like case of Appeal Amongst Nations of far elder times in most flourishing Commonweals oaths were taken by Plaintiffs and Defendants in all causes whether civilly or criminally moved Ex Polluce Sigâ—nius l 4. c. 4. deâ—…pub Athen. So among the Athenians besides a summe deposited to be forfeited by the failer Aeschines contra Timarâ—…um pag 7. Grae è. When Aeschines accused Timarcâ—us of a foul crime perpetrated upon him by one Misgolas Misgolas was to be put to his oath Plato lib. 11. de legibus Plato commends Rhadamanthus that strict Justicier feigned by the Poets as Aeacus and Minos also were to be a Judge in another world over Ghosts deceased for his justice I say he commends him for exacting an oath in every cause in controversie Arist Polit. lib. 3 10. Aristotle Plato's Scholer testifieth and commendeth the like course Herodotus in â—rato lib. 6. The history of Glancus an ancient Spartan that most just people of Greece evidences this there the oath of a thing left in Pawn was usually given Glaucus and his whole Family rooted out for denying such a Pawn left with him Dâ—ctis Cretens lib. 2. beth Trojani King Agamemnon solemnly and publickly took his oath that he had never polluted Hippodamia by Incontinency so was the custom in Greece in matters criminal Homer Iliad l. 19. v. 257. Homer mentioneth the same King purged himself also in another form but with an oath too that he had not violated Briseâ—s Pausanias Eliacis In the Olympick Games the Gamesters with their Parents and Brethren swore they had used no fraud nor deceit Cato de re Rust c. 144 145. In the old Roman Commonwealth private Housholders put an oath to thâ—ir Labourers that gathered Olives that they had not stollen nor imbezelled any c. Aâ—c sinalâ— sect 1. de juram calum c. inter solicitudines Xâ—philanus in Comodo Tacit. lib. 2. Anal. So the old Roman Law is upon presumptions he that refuseth to take the oath though the came be criminal is taken for convicted Victoriaâ—us General of Germany displaced his Legate or Lieutenant for refusing to take an oath that he was not bribed So Tacitus speaks of a solemne oath which the Senate caused to be taken by way of Purgation in high criminal matters When the Praetor one of the chief Magistrates in Rome had made choice of 450. Judges to decide causes Lex Servilia Glauciae apud Sigonium l. 2. c. 6. deâ—…udâ—… he was to swear he had chosen none of them dolo malo or for any sinister respect And much more might be instanced to this purpose to shew the justice of such proceeding CHAP. VIII That by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that Oath according to the Canon and Ecclesiastical Laws 2 H. 5. c 1. ORdinaries are authorized to enquire of the Foundation Estate and Government of Hospitals being not of the Kings Foundation c. and to make correction and reformation according to the Laws of holy Church as to them belongeth now by those Laws Enquiry touching crimes not capital is made by the Defendants oath as is notorious and before proved and this cannot but be penal to the parties visited when guilty 22 H. 8. c. 5. Executors and Administrators are to take the oath of the truth of the Inventory yet this may imply Perjury or discovery of a mans own fault 1 Eliz. c. 2. Ordinaries are to enquire of as heretofore hath been used by the Queens Majesties Ecclesiastical Laws about uniformity of Common prayer 5 Eliz c. 1. Ordinaries may give the Oath of Supremacy to a Clerk within his Jurisdiction 5 Eliz. c. 9. In this Act of Perjury the Laws Ecclesiastical have the powers reserved to proceed as before which was by oaths That allowance is made by Common Law to Courts Ecclesiastical to enquire and so consequently by such oaths appears by two precedents of Consultation set down in the Register Regist tit Consultation fol. 48. the first alloweth of an Inquisition made by the Dean of Yorks Official for defects in a Chancel c. Ibid. fol. The other besides a consultation conteins a commandment to the Ordinary to take full information by way of Inquisition and other means touching the value of Tithes Ibid. fol. 5â— b. An Ordinary proceeded against a Parishioner ex officio as for a crime for Tithes deteined by him Ibid. fol. 49. â— Ad correctionem animae the Ordinary proceeded against a Lay-man for Usury even at the instance of a party grieved so in several other cases as in the same Register mentioned fol. 43 50 51 54 55 57. Upon the cavils of some busie people against Oaths ministred in Courts Ecclesiastical and Temporal a Constitution Provincial was made against it Constitut Provinc de haercticis c. nullus Let no man saith that Constitution presume to dispute c. against Oaths which are made either in Ecclesiastical or Temporal Courts in cases accustomed and in usual manner c. By this appeareth the practice of such Oaths in both Courts A Treatise touching Constitut Proâ—…ine and Legatine c. 23. printed by Tho. Godfrey and Quintilius German in Henry the Eighths time who wrote against some Provincial Constitutions allowes of such Oaths to be taken Many more instances hereof may be given but it being apparent and notorious that such proceeding Ex officio and at the instance of the party and Purgation in manner as before was constantly practised in the Ecclesiastical Courts according to the Canons Constitutions and Laws Ecclesiastical before 25 H. 8. and by the aforesaid Statute of 25 H. 8. such Laws and practices have been confirmed not being contrariant to the Kings Prerogative or the Law of the Land And it appears that in such cases according as is practised in the Ecclesiastical Courts according to the Ecclesiastical Laws it is so far from being contrariant that it is most consonant and allowed and commanded by the Temporal Laws of the Land say it appearing by the Acts and Records of Ecclesiastical Courts that such proceedings were so constantly upon oath there needs no more be said for justification thereof but it may safely be concluded that before the making of that late Act the Common Laws and Statutes of this Realm allowed such Oaths to be tendered by Ecclesiastical Judges and therefore the oath of the party in some matter of crime that might be damageable and penal to him was both in practice and was allowed also to be practised in Courts Ecclesiastical by the Laws of this Land CHAP. IX That Oaths administred to parties touching matters damageable criminal and penal to themselves are urged and required by Temporal Courts and by the Laws of the Realm IN the Chancery when the proceeding is moved civiliter and not criminaliter not to any publick punishment but to the private Interest of the
