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
iudgement be reasonable and iust Furthermore what doth this particular recrimination hinder the conueniencie of proceeding by office For doth that course of proceeding teach or require that men be punished without any matter proued Therefore if this should happen so to be yet is it onely the personall fault of the men and not of Law which establisheth proceeding ex Officio For though an Accuser should prosecute yet the Iudges if they were so vngodly minded might de facto offer this vniustice Yet this ought not to be any cause to condemne all proceeding by Accusation to be vnreasonable or vnequall But this is so farre from any tolerable answere vnto those obiections that it is in trueth nothing else then a very vntrue and â—…anderous imputation that will not nay cannot be iustified What Ministers depriued yea put in danger of losse of life or goods without any matter proued I cannot coÌ„iecture what further meaning herein he may haue otherwise then to slander except perhaps he thinke the Notorious wilfull contumacie of those that refused sundry times vpon their oathes to answere Articles obiected on her Maiesties behalfe for matters of their owne facts or within their knowledges and not touching either their liues or limmes so farre as by Lawe they were bound not to be a matter sufficiently appearing and proued to the Iudges whereas such their contumacie and contempt euidently appeared to the honourable persons Iudges and other sage prudent and learned men not onely to be most vntolerable but was iudged by them to tende also vnto the vtter ouerthrow of the whole fundamentall iustice of this Realme if it should be suffered I do read in deed 1 Inter epist. Caluini in folio pag. 421. 422. that the Ministers of Geneua do in a letter of their owne written to the Ministers of Berne against one Cumperell a Minister also of Geneua testifie no lesse of the Eldership there then here is traduced For because Cumperell 2 Two meanes to occasion Enquirie and examination of Office euen at Geneua did not answere directly as they thought before the Consistory or Eldership vnto their Interrogatories by them of meere Office ministred vnto him whereof two concerned his thoughts and the very cogitations of his heart so that they helde him thereupon as conuicted and for that there were vehementia indicia great presumptions with a common fame that he being ordeined Minister for a parish in their territorie called Drallian had neuerthelesse vnder hand sought to place himselfe in the territorie of Berne for this was his heinous fault whereof they then enquired Therefore the Consistorie pronounced Quòd erant iustae causae cur Ministerio abdicaretur that they were iust causes to depose him from his Ministerie So that albeit we haue no such Lawe or practise in England thanks be to God whatsoeuer the Note-gatherer saith to condemne a man without any matter proued yet some other Churches whom he his Consorts doe more admire then their owne thinke they haue warrant ynough euen vpon a fame and some tokens to depose a minister when they shal find that course meete to be vsed Another reason in that behalfe is alledged by Sir Th. More that the Lords of the Counsel vpon secret information call men of Office without any prosecutor vnto examination of matters criminall To which the Notegatherer answereth thus viz. that this is in matters concerning the state of the Prince and of the Realme in matters of allegeance and that a Iesuite or Seminarie priest may be examined by othe quia ipso facto a traitour First all the matters that their Lordships doe or may examine are not of such hie qualitie And if they were it is not the importance or hemousnes of the matter that can make Iustice of that which is Iniustice in it selfe as was touched by me afore And so be also sundry matters dealt with in some Courts Ecclesiasticall neerely touching the state of the Prince and Realme Besides it is a very strange allegation to say The Iesuits or Seminarie Priests may be examined by othe quia ipso facto traitours As if all or any traitours might be examined by othe of their treasons considering that to examine the partie by othe of matters touching losse of his life or limmes is flat contrary to the Lawes policie and custome of this Realme in both sorts of Courts yea and perhaps contrarie to diuinitie too as the Treatisoure his owne Camerade though fighting in the selfe same quarrell and following the same Coloures can and doth tell him That which hath bene said to these two last obiections may also serue to retoyne vnto his replie made against the obiection that the like course is vsed by Martiall Lawe But if this proceeding of office by Speciall enquirie be so reasonable and oftentimes necessarie how commeth it to passe may some man aske that the names of Inquisition and Inquisitours be holden so odious Admit those names be odious vnto many yet this without further reason may not serue to coÌ„demne y e course it selfe For many sorts of men be also odious perhaps without any iust desert or particular abuse in themselues other then for their office sake who are not therefore wholly to be reiected as Informers of concealments of poenal statutes Takers Purueyers Bailifes errand yea and some administers of Iustice too if they be any thing exact seuere therein Neither is this odiousnes generall against all Inquisition whatsoeuer but only against one particular course of proceeding thereby in the crime of heresie practised in some Popish dominions but of al other most rigorously and cruelly in Spaine yea as is supposed farre beyond their owne Commission that they haue from the Pope and yet their Commission is also in many points exorbitant from all Lawe and reason A writer in the Ciuil Law assigneth a speciall cause of the hatefulnes vnto the CoÌ„mon people of the Spanish Inquisition for matters of heresie 1 Albericus de Rosate in rub C. de haeret nu 6. Inquisitors of heresie saith he are hatefull and suspected of all Lay-men because of a long time it hath bene beleeued that they are wont to proceede vpon most light suspicions especially against those that be riche Nay in deede how can it be otherwise seeing their dealing by that Inquisition is especially against men of greatest wealth because vpon their condemnation their goods and lands are confiscated to the house of Inquisition that is to the Inquisitours themselues Now seeing none of these strange courses be vsed in any Criminall proceeding in this Realme there is therefore no iust cause here to make it hateful vnto any Yet the Treatiser doth imagine this kind of proceeding to be more frequent in Courts ecclesiastical within this Realme in respect of the Iudges owne fees thereby arising For answere whereof First in Courts of Commission Ecclesiasticall against which some haue the greatest edge and egernesse the Commissioners haue no fees at all no
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.
