man will say as this Archbish that a subject ought not to suppose that his Prelat will coÌ„maund him any vnlawfull thing but should repose him self in the good discretion vpright dealing of his ordinarie without further aunswere Let the subtill practise of this one Prelate and the cruell and the accursed dealinges of that barbarous Bi. Longlande stande at this present for a sufficient caueat to euerie man that shall depose to take heede howe he giue ouer-much credite to such glosinge and deceyuable speaches least too late he finde it true that faire wordes make fooles faine Neythet is this any sufficient allegation to say that the partie Deponent is no further bounde to aunswere then the lawe requireth howe generall soeuer his oath be since it is false for the conscience of such a Deponent to stande vpon termes and questions howe farre by lawe and by what lawe he is bounde to answere Will you heare also what that godlie and blessed Martyr Maister Iohn Lambert sayth concerning the Exactinge of such kinde of oathes Iohn Lam bert after he had acknowledged it lawfull at the commaundement of a Iudge to take an oathe to say the trueth wishing the Magistrates neuertheles to minister oathes with great discretion good aduisement and exhorting them to forbeare and spare them in trifling causes and matters of no necessitie least by too much haunt first contempt than perjurie doe creepe in Hee proceedeth further to this effect This haue I shewed saith he because it pitieth me to heare and see the contrarie vsed in some of our Nation and such also as name themselues spirituall men and should be head ministers of the Church who incontinentlie as any man commeth before them anon they call for a booke and doe mooue him to sweare without any futher respite yea and they will charg him by vertu of the contentes of the Euangely to make true relation of all they shal demaunde him he not knowing what they will demaunde neither whether it bee lawfull to shewe them the trueth of their demaunde or no for such things there be that are not lawfull to bee shewed As if I were accused of fornication and none could be founde in mee or if they should require me to sweare to bewraye another that I haue knowen to offende in that vice I suppose it were expedient to holde me still and not to followe their will for it should be contrarie to charitie if I should so assent to bewray them that I neede not and to whom perhaps though I haue knowne them to offende yet trusting of their amendment I haue promised afore to keepe their fault secrete Yea moreouer such Iudges sometimes not knowing by any due proofe that such as haue to doe before them are culpable will enforce them by an oath to detect them selues in opening before them their heartes In this so doing I cannot see that men need to condescend in their requestes for as it is in the lawe Nemo tenetur prodere scipsum And in another place of the lawe it is written Cogitationis poenam nemo patiatur To this agreeth the common prouerbe Cogitationes liberae sunt à vectigalibus Thoughtes be free from toll By which wise speach of this good man we may see condemned and that for just cause and vpon sounde reasons th'indiscreete and vnlawfull enforcing of this kinde of oathe seruing to no good nay rather to bad endes purposes We read also howe Bonner that infamous bloudsucker vnworthie the name of a Bishoppe hunting as the woolfe for his pray after matter of accusation among many other his mischieuous and detestable factes offered also this oath ex officio vnto the fellowe prisoners of that holy and worthie Martyr Maister Philpot saying after the rashe and indiscrete maner before remembred Holde them a booke you shall sweare by the contentes of that booke that you shall all maner of affection laide a part say the trueth of all such articles as you shal be demaunded coÌ„cerning this man here present meaning Maister Philpot. But those wise and godlie prisoners well knowing and considering howe they ought to take an oath aunswered to this vnjust request That they would not sweare except they first knewe where vnto and being therevpon offred an oath and that with threates of Excommunication to aunswere the articles propounded against themselues refused it also saying That they would not accuse them selues So that wee see plainely by these examples as also by that auncient and godlie writing intituled The prayer and complaint of the Ploughman that this kinde of generall oath and examinations ex officio mero were not first mishked by Iesuites and seminarie Priestes and froÌ„ them deriued to others that mislike gouernement and would bring the Church to an Anarchie as the world hath bene borne in hande But by true Christians holie learned and Religious men and that for good causes and considerations why they should so doe And I should much meruaile were it not that the world hath euer bene set in wickednes howe any that professe the holie name and title of Christianitie durst at any time put in practize within this Realme or elswhere so prophane and more then heathenishe manner of Inquisition not onely repugnaunt to God and Christian Religion but contrarie also to the rules and cannons of the Antichristian church of Rome Which lawes if I be not deceyued are more just and lesse vnjust a great deale then such as haue taken vpon them to judge by coulor of the same So that in a sorte it may be verified of them which was sometimes spoken