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A01292 A parallele or conference of the ciuill law, the canon law, and the common law of this realme of England VVherein the agreement and disagreement of these three lawes, and the causes and reasons of the said agreement and disagreement, are opened and discussed. Digested in sundry dialogues by William Fulbecke. At the end of these dialogues is annexed a table of the sections ...; Parallele or conference of the civill law, the canon law, and the common law of this realme of England. Part 1 Fulbeck, William, 1560-1603? 1601 (1601) STC 11415; ESTC S102689 180,892 262

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that booke is not Canonicall Scripture Nomomath But a man may reason out of Canonical Scripture that it was no diuell which appeared to Saul in the likenes of Samuel because the diuel would not vse such holy speeches as ar attributed to Samuel in the first booke of Samuel which is Canonicall Scripture x 1. Sam. c. 28. Canonolog What meruaile is that when the diuell can transforme himselfe into an Angell of light and so hee did deliuer true testimonie of Christ a Matth. 8. Mar. 1. Luc. 4. though to a false and euill purpose and likewise of Paule b Act. 16. but holy Samuel would not haue suffered any such adoration as is expressed in that Scripture and therefore Tremellius and Iunius do rightly comment vpon that place that it is not in the power of the diuell nor of the witche his seruant to drawe againe into the world iust men but that it was a craftie and false pretense of the diuell to make men thinke that the true worshipers of God are in his hāds after their death Nomomath You haue almost made me of your opinion But tell me Codicgnostes what punishment hath your Lawe ordeined for Necromancers and Coniurers Codicgn They are by our law either executed 19. The punishment of necromancers and coniurers by the Ciuill law vpon a gibbet or throwne out to deuouring beasts c Paulus lib. 5. tit 23. Anglonomo By a statute made in the fifth yeare of the fortunate raigne of our soueraigne Ladie 20 The punishment of Necromācers and Witches by statute Queene Elizabeth it is enacted that if any mā do vse any inuocatiō or cōiuration of euil spirits for any cause or haue vsed any witchcraft inchantemēt charming sorcery wherby any person is slaine or destroied this is felonie in thē their aydors counsailors they shall lose Clergie and Sāctuarie and if any do languish in his bodie by such witchcraft inchantmēt or sorcery the offēdor cōuicted shal suffer a yeares imprisonmēt shal stād on the pillory in some market towne in the said Countie where the said offence is committed on the market day once in euery quarter of that yeare this offence if it be cōmitted the second time is made felonie cc 5. Elizab. c. 16. Canonolog It is an excellent law worthie of 21. The punishment of coniurers by the Canon lawe so noble a law-maker by our lawe which stretcheth not to the taking of mans life such offendors are shauē made baulde on the head d 26. q. 1. ca de benedicto and they weare a miter on their heads wherein their offence is in great letters painted e ca. episcopi ibid they are set vpon a ladd●r whilest the people go to heare diuine seruice f In d. c. Episcopi ca. de benedicto and so they are cast out of the parish g 26. q. ca. Episcopi diocese h ca. Episcopi ca. de benedict and if they haue anie office or benefice they are depriued of it i Glos● sin in ca. 1 de sorti Extra c non oportet 26. q. 5. if they be of the clergie not beneficed they are disgraded k Cap Admonendi 26. q. 7. de haere Nomomath You haue not yet shewed vnto me 4 Diuision whether if a woman doe procure a liue-child to be killed in her wombe or causeth it as soone as it hath receiued life to be cast out of her wombe being by that meane an abortiue so is deliuered of it whether the womā in this case be guiltie of Homicide or no by your lawes Canonolog Surely by our lawe if any woman 1. Homicide committed by the Canon law by procuring the vntimely birth of a child if death doe ensue without malice or euil cōueiance do bring forth an abortiue child which hath receiued life and is borne before his due time and it dieth the woman is accompted homicida occasionaliter l ca quod vero c. Moses 23. q 2. ca si expositus 87. Dist Codicgn Our law punisheth the womā whether 2. The Ciuill law punisheth such offence whether the child haue receiued life or no. the childe hath receiued life or no