yet do without iudgement lawful proceeding to take away any mans libertie life countrey goods or lands And it was at such time when the kings themselues thought that Iurisdiction ecclesiasticall was not in right no more then it was in fact at that time belonging to the crowne therefore in that it is here sayd Wee will not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land it is manifest that the wordes haue no relation to Iurisdiction ecclesiasticall for that which was done by that Iurisdiction was not at that time taken to be done by the King or by his authoritie and the lawes that ecclesiasticall Iudges practised were not then holden to be the Lawes of the Land or the Kings lawes as since the lawfull restitution of the ancient right in that behalfe to the crowne they be often called The 2 1. Eliz. cap. 2. pass alibi Kings or the Queenes ecclesiasticall lawes In the Preamble 1 25. H. 8. ca. 21. of a statute made in king Henrie the eights time it is to this effect said that the people of this Realme haue bound themselues by long vse and custome to the obseruance of certeine mans lawes besides those which were ordeined in this Realme not as to the obseruance of the lawes of any forren Prince Potentate or Prelate but as to the accustomed ancient lawes of this Realme originally established as lawes of the same by the sufferance of Kings and by consent and custome of the people and none otherwise And a litle after mention is there made of such lawes humane induced into this Realme by the said sufferance consents and custome This is brought to prooue that the Parliament or such as it shall authorize may dispense with those and with all other humane lawes of this Realme for so they be termed Whereupon in the body of the statute ensued that authoritie which the Archbishops of Canturburie haue of granting faculties c. And therefore the humane lawes spoken of in the Preamble are those Canon lawes which by such sufferance vse and custome are now as the accustomed and ancient lawes of this Realme originally established as lawes of the same howbeit by the meanes aforesaid but induced into the Realme and not here at first made nor ordeined There is 2 5. Eliz. cap. 25. another statute also made in her Maiesties time in the Preamble whereof they be called the Ecclesiasticall lawes of this Realme So that when whole Parliaments do aduow them to be lawes of the Realme yea that for proofe of another point perhaps doutfull we may then well make but light account of all the Treatisers exclamations to the contrary who calleth thē strange lawes and forren lawes c so long as we meane but of such Canons as haue bene of long time vsed and be 3 25. H. 8. ca. 19. not to the dammage or hurt of the Queenes Maiesties prerogatiue royall nor contrariant or repugnant to the lawes statutes and customes of the Realme Furthermore it is well and notoriously knowen that proceedings and condemnations Ecclesiasticall in ordinarie Courts were neuer made by the iudgement of a mans peeres viz. by a Iurie and therefore those words rehearsed can not be so farre extended as to include that iurisdiction Yet as institution vnto a benefice both before after Magna charta belonged alwayes to ecclesiasticall persons and iurisdiction so did also the destitution or depriuation from a benefice by the Common law in which respect Bishops that claime not the patronage do alwayes plead to a Quare impedit thus Nihil clamat praeter institutionem destitutionem Clericorum vt Ordinarius in dictarectoria de A. c. whereby may appeare that a man might by law be put out of his benefice being his freeholde otherwise then according to the forme of that statute And this by the way may also shew how vnsound a collection the Note-gatherer maketh out of those words of Magna Charta where because a benefice is a freeholde he would inferre that a Clerke may not be depriued of his benefice but by a iudgement at the Common law I haue also proued in the chapter next afore and in the eight and the twelft chapters that an Ordinarie in his dioecesse euen at the Common law might condemne a man for heresie whereupon after committing to the secular power such an heretike was put to death by burning but this was not done by any iudgement of his peeres and therfore those words of Magna Charta are no way to be construed of any iurisdiction ecclesiasticall Furthermore besides iudgement of a mans peeres there is added or by the law of the land which permitteth other triall then by Peeres as by battell c. Now seeing all iurisdiction and authoritie in this Realme aswell ecclesiasticall as temporall was euer in right but now is also iustly acknowledged and is infact vnited and incorporated vnto the crowne of this Realme therefore inquire whether vpon the premises it may not be probably said albeit not according to the vsuall speech that a iudgement duely giuen by the iurisdiction ecclesiasticall is giuen by the law of the land But this cloud or rather mist which they would cast is also plainely dispersed by the first chapter in Magna Charta for thereby is made a flat distinction and seuerance betwixt the grant there made to God with confirmation of the Church of Englands freedome rights and liberties for euermore from those grants that are after made to other the freemen of the whole Realme in the rest of that charter so that the iurisdiction of the Church can not be intended to be meant in any of all the rest except it be particularly expressed Yet if those words were admitted to be meant and stretched foorth vnto that iurisdiction also will not statutes made by the like authoritie of Parliament sufficiently qualifie or impeach thē Vnto this head is that obiection of the Note-gatherer to be referred where he allegeth out of the diary acts of the Clerke of the Parliament I know not how truly 1 4. H. 4. art 29. that the Commons exhibited a petition that Lollards arrested by the statute of 2. H. 4. should be bailed and that none should arrest but the shiriffe or other lawfull officers Buthe doth fully answere himselfe therein for the kings answere was saith he that Leroys ' aduisera which is the forme of dissent that the Kings and souereigne Queenes of this Realme do vse when they dissent or deny any statute or petition in Parliament offered vnto them to be confirmed for a law Whereby we see that arrests attaching for crimesmight be made without enditement precedent and by others then the shiriffe and also that albeit Magna Charta had bene to the contrary yet an act of Parliament comming after might change that law Wherofifneed were I could shew sundry other examples notwithstanding that which the
