slaundered the other is forced by an oath to excuse and purge herselfe that what soeuer injurious or slaunderous worde she had spoken came not of any deliberate purpose or intent but through wrath and displeasure In like manner th' other which is accused eyther of adulterie or sorcerie is commaunded by an oath to declare her innocēcie so that it is euident vnto all men that in such cases whether they bee guiltie or not guiltie they must sweare if they will keepe their good name and fame whereby not onely the vnlawfull lucre of gaine and money is fought but also wilful perjurie forced c. Thus these honorable persons you see haue made it cleare what is chiefelie entended by these canonicall purgations pretende the Cleargie what soeuer they will and howe such forced oathes are not onelie offensiue vnto God but injurious also vnto men Therefore leauing these men to whō the fauour of gaine is so sweete togither with their famous lawe the matter which wee endeuour to prooue is that those generall oathes and oathes ex officio publiquelie heretofore much practized by Ordinaries and Ecclesiasticall Iudges are altogither vnlawfull whether by the Canonicall sanctions or lawe cannon I care not but by the lawes of God and of this Realme And therefore since we haue sufficientlie spoken of the lawe of God nowe least peraduerture it may be saide that such Catholique oathes are warraunted by the common lawes or statutes of this Realme or by the vse and practise of some Courtes of Iustice therein let vs consider hereof also and deliuer both our lawes and the Iustice of our land from so foule a slaunder Concerning the common lawes of this Realme we may finde an oath diuerslie allowed of and vsed in causes of suyte judiciallie depending But such a generall oathe or such like ex officio at any time eyther offred by Magistrate or taken or made by subject of this lande by authoritie of the common lawe can neuer be proued I am sure eyther by good recorde or sounde reporte of the same Long it were and tedious to remember the particular cases when and where an oath is required by the lawes and statutes of this Realme But this may be saide in generall and that truelie to the great honor and highe commendations of our gouuernement that the same common lawes haue not imposed or appointed an oathe to bee vsed otherwise then according to the right institution thereof the godlie rules before remembred yea moreouer this may trulie be affirmed that the common lawe of this Kingdome yea the common wealth it selfe hath euer rejected and impugned as a thing vnlawfull and injurious this maner of swearing whereof we nowe intreat as by that we shall hereafter say may euidentlie appeare Touching the oathes imposed or admitted at the common lawe by Iudges or Magistrates for of them onelie we are to speake First it is vsed as by good reason in all Courtes of Iustice established for determination of causes in suite or controuersie eyther betweene the Prince and subject or the subjectes them selues to require an oath of all such as are called or produced to testifie their knowledge concerning the matter or point in yssue whereby the trueth may appeare and the cause receyue an ende The defendent also in diuers personall actions voluntatilie offring an oathe for his cleare discharge Wager of lawe is admitted by course of the lawe therevnto which maner of proceeding is termed the doing of his lawe and seemeth to haue bene grounded vpon the judicialles before rehearsed giuen by God vnto his people the Isralites as by the obseruation of the cases hereafter mentioned may be gathered For in an action of debt brought for money due by reason of some simple cōtract or in an action of detinue of goods and chattelles the oath of the defendent in the one case that he oweth not the money and in the other that hee deteineth not the things required is allowed for a finall ende and barre vnto the pleadant For in the former case the repayment of the money may be priuate and in secrete so in the other the deliuerie of the goods And although the baylment and deliuerie of the pleadaunt goods to the defendent were by the handes of a third person or testified by writing yet these are no causes to put the defendent from his oath or wager of his lawe for asmuch as the answere is not to the baylment or deliuerie but to the deteiner or withholding and in the action of debt although the defendent eyther hanging the action or otherwise had confessed the contract yet is he to be admitted to his lawe or oath in so much as the point in suite is not the contract but the debt 7. H. 4. fo 7. 9. E. 4. fo 24 But in an action of accompt supposinge the receipt by the hands of a stranger or thirde person the lawe is otherwise for here the thing deliuered is not preciselie in demaunde but an accompt onelie thereof required And the receipt being the cause of action to which a thirde person is priuie as a witnes the oath of the defendent as a thinge not of necessitie is rejected For that reason was the defendent put from his wager of lawe Anno 31. Ed. 1. where the case was this An action of detenewe was brought for a Challice the defendent pleaded howe the pleadaunt deliuered the same in gage for vj. markes and that vppon the repayment thereof he was readie to deliuer the Challice the pleadent replying that he had repayed the money by the handes of one such the defendent offring his oath to the contrarie was nor admitted therevnto inasmuch as there was a witnes of the