booke of Anno 2. R. 3. whereby it is euident that vnlesse these Ordinaries could prooue their forcing of oathes ex officio to be warranted by authoritie of the lawes and justice of this lande as in trueth they can not all their dealinges in such cases are by the same lawes vtterlie disallowed and condemned But here me thinkes some retchlesse or inconsiderate reader steppeth forth and sayeth What is your meaning to circumscribe and include all authoritie of ministringe oathes in the Courtes Ecclesiasticall within the streight limites and boundes of causes Testamentarie and Matrimoniall howe then shall all other matters subiect to their jurisdiction being in number manie and in nature diuers receyue due examination For aunswere therevnto this shortlie may suffice That the state of the question whiche at this present we haue in hande is not in what cases those Courtes may giue or impose an oath but the matter wher of we nowe intreate is concerning forced and constrained oathes ex officio and especiallie in that generall maner before remembred And as touching the triall of causes by examination of witnesses judiciallie depending betweene partie and partie in th'Ecclesiasticall Courtes it standeth firme and for founde lawe according to the saide Prohiâ—â—on and the opinion of Maister Iustice Fitzherbert in his booke of Iustice of Peace is That those Iudges Ecclesiasticall haue no lawfull power or authoritie to force or constraine by censures of the Church or otherwise any subject of this Realme against his will to testifie vppon his oathe other then in the foresaide causes of Mariage and Testamentes although comming before them as produced by the parties in the suite they may lawfullie as vnto men voluntarilie accepting the same minister an oath otherwise it is plaine extortion and wrong vnto the partie And admitte they would denie to depose what prejudice were that to the Court Christen but rather a faylinge in proofe in the partie suing And in this state and sorte standeth the proofe of causes by witnesses at the common law Neuerthelesse since the statute made against wilfull perjurie the witnesse serued with processe and hauinge his charges tendered making default incurreth a paine pecuniarie And why should the Cleargie and Iudges Ecclesiasticall thinke it much to be ruled and restrayned concerning their jurisdiction by the Kings Prerogatiue and the common lawes of this Realme since what jurisdiction or authoritie soeuer they haue or enjoye matters of the Diuine lawe excepted yea euen in those especiall causes of Testamentes Mariages Diuorses and Tythes is no otherwise theirs then by the goodnes of the Princes of this Realme and by the lawes and customes of the same as the statute of Anno 24. H. 8. cap 12. well declareth and may be taken from them and restored to the temporall Iudges especiallie the abuses of the Cleargie well descruing it at the will and pleasure of the Prince and people But to returne againe to our prohibition and attachment it is euident thereby that all the sommons and citations which those Ecclesiastical Iudges sende forth vnder these general termes propter saluteÌ„ animarum or ex officio mero And all their arrestes distresses impeachmentes excommunications and imprisonmentes therevpon ensuing are altogither injurious both to the Prince and people And of this opinion seemeth to be that learned Iudge Maister Fitzherbert who in his booke De natura breuium sayeth vppon these writtes in this maner By this appeareth that these generall citations which Bb. make to cite men to appeare before them pro salute animae without expressing any cause especiall are against the lawe And true it is for by the statute of Magna Charta Magna Charta conteyninge many excellent lawes of the liberties and free customes of this Kingdome It is ordeyned that no free man be apprehended imprisoned distrained or impeached but by the lawe of the lande and by the statute made Anno 5. Ed. 3. ca. 9. It is enacted That no man shall be attached vpon any accusation contrarie to the forme of the great Charter and the lawe of the Realme Moreouer it is accorded by Parliament Anno 43. E. 3. ca. 9. for the good gouernement of the Communaltie That no man be put to aunswere without presentment before Iustices or matter of recorde or by due processe or by writt originall after the auncient lawe of this Lande And howe then shall that kinde of proceedinge ex officio by forced oathes the vrging of this general oath and streight imprisoning of such as refuse to sweare bee justifiable If these things were not yet a man would haue thought that at the least the sharpe and seuere statutes of Prouision and Premunire so offensiue to popishe Polidore and such like Premunire should haue staied and stopt the violent course of those injurious inquisitions examinations and wrested oathes ex officio For no doubt the Ordinaries Cleargiemen practizing the same are all offendors doe incur the forfaitures of those penal lawes For profe wherof let vs consider the wordes of the statute of Premunire made AnnÌ„ 16. Ri. 2. ca. 5. and the judgments expositions thervpon had that statute reciting first the grieuous complaint of the whole Realm against the Pope of Rome