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
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
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
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
neque illae quae fiunt incerto autore suppresso nomine notificantis By whiche wordes manifestlie appeareth that no Iudge Ecclesiasticall ought to proceede by way of inquisition except there precede a defamation of the partie complaint or information against him intelligence of faultes and offences out of course of judgement or by vncertaine authour or suppressed name is wholie by the Lawe rejected but by the executors thereof altogither admitted Another also therevnto agreeing sayth Io. pet de ferr in prae sub rubr form inqui sitionis fama publ That the inquisition is not orderlie done but where infamia praecedat vel talia judicia sufficientia quae probentur per testes idoneos And to prooue the fame or infamie there is required testes multi the reason quia dicta paucorum non infamant Secondlie they must bee graues honesti non maleuoli nec inimici partis Thirdlie they must bee such as are conuersant in the place where the partie hath liued whereby they may bee acquainted with the order and manner of his life and conuersation wherevppon chiefelie riseth the true judgement of his good or euill fame Fourthlie those witnesses ought to be receyued judiciallie Fiftlie they must be deposed And sixtlie they are to render a wife and sufficient cause of their knowledge of the infamie The Iudge in no cause if he would of his owne knowledge say the partie is infamous is to bee receyued or beleeued the reason is for that the lawe will quod secundum acta probata justitia ministretur And the grounde and foundation of the inquisition must not be extorted or wrested from the partie but lawfullie proued as aforesaide by sufficient witnesses Notwithstanding all which lawes what contrarie courses haue bene practized by Ordinaries and Cleargie men many haue felt and euery man knoweth too well So that concerninge their judiciall Courtes and Consistories the saying of the Poet is verified Victa iacet pietas virgo caede madentes vltima coelestium terras astraea reliquit But since that more then two quaternions of learned Canonistes haue of late taken the paines to set downe the vndoubted groundes of the lawe Ecclesiasticall as they say according to which the proceedings haue bene vsed time out of minde in all the Courtes Ecclesiasticall of this Realme and all other proceedings haue bene at all times reformable by appellations Let vs heare also what they say concerning this matter These Doctors firste graunt it to bee good and sounde law That no man may be vrged to bewray him self in hidden and secrete crimes or simplie therein to accuse himselfe They confesse further that if any man besides the Ordinarie will prosequute in their Courtes making himselfe partie to proue a cryme whereof there is suspition The partie conuented in that case albeit he must answere on his oath to other articles not principallie touching the verie crime objected is not bounde by lawe to aunswere vpon oath any articles of the verie crime it selfe Neuerthelesse say they when by circumstaunces once knowne a broade secrete crymes are become vehementlie to bee suspected and offensiue to the well disposed and daungerous to be suffred then are they meete by enquirie and all good meanes to bee discouered to the ende they may bee reformed the partie delinquent brought to penitencie and others discouraged to commit the like The wayes and meanes how suspition fame of crimes come to the Ordinaries eares they saye are these manie bruites of credible persons called in the lawe clamosa infinuatio and presentmentes of Church-wardens and Sydemen which presentmentes if they be not direct thorough ignoraunce of the presentours or insufficient in the lawe to proue a fame yet some scandall therevppon growinge howe litle by like is not respected th' Ordinarie by lawe Ecclesiasticall and good discretion may examine other witnesses being neighbours warning the partie suspected to be present The fame once prooued say they or the first presentement sufficient than th' ordinarie of duetie for the publique trust reposed in him is to proceede against the infamed although no other man will which by lawe is termed proceeding by enquirie especiall ex officie they adde a reason for confirmation Ne maleficia remanoant impunita vtque Prouincia purgetur malis hominibus And in this sorte if the Ordinarie proceed ex officio and the partie denie the crime objected then by lawe hee is enjoyned his purgation At which time of purgation say they he must directlie aunswere in clearing or conuincing him selfe de veritate vel falsitate ipsius criminis objecti and his compurgators are to sweare de credulitate weying his feare of God and conuersation of former tymes That they beleeue he hath taken a true oath whiche if they all doe then he is holden cleare or dismissed But if he fayle in his purgation then fictione juris hee is taken to bee guiltie and to be reformed They shewe likewise a reason of diuersitie betweene the proceeding in the case ex officio And that which is by suite of the partie That is Licet nemo