5 44. Ed. 3. 33. benefice a man is to be sued in Court Christian. But this lieth not but where a Clerke is in as an incumbent for if he be in as an vsurper of the Church being full or as a trespasser there lieth action of trespasse and not spoliation But if two 6 38. H. 6. 19. incumbents be in and the one claimeth by one patrone and the other by another there lieth no spoliation but where both claime to be in by one patrone or by meanes of one patrone then lieth action of spoliation and not otherwise For where the right of Aduouson may come in questiō there lieth no spoliation for that cannot goe to a Spirituall Court And againe a litle after 7 38. H. 6. 20. Spoliation and debate vpon an appropriation shal be determined in the Spirituall Court Touching tithes where they are to be sued it appeareth by actes of Parliament thus The 1 13. Ed. 1. ca. 5. Westm. 2. plea for tithes shall passe in the court Christian as farre foorth as it is derained in the Kings court In the next Kings 2 9. Ed. 2. ca. 1. Artic. Cleri dayes thus In tithes oblations obuentions mortuaries sithence they are proposed vnder these names the Kings prohibition shal holde no place 3 Ibidem cap. 5. And againe the Kings prohibition shal not lie for tithes of a Mill newly erected Likewise in the dayes of K. Richard the 2. it is thus 4 1. Ric. 2. ca. 13. conteined in a statute The Clergie complaine for that the people of holy Church pursuing in the spiritual court for their tithes and their other causes which of right ought and of olde times were woont to perteine to the spirituall court and that the Iudges of holy Church hauing conisance in such causes and other persons thereof medling according to the lawe be malitiously endited c. and by secular power oppressed and be forced by oathes obligations and many vndue meanes compelled to ceasse vtterly against the liberties franchises of holy Church It is enacted that such obligations made by violence should be voide and the enditors of malice when the enditees be acquit should incurre the paine of those that procure false appeales c. Likewise the preamble of a 5 23. H. 8. ca. 9. statute in K. Hen. the 8. dayes doeth argue that matters of tithes are to be heard and determined by Iudges Ecclesiasticall The same is also proued by that where in 6 24. H. 8. ca. 12. another statute it is said thus Inconueniences haue arisen by reason of appeales out of the Realme to the See of Rome in causes testamentarie causes of matrimonie and diuorces right of tithes oblations and obuentions And in 7 27. H. 8. ca. 20. the preamble of another statute Deteiners of tithes pursuing such their detestable enormities and iniuries haue attempted in late time past to disobey contemne and despise the processe lawes and decrees of the ecclesiasticall courtes of this Realme in more temerous and large manner then before this time hath bin seene And therefore it 8 Ibidem was then enacted that for subtraction of tithes offerings and other dueties of holy Church the partie grieued may by due processe of the kings ecclesiasticall lawes of the Church of England conuent the person offending before the Ordinarie and also compell him to yeelde their saide duties And likewise for any his contempt disobedience or other misdemeanor vpon complaint to any of the Counsell or to two Iustices of the peace to haue him committed vntill he shall be bound to giue due obedience to the processe proceedings decrees and sentences of the ecclesiasticall court of this Realme And 1 32 H. 8. ca. 7. afterward by another statute of the same King it is enacted that for denying to set out tithes for deteining withholding or refusing to paye tithes or offerings Ordinaries may proceede according to the course and processe of the ecclesiasticall lawes And in the 2 Ibidem preamble thereof it is directly affirmed that by order of the common lawes of this Realme a man cannot haue any due remedie against deteiners of tithes And the 3 2. Ed. 6. ca. 13. like also appeareth by the statute of tithes made in K. Edwardes reigne That which is afore affirmed and determined concerning tithes oblations obuentions and mortuaries may likewise be said of pensions portions corrodies procurations indemnities and other such dueties ecclesiasticall For it is enacted that 4 34. 35. H. 8. ca. 19. for these denied ecclesiasticall persons themselues may make such processe against the person denying or against the Church charged as heretofore they haue lawfully done and as by and according to the lawes and statutes of the Realme they nowe lawfully may doe And the person conuict according to the ecclesiasticall lawes shall pay to the plaintife the things recouered and his costes CHAP. VI. That suites forright of tithes belong to the ecclesiastical Iurisdiction and how farre is shewed out of the bookes and reportes of the cōmon lawe so of places of buriall and Church-yardes and of Pensions Mortuaries Oblations c. THe reportes of iudgements and opinions of the Courtes at the Common lawe conteyned in the bookes of termes and yeeres called booke-cases and other treatises of that lawe are no lesse plaine pregnant in this matter An 5 M. 44. Edw. 3. fol. 32. attachement vpon a prohibition was sued against a plaintife in a Court Ecclesiasticall surmising that he did sue there for hay and money which touched neither matrimony nor testament but vpon shewing the libel which proued it was for tithes oblations a consultation was granted for the spiritual court to proceede And 6 M. 22. Ed. 4. fol. 24. passim alibi where the right of tithes is in question it is triable in the Court spiritual Likewise 7 38. H. 6. fol. 21. so soone as it appeareth that the right of tithes comes in debate the Lay court shal cease shal be out of iurisdiction quod fuit concessum The same is testified in the booke of Assises 1 22. Assis. fol. 75. For if the Kings patentee of tythes renewing in a Forrest that is in no Parish in which case the tythes doe belong to the King haue cause to sue any that ought to yeelde tythes and ought to seuer them from the nine partes such suite shall goe to the spirituall Court In the booke of Entrees in the precedent of a 2 Prohibition consultation 2. consultation graunted it is thus said In causis de decimis de testamento velmatrimonio quando sub eo nomine proponuntur prohibitioni Regiae non est locus And so 3 Bracton lib. 5. cap. 2. Bracton saith Non pertinet ad Iudicem secularem cognoscere de ijs quae sunt spiritualibus annexa sicut de decimis alijs Ecclesiae prouentibus 4 Bracton lib. 5. cap. 16. And againe afterward Mutatur
assises and the other booke case of 34. H. 6. both which admit a party to sue in the Court ecclesiasticall do seeme to me only therefore to reiect a partie and to require proceeding ex officio Iudicis because it was presumed that a party would not prosecute to haue the sinne alone punished but rather for satisfaction of the thing promised to him Yet this in truth may be otherwise by the law ecclesiasticall So that vpon all that which hath herein bin last spoken it might probably seeme to some that punishment of periury or breach of faith euen arising vpon a temporall cause should be still by the Common law of ecclesiasticall conisance so that penance for the sinne be but enioyned and no temporall amends required which doubt is to be referred to the reuerend Iudges resolutions That disturbance of diuine seruice is also punishable by iurisdiction ecclesiasticall the statute thereof made in the time 3 1. Mar. cap. 3. of Q. Marie doth prooue for though it do prouide punishment temporall therefore yet it reserueth the iurisdiction that Ordinaries had for punishment thereof by lawes ecclesiasticall Not to frequent or come to diuine seruice at times appointed is declared to be subiect to proceeding and censures ecclesiasticall aswell as to other punishments by the statute 4 1. Eliz. cap. 2. for Vniformitie of Common prayer and so is both that and neglect of the Sacraments by the statute De excommunicato capiendo heeretofore often alleged prooued to be of Ecclesiasticall conusance Long afore that statute vpon a prohibition brought a consultation 1 Reg. pag. 50. a. b. was granted whereby the Ordinaries proceeding ex officio against one that refused to receiue the Communion is allowed and warranted And so doth the litle 2 Goodall of the liberties of the Clergie Treatise of the liberties of the Clergie report this offence to be of Ecclesiasticall conusance Thus much touching offences ecclesiasticall being referred to impietie towards God CHAP. IX That simony vsury defamation or slander beating of a Clerke sacrilege brauling or fighting in Church or Churchyard dilapidations or waste of an Ecclesiasticall liuing and all incontinencie are punishable by Ecclesiasticall authority and how farre AMongst such crimes as be offences against iustice I do place simony first as participating also not a litle with the former sort yet rightly sorted hither because it is as a buying and selling of such things as be not in trueth res mancipi as the olde Romanes spake things lying not in commerce betweene men to be bought and solde This fault the said 3 Ibid. in fine statute De excommunicato capiendo sheweth to be punishable by iurisdiction ecclesiasticall That vsurie is likewise it doth appeare by authoritie of diuers Parliaments The king and his 4 15. E. 3. cap. 5. shall haue the conusance of the vsurers dead and the Ordinaries of holy church shall haue the conusance of vsurers on liue as to them apperteineth to make compulsion by the censures of holy church for the sinne and to make restitution of the vsuries taken against the lawes of holy church By annother later act made against vsurie 5 11. H. 7. cap 8. there are reserued to the spiritnall iurisdiction their lawfull punishments in euery cause of vsury And so is it expresly also mentioned in the aforenamed statute De excommunicato capiendo but this iurisdiction is since somewhat restreined because 6 13 Eliz. cap. 8. vsurie can not now therby be punished nor corrected except it reach aboue the rate of tenne in the hundred by yere By a consultation in the 7 Reg. pag 49. b. Register which was granted in allowance of proceeding against one for his vsury it is thus sayd in this behalfe Quta in articulis Cleri continetur quòd si Praelati imponant alicui poenitentiam pro peccato prohibitioni nostrae non est locus vobis significamus quòd ad correctionem animae praefati S. in hac parte viz. pro vsura dum tamen nihil aliud attentetis quod cedat in laesionem dignitatis nostrae in curia Christianitatis procedere poteritis prohibitione nostra non obstante But this fault sinne of Vsurie is mixti fori that is to say in some respect is of temporall in other regard of eccllesiasticall conisance not only by the statutes of the Realme as you haue heard but also euen by the law ciuill albeit in a diuers sort For in countreyes where that law hath place if it be 1 D D. in l. Titia ff soluto matrimonio called in question whether a contract be vsurarious or not the court ecclesiasticall doth determine this but for to pronounce such a contract void and to execute that sentence belongeth to a temporall court For cause of defamation it is 2 Stat. circumsp agatis 13. Ed. 1. recorded by an olde statute that it is alreadie granted it shall be tried in a Spirituall court And againe In 3 Artic. cleri 9. Ed. 2. cap. 4. defamation prelates shall correct by penance corporall the kings prohibition notwithstanding but if the offender will redeeme the penance with money the prelate may freely receiue the money though the kings prohibition be shewed By the preamble also of the statute for 4 23. H. 8. cap. 9. citations it is plainely argued that defamations belong to the comsance of iurisdiction ecclesiasticall so they be duely and according to law prosecuted Also by the bookes of Common law it appeareth throughout the arguments made in the great case of prohibition in the time of 5 T. 12. H. 7. fol. 22. Henry the seuenth that the suite for defamation belongeth to ecclesiasticall iurisdiction for there aswell by those Sergeants that stood against the consultation as the others and by the Iudges also that granted the consultation the originall cause being defamation it is yeelded that the punishment of slander or defamation is belonging to the Spirituall law Whereas there is a Prouinciall constitution that decreeth a slanderer or defamer of another to be ipso facto excommunicate this is allowed by 6 Reg. pag. 49. a consultation in the Register vnto a court ecclesiasticall And it is there added to this effect viz. Si in causa diffamationis ad poenam canonicam imponendam agatur tunc vlterius licitè facere poteritis quod ad forum ecclesiae noueritis pertinere prohibitione nostra non obstante One that sued 1 Reg. pag. 51. 2. another in a cause of diffamation in court ecclesiasticall was there condemned in expenses to the defendant who was absolued for that the plaintife failed in his proofes The plaintife to hinder the execution of the sentence and to escape without expenses procured a prohibition Yet vpon debating of the matter a Consultation was herein also awarded So that wee see both the Principall and the Accessarie cause to be of ecclesiasticall conisance If saieth 2 Liberties of the Clergie by the lawes of
they doe neuerthelesse without cause refuse to come and to testifie a trueth For then goeth a citation called Compulsories for them sub poena iuris to come and depose their knowledges in such a matter betwixt such parties So that the citation is not ad subeundum iuramentum albeit when they come they are not to set downe any deposition but vpon othe because it is iuris diuini naturalis gentium quòd non credatur testi iniurato Also the Authour of this opinion should haue done well to haue signified whether a Lay man being come thither without citation might then be vrged to take an othe Therefore if the Authour hereof wil hereby maintaine any controuersie against Courts Ecclesiasticall the issue must be either that to make the Defendant put in his answere vpon his othe so farre foorth as he by Lawe is bound or to make witnesses testifie vpon their othe is a thing contrary to the Lawes of the Realme But it appeareth by discourse vpon the former opinion in how many sundry causes of litigious Iurisdiction besides Testamentarie and Matrimoniall Ordinaries may holde Plea by the Lawes of this Realme according to the course of the Queenes ecclesiasticall Lawes That the ecclesiasticall Lawes doe require this course with the cautions aforesaide I thinke no man that knowes any thing in that Lawe will make doubt A Plea is a conflict in cause of Iudgement betwixt one that affirmeth and another that denieth There be but two wayes besides the parties confession which is not properly called a proofe to prooue any thing that is by witnesses or by a publicke instrument called by the Common Lawe matter of Record Now if witnesses might not be vrged to testifie vpon othe in any causes but Testamentarie or Matrimoniall then could no Plea be holden in any other cause when the chiefest and most vsuall meanes of proofe in recent facts be taken away This libertie and priuiledge of holding Plea in the causes afore shewed and in this maner as is now claimed 1 24. H. 8. c. 12. by the goodnes of Princes of this Realme and by the Lawes and customes of the same as a statute rehearseth appertaineth to the Spirituall Iurisdiction of this Realme and hath bene in all ages vsed in Courtes Ecclesiasticall without impeachment as by the Recordes thereof may appeare And therefore vpon any singular conceite newly taken vp by some priuate persons it is not safe to be nowe thus questioned and oppugned There is an olde Statute in force as I take it that may greatly bridle such newe quirkes except men were marueilous well assured of the groundes of so great and so generall an innouation For it is enacted that 2 15. Ed. 3. c. 3. great Officers about the King and in his Courtes of Iustice shall from time to time forwarde bee sworne when they shall be put in Office to keepe and mainteine the priuiledges and franchises of Holy Church c. Can it with any colour be intended that the Common Lawe doth allow Courts ecclesiastical to hold plea in those sundry other causes which we haue hitherto proued to be ecclesiasticall and yet that it wil not allow them any meanes or possibilitie whereby to hold such pleas For if no Lay man might be cited to an ecclesiasticall Court and there ordered to take othe in any other cause then those two then first the partie conuented if by Lawe he needed not would neuer answere to the Libel vpon his othe Yet hath this bene a course continually practised and by Lawe so appointed not onely in Ecclesiasticall but also in all Courtes of the Ciuill Lawe both here and throughout the