drawe it to the Common lawe it should seeme by all reason of his owne nature to be a matter belonging to the conusance of a court ecclesiasticall accordingly as alwayes without impeachment it hath bin vsed Yet I finde in the bookes of Common lawe that 3 22. H. 6. 32. an action of the case was mainteinable for not saying diuine seruice albeit it was there confessed to be a spirituall matter What the circumstances and cause thereof was that it was so ruled in that case Quaere It appeareth by the 4 Reg. pag. 56. a. Register that a prohibition being brought vpon a suite in court ecclesiasticall for withholding a Chauntery a consultation was after graunted whereby is affirmed that pro subtractione Cantariae debita punitione pro huiusmodi subtractione the suite belongeth to a court ecclesiasticall and the like therefore must needes be thought of a Chaplaine or Curate not found to say diuine seruice where it ought to be either by composition or by prescription But that parishioners ought to be contributories and may be cited in a cause of contribution towards the reparations of the body of the Church termed Nauis ecclesiae and to the charges of buying and furnishing other vtensiles ornaments and bookes required by lawe to be bought of the common charge doth appeare partly by the Register and partly by Fitzherbert in his noua natura breuium who doeth gather it thence For if saith he a 1 Fitzh no. na br tit Consult fol. 50. Bishop doe cite any of the parishioners of a Church to be contributorie to the reparations of the parish Church or of any Chappell annexed to it if the partie sue a prohibition directed to the Bishop surmising that he is impleaded touching lay fee in court Christian the Bishop shall haue a consultation vpon this matter shewed in the Chancerie on his behalfe And partly also by the Iniunctions which were set out by the Queenes Maiestie in the first yeere of her reigne and are vnder the great seale of England for better record of the matter her highnesse being thereunto authorised by acte of Parliament For in 2 Iniunctions published 1559. these are conteined sundry vtensiles ornaments bookes and other things that by the common cost of euery Parish shal be prouided and from time to time supplied and whether they be wanting or no is to be enquired by ecclesiastical Iudges and the obseruation of the Iniunctions is by them to be vrged against those that shall infringe any of them by processes and censures ecclesiasticall according to the course of that lawe And herein the Iniunctions followe but the Cōmon law For 3 Of the liberties of the Clergie by the lawes of the Realme if a terre-tenant holding land that hath vsually paid for such tenement a pound of waxe or such like vnto the Church doe withhold it the Church-wardens may sue him for it in a court eccles Also 4 Ibidem if a man that withholdeth Church goods doe by his last will enioyne his executours to make deliuerance any of the Parish may sue the executours for them in court ecclesiasticall For proceeding ecclesiastically against refusers to contribute vnto the reparations of the body of the Church there remaineth a iudgement in a consultation 5 Reg. pag. 45. 2. recorded in the Register to this effect viz. vobis significamus quod super reparatione emendatione defectuum corporis ecclesiae iuxta consuetudinem approbatam facienda procedere poteritis ea facere quae ad forum ecclesiasticum noueritis pertinere dicta prohibitione non obstante And by reason of defectes in reparations of a Church money it selfe may lawfully be sued for in a court ecclesiastical as 6 Reg. pag. 48. 2. appeareth by another consultatiō in the Register And so is it also prouided by statute in this behalfe amongst other things viz. 7 Circumspectè agatis 13. Ed. 1. Prelates may punish for leauing Churchyards vnclosed or for that the Church is vncouered or not conuentently decked in which cases none other penance can be enioyned but pecuniarie CHAP. VIII Proofes in generall that sundry crimes and offences are punishable by ecclesiasticall Iurisdiction and namely idolatrie heresie periurie or laesio fidei and howe 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 LAstly doe followe the testimonies of the lawes of the Realme for proofe that many crimes also and offences are punishable by iurisdiction ecclesiasticall and first in generall then in particular for sundry of them The King writ thus to his Iudges 1 Statut. Circumspectè agatis 13. E. 1. vse your selues circumspectly in all matters concerning the Bishop of Norwich his Clergie not punishing them if they holde plea in court Christian of such things as be meerely spirituall that is to wit of penance enioyned for mortall sinne c. In hospitals 2 2. H. 5. ca 1. that be of any others foundation then the Kings it is enacted that Ordinaries shall enquire of the foundation erection and gouernance of them and of all other matters necessary in that behalfe and thereupon make thereof correction and reformation after the lawes of holy Church as to them belongeth In the statute of Citation it is permitted that a man may 3 23. H. 8. ca. 9. be cited out of the Dioeces where he dwelleth when some spirituall offence or cause is committed and done or omitted neglected or foreslowed to be done by some hauing spirituall iurisdiction In a statute of K. Edward the 6. 4 1. Ed. 6. cap. 2. Causes of correction be reckoned as ecclesiasticall which statute though it be repealed for the principall purport there of being touching Ordinaries seales and names not to be vsed any more in their citations and processes yet it bringeth sufficient euidence that sundry matters of correction be of ecclesiasticall iurisdiction And so Bracton testifieth that it was vsed and holden in his time for he saith In 5 Bracton lib. 5. cap. 2. causis spiritualibus vel spiritualitati annexis vt si propeccato vel transgressione fuerit poenitentia iniungenda iudex ecclesiasticus habet cognitionem quia non pertinet ad regem iniungere poenitentias nec ad iudicem Secularem The sundry consultations set downe in the Register do shewe that whē the proceeding is ad correctionem animae for some sinne not punishable in the Temporall Court the conisance is Ecclesiasticall One 1 Regist. 45. a. b. example shall suffice viz. Nolumus cognitionem ecclesiasticam in ijs quae ad forum ecclesiae maximè ad correctionem animae pertinent contra iustitiam impedire But to descend to more particulars and first concerning those which are contrary Pietati in Deum That idolatrie is punishable by Iurisdiction ecclesiasticall appeareth by the statute 2 5. Eliz. cap. 23. De excommunicato capiendo afore alleaged and touching Heresie
not haue conusance of the breach of an othe voluntarily taken is when there lieth an action for the matter whereof the othe was confirmatorie at the Common Lawe therefore it was holden by Brian 6 T. 22. Ed. 4. fol. 20. not long after that if a man sweare to pay twentie pounds that he oweth at a certaine time and pay it not and for the periurie be brought into the Spiritual Court there shall lie a prohibition because saith he an action of debt lieth at the Common Lawe I make this a seueral cause and reason from the former because an othe may grow vpon a Temporall matter which was the former cause and yet none action lie for it And if I promise without any consideration to giue you twentie pounds and binde it with a voluntarie othe it seemeth the Common Lawe will holde it still but pro nudo pacto and so giue none action at all But some occasion is giuen vnto me to thinke that courts Ecclesiasticall de facto howsoeuer de iure helde plea of breach of othe and of faith falsified which 1 Lyndw. in cap. aeterâ—…ae sanctio verbo fidei transgressione de poenis amounteth to asmuch in some respects as breach of a corporall othe euen when such othe or faith voluntarie taken was for confirming of a matter Temporall For this I finde not onely before the Writ was framed de recognitionibus per sacrament a non faciendis de catallis debitis quae non sunt de testamento vel matrimonio but afterwarde also and that aswel by iudgement as by opinions deliuered and reported for booke cases albeit with certaine cautions which shall by the way be touched First then that Ecclesiastical Courtes handled this cause long afore that Writte was deuised I finde in a 2 Prou. Constitutio 〈◊〉 sanctio de poenis Prouinciall Constitution made at a Synode holden at Lambhith vnder Boniface then Archbishop of Canterburie in the time of King Henrie the third Anno Christi 1260. which constitution I doe alleadge not as being of force now for the purport thereof because it aimeth at the bridling of the Kings Prerogatiue and of his Temporall Courtes but thereby historically to shewe what was then held and practised vsually The effect of it to this purpose is that whereas Prelats doe take Conisance of sinnes and of misdemeanours of such as be vnder their Iurisdiction as of Periurie or breache of faith of Sacriledge of violation of Church liberties for infringing of which euen by the Kings Charter graunted to the Church of England such disturbers doe fall into Excommunication ipso facto and of such like causes which be meerely of Ecclesiastical Conisance yet are prohibitions directed foorth out of the Kings Court and Iudges Ecclesiasticall are called thither to answere as if they delt not concerning Periurie and breach of faith but suggesting that they deale touching chattels Therefore a little after is added this viz. 3 Dicta Prou. Const. And if perhaps the King in his attachements prohibitions and summons shall make mention not of Tithes but of right of Patronage not of faith falsified or periury but of Chattelles not of sacrilege or disturbance of ecclesiasticall liberties but of some trespasse pretended to be done by his subiects or bailiffes the â—…edresse whereof belongeth vnto him then let the Prelates aforesaid make knowen vnto him that they holde no plea neither intend to do concerning right of Patronage or chattelles or any other things belonging to his court but concerning tithes sinnes and other meere spirituall matters belonging to their office and iurisdiction and tonching the safety of mens soules c. So that the trueth of such allegation being manifested to the king they thought the plea sound and sufficient to obteinea discharge from such prohibitions c. if they were in those respects onely granted Yea and Lindwood who writ anno 1423 and long after that writ was framed who also by reason he was Officiall principall of Canterbury or Deane of the Arches had good experience in these causes maketh no 1 Lindw ibidem V. periurio doubt but that matter of periury or of breach of faith arising vpon what cause soeuer so farre foorth as it concerneth doubt whether such oath were lawfull or not and doe binde in conscience or not is of ecclesiasticall conisance And therefore teacheth how the libell in that case is to be framed that no cause of prohibition be giuen viz. the partie hath damnably broken his oath made for payment of so much money vnlawfully pretending that hee is not thereby bound or tied The statute Circumspecte agatis saith defamation shal be tried in a Spirituall court when money is not demanded but a thing done for punishment of the sinne and likewise for breaking an oath without distinction whether it arose of a temporall cause or not Since the said writ we haue a iudgement in the very point in the time 2 Lib. 22. Assis. fol. 70. of king Edward the third For if a man demand a debt of tenne pounds before the Ordinarie for that the defendant plight his faith to pay it c. and hath not payd it but broken his faith the Ordinarie cannot enioyne him to pay the debt for sauegard of his faith and if he do he doth it against the kings prohibition But he ought to enioyne him other corporall penance except the partie will willingly redeeme it For so Fitzherbert 3 Fitzherberts Abridgement tit Prohibition num 2. readeth those last wordes of exception more truely then my booke of Assises as it is printed carying indeed therein no sense at all The like appeareth in the reigne of king Henrie the sixt for there it 4 34. H. 6. 70. vt Brooke allegat tit Iurisdiction num 2. was holden that if a man buy an horse of me and sweare vpon the Euangelists to pay me ten pounds for him such a day and pay it not I shall haue action of debt at the Common law and also a citation pro laesione fidei at the Spirituall law and shall not therein offend the Common law because they are diuers things As for opinions afterward we finde it was held by Brian and Litleton in the time of K. Edward the fourth none there gainsaying it that 1 M. 20. Ed. 4. foâ—… 10. in laesione fidei arising vpâ—… a temporall matter the Spirituall court might punish it ex officio but not at the suite of the party To the same purpose also Mordant said in the time of K. Henrie the seuenth 2 T. 12. H. 7. fol. 22. that if a man be sued in a Court ecclesiasticall by a party pro laesione fidei in not paying a summe of money promised there shall lie a prohibition but if the Iudge ecclesiasticall shall do it ex officio then no prohibition shall lie which no man gainsaid or impugned These two opinions lest they should seeme to crosse the former iudgement in the booke 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
writ to the shirifs of London signifiyng that no Clerke though he forfeit his recognizance of statute merchant shal be attached or imprisoned by his body except there bee some cause why hee should not enioy the priuiledge of a Clerke Besides it is no new or strange thing to haue some forme of a writ which is set down in the Register to be vpon better aduise disallowed For I haue credibly heard that it was not long since adiudged that in an action for trespasse done in a warren of Conies a mā might not plead that they were cuniculi sui albeit the Register in that behalfe 1 Reg. fol 102. tit de transgressione frameth the writ so And in the selfe same title whence this forme of prohibition is taken a clause in a prohibition was 2 Reg. fol. 37. reiected by the court For it is said in the margēt Curia noluit concedere istam clausulam in prohibitione but if it were law assured the Iudges would not haue reiected it Fitzherbert who in his booke 3 No. na br fol. 37. G. of Nature of writs was the first that sucked this conceit thence in the selfe same booke touching this rule set downe in the Register viz. notandum est quòd quando rex praesentat vt in iure coronae tunc incurrit ei tempus saieth thus now this rule is not holden for lawe But it will bee said that Fitzherbert himselfe and sundry that follow him since doe hold this point we speake of for lawe This no doubt carieth a great presumption with it that worthily for the worth of the learning iudgements of such men Yet I wil shew that his saying from whom they all since do take it is none vndoubted rule of lawe therefore theirs neither that do gather from him I protest before God I wil not seeke after obiections against his booke but take only such two in stead of mo which I had in my mind because they do touch ecclesiasticall matters He saieth that 1 Fitzh ibid. fol. 269. D. at the Common law an heretike ere he can be condemned must be conuicted of heresie before the Archbishop the whole Clergie of the prouince after abiured thereupon after that of fresh conuicted condemned by the clergie of that prouince this must be in their general councel of conuocation holdeth there that at the Common law a bishop in his dioecesse might not condemne an heretike vntill 2. H. 4. 2 2. H. 4. cap. 15. did giue him authoritie that then he might not be committed to the secular power to be burnt vntil he had once abiured was againe relapsed into that or some other heresie But neither of these points be law so I haue heard the two chiefe Iustices the L. chief Baron some other Iudges the Queens learned councel resolue in a speciall consultation holden about the matter of heresie For albeit the Conuocation may in deed condemn an heretike yet euery B. at the Common law before any statute might at this day may also in his own dioecesse so condemn as the preamble of that very statute makes manifest so by thē all was it then holden for lawe notwithstanding Fitzh opinion there which was fully by thē considered of And albeit it may seeme needlesse yet for further strengthening of these reuerend mens opinions there is a 3 10. H. 7. fol. 17. booke in the very point For it is said that for heresie or any point against the faith the BB. had none other power to bring thē in but to make processe against them by citations vntill the Statute of Heresie 2. H. 4. ergo afore that statute they had power to proceed against heretikes in Ordinarie course of the lawe ecclesiasticall Which assertion the very Note-gatherer also maketh in his title of the lawes of England yet to another purpose howsoeuer in the maine point y t we now treat of he sticke fast to Fitzherbert Likewise 4 Fitzh no. na br fol. 30. F. he saith it appeareth that before the statute made pro clero in the 18. of king Edw. 3. cap. 7. the right of tithes were determinable in the Temporall court of the king and that the lawe was altered at that time herein by that statute Whereas in very trueth there appeareth no such matter other then a grieuance offered in this behalfe to the libertie of the Church which then was determined that it should afterward cease I know that Gooddall writing of the liberties of the Clergie by the lawes of the Realme concurreth in this point with Fitzherbert for thus he writeth It seemeth that before the Statute the right of tithes were determinable in the Temporall courte but that statute hath altered the law So that it may be coniectured the one of them borowed it of the other But this whole doubt whether causes of tithes before that statute of Edw. 3. were determinable in an ecclesiasticall court or no is resolued by a Treatise nipping in trueth wholie at the Clergie and lawes ecclesiasticall and so indifferent an Vmpier as that the Note-gatherer alleageth him for his purposes therefore in this case not to be refused by them who produce him for their witnesse For that 1 Of the power of the Clergie and lawes of the realme cap. 15. Treatise writeth thus viz. Long after that the kings courts of his Bench commō Pleas also all inferior courts were put out of iurisdiction for tithes yet neuerthelesse Writs of Scire facias were commonly sued in the Chancerie for tithes and the defendants were thereupon put to answere wherefore at the petition of the clergie and in consideration of a disme that the clergie grāted to the king it was enacted 18. E. 3. ca. vlt. that such Writs of Scire facias thenceforth should not be granted for tithes And a litle afore 2 Ibidem thus viz. That suites for tithes shal be taken in the Spirituall court is only groūded vpon a fauour that the kings of this realme the whole realme haue in times past borne to the clergie And 3 Ibidem againe in this sort We thinke that the kings courts be put out of iurisdictiō for tithes by a custome of the realme not by the immediate power of the lawe of God Therfore by this mans opinion it is the common law or custome of the land and not that statute which made tithes of conisance ecclesiasticall And in very trueth that tithes were demandable in a court ecclesiastical before this may appeare by statutes afore that time by reports after testifying that the conusance of right of tithes at the Common law is incident to iurisdiction ecclesiastical as in the peculiar 4 Ca. 4 5 6. huius Partis treatise thereof is afore shewed Lastly to shut vp this first point a precedent of a prohibition of all other Writs that can be deuised may with least reason bee said
necessarily to report what is lawe for that Prohibitions are so often reuersed disanulled againe by consultations as might haue happened in this very-matter for any thing that can be certainely knowen as well as in any other such like For the second point that Recognitionem facere simply and absolutely cannot signifie the answere vnto the Libel of the partie conuented nor the deposition of witnesses may appeare because this fourme of Prohibition is said to be formata super Articulis Cleri But out of them no such matter can with any colour be gathered therefore being taken in such sense must needes be a glose besides his text Againe I finde in the fourme of another writ in Fitzherbert where Sacramento recognoscere so being ioyned together 1 Fitzh nou na breu fol. 31. doth signifie a testification by oath Likewise in sundry 2 Reg. in br Iudic fol. 7. a. 12. a. 75. a. writs of the Register recognitio per sacramentū velrecognoscere per Sacramentū is vsed for a deposition vpon oath But where Recognitionem facere without further addition should signifie a parties answere or witnesses deposition I doe not call to minde that I haue read in any so much as pretending to write Latine Howesoeuer it might be shewed in other surely in that Prohibition which is in the Register for auoiding many absurdities it cannot so signifie for the Register reades it that the Sherife shall not permit laye men to come together in any place ad recognitiones faciendas vel Sacramenta praestanda but in those two causes So that by the disiunctiue Vel whatsoeuer recognitionem facere be there neither that may be done nor an oath in any other cause may be taken by any Lay man whatsoeuer though otherwise he were willing For the word Laici is indefinite not restrained to any one sort of Lay men and so that which is here forbidden is simply forbiddento all Lay persons and in al other causes whether they be parties or witnesses willing or vnwilling with oathe or without oathe For in the Prohibitiō there no mentiō is made of that clause which the attachement thereupō doth inserte viz. ipsis inuitis So that if that precedent of Prohibition be of it self perfite this which I haue said doth thereupon necessarily follow But if any thing be to be vnderstood which is not expressed then why may we not for recōciling of Rastels writ this together safely affirme that they be both to be vnderstood of recognitions and oathes giuen in deede in eccles courtes but yet touching goodes chattels no way concerning matter either testamentarie or matrimoniall It cānot be truely said that recognoscere is Sacramentū praestare or recognitio to be the same that Sacramentū ipsū the oath it self This is proued by the precedēt of that very prohibitiō in the Register where they are distinguished as two seueral things with a particle disiunctiue And like wise by the writ in Rastals Abridegemēt for there the recognitiō is forbiddē to be made per Sacramentū therfore not the same but diuerse things seeing no matter is the selfe same thing with that which is but his adiuncte Then being not the same things both forbiddē and presupposing the interpretatiō that is vrged it wil follow that no Lay defendant neede nay he may not recognise though without oath or make any answere at all in any other cause eccles then those two So that there wil neuer be issue ioyned and so no plea ecclesiasticall sauing in those two causes For will any defendant thinke ye make any answere at al either whē a thing is demaūded of him that he list not to yeeld vnto or when he is cited to be punished if neither he neede doe it nor yet may by law though he would But admit the defendant would be willing would aduenture the daunger of lawe for answering to the plaintife ioyning issue with him yet how many such pleas could proceede any further whē no lay witnesses might be vsed either with oath or without oathe to make recognition or to depose And if Rastals writ be law so to be vnderstood as is nowe enforced so that witnesses may not testifie in other causes then those two super sacramenta sua their depositiōs as of men vnsworne must needes be meerely void by al lawes diuine humane So that if the prohibition be not meant of holding plea touching goodes or chattels in other causes it must needes sort to this point that in no cause besides those two any lay persō may by law though he would come to answere or testifie with an oath or without an oath in a court ecclesiastical But this is absurd vnreasonable to imagine and wil be so confessed euen by those who stand in this opinion and therefore that must needes be also absurd whereupon it necessarily followeth For omne verum vero cōsentaneū and by the rule of reason we knowe Ex veris possunt nil nisi vera sequi Nowe for proofe that it is absurd and contrary to lawe thus I proceede No plea can be holden but where there is one that affirmeth and another which denieth that which is affirmed and then either matter of recorde or witnesses must be vsed to proue the intention of the plaintife But in sundry other causes then those two pleas by law may be holden in a court ecclesiasticall as I hope manifoldely and sufficiently is afore shewed in this Treatise and therefore in those other causes Lay men may and ought to answere and testifie which is the contradictorie of that which doeth necessarily followe vpon this their interpretation So that this conclusion being true the contradictory of it is vntrue and then that vntrue also whereupon it is necessarily consequent For as I said afore I trust no reasonable man will conceiue that onely ecclesiasticall men will prooue deteiners of such ecclesiastical dueties and culpable in those offences that are proued afore to be of ecclesiasticall conusance nor yet that they only shal alwayes happen to be present and able to beare witnesse in all those other seuerall ecclesiasticall causes afore touched Furthermore to make it more plaine and to deliuer it in seueralty recognitionem facere cannot signifie in this place the answere of the party conuented For if a lay man against whō there is cause of action vpon some other of the matters ecclesiasticall list not nay if he neede not and which is more if by law he may neither come to the place nor being come may answere either yea or no then could no plea at all in any such ecclesiastical cause be holden If it be said that a Lay man must answere but not by oath in such other cause I replie againe that either the Register hath not the writ aright printed or else this no way can be so meant For by the disiunctiue vel when the proposition is negatiue and prohibitiue as it is here both the one
likewise that none shall bring them into the Realme or being perhaps brought in by another shall receiue them or being neither brought in by them nor yet receiued froÌ„ others but comming some way to their knowledge shall not make any notification or any other execution of them where neither within the realme nor without c. vpon paines there at large conteined Of those generall heads whereunto I said afore that all questions of Praemunire might be referred there be some that being expressed in these statutes are I thinke without all doubt to be within the compasse thereof as by the first of these two to draw any of the Queenes liegeance out of the realme in a plea whereof the conisance pertaineth or iudgements be giuen in the kings Court And that which is sayd of a Plea in the kings court is also drawen by some opinion vnto a court Ecclesiasticall for 1 9. Ed. 4. fol. 3. Yeluerton in the Kings bench held opinion oftentimes that if a Clerke doe sue another in the Court of Rome for a spiritnall matter whereof he may haue remedie within the realme that he is in case of Praemunire quia trahit in placitum extra regnum And 2 Fitzh Noua nat br fol. 44. lit H. Fitzh holdeth that for collation of a Prebend sued out of the realme a prohibition doeth lie Secondlie it is an vndoubted Praemunire by that statute to sue in another court to defeate or impeach the iudgements giuen in the kings court In these wordes of another court there seemeth to be an opposition and seuerance of such a court from the Kings court the rather because both the Preamble and the body of the statute do mention drawing men out of the realme in Plea Whereof at that time there was no colour for any man to be drawen any whither but onely to the court of the bishop of Rome whether he resided there at Auignon in France where the Popes about that time did lie 70. yeeres together at Bononie or elsewheresoeuer Therefore for the true vnderstanding of those words enquire If any of this realme of late yeeres whiles the parliament of Paris was established by the authoritie of the French king vpoÌ„ colour that the Queenes maiâ—…stie is in very right Queene of France should haue brought processe thence against another subiect to appeare there whether this had not been a Praemunire by that statute likewise If any of the Q. Courts not authorised therunto by law vpon writ of errour should defeate a iudgement giuen in any other of the Queenes courts enquire whether this be within the meaning of those words notwithstanding the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and distinction whereby such another court seemeth to be seuered and made a distinct thing from all the Queenes court Thirdly it is an vndoubted Praemunire according to the later of the foresaid two statutes to purchase or pursue or to procure so to be done in the court of Rome or else-where any such translations c. or any other things which touch the King be against him his Crowne and Regaltie or his Realme as is there aforesaid or c. as is there further conteined Fitzherbert reporteth 1 Fitzh tit Praemunire nu 5. that the opinion of the court was Paschae II. H. 7. that Alibi in the said statute was vnderstood of Bishops courts so that if a man sue there for a thing that belongeth to the Common law he shall be in the Praemunire Therefore 2 Brooke titulo Praemu nu 21. was it holden by some that a benefice Donatiue by the Patron is a meere lay thing and the Bishop shall not visit it and therefore shall not depriue from it and if he meddle in this case it is a Praemunire and sayth that Barlow bishop of Bathe for depriuing the Deane that had it as a Donatiue by the Kings Letters patents was driuen to sue a pardon Fineux chiefe 3 15. H. 7. fol. 9. Iustice saith a spirituall man may execute temporall iurisdiction as the Bishop of Durham doth in his countie Palantine viz. as he hath iura regalia but not as a Bishop and saith he the Bishop shall punish his Clerks by Praemunire for suing in Spirituall courts for a cause temporall But whether that Bishop hath this authoritie seeing Praemunire is brought in by statute there is a Quaere inde made as of a matter doubtfull It is holden that a Prohibition doth 4 24. H. 8. titulo Praemu num 16. often lie where a Praemunire doth not as of tithes of great trees c. for the nature of the action doth belong to the Spirituall court albeit not that very cause in that forme but when it is of a lay matter or of a thing that neuer did belong vnto the Court spirituall herein as is said there lieth a Praemunire But these notwithstanding sundry doubts are made in this behalfe because at this day all iurisdiction Ecclesiasticall is now truely acknowledged and is in deed as it was alwayes in law in the Souereigne prince and from her prerogatiue royall deriued downe to others no lesse then the Admirall court is or the court of the Constable of England in times past was when it was vsed albeit they vsed their peculiar seales and names to the processes there sped And I haue heard very credibly that some reuerend and great learned Iudges whiles they liued were of opinion that for an Ecclesiasticall Iudge to deale in a matter apperteining in very truth to a Temporall court yet for some neerenesse and cohereÌ„ce by him probably supposed to be an ecclesiasticall cause could not at this day be a Praemunire but subiect onely to a Prohibition and punishable as a contempt as it was at the Common law vpon an attachment after Prohibition Which opinion if it be sound then the Treatiser is farre wide from the truth where he saith that for men to deale in any cause not belonging to their iurisdiction is Praemunire This were very hard and rigorous if euerie mistaking or going beyond their commission by Iustices of Peace by any Iudges ecclesiasticall or temporall should be no lesse then Praemunire I haue heard it deliuered by great Lawyers that so to do doth but make the Actvoid as being coram non Iudice and inferreth no such grieuous penaltie For it is alleged that Alibi in the statute was put in to enclude processes deriued from the Popes authoritie albeit he kept his abode any where els then at Rome In which respect it is affirmed in a 1 25. H. 8. ca. 21. statute that the said statute of Prouision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the kings crowne and dignitie royall And it seemeth to some that Alibi can not now signifie Bishops and their Courts which are called the Queenes Ecclesiasticall courts and Iudges and the Canons by law established the Queenes Ecclesiasticall lawes Insomuch as the power giuen by statute to her
Maiestie by her Letters Patents to 2 1. El. cap. 1. name such as shall execute all maner of iurisdictions touching or concerning any Spirituall or Ecclesiasticall power is brought 3 8. El. cap. 1. in the Preamble to prooue the sufficient ordinarie authoritie that Bishops haue giuen vnto them by the very Letters Patents directed from her Highnesse for their confirming and consecrating c. It is further alleged that such dealing of an Ordinary toucheth not the King against him his Crowne and Regalie or Realme as not falling into any of the mischiefs whereof that statute was meant to be a remedie And for that all iurisdiction Ecclesiasticall is now both in fact and Law vnited to the Crowne and from thence deriued if it should be sayd that the handling of a matter but in an incompetent court yet established by the Queenes authoritie were in that high degree of offence punishment against her Crowne some thinke it reacheth thus farre as to implie an incompatibilitie betwixt the Crowne and Ecclesiasticall iurisdiction and so by implication to denie her iust Royall prerogatiue ouer all persons and in all causes aswell Ecclesiasticall as Temporall as if these could not both flow from the Crowne nor stand together and meet in one person which is most erroneous to thinke and traiterous to affirme It is likewise alleged that this were to make in effect a Praemunire to lie in euery case where a Prohibition may and alwayes hath serued the turne Whereas a Praemunire seemeth to be as a remedie prouided where a Prohibition could not serue to stay the course of proceeding And that euen before the supremacy was acknowledged to the Crowne no Praemunire vpon this point onely is reported in the bookes of termes and yeeres to haue bene inflicted but onely for pursuing pleas of the conusance of the kings court out of the Realme seeking to defeat iudgements there giuen and procuring Bulles from the court of Rome in derogation of the lawes of the Realme Moreouer it is to this purpose alleged that by the 1 3. 4. Edw. 6. cap. 11. statute authorising two and thirtie persons to set downe lawes Ecclesiasticall though repealed it was prouided as they thinke in affirmance of the law that no man for executing any of them should haue incurred contempt paine forfeiture losse nor haue bene in danger of any action or suite of praemunire Yet if such lawes had bene framed the Iudges ecclesiasticall might by mistaking haue giuen some cause of prohibition Therefore it is gathered by like equitie to be very hard that an Ecclesiasticall Iudge meaning to do his dutie and but to execute Ecclesiasticall iurisdiction ecclesiastically yet by similitude and neere coherence of one matter with another mistaking and so exceeding his authoritie a thing very easie in the Common law wherein sometimes do happen varietie of iudgements amongst the oldest professers of it if before any prohibition brought as it were to forwarne him he should hereupon de drawen at the very first push into a praemunire For by like reason if a court Baron should heare plea of a matter aboue fortie shillings a praemunire in stead of a prohibition might be brought against them Therefore enquire and seeke to enforme your selfe aswell in the premisses as of these questions following what is to be holden for law viz. in holding plea in an Ecclesiasticall court 1. Doubt of a temporall matter whether there be not a difference when it is propounded vnder the very name of a temporall action and when it is propounded vnder the name of an ecclesiast matter And whether the Iudge be in danger before the matter be 2. Doubt opened vnto him or no For I thinke in no Court temporall or ecclesiasticall the Iudges peruse the writs declarations c. when they are first put in And whether it be as great an offence in law but to hold plea 3. Doubt as to giue iudgement and to award execution in an Ecclesiasticall court of a temporall matter Also whether it be like degree of offence for an ecclesiasticall 4. Doubt Iudge to execute a temporall matter by censures ecclesiasticall as it is to execute it or a matter ecclesiasticall by temporall viz. fine imprisonment losse of limme or such like Likewise of what qualitie the offence is to go on in plea in a 5. Doubt Court ecclesiasticall after a meere temporall matter as right of aduowson c. falleth in controuersie principally to be determined Or to holde plea there in a matter worthie of redresse yet neuer of custome handled either in temporall or ecclesiasticall 6. Doubt Court nor whereof any remedie lieth at the Common law Also what offence it is to make lawes temporall or ecclesiasticall without the Princes assent 7. Doubt What it is to deale in temporall causes or courts without 8. Doubt commission and what in ecclesiasticall And lastly of what degree and qualitie of offence is it for a 9. Doubt Court temporall to holde plea of a meere ecclesiasticall cause or to deale in censures ecclesiasticall Or for such a court to holde plea of a temporall matter being 10. Doubt no competent Iudges thereof as for example if the Court of Common pleas or the Eschequer should deale in pleas of the Crowne that be capitall with such like a great number And so thus much for the first part The end of the first part THE SECOND PART OF AN APOLOGIE FOR SVNDRIE PROceedings by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuerslie by them impugned This second part especiallie treateth of the two seuerall wayes of proceeding in causes Criminall viz. by way of Accusation and ex Officio Iudicis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie ¶ THE PREFACE wherein is declared howe the foure opinions put ouer vnto this place doe fall in with the challenges of the Innouatours and a generall distribution made of matters to be handled in the second and thirde Parts THe second part of this treatise containeth our proofes together with answere to the obiections made against the maner of practise of iurisdiction Ecclesiasticall by those who do euen professe themselues to endeuour an innouation in the frame of gouernment of this Church of England But wee meane not in this place to handle all which they obiect in this behalfe but only some such of them as touch the maner and fourme of the proceedings in the exercise thereof For it is knowen they take sundry other exceptions as against the maner of calling to function Ecclesiasticall against the ordination against sundry the callings and the functions themselues against deriuing of the iurisdiction Ecclesiastical from the Prince against the matters handled by that iurisdiction and against the maner of handling them in sundry other respects condemning them as Antichristian and contrary to Gods word All which are of another consideration and not fit here to
either for the greatnesse of the partie whom poore men dare not present or denounce or for the delinquents often remoouing from one Dioecesse to another or for the dwelling of the witnesses else where or for the offenders frequent friuolous and chargeable appeales or for such like considerable occasion or vpon credible information made by some great personage or of some that be in that Commission or being referred from her Maiestie or from the Lords of the Counsell or vpon complaint of some partie iustly grieued otherwise being without remedie or by complaint of a whole Parish or of a great part thereof or vpon frequent relation of sundry credible persons taking offence and griefe thereat and setting downe particular euidence of the facte or in aide and assistance of ordinarie Iurisdiction as when the delinquent hath no certaine place of abode or lastly by some notorietie of the fact as by the parties knowen hand-writing or for a matter done in great assembly of people and such like Hereupon Articles be framed wherein are conteined the place time and oftentimes the persons able to testifie informe further and all such other circumstances and Indicia which I interprete as the worde is commonly vsed Euidences tending to the plainer manifestation of the Crime The Articles are perused and allowed to be incident to the conisance of that Court and conteining sufficient detection to open a way to proceede by way of further enquirie ex officio into that crime by one of those three Commissioners at the least whereof one is of the Quorum that doe subscribe the Processe for conuenting of the partie This Processe is either by way of Citation commonly there called letters missiue or by way of attachment when the partie is fugitiue or flitting or the Crimes be grieuous and publikely offensiue so that it may probably be feared he will lurke or steppe out of the way for a time But in both courses some one is bound to the Queenes Maiestie to prosecute to furnish the Court with witnesses for proofe of the matter not to compound it priuately and to pay charges vnto the partie if it shal appeare he hath bene without iust cause troubled Yet where the Commissioners themselues are sufficiently enformed Indicijs viz. with euident matter against the partie and where no such prosecutor or relator doeth offer to follow it so that the Court it selfe takes chiefe care of the prosecution in some like fewe cases such bonde is omitted Nowe when as the partie appeareth for such iust considerations as hereafter are debated and prooued lawfull he is required on her Maiesties behalfe to take oathe to answere the Articles or Interrogatories truely being matters of his owne facte and knowledge so farre foorth as by lawe he is bound before euery particular thereof be made knowen vnto him least after perusall afore his oath taken he be drawen by counsell to answere cautelously indirectly or wholly to refuse to make answere perhaps because he sees they touch him ouer neerely as coniecturing by whom they may be prooued But after the oath is taken in setting downe his answere he may consider as aduisedly and deliberate for so long time as in any reason may be desired And thus farre foorth the partie conuented is for the most part without any partie at all proceeded with but ex officio Iudicum nobili vel mero to the intent he may not bee priuileged to say that he is not bounde to answere being at the suite of the Office and duetie of the Iudge for the publique interest of the Church and Common-weale as perhaps by Lawe he might if it were at first preferred and prosecuted by a partie But after he hath perfitely answered them for the most part a partie is then made who if sufficient matter be not confessed thereupon to proceede vnto a iudgement vpon the Articles and answere doeth take vpon him to prooue it by witnesses and then Interrogatories exceptions against witnesses and other defenses for the conuented partie are vsed almost wholly as in Ordinarie Courtes By which making of a partie that which was merum officium afore doeth afterward become officium mixtum viz. ex mero promoto When the matter comes to finall iudgement if the partie bee conuicted hee is punished either by penance for his reformation and for satisfaction of the Church offended or by imprisonment fine or censures of the Church or by so many of them as is thought fittest or by him or others most feared or to be most conuenient weighing alwayes the qualitie of the person and the offence together with other circumstances thereof In ordinarie Iurisdiction Crimes be vsually proceeded against either ex officio promoto that is at the instance and petition of some that will voluntarily stirre vp and sollicite the Iudge vnto his duetie or else ex officio Iudicis mero In the first of these albeit the partie conuented is bound to answere matters by oathe if it bee required so they bee not of the Crime obiected yet the rule is that he is not bounde to answere vpon oathe touching the very Crime it selfe notwithstanding a fame doe runne hereupon vntill he shal be enioyned his purgation But when an Ordinarie proceedeth against a crime without a partie promouent viz. ex officio mero then his proceeding must be grounded either vpon a presentment of a fame or of the crime made by such as be specially deputed thereunto as Church-wardens c. or proued by other witnesses or else vpon notorietie of the facte speeches and information of credible persons touching such fame or scandale thereupon risen brought often vnto his eares which is called clamosa insinuatio or by some other course allowed by lawe to be sufficient to open a way vnto such proceeding If it be vpon a perfite presentment of the crime or fame thereof the Iudge may safely without doubt of nullitie or grieuance in that behalfe proceede ex officio and so may vrge the partie presented to answere vpon his oath touching the very crime it selfe But if there be no such presentment but clamosa insinuatio delata ad aures suas or some equiualent matter whereby the partie becomes offensiue and scandalous though no man will prosecute or present him yet the Iudge may and ought ex officio of very duetie to proceede vnâ—…o the examination of neighbours there abouts touching such fame or crime which fame if it shall be by such enquirie found and prooued then he may proceede as afore But if vpon such denunciation and notification had from credible persons and the crime being not declared to be notorius nor none infamie or scandall prooued or presented nor any other sufficient meane to open way to such Enquirie he shal neuerthelesse proceede and vrge the partie to answere of the very crime vpon his oath this of it selfe shall make none errour or nullitie in the proceeding albeit not warranted by lawe For if the partie conuented shall make none opposition
