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
and so the iudgement then passed vpon this ground among others as 2 Brooke Consultation nu 5. Brooke testifieth And 3 T. 12. H. 7. fol. 22. there is a great diuersitie betwixt a duetie or summe of money or other things at the first demandable and determinable at the Common lawe and such a summe as before sentence giuen in the Spirituall lawe is not due at all For the first there lieth a Prohibition but not for the second for otherwise it would followe that the spirituall lawe might giue a iudgement which it could not put in execution but this were absurd per Reed Tremaile Fiftlie it is sayd that there lies a Prohibition when the partie sued hath an action giuen him at the Common lawe for the originall and principall matter whereupon the suite at the ecclesiasticall lawe did grow The case was thus Aman 4 T. 22. Ed. 4. fol. 20. reported that the Abbot of S. Albanes did detaine his wife in the said Abbots lodging against her will to the intent to make her his harlot the Abbot hereupon brought his action of Diffamation in the Court ecclesiasticall and the husband his prohibition nowe because the husband might haue his action of false imprisonment at the Common lawe agaynst the Abbot Brian held that a Consultation was not to be graunted de hoc quaere A prohibition ceaseth and looseth his force after a 5 Stat. de Consultat 24. Ed. 1. Consultation be once granted This may bee prooued by the Statute De Consultat for the Chanceller or chiefe Iusticer of the king vpon sight of the Libell c. if they can see no redresse by Writ c. shall write to the spiritual iudges c. to proceed notwithstanding the kings prohibition directed to them before But more plainlie after Where 6 50. Ed. 3. ca. 4. a consultation is once duely granted the Iudge may proceed in the cause notwithstanding any other prohibition thereupon to him to be deliuered so the matter in the Libell be not changed The writ of Indicauit is 7 Fitzh Natur. bâ—… tit Prohibition fol. 45. likewise a kind of Prohibition and lieth especially naturally for a suite of tithes which do amount to a fourth part or aboue of the whole benefice It lieth also for the Patrone where his Clerke is impleaded for the aduowson id est the right of Patronage in a spirituall Court the Patrone and Clerke that is sued in the court ecclesiasticall may sue it foorth both against the Ecclesiasticall Iudge and the partie that sueth there But it 1 34. Ed. 1. de coniunctim â—…fat lieth not till the Libell be brought to be viewed into the Chancerie lis 2 Fitzh ibid. etiam contestata and 3 Regist. fol. 47. it lieth onely before sentence be giuen in the Court ecclesiasticall for it is afterward voyd CHAP. XVIII An Analysis or vnfolding of the two speciall statutes touching Praemunire with sundrie questions and doubts about that matter requiring more graue resolution IN the matter of Praemunire which is a question falling often in doubt about execution of Ecclesiasticall iurisdiction wherein as in the matter of prohibition consultation you desired earnestly that I would write vnto you what I thought I cannot in any point satisfie my selfe much lesse you by reason that this matter is enwrapped in ouer many difficult doubts for me to vnfold yet I haue some thing considered of it do trust that I shal be able to point out vnto you certaine general heads whereunto most of the doubts coÌ„monly made or hapning may not vnfitly perhaps be referred that thereby tanquam Thesei filo you may be directed as opportunitie shal serue what how in this behalfe to enquire of the reuerend Iudges or of other great learned and graue men of that profession There be two statutes whereupon it is principally grounded The first is 4 27. Ed. 3. cap. 1. de Prouisor of Prouisors established in the time of king Edward the 3. the complaint and griefe there propounded was that the kings people were drawen out of the Realme to answere vnto things whereof the Conisance pertaineth to the kings Court and that iudgements there giuen were impeached in another court The mischiefes then noted thereupon were the preiudice and disherison of the king and of his crowne and of all the people of the Realme and the vndoing and destruction of the Common lawe of the Realme The remedie there giuen for these mischieues was that if any of what condition soeuer being of the kings liegeance should drawe any out of the realme in plea whereof the Conusance pertaineth to the kings court or of things whereof iudgements be giuen in the kings court or which do sue in another court to defeate or impeach the iudgements giuen in the kings court should haue day c. as is there more largelie by the sanction contriued The other statute is 1 16. R. 〈◊〉 cap. 5. of the time of king Richard the 2. there is shewed and laied foorth that the Conisance of plee of Presentments to Benefices belongeth onely to the kings court by the old right of his crowne and that Archbishops Bishops and other spirituall persons hauing the instituting vnto such Benefices within their iurisdictions be bound and haue made execution of such iudgements by kings commandements without interruption and that also they bee bound of right to make execution of many other of the kings commandements but it is there complained that processes and censures of excommunication vpon certaine Bishops of England were made by the Bishop of Rome because the sayd Bishops haue made execution of such commandements and that hee purposed to translate some Prelats out of the realme some froÌ„ one bishoprike to another within the Realme without the Kings knowledge and without their assent that so should be translated There are assigned also for mischiefes hereupon growing the open disherison of the crowne the destruction of the king of his lawe and realme and that these things are against the kings crowne and regalie that they defeate and destroy the statutes that they tend to make the realme submitted to the Bishop of Rome and the lawes and statutes of it by him to be defeated and destroied at his will that they drawe out of the realme against the kings will the sayd Prelates his liege persons of his councell that be much profitable and necessarie to the king and to all his realme and that these deuises will be are away the treasure of the Realme for remedie whereof it is prouided what shall not bee done viz. that none shall purchase or pursue or doe to bee purchased or pursued where in the Court of Rome or elsewhere what any such translations processes and sentences of excommunications buls instrumeÌ„ts or any other things of what sort which touch the king against him his crowne and his regalie or his realme in what maner touching these as is aforesayde and
Common Lawe will not giue so large a scope vnto Iudges ecclesiasticall against such doubters I will obiect those wordes of 3 Magna Charta cap. 1. Magna Charta where it is not a newe graunted but Confirmed onely That for euermore the Church of England shal be free and shall haue all her whole rights and liberties inuiolable And this is a confirmation of their rights and liberties before any graunt was made to the rest of the Realme besides being yeelded at such time when as through generall ignorance it was vntruly holden that the state Ecclesiasticall signified there by those wordes The Church of England had not their Iurisdictions from the Prince but from God alone deriued downe to them by the meanes of the Pope and therefore that their Courtes and Lawes whereby they proceeded were not in any respect to be accounted for Courts holden by the Kings auctoritie or their Lawes the Kings Lawes Whereupon arose that vntrue and preiudiciall phrase of seuerance of a Court Christian from the Kings Court So that if they were confirmed to them when their Iurisdictions in facte were not holden of the King as now they be and ought to be by Gods Lawe is there not then more iust cause so to continue them at this time seeing they be not so much as a diuerse course from the Customes and Lawes of the Realme in Courts Temporall But that this course of proceeding in causes Criminall sometimes without either Accusation or Presentment is in trueth a right and libertie of the Church of England may appeare by that which to this point hath bene afore deliuered and by the continuall practise also of those Courts in all ages as the Acts thereof from time to time doe make very manifest Yet this is more particularly and neerely prooued in the very point that we handle by a 1 1. Eliz. ca. 2. statute made in her Maiesties reigne where it is prouided that Ordinaries not only at any other time and place then at their visitations and Synods may take accusations and informations a word of farre more large signification then Presentment but may also enquire else-where within their iurisdiction Which Enquirie is afore shewed to be alwayes ex Officio and being absolutely spoken without further addition and in some sort seuered from all ki◅de of Informations must necessarily be without Presentment But how farre and in what maner may they so doe Truely in like fourme as heretofore hath bene vsed in like cases by the Queenes ecclesiastical Lawes If then to proceed Criminally without either of them two be warranted practised by the Queenes ecclesiasticall Lawes as afore is shewed assuredly this Statute doth auouche and iustifie them To this disputation may be referred that obiection which the Notegatherer maketh touching a 2 11. H. 7. ca. 3. statute of K. Henry the seuenth Note gatherer whereupon he saith Empson and Dudley proceeded that was 3 1. H. 8. ca. 6. repealed by another in the time of K. Henry the eight although he putteth it vnder his title of the lawes of England as by them seeking to impugne al proceeding ex officio albeit vnder presentment which this opinion alloweth proceeding ex Officio is necessarily implied and presupposed For answere whereof it is true that the saide statute was so repealed but whether it were the same and the onely statute whereupon Empson and Dudley proceeded is left there vncertaine and vntouched Howsoeuer it was in this behalfe seeing it authorised all Iustices of Assise and of the Peace to proceede thereby it is most probable that many besides them two did also deale by vertue thereof The effect of the saide statute was that vpon information to be made for the King afore Iustices vpō any penal statute not extending to life or member they might without enditement heare and determine all offences against the forme of any statute in force The reason of making the said statute is signified by the preamble to haue bin for that although at Sessions charge was giuen to enquire of many offences against statutes and Enquests to that effect were straightly sworne and charged to enquire and to preferre the trueth yet they were letted to be found by imbracerie maintenance corruption and fauour by occasion whereof the statutes coulde not be put in due execution And againe in the same place The twelue men for the causes afore rehearsed will not finde nor present the trueth Howesoeuer this were at that time it may bee feared that it is in some place too true still euen vntill this day So that if this were then a sufficient cause to make such a statute the cause still continuing if not encreasing that statute will seeme to haue beene in that regarde lesse vnreasonable In the statute of Repeale thereof for the reason of abrogating 1. Hen. 8. c. 6. it is onely assigned That thereby many sinister craftie feigned and forged informations haue beene pursued to the great damage and wrongfull vexation of the subiectes But this might aswell happen euen when men be prosecuted by way of enditement For is it not vsuall to finde them vpon any one mans euidence and information the Iurie not regarding oftentimes what enimitie rests betwixt them Therefore it was not the course by information that displeased but the badnes of the informations that gaue occasion of repeale For by statute euen in K. Hen. 8. 31. Hen. 8. c. 14. his dayes an Information was made equiualent vnto a presentment by verdict of twelue in matter of heresie that is far more penal then the former Which cruell statute I would not haue alledged but that the Note-gatherer groundeth himselfe thereupon for another purpose And we see that there is no such cause alledged as the Note-gatherer insinuateth either as if it were an vniust vnreasonable course or in respect that it was ex officio at the instigation and solicitation of some one person or yet that it was without Appeale or Enditement For if it had bin simply vniust then all the treasure which had bin leuied by colour thereof should haue bin restored And it is euident that Bils and Informations against offenders are still in frequent vse and may be preferred for the Queene by any and against any whomseuer And those which be found offenders may without either Appeale or Enditement be condemned and punished thereupon in sundry geat penalties and losses both pecuniarie corporall and of their good name and credite And for further proofe that it is at this day holden none vniustice by the tempor all lawes for to ground an enquirie yea and also a Conuiction without either Appeale or enditement is plainely prooued by a latter statute which is yet in force For Iustices of 5. 6. Edw. 6. cap. 25. Peace at their Sessions haue authoritie to enquire of the offences of them which be admitted to keepe Ale-houses not onely by Presentment but by Information or otherwise by their discretion c.
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.
but not so in the other Considering that in all things being not the same there is diuersitie and yet a reason of comparison is concludent if there be no difference in the point for which it is brought If then the whole substance of that Treatise shall bee founde vpon discussing to labour of some of those three infirmities so that as himselfe affirmeth in the winding vp of all he might truely say hee hath vsed but fewe proofes I could therefore haue wished that hee had not shewed himselfe as Suffenus sibiipsi by setting the Garland vpon his owne head before the victorie where hee telleth vs that albeit his proofes by him brought be fewe yet saith he they are effectuall And thus much for the matter of that Treatise Now let vs here also consider the maner of penning and the briefe of the rest of his vnnecessarie wordes which are wholly besides the matter For the enditing surely I doe esteeme it for my part to be a very commendable easie and flowing if not ouerflowing stile Yet if I may be pardoned to speake freely that which I thinke truely it runneth altogether vpon an haughtie comptrolling contemptuous disdainefull and salte minerall veyne as may appeare by a taste of some particulars not vnfitte to bee opened which for order sake I will contriue into these fiue seuerall heades viz. 1. Of his discourteous and opprobrious termes vsed against sundrye particular persons and callings 2. His couert reproching and wounding of all Ecclesiasticall Iudges through the sides of Papists for their raging against Subiects and treacherie to their Soueraignes in former times 3. His reuiling the proceedings Ecclesiasticall which he there impugneth 4. His vntrue imputations and slander of these proceedings And lastly the pretended impieties supposed thereby to be committed with the dangers and penalties that hee chargeth all such to haue incurred which haue bene dealers in such practise of Ecclesiasticall Iurisdiction For the first of these as where hee termeth all that practise that part of Ecclesiasticall Iurisdiction whether Ordinaries or Commissioners by the names of Inquisitors rough and rigorous exactors and offensiue butchers Chargeth them to cloake and shadowe foule matters vnder glorious and painted glosses beautifull shewes and fained pretenses that of their Iudiciall Courtes and Consistories this saying of the Poet is verified viz. Victa iacet pietas tergo caede madentes Vltima coelestûm terras Astraea reliquit As if they had there murdered or vnlawfully put some to death Where hee also saith that Ordinaries challenge or assume to themselues the goodly name and title of Spirituall men that they are men to whome the sauour of gaine is sweete and therefore sayeth of them Auro loquente tacendum est Those Doctors also which by commandement do as afore seeke to iustifie the course that he oppugneth he calleth thorowe contempt English Doctours a terme vsually sastened but vpon such as beare the name of learned and yet besides English their mother tongue perhappes vnderstand none other language at all yet the meanest of such Doctors can tell that a Publican differeth from a Collectour and that regula Iuris signifieth not an example or precedent at both which he stumbleth He pleasantly also like a Sennor Soldado sorteth nine of them by rankes into more then two quaternions as the souldiers which kept S. Peter were sorted as if through their basenesse a quaternion of them were not woorthie to be laid in ballance with a messe of such as himselfe is or as though in a braue resolution of his owne single valour he valued them by dozzens together and durst encounter them all at once like as the single Spaniard doth with so many naked and contemptible Barbarians He termeth them also in scorne Learned Canonists as if he would insinuate that the litle skill they haue were in the Canon lawe onely which he nameth the Popes Testament and as if their degrees of schooles were taken in that profession Whereas it is well knowen that their profession and degree is in the Ciuill lawes a lawe being for the equitie and wisedome thereof by the space of sundrie quaternions of hundreths of yeeres the common lawe of all the Ciuill nations of the world saue one What he esteemeth of it greatly skilleth not but Tullie a man more wise then he doeth giue it exceeding great commendations And all the Christian worlde sauing ourselues are not destitute of reason for well esteeming and practising of it For the course of those Doctours education it hath beene in the liberall sciences in the languages called learned and perhaps in such of the vulgar also as be of any commendable note and in other sortes of good learning Wherein if they haue accordingly profited their employment happely may bee many wayes thereby as behoofefull to the seruice of their Countrey as that which some call learning is beneficiall and gainefull to themselues Likewise the poore Apparitors that serue in Ecclesiasticall Courtes he calleth them their hunting Spaniels malepert Apparitours Messengers and Pursuiuants men though in meane place and but ministeriall qualitie yet as necessary to be had in those Courtes as Errand-bailifs be for Temporall To come to the second may it be denied that the matters wherewith he reprocheth the Popish prelates of former times are bent per obliquum through their sides to wound all the Reuerend fathers and others nowe liuing who for proceeding of Office against some of his darlings are fallen as deepely into his indignation For haue these sharpe biting termes bene bestowed vpon any of their late Predecessours or vpon them till of late yeeres that certaine disordered persons ioyning though in other respectes with the Papistes to oppugne this Church haue bene dealt with in the same course that Papists are and were from the beginning of her Maiesties reigne before these other sprung vp If this were not his meaning for what ende is almost halfe his Treatise spent by way of Inuectiue against the Popish Prelates So that no doubt hee meant to lay vpon the present Iudges Ecclesiasticall the reproches of them whose steppes hee chargeth them to followe in that this course of proceeding was if wee may trust him vpon his bare worde brought in by the practice of the Popish Cleargie And therefore hee sayeth that Bishops nowe practice Antichristian decrees and Popish Canons the very heades of that Hellish Cerberus of Rome and the synewes of his tyrannicall authoritie For else this were but running of riot and vaine barking against the Moone Of this sort are those his other speeches also viz. that the Papisticall Cleargie most irreligiously practised the same that they finding it a fitte instrument to mainteine their Romish Hierarchie and to tyrannize ouer the consciences of good men most impiously violating the lawes both of God man imposed this maner of corrupt oath vpon the people that they were far more cruell then Claudius or Caligula mad men greedie deuouring Wolues that they fed with delight their fierce and