usually it happens impeaches Eve she likewise the Serpent Gen. 3.12 and so they two hereby were made parties guilty or defendant The third is by Fame or rather Infamy as for the most part suspicion follows in the neck of the facts of wicked men talk or fame follows the suspicion and insinuation or complaint follows the talk or same And thus was the course against the Sodomites Gen. 18.20 The cry of the Sodomites is great I will go down now and see c. saith the Lord. And after the same manner were Inquisitions made both in the Law If it be told thee and thou hast heard it Deut. 17.4 and in the Gospel against the incestuous person 1 Cor. 5.1 It is reported The fourth is by Suggestion or Complaint as in Iobs case cap. 1.11 where the Accuser of our brethren as St. Iohn calls him would have made that holy man guilty of Hypocrisie a false crime yet a crime and that partly juridically under which name amongst the Hebrews they were called Masters of the suit or controversie Isaiah 50.8 we translate it Adversary And here the punishment of the offending party was sought after that he might give satisfaction to the person wronged partly as it is called Evangelically wherein one is denounced or reported to the Church where onely the medicine or remedy is sought after that the Church may have satisfaction in cause of scandal In the first the thing it self as we use to say speaks and impeaches the party guilty in the second one guilty person impeaches another in the third the speech of the people is the Accuser in the fourth any one under the proper and true name of an Accuser To this I adde a Fifth but not aâ— these as an ordinary remedy to determine the controversie but plainly an extraordinary one not to be put in practice but in the Valley of Achor that is against the troublers of Israel for so the word Achor sounds that is in some-heinous wickedness or the state of the Church and Kingdom being in danger in such cases we run to extraordinary remedies that is to Lots as Ioshua did which in certain causes is not granted Iosh 7.16 In this Ioseph made use onely of his own suspicion Are not you Spies saith he to see the nakedness of the Land ye are come Gen 429. and when they denyed yet without sign or token fame or any Accuser he questioned them thrust Simeon into prison and forced the rest to take an oath Nor did they appeal to the Law of Nations or complain that they were used contrary to Law and right For where the peace of the Commonwealth is concerned that is of such moment that I doubt not that God suffers his spirit of jealousie to come upon the Magistrate touching the safety of his Israel no less then he suffers the Husband to have his touching the chastity of his Wife Num. 5.14 For the matter in question it is in a main degree dangerous that it ought not to be dissembled and the persons with whom 't is acted use not to bring in any witnesses but such as are guilty themselves by whom they may be convinced And as to the crime we speak of it is of that kind of wickednesse that leaves no prints footsteps or marks behind it by which they may be taken hold of Wherefore in those cases it is no lesse lawful to question or accuse upon suspicion onely then it is by the Pillory Stocks or * * A punishment amongst the Heathens where the party was put into a Boat and another Boâ—t whelm'd over him Boar for such purpose these things were in Gods ††Jer 29.26 Commonwealth Bither of which in other either controversies or crimes no man allowes Well does Seneca if I temember well render the reason hereof Where Villanies run riot beyond measure 't is unjust that justice should be tyed to degrees to which that plainly extraordinary question of him who about that wicked extraordinary act of Achan betook himself to lots is not very unlike The God of Israel would have them to be troubled that go about to trouble the Israel of God and hereof the Valley of Achor is a perpetual monument Now whomsoever the Magistrate calls in question by any one of these four or if it concern the peace of the Commonwealthy or of the Church the fifth way either foregoing the partie is lawfully called Nor is there any reason he should fear that he should accuse or bewray himself he is now lawfully accused and bewrayed He is now that he is accused and bewrayed to take care how he shall lawfully defend himself And hitherto of the right of Accusation Now I assume the second The matter being thus before the Judge brought into doubt the party guilty or defendant either confesses the crime committed as Achan did and then the Judge hath no more to do but to pronounce sentence or which is most commonly done denies it which Solomon most elegantly expresses Prov. 18.17 He that is first in his own cause seemeth just but his neighbour cometh and searcheth him Now the party guilty or defendant denying by repelling the objection and the Agent or Plaintiff affirming his intention thereon arises that contradiction St. Paul speaks of Heb. 6.16 the bounder or end of which contradiction is that which in every Judicature is sought for as there the Apostle observes but no bounder will be found till the matter be put in an equal ballance except the one party have a better confirmation then the other 't is the Apostles word in the same place therefore 't is the Judges part to enquire on which part that lyes 'T is but a light labour and little praise to end such contentions as are easie and plain but that 's the worth of a Judge to sift out such causes where the right is obscure and perplexed The cause which I knew not I searched out saith Iob of himself Iob 29.16 And to do that dexterously and fitly is the honour of a Magistrate saith Solomon Prov. 25.1 to whom himself that sentence he pronounced in that most difficult cause 'twixt the two Harlots touching the uncertain mother of the surviving child was an high honour 1 Kings 3.27 But before these confirmations that is the foundations of the cause ought to be or can be set forth it is necessary some state of the cause must be settled or as it were a hinge must be on which the cause may be turned and that first of all to be made manifest what and how far he affirms and the other denies wherein each of the Litigants may rightly call the other to set soot to foot and hand to hand Sayes the Iew and prudently does he say it First of all place me the comroversie upon his foundation which except you do as very aptly some speak out of Prov. 21. the whole Action is but meer vanity tossed on this side and that side this way and that way 'twixt the