tenetur seipsum prodere tamen proditus per famam tenetur seipsum ostendere vtrum possit suam innocentiam ostendere seipsum purgare And a reason of that reason is added because penaunces enjoyned by the ordinarie are not taken in lawe to be poenae but medicinae or tending to the reformation of the delinquent Th' example of others and satisfaction of the Church offended And so they conclude vpon all their reasons that the suspected are not to make scruple to discouer themselues after fame This being the true and onely course of proceeding by Ordinaries and Ecclesiasticall Iudges in causes criminall where is then become the exacting of those general oathes so often vsed to aunswere all Interrogatories that shal bee ministred and that before notice or vnderstanding for the most parte of the cryme objected And the extortinge by oath of the ground and foundation of the inquisitioÌ„ from the partie conuented doeth it not appeare by the resolution of these learned men that the same haue no good or sufficient 〈…〉 by the lawe howe long or much soeuer by couâ—â—t pretence of lawe and justice they haue bin practized or imposed And as concerning their proceedings exofficio to forced pâ—â—â—gations approued as they seeme to affirme both by 〈…〉 Ecclesiasticall and tytle of prescription if we looke 〈◊〉 thereto and take good view thereof what other thing â—â—all we finde then harde and vnjust dealing towards men and great abuse of the Name and Maicstie of Almightie God cloaked and shadowed neuerthelesse vnder the glorious and painted glosses of beautifullshewes and feyned pretences of purging of Prouinces Reformation of delinquentes necessarie examples discharge of publique trust and satisfaction of the offended church honest and honorable termes in deede but ill applied to this purpose For firste as concerning the injustice offred vnto men if it be a true and sounde principle or
Maxime in lawe not denied by themselues That Nemo tenetur seipsum prodere where should the benefite thereof be had or taken but in their Courtes and Cōsistories But if it should be graunted that this rule faileth where a man is proditus per famam doeth not that as a gloase confoundinge the text wholie and altogither destroy that rule or principle except for some reliefe this narrowe shifte may be vsed That the fame neuerthelesse standeth in force where any other then the Ordinarie assumeth to proue that cryme But in this case also they haue so weakned this maxime that scarcelie will it stande for a minome affirminge if I mistake them not that the infamed must aunswere on his oath to other articles not principallie touching the verie crymes objected For what should be meant by other articles but such as concerne circumstaunces and inducementes to the cryme And is not this to goe like the crabb oblique and to proceede the same way although not to treade the direct steppes But why there should bee any distaunce betweene the suyte or instance of the partie and the proceeding ex officio I knowe not the reason Alleadged therefore is this Penaunces enjoyned by Ordinaries are not taken to bee panae but medicinae what their lawe presumeth is not sufficient reason to prooue their lawe reasonable but what they are in deed is to be weyed And shall they be medicines onelie where proceeding is ex officio Or tende they in that case alone to the reformation of the delinquent Th' example of others and satisfaction of the Church May not all this aswell bee verefied where the cryme is complained of and punished at th'instaunce of the partie And shall not penaunce although it bee but the standing in a sheete as well as the standing on the pillorie respect of publique shame and reproache grieuous and odious vnto all men be accompted for a punishment True it is all corrections are or should bee medicines for the amendement of maners But doeth it therefore follow that the same be no paines or punishments As concerning th' offence to God by the abuse of his Name and Maiestie Haue we not learned before that to offer an oath vnto persons defamed in life and conuersation and speciallie concerning the matter of his owne corrupt life argueth a lightnes and wante of good discretion in the Magistrate who thereby wittinglie doeth minister an occasion of perjurie And are not all those on whome these purgations are imposed men greatlie defamed and vehementlie suspected of the crymes objected for as these Doctours affirme the law when secrete crymes by circumstaunces knowne abroade are become vehementlie suspected offensiue and daungerous then are they firste enquired of The proceeding also by inquisition beginning vppon fame proued not slenderlie but by presentment vpon oath or by deposed witnesses being many honest voide of malice neighbours to the partie and rendring a wise sufficient reason of their knowledge concerning the same And howe then may a Iudge in such a case with any good cōscience to Godward or to the satisfaction of his church force an oath vpon such a one for the finall ende of the cause Is not the perill and presumption of perjurie very great and pregnaunt Knowe we not that all or the moste part of men liking the counsell dedecus magis quam periculum vites will rather hazard their soules then