againe to a pretie kind of pacification hold as wel as long as it shall But there is another partie also that perhaps will venture to rip vp agayne the seames of this greene peace if hee may not in some sort bee satisfied For there came vnto mine handes a good while after the former Treatise certaine briefe Notes without discourse that are deliuered abroad into many hands by writing being commended to be gathered by a man of great reading and iudgement in Diuinitie I awe and in what not It beareth this title Notes to prooue the proceeding ex Officio and the oath and subscription which are now required to be against the word of God the ancient Fathers and Canons of the Church and the lawes liberties and customes of the realme of England the proceeding of Office and the oath required though hee telleth not how he conceiues it to bee required as the Treatiser did doe both fall into this disputation which we haue in hand As for the subscription vpon other occasion that may hereafter elsewhere be debated The seuerall points which in respect of the two former hee handleth are by himselfe distributed and sorted into these seuerall heads viz. First testimonies out of ancient Fathers that do mislike the proceeding ex Officio and oath now vsed Secondly English Martyrs that haue refused and misliked the oath now vsed Thirdly the proceeding against heretikes in Englād without exacting an oath c Fourthlie the Canon lawe teaching Inquisition and proceeding ex officio by oath Fiftly another order of proceeding but yet in causa fidei and not otherwise Sixtlie the bishops proceedings contrarie Seuenthly the lawes of England Eightlie the maner of the reuocation of the proceeding ex officio in king Henry the 8. time Ninthly the maner of debating of that cause in those dayes 10. Sir Thomas Mores reasons for maintenance of proceeding ex Officio the oath with summarie answeres to them 11. And lastly Inconueniences which come by the vse ex Officio contrary to the common lawe For proofe of some of which especially the first he is so plentifull in quotation onely of places without rehearsing their sayings out of the ancient Fathers counsels c. that for mine owne part I must confesse that vpon the first view of their names in his moster booke I was greatly astonished least I had too resolutelie defended a matter against such an armie of ancient Fathers and as it were against the generall consent of the olde Primitiue Church from which I meane not God willing casilic or rashlie to swarue But when I had approched neerer I well discerned this my feare to be all in vayne in that they had neither banner displaied nor weapons bent against this cause but rather against the faces of the aduersaries thereof as may plainelie appeare in the seuerall opportune places of this simple Discourse ensuing I may well resemble this dealing of the Note-gatherer vnto yong setters vp in London as Apothecaries and such like that be not at first well stored with stuffe who to furnish vp their shoppes vnto the best shewe are woont oftentimes to embellish them with good numbers of painted gallie pots boxes and glasses intituled on the outside euen with golden letters sometimes of such precious Waters Oyles Simples and other drugges of medicine which they neuer smelt of because such neuer came within them And perhaps I should saue him from suspicion of a greater fault that is eyther want of iudgement or of wilfull peruerting of the ancient Fathers if I should freelie deliuer my conceite in this behalfe which is that his leisure serued him not to looke what was indeede contained in those places which there hee quoteth but that hee did set them downe vpon trust out of the Pies or Indices of the sayd seuerall bookes wheresoeuer the bare wordes of Inquisition of Accusing of Oath or of Swearing was found For I dare auowe that hee which shal read thē in the Authors themselues will iudge that many of them were gathered together in condemnatiō of taking any oath at all an errour holden by the Anabaptists albeit being truely vnderstood according to the circumstances the places serue neither the one turne nor the other rather then that by any colour they may be wrested to speake either against oathes ministred in causes criminall or against proceeding by Iudges of Office Let thus much therefore if it be not too much suffice to haue deliuered in some generalitie touching the said Treatise and Notes both which are vndertaken for the whole substance of them to be here and there answered in this simple discourse ensuing THE CONTENTS OF the seuerall Chapters of the First part 1 THat a seuerall royall assent is not required to the executing of euery particular Canon 2 The particular distribution of all other causes to be proued to be of Ecclesiasticall conusance besides Testamentarie or Matrimoniall with a discourse of bishops certificates against persons excommunicated being a speciall point of their voluntarie iurisdiction where there is no partie which prosecuteth 3 That matters in the former chapter adioyned to Testamentarie Matrimoniall causes though properly they be not of Testament or Matrimony are of Ecclesiasticall conusance and how farre 4 Generall proofs out of statutes that sundry other causes besides Testamentarie or Matrimoniall are of Ecclesiasticall conusance 5 That suites for title of Benefices vpon voidance or spoliation likewise that suites for tithes oblations mortuaries c. for pensions procurations c. are of Ecclesiasticall iurisdiction is prooued by statutes especially 6 That suites for right of tithes belong to the Ecclesiasticall iurisdiction and how farre is shewed out of the books and reports of the Common law so of places of buriall and Churchyardes and of pensions mortuaries oblations c. 7 Of right to haue a Curate and of contributions to reparations and to other things required in Churches 8 Proofes in generall that sundry crimes and offences are punishable by Ecclesiasticall iurisdiction and namely idolatrie heresie periurie or laesio fidei and how farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments 9 That Simony Vsury defamation or slander beating of a Clerke sacriledge brawling or fighting in Church or Churchyarde dilapidations or waste of an Ecclesiasticall liuing and all incontinency are punishable by ecclesiasticall authority and how farre 10 That the matters and crimes here reckoned be also of ecclesiasticall iurisdiction and proofes that any subiects lay or other may be cited in any cause ecclesiasticall 11 That lay men may be cited and vrged to take oathes in other causes then Testamentarie or Matrimoniall 12 The grounds of the two next former opinions examined and confuted 13 That iudgement of heresie still remaineth at the Common law in iudges ecclesiasticall and that the prouiso touching heresie in the statute 1. Eliz. cap. 1. is onely spoken of ecclesiasticall commissioners
for it in a Spirituall Court But if a man take from the executors goods bequeathed for this the executor must vse his action of trespasse and not sue in the Spirituall Court for 3 2. R. 3. 17. executours can not sue for the goods of their testatour in a Court Ecclesiasticall but at the Common Lawe If 4 T. 18. Ed. 2. testa 6. a testament beare date at Cane in Normandie and be prooued in England the executour may vpon such testament haue action Of legacies or deuises it will be sufficient to touch a few points In the books of the Common Law it is set downe that they 5 37. H. 6. pag. 9. shal be recouered in a Spirituall Court and not in a Court Temporall Therefore 6 H. 8. H. 3. ex Fitzh tit prohib 19. if a termor of certaine land bequeath his croppe and die the Spirituall Court shall hold plea thereof Likewise 7 46. E. 3. fol. 32. where one sued in Court Christian for goods deuised by testament which another claimed by deede of gift and thereupon brought a prohibition and shewed the deed of gift and alledged withall that the defendant was neither executor nor administrator yet because it was by name of a legacie it was adiudged to belong to the Spiritual court by which it was to be determined and the circumstances to be tried whether the deuise were good or not And in respect a man hath such action against the executor for a legacie before the Ecclesiasticall Iudge therefore the 8 M. 20. E. 4. 9. legatarie or deuisee may not of his owne head take the goods or chattels deuised to himselfe out of the possession of the executour And for this also especially because 9 T. 2. H. 6. 15. the Lawe doeth not binde that the legacies shall be assigned payed or deliuered untill the debts of the testatour be satisfied and payed But because 1 Bracton lib. 5. cap. 16. a franke tenement or inheritance deuised is not demaundable in an Ecclesiasticall Court but in the Temporall therefore the 2 Perkins tit deuises legatarie according to the deuise without further assignment or deliuerie may enter into them after the death of the testatour If a man 3 Reg. in br orig pag. 48. b. by his testament do bequeath goods to the fabricke of a Church for this legacie the executors may be sued in court Ecclesiasticall Also if 4 Liberties of the Clergie by the Lawes of the Realme by Iohn Gooddall Printed by Rob. Wier tempore Hen. 8. wardship or chattels reall as a lease be bequeathed by will a man may sue for them in the Court Ecclesiasticall but not so for lands deuised If a 5 Ibidem testatour by his testament doth charge his executors to pay his debts the creditours in respect of such charge may sue for them in the Court Ecclesiasticall When a 6 Ibidem man as I doe interprete it being executour or legatary and so enioyned by will doth refuse to collate or erect a Grammer Schoole and is therefore sued in a Court Ecclesiasticall if he purchase a prohibition the other partie shall haue a consultation Touching committing of administrations by the very statute whereby they were established it is enacted that 7 31. Ed. 3. ca. 11. where a man dieth intestate the Ordinaries shall depute the next and most lawfull friends of the dead person intestate to administer his goods which deputies as they haue action against others in the Kings Court for to recouer the debts owing to the dead so in that Court there lieth action against them for such as the dead did owe but they are made accountable to the Ordinaries as executours be in the case of testament c. And 8 36. H. 6. 31. referente Perk. tit testa when such letters of administration be shewed vnder the Ordinaries seale or when a testament is so shewed a man hath no direct trauerse against it in the Temporall Court That to sequester the goods of an intestate cōmonly called letters ad colligendum belongeth to the Ordinary appeareth by this case If an 9 7. H. 4. 18. Ordinary sequester the goods of an intestate to another man and a third disturbeth here the Ordinary hath an action of trespasse at the Common law though the sequestration be a spiritual acte because he had possession yet he cannot haue an action of debt albeit actions of debt in this case runne against him But if the Ordinary do sequester the goods ex officio or for any contumacie which giueth no possession to him there the Spirituall Court shall haue iurisdiction That diuorces are of Spirituall iurisdiction is apparant by many bookes at the Common Lawe needlesse to be rehearsed but whereas prohibition 1 12. H. 7. 24. lay in Corbets case vpon a suite brought in the Spiritual court to repeale a diuorce and cōsequently to make the issue of the second wife bastards whereupon no Consultation would be graunted which may therefore seeme to make this point doubtful it was not for that the Court Ecclesiasticall might not hold plea of diuorces but the prohibition lay because the title and discent were comprised in the libell and this was agreed to be the cause by the Court and so it is 2 Brooke tit prohib nu 9. reported by Brooke And if a man giue goods in 3 T. 13. H. 3. referente Fitzh tit Prohib nu 21. mariage with a woman vnto the husband if they be afterward diuorced it was holden that the woman diuorced may wel sue for those goods in Court Christian. But if any further doubt should herein vpon the former case of Corbet remaine That statute which 4 24. H. 8. ca. 12. affirmeth that diuorces by appellation were caried forth of this Realme vnto Rome like as other causes Ecclesiasticall of testament of matrimonie of right of tithes oblations and obuentions and appointeth how delegates vpon such appellations made shall determine them all within the Realme doth put it cleare out of doubt Likewise where it is affirmed by a farre elder statute that Ordinaries are 5 18. Ed. 3. pro Clero cap. 2. both to certifie and trie of bastardie and bigamie which for the most part cannot be done without the conusance of diuorces whereupon the former especially doth depend As for 6 Regist. in bre iudicialibus pag. 5. a. 26. a. questions touching Bastardie or Legitimation of any it appeareth that at the Common Lawe they do belong to a court Ecclesiastical and vpon a writ are to be certified into the Queenes Courts by the Bishop If 7 Regist. in bre iudic pag. 53. 2. a man be spoyled of the possession of his wife so farre forth as the Action doth but extend to be restored to her possession it must be handled in a Court Ecclesiasticall notwithstanding 8 Goodall of the liberties of the Clergie by the Lawes of the Realme sayeth Gooddall in
statutes and reports some whereof were made not long after and so from time to time downeward till these late challenges doe make it very manifest It is prouided by Statute that 2 24. Edw. 1. stat de consultatione the Chancellor or chiefe Iusticer of the King vpon sight of the libell whereupon any prohibition is brought if the case cannot be redressed by any Writte out of the Chancerie but that the Spirituall Court ought to determine the matter shall write to the Iudges where the cause was first mooued to proceede the prohibition directed notwithstanding So that wherein soeuer by custome and liberties of Holy Church Iudges Ecclesiasticall were wont to proceede if no Writ lie thereupon in Chancerie they may still holde plea and take conusance Also in the conclusion of the Statute of Articuli 1 Artic. Cleri 9. Ed. 2. ca. 16. Cleri where sundry matters besides Testamentarie and Matrimoniall are mentioned it is thus enacted that the Prelates Clergie and their successours shall vse execute and practise for euermore the Iurisdiction of the Church in the premisses after the tenor of the answeres aforesaid without quarell inquieting or vexation of our heires or any of our Officers whatsoeuer they be Likewise it is by Parliament 2 15. Ed. 3. ca. 6. accorded that the Ministers of holy Church for money taken for redemption of corporall penance nor for proofe and account of Testaments or for trauaile taken about the same nor for solemnitie of marriage nor for other things touching the Iurisdiction of the Church shall not be empeached nor arrested nor driuen to make answere before the Kings Iustices nor other Ministers and thereupon shall haue Writs in the Chancerie when they will demaund Where we finde that other things besides Commutations matters Testamentarie and Matrimoniall doe belong to the Iurisdiction of the Church And to like effect after in the same Kings dayes 3 18. Edw. 3. pro Clero c 6. Commissions to enquire of Iudges of Holy Church whether they made iust Proces or excessiue in causes Testamentarie and others which notoriously pertaine to the conisance of Holy Church were from thencefoorth forbidden Therefore these Statutes being still in force if Iudges Ecclesiasticall shall be found but to deale as they ought in matters appertaining meerely to Iurisdiction Ecclesiasticall how the vexations impeachments driuings to answere and strange enquiries against them vsed in some places may be iustified by Lawe is worthie the consideration of those that are or shall be procurers therein In a statute of King 4 1. Ric. 2. ca 13. Richard the second mention is made that the pursuites for Tithes and for some other causes of right ought and of olde times were wont to pertaine to the Spirituall Court. In a Statute of King Henrie the eight it is 5 24. H. 8. c. 12. in the praeamb testified that both the authorities and Iurisdictions Spirituall and Temporall doe conioyne together in the due administration of Iustice the one to helpe the other And that the Lawes Temporall are for triall of propertie of landes and goods and for the conseruation of the people of this Realme in vnitie and peace without rauin and spoyle And in the bodie of the Statute are particularly named and reckoned for Ecclesiasticall besides causes Testamentarie and Matrimoniall these viz. diuorces right of tythes oblations and obuentions of which it is affirmed that the knowledge of these causes by the goodnesse of Princes of this Realme and by the Lawes and customes of the same appertaineth to the Spirituall Iurisdiction of this Realme And because by that Statute remedie was onely prouided that appellations in those aforesaide cases should not be prosecuted out of the Realme there being also many other causes of Iurisdiction Ecclesiasticall wherein a like remedie was conuenient to be had therefore the next yeere after it was enacted that 1 25. H. 8. c. 19. all maner of appeales of what nature or condition soeuer they bee or what cause or matter soeuer they concerne shall bee made and had by the parties grieued c. after such maner as is limitted for causes of appeales in matters Testamentarie Matrimoniall tythes c. in the said former statute mentioned In a Statute of King 2 1. Ed. 6. c. 2. Edward the 6. besides matters of voluntarie Iurisdiction Ecclesiasticall as collations presentations Institutions inductions letters of orders and dimissories are reckoned in generall as Ecclesiasticall all suites and causes of instance betwixt partie and partie and all causes of correction And in particular all causes of bastardie or bigamie and enquirie De Iure patronatus besides matters of Testament of administration or of accounts vpon them And 3 5. Eliz. c. 23. in one Statute in her Maiesties reigne are reckoned in particular as the more grieuous sort of matters of correction in Ecclesiasticall Courtes heresie refusing to haue a childe baptized or to receiue the holy Communion or to come to diuine seruice errour in matters of religion or doctrine now receiued incontinencie vsurie Simonie periurie in the ecclesiasticall Court and Idolatrie And therefore Iudges Ecclesiasticall may lawfully cite men in certaine other causes besides Testamentarie or Matrimoniall and ought not eonomine tantùm to be vexed vnquieted impeached driuen to answere or arrested CHAP. V. That suites for title of Benefices vpon Voidance or Spoliation likewise that suites for tythes Oblations Mortuaries c. for Pensions Procurations c. are of Ecclesiasticall Iurisdiction is prooued by statutes MAtter 's and suites for the title of Benefices ecclesiastical so they touch not the trial of the patronage do belong also to the knowledge and iurisdiction of a court ecclesiastical by the lawes of the Realme For conisance of voidāce of benefices 1 25. Ed. 3. pro Clero ca. 8. and the discussing thereof de iure doe belong to Iudges of holy Church and not to the Lay Iudge The Common 2 Treatise of constitu Prou. Legatine ca. 9. printed by Tho. Godfrey tempore H. 8 lawe doth mention fiue causes of auoidance of a benefice viz. death resignation depriuation creation and cession But whether it may be deemed void in law vpō any of the last foure meanes of auoidance is by the law ecclesiasticall determinable And by the bookes of the Common lawe 3 M. 22. Edw. 4. fol. 24. whether the Church be full or not full or the Clerke able or not able is triable in an ecclesiasticall Court Townesend For if an 4 Regist. in br orig pag. 55. b. inferiour Ordinary shal differ or refuse to admit or institute a Clerke presented and the Clerke bring his double Querele being of the nature in some sort of an appellatiō from the Archbishops court and the aduerse parte doe bring a prohibition the said Clerke may haue hereupō his consultation so that the court eccles by colour hereof deale not with the right of patronage of the benefice Likewise for spoliation of a
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