sentence viz. Sed proditus per famam tenetur seipsum ostendere innocentiam suam purgare The accuser of his brethren cited Scripture to our Saviour sayes he Mat. 4 6. He shall give his Angels charge concerning thee and in their hands they shall bear thee up c. leaving out that in the Text that follows after these words Psal 91.11 He shall give his Angels charge concerning thee that is to keep thee in all thy wayes which alters the case That note or comment upon the Law or if they will needs call it a Rule or Maxime it matters not Nemo tenetur seipsum prodere vel accusare sive propriam turpitudinem revelare is to be understood in crimes simply secret and which are no wayes disclosed or come to light But when such secret sins are by some of those wayes that open a way to enquiry of a person supposed criminous come abroad and so in some sort are manifested then those former rules cease and that of St. Chrysostom comes in Homil. 31. ad Hebraeos Non tibi dico ut te prodas in publicum neque apud alium accuses but upon such disclosing then Proditus tenetur seipsum ostendere innocentiam suam purgare This is for the avoiding of scandal and that the party may be reformed Therefore doth Aquinas himself reason thus Thom. 2.2 Cum quis saith he secundum ordinem juris à judice interrogatur non ipse se prodit sed ab alio proditur dum ei necessitas respondends imponitur per eum cui obedire tenetur As for tendering the Oath to the party where there is an accuser that is not done upon the crime till the fame be proved or sufficient presumptions circumstances indicia or suspitions or semiplena probatio the oath of one sufficient witness at least to induce the judge to give that oath though penal in some sort to the party This practice he proves consonant to Gods Word to the practice of the primitive Christian and the opinion of the holy Doctors and Fathers of the Church as also consonant to the practice of Geneva and other at least seemingly strictly reformed Churches and to the practice of all Christian Nations and other Nations not Christian guided onely by right reason and the Law of Nature as also that by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that oath the Ecclesiastical Laws and Canons being full and clear in that point Then he shews how the proceeding at Common Law in this Land is the same not onely in some criminal but civil causes also For private debts 'twixt private persons penal to them as in Wagers of Law sometimes for a greater sometimes a lesser debt 'twixt two private parties with the parties oath that is accused and his Compurgators too even as in Purgation Canonical in the Ecclesiastical Courts together with other Purgation or Decisory Oaths at Common Law Proceedings in Chancery with the several species and kinds of cases wherein such Oaths at Common Law are tendered being very numerous and are by him cap. 6. in the third part of his Apology and other parts thereof reckoned up and fully set forth And if this may be done in civil causes ought it not much rather be allowed the Church in criminal which works onely medicinaliter to reformation the Common-wealth works ad poenam the Church not so this to the amendment of the party to bring him to a voluntary submission and to take away the offence and scandal which he hath justly given to his Neighbour and to lead a new life that perhaps to the loss of liberty corporal punishment or livelyhood at least besides the infamy of being convicted of doing dishonestly and unworthily CHAP. V. That it is consonant to Gods Word to give such an Oath Ex officio or otherwise Rom. 13. EVery soul is to be subject to the Higher Powers This is to be understood in all commands not contrary to Gods Word in such comes in the Apostles rule Acts 5.29 It is better to obey God then man That the giving such an oath is not contrary to Gods word An oath duly imposed by the Magistrate necessitates the Subject to take it as appears by the commandment of God himself Thou shalt fear the Lord thy God and serve him and shalt swear by his name The like is given by the Lord in the Prophet Jeremy Jer. 4.25 O Israel thou shalt swear The Lord liveth in truth in judgment and righteousness Joshua gave charge to all the Magistrates of Israel that Josh 13.2,7 They shall not make mention of the Gods of other Nations nor shall cause to swear by them Saul did not onely charge the people with an oath but 1 Sam. 14. made them vow with a curse not to eat any food that day till night therefore one of them reported to Jonathan Sauls son That his father had made the people to swear Some would cavil at this as but an Adjuration and would without reason difference that from an Oath but in that Chapter 1 Sam. 14. it is four several times called an Oath The wise King Salomon imposed an oath upon Shime◠in a cause capital to him 2 Kings 41. Did not I make thee saith he swear by the Lord c. So King Saul 1 Sam. 24. urged David to swear unto him For a private offence only between Neighbours King Salomon testifieth that a necessary oath of Purgation may be required by the Complainant 1 Kings 8. When a man shall trespass against his neighbour and he lay upon him an Oath to cause him to swear c. King Josias 2 Chron. 34. made a covenant and vow and caused all that were found in Jerusalem and Benjamin to stand to it Nehemiah Neh. 5.12 caused the Priests to swear c. It is assigned for a special mark of a Godly man Num 30.3 Psal 15.4 To swear to his neighbour and not to disappoint him though it be to his own hinderance Abraham said thus to his servant I will make thee swear by the Lord God of the Heavens c. Gen. 14.3 this in a private cause much more a Magistrate in a cause wherein the Commonwealth or Church of God hath Interest to have it sincerely dealt in Gen. 25.33 Jacob moved Esau to the sale of his birthright and took an Oath for confirmation of it Deut. 19.17 A man supposed to have born false witness against another is thereof brought in question and re-examined if it be objected it was not upon oath by consequence of reason it must be upon oath when what he has said before upon oath is re-examined and this in a case very penal to him The oath of Adjuration is very frequent in Scripture Prov. 29.14 about not declaring cursing which he heard By the History * Jud 17 1,2 of Micah as we are †1 Cor. 10.3 bound
