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
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
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
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
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
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
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
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
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
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
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
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
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
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