found by some with the ceremonie vsed in giuing the othe and because the othe is giuen in a cause criminal and penal to themselues In the ceremonie at taking an oth there is reprehended by some the laying of the hand on a booke and the swearing by the booke or by the contents of it Of meaner circumstances falling out in proceeding that they challenge some are concurring with the very tender of the oath as that they haue not distinct knowledge of euery particular whereupon they are to be examined before they resolue whether to take the othe or not and other are ensuing the othe and examination as that the Iudges doe not rest in that which is affirmed or denied vpon their oth but oftentimes proceede to a further examination by witnesses vpon the same pointes All which I mind God willing to prosecute in the same order that I haue here set foorth hauing first touched some matters that I holde not vnnecessary to be knowen by the vnlearned sort for the better opening and vnderstanding of the disputations following THE CONTENTS OF the Chapters of the Second part of this Apologie OF the distinction of offences and seuerall kindes and endes in punishing chapter 1 them with the necessity of punishments Of two sorts of prosecution of crimes and offences viz. by a party of office chapter 2 the practice of them in Scripture and in the seuerall Courtes of this Realme Of the sundry kindes of obiecting crimes by a party mentioned in the Ciuill law as by reason of a mans publike charge and function also by way of chapter 3 Exception Supplication Complaint Delation and Accusation The true signification of the word Accusatio his diuers acceptions definition exposition thereof with some reason of the frequencie of accusation in courts of the Ciuill lawes in former times is also declared That the prosecution of crimes by way of Accusation is in most places forbidden chapter 4 or growen into disuse the reasons hereof be partly the danger to the Accusers and partly the hatefulnesse of that course Therein also is disputed whether all Accusation be vnlawfull and certeine points deliuered to be obserued by all them that will accuse others Of the seuerall acceptions of this word Officium the signification of Inquisitio chapter 5 Quaestio Crimina ordinaria extraordinaria the reason why Inquiry by office came in place of Accusation of Enquiry generall and speciall of Enquiry speciall ex officio nobili siue mero mixto promoto and of the priuileges of proceeding ex mero officio aboue the other Of Denunciation a speciall meanes of stirring vp the Office of the manifolde chapter 6 vse thereof in the olde Common weale and Empire of Rome and at this present on the other side the Sea the general acception of that word and of foure kindes of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expenses And what course of dealing against crimes and offences is holden both in courts of the Ecclesiasticall Commission and in Ordinary courts Ecclesiasticall in this Realme That the Ciuill and Canon lawes allow sundry meanes to ground a Speciall Enquiry chapter 7 of office against a crime besides Accusation and Presentment therein is also conteined an answere to a supposed rule and declared how from Generall they descend to Speciall enquiry and that besides those two either à Fame or Clamosa insinuatio or Priuate Iudiciall Denunciation or Canonicall Denunciation or Indicia or taking with the maner or other Notoriety of the fact or appeachment by some of the complices or collusion of the Accuser or the not obiecting in due time that euery of these do want or when the Enquiry tendeth but to a Spirituall punishment may seuerally any of them serue to warrant such Enquiry with some obseruations touching the nature of most of these That to proceed sometimes against an offence otherwise then vpon an Accusation chapter 8 or Presentment or then vpon an Appeale or Enditement which two at the Common law haue respectiue correspondence vnto the two former is no diuers much lesse any contrary or repugnant course to the lawes statutes and customes of this Realme this is prooued by Common law statutes and practice in proceeding informatiue and Punitiue with answere to certeine obiections made to the contrary How the second opinion here to be treated of is that no lay person may chapter 9 be cited of office in any cause but testamentary or matrimoniall and that the drift of that opinion is against proceeding of office in matters criminall the necessary vse and equity of proceeding sometimes criminally by the Iudges office in courts both Temporall and Ecclesiasticall Conteineth an answere to some further obiections made against the conueniency chapter 10 and reasonablenesse of proceeding against crimes of office That the lawes of the Realme do vse Enquiries and proceedings ex officio that chapter 11 they allow it in courts Ecclesiasticall with answere to some obiections that are made to the contrary Is set downe a replie to the Note-gatherers answers giuen to certeine reasons chapter 12 that haue bene made long agone for to shew the like course to be also practised in Temporall courts and an answere to his reasons brought to proue that in proceeding of office there is some contrariety vnto the lawes of England That the Enquiry ex officio against crimes is allowed both in Ciuill or Temporall chapter 13 courts and in Ecclesiasticall also by the two lawes Canon and Ciuill Conteineth an answere to such obiections as vpon the Ciuill or Canon lawes chapter 14 are brought against all proceedings of office in causes Criminall by the Treatiser and the Note-gatherer Enquiry and proceeding of office without an accuser and grounded vpon chapter 15 some other of the meanes afore prooued sufficient to enter into such Enquiry is approoued by sundry examples of Scripture An answere is made to such obiections as out of Scripture or Ecclesiasticall chapter 16 writers be made against criminall proceeding of office by the Note-gatherer and others THE SECOND PART of the Apologie published in defence of sundrie proceedings by Iurisdiction Ecclesiasticall CHAP. I. Containing a distinction of offences and seuerall kindes and ends in punishing them with the necessitie of punishments ALl the controuersies remaining to bee handled in either of the two partes ensuing doe rest chieflie about the maner of discouering of such crimes as are punishable by ecclesiasticall Iurisdiction And because many bee talkers of these matters who vnderstand but litle the true nature of them therefore to giue light vnto the whole disputation to make it appeare to be a matter of no small consequence but much to be stood vpon before I proceed further I mind to touch some necessarie points seruing for the better vnderstanding of all proceedings against crimes And first of the diuersitie of faults in generall then the seuerall kindes of punishment of
testibus euen after publication moe witnesses may be receiued because the feare of subornation in this case ceaseth being the onely reason of that rule viz. that after publication moe witnesses may not be receiued Insomuch as depositions of witnesses are alwayes published vnto the Iudge But new witnesses may not be receiued when it is at the prosecution of a voluntarie partie for feare of suborning them in the pointes where he findes the former depositions came too short of his purpose So that in these respects the rather this proceeding of meere Office might be termed Nobile Iudicis Officium Thus farre touching Office and Enquirie by vertue thereof CHAP. VI. Of Denunciation a speciall meanes of stirring vp the Office the manifolde vse thereof in the olde Common weale and Empire of Rome and at this present on the other side the Sea the generall acception of that word foure kindes of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expenses And what course of dealing against crimes and offences is holden both in Courts of the Ecclesiasticall commission and in ordinary Courts Ecclesiasticall in this Realme BVt because it is not possible for a Iudge of all other men by himselfe alone to haue knowledge of most crimes committed or probably entended to be committed therefore haue those lawes deuised sundrie meanes to bring and preferre them vnto his knowledge and Office Among which Denunciation is principall and indeed so generall that by sundry writers it is made a third and seuerall kinde of proceeding against crimes and by them counterdiuided against Accusation and Enquirie In which respect I thinke it not inconuenient for the present purpose to haue the nature of it also something opened Neuerthelesse it is in deed no different course from Enquirie 1 Spec. tit de deâ—…unc nu 16. but a speciall meanes or instrument eliciendi potentiam in Actum viz. of drawing the Iudges power and Office into action by Enquirie Denunciation in a generall signification may be described thus viz. A relating of some mans crime vnto a Iudge to the end to haue the Offender reformed or punished yet without that solemne inscription by the Denouncer which the law requires in an Accusation But I holde it requisite first to note what vse hereof and assistance vnto the Office of Enquiry the olde Romanes had in their policie by Denunciators as it is recorded to memorie in the Ciuill lawes of that people Which I do the rather in this place as in the former discourse I haue done to meet with the childish and sinister conceit of some who suppose euery thing deuised and brought in by any Canon how olde or necessarie soeuer it be to be no better then Popish Antichristian and eo ipso without further a doe or iudgement to bee condemned For I hope they will not iudge the lawes and policie of the Romanes to be Popish Antichristian or vnreasonable being for ciuill prudence the wisest and mightiest people that euer was and altogether Heathens when those lawes were framed and practised Of those whom we now commonly call Denunciators the law Ciuill hath two sorts One sort are those who being priuate men doe willingly for gaines sake denounce others Of these 1 L. Res quae § vlt. ft. ad S. C. Turpill that law thus speaketh As no man is at first compelled Nunciare to denounce any crime against another so cannot such a Delatour desist when it pleaseth himselfe So that these be both Nunciatores and Delatores Of these Delatours being a kinde of Parties I haue spoken before The other are such as by reason of some Office or publicke charge layed vpon them are to Denounce offenders vnto the Iudge to be by him proceeded with vnto punishment These in generall by the Emperour Constantinus haue this title giuen vnto them 2 L. 1. C. de custodia reorum Publicae solicitudinis cura the care and regard of publike watchfulnesse His wordes to that purpose be these In quacunque causa reo exhibito siue accusator existat siue eum publicae solicitudinis cura perduxerit statim debet Quaestio fieri vt noxius puniatur innocens absoluatur Where we see the two kindes of Criminall prosecution are touched and the proceeding of Office is there counterdiuided against Accusation And these hauing such charge be also of two seuerall sortes The first whereof besides their Denunciation and relating of crimes vnto superiour Magistrates had authoritie also to enter into some Enquirie and Examination Of these certeine were called Curatores Viarum 3 L. pen. ff de via publica Dion Cassius li. 54. who also had a kinde of iurisdiction for meaner faultes committed in the high wayes and had two Lictores or Sergeants for that purpose attending them They enquired of Office vpon offenders and disturbers of the publike peace in high wayes Others were called Latrunculatores who sought vp and made generall Enquirie for offenders and persons to be suspected being not altogether vnlike vnto our Prouost Marshalles I reade 4 L. D. Adrianus ff de custod exhib reis also of some called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is principall conseruatours of common peace and tranquillitie These also praeficiebantur disciplinae publicae corrigendis moribus 1 L. vlt. ff de mun honor There were also men hauing charge and Office not vnlike to these Conseruatours called Stationarij whereof one sort called Milites Stationarij limitibus Imperij praepositi did 2 L. 1. §. fin ff de offic praeâ—… vrbi provide for the common peace and also for the securitie of wayfaring men in the high wayes especially about the borders of their prouinces hauing authoritie to enquire and examine any persons who they were of what condition and state of life from whence and whither they trauelled And these made relation to the Magistrates of such suspected persons as they found and of the whole state of things abroad Another sort 3 L. 1. C. de curiosis Stationar li. 12. called also Stationarij simply without addition were onely to make Enquirie generall and to denounce and present crimes and after to furnish the Office with proofes of the crimes detected by them And these were of the second kinde of such publike denouncers hauing none authoritie to make examination but did onely generally enquire of faultes and present them vp Such were called also by this appellatiue name Officium 4 L. 7. ea quidem C. de Accusat as in that law of Gordianus the Emperour where it is sayd to the purpose in handling thus Ea quae per Officium Praesidibus denunciantur citra solemnia Accusationum posse perpendi incognitum non est Verùm si falsis nécne Notorijs insimulatus sit perpenso iudicio dispici debet These were called also Officiales and 5 L. 1. C de priuat
an offendour vpon any course of proceeding besides Accusation but only that a man shal not for a supposed offence in the meane time be kept from bearing offices vntill he shal be iudicially called into question for it This will more plainely appeare so to be if we shall call to our remembrance how many sundry sortes of Denounciatours afore spoken of were receiued and vsed by the Ciuill law in the olde Romane Common weale and Empire who were not tied to any Inscription And besides these denunciatours 1 L. 1. §. Quoties ff de offic prat vibi l 4. ff ad L. Iuli. pecul l. 3 ff de offi praes §. vlt. D. Collat. in Nouâ—…l l. 1. C. de custod reorum l. si quis in hoc C. de epis the magistrates themselues also are by that law required euen without any denunciatours to search out robbers and other disturbers of the Common peace and to punish them seuerely And in truth it must needs turne to the great preiudice of the Common weale if no Magistrates at all should deale against any offenders vntill some Accusers yea or denouncers might be found Furthermore the Emperour Traiane writing to Plinius would not haue the Christians 2 Lib. 10. epist. Plinij whom as it seemeth he somewhat fauored purposely sought vp enquired for by the Magistrates appointment but to be punished onely when they were voluntarily preferred vp vnto theÌ„ by others Which doth argue plainly that the custome was then to haue other sorts of offenders sought for and found out by the Iudges and Magistrates yea though none other man preferred matter against them Yea the words of the law in this behalfe are clere 3 L. 4. §. 1. ff ad L. Iul. Peculatus Mandatis cauetur de sacrilegijs vt praesides sacrilegos latrones plagiarios conquirant prout quisque deliquerit in eum animaduertant Et sic constitutionibus cauetur vt sacrilegi extra ordinem dignâ poenâ puniantur Neuerthelesse to the entent that Iudges may put away from themselues all suspicion of calumniation and conspiracie against men the said learned man aduiseth them not to descend to Enquirie of office against any especiall person but vpon some publike fame or other good occasion of inducement to leade them thereunto But as for generall Enquirie the Iudge in duetie is bound so often to make it as the prescript of lawes doth beare that thereby supposed offenders being found out and discouered may be brought into question and vnto speciall triall Now therefore I will shew that there is allowed prosecution of speciall crimes of Office yet without any such Presentment precedent as by this opinion is implied It is true by the Rule of law that generall Enquiry is precedent as a preparatorie course to make way vnto the Iudges Office of proceeding by speciall Enquirie against such as thereby shall be detected denounced presented In which respect it is said that 4 c. qualiter el. 2. deaccusat as Inscription goeth before Accusation so doth Presentment before Enquirie Now vpon detection made vnto them either vpon generall enquirie or otherwise as it is testified by learned 1 Salycetus in l. fin C. de Quaest. Iul. Clarus lib. 5. §. fin q 11. writers in the Ciuill law such Iudges as be discreet and sage doe customably in most prouinces secretly receiue the witnesses depositions in writing for the information of the Court before the supposed offender be cited either really by attachment or verbally by processe serued on him This they doe thus afore-hand in two respects both that the defendant be not forewarned to flie or to hide himselfe and that the witnesses by subornation or other sinister practise of the defendant be not drawen away afterward to denie the trueth and to depose the contrary If the defendant shall afterward make his apparance and denie the matter obiected against him then be the witnesses re-examined and sworne againe in his presence But if he shall still wilfully absent himselfe in that case the first examination of the witnesses may serue for the Iudge to proceed by euen vnto definitiue sentence against him This first receiuing of information from witnesses is called in that law Processus informatiuus and the rest of the whole proceeding of the Iudge after the defendants apparance or his wilfull absence is processus punitiuus And vnto the taking of the processe informatiue though some haue disputed otherwise it is commonly holden 2 Ferretus Consil 31. num 11. not to be necessarie that the supposed delinquent should be called Which course of taking informations doth very much resemble the examination and enquiry against suspected malefactors which commonly is vsed by Iustices of the peace and other Magistrates here in England But albeit detection rising vpon generall enquirie doe in this sort often and very vsually make way to speciall yet neuerthelesse both those lawes do mention many and sundry other receiued meanes besides whereupon to ground a Iudges speciall enquirie So that albeit Presentment be one yet is it not the onely meanes to open a way vnto proceeding of Office by enquirie The first of such meanes is a Fame of an offence to be by some certeine person committed For albeit no Fame be presented by officers specially appointed yet if there be such a fame in deed to be prooued when need shall require 3 Panor in c. Inquisitionis de accusat then an Ordinarie Iudge may hereupon proceed to speciall enquirie against the offender so by fame discoured This word Fame is deriued from the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and both of them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi à fando of speaking as a thing often spoken and by many And therefore is it by Tullie 1 Cic. in Topicis defined to be testimonium multituainis the testimony of a multitude The proper effect of fame is thus declared by olde Grammarians writing of the differences of such words as be of nere signification 2 Cornel. Fronto in differentijs Opinio ostendit Rumor tumultuatur Fama indicat The opinion or weening of men giues an inckling Rumour tosseth a matter to and fro but fame giues an euidence And albeit Plutarch 3 Plutar. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do report that this was a common prouerbe 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In warre and in heare-say be many vaine and vntrue matters yet the olde heathen Poets in an admiration of fame doe attribute a kinde of diuine qualitie and eternitie vnto it 4 Hesiodus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Fame being a thing which many people bruite abroad doth neuer altogether fall to nothing for it is of a certeine diuine nature And therefore by law 5 Arg. l. sin ff de haered instituendis he that is mooued with fame or by the assertions of men woorthy to be credited is said not to be mooued vniustly or without
cause Fames be of two seuerall degrees The one rising 6 c. Sanctum dist 4. de con secrat vpon suspicion onely and from an vncerteine authour and this is not of force to make such proofe that by reason thereof 7 c. Cum in iuuentute de purg Can. l. Decuriones C. de poenis the fault should be straight way beleeued albeit such fame be coadiuuant vnto other proofes And it worketh a presumption onely against the partie 8 c. Tua nos de cohab cler mulier seruing to put him vnto his purgation The second degree in Fame is when it sprung vp and had his originall from a certeine and likely presumption and from probable matter In which case it may of it selfe make proofe either in a fact done long agone as to prooue by Fame that a man is dead or of a fact that 9 D D. in l. Siquidem C. de adulter cannot easily by direct proofs be conuinced but presumptiuely as the very fact of adulterie For a fame with probable presumption growing vpon some knowen acte comming neere vnto such a crime doth make proofe of the very fact so that the ende of the prosecution be not of verie 10 L. vbi adhuc C. de iure dot great preiudice as for example It may serue for proofe of adulterie to the effect of debarring a womans cohabitation or maintenance from her husband but not 1 D D. in c. Veniens de testio that she may be punished by death where that penaltie is the Ordinarie punishment of that crime A fame may then be sayde to be blowen abroad not onely 2 c. inquisitionis in fin de Accus when the greater part of the whole neighbour-hood or towne doe speake thereof as occasion is offered but also in case the fact be of that nature that 3 Panor in c. cū oporteat de Accus it is restrained but vnto certeine persons which by likelyhood may know of it then is it a sufficient fame though none besides the greater part of such certeine persons doe speake thereof If it be bruited among some few onely and not by the greater part of such then is it 4 c. super co de co qui cognouit consang vxor properly to be termed a Rumor and no Fame Now whensoeuer a fame touching some offence runneth against any person the Iudge may thereupon ground his Enquirie For it is the common opinion of writers 5 Card. A'exan in c. de Accus col 14. in those lawes that Fame doth succeed in place of an Accusation One reason hereof is because the very people among whom fame flieth do seeme in some sort thereby to preferre matter vp against a person so infamed which ought to be as sufficient to excite the Iudge knowing of it to doe his Office as if one certeine person or moe did present it vnto him For by fame alone 6 Alph. Villag li. 3. c. 6 conc 3. an offence is sayd to be made knowen vnto a Iudge though not thereby to conuince the partie yet to the entent of Enquirie and of descending to a triall by that occasion And as was afore alleged 7 Petr. de Palud in 4. Sent. 19. q 4. a man vpon fame alone may be said publikly detected of a crime Some Diuines for the times they liued in most excellently learned could say 8 Thom. 2. 2. that a publike fame concerning any crime doth stand in stead of an accusation and thereunto doe applie that of Genesis where the bloud of Abell is sayd to crie out against Cain when he had secretly murthered him What hast thou done sayd God to Cain 9 Gen. 4. V. 10. The voice of thy brothers bloud cryeth vnto me from the earth as if that crie of the bloud did occasion the Lord to enter vnto the examination of the impeached person Therefore doth God though he knew all things say vnto Cain What hast thou done If Fame be very brimme and rife 10 Panor c. Tertio loco de probat c. Tua nos de appellat then is it none in iustice for a Iudge though he be but an Ordinarie from whom an Appellation doth lie to omit to make any proofe Iudicially in actes of such fame before hee proceed Albeit if an Appellation bee brought he must then be able to prooue that there was in trueth such a fame before he proceeded But if the fame be not so strong and vehement then it is expedient for such a Iudge to haue the fame being not presented to be in Actes first Iudiciallie prooued by deposition of two witnesses at least For 1 Clarus vbi supra q. 6. so many will suffice to prooue a fame though they be none Officers thereunto assigned But two alone where a greater number is cannot make a fame But when the prince or such magistrates from whom none Appellation lieth doe proceed vpon a fame not presented whether it be verie brimme and vehement or otherwise yet in them it is not requisite to be prooued in Acts 2 Panor in c. cum oporteat de accusationib that there was such fame precedent because it is sufficient to bee so vpon information made knowen vnto them extraiudiciallie For the law presumeth more stronglie for their integrities and freedome from Calumniation Conspiracie and wilfull vniust vexation then of euerie inferiour ordinarie Iudges That Rule which is set downe by Interpreters that A fame ought to appeare or be prooued before a Iudge doe proceed when as there is no Presentment is subiect to diuers exceptions in lawe For first it hath 3 Felyn in c. Qualiter el. 2. de accusat Clar. q. 6. no place in the crime of heresie wherein by the common opinion of writers a vehement suspicion grounded vpon any credible relation doeth suffice to begin a speciall enquirie Secondly that Rule faileth 4 Bald. in l. Nullus nu 1. C. ad l. Iul. Maiest Innoc. in c. cū oporteat nu 5. de accusat when special enquiries be framed either by commandement or by knowledge of the prince himselfe so such commission be obtained motuproprio for the princes own seruice but not at the instance of any partie particularlie interessed therein and such is the Commission ecclesiasticall Thirdly it holdeth not 5 Abbas in c. 1. de offi Ordinar when such enquirie is made not to the end of punishing corporallie but of reforming the partie spiritually for his soules health Fourthly fame is not required 6 Innoc. in c. Qualiter el. 2. de accusat where the enquirie is neither made for any punishment corporall or spirituall but onely to the end to find out whether he that is presented or elected to an ecclesiastical function be worthie thereof or not For in such case to the end of keeping backe an vnwoorthie person the superiour without either fame or other inducement ought to enquire of meere office very