of the people of Athens that hauing just good lawes they neuerthelesse behaued them selues as bad and dishonest men For it is saide by some of their Canonistes Canonists Procedere ex officio mero est quando Iudex à seipso ex officio assumit informationes contra delinquentem contra eum procedit hoc est quod dicitur procedere per viam inquisitionis Et recte loquendo inquirere contra aliquem â—ul Cla. in proe crim â— fin 3. quaest vers quaero quibuâ— non est ei transferre Inquisitionem sed recipere testes seu informationes contra eum And moreouer Formare inquisitionem contra aliquem est facere processum informatiuum assumendo informationes iudicia contra eum super alique delicto So that to proceede by inquisition is not to make the partie by oath or examination to bee his owne accusor but to accept and receyue information and witnesses against him And in what sorte and maner the proceeding ought to be is also declared to this effect Iudex nunquam debet procedere ex officio sic per viam inquisitionis nisi aliquod precedat quod appareat viam inquisitioni scilicet vel defamatio vel quaerela partis vel denunciatio vel huiufmodi aeliter processus erit nullus ipso jure neque in hoc intenduntur notificationes factae extra judicialiter
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
neque illae quae fiunt incerto autore suppresso nomine notificantis By whiche wordes manifestlie appeareth that no Iudge Ecclesiasticall ought to proceede by way of inquisition except there precede a defamation of the partie complaint or information against him intelligence of faultes and offences out of course of judgement or by vncertaine authour or suppressed name is wholie by the Lawe rejected but by the executors thereof altogither admitted Another also therevnto agreeing sayth Io. pet de ferr in prae sub rubr form inqui sitionis fama publ That the inquisition is not orderlie done but where infamia praecedat vel talia judicia sufficientia quae probentur per testes idoneos And to prooue the fame or infamie there is required testes multi the reason quia dicta paucorum non infamant Secondlie they must bee graues honesti non maleuoli nec inimici partis Thirdlie they must bee such as are conuersant in the place where the partie hath liued whereby they may bee acquainted with the order and manner of his life and conuersation wherevppon chiefelie riseth the true judgement of his good or euill fame Fourthlie those witnesses ought to be receyued judiciallie Fiftlie they must be deposed And sixtlie they are to render a wife and sufficient cause of their knowledge of the infamie The Iudge in no cause if he would of his owne knowledge say the partie is infamous is to bee receyued or beleeued the reason is for that the lawe will quod secundum acta probata justitia ministretur And the grounde and foundation of the inquisition must not be extorted or wrested from the partie but lawfullie proued as aforesaide by sufficient witnesses Notwithstanding all which lawes what contrarie courses haue bene practized by Ordinaries and Cleargie men many haue felt and euery man knoweth too well So that concerninge their judiciall Courtes and Consistories the saying of the Poet is verified Victa iacet pietas virgo caede madentes vltima coelestium terras astraea reliquit But since that more then two quaternions of learned Canonistes haue of late taken the paines to set downe the vndoubted groundes of the lawe Ecclesiasticall as they say according to which the proceedings haue bene vsed time out of minde in all the Courtes Ecclesiasticall of this Realme and all other proceedings haue bene at all times reformable by appellations Let vs heare also what they say concerning this matter These Doctors firste graunt it to bee good and sounde law That no man may be vrged to bewray him self in hidden and secrete crimes or simplie therein to accuse himselfe They confesse further that if any man besides the Ordinarie will prosequute in their Courtes making himselfe partie to proue a cryme whereof there is suspition The partie conuented in that case albeit he must answere on his oath to other articles not principallie touching the verie crime objected is not bounde by lawe to aunswere vpon oath any articles of the verie crime it selfe Neuerthelesse say they when by circumstaunces once knowne a broade secrete crymes are become vehementlie to bee suspected and offensiue to the well disposed and daungerous to be suffred then are they meete by enquirie and all good meanes to bee discouered to the ende they may bee reformed the partie delinquent brought to penitencie and others discouraged to commit the like The wayes and meanes how suspition fame of crimes come to the Ordinaries eares they saye are these manie bruites of credible persons called in the lawe clamosa infinuatio and presentmentes of Church-wardens and Sydemen which presentmentes if they be not direct thorough ignoraunce of the presentours or insufficient in the lawe to proue a fame yet some scandall therevppon growinge howe litle by like is not respected th' Ordinarie by lawe Ecclesiasticall and good discretion may examine other witnesses being neighbours warning the partie suspected to be present The fame once prooued say they or the first presentement sufficient than th' ordinarie of duetie for the publique trust reposed in him is to proceede against the infamed although no other man will which by lawe is termed proceeding by