rest of Christendome Againe if no Lay witnesses may be called to testifie in any other matter then should most men in those causes be hereby either quite foreclosed of their right and many grosse sinnes should passe wholly without reformation or punishment or else all such matters must needes be prooued onely by such witnesses that be of least indifferencie and therefore of least trueth and credite For those men be alwayes most indifferent which either be friendes or at least be no euill-willers to either partie Nowe seeing euery deposition must needes tende to the grieuance or hinderance of the one partie or the other can it be presumed of him which loues both and doth wish alike well vnto them that he will willingly and gratis without any processe come and depose and thereby doe one of his friendes a displeasure there resteth then that onely such will offer themselues to testifie who either be enemies vnto both or friendes to one and either enemies or strangres to the other and howe can these be vpright indifferent witnesses or else such who be meere strangers vnto both sides but it doth most rarely happen that meere strangers vnto both shal be able to depose any thing to purpose and more rare will it be that such will offer willingly of them selues to come in ad testificandum Besides these and many such like absurdities necessarily ensuing this opinion if it be yet still stoode in that the Common lawe permittes compulsion of lay men whether parties or witnesses to take othe in causes testamentarie and matrimoniall but denies it in all other cases let vs consider what may be imagined for a probable reasō of such differēce in proceeding betwixt causes that belong to the conisance of the selfe same courte For I haue read and often heard that the Common lawe is grounded vpon good and sound reason And it cannot be said in this case quamuis durum sit tamen ita lex scripta est for that this is no statute or written lawe but onely the reported opinion of one man whence all the rest haue since taken it Was it then meant to giue vnto subiects an ample meanes of comming by their rightes in these two causes but to restraine or debarre them in al other as namely for tithes and other rightes demaundable in ecclesiasticall courtes or was it the purpose of that lawe to haue men stand conuicted of most grieuous crimes that be of ecclesiasticall conisance as happely of Heresie being neither by them confessed nor yet proued by sincere and vpright witnesses but onely by such as doe thrust them selues in to beare witnesse whom not onely common speach but also sundry statutes doe terme Accusers and therefore doe hold at least for parties and men not indifferent May not many other ecclesiasticall causes be of as great importance preiudice as perhaps a will of goods vnder xl s. or a trifling legacie or a x. pound matter promised with a woman in mariage and if the law had bin so could no man hit of it from the Conquest vntill our fathers time when Fitzherbert writ his nouanatura breuiū was none of skil in Edw. the 1. time to put it into the statute of circūspectè agatis or in Ed. the 2. times to mention it in the statute of Articuli Cleri did none reade
directly moued for the crime and not by way of exception or barre onely witnesses are to be compelled sauing that by later Canons Clerkes were not to be compelled to testifie in causes of blood But if the question be touching a crime by way of exception then either there may ensue thereupon some effect of punishment as vpon excepting a man to be criminous who then is to be preferred to a dignitie to a benefice or vnto orders in which case any witnesse may be compelled to giue testimonie or else no penaltie can thereupon follow as when the exception is taken onely to repell a man from testimonie or accusation and in this case witnesses are not compellable except the partie who excepteth be like to be grieuously thereby preiudiced if his witnesses cannot be gotten to depose There is nothing more conuenient then that euery court should vse his peculiar course of proceeding by that law wherin they deale prescribed And therefore 1 Anton. in c. quod clericis de foro competenti lay mens matters in a Court ecclesiasticall are to be handled according to the maner of proceeding by that law required euen as 2 Bartol in l. 3. § fin ff de testibus clerkes shall and ought to be dealt with in temporall or ciuill courts after the maners and orders of those courts Seeing then compelling of witnesses to testifie is not contrariant repugnant nor yet diuerse from the Common law nor by it forbidden but allowed vnto Ecclesiasticall courts according to the course of those lawes which doe require it as is shewed and no reason or equity leading to admit it rather in those two causes then in others of the same conisance therefore may any witnesses whatsoeuer be vrged to take oath and depose in Courts ecclesiasticall and in other matters ecclesiasticall then either testamentarie or matrimoniall But to descend yet to more particulars the Kings tenants may 3 Artic. Cleri 9. Ed. 2 cap. 12. be cited before their Ordinaries as others Therefore both they and others though Lay persons may be cited in all causes of that iurisdiction neither is it there distinguished whether they come in as witnesses or as parties Also they may 4 Ibidem as others be excommunicated for their manifest contumacie This contumacie after appearance groweth onely vpon peremptorie refusall to performe some decree or commandement of the Iudge as in refusing to be sworne or to be examined being sworne Seeing then for manifest contumacie the Kings tenants or others may be excommunicated and this is indefinitely set downe it will follow that as in any other not performance of the decrees of the Iudge according to the ecclesiasticall lawes so in refusall to be sworne whether he be partie principall or witnes there is manifest contumacie Vbi lex non distinguit nec nos distinguere debemus Particularly in matter of tithes being neither a cause Testamentarie nor Matrimoniall the 1 27. H. 8. contemners of the processe lawes and decrees of the Ecclesiasticall courts of this Realme are by statute condemned but an vrging to answer or testifie vpon oath is a decree of an Ecclesiasticall Court ergo may not be contemned The Ordinarie 2 Ibidem in a suite of tithes for any contempt contumacie disobedience or other misdemeanours vpon complaint may haue the partie committed till he shall be bound to giue due obedience to the processe c. decrees and sentences of the Ecclesiasticall court of the Roalme but requiring a parties or a witnesses oath is such a decree Therefore c. Likewise by another statute 3 32. H. 8. cap. 7. the Ordinarie may conuent for withholding tithes according to the lawes Ecclesiasticall therefore he may conuent and cite a man Lay or other if he be supposed to be a withholder to answere vpon his oath For so is the Ecclesiasticall law Further by that statute the 4 Ibidem Ordinarie may proceed to hearing and determination c. according to the course and processe of the ecclesiasticall lawes but the processe and course of hearing by that law is by the parties personall answere vpon oath if it be required and by compulsories of witnesses to depose by oath as is afore touched Therefore c. The statute of 5 2. 3. Edw. 6. cap. 13. king Edward touching tithes prouideth that both they and the costs charges and expenses in the suite shall be recouered before the Ecclesiasticall Iudge according to the kings Ecclesiasticall lawes but for recouery of them those lawes require in cases aforesaid both oath of partie and of witnesses ergo c. By that statute is established that the 6 Ibidem Ordinarie euen for personall tithes may call the partie afore him and by his discretion examine him by all lawfull and reasonable meanes other then the parties owne corporall oath concerning the true payment of such personall tithes Ergo a corporall oath is in other ecclesiasticall causes a lawfull and reasonable means for exceptions are alwayes of the nature of the rule and should be within the rule if they were not excepted and therefore also in all other tithes as prediall and mixt it is a lawfull and reasonable meanes to put the partie vnto his oath quia exceptio firmat regulam in casibus non exceptis The statute for Vniformity of Common 1 1. Elâ—…z cap. 2. ad finem prayer authoriseth ecclesiasticall Iudges to enquire to take accusations and informations and to punish the breaches of that act c. in like forme as before had bene vsed in like cases by the Queenes Ecclesiasticall lawes but in like cases by those lawes oathes both of parties witnesses haue bene vsually taken Therefore c. One only instance destroyes a generall assertion therefore if there were but any one instance to the contrary an oath by law may be vrged of some lay man in some other cause then testamentary or matrimoniall which being true and the very contradictory of the opinion that is in issue vpon this point betweene vs it must needs follow that the opinion is vntrue and therefore not grounded vpon law Quod probandum nobis proponebatur CHAP. XII The grounds of the two next former opinions examined and confuted THe ground of these two opinions last handled for any thing that I could euer learne doeth only rest vpon a precedent of a writ of prohibition and of attachment thereupon In treating whereof for that I shall be forced to gainsay something that is deliuered by graue learned and wise parsonages I must first protest before God in sinceritic of heart that I do it not calumniandi sed veritatis studio whereof I am something resolutely persuaded in this behalfe I do reuerence and esteeme them that are contrary persuaded being men of great learning in their profession neither contemning nor condemning any so much as my selfe as being most priuie to mine owne wants and therefore I trust something taught to measure my selfe by mine
of sir Th. Mores grounded also vpon resemblance of the practise at the Common law vnto the ecclesiasticall in this behalfe viz. that a man may be at that law arrested and imprisoned onely vpō suspicion he frameth two answers The first of them is that at the common law there must be a fact precedent whereby a cause of suspicion must be grounded otherwise there lieth an actiō of false imprisonmēt What If an offence appeare to be done shal this be sufficient without all peril to ground a suspicion against any man whomsoeuer that it was he which did it so to imprison him Neither yet is it generall that a fact must be precedent before a man be arrested For if it be a fact of such qualitie nature as leaueth traces signes after it as murder Coining and such like which be called by Ciuilians facta permanentia in thē it is true that a fact must be precedent But in such facts as leaue no such traces behind them so y t it is not certain whether they be cōmitted at all or not yet probabilities thereof doe appeare as of speaches secret treaties of cōspiracie treason for such facts a suspected partie may be arrested and imprisoned though it be not assuredly knowen whether the fact be committed at all or not And these are called facta transeuntia Neuerthelesse this is not in any sort an answere vnto sir Th. Mores reason For admit that a fact must alwayes be precedent neuer the later this remaineth true that a Iustices onely suspicion may serue to arrest and imprison a man And yet the law ecclesiasticall for which More reasoneth doth in trueth require strōger grounds for enquitie special thē the Iudges only suspiciō as is afore at large in this secōd part declared The Note-gatherers later answere vnto that reason of Mores is that a felonie or murder being done and a fact manifest the partie apprehended and suspected knoweth that he is to answere that facte and not other by-wayes as is vsed in the ecclesiasticall proceedings Trulie of all that euer I heard these answeres be by-wayes and besides all way too of any reasonable answering obiections It may be that the partie himselfe especiallie if he be not guiltie knoweth not till hee be asked the very particular cause of his apprehension But it will be sayd that vpon his examination hee learneth what it is Why sir and so doe all that be conuented in courtes ecclesiasticall know by their examination the matter obiected Then where is the difference and the by-way that this man so talketh of But will you see his clerkelie vayne of reasoning herein For it is as if he had gathered it thus viz. A man arrested knoweth that he is to answere a fact which is committed Ergo Albeit at the common lawe a man may bee arrested vpon suspicion yet proceeding ex Officio is vnlawfull how good grounds soeuer there be for it farre sounder then suspicion For another inconuenience of proceeding by office importing with all a Contrarietie to the lawes of the Realme the Note-gatherer assigneth that thereby the Accessarie may be punished and the principall may escape which is contrarie to the Common law The consequence hereof he goeth about to prooue thus For that as he saieth the Principall may in those courtes be an Informer and a witnesse both against the Accessarie By which saying his slender skill or experience in those lawes appeareth For it is most notorious that there is no better nor more vsuall chalenge exception against an Informer or witnesse then to alleage quod est particeps vel socius criminis praetensi Albeit euen at the Common lawe we vsually see partakers and complices in coining in other kindes of treason and for sundry hainous crimes especially which are secretly contriued to be admitted to appeach and to be witnesses and to giue euidence against others their partners He affirmeth also but maketh no shew of proofe thereof that hereby the two Iurisdictions be confounded and that proceeding of office is derogatorie to the lawes liberties and customes of England In which respect it is sufficient that these be as easilie by vs denied as they be barelie boldly and vntruly by him auouched He further allegeth in three places as if it were a matter very considerable out of Hall and the Actes and Monuments of the Church that by the statute of 25. H. 8. cap. 14. all proceeding of Office is repealed and calleth the statute against Heresie 1. H. 4. the statute ex officio as if it had bene vnknowen before First that very statute 1 1. Eliz. cap. 1. it selfe of H. 8. standeth repealed Secondly it is very vntrue that it did at any time repeale proceeding of Office For it doth not so much as once mention it And therefore what any writers do name the sayd statute of H. 4. thereby repealed as I haue not sought so is it not materiall seeing they misunderstand it if they so write Yea the Notegatherer himselfe yeeldeth that the sayd statute of K. H. 8. doth establish proceeding of Office if he vnderstand what himselfe writeth For it doth appoint and so he allegeth it that from thenceforth proceedings against Heretikes should be vpon accusation or presentment If vpon Presentment then of consequence by the Iudges Office For so all lawes testifie and Presenters be not Accusers or parties For they are seuered counter-diuided euen in that very place one against the other The principall drift of that statute of K. H. 8. was to prouide that an Ordinarie vpon his owne onely suspicion should not call men into the dangerous question of heresie as it seemeth was afore vsed by some of them vpon colour of that statute 1. H. 4. and therefore there repealed The next statute which to the same purpose he quoteth 2 31. H. 8. ca. 14. is so farre from impugning proceeding of Office that for grounding proceeding ecclesiasticall euen in the crime of heresie it prouideth besides Accusation and Presentment not onely information by two witnesses but also enquirie and that is alwayes of Office But do not these men draw neere the lees when they are driuen thus to allege the statute of Sixe Articles being also repealed against proceeding of Office I had thought their courage in the pretended cause of sinceritie had bene so great that they would rather haue quit the place with losse of their cause then once to haue borrowed so much as the shadow of a weapon out of that store house Against this course the Note-gatherer also allegeth certeine bookes printed in king Henrie the eights dayes Cum priuilegio These hee termeth to be the maner of debating that cause in those dayes The first was made by S. German as it is thought and is intituled The diuision of the Spiritualtie and Temporaltie with his replie against Sir Thomas Moore intituled Salem and Bizance The next concerning the power of the cleargie and lawes of the Realme The third intituled Of