Treatiser putteth vs in minde of viz. that in K. H. 3. time there was a iust sentence of curse and anathematization denounced by the Bishops against the violaters orbreakers of the said great Charter But what if Bishops should vse the like authority now to excommunicate indefinitely and aforehand all such as shall hereafter breake some temporall law it is to be doubted that the Treatiser would not in this case be the same man nor yet affirme it to be a iust sentence but would rather threaten them with a Praemunire for their kindnesse It is assured that par in parem non habet imperium and none authority can so binde it selfe by any law but that vpon good occasion and by like power it may be abrogated againe Yet how litle this plea of ours is needfull in this case is sufficiently shewed Yea rather the defenders of these such like opinions against the rights and liberties of the Church of England notoriously knowen so to be by the reported lawes customes thereof to them that know any thing in either had need more iustly to feare that censure of the Bishops if it be so iust if so be they cary any feare at all or reuerence vnto the censures of the Church which be so iustly inflicted as themselues do yeeld As these opinions do onely reach and shoot at the commission ecclesiasticall to impound and streine the authority thereof vnto so narrow a roome as that her Maiestie should thereby haue no seruice done by those her subiects which are imployed therein wherby the fansies of the fauorites of these men might more freely growe without discouery or any such penal◅ie as they thinke they need care for so for the iust defence herein of that commission I may allege the words of the same statute whereby it is established 1 1. Eliz. cap. 1. viz. They shall haue full power and authoritie by vertue of this act and of the said letters patents vnder your highnesse your heires or successors to exercise vse and execute all the premisses according to the tenour and effect of the said letters patents any matter or cause to the contrary in any wise notwithstanding By which words tenor literarum is signified whatsoeuer tenent in se viz. that which is expresly conteined in them by the effect of them is vnderstood whatsoeuer is within the true and vnforced meaning of any such letters patents So that if attachment fine imprisonment c. be either in the letters patents expresly conteined as in trueth they be or vndoubtedly meant by them then the vse and excercise of these shall thereby sufficiently be warranted and authorized vnto her Maiesty for granting and to the commissioners for so executing And if any doubt otherwise might be made yet there be two clauses in the words aforesaid that be called verba siue clausulae operatinae and do therefore supply many defects and wants in the exercise of a iurisdiction delegated by the Princes rescript The first of them are those words Full power authoritie and the other is the generall non obstante in transcendenti viz. of any matter or cause whatsoeuer But to all this is answered by some that these words viz. according to the tenour and effect of the said letters patents do worke thus much that her Maiestie need not grant all but so much iurisdiction as her Highnesse thinketh meet and that so many or few of them so they be two atleast may thereby be authorized vnder her Maiestie to exercise such iurisdiction It is true that those words so worke and import so much but doeth it heereof follow that nothing else is meant or can be comprehended thereby Nothing say they for other processe then citation or other censures or punishment then excommunication c. her Maiestie can not commit vnto them else might she also giue them authoritie to hang men What is there no more difference with these men betwixt attaching fining or imprisoning and plaine hanging What will they then say of the Starre Chamber which may impose all those three and yet cannot put any man to losse of limme or of life and this is great reason For we are taught by the Ciuill lawe and I thinke it is agreeable also to the lawes of the land that wheresoeuer an authoritie is giuen in neuer so generall or pregnant wordes it cannot be drawen foorth to reach vnto any mutilation of limme or paines capitall except they be plainely expressed Other some as the Treatisour doeth answere this obiection in this sort but yet to the ende of prouing othes of the parties in causes criminall to be vnlawfull a matter to be handled in the thirde part viz. that how general soeuer the words of the acte be in one place yet are they to be restrained to this particular viz. none other then such iurisdiction ecclesiasticall as may be lawfully vsed and entending per petitionem principij that such oathes be contrary to law But in this his interpretation he saith he contrarieth diuerse great learned men in that lawe whom it behoueth with a more narrowe eye to beholde this statute lawe Truely halfe an eye of a meane learned man will serue to discouer that he cautelously leaueth out one member of the disiunctiue alternation which is in that statute For it is thus viz. all Iurisdictions c. whatsoeuer by any Spirituall or Ecclesiasticall power or authoritie hath heretofore bene or may lawfully be exercised c. So that if either it haue bene exercised at any time or hauing not bene put in exercise yet lawfully may be it is here graunted to her Maiestie And were it in deede meete either in temporall or spiritual Iurisdictiō to leaue it to the dispute determinatiō of euery priuate subiect that is dealt with what may be lawfully and what may not so be done in either lawe The Treatisour nor any other cannot in answere hereof say that the worde lawfully must also be vnderstood as repeated in the first member First because it is a disiunctiue proposition and therefore that word should haue bin expressed in the first part if it had bin to be drawen vnto both and not to haue bin put in the second part onely Secondly for that it would then take away from her Maiestie all such ecclesiasticall authoritie being most lawfully in her Highnesse as was heretofore exercised by or vnder the Pope by vsurpation and therefore most vnlawfully Neuerthelesse the matters graunted and exercised by the commission which are by him chalenged I trust God willing shall be also otherwise prooued lawfull and warrantable Against imprisoning by vertue of the commission one of the speciall matters nowe in handling the said Treatisour obiecteth that such parties as refuse to sweare to answere the articles exhibited against them are imprisoned without baile or maineprise whereas by the lawe ecclesiasticall they ought not to be imprisoned but to be proceeded against as pro confessis It is true that by Ordinary authoritie
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
