not haue conusance of the breach of an othe voluntarily taken is when there lieth an action for the matter whereof the othe was confirmatorie at the Common Lawe therefore it was holden by Brian 6 T. 22. Ed. 4. fol. 20. not long after that if a man sweare to pay twentie pounds that he oweth at a certaine time and pay it not and for the periurie be brought into the Spiritual Court there shall lie a prohibition because saith he an action of debt lieth at the Common Lawe I make this a seueral cause and reason from the former because an othe may grow vpon a Temporall matter which was the former cause and yet none action lie for it And if I promise without any consideration to giue you twentie pounds and binde it with a voluntarie othe it seemeth the Common Lawe will holde it still but pro nudo pacto and so giue none action at all But some occasion is giuen vnto me to thinke that courts Ecclesiasticall de facto howsoeuer de iure helde plea of breach of othe and of faith falsified which 1 Lyndw. in cap. aeterâ—…ae sanctio verbo fidei transgressione de poenis amounteth to asmuch in some respects as breach of a corporall othe euen when such othe or faith voluntarie taken was for confirming of a matter Temporall For this I finde not onely before the Writ was framed de recognitionibus per sacrament a non faciendis de catallis debitis quae non sunt de testamento vel matrimonio but afterwarde also and that aswel by iudgement as by opinions deliuered and reported for booke cases albeit with certaine cautions which shall by the way be touched First then that Ecclesiastical Courtes handled this cause long afore that Writte was deuised I finde in a 2 Prou. Constitutio 〈◊〉 sanctio de poenis Prouinciall Constitution made at a Synode holden at Lambhith vnder Boniface then Archbishop of Canterburie in the time of King Henrie the third Anno Christi 1260. which constitution I doe alleadge not as being of force now for the purport thereof because it aimeth at the bridling of the Kings Prerogatiue and of his Temporall Courtes but thereby historically to shewe what was then held and practised vsually The effect of it to this purpose is that whereas Prelats doe take Conisance of sinnes and of misdemeanours of such as be vnder their Iurisdiction as of Periurie or breache of faith of Sacriledge of violation of Church liberties for infringing of which euen by the Kings Charter graunted to the Church of England such disturbers doe fall into Excommunication ipso facto and of such like causes which be meerely of Ecclesiastical Conisance yet are prohibitions directed foorth out of the Kings Court and Iudges Ecclesiasticall are called thither to answere as if they delt not concerning Periurie and breach of faith but suggesting that they deale touching chattels Therefore a little after is added this viz. 3 Dicta Prou. Const. And if perhaps the King in his attachements prohibitions and summons shall make mention not of Tithes but of right of Patronage not of faith falsified or periury but of Chattelles not of sacrilege or disturbance of ecclesiasticall liberties but of some trespasse pretended to be done by his subiects or bailiffes the â—…edresse whereof belongeth vnto him then let the Prelates aforesaid make knowen vnto him that they holde no plea neither intend to do concerning right of Patronage or chattelles or any other things belonging to his court but concerning tithes sinnes and other meere spirituall matters belonging to their office and iurisdiction and tonching the safety of mens soules c. So that the trueth of such allegation being manifested to the king they thought the plea sound and sufficient to obteinea discharge from such prohibitions c. if they were in those respects onely granted Yea and Lindwood who writ anno 1423 and long after that writ was framed who also by reason he was Officiall principall of Canterbury or Deane of the Arches had good experience in these causes maketh no 1 Lindw ibidem V. periurio doubt but that matter of periury or of breach of faith arising vpon what cause soeuer so farre foorth as it concerneth doubt whether such oath were lawfull or not and doe binde in conscience or not is of ecclesiasticall conisance And therefore teacheth how the libell in that case is to be framed that no cause of prohibition be giuen viz. the partie hath damnably broken his oath made for payment of so much money vnlawfully pretending that hee is not thereby bound or tied The statute Circumspecte agatis saith defamation shal be tried in a Spirituall court when money is not demanded but a thing done for punishment of the sinne and likewise for breaking an oath without distinction whether it arose of a temporall cause or not Since the said writ we haue a iudgement in the very point in the time 2 Lib. 22. Assis. fol. 70. of king Edward the third For if a man demand a debt of tenne pounds before the Ordinarie for that the defendant plight his faith to pay it c. and hath not payd it but broken his faith the Ordinarie cannot enioyne him to pay the debt for sauegard of his faith and if he do he doth it against the kings prohibition But he ought to enioyne him other corporall penance except the partie will willingly redeeme it For so Fitzherbert 3 Fitzherberts Abridgement tit Prohibition num 2. readeth those last wordes of exception more truely then my booke of Assises as it is printed carying indeed therein no sense at all The like appeareth in the reigne of king Henrie the sixt for there it 4 34. H. 6. 70. vt Brooke allegat tit Iurisdiction num 2. was holden that if a man buy an horse of me and sweare vpon the Euangelists to pay me ten pounds for him such a day and pay it not I shall haue action of debt at the Common law and also a citation pro laesione fidei at the Spirituall law and shall not therein offend the Common law because they are diuers things As for opinions afterward we finde it was held by Brian and Litleton in the time of K. Edward the fourth none there gainsaying it that 1 M. 20. Ed. 4. foâ—… 10. in laesione fidei arising vpâ—… a temporall matter the Spirituall court might punish it ex officio but not at the suite of the party To the same purpose also Mordant said in the time of K. Henrie the seuenth 2 T. 12. H. 7. fol. 22. that if a man be sued in a Court ecclesiasticall by a party pro laesione fidei in not paying a summe of money promised there shall lie a prohibition but if the Iudge ecclesiasticall shall do it ex officio then no prohibition shall lie which no man gainsaid or impugned These two opinions lest they should seeme to crosse the former iudgement in the booke of
and matters Temporall betweene which and causes ecclesiasticall as is noted afore there was made both in those times and also long after a plaine seuerance and distinction in the groundes of their seuerall authorities and iurisdictions so that the one was called the Kings Court and the other a Spirituall or Court Christian. and therefore as nothing was in that Charter anewe graunted but confirmed onely vnto the Church of England so is it to be iudged on all handes that the king would not make lawes there to restraine the courses of proceeding ecclesiasticall because it could not be without disanulling and reuoking of that which immediately afore euen by the same Acte hee had first of all confirmed vnto them Secondly a Bailife onely is there mentioned which should put or not put a man to his oath which cannot well and properlie be vnderstood of any but of some officer temporall Thirdly these wordes are no way appliable to the practise of courtes ecclesiasticall for albeit vnder the name of Bailife an Ordinarie might be vnderstood which were very harsh insomuch as a Bailife is but a Reeue of a Baile or Libertie yet is it not holden by any lawe ecclesiasticall that vpon an Ordinaries owne bare saying whether he haue witnesses after to bee produced or not a man may bee put to an oath for there must bee some better matter of inducement to open way to the enquirie whereupon the oath ensueth Lastly this statute will rather hurt then helpe forward these mens purposes if an Ordinarie might here be vnderstood by a Baylife because if I conceiue the matter aright by this is implyed that so an Ordinarie be able to bring in good witnesses he may then vpon his bare saying put a man to his open lawe or to an oath But hereupon would followe that Criminall prosecution without any accuser or other partie and so ex officio mero yea and without any presentment too may bee lawfully admitted and which is most to our present purpose in handling that an oath in such case by him may bee imposed in any matter aswell Criminall as other For heere is no distinction made of any one kinde of cause from another and they which alledge it doe bring it to impugne proceeding by the defendants oath against crimes The allegation of the Treatisour out of the statute of Marlebridge or Marleborough falleth next in time to bee considered the whole wordes 1 Marlebr 52. H. 3. cap. 22. whereof are these none from hencefoorth may distreyne his freeholders to answere for their free holdes nor for any thing touching their freeholde without the kings writ nor shall cause his freeholders to sweare against their willes for no man may doe that without the kings commaundement But the Treatisour leaueth out the first part which sheweth howe the second that he alledgeth is to be vnderstoode And because like the lapwing with her diuerting c◅ies hee would leade vs further and further from the matter herein chiefly to be respected or for that he thought wee would make some aduantage hereof he saith that the kings commaundement importeth here thus much viz. according to the law Iustice of this Realme and for this quoteth a booke thus 2. R. 3. The booke he meaneth as I gesse is in 2 Mich. 2. R. 3. sol 11. these words wheresoeuer a man for offence misprision or otherwise is to make fine or redemption all the Iustices agreed that those Iustices before whome he was committed c. should take suretie and pledges for the fine c. and after by their discretion they should assesse the fine and not the king in his chamber nor otherwise before him but by his Iustices and so is the kings will in statute to be taken viz. by his Iustices and his lawe which to say in effect is all one c. Where you see that the booke speaking of Iustices viz. the men before whome the conuiction was made he referreth this to the Iustice of the land But though it be neither off nor on to our Principall purpose neuerthelesse it seemeth this booke is not truely applied by him vnto this statute and that by the kings commaundement in the statute the kings writ is to be vnderstood as in the first part of that statute is plainely expressed rather then any determination or Act of his Iustices of the Bench. Touching the statute it selfe the wordes doe euidently shew that neither oath in cause criminall nor any Court Ecclesiasticall is thereby meant there is onely forbidden that lords of manors shall not inforce their Freeholders that holde lande of them whether it be by distresse or oathes to answere in their Courtes baron touching the estates they haue in their landes because neither the lordes owne courts in such a case be competent or indifferent for feare of vnlawfull euiction nor the goodnesse or weakenesse of the states men holde are meete to be fished out by their owne oathes in satisfaction of their lordes greedinesse to haue their lands except the king by his writ shall so especially command And yet hereby wee see the statute leaueth it at large at the kings pleasure to warrant euen this course and therefore this is not simply vniust but inconuenient onely for lords so to vrge their tenants He alledgeth further against these oathes a statute as hee saith made 43. Ed. 3. ca. 9. that no man be put to answere without presentment before Iustice or matter of Record or by due proces or by writ originall after the ancient lawes of this land But I doe finde no such statute either in that yeere or in any other like number of Chapter of that king and that Parliament which he voucheth hath not so many Chapters But admitting it what is this to proue an vnlawfulnesse of oathes ministred vnto defendants in matters criminall whereof there is no shadowe of mention it rather speaketh of matters that ought to goe afore proceedings criminall at the common lawe and what makes this against Courts Ecclesiasticall woulde hee haue them to proceede in the selfe same maner that common lawe courts doe hee might aswell exact of them Indictments and afterward tryals by Iuries of twelue and yet Ecclesiasticall courts put none to answere but vpon moe then one of these or at least that which is equiualent at that lawe vnto these at the common lawe For first courts Ecclesiastical haue great vse of presentments and complaints or denunciations before the partie be called to answere as is shewed in the second part Then the defendant is not called neither but by due processe as by letters missiue or by attachment in Courtes of Commission by Primarie citation in Ordinarie Courtes which haue a correspondence vnto originall writs at the cōmon law So that of foure matters wherof some one or other of them is thereby required three of them be vsed in Ecclesiasticall proceedings against crymes His next proofe of this kinde cōming to be discussed is out of the 1 25.