enquirie especiall ex officie they adde a reason for confirmation Ne maleficia remanoant impunita vtque Prouincia purgetur malis hominibus And in this sorte if the Ordinarie proceed ex officio and the partie denie the crime objected then by lawe hee is enjoyned his purgation At which time of purgation say they he must directlie aunswere in clearing or conuincing him selfe de veritate vel falsitate ipsius criminis objecti and his compurgators are to sweare de credulitate weying his feare of God and conuersation of former tymes That they beleeue he hath taken a true oath whiche if they all doe then he is holden cleare or dismissed But if he fayle in his purgation then fictione juris hee is taken to bee guiltie and to be reformed They shewe likewise a reason of diuersitie betweene the proceeding in the case ex officio And that which is by suite of the partie That is Licet nemo tenetur seipsum prodere tamen proditus per famam tenetur seipsum ostendere vtrum possit suam innocentiam ostendere seipsum purgare And a reason of that reason is added because penaunces enjoyned by the ordinarie are not taken in lawe to be poenae but medicinae or tending to the reformation of the delinquent Th' example of others and satisfaction of the Church offended And so they conclude vpon all their reasons that the suspected are not to make scruple to discouer themselues after fame This being the true and onely course of proceeding by Ordinaries and Ecclesiasticall Iudges in causes criminall where is then become the exacting of those general oathes so often vsed to aunswere all Interrogatories that shal bee ministred and that before notice or vnderstanding for the most parte of the cryme objected And the extortinge by oath of the ground and foundation of the inquisitioÌ„ from the partie conuented doeth it not appeare by the resolution of these learned men that the same haue no good or sufficient 〈…〉 by the lawe howe long or much soeuer by couâ—â—t pretence of lawe and justice they haue bin practized or imposed And as concerning their proceedings exofficio to forced pâ—â—â—gations approued as they seeme to affirme both by 〈…〉 Ecclesiasticall and tytle of prescription if we looke 〈◊〉 thereto and take good view thereof what other thing â—â—all we finde then harde and vnjust dealing towards men and great abuse of the Name and Maicstie of Almightie God cloaked and shadowed neuerthelesse vnder the glorious and painted glosses of beautifullshewes and feyned pretences of purging of Prouinces Reformation of delinquentes necessarie examples discharge of publique trust and satisfaction of the offended church honest and honorable termes in deede but ill applied to this purpose For firste as concerning the injustice offred vnto men if it be a true and sounde principle or
slaundered the other is forced by an oath to excuse and purge herselfe that what soeuer injurious or slaunderous worde she had spoken came not of any deliberate purpose or intent but through wrath and displeasure In like manner th' other which is accused eyther of adulterie or sorcerie is commaunded by an oath to declare her innocēcie so that it is euident vnto all men that in such cases whether they bee guiltie or not guiltie they must sweare if they will keepe their good name and fame whereby not onely the vnlawfull lucre of gaine and money is fought but also wilful perjurie forced c. Thus these honorable persons you see haue made it cleare what is chiefelie entended by these canonicall purgations pretende the Cleargie what soeuer they will and howe such forced oathes are not onelie offensiue vnto God but injurious also vnto men Therefore leauing these men to whō the fauour of gaine is so sweete togither with their famous lawe the matter which wee endeuour to prooue is that those generall oathes and oathes ex officio publiquelie heretofore much practized by Ordinaries and Ecclesiasticall Iudges are altogither vnlawfull whether by the Canonicall sanctions or lawe cannon I care not but by the lawes of God and of this Realme And therefore since we haue sufficientlie spoken of the lawe of God nowe least peraduerture it may be saide that such Catholique oathes are warraunted by the common lawes or statutes of this Realme or by the vse and practise of some Courtes of Iustice therein let vs consider hereof also and deliuer both our lawes and the Iustice of our land from so foule a slaunder Concerning the common lawes of this Realme we may finde an oath diuerslie allowed of and vsed in causes of suyte judiciallie depending But such a generall oathe or such like ex officio at any time eyther offred by Magistrate or taken or made by subject of this lande by authoritie of the common lawe can neuer be proued I am sure eyther by good recorde or sounde reporte of the same Long it were and tedious to remember the particular cases when and where an oath is required by the lawes and statutes of this Realme But this may be saide in generall and that truelie to the great honor and highe commendations of our gouuernement that the same common lawes haue not imposed or appointed an oathe to bee vsed otherwise then according to the right institution thereof the godlie rules before remembred yea moreouer this may trulie be affirmed that the common lawe of this Kingdome yea the common wealth it selfe hath euer rejected and impugned as a thing vnlawfull and injurious this maner of swearing whereof we nowe intreat as by