simplie bound by oath to performe other mens integrities and seeing hee chargeth ecclesiasticall Iudges with the selfe same vniust and vnlawfull maner of proceeding though his conclusion drawen from the likenesse betwixt these cases be onely this videlicet that they are thereby fallen into Praemunire yet his very meaning and what conclusion was by him meant to haue followed thereon by the former part of the comparison is made apparant videlicet a couert disloyall and most lewde charge as if some now had no lesse broken the oath which they haue taken howbeit procured or induced thereunto by Iudges and Courtes ecclesiasticall But if such Ecclesiasticall Iudges haue neither indeuoured any such breach neither yet their practise of the oathe by him here condemned bee impugned by any

a meere 2 10. Petr. Ferrar. forma Inquisit ver forma publica Ciuilian writer and no Canonist as he supposed with whom he hath the same and no better lucke then he had afore with the other for want of knowledge to distinguish betwixt Processe informatiue and Punitiue for thereof onely Petr. de Ferrarijs there speaketh not once mentioning an oath Albeit the Treatisour doe gather both that and other things also thereof which bee not there conteyned which I will not nowe trauerse with him because they tende not to our principall purpose Out of the lawe it selfe hee taketh holde of that Rule which the sayde Doctors did alledge viz. nemo tenetur seipsum prodere but that proditus per famam c. tenetur seipsum ostendere purgare c. which they did also adioyne he cannot in any sorte brooke or digest as a glosse he sayeth confounding the text yet is it not any glosse but aswell warranted by lawe as the rule it selfe neither doth it confound but shewe howe that rule is truely to bee vnderstoode so that one part of the lawe without any antinomie may stand with another This himselfe might haue remembred to bee lawe euen by occasion of his owne allegation else-where viz. that such as refuse to sweare or answere vnto Articles are by the Ecclesiasticall lawe to bee holden pro confessis If then that lawe doe so deepely punish the contemptuous in that behalfe as to conuict them therefore of the very crime imputed may wee not gather that the lawes Ciuill and Canon require men to answere euen matters Criminall vpon their oathes But if the Canon lawe-shall bee by others alledged to auouch such oath as we heere treate of to this allegation in seuerall places the Treatisour maketh these seuerall answeres following First hee sayeth that such oath is against Gods word and therefore no binding lawe for which consequence hee alledgeth Saint Germaine in his booke of Doctor and Studient Secondly that the two statutes of Submission of the Clergie made in king Henrie the eight his time still 1 25. H. 8. 27. H. 8. continuing in force doe take away the Canon lawe Thirdly that this kinde of oath is contrary to the lawes of the Realme All which asseuerations are nothing else but begging of that which is the principall controuersie Touching the first of these it commeth in the next Chapter to bee disoussed whether ministring of such oath be against Gods word or no. For the second those two statutes are so farre from taking the Canon lawe away that both of them doe in trueth establish all Canons being of that qualitie as is there expressed vnto all which wee auerre this oath to bee consonant The Clergie in deede doe there promise not to enact or put in vre any newe Canons c. without the kings expresse assent of which sorte this oath is none for it hath beene prooued by farre elder Canons then that time Concerning the third wee haue shewed that there is not any great diuersitie betwixt those two lawes in this poynt therefore much lesse can there bee any contrarietie or repugnancie Lastly hereto hee answereth that if any man shall seeke by long practise and continuance to giue a new probate vnto the Pontificall lawe after so publike a condemnation and firing thereof by Doctor Luther such must vnderstand from him that this kingdome is not subiect to any forreine made lawes saue such as 1 25. H. 8. ca. 21. agree to the Preamble of the statute establishing dispensations A man woulde thinke if any part of Canon lawe should swarue from those conditions required to make them English lawes that dispensations which of all other are most strict and neuer afore that time spedde in this Realme shoulde bee holden for forren lawes rather then this kinde of oath so vsuall afore and since in most courtes yet these dispensations are also there approoued for English lawes Let him therefore vnderstand that all those things there required viz. sufferance