statutes and reports some whereof were made not long after and so from time to time downeward till these late challenges doe make it very manifest It is prouided by Statute that 2 24. Edw. 1. stat de consultatione the Chancellor or chiefe Iusticer of the King vpon sight of the libell whereupon any prohibition is brought if the case cannot be redressed by any Writte out of the Chancerie but that the Spirituall Court ought to determine the matter shall write to the Iudges where the cause was first mooued to proceede the prohibition directed notwithstanding So that wherein soeuer by custome and liberties of Holy Church Iudges Ecclesiasticall were wont to proceede if no Writ lie thereupon in Chancerie they may still holde plea and take conusance Also in the conclusion of the Statute of Articuli 1 Artic. Cleri 9. Ed. 2. ca. 16. Cleri where sundry matters besides Testamentarie and Matrimoniall are mentioned it is thus enacted that the Prelates Clergie and their successours shall vse execute and practise for euermore the Iurisdiction of the Church in the premisses after the tenor of the answeres aforesaid without quarell inquieting or vexation of our heires or any of our Officers whatsoeuer they be Likewise it is by Parliament 2 15. Ed. 3. ca. 6. accorded that the Ministers of holy Church for money taken for redemption of corporall penance nor for proofe and account of Testaments or for trauaile taken about the same nor for solemnitie of marriage nor for other things touching the Iurisdiction of the Church shall not be empeached nor arrested nor driuen to make answere before the Kings Iustices nor other Ministers and thereupon shall haue Writs in the Chancerie when they will demaund Where we finde that other things besides Commutations matters Testamentarie and Matrimoniall doe belong to the Iurisdiction of the Church And to like effect after in the same Kings dayes 3 18. Edw. 3. pro Clero c 6. Commissions to enquire of Iudges of Holy Church whether they made iust Proces or excessiue in causes Testamentarie and others which notoriously pertaine to the conisance of Holy Church were from thencefoorth forbidden Therefore these Statutes being still in force if Iudges Ecclesiasticall shall be found but to deale as they ought in matters appertaining meerely to Iurisdiction Ecclesiasticall how the vexations impeachments driuings to answere and strange enquiries against them vsed in some places may be iustified by Lawe is worthie the consideration of those that are or shall be procurers therein In a statute of King 4 1. Ric. 2. ca 13. Richard the second mention is made that the pursuites for Tithes and for some other causes of right ought and of olde times were wont to pertaine to the Spirituall Court. In a Statute of King Henrie the eight it is 5 24. H. 8. c. 12. in the praeamb testified that both the authorities and Iurisdictions Spirituall and Temporall doe conioyne together in the due administration of Iustice the one to helpe the other And that the Lawes Temporall are for triall of propertie of landes and goods and for the conseruation of the people of this Realme in vnitie and peace without rauin and spoyle And in the bodie of the Statute are particularly named and reckoned for Ecclesiasticall besides causes Testamentarie and Matrimoniall these viz. diuorces right of tythes oblations and obuentions of which it is affirmed that the knowledge of these causes by the goodnesse of Princes of this Realme and by the Lawes and customes of the same appertaineth to the Spirituall Iurisdiction of this Realme And because by that Statute remedie was onely prouided that appellations in those aforesaide cases should not be prosecuted out of the Realme there being also many other causes of Iurisdiction Ecclesiasticall wherein a like remedie was conuenient to be had therefore the next yeere after it was enacted that 1 25. H. 8. c. 19. all maner of appeales of what nature or condition soeuer they bee or what cause or matter soeuer they concerne shall bee made and had by the parties grieued c. after such maner as is limitted for causes of appeales in matters Testamentarie Matrimoniall tythes c. in the said former statute mentioned In a Statute of King 2 1. Ed. 6. c. 2. Edward the 6. besides matters of voluntarie Iurisdiction Ecclesiasticall as collations presentations Institutions inductions letters of orders and dimissories are reckoned in generall as Ecclesiasticall all suites and causes of instance betwixt partie and partie and all causes of correction And in particular all causes of bastardie or bigamie and enquirie De Iure patronatus besides matters of Testament of administration or of accounts vpon them And 3 5. Eliz. c. 23. in one Statute in her Maiesties reigne are reckoned in particular as the more grieuous sort of matters of correction in Ecclesiasticall Courtes heresie refusing to haue a childe baptized or to receiue the holy Communion or to come to diuine seruice errour in matters of religion or doctrine now receiued incontinencie vsurie Simonie periurie in the ecclesiasticall Court and Idolatrie And therefore Iudges Ecclesiasticall may lawfully cite men in certaine other causes besides Testamentarie or Matrimoniall and ought not eonomine tantùm to be vexed vnquieted impeached driuen to answere or arrested CHAP. V. That suites for title of Benefices vpon Voidance or Spoliation likewise that suites for tythes Oblations Mortuaries c. for Pensions Procurations c. are of Ecclesiasticall Iurisdiction is prooued by statutes MAtter 's and suites for the title of Benefices ecclesiastical so they touch not the trial of the patronage do belong also to the knowledge and iurisdiction of a court ecclesiastical by the lawes of the Realme For conisance of voidāce of benefices 1 25. Ed. 3. pro Clero ca. 8. and the discussing thereof de iure doe belong to Iudges of holy Church and not to the Lay Iudge The Common 2 Treatise of constitu Prou. Legatine ca. 9. printed by Tho. Godfrey tempore H. 8 lawe doth mention fiue causes of auoidance of a benefice viz. death resignation depriuation creation and cession But whether it may be deemed void in law vpō any of the last foure meanes of auoidance is by the law ecclesiasticall determinable And by the bookes of the Common lawe 3 M. 22. Edw. 4. fol. 24. whether the Church be full or not full or the Clerke able or not able is triable in an ecclesiasticall Court Townesend For if an 4 Regist. in br orig pag. 55. b. inferiour Ordinary shal differ or refuse to admit or institute a Clerke presented and the Clerke bring his double Querele being of the nature in some sort of an appellatiō from the Archbishops court and the aduerse parte doe bring a prohibition the said Clerke may haue hereupō his consultation so that the court eccles by colour hereof deale not with the right of patronage of the benefice Likewise for spoliation of a
contradiction alwayes yeelded to be of ecclesiasticall conusance For being such matters as subiects haue a right vnto and yet no writ lying therefore as I take it at the Common law which 1 Stat. de Consultatione 24. Edw. 1. reason is the ground in statute for granting consultations and of leauing causes of that nature to the determination of an Ecclesiasticall court it will therefore follow that these also doe belong to iurisdiction ecclesiasticall But touching Clerkes wages called in the Prouinciall constitutions eleemosynae consuetae and in the Register conteined vnder the generall word of Largitiones charitatiuae I haue incidently spoken in this chapter afore There remaine yet some offences set out by me to be of Ecclesiasticall conusance which I finde not hitherto so auouched to be by any writer of the Common law yet are they so holden by the law Ecclesiasticall and by vsuall practice also without any prohibition or other impeachment The first 2 c. dura c. falsariorum de crimine falsi of them is forgerie in an ecclesiasticall mattter or the vsing and setting out of forged letters knowing them to be such as of letters testimonialles of orders taken of institution and such like Next is the burying in vsuall buriall for other Christians of 1 c. quicumque de haeret in 6. notorious Heretickes or of persons dying excommunicated and without repentance thereof Thirdly willing 2 c. si concubinae de sent excom and familiar cōuersing with persons whom they knowe to be excommunicated matori excommunicatione Fourthly 3 Bald. in ca. cōuentic de pace iureiurando firmanda frequenters of conuenticles which doth also come vnder schisme Lastly vnlawfull 4 Extrau detestandae de sepultura digging vp of corpses buried either vpon spite or in any other sinister respect whatsoeuer I haue hitherto stoode vpon matters wherein Ordinaries by Law may hold plea to shew thereby that they may cite in other causes then Testamentarie or Matrimoniall For deale in them or handle them they could not vnlesse the party which is pretended to offer the wrong or to be the offendour might be conuented which is by citation Therefore besides the authorities here and there in the former discourse falling in by other occasions which might sufficiently prooue that they may cite and compell men to come before them I will now briefly vse some further direct proofe to conuince that in other causes then those two men may be cited before Iudges Ecclesiasticall It appeareth by Articuli Cleri that for any matter Ecclesiasticall indefinitely men might be cited For vpon doubt mooued whether the Kings tenants were subiect thereto in such sort as others are it is decreed that 5 Artic. Cleri 9. Ed. 2. ca. 12. such as holde of the Kings tenure may bee cited before their Ordinaries and may bee excommunicate for their manifest contumacie and after 40. dayes may bee attached by the Kings Writte as others The 6 23. H. 8. c. 9. preamble of another statute proueth Citations euen of men wiues seruants and other the kings subiects for diffamations and tithes so they be vpon iust matter and in due order to be lawfull The body of that statute 7 Ibidem prouideth that no Citation be made out of the Dioecesse c. where the partie dwelleth but where some Spirituall Offence or Cause is committed or done c. so that à contrario sensu in any other offence or cause Spiritual as very many are afore proued to be any subiect may be cited within his or her Dioecesse and in those also there excepted may be cited out of the Dioecesse Likewise 8 Ibidem for Heresie the Archbishop of Canterbury may cite any of his Prouince if the immediate Ordinarie doe consent or do not his dutie In a statute 9 32. H. 8. cap. 7. made for tythes any man withholding them shall be conuented according to the Ecclesiasticall Lawes And there is also mentioned Compulsorie Processe and censures of the Church In a statute 1 1. Ed. 6. ca. 2. of King Edward the sixt though for the body thereof it be repealed yet thereby is testified that summons and citations be Processe Ecclesiasticall in all suites and causes of instance betwixt party and party and in all causes of correction Therefore seeing there is no colour that onely Ecclesiasticall persons shall fall out to be deteiners of such dueties Ecclesiasticall or that they onely will proue offenders in the crimes afore recited neither can all the Kings tenants nor yet men wiues seruants and other subiects be entended for the most part to be other then Lay persons we may safely conclude that not only in causes Testamentarie or Matrimoniall but in very many other afore noted any subiect whosoeuer may be cited before his Ordinarie or other competent Iudge Quoderat probandum as being the very contradictorie of the opinion that we are in handling CHAP. XI That Lay men may be cited and vrged to take othes in other causes then Testamentary or Matrimoniall THe thirde opinion nowe followeth which is that by the Lawes of the Realme no Layman ought to be summoned or cited to make or take as I thinke is meant an othe in any other cause then Testamentary or Matrimoniall This differeth from the former in two points The first is in the partie to be cited For the second opinion was that none whosoeuer including both Ecclesiasticall and Lay where as this is onely that no Lay man may be cited c. The second difference is in the end of the citation For here is said a lay man may not be cited to take an oth in any other cause thereby leauing as it might seeme the Ordinary at large to vrge persons ecclesiastical to take an othe in other causes also But all comes to one ende For if neither Lay nor Ecclesiasticall as the second opinion holdeth may be cited in any other cause then cannot Ecclesiasticall men be cited in any other cause to take an othe That which cannot be done at all cannot be done for any ende non entis nullae sunt qualitates so that both these runne to one point sauing that hereby is affirmed a citation may not be made to the intent a Lay man shall take an othe sauing in those two cases Now if this citing be meant of the partie defendant then doth it not impugne any proceeding ecclesiasticall in vse for the partie conuented is not cited ad subeundum iuramentum but ad respondendum tali in causa decimarum c. faciendum vlteriùs quod iuris fuerit rationis If it be meant of witnesses neither are they cited against their will not so much as in Testamentarie or Matrimoniall causes or any other to appeare till faith be made by the partie or by some other for him that they take them to be necessary witnesses for to testifie in that cause and that being required and their reasonable charges offered them
very Temporal causes themselues whereupon such faith or othe was confirmatorie If saith a Constitution 1 CoÌ„stit aeternae sanctio de poenisin Concilio apud Lambhith sub Bonifacio Anno 1260. tempore Henrici 3. Prouinciall of Canterbury perhaps our Lord the King in his Attachments prohibitions summons shall make mention not of tithes but of right of Patronage not of breach of faith or periurie but of chattels not of Sacrilege or disturbance of liberties Ecclesiasticall but of trespasses of his subiects the correction of which he affirmeth doth belong to him then let the aforesaid Prelats make known vnto him that they neither take conisance nor minde to doe touching Patronage chattels or other things belonging to his Courts but of tithes sinnes and other causes meere Spiritual belonging to their Office and Iurisdiction Whereby we first gather that the Common Law herein was not then resolutely agreed vpon in that they conceiued this allegation touching faith broken and periury would satisfie the King and his Courts And secondly that the Kings Writs of prohibition and Attachement in this behalfe were then awarded but for faith and othes made concerning goods and chattels because by that pretence the conisance of chattels was drawen into Ecclesiasticall Courtes I do finde in an old written parchment booke of statutes reaching downe but to H. 5. death many matters of marke conteined amongs the statutes As among others there be regiae consuetudines apud Claringdon promulgatae which as is there rehearsed were by K. Henry the second propounded in Parliament vnto Thomas Becket then Archbishop of Canterbury long before that Prouinciall constitution Most of which he did condemne by his censure as preiudiciall to the liberties of the Church And this is said there to haue bene the originall cause first of his banishment and afteâ— of his death But some of those customes Becket did tolerate whereof this is one seruing to our present purpose viz. Placita de debitis quae fide interposita debentur vel absque interpositione fidei sint in curia regis Hoc tolerauit At the ende of that Treatise it is saide that foure yeeres after Beckets death viz. 1174 of Christ the King repenting himselfe did together with the Prelates and greatmen of his kingdome abrogate and condemne those euill and vniust customes appointing onely those that were good to be thencefoorth obserued Yet saith he some of those that were so abrogated by the king and condemned by the Church are still obserued in the kingdome If this be with the kings knowledge and allowance let the King looke to it for God knoweth it The chiefe cause why I note it is this that it was euen then thought a Custome of the Realme and by Becket himselfe allowable and tolerable that Pleas of debts though faith or othe were giuen for their payment belonged to the Kings temporall Courtes Next is that hence may be gathered how the Recognitions and othes forbidden to be made in Courts Ecclesiasticall by the Writs which we here dispute of are to be vnderstood of such of them onely as concerne debts or chattels sauing that in causes Testamentary and Matrimoniall onely they may be there made and acknowledged albeit they concerne debts and chattels It may also appeare euidently that the Recognitions forbidden to be made in Courts Ecclesiasticall in any cause sauing of Testament or Matrimony ought to be vnderstoode of Recognitions and othes about debts and chattels For lightly in euery place where these two matters of Testament and matrimony are spoken of there also debts and chattels are spoken of to this effect that in these two cases Pleas of debts and chattels may be handled in Courts Ecclesiasticall but in none other Bracton who wrote before this Writte was framed saith 1 Bracton lib. 5. cap. 2. thus Si Clericus petat versus Clericum vel Laicum debitum quod non sit de Testamento vel Matrimonio sequi debet forum Laicale And 1 Ibidem againe a litle after Non pertinet ad regem cognoscere de catallis quae sunt de Testamento vel Matrimonio Likewise in a precedent of a prohibition he 2 Ibidem lib. 5. cap. 3. cap. 10. 13. vseth this addition Nec teneatis placitum in curia Christianitatis de catallis vel debitis quae non sunt ex Testamento vel Matrimonio In the 3 Prohib Consul nu 3. 7. booke of Entrees the like is often found as Attachiatus fuit ad respondendum tam Domino regiquà m N. de placito quare secutus est placitum versus eum in curiae Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And in a 4 Consultat 2. copie of Consultation there callidè machinans impedire suggerénsque in Cancellaria nostra ipsum tractum fuisse in placitum coram vobis in curia Christianitatis de catallâ—…s debitis quae non erant de Testamento vel Matrimonio c. Yea and in 5 Register Ibidem tit Prohibitiones the Register it is set downe more plaine a great deale in a copie at large of a Prohibition vpon the same point and with the same causes excepted being the next following to that which wee principally doe here treate of For the very worde of Recognitio before an Ordinary is there vsed and applied to a debt or contract touching goods and chattels Cum recognitiones debitorum quae non sunt de Testamento vel Matrimonio ad nos coronam dignitatem nostram non ad alios pertineant in regno nostro executiones earundem per nos ministros nostros non per alios fieri debeant ac iam ex querela I. acceperimus quod vos ipsum I. ad viginte solidos quos coram vobis nuper in curia Christianitatis recognouit se debere A. eidem A. soluendos intra certum tempus iam praeteritum monuistis in ipsum I. pro eo quod praedictos viginti solidos intra tempus praedictum ad monitionem vestram soluere recusauit quanquam huiusmodi recognitio Testamentum vel Matrimonium non tangat c. excommunicationis sententiam fulminastis c. vobis prohibemus c. And the very like words to the same effect and with like exceptions are there vsed in the fiue precedents of Prohibitions next in order following And in the olde written Register afore spoken of there be many copies of Prohibitions set downe in all which whensoeuer that exception of causes Testamentary and Matrimonial is mentioned that clause de catallis debitis quae non sunt de testam c commeth in with all In the printed Register among the Writs Iudicial we haue these 1 Regist. in Br. Iudic. fol. 38. a. words Quare secuti sunt placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And againe 2 Ibid. fol. 39. a.