Formall cause of the vse of Oathes chapter 1 An answere to certaine doubtes made concerning Oathes as namely why in Scripture God is said to haue sworne how by Oath he is said to be called to witnesse an Oath no chapter 2 tempting of God but a part of his worship way neuerthelesse some are repelled from taking Oath whether Adiuration be lawfull after whose meaning an Oath is to bee vnderstoode whether euery Pr◅m ssor◅e Oath bee simply to be kept whether an Oath may bee dispensed with and how farre and whether a Christian may by mutuall Oathes contract with him that sweareth by false gods Diuision of Oathes according to the outward forme of taking them according to the matter and inward forme of them with plaine description of euery kind of oathe chapter 3 That the ceremonies vsed in taking and giuing corporall oathes with laying hands vpon chapter 4 the Bible or Testament and swearing by the contents of it are not vnlawfull The true issue of the next opinion in question two sortes of crimes and offences prohibited in what cases an oath here spoken of may not be ministred and the manifolde conueniencie chapter 5 and necessitie of an oath sometimes to be ministred in a cause criminall and penall vnto the partie with some fewe obiections touching inconueniencie thereof an◅wered That oathes of men touching matters dammageable criminall and penall to themselues chapter 6 are vrged and exacted by temporall Courts and by the lawes of this Realme Wherein are conteyned answeres to such obiections and reasons as be made for proofe of a chapter 7 contrarietie or repugnācie in these oathes vnto the statutes lawes or customes of this Realme and a Replie to the Treatisors answers made vnto certaine obiections supposed likely to be made in Iustification of this kind of oath by the temporall lawes That ministring of such oathes is by the Lawes of the Realme allowed vnto Iudges of Ecclesiasticall chapter 8 courts and some fewe obiections made to the contrary are answered That such oath touching a mans owne crime is allowed both by the Canon and Ciuill chapter 9 lawes how faire and in what sort and that the like is established and thought equall by the lawes and customes of sundry other nations a◅well ancient as moderne An answere to some obiections pretended to be made against this kind of oath from the chapter 10 lawes Ciuill or Canon That not onely such an oath may be taken but also being by Magistrates duely commaunded chapter 11 ought not to be refused is approoued by Scriptures by practise of the Primitiue Church and of late times together with a Replie vnto certaine answeres made vnto some proofes here vsed An answere to such obiections as be pretended to be gathered from Diuinitie Diuines chapter 12 and from the Examples of godly men against ministring oathes vnto parties in matters of their owne crimes Foure seuerall opinions of the Innouators against the parties taking of oath in criminall chapter 13 causes with answeres also vnto their reasons and obiections That a man being charged by authoritie to discouer his knowledge touching some offence chapter 14 which his Christian brother is supposed to haue done is bound to reueale it though it may breede trouble and punishment to his brother and the reasons to the contrary are answered and refuted Their arguments are answered that condemne the ministring and taking of an oath as chapter 15 vnlawfull because they haue not distinct knowledge giuen vnto them of euery particular before the taking of it and the like course by examples is approoued lawfull and godly That after the partie hath answered vpon his oath it is neyther vnusuall vnlawfull not chapter 16 vngodly to seeke to conuince him by witnesses or other triall if hee bee supposed not to haue deliuered a plaine and full trueth and somewhat also in approbation of Canonicall Purgations with answere to the Treatisours obiections against them The third part of an Apologie for certaine proceedings by Ecclesiasticall iurisdiction of late times by some chalenged CHAP. I. Matters in this third part to be handled Of the lawfulnesse of Oathes What an Oath is and the reason or originall Formall cause of the vse of Oathes THat which followeth in this third part of Apologie to be handled according to the order that I haue proposed to my selfe in the Preface before the second are the chalenges taken either to the oath of the partie which is sued conuented they are either against the ceremony outward actions vsed in taking it or els because it is giuen to tie the party to answer in a cause criminall penall vnto himself or else they are against examining vrging men to depose touching actions of their brethren being criminall or at least such as albeit the examiners do hold and make to be criminall and misdemeanors yet the examinates themselues doe take them for good and godly not deseruing any punishment but rather high commendation Or they doe touch some circumstance concurring with the tender of the oath as that the examinates haue not distinct knowledge of euery particular whereupon they are to bee examined before they resolue whether to take the oath or not Or lastly they concerne some euent ensuing the oath and examination as that the Iudges doe not rest in that which is affirmed or denied vpon the parties oath but oftentimes proceed to a further examination by witnesses concerning the same points This matter of an oath is a principall chalenge of theirs which they drawe and spinne out into these particular exceptions and chalenges as yousee And it is the thing together with proceeding against crimes and offences by way of Enquirie Ex officio wherein you most especially desired a full resolution which would to God either in the rest or in this I were as able to doe as I am readie and willing and as the matter it selfe and goodnesse of the cause would yeeld and affoord to a skilful and sufficient man But the rather to performe my promised vtmost endeuour I hold it not amisse for better vnderstanding of the rest to touch as brieflie and plainly as I can the nature of an oath and some I trust not vnnecessarie questions about that matter which I haue collected First I will touch but very briefly not taking vpon me to doe it in sort as Diuines could the lawfulnesse of oaths with answere to some obiections which is the question An sit I will stand the lesse herein least I seeme to seeke to drawe any of them into hatred as if these innouating disciplinarians did directly condemne oathes before Magistrates which most solemnly they protest they doe not Albeit if all their positions hereabouts were scanned and compared together some holden deliuered by one and some by others of them both shrewd and lewde conclusions pricking fast forwarde to this point would necessarily thereupon follow Next I wil handle what an oath is which is the question Quid sit Then the originall Formall
the end of the Epistle to the Romanes And againe the same Poet. Dicitur nostros cantare Britannia versus which argueth the vse and knowledge of the Latine tongue to haue bene then rife in this Iland That the Ciuill lawe of the Romanes was then vsed here their histories may testifie for they gaue their owne lawes to most of the Prouinces which they subdued and permitted 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to very few of them Many of the same lawes were also taken vp and reteined by the Saxons euen vntill the Norman conqueror brought hither established the customes of Normandie And namely amongst others they retained til then the law y t al brethrē should participate alike their Fathers inheritance And we do 1 Cic. samil 〈◊〉 reade that Trebatius an ancient Ciuill Lawyer and often alleadged in the Pandects who liued in Iulius Caesars time more then fourtie yeeres before Christ did remaine at Samarobrina in this Iland of Brytaine Likewise afterward the 2 Forcatulus very oracle of that Law Aemilius Paulus Papinianus did professe the lawe and kept his Tribunall seate of Pretorship at the citie of Yorke Fourthly that the Chancerie tooke this course many points besides from the Ciuill law is apparant by the whole course of other proceedings there viz. by the defendāts answer to the bil vpon his oath and sometimes to interrogatories by the sundrie issues that there may be tendred by that terme and whole maner of publication of witnesses depositions by examining witnesses vpon Interrogatories by examining witnesses in perpetuam rei memoriam by the terme and vse of finall decree and manie other such like points much varying from the manner of common Lawe and iumping almost wholy with the Ciuill And to conclude this consideration is thereby made more probable for that in elder times the Chancellors to the Kings for the most part were Clergie men whose studie and profession then was the Ciuill lawes Therefore this vrging to put in answere vpon corporall oathes taken albeit the matter in some degree happen to bee criminall being a speciall practise in that chiefest Court of Equitie can hardly be construed to bee against equitie and being in the originall temporall Court of the land cannot bee contrary to the fundamentall lawes of the same and that Court being of so great antiquitie and continuance this answere by oath can not be an abuse or corruption lately crept in wherewith the Treatisour without any ground chargeth all those temporall Courts that haue receiued it In the Court of Starre-chamber the proceedings are against crimes criminally mooued by way of Enquirie though for the most parte at the promotion or solicitation of some priuate partie grieued namely against forgeries periuries subornations ryots rowts and other sundrie heinous misdemeanours against which there lieth no capital punishment nor losse of limme by the common law Yet is the defendant there to answer vpon his corporall oathe not onely to the bill preferred against him but to as many other perhappes sometimes euen crosse Interrogatories as the Counsell of the plaintife shall deuise But to this I heare it is replied by some that there bee two maine differences betwixt the course there and the proceedings in a Court Ecclesiasticall The first that none there is bound to take his oathe but onely where there is an accusation preferred against him by an other so as if he purge himselfe lawfully hee is to recouer dammages Touching recouery of dammages if by dammages be meant costs and charges these for the most part be in this case also giuen euen by the high Commission that is so much impugned For except it be immediately for the Queene there is a partie bound to prosecute and pay charges if the defendant bee molested without cause But if such dammages as they terme them bee recouerable in the Starrechamber I thinke they are not very great and where the matter is preferred once by her Maiesties learned Counsel I am tolde there be no costs adiudged though the defendant happen to be cleared But if in this behalfe there were any difference yet it makes no difference in the very point in handling videlicet that an oathe is there giuen to the partie in a cause criminall and penall to himselfe The other part of the replic builded vpon an accusation there preferred is indeede different from the course of Ecclesiasticall proceeding but yet if there be equitie for it in the Starre-chamber it doeth much more fortifie the giuing of such an Oathe in Courts Ecclesiasticall For in these Courts if there be an accuser or any partie that informeth or promoteth then the defendant is neuer examined by oathe vpon the very crime For when a partie prosecuteth who as the law intendeth doth it for malice reuenge or some other particular respect hee is not so much fauoured nor priuiledged in the proceeding as when the Iudge ex officio Nobili euen for his duties sake and for the publike commoditie of the common weale doeth make the Inquirie If then it bee both equall and lawfull in the Starre-chamber at the prosecution euen of a priuate person who may be intended for the most part not to doe it of conscience onely zeale of Iustice to haue vice punished to examine the defendant vpon his oathe for discouerie ofte times of faults and misdemeanours euen openly doone and committed and so the more easie to be prooued by witnesses and where the punishments are vsually corporall and otherwise farre more grieuous then bee inflicted in any Court Ecclesiasticall then howe can it in an Ecclesiasticall court be thought vnreasonable whereas the office dutie and charge laide vpon the Iudge are by common entendment the onely exciters and causes of prosecution and where if it be an Ordinarie Court canonicall penance for the reformation of the partie is inflicted And if it be before the Commissioners Ecclesiasticall neither their greatest corporall paine is so grieuous nor their fines so deepe And yet many of the crimes are as heinous towards God as secretly and closely committed and plotted as any crimes are that bee punishable before their Lordships in that most honourable and sincere court of the Starre-chamber The second difference by some taken in this behalf betwene these proceedings I heare is this that in the Starre-chamber a man is not driuen to answere directly to the fact it selfe but onely to the circumstances of the facte as was in Trussers case as is saide But I am certainely informed by those that haue better cause to knowe the practise of that Court then the Authour of these obiections and differences that the practise of that Court is cleane otherwise As for Trussers case it was the felonie onely a matter capitall to him that was ordered not to be enquired of him by Oathe but touching the lewd confederacie it selfe and of his other practises about it he was ordered by oath to answere them So that the reason of the like equitie in both courts
the Imposers of them to be in a Praemunire for incroching vpon the Kings rights and prerogatiues and for conuenting subiects by forrein made Lawes and for practising Antichristian Decrees and Popish Canons which hee sayeth appeareth by the Praemunire brought by Hunne against a person suing the said Hunne for his yoong deceased infants bearing-cloth by the name of a Mortuarie in an Ecclesiasticall Court howe doth this inferre that it is Praemunire either to encroch vpon the Kings rights prerogatiues though this peraduenture by some circumstances may amounte sometimes to no lesse or to conuent subiects by foreine made lawes It may not be thought that euery intrusion deteiner or concealement which is incroching vpon the Kings right or rauishment of his wardes which hee ought to haue by his Prerogatiue Royall is straightway and necessarilie a Praemunire neither were the Kings Temporall Courtes in this case encroched vpon because they could not giue remedie for deteining a Mortuary if this were so in trueth to be accounted neither yet is there so much as any mention made of foreine lawes which the Ecclesiasticall Court then proceeded by or practised This course of the Treatisour is rather to prophesie then to reason thus to tell vs afore hand vpon the very bringing of the action of Praemunire by Hunne what the iudgement was in that matter yea and vpon what ground the iudgement was giuen in a cause which neuer receiued iudgement for any thing I can learne To this point he also mentioneth the Praemunire wherein blind Nixe sometimes Bishop of Norwich was condemned and addeth to the aforesaid two points that by that also appeareth Iudges Ecclesiasticall are in Praemunire whensoeuer they exceede their Iudiciall authority But if euery exceeding of authoritie were a Praemunire then what Iudge is there of any court of either sort so skilfull or alwayes so aduised but might iustly feare that at one time or other he shall not escape this rigorous doom of Praemunire In trueth this example prooueth all his three points iust alike that is none of them at all I doe verily beleeue the Treatisour neuer sawe that Record if he haue either he makes verie bolde with his Reader or else with the Arte of reasoning thus to collect I haue perused the Record 1 H. 25 H. 8. Rot. 42. Suffolk it selfe it containeth a suite of Praemunire brought against the saide Bishop by the Kings Attourny generall on the Friday after the Pâ—…rification pleading the Statute of 16. Ric. 2 and adding that al Indictments Presentments and Impetitions in any court of the Kings 2 B. Nixe his condemnation in a Praemunite or in any Court of a subiects which is in any sort deriued or diduced from the Kings crowne duely taken or found are to be tried iudged in that Court where they were found or in some of the Kings Courts and not in any Ecclesiasticall Court and that whereas there was an old custome in the Towne of Thetford that whosoeuer should trouble any of the Kings or Duke of Lancasters tenants commorant in that Towne and shoulde call them by citation into an Ecclesiasticall Court out of the Deanery of the saide Towne shoulde thereby forfeit and he also that should execute such processe should also forfeit 6 shillings 8. pence which custom by a Iurie of twelue men being accordingly presented before the Maior the said B. cited the Maior two others to appeare personally before him in his Mannor and Chappell at Hoxne or Hoxstone in Suffolke The Maior and the one of the other two appearing and hauing nothing obiected but that presentment made were by the B. enioyned vpon paine of excommunication at the next court of the Kings to be holden in Thetford to call the same Iurours together and therepublikely to adnull and reuoke the said presentment as being against Gods Lawe so that saith the Record the B. did in an Ecclesiasticall Court iudge of the presentment being duely made in the Kings court and enioyned the reuoking and disanulling of it against the King his regalitie crowne c. wherevpon immediately the Bishop appeared and desired libertie of imparlance till monday next after and had it graunted vpon good mainprise c. On the prefixed monday the B. appeared againe and said he could not deny but that he was culpable in all the premisses put himselfe thereupon into the Kings hands c. so had iudgement to be from thenceforth out of the Kings protection and al his lands and tenements goods chattels to be forfeited to the King and that he should remaine in the custody of the Marshall quousque c. but presently vpon special grace of of the Court he was let to baile in a far lesse summe then afore for his appearance in Easter terme next after At what time hee appeared by his Atturney and both he and his pledges were discharged by vertue of an Act of Parliament made the same yeere Whereby wee may see that encroching vpon the Kings rights c. is not heere specially assigned for any cause of such iudgement and much lesse is the practising of any Canons or forreine made Lawes for they are not once mentioned and least of all that euery exceeding of their authoritie by any Court shoulde be a Praemunire For the originall and onely cause hereof was the B. enioyning of the Maior and of another townesman of Thetford vpon paine of censures to adnull and make voyde a presentment first duly made in a temporall Court of the Kings It is also to be noted out of the generall Atturneys bill in this Record where it is saide that presentments c. found or made in the Kings or in a subiects Court which is in any sort deriued from the Kings crowne must be tried there or in some of the Kings Courts and not in an ecclesiasticall Court that at this time Courts ecclesiasticall were not holden to be deriued any way from the Kings Crowne as no we they are and so bee acknowledged and indeede by conferring the times I finde that this fault of the Bishop was done in Nouember 24. H. 8. hee was attainted in Hilarie terme 25. H. 8. which is a yeere and more after and it was in a Parliament time that was continued till 30. Martij next aster Now the supremeheadship ouer the English Church was not yeelded vnto the King vntill the Parliament by prorogation holden the third of Nouember then next following viz. 26. H. 8. That which the Treatisour collecteth by Cardinall Wolseys Praemunire and the whole Cleargies also for assenting to and assisting the Court Legatiue which the saide Wolsey had erected hee himselfe doth sufficiently confute for albeit hee doe affirme that Wolsey was in a Praemunire for preiudicing but ecclesiasticall Courtes and not the Kings and thence gathereth thus How much more those which practise Antichristian Lawes and Popish Canons repugnant to the royall Matestie and policie of this laend yet doeth hee by implication contrary his owne
AN APOLOGIE FOR SVNDRIE PROCEEDINGS by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuersly by them impugned By which Apologie in their seuerall due places all the Reasons and Allegations set downe as well in a Treatise as in certaine Notes that goe from hand to hand both against proceeding ex Officio and against Oaths ministred to parties in causes criminall are also examined and answered Vpon that occasion lately reuiewed and much enlarged aboue the first priuate proiect and now published being diuided into three partes the first part whereof chieflie sheweth what matters be incident to Ecclesiasticall conisance and so allowed by Statutes and Common law the second treateth for the most part of the two wayes of proceeding in causes Criminal viz. by way of Accusation ex officio Iudicis the third concerneth Oaths in generall but more specially the lawfulnesse of such as be ministred touching supposed offenses either of themselues that sweare or of their brethren Respectiuelie submitted to the graue iudgements of the reuerend Iudges and other Sages of the Common lawe of Iudicious Professors of the Ciuill lawe and of the right reucrend Prelates and other grounded Diuines in this Realme Whereunto for the learneds sake and for similitude of Argument and Iudgement I haue presumed to adioine that right excellent and sound determination concerning Oaths which was made by M. LANCELOT ANDROVVES Doctor in Diuinitie in the common Diuinitie Schoole of the Uniuersitie of Cambridge in Iulie An. 1591. Lex iustitiae Iustitia Reipub. basis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie THE GENERALL Preface conteining the Occasion and generall distribution of this Treatise following before it was meant to make it publike THE indeuours of such disturbers as haue bene the chiefest staies of a further propagation of the Gospell and the onely staines of her Maiesties happie reformation haue rested most in aduancing a new found discipline in discrediting the present gouernement Ecclesiasticall by their speeches and writings The later whereof they haue gone about as well by impugning the callings and forme of gouernement Ecclesiasticall as if they were contrary to Gods word as also by defacing the persons of the Gouernours with vnchristian gibes contumelies and other indignities But these succeeding not to their wish nor sorting to that effect they purposed sundry of thē haue entred into pursued a more politike course for by thēselues others more simple excited cunningly by them they chalenge diuers receiued proceedings in Courts Ecclesiasticall not to bee iustifiable by lawe pretending now their especiall griefe to rest herein for that they are delt with and oppressed contrary to law euen as if they did carie a principall and zealous care to haue all her Maiesties lawes dulie obserued By whose frequent clamours some very graue wise and learned no way affected to their other fansies either not being well informed of proceedings Ecclesiasticall or not weying for want of leisure certain points seeming to bee doubtfully reported in the bookes of Common lawe so throughly as their great learning therein doeth affoord in a kind of commiseration for so I interprete it towards some of those who seeme distressed and to be otherwise well meaning men haue lately called into question diuers proceedings Ecclesiastical both for matter and for circumstance or maner that they are contrary to the lawes of this Realme Yet all of them doe not iumpe in the selfe same opinions hereafter touched For they are seuerally holden by seuerall men the most whereof are stood in by men of meanest place and reckoning in that studie and such as are knowen to bee ouermuch addicted to factious innouations But all the chalenges whatsoeuer for contrarietie vnto the lawes of the realme only so farre foorth as they are hitherto commen to knowledge may fitly be reduced into this order summe They tende to the chalenging of proceedings Ecclesiasticall done either by those who proceed by her Maiesties immediate Commission who are either Iudges delegates dealing in matters onely betwixt partie and partie brought before them by appellation or Commissioners in causes Ecclesiasticall seruing especially for punishing of crimes offences or els such as be executed by those who deale in ordinary iurisdiction The exceptions that touch the very matter and obiect of Ecclesiasticall iurisdiction do in very deed by necessarie consequence tend either to the whole taking away of the Ordinarie iurisdiction as where it is affirmed that no Canon constitution nor ordinance prouinciall whatsoeuer may now be put in vre without her Maiesties expresse assent first had to execute the same or els do reach to the taking of it away but in part Those opinions that tend to the abridging of it but in some part doe goe about it partly by way of excluding Ecclesiasticall Iudges from the handling of certeine matters as by holding that none Ordinarie may cite any whomesoeuer but in causes Testamentarie and Matrimoniall and that no Lay man ought to be cited or summoned to appeare before any Iudge Ecclesiasticall to take an oath in any other cause then Testamentarie or Matrimoniall And partly by deriuing them from the conisance Ecclesiasticall vnto other Courts as that the iudgement of heresie now lieth rather in the Common law then in the law Ecclesiasticall and some other of them being defended by the same men that holde the next precedent opinion doe tend both to the excluding of Courts Ecclesiasticall and to the diuerting of such causes another way as that nothing now can be adiudged heresie but according to the statute 1. Eliz. cap. 1. As for the exceptions pretended to be taken from the lawes of the Realme against the circumstances or maner of proceeding in courts Ecclesiasticall they do either concerne such points as goe afore and are preparatories to the suite such is this that the Queenes Maiestie cannot giue nor any man receiue authoritie to vse any other processe in matters Ecclesiasticall then by citation Or do touch the maner of entring into the suite as that an Ecclesiasticall Court may not proceed without accusation or presentment and that Lay men may not be cited ex officio in any cause but Testamentarie or Matrimoniall Or they concerne the maner of handling and proceeding in the suite as that If a matter be duely presented against a man he may not be examined vpon his oath whereunto some belike meaning to qualifie and distinguish it do adde this viz. in a matter of incontinencie or such cause and that no man is bound to declare any matter against another except some be an accuser Or do concerne the sentence or iudgement of the Court Ecclesiasticall as that by none Ecclesiasticall authoritie a man may be depriued of his benefice being his freeholde being not endited and no suite of partie offered against him Or els doe touch the execution of the iudgement as that the Q. Maiestie cannot giue nor any man may take authority of
me that it was otherwise fully meant to put mine aforesaide rawe discourse of these matters euen as it was vnto print againe to bee made publike Whereupon knowing this resolution and that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 might perhappes be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I condescended to assaye whether I coulde as it were licke ouer my discourse againe into any more tolerable fashion not omitting withall to answere the whole matter of the aforesaid Treatise seeming to me any way pertinent yet not in the same order as it is there set downe but in seuerall places of my booke as it falleth in most aptly after the method into which I had first plotted it Of which whole Treatise I trust I may without offense giue you a generall taste by this Epistle Truely I neither doe knowe nor haue heard who were any of the Authors or who was the Enditer of it If therefore it should happen that I did vse some measure though farre scanted of that libertie of speeche which is vppe-mette pressed downe and running ouer in the Treatisour against many in place I doubt not his betters and of as great woorth and sufficiencie as himselfe euery way I hope that I shall not iustly be noted to be caried with sharpnesse of humour against any particular person but to haue beene prouoked vnto a moderate necessary and generall defence Albeit I purpose rather to waye what is fitte for vs to speake then for him to heare Vnto the whole matter of the Treatise these three seuerall pointes might haue sufficed for a generall answere The first is that the state of the controuersie or issue is by him mistaken the second concerneth his arguments for he assumeth that as graunted which is not which in the schooles is called a fallacie petitionis principij the last and third is his sophisticall answering euen to such obiections as him selfe frameth For the first therefore yee are to vnderstand that in the Treatise it selfe this seemeth to be the generall issue by him tendered against which he would argue viz. the forcing of oathes by Ordinaries and Iudges Ecclesiasticall generally to answere to all such questions or interrogatories as they shall demaund or minister touching either the thoughts words or deedes of him that is to depose Vnto which in the title is also added another challenge for that they are ministred of office by the Iudges So that he conceiueth erroniously all proceeding of office to be onely in causes Criminall and in this respect alone worthie to bee chalenged because it is done by the Iudge without prosecution of a partie Nowe if hee doe reason as hee pretendeth against some matter practiced by Iudges and lawes Ecclesiasticall in this Realme then by charging them with exacting of oathes for men generally to answere vnto all their thoughtes wordes and deedes that they shall be enquired of that I speake but mildely it is a very vntrue and slanderous imputation both to the men and to the Lawe it selfe If it were mistaken by him through ignorance yet was it ouer great rashnesse thus to speake euill of such as be in 1 Iudae ep V. 8. 9. authoritie especially for matters hee perfectly knoweth not But if it were wilfully done then must I needs say that he peruerted and wrested the matter in controuersie of set purpose to make the men and whole calling odious and thereby to giue the better tang in some mens tastes vnto those Cart-loads of contumelies and spitefull 2 The Latines call this calumniam the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 reproches wherewith throughout the whole Treatise it pleaseth him to charge both them and their proceedings as in part shall by and by appeare For the seconde point of the three hee first defineth an oathe then hee sayeth it is a part of Gods worship hee telleth the ende and institution of oathes by Gods Lawe and that they are either priuate or publicke hee sheweth the necessitie of it in some priuate suites and what things are to be obserued by him that taketh it and what by the Magistrate that giueth it likewise hee setteth downe yet but in part certaine cases how an oathe is vsed in some Temporall Courts and how it ought to be vsed as he saith by the Canon Law All which I will not greatly now trauerse with him But hereupon hee inferreth that the oathes ex Officio vsed in Ecclesiastical Courts are against Gods Lawe Common Lawe and the Canon Lawe it selfe So that if he minde to reason out of those premisses it must needes be gathered for him to this effect viz. In the Law of God in the Common and Canon Lawes we finde oathes thus and thus prescribed and vsed But the oathes ministred in Courtes Ecclesiasticall touching matters Criminal are cōtrary to this prescription and vse Ergo. They are contrary to those three Lawes I will omit that this reason concludeth not necessarily being ex meris particularibus because it might bee that though sundry othes by those three Lawes were in deede of such forme neuerthelesse other there may be also farre different and yet both sorts allowable But for answere I say that the Assumption or second proposition which must be vnderstoode is by the Treatiser not once mentioned much lesse vndertaken to be proued but is taken vp by him as graunted which in trueth is flatly by vs denied For it shall bee prooued God willing that there is no such contrarietie as is by him surmised no nor great diuersitie betwixt the othes there ministred and those which Scripture mentioneth or Common Lawe practiseth Now touching the last point of the three Hee maketh it as a sufficient answere vnto obiections that may be made for assertion of such othes as hee impugneth if hee can but note any difference betwixt the things resembled together though such diuersitie bee not in the point for which the comparison is made no nor in any other point that is materiall As for example If a man affirme that Christes second comming may bee compared to the comming of a thiefe in the night meaning for the secresie thereof and want of expectation should hee well confute this comparison that woulde thus say No Sir that is vntrue for there is a great diuersitie betwixt their commings because Christ commeth to deale iustly but a thiefe to doe vniustly But to come neerer home If I did argue thus viz. The receiued vse of the Starre-Chamber to deny men counsell when they answere to Interrogatories is not against the Rules of Iustice therefore no cause is there why the like approoued vse in the Chauncerie should be counted against Iustice I pray ye should he reason soundly against it that would answere it in this sort Oh Sir there is a great diuersitie betwixt those two Courtes for the one proceedeth Criminallie to inflict penalties for the Queene the other but Ciuillie for priuate amendes in equitie vnto the partie Or if hee shoulde answere thus The Lordes of the Counsell bee Iudges in the one
whereof hee maketh some doubt as it seemeth and aduiseth them of this danger as a 1 Scilicet welwiller that it is playne extortion and wrong vnto the partie And lastlie that they are all offenders and doe incurre the forfaiture of the penall lawes of Premunire Seeing then his wordes of this matter bee so bigge his termes so biting his speeches so confident and peremptorie and his accusations so grieuous Is there not in defence of Iustice and of so many good and great learned men in seuerall professions great occasion offered to haue it examined whether the force and weight of his reasons will beare out this copious haruest and hote raging feuer of wordes or whether these wordes were but vsed because matter wanted What weight and moment his reasons are of is not of this place particularlie to discusse but shall bee reserued to the seuerall partes of the Discourse following And I will not striue by bare wordes to returne these of-scowrings of a fowle mouth and a defiled penne vpon him agayne further then must needes cleaue fast to himselfe the Authour of them when they shall by reason bee wiped off from the persons charged and so are to rebound backe vpon their first owner And to giue you an inckling in the meane time that it is not otherwise like then to fall out so It shall not bee amisse a little to consider how gingerlie sometimes hee treadeth in this matter and how here and there himselfe minceth and qualifieth the state of the controuersie as it were waiuing his first issue notwithstanding all those his former high lookes and braue termes For first he granteth that diuers euen of the learned sort doe hold and that verie confidently meaning hereby as I take it sundrie professors of the Common lawe that these proceedings which he impugneth are warranted by the Statute 1. Eliz. cap. 1. and can he whosoeuer he be for a man shewing no more yet see more herein then so many of the learned sort can that be of an other iudgement And though he exclaime as yee haue heard mightilie that this kind of oath is contrarie and a stranger to the lawes Iustice and policie of this Realme yet in the verie closing vp of his treatise hauing sayd that it was neuer put in vre or vse by any Ciuill magistrate of this land by the strength of trueth is forced to adde thereunto this exception viz. but as it is corruptly crept in amongst other abuses by the sinister practises and pretenses of the Romish prelates thereby imploying that yet it hath bene vsed of long time by the Ciuill policie and magistrates of this Realme noting them withall I know not with what other abuses as being ouerrought which belike they also shall heare of as his leisure will permit him if they please him not in the meane time the better Likewise going about to answere the obiection that may be made for iustifying of this othe by the like approoued course in the Starre-chamber he vseth these wordes as a reason of his allowance of such proceeding there viz. The Starre-chamber requireth an answere to matter in fact done either to the iniurie of a priuate person or hurt to the publike State Then by like reason if Iudges and Commissioners Ecclesiasticall shall but require this oath to answere matter in facte as in very trueth they doe none otherwise done to the hurt of the publike State then is the cause in controuersie thus farre yeelded vp by him But can he in deed thinke it reasonable and iust to exact such oath for punishment of an iniurie done but to a priuate person in his temporall goods or such like and shall it bee in his iudgement vniust and vnreasonable to be exacted for discouerie and restraint of such enormities which cannot be denied to be preiudiciall both to the state of the Church Common weale wherein Iudges Ecclesiasticall most vsually doe practise it Vltrà non desidero habemus quasi confitentem reum In another place of the Treatise he sharpely inueieth for that the Commissioners Ecclesiasticall minister the oath before the partie be permitted to haue the Articles Now in his shewing of differences betwixt the proceedings by Commissioners ecclesiasticall and the Starre-chamber one of them is this that the defendant there hath the copie of the bill of Information to answere by his counsell ere hee take his othe for the trueth of it yet hee restraineth it thus viz. So the Information in the Starre-chamber bee not made Oretenus so that it must hereupon needes be yeelded that at sometime and vpon some occasion it may bee and therefore it is not simplie vniust to giue the oath before the defendant haue a copie nor for him to be debarred from counsell when he answereth but interrogatories of his owne fact or knowledge For in deed the defendant in the Starre-chamber is not allowed counsel whē he answereth to Interrogatories sorted into Articles but only is allowed counsel for the maner of framing of his answere to the Bill into due forme of law the Counseller not aduising him in the matters of fact least happily he draw the defendant into periurie For it were very vnreasonable that counsell should direct him in the matter and as it were to say vnto him answere not this thus though it be true for then you are like to be grieuouslie punished Nay rather as a writer in the Ciuill law aduiseth the counsell euen to the bill of Information ought to tell the defendant to this effect Si hoc modo respondeas perdes quidem causam sed si aliter quà m veritas se habet perdes animam Furthermore in one place where he reprehendeth forced and constrained oaths hee limiteth his meaning by these words viz. in that generall maner which is as afore he had surmised viz. to sift generally all a mans thoughts words and deeds and that without any accusation or complaint precedent so that it is not simply the vrging of them to take oath in a criminall cause which grieues him or is to be condemned but to doe it in that generall maner for all thoughts wordes and deeds If then no such matter be in very trueth euer practised the man it seemeth will easilie bee reconciled againe vnto them whom hee so eagerlie afore snatched at and tooke vp Lastly in one part of the Treatise hee speaketh in deed against oaths in criminall causes but it is with this taxatiue restraint especiallie saieth he in causes of life and death contrarie to the lawes of this realme so that if it be not ministred in any cause of life and death no nor yet in any cause of mutilation of limme as in very trueth it is not now by any court ecclesiastical a thing most notorious then there is no cause of offense giuen either to the lawes of the realme or vnto himself And therfore for this time the Treatiser and those which exercise Iurisdiction ecclesiasticall may seeme in some broken maner to bee growen
with doe not stand against it and such for the most part are Institutions probate of Wils and committing of administrations visitations Certificats of Bishops into the Q. Courts ordeining of Reall compositions in matters ecclesiasticall c. But something must here be said touching certificats of Bishops because none so fit a place hereafter doth fal out for this matter A little Treatise set out in the time of King Henry the eight and printed by Berthelet cum priuilegio prouing that by the lawes of this Realme the B. of Rome had not ne ought euer to haue had any supremacie here doeth 1 Cap. 1. thus write of these certificates If saith he Excommunication Bastardy Bigamie Deposition or Deraignement of a religious person or Diuorce be certified by a Bishop of this Realme it is admitted in the Kings Courtes but the Popes certificate is not admitted And as certificates of Bishops be in these cases admitted at the common lawe so haue sundry statutes since authorised their Certificates duely made into the Queenes Courtes in certaine other cases Neuerthelesse I finde two cases in the said Treatise where the Certificate of a mans excommunication from a Bishop shall not disable the partie excommunicated from his action as regularly excommunication doth when it is duely certified For first 2 Ibidem ca 4. if a Bishop be a partie to a suite and doe excommunicate his aduersarie such excommunication though it be certified doeth not disable his aduersary in his action Secondly 3 Ibidem where an action of debt was brought by an executour and an excommunication vnder a Bishops seale was pleaded against such executour this was adiudged no good plea because the executour was not to recouer any thing to his owne vse and for this there is alledged 14. and 21. Hen. 6. But if this were the onely ground and reason of such iudgement then where this reason is not found true in facte as it may often happen if the goodes and chattels be great the debtes and legacies small and where the executour hath clausulam de residuis by the will viz. all the remnant of the goodes and chattels bequeathed to him it woulde seeme to me vnder correction that in such a different case the lawe also should be otherwise because much commeth to the executours owne vse in particular This certificate of excōmunication by Bishops of all the others is most in vse and would be of more vse to the great cōmoditie of her Maiestie especially vpon the statute de excom capiendo and to the terrour of sundry malefactors were it not for the chargeablenes of that course vnto Ordinaries whom the tenth man that is certified doeth not satisfie againe and for the manifolde abuses about the execution of that writte committed by vnder officers and were it not that iura libertates the lawes or rightes and liberties of holy Church graunted and confirmed by the great Charter are not so inuiolably in these dayes mainteined as was meant by 1 15. Ed. 3. ca. 3. those actes of Parliament which doe exacte othes for obseruation and defence of them It is a libertie peculiar to this Church of England aboue all the Realmes in Christendome that I reade of that if a man stande wilfully fourtie dayes together excommunicate and be accordingly 2 Nota interlin pag. Regist. 65. b. certified by the Bishop into the Chauncery that then he is to be committed to prison by vertue of a writ directed to the Sherife Notwithstanding that in one precedent in the Register of this writ it 3 Regist. in breu original pag. 68. a. is said quòd huiusmodi breue nostrum de gratia nostra procedat For a note in the same booke vpon the same worde vsed in another writte doth teache vs that such clause is but vsed pro honore regio etiamsiad id de iure teneatur And it appeareth by sundrie olde precedents of writtes there that the graunting of this writ is by lawe required as where in a writ de excommunicato capiendo 4 Reg. in br orig pag. 65. it is said quòd potestas regia sacrosanctae ecclesiae in suis querelis deesse non debet And in sundry other writtes of that kinde it is 5 Ibid. pag. 66. a. b. 68. a. 69. b. 65. b. affirmed to bee secundum consuetudinem Angliae which is the Common lawe of this Realme And therefore in other precedents of the same writte the King saith 6 Ibid. pag. 69. a. thus Nolumus quod libertas ecclesiastica per nos vel ministros nostros quoscumque aliqualiter violetur And againe 7 Ibidem Iura libertates ecclesiasticas illaesa volentes in omnibus obseruari In these Certificates the Bishops and others hauing in some cases authoritie to certifie as the Chauncellour of Oxford the Custos Spiritualitatis of a vacant See and the Bishops Officiall and vicar generall ipso in remotis agente that they make none errour must remember to obserue these three things First that it be 8 Noua nat breu pag. 64. f. expressed therein that the partie against whom they doe certifie is excommunicated maiori excommunicatione because for the lesser excommunication as happely for companying with an excommunicate person a man shal not be imprisoned Secondly that 9 Ibidem it be certified that he was by name and particularly so excommunicated and not in grosse in companie of a multitude as was often done in elder times or indefinitely and in generalitie as when the BB. excommunicated all whosoeuer should violate any part of the great charter For that excommunication saith Fitzherbert in that place must growe vpon a speciall suite against a man either ex officio or by a partie whereupon a Significauit may be grounded Thirdly 1 Reg. in bre orig pag 69. b. notainterlin pag. 65. b. if any inferiour officer vnder the Bishop or his Archdeacon did excommunicate the partie certified yet must the Bishops Certificate runne that it was done nostra autoritate ordinaria But that the expressing in the certificate of a particular cause of the excommunication is at the Common lawe of necessitie required I cannot gather out of any place of the Register or of Fitzherberts Natura Breuium It is true that when the proceeding is vpon any of the tenne crimes mentioned 2 5. Eliz. ca. 23. in the statute made for that purpose the particular originall cause must be expressed in the certificate Neuerthelesse when the proceeding is vpon any other crime ef ecclesiastical conisance orin matters testamentary matrimonial or for tithes c. whether moued of office or at the instance of the partie therethe Common lawe as it was afore is reteined Nowe I finde precedents of these writtes in the Register wherein no particular originall cause but onely generall be expressed which as in other certificates of Bishops as touching bastardy c. the Court beleeueth without further trauerse or examination namely
in sundry precedents of this kinde of writtes is onely conteyned 3 Reg. in br orig pag. 65. a. 66. a. 69. a. that the partie was excoÌ„municated propter suam manifestam contumaciam but what was the cause originall of his conuenting out of which such contumacie grewe is not at all declared and yet the certificates were allowed to be good in lawe Likewise in another precedent of the same writ though some more particularitie be founde yet is it left so generally as the certaine and speciall cause cannot thereby be knowen vnto the Court to which it is directed For it is 4 Ibid. pag. 65. b. certified that a partie was excommunicated propter suam manifestam contumaciam in non parendo certis mandatis licitis sibi factis but what those mandata were is not touched And as these Certificates doe only in generality mention the parties contumacies and disobediences so is there also a precedent there of crimes themselues certified but in a generality whereupon a writ of excommunicaâ—…o capiendo was neuerthelesse awarded For it is 1 Ibid. pag. 66. b. testified that a Clerke excommunicated propter manifestas offensas suas was appointed to be attached and thereupon imprisoned Notwithstanding this be a speciall right and libertie of this Church of England yet is not this writte de excommunicato capiendo alwayes to goe foorth and vpon euery certificate whatsoeuer of a Bishop or of other thereunto authorised albeit the certificate be contriued into neuer so due forme For if he 2 Reg. in breu orig pag. 67. b. in breu Iudic. pag. 39. 71. b. 72. 〈◊〉 s. that did excommunicate be himselfe for some supposed contempt to be attached at the suite of the partie certified then shall the execution of the attaching of the partie excommunicated be respited till the other plea of the Ordinaries attaching be determined least otherwise the parties suite against the Ordinarie should be hindered by his imprisonment Yet it is 3 Nou. nat br pag. 64. 65. f. to be vnderstoode that a Bishop shall haue Significauit vpon his owne certificat touching an excommunication for contumacie incurred euen in his predecessours time But albeit the certificate be duely made and the writte de excommunicato capiendo be thereupon awarded foorth yet if there be loose or corrupt execution thereof by the Sherife or by his vnder officers both the endeuour of the Bishop and care of the Queene to haue contemptuous persons iusticed are wholy frustrated Though this carelesnesse in times past were not so common as nowe it is yet it 4 Reg. in br orig pag. 65. a. seemeth by the Aliâs and Pluriès in the Register that Sherifes and their vnder officers were then also slacke ynough to perfourme this part of their duetie howbeit it is testified by the Kings writ in this behalfe 5 Ibid. pag. 65. b. that the vndue execution of it redoundeth in contemptum manifestum regis episcopi damnum non modicum grauamen ac iuris Ecclesiae suaelaesionem manifestam In which regard such a negligent Sherife is by lawe vpon a writ to be called into the Court whence the writ issued there to answere such his contempt The effect of the writ de excommunicato capiendo when he hath his due course and execution is double First vpon the very certificate of the Bishop the partie excommunicated is to be debarred action in all the Queenes Courts Yet if vpon an 1 Nou. nat br pag. 65. d. appellation by him made from the sentence of excommunication he be deliuered out of prison or haue a Supersedeas thereupon then is he not to be barred from action in respect of such certificate or of the sentence of excommunication Secondly the 2 Reg. in br orig pag. 65. a. b. partie is to be imprisoned by his body Per corpus suum secundum consuetudinem Angliae iusticies donec c. This iusticing by body according to the custome of England is committing to prison and that 3 Westm. 13. Ed. 1. cap. 15. 5. Eliz. cap 23. without baile or mainprise Nither 4 Nou. nat br pag. 66. e. doth the writ de homine replegiando lie in this case Now a man being thus in prison I finde in law but two meanes of his deliuery The first is by submitting himselfe to the bishop This submission may be in two sorts either by present satisfaction at or immediately vpon his deliuery or by caution put in that he will hereafter performe it Quia vicecomes saith a 5 Regi in br orig pag. 67. a. writ in the Register nulla inde facta satisfactione aut praestita cautione prout moris est de parendo mandatis ecclesiae in forma iuris quosdam deliberauit idcirco c. where we also see to what end the caution by the party excommunicate must be put in agreeably to sundry 6 Ibid. pag. 65. b bis 66. b. 67. a other precedents of this writ viz. de parendo mandatis ecclesiae in forma iuris Which is to performe that which the bishop shall reasonably and according to law enioyne vnto him For it was thought most inconuenient that he who had resisted the course of law contumaciously persisted in excommunication vntill his imprisonment should now be trusted without good security first giuen afore his deliuery This clause of those writs in the Register Fitzherbert 7 Nou. nat br pag. 63. c. doth translate thus into French viz. de estoier obeier les ordinances rules de seint esglise Vnder the clause in formaiuris is that other part of submission conteined which is prescribed by the law ecclesiasticall in this case of submission and of giuing caution viz. de parendo iuri This appeareth by that writ in the 8 Reg in br orig pag. 66. b. 67. a Register where a clerke imprisoned vpon the significauit offered caution to his ordinary the bishop of Elie de parendo iuri but yet could not thereupon alone be deliuered for that he expresly refused to satisfie tam de iniuria ecclesiae illata quà m de contemptu as the writ required This forme de contemptu iniuria is not only here but in 9 Reg. in br orig pag. 65. a. b. 68. a. other precedents also of this writ obserued as they be recorded in the Register And in another writ by words more generall yet tending to the same purpose viz. 1 Ibidem 65. b. ad satisfaciendum Deo sanctae ecclesiae sufficientem exposuit cautionem To satisfie God viz. for his continued contempt of the keies power of his church and to satisfie the church aswell for the euill example and scandall giuen as for the needlesse charges that he had put the officers vnto to bring him to conformity For it seemeth when a caution was put in onely thus de parendo iuri mandatis ecclesiae in forma iuris that by reason of the generall