that we shall hereafter say may euidentlie appeare Touching the oathes imposed or admitted at the common lawe by Iudges or Magistrates for of them onelie we are to speake First it is vsed as by good reason in all Courtes of Iustice established for determination of causes in suite or controuersie eyther betweene the Prince and subject or the subjectes them selues to require an oath of all such as are called or produced to testifie their knowledge concerning the matter or point in yssue whereby the trueth may appeare and the cause receyue an ende The defendent also in diuers personall actions voluntatilie offring an oathe for his cleare discharge Wager of lawe is admitted by course of the lawe therevnto which maner of proceeding is termed the doing of his lawe and seemeth to haue bene grounded vpon the judicialles before rehearsed giuen by God vnto his people the Isralites as by the obseruation of the cases hereafter mentioned may be gathered For in an action of debt brought for money due by reason of some simple cōtract or in an action of detinue of goods and chattelles the oath of the defendent in the one case that he oweth not the money and in the other that hee deteineth not the things required is allowed for a finall ende and barre vnto the pleadant For in the former case the repayment of the money may be priuate and in secrete so in the other the deliuerie of the goods And although the baylment and deliuerie of the pleadaunt goods to the defendent were by the handes of a third person or testified by writing yet these are no causes to put the defendent from his oath or wager of his lawe for asmuch as the answere is not to the baylment or deliuerie but to the deteiner or withholding and in the action of debt although the defendent eyther hanging the action or otherwise had confessed the contract yet is he to be admitted to his lawe or oath in so much as the point in suite is not the contract but the debt 7. H. 4. fo 7. 9. E. 4. fo 24 But in an action of accompt supposinge the receipt by the hands of a stranger or thirde person the lawe is otherwise for here the thing deliuered is not preciselie in demaunde but an accompt onelie thereof required And the receipt being the cause of action to which a thirde person is priuie as a witnes the oath of the defendent as a thinge not of necessitie is rejected For that reason was the defendent put from his wager of lawe Anno 31. Ed. 1. where the case was this An action of detenewe was brought for a Challice the defendent pleaded howe the pleadaunt deliuered the same in gage for vj. markes and that vppon the repayment thereof he was readie to deliuer the Challice the pleadent replying that he had repayed the money by the handes of one such the defendent offring his oath to the contrarie was nor admitted therevnto inasmuch as there was a witnes of the repayment by whose testimonie the trueth might be knowen And as the common lawe is thus on the part of the defendent so is it likewise for the pleadant comminge as it were in place of a defendent Therefore Anno 21. Ed. 3. fol. 49. the case was that the defendent vppon his accompt would haue discharged him selfe by certen tallyes and so by his oath continued the charge against the defendent But Anno 29. Ed. 3. the defendent in accompt alleadged before the Auditors payment to the pleadant by the hands of another and the pleadent offring his oath that hee had not teceyued the money was in respect of the third person denied to wage his lawe And the good discretion and consideration which the lawe vseth in the allowing and admitting of wager of lawe is not to be forgotten Whiche lawe least men of light credite or doubtfull faith should take an oath suffereth no man to doe his lawe but such onelie as is able to bring with him 11. other persons of ripe yeres and of good name to depose with him that they thinke he sweareth truelie Neither are th' one parties or th' other in any personal action by the courses of the common lawe suffered to cleare themselues by their oathes where they are charged eyther by
their lawfull writing or matter of recorde for that these are testimonies and proofes sufficient wherevnto faith and credite ought to be giuen much more might bee saide in such particulars but these may suffice to shewe howe in suites for goods chattels debtes or personall dueties the common lawes of this Realme admit no ydle vaine suspitious or vnnecessarie oathes neyther compell any man to sweare concerning them but vppon cause allowe of the plâ—and desertes volontarie and necessarie oath for an ende of the controuersie As touching the causes and controuersies for landes and inheritaunces depending in fuyte eyther in admitting or requiring of oathes some fewe cases there be Neuerthelesse where an oath for them is vsed As if a Praecipe quod reddat be brought of lande wherein the tenaunt was not lawfullie sommoned he may vpon returne of the proces of graund cape wage his lawe for none sommons and thereby as not well executed abate the demaundentes writ in which case an oath seemeth rightlie to bee admitted since the cause is both of weight and necessitie to the tenaunt this being the onely way to relieue him against the vntrue returne of the Sherife whereby his lande for want of apparaunce was to bee recouered against him For as the lawe seemeth to way a triall of this sommons by 12. men is not allowable And although it may bee saide that the tenaunt