statute 1 25. H. 8. c. 19. All such Canons cōstitutions ordinances synodals prouincial being already made which be not cōtrariant nor repugnant to the lawes statutes customes of this Realme nor to the dammage or hurt of the Kings prerogatiue royall shall now still bee vsed and executed as they were afore the making of that Acte c. So that no Canons establishing proceedings onely diuerse but Canons contrariant or repugnant to the Lawes c. be thereby repealed Nowe we are taught by the rules of Reason that two propositions reteyning otherwise the same termes the one being vniuersally negatiue and the other vniuersally affirmatiue be contrariant one to another And though in materia contingenti both such may be false yet they can neuer be both of them true Therefore if the one be true the other of them must needes be false For example of contraries the Common Lawe holdeth that All aduowsons or right of patronage may lawfully and without Simonie be bought and solde This proposition then being true the contrary proposition hereunto which is established by the Canon Lawe viz. that no right of patronage may lawfully or without Simonie be bought and solde must needes be false and therefore by the Common Lawe doth stand in this Realme repealed in respect of this contrarietie The word Repugnant in the saide statute we see is put after Contrariant as of a greater force and efficacie and therefore is to be vnderstoode according to the common course of our speach albeit the Logicians doe not so vse that worde for the contradictorie opposition consisting of an vniuersall affirmatiue and a particular negatiue or of an vniuersall negatiue and particular affirmatiue And these be so opposite ex diametro and doe alwayes so directly thwart one another that in euery subiect matter whatsoeuer the one of them being true the other must needs be false è conuerso As for example The Canon Lawe holdeth that All fighting in Duello that is to say triall by battaile of one single man against another is vnlawfull But the Common Lawe contradicting this doth holde that some triall by battaile as in a writ of right and in an Appeale of murder or robberie is not vnlawful And againe the Canon Lawe holdeth that none aduowsons or right of Patronages may be in grosse But the Common Lawe is in the flat Contradictorie hereof that some aduowsons be in grosse as well as others be appurtenant to a manoure And therefore in neither of those Cases such Canons haue place in this Realme in respect of this Contradiction and Repugnancie If then it may be shewed that some proceedings of the Common Lawe against crimes be also entred into without either Accusation or Presentment going afore then where the course of both Courts be not so much as diuers there cannot possibly be found either Contrarietie or Repugnancie vnlesse we should say that the Lawes and statutes doe condemne that as vnequall and vniust in Courts Ecclesiasticall which they establish and practise in Temporall Courts for good and iust As then an Appeale brought at the Common Lawe doth most neerely resemble an Accusation in the Ciuil and Common Lawes so hath enditement a correspondence and doeth answere vnto their Presentments being also in statute often called by the name of Presentment These two kinds of prosecution of Crimes at the Common Lawe be mentioned in a statute of K. Henry the fift in these words 1 7. H. 5. ca. vnico Diuers men of malice and enmitie and for gaine and vengeance haue often caused to be indited and appealed diuers of our true liege people of treasons or felonies in the Countie of Lancaster pretending by those Appeales and Inditements c. And though these two be the courses of bringing a man in processu punitiuo into trial of matters Capitall yet for infinite other offences and crimes not Capitall the Cōmon Law hath vse of Bils in the Starre-Chamber and of Informations in the other Courts at West-minster Neither of which can be truely called either Presentment or Accusation Not Presentment because no such peculiar charge of preferring vpon their oathes is layde vpon them as is vpon Iurors at Enquests that finde Inditements or as is vpon Church-wardens and Side-men who make Presentments Not Accusation because as is aforeshewed such Bils and Informations be both of them put vp ex officio promoto Againe they cannot be called Accusations because those who put them vp are not parties but the King is the partie For it is thus said in Statute 2 3. H. 5. ca. vnico He that will sue for the King to attaint them that pay or receiue such coyne as is there forbidden shall haue the one halfe of the forfaiture And after in the same Kings dayes 3 8. H. 5. ca. 3. He that will sue for the King in this behalfe shall haue the thirde part of that pecuniarie paine So that whosoeuer doth preferre or follow them yet the suite is the Kings and he the partie whose also the Court is where the suite is prosecuted It may appeare that at the Common Lawe other meanes besides Appeale and Enditements which respectiuely doe resemble Accusation and Presentment be receiued to ground a Iudges Enquirie vpon in Processu informatiuo whereupon also followeth oftentimes processus punitiuus that is the triall of the Offender As first by the common custome and practise of the land For doe not some seuerall Iustices of the Peace vpon their owne suspicion conceiued or vpon secret relation of others whome they credite send for men by warrant to be apprehended and brought afore them doe they not take informations sometimes against supposed offenders vpon depositions of witnesses before the partie be sent for Doe they not also without any such witnesses often-times examine the partie himselfe and according to their discretion binde him to the Peace or to his good behauiour or perhaps send him to the common gaole to be imprisoned Doe they not receiue and sometimes preferre and procure enditements to be found as of common Barattarie and such like Crimes vpon their owne onely suspicions or by information of some one other perhaps an enemie and vpon other as meane presumptions Are not sundrie persons trauelling through some towne or founde in some priuie searche lodging there with good reason oftentimes brought to a straite examination and enquirie of matters Criminall vpon the onely view of their persons and deportment without all further intelligence or cause of suspicion Yet be all these without Appeale or enditement and many times vpon as light and perhaps lighter suspicions and informations lesse likely and credible then any be admitted in like case by the Commissioners ecclesiasticall and much lesse by Ordinaries who must in case an Appellation be brought in a more strict course of Lawe be able soundly to iustifie the inducements that they had to leade them into those criminall questions and enquiries Yet vpon these grounds alone not onely
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
testamentarie nor matrimoniall But it may perhaps be sayd that great abuse may hereupon folow if the Iudge list to vexe a man wrongfully for he may pretend strong Euidence and Information or a common fame to be against a man or such like afore shewed whereof he is crediblie aduertised Well if it be but so much that the ecclesiasticall Iudge when he is called by his superiour must be able to make proofe of some such it is more then a Iudge or Iustice of Peace neede shew why he calleth any man into question or bindeth him to the peace or to the good behauiour And what lawes can be deuised but they may be abused whatsoeuer hath an vse hath also an abuse sauing vertue saieth 3 Aristot. in Rhetoric Aristotle Yet if he be an Ordinarie as hath bin aforeshewed such grounds of his proceeding must appeare in Acts Iudiciallie or be well prooued or else vpon an Appellation his proceeding is to be refourmed Besides is it not more probable that a Partie which will accuse shall doe it of malice to vexe oftentimes an innocent and to bring him into perill then a Iudge who reapeth no commoditie thereby but satisfaction of his duetie and is not he more like to deale in these causes with sinceritie then quilibet è vulgo yet by this opinion such are permitted to accuse and to preferre matter against any though no fame nor other matter no not so much as suspicion doe appeare against them Is it not then all one whether the innocent man be wrongfully vexed by the Iudge or by a priuate person who in a maner professeth that he doeth it of malice neuerthelesse for all this inconuenience and abuse that may happen it will not be thought conuenient I trust to damme vp the way from euery man both Iudge partie to preferre suites against offenders For if it should so be in short time there would bee neither Iudge nor other but lewd persons onely and they might liue as they list Yea but it seemeth vnreasonable will some man say that a man should be called into question and not to know his Accuser Surelie if the way of proceeding by Accusation be taken he is to know him but when by Enquirie though for the most part the Denouncer is knowen yet there be many weightie and very considerable causes why euen witnesses in cause of heresie and much lesse those that gaue the information should not bee knowen which euerie man of himselfe without rehearsall can weie and call to mind Besides this obiection maketh nothing against all proceeding ex officio For when it is grounded and instituted vpon a Presentment by officers speciallie appointed their names are knowen to him whose processe is made Yet I must tell you that hereby it commeth oft times to passe that meane men in parishes abroad and for very foule crimes do rather make choise to be bold with their oath and conscience then with a delinquent whom they haue some occasion to feare But I pray what necessitie is there in Iustice of knowing the Relatours may not a Iurie endite a man without any cause openly appearing as when the matter is either knowen to some of them aforehand or the Euidence as some times happeneth is not giuen openlie which cases happening the partie endited shall neuer know who gaue the information because they are sworne to keepe secret the Queenes their owne their felowes counsell Which course for the trouble of the partie supposed to be delinquent doeth amount to as much as if the Iudge ex officio mero had done it When the Lords of the Counsell haue a supposed malefactor in examination are they bound in Iustice or were it but good policie to signifie vnto him who it is that giues the information and to confront them together at first dash but howsoeuer these by circumstances should be thought fit to be caried it is neither to nor fro to the condemnation of all proceeding vpon the office of the Iudges onely as vniust whether a man know or be ignorant who made the Denunciation CHAP. XII A Replie to the Note-gatherers answers giuen to certaine reasons that haue bene made long agone for to shew the like course to be also practised in temporall courtes and an answere to his reasons brought to prooue that in proceeding of Office there is some contrarietie to the lawes of England SIr Thomas More in his aforesayd Treatises to shew that it is not simply vniust vpon some occasion to conceale the names of those that gaue the information alleageth that in like sort at the Common law a man may be endited none euidence openly giuen at the barre and that the enditers be bound to keepe the kings counsaile close To this the Note-gatherer answereth first that before the partie answere or bee arraigned he knoweth the matter wherewith he is charged So doeth he also in ecclesiasticall courtes so soone as the matter is obiected vnto him Secondly that the inditement goeth to particular matter it must be certaine And so do articles also in a court ecclesiasticall Thirdly that they which indite him shall not be Iudges of him nor arraigne him No more shall they who present or denounce a man to an ecclesiasticall Iudge be Iudges of him and therefore whatsoeuer the Note-gatherer say to the contrarie it is not aliter ex officio Fourthly that Iudges in such a case are to proceed circumspectlie And so must they doe in other cases as well as this and so must ecclesiasticall Iudges also Fiftlie that two witnesses must be at the arraignment vnlesse the partie willingly confesse the same And so it is in courts ecclesiastical For without the parties confession or two witnesses none may be absolutely conuicted And yet this which he here saieth is not generall in all arraignments For the statute 1 1. Edw. 6. c. 12. made the 1. yeere of K. Edward the 6. which hereunto he voucheth mentioneth to this purpose onely treason and misprision thereof The said statute is also repealed since by Q. Mary The other statute 2 1 2. Ph. Mar. cap. 10. 1 2. of Philip Mary that he alleageth is onely for such triall of treasons that be made treasons by that Act. For the self same Act doth appoint all other trials of treason to be made according to the due order course of the Commō lawes But though it were so that at all trials two witnesses should of necessitie be present though it were admitted that his other foure answers were true in fact that the courses of proceedings ecclesiastical were to the contrary yet these do not any way impugne or ouerthrow sir Th. Mores reason viz. that mē may be endited not know who gaue the euidence or preferred it in like sort as some know not who preferred vp matter of crime against them into courts ecclesiasticall and therefore this must needs be wholy impertinent and besides the purpose Vnto another reason
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
in Bishops proceedings against the Canons 3 c. statuta de haeret in 6. is that they suffer not publication to be made of the witnesses depositions which is a meere slander without any colour of truth Neuerthelesse when by publication of the witnesses names that haue deposed in matter of heresie great perill might grow vnto them through the friends of the impeached or otherwise in that case only the Canons with certeine moderation and cautions do permit vpon the Iudges discretion the names of the witnesses to be suppressed from the defendant and to be kept from being published abroad at all Thus much concerning obiections made by the Treatiser Note-gatherer out of the Ciuill and Canon lawes against all proceeding of Offfce with offenders CHAP. XV. Enquiry and proceeding of Office r◅thout an accuser and grounded vpon some other of the meanes afore prooued sufficient to enter into such enquiry is approoued by sundry examples of Scripture FOr proceding against crimes by enquirie and of Office sometimes vpon the denunciation of one sometimes vpon fame or heare-say sometimes vpon notoriousnesse of the fact and sometimes vpon a suspicion onely conceiued but still without partie to accuse and prosecute we finde diuers not obscure traces in the Scripture it selfe Vnder the law of nature when 1 Gene. 38. V. 24. 25. one tolde Iudah prince or head of his familie and therefore a magistrate that Thamar his daughter in law in her widowhood was begot with childe at that mans onely relation without further accusation and vpon the notorious euidence of the fact of Office he gaue sentence that she should be burned When Ioseph 2 Gen. 44. V. 5 6 7 8 9 10. had caused his siluer cup to be put in Beniamins sacke had sent his steward to search them all who also charged them with this theft and vpon pretended suspicion only did enter to an enquirie and to make further search yet there was none of them that appealed to the law of nations as if they were vniustly dealt with hauing none accuser but ioyned issue with him and flatly denied the matter In the trial of 3 Num. 5. V. 12. deinceps ielousy vpon the only suspicion of the husband though somthing be extraordinary therein and ceremoniall yet by that enquiry of the Priests to the apparant great perill of the woman if she were faultie we may note this part of iustice in course of that iudgement viz. that there is none accuser or party that pretendes he can or will prooue it For of the husband who findes himselfe grieued and therfore onely denounceth her to the Priest it is said this enquirie shall be made because 4 Vers. 14. the spirit of ielousie is vpon him It is also there said to be done when 5 Vers. 13. the sinne is secret and the husband knoweth it not but only suspecteth it when there is no witnes against her nor she taken in the maner and therfore such as it may not be intended the husband becomes the accuser pretending to make proofe of the very fact yet neuertheles it is testified there that for bringing her to so dangerous an enquiry trial the 1 Ibid. V. 31. husband shall be free from sinne If a man bee entised secretly to Idolatrie by him or her that is dearest and nearest vnto him God commandeth thus in this case 2 Deut. 13. V. 6 7 8 9 10. Thou shalt not consent vnto him nor heare him neither shall thine eye pitie him nor shew mercy nor keepe him secret but thou shalt euen kill him thine hand shall bee first vpon him to put him to death and then the hands of all the people and thou shalt stone him with stones that he die In that it is here sayd Thou shalt not keepe him secret that the hands of all the people must be vpon him it appeareth y t the iudgement must be publike not done by priuate authoritie alone for 3 Mat. 26. V. 52. euery one that by vsurpatiō taketh the sword shall perish with the sword Then if this iudgement must be publike where is there any Accuser for he that reueileth and denounceth it is a witnesse in that his hand must be vpon him according to that other part of the law viz. The 4 Deut. 17. V. 7. hands of the witnesses shal be first vpō him to kill him and afterwards the hands of all the people Nay how can such an entiser possibly be condemned except it be vpon his owne examination and so by course of enquirie seeing 5 Nomb. 35. V. 30. Deut. 17. V. 6. one witnesse shall not testifie against a person to cause him to die so that here we haue in Gods owne law a iudiciall course in a capital matter and secret instituted vpon one priuate mans denunciation who is so farre from being an Accuser properly taken that he is a witnes and the sinne to be found out by course of enquirie vpon the parties owne examination in so much as there can bee in this case none other way of conuiction Likewise in the same chapter it is prescribed thus that 6 Deut. 13. V. 12 13 14 15. if thou shalt heare say concerning any of the cities which the Lord thy God hath giuen thee to dwel in wicked men are gone out from among you and haue drawen away the inhabitants of their citie saying Let vs go and serue other gods which ye haue not knowen then thou shalt seeke and make search and enquire diligently and if it be true the thing certaine c. thou shalt euen slay the inhabitants of that citie with the edge of the sword destroy it vtterly and all that is therein the cattell thereof with the edge of the sword where we plainly find diligent enquirie vpon heare-say and fame commanded and prosecuted of office euen vnto condemnation and execution without any mention of Accuser or prosecuter of the cause In the same booke afterwards and for the crime of idolatrie likewise it is thus appointed 1 Deut. 17. V. 4 5 If it be told vnto thee and thou hast heard it then thou shalt enquire diligently and if it bee true and the thing certaine that such abomination is wrought in Israel then shalt thou bring foorth that man c. and shalt stone him with stones till hee die So that here also we haue a fame or perhaps but the denunciation of one man whereupō the magistrates enquirie is grounded and vpon the enquirie the magistrates sentence finding the matter true and certaine the execution of the iudgement all without Accuser or prosecuter For grounding proceeding criminall without accusation vpon the notoriousnesse of the fact we haue a course prescribed in these 2 Deut. 22. V. 22. words If a man be found lying with a woman maried to a mā then both twaine shall die And 3 Ibid. V. 28. againe If a man find a maid that is