consent and custome to make the Canons establishing such oathes to be accounted the customed and ancient lawes of this Realme originally established as lawes of the same doe in these oathes so aptly concurre as hath beene prooued that none of his confident denials thereof can or shall bee able any more to empeach them from so being then the burning of the Canon lawe at Wittenberge by Luther when the Pope had burnt his bookes at Rome either did was meant or yet coulde abrogate the continuall vse of a great part thereof in Germanie euen vntill this day or then it coulde or ought to haue any force to disanull it here in England for the statute establishing such Canons as there bee mentioned was made in the selfe same Parliament and Session thereof that this Preamble was before the statute of Dispensations whereby hee woulde nowe ouerthrowe the Canon lawe wholly And both of those statutes at the beginning of her Maiesties reigne were reuiued againe in one Act. Howe can there then bee any such contrarietie or abrogation generall of the Canon lawe as this man dreameth of except all that were present in those two Parliaments had bene fast on sleepe when they twise passed them both together for statutes Others perhaps to as good purpose will obiect that ancient custome of Rome viz. 1 Gell. lib. 10. cap. 15. Fenest de Sacerd cap. 6. Virginem Vestalem Flaminem Dialem in me a iurisdictione iurare non cogam hereof 2 Plutarch probl 43. Plutarch doth set downe three reasons first that an oath is a kinde of torture to a free man Secondly for that it is absurd in smaller causes not to credite their wordes who for the highest matters touching God are credited and put in trust Thirdly for that an oath draweth after it an imprecation or curse in case hee shoulde be forsworne which seemeth to be a detestable omination towards the Priests of God First then wee see hereby in so much as this was a peculiar priuiledge graunted to these that therefore all others might by Magistrates be put to their oathes And secondly that it was from all swearing absolutely and not in matters criminall onely which is our present controuersie For so Liuie also 3 Liuius lib. 32. testifieth hereof where hee sayth that Flamen Dialis amongs the Romanes might in no case at all sweare least at any time he shoulde for sweare which in him was holden as the most heynous thing that coulde happen Thus farre in answere vnto obiections made out of those two lawes CHAP. XI That not onely such an oath may be taken but also being by Magistrates duely commaunded ought not to be refused is approued by Scriptures by practise of the Primitiue Church and of late times together with a Replie vnto certaine answeres made vnto some proofes here vsed THe Innouators finding but small reliefe in the lawes being rightly vnderstoode doe flee as it is meete vnto the word of God yet as

very Temporal causes themselues whereupon such faith or othe was confirmatorie If saith a Constitution 1 Cōstit aeternae sanctio de poenisin Concilio apud Lambhith sub Bonifacio Anno 1260. tempore Henrici 3. Prouinciall of Canterbury perhaps our Lord the King in his Attachments prohibitions summons shall make mention not of tithes but of right of Patronage not of breach of faith or periurie but of chattels not of Sacrilege or disturbance of liberties Ecclesiasticall but of trespasses of his subiects the correction of which he affirmeth doth belong to him then let the aforesaid Prelats make known vnto him that they neither take conisance nor minde to doe touching Patronage chattels or other things belonging to his Courts but of tithes sinnes and other causes meere Spiritual belonging to their Office and Iurisdiction Whereby we first gather that the Common Law herein was not then resolutely agreed vpon in that they conceiued this allegation touching faith broken and periury would satisfie the King and his Courts And secondly that the Kings Writs of prohibition and Attachement in this behalfe were then awarded but for faith and othes made concerning goods and chattels because by that pretence the conisance of chattels was drawen into Ecclesiasticall Courtes I do finde in an old written parchment booke of statutes reaching downe but to H. 5. death many matters of marke conteined amongs the statutes As among others there be regiae consuetudines apud Claringdon promulgatae which as is there rehearsed were by K. Henry the second propounded in Parliament vnto Thomas Becket then Archbishop of Canterbury long before that Prouinciall constitution Most of which he did condemne by his censure as preiudiciall to the liberties of the Church And this is said there