not lawful to question and without an Oath 't is to little purpose theresore God commands that way of Adjuration or giving an Oath * 1 Kings 2â— So the King adjured Micheas †Mat. 26.93 so the High Priest our Saviour and both of them answered But should any question Adjuration even a clear oath was lawfully given even to the actor as Exod. 22.8 1 Kings 8 3. and therefore more then permitted to the Magistrate For surely it were hard if every private man might require an oath of the questioned and not the Magistrate should it be lawful in the case of a Pawn and not of a Kingdom An oath is an end of controversie saith St. Paul Heb. 6.16 then an oath to be taken for that end In a case Matrimonial which is meerly Ecclesiastical Interrogatories were administred with oath as in a cause of Incontinency Num. 5. and the proceedings being by Enquiry without any accuser at all And this which is to be noted in the case in Esdras Esdras 1.8,9 they are no wayes forced to it but desire to take their oath first and to be examined after then which there is no cause more suitable then to the proceedings in Ecclesiastical Courts before the passing of the late Act and against which the Innovators heretofore used to take exceptions In some of these above-mentioned instances we see how oaths were administred even in capital causes much more may they be where there is not that danger nay no danger of losse of Goods Liberty or any other losse but onely for a medicine to the soul for reformation of manners and taking away scandal and offence given They were questioned too we see upon small suspicions signs presumptions or any other causes of question nay nothing at all as to the person questioned upon whom no true colour of suspicion lay something like our Coroners proceedings in some cases but onely a fact was committed that was apparent whereof it was possible that he was not guilty as in the case of a person found slain then much more ought it to be upon great suspicions presumptions or publick fame thereof proved This being thus by Gods Word in the next place we may look into the practice and opinion of the primitive Christians hereupon CHAP. VI. That the Opinion and Practice of the Primitive Christians and the Fathers of the Church was to administer such Oath Ex officio and upon Accusation and for Purgation Canonical with the practice at Geneva IT is well said by an ancient and learned * Cromatius in 5 Mat. Facit canon 36. concil Tolet. quart Writer Dominus inter juramentum loquelam nostram nullam vult esse differentiam And Aquinas saith †Thom. 2.2 qu. 69. art 3. If he which is brought into question and interrogated by the Judge without his oath shall answer untruly that therein he sinneth deadly The old Christians in the primitive Church were far from such shifts of answering dangerous questions propounded to them by Heathen Magistrates or from answering untruths to them Tertullian is herein very plentiful especially in his book called Apologeticon Tertul. in Apol. c. 1. A Christian saith he if he be indicted or denounced to the Magistrate he rejoyceth in it if he be accused he propoundeth no defence when he is interrogated he most willingly confesseth and when he is condemned he giveth them or God thanks And much more hath Tertullian to this purpose St. Augustine Aug. serm 28. de verbo Apost cap. 6. doth plainly establish and allow of Oaths taken concerning a mans open offences being indeed such also in their own nature If perhaps saith he thine Oath be urged meaning a Decisory oath be exacted of thee by a private person say not I will not swear for it cometh of evil which thou doest but yet of his evil that exacteth it of thee insomuch as thou hast no other means but thine oath to purge and clear thy self of the matter in handling Aug. ibid. c. 10. In another place he speaks and allows of oaths taken in way of purgation of one suspected for theft Aug. ep 137. and in another place he sayes and approves of the same practice at Millain this was in a civil cause criminally moved and for theft a crime though not simply capital by the Civil Laws In another place Aug. in qu. Lev. In denouncing others saith he speaking of Denunciation of faults to the Magistrate this moderation is alwayes to be used by us that we relate it unto such which may rather help than hurt him in case the party shall swear falsly either by correcting him or by deprecation to God for him so that he will by confessing his fault apply this remedy unto himself Chrys hom 16. ad pop Antioc St. Chrysostom alloweth of Decisory Oaths or Wagers of Law and testifieth that such necessary oaths were in those times imposed to exact mens confessions and whether they had stollen some certain thing or not This he allowes touching meer crimes in their own nature and that upon the instance of a Plaintiff particularly interested but in his goods and chattels This kind of oath was not onely allowed in the old Church but commanded to be put in use as lawful and consonant unto Gods Word against persons convented and had in suspicion even in one Church which the most and hottest oppugners of this oath do reckon to be best yea and almost the onely Reformation that may rightly be so called For in the Discipline of France concluded of in the National Synod there 1559 1561 1563 1565. it was thus declared The Ecclesiastical Senate or Consistory act 12. The faithful may be constrained by the Consistory to tell the truth so far forth as it derogateth nothing from the duthority of the Magistrate They may be constreined say they but there is no compulsion but either Civil which they will not arrogate to themselves as torture or racking imprisoning or fining c. or else by the parties oath which upon pain of Perjury if he once swear or of conviction if he will not doth as it were constrein a man to say truth And that an Oath is meant by the Canon of the French Church we are taught both by the History of Camperell a French Minister at Geneva as also by that of those who danced in Widow Balthazar 's house there Interepist Calvâ—n in folio pag. 421 422. Camperell was appointed by the Consistory of Elders there to be examined upon his Oath upon certain Interrogatories whereof also two concerned what he had in his very purpose and intention of mind Calvin Farello pag. 64. epist in folio The Dancers because at first they denyed it were put to their corporal oaths to declare the whole truth of that merriment And all dancing there is held as an offence and grievous crime as appears by the Ordinances of Geneva and by the very last frame of Discipline