then shall ye doe vnto him as he had thought to doe vnto his brother Whereby may appeare that he that is said to accuse is termed a witnesse three times and his falsehood is to be found out by the Iudges inquisition This also appeareth more plainely by the story 7 Dan. 13. V. 34 40 62. of Susanna where the Elders were witnesses and there were none other Accusers So in the 8 Deu. cap. 21. V. 18 19 c. condemnation of a disobedient sonne there is none other Accuser but the very parents that make the complaint and beare witnesse also So that we finde in Scripture proceedings of office grounded vpon Denunciation of one person vpon heare-say vpon suspicion and vpon Notorietie of the fact aswell by Iudges Ciuill or Temporall adiudging vnto a temporall punishment by Iudges being both Ciuill and Ecclesiasticall and by ecclesiasticall alone inflicting the like penalty as also by ecclesiasticall Iudges proceeding to censures ecclesiasticall without any accusation or partie to prosecute other then the Iudges themselues And therefore criminal proceeding of office consequently without Accuser and likewise without any solemne presentment is by manifolde examples of Scripture sufficiently approued for lawfull godly CHAP. XVI An answere to such obiections as out of Scripture or ecclesiasticall writers be made against criminall proceeding of Office by the Note-gatherer and others AGainst this are obiected two places out of the Actes of the Apostles It is not the 1 Act. 25. V. 16. manner of the Romanes for fauour to deliuer any man to the death before that he which is accused haue the accusers before him and haue place to defende himselfe concerning the crime And the 2 Act. 23. V. vlt. other I will heare thee when thine accusers also are come By which they would gather that the very Heathens knew it to be contrary to equitie to proceede against a man otherwise then by Accusation But both receiue one answere In deede the vsuall and most ordinarie way of proceeding among the Romanes in veteri Republica before it was reduced to a Monarchie was at the first in crimes capitall where the people was Soueraigne Iudge by way of Accusation as is more largely touched afore And next vnto seruice in warre eloquently to accuse a man before the people was the readiest steppe that forward wittes sought 3 Cicero 2. offic Plutar. in Lucul credite and countenance by being an especiall meane to beare offices of honour in that Common-wealth Vpon which occasion it was in great credite and vse till through sundry calumniations to bring men wrongfully into perill of attainder they were forced per S. C. Turpilianum and other lawes to lay most grieuous penalties and dangers both vpon those that did not proue that which they obiected and therefore were presumed calumniari or who did praeuaricari i. collude tergiuersari wrangle or desist from prosecuting So that being so dangerous to the accusers in many respects it became afterwards to be lesse frequented Yet alwayes both before and after this they obserued that when there was any that woulde be Accuser or partie seriously without collusion there the Iudge neuer enquired ex Officio for vbi adest remedium ordinarium ibi cessat extraordinarium as that was holden then sauing in certaine cases afore by me touched But this Crime here obiected against Paul was accounted capitall by the Iewes and he had ynow that were his Accusers so that there needed to be none Enquirie ex officio mero against him That he had accusers who determined to prosecute him appeareth by these places The 1 Acts. 22. V. vlt. Captaine would know the certaintie wherefore he was accused of the Iewes Againe 2 Acts. 33. V. 29. he was accused of questions of their Lawe and further 3 Acts. 23. V. 30. Claudius Lysias the Colonell signifieth plainely by letter to Felix the Gouernour that he had commanded his accusers to speake before the Gouernour the things that they had against Paul So that the Gouernour not knowing the cause and knowing that the Accusers were commaunded to prosecute before him had iust occasion to say that he would then heare him when his Accusers came And in the next Chapter Tertullus an 4 Acts. 24. V. 2. Orator did accordingly come with others of the Iewes and accused him before Felix Likewise when he was afterwarde conuented before Porcius Festus the Gouernour that succeeded next the Iewes 5 Acts. 25. V. 7. 18. that came thither from Ierusalem layde many and grieuous complaints against him And after more plainely thus against whom when the Accusers stood vp they brought no Crime of such things as I supposed But to make it plaine euen out of that place that the Romanes besides the way of Accusation vsed also vpon cause to enquire of Office Lysias the Colonell by occasion of the crie and vprore made against Paul did without any mans 6 Acts. 22. V. 24. instigation and therefore of Office commaund that hee should be scourged and examined that he might knowe wherefore they cried so on him Where by the way appeareth not onely that he was then proceeded with of Office but also it was meant that hee should be vpon those onely enducements examined by torture of matters that might be Poenall to himselfe Neither did Paul take exception against this course as vnlawful nor the Captaine conceiue feare that he had done more then he could iustifie in any other respect but this because Paul was a Citizen of Rome For they had a law 1 Duodecim Tab. that a Citizen might not be beaten with roddes nor tortured any way but by decree of the people And yet any other of their subiects might be and were often so vsed It is notorious to them that haue read any thing almost of the state of that Common-wealth that the Dictators who for their halfe yeere had a Soueraigne authoritie did enquire and punish euen capitally ex Officio as they in discretion thought meete The Censors of maners had and practised for their fiue yeeres space the Enquirie and punishment ex Officio of sundry misdemeanors and dissolute courses of life not capitally but either by deposing men from their offices and degrees by noting them with infamie by corporal punishments of the lighter sort or by fine or by all these But the Note-gatherer maketh also moe quotations out of the ancient fathers which because they mention not an othe at all I doe therefore referre them to this place as brought by him to prooue that no proceeding Criminall may be vpon the Iudges Office alone First none of the places quoted out of Origen haue any resemblance of this matter That which he quoteth out of S. Ambrose 2 Ambr. li. 8. â—…pist 64. in respect of some difficultie doth require to be plainly opened Syagrius bishop of Verona had called afore him one Indicia sanctificata benedictione a professed Virgin as I take
If Iudiciall then they binde none precisely but the people and Common weale of the Iewes but if they be Morall lawes which onely remaineth and of which sort in deed they are then consequently are they of the lawe of nature and that the said prohibitions be in deed Morall lawes and of the lawe of Nature appeareth by the words of God himselfe generally testifying of them all that for such abhominable incestuous matches as be there specified and forbidden he did cast out the Cananites and other people of the land before the Israelites But they being heathens had none other lawe but the lawe of nature to take knowledge of or to binde them and therefore could not for those pollutions haue bene iustly punished if the prohibitions of them had not bene by the lawe of Nature which bindeth all men indifferently In the third case videlicet when a Promissorie oath tendeth onely to the profite and benefite of some particular person to whom such promise is made as namely an oath of a Soldiour to his Generall of a Subiect to his Prince of a Tenant to his Lord or of a bondman to his Master it is generally holden that hee to whose onely behoofe it was made may sufficiently agayne discharge it because it is intended the promise is in deed then performed vnto the superiour when it is disposed of according to his pleasure and as he liketh best of The fourth and last aforesayd sorte of oathes Promissorie is the speciall subiect wherein if in any a dispensation may properly haue place To dispense or to discharge a man from an oath taken hath two diuers significations and acceptions for it is taken either for a release of the very bonde of the oath so that the partie should no more before God bee tied thereunto or else for a sound interpretation and declaration that vpon some euent ensuing or discouered vnto vs afterward or other considerable circumstance such oath doeth not necessarily before God require a performance A Promissorie oath is made either for confirmation of some thing vnto the performance whereof wee are otherwise also bound by Gods lawe or by the lawe of nature or of such as for accomplishing whereof we are besides our oath tied by positiue lawe of man or of such as otherwise then by oath we no way stood bound to fulfill The last of these three is also of two sortes for it either concerneth matter some way tending to the seruice of God and humbling of our selues before him voluntarily by vs promised or else matter humane and ciuill onely by our oath confirmed In the first of those three last wherein besides our oath wee are bound by Gods lawe or by the lawe of nature a dispensation by way of release of the bond of the oath cannot by any humaine authoritie be giuen for else a man might hereby be set at libertie not onely to breake the law of God and nature which is eternall and immutable but to goe against his owne oath also which being Praeceptum iuris Diuini is also in that sense vndispensable Except a man should absurdly imagine as the heathen Romanes did of a water that was in Via Appia consecrated vnto Mercurie for they 1 Alex. ab Alexand Genial dier were so besotted as to thinke if a man did besprinkle his head with a Lawrell branch dipped in that water therewith calling vpon Mercurie that by such expiation hee was clearely discharged from any breach of oath and from periurie But as dispensation is taken for a sound and true interpretation of those lawes how farre they reach and where the generall wordes of them ought to cease it hath place euen in these whether they bee precepts Affirmatiue or Negatiue that rule of the Schoolemen notwithstanding videlicet Praecepta diuina negatiua obligant semper ad semper Praecepta affirmatiua licet semper tamen non ad semper For examples sake first in Precepts Negatiue conteined in Gods lawe if a man shall sweare for more precise obseruation of that commaundement Thou shalt not kill that he will neuer shed any mans bloud yet if in necessarie defence of his 2 l. vt vim ff de iust iure ibi gl DD. person or 3 Iason in d. l. qui dicit eum esse communem Diaz reg 597. goods hee shall afterward kill a thiefe the Superiour may in this case by way of such dispensation lawfully declare that hee is not hereby to bee holden guiltie of the breach of that commaundement or of his oathe Likewise if a married man who voweth and sweareth neuer to companie with any woman but his wife during their two liues shall without any negligence or default of his bee herein wickedly deceiued by another woman which is by him taken to be his owne wife it may for his satisfaction by such dispensation bee determined declared that hereby he hath neither offended against Gods lawe nor his oath In precepts affirmatiue conteined in Gods law 4 Matth. 12. v. 5. 8. Christ himself hath declared that the Priests imploied on the Saboth about the sacrifices of the Temple or those who on that day 5 Ioh. 7. vers 23. circumcised children and others 2 Matth. 12. vers 10. 12. Marc. 3. vers 4. Luc. 6. vers 9. doing on that day the necessarie workes of charitie or that 3 Luc. 13. v. 15. Luc. 14. vers 5. whereby mans life is necessarily susteined do not violate the Saboth therein If our parents to whome wee doe owe and perhappes haue also sworne honour and obedience shall command any 4 l. Lucius ff de cod Demonst. L. nepos ff de verbis signific L. silius ff de cond institut vnlawfull or dishonest thing as to betray our Prince and Country c. it is assured that in not performance hereof it may and ought to be declared neither Gods commaundement nor our oathes to be thereby violated Though a Iudge should sweare to accept euermore in iudgement of the depositions of two witnesses produced for proofe of any matter so they be not excepted against iustly by the aduerse partie according to that saying of our Sauior Christ In the mouth of two or three witnesses euery word shal be established Neuerthelesse if according to direction of mans 5 Iust. de Testam §. 1. c. relatum c. cum esses ex d. tit positiue lawe in this behalfe he shall reiect the testimony of children being but tenne or twelue yeeres of age it may and ought to be declared that herein he doth not offend against the oathe by him taken The like is true of any oath in generall because the commandement of God for performance thereof is not so 6 L. non dubium C. de legibus peremptorie that it doeth binde vs to doe any thing which is in it selfe wicked for non 7 c. non est de reg iuris in 6. est obligatorium contrabonos mores
praestitum iuramentum The like may be saide ofsundrie lawes of nature wherein this kinde of dispensation by interpretation hath place no lesse then in the former and are needelesse to be further here exemplified Touching the second member of the matters of Promissorie oathes viz. whereby an oath is taken for a fuller confirmation of that whereunto we are also bound by positiue lawe it is much more assured that according to the second acception of dispensation such oathe may be interpreted and declared not to binde where indeede it ought not by the true meaning of the Lawe howsoeuer the generalitie or pregnancie of the wordes may strongly perhappes seeme to weigh vnto the contrary Yea and in the first sense a dispensation of relaxation by a Soueraigne Prince or other thereunto aucthorized may be graunted for release of an oathe made in performance of some positiue lawe But this is onely by way of abrogating such Lawe or Statute either altogether or as towardes that person or for some particular action and time and not by way of releasing the very bond of the oathe which is not subiect to mans power For when such Lawe or Statute is disanulled and gone as locall Statutes of Colledges c. may bee euen heere in Englande then the Oathe made vnto them as vnto Lawes or Statutes must needes withall so farre cease and be released When the matter is such as for performance whereof otherwise then by our voluntarie oathe taken we no way stoode bounde whether it bee in Actions Religious or Ciuill the bonde of our Oathe if in verie trueth wee did at first in foro poli stande tyed may not by anie man bee released Neuerthelesse a dispensation of true interpretation hath place in this very especially and such interpretation may bee needefull sometimes in respect of the very matter promised by Oathe to bee perfourmed being indeede no due matter for an oathe As the oathe for single life vowed by such as haue not the speciall gift of Continencie Sometimes it may bee requisite in respect of after-euents as if I sweare and vowe to God to keepe some certaine spare and so straite a diet as through weakenesse and infirmities after happening I can not possiblie obserue without apparent daunger of the losse of my life And sometimes this kinde of dispensation may haue necessarie place whereas some thing doth after fall out or at least is discouered which I neuer forethought or if I had by all probabilitie I woulde neuer haue vowed or vndertaken so much Examples of these you may frame many out of that which hath beene answered to that question whether all promissorie oathes were absolutely to be kept or no Lastly some doubt may be stirred whether a Christian may capitulate or contracte by mutuall oathes giuen and taken with a Pagan or heathen Prince or other priuate person that taketh his oathe by Idoles or by false gods seeing in so swearing hee sinneth greatly in that hee giueth thereby that reuerence vnto them which is onely due to the true and euerliuing God This verie question was asked of Saint 1 Aug. ep 154. ad Publicolam Augustine by Publicola and hee did thus answere him hee that vseth sayeth he the credite of him that sweareth by false gods not vnto euill but vnto good hee doeth not communicate with that sinne of swearing by Diuelles but is partie onelie to those lawfull couenants wherein the other perfourmeth what hee sware Yet if a Christian shoulde any way induce or drawe an other to sweare by them heerein hee shoulde sinne grieuously And least any man weigh this learned fathers iudgement heerein ouer light wee haue also an example heereof in Scripture and vncontrolled for 2 Genes 31. vers 53. Iacob tooke an oathe of Laban swearing by the God of Nachor Nowe we 3 Iosh. 24. vers 2. reade in Scripture that this Nachor was an Idolater and serued strange gods Hitherto of some doubts that may be mooued touching oathes CHAP. III. Diuision of Oaths according to the outward forme of taking them according to the matter and inward forme of them with plaine description of euery kinde of oathe NExt followeth to bee discussed howe manie sortes and seuerall kindes of oathes there bee and howe they differ one from another An Oathe as touching the outwarde forme of taking it is eyther verbally or corporally taken Uerball when by wordes or speeche onelie wee conceiue the forme of the Oathe as God is my witnesse The Lorde liueth c. Corporall when by some outward gesture or acte in taking the Oathe wee testifie that wee accept of it as it is ministred as by laying hande on a booke on our breast or vnder the thigh of him that ministreth it as Abrahams seruant did Againe some oathe is solenne iuramentum and others be not that oath is called 4 L. 3. 5. l. in fine 34. §. qui iusiurandum ff de iurciurando solenne which hath certain solēnities prescribed and endited either by the parties thēselues by the Iudge or by the Lawe with certaine set-conceiued wordes from which he that sweareth may not vary but if hee doe his Oath shall not be accepted All these may be giuen and taken in two seuerall sortes Either simply as thus I speake it before God c. or with some imprecation to our selues or others whome wee holde very deare vnto vs adioyned thereunto as thus So and so 1 1. Reg. ca. 3. do God vnto me and more for thereby wee doe expresly as it were deuote and binde our selues or them vnto the punishment of God if that be not true which wee sweare Of this kinde I finde examples in Scripture that 2 1. Sam. 14. vers 24. Neh. 5. vers 12 13. some were so imposed by Magistrates and 3 1. Sam. 14. vers othersome were voluntarily so taken The examples of them both you may see in their seuerall places according to the directions giuen by quotations in the margent An example of an oathe taken voluntarily by imprecation wee also finde in the 4 4. 1. Sam. 20. vers 13. 2. Sam. 3. vers 9. 35. 2. Samu 19. vers 13. Neh. 10. vers 29. 42. Cor. 1. ver 23 new Testament for Paul saieth I call God to witnesse vnto my soule which is to execrate his owne soule if he had not sworne truely So much of the outward forme of an oath There are besides that two principall diuisions of an oath the one respecting the matter of it according to the circumstance of time the other which considereth the inward forme with other circumstances For the first euery oath is either concerning a thing past or present and this is called Assertorium iuramentum or else touching a thing to come and it is called Iuramentum promissorium For the second diuision an oath may be made either iudicially or extraiudicially And both these in oathes promissorie are either Confirmatoria actus futuri as in iudgement that I