If the shiriffe be too forward so that the bishop feareth that he will deliuer the 7 Nou. nat br pag. 63. 64. h. Reg. pag. 66. b. 67. prisoner by coulour of some writte without taking such caution as may be iudged sufficient then may the bishop purchase a writ to the shiriffe that in no case the prisoner be deliuered except in his presence he offer to the bishop cautionem saltem pignoratitiam at the least a gage or reall caution de satiffaciendo c. But if the Shiriffe shall in deede deliuer him out of prison without such sufficient caution which in the 1 Reg. p. 67. a. Nou. nat br pag. 64. b. Register is thus expressed nulla inde facta satisfactione aut praestita cautione prout moris est de parendo mandatis Ecclesiae in forma iuris then must a Writ goe foorth out of the Chancerie for the new attaching of the prisoner conteining also a Venire facias for the Shiriffe that hee doe appeare and answere his contempt For such his dealing is there sayd to be In laesionem libertatis ecclesiae contemptum manifestum regis Thus much touching the first meanes of deliuerance of a person excommunicated out of prison The other meane for deliuerance of such excommunicate person out of prison is when hee hath appealed to a superiour ecclesiasticall Iudge from the sentence of excommunication giuen against him as vniust or as voyde and erroneous For if hee rest in the sentence giuen then must hee needs submit himselfe and offer caution as afore is sayd But if hee holde himselfe to bee vniustlie delt with and therefore will not submit then ought he not to be enlarged out of prison but vpon Appellation made to the superiour Ecclesiasticall Iudge who is the onely competent and able Iudge in that behalfe to determine whether hee haue bene duelie proceeded with and rightfully excommunicated Iuxta canonicas sanctiones or not as 2 Reg. pag. 69. b. 70. a b. Nou. nat br pag. 64. c. appeareth by sundrie of these Writtes in the Register and otherwise The reasons why such one is not to bee detained in prison that hath appealed from the sentence of excommunication are first because vpon the Appellation the Iudge from whom it was made doeth thereby cease to bee his Iudge in that cause Secondlie for 3 Ibid. pag. 68. a. that the nature of an appellation is to put the Appellant into the same state that he was in before the sentence giuen for the doubtfulnesse that is in the meane time of the validitie or inualiditie of it Thirdlie by reason that where the presence of the Iudge to whom the Appellation is made may be had there the partie Appellant is for the time vsuallie absolued and released from the excommunication Lastlie least by his imprisonment hee bee hindered from the effectuall prosecution of his Appeale which may happen prooue to haue bene iust If allegation bee made to the court in his behalfe against whom the Writte de excommunicato capiendo is awarded and gone foorth that he hath appealed and yet it doe not authenticallie so appeare by publike instrument there shewed yea for the most part euen where such publike instrument hath bene shewed a 1 Reg. 69. b. 70. a. b. Nou. nat br pag. 65. b. c. Writte of Scire fasias first goeth foorth to the Shiriffe that he doe 2 Reg. pag. 70. b. warne the Bishop and him who did prosecute the partie imprisoned to come into the court and there to shew cause why the Shiriffe should not surcease from attaching him or deliuer him if he be afore in prison whiles the matter of the Appellation dependeth In the same Writ also for the most part is conteined that the partie if hee bee taken either shall bee brought 3 Reg. pag. 69. 70. Nou. nat br pag. 65. c. vp into the Chancerie vnder sure and safe gard or else shall find sufficient mainpernors that shall vndertake for him bodie for bodie for his personall apparance in court at the day prefixed also that he shall prosecute his Appeale and that hee shall receiue and endure what the court shall thinke good to order him vnto yea 4 Reg. pag. 70. b. that his mainpernours shall safely euen redeliuer him againe to the prison where he was if it shal happen that the court shall so order it Now if the Bishop when the proceeding was of Office or the partie at whose instance it was doe 5 Reg. pag. 70. a. not come vpon the Scire facias serued at the day prefixed or at furthest quarto die pòst vnto which day the custome of the Chancerie is to continue the Processe thē is the partie to be deliuered out of prison so that it doe first appeare by publike instrument that he hath in deed appealed But if the Bishop 6 Reg. pag. 70. b. Nat. br pag. 65. e. and hee that prosecuted either by themselues or by their Attorney doe come at the day prefixed and hee that was imprisoned or his mainepernours doe not come then a Writ for the reattachment of the excommunicated person goeth foorth to imprison him vntill hee satisfie tam de contemptu quà m de iniuria ecclesiae illata And likewise an Attachment for his mainpernours to be brought into the court to satisfie the King the Bishop and him that prosecuted and to receiue what the court shall further consider And this course of Scire facias before the partie be deliuered doth seeme chieflie to be obserued when there may be doubt made that some cause may be alleaged by those who haue interest why hee should not be deliuered If no such doubt may be made and when by very 1 Nou. nat br pag. 64. e. authenticall publike instruments shewed foorth in court his appellation euidently appeareth there sometimes without any Scire facias first awarded a Supersedeas is directed foorth vnto the Shiriffe 2 Ibid. Nota interlin in Reg. pag. 68. b. Neuerthelesse in this case the partie must within the yeere of his Appeale by witnesses or othe prooue his diligence in prosecuting his Appeale with effect For there are precedents of such Writs in the Register where no Scire facias before the Supersedeas went foorth for any thing that there appeareth viz. Quia C. appellauit A. 3 Reg. pag. 68. a. 69. a. b. Nou. nat br pag. 64. e. sententia excommunicationis tanquam ab iniqua prosequitur appellationem cum effectu proutper instrumenta publica apparet nos nolentes quòd praefato C. per praedictum breue nostrum via praecludatur quominus dictae appellationis suae negotium prosequi possit in forma iuris c. maximè cùm appellantium status debet esse integer ideo pendente appellatione supersedeas c. And thus farre of the second means of deliuering an excommunicated person out of prison But mo or other means then these two for
from his benefice sequestration of a benefice interdiction of some place from hauing seruice or sacraments there administred interdiction of some certaine acte as not to marry whiles a suite matrimoniall dependeth and excommunication the lesse and the greater I doe also finde in writers of the Ciuil and Ecclesiasticall lawes certeine offences affirmed to be of ecclesiasticall conusance which may seeme euen in this Realme to be such albeit I doe not expresly reade them to be so accounted in statutes or reportes of the Common lawes As for violation or perturbation of liberties ecclesiasticall for admitting of excommunicated persons vnto Quaere of these two first named see for the first Lyndwood e. oecernae de poenis verbo regis Angliae action or testimonie in a temporall Court forging of letters and matters ecclesiasticall as testimonials for ordeining c. or vsing and putting them in practice wittingly burying excommunicate persons or notorious heretikes in the vsuall places of good Christians abbettours and voluntary company keepers with persons excommunicate and diggers vp of corpses buried CHAP. III. That matters in the former Chapter adioyned to testamentarie and matrimoniall causes though properly they be not of testament or matrimonie are of ecclesiasticall conusance and howe farre TOuching such as I haue adioyned for necerenesse of qualitie vnto matters testamentarie First a mans last will whereby legacies be giuen but none is therein made executour cannot be called a testament The like is to be said of a codicill and a legacie though it be giuen by testament yet may it also be giuen by such a last will and can in neither case be properly called a matter testamentary because it is but Delibatio haereditatis or successio particularis And by suite for a legacie neither the testament commeth directly and principally to be proued nor yet to be impugned But much lesse may administrations and letters ad colligendum be properly accounted matters testamentarie because they are committed when a man dieth intestate or per viam intestati Besides that the course of graunting administrations was not at the common law but came in by statute long after this writte of Prohibition 31. Ed. 3. cap. 11. whence this controuersie springeth is pretended to haue beene framed As for diuorce which by like reason I ioyned with matters of matrimonie because it tendeth to the ouerthrowe and dissolution of marriage it cannot be termed properly a matter of matrimonie though no man can be diuorced but he which hath beene married no more then blindnesse may be called seeing for that nothing can truely and properly be said to be blind but such as either once did see or by nature of the thing should haue eyes Priuatio enins praesupponit habitum This appeareth also by 24. H. 8. ca. 12. a statute where diuorce is contrediuided and reckoned as a diuers suite from a cause of matrimonie Likewise iactitation of marriage because it tendeth by the intention of him that bringeth the suite to be cleered of a matrimonie or contract matrimoniall that is pretended by the other partie it can no more properly then the former be called a matter of matrimonie As for goods or chattels that are promised with a womā in marriage who seeth not that it is a meere circumstance nothing touching the validitie or inualiditie of a matrimonie yet neuerthelesse I take it no man is so wedded to his opinion that he will deny the conisance of these matters to belong to the Ecclesiastiall iurisdiction aswell as causes properly termed testamentary or matrimoniall But I purpose to make the matter a litle more plaine and withall to shewe aswell when and howe some matters testamentary themselues as the rest annexed to testamentary or matrimonial causes which I finde touched in the lawes of the realme doe belong to the conisance of an ecclesiasticall Court when and howe vnto a temporall Court beginning first with testaments 1 M. 2. H. 3. Fitz. testa 4. These are to be proued before Ordinaries sauing in certaine places where the lord in his temporall Court by custome prooues the testaments of his tenants The Canon lawe doeth not permit an Ecclesiasticall person to declare his will and to dispose of such goodes as he hath gotten by reason of his ecclesiasticall promotions as he liste but they must be left to that Church by which he gotte them But 2 Treatise of Const. prou legatine printed by Thomas Godfrey tempore H. 8. cap. 13. the lawe of this Realme is that Clerkes may make their willes as liberally and freely as any Lay man may and that though they haue them for their spirituall ministration And therefore by reason of this contradiction and repugnancie to the Common lawe such Canons are here of no force nor in practice Touching executours it is sometimes to be determined by the Common lawe in what cases and who may be made an executour for a 3 T. 12. H. 7. sol 22. woman by the Common lawe may make her husband executour of such things whereof she was executour to another before or of a duetie due vnto her before co◅erture or of rent being behinde vpon a lease made vnto her for terme of life or of a lease or of any thing whereof the possession must be attained by action but she cannot make him executour of that which she hath in possession for by the very entermariage the propertie is in her husband albeit by the Spirituall law aswell in the one case as in the other she may make her husband executour which saith Tremayle and Frowicke whether it be their law or no is not to be disputed by the Common law because we are ignorant and cannot iudge what is their lawe And if a man 4 T. 12. H. 7. be cōdemned in costs in a court ecclesiastical after die making an executour by the opinion of King smell it is as good reason to sue the executour in a spirituall cause according to the Spirituall Lawe as to sue him for a temporall matter in the Temporall Lawe Else saith he when an amends is adiudged in a Spirituall court and the partie dieth the ether shoulde be without remedy which were no reason and none did gainsay it But a 1 H. 6. H. 3. referente Fitzh tit prohib 17. man may not sue an executour in a Spirituall Court for the testators debt albeit if the testator enioyne the executor to pay the debt to him hee may then sue for it in Court Spirituall because of the iniunction and promise And this sheweth how an Executor may be sued or not sued in an Ecclesiasticall Court Now an Executor may sue another in a Spirituall Court touching his testatours goods in this case viz. If a 2 T. 4. H. 3 referente Fitzh tit prohib nu man deuise or bequeath corne growing or goods vnto one and a stranger will not suffer the executor to performe the testament for this legacie he shall sue the stranger
for it in a Spirituall Court But if a man take from the executors goods bequeathed for this the executor must vse his action of trespasse and not sue in the Spirituall Court for 3 2. R. 3. 17. executours can not sue for the goods of their testatour in a Court Ecclesiasticall but at the Common Lawe If 4 T. 18. Ed. 2. testa 6. a testament beare date at Cane in Normandie and be prooued in England the executour may vpon such testament haue action Of legacies or deuises it will be sufficient to touch a few points In the books of the Common Law it is set downe that they 5 37. H. 6. pag. 9. shal be recouered in a Spirituall Court and not in a Court Temporall Therefore 6 H. 8. H. 3. ex Fitzh tit prohib 19. if a termor of certaine land bequeath his croppe and die the Spirituall Court shall hold plea thereof Likewise 7 46. E. 3. fol. 32. where one sued in Court Christian for goods deuised by testament which another claimed by deede of gift and thereupon brought a prohibition and shewed the deed of gift and alledged withall that the defendant was neither executor nor administrator yet because it was by name of a legacie it was adiudged to belong to the Spiritual court by which it was to be determined and the circumstances to be tried whether the deuise were good or not And in respect a man hath such action against the executor for a legacie before the Ecclesiasticall Iudge therefore the 8 M. 20. E. 4. 9. legatarie or deuisee may not of his owne head take the goods or chattels deuised to himselfe out of the possession of the executour And for this also especially because 9 T. 2. H. 6. 15. the Lawe doeth not binde that the legacies shall be assigned payed or deliuered untill the debts of the testatour be satisfied and payed But because 1 Bracton lib. 5. cap. 16. a franke tenement or inheritance deuised is not demaundable in an Ecclesiasticall Court but in the Temporall therefore the 2 Perkins tit deuises legatarie according to the deuise without further assignment or deliuerie may enter into them after the death of the testatour If a man 3 Reg. in br orig pag. 48. b. by his testament do bequeath goods to the fabricke of a Church for this legacie the executors may be sued in court Ecclesiasticall Also if 4 Liberties of the Clergie by the Lawes of the Realme by Iohn Gooddall Printed by Rob. Wier tempore Hen. 8. wardship or chattels reall as a lease be bequeathed by will a man may sue for them in the Court Ecclesiasticall but not so for lands deuised If a 5 Ibidem testatour by his testament doth charge his executors to pay his debts the creditours in respect of such charge may sue for them in the Court Ecclesiasticall When a 6 Ibidem man as I doe interprete it being executour or legatary and so enioyned by will doth refuse to collate or erect a Grammer Schoole and is therefore sued in a Court Ecclesiasticall if he purchase a prohibition the other partie shall haue a consultation Touching committing of administrations by the very statute whereby they were established it is enacted that 7 31. Ed. 3. ca. 11. where a man dieth intestate the Ordinaries shall depute the next and most lawfull friends of the dead person intestate to administer his goods which deputies as they haue action against others in the Kings Court for to recouer the debts owing to the dead so in that Court there lieth action against them for such as the dead did owe but they are made accountable to the Ordinaries as executours be in the case of testament c. And 8 36. H. 6. 31. referente Perk. tit testa when such letters of administration be shewed vnder the Ordinaries seale or when a testament is so shewed a man hath no direct trauerse against it in the Temporall Court That to sequester the goods of an intestate cōmonly called letters ad colligendum belongeth to the Ordinary appeareth by this case If an 9 7. H. 4. 18. Ordinary sequester the goods of an intestate to another man and a third disturbeth here the Ordinary hath an action of trespasse at the Common law though the sequestration be a spiritual acte because he had possession yet he cannot haue an action of debt albeit actions of debt in this case runne against him But if the Ordinary do sequester the goods ex officio or for any contumacie which giueth no possession to him there the Spirituall Court shall haue iurisdiction That diuorces are of Spirituall iurisdiction is apparant by many bookes at the Common Lawe needlesse to be rehearsed but whereas prohibition 1 12. H. 7. 24. lay in Corbets case vpon a suite brought in the Spiritual court to repeale a diuorce and cōsequently to make the issue of the second wife bastards whereupon no Consultation would be graunted which may therefore seeme to make this point doubtful it was not for that the Court Ecclesiasticall might not hold plea of diuorces but the prohibition lay because the title and discent were comprised in the libell and this was agreed to be the cause by the Court and so it is 2 Brooke tit prohib nu 9. reported by Brooke And if a man giue goods in 3 T. 13. H. 3. referente Fitzh tit Prohib nu 21. mariage with a woman vnto the husband if they be afterward diuorced it was holden that the woman diuorced may wel sue for those goods in Court Christian. But if any further doubt should herein vpon the former case of Corbet remaine That statute which 4 24. H. 8. ca. 12. affirmeth that diuorces by appellation were caried forth of this Realme vnto Rome like as other causes Ecclesiasticall of testament of matrimonie of right of tithes oblations and obuentions and appointeth how delegates vpon such appellations made shall determine them all within the Realme doth put it cleare out of doubt Likewise where it is affirmed by a farre elder statute that Ordinaries are 5 18. Ed. 3. pro Clero cap. 2. both to certifie and trie of bastardie and bigamie which for the most part cannot be done without the conusance of diuorces whereupon the former especially doth depend As for 6 Regist. in bre iudicialibus pag. 5. a. 26. a. questions touching Bastardie or Legitimation of any it appeareth that at the Common Lawe they do belong to a court Ecclesiastical and vpon a writ are to be certified into the Queenes Courts by the Bishop If 7 Regist. in bre iudic pag. 53. 2. a man be spoyled of the possession of his wife so farre forth as the Action doth but extend to be restored to her possession it must be handled in a Court Ecclesiasticall notwithstanding 8 Goodall of the liberties of the Clergie by the Lawes of the Realme sayeth Gooddall in
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
the Lay Court should haue iurisdiction betweene them and not the Spirituall Court The last cause of drawing an action for spoliation of tithes from a Court ecclesiasticall that I finde is where the tithes in demand do amount to a fourth part of the yerely commodity of the whole benefice because hereby the right of Patronage may be touched or preiudiced which right of Patronage is to be handled in a court Temporall onely and by no meanes in Ecclesiasticall For so is it testified by 1 Lindwood c. aeternae sanct V. iute-patronatus const Prou. de poenis edita 1260. Lindwood himselfe to be the olde custome of the Realme and therefore the Common law of the land But in another place he seemeth to be of opinion that this notwithstanding no preiudice towards the Patronage can grow though the suite for all the whole tithes and oblations should be prosecuted in court Ecclesiasticall For saith he 2 Lindwood in verbo quarta pars bonorum c. 2. Prou. const de foro competenti the right of Patronage is founded vpon one of these three viz. building founding or endowing of a Church So that the right of Patronage doth no way respect tithes or oblations comming to the Church but rather the building of it the ground whereon it is situate or the endowment as of glebe c. assigned vnto it This he writeth saluo iudicio meliori and vnder the same reseruation I do holde that where a great part of tithes is by suite euicted from one Church vnto another the very patronage it selfe is much preiudiced and endamaged For if the Patron happen to sell it the lesse value the benefice is of the lesse recompence shall he haue for it Besides if 3 Stat. circumspectè agatis a pension be assigned out of the benefice vnto the Patron as it may be 4 Lindwood vbi supra V. pensionem vpon the foundation the more the benefice is empaired the more hard will the pension be to recouer Lastly for somuch as the Clerke presented is by law bound to relieue his Patron fallen in decay in this respect great preiudice groweth to the Patron when a fourth or greater part of the benefice is euicted That which Markham held as is aforesaid viz. that if any part of right of tithes doe come in debate betwixt two Patrons there the Court ecclesiasticall could not holde plea seemeth to be borrowed from a consultation in the 5 Reg. pag. 46. a. Register in these words viz. we being not willing to haue any thing derogated from iurisdiction ecclesiasticall do signifie that you may proceed according to the course of the ecclesiasticall court in the plea aforesaid so as the action reach but vnto spoliation of tithes and not to the aduowson or right of Patronage of any part of the Church sauing that he speaketh of the right of any part of the tithes and the Register goeth to the right of Patronage it selfe of any part of the Church But where 6 Stat. circum spectè agatis a fourth or greater part of tithes c. is not in demaunde betwixt two Parsons of Churches there the Plea goeth to the ecclesiasticall court The 1 Goodall of the liberties of the Clergie by the lawes of the Reà lme booke of Liberties of the Clergie hereof writeth thus one Parson of a Church may sue another in case of spoliation or taking of tithes or pension in court Christian so that the matter in demaund amount not to a fourth part of the value of the Church by reason thereby the right of Patronage seemeth to come in question but if they be both of one mans Patronage they may be sued there to what value soeuer the thing demaunded shall amount vnto That Pensions out of Churches are demaundable not onely by statute but also at the common lawe in a court ecclesiasticall is made plaine by 2 Reg. pag. 47. 〈◊〉 ibid. pag. 53. 2. Goodall vbi supra two consultations in the Register and by other bookes of law But Goodall further addeth that for a pension there lieth also a writte of Annuity at the common lawe so that it is at the plaintifes election where to sue but if there he doe declare vpon the prescription and after he sue in the spirituall court by the name of a Pension the other it seemeth may then haue a prohibition For Mortuaries that they at the common lawe be of ecclesiasticall conisance reade the two consultations in the Register and the other which 3 M. 9. H. 4. M. 10. H. 4. 1. Entres title of prohibition Reg. pag. 45. b. Reg. pag. 49. a. be here quoted And likewise 4 Reg. pag. 50. a. b. for oblations detained which ought saith 5 Goodall vbi supra Goodall to be paid at their vsuall dayes Another thing due to the Minister whereby also he hath a part of maintenance is demaundable and determinable in an ecclesiasticall Court viz. the places of buriall and the Churchyard Touching the first A Parson to an 6 Li. 44. assi pa. 8. assise brought against him for a house did pleade that he was Parson of P. and that to be parcell of his Church by time immemoriall and that there had bin burying of dead bodies whereupon Persey held opinion that the court temporall ought not to take conusance thereof For the second 7 44. E. 3. lib. assi it is a good plea against the iurisdiction of the temporall court to pleade that the land is his Churchyard The true reason hereof I take to be alledged by Bracton because it is dedicated and consecrated to God where thus he writeth 8 Bra. li. 5. ca. 16. Negocium terminabitur in foro seculari si de laico feodo agatur nisi fuerit dedicatum Deo sacratum sic enim res efficietur sacra hoc autem diet non potest de re in liberam perpetuam eleemosynam data For though a thing be giuen in Francke almoigne to an ecclesiasticall person yet it remaineth of lay fee still and is not said to be consecrated to God Therfore 9 19. H. 6. 20. a trespasse done vpon a Parsons glebe land which is a francke tenement cannot be tried in a spirituall court But it seemeth that in a trespasse done in a Churchyard it is otherwise for if a 1 H. 17. H. 3. Fitz. referente tit prohib 26. man take trees that are growing in a Churchyard the Parson may sue for them in Court Christian. Sed quaere And that matters of buriall doe belong to conusance ecclesiasticall is declared by a consultation in the 2 Reg. pag. 52. b. Register very plainely CHAP. VII Ofright to haue a Curate and of contributions to reparations and to other things required in Churches NOwe when a Parish or Hamlet hath right to haue a Curate found in their Chappell to say them diuine seruice If this be denied them and no circumstance otherwise be incident thereto to
or errour in matter of Religion or doctrine besides that Statute others doe also shew how it is inquirable and punishable by Iurisdiction ecclesiasticall For both the Preamble and Statute of Henrie the fourth and the Statute of Henry the fift touching Heresies doe plainely testifie hereof In the former whereof is said 3 2. H. 4. ca. 15. that the Dioecesans of the Realme cannot by their Iurisdiction Spirituall without ayde of the Royall Maiestie sufficiently correct nor restreine the malice of Heretickes because they goe from Dioecesse to Dioecesse and willnot appeare before the Dioecesans but contemne the keyes of the Church and censures of the same c. And in the 4 2. H. 5. ca. 7. later that the conusance of Heresie errours and lollardies belongeth to Iudges of holy Church and not to secular Iudges And likewise by a later 5 25. H. 8. c. 14 Statute then those whereby it was prouided that euery person being presented or indicted of any Heresie or duely accused or detected thereof by two lawfull witnesses at the least to any Ordinaries c. might by them bee proceeded against c. and none otherwise Neither is it materiall though the said three statutes do stand repealed for they shew neuerthelesse touching Heresie what then was and now is still at the Common Lawe which offence to be still punishable at the Common Lawe doeth also more plainely appeare by the statute of Citations being stil in force For there it is prouided that the said statute notwithstanding 6 23. H. 8. c. 9. the Archbishop may cite and summon any person of his prouince for cause of Heresie if the immediate Ordinarie doe consent or doe not his duetie and that the prerogatiue of the Archbishop of Canterburie shall not be preiudiced by that Statute The like is testified of breach of an oathe and of periurie in an ecclesiasticall Court or matter For after that amongst diuers other matters in the statute of 7 Circumspectè agatis 13. Ed. 1. Circumspectè agatis breache of an othe is mentioned it is thus in the ende added In all cases afore rehearsed the Spiritual Iudge shall haue power to take knowledge notwithstanding the kings prohibition And by the aforesaide 1 5. Eliz. ca. 23. Statute De excommunicato capiendo among sundry other crimes and offences Periurie in the Ecclesiasticall Court is reckoned to be of Ecclesiasticall Iurisdiction And so is it by a 2 5. Eliz. cap. 9. prouiso in the statute against periurie made at the same time By bookes of the Common Lawe I finde two cases wherein breach of othe called laesio fidei in an othe voluntarily taken whether priuately or before an Ecclesiasticall Iudge as was in those dayes much vsed is to be determined in the Temporall and not in the Ecclesiasticall Court The one is such as fell out in the case of the vicar of Saltash who had made an Obligation and had bound it by an othe that he would not goe against it before the Popes collector in England who pretended though vniustly some Iurisdiction Ecclesiasticall in himselfe Against which othe when the Uicar was supposed to deale and was therefore conuented before the said Collector there went foorth a prohibition and no consultation could be obteined For said Hankeford a 3 M. 2. H. 4. 15. Concordat 24. H. 1. per Brooke praemunire 16. Doct. stud lib. 2 cap. 24. man shall not be sued before an Ordinarie for periurie but where the principall matter whereupon the periurie grew was a matter Spirituall or touching it and alledged this reason for else if the periurie should be found against him hee should be straight awarded there to performe the othe whereupon the periurie grewe and where of hee is attainted and so though it were to pay debts he should be there compelled to pay them and hereby Lay contracts should be determined there contrary to the Kings royaltie And againe the same man in the 4 T. 11. H. 4. fol. 241. secund vnam impress 88. vel 85. secund aliam same Kings dayes afterward reporteth that a man had sworne to make a feofment of his land and because hee did it not hee was vexed by the partie in the Court Christian as for the periurie and because such suite shall be as a compulsion to performe a thing touching land and inheritance it was adiudged in such maner as if he had sued for the principall in Court Christian. And the effect 5 P. 38. H. 6. 29. of both these cases is rehearsed with the like reason by Fortescue in the Eschequer Chamber and was expressely graunted by some and gainesaide by none Therefore 6 Fitzh tit proh 12. ex Regist. if a man and his wife doe aliene the right of his wife and the wife is sworne that shee will not sue the Cui in vita and yet after the death of her husband brings the Writte and the other sueth her in Court Christian for breache of her othe shee shall haue her prohibition Agreeable to which is that iudgement long agone that 1 M. 4. H. 3. referente Fitzh prohib 15. if a man sue another in Court Christian pro laesione fidei which othe arose vpon a temporall contract or cause a prohibition lieth And 2 Bracton lib. 5. cap. 2. Bracton that writ in that time saith thus In placito quod pertinet ad coronam dignitatem regis etsi fides fuerit apposita in contractu non propter hoc pertinebit cognitio super principali ad iudicium Ecclesiasticum Hereof he allegeth a reason in another place of the same booke 3 Idem lib. 5. cap. 9. Iurisdictionem regiam non mutat fidei interpositio sacramentum praestitum nec spontanea renuntiatio partium To which resolutions accordeth this booke case In an 4 M. 20. Ed. 4. fol. 10. attachment vpon a prohibition where the plaintife was sued in Court Christian pro laesione fidei in that hee had sworne to pay fifteene pounds and did not Brian held that when the faith is made touching a matter Spirituall then the breach there of shal be punished in a Court Spirituall as if one should sweare to pay me his tithes truely or a woman to marry with me but if the faith be made vpon a matter Temporall then the breache of faith shall not be punished there because they will not assoile him if he be conuict till some Temporall duetie be contented and payed A later Treatise of the Common Lawe made in King Henry 8. his time doth touche this 5 A Treatise that the B. of Rome had neuer Supremacie here by the Lawes of the Realme cap. 1. point thus viz. In most cases of periurie the King and his Courtes haue had the punishment and in some cases the Clergie in their Courtes haue had the punishment by the custome of the Realme onely viz. such as haue risen vpon Spirituall causes Another case where the Ecclesiastical Law shall
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
the Realme the Treatise of the Liberties of the Clergie a man defame or publish one for false an adulterer or vsurer he may be sued in court ecclesiasticall And another Treatise published also in king Henry the 8. time by a common Lawyer saieth thus 3 That the bishop of Rome c. cap. 3. printed by Berthelet In some cases of diffamation and slander the kings courts and in some cases the Clergie haue holden plea thereof Therefore I doe the more maruell the lawe being so plaine at the Note that is set 4 Nota in Reg. pag. 54. b. downe in the Register touching this matter viz. All the Iustices are against a Consultation in a case of diffamation which is spoken indistinctly and indefinitely and therefore more generally perhaps touching any diffamation what so euer then the Iustices meant or then by Statutes and lawe may be warranted It may be that a booke case of Henry the 4. gaue occasion of this mistaking being not throughly weied for at first sight it seemeth to sound as if no diffamation at all were of ecclesiasticall conisance And so 5 Tit. Consultation nu a. alibi euen Brooke in his Abridgement seemeth to take it But the trueth is by that case is onely meant that such diffamation as ariseth vpon a Temporall matter is not of ecclesiasticall conisance which is the first exception of the generall rule set downe in the Statute of Circumspectè agatis where is sayd that diffamation shal be tried in the Spirituall court And that the said case is to be restrained to such diffamation onely will appeare most plamlie to him that considereth the scope of 6 M. 2. H. 4. fol. 15. Hankefords argument The Vicar of Saltashe had giuen an othe before the Popes Collecter in confirmation of an obligation by him made The Deane of Windsor sued the Vicar before the Collecter prolaesione fidei the Vicar purchased a prohibition Hankeford to maintaine this prohibition argueth that the periurie couldnot bee sued in an ecclesiasticall court for that it arose vpon a temporall cause Adding for proofe of his saying that himselfe had a matter vpon the like reason ruled for him and against the Archbishop of Canterbury H. 14. Edw. 3. par attachment sur Prohibition c. de ceo que il suist en court Christian pur diffamation The matter then was not ruled against the Archbishop simply for suing diffamation there but of such a kinde of diffamation For else this would not haue fitted the purpose of Hankefords argument because hee hauing to prooue that laesio fidei arising vpon a Temporall cause might not bee sued in an ecclesiasticall court could not make any colour of that assertion by alleaging of a iudgement that no diffamation at all might bee prosecuted there for that is not the like reason And therefore as that laesio fidei arose on a Temporall cause so did the diffamation there spoken of for which a prohibition did lie without Consultation That diffamatorie words touching a temporall cause may not be sued in court ecclesiasticall we haue also a prohibition 1 Regist. fol. 42. b in the Register without any Consultation granted For whereas one gaue witnesse in an Inquisition made by the king about his exchange in Yorke the partie touched sued the witnesse for diffaming him in a court ecclesiasticall whereupon the witnesse brought a Prohibition by reason the matter was a Temporall cause By Statute likewise it is 2 Ed. 3. c. 11. enacted that a Prohibition shall lie if a man be sued in court ecclesiasticall for diffamation in that hee endited the other I finde also another cause why some diffamation may not be sued in a court Ecclesiasticall and that is when action therefore lieth at the Common lawe As 3 P. 18. Ed. 4. fol. 6. where a man brought Action of trespasse for goods taken away the defendant hereupon sued him in a spirituall Court for diffamation But Hussey the kings Atturney in behalfe of the Plaintife desired a Prohibition because the plea in Court Christian was mooued the suite hanging there and had it graunted Quod nota So if I be robbed and speake of him that robbed mee before others so that hee sueth mee in a spirituall court for diffamation there lieth a Prohibition because I may haue an Action at the Common lawe videlicet mine appeale of the robberie There be also in the booke of 1 Booke of Entries tit Prohibition Entries precedents of Prohibitions granted agaynst those that for diffamation prosecuted such in court ecclesiasticall as sued them in temporall courtes for maime and for forging of euidences So that wee may conclude this point that out of the cases excepted the rule of Circumspecte agatis and Articuli Cleri for diffamation to bee of ecclesiasticall conisance hath place euen by allowance of the common lawe There resteth yet one point belonging to this place fit to be cleared There is alleaged for other purposes by the Note-gatherer a little olde printed Treatise Concerning the power of the Clergie and lawes of the Realme In which the Statute of Circumspectè agatis both here and elsewhere by me alleaged is auouched to bee no Statute but a bare constitution The words 2 Of the power of the Clergie and lawes of the realme cap. 8. bee these Wee neuer sawe any proofe that Circumspectè agatis was a Statute or taken out of the kings answeres and there bee in the sayd treatise diuers things that bee directlie agaynst the lawes of the Realme as it is in this point That Prelates for fornication auouterie and such other may sometime assigne bodilie paine and sometime pecuniarie payne And the lawe is that Prelates shall neuer assigne pecuniarie payne for correction of sinne but onely at the desire of the partie And also it is recited in the sayd Treatise that if the Prelate of any Church or his Aduocate aske of the person a pension that the suite should bee in the Spirituall Courte and the lawe of the Realme is euen to the contrarie And we thinke that if it had bene a Statute that the lawe should neuer haue bene vsed therein so directlie agaynst the Statute as it hath bene vsed And in the nineteenth yeere of King Edward the third in a Writte of Annuitie brought in the Kings Court against the sayd Article of the sayd Treatise it is sayd that the sayd Treatise is no Statute but named so to bee by the Prelates And also the sayde Writte of Annuitie is iudged to bee maintenable in the Kings Courte and that is directlie agaynst the Treatise of Circumspectè agatis wherefore wee thinke it is no Statute The verie like wordes are also vsed I thinke all by one Author in 1 Ibid. cap. 8. another Treatise of constitutions Prouinciall and Legatine Nowe in that to prooue it no Statute he saieth There bee in it diuers things directly against the lawes of the realme seemeth to me a strange reason As
decimae inde rectori ecclesiae debitae iniustè detentae non solutae per vos sic interpositi agitur vlteriùs facere poteritis quod ad forum Ecclesiasticum noueritis pertinere That excommunication is a censure Ecclesiasticall almost all allegations afore and consultations in the Register do shew That which next commeth to handling heere is that 6 Const. prou Bonifacij c. a nostris de concess praebendae ibi Lindwood the Parson and Vicar haue the appointing of the Parish Clerke who being so appointed is to haue the customable fees of the Parishioners for his seruice or else he may sue for them in Court ecclesiasticall That Constitution prouinciall calleth these eleemosynas consuetas and I thinke they may be comprehended vnder the word 7 Reg. fol. 52. b. Largitiones charitatiuae for which the Register hath a consultation as being of ecclesiasticall conisance For goods as a pound of waxe c. due to a Church and deteined 1 Reg. fol. 50. b. the Register alloweth the Church-wardens to sue in court ecclesiastical and to procure that the church may for them be againe put in possession Now follow in this place certeine crimes of ecclesiasticall conusance and first such as be contrary to pietie towards God namely blasphemie which 2 c. 2. de maled though in partes on the other side Sea where Ciuill law hath place it be mixti fori that is enquirable and punishable aswell in the temporall as in the ecclesiasticall court yet in this Realme I haue not learned of any punishment thereof or for swearing by any temporall power Also idolatrie and errour in religion which are shewed to be of ecclesiasticall conusance by 3 5. Eliz. c. 23. the statute De excommunicato capiendo Likewise Apostasie from Christianitie which is the highest degree of heresie and therefore subiect to the same Court and penaltie Lastly violation and prophanation of the Sabboth to be punishable by a Court ecclesiasticall both the continuall custome of the Realme and the statute of Circumspectè agatis which doeth allow them to enioyne penance for sinne doeth make very manifest But we are to vnderstand as 4 Lindwood in c. circumspectè de foro competenti V. mort peccato Lindwood also well admonisheth that euery mortall sinne is not of Ecclesiasticall conusance for then faith hee the iurisdiction of the temporall sword were wholly ouerthrowen seeing you could hardly name any cause which vnder colour of the sinne might not be brought vnto conusance ecclesiasticall But the said statute is to be vnderstood of such sinnes the punishment whereof doth belong properly to a Court ecclesiasticall That is all such as I doe gather for which no remedie is prouided at the Common law nor by the same forbidden to be dealt with by a Iudge ecclesiasticall And of this sort is subornation of periurie in an ecclesiasticall court and matter tending to the breach of iustice and vnlawfull sollicitation of a womans chastity drunkennesse and filthie speech referred to the violation of sobrietie Violation of a sequestration or of an interdiction is in this chapter touched afore The hindering and disturbance to carry tithes by wayes due and accustomed is handled in the sixt chapter of this part For sundry crimes the court Ecclesiasticall may enioyne penance corporall but not pecuniarie and if it do there lieth a prohibition 1 Aâ—…tic Cleri 9. Edw. 2. cap. 2. Notwithstanding if Prelates enioyne a penance corporall and the partie will redeeme such penances by money if this money so promised be demanded before a Iudge spirituall the kings prohibition shall holde no place And againe for 2 Ibid. cap. 3. excommunication before a Prelate for laying violent hands on a Clerke where corporall penance is enioyned if the defendant will redeeme it by giuing money to the Prelate or to the partie grieued it shall be required before the Prelate and the Kings prohibition shall not lie Furthermore 3 Ibid. cap. 4. in defamation Prelates shall correct in maner aboue said the Kings prohibition notwithstanding first enioyning a penance corporall which if the offender will redeeme the Prelate may freely receiue the money though the Kings prohibition be shewed And to the same effect there is a consultation in the Register 4 Reg. fol. 53. b. viz. in a plea for recouerie of money promised to a Prelate or to the partie grieued for redeeming of corporall penance imposed for laying violent hands on a Clerke you may lawfully proceed our prohibition notwithstanding When a 5 Reg. fol. 55. a. partie proceeded with for some offence in Court Ecclesiasticall submitteth himselfe to such order as the Iudge shall take with him either at his absolution from the sentence of excommunication or otherwise doth after refuse for such his refusall he may be dealt with and punished in Court ecclesiasticall and may be vrged by censures to performe the order according to his submission which the Ordinary shall set downe Likewise may an Ordinary deale for contempt of his decrees or iurisdiction as may be perceiued both by the said consultation against one Lindsey last alleged and 6 Reg. fol. 57. b. also by another reported in the Register And as Ordinaries may deale in the causes afore specified so may they also in the necessarie accessories and dependences of those causes And therefore they may adiudge expenses against the partie ouercome in law and by censures driue him to payment of them Example heereof we 7 Reg. fol. 51. a. haue in the Register where the plaintife in a cause of defamation failing in proofe was condemned in expenses and could not auoid the paiment of them by the prohibition which he brought therefore in another precedent there it is thus said Iuri est 8 Reg. fol. 53. b. Goodall of the liberties of the Clergie by the lawes of the Realme consonum quod vbi cognitio causae principalis ad forum ecclesiasticum pertinet eius accessorium pertinere debeat Vel sic iuri est consonum quod cui attribuitur cognitio in causa principali eidem attribui debet executio eiusdem And there it is further said to this purpose Si praedicti 40. S. pro misis expensis in causa diffamationis adiudicati fuerint tunc ad executionem inde faciendam licite procedere poteritis prohibitione nostra non obstante Fees due in Ecclesiasticall Courts and Curates and Clerkes wages deteined come next in this place to be prooued of Ecclesiasticall conusance I must confesse that for the two former of these I doe not call to minde nor hitherto finde by turning of my few bookes of the Common law that any thing is written of them Now seeing that from time to time as occasions haue fallen out of due fees there to haue bene deteined they haue bene demandable in the same Court ecclesiasticall without bringing prohibition it is some good inducement to leade vs to thinke that they haue bene without