if it bee done of malice and euil meaning for though the Phisitions do make a distinction seuerall degrees of that which is conceiued in a womans wombe as namely first there must be a thing ingendred the next degree is a thing that is increased in the wombe the thirde degree is a thing formed or delineated like to a man the fourth a child or infant yet our Law punisheth vndistinctly and without difference the immature eiecting of any of these out of the wombe and the reason is for the onely hope and possibilitie of a child that may be borne m l. Cicero de paen ff l. diuus ff de extraord crimin gloss in cap. si aliquis de homicid Extra l. si mulierem Ad l. Corn de sicar ff and therfore with vs such things as are done for the hindering of the conception of a child are punished n Paulus lib. 5. sent tit 23. l. 38. §. qui abortionis de paen that worthily because it is done to the iniurie of nature in contempt of the most high God who hath said Crescite multiplicamini and that by no other meane then by cōtinuall generation of mankind howsoeuer there be some of whom Victor maketh mention which thinke that the woman cōmitteth no fault in this act o Pet. Victor lib. 27. vari lect c. 2. but as to the punishment of this fault in our Law if it be done for the gaine of mony the Lawe inflicteth punishmēt of death if through hatred or malice with exile for a certaine time p d. l. Cicer. d. l. diuus Anglonomoph In Bractons time it seemeth that 3. That though in Bractons time the Common law did agree with the Ciuill and Canon lawes in the punishing of aborti●ements yet now there is no such punishment by the Common law our Law did in this point somewhat neerely agree with yours for he hath these words Si sit aliquis qui mulierē praegnantē percusserit vel ei venenū dederit per quod fecerit abortiuū si puerperiūiam formatū vel animatum fuerit maxime si animatū facit homicidium q Bract. lib. 2. but now the Lawe is altered for by the Lawe now in force Homicide cannot be cōmitted vnlesse the thing slaine be in rerum natura and therefore if a man kill an infant in his mothers wombe this is not felonie neither shall he forfeit any thing because it cannot bee certainely knowne whether the infant died by the stroke or no r 3. Assis pl. 2. 22. Assis pl. 44 1. E. 3. 24. Brit. 45. The fiftenth Dialogue of Theft Burglarie and Robberie NOmomath Time nowe requireth that ye
it selfe vpon the weake and tender bodies of children and yong women which are most subiect to the impression of the ayre that is infected by them as Heliodorus plainely sheweth n Heliod Aethiopic lib. 3. and that it hath bene so thought in ancient time may appeare by Theocritus speaking of the remedie which was woont to bee vsed against such witchcraft o Theocrit eidyl 6. 7. againe they deserue seuerely to be punished not onely for vowing themselfes to the diuell but also for mingling themselfes in the companie of wicked spirites which must needes infect their bodies and soules and so make them apte instruments for the hurting of others Nomomath I do not thinke that that is possible 14. Alciate his opinion touching the meeting of witches amongst thēselfes and the meeting of the the diuell is vrged to be done which is commonly reported of witches dwelling in seuerall places meeting one an other and meeting likewise the Diuell and that opinion holdeth Alciat d Alciat lib. 8. parerg c. 22. and some other in these daies wherfore I see no reason that they should be punished for it Canonolog That is both true and possible as 15. Alciate his said opinion is confronted by the authoritie of Bodinus against Alciat and other writers straungely conceited in this point Bodinus hath largely learnedly disputed Alciat denieth it to be possible that naturally bodies which are saide to meete in places farre distant should at the naming of Iesus vanishe into the ayre and be caried swiftly and inuisibly thether but this is possible enough For if the Spirites cannot in a moment withdrawe the sight of thinges surely they can doe very little for this is manie waies done and Iuggelers and professours of feates can performe it and as to the swifte transporting of them to remote places Bodinus reasoneth well that if the Spirite of the eight Sphaere of the heauens doe mooue a thing of so great compasse and quantitie in so shorte a space that in one howre it passeth aboue a hundred times an hundred miles why may not a wicked Spirite carie the small bodies of such Witches in the