repayment by whose testimonie the trueth might be knowen And as the common lawe is thus on the part of the defendent so is it likewise for the pleadant comminge as it were in place of a defendent Therefore Anno 21. Ed. 3. fol. 49. the case was that the defendent vppon his accompt would haue discharged him selfe by certen tallyes and so by his oath continued the charge against the defendent But Anno 29. Ed. 3. the defendent in accompt alleadged before the Auditors payment to the pleadant by the hands of another and the pleadent offring his oath that hee had not teceyued the money was in respect of the third person denied to wage his lawe And the good discretion and consideration which the lawe vseth in the allowing and admitting of wager of lawe is not to be forgotten Whiche lawe least men of light credite or doubtfull faith should take an oath suffereth no man to doe his lawe but such onelie as is able to bring with him 11. other persons of ripe yeres and of good name to depose with him that they thinke he sweareth truelie Neither are th' one parties or th' other in any personal action by the courses of the common lawe suffered to cleare themselues by their oathes where they are charged eyther by
their lawfull writing or matter of recorde for that these are testimonies and proofes sufficient wherevnto faith and credite ought to be giuen much more might bee saide in such particulars but these may suffice to shewe howe in suites for goods chattels debtes or personall dueties the common lawes of this Realme admit no ydle vaine suspitious or vnnecessarie oathes neyther compell any man to sweare concerning them but vppon cause allowe of the plâ—and desertes volontarie and necessarie oath for an ende of the controuersie As touching the causes and controuersies for landes and inheritaunces depending in fuyte eyther in admitting or requiring of oathes some fewe cases there be Neuerthelesse where an oath for them is vsed As if a Praecipe quod reddat be brought of lande wherein the tenaunt was not lawfullie sommoned he may vpon returne of the proces of graund cape wage his lawe for none sommons and thereby as not well executed abate the demaundentes writ in which case an oath seemeth rightlie to bee admitted since the cause is both of weight and necessitie to the tenaunt this being the onely way to relieue him against the vntrue returne of the Sherife whereby his lande for want of apparaunce was to bee recouered against him For as the lawe seemeth to way a triall of this sommons by 12. men is not allowable And although it may bee saide that the tenaunt vpon his losse by default might haue a writ of deceipt and recouer againe his lande 33. H. 6. fo yet that often times falleth out to be a faint remedie the death of such as were returned sommoners depriuing him of that aduantage In the case also of deceipt vpon a recouerie by default the sommoners viewers and perueors are judiciallie examined by oath whether they haue duelie accordinge to the lawes of the lande executed and perfourmed that whiche appertayneth vnto them who in this case are vsed but as witnesses to search and sifte out by them the good or euill dealing of the Sherife by whom the execution of the writ and processe was committed 41. Ed. 3. fo In like maner if the plaint in a scire facias recouer by default the defendent bring this action of deceipt against the Sherife the bailife and the partie that sued execution of the lande processe shal be awarded against the supposed garnishers and vppon their apparaunce they shal be examined and that by oath concerning the maner of the garnishment and the same beeing founde insufficient the plaintife shal be restored to his lande with the prosites meane We may finde also in such reall actions an oath required in another maner but yet to good purpose that is to take away vnnecessarie delayes of Iustice For if the tenaunt in a praecipe of lande will cast an Essoyne of the Kings seruice the Essoygner shall sweare and that directlie the same to be no feined excuse otherwise the Essoyne shall not be allowed Some fewe other particular cases of like nature may peraduenture be shewed where an othe is admitted or required in these reall actions but none I am sure tending to anie such purpose as these oathes commaunded and enforced ex officio In criminall causes and suytes Criminall causes whereby eyther the losse of life libertie member of the bodie or good name may ensue which among worldlie things are most deare and pretious vnto men the common lawes of this lande haue wholie forborne and that for just respectes to vrge or impose an oath vpon the accused For in wisedome it was foreseene that the frailtie of man for the safetie of life the preseruation of libertie credite and estimation would not spare to prophane euen that which is most holie and by committing sinfull perjurie cast both soule and bodie into eternall perdition This knewe the subtill serpent our aduersarie full well in generall although he were deceyued in the particular when as he saide vnto God concerning the holie man Iob Skinne for skinne Iob cap. 2. and whatsoeuer a man hath will hee giue for him selfe and for his life but stretch out thy hande sayth Sathan and touche his bones and his fleshe and see if he will not then blaspheme thee to thy face Moreouer euerie wise Magistrate may well conceyue vpon howe weake and feeble a foundation he shall ground his sentence trusting to such an oath when before hande the suspition and