articles commissions are appointed to be directed to the Archb. or Bishop of the Diocesse and to his Chauncellor or Commissarie and such other as the Kinge should appoint giuinge them power to take information and accusation not by oath of the partie conuented but by the oathes depositions of two able and lawfull persons at the least or to enquire by the oathes of xij men Giuing also to the Ordinaries power and authoritie to enquire in their visitations and Senis and to take accusations and informations as in forme aforesaide and not otherwise The maner also of processe against the persons indighted accused or presented is there prescribed And the forme of proceedinge vpon apparaunce of the partie appointed to bee not according to those vnjust examinations by oath ex officio but accordinge to the lawes of the Realme and th' effect of that act And although at that tyme this statute lawe seemed just and equall as concerning the maner of enquirie and trial yet time disclosing all thinges made it appeare that the same was not false in respect that diuers secret and vntrue accusations and presentementes might bee and by all likelihoode were maliciouslie conspired and therefore it was enacted Anno 35. H. 8. cap. 5. That no person should bee arraigned or put to triall for or vpon any accusation information or presentment concerning any of the offences mentioned in the statute of 6. articles but onely vppon such presentementes and indightements as shoulde bee sounde and made by the oathes of 12. men or moe c. These things standing thus howe may any man justifie or defende much lesse practize those generall oathes or examinations by oath ex officio by any statute lawe of this Realme being by them not onelie rejected but vtterlie condemned as not standing with the right order of Iustice nor good equitie especiallie the statute made Anno 25. H. 8. beinge in force and limitinge vnto Archb. and Bish none other jurisdiction then such as they may vse without offence to the Prerogatiue Royall and the lawes and customes of this Realme Of which lawes and customes the common lawe is no part or portion And as a well-willer I would aduise all Ordinaries and such as exercise Ecclesiasticall jurisdiction especiallie hauing taken the oathe ordeyned for the maintenaunce of the Supremacie Royall wherein they sweare to assist to their power and defende all jurisdictions Priuiledges Preheminences and authorities graunted or belonging to the Queenes Highnes her heyres and successours or vnited and annexed to the Imperiall Crowne of this Realme to take heede that they attempt not to put in practize or exercise any such Oathes or examinations ex officio least happilie they bee not onely founde thereby to be impugnors of the Royall Prerogatiues but discredited farther by the breach of their oath If it be saide for what will not be moued for a defence that the King heretofore gaue in those cōmissions besides the lettre and meaning of the statute of 6. The Kings commission Articles power and authoritie by expresse words vnto the Commissioners Ecclesiasticall to examine by oath the persons accused or presented As that is not likelie neither as I suppose can be proued So admitting it were true and that such kind of oathes were consonant to the lawe of God yet were the same no sufficient or lawfull justification inasmuch as we haue prooued and further shal prooue such examinations and inquiries vpon oath to be injurious both to the Prince and people of this Realme and to impugne our gouernement and forme of Iustice In which cases the Kings graūt or commission is of no force in lawe For as Bracton well hath written Potestas Principis juris est nō injuriae cùm ipso sit author juris non debet inde injuriarum nasci occasio vnde jura nascuntur That the King by his Commission or graunt or otherwise thē by Parliament may not change or alter the lawes of this Realme nor the order maner or fourme of administration of Iustice is rightlie also noted vnto vs by that graue and learned Iudge Maister Fortescue saying Non potest Rex Angliae ad libitum suum leges mutare Regni sui Principatu namque nedum Regali sed politico ipse suo populo dominatur And by the booke also of Anno 11. H. 4. where it is agreed that neither the King by his graunt nor the Pope by his Bulles for all his triple Crowne can change or alter the lawes of the lande whervnto concurre diuers other bookes of the report of the lawe Worthie also of remembraunce is that saying of Iustice Scroope Anno 1. Ed. 3. fol. 26. If the King sayeth hee commaunde any thing impossible that which the lawe will in the case must be done 49. Ed. 3. 36. H. 6. if he commaunde any thinge contrarie to lawe his Iustices ought not to doe it Anno 42. Ed. 3. There was a Commission awarded out of the Chauncerie to apprehende a certen subject of this Realme and to seize his goods and chattells no enditement suite of partie or other due processe of lawe precedent and the same was by the Iustices holden to be altogither voyde as a matter against the Pollicie of the Realme and maner of execution of justice Likewise it appeareth in the same yeare that a writte proceeding from the Chauncerie to enquire of Chaunperties Conspiracies c. whereby one of the Kings subjectes stood indighted was by Iustice Kneuet vppon the resolution of the rest of the Iudges damned adjudged voyd in respect that such matters are not inquireable by writ but by Commission But it wil be said of some I verily suppose that although neither the common lawes nor statutes of this Realme nor the Kings commission doe or can warrant such maner of oath and examinations ex officio yet the publique practize and vse of the honorable Courtes of Starchamber Chauncerie the one in causes criminall the other in suites ciuill of equitie and conscience concurring in one forme of taking aunsweres and examinations by oath doe fortifie and confirme the thing which wee impugne Whiche speach as it may seeme at the first to giue some coulor and shewe of credit to their cause so vppon consideration had and due comparing the one with the other it will soone appeare to be but a vanishing smoake and shadowe voyde of substance For first if it should bee graunted that such kinde of oathes and examinations were vsed in the Courts of Starchamber and Chauncerie yet would it not followe that the same might be practized in the Courtes and Consistories Ecclesiasticall vnlesse the like allowance thereto and consent of the whole Realme might be prooued also And who knoweth not howe weake a profe examples and presidentes are where an expresse lawe or certen policie is to the contrarie Therefore it is well said in the ciuill lawe Jus non ex regula sumatur sed ex jure regula fiat By better Logick might they