distributive justice to have that rightly performed it must be granted that all due and good means may be used to attain that end Qui dat finem dat media ad finem i F. de injur Peccata nocentium expedit esse nota Now when crimes cease to be secret but are by fame or by such wayes as is aforesaid so far discovered if there be as very often there is not no other way to discover them that so the evil and the scandal may be taken away but by putting the party to his oath thereby to clear himself if further due proof thereof cannot be made or by refusal of the oath to be taken pro confesso then it follows the evil and scandal must still remain and all the sad effects thereof to Church and State may be expected to follow Be the fame of a crime Adultery or the like never so pregnant that Town and countrey even the Kingdom ring of it though an Adulterer and Adulteresse have cohabited together a long time yet if they were not taken or seen in flagranti crimine or seen in bed together which is a violent presumption equivalent to a proof and the parties deny the fact some make it disputable whether or no any manner of punishment the fact being neither proved nor confessed can be laid upon the parties for this great scandal to the Church Some hold that by the words of this late Act that an innocent party upon whom a fame is unjustly raised and the beginning of it cannot be found as often hath happened yet though he offer to purge himself the Ecclesiastical Judge is not to tender or administer the oath to him though this seems otherwise because the oath is forbidden but onely in such cases whereby the person to whom the same is tendered or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment But in this case of voluntary offer to take the oath that reason of censure or punishment ceaseth Reg. juris Volenti non fit injuria neque dolus Such course by way of oath to find out the sin being forbidden how great an encouragement it may prove to commit such sins is obvious to the easiest judgment It was extreme to make Adultery punishable by death though that extreme be to be avoided the contrary too must be shunned If it be lawful at common Law as in a Wager at Law and many other cases as before touched to tender and administer such oaths and in such causes as need it not so much as these causes ordinarily do wherein before that late Act it was administred in Ecclesiastical courts then why not in Ecclesiastical courts Except it be said that the same course shall be taken to forbid it also at common Law which I suppose is not intended since Jury men as Dr. Cosens as before in that his Apology affirms had an oath given them to present their own and their fellows faults Now such in Ecclesiastical proceedings The inequality of the punishment as to the difference of Sex Indeed the permission of punishment as to one Sex the Man and the punishment to the weaker Sex the Woman who therefore deserves more commiseration that inequality I say cannot at best but seem strange For the man will alwayes probably except either by Gods grace he will glorifie him by confessing his fault or else as before be taken in flagranti crimine or with such violent presumption as before escape punishment though never so guilty It is peccatum concatenatum there must be two to act it In that sin the man without the woman or the woman without the man signifie no more then the letter q without an u following it to make it into to a syllable As for the man his crime is transiens leaves no vestigia behind it to discover him not so oftentimes in the woman the infallible indiciū of her fault her crimen manens appearing to every eye though she is no more guilty thereof then the man whom if she rightly name or accuse yet that works nothing against him except to keep the Bastard child as the reputed father thereof wherein not a few light women probably name not the right father so her single testimony serves to punish either the right or wrong father but not to take away the scandal or evil caused by the man that offended Our English Nation hath been accounted very friendly and favourable to the weaker Sex and very many are the privileges and honoraries we give them more then in other Nations for which in the opinion of generous minds we are accounted more honourable then others insomuch as some have said If there were a bridge 'twixt Dover and Callis all the women in the Continent would come into our Island But by this we may seem to hazard that honour In Simony Usury and many other crimes of Ecclesiastical cognisance be the fame circumstances suspicions and all other inducements never so strong yet this Oath being not to be administred the offender scapes neither the evil nor scandal is removed Bishops by the Statute 1 Eliz. 1. are to give the Oaths of Allegeance and Supremacy ex officio to others or whether it be ex officio or ad instantiam partis the matter is all one 't is forbidden to give it to any person whereby he may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment The refusal of this oath is penal and perhaps the person was so accused to the Bishop or there was a common fame thereof or other sufficient inducement to enquire thereof if the party refuse to take this oath thus tendered to him then is he by the Law lyable to Censure and punishment for it and I conceive it is not thought fit that such a person be he a Recusant of what kind soever should plead this Statute that this Oath should not be tendered to them By the Law all Bishops and Ecclesiastical Judges when they give Institution into Benefices or give license to preach teach school serve Cures and in other cases are to give to the parties the Oath of Allegeance and Supremacy should these parties refuse to take these oaths it were penal to them When the Bishops make their Chancellors Commissaries Advocates Registers Proctors or the Deans and Chapters their Commissaries Officials or Auditores causarum or the Archdeacons their Officials or any other Ecclesiastical Officers whatsoever the same oaths are to be given them should these parties refuse to take these oaths it were penal to them So a greater part of the course of proceeding in Ecclesiastical Courts is taken away then perhaps many think of So in the Oath of Calumny and of Malice to be tendered in the proceedings in