lawe then can it not bee auoided but that the Treatisour in very deede had such an vnduetifull and slaunderous purpose and reach in his words aforesayd To the second degree of their bare affirmations such speaches of Temporall Courts practise or forbearing to practise as these following bee doe belong videlicet that such a generalloathe or such like ex officio was neuer offered nor taken for you may perceiue he is not resolued throughly whether of these two hee had best insist vpon or take for his issue And that the common lawes haue euer reiected and impugned it Likewise that it was neuer put in vre by any Ciuill Magistrate of the land but as it is corruptly crept in amongst other abuses by the smister practises and pretenses of the Romish Prelates and Clergie-men which asseueration as it is in that part voyd of all likelyhood where it is surmised that the practises pretenses of Clergie-men did first shoulder this oath into Ciuill or Temporall Courts so is it yet an implied kind of confession that it is not such an Alien to the Ciuill pollicie of the Realme nor by it wholie reiècted impugned as in his treatise he beareth vs strangelie in hand Besides that such implication is flat repugnant contradictorie to y e Note-gatherer who writeth that it was neuer vsed here to make men accuse themselues for by this accusing he meaneth giuing of oaths to defendants touching discouerie of some their owne offences Lastly that where losse of life libertie or good name may ensue the Common law hath forborne oathes As for losse of life it is yeelded to be true which he here saith but not so for the other two for the Starre-chamber being a Temporall or Ciuill Court imposeth oathes where both infamie may and doeth follow for punishment and where libertie is restrained most often by imprisonment and sometimes also by banishment Vnto the other head of their bare affirmations which is what the Common lawe holdeth in this behalfe such of their speaches as these following doe appertaine videlicet to giue oath they meane to the defendants in causes of life and death is contrarie to the Iustice of the lande This albeit it no way impugne any practise Ecclesiasticall yet is it flat repugnant to the Note-gatherers assertion spoken vnto in the 1 ca. 10. pag. 93. second part Agayne that the Common lawes haue not appoynted an oath to bee vsed but according to the right institution thereof and that in causes capitall or criminall these lawes neither vrge by oath nor force by torment a thing most cruell and barbarous and therefore agaynst torturing he alleageth master Fortescue in his booke De laudibus legum Angliae It is wholie besides my purpose either to auow or disauow here the course of finding out trueth by torture yet much might on both sides probablie bee sayd therein both by reason and also by graue authoritie That the defendants oath in causes capitall neither is vsed nor allowed by the lawes of this Realme I doe yeeld vnto him as afore I haue sayd but for torture let me neuerthelesse put him in minde that it may perhaps be thought of very hard to haue it thus affirmed that the torturing of supposed Capitall offenders not only vsed in Campes but also within the Marches principalitie of Wales euen in time of peace well warranted by her Maiesties instructions and by Act of Parliament in the Tower of London for matters of treason should all of them be accounted absolutely contrary to lawe or which is more to bee courses most cruell and barbarous The other poynt thereof which is of not vrging a defendant by oathe in any cause criminall is the maine point here trauersed betwixt vs and therefore may not be caried thus away by him per petitionem principij without some sound reason All these aforesayde speaches I doe muster amongst their bare affirmations and haue the longer stoode vpon them because themselues doe not so much as assaie or vndertake to prooue most of thē by any colourable argument or authoritie for that the reasons which they tacke on vnto some of them doe not hang together by any consequence and for that diuers of them might bee granted without any detriment to the cause which wee defend for they be but voluntarie speaches let slip at randome this therefore commeth vnder his mistaking of the true issue yet they be such as seemed not vnmeete to bee mentioned least if the Author of them doe happilie holde them for sound reasons hee should complaine to haue a piece of wrong offered vnto him for that all his booke was not spoken vnto and answered Next doe follow those their reasons to be discussed which they take from the lawes of this Realme and first concerning such of them as be made out of Statutes and afterward we will come to their booke cases That which hee speaketh of Magna charta albelt he handle it last yet for the ancientie seemeth to deserue the first ranke he auoucheth no particular part thereof but taking as graunted a contrarietie belike in his opinion not trauersable to be betwixt proceeding by this oath and the sayd Statute he onely in high wordes telleth vs of a most iust curse of Anathematizing laied by the Bishops then against all wilfull infringers of that Charter If I should gesse what poynt thereof it is which hee intendeth to bee so contrary to these oathes I would take the nineteenth chapter thereof if any to bee meant both because putting to an oathe is there mentioned and for that I haue heard it to like purpose alleaged by some other Howbeit the Treatisour hauing farre better insight as seemeth in lawe then hee that so alleaged it thought good to skippe it ouer without all allegation for feare it would not so wel helpe his turne The wordes are these videlicet No 1 Magna charta ca. 19. Bailiffe shall from hencefoorth put any man to his open lawe nor to an oathe vpon his owne bare saying without faythfull witnesses brought in for the same I must confesse that these wordes are some thing too obscure and darke for mee to vnderstand what is positiuely and preciselie meant by them and so much the rather because I know not the vsage afore that time which thereby was ment to be remedied except I should coniecture that the bare saying there spoken of is to bee referred to the man that taketh the oath and not to the Bailife and then would it seeme to establish that practise which is vsed in waging of lawe with two or more witnesses or handes concurring with his oath that sweareth Howsoeuer it be in verie deed to be vnderstood it is easie inough to gather what can not be meant by it First therefore it cannot any way be extended to proceedings and courtes Ecclesiasticall for whatsoeuer is in that Statute graunted after confirmation of the Churches liberties except it bee otherwise plainely expressed is referred to Courtes
following of their opinion it wil be said that those aboue rehearsed are knowen and manifest crimes to allmen euen by the light of nature but so are not their Disciplinarie and Synodicall Constitutions c. It is true that treason murther theft and such like 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 euen in their generall nature are condemned for crimes by all men Yet when men come ad 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the particular application of their owne factes vnto the generall crime they are then contented to flatter with their consciences and to please them selues in their owne actions and so with such and such circumstances to deny theirs to be in any like degree Doe the Iesuites thinke ye when they are conuented condemne their lewde seducing of her Maiesties subiectes as treasonable did the damnable conspirators with Babington the traytor albeit they were not ignorant what the lawes of the land did adiudge of their actions when they went about their treasons condemne themselues as traytors and not rather lewdly flatter them selues vpon some circumstances which they thought should assoyle them of all guilt afore God Therefore this opinion though it cary a colourable shewe of some greater obedience yet when the reckonning is cast vp it iumpeth in very deede with the second For it commeth to this point that euery man shal be his owne Iudge how faâ—…e he neede to obeye lawes and Magistrates that require him to deliuer his knowledge touching his owne or other mens factes so he himselfe will account them lawfully done Besides the absurdities that followe this opinion it is also in it selfe very vnreasonable For if a man may reueale his brothers or his owne sinne may he not much more his vertue If God be glorified in detecting of sinne much more in making vertues knowen If trueth must needs be vttered of sinne much more of vertue for wisedome is iustified of her children If their doings be good instifiable then to conceale the trueth is in very trueth nothing lesse then to betray and forsake the trueth And that this is but a vaine glosse deuised in trueth to couer their misdemeanours and to escape from deserued punishment may appeare by the desire they carrie by all wayes meanes to cloke their sayd actions If their workes were not of darkenesse and secrecie they would not flie the light For it is a propertie of those which doe euill to flie from the light If their doings be workes of the light let that light shine foorth before men that they may see those their goodworks and glorifie their father which is in heauen If they stand assured they haue done but well what punishmeÌ„t soeuer should light vpon them for it they should confesse their obedience and T. C. practise of the whole Gospell of Christ whereof they make their discipline a necessarie part and reioyce with the Apostles that they are found woorthie to suffer punishment for the Disciplinarian part of the Gospell But is not this strange that where the most part of this Disciplinarian humour do thinke that they ought to discouer nothing of themselues nor of their brethren that is criminall that yet these others being fewer shooting at the same markes will as they say reueale their crimes onely but nothing else no not their owne and their brethrens vertues and good deedes belike for feare least they should be counted to doe it vpon some vayne glorie Yet this opinion giueth vs this aduantage that if a man may lawfully reueale and discouer not onely his brothers but his owne crimes and offenses if they beetruely crimes then haue they no colour but they must doe it when by the Magistrate according to lawe and vpon their oath they are so commaunded That which they may lawfully doe that may the Magistrate lawfully enioyne and they without disobedience to Gods ordinance may not refuse So that for the lawfulnes of ministring an oathe to a partie in a cause verily criminall and thereby penall to himselfe being a maine and principall controuersie betwixt the State and them we haue allowance by some of their complices owne positions but yet wee cannot get their practise vnto it But more hereof in the next Chapter The fourth and last of their opinions touching such oaths seemeth to bee something better and euen perhaps Classicallie or Synodicallie digested by them Yet it caries no small contradiction in it selfe which to their most aduantage that they can possiblie haue it vnderstood I will seeke by distinction to reconcile and to make stand together These therefore may be thought generally to holde that for anything whereof witnesses may be had the partie may not bee examined vpon his oath Out of which generall they diduce this that the Iudge may not examine a Preacher vpon his oathe touching his doctrine deliuered in publike place And if he goe about it the Preacher without breach of duetie to the Magistrate may lawfully refuse to sweare But if the crime be so hidden and secret that witnesses may not be had then a man may bee charged say they by oath But this they also limite and restraine thus so it bee not to drawe matter of accusation against themselues And to this purpose they doe vse seuen reasons Albeit the same men also say that to remooue euill from the lande they will take such oathe They will c. But they tell vs not plainely whether they take themselues bound to doe it or not So that I cannot see how to make these their opinions dwell peaceably together except their meaning herein be this that for crimes which be hidden being in themselues euill that is prohibita quia mala they will be pleased to take an oathe to reueale them but things that be secrete where no witnesse can be had and be none otherwaies euill but because they be prohibited such they may and will refuse to declare by oath which if they meane in deed as it is very probable they doe then doe they runne quite contrary to the opinions of all men besides For if it might be left to most mens choise they would rather discouer of themselues and others some breaches of Statutes not directly sorbidden by Gods lawe then such their owne crimes as be forbidden and therefore conteine more turpitude in them as adulterie periurie and such like But it must be remembred that these men haue an odde grace in framing opinions of diuinitie Pro re nata euen as present occasions doe leade them And they temper not their actions oftentimes vnto their former conceiued opinions but they conceiue opinions and coyne conceites as may best stand for defense of their owne and their fauorers present actions Nowe because many of them hope to bee found cleare in their owne persons from grosse and actuall crimes so expresly forbidden by Gods lawe but not so cleare perhappes in breache of the lawes of this Realme and peace of the Church therefore is this newe opinion stamped by them to stoppe vp this
againe to a pretie kind of pacification hold as wel as long as it shall But there is another partie also that perhaps will venture to rip vp agayne the seames of this greene peace if hee may not in some sort bee satisfied For there came vnto mine handes a good while after the former Treatise certaine briefe Notes without discourse that are deliuered abroad into many hands by writing being commended to be gathered by a man of great reading and iudgement in Diuinitie I awe and in what not It beareth this title Notes to prooue the proceeding ex Officio and the oath and subscription which are now required to be against the word of God the ancient Fathers and Canons of the Church and the lawes liberties and customes of the realme of England the proceeding of Office and the oath required though hee telleth not how he conceiues it to bee required as the Treatiser did doe both fall into this disputation which we haue in hand As for the subscription vpon other occasion that may hereafter elsewhere be debated The seuerall points which in respect of the two former hee handleth are by himselfe distributed and sorted into these seuerall heads viz. First testimonies out of ancient Fathers that do mislike the proceeding ex Officio and oath now vsed Secondly English Martyrs that haue refused and misliked the oath now vsed Thirdly the proceeding against heretikes in Englād without exacting an oath c Fourthlie the Canon lawe teaching Inquisition and proceeding ex officio by oath Fiftly another order of proceeding but yet in causa fidei and not otherwise Sixtlie the bishops proceedings contrarie Seuenthly the lawes of England Eightlie the maner of the reuocation of the proceeding ex officio in king Henry the 8. time Ninthly the maner of debating of that cause in those dayes 10. Sir Thomas Mores reasons for maintenance of proceeding ex Officio the oath with summarie answeres to them 11. And lastly Inconueniences which come by the vse ex Officio contrary to the common lawe For proofe of some of which especially the first he is so plentifull in quotation onely of places without rehearsing their sayings out of the ancient Fathers counsels c. that for mine owne part I must confesse that vpon the first view of their names in his moster booke I was greatly astonished least I had too resolutelie defended a matter against such an armie of ancient Fathers and as it were against the generall consent of the olde Primitiue Church from which I meane not God willing casilic or rashlie to swarue But when I had approched neerer I well discerned this my feare to be all in vayne in that they had neither banner displaied nor weapons bent against this cause but rather against the faces of the aduersaries thereof as may plainelie appeare in the seuerall opportune places of this simple Discourse ensuing I may well resemble this dealing of the Note-gatherer vnto yong setters vp in London as Apothecaries and such like that be not at first well stored with stuffe who to furnish vp their shoppes vnto the best shewe are woont oftentimes to embellish them with good numbers of painted gallie pots boxes and glasses intituled on the outside euen with golden letters sometimes of such precious Waters Oyles Simples and other drugges of medicine which they neuer smelt of because such neuer came within them And perhaps I should saue