conclude thus All answeres are made vpon oath in the Kings Courtes of Starchamber Chaūcerie Ergo the same course may be vsed in the Courtes of the Kings Bench and common place which neuerthelesse were an absurd conclusion It is verie true in deede that these honorable Courtes of Starchamber and Chauncerie proceede not to the tryall of causes by Iurie after the manner of the common lawes of this Realme but giue their judgementes and definitiue sentence vppon the aunswere and examination of the defendent affirmed by his corporall oathe and vpon the depositions of witnesses But who hath euer seene in these Courtes any subject of this lande in a cause concerning him selfe brought forth and compelled to depose or make aunswere vppon his oath no bill of complainte or information formerlie exhibited against him Nay on the contrarie these Courtes obseruing the due forme of Iustice enforce no man to answere but where hee hath a knowne accusor and perfect vnderstandinge of the cause or cryme objected and therewithall is permitted to haue a coppie of the bill of complainte or information beeing not ore tenus And allowed moreouer both tyme conuenient and counsell learned well to consider and aduise of his oathe and aunswere And if his aduersaries complaint bee either insufficient in forme or matter or such as the Court hath no jurisdiction to determine the defendent vppon demurrer without oathe is dismissed and that with costes And admitt the accusation such as euery way is aunswerable yet if the Interr ministred bee impertinent to the matter of complaint the defendent without offence to the Court may refuse to make aunswere to the same What similitude or likenes then is there betweene the oathes and examinations vsed in these honorable Courtes and those constreiners ex officio since the former sorte bee orderlie taken in Courtes of Iustice th' other without all course of judgement th' one where pl. and complaint are manifest the other where neyther accusor nor matter of accusation doe appeare the one oath made vppon certen knowledge and good aduisement the other soddenlie without all discretion vpon vncertaine demaundes the one wiselie restrained to certen limittes and boundes the other foolishlie wandringe at the doubtfull will of a slie and subtill apposer Vpon the one the deponent aunswereth to the accusation of his aduersarie by the other hee is compelled oftentimes to bee his owne accusor and condemner the one enquireth an aunswere to matter in fact done eyther to the injurie of some priuate person or hurte of the publique state the other constreyneth the reuealing of wordes deedes and thoughtes though neuer offensiue to any Than since it is apparaunt that these manner of oathes are altogither mere straungers to our pollicie The practise of the cleargie and not so much as once countenaunced by any lawe custome statut or Court of this Realme Howe then by whose meanes hath this alien heretofore intruded as a troublesome guest into the house of the common wealth This partlie as before hath bene declared with some griefe of minde by that godlie seruaunt of Christ Iohn Lambert who noteth the papisticall Cleargie and religious men of his time most irreligiouslie to haue practized the same And no doubt the Prelates of former ages fayning and pretendinge such oathes to be necessarie for the gouernment of the church and to purge the Prouince of euill men as aforesaide But in trueth finding it a fitt instrument to maintaine the Romishe Hierarchie and to tyrannize ouer the consciences of good men most impiouslie violating the lawes both of God and man imposed this maner of corrupt oath vppon the people and no mervaile since there was no euil or mischiefe that could bee deuised either against the Prince people or pollicie of this lande which these kinde of our Prelates haue not attempted and put in practize For firste disguising themselues vnder the visor and maske of hipocrisie and feined holines and making marchandize of all thinges euen of heauen and hell purchased and acquired in short time such was the blinde deuotion of the superstitious laitie great and large Seignories Landes and possessions the verie mother and nource of pryde presumption and vaine pompe of this worlde And not so satisfied but vnsaitablie and most ambitiouslie lusting after rule dominion spared not against their due alleadgance to ensest euen the Kings and Princes of the lande Lett the contention and strife of Anselme Archbishop of Canterburie with King Rufus the manifolde practizes of Thomas Becket against King Henrie the seconde the tragicall life and pitifull ende of King John occasioned chieflie by the malitious meanes of the Archbishop Stephen Langton the treason of Archbishop Arundell against his soueraigne Lorde and King Richard the second and the pryde and insolencie of Cardinall Woolsey against that renowmed Prince Kinge H. 8. among others be sufficient testimonies in this behalf And as these pontificall Prelates with others more puffed vp in swelling pryde and ambition strake at the head so the crewe of that Antichristian Cleargie ceased not from time to time to wrastle and make warre euen with the sinewes and strength of the bodie politike of this Realme the lawes I meane and customes of this kingdome beinge the principall stay and stoppe to their insolent and ambitious attemptes endeuouring them selues to writhe out and exempt them selues from their due subjectiō to the same sometimes againe encroching and vsurping the right and jurisdiction of the Kinges courtes coueringe to drawe all causes into their costlie and lingring Consistories And oftentimes bringing in to the prejudice both of the Prince and the people forreine decrees and constitutions with the corrupt Canons and ceremonies of the accursed sea of Rome For proofe whereof lette the particular examples hereafter mentioned serue as a fewe amongest manie The Pope sayeth Polidore Virgill made a lawe in the Counsell of Lyons that the Cleargie should not bee taxed without his leaue or commaundement which lawe of immunitie although it were of no force to binde within this Realme for that the same is not subject to any foreine made lawes or constitutions not suffred by the King and voluntarilie accepted and vsed by his people as is expreslie declared by the statute made Anno 25. H. 8. cap. 21. yet see the good disposition and obedience of the Cleargiemen of this Realme in the time of King Ed. 1. which Churchmen with great obstinacie refused to paye the subsidie graunted to the King Robert then Archbish of Canterburie head primate of that faction wickedlie abusing this text of holie scripture to serue his rebellious intent obedire oportet Deo magis quam hominibus The Pope and his pursle beeing his best beloued Gods Howe much better and more Bishoplike might he haue remembred Date quae sunt Caesaris Caesari quae sunt Dei Deo That holy saint Hugh sometimes Bishop of Lincolne related amongest the Romish Gods puffed vp with the like arrogancie in the time of the seuerall