put their bodies to shame and reproach presume the lawe neuer so much that after fame they should not make scruple to discouer them selues If the like course of purgatiō should be vsed at the common lawe vpon Indightmentes of fellonie or other criminall causes what doubt were to bee made but that perjurie in short time would ouerflowe the whole lande and shall we not thinke that the same is not frequent in these kindes of purgations But say they the partie is not trusted alone he bringeth with him his many compurgators who depose also de credulitate waying his feare of God and former conuersation Be it so the matter thereby is no whit amended but rather made worse and impaired For what doe those compurgators but by lending their oathes justifie in effect him to be honest whom fame and the former deponentes haue proued to be dishonest and verie neare the circumstances considered conuinced of the crime objected Why rather doe not these Ordinaries which challendge and assume to them selues the goodlie name and tytle of spiritual men if they respect the honor of God and regard the soules of men free the people from these pernitious oathes and deadlie purgations and proceede to their sentence of condemnation not by feyned offices and fictions of lawe but by good proofe and lawfull witnesses And againe absolue the partie defamed where such sufficient proofe doeth faile them why should they thinke much to offer to the laitie in their Ecclesiasticall Courts the like good measure and vpright sincere justice that they themselues finde obteine in the courts temporall of this Realme Where neyther they nor any other are forced ex officio Iudicis by strayning oathes and strong purgations not healthfull but hurtfull to bewray or accuse them selues Perhaps this counsell would be receyued if it were as profitable as good and honest but according to the prouerbe auro loquente tacendum est For it is no small gaine and lucre that dailie riseth and accreweth to the Cleargie and Courtes Ecclesiasticall by slaunder fame rumour and false report in respect wherof these faire names of Office and discharge of publique duetie are so cunninglie pretexed and these poysoninge purgations so daungerouslie giuen for preseruatiues A matter being since well knowne vnto the worlde Carolus 5 and by the Princes of Germanie in the Counsell of Norenberg among many other abuses and corruptions moste monstrous complained of to this effecte It happeneth oftentimes say they that men and women through sinister and false reportes and slaunders are brought before the Officiall or Ecclesiasticall Iudge as men guiltie and shall not be declared innocent before they haue cleared themselues by an oath which purgation so made they are restored to their former estimation And albeit the dammages and costes ought to bee repaide vnto such as be so falselie accused yet are the innocentes them selues forced to paye two Gilders and a quarter for their letters of absolution And this is the cause why the Officialls and other Ecclesiasticall Iudges doe so greatlie followe the action of such vnlawfull false and slaunderous accusations challenging the hearing thereof onelie to them selues Which thing no doubt saye they redowneth to the great and most singular hurt and detriment of all men For often times it hapneth that Women falling togither in contention through anger hatred or some other affection doe speake euill of or slaunder one another and outrage so much that the one often times accuseth the other eyther of Adulterie or Witcherie which being brought before the Officiall shee which through anger had so
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
their lawfull writing or matter of recorde for that these are testimonies and proofes sufficient wherevnto faith and credite ought to be giuen much more might bee saide in such particulars but these may suffice to shewe howe in suites for goods chattels debtes or personall dueties the common lawes of this Realme admit no ydle vaine suspitious or vnnecessarie oathes neyther compell any man to sweare concerning them but vppon cause allowe of the plâ—and desertes volontarie and necessarie oath for an ende of the controuersie As touching the causes and controuersies for landes and inheritaunces depending in fuyte eyther in admitting or requiring of oathes some fewe cases there be Neuerthelesse where an oath for them is vsed As if a Praecipe quod reddat be brought of lande wherein the tenaunt was not lawfullie sommoned he may vpon returne of the proces of graund cape wage his lawe for none sommons and thereby as not well executed abate the demaundentes writ in which case an oath seemeth rightlie to bee admitted since the cause is both of weight and necessitie to the tenaunt this being the onely way to relieue him against the vntrue returne of the Sherife whereby his lande for want of apparaunce was to bee recouered against him For as the lawe seemeth to way a triall of this sommons by 12. men is not allowable And although it may bee saide that the tenaunt vpon his losse by default might haue a writ of deceipt and recouer againe his lande 33. H. 6. fo yet that often times falleth out to be a faint remedie the death of such as were returned sommoners