robbed yet if there be likelyhood to the contrary the partie is not beleeued but the Iudge proceedeth ex Officio quia interest Reipub. puniri furtum Touching the penaltie due vpon such proceeding some writers holde that 7 D D. in c. qualiter el. 2. de accus the ordinarie paine appointed by Lawe is not to be inflicted vpon proceeding of Office But they also make these exceptions viz. that this doth not holde 8 Innoc in d. ca. where the Crime is notorious nor 9 Card. Alexand in c. de accusat col 39. where the defendant vpon the enquirie confesseth the Crime nor by the 10 Plerique omnes D D. course of the Ciuill Lawe For in these cases they affirme that the very ordinarie paine expressed in the Law may be imposed But it is assured 11 Clarus lib. 5. § fin qu. 49. that by Custome at both these Lawes not onely a milder paine but the very set paine of Lawe it selfe may be inflicted euen when a Iudge hath proceeded of Office But here some may obiect that those Lawes do seeme sometimes to require an Accuser It is true but neither alwayes nor of necessitie as hath bene opened And it is shewed afore that publike interest stands in steede of an Accuser Likewise the 1 c. qualiter quando cl 2. de accusat Lawe accounteth fame precedent to be a kinde of Accuser And where fame wanteth other 2 Bartol in l. congruit ff de Off. praesidis presumptions and Indicia or euidences are in this behalfe equiualent vnto a fame It may further perhaps be vrged that by Ciuill lawe this Enquirie ex officio is counted an extraordinarie remedie If it were so admitted to be what would this auaile those that oppugne it simply for the rule is Vbi cessat remedium Ordinarium ibi decurritur ad extraordinarium And it is not holden nor is otherwise likely if a partie will seriously and with effect prosecute but that the Ordinarie Iudge will cease further to deale therein ex officio yet it is a little afore signified that by reason of such generall custome this Enquirie ex officio is become euen by the Ciuill Lawe to be an Ordinarie remedie And besides that custome wheresoeuer 3 Specul Marran de Inquisit nu 39. Enquirie of office is specially permitted either by Lawe as in many cases or by statute there it is as ordinarie a remedie as Accusation And by the 4 Ibid. nu 48. Canon Lawe it is absolutely an ordinarie remedie I haue also heard it to haue bene obiected against this course that bad and infamous persons suggestions haue bene accepted If it be so it is but the fault of persons not of the Lawe And if by an Appellation from any ordinarie Court this point come to hammering it wil not be found absolutely iustifiable yet experience teacheth that not onely Relatours that be infamous and bad persons be in some cases admitted by the Lawes of this Realme but which is more they are permitted also to be witnesses As both infamous persons and those that be partakers with the appeached in treasons murders and felonies which is permitted in fauour of the Prince and common wealth in detestation of such grieuous crimes and for the very nature of the crimes which are for the most part so perfourmed as none honest persons but such as themselues are or can be priuie vnto them Vpon the same grounds the Ciuil Law also admitteth the like witnesses Therefore is it testified to be 4 Decius consilio 342. nu 8. the common opinion of writers in that Law that for the horriblenes of some crimes witnesses otherwise disabled in Law may be receiued as in here sie and in Treason Also when the trueth of the matter cannot otherwise bee had therefore the rule is that when the facte is of such qualitie that other witnesses cannot by any possibilitie be had in such case those shal be admitted that are in other cases forbidden by lawe Therefore none of these nor any such like friuolous obiections will be able to ouerthrowe this course so manifoldly grounded both vpon those former seuerall lawes and also vpon reason CHAP. XIIII An answere to such obiections as vpon the Ciuill or Canon lawes are brought against all proceeding of Office in causes Criminall by the Treatisour and the Note-gatherer AGainst all that is or may be brought out of those two lawes for confirmation hereof the Treatisour rather exclaimeth then obiecteth that they are strange lawes strange and forreigne proceedings and I knowe not against what pretended strange courses he bitterly inueieth as if nothing that is vsed els-where in the world could sauour of Iustice besides our owne or might be receiued amongst vs howe apt or beneficiall soeuer it be otherwise Neuerthelesse we finde in the bookes of termes and yeeres many things reported out of the Ciuill and Canon lawes yea many rules taken out of them which are there both alledged and allowed of That sage and prudent Senate with the whole people of Rome when of twelue Tables which conteined the ground of all their lawes tenne of them were transcribed taken out of the lawes of sundry common weales then in Greece they neither helde it any disparage to their owne Nation nor in that respect accounted them the lesse to be Romane lawes Though it were graunted that the proceeding of office in Courtes Ciuil and Ecclesiasticall with vs was drawen at first from those two lawes yet the same or like proceeding which is vsed in sundry temporall Courtes here perhaps will not be iudged to haue bin taken and borrowed from those two lawes but rather to haue bin the very olde originall custome and Common lawe of the land Which consideration if it be true must needes in mine opinion make much for the approuing of the reasonablenesse and equitie of that proceeding when as seuerall nations by one instinct of the light of reason haue so long iumped hitte vpō one the same course without borrowing it the one of the other But frō whencesoeuer any of these courtes in this lād haue borrowed their proceeding of office seeing temporall Courts of the Realme haue practice of the like course those lawes do allow it also vnto Courtes ecclesiastical according to the vse euen of so many hundreths of yeeres as this Nation hath bin Christian therefore these 1 Vide preamb. stat 25. H. 8. c. 21. proceedings ought not now at length to be accounted either forreine or strange from our policy but rather as our owne homebred English lawes and her Maiesties lawes ecclesiastical as they be often termed in actes of Parliament It is true which is said out of the Ciuil law Ea nostra facimus quibus auctoritatem 2 l. 1. C. de Vet. iure emendando nostram impartimur Those things we make ours vpon which we bestowe our authoritie whether expresly or by implication vpon long continuance of