him from suspicion of a greater fault that is eyther want of iudgement or of wilfull peruerting of the ancient Fathers if I should freelie deliuer my conceite in this behalfe which is that his leisure serued him not to looke what was indeede contained in those places which there hee quoteth but that hee did set them downe vpon trust out of the Pies or Indices of the sayd seuerall bookes wheresoeuer the bare wordes of Inquisition of Accusing of Oath or of Swearing was found For I dare auowe that hee which shal read thē in the Authors themselues will iudge that many of them were gathered together in condemnatiō of taking any oath at all an errour holden by the Anabaptists albeit being truely vnderstood according to the circumstances the places serue neither the one turne nor the other rather then that by any colour they may be wrested to speake either against oathes ministred in causes criminall or against proceeding by Iudges of Office Let thus much therefore if it be not too much suffice to haue deliuered in some generalitie touching the said Treatise and Notes both which are vndertaken for the whole substance of them to be here and there answered in this simple discourse ensuing THE CONTENTS OF the seuerall Chapters of the First part 1 THat a seuerall royall assent is not required to the executing of euery particular Canon 2 The particular distribution of all other causes to be proued to be of Ecclesiasticall conusance besides Testamentarie or Matrimoniall with a discourse of bishops certificates against persons excommunicated being a speciall point of their voluntarie iurisdiction where there is no partie which prosecuteth 3 That matters in the former chapter adioyned to Testamentarie Matrimoniall causes though properly they be not of Testament or Matrimony are of Ecclesiasticall conusance and how farre 4 Generall proofs out of statutes that sundry other causes besides Testamentarie or Matrimoniall are of Ecclesiasticall conusance 5 That suites for title of Benefices vpon voidance or spoliation likewise that suites for tithes oblations mortuaries c. for pensions procurations c. are of Ecclesiasticall iurisdiction is prooued by statutes especially 6 That suites for right of tithes belong to the Ecclesiasticall iurisdiction and how farre is shewed out of the books and reports of the Common law so of places of buriall and Churchyardes and of pensions mortuaries oblations c. 7 Of right to haue a Curate and of contributions to reparations and to other things required in Churches 8 Proofes in generall that sundry crimes and offences are punishable by Ecclesiasticall iurisdiction and namely idolatrie heresie periurie or laesio fidei and how farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments 9 That Simony Vsury defamation or slander beating of a Clerke sacriledge brawling or fighting in Church or Churchyarde dilapidations or waste of an Ecclesiasticall liuing and all incontinency are punishable by ecclesiasticall authority and how farre 10 That the matters and crimes here reckoned be also of ecclesiasticall iurisdiction and proofes that any subiects lay or other may be cited in any cause ecclesiasticall 11 That lay men may be cited and vrged to take oathes in other causes then Testamentarie or Matrimoniall 12 The grounds of the two next former opinions examined and confuted 13 That iudgement of heresie still remaineth at the Common law in iudges ecclesiasticall and that the prouiso touching heresie in the statute 1. Eliz. cap. 1. is onely spoken of ecclesiasticall commissioners
proceed by that thereby without all scruple of danger their proceedings so appointed to them might haue bene warranted But being altogether needelesse it is no maruell though it were omitted For can any man doubt if it were needfull but that there is a sufficient Royall assent had when as it is giuen to the whole acte before it can passe for a Lawe Lastly the same statute out of 5 25. H. 8. ca. 19. which as I coniecture this opinion was stirred vp doth establish all Canons which be not contrariant nor repugnant to the Lawes Statutes and customes of this Realme nor to the dammage or hurt of the Kings prerogatiue Royall that they shall now still be vsed and executed as they were afore the making of that acte till they should be viewed c. by the 32. persons c. which is not hitherto done But such were vsed afore without any expresse or particular Royal assent from time to time obteined and therefore may still be vsed without any such newe assent For to exact it were in very deed to bring in a quite disuse of all ordinarie Ecclesiasticall Iurisdiction in stead of vsing it which hitherto from planting of Christianitie and in all succeeding times hath neuerthelesse bene practised This opinion as an arrow shot vnaduisedly at the Bishops glanceth off them and woundeth very deadly the fauourers of the new Discipline in whose behalfe it was framed for they are so farre from taking expresse leaue of the Prince to put euery of their Constitutions ecclesiasticall in vre that they holde her Maiestie hath nothing to doe to make or establish any Church-lawes And the clause for vse of such former Canons and Constitutions synodall afore mentioned as they were vsed afore that time will not helpe the exercise of their synodicall cōstitutions made long after in a Conuenticle called together by their Moderators writ But belike when they set vp the statute of submission of the Cleargie shall be turned into a statute of submitting the Princes scepter to the rule of their Presbyterie in all Church-matters The chiefest colour and pretence 1 25. H. 8. ca. 19. for this opinion is taken as I coniecture out of the now reuiued statute made in K. H. the eights time of submission of the Cleargie But the wordes thereof doe plainely discouer the weakenes of such collection for it is not enacted simply that they shall not put in vre c. any constitutions c. but according to their aboue said submission and petition which was that they would not enacte nor put in vre any new Canons c. in their Conuocation without the Kings royall assent and authoritie in that behalfe Otherwise there were a flat contrarietie in the selfe same Acte by reason of the last prouiso thereof next afore repeated where Canons already made so they haue the qualities thereby limitted are appointed to be vsed For it is there said shall be now still vsed and executed as they were before the making of that Acte And where in 1 27. H. 8. c. 15. the 27. yeere of the said King the same submission and former Acte is repeated there in the very body of the statute touching not putting in vre of Canons c. the same modification as afore is retained viz. According to the said submission and petition of the Clergie which concerneth onely newe Canons For of those that were then already made the very selfe same prouiso as afore is set downe appointeth that they shall still bee vsed and executed as they were before the making of either of those Acts. Which was without any such expresse assent as by this opinion is enforced and is therefore neither requisite nor almost possible I haue also heard some alledge the 2 1. Eliz. ca. 1. clause of the statute made for vniting of all Ecclesiasticall Iurisdiction to the Crowne against the exercise of Iurisdiction by any Ordinaries which to mine vnderstanding is a very simple collection Belike they meane that no Iurisdiction is vnited to the Crowne but there must be a Commission vnder the great Seale to warrant the execution of it vnto him that is to exercise it Then must euery Stewarde of a Leete euery Constable and sundrie other Officers be driuen to procure like warrant for the execution of their Temporall offices for I trust it will not be denied by these men but that all Temporall authoritie and Iurisdiction is by Lawe also vnited to the Crowne In deede this reason would serue against either the one or the other Iurisdiction if they were not deriued and claimed from the Crowne but from some other authoritie immediatly as the Popish Clergie did theirs from God by the meanes and direction of the Pope Yea euen another 3 8. Eliz. ca. 3. Parliament sheweth howe farre this collection is from the minde of the makers of that Lawe For that very clause 1. Eliz. ca. 1. together with her Maiesties letters Patents directed foorth for confirming and consecrating Archbishops and Bishops is brought in the Preamble thereof as a strong proofe without scruple and ambiguitie that the authorities and Iurisdictions by them executed be thereby giuen vnto them from her Maiestie And therefore this opinion doth remaine destitute of any ground of Lawe CHAP. II. The particular distribution of all other causes to be prooued to be of Ecclesiasticall conusance besides Testamentarie or Matrimonial with a discourse of Bishops certificats against persons excommunicate being a speciall point of their voluntarie Iurisdiction where there is no partie that prosecuteth THe next opinion viz. That by the lawes of this Realme none Ordinary may cite any whomsoeuer but in causes Testamentarie or Matrimoniall though it draw deepe yet it hath not so large a reach nor draweth so great a compasse as the former For this leaueth some ordinarie Iurisdiction Ecclesiasticall in these two cases where the other vpon the matter sweepeth away all But if this be simply true then the former must needes be false For if by Lawe an Ordinarie without more a doe may cite men in these two cases then may some Canon c. by Lawe be put in vre without any further Royall assent to execute the same But if it shall be prooued true that by the Law of the land in some causes besides Testamentarie or Matrimoniall an Ordinarie may cite Then this opinion that in no causes besides Testamentary or Matrimoniall an Ordinarie may cite being the contradictorie thereof must needes according to rule of reason be prooued false For it will not be denied by any but in what cause soeuer an Ordinarie may lawfully deale in that if neede be he may vse citation All matters done by Bishops who onely be immediate Ordinaries vnder her Maiestie either belong to their order and degree as ordeining of Ministers or Deacons cōfirmation of children dedication of Churches or Churchyards or to their Iurisdiction Their Iurisdiction is of two sorts the first is voluntarie that is when those whom they deale
owne foot Sed amicus Plato amicus Socrates magis amica veritas The copy of this writ I finde reported and set downe in two seuerall books In the 2 Register tit prohib Register contrary to the vse of other precedents there is deliuered but a parcel as seemeth of a writ in two or three lines in these words viz. Rex vicecomiti S. Praecipimus tibi quòd non permittas quòd aliqui laici ad citationem talis episcopi aliquo loco conueniant de caetero ad aliquas recognitiones faciendas vel sacramenta praestanda nisi in causis matrimonialibus testamentarijs T. c. And in the margent thus Prohibitio ne latci conuentant ad citationem episcopi ad recognitionem faciendam But the precedent of attachment framed vpon this writ runneth generally without excepting so much as these two causes euen as if a lay man whether partie or witnesse might not be vrged to answere or testifie or to take an oath except he lust in any cause ecclesiasticall at all For it is 1 Reg. in br orig fol. 36. b. tit Prohibitiones thus viz. Rex vicecomiti Salutem Pone per vadium c. talem episcopum quod sit coram iusticiarijs nostris c. ostensurus quare fecit summoueri per censuras ecclesiasticas distringi laicas personas vel laicos homines foeminas ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis in graue praeiudicium coronae dignitatis nostrae regiae necnon contra consuetudinem regni nostri habeas ibi nomina pleg c. T. c. And in in the margent it is entituled thus Attachiamentum inde Also in the Abridgement of statutes 2 Abr. Rastall cit prohib consult nu 6. gathered by Rastall I do finde a precedent of a prohibition set downe at large mentioning a writ to like purpose to haue bene sent to the shiriffe but none attachment thereupon where of those words rehearsed in the Register though something altered seeme to be a parcell In that point it is thus Rex episcopo Norw Salutem c. Mandauimus etiam vicecomiti nostro comitat Norf. Suff. c. quòd non permittant quòd aliqui laici in Balliua sua in aliquibus locis conueniant ad aliquas recognitiones per sacramenta sua faciendas nisi in causis matrimonialibus testamentarijs Whereby these three varieties do appeare betweene this and the former First that which is said heere by way ofrehearsall that the king had sent such a writ to the shiriffe seemeth in the Register to be set downe as conteining part of the writ it selfe directed to the shiriffe Secondly that which is here recognitiones facere per Sacramentum is in the Register with the disiunctiue viz. ad aliquas recognitiones faciendas vel Sacrament a praestanda Thirdly in the Register these words are added ad citationem talis episcopi That writ which Rastall setteth down at large whēcesoeuer he had it seemeth to be the perfect whole copy of the originall therfore of more credit It is also probable that the gatherer of the Register did abridge out of this Writ at large as hee thought good For in the very Writs that went foorth in deed the copies whereof bee in the Register letters for the most part bee put there in stead of the names of the parties whereas here it is ad citationem talis episcopi talem episcopum without name or any letter for it that might direct men to know of what Writ it was a parcell which argueth it was not verbatim copied foorth of the Writ Howsoeuer it be the one of them must expound the other seeing they concerne one and the selfe same matter In treating therefore hereof I mind first to shew that albeit these words did carie the sence y t is inforced yet it may be that the law is otherwise then y t they are not of that acceptiō lastlie how they are otherwise meant what is that true meaning For the first it is no lawe of necessitie being neither Statute nor Common lawe No statute for it is not in the Parliament rols nor in any printed booke of statutes at large nor in sundrie ancient written copies It is no common law for it is sayd to be formata prohibitio super articulis cleri 1 9. Edw. 2. which is a statute of late time in comparison and the precedent of that Prohibition as it is in the Register printed being vnderstood according to the mind of the Authors of this opinion is contrarie to the generall custome of the Realme For by time immemoriall all Ecclesiastical courts without impeachment haue cited both the parties principall for answere and witnesses also vrging them to depose by oath in all the other seuerall causes also that are prooued afore to be of ecclesiasticall iurisdiction and conusance I haue had of long time an olde Register in parchment written as may be euidently gathered and appeareth by the frame of the hand and letter about king Edward the seconds or king Edward the thirds time In it there is no such precedent of prohibition or of Attachment as either the printed Register or Rastals Abridgement of statutes setteth downe But there are many prohibitions vnto ecclesiasticall courts that run in this sort viz. Ne teneatis placitum in curia christianitatis de catallis debitis quae non sunt de testamento vel matrimonio And the first of this sort is thus entituled in the margent Prohibitio regia de catallis debitis quae non sunt de testamento vel matrimonto One thing besides I find there in mine opinion worth the noting for this purpose yet not obserued in the printed Register For such precedents of Originall Writs as exceeded the memorie of any man at what time they were first drawen framed that old booke setteth downe simply without any addition But if they were of later times deuised then this marke title is giuen vnto them in the margent viz. Prohibitio formata or breue c. formatū Now Rastals Abridgement giueth the like title to the writ wherupon this controuersie groweth viz. Prohibitio formata super articulis cleri which argueth that there is no such original writ of old at the common law but that it was thē newly deuised to meete with a new mischiefe Quae de nouo emergūt nouo indigent auxilio The being of it in the Register doth not make it of necessitie to be law for sundry of those writs were framed of late times as may appeare to any that wil peruse thē vpō particular mēs suits as occasiōs fel forth somtimes perhaps drawn vpō priuate suggestiōs of the counsel of one side though afterward allowed Nay in my said old written Register of writs there is a precedēt which as I take it goeth not now for lawe For there is a direct