againe to a pretie kind of pacification hold as wel as long as it shall But there is another partie also that perhaps will venture to rip vp agayne the seames of this greene peace if hee may not in some sort bee satisfied For there came vnto mine handes a good while after the former Treatise certaine briefe Notes without discourse that are deliuered abroad into many hands by writing being commended to be gathered by a man of great reading and iudgement in Diuinitie I awe and in what not It beareth this title Notes to prooue the proceeding ex Officio and the oath and subscription which are now required to be against the word of God the ancient Fathers and Canons of the Church and the lawes liberties and customes of the realme of England the proceeding of Office and the oath required though hee telleth not how he conceiues it to bee required as the Treatiser did doe both fall into this disputation which we haue in hand As for the subscription vpon other occasion that may hereafter elsewhere be debated The seuerall points which in respect of the two former hee handleth are by himselfe distributed and sorted into these seuerall heads viz. First testimonies out of ancient Fathers that do mislike the proceeding ex Officio and oath now vsed Secondly English Martyrs that haue refused and misliked the oath now vsed Thirdly the proceeding against heretikes in Englād without exacting an oath c Fourthlie the Canon lawe teaching Inquisition and proceeding ex officio by oath Fiftly another order of proceeding but yet in causa fidei and not otherwise Sixtlie the bishops proceedings contrarie Seuenthly the lawes of England Eightlie the maner of the reuocation of the proceeding ex officio in king Henry the 8. time Ninthly the maner of debating of that cause in those dayes 10. Sir Thomas Mores reasons for maintenance of proceeding ex Officio the oath with summarie answeres to them 11. And lastly Inconueniences which come by the vse ex Officio contrary to the common lawe For proofe of some of which especially the first he is so plentifull in quotation onely of places without rehearsing their sayings out of the ancient Fathers counsels c. that for mine owne part I must confesse that vpon the first view of their names in his moster booke I was greatly astonished least I had too resolutelie defended a matter against such an armie of ancient Fathers and as it were against the generall consent of the olde Primitiue Church from which I meane not God willing casilic or rashlie to swarue But when I had approched neerer I well discerned this my feare to be all in vayne in that they had neither banner displaied nor weapons bent against this cause but rather against the faces of the aduersaries thereof as may plainelie appeare in the seuerall opportune places of this simple Discourse ensuing I may well resemble this dealing of the Note-gatherer vnto yong setters vp in London as Apothecaries and such like that be not at first well stored with stuffe who to furnish vp their shoppes vnto the best shewe are woont oftentimes to embellish them with good numbers of painted gallie pots boxes and glasses intituled on the outside euen with golden letters sometimes of such precious Waters Oyles Simples and other drugges of medicine which they neuer smelt of because such neuer came within them And perhaps I should saue him from suspicion of a greater fault that is eyther want of iudgement or of wilfull peruerting of the ancient Fathers if I should freelie deliuer my conceite in this behalfe which is that his leisure serued him not to looke what was indeede contained in those places which there hee quoteth but that hee did set them downe vpon trust out of the Pies or Indices of the sayd seuerall bookes wheresoeuer the bare wordes of Inquisition of Accusing of Oath or of Swearing was found For I dare auowe that hee which shal read thē in the Authors themselues will iudge that many of them were gathered together in condemnatiō of taking any oath at all an errour holden by the Anabaptists albeit being truely vnderstood according to the circumstances the places serue neither the one turne nor the other rather then that by any colour they may be wrested to speake either against oathes ministred in causes criminall or against proceeding by Iudges of Office Let thus much therefore if it be not too much suffice to haue deliuered in some generalitie touching the said Treatise and Notes both which are vndertaken for the whole substance of them to be here and there answered in this simple discourse ensuing THE CONTENTS OF the seuerall Chapters of the First part 1 THat a seuerall royall assent is not required to the executing of euery particular Canon 2 The particular distribution of all other causes to be proued to be of Ecclesiasticall conusance besides Testamentarie or Matrimoniall with a discourse of bishops certificates against persons excommunicated being a speciall point of their voluntarie iurisdiction where there is no partie which prosecuteth 3 That matters in the former chapter adioyned to Testamentarie Matrimoniall causes though properly they be not of Testament or Matrimony are of Ecclesiasticall conusance and how farre 4 Generall proofs out of statutes that sundry other causes besides Testamentarie or Matrimoniall are of Ecclesiasticall conusance 5 That suites for title of Benefices vpon voidance or spoliation likewise that suites for tithes oblations mortuaries c. for pensions procurations c. are of Ecclesiasticall iurisdiction is prooued by statutes especially 6 That suites for right of tithes belong to the Ecclesiasticall iurisdiction and how farre is shewed out of the books and reports of the Common law so of places of buriall and Churchyardes and of pensions mortuaries oblations c. 7 Of right to haue a Curate and of contributions to reparations and to other things required in Churches 8 Proofes in generall that sundry crimes and offences are punishable by Ecclesiasticall iurisdiction and namely idolatrie heresie periurie or laesio fidei and how farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments 9 That Simony Vsury defamation or slander beating of a Clerke sacriledge brawling or fighting in Church or Churchyarde dilapidations or waste of an Ecclesiasticall liuing and all incontinency are punishable by ecclesiasticall authority and how farre 10 That the matters and crimes here reckoned be also of ecclesiasticall iurisdiction and proofes that any subiects lay or other may be cited in any cause ecclesiasticall 11 That lay men may be cited and vrged to take oathes in other causes then Testamentarie or Matrimoniall 12 The grounds of the two next former opinions examined and confuted 13 That iudgement of heresie still remaineth at the Common law in iudges ecclesiasticall and that the prouiso touching heresie in the statute 1. Eliz. cap. 1. is onely spoken of ecclesiasticall commissioners
5 44. Ed. 3. 33. benefice a man is to be sued in Court Christian. But this lieth not but where a Clerke is in as an incumbent for if he be in as an vsurper of the Church being full or as a trespasser there lieth action of trespasse and not spoliation But if two 6 38. H. 6. 19. incumbents be in and the one claimeth by one patrone and the other by another there lieth no spoliation but where both claime to be in by one patrone or by meanes of one patrone then lieth action of spoliation and not otherwise For where the right of Aduouson may come in questiō there lieth no spoliation for that cannot goe to a Spirituall Court And againe a litle after 7 38. H. 6. 20. Spoliation and debate vpon an appropriation shal be determined in the Spirituall Court Touching tithes where they are to be sued it appeareth by actes of Parliament thus The 1 13. Ed. 1. ca. 5. Westm. 2. plea for tithes shall passe in the court Christian as farre foorth as it is derained in the Kings court In the next Kings 2 9. Ed. 2. ca. 1. Artic. Cleri dayes thus In tithes oblations obuentions mortuaries sithence they are proposed vnder these names the Kings prohibition shal holde no place 3 Ibidem cap. 5. And againe the Kings prohibition shal not lie for tithes of a Mill newly erected Likewise in the dayes of K. Richard the 2. it is thus 4 1. Ric. 2. ca. 13. conteined in a statute The Clergie complaine for that the people of holy Church pursuing in the spiritual court for their tithes and their other causes which of right ought and of olde times were woont to perteine to the spirituall court and that the Iudges of holy Church hauing conisance in such causes and other persons thereof medling according to the lawe be malitiously endited c. and by secular power oppressed and be forced by oathes obligations and many vndue meanes compelled to ceasse vtterly against the liberties franchises of holy Church It is enacted that such obligations made by violence should be voide and the enditors of malice when the enditees be acquit should incurre the paine of those that procure false appeales c. Likewise the preamble of a 5 23. H. 8. ca. 9. statute in K. Hen. the 8. dayes doeth argue that matters of tithes are to be heard and determined by Iudges Ecclesiasticall The same is also proued by that where in 6 24. H. 8. ca. 12. another statute it is said thus Inconueniences haue arisen by reason of appeales out of the Realme to the See of Rome in causes testamentarie causes of matrimonie and diuorces right of tithes oblations and obuentions And in 7 27. H. 8. ca. 20. the preamble of another statute Deteiners of tithes pursuing such their detestable enormities and iniuries haue attempted in late time past to disobey contemne and despise the processe lawes and decrees of the ecclesiasticall courtes of this Realme in more temerous and large manner then before this time hath bin seene And therefore it 8 Ibidem was then enacted that for subtraction of tithes offerings and other dueties of holy Church the partie grieued may by due processe of the kings ecclesiasticall lawes of the Church of England conuent the person offending before the Ordinarie and also compell him to yeelde their saide duties And likewise for any his contempt disobedience or other misdemeanor vpon complaint to any of the Counsell or to two Iustices of the peace to haue him committed vntill he shall be bound to giue due obedience to the processe proceedings decrees and sentences of the ecclesiasticall court of this Realme And 1 32 H. 8. ca. 7. afterward by another statute of the same King it is enacted that for denying to set out tithes for deteining withholding or refusing to paye tithes or offerings Ordinaries may proceede according to the course and processe of the ecclesiasticall lawes And in the 2 Ibidem preamble thereof it is directly affirmed that by order of the common lawes of this Realme a man cannot haue any due remedie against deteiners of tithes And the 3 2. Ed. 6. ca. 13. like also appeareth by the statute of tithes made in K. Edwardes reigne That which is afore affirmed and determined concerning tithes oblations obuentions and mortuaries may likewise be said of pensions portions corrodies procurations indemnities and other such dueties ecclesiasticall For it is enacted that 4 34. 35. H. 8. ca. 19. for these denied ecclesiasticall persons themselues may make such processe against the person denying or against the Church charged as heretofore they haue lawfully done and as by and according to the lawes and statutes of the Realme they nowe lawfully may doe And the person conuict according to the ecclesiasticall lawes shall pay to the plaintife the things recouered and his costes CHAP. VI. That suites forright of tithes belong to the ecclesiastical Iurisdiction and how farre is shewed out of the bookes and reportes of the cōmon lawe so of places of buriall and Church-yardes and of Pensions Mortuaries Oblations c. THe reportes of iudgements and opinions of the Courtes at the Common lawe conteyned in the bookes of termes and yeeres called booke-cases and other treatises of that lawe are no lesse plaine pregnant in this matter An 5 M. 44. Edw. 3. fol. 32. attachement vpon a prohibition was sued against a plaintife in a Court Ecclesiasticall surmising that he did sue there for hay and money which touched neither matrimony nor testament but vpon shewing the libel which proued it was for tithes oblations a consultation was granted for the spiritual court to proceede And 6 M. 22. Ed. 4. fol. 24. passim alibi where the right of tithes is in question it is triable in the Court spiritual Likewise 7 38. H. 6. fol. 21. so soone as it appeareth that the right of tithes comes in debate the Lay court shal cease shal be out of iurisdiction quod fuit concessum The same is testified in the booke of Assises 1 22. Assis. fol. 75. For if the Kings patentee of tythes renewing in a Forrest that is in no Parish in which case the tythes doe belong to the King haue cause to sue any that ought to yeelde tythes and ought to seuer them from the nine partes such suite shall goe to the spirituall Court In the booke of Entrees in the precedent of a 2 Prohibition consultation 2. consultation graunted it is thus said In causis de decimis de testamento velmatrimonio quando sub eo nomine proponuntur prohibitioni Regiae non est locus And so 3 Bracton lib. 5. cap. 2. Bracton saith Non pertinet ad Iudicem secularem cognoscere de ijs quae sunt spiritualibus annexa sicut de decimis alijs Ecclesiae prouentibus 4 Bracton lib. 5. cap. 16. And againe afterward Mutatur
drawe it to the Common lawe it should seeme by all reason of his owne nature to be a matter belonging to the conusance of a court ecclesiasticall accordingly as alwayes without impeachment it hath bin vsed Yet I finde in the bookes of Common lawe that 3 22. H. 6. 32. an action of the case was mainteinable for not saying diuine seruice albeit it was there confessed to be a spirituall matter What the circumstances and cause thereof was that it was so ruled in that case Quaere It appeareth by the 4 Reg. pag. 56. a. Register that a prohibition being brought vpon a suite in court ecclesiasticall for withholding a Chauntery a consultation was after graunted whereby is affirmed that pro subtractione Cantariae debita punitione pro huiusmodi subtractione the suite belongeth to a court ecclesiasticall and the like therefore must needes be thought of a Chaplaine or Curate not found to say diuine seruice where it ought to be either by composition or by prescription But that parishioners ought to be contributories and may be cited in a cause of contribution towards the reparations of the body of the Church termed Nauis ecclesiae and to the charges of buying and furnishing other vtensiles ornaments and bookes required by lawe to be bought of the common charge doth appeare partly by the Register and partly by Fitzherbert in his noua natura breuium who doeth gather it thence For if saith he a 1 Fitzh no. na br tit Consult fol. 50. Bishop doe cite any of the parishioners of a Church to be contributorie to the reparations of the parish Church or of any Chappell annexed to it if the partie sue a prohibition directed to the Bishop surmising that he is impleaded touching lay fee in court Christian the Bishop shall haue a consultation vpon this matter shewed in the Chancerie on his behalfe And partly also by the Iniunctions which were set out by the Queenes Maiestie in the first yeere of her reigne and are vnder the great seale of England for better record of the matter her highnesse being thereunto authorised by acte of Parliament For in 2 Iniunctions published 1559. these are conteined sundry vtensiles ornaments bookes and other things that by the common cost of euery Parish shal be prouided and from time to time supplied and whether they be wanting or no is to be enquired by ecclesiastical Iudges and the obseruation of the Iniunctions is by them to be vrged against those that shall infringe any of them by processes and censures ecclesiasticall according to the course of that lawe And herein the Iniunctions followe but the Cōmon law For 3 Of the liberties of the Clergie by the lawes of the Realme if a terre-tenant holding land that hath vsually paid for such tenement a pound of waxe or such like vnto the Church doe withhold it the Church-wardens may sue him for it in a court eccles Also 4 Ibidem if a man that withholdeth Church goods doe by his last will enioyne his executours to make deliuerance any of the Parish may sue the executours for them in court ecclesiasticall For proceeding ecclesiastically against refusers to contribute vnto the reparations of the body of the Church there remaineth a iudgement in a consultation 5 Reg. pag. 45. 2. recorded in the Register to this effect viz. vobis significamus quod super reparatione emendatione defectuum corporis ecclesiae iuxta consuetudinem approbatam facienda procedere poteritis ea facere quae ad forum ecclesiasticum noueritis pertinere dicta prohibitione non obstante And by reason of defectes in reparations of a Church money it selfe may lawfully be sued for in a court ecclesiastical as 6 Reg. pag. 48. 2. appeareth by another consultatiō in the Register And so is it also prouided by statute in this behalfe amongst other things viz. 7 Circumspectè agatis 13. Ed. 1. Prelates may punish for leauing Churchyards vnclosed or for that the Church is vncouered or not conuentently decked in which cases none other penance can be enioyned but pecuniarie CHAP. VIII Proofes in generall that sundry crimes and offences are punishable by ecclesiasticall Iurisdiction and namely idolatrie heresie periurie or laesio fidei and howe farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments LAstly doe followe the testimonies of the lawes of the Realme for proofe that many crimes also and offences are punishable by iurisdiction ecclesiasticall and first in generall then in particular for sundry of them The King writ thus to his Iudges 1 Statut. Circumspectè agatis 13. E. 1. vse your selues circumspectly in all matters concerning the Bishop of Norwich his Clergie not punishing them if they holde plea in court Christian of such things as be meerely spirituall that is to wit of penance enioyned for mortall sinne c. In hospitals 2 2. H. 5. ca 1. that be of any others foundation then the Kings it is enacted that Ordinaries shall enquire of the foundation erection and gouernance of them and of all other matters necessary in that behalfe and thereupon make thereof correction and reformation after the lawes of holy Church as to them belongeth In the statute of Citation it is permitted that a man may 3 23. H. 8. ca. 9. be cited out of the Dioeces where he dwelleth when some spirituall offence or cause is committed and done or omitted neglected or foreslowed to be done by some hauing spirituall iurisdiction In a statute of K. Edward the 6. 4 1. Ed. 6. cap. 2. Causes of correction be reckoned as ecclesiasticall which statute though it be repealed for the principall purport there of being touching Ordinaries seales and names not to be vsed any more in their citations and processes yet it bringeth sufficient euidence that sundry matters of correction be of ecclesiasticall iurisdiction And so Bracton testifieth that it was vsed and holden in his time for he saith In 5 Bracton lib. 5. cap. 2. causis spiritualibus vel spiritualitati annexis vt si propeccato vel transgressione fuerit poenitentia iniungenda iudex ecclesiasticus habet cognitionem quia non pertinet ad regem iniungere poenitentias nec ad iudicem Secularem The sundry consultations set downe in the Register do shewe that whē the proceeding is ad correctionem animae for some sinne not punishable in the Temporall Court the conisance is Ecclesiasticall One 1 Regist. 45. a. b. example shall suffice viz. Nolumus cognitionem ecclesiasticam in ijs quae ad forum ecclesiae maximè ad correctionem animae pertinent contra iustitiam impedire But to descend to more particulars and first concerning those which are contrary Pietati in Deum That idolatrie is punishable by Iurisdiction ecclesiasticall appeareth by the statute 2 5. Eliz. cap. 23. De excommunicato capiendo afore alleaged and touching Heresie