statuti anno 5. Reginae nunc and it was doubted if the defendant would pleade not guiltie whether he should be sworne to his Plea and also to answere to Interrogatories as is vsed in the Starre-chamber And it was resolued by the opinion of Catline Dyer Saunders and Whiddon that hee should not be examined nor sworne vpon Interrogatories except the court of Chancerie had absolute authoritie and had vsed to examine periuries in that court before the Statute for then this is still reserued by the last Prouiso of the Statute as it is also for the Starre-chamber Otherwise if the court of Chancerie will examine periurie committed there as it may by Statute this must be by Latin Bill and bee pleaded in Latin and issue must be ioyned there to be tryed in the Kings Bench as in like cases is wont In this whole report as there is nothing that tendeth to the absolute impugnation of oathes in some causes criminall so is there not any point which we doe not willingly embrace and like of For the Chancerie being a court by the institution whereof to handle by Bill and answere in English no crimes but ciuilly laide and not criminally mooued to the intents of any punishment vnto which Bill the defendants must answere vpon their oathes therefore it is no marueile when by Statute any new authoritie is giuen therunto as in this case that then the course of the common lawe should be folowed except such Statute do otherwise determine But hereupon might well be gathered that defendants oathes to English Billes there alwayes vsed albeit criminall matters touching their shame and dishonestie be diduced and in other courts thereunto authorized the continuall vse of such oathes euen for crimes criminally mooued are no way against the Lawe of the land For we see that it is here yeelded to be lawfull in case the Chancerie had vsed such course afore Also that it is vsuall and lawfull in the Starre-chamber and that these Iudges opinions reach no further but that the partie accused of periurie should not be examined by oath vpon Interrogatories in the Chancerie for answering of Interrogatories vpon oath is not vsed there no not when the crime is but ciuilly prosecuted except the other partie will be contented to be wholy concluded by his aduersaries answeres that shall be so made to his Interrogatories Another case at the common lawe is alleaged by the 1 Notes tit the lawes of EnglaÌ„d Notegatherer thus It appeareth sayth he by the Lord Dyers booke that one Hinde being called before the Commissioners Ecclesiasticall for vsurie refused to sweare whereupon he was committed but vpon an Information in the common Pleas he had a Corpus cum causa to remoue him so as it seemeth that the Iudges were then of opinion that the Commissioners could not then giue them any such oath hereof he giues vs not any direction to finde out the particular place of this report All that I can to any such effect hit vpon is onely this marginall note viz. Simile M. 18. fol. per Hynde qui noluit iurare coram Iusticiarijs ecclesiasticis super articulos pro vsura so that if this be the place being but a Marginall note it can not necessarily be fathered as a Report of the Lord Dyers the rather because it is not likely that he would terme ecclesiastical Commissioners by the name of Iusticiarij ecclesiastici for the perfitnes thereof it might seeme rather to bee some note of the Notegatherers owne then any of Iudge Dyers gathering Secondly here is no mention of Hindes commitment nor of corpus cum causa nor that the sayd writ vpon information was graunted out of that court of common Pleas so that these bee but the Notegatherers owne surmises and gesses Thirdly before it might bee inferred thereof that the Iustices then were of opinion that Commissioners Ecclesiasticall might not giue any oathe in a matter of vsurie and so by like reason as hâ—…e gathereth in none other criminall cause this case in the Margent must first bee made like vnto that case which is in the text it selfe Nowe that conteineth no more but that one Skrogges appearing before certaine speciall Commissioners by 〈◊〉 Maiestie appoynted to heare and determine the validitie of two seuerall Patents of an Office the one graunted to the sayd Skrogges and the other to Coleshill and refusing to make any other answere then a demurre vpon the Bill and to the Iurisdiction graunted them by that Commission and being committed to the Fleete for such contempt by the sayd Commissioners was neuerthelesse by a Corpus cum causa out of the common Pleas remooued from prison because he was a person belonging to that court and a necessarie member thereof But where doeth it appeare that this Hinde was likewise a member of that court Or howe can these be like cases when as in Skrogges cause none oath was vrged neither was the Plea betwixt him and Coleshill criminall as this was betwixt the office of the Commissioners and Hinde Or where may Hindes case at large be found in Michaelmas Terme 18. Eliz. seeing no such matter is in the L. Dyers reports of that yeere Or howe can it be made to appeare that the Commission Ecclesiasticall was then perused the Statute whereon it is grounded considered of the whole matter argued and debated any such opinions yeelded or yet that Hinde was not by the court sent backe againe to prison though it were admitted he had once such writ as many other in like cases before and since that time haue bene for all the similitude which that Note mentioneth might rest in this one onely point viz. that as the one being committed for contempt by vertue of the Queenes speciall Commission had notwithstanding his writ of Corpus cum causa so the other had it likewise graunted But there might also be in the eighteenth yeere of her Maiestie other good cause to deliuer Hinde clearely out of prison being called before the Commissioners into question for vsurie if it were not aboue tenne in the hundred and yet oathes in any criminall cause besides ministred by Commissioners Ecclesiasticall shall be no whit thereby impeached or preiudiced because afore that viz. in the thirteenth yeere of the Reigne of her Maiestie a 1 〈◊〉 Eliz. ca. 8. Statute was made forbidding any punishment then that which is conteined in that Acte to bee inflicted by lawes Ecclesiasticall vpon vsurers so their vsurie amount not aboue the rate of ten in the hundred for one yeere therefore it might well haue bene that Hinde was so deliuered from his commitment not in respect of any vnlawfulnes by the Iudges deemed to be in such oath but for that y e conysance punishment of his crime by reason of that Statute belonged not then and in that case to an Ecclesiasticall Court This point the Treatisour further enforceth also by the formes of a peece of a precedent of a prohibition and another of Attachment thereupon