without some of these that have been mentioned but with these he hath good warrant even as good as Gods own example and commandment Sufficient hath been said to shew that without an Accuser a Judge may proceed by enquiry to interrogate a party but whether upon his Oath that is the second point to be shewed no less warrantable by the Word of God then the former In the case of the Woman suspected to have made a fault to her husband and that upon no other ground but upon her husbands own jealousie the Ecclesiastical Judge was not onely authorized to examine her concerning it and then to rest on her denyal but also to put her to her oath and make her to abjure it with execration as it is plainly Num. 5. And it is a case of a sin against the seventh Commandment In a sin against the eighth Commandment betwixt man and man If one had committed ought to anothers trust and were perswaded that he had played false with him he might bring him before the Judge and have the matter searched into and at the Plaintiffs instance the Judge was to lay an oath upon him and the other not to refuse it And of this there are more cases then one Exod. 21. And if in private causes betwixt man and man this manner of proceeding be allowed it will follow à fortiori if for the private benefit much more that which God granteth to a private man it is to be presumed he will not deny to a Magistrate that which to satisfie one party he licenseth he will likewise think meet to license for the taking away of offence and giving satisfaction unto many And the chastity of a mans Wife shall never be more precious to him then the keeping of his own Spouse the Church free from the like stains of pollution In a sin against the sixth Commandment a case of Murther one is found slain no man can be accused or suspected for doing it In this case the Governors of the next City to the body so found are by the Law to come to the place to offer a sacrifice to invocate the name of God and solemnly to testifie by that Invocation that they are no waye privy to the murther This is the course in the Law of Moses but before ever the Law was written we see the very same holden by Joseph under the Law of Nature In a matter of State in a suspicion of a sin against the fifth Commandment It pleased him to charge his ten Brethren as Spies coming to discover the weakness of the Land there was no party to accuse or to say ought against them yet for all that he put them to it sub attestatione juramenti to answer They were no such men The very like course was holden in the search for Elias he was thought to be the cause of the long and great drought The King sent all over the Land to seek for him and to have him apprehended these especially that were thought to be the Professors of the same Religion all denyed him it would not serve the turn he put them to their oaths and they refused them not yet was there none to accuse them at all Yet for the good as it was supposed of the State this course was well allowed So have we Interrogatories administred and the parties sworn to them in cases of the fifth sixth and seventh Commandment And if this may be done in civil causes and be not unlawful in them we argue that much rather it ought to be allowed the Church in her proceedings First for that both Commonwealth and Church be to remove evil yet work they not both one way for the Commonwealth as it is well known doth agere ad poenam the Church never so but doth onely agere ad poenitentiam seeketh to alter mens minds from the evil courses they have entered into seeketh by making them to yield to a voluntary submission rhemselves to take away the scandal whereof they have been a cause Now there is great odds between those and great reason more means be allowed those that seek for nothing else but the reformation of the party and his souls health and those that end their proceedings alwayes in the loss of life limb or liberty or living as doth the Civil Besides it is well known the civil power hath many wayes and means to sift out the truth though not by this That the Church if Accusations cease hath none but this onely Indeed therefore most proper and peculiar to her because an oath is the bond of the Soul and they be the sole causes the Church hath to deal with The inconvenience is none at all for admit a party should thereby disclose his offence yet groweth thereby no damage unto him in that his repentance onely and reformation is thereby sought and wrought and nothing else Thus reasons the Church but for her practice taketh her ground to be full and good out of the fifth of Numbers in a case of suspected Incontinency which is meerly Ecclesiastical And again out of 1 Esdras 8. 9. in a case Matrimonial which is meerly Ecclesiastical also In both which Interrogatories are ministred with oath the proceeding being by Enquiry without any Accuser at all And that which is to be noted in the case in Esdras they are no wayes forced to it but desire to take their oath first and be examined after Then which there is no case more like to the proceeding at this day against which exception is taken Out of these six it is manifest enough how agreeable to the Will of God this proceeding is But beyond all this is the seventh in the fifth of Leviticus where it appeareth that God is so careful to have all evil removed as leave is given by him upon a fault committed the party being unknown to lay a solemn charge and to bind it with a curse and that at large to take hold of any that were privy to the fault done and did not come and reveal it Which course was clearly of the nature of an Oath as doth plainly appear by 1 Sam. 14. where it is said four several times that Saul bound all the people with an oath not to taste of any thing till the Sun went down that they might pursue their enemies without any intermission Which oath is judged by the Expositors to have been nothing else but the publick denouncing of a curse or adjuring them in the name of God not to do it seeing it is held a thing impossible that he should call so many thousands in particular to take every man an oath the time being so short and he in such haste to pursue the Enemy But it is a thing as Nazianzen saith not unusual either before Christ or since in the time of the Primitive Church to make such adjurations whereby the Church ever thought quod poena commissi revolvitur in conscium that he that concealed was subject to as great a curse as he