assises and the other booke case of 34. H. 6. both which admit a party to sue in the Court ecclesiasticall do seeme to me only therefore to reiect a partie and to require proceeding ex officio Iudicis because it was presumed that a party would not prosecute to haue the sinne alone punished but rather for satisfaction of the thing promised to him Yet this in truth may be otherwise by the law ecclesiasticall So that vpon all that which hath herein bin last spoken it might probably seeme to some that punishment of periury or breach of faith euen arising vpon a temporall cause should be still by the Common law of ecclesiasticall conisance so that penance for the sinne be but enioyned and no temporall amends required which doubt is to be referred to the reuerend Iudges resolutions That disturbance of diuine seruice is also punishable by iurisdiction ecclesiasticall the statute thereof made in the time 3 1. Mar. cap. 3. of Q. Marie doth prooue for though it do prouide punishment temporall therefore yet it reserueth the iurisdiction that Ordinaries had for punishment thereof by lawes ecclesiasticall Not to frequent or come to diuine seruice at times appointed is declared to be subiect to proceeding and censures ecclesiasticall aswell as to other punishments by the statute 4 1. Eliz. cap. 2. for Vniformitie of Common prayer and so is both that and neglect of the Sacraments by the statute De excommunicato capiendo heeretofore often alleged prooued to be of Ecclesiasticall conusance Long afore that statute vpon a prohibition brought a consultation 1 Reg. pag. 50. a. b. was granted whereby the Ordinaries proceeding ex officio against one that refused to receiue the Communion is allowed and warranted And so doth the litle 2 Goodall of the liberties of the Clergie Treatise of the liberties of the Clergie report this offence to be of Ecclesiasticall conusance Thus much touching offences ecclesiasticall being referred to impietie towards God CHAP. IX That simony vsury defamation or slander beating of a Clerke sacrilege brauling or fighting in Church or Churchyard dilapidations or waste of an Ecclesiasticall liuing and all incontinencie are punishable by Ecclesiasticall authority and how farre AMongst such crimes as be offences against iustice I do place simony first as participating also not a litle with the former sort yet rightly sorted hither because it is as a buying and selling of such things as be not in trueth res mancipi as the olde Romanes spake things lying not in commerce betweene men to be bought and solde This fault the said 3 Ibid. in fine statute De excommunicato capiendo sheweth to be punishable by iurisdiction ecclesiasticall That vsurie is likewise it doth appeare by authoritie of diuers Parliaments The king and his 4 15. E. 3. cap. 5. shall haue the conusance of the vsurers dead and the Ordinaries of holy church shall haue the conusance of vsurers on liue as to them apperteineth to make compulsion by the censures of holy church for the sinne and to make restitution of the vsuries taken against the lawes of holy church By annother later act made against vsurie 5 11. H. 7. cap 8. there are reserued to the spiritnall iurisdiction their lawfull punishments in euery cause of vsury And so is it expresly also mentioned in the aforenamed statute De excommunicato capiendo but this iurisdiction is since somewhat restreined because 6 13 Eliz. cap. 8. vsurie can not now therby be punished nor corrected except it reach aboue the rate of tenne in the hundred by yere By a consultation in the 7 Reg. pag 49. b. Register which was granted in allowance of proceeding against one for his vsury it is thus sayd in this behalfe Quta in articulis Cleri continetur quòd si Praelati imponant alicui poenitentiam pro peccato prohibitioni nostrae non est locus vobis significamus quòd ad correctionem animae praefati S. in hac parte viz. pro vsura dum tamen nihil aliud attentetis quod cedat in laesionem dignitatis nostrae in curia Christianitatis procedere poteritis prohibitione nostra non obstante But this fault sinne of Vsurie is mixti fori that is to say in some respect is of temporall in other regard of eccllesiasticall conisance not only by the statutes of the Realme as you haue heard but also euen by the law ciuill albeit in a diuers sort For in countreyes where that law hath place if it be 1 D D. in l. Titia ff soluto matrimonio called in question whether a contract be vsurarious or not the court ecclesiasticall doth determine this but for to pronounce such a contract void and to execute that sentence belongeth to a temporall court For cause of defamation it is 2 Stat. circumsp agatis 13. Ed. 1. recorded by an olde statute that it is alreadie granted it shall be tried in a Spirituall court And againe In 3 Artic. cleri 9. Ed. 2. cap. 4. defamation prelates shall correct by penance corporall the kings prohibition notwithstanding but if the offender will redeeme the penance with money the prelate may freely receiue the money though the kings prohibition be shewed By the preamble also of the statute for 4 23. H. 8. cap. 9. citations it is plainely argued that defamations belong to the comsance of iurisdiction ecclesiasticall so they be duely and according to law prosecuted Also by the bookes of Common law it appeareth throughout the arguments made in the great case of prohibition in the time of 5 T. 12. H. 7. fol. 22. Henry the seuenth that the suite for defamation belongeth to ecclesiasticall iurisdiction for there aswell by those Sergeants that stood against the consultation as the others and by the Iudges also that granted the consultation the originall cause being defamation it is yeelded that the punishment of slander or defamation is belonging to the Spirituall law Whereas there is a Prouinciall constitution that decreeth a slanderer or defamer of another to be ipso facto excommunicate this is allowed by 6 Reg. pag. 49. a consultation in the Register vnto a court ecclesiasticall And it is there added to this effect viz. Si in causa diffamationis ad poenam canonicam imponendam agatur tunc vlterius licitè facere poteritis quod ad forum ecclesiae noueritis pertinere prohibitione nostra non obstante One that sued 1 Reg. pag. 51. 2. another in a cause of diffamation in court ecclesiasticall was there condemned in expenses to the defendant who was absolued for that the plaintife failed in his proofes The plaintife to hinder the execution of the sentence and to escape without expenses procured a prohibition Yet vpon debating of the matter a Consultation was herein also awarded So that wee see both the Principall and the Accessarie cause to be of ecclesiasticall conisance If saieth 2 Liberties of the Clergie by the lawes of
the Realme the Treatise of the Liberties of the Clergie a man defame or publish one for false an adulterer or vsurer he may be sued in court ecclesiasticall And another Treatise published also in king Henry the 8. time by a common Lawyer saieth thus 3 That the bishop of Rome c. cap. 3. printed by Berthelet In some cases of diffamation and slander the kings courts and in some cases the Clergie haue holden plea thereof Therefore I doe the more maruell the lawe being so plaine at the Note that is set 4 Nota in Reg. pag. 54. b. downe in the Register touching this matter viz. All the Iustices are against a Consultation in a case of diffamation which is spoken indistinctly and indefinitely and therefore more generally perhaps touching any diffamation what so euer then the Iustices meant or then by Statutes and lawe may be warranted It may be that a booke case of Henry the 4. gaue occasion of this mistaking being not throughly weied for at first sight it seemeth to sound as if no diffamation at all were of ecclesiasticall conisance And so 5 Tit. Consultation nu a. alibi euen Brooke in his Abridgement seemeth to take it But the trueth is by that case is onely meant that such diffamation as ariseth vpon a Temporall matter is not of ecclesiasticall conisance which is the first exception of the generall rule set downe in the Statute of Circumspectè agatis where is sayd that diffamation shal be tried in the Spirituall court And that the said case is to be restrained to such diffamation onely will appeare most plamlie to him that considereth the scope of 6 M. 2. H. 4. fol. 15. Hankefords argument The Vicar of Saltashe had giuen an othe before the Popes Collecter in confirmation of an obligation by him made The Deane of Windsor sued the Vicar before the Collecter prolaesione fidei the Vicar purchased a prohibition Hankeford to maintaine this prohibition argueth that the periurie couldnot bee sued in an ecclesiasticall court for that it arose vpon a temporall cause Adding for proofe of his saying that himselfe had a matter vpon the like reason ruled for him and against the Archbishop of Canterbury H. 14. Edw. 3. par attachment sur Prohibition c. de ceo que il suist en court Christian pur diffamation The matter then was not ruled against the Archbishop simply for suing diffamation there but of such a kinde of diffamation For else this would not haue fitted the purpose of Hankefords argument because hee hauing to prooue that laesio fidei arising vpon a Temporall cause might not bee sued in an ecclesiasticall court could not make any colour of that assertion by alleaging of a iudgement that no diffamation at all might bee prosecuted there for that is not the like reason And therefore as that laesio fidei arose on a Temporall cause so did the diffamation there spoken of for which a prohibition did lie without Consultation That diffamatorie words touching a temporall cause may not be sued in court ecclesiasticall we haue also a prohibition 1 Regist. fol. 42. b in the Register without any Consultation granted For whereas one gaue witnesse in an Inquisition made by the king about his exchange in Yorke the partie touched sued the witnesse for diffaming him in a court ecclesiasticall whereupon the witnesse brought a Prohibition by reason the matter was a Temporall cause By Statute likewise it is 2 Ed. 3. c. 11. enacted that a Prohibition shall lie if a man be sued in court ecclesiasticall for diffamation in that hee endited the other I finde also another cause why some diffamation may not be sued in a court Ecclesiasticall and that is when action therefore lieth at the Common lawe As 3 P. 18. Ed. 4. fol. 6. where a man brought Action of trespasse for goods taken away the defendant hereupon sued him in a spirituall Court for diffamation But Hussey the kings Atturney in behalfe of the Plaintife desired a Prohibition because the plea in Court Christian was mooued the suite hanging there and had it graunted Quod nota So if I be robbed and speake of him that robbed mee before others so that hee sueth mee in a spirituall court for diffamation there lieth a Prohibition because I may haue an Action at the Common lawe videlicet mine appeale of the robberie There be also in the booke of 1 Booke of Entries tit Prohibition Entries precedents of Prohibitions granted agaynst those that for diffamation prosecuted such in court ecclesiasticall as sued them in temporall courtes for maime and for forging of euidences So that wee may conclude this point that out of the cases excepted the rule of Circumspecte agatis and Articuli Cleri for diffamation to bee of ecclesiasticall conisance hath place euen by allowance of the common lawe There resteth yet one point belonging to this place fit to be cleared There is alleaged for other purposes by the Note-gatherer a little olde printed Treatise Concerning the power of the Clergie and lawes of the Realme In which the Statute of Circumspectè agatis both here and elsewhere by me alleaged is auouched to bee no Statute but a bare constitution The words 2 Of the power of the Clergie and lawes of the realme cap. 8. bee these Wee neuer sawe any proofe that Circumspectè agatis was a Statute or taken out of the kings answeres and there bee in the sayd treatise diuers things that bee directlie agaynst the lawes of the Realme as it is in this point That Prelates for fornication auouterie and such other may sometime assigne bodilie paine and sometime pecuniarie payne And the lawe is that Prelates shall neuer assigne pecuniarie payne for correction of sinne but onely at the desire of the partie And also it is recited in the sayd Treatise that if the Prelate of any Church or his Aduocate aske of the person a pension that the suite should bee in the Spirituall Courte and the lawe of the Realme is euen to the contrarie And we thinke that if it had bene a Statute that the lawe should neuer haue bene vsed therein so directlie agaynst the Statute as it hath bene vsed And in the nineteenth yeere of King Edward the third in a Writte of Annuitie brought in the Kings Court against the sayd Article of the sayd Treatise it is sayd that the sayd Treatise is no Statute but named so to bee by the Prelates And also the sayde Writte of Annuitie is iudged to bee maintenable in the Kings Courte and that is directlie agaynst the Treatise of Circumspectè agatis wherefore wee thinke it is no Statute The verie like wordes are also vsed I thinke all by one Author in 1 Ibid. cap. 8. another Treatise of constitutions Prouinciall and Legatine Nowe in that to prooue it no Statute he saieth There bee in it diuers things directly against the lawes of the realme seemeth to me a strange reason As
may belong to a temporall Iudge at least touching the corporall penaltie but not concerning the censures of the Church that ought to bee laied vpon such 7 15. 6. Ed. 6. cap. 4. Concerning fighting quarelling and brawling in Church or Churchyard the Ordinarie in some degree is to punish it by suspension ab ingressu ecclesiae in a laie man and from ministration in his office in a Clerke and in another degree in either sorte Laie or Ecclesiasticall by denouncing the partie offending to bee excommunicate ipso facto by vertue of that Statute Dilapidations likewise waste made vpō a liuing Ecclesiasticall are determinable 8 13. Eliz. ca. 10. punishable by Ordinaries For the Statute made in her Maiesties time for remedy in Dilapidations prouideth that as afore by the lawes Ecclesiasticall iust actions and remedies might bee had against executors and administrators of deceased incumbents so they should by vertue thereof bee vsed against alienees and donees of the goods of such incumbents The Treatise of the Clergies liberties saieth that for 1 Liberties of the Clergie by the lawes of the Realme Dilapidation the parson may sue in courte Ecclesiasticall the executors of his predecessor So at the 2 M. 2. H. 4. sol 9. Common lawe Tirwhit did hold that if an ecclesiasticall person make waste of his benefice he shal be deposed as a Dilapidator of his Church But deposition cannot be iustified but by authoritie ecclesiasticall Those crimes which I sayd were opposite to sobrietie in a mans owne selfe are also punishable by ecclesiasticall authoritie 3 Stat. Circumspectè agatis 13. Ed. 1. For the Clergie are not to be punished for holding plea in court Christian of such things as bee meerelie spirituall that is to wit of penance enioyned for deadlie sinne as fornication adulterie and such like In which words of such like I doubt not but other incontinencies as Incest Stuprum and Polygamie be also vnderstood being all more grieuous then fornication and two of them more execrable then adulterie And so doeth Lyndwood interprete the word huiusmodi such like that 4 Lyndw. V. huiusmodi c. Circumspectè de foro competenti is to say saieth hee Incest whoredome and others which be contained vnder the sinne of Lecherie And to these are to bee added other crimes which also are to bee handled and punished in a court ecclesiasticall as namelie Sacrilege Usurie Heresie Simonie and Periurie to 5 c. Ecce 23. q. 4. which an old Canon also addeth such offenders as be Inspectatores nugarum and consulters of Starre-gazers Phanaticall persons Wisardes Fortune-tellers Drunkards and Idolaters And to make it more plaine that all vnlawfull companie of man and woman not being capitall by the lawes of the Realme is subiect to the Iurisdiction ecclesiasticall the 6 5. Eliz. ca. 23. generall worde of Incontinencie which comprehendeth all is vsed in the statute De excommunicato capiendo In the 7 Reg. sol 45. a. 57. b. Register there bee two precedents of Consultations granted in causes of Fornication agaynst which in both the Iudge also proceeded of office And the treatise of Clergie liberties saieth 1 Gooddall of Clergie Liberties Though a bishop may not visite the Kings free Chappell yet he may cite and punish the Chaplaine thereof for keeping a concubine Heare also what another olde Treatise written by a common Lawyer in those times 2 An answere to a letter cap. 1. Printed by Tho. Godfrey tempore H. 8. saieth in this behalfe viz. the Clergie ought to haue correction as of crimes meere spirituall of auoutrie fornication Simonie and Vsurie and to order matrimonie tithes oblations and periurie in some case and of diuers other things whereof it is no doubt but they haue holden plea in times past rather by a custome and by sufferance of princes then for that they be meere spirituall or that they had authoritie by the immediate power of God So that they bee by him yeelded of long time to haue bene of ecclesiasticall conisance CHAP. X. That the matters and crimes here reckoned bee also of ecclesiasticall Iurisdiction and proofes that any subiect laie or other may be cited in any cause ecclesiasticall THere doe yet remaine sundrie points which in the second Chapter of this part I haue set out as being of ecclesiasticall conisance hitherto not spoken vnto purposelie First then for ordaining of reall compositions being a matter of voluntarie iurisdiction and disanulling of them if they haue bene made contrarie to lawe and right which is for the most part of Iurisdiction contentious we haue in the Register some testimonie For 3 Reg. fol. 51. b. whereas an Ordinarie had made an ordination or reall composition for certaine Chaplains to serue from time to time in a Church which were not found by those that ought the bishop hereupon ex officio proceeded to interdict the Church and vnto other Canonicall paines And though thereupon a Prohibition was brought yet was it reuersed vpon debating by consultation and the bishops proceeding allowed for lawfull Touching 4 Reg. fol. 50. a. disanulling of a reall composition vnduely made in a Consultation there is thus conteined Significamus quod in negotio adnullationis Ordinationis pro Pensione tanquam iniquae non rationabiliter factae non de laico feodo in curia Christianitatis agitur procedere vlteriùs facere poteritis c. prohibitione nostra nonobstante Next follow the censures ecclesiasticall whereby Ordinaries punish or vrge execution of their sentences or decrees First suspension ab ingressu ecclesiae is 1 5. 