to haue bene the originall cause first of his banishment and afte● of his death But some of those customes Becket did tolerate whereof this is one seruing to our present purpose viz. Placita de debitis quae fide interposita debentur vel absque interpositione fidei sint in curia regis Hoc tolerauit At the ende of that Treatise it is saide that foure yeeres after Beckets death viz. 1174 of Christ the King repenting himselfe did together with the Prelates and greatmen of his kingdome abrogate and condemne those euill and vniust customes appointing onely those that were good to be thencefoorth obserued Yet saith he some of those that were so abrogated by the king and condemned by the Church are still obserued in the kingdome If this be with the kings knowledge and allowance let the King looke to it for God knoweth it The chiefe cause why I note it is this that it was euen then thought a Custome of the Realme and by Becket himselfe allowable and tolerable that Pleas of debts though faith or othe were giuen for their payment belonged to the Kings temporall Courtes Next is that hence may be gathered how the Recognitions and othes forbidden to be made in Courts Ecclesiasticall by the Writs which we here dispute of are to be vnderstood of such of them onely as concerne debts or chattels sauing that in causes Testamentary and Matrimoniall onely they may be there made and acknowledged albeit they concerne debts and chattels It may also appeare euidently that the Recognitions forbidden to be made in Courts Ecclesiasticall in any cause sauing of Testament or Matrimony ought to be vnderstoode of Recognitions and othes about debts and chattels For lightly in euery place where these two matters of Testament and matrimony are spoken of there also debts and chattels are spoken of to this effect that in these two cases Pleas of debts and chattels may be handled in Courts Ecclesiasticall but in none other Bracton who wrote before this Writte was framed saith 1 Bracton lib. 5. cap. 2. thus Si Clericus petat versus Clericum vel Laicum debitum quod non sit de Testamento vel Matrimonio sequi debet forum Laicale And 1 Ibidem againe a litle after Non pertinet ad regem cognoscere de catallis quae sunt de Testamento vel Matrimonio Likewise in a precedent of a prohibition he 2 Ibidem lib. 5. cap. 3. cap. 10. 13. vseth this addition Nec teneatis placitum in curia Christianitatis de catallis vel debitis quae non sunt ex Testamento vel Matrimonio In the 3 Prohib Consul nu 3. 7. booke of Entrees the like is often found as Attachiatus fuit ad respondendum tam Domino regiquàm N. de placito quare secutus est placitum versus eum in curiae Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And in a 4 Consultat 2. copie of Consultation there callidè machinans impedire suggerénsque in Cancellaria nostra ipsum tractum fuisse in placitum coram vobis in curia Christianitatis de catall●…s debitis quae non erant de Testamento vel Matrimonio c. Yea and in 5 Register Ibidem tit Prohibitiones the Register it is set downe more plaine a great deale in a copie at large of a Prohibition vpon the same point and with the same causes excepted being the next following to that which wee principally doe here treate of For the very worde of Recognitio before an Ordinary is there vsed and applied to a debt or contract touching goods and chattels Cum recognitiones debitorum quae non sunt de Testamento vel Matrimonio ad nos coronam dignitatem nostram non ad alios pertineant in regno nostro executiones earundem per nos ministros nostros non per alios fieri debeant ac iam ex querela I. acceperimus quod vos ipsum I. ad viginte solidos quos coram vobis nuper in curia Christianitatis recognouit se debere A. eidem A. soluendos intra certum tempus iam praeteritum monuistis in ipsum I. pro eo quod praedictos viginti solidos intra tempus praedictum ad monitionem vestram soluere recusauit quanquam huiusmodi recognitio Testamentum vel Matrimonium non tangat c. excommunicationis sententiam fulminastis c. vobis prohibemus c. And the very like words to the same effect and with like exceptions are there vsed in the fiue precedents of Prohibitions next in order following And in the olde written Register afore spoken of there be many copies of Prohibitions set downe in all which whensoeuer that exception of causes Testamentary and Matrimonial is mentioned that clause de catallis debitis quae non sunt de testam c commeth in with all In the printed Register among the Writs Iudicial we haue these 1 Regist. in Br. Iudic. fol. 38. a. words Quare secuti sunt placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And againe 2 Ibid. fol. 39. a.