vpon his losse by default might haue a writ of deceipt and recouer againe his lande 33. H. 6. fo yet that often times falleth out to be a faint remedie the death of such as were returned sommoners depriuing him of that aduantage In the case also of deceipt vpon a recouerie by default the sommoners viewers and perueors are judiciallie examined by oath whether they haue duelie accordinge to the lawes of the lande executed and perfourmed that whiche appertayneth vnto them who in this case are vsed but as witnesses to search and sifte out by them the good or euill dealing of the Sherife by whom the execution of the writ and processe was committed 41. Ed. 3. fo In like maner if the plaint in a scire facias recouer by default the defendent bring this action of deceipt against the Sherife the bailife and the partie that sued execution of the lande processe shal be awarded against the supposed garnishers and vppon their apparaunce they shal be examined and that by oath concerning the maner of the garnishment and the same beeing founde insufficient the plaintife shal be restored to his lande with the prosites meane We may finde also in such reall actions an oath required in another maner but yet to good purpose that is to take away vnnecessarie delayes of Iustice For if the tenaunt in a praecipe of lande will cast an Essoyne of the Kings seruice the Essoygner shall sweare and that directlie the same to be no feined excuse otherwise the Essoyne shall not be allowed Some fewe other particular cases of like nature may peraduenture be shewed where an othe is admitted or required in these reall actions but none I am sure tending to anie such purpose as these oathes commaunded and enforced ex officio In criminall causes and suytes Criminall causes whereby eyther the losse of life libertie member of the bodie or good name may ensue which among worldlie things are most deare and pretious vnto men the common lawes of this lande haue wholie forborne and that for just respectes to vrge or impose an oath vpon the accused For in wisedome it was foreseene that the frailtie of man for the safetie of life the preseruation of libertie credite and estimation would not spare to prophane euen that which is most holie and by committing sinfull perjurie cast both soule and bodie into eternall perdition This knewe the subtill serpent our aduersarie full well in generall although he were deceyued in the particular when as he saide vnto God concerning the holie man Iob Skinne for skinne Iob cap. 2. and whatsoeuer a man hath will hee giue for him selfe and for his life but stretch out thy hande sayth Sathan and touche his bones and his fleshe and see if he will not then blaspheme thee to thy face Moreouer euerie wise Magistrate may well conceyue vpon howe weake and feeble a foundation he shall ground his sentence trusting to such an oath when before hande the suspition and presumption of perjurie is so pregnant Therefore in causes capitall or otherwise criminall these our lawes neyther vrge by oathe nor force by torment any man to accuse or excuse him selfe but rejecte the oath as vnbeseeming a well gouerned state or common wealth And condemne the torture as a thing most cruel barbarous wherof although they neede no other proofe theÌ„ the dailie practize and proceedinges against parties suspected of such offences yet concerning the inquisitions by torture we may see the same affirmed by that learned Iudge Maister Fortescue in his commentaries of the Pollicie of this Kingdome 49. Ed. 3. And for th' other there are sufficient authorities in the reportes of the lawes them selues therfore in the booke of Assizes it appeareth that diuers Iurours were challenged as lesse indifferent some for matters that founded to their reproach and dishonestie as that corruptlie they had taken money of one of the parties in the suite whervpon it was ordered by the Iustices that such as were challenged for causes not dishonest should bee sworne to declare the trueth the other for the reason aforesaide not to be examined at all but the challenge to be tried without their oath The same lawe is againe reported vnto vs Anno 49. Ed. 3. fol. 1. Vpon the like reason is the refolutioÌ„ of the chiefe Iustices of the Iudges Saunders and Whiddon 12. R. Eliz. That if a bill of perjurie committed in the Chauncere against the forme of the statute made in the fifte yeare of her Maiesties reigne were exhibited in the same Court that the defendent should not be compelled to make aunswere vpon his oath eyther to bill or intertogatories but that the parties ought to descende to yssue and the triall to be had by Iurie in the Kings Benche I shall not neede to spende time in declaring after the parties in suite haue ioyned yssue triall by Iurie howe many wayes an oath is vsed about the triall of such matters of fact as the oath of Iurors them selues and of their triars vpon challenge or to speake any thing of the oath to be ministred vnto suck as require the suertie of peace neither to discourse of the doing of homage or fealtie by the tenaunt to the Lord since these and such like are well known to euery one although but of meane judgement to bee necessarilie vsed for the better administration of Iustice and assuraunce of dueties making nothing at all for those phantasticall and officious oathes and examinations proceeding rather ab officio the verbe then ex officio the nowne Neyther is it necessarie to