set forth at large where and in what particular cases Oathes are appointed by Actes of Parliament of this Realme as to remember the diuers Oathes of Bishops Counsellours Iudges Magistrates Officers and Ministers of Lawe and Iustice The oath ordeined for the maintenaunce of the supremacie Royall and abolishing of forreine jurisdiction The power of examination by oath by the statute of Anno 5. H. 4. and manie others for that by perusall of the statutes the same may vnto him that will searche easilie appeare Vpon consideration of all which actes of Parliament beeing in force it may truelie be affirmed that there is not so much as a bare shewe or shadowe of matter to giue credite or allowaunce to these infinite wrested and extorted oathes ex officio But it may be that some man in the defence of the cause and for allowance of those oathes will alleadge the twise damned and repealed statute made vpon the sinister suggestion of the Cleargie Anno 2. H 4. cap. 15. The statute against haeresie 2. H. 5. Which bloodie and broyling lawe gaue authoritie to Diocesans to cause the persons defamed or euidentlie suspected of supposed heresie to be arrested and vnder safe custodie to be deteyned in their Prisons till they of the articles laide to their charge did cannonicallie purge them selues or els abjure it according to the lawes of the Church And did appoint the proceeding and determination of the cause against the arrested to be according to the effect of the law and cannonicall decrees For aunswere wherevnto I saye that although the sword by that stature lawe was committed into the handes of madde men and the seelie lambes deliuered ouer to the greedie and deuouring woolues yet doeth it not appeare by any apparaunt or expresse wordes of that law that any authoritie was therby giuen or meant to be giuen to Ordinaries or Iudges Ecclesiasticall to impose any such generall oathe or otherwise to compell by oath the prisonner to become his owne accusor for that and especiallie in cases of life and death had bene directlie against the lawes and justice of this lande But if it bee alleadged that the same was tacite and inclusiue allowed by those wordes of cannonicall sanctions or decrees and that there be any such yet the same decree beeing against the lawes and decrees of God as before is proued that statute was therein no binding lawe neyther gaue sufficient warraunt to put in execution any such corrupt course of proceeding since all lawes and ordinances of man whatsoeuer being repugnaunt to the lawes of God are meerelie voyde and of none effect as the learned Saint Germaine in his booke of Doctor and Student hath wel obserued where he saieth That euerie mans lawe must bee consonant to the lawe of God And therefore the lawes of Princes the commaundements of Prelates the statutes of Communalties ne yet the ordinances of the Church is not righteous or obligatorie Except it be consonant and agreeable to the lawe of God But as concerning that statute will you heare what is declared by Parliament Anno 25. H. 8. The subjects of this Realme at that time lamentablie shewe vnto their Soueraigne Lord and King Ca. 14. howe that statute was impetrate obteined I vse the wordes of the lawe by the suggestion of the Cleargie of this Realme not declaring or defininge any certen cases of heresie that those wordes canonicall sanctions or decrees were so generall that vnneth the most expert and best learned men of the Realme diligentlie lying in wayte vpon him selfe could eschewe and auoyd the penaltie and daunger of that act And canonicall sanctions if he should be examined vpon such captious Interrogatories note I pray you as is and hath bene accustomed to bee ministred by the Ordinaries of the Realme in cases where they will suspect any person of heresie They moreouer affirme that it standeth not with the right order of justice nor good equitie that any person should be conuict put to the losse of his life good name or goodes vnlesse it were by due accusation and witnesse or by presentment verdict confession or processe of outlawrie Declaringe moreouer that by the lawes of the Realme for treasons committed to the perill of the Kinges most Royall Maiestie vpon whose suertie dependeth the wealth of the whole Realme no person can ne may be put to death but by presentment verdict or processe of outlawrie and therfore not reasonable that any Ordinarie by any suspition conceyued of his owne fantafie without due accusation or presentment should put any subject of this Realme in the infamie or slaunder of heresie to the perill of life losse of name and goods They further shewe that there may be heresies and paines and punishmentes declared and ordeined in and by the canonicall sanctions and by the lawes and ordinances made by the Popes and Bishops of Rome and by their authorities for holdinge doing preaching or speaking of things contrartie to the saide canonicall sanctions lawes and ordinances whiche be but humane mere repugnant and contrarious to the Prerogatiue of the Kings Imperiall Crowne Regall jurisdiction lawes statutes and ordinaunces of the Realme by reason whereof the people of the same for obseruing maintayning defending and due executing of the Kinges lawes statutes and prerogatiue Royall by authoritie of that act may be brought into slaunder of heresie to their great infamie and daunger and perill of their liues So wee see first howe the craftie and subtill Cleargiemen were the procurers of that statute lawe to the ende that they might execute their crueltie and howe vnder cloked and couert termes of canonical sanctions they vnjustlie vsurped jurisdiction ouer the people ministring vnto them captious snarling Interrogatories And as it should seeme by the histories vpon oath contrarie to the true meaning of the lawe and law makers and against the right order of justice and all good equitie impugning thereby the Royall Prerogatiue th' Imperiall Crown the Princelie Scepter lawes and Pollicie of this Kingdome In consideration whereof and to take from them all coulor of lawe positiue of this Realme that statute was then repealed and a newe forme of enquirie of heresie by indightment presentment or due accusation by two lawfull witnesses at the least was established And it is further to be noted that although the Statute made Anno 31. H. 8. commonlie called the statute of sixe articles was a verie streight sore extreeme terrible act 31. H. 8. c. 14 as the statute of the repeale thereof speaketh yet finde wee not by that lawe or any other these generall oathes or examinations by oath ex officio of persons suspected or accused for heresie or other cryme Ecclesiasticall 1. Ed. 6. c. 16 to be enacted or allowed of but rather by the courses and fourmes of enquire and triall otherwise prescribed in this and other statutes the same is rejected and disallowed whollie as vnjust and full of iniquitie For by this statute of sixe