who impeached many Patrons in the presentations to their Ecclesiasticall benefices excommunicated the Bb. of this realme for executing the kings writts de Clerice admittendo sought to translate some of them against their and the Kings will and diuers other inconueniences in derogation of the Kings Crowne and Regalitie prouideth remedie for those and such like mischiefes in this maner That if any purchase or pursue or doe to be purchased or pursued in the Court of Rome or elswhere any such translations processe sentences of excommunications bulles instrumentes or any other thinges whiche touche the Kinge against him his Crowne and his Regalitie or his Realme or them receyue or make thereof notification or any other execution within the same Realme or without that they their Notaries Procurators Mainteiners Abbetters Fautors and Counsellors shal be put out of the Kings protection and their landes and tenementes goods and chattelles forfait to the King c. Since the making of whiche statute it hath bene helde and adjudged for cleere lawe in the Kinges Courtes That if any subject of the kinges sue or impleade an other in any Ecclesiasticall Court of this Realme for any cause or matter appertayninge to the examination and judgement of the Courtes of the common lawe or any judge Ecclesiasticall presume to holde plea thereof or deale in any causes not belonginge to his jurisdiction that they incurre the daunger and penaltie of premunire as by the booke of 5. Ed. 4. fol. 6. by th' opinion of the Court Anno 11. H. 7. remembred by Maister Fitzherbert plainelie doeth appeare According also therevnto is the case of Maister Barloo late Bishop of Bathe reported by Maister Iustice Brooke Which Bish in the time of Kinge Edwarde the 6. depriuing the
Deane of Welles whose Deanrie was a donatiue passing therein beyonde the limites of his jurisdiction fell into the daunger of premunire And being called into question and hauinge no just defence was faine to appeale to the Kings mercie and obteyned a pardon And that booke of 5. E. 4. before remembred setteth downe the reason noting these wordes of this statute in curia Romana vel alibi In which wordes alibi sayeth that booke is intended the Courtes of Bb. So that if a man be excōmunicate in any of their Courts for a thing which apperteyneth to the Royal Maiest that is to say sayeth that booke in a matter of the common lawe the partie excommunicate shall haue a premunire facias and so was it adjudged In whiche wordes among other is speciallie to be noted that when so euer a wrong or injurie is offered to the common lawe of this lande there the Kinge is saide to be touched and his Royall Maiestie impeached For accordinge to the Princelie speach of that most Noble King Ed. 3. in the statute of Prouision made in the 38. yeare of his raigne the Kinges Regalitie chieflie consisteth in this To susteine his people in peace and tranquillitie and to gouerne them according to the lawes vsages and franchises of this Lande wherevnto he is bounde by his sacred oath made at his Coronation If then by vsurping cognizance of plea in causes cōcerning the common lawe and the jurisdiction of the Kinges Courtes the Ecclesiasticall Iudges touch the King in Capite doe against him his Crown Regalitie Realme so cōsequentlie incurre the forfeiture penalties of Premunire Howe much more doe they touch the King nay rather lay violent handes on him impugne his Royall Throne and Scepter who contrarie to the Pollicie Iustice Lawes Customes and Freedomes of this Kingdome yea the lawe of God it selfe enforce constraine by censure of excommunication otherwise the Kings people to appeare before them and extort from them an oath to accuse them selues And for more plaine demonstration if plainer may be put the case that a Iudge Iustice or Commissioner authorised by the Kinge to execute justice according to the lawes of this Realme should take vpon him by colour of his office and authoritie to conuent the Kings people before him and vppon their apparaunce to offer vnto them this general oath to aunswere vnto all such questions as him selfe should propounde playing in causes criminall the part both of accusor and Iudge or seekinge by oath and captious Interrogatories matter of accusation wherevppon to proceede to condemnation and to commit the partie refusing such oath to streight prison without bayse or mainprise could any man justifie this his doing to stande with lawe or justice Nay rather might not euerie man justlie cry out against him as against a subuerter of lawe and judgement and a hatefull enimie to our pollicie common wealth yea should not that bee verified of him which is recorded in the judgement against Sir William Thorp sometime chiefe Iustice of Englande for his corrupt dealing which is that as muche as in him laye he had broken the oath which the King is bounde to keepe towardes his people If all this may truelie be affirmed of such a one howe then shall the Ecclesiasticall Iudges practizing in their Courtes and Tribunal Seates the self-same vnjust and vnlawfull manner of proceeding against the Kings people escape the seuere sentence of law pronouncing them offensiue touchers and violaters of the King and