was thought a great fauour if after one yeares grieuous and streight imprisonment the poore distressed partie were called foroth to aunswere At the time of which sitting in their tribunall Seate howe gloriouslie soeuer they paint out their sentences to haue God and Iustice in their sight these men or rather monsters coueting more the destruction of mankinde then any amendement or reformation of maners fedde with delight their fierce and cruel mindes with the pitiefull sight of pyned sicklie and wretched creatures they them selues in the meane time being fatt and well fedde And although the heathen Emperours Claudius Caligula c. who tooke delight to be present at the bloudie tortures executions of their subjectes to heare their pitifull groanes and grieuous sighes commaunding th' executioners so to strike as the condemned might feele himselfe to die may worthilie bee termed fierce cruell and barbarous accordinge to that sayinge Qui fruitur poena serus est yet the extreeme crueltie of those men which termed them selues Catholiques and would be accompted true Christians was more horrible detestable a great deale In so much as they by lingring tormentes of long and painfull imprisonment exceeded the leysure vsed by the other in the time of execution taking from Death his due title of King of terrors and making him a welcome friende that endes so manie miseries Adde herevnto that the tyrannie of those heathen men as fullie satisfied ceased with the life of the tormented but the crueltie and furie of those Catholiques as neuer wearied condemned and put to fire the dead bodies of those whom they before moste treacherouslie had sline and murdered But as these good Pastors or rather deuouring Wolues were in this inexcusable manner most cruell against Christes deare seruauntes so againe in some other thinges they were as vaine and ridiculous For in this matter of an oath they haue deuised according to their toying fantasie a certaine foolishe figuratiue ceremonie in the ministringe thereof For the deponent forsooth must laye his three middle fingers stretched out right vppon the booke in signification of the holie trinitie and Catholique faith and his thuinbe and little finger hee must put downe-wardes vnder the booke in token of damnation both of bodie and soule if hoe say not the trueth the thumbe belike as the greater representing the heauie masse of the bodie and the little finger the light and incorporeall substaunce of the soule Howe superstitious also they were concerning this ceremonie of the booke little regardinge the true vse and ende of an oath as appeareth by the Allegoricall exposition curiouslie set forth by one of their parsonate and counterfeite Prelates who sayth That the circumstances in the acte of an Oath are verie great and waightie inasmuch as hee that sweareth by a booke doeth three things First as though hee should saye Let that which is written in the booke neuer doe me good neyther the newe nor the olde Lawe if I lye in this mine oathe Secondlie hee putteth his hande vppon the booke as though hee should say Nor the good worke whiche I haue done profite mee ought before the face of Christe except I saye the trueth which is founded in Christe Thirdlie he kisseth the booke as though he should say Let neuer the prayers and petitions which by my mouth I haue vttered auayle me any thing to my soules health if I saye not truelie in this mine oath Yet you must take this I suppose as meant onelie by this reuerend father where lay men or the baser sorte of the Cleargie take an oath For that blessed Bonner not longe since hath taught as this tricke of their lawe as he termed it that a Bishop may sweare such is his priuiledge inspectis Euangelijs non tactis bare sight of the booke without touche or kisse will well ynough serue his Lordshippes turne Againe the imposing of oathes vpon the rotten bones ragges and reliques of their canonized and counterfeit saints and vpon the Image of the Crucifige is both foolishe and idolatrous But to conclude leauing these vnjust and lawlesse men with their bad practises fonde inventions I doubt not by these fewe yet effectuall proofes and authorities it doeth manifestlie appeare vnto all men of vpright and sounde judgement That aswell the imposinge as the taking of these generall oathes is a prophane abusinge of the holy Name of God That the exacting of Oathes ex officio is a great indignitie to the Crowne and Scepter of this Kingdome and a wrong and injurie to the freedome and libertie of the subjectes thereof That the same is not necessarie or profitable to the Church and common Wealth but hurtfull to them both brought in onely by the practize of the Popishe cleargie to the prejudice of the publique peace and tranquillitie of this Realme and that the same neuer had any good allowaunce by anie lawe custome ordinaunce or stature of this Kingdome neyther yet put in vre or vse by any ciuill Magistrate of this Lande but as it corruptlie crept in among manie other abuses by the sinister practize and pretences of the Romish Prelates and Celargie-men so this their vnlawfull dealing hath bene from time to time by lawfull and just Authoritie impugned and restreined FINIS
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