Deane of Welles whose Deanrie was a donatiue passing therein beyonde the limites of his jurisdiction fell into the daunger of premunire And being called into question and hauinge no just defence was faine to appeale to the Kings mercie and obteyned a pardon And that booke of 5. E. 4. before remembred setteth downe the reason noting these wordes of this statute in curia Romana vel alibi In which wordes alibi sayeth that booke is intended the Courtes of Bb. So that if a man be excōmunicate in any of their Courts for a thing which apperteyneth to the Royal Maiest that is to say sayeth that booke in a matter of the common lawe the partie excommunicate shall haue a premunire facias and so was it adjudged In whiche wordes among other is speciallie to be noted that when so euer a wrong or injurie is offered to the common lawe of this lande there the Kinge is saide to be touched and his Royall Maiestie impeached For accordinge to the Princelie speach of that most Noble King Ed. 3. in the statute of Prouision made in the 38. yeare of his raigne the Kinges Regalitie chieflie consisteth in this To susteine his people in peace and tranquillitie and to gouerne them according to the lawes vsages and franchises of this Lande wherevnto he is bounde by his sacred oath made at his Coronation If then by vsurping cognizance of plea in causes cōcerning the common lawe and the jurisdiction of the Kinges Courtes the Ecclesiasticall Iudges touch the King in Capite doe against him his Crown Regalitie Realme so cōsequentlie incurre the forfeiture penalties of Premunire Howe much more doe they touch the King nay rather lay violent handes on him impugne his Royall Throne and Scepter who contrarie to the Pollicie Iustice Lawes Customes and Freedomes of this Kingdome yea the lawe of God it selfe enforce constraine by censure of excommunication otherwise the Kings people to appeare before them and extort from them an oath to accuse them selues And for more plaine demonstration if plainer may be put the case that a Iudge Iustice or Commissioner authorised by the Kinge to execute justice according to the lawes of this Realme should take vpon him by colour of his office and authoritie to conuent the Kings people before him and vppon their apparaunce to offer vnto them this general oath to aunswere vnto all such questions as him selfe should propounde playing in causes criminall the part both of accusor and Iudge or seekinge by oath and captious Interrogatories matter of accusation wherevppon to proceede to condemnation and to commit the partie refusing such oath to streight prison without bayse or mainprise could any man justifie this his doing to stande with lawe or justice Nay rather might not euerie man justlie cry out against him as against a subuerter of lawe and judgement and a hatefull enimie to our pollicie common wealth yea should not that bee verified of him which is recorded in the judgement against Sir William Thorp sometime chiefe Iustice of Englande for his corrupt dealing which is that as muche as in him laye he had broken the oath which the King is bounde to keepe towardes his people If all this may truelie be affirmed of such a one howe then shall the Ecclesiasticall Iudges practizing in their Courtes and Tribunal Seates the self-same vnjust and vnlawfull manner of proceeding against the Kings people escape the seuere sentence of law pronouncing them offensiue touchers and violaters of the King and injurious dealers against his Regalitie Crown and Kingdome so consequentlie worthie to suffer the paines and penalties declared in this statute of Premunire That this is no newe opinion or construction wee finde the resolution of that learned man Saint Germaine in his booke of Doctor and Student well agreeing where he writeth in this maner Jf any man bee excommunicate in the spirituall Court for debt trespas or such other thing as belongeth to the Kings Crowne and to his Royall dignitie there he ought to be assoyled without making any satisfaction for they not onelie offended the partie in calling him to aunswere before them of such things as belong to the law of the Realme but also the King who by reason of such suites looseth a great aduantage which he might haue of the writs originalles judicialls fines amerciamentes and such other thangs if the suites had bene in his Courtes accordinge to his lawes Hee sheweth further That if the Ecclesiasticall Iudges will not make the partie his letters of absolutiō where hee ought the partie shall haue his action against him Hee affirmeth also The Lawe to bee according where a man is accursed he meaneth excommunicate for a thinge that the Judge had no power to accurse him in notwithstandinge that he may haue his suite of premunire facias Againe we reade howe the late Cardinall Woolsey the Popes Legate here in Englande erected a newe Court or Consistorie called The Court of the Legate in which he tooke vppon him to proue Testamentes and to heare and determine causes in prejudice of the jurisdiction Ecclesiasticall of this Realme And howe by his vsurped power Legatiue he gaue and bestowed benefices by preuention to the disinheritance of the Kings subjectes and vifiting the state Ecclesiasticall vnder coulor of reformation gained to him selfe exceeding great treasure But this loftie height of vnlawfull authoritie weake and feeble in foundation could not long continue For in the one and twentieth yeare of the reigne of King Henrie the eight this proude prieste with all his glorious pompe and glittering shewe of all his Crosses Siluer Pillers guylt Axes imbrodered Cloakbagges and purple Hattes was attainted by his owne confession in a Premunire and the next yeare following all the Lordes spirituall hauinge deserued the same paines and punishmentes for their vnjust maintenaunce and supportation were called to aunswere in the Kinges Benche and knowing them selues guiltie before their day of appearaunce exhibited to the Kinge their humble submission joyninge therevnto an offer of a 100000. pounde to purchase their peace whiche after much suite the King accepted and by Parliament gaue them a pardon If then this Romish Legate for assuming to him selfe jurisdiction by authoritie Papall in prejudice not of the Kinges Courtes but of the Courtes Ecclesiasticall neuerthelesse to the hurt of the Royall Maiestie and for disturbaunce of the rightes and inheritaunce of the Kinges subjectes fell into the daunger and penaltie of Premunire and all the Bishops and Ordinaries of this Realme likewise through their maintayning onelie and supporting the same may we not safelie conclude that the Bishops and Ordinaries in these dayes vsurping power and jurisdiction in like sorte and maner although not in the same particulars by coulor of Antichristian decrees or practizing those popishe Cannons the verie head of that hellishe Cerberus of Rome as a learned man well termed them and the sinewes of his tyrannicall authoritie repugnant to the Royall Maiestie and Pollicie of this