minute of an howre the space of a hundred or two hundred miles yet I doe not thinke it possible which some affirme that the bodies of such witches may pierce through a chinke or riffe of a walle for the nature of the bodie cannot bee altered but this seemeth rather to be an illusion of the diuell offered to witches but what of this suppose that a witche doe confesse vnto a Magistrate that shee went in by a risse of the walle to kill a childe which shee did kill because it is not possible that the witche should passe through such a narrowe creuise shall the Magistrate therfore absolue the witche as guiltlesse of the childes death Nay rather let him diuide the matter and seuer that which is impossible from that which may bee namely the passing thorough the riffe of the walle from the killing of the childe for it may bee that in trueth the Diuell brought her in at the dore to kill the childe though hee made it seeme to her that she came in at a chinke of the wall but surely if there were no other fault in witches then the renouncing of God and the abiuring of the Sacramentes yet this being in it selfe consummate apostasie doth deserue extreame punishment and whosoeuer thinketh that witches because for the most part they be sottish old doting are verie easily deceiued and therfore ought to be spared hee is in a great errour for malice driueth them to desire that which by the diuels meanes they compasse whē they haue obteined it their froward nature doth ioy in it and the diuel for the most part leaueth them before they leaue him Nomomath Indeed so it seemeth for whē they fall into the handes of Iustice and bee cast into close prison the Diuell commonly practiseth no more feates for thē but suffereth them to susteine the punishment of law without any intermedling for them but I haue much wondered what should be the cause of this Canonolog That is done for two causes First 16. A double reason is alleaged wherefore the diuell worketh not for witches after that they be imprisoned because the diuell seeketh nothing more desirously then the gaine of their soules for when he thinketh that the soule is wholly brought vnder his power he expecteth for nothing so greedily as the departure of the soule from the bodie that he may torment the soule which before the death of the partie he doth retinere sub pacto and he not onely laboureth but hasteneth his death as much as hee can least repentance God is the God of mercy doe deliuer the miserable caytife out of the snare of damnation q c. Nec mirū 26. q. 5. D. Augustin lib. 3. de Trinit 10. de ciuitat dei Thom. Aquinas in tractat 44. primae partis quaest 5. in tit de mira an other reason is wherefore they being imprisoned cannot escape though the diuell would deliuer them out of prison is because the Iustice of almightie God will not suffer the diuell to exercise his naturall power for thē for if he should permit him God might perhaps seeme to weake and shallow consciences to haue cast of the care of humane affaires and of doing Iustice wherefore for his truth and glorie he will not suffer it r D. August d. lib. 10. de ciuit dei Thom. Aquin. in d. tractat 44. d. q. 5. Nomomath You haue spoken sufficiently of witches and their lewde practises of their punishment and daunger of their soules Now I would haue you to speake of cōiuration necromancie whether the practises of it are able to worke such effects as is commōly reported and how by your law they be punishable Canonolog This wickednes hath bene in ancient 17. That Necromancie Magike was vsed in ancient time times practised Suetonius in the life of Nero saith Facto per magos sacro euocare manes tentauit ſ Sueton. in Neron c. 34. And Tacitus maketh mention of a certaine yong man misled to this naughtines Iuuenem improuidum facilem inanibus ad Chaldaeorum promissa magorum sacra somniorum etiam interpretes impulit tentatus vt infernas vmbras carminibus eliceret t Tacit. lib. 2. Annal. Nomomath I pray you tell mee when there be such apparitiōs in the persons of the dead whether are they diuels or dead mens bodies that are so raised vp Canonolog It is an easie matter to resolue this question but a harde matter to discourse of it but shortly to answere it I thinke they bee Diuels which resemble men that are dead Nomomath Yet in the booke of Ecclesiasticus 18 A discourse of the apparitiō in the likenes of Samuel there is speech made of the bodie of Samuell raised by the witch of Endor u Ecclesiast c. 46. Canonolog But