Reignes of King H. 2. and Richarde the 1. and of King Iohn denied the payment of tribute and subsidie blustering and puffinge out moreouer like Cacus in his denne his smokie blastes of cursse and excommunication against the Kings collectours A notable example of humilitie and obedience in a Popeholie Bishop It is saide also by Maister Frowick Anno 10. H. 7. That the Cleargie had a Constitution that no Priest should be impleaded by the common lawe of this Realme for any cause whatsoeuer whether he saide truelie therein lette the Canonistes judge But certain I am the whole rabble of that Romish Cleargie did from time to time their best endeuour to make them selues lawlesse altogither as by the grieuances exhibited by the Princes of Germanie at the Counsell of Norrenberg in the time of the Emperour Charles the fifte may well appeare And this our haughtie Hugh of Lincolne eyther emboldened by such a Cannon or of his own free courage as a lustie champion of that irregular confederacie drewe out his woodden dagger of excommunication against the Kings Iudges and Magistrates secluding them as farre as his follie might from the fellowship and companie of Christians because they had by course of lawe imposed a fine vpon a Proselite of theirs newlie crept into their vnholie orders for his trespasse committed in the Kings Forrestes 27. H. 8. So likewise the reuerende Iudge Maister Fitzherbert declared that in the time of King Henrie the 6. a Bishop of Winchester being outlawed for no lesse fault then wilfull murther and his temporalities therfore seized into the Kings handes refused the iudgement of lawe and sued to the court of Roome the Pope writinge to the King in his behalfe aunswere was made that the lawes of this Realme were such wherevpon as vanquished and driuen from his shiftes the Bishop submitted himselfe to the grace of the King and though vnworthie obteined pardon We heard also in the 2. yeare of King H. 4. howe the Popes publication or collector tooke vpon him by vsurpation of authoritie to take both oath and obligation of a certain Vicar to holde him selfe contented with such endowment as the collector had appointed the Parsonage being appropriate to the Deanrie of Windsor and howe the Deane drewe the Vicar into plea before this new founde Iudge the Collector for the breache both of his oath and bonde Vpon which wrong done to the Royall jurisdiction the Vicar complayning had a Prohibition In which case are principallie to be noted the vnlawfull imposing of an oath by one that was no Magistrate but quid domini facient audent cum talia fures and th' injurious pro sequting and drawing into plea of the Kinges subject before an incompetent Iudge by this Deane a Cleargie man of the Realme In like sorte the Hospitallers and Templers assuming to them selues jurisdiction in prejudice of the King and of his Crowne drewe the subjectes of this Realme into suite before the Conseruators of their Priuiledges for causes perteyning to the jurisdiction of the Kings Courtes for reformation whereof the statute of Westm. the 2. cap. 43. was ordeyned Howe rigorous injurious and intollerable the dealinges ex officio by those Prelates and Ordinaries were whereof these examinations by extorted oath were a principall parte the grieuous complaint of the whole Communaltie of this Realme in the 23. yeare of the reigne of King H. 8. doeth sufficientlie declare Whereby the King was enformed how these mercilesse Ordinaries by their extraordinarie lawlesse power cited and sommoned his subiectes feyned and framed straunge accusations against them no accusers appearing examined them vpon articles captiouslie deuised for their purpose and in the ende admitting no defence and disallowing all purgation forced them to abjure or condemned them to the fire a most fearfull and barbarous course of inquisition Vnto which complaint those Pharisaicall Cleargie men who will not enter Pilates common Hall least they should be defiled and yet crye out with loude voyce Crucifige crucifige made as to the King him selfe there it seemed a verie weake and slender defence And no maruayle since wickednesse may more easilie be committed then well defended But will you see more fullie and clearelie beholde as in a glasse the manifold vsurpations incrochmentes injuries and oppressions committed and done from time to time by the Pope Prince of that curssing accursed Cleargie and by his sworne deuoted Baalamites and shauelinges against the rightes and prerogatiues of this Imperiall Crowne the lawes of this Monarchie and the liberties of the subjectes thereof then read and consider the grieuances of the commons exhibited against the Cleargie Anno 21. H. 8. the seuerall statutes of Prouision and Premunire the statutes of Mortmaine with the diuers kindes of prohibitions to the Courtes and Consistories Ecclesiasticall Among which you may finde an especiall prohibition with an attachement therevpon deuised against these injurious oathes and examinations as against abuses greatlie offensiue to the Crowne and dignitie Royall Which the better shall appeare by the writtes them selues which are in this forme set downe in the Register Prohibitiō Rex Vicecomiti salutem Praecipimus tibi quod non permittas quod aliqui Laici ad citationem talis Episcopi aliquo loco conueniant de caetero ad aliquas recognitiones faciendas vel Sacramentum praestandum nisi in casibus Matrimonialibus Testamentarijs teste c. And the Attachement is in this maner Rex Vic salutem Pone per vados c. talem Episcopum quod sit corā Justiciarijs nostris c. ostensurus quare fecit summoniri per Censuras Ecclesiasticas distringi laicos personas vel laicos homines foeminas ad comparendum coram eo ad praestandum juramentum pro voluntate sua ipsis invitis in graue praejudicium Coronae dignit atis nostrae Regiae necnon contra consuetudinem Regni nostri c. By the consideration of which writtes and especiallie of these wordes recognitiones sacramentum pro voluntate sua and ipsis invitis we may plainlie perceyue howe all these inquiries examinations Hindes case and 18. R. Eliz. prooueth no lesse and sifting out of matters by oath and by way of inquisition in the Courtes Ecclesiasticall are by the Regall authoritie impugned and that as prejudicial to the Crowne and dignitie Royall and the lawes and customes of this Realme these wordes pro voluntate sua expreslie deuoting vnto vs the vsurped officious power and licentious pleasure whereby contrarie to all due course of Iustice they constraine an aoth And these wordes ipsis invitis manifestlie painting out the rigorous injurious and compulsarie exacting of the samo Moreouer we see it declared by the statute of Marlebridge cap. 23. That no man may compell anie free-holder of this Realme to sweare against his will without the Kings precept or commaundement that is according to the lawe and Iustice of this Realme for so are we taught to vnderstande the same by the
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