contradiction alwayes yeelded to be of ecclesiasticall conusance For being such matters as subiects haue a right vnto and yet no writ lying therefore as I take it at the Common law which 1 Stat. de Consultatione 24. Edw. 1. reason is the ground in statute for granting consultations and of leauing causes of that nature to the determination of an Ecclesiasticall court it will therefore follow that these also doe belong to iurisdiction ecclesiasticall But touching Clerkes wages called in the Prouinciall constitutions eleemosynae consuetae and in the Register conteined vnder the generall word of Largitiones charitatiuae I haue incidently spoken in this chapter afore There remaine yet some offences set out by me to be of Ecclesiasticall conusance which I finde not hitherto so auouched to be by any writer of the Common law yet are they so holden by the law Ecclesiasticall and by vsuall practice also without any prohibition or other impeachment The first 2 c. dura c. falsariorum de crimine falsi of them is forgerie in an ecclesiasticall mattter or the vsing and setting out of forged letters knowing them to be such as of letters testimonialles of orders taken of institution and such like Next is the burying in vsuall buriall for other Christians of 1 c. quicumque de haeret in 6. notorious Heretickes or of persons dying excommunicated and without repentance thereof Thirdly willing 2 c. si concubinae de sent excom and familiar cōuersing with persons whom they knowe to be excommunicated matori excommunicatione Fourthly 3 Bald. in ca. cōuentic de pace iureiurando firmanda frequenters of conuenticles which doth also come vnder schisme Lastly vnlawfull 4 Extrau detestandae de sepultura digging vp of corpses buried either vpon spite or in any other sinister respect whatsoeuer I haue hitherto stoode vpon matters wherein Ordinaries by Law may hold plea to shew thereby that they may cite in other causes then Testamentarie or Matrimoniall For deale in them or handle them they could not vnlesse the party which is pretended to offer the wrong or to be the offendour might be conuented which is by citation Therefore besides the authorities here and there in the former discourse falling in by other occasions which might sufficiently prooue that they may cite and compell men to come before them I will now briefly vse some further direct proofe to conuince that in other causes then those two men may be cited before Iudges Ecclesiasticall It appeareth by Articuli Cleri that for any matter Ecclesiasticall indefinitely men might be cited For vpon doubt mooued whether the Kings tenants were subiect thereto in such sort as others are it is decreed that 5 Artic. Cleri 9. Ed. 2. ca. 12. such as holde of the Kings tenure may bee cited before their Ordinaries and may bee excommunicate for their manifest contumacie and after 40. dayes may bee attached by the Kings Writte as others The 6 23. H. 8. c. 9. preamble of another statute proueth Citations euen of men wiues seruants and other the kings subiects for diffamations and tithes so they be vpon iust matter and in due order to be lawfull The body of that statute 7 Ibidem prouideth that no Citation be made out of the Dioecesse c. where the partie dwelleth but where some Spirituall Offence or Cause is committed or done c. so that à contrario sensu in any other offence or cause Spiritual as very many are afore proued to be any subiect may be cited within his or her Dioecesse and in those also there excepted may be cited out of the Dioecesse Likewise 8 Ibidem for Heresie the Archbishop of Canterbury may cite any of his Prouince if the immediate Ordinarie doe consent or do not his dutie In a statute 9 32. H. 8. cap. 7. made for tythes any man withholding them shall be conuented according to the Ecclesiasticall Lawes And there is also mentioned Compulsorie Processe and censures of the Church In a statute 1 1. Ed. 6. ca. 2. of King Edward the sixt though for the body thereof it be repealed yet thereby is testified that summons and citations be Processe Ecclesiasticall in all suites and causes of instance betwixt party and party and in all causes of correction Therefore seeing there is no colour that onely Ecclesiasticall persons shall fall out to be deteiners of such dueties Ecclesiasticall or that they onely will proue offenders in the crimes afore recited neither can all the Kings tenants nor yet men wiues seruants and other subiects be entended for the most part to be other then Lay persons we may safely conclude that not only in causes Testamentarie or Matrimoniall but in very many other afore noted any subiect whosoeuer may be cited before his Ordinarie or other competent Iudge Quoderat probandum as being the very contradictorie of the opinion that we are in handling CHAP. XI That Lay men may be cited and vrged to take othes in other causes then Testamentary or Matrimoniall THe thirde opinion nowe followeth which is that by the Lawes of the Realme no Layman ought to be summoned or cited to make or take as I thinke is meant an othe in any other cause then Testamentary or Matrimoniall This differeth from the former in two points The first is in the partie to be cited For the second opinion was that none whosoeuer including both Ecclesiasticall and Lay where as this is onely that no Lay man may be cited c. The second difference is in the end of the citation For here is said a lay man may not be cited to take an oth in any other cause thereby leauing as it might seeme the Ordinary at large to vrge persons ecclesiastical to take an othe in other causes also But all comes to one ende For if neither Lay nor Ecclesiasticall as the second opinion holdeth may be cited in any other cause then cannot Ecclesiasticall men be cited in any other cause to take an othe That which cannot be done at all cannot be done for any ende non entis nullae sunt qualitates so that both these runne to one point sauing that hereby is affirmed a citation may not be made to the intent a Lay man shall take an othe sauing in those two cases Now if this citing be meant of the partie defendant then doth it not impugne any proceeding ecclesiasticall in vse for the partie conuented is not cited ad subeundum iuramentum but ad respondendum tali in causa decimarum c. faciendum vlteriùs quod iuris fuerit rationis If it be meant of witnesses neither are they cited against their will not so much as in Testamentarie or Matrimoniall causes or any other to appeare till faith be made by the partie or by some other for him that they take them to be necessary witnesses for to testifie in that cause and that being required and their reasonable charges offered them
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
and the other is forbidden to be done 1 Arg. l. 13. cùm ita ff de rebus dubiis A disiunctiue argueth seueral things that had neede to be expressed by seuerall wordes And by like reason it cannot be meant of witnesses depositions for if the partie conuented shall be content de facto though he be not compellable by lawe as this opinion presupposeth to denie the intention of his aduersarie then no Lay witnesse might in any such other cause ecclesiasticall be vsed either to depose with oathe or without oathe because both be forbidden and so no plea in any such other ecclesiasticall cause coulde be holden which is afore prooued to be otherwise and therefore consequently that is not the meaning of these wordes of the writte which is by 1 Fitzh nou na breu fol. 41. a. Fitzherbert and others that follow him enforced Touching the writ of Attachement thereupon whether as it is set out in the Register it may be holden to haue bin an originall writ at the Common law drawen at first by the grauest aduise in the Realme to be so perfite as that nothing further then is expressed by the words neede therein to be vnderstood to come by the true meaning may partly be gathered by that which followeth First it is said pone talem episcopū not vsing letters for his name as in most of the other writs Next a Bishop who in that he hath a Barony is presumed to haue temporalties whereon to be distreined is here appointed to finde vadios plegios Thirdly it hath laicos homines foeminas as if women were not homines seeing homo is the cōmon gender Fourthly though the prohibition whereupō it is framed forbiddeth both recognitiōs to be made and oathes also to be taken by lay men yet the Attachement wholly omitteth the making of recognitions And yet howe many oathes soeuer should be giuen if none answeres or depositions doe thereupon euer followe which two the opinion that we impugne meaneth by recognition what colour of preiudice doeth or can growe that either Prohibition or Attachement should neede to be awarded Fiftly neither by Ciuill nor Canon lawe neither yet by practice doth any sommons or citation goe out of an ecclesiasticall court in such sort as this Attachement assigneth to be a preiudice vnto the royall dignitie viz. ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis For it were a grieuance giuen euen at the Canon lawe if an Ordinarie should either call any being not a partie or necessarie witnesse in some matter depending or should call witnesses against their will not being first required and hauing their charges offered or if he should do it when there is no cause but 2 Pro voluntate sua for his owne pleasure as this writ implieth Sixtly the proceeding hereby condemned is saide to be done in praeiudicium graue coronae dignitatis nostrae regiae But if no matters be thereby drawen from the kings courtes as in deede none be though you followe the interpretatiō thereof by some enforced then what preiudice commeth to the crowne For though lay men be vrged to depose vpon their othes in all other causes besides that be of Ecclesiasticall conisance what damage or detriment doth the Crowne and dignitie royall thereby susteine more then it doth by their compulsiue deposing with othe in causes Testamentarie and Matrimoniall which this opinion admitteth and alloweth of For if none other causes Ecclesiasticall then those two could conueniently be proceeded in nor any remedy could be giuen by a court Ecclesiastical for want either of the parties answere or witnesses depositions vpon othe yet could not Temporall Courts as the Lawe standeth giue any more remedy in them And so no preiudice to them or to the Crowne that Courtes Ecclesiasticall do proceed as they do to the determination of such causes Nay rather on the other side it were a preiudice to the Crowne that subiects should offend and no good meanes should be found by Law to punish them or to haue a right yet no way for them to come by it Seuenthly that which is there condemned is said to be 1 Consuetudine praed vsi fuerimus semper libettatibus huiusmodi Prohibition in Rastell tit Prohib nu 6. contra consuetudinem regni nostri which doeth strongly argue that vrging parties in other Ecclesiastical causes to put in their answere vpō their othes or witnesses so to testifie is neither by that fourme of Prohibition forbidden nor by the Attachment thereupon ment to be disallowed For first the custome of diuers Courts Temporal requireth parties answeres vpon othe and likewise alloweth Writs of sub poena and other processe in sundry cases to compel witnesses to come in and to testifie their knowledge And againe in Courts Ecclesiastical the custome hath alwayes bene to require othes of parties and witnesses though otherwise vnwilling in maner as is a fore touched Which may appeare both in that the Lawes Ciuill and also Canon which they deale by doe require it and that no bookes of Actes Ecclesiasticall as I am verely perswaded can be shewed whether of olde or later times by which it may not appeare that this course of compelling parties and witnesses to take othes in other causes then those two hath bene vsed so often as occasion hath required And therefore not this but some other maner of proceeding it was which by the Writte of Attachment is meant to be contra consuetudinem regni Lastly this fourme of Attachment mentioneth not so much as excepting of compelling to take othe in causes Testamentarie and Matrimoniall albeit the prohibition haue that exception And therefore for auoyding of iarre betwixt them something must necessarily be vnderstood to haue bene at first in the Writ it selfe whereof this is a minute further then is here expressed And why shall not then the clause de catallis debitis be vnderstood therein aswell as this other seeing so strong probabilities doe leade it and so many absurdities and inconueniences be thereby auoyded which the late enforced interpretation doth necessarily inferre with it selfe Therefore wee may conclude this second point that to debarre Courtes Ecclesiasticall in any cause of that Iurisdiction from exacting parties conuented to put in their answeres vpon their othes or from compelling such witnesses by censures to testifie who being required and their necessary charges being offered doe neuerthelesse refuse to testifie a trueth is not nor yet can be the meaning of that Prohibition or of the Attachment thereupon The last point of the three to be touched is concerning the true meaning of those wordes of the Writte whence these controuersies haue flowed It is therefore to be remembred that it was very vsuall for men in those dayes at making of any contracts whether in matters of Lay fee or others for their more securitie to make faith or othe for performance This they either did priuately for
confirming of deedes drawen betwixt them or else for more readinesse of dispatch and better testimonie they 1 Register pag. 37. would recognize one to another such contractes with faithful promise called fidei praestatio and sometimes with 2 Register pag. 43. monstrauit nobis Matilda corporall othes voluntarily taken before Ordinaries and therefore procure an Acte to be made by a publicke Notary Then if either paertie failed in performance he was by Processe Ecclesiastical called before the Ordinary as to answere for an Acte done afore him or fidei laesione which failing being confessed or proued the Offendour was enioyned grieuous penance and no doubt oftentimes compelled by censures to keepe his faith or othe by satisfying of the other partie This course being so ready at their owne doores in euery Dioeces and of so speedy execution for the great feare then caried by most sorts of men vnto the censures Ecclesiasticall and for grieuousnes of the penance otherwise grew to be very vsuall in euery place as may partly appeare by the often disputes vpon prohibitions brought hereupon euen after this Writte was framed that are here and there mentioned in the bookes of the Common Law and are afore touched by me in 1 c. 8. huius part the 8. Chapter and partly may be shewed by sundry old euidences and instruments recorded in ancient legers and in Acts of Ecclesiasticall Courts before the time of Edward the second which I haue seene and perused Namely I haue ready to be shewed a solemne contract in writing made almost 400. yeres agone wherein the Earle of Arundel vpon a concord then made for himselfe and his heires promiseth and graunteth to the Archbishop of Canterbury and to his successors certaine red deere and fallow of both seasons yeerely for euer to be at a certaine place deliuered for the Archbishop out of the forest of Arundel For the obseruation whereof he there bindeth himselfe and his heires by a corporall othe taken and further graunteth that if he or they faile herein then the Archbishop shall excommunicate them so failing and keepe them vnder the same censure till the purport of that agreement be perfourmed I haue likewise to be shewed an olde written booke of 2 23. Ed. primi Acts Ecclesiasticall sped in the Audience Court of the Archbishop of Canterbury in the reigne of King Edward the first wherein sundry suites pro laesione fidei of that nature be conteined The thing which gaue colour hereunto was the pretence of auoyding and punishing the sinne of Periurie For the Canon Lawe saith thus Iuramenti causa regulariter quis forum Ecclesiasticum non seculare sortitur c. praedicandum 22. q. D D. in c. cum sit ex de foro competenti If saith a learned writer on 3 Panorm in c. cum sit de foro competenti the Canon Lawe the Action be touching an othe in respect of the Court Poenitentiall or be commenced for release of the bonde of such othe so that it respect not principally the commoditie of some Lay person or if it bee doubted whether the othe be lawfull or not be to be kept or not then the conisance of it doeth belong to a Court Ecclesiasticall And in 4 Panor in c. qualiter el. 2. de accusat another place thus When the partie to bee damaged by violation of the othe is such as cannot vse Action or when enquirie is made for the correction of the Crime then may the Iudge Ecclesiasticall enquire euen against a Lay man not obseruing his othe Insinuating that in all other cases violating of othes by that Lawe belongeth to the conisance of a Temporall Court And the statute also of circumspectè agatis which alloweth punishment by the Court Ecclesiasticall for breach of an othe but distinguisheth not there in what causes or how farre did giue herein some incouragement So that the mischiefe that grew hereupon was this that most Lay contracts of goods and chattels were by this meanes drawen into Ecclesiasticall Courts though in trueth as I thinke contrary to the Common Lawe of the Realme For if the principall matter be of Lay conusance for confirmation whereof such faith is made or othe taken then according to the distinction 1 Cap. huius partis 8. afore prooued out of the Common Law it is not such faith or othe that will change the authoritie of the Court to make it simply of Ecclesiasticall Iurisdiction For so 2 Bracton lib. 5. cap. 9. Bracton writing in the time of Henry the 3. testifieth and withall giueth good light and euidence to the interpretation hereafter following of those words of this Writ Iurisdictionem regiam non mutat fidei interpositio sacramentum praestitum nec spontanea partium renuntiatio quamuis sibijpsis in hac parte praeiudicent per consensum illud idem dicendum erit de debitis catallis quae non sunt de Testamento vel Matrimonio vel eorum sequela It was 3 Grauam 64. one of the hundred Grieuances which the Germaine nation complained of that Ciuill causes and contracts by pretence of faith or othe giuen were drawen into Ecclesiasticall conisance Therefore to meete with this mischiefe and to cut off the occasion this Writte of Prohibition seemeth to haue bene framed viz. to forbid Lay men in any place either before Ordinaries or in priuate amongs themselues to make any recognitions or acknowledgings whereof of debts or of cōtracts touching goods and chattels by their faiths or othes taken in any cause whatsoeuer besides Testamentary or Matrimoniall For in these two causes neither then nor at any time since as in part is afore shewed was it vnlawfull for Lay men to make acknowledgement and depose in a Court Ecclesiasticall vpon othe though it touched goods and chattels In matters Testamentary as in Probats and in legacies of goods and chattels in demaund in matter of inuentaries and of accounts of the deads goods and chattels In matters matrimoniall as in money promised with a woman in mariage as is more fully shewed in the 3. Chapter And so this writ is not simply prohibitorie of all Recognitions and Oathes by lay men in Ecclesiasticall Courtes excepting those two causes but onely forbiddeth Recognitions and oathes in other causes made or taken that doe touch debtes goods and chattels or other such lay contracts and all citing of parties to take them or which haue taken them and all citing or compelling of witnesses to depose touching such contracts about goods and chattels though confirmed by faith or othe of the contractours Nay there is strong euidence to be brought that not many scores of yeeres before the 9. of Edward the 2. when as Articuli Cleri were enacted whereupon that Prohibition is said to be framed the Clergie both vsed and thought they shoulde haue wrong to be barred from hearing all breaches of faith and periuiurie arising of or touching what cause soeuer so they dealt not with the
very Temporal causes themselues whereupon such faith or othe was confirmatorie If saith a Constitution 1 CoÌ„stit aeternae sanctio de poenisin Concilio apud Lambhith sub Bonifacio Anno 1260. tempore Henrici 3. Prouinciall of Canterbury perhaps our Lord the King in his Attachments prohibitions summons shall make mention not of tithes but of right of Patronage not of breach of faith or periurie but of chattels not of Sacrilege or disturbance of liberties Ecclesiasticall but of trespasses of his subiects the correction of which he affirmeth doth belong to him then let the aforesaid Prelats make known vnto him that they neither take conisance nor minde to doe touching Patronage chattels or other things belonging to his Courts but of tithes sinnes and other causes meere Spiritual belonging to their Office and Iurisdiction Whereby we first gather that the Common Law herein was not then resolutely agreed vpon in that they conceiued this allegation touching faith broken and periury would satisfie the King and his Courts And secondly that the Kings Writs of prohibition and Attachement in this behalfe were then awarded but for faith and othes made concerning goods and chattels because by that pretence the conisance of chattels was drawen into Ecclesiasticall Courtes I do finde in an old written parchment booke of statutes reaching downe but to H. 5. death many matters of marke conteined amongs the statutes As among others there be regiae consuetudines apud Claringdon promulgatae which as is there rehearsed were by K. Henry the second propounded in Parliament vnto Thomas Becket then Archbishop of Canterbury long before that Prouinciall constitution Most of which he did condemne by his censure as preiudiciall to the liberties of the Church And this is said there to haue bene the originall cause first of his banishment and afteâ— of his death But some of those customes Becket did tolerate whereof this is one seruing to our present purpose viz. Placita de debitis quae fide interposita debentur vel absque interpositione fidei sint in curia regis Hoc tolerauit At the ende of that Treatise it is saide that foure yeeres after Beckets death viz. 1174 of Christ the King repenting himselfe did together with the Prelates and greatmen of his kingdome abrogate and condemne those euill and vniust customes appointing onely those that were good to be thencefoorth obserued Yet saith he some of those that were so abrogated by the king and condemned by the Church are still obserued in the kingdome If this be with the kings knowledge and allowance let the King looke to it for God knoweth it The chiefe cause why I note it is this that it was euen then thought a Custome of the Realme and by Becket himselfe allowable and tolerable that Pleas of debts though faith or othe were giuen for their payment belonged to the Kings temporall Courtes Next is that hence may be gathered how the Recognitions and othes forbidden to be made in Courts Ecclesiasticall by the Writs which we here dispute of are to be vnderstood of such of them onely as concerne debts or chattels sauing that in causes Testamentary and Matrimoniall onely they may be there made and acknowledged albeit they concerne debts and chattels It may also appeare euidently that the Recognitions forbidden to be made in Courts Ecclesiasticall in any cause sauing of Testament or Matrimony ought to be vnderstoode of Recognitions and othes about debts and chattels For lightly in euery place where these two matters of Testament and matrimony are spoken of there also debts and chattels are spoken of to this effect that in these two cases Pleas of debts and chattels may be handled in Courts Ecclesiasticall but in none other Bracton who wrote before this Writte was framed saith 1 Bracton lib. 5. cap. 2. thus Si Clericus petat versus Clericum vel Laicum debitum quod non sit de Testamento vel Matrimonio sequi debet forum Laicale And 1 Ibidem againe a litle after Non pertinet ad regem cognoscere de catallis quae sunt de Testamento vel Matrimonio Likewise in a precedent of a prohibition he 2 Ibidem lib. 5. cap. 3. cap. 10. 13. vseth this addition Nec teneatis placitum in curia Christianitatis de catallis vel debitis quae non sunt ex Testamento vel Matrimonio In the 3 Prohib Consul nu 3. 7. booke of Entrees the like is often found as Attachiatus fuit ad respondendum tam Domino regiquà m N. de placito quare secutus est placitum versus eum in curiae Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And in a 4 Consultat 2. copie of Consultation there callidè machinans impedire suggerénsque in Cancellaria nostra ipsum tractum fuisse in placitum coram vobis in curia Christianitatis de catallâ—…s debitis quae non erant de Testamento vel Matrimonio c. Yea and in 5 Register Ibidem tit Prohibitiones the Register it is set downe more plaine a great deale in a copie at large of a Prohibition vpon the same point and with the same causes excepted being the next following to that which wee principally doe here treate of For the very worde of Recognitio before an Ordinary is there vsed and applied to a debt or contract touching goods and chattels Cum recognitiones debitorum quae non sunt de Testamento vel Matrimonio ad nos coronam dignitatem nostram non ad alios pertineant in regno nostro executiones earundem per nos ministros nostros non per alios fieri debeant ac iam ex querela I. acceperimus quod vos ipsum I. ad viginte solidos quos coram vobis nuper in curia Christianitatis recognouit se debere A. eidem A. soluendos intra certum tempus iam praeteritum monuistis in ipsum I. pro eo quod praedictos viginti solidos intra tempus praedictum ad monitionem vestram soluere recusauit quanquam huiusmodi recognitio Testamentum vel Matrimonium non tangat c. excommunicationis sententiam fulminastis c. vobis prohibemus c. And the very like words to the same effect and with like exceptions are there vsed in the fiue precedents of Prohibitions next in order following And in the olde written Register afore spoken of there be many copies of Prohibitions set downe in all which whensoeuer that exception of causes Testamentary and Matrimonial is mentioned that clause de catallis debitis quae non sunt de testam c commeth in with all In the printed Register among the Writs Iudicial we haue these 1 Regist. in Br. Iudic. fol. 38. a. words Quare secuti sunt placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And againe 2 Ibid. fol. 39. a.
cum traxisset in placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio c. prohibitionem impetrauit We haue further in the Register of originall Writtes to this effect 3 Regist. in Br. origin fol. 57. b. Quatenus ad correctionem animae non placita de catallis debitis concernunt c. licitè ex officio procedere poteritis c. And in diuers other Writs of 4 Regist. in Br. orig fol. 46. qua ter 49. a. Consultation there to this purpose Prohibitionem nostram impetrauit asserens se trahi in placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio c. Inso much that this 5 Regist. in Br. origin fol. 46. b. 49. a. in fine Writ is entituled as by his name thus Prohibitio nostra or regia de catallis c. I finde a Consultation in the 6 Regist. in Br. orig fol. 54. a. Register where is rehearsed that certaine Lay men of Couentree were by compulsories called into an Ecclesiasticall Court as necessary witnesses in trueth in a cause of legacie yet they to auoyde apparance and to obteine a Prohibition suggested that they were drawen into the Court Christian to testifie about chattels and debts not belonging to testament or Matrimony Now if that meaning of the Writ in controuersie which we here impugne were true what needed they to haue mentioned chattels and debts at all for then the other part of their suggestion though false had bene in Lawe sufficient to haue obteined the prohibition viz. That they were called against their wils to testifie in a Court Ecclesiasticall touching matters being neither Testamentary nor Matrimoniall But seeing they were driuen to pleade both it argueth that citing men to take othes and to depose against their wills in any other cause then those two is not simply and absolutely prohibited but for that the matter concerneth chattels and debts and yet is neither Testamentary nor Matrimonial And therefore not that which of late is enforced but this meaning of the Writ by me deliuered is the true interpretation thereof The very Writte it selfe set downe by 7 Abridgement of the statutes Prohibition 6. Rastall at large doth establish this interpretation Rex Episcopo Norwicensi c. salutem Cùm cognitiones placitorum c. super turatis Recognitionibus Laicum feodum contingentibus rebus alijs ac causis pecuniarum alijs catallis debitis quae non de testamento vel matrimonio ad coronam dignitatem nostram pertineant c. for if Iurata recognitio being in the same writ should signifie a diuerse thing then must we needes say that the recital speakes of a matter to be remedied and yet the remedie giuen is of another nature and so not pursuant to the former Furthermore the tenour of that writ runneth to the Bishop of Norwich and to his Archdeacons c. yet those wordes thereof whereupon the doubt riseth are not directed to them as if they should be charged thereby which had bin most apt if any such thing had bin meant not so to cite lay men or that they should not charge them with such oathes or that they should not suffer such Recognitions to be made afore them but it is there saide that the King had commaunded the Sherife that he should not permit quod laici conueniant in aliquibus locis ad faciendas recognitiones c. which vse of the wordes ne laici conueniant and the changing of the persons argue strongly that it was meant of such recognitions of debts and chattels and such oathes as Lay men of themselues were willing ynough to make and therefore had neede of such restraint by the Sherifes authoritie which their voluntarie perfourming thereof without vrging by censures is also argued by that which is there said of the Ordinaries accepting at Lay mens hands of such things viz. vobis praemissa alia consimilia in partibus illis acceptantibus This of their willingnesse without constraint is also prooued by the wordes immediatly following the point in controuersie viz. ne super huiusmodi feodis debitis catallis coram vobis alijs iudicibus Ecclesiasticis in praeiudicium iurisdictionis nostrae regiae ad coronam dignitatem nostram spectantibus subire praesumant Whereby as in a thing needefull Lay men are charged not to dare or presume in any other causes before Ordinaries to make any such Recognition or oathe touching goods or chattels preiudiciall to the Crowne by which wordes this our interpretation is expressely established Nowe if those wordes in the copie of the Prohibition and of the Attachement in the Register shal be obiected against this viz. Ad citationem talis Episc. And those Ipsis inuitis I answere that for many absurdities thereupō following which are afore noted these wordes cannot stand with the writ in Rastall nor with the interpretatiō that is by some of late vrged But vnderstanding them as I declare of citations and compulsories to make answere or testifie by oathe concerning chattels and debtes not belonging vnto matter testamentary or matrimoniall maketh al most aptly to agree together For whether we say that Ordinaries then vsed to cite all in generall of their Dioecesse who had made promises or contractes in lay causes by worde onely or by writing to come and confirme them by their faith giuen or by their corporall oathes before them for better confirmation and securitie of the bargaine as some wise and learned haue thought very 1 Pro huiusmodi rebus per vices trahitis coram vobis Prohibition in Rastall vbi supra probably or whether they be meant of citing parties to put in their answeres by oath concerning such chattels debtes in demaund confirmed by faith or oath giuen or of witnesses being not willing to depose in those causes or of all these three it is assured that he who findeth himselfe grieued thereby wil be vn willing and that albeit the pretence of such Ordinarie be to punish the sinne onely yet hereby per obliquum the conisance of lay contractes wil be drawen to eccles courtes and so the Kings courtes vnto which they properly belong shall thereby be encroched vpon preiudiced But this cannot be truely said touching matters of meere ecclesiastical conisance being neither testamentarie nor matrimoniall though lay men be vrged by courtes eccles to answere or testifie in them vpon their oathes Besides what damage cōmeth to the cause nowe by vs defended if we say that the absurdities following vpō such their interpretatiō being not a fore wel weyed he out of whose copy the Register was printed vnderstāding it as they doe was content to adde those two clauses for an explanatiō of the said writs according to his owne meaning or that he was willing they should so be vnderstood which perhaps enduced him
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
pursuite of the writ De excommunicato capiendo being ouer-trouble some and full of vnnecessary circumstances But hereunto he doth answer that we forget the olde and true saying Compendiaria res improbitas virtus longa Now if he will haue this to be a good answere then must he holde the shorter way alwayes to be the woorse and the longer the better And where is then the rule of Logike Frustrà fit per plura quod fieri potest per pauciora and how is he so suddenly fallen out with himselfe that else-where condemneth Courts ecclesiasticall for lingering consistories I perceiue neither long nor short will please him long together But his reason is a fallacie of the consequent For though it be but a short cut vnto wickednesse and the way vnto vertue be long and hard yet is not all length commendable nor yet are all short courses condemnable The latter opinion of the two here also to be handled doth crosse thwart other of their owne opinions for the Ciuill law saith Frustrà fertur sententia nisi parata sit executio A decree or iudgement is of no effect where execution of such sentence can not be had The Iudges ecclesiasticall haue no compulsorie meanes to put their iudgements vnto finall execution sauing excommunication the writ De excommunicato capiendo after forty dayes obstinacie Those of the impugners of ecclesiasticall iurisdiction vnder pretence of the lawes of the Realme that be straitest laced doe yeeld causes testamentarie and matrimoniall to be of ecclesiasticall conusance and I hope sundry others be prooued no lesse to be Now how shall any of those be euer effectually proceeded in seeing they are none of the tenne crimes reckoned in that statute if for not performance of that which is decreed the wilfull partie shall neuer be attached for persisting vnder excommunication It appeareth also plainly by the Preamble that the sayd statute was enacted for better assistance vnto iurisdiction ecclesiasticall by more due execution of the writ De excommunicato capiendo especially against offenders in crimes of ecclesiasticall conusance The Ordinaries afore this who had to deale in any matter ecclesiasticall and all subiects that sued any other there had this interest of hauing a contemptuous person being excommunicated and so remaining aboue fortie dayes to be attached and imprisoned by vertue of that writ vpon what originall cause ecclesiasticall soeuer such contempt grew Now if that statute prouiding but a straiter course for execution of that writ in tenne crimes onely should with all take away the force and vse of it as it stood afore at the Common law not onely in sundrie other crimes of ecclesiasticall conusance still there punishable but also in all causes Testamentarie Matrimoniall of tithes and in all other rights ecclesiasticall in that Court onely still demandable then should it worke a cleane contrary effect to the very true drift and scope aimed at and to the meaning it selfe of the Law-makers But this is very vnreasonable and absurd to imagine for quae in fauorem sunt introducta non debent in odium retorqueri and quae ad vnum effectnm parantur non debent contrarium operari effectum It is true that in the beginning of the body of that Statute the words be generall in this sort viz. Euery Writ of excommunicato capiendo that shall be granted out of the high court of Chancerie against any person or persons c. Whereupon some very learned in those lawes haue thought that the maner of granting it returning and deliuering it which be there especified doeth reach vnto all and euery writ de excommunicato capiendo but yet that the new penalties there prouided for such person excommunicate as shall not yeeld his bodie are to be restrained vnto those onely who by Significauit are certified to haue bene excommunicated vpon some cause or contempt arising vpon some originall matter of some of those ten crimes there especified This seemeth to carie great reason with it for in trueth that generalitie there not withstanding not only in the Preamble but in diuers partes of the body of that statute we find wordes taxatiue and of restraint carying the chiefe purport of that Act vnto such writs as be grounded vpon some of those ten crimes For the Preamble onely speaketh of persons offending in many great crimes and offences of continuing in their sinnefull and criminous life and of such offenders And the beginning of the bodie of the Statute is for redresse thereof be it c. and afterward this word of Limitation is often vsed viz. Such writ of excommunicato capiendo such persons excommunicate and such Significauit And therefore that statute nor any Prouiso in it cānot be entended generally to take away the writ de excommunicato capiendo in all causes sauing in those ten crimes as by this opinion is enforced But the clause thereof Sauing and reseruing to all persons hauing authoritie to certifie excommunicate persons doth put all this matter out of doubt and dispute For thereby is saued and reserued to them like authoritie to accept and receiue the submissions satisfactions to absolue and release and to signifie and thereupon to haue such writs c. in such maner and forme as heretofore respectiuelie they haue vsed as hath bene accustomed and as they or any of them had or ofright ought or might haue had anything in that statute specified or conteined to the contrary here of notwithstanding If then they may still signifie in like maner and forme shall haue writs thereupon may absolue and release receiue satisfaction and submission c. as they had done before that time then may and ought the writ de excommunicato capiendo to be awarded for contempt arising on other originall causes ecclesiasticall then any of those ten crimes in that statute reckoned For so Ordinaries did and had afore that time and since also whatsoeuer this opinion now doeth deliuer to the contrary CHAP. XVII Of a Prohibition what it is where it lieth not and where it doeth and how it ceaseth by a Consultation of the writ of Indicauit WHen any Court goeth beyond his bounds and dealeth in other matter or sort then the lawes of the land will warrant there lieth in some cases writs at the common lawe which are of Prohibition or Indicauit and in other cases a writ brought in by statute called Prouision and Premunire and the Prohibition and Praemunire doe lie as well against temporall as against ecclesiasticall Courts The Prohibition is a charge by the kings writ to forbeare to hold Plea either in some matter or maner which it is supposed a man dealeth in beyond his iurisdiction or otherwise then lawe will warrant Euery Prohibition is either Prohibitio iuris by the very lawe it selfe or Prohibitio hominis where the ministerie of the competent iudges in that behalfe is vsed Any Statute prohibitorie is 1 21. E. 3. fol. 29. Prohibitio Iuris a very prohibition
in it selfe and therfore it is a contempt to sue against it In a prohibition we are to consider In what matter it lieth not at what time it lieth not where and when it lieth how it ceaseth or looseth his force For the first it is 2 18. Edw. 3. pro clero ca. 5. prouided by statute and the king there determineth thus that no prohibition shall goe out of the Chancerie but in such case where we haue the Conisance of right ought to haue And therefore Thirning 3 M. 2. H. 4. fol. 15. said when we see the iurisdiction belongeth not to vs wee will graunt a Consultation So that if the matter be meere Ecclesiasticall there lieth no Prohibition Touching the second point it seemeth a Prohibition is not to be granted till by sight of the Libel there appeare cause to grant it For 4 31. H. 6. fol. 14. Henkstone held that by the statute de Regia prohibitione de coniunctim fe offatis in fine a man shall not haue prohibition antequam lis sit contestata in curia spirituali which is till a libell be put in and the partie put to answere it this is to be certified to the Chancellor by the view of the Libell which Fortescue granted But this hath two exceptions one is when the copie of the Libell contrary to the Statute 2. H. 5. is denied for vpon this cause I finde a 1 M. 4. E. 4. fol. 37 prohibition granted that the Ordinarie should surcease till the copie of the Libell according to that statute were deliuered another exceptiō is in some court where a surmise is made that the suite in trueth is for some other matters then are expressed in the Libell for Brooke reporteth that 2 Brooke tit prohib nu 17. a man may haue a prohibition in the kings Bench vpon such a surmise as for example by surmising the suite to be in deede for great timber though it bee demanded in the Libel vnder the name of Sylua caedua but he saith it is otherwise in the Common Pleas. Touching the third point for what causes a Prohibition is granted I find it may be granted either in respect of some of the parties to the sute or in regard of the Iudge before whom it is or for the very matter handled For the first of these three If a 3 T. 12. H. 7. fol. 22. Parson of a Church do sue another Parsons farmour or seruant for right of tithes being not such as can trie the right of tithes Fineux held that a prohibition may be granted Here of see further in the 6. chap. afore Touching the second it may be granted either for the Iudges contempt as in not deliuering copie of the Libell as is afore touched or for that he hath not in deed any iurisdiction for so it was iudged by Hankeford and by the whole Court as it seemeth in the vicar of Saltash his 4 M. 2. H. 4. fol. 15. case being cōuented before the Popes Collector Though a Consultation did otherwise lie the court wil not grant it to one that hath no iurisdiction in right Concerning the third and last poynt of the three if the matter bee Temporall that is such as 5 Stat. de consultat 24. Ed. 1. there lieth redresse for by some Writte in the Chancerie then there lieth a Prohibition as seemeth by Statute to which agreeth the 6 Lib. 2. ca. 24. place before alleaged out of the booke of Doctor Student Yet this hath also two exceptions one is whereas the Spirituall Court holdeth Plea quite to another end For 7 Artic. Cleri 9. Ed. 2. cap. 6. when one the selfe same case is debated before Iudges spiritual and temporal as for beating of a Clerke there the statute is that notwithstanding the spirituall iudgement the kings Court also shall debate it For both these conisances tending the one to the amends the other to the excommunication may stand together as is shewed in the 8. chapter The second exception hereof seemeth to be 1 T. 9. H. 3. per Fitzh Prohib when one Clerke sueth another in the spirituall Court for the goods of his house for there lies no prohibition as when one Abbot sueth another Secondly a prohibitiō lieth where a matter being at first ecclesiasticall brings at last in debate a meere temporall matter with it to be determined Therefore it was holden that so soone 2 38. H. 6. fol. 21 as it appeareth that the right of tithes comes in debate the laie Court shall cease and be out of iurisdiction and the same law is of the spirituall Court for if it may appeare that the right of aduowson may come in debate although it appeared not at first the spirituall Court must surcease quod fuit concessum This may happen as for example when suite is brought at first for right of tithes and it fals out by depositions or otherwise that the tithes 3 Circumspectè agatis 13. Ed. 1. demanded amount to the 4. part of the benefice by yeere in which case it is determined that the temporall Court shall haue conusance euen as if the right of Patronage were in demand principally Thirdlie a prohibition lieth for such a cause 4 Doctor Student Loco d. as albeit there lie none action for it in a temporall Court yet the matter is such as of custome neuer belonged to an ecclesiastical court As if an ecclesiasticall court would hold Plea against an executor vpon a bare contract made by his testator for neither the court may heare it nor yet there lieth action for it in a Temporall court Fourthlie there lieth Prohibition when the suite tendeth to determine and giue execution in a temporall matter as money c. being due otherwise then by the iudgement giuen in the Court ecclesiasticall Therefore if a composition by indenture 5 11. H. 4. fol. 85. be made by an Ordinarie betwixt two ecclesiasticall persons that the one shall haue tithes the other an annuitie with penaltie for default of paiment the suite for this shall bee at the Common lawe but the suite for any thing that riseth vpon a iudgement giuen in the spirituall Court shal be there per Hill For 6 T. 12. H. 7. fol. 22. though amends bee to bee made by a certaine summe of money this is no necessarie cause to grant a prohibition no more then when the suite is for tithes yet the condemnation in money being the valew of them nor when a penance is redeemed by the partie for money which may be sued for in a spirituall court per Butler Because when an offence is done to a man it is 1 Ibidem reason that he haue amends for it but there can be no more proper amends then money because euery thing may be valued by money per Keble Which they speake to prooue that amends in money may be awarded in an ecclesiasticall Court for Diffamation
found by some with the ceremonie vsed in giuing the othe and because the othe is giuen in a cause criminal and penal to themselues In the ceremonie at taking an oth there is reprehended by some the laying of the hand on a booke and the swearing by the booke or by the contents of it Of meaner circumstances falling out in proceeding that they challenge some are concurring with the very tender of the oath as that they haue not distinct knowledge of euery particular whereupon they are to be examined before they resolue whether to take the othe or not and other are ensuing the othe and examination as that the Iudges doe not rest in that which is affirmed or denied vpon their oth but oftentimes proceede to a further examination by witnesses vpon the same pointes All which I mind God willing to prosecute in the same order that I haue here set foorth hauing first touched some matters that I holde not vnnecessary to be knowen by the vnlearned sort for the better opening and vnderstanding of the disputations following THE CONTENTS OF the Chapters of the Second part of this Apologie OF the distinction of offences and seuerall kindes and endes in punishing chapter 1 them with the necessity of punishments Of two sorts of prosecution of crimes and offences viz. by a party of office chapter 2 the practice of them in Scripture and in the seuerall Courtes of this Realme Of the sundry kindes of obiecting crimes by a party mentioned in the Ciuill law as by reason of a mans publike charge and function also by way of chapter 3 Exception Supplication Complaint Delation and Accusation The true signification of the word Accusatio his diuers acceptions definition exposition thereof with some reason of the frequencie of accusation in courts of the Ciuill lawes in former times is also declared That the prosecution of crimes by way of Accusation is in most places forbidden chapter 4 or growen into disuse the reasons hereof be partly the danger to the Accusers and partly the hatefulnesse of that course Therein also is disputed whether all Accusation be vnlawfull and certeine points deliuered to be obserued by all them that will accuse others Of the seuerall acceptions of this word Officium the signification of Inquisitio chapter 5 Quaestio Crimina ordinaria extraordinaria the reason why Inquiry by office came in place of Accusation of Enquiry generall and speciall of Enquiry speciall ex officio nobili siue mero mixto promoto and of the priuileges of proceeding ex mero officio aboue the other Of Denunciation a speciall meanes of stirring vp the Office of the manifolde chapter 6 vse thereof in the olde Common weale and Empire of Rome and at this present on the other side the Sea the general acception of that word and of foure kindes of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expenses And what course of dealing against crimes and offences is holden both in courts of the Ecclesiasticall Commission and in Ordinary courts Ecclesiasticall in this Realme That the Ciuill and Canon lawes allow sundry meanes to ground a Speciall Enquiry chapter 7 of office against a crime besides Accusation and Presentment therein is also conteined an answere to a supposed rule and declared how from Generall they descend to Speciall enquiry and that besides those two either à Fame or Clamosa insinuatio or Priuate Iudiciall Denunciation or Canonicall Denunciation or Indicia or taking with the maner or other Notoriety of the fact or appeachment by some of the complices or collusion of the Accuser or the not obiecting in due time that euery of these do want or when the Enquiry tendeth but to a Spirituall punishment may seuerally any of them serue to warrant such Enquiry with some obseruations touching the nature of most of these That to proceed sometimes against an offence otherwise then vpon an Accusation chapter 8 or Presentment or then vpon an Appeale or Enditement which two at the Common law haue respectiue correspondence vnto the two former is no diuers much lesse any contrary or repugnant course to the lawes statutes and customes of this Realme this is prooued by Common law statutes and practice in proceeding informatiue and Punitiue with answere to certeine obiections made to the contrary How the second opinion here to be treated of is that no lay person may chapter 9 be cited of office in any cause but testamentary or matrimoniall and that the drift of that opinion is against proceeding of office in matters criminall the necessary vse and equity of proceeding sometimes criminally by the Iudges office in courts both Temporall and Ecclesiasticall Conteineth an answere to some further obiections made against the conueniency chapter 10 and reasonablenesse of proceeding against crimes of office That the lawes of the Realme do vse Enquiries and proceedings ex officio that chapter 11 they allow it in courts Ecclesiasticall with answere to some obiections that are made to the contrary Is set downe a replie to the Note-gatherers answers giuen to certeine reasons chapter 12 that haue bene made long agone for to shew the like course to be also practised in Temporall courts and an answere to his reasons brought to proue that in proceeding of office there is some contrariety vnto the lawes of England That the Enquiry ex officio against crimes is allowed both in Ciuill or Temporall chapter 13 courts and in Ecclesiasticall also by the two lawes Canon and Ciuill Conteineth an answere to such obiections as vpon the Ciuill or Canon lawes chapter 14 are brought against all proceedings of office in causes Criminall by the Treatiser and the Note-gatherer Enquiry and proceeding of office without an accuser and grounded vpon chapter 15 some other of the meanes afore prooued sufficient to enter into such Enquiry is approoued by sundry examples of Scripture An answere is made to such obiections as out of Scripture or Ecclesiasticall chapter 16 writers be made against criminall proceeding of office by the Note-gatherer and others THE SECOND PART of the Apologie published in defence of sundrie proceedings by Iurisdiction Ecclesiasticall CHAP. I. Containing a distinction of offences and seuerall kindes and ends in punishing them with the necessitie of punishments ALl the controuersies remaining to bee handled in either of the two partes ensuing doe rest chieflie about the maner of discouering of such crimes as are punishable by ecclesiasticall Iurisdiction And because many bee talkers of these matters who vnderstand but litle the true nature of them therefore to giue light vnto the whole disputation to make it appeare to be a matter of no small consequence but much to be stood vpon before I proceed further I mind to touch some necessarie points seruing for the better vnderstanding of all proceedings against crimes And first of the diuersitie of faults in generall then the seuerall kindes of punishment of