to make such a briefe abridgement of so long a writ For it doeth not appeare that before the imprinting it was perused allowed by any the Iudges then being or by any others deputed by publike authoritie for the reuiewing and correcting of it No doubt if it had bin that I speake of nothing else so many grosse errors in the Latin both against cōgruity al sense as in every leafe almost of the copie which the Printer followed are to be found could not haue so escaped without cōtrolement and amendment But the former wordes set downe by Rastall at large in the writ in selfe where neither of these last recited clauses are to be found are too cleare in this point to be dimmed by any such light colours But if hereupon it be perhaps graūted as the authour of the Treatise doth that witnesses may take oath depose willingly in other ecclesiasticall causes at the request of some of the parties I must then call to their minde that I haue shewed afore that following their owne interpretation they may not though they be willing Yea though witnesses might if they were willing how can a reasonable man entend that the partie to be sued will come in at all but much lesse answere if he may not be cōpelled vnto neither viz. neque ad recognitionem faciendā neque praestandū sacramentū as Fitzherbert in his natura breuiū also doeth vnderstand and reade it And the wordes reach vnto all lay persons not distinguishing a partie from a witnesse Againe by that their interpretation of recognition oath they could neuer haue such witnesses that be indifferent as in part is afore touched For if witnesses may not be vrged to sweare or to answere further then they list themselues then will they onely answere to the matters propounded by him who produceth them and wil refuse to answere the Interrogatories propunded by the other partie for his defence by whom they were not requested to come Which course vpon the matter taking away all testimonie that ought to be indifferent for either partie in such pertinent matters as are to be demaunded is contrary to the lawe of God of nature of nations and to the very qualitie of a witnesse Decius saith 1 Decius in l. 2. C. de edendonu 43. Si testis deposuit pro vna parte interrogatus pro alia noluerit respōdere illi fides adhiberi non debet quia praesumitur supprimere veritatem And so the course being most vnreasonable that whereupon it followeth must needes be also very absurde and against Iustice. By all which premised discourse it is made I hope manifest whether Fitzherbert had good ground out of that fourme of Prohibition and Attachement to 2 Nou. nat breu fol. 41. litera a. gather not onely that Ordinaries must expresse a particular cause in all their Citations but also that if they expresse any cause at all in the Citation that it seemeth by that writte it must bee a cause matrimoniall or testamentarie For seeing they haue none other meanes besides Citations to summon men to their Courtes What is this latter collection built but vpon a doubtfull seeming else then an asseueration implied that none other of the causes afore proued to be of ecclesiasticall conisance shall euer be dealt in by any court ecclesiasticall and so vpon the matter in no court at all for that temporall courts be out of iurisdiction in those matters Which howe it may be defended from grosse absurditie I would gladly learne from any that patroniseth this opinion But if the lawe were so in deede that none should be called into ecclesiasticall courts but for those two causes I marueile what the Preshyteries so much doted after especially by sundry fauourers of this interpretation would doe here in this Realme when their Cōsistorial power should be so lopped that they could not call any man before them but either in testamentarie causes which they make in other mens dealings to be meere Ciuil causes or matrimoniall many of which also they now seeme willing to abandō as temporall matters for they should be driuen either to be kings of molehils or else to preache in the most vehement veine they haue against that lawe and those magistrates which in such sort would restraine them as if they were both Antichristian at least for hindering and so impounding of the pretended gouernement of Christ that thereby they might at length be set at libertie to deale in their Consistories against all crimes whatsoeuer according to their owne platfourmes Yet herein they should deale very vnequally because they will not nowe suffer that vnder this gouernment which themselues would practice against crimes in a farre more ample and peremptory maner then either nowe is done or were meete to be suffered In the bookes of the Common lawe I finde also some cases that giue strength to this interpretation For an 1 M. 44. E. 3. fol. 32. Attachement vpon a Prohibition was sued because they sued in a spirituall Court for haye and money which touched neither matrimonie nor testament and after vpon shewing the Libell which prooued that it was for tithes and oblations a consultation was graunted Likewise 2 M. 38. H. 6. fol. 14. a Prohibition was sued foorth of the Chauncery directed to the Iustices of the common Pleas to make an Attachement because the defendant had sued the plaintiffe in the spiritual court for debt which did not touch matter of matrimonie nor testament whereof the conisance belongs to the Kings Court and thereupon a prohibition was granted thence Wherein it is woorth the noting that Fitzherbert in his 1 Fitzh Prohibition nu 5. Abridgement leaueth out these words for debt contrary to the booke it selfe at large and also 2 Brooke Prohibition nu 6. to Brooke I will not say it was to giue colour to his opinion in his Natura breuium as if he ment to haue it sound that no matter at all but either matrimoniall or testamentarie might be sued in court spirituall whereas by these two reports it may appeare that Prohibitions did not lie in this respect for that the parties were sued and called into the ecclesiastical court against their wils in any other cause whatsoeuer then those two but onely for suing there for chattels debt which did touch neither matrimony nor testament Whereof may bee gathered that euer since the first framing of this writ either none in this point hath knowen the lawe vntill Fitzherbert for nō est instandum inproposito or else those words doe carie another meaning then is now fathered vpon thē which that they doeboth in the affirmatiue for ours negatiue against theirs I hope is somewhat plainely prooued And therefore we may conclude that these two last opinions the one for not citing any person in any other cause then these two the other for not citing laie men for not vrging them to take oath in any other cause
ecclesiasticall whatsoeuer but either testamentarte or matrimoniall are voyd of all ground of law nay are contrary to Statute lawe to Common lawe to practise for time immemoriall and also vnto reason in some sort CHAP. XIII That iudgement of heresie still remaineth at the Common law in Iudges ecclesiasticall and that the Prouiso touching heresie in the Statute 1. Eliz. cap. 1. is onely spoken of ecclesiastical Commissioners thereby authorized THe two other opinions remaining that respect matters handled by Ecclesiasticall iurisdiction and come next to be treated of for the affinitie of them and because they both depend vpon one and the selfe same grounds I purpose brieflie to handle together viz. whether the iudgement of Heresie nowe lieth rather in the Common lawe then Ecclesiasticall and whether nothing may at this day be adiudged heresie but according to the statute primo of her Maiesties 1 1. Eliz. cap. 1. reigne For in the true vnderstanding of that statute the decision of these two opinions will wholie rest It seemeth by the latter the author of them thinketh that before the statute 2. H. 4. Ordinaries at the Common law might not by their iurisdiction Ecclesiastical proceed to the condemnation of an heretike and therefore seeing all former statutes made against heretikes stand now repealed he gathereth that no heretike may be delt with but according to the said statute made in the first yeere of her Maiesties reigne This opinion it may be he gathered out 2 Fitzh in noua nat br fol. 269. D of Fitzherbert his Noua natura breuium yet I thinke rather it was his owne conceit both because he doeth not alleage Fitzherbert for it and for that Fitzh leaueth euen at the Common lawe authoritie in the whole Conuocation of a Prouince to condemne an heretike albeit he there also hold that at the Common lawe before such statute a Bishop in his dioecesse could not so condemne But I haue shewed in the twelfth chapter hereof by very great and good opinion the law in this point to be mistaken For proofe that it is so I also touched it something in the 8. chapter For in the Preamble of the statute it is thus conteined The 3 2. H. 4. cap. 15. dioecessans of the realme then complained that they could not by their iurisdiction spirituall without aide of the roiall Maiestie what not at all Nay but not sufficiently correct nor restraine the malice of heretikes Why because they wanted authoritie at all to deale with them No but because the heretikes goe from dioecesse to dioecesse and will not appeare before the dioecessans but contemne the keies of the Church and censures of the same So that had it not bene for their fugitiuenesse their refusing to appeare and contempt of the keies the ordinarie dioecessans had Iurisdiction spiritual to correct and restraine them In which respect and for better assistance of their former iurisdiction it was then first prouided that heretikes should be attached and imprisoned Other authorities out of Statutes I there in the eight Chapter alleaged also to this purpose The wordes of the Statute made primo of her 4 1. Eliz. cap. 1. Maiestie from which this second opinion is gathered doe make the matter cleere that nothing thereby is meant but that Commissioners for causes ecclesiasticall according to that Act termed by the common people the high Commission shal not haue authoritie to adiudge any matter or cause to be heresie but onely such as hath bene so adiudged by the authoritie of the Canonicall Scriptures or by the first foure generall Councels or by any other generall Councell wherein the same was declared Heresie by the expresse and playne wordes of the Canonicall Scriptures So that the iurisdiction of Ordinaries and of the Conuocation still remaineth as it did afore at the Common lawe But I muse greatly what colour or pretence he could haue to gather the first of these two opinions out of the aforesayd words for doeth he or can he thinke that the ordering determining or adiudging of a matter to be Heresie by the Commissioners ecclesiasticall there spoken of is a iudgement at or according to the course of the Common lawe as the Common law is taken in vsuall signification Or shall it be imagined that wheresoeuer any matter by occasion comes in to bee mentioned in a statute as for 1 13. Eliz. c. 12. example naming matters of faith mentioning errors in doctrine or the doctrine of the Sacraments that the determination of all such points and what and how many speciall matters are conteined vnder those generall heads whatsoeuer shall by reason of such incident mentioning of them in a statute be put ouer to the iudgement of a Iurie or to the determination of Temporall Iudges What other may conceiue I know not for my part I must take it till I be better informed to be so simple a conceit as is worthie rather to be dismissed with laughter then to be confuted with further reason CHAP. XIIII That by the Statute her Maiestie may commit authoritie and naturall borne subiects may take and vse in Ecclesiasticall causes attachments imprisonments and fines THe next opinion that comes to be treated on is Whether the Queens Maiestie by her letters patents vnder the great seale of England may authorise the vse of any other processe in matters ecclesiasticall then by citation as by letters missiue attachment or such like whereunto I adde the other two of the same author depending vpō the same string whether her highnesse may so authorise the vse in matters ecclesiastical of any other coërtion or punishmēt as by fine or imprisonment These opinions if they be not well grounded vpon lawe seeme to me to touch her Maiesties prerogatiue roiall and supreme gouernment that was yeelded vnto her highnesse by statute very deeplie whosoeuer be Author of them And if this authoritie that is hereby impugned be in trueth a preheminence vnited and annexed to the Imperiallcrowne of this realme by Parliament and if he be a man of any qualitie so that hee hath taken the oath of Obedience let him vse good aduisement how it may stand with such his oath and allegeance They are pretended both by the Treatiser and the Note-gatherer to be grounded vpon 1 Magna charta cap. 39. these words of Magna charta viz. No free man shall be taken or imprisoned or be disseised of his free hold or liberties or free customes or be outlawed or exiled or any otherwise destroyed nor we shal not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land Whereupon the Note-gatherer also doeth collect that none may be attached but such as be first endited But the end why this law was made and the time when it was made are needfull to be considered The ende was this that the Kings of this realme should not chalenge an infinite and an absolute power to themselues as some kings elsewhere did
Treatiser putteth vs in minde of viz. that in K. H. 3. time there was a iust sentence of curse and anathematization denounced by the Bishops against the violaters orbreakers of the said great Charter But what if Bishops should vse the like authority now to excommunicate indefinitely and aforehand all such as shall hereafter breake some temporall law it is to be doubted that the Treatiser would not in this case be the same man nor yet affirme it to be a iust sentence but would rather threaten them with a Praemunire for their kindnesse It is assured that par in parem non habet imperium and none authority can so binde it selfe by any law but that vpon good occasion and by like power it may be abrogated againe Yet how litle this plea of ours is needfull in this case is sufficiently shewed Yea rather the defenders of these such like opinions against the rights and liberties of the Church of England notoriously knowen so to be by the reported lawes customes thereof to them that know any thing in either had need more iustly to feare that censure of the Bishops if it be so iust if so be they cary any feare at all or reuerence vnto the censures of the Church which be so iustly inflicted as themselues do yeeld As these opinions do onely reach and shoot at the commission ecclesiasticall to impound and streine the authority thereof vnto so narrow a roome as that her Maiestie should thereby haue no seruice done by those her subiects which are imployed therein wherby the fansies of the fauorites of these men might more freely growe without discouery or any such penal◅ie as they thinke they need care for so for the iust defence herein of that commission I may allege the words of the same statute whereby it is established 1 1. Eliz. cap. 1. viz. They shall haue full power and authoritie by vertue of this act and of the said letters patents vnder your highnesse your heires or successors to exercise vse and execute all the premisses according to the tenour and effect of the said letters patents any matter or cause to the contrary in any wise notwithstanding By which words tenor literarum is signified whatsoeuer tenent in se viz. that which is expresly conteined in them by the effect of them is vnderstood whatsoeuer is within the true and vnforced meaning of any such letters patents So that if attachment fine imprisonment c. be either in the letters patents expresly conteined as in trueth they be or vndoubtedly meant by them then the vse and excercise of these shall thereby sufficiently be warranted and authorized vnto her Maiesty for granting and to the commissioners for so executing And if any doubt otherwise might be made yet there be two clauses in the words aforesaid that be called verba siue clausulae operatinae and do therefore supply many defects and wants in the exercise of a iurisdiction delegated by the Princes rescript The first of them are those words Full power authoritie and the other is the generall non obstante in transcendenti viz. of any matter or cause whatsoeuer But to all this is answered by some that these words viz. according to the tenour and effect of the said letters patents do worke thus much that her Maiestie need not grant all but so much iurisdiction as her Highnesse thinketh meet and that so many or few of them so they be two atleast may thereby be authorized vnder her Maiestie to exercise such iurisdiction It is true that those words so worke and import so much but doeth