Realme that is to say forcing vnjustlie the people of this lande to such vnlawfull oathes and examinations as are before remembred injuriouslie touching thereby the Prince in her Regalitie and her people in their lawfull libertie wherevnto they are inheritable matters of more waight and moment then the hinderaunce of the Bish jurisdiction or losse of a presentment to a benefice doe incurre the penalties and forfaitures limited by the foresaide statute of Premunire If any man neuerthelesse vrge and contende that these thinges are justifiable by force of the Popes testament the Cannon and Pontificall lawe I meane of long time practized Cannon lawe continuallie vsed within this Realme giuing a newe probate and allowance thereto after so publique and just condemnation and fyring of them by that famous Clearke and Doctor of the Church Martin Luther Sleidan and by the great number of godlie and learned men his associates as lawes and ordinaunces contumelious against God injurious to Magistrates and especiallie established to mainteine Antichristian tyrannie let him knowe that this Kingdome is not bounde or subject to any forreyne made lawes or constitutions not suffered by the King and voluntarilie accepted and of longe time vsed by his people as it is well declared by the saide statute of Anno 25. H. 8. whose wordes are these For where this your graces Realme recognizinge no superiour vnder God but onelie your Grace hath bene and is free from subiection to any mans lawes but onelie to such as haue bene deuised made and ordeyned within this Realme for the wealth of the same or to such other as by sufferaunce of your Grace and your Progenitors the people of this your Realme haue taken at their free libertie by their owne consent to bee vsed among them and haue bounde them selues by long vse and custome to the obseruaunce of the same not as to the obseruaunce of the lawes of any forreine Prince Potentate or Prelate but as to the accustomed and auncient lawes of this Realme originallie established as lawes of the same by the saide sufferaunce consentes and custome and not otherwise c. So to proue any forreine made lawe allowable within this Realme there must concurre Tolleration by the Kinge voluntarie acceptaunce of his people and a long and a large time of vsage None of which can be auerred in these maner of oathes and examinations For firste it may not be saide that the King suffereth that whithe he expreslie forbiddeth by his writtes and processe as offensiue to his Crowne and Regalitie Neyther can his people bee saide to haue giuen voluntarie consent thereto hauing alwayes repyned and often complayned and cryed out against it as a thing intollerable and injurious to their lawfull libertie the custome pretended being euer impugned and that justlie can create no lawefull prescription nor stande for an auncient lawe of this Realme but being against both lawe and reason it is nothing els but an inveterate error or disorder If defence be sought by any Canon or Constitution Canon these oathes being so apparauntlie against this our state common wealth and gouernement I see not howe anie Ordinarie but to his reproache may once open his mouth therein Prouinciall Cap. 9. considering that in the Parliament holden Anno 25. H. 8. The whole Cleargie of Englande not onelie for them then liuing but for their successors also submitting them selues to the Kings Maiestie promised in verbo Sacerdotij if that bee ought worth That they would neuer from thence foorth presume to attempt alleadge claime or put in ure or enact promulge or execute any newe Canons Constitutions Ordinaunces prouinciall or other or by what soeuer name they should be called in their conuocation without the Kings most Royall assent or licence And considering also that in the same Parliament by their full consent it is enacted and prouided That no Canons Constitutions or Ordinaunces should be made or put in execution within this Realme by the authoritie of the conuocation of the Cleargie which should be contratiant or repugnaunt to the Kinges Prerogatiue Royall or the customes lawes or statutes of this Realme nor to the dammage or hurt of the Kinges Prerogatiue Royall should still be vsed and executed vntill c. But notwithstanding all those prouident and politique lawes and statutes thus for the good of the common wealth wiselie established in the great Assemblie of the Realme and notwithstandinge also those solemne promises and protestations made as aforesaide although in the 12. yeare of the reigne of King Henrie the thirde there was a most seuere sentence of curse and anathematization denounced in the presence of the King and the Nobles of this Kingdome by Boniface then Archbishop of Canterburie and manie other Bishoppes apparelled in their Pontificalibus against all such as thereafter should willinglie and maliciouslie by any craft or engine violate infringe diminishe or chaunge secretlie or publiquelie by deede worde or counsell any of the free customes of this Kingdome and especiallie those conteyned in the saide great Charter yet the vnbrideled Cleargie men in the Papisticall time nothing regarding the good estate of this our pollicie neyther yet terrified by their owne cursing censures and execrations nor by the seuere lawes of Premunire most impudentlie to satisfie their owne licentious and lordlie lustes haue from time to time ascited sommoned by their lawlesse processe and arrested and attached by their malapart apparitours messengers and purseuauntes the free people of this Realme by violence drawing them not onelie into their publique Courtes and Consistories but priuatelie also into secrete corners and priuie chambers forcinge them there with roughe and rigorous termes of disgrace and reproache vpon euerie bare surmise and vncertaine rumor to take a corporall oath to bee examined vppon articles captious and deceitfull seekinge thereby most vncharitablie for matters of accusation Against whom if anie man durst standing vppon termes of his lawfull libertie but a little repine and refuse to sweare streightway he must bee committed to prison without baile or mainprise there to abide paine fort et dure depriuinge men of that which is more pretious then life it selfe and as it is saide in the ciuill lawe a Iewell inestimable libertie I meane more to be fauoured then any thing as the same lawe speaketh tyrannizing in such cruell manner ouer the poore and miserable people in their vile and filthie Cole-houses murthering Towers and Turrettes and in their darke and deadlie Dungeons as no tongue or penne is sufficient to expresse And whereas the prisons of this Realme were ordeyned either for the punishment of such as are by due course of lawe condemned or for restraint of persons suspected not bayleable for a time conuenient of examination and judiciall proceeding Those mercilesse Magistrates voyde of all pitie and compassion after their suddaine and raginge commitments for the most parte proceeded not to full examination and sentence but after long and miserable imprisonment in so much as it