layde downe in the printed Register especially by these wordes of them Recognitiones sacramenta provoluntate sua ipsis inuitis For full answere whereof to auoyde vnnecessarie length and vaine repetition I must referre the Reader ouer vnto the xj and xij Chapters in the first parte of this Apologie He affirmeth also that the practisers of such oathes are for that cause in a Pramunire and therefore gathereth the oathe to be contrary and repugnant to the common lawe I graunt the consequence to be good and sound but how doth hee prooue them to be thereupon in a Praemunire For proofe of this he assumeth that this manner of oathe is contrary to the Queenes regalitie and crowne as if his reasons afore brought had sufficiently euinced so much which wee doe vtterly and resolutely deny vnto him And yet as if he had fully cleared that point he addresseth himselfe to prooue that whereof there was lesse controuersie viz. that what is done by a Bishop or by an Ecclesiasticall Court against the Kings regalitie and crowne hath beene heretofore adiudged to be within the compasse of this worde Alibi contained in the Statute of Praemuuire 16. Ric. 2. For this he alledgeth two books of the common law yet 1 5. Ed. 4. sol 6. Praemunire the first of them doth but speake of an excommunication by a Bishop not of euery dealing whatsoeuer in a matter belonging to the Kings regalitie And what if it had beene twise so adiudged both of them in such corrupt times when as the royall prerogatiue of the Kings of this land to be Supreme Gouernours in all Iurisdiction Ecclesiasticall due to them in right and by Gods Lawe was not de facto vnited to the crowne For the Bishops then did not claime their Iurisdictions Ecclesiasticall next and immediately vnder God from the Crowne as now they doe But seeing this parte of Regall power is nowe no lesse truely and fully vested in the crowne then is the Temporall so as the Lawes allowed for the gouernement Ecclesiasticall are termed by sundry Parliaments The Queenes Ecclesiastical lawes and Lawes of the Realme as well as those which were first and originally made heere And the Bishops are proued to haue their authoritie and Iurisdiction Ecclesiasticall deriued downe vnto them from the Queenes Highnes vnder the great Seale of England as vpon fundrie incident occasions hath beene shewed afore Is it then the like reason still to comprise their Iurisdictions and Courts vnder that word of Alibi as if their Courts and Iurisdictions were not nowe the Queenes nor yet belonging vnto her Regalitie Nay let such as shall so affirme beware they incurre not hereby the danger of implied if not direct denyall of a part of her Highnesse Royall stile and the breach also of their oathes taken for assistance and defence of all Prerogatiues c. vnited or belonging to this Imperiall crowne Yea and though this might be truely verified of ordinarie Courts Ecclesiasticall yet is there no colour at all so to affirme of the Commission Ecclesiasticall exercised vnder the great Seale of England by force of the same Statute that restores the Supremacie Ecclesiasticall to the Crowne I omit here what is touched else where viz. howe by sundry learned it hath bene thought that by Alibi there was encluded or meant nothing els but matters of that quality there specified which were enterprised by and vnder the Papall authoritie though the Pope perhaps resided not then at Rome it selfe Therefore seeing this is not pregnant ynough for him to driue this matter neerer home to his purpose hee sayeth it is against the Kings Regalitie and so a Praemunire for an Ecclesiasticall Court to holde plea of a matter appertaining to the Iudgement of a Common Lawe Court or to deale in any cause not belonging to Ecclesiasticall Iurisdiction The first of these he prooueth by the pardon sued by Barlow Bishop of Bathe and Welles in king Ed. 6. his time by reason hee had depriued the Deane there being a meere donatiue of the Kings If there were but any probable doubt whether thereby hee were fallen into a Praemunire it was wisedome for him to procure a pardon afore hand if he could Alealitis resincertissima yet depriuing of one placed by the King is much more then bare holding of some plea that appertaineth to a temporall Court besides that there was a further matter in it then I last here to open The other allegation of his to like ende taken from a 1 38. Ed. 3. of Prouisours Statute doth make no shew of proofe thereof for it is but thus viz. the King chiefly desireth to susteine his people in tranquilitie and peace and to gouerne according to the Lawes Usages and Franchises of his land as hee is bound by his oathe made at his coronation And are not Ecclesiasticall persons nowe parte of the Queenes people Are not the Liberties and Franchises that bee giuen and confirmed vnto them by the goodnesse of Princes for holding plea in certaine matters the vsages of this Realme Are not the receiued Lawes which lawfully they may practise termed Ecclesiasticall Lawes of this Realme no lesse then temporall be And is not the Prerogatiue royall in and for causes Ecclesiasticall as high and as rightfully setled in the Prince and incident to her Highnesse Crowne and Regalitie as the same is for temporall power and authoritie What cause is there then seeing seu Alibi in the Statute signifieth in true construction anie place whatsoeuer besides Rome that euery holding plea by an Ecclesiasticall Court of a matter wherein it ought not to holde shoulde at this time bee reckoned a thing contrarie to the Queeenes Regalitie more then dealing in an Ecclesiasticall cause shoulde bee in anie temporall Court at Westminster For no Statute of Prouision or Praemunire assigneth these for causes which haue indeede but growen since by collections whiles the Popes vsurpation was continued in this land against which oftentimes the remedie by Prohibition coulde not serue the turne I graunt it is a contempt or great misprision in any but for this a Prohibition and attachment thereupon c. as afore those Statutes they did might sufficiently serue the turne Neuerthelesse all these matters are wholly impertinent to his purpose till he shall haue prooued the particular issue viz. that such oathe as wee treate of is against the Queenes Regalitie c. But if that might be prooued then vpon so generall interpretation of Alibi these oathes would fall into the case of Praemunire by what Court soeuer whether temporall or Ecclesiasticall they should be tendered And that which he vowcheth to the same effect out of Saint Germans booke of Doctor Student receiueth the like answere In the next place I set some of the Treatisors reasons that are made by collection and discourse of reason These collections he maketh partly from examples past and partly at large therefore touching the first of these two he impugneth these oathes and would prooue