it heereof follow that nothing else is meant or can be comprehended thereby Nothing say they for other processe then citation or other censures or punishment then excommunication c. her Maiestie can not commit vnto them else might she also giue them authoritie to hang men What is there no more difference with these men betwixt attaching fining or imprisoning and plaine hanging What will they then say of the Starre Chamber which may impose all those three and yet cannot put any man to losse of limme or of life and this is great reason For we are taught by the Ciuill lawe and I thinke it is agreeable also to the lawes of the land that wheresoeuer an authoritie is giuen in neuer so generall or pregnant wordes it cannot be drawen foorth to reach vnto any mutilation of limme or paines capitall except they be plainely expressed Other some as the Treatisour doeth answere this obiection in this sort but yet to the ende of prouing othes of the parties in causes criminall to be vnlawfull a matter to be handled in the thirde part viz. that how general soeuer the words of the acte be in one place yet are they to be restrained to this particular viz. none other then such iurisdiction ecclesiasticall as may be lawfully vsed and entending per petitionem principij that such oathes be contrary to law But in this his interpretation he saith he contrarieth diuerse great learned men in that lawe whom it behoueth with a more narrowe eye to beholde this statute lawe Truely halfe an eye of a meane learned man will serue to discouer that he cautelously leaueth out one member of the disiunctiue alternation which is in that statute For it is thus viz. all Iurisdictions c. whatsoeuer by any Spirituall or Ecclesiasticall power or authoritie hath heretofore bene or may lawfully be exercised c. So that if either it haue bene exercised at any time or hauing not bene put in exercise yet lawfully may be it is here graunted to her Maiestie And were it in deede meete either in temporall or spiritual Iurisdictiō to leaue it to the dispute determinatiō of euery priuate subiect that is dealt with what may be lawfully and what may not so be done in either lawe The Treatisour nor any other cannot in answere hereof say that the worde lawfully must also be vnderstood as repeated in the first member First because it is a disiunctiue proposition and therefore that word should haue bin expressed in the first part if it had bin to be drawen vnto both and not to haue bin put in the second part onely Secondly for that it would then take away from her Maiestie all such ecclesiasticall authoritie being most lawfully in her Highnesse as was heretofore exercised by or vnder the Pope by vsurpation and therefore most vnlawfully Neuerthelesse the matters graunted and exercised by the commission which are by him chalenged I trust God willing shall be also otherwise prooued lawfull and warrantable Against imprisoning by vertue of the commission one of the speciall matters nowe in handling the said Treatisour obiecteth that such parties as refuse to sweare to answere the articles exhibited against them are imprisoned without baile or maineprise whereas by the lawe ecclesiasticall they ought not to be imprisoned but to be proceeded against as pro confessis It is true that by Ordinary authoritie
be ripped vp I finde foure opinions pretending that the lawes of the Realme be against the maner of entrance into some suites and against certaine proceedings Ecclesiasticall that are mentioned in the generall Preface to haue bene put off vnto this place for auoyding of needelesse repetition and as falling here more fit to be discussed among other like obiections of the Innouatours The first of them that we put ouer vnto this place is that an Ecclesiasticall court may not proceede without accusation or presentment meaning as I take it a presentment by Officers sworne for that purpose If this were true according as the proprietie of the wordes importeth then Ordinaries might not so much as deale in those two excepted causes of matrimonie and testament nor in any other concerning rights and dueties Ecclesiasticall but onely in offences and crimes punishable by that iurisdiction For an accusation or presentment hath none vse but in matters of crime or offence incident vnto that iurisdiction to punish Besides that this opinion doth contradict the next following For this implieth that if the matter be Ecclesiasticall and that there be either accusation or such presentment then may the Iudge Ecclesiasticall proceede so that if there be but a presentment without any accusation his proceeding without a partie which is to proceede ex officio shall be warranted Whereupon doeth followe that proceeding ex officio is not tied to those two causes onely of Testament or Matrimonie as the next opinion doth holde For the second is that no lay person may bee cited ex officio in any cause but either restamentarie or matrimoniall which if it were true though a lay man be dùely presented for any crime yet shall hee neuer bee cited for it or brought into question for want of an accuser to prosecute it Concerning the citing of laye persons absolutely in any cause besides those two ynough hath beene saide in the former part So that in this opinion the citing ex officio onely remaineth needefull to bee further spoken of Truely if the authour of it had vnderstood what he writte he would neuer haue put it in the tale or reckoning For of all other causes Ecclesiasticall whatsoeuer there can be least vse of proceeding ex officio in those two because the chiefest and almost onely vse of it is in dealing against crimes and offences But I wil bring these two opinions into a briefe thus the first seemeth to permit proceeding of Office in an Ecclesiasticall matter so there be a solemne presentment precedent The second condemneth all proceeding without a partie sauing in those two cases and so in effect in all causes if it haue none vse in those two The third of those opinions is that albeit a matter bee duely presented against a man yet he may not be examined vpon his oath as of incontinencie or such like Whereby I thinke is meant that hee may not be so examined of any criminall and penall matter The last opinion of the saide foure is that no man is bound to declare any matter against another except there be some that is an accuser So that by this last no witnesses shall euer be had when the Iudge proceedeth ex officio except themselues list which commonly none wil thrust himselfe into but vpon some pique or humor of enmitie And so an accuser who for the most part commeth in of malice shall by this opinion haue compulsories to force witnesnesses to testifie but a magistrate proceeding for satisfaction of his dutie only shall not By the way may be noted that hereby also that opinion is ouerthrowen which holdeth no man to be bound against his will to testifie but in causes matrimoniall or testamentary for accusation is onely of offences By this opinion is implied that when there is an accuser a man may bee compelled and is bound to declare a trueth against another Which last being ioyned to the former viz. that albeit a matter be duely presented that is criminall and may be penall to him yet he may not be examined of it vpon his owne oath doth come to this passe that of an Ecclesiasticall crime there is by lawe no way to conuict a man except some man will be an accuser or els by voluntarie witnesses qui sese ingerunt ad testimonium viz. such whome the very lawe of nations doth entend to be enemies vnto the partie because they thrust themselues into the matter You are not to marueile that the opinions of those who shoote at one generall marke are so absurd and do so varie and iarre among themselues and doe as it were confront one another For you remember quòd vno absurdo dato multa consequuntur and that trueth is simple constant and like it selfe and therefore no trueth is disagreeing from another trueth whereas vntrueth is manifold and variable from it selfe For two contraries can neuer be both true but they may be and are oftentimes both of them false The first of these opinions then taketh away all proceeding either in crimes or in any other causes where there wanteth an accusation or such solemne presentment as the author of it meaneth The second in effect taketh away all proceeding ex officio but especially in crimes and offences The third impugneth all examination by the othe of the partie in a matter criminall and penall The last woulde ouerthrowe all vrging of witnesses to testifie in a cause moued ex officio viz. where there is none accuser yea though there bee a solemne presentment These foure challenges among others are also made against iurisdiction Ecclesiasticall by the innouators not onely for contrarietie vnto the lawes of the Realme but for contrarietie also to Canon lawe to Ciuill lawe to Gods lawe and vnto reason as is by them pretended But aswell their other exceptions that of late haue beene taken by any of them and stirred vp against the maner of exercising iurisdiction Ecclesiasticall so farre as I can learne as also these foure last recited falling in with them albeit all their said opinions be not holden by euery of them but according to the varietie of their humors and seuerall capacities may be reduced not vnfitly vnto these two heads They doe respect either the manner of entrance into the suite or els the fourme of proceeding in it In the maner of entrance you see they challenge it for that it is not either at the suite of some accuser or vpon a solemne Presentment Or for being ex officio in any other cause then those two of testament or matrimony wherein in very deede such proceeding hath little or none vse In the course of proceeding in the suite they take exception partly against some principall acte therein vsed and partly against some meaner circumstances In that more principall acte viz. of giuing an othe they impugne either the examination vpon othe of the partie himselfe or the examination of witnesses concerning their brethrens actions Touching the othe of the partie both fault is
further care I thinke it will not be so supposed The like then may be sayd of Ecclesiasticall officers and offences notwithstanding all generall Enquiries in Senes or Synodes and in visitations But it will perhaps be sayd in the one Court they may bee presented by the sworne men and in the other by enditement of the grand Iurie at Sessions and Assises c. It is true they may be but how many I pray you are so found out and endited from time to time by the grand Iuries of their own enquiries knowledges if either some partie grieued in particular doe not giue euidence or the Iudges or Iustices of themselues do not informe them and vrge them notwithstanding the straitnesse of their charge and oath and that they be taken out of the seuerall parts of euery shire But be it that some notorious murtherer or felon is soby them endited at some times how many other offenders in penall statutes being men of any reckoning in the shire are endited at all thorowout the Realme in many yeeres if none of the bench do take care to vrge the Iuries as Recusants in comming to diuine seruice such as haue and keepe Reteiners and giue liueries contrary to statute onely to band in quarrels and to mainteine bad actions or yet such as goe excessiuely in apparell or which violate the statutes appointed for not eating flesh vpon certeine dayes Nay it falleth out often times that the more to giue edge to such Iuries to do their duties euidence hath bene giuen vnto them in these offences yea such and so good as vpon lesse euidence they would perhaps haue endited a man of felonie to the hazzard of his life especially if he were but some base fellow Now when none almost will be found to giue euidence sauing in such a cause where he findes himselfe or some of his pinched yea and not in such neither if the other partie be a man of any tolerable reckoning or ability and very few albeit themselues do perfectly know it or haue reasonable good euidence giuen against some man of power that will finde an enditement against such an one although both he that giueth the euidence secretly and all the Iurie may be in some hope not to be knowen who it was that did principally stirre in it because they be sworne to keepe the Queenes counsell their fellowes and their owne can it then with reason be imagined that any man almost will be found voluntarily to become an Accuser and to prosecute at his owne costs and charges Experience teacheth that most men will not few that dare and those onely such as take themselues in some particular respect wronged We see in a great multitude of penall statutes at the Common law how men by third parts and moities of forfeitures besides great priuileges in proceeding are as it were allured and entised to informe against offenders yet very few notwithstanding such great gaine as thereby might be got are found besides such as make an occupation of it that will voluntarily preferre informations albeit there be enow that want the money and could well be content to finger it out of what male factours purse soeuer it came The reasons of this backwardnesse in informing I take to be the charge trouble common obloquie and offence taken by them that be prosecuted and thereby feare and perill to come vnto some further mischiefe vpon their procurement or for their fauour Now where men that are so well hired and by reason the Queene is partie to such informations so fully in all reason protected will not lust not or dare not preferre matter penall against others shall wee looke for better courage to be shewed by priuate persons against offenders in Ecclesiasticall crimes where they can expect no such countenance nor remuneration to lighten the other burthens and dangers and therefore either of Office to be prosecuted or must be wholly left vnpunished In riots committed and done vpon others we see iust cause of griefe for the iniury receiued and thereby occasion giuen to seeke lawfull reuenge There was good remedy also prouided for them at the Common law Yet in the time of king Henrie the seuenth for a further remedie and repressing of them by the Lords of the Starre-chamber the State was driuen to make a statute By authority whereof their Lordships proceed in that and others ex officio albeit in many causes they haue some partie grieued that by way of complaint promoteth and prosecuteth the office Yet the proceeding is as was touched afore by way of enquirie in that no man there sueth for priuate recompense but the scope of the whole processe is criminall ad vindictam publicam vel corporalem vel pecuniariam applicandâ—…m fisco non parti So that where men haue â—…ust cause of griefe yet was it thought very expedient requisite to prouide a sharper course by way of enquirie of office How much more then is this course needfull to be holden for punishing Ecclesiasticall crimes which by the policy of this Realme haue no other punishment and where no man hath for the most part any priuate iniury whervpon to complaine himselfe Here perhaps it will be said that he which can giue information of a crime to a iudge may accuse or procure a presentment in an Eccelesiasticall Court if it be of that iurisdiction or may informe and procure an enditement if the cause be Temporall or els that it were meet his information be not beleeued but that he should be holden as a slanderer and a malicious person We are to remember that if this Dilemma viz. either thou must accuse and prosecute him c. or else thou art but a slanderer had not quiddam tertium to minister answere vnto it many grieuous faults should passe vnpunished and many poore men should be sore pinched For experience teacheth that 1 Clarus ibid. q. 6. often times euen in crimes publikly committed you shall hardly finde witnesses that will depose their direct knowledge when it tendeth to the offence of some man of countenance that may do them a displeasure after And therefore they will either say they saw it not heard it not marked it not or at that time remember it not Yet it is knowen that a witnesse is vrged by the religion of an oath and is not entended to thrust himselfe into the matter willingly which as it ought to serue to take away all offence conceiued by him whom he toucheth so ought it to wash away all feare and other affection in the witnesse Then how much more probably may it be supposed that there is many a meane man though otherwise able to giue good and true information perhaps of three or foure witnesses which doe know the matter more fully and touching other particularities sufficient for a Iudge to enquire and to looke into the partie so denounced who neuerthelesse in many respectes dare not become an open Accuser or a preferrer of presentment of