that committed it By all which it is evident that such proceeding by oath may be and is not unlawful This as before is by some said to be Dr. Davenants late Lord Bishop of Sarisbury and others say it was the late Lord Bishop of Winchesters that most learned and pious Bishop Dr. Lancelot Andrews Whose soever it was it seems it was to give satisfaction to the Lords of the Council touching such proceedings Ex officio and upon oath and 't is to be believed it gave them satisfaction the Law so long after continuing the same and no wayes altered The Theological Determination of Dr. Lancelot Andrews afterwards Lord Bishop of Winchester had in the publick Divinity-Schools in Cambridge in the Moneth of July 1591. upon this Question following Rendred into English for the use of the meer English Reader Whether by Gods Law it be lawful for the Magistrate to require an Oath of the Party that is the party guilty or Defendant and in what case and how far it is lawful TOuching the questioning of parties guilty or Defendants by the Religion of an Oath as also of such parties taking such Oath or lawfully declining it of late hath a Question arose Whether by Gods Law it be lawful for the Magistrate to require an oath of the party that is the party guilty or defendant and in what case and how far it is lawful This question to prevent any confusion upon your memory or my own I will divide into five branches and indeed in this short two dayes space I have not bethought my self of a more distinct method 1. Whether it be lawful to exact or require an oath 2. Whether it be lawful for the Magistrate to do it 3. Whether from the guilty or defendant party 4. Whether it be lawful in every cause or not in capital causes but such as receive a milder punishment 5. How far this is lawful and in what cases Of which questions the first three have nothing of question in them if we be sound in Divinity therefore I shall in few words dispatch them And first of all it is a sacred right that such an oath may be lawfully required In which matter I think it is very behooveful as Christ did in the case of Divorcement first of all to enquire what every thing was in the beginning in the revolution of time many things are changed the beginning is the most certain rule Therefore I aske where and when the first mention of an oath is made in Scriptures I finde Gea 24. Abraham forcing his servant to take an oath in these words and with this ceremony Put thy hand under my Thigh and I will make thee swear that thou shalt take a wife for my son of my Kindred So the first oath mentioned in Scripture is here expressed and as it is the most ancient and first so it is the most frequent and onely mention almost of such a thing This very term to Swear you will scarce any where find it in the Old Testament but either under the word Hiphil that is the Imperative commanding conjugation in respect of him that gives the oath or under the word Niphal that is the passive suffering conjugation in respect of him that takes the oath And under the same rule are the Greeks amongst whom Orcos is the name of the oath which almost solely the holy Ghost acknowledges in the New Testament In that word is a kind of straitning necessity and as they say an exigengy no less then there is in the word Orcos for from the same word comes both that is of straitning Thereupon comes that common Proverb War and Oaths are voluntary evils and that they may be good they ought to be pressed and expressed as St. Augustine of Oaths sayes wittily either by the Authority of him that gives the oath or at leastwise by the hardness of his heart that believes nor So that it is a sin either to swear or to make war except it be at least in some manner exacted and upon some and no light cause Therefore that it may be required or rather that it ought to be the very force of Nature the very force of the term it self evinceth it But whether from the Magistrate this is the second branch Yes surely from the Magistrate So the Divines of old Not onely every body but every soul is to be subject to the Powers Rom. 13.1 Therefore the Powers have power to commit the body to custody by imprisoning it lest it escape And so likewise the soul to commit that to custody by laying an oath upon it lest it should have any subterfuge by which name God himself hath most fitly called an Oath the Bond or prison of the soul Num. 30.13 by which the soul may as it were be tyed up and being so tyed up may be bound to answer appositely and readily But yet it comes nearer If it be lawful for the Master to force his servant to take an oath as Gen. 24.3 Abraham did if a father to his son as Jacob to Joseph Gen. 47.29 if a brother to a brother as the same Jacob to Esan Gen. 25.33 By how much better right is it lawful for the Magistrate to do it to his Subject whose command is more excellent then any other command I adde also about the right settling in marriage of a son if that be lawful as Abraham to his servant of chusing a fitting place of burial as to Joseph of passing away the right to Birth-right as Esau and in private causes I adde also of the least concernment if compared with the publick Then surely by better right may the Magistrate do it in the common cause of the Commonwealth whose Interest is greater then any other Interest And that is provided for by Gods Law Exod. 12.8 in express terms in the case of a Pawn saith God let them come before the Magistrate In which place the Magistrates are named by the name of God himself and not by any name but by that very name which is taken from the force of an oath as though he should say Let them come before the Oath-givers or those who when they give the Law in Gods stead in his Judgment and in his Name may require his Oath to be taken That is Gods Deputies Psal 82.6 in Gods judgment 2 Chro. 19.8 the Oath of God Eccles. 8.2 therefore to the Magistrate It is lawful to the Magistrate I say as well Ecclesiastical as Civil Before him that is the Ecclesiastical Judge by Law the Woman is commanded to purge her self in a case of suspicion of breach of Wedlock bond Num. 5.19 Before him that is the Temporal Judge by Law the man is commanded to purge himself in a cause of suspicion of breach of Social promise or Contract Exod. 22.8 The practice whereof we see and the practice of the Saints is the Interpreter of the Commandments of the Ecclesiastical Judge in Ezra who required an oath in a Matrimonial cause Ezra