of God and examples of holy Scripture I do not call to my slender remembrance where any criminall matters be appointed commanded to be prosecuted by a Partie but in very few places where any haue bene vsed who might properly be termed an Accuser or a Partie For albeit in sundry places of Scripture we finde Accusers mentioned yet in many of them such cannot be accusors or parties properly and strictly so termed but onely in a very large signification because their testimonies were receiued against those whom they denounced of crimes For where a man is partie himselfe making it as it were his owne cause and not the Iudges office there it is no reason that his owne testimony should be admitted 1 L. 1. §. in propria ff Quando appell Quia testimonium in propria causa vel quasi propria non valet And it may then be said to be a mans owne cause whereof he may reape benefit or dammage But more God willing shal be spoken hereof in his proper place Touching bringing crimes into question in Temporal Courts of this Realme that deale in matters ciuill or criminall it is to be first remembred that these Courts be of two sorts some vsing the Queenes immediate auctoritie yet the same still actually being in her Highnes as all the Courts at Westminster Others vsing but a kinde of mediate auctoritie deriued from the Crowne yet by her Graunt made in some sort their owne as deriued downe thereby vnto them For sundry subiects albeit they haue but a deriued power from the Queene as from whome through the dominions of this Crowne all iustice and iurisdiction to administer it whether Temporall or Ecclesiasticall doth originally flowe yet do not their Processes runne in the Queenes name nor her seale is vsed to them Of such Temporall Courts as sit but by such a mediate and deriued auctoritie from the Queene vnto them and therefore vse not her Seale or name some were in times past established for causes Martiall as the 2 Ric. 2. cap. Constables of England and the Earle Marshall his Courts whereof I haue very small experience and some for matters perteyning to the Peace And of these last some be for causes growing within the land as Courts of Counties Palantine of cities and townes corporate Sherifs turnes and Court-Leets or views of Francke-pledge and others be for causes Marine as all the Courts of the Admiraltie In temporal courts of counties Palantine in courts of townes and cities corporate fauing where some speciall custome preuaileth as in London many in Sherifs turnes and in Leetes the course of the common Lawe is for the most part obserued In Admiral courts the order of the Ciuill lawe of the Romanes because it is the written Common law of most nations not barbarous with whom wee haue to deale is especially vsed sauing where by Statute or Custome it is otherwise directed Of such courts as exercise the Queenes immediate autoritie some haue no letters Patents of Commission to direct them as the Parlement which is called and sitteth by the Queenes onely writ the Chauncerie from whence all originall writs do come and yet the L. Chauncellour or L. Keeper haue no Commission by letters Patents but receiue their authority by deliuery vnto them of the great Seale as I am infourmed the Starre-Chamber established of the Queenes priuie Counsell and some others to be called partly by praescription and partly by Statute the court of Requests by custome and praescription And the Counsaile in the Principalitie and Marches of Wales auctorised by Act of Parliament vnto such and in such maner as her Maiestie by instructions vnder her Roial hand-writing shal from time to time direct But those Courtes Temporall which sit by Commission and letters Patents for exercising in stead of her Highnesse the Queenes owne and immediate autoritie are either such as be vsually now holden at Westminster as the Courts of the Queens Bench the common Pleas the Exchequer and the Court of Wards and Liueries or in other places of the Realme abroad as Courts of Generall Assises Nisipriùs Gaole deliuerie Sessions of the Peace the Counsell established in the North parts the Court of Stannery in Deuonshire and Cornewall and as I haue bene infourmed the Court for triall of life and death at Halisax and such like I know that by speach and by vse also in sundry mens writings touching the aforenamed Courts such only as it were by a kinde of appropriation be most vsually called Courts of the Common lawe wherein matters of fact touching hereditaments contracts or misdemeanours be tried by a Iurie of twelue men because this triall is more frequent then any other But yet we are not to thinke that none but these may truely so be named as though the other were contrary to the Lawe Common seeing they be also allowed by the Lawes Statutes or Customes of this Realme aswell as those which proceede to triall by Iuries In the Courts afore specified that proceede to the triall of crimes by Iuries of twelue if there be any Appellour as of murder robberie or such like then may the prosecution most properly and truely be said to be done by an Accuser and at the prosecution of a partie If it be for the Queene whether it be by way of enditemenâ—… and be preferred by the Iudges themselues or by the Queenes Atturney generall or by some priuate person oâ—… be by way of Information put vp against some offence made poenall and not capitall and this either by the Atturney generall or by some other person then all such proceedings are in trueth done ex officio Iudâ—… And this either of meere and entire office as when the Iudge himselfe preferreth it or ex officio promoto as when it is first related and preferred vp vnto him and prosecuted by any other But in this last case there is a kinde of mixt proceeding betwixt both And albeit the Informer do prosecute partly for himselfe yet is it for the Queene also whos 's the Court is and so may be truly said to be of office This appeareth plainely in that the Appeller because he Is a meere partie is not so fauoured assisted and pâ—…iuileged in many respects as when the prosecution is instituted of Office for the Queene For the Appellee may put it to triall of battell with the Appellour which he cannot doe vpon enditement at the suite of the Queene Like wise whosoeuer doth preferre the endiâ—…ement or information though the defendant happen to be acquited yet the preferrer payeth neither costs nor dammages nor is subiect to any action in that behalfe as an Accuser and partie both is and ought to be But if the defendant be conuicted so the crime be not capitall but fineable then is the fine if it be imposed by the Court to come wholly to the Queene If by poenâ—…ll statute then most commonly it accrueth by disposition thereof partly to her Highnesse and partly to such priuate
person as informeth And the enditements be termed vpon their beginning Enquiries or Inquisitions which are alwayes ex officio Now these and such like be notes and markes whereby you may discerne proceedings of these Courtes in criminall causes prosecuted by an Accusour or partie from that which is done vpon the office of the Court for these two prosecutions doe differ in the end and they differ also in certeine priuileged points which that of Office hath aboue that which is by a partie In the end thus they differ because prosecution of Office aimeth at publicam vindictam a publique punishment whether pecuniarie to acerue to the Queene or corporall In deed in all capitall causes vindicta is in truth publique and exemplarie albeit both the Appellour onely doe prosecute perhaps after the Queene haue pardoned it and that he also seeke nothing els but priuate reuenge for his owne iniurie receiued rather then for an example to be made of the offender or for the Common weales satisfaction and contentment Of the contrary side prosecution in these Courtes of an offence criminall being not capitall by an Accuser or partie propoundeth for the most part but a Ciuill end that is some satisfaction and amends to be made vnto the complainant damaged as in actions of sundry trespasses in actions of the case c. And then doe the Ciuilians terme this Causa criminalis ciuiliter and the former Causa criminalis criminaliter mota Besides such difference in the end there be also some priuileges that are granted to the one course of proceeding which are denied to the other whereby those two kindes of prosecution doe differ As that in proceeding of Office for the Queene as was touched afore the defendant may not gage battell against the preferrer as he may doe against the Appellour neither hath any defendant in an enditement or information though he be acquited any costs allowed when the suite is for the Queene as he both hath and ought in iustice to haue when the suite against him is onely prosecuted by a priuate and wrongfull Accuser that was not able to iustifie his declaration as wee may terme it accusatorie of such priuate offence or misdemeanour whereupon he sued him Now let vs consider also how those Courtes which haue none vsuall triall by Iuries doe proceed against offences First the high Court of Parliament hath no great vse that I know of dealing against Offences but such as happen to be committed either by some member of the house during the time of Parliament or against the liberties and orders of that Court. In both which cases they proceed to examination of them either vpon the Notoriety of the fact happening among them or vpon credible relation of some but wholly without any Accuser or partie taking vpon him the proofe thereof with any hazzard of so much as Charges for wrongfull vexation if it should so fall out to be accounted And therefore such proceeding is also of meere Office In the Starre Chamber onely crimes and misdemeanours bee inquired of but especially those which I called afore Extraordinaria Crimina viz. such as haue either no certaine name or at least no set and determinate punishment by Lawe appointed and may not be punished there by losse of life or of limme but either by Fine by open shame and infamie by imprisonment by nayling or cutting of eares or deforming the face by banishing from some certaine place of the Realme or foorth of all the Queenes dominions or vnto a certaine place abroad or by condemnation vnto the Galleis perpetually or for a time c. The misdemeanours punishable in the Starre Chamber bee brought thither into question for the Queene onely either by her Maiesties Atturney generall and that is by bill of information or Ore tenus or els be brought vpon bill preferred by some priuate person that is grieued In all which Cases albeit there be found one which doth prosecute yet can he not truely be called an Accusour or a partie for the reasons before alleaged viz. of the end propounded which is publica vindicta and for other great assistance and priuiledge which that Court giueth to the prosecutor against the def in respect that it is for the Queene And namelie that he is to answere not onely to the Bill vpon his oath but also to Interrogatories more particularly criminall then the Bill and the Interrogatories without counsell which in trueth therefore needeth not because they are brieflie drawen article-wise and concerne but matters of fact within his owne knowledge as is entended Vpon all which matter it followeth that the prosecutour there is but as a relatour partly to stirre vp and partly to ease the office of that Court by furnishing it with proofes Neuerthelesse I am not ignorant that sometimes when it appeareth manifestlie to their Lordships that the plaintife being some priuate person hath calumniously and of malice onely vexed the def then such plaintife there is and iustly also may be condemned in costes and damages for his apparant calumniation and wrongfull molestation of the def Vnto which courses of the Starre Chamber I take the Courts of the Queenes Counsell established in the Marches of Wales and in the North partes to bee also agreeable in their inquiries and examinations of crimes and misdemeanors In the Chancerie and Court of Requests being both Courtes of equitie if any misdemeanours or crimes be diduced and laied downe in the Bils which happeneth very often yet are they not Criminallie laid to haue the def punished for them but onely Ciuilly to the intent that the plaintife may haue an amends and priuate satisfaction as shall be deemed to bee equitie And therefore such prosecution is not by Office of the Court but onely at the parties suite albeit the Office in the Chancerie doe thus farre assist the plaintife for sifting out of a trueth that the def must answere euen to the Criminall points of the Bill vpon his corporall oath But he may not in those two Courts be put to answere the plaintifes interrogatories vpon his oath except the plaintife will be concluded by the def answere vnto them and seeke to make no further proofes But of all the Courts temporall aforesaid aswell those which proceed to the triall of misdemeanours by Iurie as of others I thinke this may bee generally affirmed That when any lewde practice abuse or contempt not capitall not tending to mutilation is supposed to be done against the Court there euen of meere Office without any Accusation or prosecution of any partie by Bill the Iudges of such Courts doe Enquire thereof by examining and by interrogating euery one that is holden suspected thereof or to be priuie thereto vpon their corporall oathes first taken Let thus much then suffice for the two sortes of prosecution and bringing Crimes into question by the course mentioned in Scripture and by vse and practice in Temporall courts of this Realme CHAP. III. Of the sundry kindes of obiecting
vsually In what detestation and hatred this kinde of men though not altogether vnnecessarie were had amongs the old Romanes this saying of Quintilian doth manifest 5 Quintil. lib. vlti cap. 7. Ad deferendos reospraemio duci proximum est latrocinio To be induced for reward or gaine to preferre criminall matter against offenders is next a kin to robberie And in deede Delatours were farre more stomacked and maligned then other Accusours as may bee gathered by these places in the Ciuill lawe 1 l. 3. C. de Malefic Wee doe iudge him that accuseth in such a crime to deserue rather rewarde then to bee called a Delatour And againe in another place 2 l. Nulli in fine C. de Epis. Cleric Let not such feare either the name or suspicion of Delatours The last of those wayes by which a partie brings offences into question and discussing before a Iudge is Accusation It is called 3 Isidor vt in c. forus de verb. signif Accusatio ab Ad Caussa quia Accusator quasi ad causam vocat There bee other wordes of neere signification vnto this yet not the same altogether as postulare when it is vsed with the ablatiue case Postulare aliquem crimine insimulare incusare and such like But there is a difference noted betwixt this last and Accusation which is this We are saide saieth 4 Servius in prim Aeneid one properly incusare such as bee our betters and to accuse those that be our equals or inferiours But this difference is not much obserued 5 l. Qui accusare C. de edendo l. Si maritus § Si negauer ff de adulter This worde Accusation is sometimes so generally taken that it signifieth an Action in a Ciuill cause like as on the contrary side Action is taken for Accusation Tullie pro Milone nameth it Actionem Perduellionis But most properly it is called Accusation when it is intended in causes Criminall We reade of inwarde and of externall or outwarde Accusations Internall Accusation is of a mans owne conscience Such is the Accusation spoken of by Salomon 6 Prouerb 18. vers 17. Hee that is first in his owne cause is iust or as the vulgar Latine translation readeth it The iust man is the first Accuser of himselfe Externall or outward Accusation is either Priuate or Publike Priuate is either betwixt enemies or betwixt friendes That priuate Accusation and imputation which is among enemies is of three sortes either spitefull vpbraiding called of the Grecians by the generall name 7 Plutarch in vita Publicol of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a worde also fitting euery Accusation or reproche and reuiling called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or els Calumniation that is malicious or false wresting of his enemies wordes or actions to an offensiue purpose Priuate Accusation of one friend touching another is nothing els but a friendly expostulation with him that is supposed not to haue dealt singlie or considerately in the course of good friendship called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Grecians That Accusation which is publike is either ciuillie moued that is for priuate amends vnto the partie grieued or criminallie that is for some publike punishment whether it be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And it is that Accusation which here we especially treate of This publike Accusation is sometimes done ore tenus that is by bare wordes without writing which the Grecians doe expresse also by the aforesaide name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But most vsually publike Accusation is made by writing That which is conceiued in writing in a more large signification conteyneth and reacheth euen vnto those preferrings of crimes afore spoken of that are done by Exception or Chalenge by Complaint or by Delation And vnto this publike Accusation which is of more generall acception that definition of Aristotle agreeth viz. that it is a publike declaration against some of iniuries or crimes committed But in the strict and proper signification it is taken for that solemne Accusation termed by the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and also sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when as this latter is not taken generally but for the most especiall kinde thereof onely The effect of this Accusation when the crime declared is proued to bee true and by arguments conuicted is called by the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is 1 l. indicasse ff de verb. signific as the Latines doe expresse it arguere There is also another different acception from the former of the worde Accusour that is not hitherto touched which is when that worde is applied 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vnto any that testifieth some criminall matter against another And in this signification wee doe finde it very 2 Vide infrâ—… cap. 15. vsually taken in holy Scripture as shall afterwarde more fully appeare So in sundry statutes of this Realme as namely in these wordes of a statute viz. duely accused or detected by two lawfull witnesses 25. Hen. 8. cap. 14. and in such other statutes whereby is required that the Accusours be brought face to face against the prisoner meaning thereby such witnesses as are to giue euidence vpon their oathes against the partie conuented Hereof we haue diuers examples and namely in these wordes of a statute 3 1. Ed. 6. ca. 12. in fine That no person shal be conuicted c. or suffer c. vnlesse the same offendour c. be accused by two sufficient lawfull witnesses as shal willingly without violence coÌ„fesse the same Where the witnesses sayings are called Accusation their Depositions Confession Likewise in the same Kings dayes where it is thus prouided 1 5. 6. Edw. 6. cap. 11. That no person shal be convicted c. for any treasons c. that nowe be or hereafter shal be c. vnlesse the same offendour be thereof accused by two lawfull accusers which saide accusers at the time of the arraignment of the partie accused if they be then liuing shal be brought in person before the partie so accused and auowe and mainteyne that that they haue to say against the partie to proue him guiltie of the Treasons or Offences conteyned in the Bill of inditement So that here those that giue euidence to prooue the matter of the enditement which must needes be the witnesses are called Accusers which termein these like statutes seemeth to haue bin borrowed from the coÌ„mon speach of men who often vse to say thus Who is able to accuse me of such or such things meaning to testifie against them rather then that the true proprietie of the worde was there followed For Iustice Brooke in his Abridgement testifieth 2 Tit. Corone nu 220. That the common triall at the Common lawe is by Iurie and witnesses and not by Accusers So that albeit witnesses touching offences by some statutes and by vsuall speeche of the vulgar sort be
contagious plague vnto it Lastly Accusation may not be vsed for gaine and lucres sake For such Accusers especially are odious to all men Another heathen writer could say thus heereof 1 Quintil. siue Tacitus de claris Orator The vse of this gainefull and bloudie eloquence is sprung vp of late times by corrupt custome and was deuised as one Aper was woont to say but instead of a iaueline or dart to thrust men thorow with In locum teli repertus So that if men could keepe themselues strictly within these former boundes then prosecution by Accusation would neither be so perilous to the Accuser nor yet so hurtfull vnto others but that it might still haue a tollerable and profitable vse in Christian Common weales And then that which Tullie writeth might haue place where hee sayth that 2 Pro S. Roscio Amer. it is profitable to haue many Accusers in a Common weale yet so as that men be not abused by such Accusations And thus much for prosecution of crimes by a partie CHAP. V. Of the seuerall acceptions of this word Officium the signification of Inquisitio Quaestio Crimina ordinaria extraordinaria Cognitio ordinaria or perpetua extraordinaria the reason why Enquirie by Office came in place of Accusation of Enquirie generall and speciall Enquirie speciall ex officio nobili siue mero mixto promoto and the priuileges of proceeding ex mero officio aboue the other NOw because the aforesaid Cautions be so hard to obserue and for that Accusation is so odious and of so perillous consequence albeit these foure points were kept in case either the Magistrate or people among whome wee liue should not so construe our doings as perhaps we doe sincerely meane them therefore where there be so many difficulties incident to Accusation lest crimes and offences should remaine wholly vndiscouered and so vnpunished to the great detriment of the whole body of the Common weale and Church It was very necessarily prouided in most places of the world to haue the Iudges office by Enquirie to supply this want and scarsitie of Accusers and parties which is the other generall meane afore spoken of whereby offences may be brought into question examination The Office or duetie of the Iudge is the cause efficient of this prosecution and Enquirie is the peculiar effect and act which in Criminall matters that cause produceth or the course whereby the Office doth proceed and is that kinde of prosecution which is counterdiuided against Accusation and prosecution by a partie The word Officium in the Ciuill law from whence it is taken hath diuers acceptions It signifieth either priuate dueties and thinges of conueniencie to be regarded and practiced in the common life and societie of man with man or els some more publike function And in this latter signification we reade of it to be taken two wayes By the first for a ministeriall function vnto some Court hauing iurisdiction And by the second for the power authoritie or iurisdiction it selfe of the Court I doe obserue three seuerall ministeriall functions termed in the Ciuill lawes by this name Officium The first are those persons that were publikely appointed to present crimes vnto the Magistrates as in these words 1 L. ea quidem C. de accus inscrip Quae per officium praesidibus nunciantur The second denoteth vnto vs an Apparatour as in these words 2 L. 1. C. de Ap. parit Procoss lib. 12. Officio quod tuis meritis obsecundat non Curialem quenquam nec excaeteris corporibus volumus aggregari c. The third an Actuarie that entred the acts of the Court as in these lawes 3 L. 11. C. de Numerarijs Actuarijs li. 12. Officio tuae magnitudinis datis precibus postulant c. And againe 4 L. 1. C. de offic Comitis sacri patrimonij Officium Hellesponti adijt rogauit c. In both which lawes by the word Officium an Actuarie is vnderstood But Officium signifying the authoritie and iurisdiction of the Iudge is that power whereby he may deale of himselfe without the petition or instance of a partie And this Office is exercised either in actions Ciuill or in Criminall In actions Ciuill 5 L. 56. ff locati l. 51. §. fin ff de act empti sometimes the Iudge doth of Office decree a thing which he findeth to be equall besides the action and besides the bond whereupon the action riseth and 6 L. Si longiùs §. 1 ff de iudic l. cum siliusfam ff de reb creditis l. 7. C. de iudic alibi passim sometimes also vpon a point in equitie hee relieueth by his Office such as the strict law giueth none action vnto Calistratus reduceth all causes Ciuill wherein a Iudge hath conusance extraordinarie vnto these two generall heads Per cognitionem 1 L. 5. ff de extraord cognit viz. extraordinariam siue officio Iudicis factam aut de honoribus siue muneribus gerendis agitatur aut de re pecuniaria disceptatur A Iudge exerciseth his authoritie extraordinarie in causes Ciuill either when hee taketh knowledge of bearing offices and functions or of causes pecuniarie But in causes Criminall hee practiseth this authoritie of Office aut cum 2 Callistratus ibid. de existimatione alicuius cognoscitur aut cùm de capitali crimine quaeritur when hee sitteth to take knowledge whether a mans honour or reputation ought to be atteinted or when he enquires and makes inquisition of some crime capitall viz. whereby a mans libertie countrey or life may bee endamaged This Office Ouid touched 3 Ouid. lib. 1. de Tristib in these wordes Iudicis Officium est vt res ita tempora rerum Quaerere The effect of the Iudges Office and the course which hee thereupon doth followe is called Enquirie Inquirere saith Bartolus est 4 Bartol in l. transigere nu 13. C. de transaction quasi intus quaerere diligentiùs abdita indagare secreta detegere in iudicium deducere It is to search into a matter deepely and carefully that is kept close to bring it to triall of iudgement which it deserueth This Enquirie in the old common wealth of Rome was more commonly called 5 l. 1. § item illud ff de S. C. Syllan Quaestio Which word hath two significations in that lawe The one more generall signifying any enquirie The other that enquirie and examination which was vsed vpon bond slaues and men of the meaner sort by torture Quaestionem sic accipimus sayeth the Ciuill lawe to this purpose non tormenta tantùm sed omnem inquisitionem defensionem or as another reading hath it detectionem mortis Where we see that the worde Inquisitio is also vsed Of this worde Quaestio such as dealt by it were called Quaesitores and so doth 6 Virgil. 6. Aeneid Virgil call Minos a Iudge quaesitorem Out of which by abbreuiation came the
of custome turned to a more moderate and sase course not onely for the Prosecuter but also for the defendant For mitiùs agitur 2 Abbas in ca. inquis de accusat cum inquisito conuicto quà m cum accusato He that is cōuicted by way of Accusation especially by the Canon law is more grieuously punished then he which is conuicted vpon Enquirie Which yet is alwayes so tied that being a prosecution of Office the Iudge needs not lend his assistance but where he seeth good and probable inducement to ground it vpon All Enquirie is either Generall or Speciall 1 Bald. in l. ea quidem C. de accusat Generall Enquirie is a preparatoriecourse proceeding of meere Office purposed to enquire and finde out criminous persons within some certaine territorie or compasse This is of three sortes The first is generall in respect of the persons but speciall in respect of the fault as when the Coroner inquireth of a murder committed and no certaine person knowen or an Ordinarie of a forgerie in some cause Ecclesiasticall And by this 2 l. 1. C. de falsa moneta l. 1. C. de rapt Virgin Enquirie generall in certaine hainous crimes euerie priuate person may enquire to bring the Offenders in by lawe to be iustified The second is generall in respect of the faultes but speciall in regard of the persons as when some Hospitall College or Cathedrall Church is visited The third and last is generall both in respect of the persons and faults as a generall visitation of a whole Dioecesse or an Enquirie made by the grand Iurie at an Assise or Sessions of the Peace for the whole Countie 3 Summa Antonini part 3. t. 9. c. 7. Speciall Enquirie is when some certaine and singular person and crime also is enquired of and brought by due course of iudgement vnto triall to the intent to be punished This Enquirie is done either when there is a kinde of prosecuter besides the Iudge albeit the proceeding bee of Office or when there is absolutelie no prosecuter besides the Iudge himselfe against the partie conuented There may besides the Iudge be prosecuters of the Office in two seuerall degrees One that doeth prosecute throughout the whole suite as when an Information for the Queene alone or for the Queene and Informer is put vp at the Common lawe and is termed by the lawe Ecclesiasticall Officium promotum The other which doeth but prosecute or sollicite in some part of the suite as by furnishing the Court with proofes c. which is called Officium mixtum in some temporall courtes a Relater Likewise 4 Abbas in e. cum dilectis de Purg. canonica Officium promotum is of two sortes The first is when a man voluntarilie offereth himselfe to prosecute called Promotor voluntarius officij and he differeth a litle from a Partie The second is when the Court assigneth one to sollicite the Office who is termed Necessarius promotor officij because hee may not refuse this emploiment But when no persecuter at all doeth stirre in the matter then the Court onely doeth it in duetie to the Common wealth and to see sinne and disorder punished Then is this Enquirie termed Officium simplie or Officium merum by the Canon lawe and by the Ciuill lawes Officium Nobile as of more woorth and dignitie then the other course which is by a Partie and at his petition and instance For by a more base appellation in comparison of the former that lawe termeth this Officium Mercenarium ac si merccde aliquâ propositâ alterius petitiont quasi deseruiret that-is when the Office of the Iudge is as it were hired and employed but at another mans becke to serue his turne For albeit in temporall courtes of other realmes long custome which is 1 Crauetta Consil 238. nu 7. the Wel-spring of all their iurisdiction hath 2 Alph. lib. 3. c. 11. established the verie same course of proceeding in causes criminall euen at the instance of a Partie with that which may bee done when the Office of the Court alone proceedeth neuerthelesse the lawe it selfe hath giuen greater priuiledges vnto proceeding of Meere Office then vnto the other which was some occasion also why it was the rather called Nobile Officium Iudicis The first priuiledge is that whereas by lawe nowe altered by Custome an Accuser or Partie properlie so called is in danger of Poenatalionis if he faile in his proofes Propter praesumptam Calumniam yet the presumption and entendment 3 Arg. c. in nostr de procur in c. ad audientiam de praescrip of lawe runneth not so agaynst a Iudge exercising but the publike lawes by his Office as it doeth against a Partie And therefore is hee not subiect to that penaltie as a prosecuteris 4 l. iniuriarū §. 1. ff de iniurijs Non videtur facere iniuriam qui iure publico vtitur The next priuiledge by lawe yeelded vnto proceeding of Office in a Criminall cause which is denied to a prosecuter yea though he bee not an Accuser or Partie properlie so called is that the Iudge proceeding 5 Panor in c. qualiter el. 2. de accusat of Office may giue an othe to the defendant to answere some criminall matter But it is otherwise when the suite is at the instance of a partie which prosecuteth because the defendant ought not to bee driuen to furnish vp his aduersaries intention Thirdly an Ordinarie or delegate Advniuersitatem causarum that proceedeth of Office is not bound to make proofes of the 6 Pan. ibid. alij DD. fame sauing before his superiour Iudge if an appellation be brought and doe lie because it sufficeth that the fame is apparant and knowen vnto himselfe But it is otherwise in a delegate of one cause or vpon the instance of one that voluntarily prosecuteth Fourthly when the sute is at the instance of a partie contrarie proofes for proofe of the defendants good fame are admitted But this need not be granted vpon proceeding of Office because 1 Arg. c. in nostr de procur c. ad audientiam de praescrip the law doth not entend and presume against the sinceritie of the Iudge as against the partie prosecuting Fiftly vpon the instance of a voluntarie prosecutour or preferrer vnto the Office 2 Hostiens in c. cum clamor de testibus fit litis contestatio as I may English it an issue is ioyned betweene the two parties But if either one be but a soliciter and assistant to the Office or els a preferrer assigned by the Iudge or that the proceeding be of meere Office there is then no contestation in the sute properly so to be termed but a kinde of contradiction in sted thereof required betwixt the fame or denunciation c. on the one side and the defendants answere by deniall on the other side Lastly when the proceeding is of Office 4 Arg. c. cum clamor de
afore him the ecclesiasticall Iudge is to admit because they be referred onely to the parties reformation or restraint of him and of others by spirituall correction But his proceeding in them is for the most part summarilie and not Iudiciallie and as a spirituall Father rather then a Iudge The next kinde termed Denunciation Iudiciall in respect of the Denouncers and matters denounced is either publike or priuate 4 l. Dious ff de Cust. exh reis l. ea quidē C. de accusationib l. 1. §. sanè ff de off Praef. vrbi c. episcopus in Synodo 35. q. 6. Publike is that relation or solemne presentment of some crime which is made vnto a competent Iudge whether Ciuill or Ecclesiasticall by publike Officers thereunto appointed whereupon the Iudge of his pure and meere Office proceedeth by due Iudiciall course of special enquirie to the acquital clearing of the partie denounced if he be found innocent or to the punishing of him by some penaltie bodilie and temporall which is the peculiar end of this Iudiciall denunciation vnto which also no Monition is required to proceed But Iudiciall and priuate denunciation is that which may bee preferred by a priuate person in respect of a particular interest that hee hath as being either hurt or particularlie grieued by some fault or offence committed by another The ende here of is not onely the punishment of the offender but that the denouncer grieued may be restored or preserued harmelesse For explanation of the latter of these by examples first in a Ciuil or temporal court 1 vel alieni l. 1. §. Quid autem ff de off praef vrb as when he that is oppressed is a bondman §. pen. Inst. de his qui sunt sui or is subiect to another mans power as an apprentice is so that hee hath none ordinarie action against his superiour that doeth wrong him but by this Iudiciall denunciation is forced to flie vnto the Iudges office for remedie In a court ecclesiasticall 2 Innoc. in c. Insinuante Qui cler vel vov as when a religious person who hath no direct action agaynst his Prelate denounceth some grieuances done vnto him by his Abbot or other superiour or when as the poore of an Hospitall doe denounce and relate vnto their visitour some offences or grieuances done to them by the master thereof requiring punishment and remedie therein by his office in due course of lawe And these two Iudiciall kindes of Denunciation are most frequent in this Realme both in Ordinarie courtes and also in courtes of Commission for causes and misdemeanors ecclesiasticall But the first of them more vsuall in Ordinarie courts the second in courts of Commission The third kind of Denunciation is Canonicall so called because it had his originall from that lawe and it hath also vnder it two kindes The one more speciall to bee preferred and made by him onely who hath interest of hauing either his Prelate or Pastour good or els some ecclesiasticall person good who is vnder his iurisdiction And 3 c. 1. de offi Custod c. licet Heli. de simon the end of this Denunciation is to haue such being criminous to be remooued from their administration ecclesiasticall The other Canonicall denunciation is more generall in that it may be preferred by any whomsoeuer and concerneth either the hinderance 4 c. praeterea de Sponsalib c. cum inhibitio de cland despons or dissoluing of some mariage contracted or to be contracted within the degrees forbidden or els the desisting from some sinne which is of that qualitie that it increaseth by multiplicatiō of Acts in the same kind or by continuance of some one Act and wherein the Denouncer hath none other particular interest then as euery Christian hath besides The last kind called Regular is that Denunciation 5 Specul tit de Denunt §. 2. vers vt autem which is published by any person in Chapter touching some offence of his brother committed contrarie to the locall and positiue rules or statutes of that place to the intent he may amend it hereupon rather then that it should come to a more publike denunciation and from this there lieth none Appellation The two first kinds of Denunciation viz. Euangelicall and Iudiciall doe differ the one from the other in sundry points but especiallie in these following First 1 Pan. in c. noult de Iudiciis addie Vlt. euery one though he be infamous for some crime formerlie committed so he perseuere not in that crime still is admitted to denounce another Euangelically because it is indefinitelie commaunded by Christ as a necessarie office of Christian duetie for reclaiming of our brother from offending But none are to bee admitted to the publike Iudiciall denunciation besides those which be specially thereunto appointed sauing that the Canons 2 c. Causam Qui filii sint legitimi c. Quapropter 2. q. 7. c. Quisquis 1. q. 1. c. primo 5. q. 5. do compell all Clerkes to denounce the crimes of other persons ecclesiasticall and to the priuate iudiciall none but such as haue some peculiar interest And in this case it forceth not though such do euen then perseuere in a crime because vnder pretence of crime no mā is to be repelled from prosecution of his right Secondly Euangelicall denunciation is referred to the amendment of the offender whereas vpon the publike Iudiciall his punishment is propounded for an end thereof and the priuate is referred both to such punishment and that the thing be restored and the denouncer also preserued harmelesse Thirdly vpon Euangelicall denunciation there is no proceeding in foro contentioso or iudiciallie but onely in Poemtentiali whereas vpon Iudiciall denunciation there ensueth a due course of Iudiciall proceeding and thereof it hath his name Fourthlie and lastly in priuate iudiciall denunciation or witnesses other then such as be lawfull and without iust exception are admitted because it lieth for restitution of some thing But in Euangelicall for proofe of the first priuate monitiō the denouncer alone must of necessitie be admitted for the witnesse if the denounced doe denie the fault and for proofe of the second monition any one other together with the 3 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Mat. 18. V. 16. denouncer may bee admitted for two witnesses though both of them happen to bee infamous for some crime in times past by them committed so that at such time of denouncing they perseuere not in the crime But albeit the lawe be thus for admitting of some and reiecting of others from denouncing yet throughout all Italie and in other places of Christendom besides 4 Alphons Villa li. 2. de denunc Cano. concl 8. Custome in both courts hath thus farre preuailed as to suffer any mā almost to denounce whether hee doe it of his owne voluntarie minde or by occasion of a Charge and duetie in that behalfe laied vpon him The reason hereofis for that the Common wealth hath interest
Common Lawe will not giue so large a scope vnto Iudges ecclesiasticall against such doubters I will obiect those wordes of 3 Magna Charta cap. 1. Magna Charta where it is not a newe graunted but Confirmed onely That for euermore the Church of England shal be free and shall haue all her whole rights and liberties inuiolable And this is a confirmation of their rights and liberties before any graunt was made to the rest of the Realme besides being yeelded at such time when as through generall ignorance it was vntruly holden that the state Ecclesiasticall signified there by those wordes The Church of England had not their Iurisdictions from the Prince but from God alone deriued downe to them by the meanes of the Pope and therefore that their Courtes and Lawes whereby they proceeded were not in any respect to be accounted for Courts holden by the Kings auctoritie or their Lawes the Kings Lawes Whereupon arose that vntrue and preiudiciall phrase of seuerance of a Court Christian from the Kings Court So that if they were confirmed to them when their Iurisdictions in facte were not holden of the King as now they be and ought to be by Gods Lawe is there not then more iust cause so to continue them at this time seeing they be not so much as a diuerse course from the Customes and Lawes of the Realme in Courts Temporall But that this course of proceeding in causes Criminall sometimes without either Accusation or Presentment is in trueth a right and libertie of the Church of England may appeare by that which to this point hath bene afore deliuered and by the continuall practise also of those Courts in all ages as the Acts thereof from time to time doe make very manifest Yet this is more particularly and neerely prooued in the very point that we handle by a 1 1. Eliz. ca. 2. statute made in her Maiesties reigne where it is prouided that Ordinaries not only at any other time and place then at their visitations and Synods may take accusations and informations a word of farre more large signification then Presentment but may also enquire else-where within their iurisdiction Which Enquirie is afore shewed to be alwayes ex Officio and being absolutely spoken without further addition and in some sort seuered from all ki◅de of Informations must necessarily be without Presentment But how farre and in what maner may they so doe Truely in like fourme as heretofore hath bene vsed in like cases by the Queenes ecclesiastical Lawes If then to proceed Criminally without either of them two be warranted practised by the Queenes ecclesiasticall Lawes as afore is shewed assuredly this Statute doth auouche and iustifie them To this disputation may be referred that obiection which the Notegatherer maketh touching a 2 11. H. 7. ca. 3. statute of K. Henry the seuenth Note gatherer whereupon he saith Empson and Dudley proceeded that was 3 1. H. 8. ca. 6. repealed by another in the time of K. Henry the eight although he putteth it vnder his title of the lawes of England as by them seeking to impugne al proceeding ex officio albeit vnder presentment which this opinion alloweth proceeding ex Officio is necessarily implied and presupposed For answere whereof it is true that the saide statute was so repealed but whether it were the same and the onely statute whereupon Empson and Dudley proceeded is left there vncertaine and vntouched Howsoeuer it was in this behalfe seeing it authorised all Iustices of Assise and of the Peace to proceede thereby it is most probable that many besides them two did also deale by vertue thereof The effect of the saide statute was that vpon information to be made for the King afore Iustices vpō any penal statute not extending to life or member they might without enditement heare and determine all offences against the forme of any statute in force The reason of making the said statute is signified by the preamble to haue bin for that although at Sessions charge was giuen to enquire of many offences against statutes and Enquests to that effect were straightly sworne and charged to enquire and to preferre the trueth yet they were letted to be found by imbracerie maintenance corruption and fauour by occasion whereof the statutes coulde not be put in due execution And againe in the same place The twelue men for the causes afore rehearsed will not finde nor present the trueth Howesoeuer this were at that time it may bee feared that it is in some place too true still euen vntill this day So that if this were then a sufficient cause to make such a statute the cause still continuing if not encreasing that statute will seeme to haue beene in that regarde lesse vnreasonable In the statute of Repeale thereof for the reason of abrogating 1. Hen. 8. c. 6. it is onely assigned That thereby many sinister craftie feigned and forged informations haue beene pursued to the great damage and wrongfull vexation of the subiectes But this might aswell happen euen when men be prosecuted by way of enditement For is it not vsuall to finde them vpon any one mans euidence and information the Iurie not regarding oftentimes what enimitie rests betwixt them Therefore it was not the course by information that displeased but the badnes of the informations that gaue occasion of repeale For by statute euen in K. Hen. 8. 31. Hen. 8. c. 14. his dayes an Information was made equiualent vnto a presentment by verdict of twelue in matter of heresie that is far more penal then the former Which cruell statute I would not haue alledged but that the Note-gatherer groundeth himselfe thereupon for another purpose And we see that there is no such cause alledged as the Note-gatherer insinuateth either as if it were an vniust vnreasonable course or in respect that it was ex officio at the instigation and solicitation of some one person or yet that it was without Appeale or Enditement For if it had bin simply vniust then all the treasure which had bin leuied by colour thereof should haue bin restored And it is euident that Bils and Informations against offenders are still in frequent vse and may be preferred for the Queene by any and against any whomseuer And those which be found offenders may without either Appeale or Enditement be condemned and punished thereupon in sundry geat penalties and losses both pecuniarie corporall and of their good name and credite And for further proofe that it is at this day holden none vniustice by the tempor all lawes for to ground an enquirie yea and also a Conuiction without either Appeale or enditement is plainely prooued by a latter statute which is yet in force For Iustices of 5. 6. Edw. 6. cap. 25. Peace at their Sessions haue authoritie to enquire of the offences of them which be admitted to keepe Ale-houses not onely by Presentment but by Information or otherwise by their discretion c.