viz. that therfore they may not giue oths but as the cōmon law doth wil not any way follow thereupon because the Q. prerogatiue royall and common lawes are so farre from restraining or forbidding these oathes that as it hath beene prooued they allow them and the Temporall Courts in many like cases vse not so much as a different course from this which is in speciall controuersie Now if it shall be said which also some very learned men do hold as the Treatisour confesseth that the Statute law made the first of her Maiestie warranteth and alloweth this manner of oathe then to shew this to be as he conceiueth it absurde hee telleth vs of some other points also defended vpon the generall words of that Acte and of the Commission by the saide learned men which seeme vnto him to be also no lesse absurdities then is the ministring an oath in a cause criminall therfore the one no better warranted thereby then the other for to what other purpose then this he should bring them I cānot possibly cōiecture The first fault he findeth with such learned mens sayings is for that they iudge it to be warranted by the Act and by the Cōmission to put men to othes none accusation sute or lawful informatiō presentment or indictment iudicially preceeding or depending He may father vpon such learned men what he please but is it likely that he himself would thus obiect as if he required bils of Information Inditements as it is at the cōmon law to be vsed also in courts ecclesiastical seing both himselfe and the Note-gatherer do tie the Commission to causes only ecclesiastical and they also to be dealt in only ecclesiastically Such learned mēs sayings may wel truly be defended as namely whē either the offence is notorious or is knowen to the Iudges themselues to be dangerous scandalous to be suffered For these two cases be out of all those that hee nameth yea though he should most vniuersally take suite for any prosecution by another and information for any priuate credible suggestion or denunciation made The second errour which he assigneth to be holden by them is for that secret information may be admitted suppresso nomine notificantis and he calleth such informations secret accusations and the men malicious calumniators adding that all good lawes and well gouerned common wealths haue such hidden backbyters for apparant accusers But if all good Lawes and well gouerned common-weales do indeed hold such men for apparant accusers then doth it follow that when such Information is giuen there is no want of an apparant accusation Yet in very deede euery relation made to a Magistrate by such as will not prosecute nor perhaps bee seene in the cause for some good consideration is not by any law nor in any common weale that I know of holden for an accusation for a malitious calumniation or for any secret backbiting nor yet deseruedly by any necessitie is so to bee accounted For besides other countreys which I haue read of such priuate informations haue oftentimes their manifolde good vse euen in this Realme yea and amongs ech degree of Magistrates And if they should be 1 Vide 2. part pag. 85. wholy reiected or neglected might sometime bring an whole subuersion vnto vs all I pray were those that gaue the first information of Babingtons damnable conspiracie to be misliked as secret backbiters or was the examination of these traitors and the proceedings vniust because the names of the intelligence-giuers were to this day suppressed By this example then you may wey consider of sundry the like Howbeit such informations in ordinarie courtes Ecclesiasticall be not holden for sufficient ground of Speciall Enquirie except they be very frequent and the offence scandalous and in Commssion courtes they bee as rarely receiued as in any courts Temporall of this Realme whatsoeuer and then but from very great and credible persons The third fault he findeth with such learnedmens opinions is that the Iudge may professe himselfe to be an Accuser which lawlesse proceeding the Iustice of this land he saith detesteth for that no man may be accuser and witnes or Inditour and a Iurour therefore much lesse may the Iudge be an Accuser For answere whereof first the lawes ciuill and ecclesiasticall holde not the Iudge proceeding of office to be any accuser but that whereupon the Enquiry is grounded to represent the accusation and so there is no need for them to pleade such plea as he here surmiseth Secondly that an accuser may in some case and sort be a witnes c. is 2 Vide 2. part pag. 110. 111. elsewhere declared and so his antecedent false Thirdly his reason foloweth not for why might not a Iudge be an accuser albeit neither an accuser could be a witnesse nor the Inditour a Iurour Fourthly if it were true that the Iustice of this land and the common lawe did not vse something which an Ecclesiasticall court doeth may it thereupon bee inferred that therein is a contrarietie and thereby for such difference onely a detestation of the other course This maner of reasoning is more cōmon with him others in these causes then any way sound substantial For the one court doeth it the other doeth it not be no contraries nor yet propositions in any other degree of opposition in that subiectum propositionis in both is not the same and therefore doe import no more but a diuersity For is this which is the very like any good reason viz. an Ecclesiasticall court readeth dissinitiue sentences de scripto but a Temporall court doeth it not in giuing iudgement therefore there is contrarietie betwixt these courts so the reading de scripto in a court ecclesiastical vtterly vnlawfull Whereof I thought it not amisse once for all to aduertise the Reader because this erroneous argument is so vsuall Lastly if all these were to be graunted vnto the Treatisour euen as he setteth them down yet what would it auaile his cause For admit these collections were absurdly gathered from the generality of the words of the Act Commission would it therefore folow that authority to minister oaths to defendāts in causes criminal could not thence be argued without absurdities being wholly another point why if euery thing cannot well be inferred thereon may therefore nothing at all be Yet vpon these such like speeches rather thē reasons of his elsewhere by sundry occasions touched the Treatisour wisheth the said learned men wiselier to aduise these Cōmissioners ecclesiastical to respect the ends expressed in the statute viz. the pleasure of God increase of vertue conseruation of peace and vnitie of this Realme rather then the ample and large words of the statute and height of their Iurisdiction as if these ends could not possibly concurre with tender of such oaths But whēsoeuer he or any other learned or vnlearned haue sufficiently indeed prooued that these cannot stand together I doubt not but that the