depriuing him of that aduantage In the case also of deceipt vpon a recouerie by default the sommoners viewers and perueors are judiciallie examined by oath whether they haue duelie accordinge to the lawes of the lande executed and perfourmed that whiche appertayneth vnto them who in this case are vsed but as witnesses to search and sifte out by them the good or euill dealing of the Sherife by whom the execution of the writ and processe was committed 41. Ed. 3. fo In like maner if the plaint in a scire facias recouer by default the defendent bring this action of deceipt against the Sherife the bailife and the partie that sued execution of the lande processe shal be awarded against the supposed garnishers and vppon their apparaunce they shal be examined and that by oath concerning the maner of the garnishment and the same beeing founde insufficient the plaintife shal be restored to his lande with the prosites meane We may finde also in such reall actions an oath required in another maner but yet to good purpose that is to take away vnnecessarie delayes of Iustice For if the tenaunt in a praecipe of lande will cast an Essoyne of the Kings seruice the Essoygner shall sweare and that directlie the same to be no feined excuse otherwise the Essoyne shall not be allowed Some fewe other particular cases of like nature may peraduenture be shewed where an othe is admitted or required in these reall actions but none I am sure tending to anie such purpose as these oathes commaunded and enforced ex officio In criminall causes and suytes Criminall causes whereby eyther the losse of life libertie member of the bodie or good name may ensue which among worldlie things are most deare and pretious vnto men the common lawes of this lande haue wholie forborne and that for just respectes to vrge or impose an oath vpon the accused For in wisedome it was foreseene that the frailtie of man for the safetie of life the preseruation of libertie credite and estimation would not spare to prophane euen that which is most holie and by committing sinfull perjurie cast both soule and bodie into eternall perdition This knewe the subtill serpent our aduersarie full well in generall although he were deceyued in the particular when as he saide vnto God concerning the holie man Iob Skinne for skinne Iob cap. 2. and whatsoeuer a man hath will hee giue for him selfe and for his life but stretch out thy hande sayth Sathan and touche his bones and his fleshe and see if he will not then blaspheme thee to thy face Moreouer euerie wise Magistrate may well conceyue vpon howe weake and feeble a foundation he shall ground his sentence trusting to such an oath when before hande the suspition and presumption of perjurie is so pregnant Therefore in causes capitall or otherwise criminall these our lawes neyther vrge by oathe nor force by torment any man to accuse or excuse him selfe but rejecte the oath as vnbeseeming a well gouerned state or common wealth And condemne the torture as a thing most cruel barbarous wherof although they neede no other proofe theÌ„ the dailie practize and proceedinges against parties suspected of such offences yet concerning the inquisitions by torture we may see the same affirmed by that learned Iudge Maister Fortescue in his commentaries of the Pollicie of this Kingdome 49. Ed. 3. And for th' other there are sufficient authorities in the reportes of the lawes them selues therfore in the booke of Assizes it appeareth that diuers Iurours were challenged as lesse indifferent some for matters that founded to their reproach and dishonestie as that corruptlie they had taken money of one of the parties in the suite whervpon it was ordered by the Iustices that such as were challenged for causes not dishonest should bee sworne to declare the trueth the other for the reason aforesaide not to be examined at all but the challenge to be tried without their oath The same lawe is againe reported vnto vs Anno 49. Ed. 3. fol. 1. Vpon the like reason is the refolutioÌ„ of the chiefe Iustices of the Iudges Saunders and Whiddon 12. R. Eliz. That if a bill of perjurie committed in the Chauncere against the forme of the statute made in the fifte yeare of her Maiesties reigne were exhibited in the same Court that the defendent should not be compelled to make aunswere vpon his oath eyther to bill or intertogatories but that the parties ought to descende to yssue and the triall to be had by Iurie in the Kings Benche I shall not neede to spende time in declaring after the parties in suite haue ioyned yssue triall by Iurie howe many wayes an oath is vsed about the triall of such matters of fact as the oath of Iurors them selues and of their triars vpon challenge or to speake any thing of the oath to be ministred vnto suck as require the suertie of peace neither to discourse of the doing of homage or fealtie by the tenaunt to the Lord since these and such like are well known to euery one although but of meane judgement to bee necessarilie vsed for the better administration of Iustice and assuraunce of dueties making nothing at all for those phantasticall and officious oathes and examinations proceeding rather ab officio the verbe then ex officio the nowne Neyther is it necessarie to