presumption of perjurie is so pregnant Therefore in causes capitall or otherwise criminall these our lawes neyther vrge by oathe nor force by torment any man to accuse or excuse him selfe but rejecte the oath as vnbeseeming a well gouerned state or common wealth And condemne the torture as a thing most cruel barbarous wherof although they neede no other proofe theÌ„ the dailie practize and proceedinges against parties suspected of such offences yet concerning the inquisitions by torture we may see the same affirmed by that learned Iudge Maister Fortescue in his commentaries of the Pollicie of this Kingdome 49. Ed. 3. And for th' other there are sufficient authorities in the reportes of the lawes them selues therfore in the booke of Assizes it appeareth that diuers Iurours were challenged as lesse indifferent some for matters that founded to their reproach and dishonestie as that corruptlie they had taken money of one of the parties in the suite whervpon it was ordered by the Iustices that such as were challenged for causes not dishonest should bee sworne to declare the trueth the other for the reason aforesaide not to be examined at all but the challenge to be tried without their oath The same lawe is againe reported vnto vs Anno 49. Ed. 3. fol. 1. Vpon the like reason is the refolutioÌ„ of the chiefe Iustices of the Iudges Saunders and Whiddon 12. R. Eliz. That if a bill of perjurie committed in the Chauncere against the forme of the statute made in the fifte yeare of her Maiesties reigne were exhibited in the same Court that the defendent should not be compelled to make aunswere vpon his oath eyther to bill or intertogatories but that the parties ought to descende to yssue and the triall to be had by Iurie in the Kings Benche I shall not neede to spende time in declaring after the parties in suite haue ioyned yssue triall by Iurie howe many wayes an oath is vsed about the triall of such matters of fact as the oath of Iurors them selues and of their triars vpon challenge or to speake any thing of the oath to be ministred vnto suck as require the suertie of peace neither to discourse of the doing of homage or fealtie by the tenaunt to the Lord since these and such like are well known to euery one although but of meane judgement to bee necessarilie vsed for the better administration of Iustice and assuraunce of dueties making nothing at all for those phantasticall and officious oathes and examinations proceeding rather ab officio the verbe then ex officio the nowne Neyther is it necessarie to
partes in judgement that is to be both Actor Reus Accusor and accused whereby the three principall parties by the rule aforesaide faylinge true judgement by no meanes may consist Furthermore by this kinde of oath it can not be truely saide that Innocentes circumuented by fraude or practise are cleared since there is no complaint or accusation judiciallie exhibited Except we shall affirme that the Iudge or Magistrate by enforcing such an oathe doeth him selfe play the patt of a subtil circumventor and accusor which as it is a most wicked sinne in any man so in the person of a publique Magistrate whose actions should be sincere the same is most detestable And finally howe can an ende of controuersie ensue by such an oathe whereas no quarrell or complaint is any way dependinge Nay rather the same is often tymes the cause of stirring vp of debate and contention in steade of former quietnes being principallie vsed not to make an end of controuersies but to procure some accusation and that by the secrete malice of some vndermining or malignant aduersarie or calumniatour Againe since an oath is to be taken in judgement that is with good aduisement and consideration of the matter wherein the Deponent is to call the Name of God to witnesse and that whosoeuer otherwise taketh an oath doeth therein vainelie and indiscreetlie abuse the Name of God Howe can this generall oath be eyther rightlie vrged or receyued without great offence to his diuine Maiestie forasmuch as the partie deposing is not before he swear made acquainted nor vnderstandeth what questions or interrogatories shal be demaūded but by his oath hath fast bound and subjected him selfe to the discretion or indiscretion of another that is the Iudge Ecclesiasticall who hauinge straightlie tied and snared this seelie subiect may nowe vse or abuse him at his will and pleasure eyther against lawe enforcing him by the bande of his oath to accuse him selfe euen of his most secret and inward thoughtes or contrarie to christian charitie yea humanitie it selfe constrayning him to enforme against his naturall parentes dearest friends and nearest neighbors or to bewray with griefe of heart such matters of secrecie as otherwise were inconuenient peraduenture not honest to be reuealed In which hard proceeding besides the great hazard peril of wilful perjurie without all necessitie of an oath great trouble of minde and scruple of conscience must needes ensue when as the Deponent on the one side considering the waight heauie burthen of his oath feareth to conceale any thing and on the other side finding him felfe thereby entrapped shrinketh to make aunswere to the questions propounded Whereof you may beholde a most miserable and lamentable spectacle in the booke of Actes monumentes where in a large table is set forth the great iniquitie and rigorous dealing of Longland Bishop of Lincolne in the time of the late Prince of famous memorie King H. the eight Which