the finding out and fetching of a wife for his sonne Isaac of his owne kindred hee willed him to lay his hand vnder his thigh with this ceremonie likewise 2 Gen. 47. v. 29. did Iacob take an oath of his sonne Ioseph that hee should not burie him in Aegypt thereby as it were signifying that simplie they were to take the oathe euen as they looked for Saluation in the promised Messiah that was to descend of those two Patriarkes according to the flesh So doeth Saint 3 Aug. de ciuit Dei lib. 16. ca. 33 Augustine interprete this ceremonie The hand saieth he put vnder the thigh did signifie that the Lord according to the fleshe was to descend from that person Another ceremonie besides this we find vsed in holy Scripture when such corporall and more impressiue oathe was taken and that is the lifting vp of the hand towards heauen a gesture so commonly vsed that sometimes it is taken for the oathe it selfe For Abraham 4 Gen. 14. v. 22. 23. sayd to the king of Sodome I haue lift vp my hand vnto the Lorde the most high God possessour of heauen and earth that I will not c. Likewise God saieth in 5 Deut. 32. v. 40. Deuteronomie I lift vp mine hand to heauen and say I liue for euer And likewise where it is 6 Exod. 6. v. 7. sayde I will bring you into the lande which I lift vp mine hand id est sware that I would giue to Abraham Isaac and Iacob So the Prophet Ezechiel I 7 Ezech. 20. v. 15 lift vp mine hand vnto them in the wildernesse that I would not bring them into the lande c. That these were oaths taken with that significant ceremonie another 8 Dan. 12. v. 7. Prophet declareth I heard the man clothed in linnen which was vpon the waters of the Riuer when hee helde vp his right hand and his left hand vnto heauen and sware by him that liueth for euer with the same pertinent gesture doeth the Angell in 9 Apoc. 10. v. 5. the Reuelation sweare by the liuing God lifted vp his hands towards heauen where by immutable prouidence that was decreed from whence commeth swift iudgement vpon all that make or loue leasings This gesture in taking a corporall oath was so vsuall that from the people of God it seemeth to haue bene deriued downe and taken vp euen with the Gentiles 1 Virgil. lib 12 Aenead sequitur sic deinde Latinus Suspiciens caelum tenditque ad syderadextram Haec eadem Aenea terram mare sydera iuro as Virgil writeth And no lesse is by some thought to be meant in the Digests of the ciuil Lawe by the word 2 L. quidam ff de probationibus emissamanus Yea and the practise of that very ceremonie of swearing with laying hand vpon the holie Gospels was both had and allowed by the Fathers in the Primitiue Church as appeareth by Saint 3 Aug ad Publicol epist. 154. Augustine in his Epistle ad Publicolam In the times of the ancient Christian Emperours it was receiued and vsed in Ciuill Courtes An oathe saieth 4 Nouell Iustin. 8. vel 9. Iustinian is then saide to bee corporally taken when a man in swearing doeth touch with his hand the holy Gospels And againe 5 L. generaliter § in omnibus C. de rebus credit iureiur Whether the oathe be to be taken in tublike iudgement or in houses or in holie Oratories or with touching the holie Scriptures c. And it is prouided not 6 L. rem non nouam § patroni C. de iudicijs onely that they shall be taken tactis sacrosanctis Euangelijs but that 7 Ibidem ante the Scriptures shall lie continually before the Iudges sitting in iudgement that both they and the suters may bee put in minde that the iudgement is Gods and doone in his presence For touching the holie Gospels at the taking of an oathe wee haue other testimonies also recorded in 8 L. 2. C. de iuramento propter calumniam dando § 1. § nulli de sanctiss ep in Auth. ancient lawes So for the laying of holie Scriptures before them at the time of taking oathe both 9 Auth. sed iudex C. de episcopis clericis c. fin de iuram calumniae Clem. 1. de homicid Clem. 1. § porrò de haereticis out of Lawe and Canons And by the most generall custome of all Christendome the same ceremonie in taking a corporall oathe is vntill this day continued But it is 10 Panorm in c. li Christus de iureiur reported that in Italie they vse to lay their hand vpon any Booke Bible or other And it seemeth by a 11 Duarenus in tit ft. de iureiur ca. 11. French Writer that they which sweare there doe vse to holde vp their hand towards heauen thereby signifying that they call God to witnesse In some other places they take a corporall oathe by laying their hand on their breast But where the Treatisor repreheÌ„deth at taking an oath a vaine ceremonie and sond inuention as he calleth it of stretching out three middle fingers vpon the booke the thombe and litle finger vnder it with some mysterie by him supposed thereby to be signified as if hereby this Church of England or present regiment therof which he oppugneth were therein to bee touched Truely hee might with lesse shewe of humour haue spared that vaine and fond inuention insomuch as no such matter is either by law commanded by Iudges vrged or by any others practised One other Ceremonie or maner of taking an oath is by some of them also reprehended that is for swearing by the booke or by the contents of it We doe finde in a very old statute of this Realme termed the awarde of Kenelworth these 1 51. Hen. 3. wordes All that haue to doe in this bâ—…halfe shall sâ—…eare vpon the holy Gospels of God that none shall take reuengement c. by occasion of the Commotion And in the same Statute not onely vpon but also by the holy Gospels For it is there thus 2 Ibidem conteined Those that haue bene robbers in warres roades and haue nothing shall come and sweare by the holy Gospels of God finding sufficient suretie that from hencefoorth they shall keepe the peace and suffer satisfaction and penance after the iudgement of the Church where by the way may be noted that it seemeth Ordinaries then did and might enioyne penance and satisfaction to parties delinquent for wrongs done by them in temporal goods and chattels The maner of swearing by the 3 1. Eliz. ca. 1. contents of the Booke is prescribed to bee vsed in the oath of the Queenes supremacie But is this the onely cause thinke yee that some of that suite refuse wholy to take it or come very hardly vnto it Some of them mince it and glose vpon it and I know not
The true issue of the next opinion in question two sortes of crimes and offences prohibited in what cases an oath here spoken of may not be ministred and the manifolde conueniencie and necessitie of an oath sometimes to be ministred in a cause criminall and penall vnto the partie with some fewe obiections touching inconueniencie thereof answered NOwe followeth the most principall chalenge by this sort of men and it is that which they make against such oath as I termed afore an oath of purgation and of Enquirie which is when a Iudge hauing some one or mo of those grounds treated of and prooued afore sufficient in equitie and lawe to ground an Enquirie ex officio against a crime doeth accordingly proceede and vrgeth the partie conuented to answere the matter and circumstances whereon the Enquirie to the ende of Purgation or els to punishment and reformation is framed vpon his corporall oath though the matter be criminall thereby may happen to be penall to him selfe and perhaps vnto others also Nowe whether such oath may by a Magistrate lawfully be vrged and therefore not to be refused by the partie is the very issue of this question Crimes and offenses are of two sortes they are either prohibita quia mala that is either mala perse in their owne nature wicked therfore by lawes forbidden or such as of their owne nature are not simply euill but therefore made euill because for some publike good ende they are forbidden by positiue lawes Whether in both these sortes of crimes those men doe thinke such oath to bee vnlawfull or but in the one of them and in whether of the two I haue not yet heard any resolution and therefore will bring my proofes indifferently for either But these two cautions you must be forewarned of First that it is not holden by any Law in England nor by practise of any Court here vsed that a man should be examined vpon his oath touching a crime whereby his life or any of his limmes may be endangered The reason why the lawes thought it vnreasonable to stretch it thus farre was for feare of periurie because it cannot be entended of most men but they will rather hazarde an vntrue oath then either their life or limmes Skinne for 1 Iob 2. V. 4. skinne sayth Satan to God and all that euer a man hath will hee giue for his life And to this very purpose is the same text not vnaptly alleaged euē by the Treatisor himself which maketh me the more to maruell at the Note-gatherer pretending to be both so great a Diuine Statesman also that he could not see this to be far the sounder opinion by diuinitie and that he knewe not the policie and custome of this Realme to concurre also therewith howsoeuer he auouche the contrary as 2 Part. 2. ca. 10. pag. 93. afore is by me noted The next caution is that if the Iudge haue probable cause to suspect the partie to be such one as will 3 Iul. Clar. lib. 5. § finali q. 45. forsweare himselfe rather then tell a trueth there he ought also to abstaine from tendring oath vnto him especially touching a crime This not onely by lawe is required but as ancient Fathers iudge by diuinitie also 1 Aug. de decoll Ioh. Bapt. ser. 11. quare sayth S. Augustine prouocasti hominem ad iurationem quem sciebas falsum esse iuraturum why didst thou prouoke such one to sweare as thou knewest would sweare falsely And 2 Aug. ibidem againe the same learned Father he that prouoketh a man to sweare whom he knoweth will sweare falsely is worse then a man killer for a man slayer killeth but the body but this man goeth about to kill the soule yea two soules that is his whome he so prouoketh and his owne soule An example hereof may be of him which knowing the very trueth yet deferreth an oath decisory whereas a Iudge though he know it not but only haue probable suspition that the partie is like wilfully to periure ought not to vrge an Oathe at his hands In the handling of this oath ministred to a partie ex officio in a cause criminall and thereby penall to him I propound this order to my selfe First to diduce downe more largely that equitie which is afore in the ninth Chapter of the second part shewed to be in the Enquirie of Office vnto this chiefe and most vsuall act in such Enquirie that is of examining the partie by his corporall oath with answere to some fewe obiections made against the equitie and reasonablenes of it by the Treatisour Next I meane to shew it to be so far from being contrary to the lawes of the Realme that by them it is often vsed and practised with answer to such reasons as be made to proue the contrarie Then that the lawes of the Realme doe allowe it in Courtes Ecclesiasticall Fourthly that it is practised and allowed by Canon and Ciuill lawes And that it is in vse amongst other nations with answere likewise to obiections made to the contrary Sixtly that it is practised and allowed in Gods lawe Lastly I will God permitting me answere their obiections that out of the worde of God and Diuinitie I haue heard made to the contrary First therfore touching the equity of such oath All enquirie of crimes is made in some of these three sortes First where neither person nor any deede is knowen to the Iudge in particular to be cōmitted And such are enquiries by grand Iuries at the common lawe and Enquiries by Churchwardens and Sidemen in visitations at the Ecclesiasticall lawe This is called Inquisitio generalis Enquirie or Enquest generall Secondly enquirie is made when a fact is knowen to bee done but the delinquent is not knowen As the Inquisition by a Coroner vpon some murder committed at the common lawe and as the Enquirie vpon forgerie committed in some act of an Ecclesiasticall court in which kinde of Enquirie the hidden person is enquired after in respect of the apparant fact Lastly Enquirie is made against a particular person where there be presumptions and detections that some certaine crime is by him committed but whether he haue committed it or not it is not certainely knowen and herein the crime being hidden is enquired of because of the person apparantly pressed by some probabilities thereof The second of these is termed also Inquisitio generalis but it is not so generall as the first and the last is most properly termed Inquisitio specialis In the first and second of these sortes of Enquiring it wil not I take it be denyed by any but that such should be assumed by the seuerall Iudges and Officers in that behalfe as they in their discretions thinke most fit and to be most likely to knowe the offendors and the offenses with their circumstances and that they be charged vpon their oathes touching their vtmost knowledge concerning such Offendors And may it not then thereby happen and fall
out that an oath shal be ministered to one who himselfe is such an offendor as is enquired of For the grand Iurie as I take it haue their oath giuen to enquire and present their owne their fellowes and others faultes that they shall haue in charge And yet to auoyde this inconuenience I trust it will not be thought meete that al Enquiries by oathes should be therefore giuen ouer Then if this be a thing equall and agreeable vnto lawe to vrge an oath euen where it may happen the partie that takes it to be the offendor why should it not stand with more equitie to vrge it vpon such an one as albeit he be particularly detected by great presumptions and probabilities yet may happen neuerthelesse to be most cleare from the crime imputed to him Againe if one of the grand Iurie being to be sworne would denie to take the oath except hee might haue some certaine offenses vsually giuen in charge left out and foreprised seuerally out of his oath least otherwise hee should thereby be driuen to accuse himselfe or if one supposed most able to giue euidence and information to the Coroners enquest vpon a murder committed should desire to bee spared from telling his vtmost knowledge thereof vpon his oath least thereby hee bee driuen to accuse himselfe would the Iudges or Officers hereupon thinke it reasonable to spare these men and let them so goe and not rather repute them to be in deed guiltie of those crimes for which they refuse to take oath to tell and discouer their knowledges In like so◅t therefore why should such men as be probably detected of crimes nothing so penall and who refuse to take oath to answere them bee iudged by any man to doe it vpon good ground and conscience and not rather that they as those others refuse it vpon guiltines of their owne conscien ces As the equitie of this oathe is shewed by the former comparisons so may it also by consideration of the crimes and the qualitie of them whereupon it is tendered in courtes Ecclesiasticall None of such crimes haue any punishment appointed vnto them by the temporall lawes of the Realme and by the ecclesiasticall Iurisdiction whereby they onely rest punishable the penaltie is farre milder then for those crimes and the like was inflicted by the Iudiciall lawe of God giuen to his peculiar people yea not to be accounted in very trueth and for the most part so much a punishment as a medicine tending to the reformation of the delinquent principally and secondarilie to the terrour or satisfaction of others Out of this number of medicinable punishments I onely do except incorrigible heresie Atheisme and Apostacie from Christianitie which for the horrour and danger of them vnto others ense resecantur ne pars syncera trahatur Both these three and the rest are in such abhomination with Almightie God so manifoldly dangerous to the offenders soule so noisome and preiudiciall to the lawes and vnto all ciuill societies of men in a common wealth that no well aduised man will thinke them meete to be suffered to take roote and growe but rather by all meanes possible to bee discouered and corrected But being workes of darknes by the very remnants of those sparkes of the knowledge of honest and vnhonest iust and vniust that continue with vs since Adams fall euen by them that commit them they are cōdemued to be such as had need to be shrowded in all secrecie And therefore they are of that qualitie and nature as cannot lightly by any possibilitie be discouered but either by the parties themselues or by other partakers with them in the verie crimes and thereby parties also to the same offences Yet as Tertullian saieth a malefactor for the most part leaueth some footesteps and traces behinde him which may serue to good purpose for his discouerie Whereupon it commeth to passe that presumptions fall out to be knowen abroad of great likelihood and probabilitie that such crimes and offences haue bene committed and done by such a person So that when great bruites and fames hereof doe flie abroad to the offence of the godly to a scandall and a stumbling blocke vnto the weake Christian and to the obloquie of our holy faith and profession with the common aduersarie wee must either permit such a supposed delinquent and thus discouered to bee examined by his oath touching the crime and materiall circumstances of it or else must wee suffer sinnes and grieuous enormities so they bee closelie committed to growe vp and take strength without controlment till they haue gathered that head that they shall bee able euen with their peize and grieuousnesse to ruinate both Church and Common wealth which if it bee vnreasonable and vngodly all things afore weied then that whereupon it followeth must needs be absurd also If in hainous and daungerous crimes to the person of the Prince or state of the kingdome whereof there be good probabilities and presumptions agaynst some person it bee holden necessarie and lawfull Policie to torture the supposed delinquents that they may confesse albeit it bee capitall to themselues and to others also in the highest degree is it not of as great equitie in crimes of no lesse secrecie and some of them in no lesse execration with Almightie God then these to vse the meanes of the parties oath where no capitall nor oftentimes no corporall yea for the most part where no punishment at all properly so to be called but a correcting and reforming of the partie is intended When there be great presumptions of complots laied that are dangerous to the Prince and whole state is it holden good policie to let the parties alone without either torture or examination vntill some will voluntarilie offer himselfe to be an Accuser and to bee able to make proofe of them though the partie bee neuer once examined I feare mee greatlie if this were holden for lawe and equitie such great and secrete offences would neuer come to Iustice till there were no man to administer it but the offenders themselues And may not then the like be conceiued iustlie of crimes subiect to Ecclesiasticall censure and Iurisdiction In the diuision of the seuerall kindes of oathes there are mentioned certaine euen where two parties bee formally in iudgement that be necessarie to bee taken by the other partie when as the suite is but betwixt two priuate persons and touching their owne priuate commoditie and interest They are tendered by the Iudge sometimes at the onely petition of one of the parties and then it is called Mercenarium Iudicis officium as of more base qualitie in that he doeth nothing but that which he is in some sort as it were vrged vnto and sometimes are offered by the Iudge himself ex officio without petition of either partie as in equitie he seeth cause and then it is called Nobile Iudicis officium touched also afore as being of a more high and worthie respect and of greater regard Of