man will say as this Archbish that a subject ought not to suppose that his Prelat will coÌ„maund him any vnlawfull thing but should repose him self in the good discretion vpright dealing of his ordinarie without further aunswere Let the subtill practise of this one Prelate and the cruell and the accursed dealinges of that barbarous Bi. Longlande stande at this present for a sufficient caueat to euerie man that shall depose to take heede howe he giue ouer-much credite to such glosinge and deceyuable speaches least too late he finde it true that faire wordes make fooles faine Neythet is this any sufficient allegation to say that the partie Deponent is no further bounde to aunswere then the lawe requireth howe generall soeuer his oath be since it is false for the conscience of such a Deponent to stande vpon termes and questions howe farre by lawe and by what lawe he is bounde to answere Will you heare also what that godlie and blessed Martyr Maister Iohn Lambert sayth concerning the Exactinge of such kinde of oathes Iohn Lam bert after he had acknowledged it lawfull at the commaundement of a Iudge to take an oathe to say the trueth wishing the Magistrates neuertheles to minister oathes with great discretion good aduisement and exhorting them to forbeare and spare them in trifling causes and matters of no necessitie least by too much haunt first contempt than perjurie doe creepe in Hee proceedeth further to this effect This haue I shewed saith he because it pitieth me to heare and see the contrarie vsed in some of our Nation and such also as name themselues spirituall men and should be head ministers of the Church who incontinentlie as any man commeth before them anon they call for a booke and doe mooue him to sweare without any futher respite yea and they will charg him by vertu of the contentes of the Euangely to make true relation of all they shal demaunde him he not knowing what they will demaunde neither whether it bee lawfull to shewe them the trueth of their demaunde or no for such things there be that are not lawfull to bee shewed As if I were accused of fornication and none could be founde in mee or if they should require me to sweare to bewraye another that I haue knowen to offende in that vice I suppose it were expedient to holde me still and not to followe their will for it should be contrarie to charitie if I should so assent to bewray them that I neede not and to whom perhaps though I haue knowne them to offende yet trusting of their amendment I haue promised afore to keepe their fault secrete Yea moreouer such Iudges sometimes not knowing by any due proofe that such as haue to doe before them are culpable will enforce them by an oath to detect them selues in opening before them their heartes In this so doing I cannot see that men need to condescend in their requestes for as it is in the lawe Nemo tenetur prodere scipsum And in another place of the lawe it is written Cogitationis poenam nemo patiatur To this agreeth the common prouerbe Cogitationes liberae sunt à vectigalibus Thoughtes be free from toll By which wise speach of this good man we may see condemned and that for just cause and vpon sounde reasons th'indiscreete and vnlawfull enforcing of this kinde of oathe seruing to no good nay rather to bad endes purposes We read also howe Bonner that infamous bloudsucker vnworthie the name of a Bishoppe hunting as the woolfe for his pray after matter of accusation among many other his mischieuous and detestable factes offered also this oath ex officio vnto the fellowe prisoners of that holy and worthie Martyr Maister Philpot saying after the rashe and indiscrete maner before remembred Holde them a booke you shall sweare by the contentes of that booke that you shall all maner of affection laide a part say the trueth of all such articles as you shal be demaunded coÌ„cerning this man here present meaning Maister Philpot. But those wise and godlie prisoners well knowing and considering howe they ought to take an oath aunswered to this vnjust request That they would not sweare except they first knewe where vnto and being therevpon offred an oath and that with threates of Excommunication to aunswere the articles propounded against themselues refused it also saying That they would not accuse them selues So that wee see plainely by these examples as also by that auncient and godlie writing intituled The prayer and complaint of the Ploughman that this kinde of generall oath and examinations ex officio mero were not first mishked by Iesuites and seminarie Priestes and froÌ„ them deriued to others that mislike gouernement and would bring the Church to an Anarchie as the world hath bene borne in hande But by true Christians holie learned and Religious men and that for good causes and considerations why they should so doe And I should much meruaile were it not that the world hath euer bene set in wickednes howe any that professe the holie name and title of Christianitie durst at any time put in practize within this Realme or elswhere so prophane and more then heathenishe manner of Inquisition not onely repugnaunt to God and Christian Religion but contrarie also to the rules and cannons of the Antichristian church of Rome Which lawes if I be not deceyued are more just and lesse vnjust a great deale then such as haue taken vpon them to judge by coulor of the same So that in a sorte it may be verified of them which was sometimes spoken of the people of Athens that hauing just good lawes they neuerthelesse behaued them selues as bad and dishonest men For it is saide by some of their Canonistes Canonists Procedere ex officio mero est quando Iudex à seipso ex officio assumit informationes contra delinquentem contra eum procedit hoc est quod dicitur procedere per viam inquisitionis Et recte loquendo inquirere contra aliquem â—ul Cla. in proe crim â— fin 3. quaest vers quaero quibuâ— non est ei transferre Inquisitionem sed recipere testes seu informationes contra eum And moreouer Formare inquisitionem contra aliquem est facere processum informatiuum assumendo informationes iudicia contra eum super alique delicto So that to proceede by inquisition is not to make the partie by oath or examination to bee his owne accusor but to accept and receyue information and witnesses against him And in what sorte and maner the proceeding ought to be is also declared to this effect Iudex nunquam debet procedere ex officio sic per viam inquisitionis nisi aliquod precedat quod appareat viam inquisitioni scilicet vel defamatio vel quaerela partis vel denunciatio vel huiufmodi aeliter processus erit nullus ipso jure neque in hoc intenduntur notificationes factae extra judicialiter