injurious dealers against his Regalitie Crown and Kingdome so consequentlie worthie to suffer the paines and penalties declared in this statute of Premunire That this is no newe opinion or construction wee finde the resolution of that learned man Saint Germaine in his booke of Doctor and Student well agreeing where he writeth in this maner Jf any man bee excommunicate in the spirituall Court for debt trespas or such other thing as belongeth to the Kings Crowne and to his Royall dignitie there he ought to be assoyled without making any satisfaction for they not onelie offended the partie in calling him to aunswere before them of such things as belong to the law of the Realme but also the King who by reason of such suites looseth a great aduantage which he might haue of the writs originalles judicialls fines amerciamentes and such other thangs if the suites had bene in his Courtes accordinge to his lawes Hee sheweth further That if the Ecclesiasticall Iudges will not make the partie his letters of absolutiō where hee ought the partie shall haue his action against him Hee affirmeth also The Lawe to bee according where a man is accursed he meaneth excommunicate for a thinge that the Judge had no power to accurse him in notwithstandinge that he may haue his suite of premunire facias Againe we reade howe the late Cardinall Woolsey the Popes Legate here in Englande erected a newe Court or Consistorie called The Court of the Legate in which he tooke vppon him to proue Testamentes and to heare and determine causes in prejudice of the jurisdiction Ecclesiasticall of this Realme And howe by his vsurped power Legatiue he gaue and bestowed benefices by preuention to the disinheritance of the Kings subjectes and vifiting the state Ecclesiasticall vnder coulor of reformation gained to him selfe exceeding great treasure But this loftie height of vnlawfull authoritie weake and feeble in foundation could not long continue For in the one and twentieth yeare of the reigne of King Henrie the eight this proude prieste with all his glorious pompe and glittering shewe of all his Crosses Siluer Pillers guylt Axes imbrodered Cloakbagges and purple Hattes was attainted by his owne confession in a Premunire and the next yeare following all the Lordes spirituall hauinge deserued the same paines and punishmentes for their vnjust maintenaunce and supportation were called to aunswere in the Kinges Benche and knowing them selues guiltie before their day of appearaunce exhibited to the Kinge their humble submission joyninge therevnto an offer of a 100000. pounde to purchase their peace whiche after much suite the King accepted and by Parliament gaue them a pardon If then this Romish Legate for assuming to him selfe jurisdiction by authoritie Papall in prejudice not of the Kinges Courtes but of the Courtes Ecclesiasticall neuerthelesse to the hurt of the Royall Maiestie and for disturbaunce of the rightes and inheritaunce of the Kinges subjectes fell into the daunger and penaltie of Premunire and all the Bishops and Ordinaries of this Realme likewise through their maintayning onelie and supporting the same may we not safelie conclude that the Bishops and Ordinaries in these dayes vsurping power and jurisdiction in like sorte and maner although not in the same particulars by coulor of Antichristian decrees or practizing those popishe Cannons the verie head of that hellishe Cerberus of Rome as a learned man well termed them and the sinewes of his tyrannicall authoritie repugnant to the Royall Maiestie and Pollicie of this
name of God is dishonored And such a speach saieth Ecclesiasticus is compassed about with death Brieflie the respect of euery deponent should be that God by his oath may be magnified the trueth in question confirmed justice maintained and that Innocentes by fraudulent practizes circumvented may be freed and deliuered from perill and daunger Touching such as haue power and authoritie to require or commaunde an oath The Magistrate they ought also to bee verie carefull and circumspect that they impose not the same but in causes of waight and necessitie which is neuer to bee intended but when the honour and glory of God is to bee maintayned or the good of the common wealth or of our neighbour furthered For if it be a Principle De minimit non curat lex by good reason the Magistrates and ministers of lawe should spare to vse that whiche is most holie and precious in causes of lesse price or moment for dailie experience sheweth that the frequent vse of thinges reuerent such is the corruption of our nature causeth them to be of none accompt Furthermore they ought to be well advised that they require it not of mē of suspected faith or credite or of persons defamed in life and conuersation For an oath offered to such without greater necessitie argueth a lightnes and want of good discretion in the Magistrate who thereby wittinglie doeth minister an occasion of perjurie whiche if it followe howe great is the fault Moreouer that they charge no man by oath to doe the thing impossible or beyonde his power For impossibilium nulla est obligatio nor any thing that is vnlawfull inconuenient or vngodlie Neither force any man to sweare rashlie or vnaduisedlie