purgationis where there be such parties is when in a cause criminally mooued by some accuser or partie the Iudge vpon defect of sufficient proofe doeth tender to the defendant an oath to cleare himselfe This though it be established by the Canon yet of long time it hath bene in vse aswell in Ciuill or Temporall courts on the other side of the Sea as in Ecclesiasticall so that if the defendant shall refuse to take it in either he is holden pro confesso conuicto The other oath of purgation or clearing simply when there is no formall partie in iudgement besides the defendant is that which by reason of fame scandall vehement presumption or vpon some other of those meanes that as I haue shewed afore doe open a way to Enquirie ex officio the Iudge doeth giue vnto the defendant to his clearing of the very crime obiected without any meaning then to seeke further proofes of that crime after the defendant hath taken such oath The other oath necessarie being partly of 2 Leuit. 5. v. 1. Num. 5. v. 12. sic deinceps Iosh. 7. v. 19. 1. Sam. 14. v. 43. clearing and partly of further enquirie is that which as is next aforesayd is giuen to the defendant vpon criminall matter obiected and vpon the circumstances thereof yea oftentimes with purpose to make further proofe in case the defendant shall not confesse it or not so fully in materiall circumstances as the Iudge hath cause to thinke may by witnesses or otherwise be prooued Yet if he shall confesse so farre as is thought may bee prooued then according to the qualitie of such his answere hee is presently either proceeded with thereupon vnto a iudgement or else dismissed as cleared thereof by his oath The examples and other iustification hereof shall more largely God willing be shewed in their proper place hereafter For this is the oath that the Innouators doe so much condemne and exclaime against But nowe touching voluntarie Iudiciall oathes whereof Suppletorium is that which is tendered to the plaintife or defendant according to the qualitie of the cause in a ciuill matter for supply of proofe made semiplenè tantùm as happily by one singular witnes being without all iuâ—…t exceâ—…tion Iuramentum in litem or Aestimatorium is then 1 L. 1. cum l. sequ ff de in litem iurando giuen by the Iudge when the defendant doeth not restore the very thing that is in demaund in which respect he is to be condemned in the value thereof according to such rate as the plaintife is endamaged taking it vpon his oath yet so as the Iudge by equitie may taxe and moderate the quantitie of the summe which he may not exceede and also when the partie hath sworne the Iudge may defalke thereof as he seeth cause in equitie Decisorium iuramentum delatum is that which 2 Exod. 22. v. 11. 1. Reg. 8. v. 31. Hebr. 6. v. 16. either the one or the other of the parties first offereth vnto his aduersarie to take according to that hee affirmeth or standeth in perhaps vpon confidence of his good conscience or for want of better proofe So that if he to whom it is so deferred shall take such oath then must the matter be adiudged according to his oath as if the parties had so agreed the cause But if he shall refuse it and yet will not referre it that is will not put it ouer vnto his oath that first made the offer then shall hee be ouerthrowen in the cause So that to referre an oath is nothing els but to offer it backe to be decided by his oath according to his owne issue that first made the offer 3 L. iusiurandum 34. § ait Praetor ff eodem l. generaliter 12. § se liuramento C. d. But if vpon such referring it ouer backe againe he also that made the first offer will not take the oath then hee that so referred it ouer againe shall haue iudgement passe with him as if he himselfe had sworne when it was first offered him for maximae turpitudinis est nec delatum subire nec referre iuramentum Examples of these decisorie oathes there be also at the common lawe for 4 19. H. 6. 43. where the defendant desires that the plaintife may be examined or sworne this is peremptorie to the plaintife in this point and so is the wager of lawe ex parte defendentis By the custome of London if the defendant desire to haue the plaintife sweare to his declaration and hee doe it the defendant is thereupon condemned But this oathe decisorie at the 5 Iul. Clarus li. 5. § finali qu. 63. ciuil Law is neuer vsed in matters criminall except they be mooued ciuilly not criminally that is for the plaintifes priuate amends and satisfaction or else the cause be but of small value or the proceeding in such criminall cause criminally be referred and intended to no corporall but to a pecuniarie punishment or fine onely Thus farre for a generall vnderstanding of the nature of euery seuerall kinde of oathe CHAP. IIII. That the ceremonies vsed in taking and giuing corporall oathes with laying handes vpon the Bible or Testament and swearing by the contents of it are not vnlawfull THe first challenge nowe comming to be spoken of that is made by some of them against the ceremonie vsed through this Realme in all corporall oathes taken either in Temporall or in Ecclesiasticall Courts is the laying of our hands vpon a booke when we take the oathe For the better approbation hereof it is meete to consider the generall ende of it the particular vse of it and the generall practise of that or of the like ceremony reported both in Scripture and in other writers to haue bene vsed in such action The generall and chiefe ende of this or of any the like ceremony vsed in this action is to signifie thereby that we do then aduisedly attend and giue heede to the oath wherewith we are charged and that we do accept of it and bind ourselues in sort as it is giuen The vse of this in particular is to strike a more aduised feare reuerence into vs when wee consider the reuerence due to an oathe as it is described in that booke the curses there threatned against those that for sweare themselues or shall take the name of God vainely This vse of such corporall ceremonie in taking of an oathe is touched in the 1 L. 3. C. si minor se maiorem dixerit ciuil law out of which it is gathered that by touching and by corporall taking of it the oath is holden to be more inuiolable and the harder vpon any plea to be recalled The practise of corporall oathes taken with some like effectuall and significant ceremonie by the godly is to be found in Scripture When 1 Gen. 24. v. 3. 9. Abraham caused his seruant that was vnder his authoritie to take a corporall Promissorie and necessarie oath for
H. 8. cap. 14. preamble of a statute of king Henry y e 8. which preamble for breuitie sake he omitteth yet hee omitteth not to gather therefrom that which was neuer scattered viz. so we see saith he that vnder cloked and couert termes of Canonicall sanctions viz. vsed in the statute 2. H. 4. the clergie men vsurped vniustly iurisdiction ouer the people ministring vnto them captious and snarling Interrogatories and as it should seeme by histories vpon oath contrary to the true meaning of the lawe and lawe-makers and against the right order of Iustice and all good equitie impugning thereby the royall prerogatiue the imperiall Crowne the Princely scepter lawes and policie of this kingdome for which cause he saith it was repealed These be imputations of great and high matters which he auowcheth to be by such oath impugned which though he say we see by that preamble though indeede hee would not let vs see it yet when all is cast vp his proofes are no more but thus viz. as it should seeme but how much hereof may in trueth thence be seene either plainely or by any seeming I would the clearest sighted of that opinion would take the paines to peruse that hee may withall discerne with what vpright mindes and sinceritie some of his chiefe complices doe write of this matter For the very true and onely causes of repeale of the statute of heresie 2. H. 4. by the preamble of the saide statute 25. H. 8. nowe likewise standing also it selfe repealed are assigned to be these viz. the not declaring thereby what should be heresie The terme of Canonicall sanctions and other termes thereof so generall that the best learned coulde scarse auoyde the danger of heresie if he should bee examined vpon captious Interrogatories the vnreasonablenesse of being put to losse of life c. vpon suspition and without accusation or presentment whereas for treason it must bee vpon presentment verdict confession or proces of outlawrie and for that speaking or doing against the Canons c of Popes being but humaine yea and many of them contrarie to the kings Prerogatiue Royall is by the sayde Canons made to bee heresie so that there is not one word mentioning much lesse tending to the condemnation of ministring oath no not so much as in the crime of heresie which is capitall nor yet any of the other great thunderclaps which the Treatisour pretendeth he sawe or heard of in that Preamble against oathes in some criminall causes To this purpose he woulde haue vs further note that the statute of sixe Articles doth not enact nor allowe but that it seemeth rather to disallowe and ◅iect these oathes Why Sir it speaketh not of them at all and can you therefore gather that it doth not allowe but rather disallowe them you might so reason against them from all the statutes that euer were made touching any different matter whatsoeuer But say you it seemeth rather to disallowe them is not this seeming a sound demonstratiue argument to ouerthrowe a course so long and so manifoldly vsed and that in the courts of both sortes but why doth it so seeme forsooth because the king is by that statute authorised to direct Commissions to Ordinaries and others to take information and accusation by the oathes of two sufficient persons at the least or by verdict of twelue men What then therefore the examination of the partie vpon his owne oath when he is found out because it is omitted is disallowed Though this loose reason should followe yet none oath should thereby bee touched other then ministred in matters of heresie But if he might reason thus because those Cōmissioners might beginne and grounde their proceedings done by way of speciall enquirie in processu punitiuo vpon such information accusation or verdict therefore they might not proceede afterward according to any course of the lawe ecclesiasticall then might he as well also argue that they might not deale vpon an heretiques owne voluntarie confession for confession is no more mentioned in that Statute then the defendants oath is But what if that Statute had expressely disallowed that oathe is it not nowe repealed and is it woorthie to bee alleaged seeing hee else-where chargeth it to be A bloudie and cruell Statute I perceiue it is verie loose and badde stuffe which hee will not take holde of where hee may haue but as much as a shadowe or glimpse of any thing to his purpose May it bee thought that any man of iudgement can bee in deede ignorant but that such sharpe and pregnant conclusions as throughout his whole Treatise he inferreth cannot possiblie be grounded vpon so feeble and vnconsequent premisses yet hee sticketh not vpon these allegations aforesayd euen as if hee tooke them for good and sound arguments as a well-willer of Ordinaries to disswade them from further practise of such oathe least they bee found thereby not onely impugners of the Roiall Prerogatiue but discredited further by the breach of their owne oathes taken to the Queenes supremacie Neuerthelesse least I be mistaken by any it is to be remembred that he commonlie limiteth all his hote conclusions with some warie wordes of restraint as these videlicet such oaths and such like c. alwayes conueying vnder them a reference vnto generall oathes according to his first vntrue issue Well this helpeth his cause neuer a deale for if none of his reasons brought doe so much as ouerthrow those vnreasonable oathes which are by no man defended howe much lesse can they touche those particular oathes to matter in fact onely that we doe reason and treate of The reasons which he setteth downe as taken from the Reports of the common law doe now follow which are partly by propounding some examples how oaths be there vsed partly by auouching some cases seeming vnto him to inferre a cōdemnation of defendants oaths in any causes criminal Before he come to the first of these two there bee sundry conclusions propounded by him for proofe whereof all his reports out of the Common lawe be laied downe First that he may as he saieth deliuer our lawes Iustice of our land from so foule a slander as that they should bee sayde to allowe of such Catholique oathes Next to assure others like as himselfe is sure that such a generall oathe or such like ex officio was neuer offered by any Magistrate nor taken by any subiect by authoritie of the common lawe Thirdly that the Common lawes haue not imposed or appoynted an oath to bee vsed otherwise then according to the right institution thereof and the godly rules before by him remembred What those rules are I haue noted in the Epistle to the Reader Nowe if by these wordes videlicet such like ex officio he meane onely such generall oathes as afore he had vntruely imputed to Ecclesiasticall courtes then will I not trauerse any of these conclusions whether the oath shall be ministred vpon the Iudges office onely or at a parties instance Yet
layde downe in the printed Register especially by these wordes of them Recognitiones sacramenta provoluntate sua ipsis inuitis For full answere whereof to auoyde vnnecessarie length and vaine repetition I must referre the Reader ouer vnto the xj and xij Chapters in the first parte of this Apologie He affirmeth also that the practisers of such oathes are for that cause in a Pramunire and therefore gathereth the oathe to be contrary and repugnant to the common lawe I graunt the consequence to be good and sound but how doth hee prooue them to be thereupon in a Praemunire For proofe of this he assumeth that this manner of oathe is contrary to the Queenes regalitie and crowne as if his reasons afore brought had sufficiently euinced so much which wee doe vtterly and resolutely deny vnto him And yet as if he had fully cleared that point he addresseth himselfe to prooue that whereof there was lesse controuersie viz. that what is done by a Bishop or by an Ecclesiasticall Court against the Kings regalitie and crowne hath beene heretofore adiudged to be within the compasse of this worde Alibi contained in the Statute of Praemuuire 16. Ric. 2. For this he alledgeth two books of the common law yet 1 5. Ed. 4. sol 6. Praemunire the first of them doth but speake of an excommunication by a Bishop not of euery dealing whatsoeuer in a matter belonging to the Kings regalitie And what if it had beene twise so adiudged both of them in such corrupt times when as the royall prerogatiue of the Kings of this land to be Supreme Gouernours in all Iurisdiction Ecclesiasticall due to them in right and by Gods Lawe was not de facto vnited to the crowne For the Bishops then did not claime their Iurisdictions Ecclesiasticall next and immediately vnder God from the Crowne as now they doe But seeing this parte of Regall power is nowe no lesse truely and fully vested in the crowne then is the Temporall so as the Lawes allowed for the gouernement Ecclesiasticall are termed by sundry Parliaments The Queenes Ecclesiastical lawes and Lawes of the Realme as well as those which were first and originally made heere And the Bishops are proued to haue their authoritie and Iurisdiction Ecclesiasticall deriued downe vnto them from the Queenes Highnes vnder the great Seale of England as vpon fundrie incident occasions hath beene shewed afore Is it then the like reason still to comprise their Iurisdictions and Courts vnder that word of Alibi as if their Courts and Iurisdictions were not nowe the Queenes nor yet belonging vnto her Regalitie Nay let such as shall so affirme beware they incurre not hereby the danger of implied if not direct denyall of a part of her Highnesse Royall stile and the breach also of their oathes taken for assistance and defence of all Prerogatiues c. vnited or belonging to this Imperiall crowne Yea and though this might be truely verified of ordinarie Courts Ecclesiasticall yet is there no colour at all so to affirme of the Commission Ecclesiasticall exercised vnder the great Seale of England by force of the same Statute that restores the Supremacie Ecclesiasticall to the Crowne I omit here what is touched else where viz. howe by sundry learned it hath bene thought that by Alibi there was encluded or meant nothing els but matters of that quality there specified which were enterprised by and vnder the Papall authoritie though the Pope perhaps resided not then at Rome it selfe Therefore seeing this is not pregnant