6. Edw. 6. cap. 4. shewed to be an ecclesiasticall censure by a statute of king Edward the sixt forbidding brauling in Church or Church-yard The other suspension indistinctly taken whether ab officio tantùm or ab officio beneficio is mentioned for a censure ecclesiasticall by 2 1. Eliz. cap. 2. a statute 1. El. and by her 3 Iniunctiones in fine Highnesse Iniunctions Interdiction of a Church is also prooued so to be by the first allegation out of the Register in this chapter That Sequestration is another censure ecclesiasticall and the conisance of the violation thereof of that iurisdiction is prooued cleerely by a consultation in the Register For there a certeine Parishioner 4 Regi fol. 44. b. had cut downe Syluam caeduam not paying but deteining the tithe from the Parson Hereupon the bishop of Elie his Officiall did sequester the said wood cut downe The Parishioner did breake and violate the sequestration therefore the Officiall proceeded with him in causa violationis sequestri the defendant purchased a prohibition Neuerthelesse vpon discussing of the matter a consultation was granted in these wordes Licitè procedere poteritis quatenus de 5 Concordat Clem. vnica de sequest possess quoad violat interdicti Clem. grauis de sententia excomm violatione sequestri syluae caeduae excisae ratione
they doe neuerthelesse without cause refuse to come and to testifie a trueth For then goeth a citation called Compulsories for them sub poena iuris to come and depose their knowledges in such a matter betwixt such parties So that the citation is not ad subeundum iuramentum albeit when they come they are not to set downe any deposition but vpon othe because it is iuris diuini naturalis gentium quòd non credatur testi iniurato Also the Authour of this opinion should haue done well to haue signified whether a Lay man being come thither without citation might then be vrged to take an othe Therefore if the Authour hereof wil hereby maintaine any controuersie against Courts Ecclesiasticall the issue must be either that to make the Defendant put in his answere vpon his othe so farre foorth as he by Lawe is bound or to make witnesses testifie vpon their othe is a thing contrary to the Lawes of the Realme But it appeareth by discourse vpon the former opinion in how many sundry causes of litigious Iurisdiction besides Testamentarie and Matrimoniall Ordinaries may holde Plea by the Lawes of this Realme according to the course of the Queenes ecclesiasticall Lawes That the ecclesiasticall Lawes doe require this course with the cautions aforesaide I thinke no man that knowes any thing in that Lawe will make doubt A Plea is a conflict in cause of Iudgement betwixt one that affirmeth and another that denieth There be but two wayes besides the parties confession which is not properly called a proofe to prooue any thing that is by witnesses or by a publicke instrument called by the Common Lawe matter of Record Now if witnesses might not be vrged to testifie vpon othe in any causes but Testamentarie or Matrimoniall then could no Plea be holden in any other cause when the chiefest and most vsuall meanes of proofe in recent facts be taken away This libertie and priuiledge of holding Plea in the causes afore shewed and in this maner as is now claimed 1 24. H. 8. c. 12. by the goodnes of Princes of this Realme and by the Lawes and customes of the same as a statute rehearseth appertaineth to the Spirituall Iurisdiction of this Realme and hath bene in all ages vsed in Courtes Ecclesiasticall without impeachment as by the Recordes thereof may appeare And therefore vpon any singular conceite newly taken vp by some priuate persons it is not safe to be nowe thus questioned and oppugned There is an olde Statute in force as I take it that may greatly bridle such newe quirkes except men were marueilous well assured of the groundes of so great and so generall an innouation For it is enacted that 2 15. Ed. 3. c. 3. great Officers about the King and in his Courtes of Iustice shall from time to time forwarde bee sworne when they shall be put in Office to keepe and mainteine the priuiledges and franchises of Holy Church c. Can it with any colour be intended that the Common Lawe doth allow Courts ecclesiastical to hold plea in those sundry other causes which we haue hitherto proued to be ecclesiasticall and yet that it wil not allow them any meanes or possibilitie whereby to hold such pleas For if no Lay man might be cited to an ecclesiasticall Court and there ordered to take othe in any other cause then those two then first the partie conuented if by Lawe he needed not would neuer answere to the Libel vpon his othe Yet hath this bene a course continually practised and by Lawe so appointed not onely in Ecclesiasticall but also in all Courtes of the Ciuill Lawe both here and throughout the rest of Christendome Againe if no Lay witnesses may be called to testifie in any other matter then should most men in those causes be hereby either quite foreclosed of their right and many grosse sinnes should passe wholly without reformation or punishment or else all such matters must needes be prooued onely by such witnesses that be of least indifferencie and therefore of least trueth and credite For those men be alwayes most indifferent which either be friendes or at least be no euill-willers to either partie Nowe seeing euery deposition must needes tende to the grieuance or hinderance of the one partie or the other can it be presumed of him which loues both and doth wish alike well vnto them that he will willingly and gratis without any processe come and depose and thereby doe one of his friendes a displeasure there resteth then that onely such will offer themselues to testifie who either be enemies vnto both or friendes to one and either enemies or strangres to the other and howe can these be vpright indifferent witnesses or else such who be meere strangers vnto both sides but it doth most rarely happen that meere strangers vnto both shal be able to depose any thing to purpose and more rare will it be that such will offer willingly of them selues to come in ad testificandum Besides these and many such like absurdities necessarily ensuing this opinion if it be yet still stoode in that the Common lawe permittes compulsion of lay men whether parties or witnesses to take othe in causes testamentarie and matrimoniall but denies it in all other cases let vs consider what may be imagined for a probable reasō of such differēce in proceeding betwixt causes that belong to the conisance of the selfe same courte For I haue read and often heard that the Common lawe is grounded vpon good and sound reason And it cannot be said in this case quamuis durum sit tamen ita lex scripta est for that this is no statute or written lawe but onely the reported opinion of one man whence all the rest haue since taken it Was it then meant to giue vnto subiects an ample meanes of comming by their rightes in these two causes but to restraine or debarre them in al other as namely for tithes and other rightes demaundable in ecclesiasticall courtes or was it the purpose of that lawe to haue men stand conuicted of most grieuous crimes that be of ecclesiasticall conisance as happely of Heresie being neither by them confessed nor yet proued by sincere and vpright witnesses but onely by such as doe thrust them selues in to beare witnesse whom not onely common speach but also sundry statutes doe terme Accusers and therefore doe hold at least for parties and men not indifferent May not many other ecclesiasticall causes be of as great importance preiudice as perhaps a will of goods vnder xl s. or a trifling legacie or a x. pound matter promised with a woman in mariage and if the law had bin so could no man hit of it from the Conquest vntill our fathers time when Fitzherbert writ his nouanatura breuiū was none of skil in Edw. the 1. time to put it into the statute of circūspectè agatis or in Ed. the 2. times to mention it in the statute of Articuli Cleri did none reade
directly moued for the crime and not by way of exception or barre onely witnesses are to be compelled sauing that by later Canons Clerkes were not to be compelled to testifie in causes of blood But if the question be touching a crime by way of exception then either there may ensue thereupon some effect of punishment as vpon excepting a man to be criminous who then is to be preferred to a dignitie to a benefice or vnto orders in which case any witnesse may be compelled to giue testimonie or else no penaltie can thereupon follow as when the exception is taken onely to repell a man from testimonie or accusation and in this case witnesses are not compellable except the partie who excepteth be like to be grieuously thereby preiudiced if his witnesses cannot be gotten to depose There is nothing more conuenient then that euery court should vse his peculiar course of proceeding by that law wherin they deale prescribed And therefore 1 Anton. in c. quod clericis de foro competenti lay mens matters in a Court ecclesiasticall are to be handled according to the maner of proceeding by that law required euen as 2 Bartol in l. 3. § fin ff de testibus clerkes shall and ought to be dealt with in temporall or ciuill courts after the maners and orders of those courts Seeing then compelling of witnesses to testifie is not contrariant repugnant nor yet diuerse from the Common law nor by it forbidden but allowed vnto Ecclesiasticall courts according to the course of those lawes which doe require it as is shewed and no reason or equity leading to admit it rather in those two causes then in others of the same conisance therefore may any witnesses whatsoeuer be vrged to take oath and depose in Courts ecclesiasticall and in other matters ecclesiasticall then either testamentarie or matrimoniall But to descend yet to more particulars the Kings tenants may 3 Artic. Cleri 9. Ed. 2 cap. 12. be cited before their Ordinaries as others Therefore both they and others though Lay persons may be cited in all causes of that iurisdiction neither is it there distinguished whether they come in as witnesses or as parties Also they may 4 Ibidem as others be excommunicated for their manifest contumacie This contumacie after appearance groweth onely vpon peremptorie refusall to performe some decree or commandement of the Iudge as in refusing to be sworne or to be examined being sworne Seeing then for manifest contumacie the Kings tenants or others may be excommunicated and this is indefinitely set downe it will follow that as in any other not performance of the decrees of the Iudge according to the ecclesiasticall lawes so in refusall to be sworne whether he be partie principall or witnes there is manifest contumacie Vbi lex non distinguit nec nos distinguere debemus Particularly in matter of tithes being neither a cause Testamentarie nor Matrimoniall the 1 27. H. 8. contemners of the processe lawes and decrees of the Ecclesiasticall courts of this Realme are by statute condemned but an vrging to answer or testifie vpon oath is a decree of an Ecclesiasticall Court ergo may not be contemned The Ordinarie 2 Ibidem in a suite of tithes for any contempt contumacie disobedience or other misdemeanours vpon complaint may haue the partie committed till he shall be bound to giue due obedience to the processe c. decrees and sentences of the Ecclesiasticall court of the Roalme but requiring a parties or a witnesses oath is such a decree Therefore c. Likewise by another statute 3 32. H. 8. cap. 7. the Ordinarie may conuent for withholding tithes according to the lawes Ecclesiasticall therefore he may conuent and cite a man Lay or other if he be supposed to be a withholder to answere vpon his oath For so is the Ecclesiasticall law Further by that statute the 4 Ibidem Ordinarie may proceed to hearing and determination c. according to the course and processe of the ecclesiasticall lawes but the processe and course of hearing by that law is by the parties personall answere vpon oath if it be required and by compulsories of witnesses to depose by oath as is afore touched Therefore c. The statute of 5 2. 3. Edw. 6. cap. 13. king Edward touching tithes prouideth that both they and the costs charges and expenses in the suite shall be recouered before the Ecclesiasticall Iudge according to the kings Ecclesiasticall lawes but for recouery of them those lawes require in cases aforesaid both oath of partie and of witnesses ergo c. By that statute is established that the 6 Ibidem Ordinarie euen for personall tithes may call the partie afore him and by his discretion examine him by all lawfull and reasonable meanes other then the parties owne corporall oath concerning the true payment of such personall tithes Ergo a corporall oath is in other ecclesiasticall causes a lawfull and reasonable means for exceptions are alwayes of the nature of the rule and should be within the rule if they were not excepted and therefore also in all other tithes as prediall and mixt it is a lawfull and reasonable meanes to put the partie vnto his oath quia exceptio firmat regulam in casibus non exceptis The statute for Vniformity of Common 1 1. Elâ—…z cap. 2. ad finem prayer authoriseth ecclesiasticall Iudges to enquire to take accusations and informations and to punish the breaches of that act c. in like forme as before had bene vsed in like cases by the Queenes Ecclesiasticall lawes but in like cases by those lawes oathes both of parties witnesses haue bene vsually taken Therefore c. One only instance destroyes a generall assertion therefore if there were but any one instance to the contrary an oath by law may be vrged of some lay man in some other cause then testamentary or matrimoniall which being true and the very contradictory of the opinion that is in issue vpon this point betweene vs it must needs follow that the opinion is vntrue and therefore not grounded vpon law Quod probandum nobis proponebatur CHAP. XII The grounds of the two next former opinions examined and confuted THe ground of these two opinions last handled for any thing that I could euer learne doeth only rest vpon a precedent of a writ of prohibition and of attachment thereupon In treating whereof for that I shall be forced to gainsay something that is deliuered by graue learned and wise parsonages I must first protest before God in sinceritic of heart that I do it not calumniandi sed veritatis studio whereof I am something resolutely persuaded in this behalfe I do reuerence and esteeme them that are contrary persuaded being men of great learning in their profession neither contemning nor condemning any so much as my selfe as being most priuie to mine owne wants and therefore I trust something taught to measure my selfe by mine