slaundered the other is forced by an oath to excuse and purge herselfe that what soeuer injurious or slaunderous worde she had spoken came not of any deliberate purpose or intent but through wrath and displeasure In like manner th' other which is accused eyther of adulterie or sorcerie is commaunded by an oath to declare her innocēcie so that it is euident vnto all men that in such cases whether they bee guiltie or not guiltie they must sweare if they will keepe their good name and fame whereby not onely the vnlawfull lucre of gaine and money is fought but also wilful perjurie forced c. Thus these honorable persons you see haue made it cleare what is chiefelie entended by these canonicall purgations pretende the Cleargie what soeuer they will and howe such forced oathes are not onelie offensiue vnto God but injurious also vnto men Therefore leauing these men to whō the fauour of gaine is so sweete togither with their famous lawe the matter which wee endeuour to prooue is that those generall oathes and oathes ex officio publiquelie heretofore much practized by Ordinaries and Ecclesiasticall Iudges are altogither vnlawfull whether by the Canonicall sanctions or lawe cannon I care not but by the lawes of God and of this Realme And therefore since we haue sufficientlie spoken of the lawe of God nowe least peraduerture it may be saide that such Catholique oathes are warraunted by the common lawes or statutes of this Realme or by the vse and practise of some Courtes of Iustice therein let vs consider hereof also and deliuer both our lawes and the Iustice of our land from so foule a slaunder Concerning the common lawes of this Realme we may finde an oath diuerslie allowed of and vsed in causes of suyte judiciallie depending But such a generall oathe or such like ex officio at any time eyther offred by Magistrate or taken or made by subject of this lande by authoritie of the common lawe can neuer be proued I am sure eyther by good recorde or sounde reporte of the same Long it were and tedious to remember the particular cases when and where an oath is required by the lawes and statutes of this Realme But this may be saide in generall and that truelie to the great honor and highe commendations of our gouuernement that the same common lawes haue not imposed or appointed an oathe to bee vsed otherwise then according to the right institution thereof the godlie rules before remembred yea moreouer this may trulie be affirmed that the common lawe of this Kingdome yea the common wealth it selfe hath euer rejected and impugned as a thing vnlawfull and injurious this maner of swearing whereof we nowe intreat as by that we shall hereafter say may euidentlie appeare Touching the oathes imposed or admitted at the common lawe by Iudges or Magistrates for of them onelie we are to speake First it is vsed as by good reason in all Courtes of Iustice established for determination of causes in suite or controuersie eyther betweene the Prince and subject or the subjectes them selues to require an oath of all such as are called or produced to testifie their knowledge concerning the matter or point in yssue whereby the trueth may appeare and the cause receyue an ende The defendent also in diuers personall actions voluntatilie offring an oathe for his cleare discharge Wager of lawe is admitted by course of the lawe therevnto which maner of proceeding is termed the doing of his lawe and seemeth to haue bene grounded vpon the judicialles before rehearsed giuen by God vnto his people the Isralites as by the obseruation of the cases hereafter mentioned may be gathered For in an action of debt brought for money due by reason of some simple cōtract or in an action of detinue of goods and chattelles the oath of the defendent in the one case that he oweth not the money and in the other that hee deteineth not the things required is allowed for a finall ende and barre vnto the pleadant For in the former case the repayment of the money may be priuate and in secrete so in the other the deliuerie of the goods And although the baylment and deliuerie of the pleadaunt goods to the defendent were by the handes of a third person or testified by writing yet these are no causes to put the defendent from his oath or wager of his lawe for asmuch as the answere is not to the baylment or deliuerie but to the deteiner or withholding and in the action of debt although the defendent eyther hanging the action or otherwise had confessed the contract yet is he to be admitted to his lawe or oath in so much as the point in suite is not the contract but the debt 7. H. 4. fo 7. 9. E. 4. fo 24 But in an action of accompt supposinge the receipt by the hands of a stranger or thirde person the lawe is otherwise for here the thing deliuered is not preciselie in demaunde but an accompt onelie thereof required And the receipt being the cause of action to which a thirde person is priuie as a witnes the oath of the defendent as a thinge not of necessitie is rejected For that reason was the defendent put from his wager of lawe Anno 31. Ed. 1. where the case was this An action of detenewe was brought for a Challice the defendent pleaded howe the pleadaunt deliuered the same in gage for vj. markes and that vppon the repayment thereof he was readie to deliuer the Challice the pleadent replying that he had repayed the money by the handes of one such the defendent offring his oath to the contrarie was nor admitted therevnto inasmuch as there was a witnes of the repayment by whose testimonie the trueth might be knowen And as the common lawe is thus on the part of the defendent so is it likewise for the pleadant comminge as it were in place of a defendent Therefore Anno 21. Ed. 3. fol. 49. the case was that the defendent vppon his accompt would haue discharged him selfe by certen tallyes and so by his oath continued the charge against the defendent But Anno 29. Ed. 3. the defendent in accompt alleadged before the Auditors payment to the pleadant by the hands of another and the pleadent offring his oath that hee had not teceyued the money was in respect of the third person denied to wage his lawe And the good discretion and consideration which the lawe vseth in the allowing and admitting of wager of lawe is not to be forgotten Whiche lawe least men of light credite or doubtfull faith should take an oath suffereth no man to doe his lawe but such onelie as is able to bring with him 11. other persons of ripe yeres and of good name to depose with him that they thinke he sweareth truelie Neither are th' one parties or th' other in any personal action by the courses of the common lawe suffered to cleare themselues by their oathes where they are charged eyther by