ynough for him to driue this matter neerer home to his purpose hee sayeth it is against the Kings Regalitie and so a Praemunire for an Ecclesiasticall Court to holde plea of a matter appertaining to the Iudgement of a Common Lawe Court or to deale in any cause not belonging to Ecclesiasticall Iurisdiction The first of these he prooueth by the pardon sued by Barlow Bishop of Bathe and Welles in king Ed. 6. his time by reason hee had depriued the Deane there being a meere donatiue of the Kings If there were but any probable doubt whether thereby hee were fallen into a Praemunire it was wisedome for him to procure a pardon afore hand if he could Alealitis resincertissima yet depriuing of one placed by the King is much more then bare holding of some plea that appertaineth to a temporall Court besides that there was a further matter in it then I last here to open The other allegation of his to like ende taken from a 1 38. Ed. 3. of Prouisours Statute doth make no shew of proofe thereof for it is but thus viz. the King chiefly desireth to susteine his people in tranquilitie and peace and to gouerne according to the Lawes Usages and Franchises of his land as hee is bound by his oathe made at his coronation And are not Ecclesiasticall persons nowe parte of the Queenes people Are not the Liberties and Franchises that bee giuen and confirmed vnto them by the goodnesse of Princes for holding plea in certaine matters the vsages of this Realme Are not the receiued Lawes which lawfully they may practise termed Ecclesiasticall Lawes of this Realme no lesse then temporall be And is not the Prerogatiue royall in and for causes Ecclesiasticall as high and as rightfully setled in the Prince and incident to her Highnesse Crowne and Regalitie as the same is for temporall power and authoritie What cause is there then seeing seu Alibi in the Statute signifieth in true construction anie place whatsoeuer besides Rome that euery holding plea by an Ecclesiasticall Court of a matter wherein it ought not to holde shoulde at this time bee reckoned a thing contrarie to the Queeenes Regalitie more then dealing in an Ecclesiasticall cause shoulde bee in anie temporall Court at Westminster For no Statute of Prouision or Praemunire assigneth these for causes which haue indeede but growen since by collections whiles the Popes vsurpation was continued in this land against which oftentimes the remedie by Prohibition coulde not serue the turne I graunt it is a contempt or great misprision in any but for this a Prohibition and attachment thereupon c. as afore those Statutes they did might sufficiently serue the turne Neuerthelesse all these matters are wholly impertinent to his purpose till he shall haue prooued the particular issue viz. that such oathe as wee treate of is against the Queenes Regalitie c. But if that might be prooued then vpon so generall interpretation of Alibi these oathes would fall into the case of Praemunire by what Court soeuer whether temporall or Ecclesiasticall they should be tendered And that which he vowcheth to the same effect out of Saint Germans booke of Doctor Student receiueth the like answere In the next place I set some of the Treatisors reasons that are made by collection and discourse of reason These collections he maketh partly from examples past and partly at large therefore touching the first of these two he impugneth these oathes and would prooue
one way or the other The other two places of the 30. of Numbers and 19. of Deuteronomie doe onely determine that no man shal be condemned vpon one witnesses deposition onely and do make nothing to prooue either off or on whether a partie may be examined by oath where witnesses may be had or not had except they minde to gather it thus there be mentioned onely depositions of witnesses to the conuiction of a matter therefore no course besides or in any other fourme may be vsed But this cannot be for though the partie denie it yea with oath yet vpon two witnesses shall the matter be established And if such collection were consequent vpon these two places then albeit a man woulde willingly confesse the matter against himselfe he might not be cast and conuicted till witnesses also should depose no lesse But this is absurd in that nullae sunt partes Iudicis in confessum nisi vt ferat sententiam and in the Gospell ex ore tuo teipsum iudico Besides this the condemnation by Iuries were then quite to bee condemned for vngodly For they may giue verdict sometimes but vpon one witnesses testimonie and sometime without any vpon violent and strong presumptions onely which in hidden crimes are good proofes Neither are they of the Iurie to bee accounted as witnesses but are as a kinde of Iudges of the fact Therefore in Magna Charta it is called Iudicium per pares and they much resemble Pedanei Iudices or Recuperatores in the Ciuill lawe and pares Curiae in the Feudall lawe which is practised chiefly in Italie Germanie and France The place in the 1 Iohn 18. ver 19 20 21. Gospel of S. Iohn where Christ being asked by the high Priest of his disciples and doctrine doth answere thus Why askest thou me aske them that heard me for I spake openly in the world I euer taught in the Synagogues and in the Temple whither the Iewes resort continually and in secret haue I sayd nothing they doe greatly insist vpon and vrge as a commandement to this purpose viz. that where any witnesses may be had there a man may not be examined himselfe but especially touching doctrine publikely deliuered but they are manifoldly deceiued Euery action of Christ is for our instruction saith S. Augustine but not euery one for our imitation Therefore of any particular action done or not done according to seuerall circumstances by our Sauiour Christ being the wisedome of his Father we may not gather a generall doctrine of imitation except wee were sure of all the causes and circumstances then concurring that so did mooue him at that time When 1 Matth. 26. v. 62 63 64. Iesus was falsly charged by vntrue witnesses hee answered nothing though hee were vrged greatly thereunto by the Priest but helde his peace And of holding our peace in like case Origen 2 Origen tract 35 in Matth. thus speaketh to what purpose is it to gainesay those who gainesay and ouerthrowe themselues by their owne contrarieties especially seeing it is more worthie freely and resolutely to bee silent then to stand in defence to no purpose for so shall not false and lewde witnesses insult ouer vs Yet when the Priest presently thereupon adiured him by the liuing God to tell them if he were the Christ the sonne of God he made them an answere albeit in his diuine wisedome he knewe that they meant to make it capitall vnto him Nowe shall wee hereupon gather that whensoeuer our wordes before a Iudge bee calumniously detorted by false witnesses to our great danger and wee vrged by him to make answere that wee are therefore bound to hold our peace When Saint Iohn Baptist was 3 Ioan. 1. v. 19. 20. asked by the Priestes and Leuites a dangerous question such as if hee had beene as they seemed to doubt the Messiah might haue turned him to great daunger viz what hee was hee confessed and denied not but sayde plainely I am not Christ. So that wee see such a generall doctrine as they gather may not be collected out of the former answere of our Sauiour Wee are therefore to knowe that the answere was very apposite and fitte vnto the question which was infinite and generall touching his doctrine which no man otherwise then in generalitie can answere and therefore the answere was correspondent to the question For it was as if he had sayde thus vnto them you aske mee of the whole doctrine by mee taught this is impossible for mee to answere and to recount vp vnto you If you thinke any thing therein particularly to bee erroneous or seditious enfourme your selues by those that haue heard mee and then what you shall so obiect I will bee ready to answere This you may easily doe for that which I haue taught I haue done it publikely in the Temple and in Synagogues and not in corners so that you shall not neede to make mee take vpon mee such an endlesse and impossible worke as you might haue iust occasion to doe and to make mee yeelde account if my teaching had beene in secrete Whereupon thus I gather against them if Christ being willed to giue an account of his whole course of doctrine did therefore refuse because it was too generall a question to bee answered and also because it was in publike places onely deliuered by him so that they might easily first enfourme themselues what they tooke to be amisse and worthie to bee obiected against him in somuch as hee had sayde nothing in secrete which if hee had might haue giuen in trueth iust cause vnto them to examine himselfe what poyntes they were that hee so carefully did auoyde the light to teach them in then these men that bee asked not of their doctrine in generall but of their particular actions in this and that poynt in this place at that time done not publikely but of set purpose so couertly as might bee so that no witnesses but such as bee also parties can bee had haue no iust defence nor colour of it out of this place And therefore of such hidden crimes by their owne position they ought to answere by their oathes Besides Christ was not detected afore of any particular matter wherewith they might charge him neither if he had beene was it his principall purpose otherwise then that hee would leaue testimonie that hee died an innocent to stand to cleare and excuse himselfe particularly that the determinate Counsell of God might take place with him By the premisses may appeare that the three reasons which they bring to prooue this maner of question and Inquisition mooued by the Priest to bee vnlawfull are altogether needelesse seeing no man defendeth the like But for proofe either of that more generall position viz. where witnesses may bee had a partie may not be examined or of the more particular viz. that a Preacher may not be asked of any poynts of his doctrine by him publikely deliuered neither doth this example of Christ
Interrogatories be vsed and where they are not written there is no possibilitie of knowing all particularly that shal be demaunded insomuch as one question necessarily riseth vpon the answeres that shall bee made to the former I reade a report of the Canon lawe where in an 1 15. E. 4. 〈◊〉 action of debt brought against the husband and his wife for the wiues debt before the couerture the woman without the husband could not be suffered to wage her lawe And is not this oath of the husbands part though lawfull as farre from that assured perswasion of the very trueth thereof and is there not as great want of the husbands certaine iudgement herein as when an oath is taken to answere articles in themselues finite and certaine though particularly not perused by him afore For nothing to the contrary can be heere I thinke alledged sauing that it may bee the husband himselfe had afore the wager of lawe payde the said debt of his wife There is a 2 2. H. 5. ca. 9. statute saith the Notegatherer which requireth a copie of the Libell put vp in a court Ecclesiasticall to be deliuered to the defendant and thereupon is there a writte framed and put in the Register pro copia libelli deliberanda It is very true which by him is alledged the reason was for that the defendants coulde not then procure prohibitions from temporall courtes without their viewe of the Libell which in that respect was sometime by Iudges Ecclesiasticall denied and the lawe as it seemeth was at that time so taken but if the lawe were not onely so taken but so practised still for my part I should hold it more agreeable to reason and that it would preuent many long delayes and other great inconueniences Neuerthelesse when one thing seemeth cautelously to bee in demaund by the Libell and another thing in trueth not incident to an Ecclesiasticall court is vnder hand shot at then and in such case only vpon apparant probabilities thereof shewed vnto the temporall Iudges it cannot be thought inconuenient for them to graunt a Prohibition yea though the Libell be not viewed afore by them nor cōteine expresly any matter belonging to a temporal court But seeing the statute speaketh but of a Libell it cannot be extended to all articles or Interrogatories whatsoeuer ministred in a Criminall cause especially where there is no likelyhood or colour but that the cause is meerely Ecclesiasticall or where it is handled by vertue of Commission vnder the great Seale of England grounded vpon the statute For if her Maiesties Supreme Royall auctoritie and power Ecclesiasticall granted by cōmission to others be as highly vested in her crowne as is her Temporall then will it bee probably gathered both of them being in their seuerall kindes supreme and the exercise of them cōmitted ouer to others vnder the great seale that the one of them is not to be abridged restrained or controlled by the other In 1 Gen. 21. V. 23. Scripture by the oath that Abimelech ministred to Abraham and which he tooke appeareth that thereby Abraham was to deale well with him or as the Hebrew word is not to deale falsly orlye vnto him nor vnto his children and that he should deale well both with him and the whole Countrey according to the mercie and kindnesse there shewed vnto him which poynts be of greater largenesse and generalitie then that all the particulars falling vnder that oath can possibly before-thought or called to mind at the very taking of it By Iacobs 2 Gen. 25. V. 33. requiring an oath of Esau for confirmation of the sale of his birthright a thing of greater generalitie yea consequence also then Esau could or did then consider may be gathered that an oath may be ministred though euery particular included therein be not specially rehearsed for this oath was approued and stood ratified The like generall league and couenant that was betwixt Abimelech and Abraham was also 3 Gen. 26. v. 29. 31. made sworne betwixt Isaac and the said Abimelech And albeit it be not directly set downe that the king exacted an oath of the Prophet Ieremy yet we 4 Ierem. 38. ver 14. 15. find a promise of the said Prophets then made after the kings charge was laid vpon him of answering truely what he should aske him yea without expressing any particular matters afore-hand what y e king would aske Yet may we not therefore charge the Prophet to haue done this without faith or foolishly vnaduisedly or without Iudgement And it is sure that a godly man ought to haue no lesse regard to performe what he promiseth to deale truely when by his Soueraigne Prince he is in like sort charged then if hee were to answere it vpon his Corporal oath So that we may conclude that it is not vnlawful or vngodly to take an oath that we wil performe some such matter whereof euery particular is not afore-hand or at the very time remembred vnto vs or then can bee called to minde or knowne by vs in distinct and speciall maner CHAP. XVI That after the partie hath answered vpon his oath it is neither vnusuall vnlawfull nor vngodly to seeke to conuince him by witnesses or other triall if he be supposed not to haue deliuered a plaine full trueth and somewhat also in approbation of Canonicall purgations with answere to the Treatisours obiections against them THeir next exception set out afore in this order to be spoken of which this sorte of men doe make vnto the maner of proceeding Ecclesiasticall being of a thing ensuing after the oath and examination is for that Iudges Ecclesiasticall doe not alwayes rest in that which is affirmed or denied vpon the parties oath but doe oft times proceede to a further enquirie by examination of witnesses vpon the poynts denied by the partie A man might iustly maruell what should mooue them thus to require all other men to thinke so well of their single oathes and especially in their owne cause as if they had some indignitie offered vnto them onely because their owne single oathes are not perfitly beleeued but that proofes by witnesses are after made to conuince them of that which is denied by them But for this they bring also some pretence as for the rest of their opinions out of the Scriptures It is said in the Epistle to 1 Heb. 6. v. 16. the Hebrewes that an oath for confirmation is amongst men an ende of all strife Whereupon they gather that whatsoeuer they shall deliuer vpon their oathes it ought to be finall peremptorie to conclude the cause of necessitie without any more adoe The vse of the oath which is in that place spoken of is especially and most properly appliable to two kindes of oathes The first is an oath Promissorie when for more assurance of the promise to bee kept the parties agree that it shall bee taken which thing is argued by the circumstance of the place as being