bloudie Bishop by forced and violent oathes and captious interrogatories constrayned the children to accuse their parentes the parentes their naturall children the wife her husbande the husbande his wife one brother and sister an other some of these seelie soules of sworne becomminge forsworne whyle they made daintie to accuse such as they dearlie affected Of which blinde ignorāce or rather murderous mindes and intollerable iniquitie of Romish Bish and barbarous abuse of an oath that godlie man of worthie memorie Maister Iohn Foxe justlie complaineth For what might be added more to extreame crueltie saue only this one point of detestable inhumanitie whiche also was pursuaunt as a part of that tragical church-gouernement to compell the children to set fire to their condemned parentes Which example of crueltie sayeth that good man as it is contrarie both to God and nature so hath it not bene seene or heard of in the memorie of the heathen That wicked king Herode as it is recorded by the holy Euangelistes Mathewe and Marke voluntarilie promised and that with an oath to giue the dauncing daughter of Herodias his harlot whatsoeuer shee should demaunde As this vnaduised oath proceeding of vaine pleasure and delight vppon the wicked demaunde of that Damosell wrought much griefe of minde in the king so was it the cause of the sudden dispatche and murther of that iust man Iohn the Baptist And although it may truelie be said that Herode was not bounde by his oath to haue accomplished so foule and wicked a deede yet can it not bee denied but that the same was a rashe and inconsiderate oath and so an offence against the Maiestie of Almightie God And what difference is there I pray you betweene the oath of Herode and that which nowe we haue in question the one being to performe or graunt whatsoeuer should be required and the other to aunswere to all questions that shal be demaunded since there may be as vnlawfull and as vnhonest questions ministred as vngodlie requestes made or desired Againe it would not be forgotten that in all the volume the sacred scriptures to my remembrance there is no one president or example to bee shewed of any such generall oath taken by any godlie man in priuate or exacted by any Magistrate in publique neither yet any rule lawe or commaundement for the same But against this our last assertion may happilie bee alleadged by some fauourer of this foule abuse the manner of triall by adjuration of the suspected wife that is the law of jelousie The inquisition and expiation of man-slaughter where the authour is vnknowen and the examination of Achan all which neuerthelesse make nothing for these generall oathes or those enjoyned ex officio as by the consideration of the lawes and historie it selfe shall easilie appeare For as concerning the lawe of jelousie although the wife were to be tried by oath and adjuration in that manner and with those circumstances as is there prescribed either to satisfie the restlesse head of her jelous husbande if shee were guyltlesse or to receyue by the wonderfull workinge of that accursed water if shee were saultie condigne punishment for her heynous offence both of perjurie and adulterie yet is it verie manifest in this case that the wife is not sommoned or cited by the Priest or Magistrate ex officio but brought vnto him by her accusing husband who vpon offence conceyued offring vp his complaint and thervpon the woman is called for and put to her purgation well knowing her accusor and hauinge perfect notice before shee sweare of the crime objected Moreouer who is so simple that seeth not howe weake an argument or conclusion this were God hath appointed an oath to be taken by the wife in this especiall and singular case of jelousie for the satisfaction of the suspitious minde of the husband Ergo euery Iudge Ecclesiasticall to satisfie his jelous suspition or imagination of any crime may appose by oath and compell men to their purgation For by as good reason the Ordinarie or Iudge
booke of Anno 2. R. 3. whereby it is euident that vnlesse these Ordinaries could prooue their forcing of oathes ex officio to be warranted by authoritie of the lawes and justice of this lande as in trueth they can not all their dealinges in such cases are by the same lawes vtterlie disallowed and condemned But here me thinkes some retchlesse or inconsiderate reader steppeth forth and sayeth What is your meaning to circumscribe and include all authoritie of ministringe oathes in the Courtes Ecclesiasticall within the streight limites and boundes of causes Testamentarie and Matrimoniall howe then shall all other matters subiect to their jurisdiction being in number manie and in nature diuers receyue due examination For aunswere therevnto this shortlie may suffice That the state of the question whiche at this present we haue in hande is not in what cases those Courtes may giue or impose an oath but the matter wher of we nowe intreate is concerning forced and constrained oathes ex officio and especiallie in that generall maner before remembred And as touching the triall of causes by examination of witnesses judiciallie depending betweene partie and partie in th'Ecclesiasticall Courtes it standeth firme and for founde lawe according to the saide Prohiâ—â—on and the opinion of Maister Iustice Fitzherbert in his booke of Iustice of Peace is That those Iudges Ecclesiasticall haue no lawfull power or authoritie to force or constraine by censures of the Church or otherwise any