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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A07722 A briefe treatise of oathes exacted by ordinaries and ecclesiasticall iudges, to answere generallie to all such articles or interrogatories, as pleaseth them to propound And of their forced and constrained oathes ex officio, wherein is proued that the same are vnlawfull. Morice, James. 1590 (1590) STC 18106; ESTC S112894 39,864 66

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Maxime in lawe not denied by themselues That Nemo tenetur seipsum prodere where should the benefite thereof be had or taken but in their Courtes and Cōsistories But if it should be graunted that this rule faileth where a man is proditus per famam doeth not that as a gloase confoundinge the text wholie and altogither destroy that rule or principle except for some reliefe this narrowe shifte may be vsed That the fame neuerthelesse standeth in force where any other then the Ordinarie assumeth to proue that cryme But in this case also they haue so weakned this maxime that scarcelie will it stande for a minome affirminge if I mistake them not that the infamed must aunswere on his oath to other articles not principallie touching the verie crymes objected For what should be meant by other articles but such as concerne circumstaunces and inducementes to the cryme And is not this to goe like the crabb oblique and to proceede the same way although not to treade the direct steppes But why there should bee any distaunce betweene the suyte or instance of the partie and the proceeding ex officio I knowe not the reason Alleadged therefore is this Penaunces enjoyned by Ordinaries are not taken to bee panae but medicinae what their lawe presumeth is not sufficient reason to prooue their lawe reasonable but what they are in deed is to be weyed And shall they be medicines onelie where proceeding is ex officio Or tende they in that case alone to the reformation of the delinquent Th' example of others and satisfaction of the Church May not all this aswell bee verefied where the cryme is complained of and punished at th'instaunce of the partie And shall not penaunce although it bee but the standing in a sheete as well as the standing on the pillorie respect of publique shame and reproache grieuous and odious vnto all men be accompted for a punishment True it is all corrections are or should bee medicines for the amendement of maners But doeth it therefore follow that the same be no paines or punishments As concerning th' offence to God by the abuse of his Name and Maiestie Haue we not learned before that to offer an oath vnto persons defamed in life and conuersation and speciallie concerning the matter of his owne corrupt life argueth a lightnes and wante of good discretion in the Magistrate who thereby wittinglie doeth minister an occasion of perjurie And are not all those on whome these purgations are imposed men greatlie defamed and vehementlie suspected of the crymes objected for as these Doctours affirme the law when secrete crymes by circumstaunces knowne abroade are become vehementlie suspected offensiue and daungerous then are they firste enquired of The proceeding also by inquisition beginning vppon fame proued not slenderlie but by presentment vpon oath or by deposed witnesses being many honest voide of malice neighbours to the partie and rendring a wise sufficient reason of their knowledge concerning the same And howe then may a Iudge in such a case with any good cōscience to Godward or to the satisfaction of his church force an oath vpon such a one for the finall ende of the cause Is not the perill and presumption of perjurie very great and pregnaunt Knowe we not that all or the moste part of men liking the counsell dedecus magis quam periculum vites will rather hazard their soules then put their bodies to shame and reproach presume the lawe neuer so much that after fame they should not make scruple to discouer them selues If the like course of purgatiō should be vsed at the common lawe vpon Indightmentes of fellonie or other criminall causes what doubt were to bee made but that perjurie in short time would ouerflowe the whole lande and shall we not thinke that the same is not frequent in these kindes of purgations But say they the partie is not trusted alone he bringeth with him his many compurgators who depose also de credulitate waying his feare of God and former conuersation Be it so the matter thereby is no whit amended but rather made worse and impaired For what doe those compurgators but by lending their oathes justifie in effect him to be honest whom fame and the former deponentes haue proued to be dishonest and verie neare the circumstances considered conuinced of the crime objected Why rather doe not these Ordinaries which challendge and assume to them selues the goodlie name and tytle of spiritual men if they respect the honor of God and regard the soules of men free the people from these pernitious oathes and deadlie purgations and proceede to their sentence of condemnation not by feyned offices and fictions of lawe but by good proofe and lawfull witnesses And againe absolue the partie defamed where such sufficient proofe doeth faile them why should they thinke much to offer to the laitie in their Ecclesiasticall Courts the like good measure and vpright sincere justice that they themselues finde obteine in the courts temporall of this Realme Where neyther they nor any other are forced ex officio Iudicis by strayning oathes and strong purgations not healthfull but hurtfull to bewray or accuse them selues Perhaps this counsell would be receyued if it were as profitable as good and honest but according to the prouerbe auro loquente tacendum est For it is no small gaine and lucre that dailie riseth and accreweth to the Cleargie and Courtes Ecclesiasticall by slaunder fame rumour and false report in respect wherof these faire names of Office and discharge of publique duetie are so cunninglie pretexed and these poysoninge purgations so daungerouslie giuen for preseruatiues A matter being since well knowne vnto the worlde Carolus 5 and by the Princes of Germanie in the Counsell of Norenberg among many other abuses and corruptions moste monstrous complained of to this effecte It happeneth oftentimes say they that men and women through sinister and false reportes and slaunders are brought before the Officiall or Ecclesiasticall Iudge as men guiltie and shall not be declared innocent before they haue cleared themselues by an oath which purgation so made they are restored to their former estimation And albeit the dammages and costes ought to bee repaide vnto such as be so falselie accused yet are the innocentes them selues forced to paye two Gilders and a quarter for their letters of absolution And this is the cause why the Officialls and other Ecclesiasticall Iudges doe so greatlie followe the action of such vnlawfull false and slaunderous accusations challenging the hearing thereof onelie to them selues Which thing no doubt saye they redowneth to the great and most singular hurt and detriment of all men For often times it hapneth that Women falling togither in contention through anger hatred or some other affection doe speake euill of or slaunder one another and outrage so much that the one often times accuseth the other eyther of Adulterie or Witcherie which being brought before the Officiall shee which through anger had so