taken but it was for that the Popes Collector who had in England no iurisdiction did conuent the said vicar afore him ecclesiastically at the suite of the Deane of Windsor for breaking his oath taken afore the sayd Collector to performe the condition of an obligation that he the said vicar had entred into which is a temporall cause What then doth this make against oathes imposed vpon defendants in some criminall causes For I trust though the Collector had vnlawfully imposed it the Treatisour will not thence reason thus mightily against vs viz. This was an imposed oath in a ciuill cause but it was vnlawfull therefore all imposed oathes in any criminall cause are also vnlawful For this reason is ex meris particularibus hath quatuor terminos besides is a fallacie of the Accident Seeing is was not therefore vnlawfull because it was imposed but vpon the other grounds alone Hitherto touching examples of oathes alledged out of the reports of the common lawe Now follow these reasons that are vsed as for a more direct condemnation by the common lawe of oathes imposed vpon defendants in some Criminall cases in which behalfe the Note-gatherer saith that nemo tenetur seipsum prodere is the common custome of England I will not greatly sticke with him herein so it be truely vnderstoode albeit this maxime being taken notoriously out of the Interpreters of Ciuill and Canon lawes I thinke he would haue much a doe to finde it by any booke of the common lawe to be the common custome of England It is true that when a man 's owne fault is secret and not any way bruted and published abroad he himselfe is not bound by lawe to make confession thereof to any Magistrate or officer Ciuill or Ecclesiasticall whether he be vrged to sweare thereupon or otherwise for in such case it is simply secret and the Magistrate except he shoulde minister a generall oath like vnto the Popish charge at shrift not warranted by any lawe cannot possibly in speciall or particular manner interrogate him of that whereof he neuer heard nor once dreamed But if a man be once discouered thereof by Presentment denunciation Fame or such like according to lawe then is not the fault simply secret but reuealed in some sort abroade or to the Magistrate who for auoyding scandall to Christian religion and for reformation of the partie may thus enquire of the offence to see it redressed and punished and therefore to the former maxima must be added thus much sed proditus per denunciationem Famam c. tenetur seipsum ostendere Any more exact or further discussing hereof is not of this place I doe 1 2. part ca. 6. 7 3. part ca. 9. therefore referre the reader to the places of this Apologie here quoted in the margent The onely case carying any shewe or colour of condemnation of oathes in any cause criminall at the course of proceeding by common law is alledged by the Treatisour out of the 2 Li. Assisar 4. 9. E. 3. Assis. 1. sol 316. booke of Assises there certaine returned of a Iurie being readie to be empanelled with others were challenged some of them for that it was supposed they had declared the right for the one partie and not for the other thereby as it were telling their verdict aforehand And othersome were challenged to be of Counsel or fee to the parties Nowe it is thereupon further reported that such of them as were in the first respect challenged were sworne to giue euidience to the Iurours and that it shall bee so in like case where the challenge sounds not in reproofe or dishonour of them but for those which were challenged that they had receiued money of the partie this challenge was tryed by the tryours without hauing any euidence by their owne oathes Causa qua supra whereby hee woulde gather that an oathe may not bee giuen in any cause at all where the parties owne honestie may be touched But he might with better reason haue gathered out of y e former part of this case the very contradictorie hereof because it is very small honestie for any man in some sort to offer himselfe to be sworne as an indifferent Iurour when he is indeede vnindifferent his iudgement so forestalled as that he hath taken vpon him to scan the right for the one partie before hee be sworne or haue heard the euidence for the other yet neuerthelesse these chalenged persons were put to giue euidence hereof to the Iurours vpon their corporall oathes Cōcerning the other persons chalenged to haue receiued some money or fee of the one partie that it was thought good that they should not be examined by oath hereof because it was a matter that might tend to their reproch and dishonestie cannot inferre this generall conclusion viz. that in no cause whatsoeuer a man may be put to an oath whereby his owne turpitude and dishonestie may be discouered For this was but in a particular point of challenge where the persons challenged were no defendants but came in to be Iurours a kinde of tryours and Iudges and against whome there was no lawfull inducement for the Iudges to impose such oath other then the challengers owne exception But that is not sufficient to cast ouer the clearing or proouing of the point obiected vpon him that is challenged and so from the challenger who by lawe is to come prepared and to make proofes of his owne intention which hee affirmeth because nemo praesumitur malus donec contrarium probetur and therefore the putting of the tryall of the challengers assertion here vnto the tryours was a fauour done vnto him by the Iudges more then the Ciuill lawes vsed abroad in other nations would haue admitted For he that will except must at his owne peril of loosing the aduantage thereof without any helpe of the Iudges office or of the parties owne oath be able to prooue his exceptions And therefore if this very case had bene in a Ciuill or in an Ecclesiasticall court that is guided by those two lawes the parties so challenged yea though they had bene Accusers or witnesses and much more being returned for Iurours who are a kinde of Recuperatores or Pedanei Iudices should not ne are bound to answere such exception touching their crimes vpon their owne oathes For further declaration of which point that when an answere in a criminall cause ought to be made by vertue of a mans oath and when it may be refused I referre you to the ninth Chapter of this third part So that the Iudges did herein very grauely considerately and but according to equitie and to the common lawe of all other ciuill nations The Treatisours next obiection to like purpose is out of Iudge 1 12. Reg. Eli. fol. 288. titul Periuric nu 51. Dyers booke and it is in the very booke it selfe thus worde for worde A bill of periurie was sued in the Chancerie as for periurie committed contra formam
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
putteth him out of the Queenes protection forfeiteth all his lands c. and condemneth him to perpetuall imprisonment In a statute made against 5 5. Eliz. ca. 9. periurie the same time this prouiso is cōteined y t the said Act nor any thing therein cōteined shal not extend to any spiritual or ecclesiastical court or courts within the Realme of England or Wales or the Marches of the same but that al euery such offender and offenders that shall offend in forme aforesayd shall and may be punished by such vsuall and ordinarie lawes as heretofore hath bene and yet is vsed and frequented in the sayd Ecclesiasticall courts any thing in this present Acte to the contrary notwithstanding Where I thinke it will not be doubted but that vnder that worde punish is vnderstood the whole course also vsed by those lawes which must neeedes goe afore and doe tend to the conuicting of such faults as be thereby to be punished It was neuer claimed nor vsed by any Ecclesiasticall courts either afore or after to punish any periurie or subornation of periurie but either for breach of oathes voluntarily taken called laesio fidei in sort as is shewed in the first part or else for periurie or subornation thereof committed in an Ecclesiasticall court matter So that it can not be intended but that this statute meaning to reserue vnto courts Ecclesiasticall if not more yet at least the punishment of all false oaths there made did minde withal rather to establish then to preiudice oathes there appointed to be taken by such vsuall and ordinarie lawes Ecclesiasticall For if oathes especially in criminall causes were neuer there to be taken there could then be none at all or at least there would be much lesse danger of any periurie and breach of oath In the 1 5. Eliz. ca. 23. statute de excōmunicato capiēdo sundry grieuous crimes being of ecclesiasticall conusance are reckoned vp thereby it is also prouided that the significauit frō the Ordinarie vpon any of them must cōteine that the excōmunication proceeded vpon some cause or contempt of some originall matter of some of the said crimes there mentioned Now it is sure that after appearance yeelded cōtempts most vsually are committed by not performing something that is cōmanded according to that law as by refusing to sweare or being sworne to answere directly as a man ought So that this statute leaueth the determination of all such contempts to the disposition of that law by which the proceeding is made I haue touched afore in the second part certaine cases where the common law not only alloweth but also in some sort aboue the other course doeth priuilege vnto courts Ecclesiasticall the proceeding ex officio against crimes punishable by that Iuridiction As namely that in proceeding against an offence for laying violent hands vpon a Clerke Bryan and Littleton helde no man gainesaying it that the 2 M. 20. Ed. 4. 10. spirituall court may punish it ex officio but not at the sute of the partie least the beater be thereby kept from his absolution till some temporall duetie be contented and payde And 1 T. 12. H. 7. fol. 22. Mordant was of opinion that if a man be sued by a party prolaesione fidei in not paying a summe of money promised there shall lie a prohibition yet if the Iudge ecclesiasticall shall doe it ex officio that then no prohibition shal lie And a iudgement giuen long afore in the booke of 2 Lib. 22. Assis. fol. 70. Assises seemeth to accorde herewith and to strengthen this opinion Fitzherbert in his Nouanaturabreuium reporteth the Lawe to be that an 3 Nou. nat breu tit consultation fo 50. deinceps Ordinary may cite proceede against a man ex officio pro violenta manuum iniectione in clericum Likewise for tithes deteined in the time of the vacation of a Benefice so also hee may cite those who refuse to mayntaine a Curate or Chapleine and for fornication and like offences But by the law ecclesiasticall according to which the proceeding is the course of proceeding against crimes and offences for the most part is by the parties corporall oathe vnto articles or positions of the very crime it selfe so there be precedent a donunciation a fame notoriousnes of the facte taking in the maner or anie other matter sufficient in law to open a way to such Enquirie That enquirie is allowed by common law vnto Courts ecclesiasticall and so consequently these oaths appeareth also further by two precedents of consultations set down in the Register The 4 Register tit Consultat fol. 48. a. former of them mentioneth alloweth of an Inquisition made by the Deane of Yorkes Officiall and of his proceeding therevpon for defects in a Chancell and for want of sundrie ornamēts and other requisites in a Church The 5 Ibid. fol. 54. b. other beside a consultation doth conteine also a cōmandement to the Ordinarie to take full information euen by way of Inquisition and by other meanes touching the value of tithes and to certifie into the Chancerie Now al Enquirie generally as is shewed afore is ex officio and is by oathes of other men in generall enquirie and in processu informatiuo and may be by the oath of the defendant in processu punitiuo so the crime be not capitall or of multilation of limme But to speake more particularly for proceeding of Office we finde there that an 6 Ibid. fol. 51. b. Ordinarie proceeded ex officio as for a crime against a parishioner for tithes deteined by him whiles a benefice was vacant That it is 7 Ibid. fol. 49. 〈◊〉 allowed vnto them to proceede against crimes ad correctionem animae we haue a precedent there of an Ordinaries proceeding against a lay man for vsurie euen at the instance of a partie grieued That against crimes defects and excesses they may proceede obiect articles ex ossicio 1 Ibid. fo 51. b. appeareth by the precedēt there set downe where an Ordinarie proceeded ex officio to the interdicting of a church by reason a part of diuine seruice as it was then holden founded to be vsed in that Church was withdrawen Where an 2 Ibid. fo 43. b. Ordinarie proceeded ex officij sui debito to the correcting of crimes and excesses of those that were vnder his Iurisdiction and among others obiected articles against a Knight for not sufficient reparations of a Church tending to the correction of his soule by reason of his deteining of that which hee ought not this is there allowed to belong to the court Ecclesiasticall and to the liberties of the Church Likewise we find there an 3 Ibid. fo 51. a. Ordinaries dealing allowed who proceeded ex officio against one that had laied violent hands vpon a Clearke so farre foorth as he dealt but for correction of the delinquent to the excommunication of him punishment of his sinne without adiudging any
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
hoping fall worst that may to bee iudges thereof in their owne causes and so to shrowd their disobedience in refusing to be examined vpon oath vnder pretence of conscience and of a religious care not to offend God thereby And therefore they holde that they are by Gods lawe bound not to answere in that sort vpon their oath which is more then if they had onely sayd that they are not bound and so left at libertie either to answere or not as themselues should thinke good whereby they would leaue a dangerous impression in the peoples mindes that such lawes of this land wherein they are borne subiects and by which they are to be gouerned may not be obeyed of Gods people with a safe conscience as being contrary to the word of God A matter assuredly of most perillous consequence to leaue vnto the onely scanning and finall determination of euery priuate subiect how farre he neede to obey the positiue lawes of his countrey As it commeth therefore orderly in this place so is it also a matter most fit to be discussed whether the oath of a partie in a cause criminall penall to himselfe may be exacted vrged by the Magistrate without breach of Gods law and consequently not to be refused by the subiect It is said in 1 Rom. 13. ver 1. 2. 5. Scripture that euery soule must be subiect vnto the higher powers for there is no power but of God the powers that be are ordeined of God and therefore whosoeuer resisteth the power resisteth the ordinance of God and that they which resist shall receiue to themselues iudgement That we 2 Tit. 3. ver 1. must be subiect not because of wrath onely but also for conscience sake And 3 1. Pet. 2. ver 13. we are commanded to be subiect to Principalities and Powers and to be obedient And to submit our selues 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to all manner ordinance of man viz. publike gouernement for the Lords sake By which power ordinance of man or publike gouernment are not onely vnderstood all kindes of Magistracie and superiour authoritie and that we may not resist doe violence or offer contempt to their persons but much more that we are to fulfill and obserue all their politique lawes without wilfull breach of them so they be not repugnant vnto Gods word For if this happen then that hath 1 Act. Apost ca. 5. v. 29. place It is better to obey God then man And if they command contrary things we must remember that wee 2 Matt. 6. v. 24. cannot serue two masters Yet Godsword doeth not abrogate lawes common wealthes nor ciuill policies but doeth establish them Therefore except they which refuse to take such oath can shew some direct Prohibition either expressed or to be necessarilie and immediately gathered out of Gods worde against it they must know that their contempt and disobedience in this behalfe reacheth vnto God himselfe whose ordinance both the Magistrate and his lawes be S. 3 August de verb. Domini serm 57. Augustine hereof writeth thus contumaciae crimen est quod iubetur contemnere quod praecipitur nolle quod imperatum est declinare But more particularly to our purpose in handling it may bee prooued by a generall Councell that hee which holdeth his peace when he is asked or will not directly answere is wilfully disobedient and may bee conuicted for such his stubbernnesse For 4 Synod General 8. Actione 5. when as one Photius was demaunded by the Councell whether he would admit of the ordinances of the holy Fathers and he answered not any thing thereto the Presidents of the Synode signified vnto him that by his silence he should not escape from being condemned which thereby was made more manifest And to like purpose a late Schooleman writeth 5 Sotus de iust iure lib. 5. q. 6. When any thing is asked of the defendant but according to order of lawe he is vponpaine of deadly sinne bound to reueale the trueth yea though he be not sworne but much more vpon his oath Therefore is it well gathered that he which beyng duely interrogated though it be touching an offence and refuseth to answere as hee ought first offendeth against Iustice and against the 6 Iosu. 7. glorie of God Secondlie hee offendeth agaynst the reuerence of the Iudge whom he is bound to obey if he bee vnder his iurisdiction Lastly against the Common-weale which hath 1 l. ita vulneratus §. ad l. Aquil. a great interest to haue crimes discouered and punished Concerning the second of these it is by great and some of them ancient 2 Cyuus alij in l. 2. §. quod si actor C. de iuram calum Ciuill interpreters deliuered If a man who hath sworne that he will neuer take oath yet hauing a suite shall be commanded by the Iudge according to lawe to take iur amentum calumniae and thereupon doeth take it that he shall not thereby be accounted to be periured because such commaundement of the Iudge doeth excuse him For mine owne part I haue alwayes taken it to be a 3 T. C. grosse error in Diuinitie to affirme that a man may not holde any humane matter with a certaine perswasion nor doe any thing in externall actions but such onely as we haue a positiue or affirmatiue warrant for in the word of God For if this were a true position then a man might beleeue no historie to be true which is not in the Bible no Maximes or grounds of any sciences nor common principles left knowen vnto vs by the light of nature as that two and two make foure nor that there is any such countrey as America c. neither might a man with safe conscience doe infinite many things permitted by humane lawes and sundry of them also commaunded to be done because all these histories and Principles and the most of these lawes be such as can neuer by any sound reason be positiuely immediately and particularly prooued out of Scripture but onely by this generalitie that therefore they may be beleeued or done because they are not contrary to Scripture are agreeable to the vncorrupted light of nature or to sundry credible mens experience or are by the politique lawes of our countrey receiued For who can giue any other sound reason directly drawen from the Scripture that theft shall be punished with death that matters of fact shall bee tried by a Iurie of twelue led sometimes not by witnesses but by circumstances and probable inducements that the eldest sonne shall haue all his fathers land by descent from the rest of his brethren though they bee neuer so many who no lesse then the eldest are descending from him that my kinsman remooued perhaps fiue or sixe degrees descending of the whole bloud from my fathers brother shall and lawfully may inherite my lande before mine owne fathers sonne by another wife that at one and twentie yeeres a man may effectually
that euery one in authoritie that requireth an answere of a guiltie person being vnder his power in a matter of crime must needes either driue him to a lie which 1 Sapient 1. slayeth the soule or else to accuse himselfe of a matter dishonest as these men speake and gainesay When Peter and Iohn 2 Act. 4. V. 7. 8 were examined in the great Councell vpon this Interrogatorie By what power or in what name they had doone that miracle Peter full of the holy Ghost answered plainely and truely though happely it might haue beene capitall vnto him Then what are they full of who being required by authoritie to answer vnto matters of no such danger vnto them doe neuerthelesse refuse to answere directly or who will not answere at all for vpon a mans owne confession Iudiciall though he be not sworne he may aswell be conuicted as if hee had answered vpon his oathe In the proceeding 3 Act. 6. vers 11. against Saint Stephen there were in trueth none Accusers but those who by subornation denounced him to the Priestes and who are twise 4 Ibid. V. 13. ca. 7. vers 58. called witnesses because they deposed against him yet when the high Priest asked him 5 Act. ca. 7. vers 1. c. thus Are these things so Stephen refused not to make answere and that truly howbeit they made his Apologie to be capitall vnto him Likewise when the 6 Act. 21. vers 38. 39. Captaine asked of Saint Paul whether hee were not that Aegyptian which had made a sedition c. Paul answered directly and slatly denied it Likewise the same Saint Paul 7 Act. c. 24 25. 26. in all his other seuerall conuentings before authoritie mentioned in the Acts euen at the suite accusation of a partie refused not particularly truly to answer to all that was obiected by confessing some denying other some of the crimes by his aduersaries and accusers imputed to him But if hee had learned the readie way that is nowe deuised not onely to answere accusers obiections but the Magistrates owne questions hee might haue wiped them off quickely without such long Apologies and haue willed them onely to prooue what they sayde yet neither expressely affirming nor denying any thing No doubt though the Apostle or any of those other godly men mentioned had beene guiltie of anie thing yet being duely asked they would not haue stood mute nor haue answered doubtfully neither would they haue affirmed more without it then they would haue doone vpon their oaths if the course of the proceeding had admitted it and that their oathes had bene required It is therefore well 1 Chromatius in 5. Matth. facit can 36. concil Tolet. quart saide by an ancient and learned Writer thus Dominus inter iuramentum loquelam nostram nullam vult esse differentiam God makes no difference betwixt our speech whether it be without oath or vpon our oath And 2 Thom. 2. secundae qu. 69. art 1. Aquinas saith if he which is brought into question and interrogated by the Iudge without his oathe shall answere vntruely that therein he sinneth deadly The olde Christians in the Primitiue Church were as farre off from these shifts of answering vnto most dangerous Interrogatories demanded of them euen by heathen Magistrates as they were from all vntrue answeres thereunto which point I minde to make apparant out of such of the Ancient Fathers especiallie as bee auowched by the Note-gatherer for condemnation of these examinations and of exacting men to confesse their owne crimes so that heereby it may bee the better iudged howe sclenderlie their Writinges by him quoted doe serue this turne Tertullian herein is very plentifull especially in his Booke called Apologeticon yet is hee quoted by the Note-gatherer for a condemner of examining and interrogating men touching their owne crimes of which sort y e very profession of Christianitie was then accounted to be A Christian 3 Tertull. in Apolog cap 1. sayth he if he be endited or denounced to the Magistrate he reioyceth in it if he be accused he propoundeth no defence when he is interrogated he most willingly confesseth and when he is condemned he giueth them or God thanks By his complaint in the same place for that Christians were not dealt with as other offenders were he both sheweth what then was practised in Criminall proceedings by the lawes Ciuill and also his owne good lyking thereof At the Chrstians handes 1 Tertul. ibidem saith he that onely is expected which suffiseth to stirre vp the peoples hatred against them that is an onely confession of the name of a Christian not an examination of his crime whereas if you hold conisance against any offendour as a mansleaer sacrilegious incestuous person or publique enemie to the state these being vsuall praises giuen vnto vs Christians you doe not pronounce sentence vpon the bare confession of the name of the crime but you enquire also of the qualitie of the facte the number place manner time priuies and partners But concerning vs you obserue no such matter which you ought no lesse to doe then with those others And againe 2 Ibid. Apolog. cap. 7. We are still said to be murderers of infants and incestuous persons yet you haue no care to finde that out which of so long time hath bene said of vs. Therefore either get it out of vs if ye beleeue it or else refuse to beleeue it because you cannot finde it to be so Then 3 Ibidem followeth this You commaund Christians by a farre stranger kinde of torture viz. not that they should declare what they doe commit but that they should deny themselues to be the men which in deed they are Which vrging of Christians to declare what they had committed that Tertullian doeth not disallow if the Magistrates would haue taken that course with them appeareth also by 4 Tertull. Apo log cap. 3. another place Whatsoeuer we are charged saith he to haue committed secretly though by others the same be committed openly yet we will answere it point by point or euery iote yea euen that for which we are reputed as pestilent persons as vaine and as men worthie to be scorned and condemned by others Saint Augustine also in his verie booke alledged by the Notegatherer doeth plainely establish and allowe of Othes taken concerning a mans owne offenses being in deede such also in their owne nature If perhappes saith he 5 August serm 28. de verbis Apostol cap. 6. thine oathe be vrged meaning a Decisorie oathe be exacted of thee by a priuate person say not I will not sweare for it commeth of euill which thou doest but yet of his euil that doeth exact it of thee Insomuch as thou hast none other meanes but thine oathe to purge and cleare thy selfe of the matter in handling But it may perhappes be said that the oathe here meant may be aswel in a cause