For if the vaine and inconsiderate swearer shall nor be vnpunished howe shall the procurer escape Gods vengeance That they abuse not the simplicitie of the Deponent by intricate captious or subtill questions 1. Thes ca. 4 for let no man sayeth the holy Apostle Saint Paul beguile or craftelie circumuent his brother for the Lorde is an auenger of all such things Finallie in the ministring of an oath the Magistrates ought to respect all those things which the partie deposing ought to haue before his eyes that is the glorie of God the maintenance of trueth the good of our brethren These things graunted which cannot be denied it consequentlie followeth that the forcing of Oathes by Ordinaries and Iudges Ecclesiasticall generallie to answere vnto all such questions or interrogatories as they shall demaunde or minister touching eyther the thoughts wordes or deedes of him that is to depose is contrarie to the honorable institution lawfull vse and true ende of an oathe And that whosoeuer by coulour of authoritie threatning speaches duresse of imprisonment or other paine cōstraineth any man to sweare in such maner doeth highlie offende against th' inviolable rules before remembred For first as it hath bene saide the ordeyning and institution of an oath was to helpe and relieue the necessitie of men in the causes before rehearsed But there is no necessitie or vigent cause why such a general oath should either be required or take since the same is neither for assurance of duetie couenaunt contract or promise neyther yet for confirmation of trueth in any cause or matter of controuersie If it bee alleadged that the same is requisite for the enquiring and finding out of suspected faultes whereof there is no proofe and to search and trie the euill mindes and corrupt consciences of daungerous dissemblers and so necessarie for the gouernement both of the Church and common wealth By this allegation first all such are justly reproued who hauing practised and put in ure this generall oath where otherwise there was sufficiencie of proofe And yet thereby nothing is saide for the maintenance of their doings in that behalfe since by the like reason there should be erected a Court of Inquisition more then Spanish to sifte ransacke by oath the most secret thoughtes and consciences of all men in generall enforcing them either to accuse them selues not as in the Papisticall shrift where secrecie was enjoyned to their publique shame reproach and condemnation or els for the auoyding of such mischiefe and inconuenience to committe most wilfull and damnable perjurie But as this I suppose in all good mens opinions were intollerable so of the other I assure my selfe there can be no sounde rule sufficient president or example alleadged Except peraduenture the proceding of the high Priest the Scribes and Elders of the Iewes in their Consistorie against our Sauiour Christ shall be vouched and mainteined for a sufficient president in that beehalfe who maliciouslie apposing and examining him concerning his doctrine although not by oath would gladlie haue pickt out and drawne from him selfe some matter of accusation whereby to haue condemned him But the aunswere and authoritie of Christ I doubt not wil be allowed among Christians both for sounde and sufficient to refell and condemne the practize of those malignaunt Priestes who knowing their subtill purpose and intent referred them to his auditours and beeing injustlie striken replied If I haue euill spoken beare witnesse of the euill but if I haue well spoken why smitest thou mee justifying hereby his former aunswere and forcing therewithall his aduersaries to seeke for witnesses to testifie against him The true vse and ende of an oth is as aforesaide That due honor may be giuen vnto God the trueth confirmed Iustice maintained innocencie protected and an end had of strife and contention But how is God glorified hereby or not rather dishonored when as his sacred institution is so greatlie peruerted and an oath forced to an other course and purpose then he in his diuine wisedome hath appointed as by that which hath and shal be spoken doth shall manifestlie appeare The trueth in controuersie is not therby confirmed since there is no issue ioined in this case betweene parties affirming and denying and how can iustice by such an oath be maintained when as the cause for which the oath is vrged standeth not in lawfull course of judgment for as it is well said of a learned man Bracton Iudicium est in qualibet actione trinus actus trium personarum Iudicis actoris rei secundum quod large accipi possunt huinsmodi personae quod duae sunt ad minus inter quos vertatur cō tentio tertia persona ad minus qui iudicet alioquin nō erit iudicium cum istae personae sunt partes principales in iudicio fine quibus iudicium consistere non potest Then whensoeuer any fault or matter of offence by meanes of this kinde of compulsary oath happeneth to be disclosed either we must say that the Iudge who imposeth the oath is him selfe against all order of justice the partie accuser 8. H. 6. fol. 18. 5. Reg. Eli. and so both Iudge and Promoter which all good lawes forbidde Or els the Deponent must of necessitie susteine two principall