duelie done either preciselie or by that which is aequiualent vnto them And so we may conclude that to proceed in an Ecclesiasticall Court agaynst a crime otherwise then either by Accusation or such Presentment is not contrary or repugnant vnto the lawes of the Realme but rather the like course often practised by them and thereby the Iustice equitie of such proceeding more stronglie confirmed and iustified vnto vs and the contrarie opinion quite ouerthrowen CHAP. IX The second opinion here to be treated of is that No laie person may be cited of Office in any cause but Testamentarie or Matrimoniall the drift of that opinion is against proceeding of Office in matters criminall the necessarie vse and equitie of proceeding criminallie sometimes by the Iudges office in courtes both temporall and ecclesiasticall THe very drift of the second opinion that commeth here to be disputed of is that a Iudge ecclesiasticall may not proceed at all of Office or make speciall Enquirie which is the effect produced by that cause against any crimes or offences of late persons For in debarring them frō Citing any such the very whole proceeding against them vnto which that is the introduction is thereby also debarred and by restraining their citing of Office vnto causes onely Testamentarie or Matrimoniall all dealing against Crimes without there be an Accuser is thereby taken away Which second opinion therfore quite ouerthroweth the presenting of any laie persons though criminous allowed by the generalitie of the next precedent opinion insomuch as vpon Presentments followeth proceeding of Office by Enquirie and yet both these opinions had one Author So well bee these mens conceits digested But let vs first examine what may be the colourable occasion of this second opinion ouer and aboue the impounding of all ecclesiastical proceeding vnto those two heads spoken of in the first part sauing where the partie conuented himselfe is willing Which willingnesse in the partie for rights that may be supposed to be by him deteined but especially for crimes supposed by him to bee committed can neuer with any reason be intended that it shall bee obtained at his hands considering there is so small vse of any proceeding by office but against crimes and least of all in causes Matrimoniall or Testamentarie That no laie persons then should be delt with at all for such crimes as I haue before prooued to bee of ecclesiasticall cognisance but be suffred to do them without controlment I thinke in charitie not to be their meaning It must needs then follow that it is the proceeding against crimes ex officio Iudicis viz. without an Accuser which is hereby principallie condemned as vnreasonable or vniust Therefore to prooue it reasonable I mind here somewhat further to shew the necessarie vse equitie thereof as well in the one court as in the other And to cleare it from vniustice I wil declare first that it is both practised by the temporall lawes also is by common and statute law an allowed proceeding vnto courtes ecclesiastical next that it is practised not onely by the law Canon which many would take for a sufficient disallowance of it but also by the Ciuill lawes subiect to no such exception insomuch as they are vsed by the rest of Christendome for their Common law by the grounds whereof all their customarie lawes ordinances be argued disputed And lastly that such course of proceeding was vsed is allowed by sundry exāples in holy Scripture together with answeres vnto the obiections made to the contrary as they fall fittest into each of the seuerall parts of this disputation The equitie and necessarie vse of this course to bee holden may be shewed by the partie which by lawe is supposed to be the exciter stirrer vp of a Iudge vnto it whē none other person is found that wil prosecute This partie I meane is the 1 Clarus ibid. q. 7 publike interest which the Church or Commō welth hath to haue crimes punished Interest Reip. prouinciā purgari malis hominibus ne maleficia remaneant impunita poena enim vnius terror est multorū Bonis nocet qui malis parcit Sicut est misericordia puniēs sic est crudelitas parcens w t sundry other like rules of law Canon partly afore touched Now the publike interest doth not only rest in this when some benefite is comming towards the common treasure but is chieflie shewed by procuring common tranquillitie and repose of the subiect with sinceritie of religion and integritie of conuersation And it was called by the Romanes especially after the popular state was turned into a monarchie by the name of Fiscus and may well and significantly with vs in respect of the meaning be termed the interest of the crowne dignitie royall which by all offences are sayd to be violated Therefore doe the 2 Practica Millei fol. 3. nu 31. Ciuilians of other nations say In quocunque crimine fiscus est accusator against euery crime the benefit of the Common-wealth is an accuser And another 3 Clarus ibid. q. 10. saieth that in what crime soeuer a Iudge may proceed of office there Fiscus the common benefite stands in stead of a Partie And it is testified to bee a 1 Decius consilio 170. nu 1. common rule that euen in an offence but against a priuate person principally the iudge oftentimes is of office to proceed to the inflicting of some penaltie not expreslie set downe in lawe against such an offence for so is poena extraordinaria ment in the Ciuill lawe by reason of the very interest the Common wealth hath to haue misdemeanors punished In which 2 Clarus ibid. q. 12. respect some mā that by law may not vse action yet is not forbidden implorare officium Iudicis to stirre vp the Iudge by petition to proceed for his owne office and duties sake If her Maiesties most honourable councell together and euerie one apart if the Iudges of the land if carefull and vpright gentlemen of the Commission of Peace in euery countrey of office and for their dueties sake for the most part without any so much as priuate complaint much lesse professed Accuser or Partie but perhaps vpon some generall muttering yea and sometimes without so much for a care and vpon a feare at large onely conceiued what may happen did not or should not enquire looke into and take informations of riots violences disturbances of peace conspiracies felonies murders and of other misdemeanors and outrages and so seeke further to discouer them and to punish them or bring them to Iustice might it not iustly be feared that the realme would much more abound and ouerflow in all kinde of mischiefe Would the Constables abroad Headboroughs Bursholders and such other inferior officers and ministers of themselues preferre such vp or being found out and presented by others would they effectually folow and prosecute them as appertaineth so that the magistrates need not to take
man in a graund Iurie doe the like And what should hinder such a man afterward to giue also particular euidence therof at time of the triall For is there any course more vsuall then for him that preferres vp the enditement giues euidence to haue it found to be also a witnesse to giue euidence of the very felonie c. at the prisoners triall for life and death But if it were true that euery Infourmer prosecutour might be examined also as a witnesse which is very vntrue both by lawe and practice howe could this proue that which he aduoucheth viz. that no challenge against the Accuser is admitted in Courtes Ciuill and Ecclesiasticall seeing both against prosecutors and witnesses by the Ciuill Canon lawes exceptions or challenges may be taken And though it were true that this were generally allowed and were also an inconuenience shall therefore the examining of one for another when he ought not in equitie to be ouerturne all proceeding of office as vnreasonable which is the drift at which he aimeth Another of his Inconueniences hereof is that hereby a Bishop may vpon his owne suspicion supplie the place of an Infourmer a Witnesse and a Iudge That his owne suspicion alone will not serue to open way to such proceeding is shewed afore in the seuenth Chapter And howe the Bishop being Iudge should be vsed as a witnesse in the same cause wherein he is a Iudge there is no colour in al the lawe or practice that I haue knowen or can imagine Except it be in a matter done in his owne presence whiles he sits iudicially and appearing also notoriously vnto others there besides himselfe or espied onely by himselfe Now if the preiudice to the partie be not very great why the Iudge alone aswell as any cōmon person there that might happen to haue heard it or seene it may not be trusted for a sounde witnesse I for my part can see no cause Hath the Note-gatherer neuer heard of a Cut-purse espied by the Iudge himselfe sitting on the bench by him caused to be staied and being endited vpon his relation presently tried and condemned For a third inconuenience hereof hee assigneth that it is a meanes to drawe causes from the Common lawe when neither in the Citation nor Bill men shall knowe the cause why they be conuented and so are depriued of the meanes of suing a Prohibition at the Common lawe This he termeth Addere forum foro Yet enquirie by office prescribeth no such generalitie of Citation And therefore if this were true it maketh nothing against that proceeding But that a Libel doth not conteine the cause of the conuenting is a very strange and no lesse bold assertion If his meaning in this obiection be that a man cannot procure a Prohibition till he haue the copie of the Libell thereby to shewe the temporal Iudge that something is there in demaunde or prosecution that is not of ecclesiasticall Conisance then he might more plainely haue declared it And for mine owne opinion hereunto I wil agree that in most cases the law is so howsoeuer late practice be otherwise For when the ecclesiasticall Iudge denieth the copie of the Libel where he ought not to the preiudice of the partie in this respect then the statute of K. Hen. the 5. and a writ therevpon framed doth relieue him And denying copies of libels needed not to 2. Hen. 5. ca. 3. Register pag. 58. haue bin cōplained of at that time as a grieuāce if the law had bin that vpon the parties owne suggestion only without sight of the Libell the temporal Court might at pleasure award a Prohibition So that this not expressing of cause in the Citation and denying copie of the Libel is so farre from being a meanes to drawe causes from the Common law vnto those Courts that it is of it selfe sufficient to bring thither by Prohibition causes originally being of ecclesiasticall Conisance But what serueth this not expressing of the cause of conuenting if it were so for condēnation of all proceeding by Office seeing this might no lesse happen to be omitted though the prosecution were at the instance of a partie or Accuser Yet further to satisfie both him and others herein Citations in causes Criminall out of ordinarie Courtes Letters missiue and Attachements out of Commission Courtes doe all import that there be misdemeanors of ecclesiasticall Conisance to be obiected against the partie conuented Albeit to expresse al the particulars would be both ouer tedious and chargeable to the subiect and in many respectes inconuenient besides And why should this be accounted any more inconuenient or vnreasonable then writtes of sub poena out of the Starre-Chamber or Chauncerie are which conteine not so much particularitie of the matters obiected as those Citations in ecclesiasticall Courtes In the reigne of K. Hen. the 8. there were contrary writings published betwixt S. German a common lawyer and Sir Thomas More about proceeding onely against heresie ex officio mero and without any of those allowed meanes precedent which by law may open a way to such Enquirie These reasons of Sir Thomas Mores the Note-gatherer assaieth summarily to answere and I minde not to defende further then I finde them coincident with some by me vsed and not fully answered by him And the rather because hauing not Sir Th. Mores bookes in readines with me I cānot know how truely they be gathered for that proceeding of office against other crimes vpon allowed groūdes by lawe may stand sound and good though all that which Sir Thomas More defendeth in dealing against heresie without Presentment fame c especially where the penaltie is so grieuous were to be condemned for vniust and vnequall Sir Thomas More in iustification of such proceeding against heresie alledgeth the like course to be holden in ministring of temporall Iustice viz. that Iudges vpon secret information binde a man to his good abearing and awarde out a Writ to enquire De gestu fama against any man whome they please and that the Lorde Chaunceller vpon like secret information putteth men out of Commission For answere of these the Note-gatherer saith thus But they doe not without matter prooued put a man from his free-holde or in danger of life losse of goods c as Ministers be depriued and put from their freeholde By which his answere appeareth that he yeeldeth these obiections in facte to be true and the consequence cannot be denied For if the same course be iust and reasonable in them why should it be vnreasonable in others As for the grieuousnesse of the penaltie surmised to be in the one greater then in y e other this is not material to make it of iust vniust For Magis minus non variant speciem more or lesse makes not things to be of diuers kindes And what will he say then against that Criminall proceeding of Office where neither life free-holde nor goods is called into question Shall that then in his
iudgement be reasonable and iust Furthermore what doth this particular recrimination hinder the conueniencie of proceeding by office For doth that course of proceeding teach or require that men be punished without any matter proued Therefore if this should happen so to be yet is it onely the personall fault of the men and not of Law which establisheth proceeding ex Officio For though an Accuser should prosecute yet the Iudges if they were so vngodly minded might de facto offer this vniustice Yet this ought not to be any cause to condemne all proceeding by Accusation to be vnreasonable or vnequall But this is so farre from any tolerable answere vnto those obiections that it is in trueth nothing else then a very vntrue and â—…anderous imputation that will not nay cannot be iustified What Ministers depriued yea put in danger of losse of life or goods without any matter proued I cannot coÌ„iecture what further meaning herein he may haue otherwise then to slander except perhaps he thinke the Notorious wilfull contumacie of those that refused sundry times vpon their oathes to answere Articles obiected on her Maiesties behalfe for matters of their owne facts or within their knowledges and not touching either their liues or limmes so farre as by Lawe they were bound not to be a matter sufficiently appearing and proued to the Iudges whereas such their contumacie and contempt euidently appeared to the honourable persons Iudges and other sage prudent and learned men not onely to be most vntolerable but was iudged by them to tende also vnto the vtter ouerthrow of the whole fundamentall iustice of this Realme if it should be suffered I do read in deed 1 Inter epist. Caluini in folio pag. 421. 422. that the Ministers of Geneua do in a letter of their owne written to the Ministers of Berne against one Cumperell a Minister also of Geneua testifie no lesse of the Eldership there then here is traduced For because Cumperell 2 Two meanes to occasion Enquirie and examination of Office euen at Geneua did not answere directly as they thought before the Consistory or Eldership vnto their Interrogatories by them of meere Office ministred vnto him whereof two concerned his thoughts and the very cogitations of his heart so that they helde him thereupon as conuicted and for that there were vehementia indicia great presumptions with a common fame that he being ordeined Minister for a parish in their territorie called Drallian had neuerthelesse vnder hand sought to place himselfe in the territorie of Berne for this was his heinous fault whereof they then enquired Therefore the Consistorie pronounced Quòd erant iustae causae cur Ministerio abdicaretur that they were iust causes to depose him from his Ministerie So that albeit we haue no such Lawe or practise in England thanks be to God whatsoeuer the Note-gatherer saith to condemne a man without any matter proued yet some other Churches whom he his Consorts doe more admire then their owne thinke they haue warrant ynough euen vpon a fame and some tokens to depose a minister when they shal find that course meete to be vsed Another reason in that behalfe is alledged by Sir Th. More that the Lords of the Counsel vpon secret information call men of Office without any prosecutor vnto examination of matters criminall To which the Notegatherer answereth thus viz. that this is in matters concerning the state of the Prince and of the Realme in matters of allegeance and that a Iesuite or Seminarie priest may be examined by othe quia ipso facto a traitour First all the matters that their Lordships doe or may examine are not of such hie qualitie And if they were it is not the importance or hemousnes of the matter that can make Iustice of that which is Iniustice in it selfe as was touched by me afore And so be also sundry matters dealt with in some Courts Ecclesiasticall neerely touching the state of the Prince and Realme Besides it is a very strange allegation to say The Iesuits or Seminarie Priests may be examined by othe quia ipso facto traitours As if all or any traitours might be examined by othe of their treasons considering that to examine the partie by othe of matters touching losse of his life or limmes is flat contrary to the Lawes policie and custome of this Realme in both sorts of Courts yea and perhaps contrarie to diuinitie too as the Treatisoure his owne Camerade though fighting in the selfe same quarrell and following the same Coloures can and doth tell him That which hath bene said to these two last obiections may also serue to retoyne vnto his replie made against the obiection that the like course is vsed by Martiall Lawe But if this proceeding of office by Speciall enquirie be so reasonable and oftentimes necessarie how commeth it to passe may some man aske that the names of Inquisition and Inquisitours be holden so odious Admit those names be odious vnto many yet this without further reason may not serue to coÌ„demne y e course it selfe For many sorts of men be also odious perhaps without any iust desert or particular abuse in themselues other then for their office sake who are not therefore wholly to be reiected as Informers of concealments of poenal statutes Takers Purueyers Bailifes errand yea and some administers of Iustice too if they be any thing exact seuere therein Neither is this odiousnes generall against all Inquisition whatsoeuer but only against one particular course of proceeding thereby in the crime of heresie practised in some Popish dominions but of al other most rigorously and cruelly in Spaine yea as is supposed farre beyond their owne Commission that they haue from the Pope and yet their Commission is also in many points exorbitant from all Lawe and reason A writer in the Ciuil Law assigneth a speciall cause of the hatefulnes vnto the CoÌ„mon people of the Spanish Inquisition for matters of heresie 1 Albericus de Rosate in rub C. de haeret nu 6. Inquisitors of heresie saith he are hatefull and suspected of all Lay-men because of a long time it hath bene beleeued that they are wont to proceede vpon most light suspicions especially against those that be riche Nay in deede how can it be otherwise seeing their dealing by that Inquisition is especially against men of greatest wealth because vpon their condemnation their goods and lands are confiscated to the house of Inquisition that is to the Inquisitours themselues Now seeing none of these strange courses be vsed in any Criminall proceeding in this Realme there is therefore no iust cause here to make it hateful vnto any Yet the Treatiser doth imagine this kind of proceeding to be more frequent in Courts ecclesiastical within this Realme in respect of the Iudges owne fees thereby arising For answere whereof First in Courts of Commission Ecclesiasticall against which some haue the greatest edge and egernesse the Commissioners haue no fees at all no
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
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
may penne his owne Commission will commonly make it large enough and he that may be allowed to frame and temper his aduersaries armour is likely to make it thinne and slender inough Were it then any maruell though this man should throughly answer such obiections as be wholy of his owne framing You are to vnderstand that by this worde the same in this place vsed he vnderstandeth generall oathes for a man to discouer all his thoughtes wordes and deedes whereof he had spoken in the sentence afore and this is the false issue which in the Epistle to the Reader I haue noted to bee by him tendered agaynst which if any reason materiall had bene brought by him yet it were but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is fighting with his owne shadowe and nothing touching any lawe or practise in this Realme In way of retortion against vs vpon this obiection he inferreth that all such are iustly reprooued who haue practised and put in vre this generall oath where otherwise there was sufficient proofe But he may not thus cary away this later point which he interlaceth viz. that there is no lawfull vse of any defendants oath touching a matter criminall where other sufficient proofes may be had For these absurdities hereupon would followe First where no witnesses are knowen to the Iudges aforehand though they come in after the parties oath taken that there a man by his owne periurie should bee for euer cleared and acquited and so without any punishment or other worldly danger hee might heape one grieuous sinne vpon another Secondly that a mans owne single oathe in his owne cause yea and for his owne clearing should bee as effectuall and powerfull as any two * Vide de hoc plura ca. vit 3. partis mens oathes by Gods worde are allowed to be touching another mans fact whether it tende to acquitall or to condemnation Thirdly it would thereof follow that all oathes in causes criminall should be of purgation and clearing onely and none at all of Enquirie But the Treatisour himselfe reasoneth also in this his booke against all cathes for purgation So that vpon the whole matter hee maketh all kindes of oathes by defendants touching their owne offenses or misdemeanors to be simply vniust and vnlawfull The contrary whereof in both will I trust be prooued Lastly it would hereupon follow that not onely Ecclesiasticall Courts but for auoyding like iniustice the Starre-chamber also should be barred from giuing an oath in any criminall cause to the defendant where the matter may perhaps bee prooued by witnesses But I pray howe can either the Court or the prosecutour tell precisely what the witnesses will or can prooue when they come to depose by vertue of their oathes For many a man when he is sworne telleth another tale then he did afore when his tongue walked at libertie Therefore by this opinion the Iudges for giuing the defendant such an oath shall so long remaine vnder a doubtfull danger to haue dealt vniustly vntill by the euent of the sute it might be discouered that the matter indeede coulde not bee proued by witnesses The Treatisor in refuting ex absurdo his own absurd obiectiō bringeth in by the way that these general oathes would enforce men to accuse themselues to their publike shame reproch or condemnation and their naturall parents deerest friends and neerest neighbours or else for auoyding of such mischiefe and inconuenience to commit most wilfull and damnable periurie and the Notegatherer sayth it is vnnaturall which because it will be perhappes applied also to all oathes giuen euen in a particular criminall cause and for that he thinketh this a matter very absurde therefore it requireth some briefe answere When a man vpon some such sufficient inducement as is spoken of in the second part is brought before a Magistrate by speciall Enquirie vnto examination his discouery against himselfe or other neither by Gods Lawe nor yet by mans Lawe is taken for an accusation vnnaturall but a necessary confession of trueth whereby God is glorified sin punished the common wealth benefited howsoeuer the partie susteine thereby some touch in his reputation Be not 1 Eccles. ca. 4. vers 24. 25. ashamed saith Ecclesiasticus to tell trueth for the good of thy soule for there is ashame that bringeth sinne and there is ashame that turneth a man to honour and grace and therefore he 2 Ibidem vers 30. 31. saieth afterward Doe not gainesay the trueth in anie the least point but be ashamed of an vntrueth though it proceede from thine owne ignorance Be not ashamed to confesse thy sinne and stop not the course of the floude And therefore in such respect hee ought not to refuse to take and performe his oathe as more fully God willing remaineth to be shewed hereafter Another obiectiō he also maketh falling not vnaptly into this place viz. that where losse of life libertie member of the bodie or good name may ensue there the presumption of periurie is great and where it is so great the sentence of the Magistrate trusting to such an oathe is grounded but vpon aweake and feeble foundation So that in this his presumptiō of periurie he matcheth without any good reason the danger of losse of good name with danger of life libertie and limme with better reason he might haue put in losse of worldly goodes and then by necessary consequence hee had taken away the vse of al oaths in euery subiect matter whatsoeuer For who knoweth not that for attaining riches and substance most worldly men not onely doe willingly hazard their good names honesties and reputation but that many doe also apparantly aduenture for them their liberties limmes liues and soules Therefore if for feare of periurie none oaths may be tendered whereby a mans good name may be questioned or impeached much more then ought they not to be where a mans welth and substance which most men doe most thirst after may be any way thereby impaired it is vpbraided as an affectiō too common with all men O ciues ciues quaerenda pecunia primùm Virius post nummos Vertue honestie and good reputation are esteemed by many degrees woorthie to come behind riches and therefore I answere that where a crime is in some sorte detected vnto the Magistrate alreadie the presumption is more strong that most men being sworne will rather deliuer a trueth yea though it touch themselues or their friends somewhat in reputation then that by periuring themselues they wil throwe both their owne bodies and soules into hell Nemo praesumitur immemor salutis aeternae saieth the lawe In deed where the Iudge hath good and probable inducements against some speciall person that he is like in any cause whatsoeuer to forsweare himselfe there as was said afore he ought to forbeare to tender an oath But it may not therefore bee made generall as if no man at all should be vrged to take an oath for feare of being periured Yet the Treatisour here
these notwithstanding remaineth still vnshaken To this reason as is noted else where the Treatisour also for his parte doeth thus answere viz. that the Starre-chamber requireth answere to matter in facte doone eyther to the iniurie of a priuate person or hurte to the publike State as if he would insinuate that Courtes Ecclesiasticall vrged Oathes in farre more vnreasonable cases Truely if the iniurie reach onely to a priuate person without any further offence or scandall the imposing of anie such oathe by Ciuill or Canon lawe will not be iustified and other then for answering matters in fact do one to the breach of lawes or to the offense of Almightie God and consequently to the hurt of the publike State none oathe is at any time there exacted Yea not onely in the Courts aboue named but in al the other Courts of Record at Westminster I am credibly informed that time out of minde it hath beene obserued for the Iudges by corporall oathe to examine any person whome they had cause in discretion to suspect to haue dealt lewdly about any writ returne entrie of rule pleading or such like matter not being capitall touching their seuerall Courts as namely Sherifes their vnder Officers Ministers Protonotaries Philizars Chirographers keepers of Records or Rules Clerkes and sometimes Councellours and Atturneis or the very parties hauing suites But because the Commission as the Note-gatherer collecteth bindeth them precisely to crimes punishable by the Ecclesiasticall law and to proceede according to the Ecclesiasticall lawes of the Realme and not according to the temporall therefore saith he it is a friuolous allegation to say such a thing is vsed in the Starre-chamber Chancerie or the Benches ergo the Ecclesiasticall Commission may do the like First here hee calleth them Ecclesiasticall lawes of the Realme how then are they foreine and strange lawes and sinewes of the Romish Cerberus as the Treatisour raueth Secondly if Courtes Ecclesiasticall may not deale according to temporall Lawes why doeth the Treatisour threaten them with praemunire for that the policie of this Realme knoweth no such oaths as he argueth What may they neither deale according to temporall Lawes nor yet in a different course from them Thirdly the antecedent is vntrue for by that Commission the breach of foure Statutes be enquirable and punishable and the punishment also may bee other then Ecclesiasticall as is prooued in the first parte Lastly none that stand in defence of these oathes do drawe their reason onlie from the practise of temporall Courtes in that sorte as hee surmiseth but thus Whatsoeuer the Ecclesiasticall Laws do allow and require being not contrary nor repugnant to the Queenes prerogatiue royall nor to the Lawes Statutes and Customes of this Realme that may be lawfully practised by Iudges Ecclesiasticall But this oath is such by reason that sundry temporall Courts by lawe holde the like course and doe not prohibit it in courts Ecclesiasticall so that not being so much as diuers courses they can not be contrary or repugnant therefore these oathes are lawfully practised in Courts Ecclesiasticall or thus That which is iustice and equitie in one court cannot be vniust vnequall or cruell in another court that is thereunto no lesse authorized then the first but such be these oathes as appeareth by the practise of the aforesayd temporall courts therefore they are lawfull and equall also in Ecclesiasticall courtes But for more particular and fuller proofe of these two minor propositions I will speake first of oathes prescribed by statutes And in these first of such as be taken in matters that may onely bring dammage to the takers of such oath and then of oathes taken in matters both criminall and penall to the partie that takes them By the 1 13. Ed. 1. stat Winton statute of Winchester men within certaine yeeres of age are to be assessed and also sworne to haue all such assessed armour in their houses The 2 17. Ed. 2. Praerog Reg. ca. 4. kings widowes that haue dower of lands holden in chiefe of y e king must be sworne not to marry without the kings licence By a 3 25. Ed. 3. de seru. ca. 2. 7. statute of king Edward the third a taxe is set what labourers shall take and they are thereby appointed to be sworne to doe those labours and to take no more then is allotted them And that they shall not in sommer depart to serue in other places then where they serued in winter This oath is to be taken twise in a yeere and if any of them refuse to take it hee is to be sent to the stockes or gaole till he will reforme himselfe Likewise by 4 27. H. 4. ca. 17. another statute afterwarde all labourers and seruants are appointed to be sworne both to doe seruice and to take for the same according to the statutes And if they refuse they shall be set in the stockes for three dayes till they will agree to it and if they doe not from thence shal be sent to the common gaole The 5 8. H. 6. ca. 7. sherife hath power by statute to examine euery chooser of a Knight for the Parliament vpon the Euangelists how much he may dispend by yeere Those that shall 6 27. Ed. 3. stat stapulae go about to shippe ouer any woolles and other merchandises the Maior of the Staple and Customer shall make them take oath that they shall not keepe Staple of those merchandises on the other side the Sea 1 11. H. 7. ca. 33. Likewise he that shall shippe an horse to carry ouer Sea must sweare that at the time of shipping him and at that time he sweareth he is fully purposed not to sell him but to haue him for his vse By the statute or awarde made at Kenelworth all that had to doe in that behalfe were appointed to 2 51. H. 3. sweare vpon the holy Gospels of God that they should not take reuengement c. by occasion of the commotion For the 3 Stat. de stap 27. Ed. 3. ca. 6. value of merchandise brought in by strangers if they haue not letters of credence thereof from their lordes or companies they are to take an oath The master 4 23. Eli. ca. 6. owner or shipper is to giue true information by his oath concerning the burden of his shippe to the intent the money out of euery tunne allotted to Douer hauen may be receiued All which oathes though most necessarie and equall yet you see howe they may bring great dammage and losse vnto the partie Nowe touching oathes appointed by statutes that may tend and reach to make the partie discouer euen matter criminall or penall to himselfe By the 5 Statut. de Exon. de Inquisitione super Coronatores anno 14. Ed. 1. Rastall tit Coroners nu 3. statute of Inquisition vpon Coroners the Enquirors shall make all the Bailifes sweare that they shall well and faithfully doe that which they shall haue in charge
against the parties examined and therefore to be tendered more then ex mero officio In matters that may induce dammage to him that sweareth there be sundrie examples at the Common lawe one or two may suffice If 2 T. 25. Ed. 3. fol. 44. a woman couertbaron being to acknowledge a fine it be doubted whether she be 21. yeeres of age or no she shall be examined vpon her oathe In an 3 P. 3. Hen. 6. 38. action of detinue of goods supposed to be deliuered in Fleetstreete the Plaintife was examined where they were deliuered An 4 H. 3. H. 6. 30. obligation bare date in the Countie of Lincolne and a Scriueners name was put to it that remained in London hereupon the Plaintife was examined where the obligation was made Besides the dammage hereof the circumstances of this might be such as might haue vrged him to discouer perhaps a forgerie It is a commō practise in this land straitly to examine persons holden suspected of some crime or offence and to vrge their answers or else the Magistrate will and must needes holde them greatly violently to be suspected litle lesse then conuicted If an vnlikely person but suspected at large be found in a priuie search or stayed as he passeth and be brought before a Iustice of peace or higher Officer is he not straitly thereupon to be examined of his abilitie course of life trade and place of abode c. which may importe Roguerie that is both criminall and very penall to him if he be such an one in deede and shall choose rather to endure the penaltie of lawe then to lye before God and his Magistrate If to this it be answered that such examination is without oath I replye that this is but as it happeneth but admit it so be yet the matter is hereby nothing holpen For as to this purpose of being vrged to discouer him selfe which these men call accusing in a matter criminall penall it comes all to one passe because he must either holde his peace altogether or confesse the truth plainly both which may bring him to punishment or else he must lie whereby he grieuously offendeth God though not in so high degree indeede as in periurie neuerthelesse this bond of not saying vntruely before a Magistrate must needes be counted a kinde of causatiue vrging of a man that hath any conscience to discouer matter of crime against himselfe if he be guiltie in deede of that which is asked of him If a Sherife Stewarde of Liberties Reeue Bedell of Strayes and wayues rentgatherer sheepe-Reeue Baylife Baylife of husbandry or other accountant to the Prince or any great Lorde be vrged by their Auditour to giue vp their account vpon their oathes as is vsually done doeth not this in case they haue done negligently or deceitfully tend to bewray or if ye wil accuse them selues in a matter ignominious to themselues and in it selfe criminall The Treatisour himselfe though he bend most of his ordinance against this point yet when he had more exactly a little waded into and weyed the matter seemeth but onely to finde fault with sifting generally by oath of all mens thoughts words and deedes and especially sayth he in another place in matters of life and death which his issues if he will not waiue and relinquish there is none I thinke in this Realme that will impugne that his assertion either by colour of lawe or by rigour of practise For euen at the common lawe oathes in matters criminall and penall to the parties bee oftentimes necessarily to bee taken when they are enioyned For if 1 Stanford Pleas of the Crowne li. 3. ca. 14. a man sue an appeale of murder against another who will bee tryed by battaile the defender that is appealed must before the battaile holding his aduersarie by the hand solemnely sweare thus Heare this you whome I holde by the hand who call your selfe by such a name I haue not feloniously murdered your father c. so helpe mee God and all Saints Of Oathes ministred at the Common lawe tending to the discouerie of matter criminall and penall to the partie himselfe I finde these examples One 1 M. 34. Ed. 3. fol. 3. sworne of a Iurie did after departe from his fellowes In the meane time an other was sworne in his roome But when the first returned hee was by the Iudges ex officio examined vpon his booke oathe whether hee had talked with the defendant or beene in his company since he was sworne This if he had confessedit as it is an offence so had it beene very penall vnto him Neuerthelesse for his apparant fault of departure hee was committed and fined In an action 2 T. 7. H. 4. fol. 19 of Formedon the tenant of the land was supposed to confesse the action of the demandant by couin and was thereupon examined by the Iudges and the couin being thereby founde it was decreed there should be no iudgement and that he should be punished by their discretion A 3 P. 9. H. 5. 1. woman brought an appeale for the death of her husband but as it was supposed by another name then she had in very deede vpon which couin she should haue beene fined and thereupon she was examined A 4 H. 35. H. 6. Fitzh Abridgem tit examinat nu 17. Iurie after they were gone together were supposed to haue receiued a letter on the behalfe of the defendant which in law is said to be a grieuous fault and it is to be grieuously fined yet all the Iurours were thereupon examined vpon their oathes A 5 M. 35. H. 6. 11. Sherife returned that certaine witnesses who should haue appeared were dead whereof it was desired he might be examined because the returne was razed and two of the witnesses were saide to be aliue whereof one was then in the Hall and had his remaining in the Countrey Whereupon the Sherife was examined which Prisot enformed and hee deposed that the returne was made by a Clearke and neither by him nor by his Vnder-sherife and that he knew two of the witnesses were liuing Now if he could not with a good conscience thus haue cleared himselfe vpon his oathe had not this crime of razure and false returne beene verie penall and shamefull vnto him being so directly contrary to honestie and to his oath taken at the entrance into his office 1 H. 10. Ed. 4. 16. And it was at another time the opinion of the whole court if the parties in a cause had then had a day in courte that they might haue examined them touching their couin and lewd practise tending to defeate another man of his lawfull action They haue a certaine custome in London and it is allowed for good by the Common lawe of the Realme 2 Brooke tit ley gager nu 77. That if the defendant thinke the plaintife haue made a false declaration in an action of debt he may desire to haue the
and matters Temporall betweene which and causes ecclesiasticall as is noted afore there was made both in those times and also long after a plaine seuerance and distinction in the groundes of their seuerall authorities and iurisdictions so that the one was called the Kings Court and the other a Spirituall or Court Christian. and therefore as nothing was in that Charter anewe graunted but confirmed onely vnto the Church of England so is it to be iudged on all handes that the king would not make lawes there to restraine the courses of proceeding ecclesiasticall because it could not be without disanulling and reuoking of that which immediately afore euen by the same Acte hee had first of all confirmed vnto them Secondly a Bailife onely is there mentioned which should put or not put a man to his oath which cannot well and properlie be vnderstood of any but of some officer temporall Thirdly these wordes are no way appliable to the practise of courtes ecclesiasticall for albeit vnder the name of Bailife an Ordinarie might be vnderstood which were very harsh insomuch as a Bailife is but a Reeue of a Baile or Libertie yet is it not holden by any lawe ecclesiasticall that vpon an Ordinaries owne bare saying whether he haue witnesses after to bee produced or not a man may bee put to an oath for there must bee some better matter of inducement to open way to the enquirie whereupon the oath ensueth Lastly this statute will rather hurt then helpe forward these mens purposes if an Ordinarie might here be vnderstood by a Baylife because if I conceiue the matter aright by this is implyed that so an Ordinarie be able to bring in good witnesses he may then vpon his bare saying put a man to his open lawe or to an oath But hereupon would followe that Criminall prosecution without any accuser or other partie and so ex officio mero yea and without any presentment too may bee lawfully admitted and which is most to our present purpose in handling that an oath in such case by him may bee imposed in any matter aswell Criminall as other For heere is no distinction made of any one kinde of cause from another and they which alledge it doe bring it to impugne proceeding by the defendants oath against crimes The allegation of the Treatisour out of the statute of Marlebridge or Marleborough falleth next in time to bee considered the whole wordes 1 Marlebr 52. H. 3. cap. 22. whereof are these none from hencefoorth may distreyne his freeholders to answere for their free holdes nor for any thing touching their freeholde without the kings writ nor shall cause his freeholders to sweare against their willes for no man may doe that without the kings commaundement But the Treatisour leaueth out the first part which sheweth howe the second that he alledgeth is to be vnderstoode And because like the lapwing with her diuerting c◅ies hee would leade vs further and further from the matter herein chiefly to be respected or for that he thought wee would make some aduantage hereof he saith that the kings commaundement importeth here thus much viz. according to the law Iustice of this Realme and for this quoteth a booke thus 2. R. 3. The booke he meaneth as I gesse is in 2 Mich. 2. R. 3. sol 11. these words wheresoeuer a man for offence misprision or otherwise is to make fine or redemption all the Iustices agreed that those Iustices before whome he was committed c. should take suretie and pledges for the fine c. and after by their discretion they should assesse the fine and not the king in his chamber nor otherwise before him but by his Iustices and so is the kings will in statute to be taken viz. by his Iustices and his lawe which to say in effect is all one c. Where you see that the booke speaking of Iustices viz. the men before whome the conuiction was made he referreth this to the Iustice of the land But though it be neither off nor on to our Principall purpose neuerthelesse it seemeth this booke is not truely applied by him vnto this statute and that by the kings commaundement in the statute the kings writ is to be vnderstood as in the first part of that statute is plainely expressed rather then any determination or Act of his Iustices of the Bench. Touching the statute it selfe the wordes doe euidently shew that neither oath in cause criminall nor any Court Ecclesiasticall is thereby meant there is onely forbidden that lords of manors shall not inforce their Freeholders that holde lande of them whether it be by distresse or oathes to answere in their Courtes baron touching the estates they haue in their landes because neither the lordes owne courts in such a case be competent or indifferent for feare of vnlawfull euiction nor the goodnesse or weakenesse of the states men holde are meete to be fished out by their owne oathes in satisfaction of their lordes greedinesse to haue their lands except the king by his writ shall so especially command And yet hereby wee see the statute leaueth it at large at the kings pleasure to warrant euen this course and therefore this is not simply vniust but inconuenient onely for lords so to vrge their tenants He alledgeth further against these oathes a statute as hee saith made 43. Ed. 3. ca. 9. that no man be put to answere without presentment before Iustice or matter of Record or by due proces or by writ originall after the ancient lawes of this land But I doe finde no such statute either in that yeere or in any other like number of Chapter of that king and that Parliament which he voucheth hath not so many Chapters But admitting it what is this to proue an vnlawfulnesse of oathes ministred vnto defendants in matters criminall whereof there is no shadowe of mention it rather speaketh of matters that ought to goe afore proceedings criminall at the common lawe and what makes this against Courts Ecclesiasticall woulde hee haue them to proceede in the selfe same maner that common lawe courts doe hee might aswell exact of them Indictments and afterward tryals by Iuries of twelue and yet Ecclesiasticall courts put none to answere but vpon moe then one of these or at least that which is equiualent at that lawe vnto these at the common lawe For first courts Ecclesiastical haue great vse of presentments and complaints or denunciations before the partie be called to answere as is shewed in the second part Then the defendant is not called neither but by due processe as by letters missiue or by attachment in Courtes of Commission by Primarie citation in Ordinarie Courtes which haue a correspondence vnto originall writs at the cōmon law So that of foure matters wherof some one or other of them is thereby required three of them be vsed in Ecclesiasticall proceedings against crymes His next proofe of this kinde cōming to be discussed is out of the 1 25.