gappe For the proofe of this their assertion that where winesses may be had there a man may not be examined vpon his oathe First they saye for Iudges finding out by Inquisition what is spoken or done they finde two wayes in Scripture One by witnesse of others where they may be had which they goe about to proue by these 1 Deut. 13. v. 12. 15. Deut. 17 v. 2. 7. Num. 35. v. 30. Deut. 19. v. 15. Ioan. 18. v. 20. 21. 1. Tim. 5. v. 19. places quoted in the margent The other way by the parties owne testimonie where witnesse cannot be had for the thing spoken or done whereof necessarie inquisition is made which they would proue by these other 2 Iosu. 7. v. 19. Exod. 22. v. 7. 8. 10. 11. Num. 5. v. 13. 19. places here also quoted But is this a good consequence these two wayes be mentioned in Scripture Ergo there be no more but two or if it were admitted there bee no moe wayes mentioned for Inquisition of crimes doeth it followe that therefore all positiue lawes of Common-weales kingdomes for inquisition and triall of crimes in any other sorte are vnlawful against Gods worde what is this else then plainely to ouerthowe condemne as vngodly not onely the Inquisition and trial by Iuries and verdicts of twelue men vsed in this Realme and not mentioned in Scripture but also the proceedings Iudicial of all y e world besides if they do not wholy iumpe in manner fourme with y e Inquisitions trials mentioned in scripture * This erroneous couceit Barrow held in his last booke printed at Dordrecht And so instead of all our positiue laws to bring in place the Iudicials of Moyses giuen onely to the people of the Iewes not onely for the equitie of thē but for the very substance fourme of them also whereby the Priestes shal be Iudges what is lawe in euery difficult controuersed point in whose iudgements vpon paine of death euery man must rest contented Neuerthelesse by this their owne position I thus proue against themselues that they doe wickedly in refusing to take their oathes Wheresoeuer in an Inquisition of a crime no witnesses can be had there by the lawe of God the parties themselues must take their oathes and declare the whole trueth But of their framing of a booke of new Discipline Ecclesiasticall and Synodical of their subscribing to it of putting some of it in practise of meeting in Classical assemblies or Conferences in Synodes and general assemblies of matters there treated of concluded against the lawes and gouernement of this Church of England of secret writing and dispersing of their slaunderous bookes and libels conteining erroneous and hereticall opinions and seditious incitements which last pointes are Prohibita quia mala And touching the circumstances of these and euery of them no witnesses can bee had as experience it selfe sheweth for they were kept as close secret as could be they were done in priuate places chambers from whence all other were secluded sauing the very parties themselues being all principal delinquents and not called thither or being there as witnesses Therefore by the lawe of God they ought hereupon to take their oathes and to declare the whole trueth in these matters For so is their owne position Nowe I will examine their seuerall proofes brought for this opinion The first is this 1 Deut. 13. v. 12. 13. 14. 15. c. If thou shalt heare saye concerning any of the cities which the Lord thy God hath giuen thee to dwel in wicked men are gone out from among you and haue drawen away the inhabitants of their Citie saying let vs goe and serue other Gods which ye haue not knowen then thou shalt seeke and make searche and enquire diligently and if it bee true and the thing certaine that such abhomination is wrought among you thou shalt euen slay the inhabitants of the Citie with the edge of the sword destroye it vtterly and all that is therin the cattel thereof with the edge of the sword Where you see the punishmēt is vniuersall though the first perswasion came happely frō a fewe and therefore the defection frō God vnto Idolatrie was there amongst the men also generall For the iustice of God is that 2 Ezech. 18. v. 4. the soule which sinneth that shall dye How can this prooue that no partie to the sinne was examined but that they were conuinced onely by witnesses Nay the contrary rather is manifest For who is so fit and so likely to haue knowledge of things done in a Citie as those that dwell in it and therefore the lawe alloweth Citizens for good witnesses of matters there done euen when it is for their owne benefit because by common entendement others cannot be had I will aske then whether this generall condemnation and execution against a whole citie might proceede onely vpon hearesay this were very vniust and cruel and it is saide in the text it must be knowen certeinely But if vpon certeine and sure conuiction then cannot it be otherwise then by the examination of some persons of that citie who onely can knowe the certeintie thereof But these are all parties Quia quos par culpa eosdem tenet par poena è conuerso For God hath appointed this negatiue Iustice in his lawe that 1 Deut. 24. v. 16. the father shall not be put to death for the children nor the children put to death for the father but euery man shall be put to death for his owne sinne And in the Affirmatiue it was decreed in a Councell thus 2 Concil Tolet. 4. Can. 78. Oportet vt vna poena teneat obnoxios quos similis error inuenerit implicatos such as be guiltie of the same fault must needes bee subiect to the selfe same punishment And therefore it followeth that this Inquisition here spoken of was founde out by some of the parties owne examinations rather then by any other witnesses dwelling abroad and therefore not able to deliuer any certeintie But in so penall a matter a man will hardly confesse without torture or oathe and 3 Hebr. 6. v. 16. an oathe is for confirmation And therefore it may happen by the equitie of Gods lawe that a man in a matter criminall and euen capitall to himselfe may bee examined by his oathe Howe much more then of a crime not so penall That other place of the 17. of Deuteronomie is left at large without expressing whether the partie condemned there of Idolatrie were to be examined vpon his owne oath or not Besides in matters capitall and where there is an Accuser as in some sort is there no man in this Realme vrgeth an oath But it is necessarilie to be gathered that at least the partie conuented did answere the Accusation or Inquisition there by deniall before the witnesses were produced which many of this sorte of men will not doe either the
walke it is not of this place to discusse how holy and true soeuer it is it dare not looke out at noone dayes and yet we liue in a state professing the Gospel Num sic Apostoli num sic Martyres c but y e more true holy it is the lesse ought they to be ashamed to reueile it being called into question for it as is signified afore Here we see that the law of their loue and felowship and ius hospitale towards such their priuate friends as haue receiued them is by them more esteemed accounted of then either the publike lawes and statutes of the realme or then their duetie to the Christian Magistrate and to their countrey quae 1 Cicero offic li. 〈◊〉 omnes omnium in se charitates complectitur As for the discouering of a secret of concealing a matter false brotherhood there spoken of who doeth not see that it is meant of needlesse slanderous malicious and trecherous bewrayings of our friends or of others secrets and not of any iudiciall deposing of our knowledges when we are brought before a Magistrate For if this were not lawfull and godly then might no witnesse testifie a trueth in any matter whatsoeuer that is not knowen abroad afore or vnto the Magistrate for that it can not but turne to the declaring of some matter doubted of or not perfitely knowen The coÌ„mon translation fortifieth this interpretation viz. qui ambulat fraudulenter reuelat arcana qui autem fidelis est celat amici commissum Therefore Aquinas 2 The. Aquinâ—… 2. 2. expounding the true meaning of that place of the Prouerbs saith that such matters as tend to the corrupting either of the soules or bodies of a number or to the great detriment of any one priuate person a man that knoweth them is in conscience bound straightway to reueale them Thus farre in answere of their reasons who of such as professe the Gospel gaue the first example of disobedience in our dayes by refusall to take oath in this respect viz. for that they were vrged to testifie of their fellowes aswell as of their owne actions whereof they were interrogated But an example of William Thorpe who is said by y e Treatisor to haue refused an oath about 160 yeres since vpon this consideration amoÌ„gs others doth most aptly I thinke take his place here For when 1 Fox fol. 146. 147. 148. 1. editi Archbishop Arundell before whom he was conuented vnder pretense of Lollardie offered him fauour if amongs other matters he would be sworne to forsake his opinions to withstand all such as should holde the same opinions in case they should not be reformed to put them vp in euery Diocesse where he came vnto the Bishops he refused this fauour vpon any such condition because he would not as he sayd become euery Bishops espie and Summoner of all England nor giue such offence as to be accounted to haue forsaken the trueth In answer whereof I say that this was but a fauor voluntarily offred vnto him vpon that condition and that oath was none otherwise exacted of him nor yet by lawe might be exacted Insomuch as no man is by law bound to make any such promise or to enter into such a course Againe there was no speciall opinion in particularitie charged vpon him which he should be sworne to forsake should detect others of except he should be bound to forsake all that he had learned in Scripture concerning the feare seruice of God and therefore it is nothing like vnto the case against which wee doe here argue For those Innouators which were authours of this opinion had particular articles concerning their owne and others actions treaties and conclusions obiected vnto them which were also afore-hand conueniently though not in euery necessarie particular knowen and discouered afore vnto the Magistrates vnto which albeit after many tergiuersations and much a doe they answered at last in the Starre-chamber vpon their oathes that which touched their owne facts only yet vnto no more thereof would they answer then they presupposed gathered to be afore knowen sufficient for their conuiction though they should haue concealed it But what other company they had theÌ„ those who were defendants at that time or in whose houses such Synodes and treaties were held they pretended themselues bound in conscience not to answere And yet the Iudges of the land twise or thrise ouerruled it and signified so much vnder their hands that by lawe they ought and were bound to answere the Interrogatories preferred concerning ech of their complices and partakers It may be that the Note-gatherer also by one of his quotatioÌ„s meant to enforce 1 Tindal in respons ad Moruâ—… pag. 309. Tindalls authoritie against vs in this behalfe For he writeth that if a wicked Iudge aske him that hath sworne of things hurtfull to his neighbour and against the loue that is in Christ then he must repent that he hath sworne but not sinne againe to fulfill his oath I make no doubt nor do gainesay it but if mine answer shal be both against the loue that is in Christ also to my neighbor hurtfull that an oath cannot tie me to answer in such a case yet if Tindall thought y e whatsoeuer may bring punishmeÌ„t vpon my neighbor is of that nature then must he giue me leaue to doubt of the soundnes of his iudgement herein no lesse then the Note-gatherer himselfe will do vpon the pointes afore touched and many other conteined in Tindalles workes and no lesse then hee will doe vpon the Rhemish note agreeing wholly with Tindall here and touched by me afore He seeketh also to ouerthrowe howbeit but generall oathes which none defends by coÌ„paring them to the doings of Longland sometimes Bishop of Lincolne against whom he most bitterly inueieth for constraining children by oath to accuse their parents c. of heresie whereof some he saieth chose rather to bee forsworne and bringeth Master Foxe his condemnation thereof But I gesse what it is which chiefly pincheth the man in this sort belike because certaine of his Clients whome hee would patronize were lately required to discouer their complices in their disciplinarie assemblies I can easily yeelde that where great presumption or perill of periurie is rather then a man wil discouer a trueth that there and vnto such it is no good discretion to minister an oath but especially against the life of those who attaine so neere vnto vs in proximitie of blood or other no lesse strong affection For the ciuil law saith Filius noÌ„ torquetur in caput patris a child ought not to be tortured in a point of perill vnto his fathers life And the like reason which is in torture may by some perhaps be thoght to be also in an oth against his fathers life But we may not make this a general doctrine as if in no case whatsoeuer a childe or such like might be examined in a point capitall to
Decurions there Out of which place a 8 Alberic de Ros. in l. quotiens C. de precibus Imper. offer writer vpon the Ciuill lawe doeth gather that the Emperour may dispense with a mans oath Here then another great and not vnnecessarie doubt ariseth whether any man may discharge or dispense with another mans oath and if he may how farre and in what cases this may bee done In answer whereof we are first to vnderstand that according to the distinction of times into time past present or to come there is also diuersitie of oaths One kind of oath in such regard is termed Assertorie which is an affirmation or deniall with oath touching some thing that is past or present Nowe there is no doubt but that this oath cannot at all be discharged released or dispensed with by any humane authoritie for the matter of it being either concerning a thing past which cannot bee altered and reuoked or present which is also immutable insomuch as it is impossible for a thing both to be not to be at once therefore the oath it selfe must needs be vndischargeable and vndispensable for to giue a dispensation herein were no lesse then in effect to determine that it is lawfull to haue trueth wanting in some oaths insomuch as other dispensation then this the nature of things past or present cannot admit The other kind of oath is called Promissorie whereby a promise confirmed by an oath is made that some thing shall bee done or not done hereafter And about this kinde of oath the doubt onely resteth This Promissorie oath is made either touching such matters as doe immediately and apparantly tend to the aduancing of the glory of God or to the benefite of sundry others whether such benefit be spirituall or corporall or concerneth such matter which euidently derogateth from the glory of God or from the benefite of others or it is of a matter tending to the onely profite and benefite of some particular man to and for whose behoofe such promise with oath is made or lastly it consisteth and is bestowed vpon such matter as by reason of some euent happening or at least discouered afterward it may bee iustly thereupon doubted whether the oath it selfe doe binde or not bee lawfull or vnlawfull expedient or not expedient profitable or hurtfull to the partie all circumstances considered to bee kept and obserued In the first case of these foure no man can discharge from or dispense with such oath except either the oath were at first but conditionally made and the condition faileth or else were made by such one as is vnder an husbands or fathers subiection For in the first of these excepted cases in very trueth the oath bindeth not at all But yet some superiours declaration of so much is therefore necessarie because it is most dangerous to permit vnto euery simple and priuate mans owne discretion and iudgement how farre and where he neede or neede not to performe his promissorie oaths And in the later of the cases excepted an 1 Num. 30. per totuin ferè husband or father before he hath giuen any expresse or implied ratification may euen by Gods owne lawe discharge and disanull his wiues oaths and vowes or his daughters being made in her youth and in his house that is vnder his power of what sorte and qualitie soeuer they bee yea though such promissorie oathes haue bene 2 Ibid. v. 14. made by them to humble the soule and then by reason of such disallowance there of by their superiour it is there sayd The Lorde will forgiue her this breach of her oath and vowe made Now because in any sauing in these excepted cases this kind of oath is simply vndispensable therefore we doe detest the presumption of the bishop of Rome who taketh vpon him oftentimes to commute euen this kinde of oaths and vowes as hee saieth into better and so by this shift of descant hee pretendeth to discharge men from their formall oaths by them aduisedly taken and made to the glory of God and for the benefit of others The second sort of those foure kindes of promissorie oaths are such as if a man should performe hee should doubly sinne which point I haue somewhat touched in the question next going afore yet least a man doe erre herein by mistaking it is holden very requisite that he consult with wise learned Diuines both to resolue him whether such oath be simply vnlawfull by him to be performed and also to aduise him what course hee is to take in respect of his soule and conscience for his oath so vnlawfully and vniustly made In these vnlawfull oaths wee thinke that superiours whether Ciuill or Ecclesiasticall not onely may and ought to discharge the parties thereof if they be scrupulous and desire it but also may and ought to disanull and make them voyde though the parties themselues bee vnwilling thereunto And so wee finde that a 1 34. Edw. 3. ca. 9. Parliament here in England did enact in these words viz. That all alliances and couins of Masons and Carpenters and Congregations Chapters ordinances and oathes amongst them made or to bee made shall bee from hencefoorth voyde and wholy adnulled The reason of this disanulling of all such oaths was for that they were apparantly derogatorie to the publike good of the Common wealth With these kindes of oathes the man of Rome not onely dispenseth when they are alreadie made which were tolerable amongst them of his owne onely proper Iurisdiction but also in the pride of his heart exalting himselfe aboue all that is called God hee dispenseth with men aforehand to make such vnlawfull oathes and vowes and namelie of marriages and also to remayne in them being within the degrees Leuiticall which by God himselfe are prohibited plainely yet because for very shame hee seldome doeth dispense with marriages contracted or to bee contracted inter ascendentes descendentes as the father to marrie the daughter or his niece c. or the sonne to marrie his mother grandmother c. or yet in primo gradu transuersali aequali as the brother to marrie the sister therefore the Schoolemen and Canonists his Parasites but especially since the great case fell out betwixt king H. 8. and Katherine of Castill his deceased brothers widowe haue bene contented to turne those their former olde songs of Papa potest quicquid Deus ipse potest and potest tollere ius Naturae and instead thereof to say 2 Couarrauias now that in those aforesaid degrees of consanguinitie because they are of the lawe of nature the Pope their vnholy father can not dispense withall Neuerthelesse they do still no lesse resolutely then impudently hold that the prohibitions in the rest of the 3 Leu. 18. ca. 〈◊〉 20. Leuiticall degrees are not of the lawe of nature and therefore to be by the Pope dispensable But if they be lawes Ceremonial they are abrogated by Christ and need no dispensation of any mans