subject of this Realme against his will to testifie vppon his oathe other then in the foresaide causes of Mariage and Testamentes although comming before them as produced by the parties in the suite they may lawfullie as vnto men voluntarilie accepting the same minister an oath otherwise it is plaine extortion and wrong vnto the partie And admitte they would denie to depose what prejudice were that to the Court Christen but rather a faylinge in proofe in the partie suing And in this state and sorte standeth the proofe of causes by witnesses at the common law Neuerthelesse since the statute made against wilfull perjurie the witnesse serued with processe and hauinge his charges tendered making default incurreth a paine pecuniarie And why should the Cleargie and Iudges Ecclesiasticall thinke it much to be ruled and restrayned concerning their jurisdiction by the Kings Prerogatiue and the common lawes of this Realme since what jurisdiction or authoritie soeuer they haue or enjoye matters of the Diuine lawe excepted yea euen in those especiall causes of Testamentes Mariages Diuorses and Tythes is no otherwise theirs then by the goodnes of the Princes of this Realme and by the lawes and customes of the same as the statute of Anno 24. H. 8. cap 12. well declareth and may be taken from them and restored to the temporall Iudges especiallie the abuses of the Cleargie well descruing it at the will and pleasure of the Prince and people But to returne againe to our prohibition and attachment it is euident thereby that all the sommons and citations which those Ecclesiastical Iudges sende forth vnder these general termes propter saluteÌ„ animarum or ex officio mero And all their arrestes distresses impeachmentes excommunications and imprisonmentes therevpon ensuing are altogither injurious both to the Prince and people And of this opinion seemeth to be that learned Iudge Maister Fitzherbert who in his booke De natura breuium sayeth vppon these writtes in this maner By this appeareth that these generall citations which Bb. make to cite men to appeare before them pro salute animae without expressing any cause especiall are against the lawe And true it is for by the statute of Magna Charta Magna Charta conteyninge many excellent lawes of the liberties and free customes of this Kingdome It is ordeyned that no free man be apprehended imprisoned distrained or impeached but by the lawe of the lande and by the statute made Anno 5. Ed. 3. ca. 9. It is enacted That no man shall be attached vpon any accusation contrarie to the forme of the great Charter and the lawe of the Realme Moreouer it is accorded by Parliament Anno 43. E. 3. ca. 9. for the good gouernement of the Communaltie That no man be put to aunswere without presentment before Iustices or matter of recorde or by due processe or by writt originall after the auncient lawe of this Lande And howe then shall that kinde of proceedinge ex officio by forced oathes the vrging of this general oath and streight imprisoning of such as refuse to sweare bee justifiable If these things were not yet a man would haue thought that at the least the sharpe and seuere statutes of Prouision and Premunire so offensiue to popishe Polidore and such like Premunire should haue staied and stopt the violent course of those injurious inquisitions examinations and wrested oathes ex officio For no doubt the Ordinaries Cleargiemen practizing the same are all offendors doe incur the forfaitures of those penal lawes For profe wherof let vs consider the wordes of the statute of Premunire made AnnÌ„ 16. Ri. 2. ca. 5. and the judgments expositions thervpon had that statute reciting first the grieuous complaint of the whole Realm against the Pope of Rome who impeached many Patrons in the presentations to their Ecclesiasticall benefices excommunicated the Bb. of this realme for executing the kings writts de Clerice admittendo sought to translate some of them against their and the Kings will and diuers other inconueniences in derogation of the Kings Crowne and Regalitie prouideth remedie for those and such like mischiefes in this maner That if any purchase or pursue or doe to be purchased or pursued in the Court of Rome or elswhere any such translations processe sentences of excommunications bulles instrumentes or any other thinges whiche touche the Kinge against him his Crowne and his Regalitie or his Realme or them receyue or make thereof notification or any other execution within the same Realme or without that they their Notaries Procurators Mainteiners Abbetters Fautors and Counsellors shal be put out of the Kings protection and their landes and tenementes goods and chattelles forfait to the King c. Since the making of whiche statute it hath bene helde and adjudged for cleere lawe in the Kinges Courtes That if any subject of the kinges sue or impleade an other in any Ecclesiasticall Court of this Realme for any cause or matter appertayninge to the examination and judgement of the Courtes of the common lawe or any judge Ecclesiasticall presume to holde plea thereof or deale in any causes not belonginge to his jurisdiction that they incurre the daunger and penaltie of premunire as by the booke of 5. Ed. 4. fol. 6. by th' opinion of the Court Anno 11. H. 7. remembred by Maister Fitzherbert plainelie doeth appeare According also therevnto is the case of Maister Barloo late Bishop of Bathe reported by Maister Iustice Brooke Which Bish in the time of Kinge Edwarde the 6. depriuing the