owne foot Sed amicus Plato amicus Socrates magis amica veritas The copy of this writ I finde reported and set downe in two seuerall books In the 2 Register tit prohib Register contrary to the vse of other precedents there is deliuered but a parcel as seemeth of a writ in two or three lines in these words viz. Rex vicecomiti S. Praecipimus tibi quòd non permittas quòd aliqui laici ad citationem talis episcopi aliquo loco conueniant de caetero ad aliquas recognitiones faciendas vel sacramenta praestanda nisi in causis matrimonialibus testamentarijs T. c. And in the margent thus Prohibitio ne latci conuentant ad citationem episcopi ad recognitionem faciendam But the precedent of attachment framed vpon this writ runneth generally without excepting so much as these two causes euen as if a lay man whether partie or witnesse might not be vrged to answere or testifie or to take an oath except he lust in any cause ecclesiasticall at all For it is 1 Reg. in br orig fol. 36. b. tit Prohibitiones thus viz. Rex vicecomiti Salutem Pone per vadium c. talem episcopum quod sit coram iusticiarijs nostris c. ostensurus quare fecit summoueri per censuras ecclesiasticas distringi laicas personas vel laicos homines foeminas ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis in graue praeiudicium coronae dignitatis nostrae regiae necnon contra consuetudinem regni nostri habeas ibi nomina pleg c. T. c. And in in the margent it is entituled thus Attachiamentum inde Also in the Abridgement of statutes 2 Abr. Rastall cit prohib consult nu 6. gathered by Rastall I do finde a precedent of a prohibition set downe at large mentioning a writ to like purpose to haue bene sent to the shiriffe but none attachment thereupon where of those words rehearsed in the Register though something altered seeme to be a parcell In that point it is thus Rex episcopo Norw Salutem c. Mandauimus etiam vicecomiti nostro comitat Norf. Suff. c. quòd non permittant quòd aliqui laici in Balliua sua in aliquibus locis conueniant ad aliquas recognitiones per sacramenta sua faciendas nisi in causis matrimonialibus testamentarijs Whereby these three varieties do appeare betweene this and the former First that which is said heere by way ofrehearsall that the king had sent such a writ to the shiriffe seemeth in the Register to be set downe as conteining part of the writ it selfe directed to the shiriffe Secondly that which is here recognitiones facere per Sacramentum is in the Register with the disiunctiue viz. ad aliquas recognitiones faciendas vel Sacrament a praestanda Thirdly in the Register these words are added ad citationem talis episcopi That writ which Rastall setteth down at large whēcesoeuer he had it seemeth to be the perfect whole copy of the originall therfore of more credit It is also probable that the gatherer of the Register did abridge out of this Writ at large as hee thought good For in the very Writs that went foorth in deed the copies whereof bee in the Register letters for the most part bee put there in stead of the names of the parties whereas here it is ad citationem talis episcopi talem episcopum without name or any letter for it that might direct men to know of what Writ it was a parcell which argueth it was not verbatim copied foorth of the Writ Howsoeuer it be the one of them must expound the other seeing they concerne one and the selfe same matter In treating therefore hereof I mind first to shew that albeit these words did carie the sence y t is inforced yet it may be that the law is otherwise then y t they are not of that acceptiō lastlie how they are otherwise meant what is that true meaning For the first it is no lawe of necessitie being neither Statute nor Common lawe No statute for it is not in the Parliament rols nor in any printed booke of statutes at large nor in sundrie ancient written copies It is no common law for it is sayd to be formata prohibitio super articulis cleri 1 9. Edw. 2. which is a statute of late time in comparison and the precedent of that Prohibition as it is in the Register printed being vnderstood according to the mind of the Authors of this opinion is contrarie to the generall custome of the Realme For by time immemoriall all Ecclesiastical courts without impeachment haue cited both the parties principall for answere and witnesses also vrging them to depose by oath in all the other seuerall causes also that are prooued afore to be of ecclesiasticall iurisdiction and conusance I haue had of long time an olde Register in parchment written as may be euidently gathered and appeareth by the frame of the hand and letter about king Edward the seconds or king Edward the thirds time In it there is no such precedent of prohibition or of Attachment as either the printed Register or Rastals Abridgement of statutes setteth downe But there are many prohibitions vnto ecclesiasticall courts that run in this sort viz. Ne teneatis placitum in curia christianitatis de catallis debitis quae non sunt de testamento vel matrimonio And the first of this sort is thus entituled in the margent Prohibitio regia de catallis debitis quae non sunt de testamento vel matrimonto One thing besides I find there in mine opinion worth the noting for this purpose yet not obserued in the printed Register For such precedents of Originall Writs as exceeded the memorie of any man at what time they were first drawen framed that old booke setteth downe simply without any addition But if they were of later times deuised then this marke title is giuen vnto them in the margent viz. Prohibitio formata or breue c. formatū Now Rastals Abridgement giueth the like title to the writ wherupon this controuersie groweth viz. Prohibitio formata super articulis cleri which argueth that there is no such original writ of old at the common law but that it was thē newly deuised to meete with a new mischiefe Quae de nouo emergūt nouo indigent auxilio The being of it in the Register doth not make it of necessitie to be law for sundry of those writs were framed of late times as may appeare to any that wil peruse thē vpō particular mēs suits as occasiōs fel forth somtimes perhaps drawn vpō priuate suggestiōs of the counsel of one side though afterward allowed Nay in my said old written Register of writs there is a precedēt which as I take it goeth not now for lawe For there is a direct
and the other is forbidden to be done 1 Arg. l. 13. cùm ita ff de rebus dubiis A disiunctiue argueth seueral things that had neede to be expressed by seuerall wordes And by like reason it cannot be meant of witnesses depositions for if the partie conuented shall be content de facto though he be not compellable by lawe as this opinion presupposeth to denie the intention of his aduersarie then no Lay witnesse might in any such other cause ecclesiasticall be vsed either to depose with oathe or without oathe because both be forbidden and so no plea in any such other ecclesiasticall cause coulde be holden which is afore prooued to be otherwise and therefore consequently that is not the meaning of these wordes of the writte which is by 1 Fitzh nou na breu fol. 41. a. Fitzherbert and others that follow him enforced Touching the writ of Attachement thereupon whether as it is set out in the Register it may be holden to haue bin an originall writ at the Common law drawen at first by the grauest aduise in the Realme to be so perfite as that nothing further then is expressed by the words neede therein to be vnderstood to come by the true meaning may partly be gathered by that which followeth First it is said pone talem episcopū not vsing letters for his name as in most of the other writs Next a Bishop who in that he hath a Barony is presumed to haue temporalties whereon to be distreined is here appointed to finde vadios plegios Thirdly it hath laicos homines foeminas as if women were not homines seeing homo is the cōmon gender Fourthly though the prohibition whereupō it is framed forbiddeth both recognitiōs to be made and oathes also to be taken by lay men yet the Attachement wholly omitteth the making of recognitions And yet howe many oathes soeuer should be giuen if none answeres or depositions doe thereupon euer followe which two the opinion that we impugne meaneth by recognition what colour of preiudice doeth or can growe that either Prohibition or Attachement should neede to be awarded Fiftly neither by Ciuill nor Canon lawe neither yet by practice doth any sommons or citation goe out of an ecclesiasticall court in such sort as this Attachement assigneth to be a preiudice vnto the royall dignitie viz. ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis For it were a grieuance giuen euen at the Canon lawe if an Ordinarie should either call any being not a partie or necessarie witnesse in some matter depending or should call witnesses against their will not being first required and hauing their charges offered or if he should do it when there is no cause but 2 Pro voluntate sua for his owne pleasure as this writ implieth Sixtly the proceeding hereby condemned is saide to be done in praeiudicium graue coronae dignitatis nostrae regiae But if no matters be thereby drawen from the kings courtes as in deede none be though you followe the interpretatiō thereof by some enforced then what preiudice commeth to the crowne For though lay men be vrged to depose vpon their othes in all other causes besides that be of Ecclesiasticall conisance what damage or detriment doth the Crowne and dignitie royall thereby susteine more then it doth by their compulsiue deposing with othe in causes Testamentarie and Matrimoniall which this opinion admitteth and alloweth of For if none other causes Ecclesiasticall then those two could conueniently be proceeded in nor any remedy could be giuen by a court Ecclesiastical for want either of the parties answere or witnesses depositions vpon othe yet could not Temporall Courts as the Lawe standeth giue any more remedy in them And so no preiudice to them or to the Crowne that Courtes Ecclesiasticall do proceed as they do to the determination of such causes Nay rather on the other side it were a preiudice to the Crowne that subiects should offend and no good meanes should be found by Law to punish them or to haue a right yet no way for them to come by it Seuenthly that which is there condemned is said to be 1 Consuetudine praed vsi fuerimus semper libettatibus huiusmodi Prohibition in Rastell tit Prohib nu 6. contra consuetudinem regni nostri which doeth strongly argue that vrging parties in other Ecclesiastical causes to put in their answere vpō their othes or witnesses so to testifie is neither by that fourme of Prohibition forbidden nor by the Attachment thereupon ment to be disallowed For first the custome of diuers Courts Temporal requireth parties answeres vpon othe and likewise alloweth Writs of sub poena and other processe in sundry cases to compel witnesses to come in and to testifie their knowledge And againe in Courts Ecclesiastical the custome hath alwayes bene to require othes of parties and witnesses though otherwise vnwilling in maner as is a fore touched Which may appeare both in that the Lawes Ciuill and also Canon which they deale by doe require it and that no bookes of Actes Ecclesiasticall as I am verely perswaded can be shewed whether of olde or later times by which it may not appeare that this course of compelling parties and witnesses to take othes in other causes then those two hath bene vsed so often as occasion hath required And therefore not this but some other maner of proceeding it was which by the Writte of Attachment is meant to be contra consuetudinem regni Lastly this fourme of Attachment mentioneth not so much as excepting of compelling to take othe in causes Testamentarie and Matrimoniall albeit the prohibition haue that exception And therefore for auoyding of iarre betwixt them something must necessarily be vnderstood to haue bene at first in the Writ it selfe whereof this is a minute further then is here expressed And why shall not then the clause de catallis debitis be vnderstood therein aswell as this other seeing so strong probabilities doe leade it and so many absurdities and inconueniences be thereby auoyded which the late enforced interpretation doth necessarily inferre with it selfe Therefore wee may conclude this second point that to debarre Courtes Ecclesiasticall in any cause of that Iurisdiction from exacting parties conuented to put in their answeres vpon their othes or from compelling such witnesses by censures to testifie who being required and their necessary charges being offered doe neuerthelesse refuse to testifie a trueth is not nor yet can be the meaning of that Prohibition or of the Attachment thereupon The last point of the three to be touched is concerning the true meaning of those wordes of the Writte whence these controuersies haue flowed It is therefore to be remembred that it was very vsuall for men in those dayes at making of any contracts whether in matters of Lay fee or others for their more securitie to make faith or othe for performance This they either did priuately for
to make such a briefe abridgement of so long a writ For it doeth not appeare that before the imprinting it was perused allowed by any the Iudges then being or by any others deputed by publike authoritie for the reuiewing and correcting of it No doubt if it had bin that I speake of nothing else so many grosse errors in the Latin both against cōgruity al sense as in every leafe almost of the copie which the Printer followed are to be found could not haue so escaped without cōtrolement and amendment But the former wordes set downe by Rastall at large in the writ in selfe where neither of these last recited clauses are to be found are too cleare in this point to be dimmed by any such light colours But if hereupon it be perhaps graūted as the authour of the Treatise doth that witnesses may take oath depose willingly in other ecclesiasticall causes at the request of some of the parties I must then call to their minde that I haue shewed afore that following their owne interpretation they may not though they be willing Yea though witnesses might if they were willing how can a reasonable man entend that the partie to be sued will come in at all but much lesse answere if he may not be cōpelled vnto neither viz. neque ad recognitionem faciendā neque praestandū sacramentū as Fitzherbert in his natura breuiū also doeth vnderstand and reade it And the wordes reach vnto all lay persons not distinguishing a partie from a witnesse Againe by that their interpretation of recognition oath they could neuer haue such witnesses that be indifferent as in part is afore touched For if witnesses may not be vrged to sweare or to answere further then they list themselues then will they onely answere to the matters propounded by him who produceth them and wil refuse to answere the Interrogatories propunded by the other partie for his defence by whom they were not requested to come Which course vpon the matter taking away all testimonie that ought to be indifferent for either partie in such pertinent matters as are to be demaunded is contrary to the lawe of God of nature of nations and to the very qualitie of a witnesse Decius saith 1 Decius in l. 2. C. de edendonu 43. Si testis deposuit pro vna parte interrogatus pro alia noluerit respōdere illi fides adhiberi non debet quia praesumitur supprimere veritatem And so the course being most vnreasonable that whereupon it followeth must needes be also very absurde and against Iustice. By all which premised discourse it is made I hope manifest whether Fitzherbert had good ground out of that fourme of Prohibition and Attachement to 2 Nou. nat breu fol. 41. litera a. gather not onely that Ordinaries must expresse a particular cause in all their Citations but also that if they expresse any cause at all in the Citation that it seemeth by that writte it must bee a cause matrimoniall or testamentarie For seeing they haue none other meanes besides Citations to summon men to their Courtes What is this latter collection built but vpon a doubtfull seeming else then an asseueration implied that none other of the causes afore proued to be of ecclesiasticall conisance shall euer be dealt in by any court ecclesiasticall and so vpon the matter in no court at all for that temporall courts be out of iurisdiction in those matters Which howe it may be defended from grosse absurditie I would gladly learne from any that patroniseth this opinion But if the lawe were so in deede that none should be called into ecclesiasticall courts but for those two causes I marueile what the Preshyteries so much doted after especially by sundry fauourers of this interpretation would doe here in this Realme when their Cōsistorial power should be so lopped that they could not call any man before them but either in testamentarie causes which they make in other mens dealings to be meere Ciuil causes or matrimoniall many of which also they now seeme willing to abandō as temporall matters for they should be driuen either to be kings of molehils or else to preache in the most vehement veine they haue against that lawe and those magistrates which in such sort would restraine them as if they were both Antichristian at least for hindering and so impounding of the pretended gouernement of Christ that thereby they might at length be set at libertie to deale in their Consistories against all crimes whatsoeuer according to their owne platfourmes Yet herein they should deale very vnequally because they will not nowe suffer that vnder this gouernment which themselues would practice against crimes in a farre more ample and peremptory maner then either nowe is done or were meete to be suffered In the bookes of the Common lawe I finde also some cases that giue strength to this interpretation For an 1 M. 44. E. 3. fol. 32. Attachement vpon a Prohibition was sued because they sued in a spirituall Court for haye and money which touched neither matrimonie nor testament and after vpon shewing the Libell which prooued that it was for tithes and oblations a consultation was graunted Likewise 2 M. 38. H. 6. fol. 14. a Prohibition was sued foorth of the Chauncery directed to the Iustices of the common Pleas to make an Attachement because the defendant had sued the plaintiffe in the spiritual court for debt which did not touch matter of matrimonie nor testament whereof the conisance belongs to the Kings Court and thereupon a prohibition was granted thence Wherein it is woorth the noting that Fitzherbert in his 1 Fitzh Prohibition nu 5. Abridgement leaueth out these words for debt contrary to the booke it selfe at large and also 2 Brooke Prohibition nu 6. to Brooke I will not say it was to giue colour to his opinion in his Natura breuium as if he ment to haue it sound that no matter at all but either matrimoniall or testamentarie might be sued in court spirituall whereas by these two reports it may appeare that Prohibitions did not lie in this respect for that the parties were sued and called into the ecclesiastical court against their wils in any other cause whatsoeuer then those two but onely for suing there for chattels debt which did touch neither matrimony nor testament Whereof may bee gathered that euer since the first framing of this writ either none in this point hath knowen the lawe vntill Fitzherbert for nō est instandum inproposito or else those words doe carie another meaning then is now fathered vpon thē which that they doeboth in the affirmatiue for ours negatiue against theirs I hope is somewhat plainely prooued And therefore we may conclude that these two last opinions the one for not citing any person in any other cause then these two the other for not citing laie men for not vrging them to take oath in any other cause