memory King Henry the eighth because that many inconveniences had chanced in this Realm by breaking and dissolving good and lawful marriages yea whereupon also sometime issue and children had followed under the colour and pretence of a former contract made with another the which contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the marriage which they liked not and to be coupled with another there was an Act made that all and every such marriages as within the Church of England should be contrcted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had betwéen the parties so married should be by authority of the said Parliament déemed judged and taken to be lawful good just and indissoluble notwithstanding any precontract or precontracts of Matrimony not consummate with bodily knowledge which either of the persons so married or both had made with any other person or persons before the time of contracting that marriage which is solemnized or consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly appear Sithence the time of the which Act although the same was godly meant the unrulinesse of men hath ungodly abused the same and divers inconveniences intolerable in manner to Christian ears and eyes followed thereupon women and men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the contract of Matrimony they might have whom they more favoured and destred they could be contented by lightnesse of their nature to overturn all that they had done afore and not afraid in manner even from the very Church door and Matriage feast the man to take another spouse and the espouse to take another husband more for bodily lust and carnal knowledge then for surety of faith and truth or having God in their good remembrance contemning many times also the commandment of the Ecclesiastical Iudge forbidding the parties having made the contract to attempt or do any thing in prejudice of the same Be it therefore enacted by the Kings Highnesse the Lords Spiritual and Temporal and the Commons in this present Parliament assembled that as concerning Precontracts the said former Statute shall from the first day of May next comming cease be repealed and of no force or effect and be reduced to the estate and order of the Kings Ecclesiastical Laws of this Realm which immediately before the making of the said Estatute in this case were used in this Realm so that from the said first day of May when any cause or contract of marriage is pretended to have béen made it shall be lawful to the Kings Ecclesiastical Iudge of that place to hear and examine the said cause and having the said contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding solemnization cohabitation consummation and tractation as it becometh man and wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the Kings Ecclesiastical Iudge by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never béen made any clause article or sentence in the said Statute to the contrary in any wise notwithstanding Provided alwayes and be it enacted that this Act do not extend to disannul dissolve or break any marriage that hath or shall be solemnizated and consummated before the said first day of May next ensuing by title or colour of any Precontract but that they be and be déemed of like force and effect to all intents constructions and purposes as if this Act had never béen had ne made any thing in this present Act notwithstanding Provided also that this Act do not extend to make good any of the other causes so the dissolution or disannulling of Matrimony which he in the said Act spoken of and disannulled But that in all other causes and other things there mentioned the said former Act of the two and thirtieth year of the late King of famous memory do stand and remain in his full strength and power any thing in this Act notwithstanding Stat. 1 Eliz. 1. By these the inconveniency appeareth of taking away or altering an ancient long-settled Law practised long in all Christian Countries as this was which had it not been good probably the inconveniency and hurt of it had appeared in so long a time and the Law for the Oath Ex officio and Purgation is of like antiquity and practice in all Christian Countries without inconvenience or hurt thereby arising as yet that I ever could hear of therefore such Laws ought to be deeply weighed and considered of before they be repealed or altered And now that I am speaking of repealing and altering old Laws and making new I thought fit to close this Tract with some Notes of mine drawn up almost all of them in the time of the usurped Government and some after His Majesties restauration and communicated to the sight of some of Quality touching the repealing or altering of some old Laws and making new Some are already past and effected as that for the Lords the Bishops sitting again in the Lords House in Parliament and other things These I offer with all humility to be considered of if it shall by those in Authority be thought fit otherwise to be as unsaid Protesting that I retract as before any thing which is here mentioned that shall appear contrary to Gods Word His Majesties Prerogative or the Laws of the Land or the just policy and government of any of His Majesties Dominions Touching Parliaments Parliament proceedings AS a Parliament well constituted and acting regularly conduces much to the happinesse of King and Subject so any exorbitancy or deviation therein of which surely all unbiassed men cannot but confesse we have had too much sad experience in the Long Parliament works the contrary corruptio optimi pessima In the time of the Long Parliament some as it were idoliz'd it even almost to an opinion even of Infallibility of which they have made too much advantage to the misery of King and People Some advised then that that great Wheel that great Court should have had its sphere of activity it s known certain bounds publickly declared and not have been like a great River prodigiously overflowing all its banks and bounds Such a Parliament acting regularly is' t not probable the Members thereof would not so much have thirsted to lengthen much lesse to perpetuate it They were called up to consult may not he that calls his Counsellor forbear consulting him when he pleases and dismisse him Ordinance of Parliament The extent of an Ordinance of Parliament having by some been tentor'd then even almost to Infinity might it not have been precisely circumscribed and the exact definition of an Ordinance given Privileges of Parliament As