following of their opinion it wil be said that those aboue rehearsed are knowen and manifest crimes to allmen euen by the light of nature but so are not their Disciplinarie and Synodicall Constitutions c. It is true that treason murther theft and such like 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 euen in their generall nature are condemned for crimes by all men Yet when men come ad 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the particular application of their owne factes vnto the generall crime they are then contented to flatter with their consciences and to please them selues in their owne actions and so with such and such circumstances to deny theirs to be in any like degree Doe the Iesuites thinke ye when they are conuented condemne their lewde seducing of her Maiesties subiectes as treasonable did the damnable conspirators with Babington the traytor albeit they were not ignorant what the lawes of the land did adiudge of their actions when they went about their treasons condemne themselues as traytors and not rather lewdly flatter them selues vpon some circumstances which they thought should assoyle them of all guilt afore God Therefore this opinion though it cary a colourable shewe of some greater obedience yet when the reckonning is cast vp it iumpeth in very deede with the second For it commeth to this point that euery man shal be his owne Iudge how faâ—…e he neede to obeye lawes and Magistrates that require him to deliuer his knowledge touching his owne or other mens factes so he himselfe will account them lawfully done Besides the absurdities that followe this opinion it is also in it selfe very vnreasonable For if a man may reueale his brothers or his owne sinne may he not much more his vertue If God be glorified in detecting of sinne much more in making vertues knowen If trueth must needs be vttered of sinne much more of vertue for wisedome is iustified of her children If their doings be good instifiable then to conceale the trueth is in very trueth nothing lesse then to betray and forsake the trueth And that this is but a vaine glosse deuised in trueth to couer their misdemeanours and to escape from deserued punishment may appeare by the desire they carrie by all wayes meanes to cloke their sayd actions If their workes were not of darkenesse and secrecie they would not flie the light For it is a propertie of those which doe euill to flie from the light If their doings be workes of the light let that light shine foorth before men that they may see those their goodworks and glorifie their father which is in heauen If they stand assured they haue done but well what punishmeÌ„t soeuer should light vpon them for it they should confesse their obedience and T. C. practise of the whole Gospell of Christ whereof they make their discipline a necessarie part and reioyce with the Apostles that they are found woorthie to suffer punishment for the Disciplinarian part of the Gospell But is not this strange that where the most part of this Disciplinarian humour do thinke that they ought to discouer nothing of themselues nor of their brethren that is criminall that yet these others being fewer shooting at the same markes will as they say reueale their crimes onely but nothing else no not their owne and their brethrens vertues and good deedes belike for feare least they should be counted to doe it vpon some vayne glorie Yet this opinion giueth vs this aduantage that if a man may lawfully reueale and discouer not onely his brothers but his owne crimes and offenses if they beetruely crimes then haue they no colour but they must doe it when by the Magistrate according to lawe and vpon their oath they are so commaunded That which they may lawfully doe that may the Magistrate lawfully enioyne and they without disobedience to Gods ordinance may not refuse So that for the lawfulnes of ministring an oathe to a partie in a cause verily criminall and thereby penall to himselfe being a maine and principall controuersie betwixt the State and them we haue allowance by some of their complices owne positions but yet wee cannot get their practise vnto it But more hereof in the next Chapter The fourth and last of their opinions touching such oaths seemeth to bee something better and euen perhaps Classicallie or Synodicallie digested by them Yet it caries no small contradiction in it selfe which to their most aduantage that they can possiblie haue it vnderstood I will seeke by distinction to reconcile and to make stand together These therefore may be thought generally to holde that for anything whereof witnesses may be had the partie may not bee examined vpon his oath Out of which generall they diduce this that the Iudge may not examine a Preacher vpon his oathe touching his doctrine deliuered in publike place And if he goe about it the Preacher without breach of duetie to the Magistrate may lawfully refuse to sweare But if the crime be so hidden and secret that witnesses may not be had then a man may bee charged say they by oath But this they also limite and restraine thus so it bee not to drawe matter of accusation against themselues And to this purpose they doe vse seuen reasons Albeit the same men also say that to remooue euill from the lande they will take such oathe They will c. But they tell vs not plainely whether they take themselues bound to doe it or not So that I cannot see how to make these their opinions dwell peaceably together except their meaning herein be this that for crimes which be hidden being in themselues euill that is prohibita quia mala they will be pleased to take an oathe to reueale them but things that be secrete where no witnesse can be had and be none otherwaies euill but because they be prohibited such they may and will refuse to declare by oath which if they meane in deed as it is very probable they doe then doe they runne quite contrary to the opinions of all men besides For if it might be left to most mens choise they would rather discouer of themselues and others some breaches of Statutes not directly sorbidden by Gods lawe then such their owne crimes as be forbidden and therefore conteine more turpitude in them as adulterie periurie and such like But it must be remembred that these men haue an odde grace in framing opinions of diuinitie Pro re nata euen as present occasions doe leade them And they temper not their actions oftentimes vnto their former conceiued opinions but they conceiue opinions and coyne conceites as may best stand for defense of their owne and their fauorers present actions Nowe because many of them hope to bee found cleare in their owne persons from grosse and actuall crimes so expresly forbidden by Gods lawe but not so cleare perhappes in breache of the lawes of this Realme and peace of the Church therefore is this newe opinion stamped by them to stoppe vp this