ecclesiasticall no man may be imprisoned Therefore the vntying of this knot resteth vpon the whole matter here disputed of viz. whether that statute 10. Eliz. doe not warrant her Maiestie to graunt by her Highnes letters patents power to imprison for such contempt as this obiection importeth To prooue that her Maiestie may not so graunt nor they take such authoritie the Note-gatherer affirmeth that the commission bindeth them precisely to crimes punishable by the ecclesiasticall lawe and to proceede according to the ecclesiasticall lawes of this Realme and not according to the temporall quoting fiue statutes for this albeit there be in none of them any such matter but both the first and second part of this obiection is vntrue For the commission though nowe that power be not altogether vsed graunteth the execution of foure statutes vnto them and alloweth them to proceede aswell by Iuries as by course of the lawe ecclesiasticall And when Doctor Grindall was Bishop of London sundry crimes ecclesiasticall by vertue of the commission were tried by Iuries before him and certaine Iudges and other professours also of the common lawe being then in that commission Yet is the Note-gatherer vpon this vntrue ground bold to inferre that to doe otherwise is to encroche vpon the temporall iurisdiction and to make an hotchepot in one commission Truely this his collection is not worth an hotchepot that is a pudding as Littleton doeth expound that worde For the temporall Iudges are not to proceede in matters of ecclesiasticall iurisdiction and therefore their iurisdiction is not encroched vpon though in such matters ecclesiasticall attachements or imprisonments be vsed or fines imposed seeing they themselues cannot in those causes vse or impose them When the whole Realme at the beginning of her Maiesties reigne was visited by vertue of this statute by Diuines Ciuiliās and Common Lawiers in that seruice imploied who had authority by their seuerall cōmissions to attache imprison fine c. aswell as to vse censures ecclesiasticall al which they did accordingly then and at that time none of these quicke narrow sighted fellowes lately sprung vp were to be found that could see more then the reuerend Iudges and could so roundly tel her Maiestie that she did graunt more authoritie to her Commissioners then by that statute was giuen to her selfe Oh belike it was lawe then and good iustice against Papistes but to deale against pretended Reformatists it commeth farre too short But the Treatisour vrgeth this matter yet further he saith that no learned man wil affirme any Iurisdiction by that acte 10. Eliz. to be vnited to the crowne but spirituall or ecclesiasticall And that none such can affirme that any iurisdictiō c. repugnant or offensiue to the Common or Ciuill Policie of this Kingdome is established by that Acte for that there is none Antinomy or contrarietie of lawes Whereupon he woulde inferre that Attaching Imprisonning and Fining c. by vertue thereof is not warranted to be graunted In answere whereof let him vnderstand that his argument followeth not vpon either of those Antecedents For the first though the matters of iurisdiction thereby vnited to the crowne be onely ecclesiasticall yet the maner of conuenting or punishing in them is not in that Acte so restrained but that such other courses may be vsed as to her Maiesties wisedome shall seeme most fitte which by and by shall be shewed God willing For the second we deny the maner of conuenting and punishing established by the commission to be repugnant or offensiue any way to the Ciuill Policie of this kingdome for it is warranted by that Acte This point if the wordes of that whole clause be aduisedly weyed and considered will be made most plaine In the exercise of a criminall iurisdiction there is the matter wherein it is bestowed the maner of conuenting and sanction or penaltie to be inflicted vpon offenders which are to be considered Now the matter of this iurisdiction and authoritie graunted to her Highnes and that may be assigned ouer by her Maiestie vnto Commissioners is visiting reforming redressing ordering correcting and amending all such errours heresies schismes abuses offences contemptes and enormities whatsoeuer which by any spirituall c. Yet what course is to be holden in calling and conuenting and what kind of penalties or censures shal be inflicted vpon offenders by that authoritie are by no wordes of that acte expresly graunted to her Highnes or mentioned that they may be assigned by her vnto the Commissioners and therefore of necessitie to be supplied by those generall wordes viz. According to the tenour and effect of the letters patentes For els by such an interpretation of theirs we should haue matters for a Iurisdiction but neither any maner to conuent and compell to come afore the Commissioners nor yet punishment to lay vpon enormious offendours against whom it was intended Which because it is very vnreasonable therefore that opinion whereupon it necessarily followeth must needes be more absurd and without ground of reason Yea say other of them be this as it may and let them seeke out what processes c. may and shall be vsed by the Commission Ecclesiasticall for it is contrary to the lawe to graunt by Commission authoritie to inflict any punishment vpon a faul◅ which by lawe ought not to be inflicted and therefore they gather that the Queene cannot authorise nor any man may take power to attache to fine or to imprison men by that Commission Thus farre it is true that a Cōmission may not be graunted to alter or change any lawe in force but I trust it is not contrary to the Common lawe and custome of the Realme by acte of Parliament to alter and change that which stoode otherwise afore at the Common lawe If this so did by the course of the Common lawe no man may be put to the racke or torture especially about felonies or murders thereby to drawe him to confesse of himselfe or of other men his complices Yet is it notorious that in Wales and the Marches thereof the President and Counsaile there established doe vse and lawfully may put men to such torture by warrant of instructions onely sent vnto them from time to time vnder her Maiesties gratious hand This their authoritie I take it is deriued from these 1 38. H. 8. ca. 28. Rastall Wales 32. wordes in an Acte of Parliament The President and Counsaile there shall haue power and authoritie to heare and determine by their wisdomes and discretions such causes and matters as be or hereafter shall bee assigned to them by the Kings Maiestie as heretofore hath bene accustomed and vsed Which doe conteine no more particularitie of authoritie nor yet are of so much pregnancie to that purpose as the wordes that establish the Commission Ecclesiasticall be for Attachment fine and imprisonment to be vsed if it shall please her Maiestie so to commit them The deuise of the Commission Ecclesiasticall was for assistance and ayde of Ordinary Iurisdiction
either at her Highnesse pleasure destroyed or bestowed vpon the poore and the houses of attainted persons in treasons to the entent to haue them demolished and the trees about them to be rooted vp and so in this behalfe is also the law in France yet in frequent practices All which tend to signifie in what detestation abhomination such enormities are to be had and that men who are endued with reason may by such examples of law be admonished what punishment more iustly abideth them if they commit the same for which euen brute beastes and insensible thinges are so duely as it were punished For either it doth or at least wise ought to worke this effect in men In which respect Aristotle 3 Arist. 1. Rhet. ad Theod. c. 14. saith that punishment is a remedie or medicine to be vsed against faults And so 4 Lib 3. Var. epist. 14. Cassiodorus grauely writeth Remedium est contrapeccatum accelerata correctio Quicke punishment of sinne giues a remedie against sinne For all crimes and offences be in truth but as so many maladies and distemperatures in the body of the Church and Common weale which if they be tolerated to grow without restraint coercion of lawes will quickly spread like a cancker either to the destruction or to the great and apparant danger of both so that the necessity of punishments and penalties by the very endes vnto which they are referred may sufficiently be thus approoued vnto vs. The necessarie vse of them might be further enlarged and enforced also by the consideration of sundry who are interessed in this behalfe And first in respect of the Magistrate himselfe for it is said Non 5 c. dilecto de sent excomm 〈◊〉 6. caret scrupulo societatis occultae qui manifesto facinori desinit obuiare He that list not to oppose himselfe against a crime manifested vnto him may iustly be had in iealousie himselfe that hee is a partaker with the offender And againe 1 August in ep Ioan. tract 7. Charitas non est sed languor vbi mali mores digna poena non castigantur It is not charitie but faintnesse to be remisse in punishing offences And of such as haue authoritie to punish offenders it is said 2 Aug. epist. 50. ad Boniâ—… c. error dist 83. Si illos negligant perire permittant ista potiùs falsa mansuctudo est crudelitas And againe Error cui non resistitur approbatur But of that Magistrate which punisheth offenders it is thus said 3 Aug. in Enchirid cap. 72. Qui emendat verbere in quem potestas datur vel coërcet aliqua disciplina c. eleemosynam facit quia misericordiam praestat To an offender himselfe it is behouefull that hee may be recalled thereby from his wicked course for 4 Cassiod lib. 3. Var. epist. 14. malum cùm perseuerat augetur and 5 c. cum tanto de consuetudine tanto sunt grauiora peccata quanto diutiùs animam detinent illigatam Therefore 6 Iuo lib. 8. non corripere malos est eos occidere Et consuetudo peccandi tollit sensum peccati In respect of others also that might take encouragement to goe on in wickednesse or to commit the like punishments be very necessatie For in regard heereof Tullie saith 7 Pro Milone Impunitatis spes magna peccandi illecebra And in law it is said thus 8 c. vt clericorum § 1. de vita hon cler Iussum est rectoribus prouinciarum ne sinant crimina coale scere sed puniant ne facilit as ventae incentiuum tribuat delinquendi To like purpose Ambrose 9 Serm. 8. in psal 118. V. 2. writeth Nonne etiam cum vni indulget indigno ad prolapsionis contagium prouocat vniuersos And therefore it is grauely 10 c. sed illud dist 45. said by another Quae est ista misericordia quae bonitas vni parcere omnes in discrimen adducere Lastly in respect of the whole Church and Common wealth punishments are most needfull Examples are plentiful in Scripture where for the sinne of a few whole armies and societies haue bene punished This we may see in 11 Iosua 7. Achan whose stealing of the accursed garment c. was a cause of the ouerthrow of Israel in battell So for 12 1. Sam. c. 4. the sinne of Ely and his sonnes many thousands of Israel were slaine by the Philistims And to like effect 13 1. Reg. c. 2. Salomon speaketh when he giueth charge to kill Ioab Smite him saith he that thou mayst take away the bloud which Ioab shedde causelesse from me and the house of my father And 14 Ion. c. 1. for Ionas his disobedience the whole shippe was in danger to be wrecked Therefore an ancient Father 15 c. sed illud dist 45. saith That as one diseased sheepe infecteth the whole flocke so by the fornication or other crime of some one person often oftentimes the whole people is holden defiled Vpon these and such like considerations the light of nature did teach euen heathen men thus 1 l. ita vulneratus ff ad l. Aquil. Interest semper Reipub. delicta puniri And 2 l. 7. § finali ff de fideiuss poenas ob maleficia solui magna ratio suadet the whole common wealth hath an especiall and continuall interest and great reason also mooueth to haue wickednesse punished If then vpon so many weightie causes it be needful to haue crimes punished can it be denied but that all good means are to be vsed to bring them to discouerie and conuiction which must needs goe before the punishment of them 3 l. aut facta ff de Poenis Multis grassantibus exemplo opus est saieth the lawe where there be many transgressers it is needefull to haue some made an example to the rest and therefore 4 l. eum qui. ff de iniutijs Peccata nocentium expedit esse nota it is most expedient to haue euill mens lewdenesse made knowen and reueiled CHAP. II. There in is shewed how there are two sortes of prosecution of Crimes and Offences viz. by a Partie and of Office and the practise of them in Scripture and in the seuerall Courtes of this Realme declared NOw the meanes to bring any Crime and Offence into question before Iudges and Superiours in authoritie must needs be and so by all lawes and in all common weales generallie that I haue read of are either by prosecution of some partie or else vpon the Office of the Iudge the 5 Iul. Cla. lib. 5. § fin q. 3. Office of the Iudge is occasioned and as it were set on worke either vpon relation made vnto him by some other or vpon his owne meere motion without any relation from others which may happen as when an outrage or misdemeanor is committed in his sight or in some publike presence where he then happeneth to be In the law
further care I thinke it will not be so supposed The like then may be sayd of Ecclesiasticall officers and offences notwithstanding all generall Enquiries in Senes or Synodes and in visitations But it will perhaps be sayd in the one Court they may bee presented by the sworne men and in the other by enditement of the grand Iurie at Sessions and Assises c. It is true they may be but how many I pray you are so found out and endited from time to time by the grand Iuries of their own enquiries knowledges if either some partie grieued in particular doe not giue euidence or the Iudges or Iustices of themselues do not informe them and vrge them notwithstanding the straitnesse of their charge and oath and that they be taken out of the seuerall parts of euery shire But be it that some notorious murtherer or felon is soby them endited at some times how many other offenders in penall statutes being men of any reckoning in the shire are endited at all thorowout the Realme in many yeeres if none of the bench do take care to vrge the Iuries as Recusants in comming to diuine seruice such as haue and keepe Reteiners and giue liueries contrary to statute onely to band in quarrels and to mainteine bad actions or yet such as goe excessiuely in apparell or which violate the statutes appointed for not eating flesh vpon certeine dayes Nay it falleth out often times that the more to giue edge to such Iuries to do their duties euidence hath bene giuen vnto them in these offences yea such and so good as vpon lesse euidence they would perhaps haue endited a man of felonie to the hazzard of his life especially if he were but some base fellow Now when none almost will be found to giue euidence sauing in such a cause where he findes himselfe or some of his pinched yea and not in such neither if the other partie be a man of any tolerable reckoning or ability and very few albeit themselues do perfectly know it or haue reasonable good euidence giuen against some man of power that will finde an enditement against such an one although both he that giueth the euidence secretly and all the Iurie may be in some hope not to be knowen who it was that did principally stirre in it because they be sworne to keepe the Queenes counsell their fellowes and their owne can it then with reason be imagined that any man almost will be found voluntarily to become an Accuser and to prosecute at his owne costs and charges Experience teacheth that most men will not few that dare and those onely such as take themselues in some particular respect wronged We see in a great multitude of penall statutes at the Common law how men by third parts and moities of forfeitures besides great priuileges in proceeding are as it were allured and entised to informe against offenders yet very few notwithstanding such great gaine as thereby might be got are found besides such as make an occupation of it that will voluntarily preferre informations albeit there be enow that want the money and could well be content to finger it out of what male factours purse soeuer it came The reasons of this backwardnesse in informing I take to be the charge trouble common obloquie and offence taken by them that be prosecuted and thereby feare and perill to come vnto some further mischiefe vpon their procurement or for their fauour Now where men that are so well hired and by reason the Queene is partie to such informations so fully in all reason protected will not lust not or dare not preferre matter penall against others shall wee looke for better courage to be shewed by priuate persons against offenders in Ecclesiasticall crimes where they can expect no such countenance nor remuneration to lighten the other burthens and dangers and therefore either of Office to be prosecuted or must be wholly left vnpunished In riots committed and done vpon others we see iust cause of griefe for the iniury receiued and thereby occasion giuen to seeke lawfull reuenge There was good remedy also prouided for them at the Common law Yet in the time of king Henrie the seuenth for a further remedie and repressing of them by the Lords of the Starre-chamber the State was driuen to make a statute By authority whereof their Lordships proceed in that and others ex officio albeit in many causes they haue some partie grieued that by way of complaint promoteth and prosecuteth the office Yet the proceeding is as was touched afore by way of enquirie in that no man there sueth for priuate recompense but the scope of the whole processe is criminall ad vindictam publicam vel corporalem vel pecuniariam applicandâ—…m fisco non parti So that where men haue â—…ust cause of griefe yet was it thought very expedient requisite to prouide a sharper course by way of enquirie of office How much more then is this course needfull to be holden for punishing Ecclesiasticall crimes which by the policy of this Realme haue no other punishment and where no man hath for the most part any priuate iniury whervpon to complaine himselfe Here perhaps it will be said that he which can giue information of a crime to a iudge may accuse or procure a presentment in an Eccelesiasticall Court if it be of that iurisdiction or may informe and procure an enditement if the cause be Temporall or els that it were meet his information be not beleeued but that he should be holden as a slanderer and a malicious person We are to remember that if this Dilemma viz. either thou must accuse and prosecute him c. or else thou art but a slanderer had not quiddam tertium to minister answere vnto it many grieuous faults should passe vnpunished and many poore men should be sore pinched For experience teacheth that 1 Clarus ibid. q. 6. often times euen in crimes publikly committed you shall hardly finde witnesses that will depose their direct knowledge when it tendeth to the offence of some man of countenance that may do them a displeasure after And therefore they will either say they saw it not heard it not marked it not or at that time remember it not Yet it is knowen that a witnesse is vrged by the religion of an oath and is not entended to thrust himselfe into the matter willingly which as it ought to serue to take away all offence conceiued by him whom he toucheth so ought it to wash away all feare and other affection in the witnesse Then how much more probably may it be supposed that there is many a meane man though otherwise able to giue good and true information perhaps of three or foure witnesses which doe know the matter more fully and touching other particularities sufficient for a Iudge to enquire and to looke into the partie so denounced who neuerthelesse in many respectes dare not become an open Accuser or a preferrer of presentment of