statuti anno 5. Reginae nunc and it was doubted if the defendant would pleade not guiltie whether he should be sworne to his Plea and also to answere to Interrogatories as is vsed in the Starre-chamber And it was resolued by the opinion of Catline Dyer Saunders and Whiddon that hee should not be examined nor sworne vpon Interrogatories except the court of Chancerie had absolute authoritie and had vsed to examine periuries in that court before the Statute for then this is still reserued by the last Prouiso of the Statute as it is also for the Starre-chamber Otherwise if the court of Chancerie will examine periurie committed there as it may by Statute this must be by Latin Bill and bee pleaded in Latin and issue must be ioyned there to be tryed in the Kings Bench as in like cases is wont In this whole report as there is nothing that tendeth to the absolute impugnation of oathes in some causes criminall so is there not any point which we doe not willingly embrace and like of For the Chancerie being a court by the institution whereof to handle by Bill and answere in English no crimes but ciuilly laide and not criminally mooued to the intents of any punishment vnto which Bill the defendants must answere vpon their oathes therefore it is no marueile when by Statute any new authoritie is giuen therunto as in this case that then the course of the common lawe should be folowed except such Statute do otherwise determine But hereupon might well be gathered that defendants oathes to English Billes there alwayes vsed albeit criminall matters touching their shame and dishonestie be diduced and in other courts thereunto authorized the continuall vse of such oathes euen for crimes criminally mooued are no way against the Lawe of the land For we see that it is here yeelded to be lawfull in case the Chancerie had vsed such course afore Also that it is vsuall and lawfull in the Starre-chamber and that these Iudges opinions reach no further but that the partie accused of periurie should not be examined by oath vpon Interrogatories in the Chancerie for answering of Interrogatories vpon oath is not vsed there no not when the crime is but ciuilly prosecuted except the other partie will be contented to be wholy concluded by his aduersaries answeres that shall be so made to his Interrogatories Another case at the common lawe is alleaged by the 1 Notes tit the lawes of EnglaÌ„d Notegatherer thus It appeareth sayth he by the Lord Dyers booke that one Hinde being called before the Commissioners Ecclesiasticall for vsurie refused to sweare whereupon he was committed but vpon an Information in the common Pleas he had a Corpus cum causa to remoue him so as it seemeth that the Iudges were then of opinion that the Commissioners could not then giue them any such oath hereof he giues vs not any direction to finde out the particular place of this report All that I can to any such effect hit vpon is onely this marginall note viz. Simile M. 18. fol. per Hynde qui noluit iurare coram Iusticiarijs ecclesiasticis super articulos pro vsura so that if this be the place being but a Marginall note it can not necessarily be fathered as a Report of the Lord Dyers the rather because it is not likely that he would terme ecclesiastical Commissioners by the name of Iusticiarij ecclesiastici for the perfitnes thereof it might seeme rather to bee some note of the Notegatherers owne then any of Iudge Dyers gathering Secondly here is no mention of Hindes commitment nor of corpus cum causa nor that the sayd writ vpon information was graunted out of that court of common Pleas so that these bee but the Notegatherers owne surmises and gesses Thirdly before it might bee inferred thereof that the Iustices then were of opinion that Commissioners Ecclesiasticall might not giue any oathe in a matter of vsurie and so by like reason as hâ—…e gathereth in none other criminall cause this case in the Margent must first bee made like vnto that case which is in the text it selfe Nowe that conteineth no more but that one Skrogges appearing before certaine speciall Commissioners by 〈◊〉 Maiestie appoynted to heare and determine the validitie of two seuerall Patents of an Office the one graunted to the sayd Skrogges and the other to Coleshill and refusing to make any other answere then a demurre vpon the Bill and to the Iurisdiction graunted them by that Commission and being committed to the Fleete for such contempt by the sayd Commissioners was neuerthelesse by a Corpus cum causa out of the common Pleas remooued from prison because he was a person belonging to that court and a necessarie member thereof But where doeth it appeare that this Hinde was likewise a member of that court Or howe can these be like cases when as in Skrogges cause none oath was vrged neither was the Plea betwixt him and Coleshill criminall as this was betwixt the office of the Commissioners and Hinde Or where may Hindes case at large be found in Michaelmas Terme 18. Eliz. seeing no such matter is in the L. Dyers reports of that yeere Or howe can it be made to appeare that the Commission Ecclesiasticall was then perused the Statute whereon it is grounded considered of the whole matter argued and debated any such opinions yeelded or yet that Hinde was not by the court sent backe againe to prison though it were admitted he had once such writ as many other in like cases before and since that time haue bene for all the similitude which that Note mentioneth might rest in this one onely point viz. that as the one being committed for contempt by vertue of the Queenes speciall Commission had notwithstanding his writ of Corpus cum causa so the other had it likewise graunted But there might also be in the eighteenth yeere of her Maiestie other good cause to deliuer Hinde clearely out of prison being called before the Commissioners into question for vsurie if it were not aboue tenne in the hundred and yet oathes in any criminall cause besides ministred by Commissioners Ecclesiasticall shall be no whit thereby impeached or preiudiced because afore that viz. in the thirteenth yeere of the Reigne of her Maiestie a 1 〈◊〉 Eliz. ca. 8. Statute was made forbidding any punishment then that which is conteined in that Acte to bee inflicted by lawes Ecclesiasticall vpon vsurers so their vsurie amount not aboue the rate of ten in the hundred for one yeere therefore it might well haue bene that Hinde was so deliuered from his commitment not in respect of any vnlawfulnes by the Iudges deemed to be in such oath but for that y e conysance punishment of his crime by reason of that Statute belonged not then and in that case to an Ecclesiasticall Court This point the Treatisour further enforceth also by the formes of a peece of a precedent of a prohibition and another of Attachment thereupon
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
saide affirmatiō in that he confesseth Wolsey did grant benefices by way of Prouision for thereby he was within the very letter of the Statutes of Prouision and Praemunire and so consequently he preiudiced also the Kings regalitie and crowne and not Ecclesiasticall courts alone Yea and what is all this to the imposing of an oathe that we treate of seeing if it were true that euery practise of Antichristian decrees and Popish Canons were a Praemunire yet it may be truely affirmed that the very temporall Lawes of this Realme do allow vnto Ecclesiasticall Courts to minister such oathes as shall be prooued in the next chapter therefore not to be said to be practised by vertue of Canons only And also for that no Canons that are agreeing to those conditions and qualities which are required by the 1 25. H. 8. 27. H. 8. Statute of Submission of the Cleargie are Antichristian or Popish or foreine Lawes but are the Queenes Ecclesiasticall Lawes and Lawes of this Realme no lesse then such as were originally made within the land as is afore by occasion 2 Vide 1. part ca. 14. pag. 102. 103. shewed and prooued Insomuch as the Note-gatherer himselfe calleth them the ecclesiasticall Lawes of England Hee also telleth vs as to this purpose of a complaint by the Commons made 21. H. 8. vnto the said King touching grieuances by the Clergie offered but telleth not that it was this matter nor how iust or vniust the complaint was found to be nor yet of any remedy therein giuen He discourseth also of the particulars of an other complaint likewise made 23. H. 8. but hee doth not assigne oathes tendered in some criminall matter to be any part of that complaint The Note-gatherer saith the L. Audley then chosen Speaker did exhibite it and that it was for proceeding ex officio albeit the Treatisour do tell vs of many points besides which belike if he had pēned that complaint it should haue conteined This I haue answered in the second part of this Apologie Another reason by way of collection the Treatisor maketh at large thus viz. What if a Iustice by colour of his office should offer this generall othe to answer to all he will aske commit the partie refusing coulde any man iustifie his doing but rather crie out against him as a subuerter c Well howe strange a course soeuer hee maketh this and therefore so cryeth out neuerthelesse it may bee that little better hath beene vsed by some Iustices of Peace But I neither accuse any thereof nor wil excuse either them or any others which shal so deale either from the Treatisors or from any other mans outcries so that in this point we both agree But in one part of his Treatise he gathereth also thus against practising of Canons in ministring oath No Canons 1 25. H. 8. ca. 19. may be practised but such as be not contrary nor repugnant to the Prerogatiue royall nor to the lawes and Customes of this Realme but this Canon Law is not any part or portion of such lawes Whereupon it seemeth he would haue his Reader to conclude that no Canon at al may be practised First it is vntrue if you take the Canon Law indefinitely for all Canons absolutely and indistinctly to say that it is no portion of the Lawes and Customes of this Realme as hath bin afore shewed yea there was here an vse and custome thereof long afore it was accounted any parte of the Lawe of the Realme Secondly there be quatuor termini in this reason Lastly it consisteth all of Negatiues In both which respects it is vtterly inconcludent So that by all hitherto deliuered wee may perceiue that albeit there bee some diuersitie in sundrie the courses of proceeding betwixt the Ecclesiasticall and the temporall Lawes yet there is found not so much as any great diuersitie in the very point which is of ministring oathes in certaine criminall causes and much lesse is there any contrarietie or repugnancie in that behalfe Besides there is not so great diuersitie betwixt any part of the law Ecclesiasticall being now of force within this Realme and the Lawes temporall as is betwixt sundrie points of the customs of London the customes of the Stannerie the customes of Kent the customes of Halifax both in trying and executing offendors and by dealing by vertue of the Queenes Instructions at the Counsell of the Marches of Wales on the one side and betwixt sundry parts of the Common lawe on the other side as might but for auoiding of tediousnes by sundry particulars be exēplified yet none of those which practise thē are by reason of any such notable diuersity only thus threatned with danger of Praemunire In the last ranke of matters brought by him to this purpose I doe marshall the Treatisours shifting answeres vnto such obiections as himselfe imagineth will be or may be made by those who defend this kinde of oathe whereof we are now treating First to the obiection made of the like oathes ministred to defendants in causes criminall both in the Courts of Starre-chamber and Chancerie he answereth that if it were graunted that the like oathes be there vsed yet would it not followe that the same might be practised in courts Ecclesiasticall and why would it not followe vnlesse sayth he the like allowance thereto and consent of the whole Realme might be prooued Belike if it were not most euident he would also denie the like oaths to be vsed in those two courts The whole Realme is sayde to allowe and to consent vnto that which is enacted by Parliament Shall the same course then vsed also in the Chancerie that hath none Acte of Parliament to establish it be vnlawfull in his iudgement for hee cannot say that the whole Realme either indeede or representatiuely hath giuen consent hereunto albeit the prescription thereof be most ancient because al euery one in particular haue not had from time to time iudiciall matters there But yet since this prescription is good and will serue to mainteine that course there why shall it not also alike serue for Ecclesiasticall courts which haue reteined the practise of such oath beyond all memorie of man and beyond most Records nowe extant Neuerthelesse there be also Acts of Parliament to warrant the practise of these oathes in courts Ecclesiasticall vnlesse they could be prooued to be either contrary or repugnant to the Prerogatiue Royall or else to the Statutes lawes and customes of this Realme Neither yet are the examples of Starre-chamber and Chancerie to any other ende by vs alleaged but thereby onely to shewe that such defendants oathes inferring confession of some his owne crimes is neither to be holden vniust vnlawfull vnequall barbarous cruell nor yet Antichristian or Popish as they be challenged For a second answere hereunto he sayth that examples and Precedents be weake where an expresse lawe or certaine policie is to the contrary as if he should say though these two high
Temporall courts doe practise it yet is it contrary to an expresse lawe or certaine policie for else he sayth iust nothing to the purpose and yet he doth no lesse dutifully say it then he prooues it substantially euen out of the Ciuill lawe viz. ius non ex regula sumatur sed ex iure quod est regula fiat I pray yee who euer heard afore that regula here signifieth an example or a Precedent The true vnderstanding therefore of that part of Ciuill lawe is this when many cases runne one way so that for roundnes or better memories sake they haue bene by Iudicious men contriued into a summarie rule then whatsoeuer might be comprised vnder the generalitie of the words of such rule was not straight way to be reckoned for lawe because it is not possible in this great weaknesse of mans wit so to comprehend the lawe being to guide such infinite varietie of mens particular externall actions in a briefe rule as that it shall not haue sundry exceptions and limitations and therefore rarò est quin regula fallat And againe in this place non ex regula ius sumitur c. that is you can not conclude it necessarily to be lawe because you may apply vnto it some rule of lawe but because the lawe runneth accordingly in sundry cases you may therefore conueniently drawe them into a short rule which some doe call maximes in lawe yet abusiuely Thirdly he sayth to this obiection that by better Logicke we might conclude thus viz. because in these two courts answeres bee put in vpon oath therefore the same may be vsed in the Kings Bench and common Pleas which neuerthelesse were an absurde conclusion No Sir it is so farre from better that it is not any Logicke at all so to conclude except you adde more vnto it for if you could truely adde that the Kings Bench and common Pleas had time out of minde vsed that course for answeres to Billes in crimes not capital nor tending to mutilation of limme which may be verified of courts Ecclesiasticall besides the direction of that lawe by which they proceede then with very good Logicke might you conclude thus the same course hath time out of minde bene vsed in all those courts and it is not vniust nor cruell c. in the one and therefore not in the other for the diuersitie of places where they sit nor diuersitie of persons which doe sit as Iudges nor any other like circumstance cannot make a matter iust and equall if in his owne nature and simply it were vniust cruell or barbarous as this is often by him and others challenged to be Fourthly he sayth that in the Starre-chamber there is a bill of complaint formerly exhibited and so be there Articles in an Ecclesiasticall court Fiftly that there is also a knowen accuser Not alwayes an accuser for the office or common Interest of the Prince whose the court is oftentimes is there excited stirred vp by her Maiesties Atturney or Solicitour without any danger of them to be punished or condemned in charges though the matter should not fall out fully against the defendants euen as it is in courtes Ecclesiasticall when they proceede of Office albeit these more often proceede hauing a priuate Prosecutour especially in the court of Commission then they doe ex mero officio Sixtly that in the Starre-chamber they haue a copie of the complaint yet he himselfe doeth limit it thus viz. so it be not ore tenus Well then vpon some good occasion it is none vniustice though the defendant want a copie altogether of the matter obiected but in all ordinarie courts and in the Commission Ecclesiasticall at the furthest when they haue answered the articles they haue copies of them Seuenthly in the Starre-chamber the defendants are allowed counsell in answering the Bill and yet when this is ore tenus he knoweth they cannot haue counsell neither are they there alowed any counsell for answering to Interrogatories nor yet to haue a copy of them til they haue fully answered to them which Interrogatories vpon crimes in that court haue a correspondence vnto articles criminall preferred in Ecclesiasticall courts Lastly sayth he in the Starre-chamber if the Interrogatories be impertinent the defendant without offence may refuse to answere them and so may he refuse also to answere such articles in an Ecclesiasticall court But who shall then iudge whether they be impertinent or not shall the partie himselfe no verily but as it is in the Starre-chamber the court it selfe or else some of them that are skilfull in lawe being thereunto required by the rest Whereupon what great difference there is in any circumstance much lesse in matter of substance betwixt the proceedings in these courtes may easily be considered howsoeuer he doe largely conclude thereupon after his olde maner that there be mightie and great dissimilitudes For in his conclusion hereof he encludeth also other differences more bitterly and not spoken of at all in any his premisses whereupon he inferreth it albeit that such his additions be also very vntrue as that Ecclesiasticall courts giue oathes without all course of iudgement that the oathes there are made suddenly without all discretion vpon vncertaine demaunds that their oathes doe foolishly wander at the doubtfull will of a subtil and slye opposer and that the oathe in Ecclesiasticall courtes constraineth the reuealing of wordes deedes and thoughts though neuer offensiue to any Belike then where others be offended he mindes and will not sticke to allowe vnto those courts the ministring euen of these generall oathes which he so often besides the purpose harpeth vpon Let vs then lay aside these imputations being vtterly vntrue which hee coucheth together in his conclusion made of this point viz. concerning the like course obiected to be vsed in the Starre-chamber what then doe all or any the former differences of proceeding by him noted betwixt the Starre-chamber and courts Ecclesiasticall make to prooue the vnlawfulnesse of ministring an oath in a criminall cause which is the matter onely in issue here betwixt vs yea though they were admitted to bee indeede differences which is shewed to bee farre otherwise For albeit these courts should differ in many other points yet such difference cannot prooue an equitie to bee in the very like oath when it is vsed in the Starre-chamber and an iniquitie to be in it when an Ecclesiasticall court doeth in the like case minister it Truely he might out of those differences as wel conclude thus the Starre-chamber is kept and the oath is ministred at Westminster and they haue in that court but three or foure Atturneys therefore the very like oath ministred in the Consistorie at Paules where there be a dozen Procurators sometimes present is vniust and vnequall This therefore falleth into that point which in the Epistle to the Reader I affirmed to be his sophisticall answering of obiections He also doubteth that the Statute authorizing the attaching of heretikes by Ordinaries made 2.
amends to the partie wronged for this belongeth to a Temporall Court 4 Ibid. fo 50. a. b. Vpon a publike fame arisen that a certaine parishioner did with hold his due oblations refused to be confessed to the priest to receiue the communiō at least once a yere the Ordinary ex officio did call him to the intent to inflict some corporall paine vpon him for correction of his soule and this proceeding is there allowed vnto Ordinaries to be of their iurisdiction and lawfull One 5 Ibid. 54. b. 55. a. Lindsey a publike Notary being infamed aswel of a crimeof fornication for so I take it that it ought to be read by him cōmitted as for contēpts done to that court was ex officio proceeded against by y e Deane of the Arches for correctiō of his soule maners both which are there allowed together with such proceeding to belong to y e libertie of the church to eccles iurisdiction In which copie of consultation it is to be noted that towards the end therof also in the title of it in the margent this word defamationis is vsed in steed of the word fornicationis for actions of defamatiō be seldom or neuer sued ex officio but at the instance of some partie grieued Besides mention is there made of committing it within that iurisdiction which in desamation that is not properly said to be committed is not material so the defendant remaine then in that iurisdiction and therefore where in the beginning of that Writ the wordes are printed Super formationis c. and conuerso which hath no sence nor yet is any Latin no doubt it ought to be super crimine fornicationis c. commisso As for the 1 Ibid. fol. 45. 〈◊〉 crime of fornication it is twise besides noted by the Register that Ordinaries proceeded against it in that forme In the first wherof it is said that the Ordinary proceeded ex officij debito as bound by his office duty against a chapleine that kept a cōcubine publikely to the danger of his owne soule with scandall of others Therefore this crime was obiected against him ex officio for his correction and for reformation of his maners In the 2 Ibid. fol. 57. b. later of them the Official of Canterb. proceeded ex officio against a vicar for the same crime for contēpts also by him made against that court ad correctionē animae suae And there it is said of both the faults as in al the former cōsultatiōs to like effect that this is cognitio spiritualis quae ad forū Ecclesiasticum pertinet in praemissis And the said writ runneth thus Cùm vos nuper ex officio vestro fama publica referente quod T. c. vestrae iurisdictionis C. in amplexibus fornicarijs tenet ipsum corā vobis in curia christianitatis pro correctione animae suae in hac parte citari feceritis procedentes contra eum ibidem iuxta canonicas sanctiones c. vobis significamus quod in causis praedictis ex officio vestro quatenus ad correctionem ipsius vicarij non concernunt placita de catallis debitis in curia Christianitatis procedere vlterius ibidem pro salute animae suae statuere facere poteritis quod ad officium vestrum speciale noueritis de iure pertinere prohibitione nostra praedicta non obstante So that by these so many precedēts of consultations by citations proceeding against crimes c. being of that iurisdiction by way of inquisition or enquiry by y e authorising of ecclesiasticall iudges in al of thē to proceed therein to do quod ad forum ecclesiasticū nouerint pertinere by the obiecting of the crimes to the parties enquired of ex officio iuxta canonicas sanctiones ius libertatē eccl which maybe by oath in matters aswell prohibita quia mala as mala quia prohibita against lay aswell as ecclesiasticall persons we do conclude gather that by so many iudgemēts of the cōmon law for crimes of ecclesiasticall conisance and consequently in matters neither Testamentarie nor Matrimonial any persons whether lay or ecclesiasticall being vnder that iurisdiction may be cited though against their wils by Ordinaries Iudges Ecclesiasticall ex officio ipsorum mero And vpon apparance may by censures ecclesiastical c. be vrged vpō their oaths vnto examinatiō to answer matter though it concerne their owne crimes And therfore that the lawes of this land do warrāt alow the ministring of that othe wherof we intreat vnto Courts ecclesiasticall We do onely say that the defendant may lawfully be vrged in due proceeding of office to answere concerning some crimes of his owne by vertue of his oathe But according to the Treatisour Note-gatherer and others who seeme to confound all proceeding ex officio with the very ministring of an oathe to a defendant touching a crime obiected against him we might a great deale more peremptorily conclude that if these two as they holde be but in trueth all one thing then wheresoeuer proceeding of office is there such oathe of necessitie must be also ministred and taken These proofes last alleadged are gathered out of Writtes of Consultation after that by the parties conuented Prohibitions had beene brought to remooue the causes from ecclesiasticall Courts And therefore no doubt but that the Lawe before the Consultations awarded was thoroughly debated and that the parties delinquent were cited and proceeded with altogether against their willes For can any be so simple as once to imagine that a man who is cited to answere in a cause criminall and to be punished or corrected for it will willingly appeare and answere if hee neede not to come at all and were therein also by Lawe protected Or that he wil be at cost to procure a prohibitiō to stay the dealing where he is willing enough to be proceeded with But besides allowance hereof by the Statutes and Common Lawe vnto Courtes ecclesiasticall the practise also by time immemoriall hath runne accordingly as may positiuely appeare by Acts of Ecclesiasticall Courts and by way of abnegation may be shewed from the Recordes at the common Lawe In that as I thinke it will not in them be found that any Prohibition hath vpon this point onely beene awarded thence or at least vpon debate for obtaining of a Consultation such hath not stoode nor beene mainteined And albeit either vpon this consideration or some other as weake certaine euill disposed and factious persons haue long agone disputed and maintained opinion against oathes ministred both in Courtes temporall and Ecclesiasticall yet vpon generall mislike of such fond opinions as may be gathered a Prouinciall constitution was then agreed vpon and concluded to make euen all disputations against oathes ministred in either court to be heresie which Constitution I haue not hitherto found to haue bene misliked much lesse condemned at any time since as
viz. that therfore they may not giue oths but as the cōmon law doth wil not any way follow thereupon because the Q. prerogatiue royall and common lawes are so farre from restraining or forbidding these oathes that as it hath beene prooued they allow them and the Temporall Courts in many like cases vse not so much as a different course from this which is in speciall controuersie Now if it shall be said which also some very learned men do hold as the Treatisour confesseth that the Statute law made the first of her Maiestie warranteth and alloweth this manner of oathe then to shew this to be as he conceiueth it absurde hee telleth vs of some other points also defended vpon the generall words of that Acte and of the Commission by the saide learned men which seeme vnto him to be also no lesse absurdities then is the ministring an oath in a cause criminall therfore the one no better warranted thereby then the other for to what other purpose then this he should bring them I cānot possibly cōiecture The first fault he findeth with such learned mens sayings is for that they iudge it to be warranted by the Act and by the Cōmission to put men to othes none accusation sute or lawful informatiō presentment or indictment iudicially preceeding or depending He may father vpon such learned men what he please but is it likely that he himself would thus obiect as if he required bils of Information Inditements as it is at the cōmon law to be vsed also in courts ecclesiastical seing both himselfe and the Note-gatherer do tie the Commission to causes only ecclesiastical and they also to be dealt in only ecclesiastically Such learned mēs sayings may wel truly be defended as namely whē either the offence is notorious or is knowen to the Iudges themselues to be dangerous scandalous to be suffered For these two cases be out of all those that hee nameth yea though he should most vniuersally take suite for any prosecution by another and information for any priuate credible suggestion or denunciation made The second errour which he assigneth to be holden by them is for that secret information may be admitted suppresso nomine notificantis and he calleth such informations secret accusations and the men malicious calumniators adding that all good lawes and well gouerned common wealths haue such hidden backbyters for apparant accusers But if all good Lawes and well gouerned common-weales do indeed hold such men for apparant accusers then doth it follow that when such Information is giuen there is no want of an apparant accusation Yet in very deede euery relation made to a Magistrate by such as will not prosecute nor perhaps bee seene in the cause for some good consideration is not by any law nor in any common weale that I know of holden for an accusation for a malitious calumniation or for any secret backbiting nor yet deseruedly by any necessitie is so to bee accounted For besides other countreys which I haue read of such priuate informations haue oftentimes their manifolde good vse euen in this Realme yea and amongs ech degree of Magistrates And if they should be 1 Vide 2. part pag. 85. wholy reiected or neglected might sometime bring an whole subuersion vnto vs all I pray were those that gaue the first information of Babingtons damnable conspiracie to be misliked as secret backbiters or was the examination of these traitors and the proceedings vniust because the names of the intelligence-giuers were to this day suppressed By this example then you may wey consider of sundry the like Howbeit such informations in ordinarie courtes Ecclesiasticall be not holden for sufficient ground of Speciall Enquirie except they be very frequent and the offence scandalous and in Commssion courtes they bee as rarely receiued as in any courts Temporall of this Realme whatsoeuer and then but from very great and credible persons The third fault he findeth with such learnedmens opinions is that the Iudge may professe himselfe to be an Accuser which lawlesse proceeding the Iustice of this land he saith detesteth for that no man may be accuser and witnes or Inditour and a Iurour therefore much lesse may the Iudge be an Accuser For answere whereof first the lawes ciuill and ecclesiasticall holde not the Iudge proceeding of office to be any accuser but that whereupon the Enquiry is grounded to represent the accusation and so there is no need for them to pleade such plea as he here surmiseth Secondly that an accuser may in some case and sort be a witnes c. is 2 Vide 2. part pag. 110. 111. elsewhere declared and so his antecedent false Thirdly his reason foloweth not for why might not a Iudge be an accuser albeit neither an accuser could be a witnesse nor the Inditour a Iurour Fourthly if it were true that the Iustice of this land and the common lawe did not vse something which an Ecclesiasticall court doeth may it thereupon bee inferred that therein is a contrarietie and thereby for such difference onely a detestation of the other course This maner of reasoning is more cōmon with him others in these causes then any way sound substantial For the one court doeth it the other doeth it not be no contraries nor yet propositions in any other degree of opposition in that subiectum propositionis in both is not the same and therefore doe import no more but a diuersity For is this which is the very like any good reason viz. an Ecclesiasticall court readeth dissinitiue sentences de scripto but a Temporall court doeth it not in giuing iudgement therefore there is contrarietie betwixt these courts so the reading de scripto in a court ecclesiastical vtterly vnlawfull Whereof I thought it not amisse once for all to aduertise the Reader because this erroneous argument is so vsuall Lastly if all these were to be graunted vnto the Treatisour euen as he setteth them down yet what would it auaile his cause For admit these collections were absurdly gathered from the generality of the words of the Act Commission would it therefore folow that authority to minister oaths to defendāts in causes criminal could not thence be argued without absurdities being wholly another point why if euery thing cannot well be inferred thereon may therefore nothing at all be Yet vpon these such like speeches rather thē reasons of his elsewhere by sundry occasions touched the Treatisour wisheth the said learned men wiselier to aduise these Cōmissioners ecclesiastical to respect the ends expressed in the statute viz. the pleasure of God increase of vertue conseruation of peace and vnitie of this Realme rather then the ample and large words of the statute and height of their Iurisdiction as if these ends could not possibly concurre with tender of such oaths But whēsoeuer he or any other learned or vnlearned haue sufficiently indeed prooued that these cannot stand together I doubt not but that the
CoÌ„missioners wil take it as a great benefit to haue bin instructed by theÌ„ in a point touching the pleasure of God increase of vertue conseruation of vnitie which by most of their large trauels in Diuinitie by themselues they haue not hitherto fouÌ„d Howbeit this last part of his saying seemeth vnto me to sound as if he would not stick any more to grant vnto vs that the large words of the Act doe allow of this oath So that we finde nothing any way materiall by him alleaged to impeach our former conclusion viz. that the common lawes and statutes of this Realme allowe such oaths to be tendered by Ecclesiastical Iudges therfore the oath of the partie in some matter of crime that may be daÌ„mageable penal vnto him is both in practise is alowed also to be practised in courts ecclesiastical by y e lawes of this realme CHAP. IX That such oath touching a mans owne crime is allowed both by the Canon and Ciuill lawes howe farre and in what sort and that the like is established and thought equall by the lawes customes of sundry other nations aswell ancient as moderne SEing then the giuing of an oath in a cause criminall penall to a mans owne selfe is practised by the lawes of the Realme and allowed by them vnto courts Ecclesiasticall in both which respects such Canons as prescribe it are by statute warranted to be still vsed as they were before the making of the Act. 25. H. 8. and in trueth haue bene alwayes since let vs therefore see whether this course be iustifiable also by Canon and Ciuill lawes and by them allowed and practised First the lawes of the realme that do allow certaine matters to be of ecclesiasticall conusance caÌ„not be intended but to allow an ecclesiastical forme of proceeding by such lawes receiued For it were as vnreasonable to barre them from proceeding in a cause ecclesiasticall according to that lawe as it would be to require of them to deale by way of Inditements and Iuries Those lawes are so plentisull in this point that it were vaine to set downe but a tenth part of that which in this behalfe might be sayd Therefore I holde it best to shewe vnto you what is the lawe herein agreeable also to the practise in ordinarie courts ecclesiasticall as I conceiue it in as great briefnes as I can which may boâ—…h declare that by those lawes it is allowed how farre and why it is lawfull may also serue to answere by true distinction vnto all obiections drawen out of either of those lawes against this course An oath touching a criminall position or matter is either taken by a witnes or by a partie A witnes by the very nature of testimonie must depose indifferently aswell for the partie against whom he is produced as for him which produceth him And therefore is to answere truely not onely to the positions and articles giuen in by him by whom he is produced but also vnto the lawfull and pertinent Interrogatories ministred euen by the aduerse part In which Interrogatories two seuerall sortes of matters may be conteined tending to disable him from giuing testimonie The first is an Interrogatorie tending to the discouerie of his owne turpitude and vnto 1 Felinus in ca. cum causam de testibus nu 10. per communem opinionem this whether it concerne any crime supposed to be committed by the witnes or his confession thereof or the fame and infamie against him of such crime or a sentence thereof or an excommunication thereupon gone out against him or any such like matter he is not bound to answer vpon his oath though he haue done penance for it and thereby be presumed to be reformed The reason hereof is truely alleaged to be this 2 Io. Andr. in ca. 2. de confessis nu 6. per c. ex tu arum de purgat Canon c. because the end of such a criminous Interrogatory ministred by way of exception or barre to a witnes or to an accuser is onely to disable him from accusing or witnessing not to the acquitall or condemnation of the person so challenged of the crime as the ende is where a Purgation of a mans owne selfe is to be enioyned therefore no reason to aske it of himselfe For as one wel saith by the 3 Alph. Villag in Pract. Can. li. 3. c. 13. conclus 3. order of charitie eche man is bound to loue his owne body and fame one degree sooner and neerer then his neighbours insomuch as the loue towards our selues is made the rule howe to loue our neighbours in which respect it is sayd that ordinaria charitas incipit a seipsa and therefore no man is bound to furnish one that standeth opposeth himselfe against him euen against himselfe in matter of crimes but sayth he it is otherwise when a man is vrged to the like by a Magistrate that is his competent Iudge Whereby the reason of the 4 Vide 2. Part. pag. 36. priuilege of an oath ministred ex officio aboue that which is at the instance of a partie appeareth The second sort of Interrogatories tending to the disabling of a witnes is such as conteine no turpitude in themselues as 5 Felin ibid. per Baldum Interrogatories touching his condition as whether he be bond or free or of his pouertie kindred or aliance and such like and to these he is bound to answere When a criminall matter is obiected as to be answered by him that is partie vnto the suite it either toucheth the crime of some witnesse by him produced or else the partie his owne crime if 1 Specul de teste § iam de interrogat it toucheth a crime of his owne witnesse he must answere it by the vertue of that part of Iuramentum calumniae by him taken which is that he shal not burthen more then needs his aduersary in making his proofes but shall himselfe confesse a trueth therein when he is asked But when it toucheth the parties owne crime it is of two diuers considerations for either the cause is Ciuilly mooued for the priuate interest of the prosecutor or els criminally for publike punishment If the suite be but ciuilly mooued the criminous position or interrogatorie may concerne such a crime as being concealed brings benefit commoditie to him with another mans losse And in 2 Bartol in l. Manellus §. qui rerum nu 30. ff rerum amotarum this case albeit there be no fame or no detection precedent the partie is bound to answere it vpon his oath But if the concealing of it cannot procure his gaine with another mans losse 3 L. qui iurasse §. qui pater ff de iureiur ibi glo l. si a te ff de excep rei iudic then is not the partie himselfe in such case bound to answere a position criminous so mooued by his oath yet euen in this 4 Bartol vbi supra
2 Ordonnance du France premier an 1539. art 38. the parties are bounde by oathe to affirme touching the factes conteined in their billes and additions and by their answere vpon oathe vnto Interrogatories to confesse those which be within their knowledge In other matters criminall it is reported to be the 3 Marcus decisione 674. custome of France for the partie defendant onely to make fayth when they are obiected and hee is thereupon to answere whether he haue committed them or not but hee is not to take a corporall oathe betwixt which two before God there is no difference But by the 4 Grand Coustuâ—…er entre les coustumes de Normandie customes of Normandie I finde that the appealed of murther or such like when it is to bee tried by battaile must vpon his oathe holding his aduersarie by the hand solemnelie sweare whether hee hath committed such facte or no in the very selfe same wordes and maner as Stanford afore alleadged affirmeth to bee the lawe of England in like case of Appeale Generally y t to giue 5 Bâ—…tol in l. inter omnes §. reâ—… fl de furtis an oath to the partie conueÌ„ted in a cause criminall to tell the trueth is the present vsuall practise of most nations abroad and 1 August ad Angel de maleficijs in ver comparuerunt Bertrand consil 321. nu 3. li. 3. in prima parte Marsil in l. quaestio habeÌ„dae nu 72. ff de quaestionibus Conradus in Practica fol. 280. Go. mez ca. 1. Delictorum nu 65. that the common opinion of writers in these two lawes is that it may bee so giuen euen by the lawe Ciuill which is their common lawe doeth appeare by the places of Authors here quoted in the margent Amongst nations of farre elder times in most flourishing common weales we finde oathes in all causes whether Ciuillie or Criminallie mooued to haue bene taken both by the plaintifes and also by the defendants Amongst the 2 Ex Polluce Sigonius li 4. ca. 4. de republica Atheniensi Suidas in verbo Athenians both parties tooke oathes and besides that did lay downe a certaine summe of money to be forfeited by him that should bee ouerthrowen The Plaintifes or Accusers oath was that he would obiect nothing but true crimes and matters This was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the defendant sware that he would deale and answere plainlie not fraudulently and cautelously and this was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 When Aeschines accused Timarchus of a fowle crime supposed to be done vpon him by one 3 Aeschines contra Timarchum pag. 7. Graece Misgolas he saieth thus that if Misgolas being called and vrged to beare witnesse shall denie it to the intent to gratifie Timarchus hee shall thereby doe him no good because Aeschines can prooue it by witnesses but shall only for sweare himselfe and withall shew how cunningly hee can couer such villanies Whereby appeareth that in that common wealth oaths might bee giuen in matters criminall tending to the opening of their owne turpitude as well as of other mens Radamanthus for his seuere and strict course of Iustice holden was fained by Poets like as Aeacus and Minos also were to be a Iudge in another world ouer ghosts deceassed Of him 4 Plato lib. 12. de legibus Plato thus writeth to our purpose I am perswaded saieth he that Radamanthus deserued to bee had in great admiration for he perceiued how in those dayes all men confessed that there were gods which had regard ouer humane actions therefore he thought best to commit deciding of matters in iudgement vnto gods and not vnto men So that by a very plaine and easie course hee ended all matters of iudgement for hee exacting an oath in euery cause in controuersie vsed thereby no lesse speedily then safely to giue his iudgements 5 Libr. 3. Polit. c. 10. Aristotle also Plato his scholer testifieth the like that in olde times supposed offenders that were called into question were some of them proceeded with vpoÌ„ their oaths other without and their oath was performed by holding vp of a scepter The historie of Glaucus 1 Herodotus in Etato lib. 6. an auncient Spartan doeth giue plaine euidence that amongst that most iust people of Greece a man that would denie a thing to haue bene left with him in deposito that is in trust to keepe was to take his oathe whether it was so left with him or not and consequentlie was to sweare of matter tending either to periurie or to his dishonestie and shame hauing once vniustly denied it afore to the defeating of his right who had trusted him For the said Glaucus his whole house and posteritie was rooted out by Gods vengeance onely for that a while hee denied it and had once in purpose to haue forsworne the money which was in deede left with him vpon trust and thereupon consulted with the Oracle at Delphos whether he had best forsweare himselfe or deliuer the money The vse of an oath in matters criminall amongst the people of Greece may be prooued to be most ancient by that purgation which king Agamemnon made to cleare himselfe that he had not liued incontinently with Hippodamia this his purgation is recorded to haue bene made in this forme 2 Dictyâ—… Cretensis lib. 2. belli Troiani Hee commanded two Sergeants to bring the hoste or sacrifice which being by two lifted vp from the earth Agamemnon drewe out his sworde and therewith diuided it into two partes and caused it in the presence of all to be laied downe then holding in his hand the bloudie sworde hee went betwixt the two partes of the sacrifice and when hee was passed through he then sware that he had neuer polluted Hippodamia by incontinencie Homer 3 Homer lib. 19. Iliad v. 257. mentioneth that the same king in another forme cleared himselfe that he had not violated Briseis For at that purgation a Boare was offered vp by Talthibius then Agamemnon cut off some of the Boares bristles and offered them to Iupiter swearing withall that he had not violated Briseis and the Boare was after tumbled into the sea For clearing men from suspicion of all lewd and sinister dealing not onely those which came to striue 4 Pausanias in Eliacis at the solemne exercises and games of Olympus but their parents also and brethren were sworne ouer the entrailes of a sacrificed hogge that they had vsed no fraude or deceit whatsoeuer nor done otherwise then the ordinnances for Olympus did permit So much then for the vse thereof among the old Graecians In the old Romane common 1 Cato de re rust ca. 144. 145. wealth we read that euen priuate housholders did lawfully impose such an oathe vpon their labourers that gathered Oliues videlicet that neither themselues nor yet any other by their couin or fraude had stollen or embezelled away either oyle or oliues which oathe if they