booke of Anno 2. R. 3. whereby it is euident that vnlesse these Ordinaries could prooue their forcing of oathes ex officio to be warranted by authoritie of the lawes and justice of this lande as in trueth they can not all their dealinges in such cases are by the same lawes vtterlie disallowed and condemned But here me thinkes some retchlesse or inconsiderate reader steppeth forth and sayeth What is your meaning to circumscribe and include all authoritie of ministringe oathes in the Courtes Ecclesiasticall within the streight limites and boundes of causes Testamentarie and Matrimoniall howe then shall all other matters subiect to their jurisdiction being in number manie and in nature diuers receyue due examination For aunswere therevnto this shortlie may suffice That the state of the question whiche at this present we haue in hande is not in what cases those Courtes may giue or impose an oath but the matter wher of we nowe intreate is concerning forced and constrained oathes ex officio and especiallie in that generall maner before remembred And as touching the triall of causes by examination of witnesses judiciallie depending betweene partie and partie in th'Ecclesiasticall Courtes it standeth firme and for founde lawe according to the saide Prohiâ—â—on and the opinion of Maister Iustice Fitzherbert in his booke of Iustice of Peace is That those Iudges Ecclesiasticall haue no lawfull power or authoritie to force or constraine by censures of the Church or otherwise any subject of this Realme against his will to testifie vppon his oathe other then in the foresaide causes of Mariage and Testamentes although comming before them as produced by the parties in the suite they may lawfullie as vnto men voluntarilie accepting the same minister an oath otherwise it is plaine extortion and wrong vnto the partie And admitte they would denie to depose what prejudice were that to the Court Christen but rather a faylinge in proofe in the partie suing And in this state and sorte standeth the proofe of causes by witnesses at the common law Neuerthelesse since the statute made against wilfull perjurie the witnesse serued with processe and hauinge his charges tendered making default incurreth a paine pecuniarie And why should the Cleargie and Iudges Ecclesiasticall thinke it much to be ruled and restrayned concerning their jurisdiction by the Kings Prerogatiue and the common lawes of this Realme since what jurisdiction or authoritie soeuer they haue or enjoye matters of the Diuine lawe excepted yea euen in those especiall causes of Testamentes Mariages Diuorses and Tythes is no otherwise theirs then by the goodnes of the Princes of this Realme and by the lawes and customes of the same as the statute of Anno 24. H. 8. cap 12. well declareth and may be taken from them and restored to the temporall Iudges especiallie the abuses of the Cleargie well descruing it at the will and pleasure of the Prince and people But to returne againe to our prohibition and attachment it is euident thereby that all the sommons and citations which those Ecclesiastical Iudges sende forth vnder these general termes propter saluteÌ„ animarum or ex officio mero And all their arrestes distresses impeachmentes excommunications and imprisonmentes therevpon ensuing are altogither injurious both to the Prince and people And of this opinion seemeth to be that learned Iudge Maister Fitzherbert who in his booke De natura breuium sayeth vppon these writtes in this maner By this appeareth that these generall citations which Bb. make to cite men to appeare before them pro salute animae without expressing any cause especiall are against the lawe And true it is for by the statute of Magna Charta Magna Charta conteyninge many excellent lawes of the liberties and free customes of this Kingdome It is ordeyned that no free man be apprehended imprisoned distrained or impeached but by the lawe of the lande and by the statute made Anno 5. Ed. 3. ca. 9. It is enacted That no man shall be attached vpon any accusation contrarie to the forme of the great Charter and the lawe of the Realme Moreouer it is accorded by Parliament Anno 43. E. 3. ca. 9. for the good gouernement of the Communaltie That no man be put to aunswere without presentment before Iustices or matter of recorde or by due processe or by writt originall after the auncient lawe of this Lande And howe then shall that kinde of proceedinge ex officio by forced oathes the vrging of this general oath and streight imprisoning of such as refuse to sweare bee justifiable If these things were not yet a man would haue thought that at the least the sharpe and seuere statutes of Prouision and Premunire so offensiue to popishe Polidore and such like Premunire should haue staied and stopt the violent course of those injurious inquisitions examinations and wrested oathes ex officio For no doubt the Ordinaries Cleargiemen practizing the same are all offendors doe incur the forfaitures of those penal lawes For profe wherof let vs consider the wordes of the statute of Premunire made AnnÌ„ 16. Ri. 2. ca. 5. and the judgments expositions thervpon had that statute reciting first the grieuous complaint of the whole Realm against the Pope of Rome who impeached many Patrons in the presentations to their Ecclesiasticall benefices excommunicated the Bb. of this realme for executing the kings writts de Clerice admittendo sought to translate some of them against their and the Kings will and diuers other inconueniences in derogation of the Kings Crowne and Regalitie prouideth remedie for those and such like mischiefes in this maner That if any purchase or pursue or doe to be purchased or pursued in the Court of Rome or elswhere any such translations processe sentences of excommunications bulles instrumentes or any other thinges whiche touche the Kinge against him his Crowne and his Regalitie or his Realme or them receyue or make thereof notification or any other execution within the same Realme or without that they their Notaries Procurators Mainteiners Abbetters Fautors and Counsellors shal be put out of the Kings protection and their landes and tenementes goods and chattelles forfait to the King c. Since the making of whiche statute it hath bene helde and adjudged for cleere lawe in the Kinges Courtes That if any subject of the kinges sue or impleade an other in any Ecclesiasticall Court of this Realme for any cause or matter appertayninge to the examination and judgement of the Courtes of the common lawe or any judge Ecclesiasticall presume to holde plea thereof or deale in any causes not belonginge to his jurisdiction that they incurre the daunger and penaltie of premunire as by the booke of 5. Ed. 4. fol. 6. by th' opinion of the Court Anno 11. H. 7. remembred by Maister Fitzherbert plainelie doeth appeare According also therevnto is the case of Maister Barloo late Bishop of Bathe reported by Maister Iustice Brooke Which Bish in the time of Kinge Edwarde the 6. depriuing the