is meete that such being probably touched that witnesse instar omnium be vsed and called on by them who knoweth all things before whom the whole world stands as a 1 Apocal. 4. v. 6. sea of pure Christall Some examples of such crimes are shewed in the eleuenth Chapter by the Scriptures And what shall witnesses neede if the partie himselfe will not denie it Or what if the witnesses be not meete to be knowen at first least the partie vpon his oath or otherwise discouer no more when he once knoweth them then he supposeth by them can be deposed Or what if at the parties first conuenting no witnesses be knowen that can testifie but doe come afterward vnto the Iudges knowledge Touching hidden crimes if they be simply hidden and in such sorte as is meant by that place of S. Paul and by the like rules in lawe it is very true that they are not to bee enquired after by any Magistrate neither is any man bound to reueale such Therefore it may not bee asked of any man as was done in Popish shrift what faults and sinnes hee knoweth by himselfe Such be the counsels and secrete thoughts of mens hearts spoken of by Saint Paul in that place and all actions also not come abroade at all nor manifested either by fame or by other good presumptions or euidences For before they be at least so manifested it is not of any possibilitie to make enquirie or question after particular crimes when they bee not so much as supposed to be done Concerning which crimes what the law Ecclesiasticall and practise is I referre you to the ninth chapter of this third part But if they shall be once so manifested abroad as before is declared then is not the fault simplie hidden but in part is manifested and brought to light and therefore is it fit and conuenient that the partie be either cleared of it or corrected for it Besides that place of S. Paul is not meant of any Iudiciall proceedings but of priuate rash and vncharitable iudging of our brother in the worst part without any iust ground thereof as if wee would take vpon vs Gods owne office and would iudge the inward cogitations of another mans heart Such peruerse iudging our Sauiour Christ also 1 Matth. 7. v. 1. Rom. 2. v. 1. condemneth in the Gospell But it pertaineth nothing vnto such enquirie by oath as the Magistrate hath good enducements and presumptions for to enter into Another sorte no lesse pernicious then the former are those who will pretend not to refuse to take an oath in a cause criminall but yet they will doe it with this limitation and protestation that they entend not thereby to be bound either to accuse themselues or their brethren By accusation meaning the reuealing of any thing for which they or their brethren may be troubled or punished Vpon what ground other then the generall reasons of the rest and of the Iesuites as if it were against nature and charitie c. these should build this opinion I for my part cannot wel coniecture But it sorteth to this passe that seeing we are all brethren and members one of another therefore it shall not be lawful for the Magistrate to punish any sinne or transgression sauing where himselfe doeth take the offender with the maner yea and scarse then too For they will hardly I beleeue allowe that the same man shall be accuser witnesse and Iudge For they conceiue howbeit erroneouslie the Iudge who proceedeth of office to be an accuser This plainlie followeth of it because no sinne may lawfully be punished but where the partie is conuicted There can be none other conuiction but either by the parties owne confession or vpon depositions of witnesses So that if no Christian be bound nor ought before a Magistrate to reueale either his owne or his brothers offences then doeth it followe that crimes shall neuer be punished till the offenders themselues being moued in conscience if happily they shall euen then by these men be suffered to accuse or discouer themselues shal wilfully come in and desire for Gods sake to be hanged vp or otherwise punished as the qualitie of their offence leadeth Amongst the heathens I reade of no nation but they vsed and had oathes in great estimation and necessarie practise sauing 1 Alex. ab Alex. Genial Dierum li. 5. cap. 10. the foolish Phrygians who onely condemned them And amongst Christians the olde heretikes Manichees of later times the Anabaptistes and now lastly these fellowes who albeit not in plaine wordes yet in very deede doe vpon the matter take away all oathes in matters criminall and consequently all both Ciuill and Ecclesiasticall punishments and censures from among men For 2 Cyprian in exposit Symboli Manes the olde heretique taught that it was not lawfull for Christians to sweare at all The third sort of opinions being deliuered by diuers of the more learned sorte of the Innouatours are of such as holde that they may reueale both their owne and their brothers crimes and offences to remoue euill from the land as they speake when they are duely charged thereunto by oathe But some actions there be which they beleeue to be well and lawfully done and yet by lawe or iniquitie of the time they holde to be such as may bring trouble and punishment vpon them And those they saye they are bound in conscience not to declare at all This opinion for y e first part thereof is directly cōtrarie to the next afore precedent But who shall iudge whether such matters as they be enquired of ought to be accounted for faults and offenses and which being punished will remoue euill from the land or whether they be in deed and trueth good vertuous actions I greatly feare that these men wil not in this point be content to be ouer-ruled either by the lawes of the Realme or by the Magistrates Iudges that be interpreters of the lawes But no remedie an oathe they will not take till they shal be satisfied and resolued which they can make as long in doing as them selues lust that such actions be iustly and lawfully to be condemned for Crimes and offenses by Gods lawe So that this is nothing else then to permitte vnto euery priuate subiect the iudgement how farre in what causes and against whom he needeth to declare his knowledge of anymatter how expedient soeuer for her Maiestie and vnto the whole common-wealth it be to be knowen Is not this to put a sure buckler into the hands of Iesuites other traitors murderers felons and euery lewde companion to holde foorth against the lawfull examination of Magistrates touching themselues or their complices For if they neede not declare any thing by oathe much lesse will they haue conscience to doe it when they are not sworne which forbearing of the parties own oath in examination of crimes that may be capitall to him is alwayes obserued in this Realme Perhappes vnto this absurditie
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
Bernard Serm. 65. 66. in canticum other sorte of heretiques in the time of Bernard that were termed Apostolici And by certaine other as it is written that were called Flagellantes where by the way wee may obserue that none in those dayes had learned absolutely to refuse an oathe in a matter made by the Examiners criminous vnto the parties examined or yet to their complices and brethren But for not reuealing their owne or their brethrens secrets those heretiques of olde time had learned perfitly ynough to conceale the trueâ—…h yea albeit they incurred flatte periurie by such their concealement or deniall of the trueth I wil now assaye to answere the reasons which I haue heard brought for y e establishing of this their conceipt But first I must put you in minde how vnreasonable incoÌ„uenieÌ„t it is to be accouÌ„ted in al practise of lawes For wheÌ„ the defendaÌ„t hath denyed a crime obiected or refused to answere yea or nay if it might be free for all y t by likelyhood can testifie thereof to make such pretense to y e intent to excuse theÌ„selues froÌ„ that necessarie dutie vnto y e commoÌ„-wealth what criminous person could or were likely to bee euer directly conuicted whereas by the ciuil 2 〈◊〉 6. § 4. C. de his qui ad eccles consugiunt lawes sometimes he that is supposed to haue appointed the delinquent to doe the facte he that is his suretie he that is called into question for the same crime he that is fellowe or familiar with the suspected person may be compelled to sweare depose of a crime By the coÌ„mon law if such as are supposed can giue euidaece for the Queene should not oftentimes bee compelled thereunto by authoritie would there not in many causes want due proofe for iusticeing and for execution of offenders But to this it is said that men are but bounde in an obligation or recognizance to prosecute the fellonie It is true what other bond shoulde any man enter for his apparance But if hee refuse that may he not be sent to the gaole himselfe And when hee commeth before the Iudges hee is bounde also by a necessarie oathe to giue true euidence to the vtmost of his knowledge against the prisoner or person to be tried Which if he shall refuse he is like to stand in boltes with him whose fault he mindeth to conceile as hee well deserueth and happely may be condemned to pay a rounde fine besides for his notorious contempt and for abbetting of offenders in their lewdnes If it be said as some haue obiected that it is not amisse to certifie so the partie bee willing but that it is hard to bind him vpon his oath to testifie whatsoeuer he knoweth against the defendant touching that matter truely I cannot gesse whereunto this speach may tend except witnesses might say what and how little they list of the trueth or els that they would haue mens words to be beleeued against others to their coÌ„uiction without any oath But what matter can be confirmed without oathe in any outward actions of men not knowen by some sense vnto y e Iudge it is the law of nature and nations to beleeue no man against another without an oath For why should not any mans bare denial for his owne clearing bee as strong as many other mens bare words for his condemnation quia proniores esse debemus ad absolueÌ„duÌ„ quà m ad coÌ„demnanduÌ„ Therefore the holy Ghost noting it to be a law of nations that no mans word vnsworne should be receiued thus testifieth that an 1 Heb. 6. v. 16. oath for confirmation is amongs men indefinitely therefore most vniuersally an end of all strife It is 2 Alex. ab Alex. Gen. Dierum Lib. 5. cap. 10. told as amaruaile of one only amongs y e heatheÌ„ named Zenocrates for whose bare word the Athenians by alawe decreed that it should be holden of as great force as his oath in all matters such was his rare and singular vprightnesse integritie Touching their reasons I make this to be the first as most general viz. Because they haue not iustly incurred the Magistrates displeasure by any offence therfore they cannot hold themselues bound in conscience to be the Magistrates iustruments against such as be none offendours To which may be added that they are bound to seeke rather the deliuerance of the Innocent because it is said 3 Prouerb 24. ver 11. Deliuer them that are drawen to death and wilt thou not preserue them that are led to be slaine And it is noted as a sinne in S. Paul himselfe that he 4 Actes 22. v. 20. stoode by consented to Steuens death and kept the clothes of them that slue him As if they should say We haue gone in this matter as farre as our brethren we know our course to be good whatsoeuer the lawes or the Magistrates determine or thinke to the contrary that doe but seeke to punish vs for it And seeing we are so well perswaded of all our innocencies we may not be any instruments of our owne or their further detection for this were to consent to haue guiltlesse men punished But is not this to take vpon theÌ„ being but witnesses of the fact to iudge also of the lawe what it ought to be and to condemne it as it is and is it not in effect asmuch as to condemne the lawes of vniustice and the magistrats of tyrannie persecution and of seeking the vexation of innocents But if the lawes were such yet at the commandement of the magistrate to tell the particulars of these their actions so iustifiable as they thinke whereof the Magistrates already knowe the generalitie is not to consent vnto the punishment of innocents Doth euery one that confesseth his owne crime pleadeth guiltie in a cause capitall consent to his owne death or is thereby giltie of his owne blood then why is he more consenting or guiltie to their punishing due by lawe for these actions who onely declareth them truely as they are more theÌ„ he that confesseth being in deed guiltie may be said to be guiltie of his owne death It is a subiects dutie most especially in causes not capital to himselfe if he be required by authoritie not to dallie nor to lie vnto the Magistrate but to tell the fact truely as it was whomsoeuer besides it may concerne Now if thereupon either the Magistrate punish it where he ought not or more grieuously then law permitteth or if the lawe punish that as a crime which is a vertue the fault and guilt before God is not in them that declare the trueth but either in the Iudges or in the lawe Nay to enforce this point a little further I would aske this question of euery of theÌ„ that be of y e side A man being of necessitie to plead either guiltie or not guiltie to a crime capital vnto him or els to be pressed to death if he be guiltie of the fact and yet
happely he knoweth there can be no pregnant no nor any likely euidence brought against him whether in foro conscientiae without any sinne may such a man pleade not guiltie vnto the matter of inditement for the time place and other wordes of fourme and course are not trauersable on the other side if in this case hee pleade guiltie being so in deede whether is he thereby guiltie of his owne death or not But if for auoyding of sinne before God such one ought in conscience to plead guiltie rather then lyeÌ„ and yet shall not thereby be made guiltie of his owne death why shall y e declaring of the trueth touching other mens actioÌ„s make him y t reuealeth it being charged thereunto guiltie or coÌ„senting vnto their punishmeÌ„ts how vniust soeuer otherwise they might be surmised to be for if any mans faults may be spared a man might most lawfully spare himselfe quia Ordinaria charitas incipit à seipsa And to presse this reason à Paribus at least if not à fortiori a little further If such a man shoulde chuse rather to be pressed to death for standing wilfully mute and not answering directly vnto either should he not de iure poli euen in true termes of Diuinitie be accounted guiltie of his owne death to be in the sight of God a murderer of himselfe the very like therefore is to bee iudged of these persons viz. that their punishment as coÌ„uicted of the crime is most iust that their blood is vpon their owne heads that none are causes of y e punishment inflicted vpon them but themselues for standing obstinately mute without direct answering in fourme of lawe as they ought though it were admitted that such their actions whereof they bee interrogated were all good and they innocents And as the reuealing of other mens actions when we are duly charged maketh vs not guiltie or consenting to their punishment so our refusing to answere neither is any meanes in deed nor yet is so appointed of God to serue for their deliueraÌ„ce For God wil not allowe to haue innocents deliuered by our disobedience to his LieutenaÌ„ts on earth nor by concealemeÌ„t of any trueth expedient to be knowen according to law commanded to be declared And therefore y e place of the Prouerbes by theÌ„ brought fitteth not this purpose For if they for their obedience sake with a single heart without intent to hurt the innocent and being charged shall deliuer but the very plaine trueth how vniustly soeuer the magistrate may seeme to deale afterward yet shal not the discouerer of the trueth bee a partaker of the magistrates sinne For it is but he 1 Prouerb 24. ver 8. which imagineth to doe euil whome men shall call an authour of wickednesse as is recorded in the same Chapter The other place out of y e Acts is nothing like to y e matter case that we haue in hand For Paul was not there charged by autoritie to bewray any thing he knewe against Steuen much lesse to deale at all in that action But hee willingly as one forwarde of himselfe and of a malice against the very profession which he then detested did thrust himselfe into the cause and rather then he would not be some stickler in it he thought good to do some office of kindenes vnto the tormeÌ„ters executioners of that holy Martyr though it were but by keeping their clothes thereby he directly gaue approbation and consent vnto Steuens death Yea this their opinion is without any other like example in any text of Scripture except perhappes they will gather it from an obseruation and note pretended to be collected from the next Chapter following For I finde an opinion collected thence which iumpeth with theirs in this behalfe 1 Rhemish Testament in annotat cap. 23. Act. A. post ver 12. If thou bee put to an oathe saith that note to accuse Catholikes for seruing God as they ought to doe or to vtter any innocent man vnto Gods enemies and his thou oughtest first to refuse such vnlawfull oathes But if thou haue not constancie and courage so to doe yet knowe thou that such oathes binde not at all in conscience and lawe of God but may and must be broken vnder paine of damnation They will not confesse that they haue sucked this opinion from hence and they may not be endured to flappe vs out with T. C. their olde dogge tricke and to say they borrowed it not of the Papistes but obserued so much themselues by reading of the Bible For this were both to iustifie their owne and with-all this corrupt doctrine of the Iesuites as if they both so well agreeing together were arightly grounded vpon the worde of God But they bring seuerall places and examples whereby they thinke this is prooued The officers of the children of Israel that were appointed by Pharaohs taske-masters to looke that the people shoulde make as much Bricke by day and gather the strawe themselues as they did when strawe was found to their handes seeing that the people were not able to perfourme it and yet were beaten for not doing it did signifie the impossibilitie vnreasonablenes of this vnto the king But the king gaue them a resolute answere that they shoulde doe it vpbraiding them that it was but idlenesse which made them pretend that they would goe to offer sacrifice vnto their God Which thing was the ground of Moyses and Aarons suite vnto him that the people might haue leaue to goe into the wildernesse So when these officers comming with this hard answere from the king did meete with Moyses and Aaron they expostulated thus with them Ye 1 Exod. 5. vâ—… 21. haue made our sauour to stinke before Pharaoh and his seruants in that ye haue put a sword in their hands to slay vs meaning that their sute for going forth to sacrifice did so discontent y e king that he would in that respect oppresse them euen vnto death But what is this to purpose doth this phrase of putting a sword into another mans hand so please these men that they will imagine by what occasion soeuer a wicked man pickes quarell to oppresse Gods children that such a thing whereupon the occasion is taken of necessitie is vnlawfull to be done from the best actions of godly men tyrants will oftentimes take occasion to persecute the whole Church shall therefore all exercises of religion be intermitted Euen in this place the message that Moyses and Aaron brought to Pharaoh which occasioned such oppression to the children of Israel was put in their mouthes by the Lord. And therefore they sinned not albeit this was like to haue turned to be as a sword to destroy vp all the children of Israel but rather these officers did offend that thus did mutine and grudge against those who fulfilled Gods coÌ„mandement and did but as they ought to do Euen so shall they offend likewise that shall be displeased with such as doe
this principle is thereby wholy destroyed when as the detection made by fame by denunciatiō or presentment c. commeth from others and is not a mans owne detection of himselfe therefore it is not so much as a limitation properly but rather a true exposition how that rule ought to be vnderstood By as good reason it might be said that because a man is not at first by any course of Iustice bound to discouer the very facte against himselfe that therefore being called into question and touched by great presumptions and arraigned for it there is no Iustice to vrge him to pleade either not guiltie and so to lye or else guiltie and so to bewraye himselfe For proofe of an abuse of Gods name and Maiestie by purgations he sayeth to offer an oathe vnto persons diffamed concerning their owne corrupt life argueth a lightnes and want of good discretiō in the Magistrate For that he wittingly doeth minister an occasion of periurie I haue spoken of this point by occasion afore and I trust the Readers wil pardon my necessary repetitiōs sometime of one matter in diuers places considering the Treatisour vpon one reason seeketh very often to build many seuerall distinct conclusions First no man ought by any occasion whatsoeuer be drawen to goe against his oath or to periure himselfe a word most properly verified in an oathe Assertorie such as that of purgation is Secondly it is to bee denied that whatsoeuer a man of a bad minde may take for an occasion to forsweare himselfe that in euery such case it is lightnes and vndiscretion in the Magistrate to offer an oathe Which may appeare by decisorie oathes or wagers of lawe in actions reall or personall for landes and goods being such things which be as deepely by most men tendered and affected as their owne good names or honest reputations Thirdly it is too grieuous a charge to bring euery lightnes or vndiscretion of a Magistrate within the compasse of abusing Gods name maiestie though this were admitted to be such lightnes Fourthly no lawe presumeth so vncharitably as though euery one detected or presented of corrupt life were straightway of necessitie and in very deed guiltie of such crime nor yet is it to bee intended that most which be in trueth guiltie will rather forsweare themselues then confesse the trueth considering the penaltie inflicted by courtes Ecclesiasticall are not very grieuous and the chiefe end therein aymed at is but an inducement vnto a testification of the delinquēts repentance Fiftly euery one who vpon a fame is detected or presented cannot be truely said to be thereupō diffamed infamia iuris For a fame may rise yea very probable cause of suspition of a crime may also be giuen where neuerthelesse the fact is not at all committed Lastly it is not euery person suspected of any crime who in discretion of the Magistrate is not to be vrged with an oathe but it is such an one who is probably suspected to be more likely to forsweare himselfe then to confesse a trueth But herein he presseth vs yet further with a piece of old counsell viz. Dedecus magis quà m periculum vites Whosoeuer giues this counsell if hee shoulde meane that the perill of a mans soule were rather to be embraced then any worldly shame it were very vnsounde and wicked counsell For it is better to loose not onely our whole credites in the worlde yea all the world besides rather then our owne soules It is in trueth but an exhortation vnto valor and courage and that a man in a good cause should rather incurre any bodily perill then empaire or distaine his honor and loyaltie to his countrie by cowardise Besides in matters spirituall and belonging to the soule there is a shame which bringeth honor as Ecclesiasticus writeth He inueigheth also against them ex absurdo because if purgations should be vsed he saieth at the Common Lawe vpon Enditements of felonie or other criminall causes periurie would ouerflowe the land I am also of this minde that if for matters of life death a man might be acquited vpon his owne oathe and his Compurgators that many wilfull periuries would be committed But othes of purgation bee not imposed any more at the Ecclesiasticall lawe then they be at the Common lawe in any matters capitall And as purgation is onely a presumptiue kinde of clearing to remoue the offense for safegard of his credit who being infamed can iustly and truely performe it so is it no such finall acquitall but that the partie purged may againe be conuented for the same if any man by lawe allowed will vndertake the proofe not of the same but of the very crime and offense it selfe whereof hee was afore purged As for other criminall causes which endanger not life nor limme diuerse Temporall courtes though not vpon Enditements without such feare of driuing men to periurie do minister vrge the parties othes as hath bin shewed Yet not holding them purged or cleared thereby albeit they deny the crimes but enquiring further and examining witnesses also afterwardes touching the trueth of the offense Besides such othes be ministred in those Temporal courtes vpon no detection of fame or other presumption grounded vpon the othes of any but vpon the priuate vindicatiue minde of him which putteth in the bill and prosecuteth Lastly there bee fewe or none of the crimes called transeuntia and not capitall which be enquirable in any courtes temporal or if any be they are not in their owne nature so secretly and without possibilitie of direct proofe performed as the crime of incontinencie is touching which most purgations fall out in Ecclesiasticall courtes There was therefore small cause of that his question here viz. Why Ecclesiastical courtes offer not to the laitie the like good measure and vpright and sincere Iustice that themselues finde in courtes temporal Besides that by the same question hee indirectly also taxeth all courtes whatsoeuer that impose othe on the partie for want of good measure and of vpright and sincere Iustice. Vpon the former reasons against purgation he groūdeth another question also viz. Why these ordinaries which challenge or assume to themselues the goodly name and title of spiritual men doe not proceede to condemnation by good proofe of lawfull witnesses and againe absolue the partie diffamed where such sufficient proofe failes them I answere first Ordinaries doe not in these dayes eyther challenge or assume to thēselues such goodly name as he solaceth himselfe at but rather the title of persons or Iudges Ecclesiastical In deede that other name in times past was willingly embraced by the Cleargie and as they thought without any iniurie to other callings in respecte of the subiect matter of their profession which is spirituall And by no mans writings or speeches is it more often attributed vnto them euen vntill this day then it is in statutes of the Realme in reportes and vsuall speeches at the Commō law Therefore
was there y e lesse coloure that Ordinaries should be vpbrayded with it as if they of their owne heads did vainely arrogate that title vnto themselues Secondly Ordinaries doe in all causes not confessed proceede to condemnation vpon witnesses and matter of Recorde or vnto absolution vpon fayling in proofe sauing in crimes which be of that secrecie in their owne nature so as witnesses of the very crime by no likelyhood can be had yet alwayes where such probable inducements thereof doe lye as doe inferre a fame or giue scandall to the well affected and are euill examples to the weake and vnstayed Thirdly if no condemnation of a man be iust in any court but vpon good proofe of lawfull witnesses deposing of their owne sightes and knowledges then doeth he withall impugne the vsual and lawful Iustice of this land by Iuries who in crimes of very high qualitie are often may be led sometimes by one witnes yea and he the partie that preferres vp the Inditement and sometimes though by moe witnesses then one yet all deposing vpon probabilities presumptions and other pregnant or likely inducements to proue the partie to be guiltie Like wise he ouerthrowes also hereby all waging of law by the parties Iudicial othe taken in courtes of the Common lawe about chattels debtes and landes For a man hauing but two handes of Compurgators swearing for the trueth of his oathe vpon their owne credulities shal be thereby relieued and acquited against his aduersarie without any witnesse at all For the Treatisour himselfe telleth vs that wager of lawe is not permitted where any one witnesse or writing may bee had and if the partie will not take such oathe being offered then is he without witnesse writing or other confession condemned for the matter in demaunde Now sauing that it is not in a cause cryminal what doeth this wager of lawe else differ from a purgation and what lesse danger of deadlines poyson or periurie is there herein especially if the matter be of any weight and moment then there is in purgations at the law Ecclesiastical and yet neuerthelesse both of them be good measure vpright sincere dealing in all course of good Iustice. Lastly if in crimes of that hidden nature he would haue all diffamed persons without more adoe discharged and absolued where two witnesses of the very fact cannot be had he might then in steede of feare that periurie in the other case would ouerflow the land stand wel assured in this that adulterie and lecherie might and would more freely ouerflow it without all touch or cōtrolment Admitting that which the Treatisour further alledgeth out of the grieuances of Germany to this purpose to be truely by him set down yet there is nothing there obiected which cōdēneth these purgations For the first fault there found is only for that men vpō false reports sclanders being brought before Ordinaries hauing purged themselues do neuertheles pay for their letters of absolution which ought rather to be paid by such as falsly accused them Whether any such thing were practised then in Germanie or no I know not heate of opposition sharpenesse of humour makes men sometimes either wilfully or by mistaking to misreport matters hapning euen at their owne doores But I stand not to defend abuses by any man offred against law The law is that vpon an accusation a man shall not be put to oath of purgation except the proofes made though they do not conuince yet doe greatly burthen and charge him by vehement presumptions or scandall And if he do then purge cleare himselfe the accuser is to be condemned in charges And though by Accuser here any priuate prosecutor were to be vnderstood yet vpon the purgation euen such must likewise defray the charges because it is calumnia praesumpta But if publike Officers that are appointed to present do make denunciation then are they to pay no charges vnlesse not onely the presumed calumniation and conspiracie but also a true and formall calumniation be found against them The next grieuances there pretended by him alledged are for that vpon diffaming one of another through anger both the partie that did diffame must take oath that what was spoken by him was not deliberately but vpon displeasure vttered and the partie diffamed that hee or shee is not an adulterer c. as they were by the other slandered to be whereby is inferred as inconuiences that both vnlawfull gaine is thereby sought and wilful periurie forced It is no maruaile in deed though such greater inconueniences also should happē where due proceeding in law is not obserued for neither of these two last courses is warranted by any law nor yet followed by any practise in this Realm y t I know or haue heard of therfore culpateneat autores So that Purgation in it selfe is not assigned we see for any of those Germaine grieuances But because the Treatisour surmised his reasons could not otherwise be answered nor Purgations iustified vnlesse Compurgators who concurre in that action swear vpon their credulities were thereunto vouched to help the cause therfore to meete also with this point he saith the matter is therby no whit amēded but rather made worse empayred because compurgators do in effect iustifie him to be honest whose fame the former deponēts haue proued to be dishonest very neere the circumstāces considered conuinced of the crime obiected where may be obserued howe light account soeuer els-where he doe make of fame without direct proofes therfore would haue the partie dismissed w tout more adoe that neuerthelesse he maketh it here to be very neere a conuiction Albeit a fame and those who depose thereof do burden and charge a mans honestie yet doe they not conuince him of the fact and therefore do not proue him to be dishonest Furthermore the number of Compurgators cannot make worse nor impaire any way either the credit of the man or of the matter though it were granted that there oathes for his reason afore alledged were rash and vnconsiderate wheras in trueth the fame or such like inducement being but a charge importing some presumption against the partie is most aptly cleared and taken away as with a more strong presumption viz. by the partie himselfe who taketh oath of his owne innocencie from the very fact is besides assisted with the oathes of sundry others who are priuie to his former conuersation and feare of God deposing vpon their credulities that weying the whole matter indifferently they verily thinke the partie hath taken a true oath Againe if by fame and by the presenters oathes therof the partie be in deede proued dishonest why doth he say that it is but neere vnto a Conuiction for if dishonestic were thereby proued by him why should he not also stand thereupon conuicted But I would haue thought till now that none who thinketh reuerently and but as he ought of the common lawes of this his owne countrey howsoeuer he do
it in the Register that vnderstoode it before Fitzherbert or was it not put downe there but in some late copies as is most likely And after he had set it downe would not the law in that behalfe haue bin vrged against sundry Bishops that practised the contrary in K. Hen. the 8. time continually since if that opinion had bin holden for good lawe Touching this matter the Treatisour saith thus in effect that the not coÌ„pelling of witnesses to sweare to depose their knowledges brings none other preiudice but that the partie plaintife faileth in his proofes thereby Why is that no small preiudice for a man which hath in deede a right to haue the causes goe against him through the wilfulnesse of witnesses y t neither will come of theÌ„selues nor may be coÌ„pelled by others as this opinioÌ„ importeth Is not this to giue cause of acquiting the wroÌ„g doer of coÌ„demning him that hath the very right and doth it not nourish or at least tolerate that sinne in the witnes which iâ—… coÌ„demned by the law of God in these 1 Leuit. 5. V. 1. wordes viz. If any haue thus sinned that is if he haue heard the voyce of an oath he can be a witnes whether he hath seene or knowen of it if he doe not vtter it he shall beare his iniquitie In which place I doubt not but all such be included who knowing the matter which is in examination or question before a Magistrate shall refuse neuerthelesse being duely called to giue testimonie to the trueth according to their knowledges The Treatisour further saith that it may be sufficieÌ„t for a court ecclesiastical to haue no better meanes for bringing in of witnesses to testifie then teÌ„porall courts haue Truely if they might be allowed the same I thinke none of them would desire any better For when a witnesse is vnwilling to depose vnlesse he be vrged by processe what is more vsuall in teÌ„porall courts then to haue a sub-poena to charge him to appeare and to testifie at such a time place But because by this his saying it seemeth he entendeth that the course of vrging witnesses to testifie as is claimed alwaies hath bin vsed by courts ecclesiasticall conteineth some repugnancie against the lawes of the Realme therefore for cleering of that point I wil briefely shew that it is not so much as a diuerse and much lesse a contrary or repugnant order vnto the lawes of this Realme First for practise what is more frequent then for Iustices of the peace to binde men by recognisance to giue in euidenc at Sessions or Assises touching supposed offendours It would be ouer tedious to set downe the sundry cases reported by the booke of Assiles to this effect viz. that where a deede is pleaded denied and processe against the witnesses is desired that it shall go out to call them to testifie It wil be sufficient to referre you to 1 Brooke titulo testmoignes Brookes AbridgemeÌ„t where they be gathered yea though the actioÌ„ be 2 1. H. 6. 5. personall if a deede with witnesses at it be pleaded denied processe shal be awarded for the witnesses per Markham Rolfe Be not Iurours also that be summoned to passe on trials fined if they appeare not and what more equitie to amerce or fine them then necessarie witnesses seeing trials can no more be made without euidence then they may without a Iurie By statute 3 23. H. 8. ca. 3. Iurours for triall of Periurie are appointed to be fined if they refuse to make apparance Likewise if any 4 5. Eliz. ca. 9. witnesse be serued to testifie in a court of Recorde and hauing tendred according to his countenance his necessarie charges doe not appeare he shall forfeite tenne poundes and make further recompence according to the losse So that we see it is no contrary or repugnant course to the Common lawes to haue witnesses vrged to testifie being there also practised But if here it be replied that the Common lawe forbiddeth it vnto courtes ecclesiasticall sauing in those two cases it will easily appeare that it is so farre from being forbidden that it is indeede allowed vnto them by Common lawe and by statutes There be very many precedents in the Register of consultations graunted vpoÌ„ debating of the seuerall matters there after that prohibitions had bene purchased in euery of which almost general wordes of allowance of the maner of proceedings according to the lawe ecclesiasticall be conteined as 5 Reg. in br orig fol. 56. b. fol. 57. b. namely allowing of the proceeding iuxta Canonicas saÌ„ctiones setting in the end of euery coÌ„sultatioÌ„ there except two or three these or the like wordes in effect viz. Cicitè procedere vlteriùs facere poteritis prout ad forum ecclesiasticum noueritis pertinere prohibitione nostra non obstante Nay let an instance be giuen if any man can doe it where of olde any such prohibition hath gone foorth and not bin reuersed againe by consultation yea almost where it hath gone foorth at all onely for censuring a wittiesse that refused to come in and testifie in any other matter of ecclesiasticall conisance besides testamentarie and matrimoniall And yet hath it bin in continual and vninterrupted practice for so long time as any ecclesiasticall actes now remaining do mention pleas in those courtes to be holden Iustice Brooke in his Abridgement both testifieth that by the Ciuill lawe witnesses which wil be holden indifferent should not come till they be called and setteth it downe as a matter woorth the noting whereby may be gathered his allowance thereof The 1 Brooke tit Corone nu 220. wordes be these By the Ciuill lawe Accusers be as parties and not as witnesses for witnesses ought to be indifferent and not to come till they be called but Accusers doe offer themselues to Accuse c. quod nota That by the Ciuill and Canon lawe witnesses may be vrged to giue testimonie and in what sort wil appeare by this distinction By the Ciuill lawe 2 l. si quando C. de testibus witnesses may be vrged to giue testimonie and that without distinction whether the cause be Ciuil or Criminall be Ciuilly or Criminally directly or by way of exception moued except their persons be priuiledged As by 3 l. inviti ff de testibus the law Ciuill men of 70. yeeres of age be in this behalfe viz. that they may not against their willes be vrged to testifie By the Canon lawe if the cause be Ciuill and not criminall witnesses may be compelled without distinction also except they be persons priuileged Neuerthelesse euen 4 Panor min c. dilectorum de testibus cogendis priuileged persoÌ„s may be coÌ„pelled in want and defect of other proofes that the trueth may be found out If the 5 Alphon. Villag lib. 3. ca. 15. conclus 12. cause be criminall whether Ciuilly or criminally moued so the action be
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
brought to prooue the certaintie of the Promissorie oath which God made vnto Abraham and also by the word of Confirmation there vsed Secondly this place hath vse very properly also in an oath Decisorie when 2 Azo in Summa de rebus creditis as either the one or the other of the parties is contented to put the matter that is in variance vpon his aduersaries owne oath which if he thereupon shall take it maketh an end of the whole suite and strife For in this case he that so offered it shall not bee permitted to vse any contrarie proofes afterwards because hee made choise to haue the whole cause in variance betwixt them composed in that forte It may also truely be answered to that place that an oath indefinitely taken is in deede a meanes prouided and tending to make ende of all strifes amongst men but not that in euery cause and matter whatsoeuer one mans single oath should therfore be sufficient because many absurdities would follow of such an interpretation as namely that a mans oath in his owne cause should be as good and forcible as any other two mens oathes touching the same matter But the law saith dictum vnius dictum nullius One singular deposition though of a witnesse who is not interessed in the cause and therefore the more indifferent is not to be taken for a full proofe Then howe much lesse should the parties oath whom the lawe presumes to be partiall in his owne cause be admitted for a concludent proofe especially to his owne clearing or benefite Besides if such their interpretation of that place should be followed then were this place coÌ„trary to sundry other places in the Scripture which is blasphemie to imagine For 1 Num. 35. v. 30. one witnesse shall not testifie against a person to cause him to die but witnesses therfore moe then one And by consequence a mans owne witnesse in his owne behalfe is not sufficient At the 2 Deut. 17. v. 6. mouth of two or three witnesses shall he that is worthy of death die but at the mouth of one witnesse he shall not die Againe 3 Deut. 19. v. 15. One witnesse shall not rise against a man for any trespasse or for any sinne or for any fault that he offendeth in but at the mouth of two witnesses or at the mouth of three witnesses shal euery word be established 4 Matt. 18. v. 16. Like-wise in the Gospell by the mouth of two or three witnesses euery word may be confirmed Furthermore it is 5 Iohn 8. v. 17. written saith Christ in your law that the testimonie of two men is true 6 2. Cor. 13. v. 1. Moreouer S. Paul saith in the mouth of two or three witnesses shall euery word stand And 7 Heb. 10. v. 28. againe he that despiseth Moyses law dieth without mercy vnder two or three witnesses And to 8 1. Tim. 5. v. 19. Timothie in like maner receiue none accusation against an Elder or Minister but vnder two or three witnesses Much lesse then of any necessitie shall a mans owne testimonie of himselfe and for his owne benefite or clearing be receiued for an vndoubted trueth The blinde Pharisees could see so much that it was absurd for any sinfull man to arrogate so much to himselfe that his owne witnesse touching himselfe should suffice Therefore they say 1 Ioan. 8. v. 13. to Christ whom they tooke to be but man onely thou bearest record of thy selfe thy record is not true And Christ himselfe signifieth the like for he saith 2 Ioan. 5. v. 31. If I shoulde beare witnesse of my selfe my witnesse were not true meaning that where there is no further testimonie for a man then his owne there is nosufficient cause that other men shoulde holde his speech for true or rest in it as certeine And therefore we see that albeit the woman whom her husband hath in Iclousie is put 3 Num. 5. v. 22. vsque ad 28. vnto a most strict oath with an imprecation and curse that she is not defiled yet is there by the law of God appointed a further triall and she is also to drinke the cursed water which by Gods secret operation giuing might vnto it was of force both to reucale and to punish her periurie if she were forsworne by making her most lothsomely to rotte aboue the ground being yet aliue Of further inquirie and the equitie of it after the oath taken and deniall or qualifying of the matter by the partie we haue also sundry examples in the 4 l. 13. C. derebus creditis iureiur Ciuill law of the Romanes If an oath be taken by any man touching a legacie left vnto him by a Testament or of the truth of any other instrument this oath is not so to be rested in but that all may be againe reuoked vpon proofs made against that oathe least the lawes shoulde seeme to permit a man to reape benefite by his owne wicked periurie So 5 l. admonendi 31. ff de iureiur if the Iudge and not the partie doe tender and defer an oath to the other partie if by some publike instrument viz. matter of record or any like sufficient matter proofe may afterwards be made of the falshood of such oath it shall be reuoked and all that dependeth vpon it The reason hereof 6 Duarenus 2. disp anniuers cap. 33. is assigned for that the parties owne othe is but a kinde of doubtfull proofe Furthermore 7 Auth. nouo iure C. de poena iud qui malè iudicauit Nouell const 124. if either of the parties suing doe take oath that he hath neither giuen nor promised any thing to the Iudge yet if within ten moneths after the sentence giuen it shall be prooued that herein he hath sworne falsly both the giuer and the taker shal haue all their goods and lands confiscated and shall be banished So is that 8 Iason in l. scimuâ—… §. licentia C. de iure deliberandi num 1. law also after an oath is taken of the trueth of an Inuentarie and in respect of the proofe is dayly practised For any of the Creditors or Legataries may take vpon them to proue that something is left out of the Inuentarie Which if they doe the heire or executor shall forfeite double as much by that lawe where in this behalfe it hath his place and vse Yet that which in the two former examples is saide of punishing is 1 Alex. in Apostil ad Bartol in l. 1. nu 1. ff de bonis corum c. special vnto those two cases to such like as the law doeth specially so determine of For ordinarily the rule is that if it happen and so fall out vpon proofes afterward that the defendant hath deposed falsly in his personall answeres the cause being mooued by way of litigious iurisdiction thereupon he is not to be punished as a person 2 Bossius tit de
Periuris nu 3. periured but is left vnto the vengeance of God to fall vpon him for it And so is it vsually practised in Courtes of that nature According vnto which lawes of enquiring by witnesses after the defendants oathe taken we also 3 Ord. Cam. Imper. tit de Purgatione §. vnd so er sollich finde the customes and ordinances of the great Court of the Imperiall Chamber in Germany to be For if a man cleare himselfe there by his oath of any crime imputed vnto him yet may any man take vpon him to accuse and to proue it afterwards against him In which case by those OrdoÌ„nances if the partie defendant happen to be conuicted then shall he bee punished not only for the principal crime but for his periurie also that he hath committed in denying it This their municipall lawe is agreeable to the Ciuil and Canon lawes there practised For as hath bin touched asore by other occasion a purgation shall not so finally cleare a man but that if good proofes may bee after made of the truth of the very crime it selfe he shall be punished both for that facte for periurie also therefore an oath of the partie yea though his coÌ„purgatours do ioyne with him vpoÌ„ their credulities is not final nor can debarre further procedings I had occasion afore to alledge out of the 3 Tom. 2. liure 2. des Ordonnances par Henry 2. pag. 1195. Ordonnances or statutes of France touching a corporal oath to be taken concerning the number weight measure and place intended for vnlading of marchandises to be shipped out thence that there was no deceitefull or forbidden wares amongst them Yet this oathe notwithstanding it is there further prouided that if vpon inquisition to be made any thing shal be found contrary to the declaration made by the partie vpon his oathe he shall lose his marchandise he is grieuously to be fined and besides shall be punished as a forger called Falsarius in the Ciuill lawes By the lawes of this Realme such further triall is vsually practised and proofes are very often made to the contrarie of that which the defendant hath deliuered in vpon his oathe In the Court of Chancerie if plaintifes should alwayes rest and might proceede to no further proofes after the defendant hath answered vpon his oathe they shoulde for the most parte haue very colde suites and small reliefe or remedie could bee giuen by that high Court The like is to be thought of the Courtes before the Queenes Counsels established in Wales and in the North parts and of the Court of Requests In that most honourable Court of the Starre Chamber the defendants doe not onely answere the Bils preferred by vertue of their oathes but also vnto sundry Interrogatories seruing to the like purpose And yet after all this it is thought necessarie to vse further proofes also by witnesses and not to bee conuenient to rest onely vpon the honestie and conscience of the supposed delinquent Besides this practise and long continued custome quae est optimus legum Interpres there be also statutes in the very point By the statute of 1 34. H. 8. ca. 4. Bankrupts in K. Henry the 8. time authoritie is giueÌ„ to certaine there named to call and examine such as are suspected to conceale such offenders goods and to examine them by their oathes and by other wayes as in discretion they shall thinke meete vpon the specialtie certeintie true declaration knowledge of such offenders goods or debts owing to him and if he shewe not the whole trueth to bee after prooued by witnesses c. then hee forfeiteth double the goods concealed 2 13. Eliz. cap. 7. And the very like clause in that matter of Bankrupts is established by a statute made in her Maiesties time At the Common lawe the Iudges doe not alwayes rest in an oath of a partie but doe sometimes enquire further of the trueth of it and doe punish him also for taking a false oath if he be thereof conuicted 3 P. 5. H. 6. â—…ol 25. One was brought into the Court as a pledge and did sweare he might dispend fortie shillings land by yeere yet the Court rested not in this oath but examined the matter more straitly vpon occasion that one then present dwelling in the same place did affirme that the other might dispend nothing and it being founde that he could dispend but twentie shillings by yeere he was committed to the Fleete till he had paid his fine So that both by diuine and humane lawes we see neither reason equitie nor practise for Iudges necessarily to rest in a mans answere made vpon his oath without proceeding to the taking of any further proofes whereby the lawfulnesse of that oath which I termed partly of Purgation and partly of Enquirie is more particularly also approued But the Treatisour condemneth all Canonicall purgations as contrarie vnto equitie and therefore termeth them deadly purgations not healthfull but hurtfull and poysoning purgations dangerously giuen for preseruatiues Which if it were true would take away not onely our reason taken from proofes which may bee made euen after the parties Canonical purgation but also the oath which I termed partly of purgation and partly of Enquirie What his reasons to that purpose be it will not therefore bee amisse briefly to coÌ„sider to adde also some-what for clearing of lawes and courtes Ecclesiasticall from vniustice herein and for the defence of the vse of purgations by the parties owne othe c. The conclusion which in this behalfe he taketh vpon him to proue is that proceeding ex officio to forced purgations is hard and vniust dealing towards men and a great abuse of the name and maiestie of Almightie God cloked and shadowed neuerthelesse vnder glorious and painted glosses c. But he mistaketh the matter greatly to thinke that those matters which in the aforesaid doctors schedule he challengeth for no better then painted glosses beautifull shewes and fained pretenses were by them set downe for iustifying of purgations for they were in deed principally by them mentioned to shewe the necessitie of Enquiring by oath and of punishing offenders If I thought that in his setting forth of the state of this question he fixed any force in that point for that the proceeding is ex officio I woulde then remitte the Reader vnto that which hath bene spoken thereof in the second parte For proofe of Iniustice thereby offered vnto men hee presseth those Doctors with their owne maxime viz. Nemo tenetur * Vide cap. 9. 3. part seipsum prodere But why hee that is otherwise very presumptiuely detected should not be driuen to shewe and declare his innocencie vpon his oath or else yeelde to the detect which they also adde for the true vnderstanding thereof he sheweth no reason other then that as a glosse confounding the text It wholly he saith destroyeth that rule and principle But how can it bee verified that