of sir Th. Mores grounded also vpon resemblance of the practise at the Common law vnto the ecclesiasticall in this behalfe viz. that a man may be at that law arrested and imprisoned onely vpō suspicion he frameth two answers The first of them is that at the common law there must be a fact precedent whereby a cause of suspicion must be grounded otherwise there lieth an actiō of false imprisonmēt What If an offence appeare to be done shal this be sufficient without all peril to ground a suspicion against any man whomsoeuer that it was he which did it so to imprison him Neither yet is it generall that a fact must be precedent before a man be arrested For if it be a fact of such qualitie nature as leaueth traces signes after it as murder Coining and such like which be called by Ciuilians facta permanentia in thē it is true that a fact must be precedent But in such facts as leaue no such traces behind them so y t it is not certain whether they be cōmitted at all or not yet probabilities thereof doe appeare as of speaches secret treaties of cōspiracie treason for such facts a suspected partie may be arrested and imprisoned though it be not assuredly knowen whether the fact be committed at all or not And these are called facta transeuntia Neuerthelesse this is not in any sort an answere vnto sir Th. Mores reason For admit that a fact must alwayes be precedent neuer the later this remaineth true that a Iustices onely suspicion may serue to arrest and imprison a man And yet the law ecclesiasticall for which More reasoneth doth in trueth require strōger grounds for enquitie special thē the Iudges only suspiciō as is afore at large in this secōd part declared The Note-gatherers later answere vnto that reason of Mores is that a felonie or murder being done and a fact manifest the partie apprehended and suspected knoweth that he is to answere that facte and not other by-wayes as is vsed in the ecclesiasticall proceedings Trulie of all that euer I heard these answeres be by-wayes and besides all way too of any reasonable answering obiections It may be that the partie himselfe especiallie if he be not guiltie knoweth not till hee be asked the very particular cause of his apprehension But it will be sayd that vpon his examination hee learneth what it is Why sir and so doe all that be conuented in courtes ecclesiasticall know by their examination the matter obiected Then where is the difference and the by-way that this man so talketh of But will you see his clerkelie vayne of reasoning herein For it is as if he had gathered it thus viz. A man arrested knoweth that he is to answere a fact which is committed Ergo Albeit at the common lawe a man may bee arrested vpon suspicion yet proceeding ex Officio is vnlawfull how good grounds soeuer there be for it farre sounder then suspicion For another inconuenience of proceeding by office importing with all a Contrarietie to the lawes of the Realme the Note-gatherer assigneth that thereby the Accessarie may be punished and the principall may escape which is contrarie to the Common law The consequence hereof he goeth about to prooue thus For that as he saieth the Principall may in those courtes be an Informer and a witnesse both against the Accessarie By which saying his slender skill or experience in those lawes appeareth For it is most notorious that there is no better nor more vsuall chalenge exception against an Informer or witnesse then to alleage quod est particeps vel socius criminis praetensi Albeit euen at the Common lawe we vsually see partakers and complices in coining in other kindes of treason and for sundry hainous crimes especially which are secretly contriued to be admitted to appeach and to be witnesses and to giue euidence against others their partners He affirmeth also but maketh no shew of proofe thereof that hereby the two Iurisdictions be confounded and that proceeding of office is derogatorie to the lawes liberties and customes of England In which respect it is sufficient that these be as easilie by vs denied as they be barelie boldly and vntruly by him auouched He further allegeth in three places as if it were a matter very considerable out of Hall and the Actes and Monuments of the Church that by the statute of 25. H. 8. cap. 14. all proceeding of Office is repealed and calleth the statute against Heresie 1. H. 4. the statute ex officio as if it had bene vnknowen before First that very statute 1 1. Eliz. cap. 1. it selfe of H. 8. standeth repealed Secondly it is very vntrue that it did at any time repeale proceeding of Office For it doth not so much as once mention it And therefore what any writers do name the sayd statute of H. 4. thereby repealed as I haue not sought so is it not materiall seeing they misunderstand it if they so write Yea the Notegatherer himselfe yeeldeth that the sayd statute of K. H. 8. doth establish proceeding of Office if he vnderstand what himselfe writeth For it doth appoint and so he allegeth it that from thenceforth proceedings against Heretikes should be vpon accusation or presentment If vpon Presentment then of consequence by the Iudges Office For so all lawes testifie and Presenters be not Accusers or parties For they are seuered counter-diuided euen in that very place one against the other The principall drift of that statute of K. H. 8. was to prouide that an Ordinarie vpon his owne onely suspicion should not call men into the dangerous question of heresie as it seemeth was afore vsed by some of them vpon colour of that statute 1. H. 4. and therefore there repealed The next statute which to the same purpose he quoteth 2 31. H. 8. ca. 14. is so farre from impugning proceeding of Office that for grounding proceeding ecclesiasticall euen in the crime of heresie it prouideth besides Accusation and Presentment not onely information by two witnesses but also enquirie and that is alwayes of Office But do not these men draw neere the lees when they are driuen thus to allege the statute of Sixe Articles being also repealed against proceeding of Office I had thought their courage in the pretended cause of sinceritie had bene so great that they would rather haue quit the place with losse of their cause then once to haue borrowed so much as the shadow of a weapon out of that store house Against this course the Note-gatherer also allegeth certeine bookes printed in king Henrie the eights dayes Cum priuilegio These hee termeth to be the maner of debating that cause in those dayes The first was made by S. German as it is thought and is intituled The diuision of the Spiritualtie and Temporaltie with his replie against Sir Thomas Moore intituled Salem and Bizance The next concerning the power of the cleargie and lawes of the Realme The third intituled Of
the liberties of the clergie collected out of the lawes of the Realme by Iohn Goodall and printed by Robert Wier but without priuilege And the last Marsilij Patauini Defensor Pacis in English with the Kinges and her Maiesties mothers armes which belike hee mentioneth that they may stand in stead of priuilege But will you see what great and strong debating there was of this matter by the sayd foure bookes Truely sauing in the first of them there is not a word mentioned against proceeding of Office And in Goodalles booke by sundrie places thereof as is else-where in this Apologie alleged this kinde of proceeding is plainely auouched to be a Libertie of the Clergie giuen vnto them by the lawes of the Realme And all that is sayd in that one booke 1 Of diuision betwixt the temporaltie and spiritualtie cap. 7. and one onely place thereof is no more but thus worde by worde viz. Another cause of diuision for that diuers suites haue bene taken ex officio so that the parties haue not knowen who haue accused them and thereupon they haue bene caused to abiure in cause of heresie sometime to doe penance and to pay great summes of money for redeeming Which vexation they thought came by the Iudges and the Officers Therefore the fault that hee then found was not the very proceeding of Office but for that it was handled in such sort that the partie knew not who gaue the information which he calleth Accusing and for that it was in cause of heresie being a crime of farre more important danger to the partie then any other offence Ecclesiasticall yet not challenging the very proceeding thereby for vnlawfull but as being with such circumstances some cause of diuision betweene the two states as he surmised The soundnesse of which iudgement I minde not here to examine The Note-gatherer vrgeth further that the Popish bishops were depriued in king Edward the sixt his time by Accusation or Presentment though as it seemeth hee knoweth not by whether of them But what if they at that time had bene proceeded with otherwise then of Office Woulde this prooue all proceeding of Office to be contrarie to the lawes of England which is his drift and purpose Yet I haue often shewed afore that Presentment is a preparatorie course peculiar onely to proceeding by speciall enquirie of office But for plaine proofe in fact that they were in deed proceeded with ex officio Iudicum I referre me to the actes iudiciall of their depriuation yet remaning and to that also which I haue written in a certeine chapter of the third part of this booke Heere it will not be vnseasonable to admonish the Reader once for all of a palpable 1 Aduertisement of an errour mistaking both of the Note-gatherer and Treatisour in a materiall point who by the whole course of their writings and titles of their bookes seeme to imagine proceeding ex Officio to signifie nothing els then ministring of an oath to the suspected partie in a cause criminall Whereas in verie trueth there may be some proceeding of Office though that oath be not at all vrged or vsed yea and where it ought not to be imposed though it were vrged Like as on the contrarie side there may be proceeding euen by way of Accusation where the oath may and ought to be exacted for the parties purgation perhappes burthened by great probabilities yet not being so pregnant as to conuict him And therefore without all colour of reason and ignorantlie doe they and some others as the late Petitioner to her Maiestie confound proceeding of Office with ministring of an oath being but one Act thereof which is in deed sometimes but not alwayes no nor yet alonely vsed in that course of proceeding Neuerthelesse taking it whether way they lust the sayd Popish bishops were in trueth proceeded with of Office though denounced by certeine and as is expreslie set downe of some of them were vrged and did answere the Articles obiected vpon their corporall oathes which by lawe they needed not and therefore as it is likely would not haue done if the Denunciatours had beene parties To prooue this course to be against law he allegeth also out of a booke made 2 Defence of Priests marriages pag. 175. by D. Parker sometime Archbishop of Canterbury these words viz. The very front of her Graces articles meaning Queene Marie chargeth the ecclesiasticall Ordinaries to put in execution the Canons and Ecclesiasticall lawes none other but such as were vsed in the time of king Henrie the eight And commandeth also moreouer that those should no further be put in execution but as they may stand with the lawes and statutes of the land What then Ergo all proceeding of Office though continuallie practiced in sundrie matters in both their reignes without contradiction is contrarie to the Lawes of the Realme Truely if there be one methode of sound reasoning as Ramus holdeth concerning teaching of Artes I would be sorie this kinde of disputing should be it For I haue not bene taught nor shall euer learne I thinke either to reason thus or to put such Enthymemata into true Syllogismes viz. Such Canons onely were then to be put in execution as might stand with the lawes of the Realme Ergo proceeding of Office is contrarie to the lawes of the Realme His last allegation falling into this place to be discussed that he bringeth in maymed also to prooue this proceeding to be against the lawes of England is out of one of her Maiesties Iniunctions 1 Iniunction 50. Against slanderous and infamous wordes which is thus verbatim viz. Her Maiestie straitly commandeth all maner her subiects to forbeare all vaine and contentious disputations in matters of religion and not to vse in despight or rebuke of any person these conuicious wordes Papist or Papisticall heretike Schismatike or Sacramentarie or any such like wordes of reproch But if any maner of person shall deserue the accusation of any such that first he be charitablie admonished thereof and if that shall not amend him then to denounce the offender to the Ordinarie or to some higher power hauing authoritie to correct the same But what I pray can be gathered hereof more then a care to reteine priuate persons in a charitable course one towardes another without reprochfull wordes vpon any differences of opinions Or doth this reach to the abrogating of any course of proceeding Nay rather it doeth establish it seeing vpon Denunciation which is heere mentioned proceeding of Office may be grounded but not Accusation But the Treatiser saith that heereby the same man is Iudge and Accuser which is contrary to the policy of this Realme that suffereth not an Accusor to be a witnesse nor an Enditour to be a Iuror for triall of the fact I answer that the first is vntrue For that which openeth way to the Iudges Enquirie is holden by Lawe as the Accusour and not the Iudge Touching the second I haue shewed out of
Canons wherewith they hoped they could haue bound others Quod quisque iuris in alium statuit eodem ipse vtatur Hitherto in answere of their obiections pretended to be taken from the Scriptures and ancient Fathers Now for closing vp of this second part and for proofe which with this kinde of men I trust wil be impregnable that an Accusation is not of necessity required in proceeding Ecclesiastical criminallie let them heare what is established by the Discipline 3 Discipl of France tit Eccles. Senate or Consistorie Art 11. being the 6. Article in the Synode at Lions of the French Churches compiled together when Beza was president of their Synode For in this behalfe they determined no more to be required for calling a man before the Consistory but that it be not done without cause sufficient reason Where you see no mention of Accusation to be made either for the first preferring vp or for further prosecution of the cause And therefore their meaning was as the ordinarie practise of all their Presbyterial Elderships is to proceed Criminally against any Denounced vnto them though it be but by one Elder in his Ward or by any other person vnto whom they giue credite neuer knowen vnto the partie conuented without other Presentment or Prosecution of Accuser or partie and therefore of their owne meere Office That this interpretation is not forced and that the practice of their Consistorial Elderships is according thereunto may be made manifest by one 1 Calu. Farello pa 64. Epistolarum in folio of Caluins Epistles vnto Farellus But you are first to vnderstand that by their discipline all dauncing is simply and absolutely forbidden as a grieuous sinne matched with whoredome and is such as for which a minister must be deposed from his function no lesse for the one then for the other Nowe it happened that sundry in Geneua had daunced together in the house of one Balthasars widowe amongst whom one was a Syndicke which is one of the foure chiefe magistrates ofthat Towne and another of them was an Elder of the Church for that yeere This matter comming I knowe not howe vnto Caluins eare they were called to the Consistorie and charged with that offence without any Accuser or partie and therefore of meere office vpon none other ground but because Resmihi comperta fuit saith Caluin I knewe the matter well ynough Neuerthelesse all almost that were conuented denied it at first very constantly At length Caluin iudged that they should be driuen to confesse the trueth vpō their corporal othes This was done accordingly the matter was thereupon confessed the rather bcause Corneus one of the same companie gaue them warning that he would not suffer any of them to be forsworne Yet for all this one Elder Henrich seeing he was to be deposed from his Eldership for it he would not so easely giue ouer his hold but alledged against their course of proceeding with him as in the very like case Tho. Cartwright did not long since in the Consistorie at Paules before sundry honorable persons in Commission and Cartwrightes allegation against the othe ex officia in a criminall cause by Caluin answered long agoe others that place of Saint Paul viz. Receiue not an Accusation against an Elder vnder two or three witnesses But both did it with the like successe For Caluin put him off he saith with a Dilemma made litle lesse then a ieast at his so impertinent an allegation For he saith it was altercatio non illepida a pleasant kinde of controuersie Well notwithstanding this poore defence Henrich the Elder being first reviled and rated of all was deposed from his Eldership and also shut vp in prison where he did exasperate against Caluin the chiefe cause thereof the hatred of so many as did beare vnto him but sclender good will afore The Syndick also was for the same offence put out of his A chiefe Ciuill magistrate deposed by the Eldership of Geneua for dauncing Magistracie vntill he should shewe foorth some publike testimonie of his penitencie Diuers others of that merie companie were likewise for the same crime imprisoned And Perinus though for a time he were stept out of the way as farre as to Lions yet doe what he coulde Caluin there protesteth that he should not scape vnpunished So that we see it was made no Peccadillo or trifling sinne but an heinous criminall matter worthie of degradation of publike penance and also of imprisonment against which that Consistorie so proceeded without Accusation or Presentment and of meere office euen against one of the Elders of their Church and also against a principall Magistrate of their Citie and for which all that denied it were compelled to make answere vpon their corporall oathes first taken to answere the whole trueth which in that behalfe they should be asked by those of the Consistorie Which not onely touched euery mans owne acte but no doubt reached vnto all their Complices also which had troden the same dismall daunce together with them Thus much of this second part touching the two sortes of proceeding criminall viz. by Accusation and vpon the Iudges Office by way of enquirie and for the iustification of the latter of them by reason by lawes temporall of this Realme by lawes Ciuill of the Romanes by Canons by examples and proofes out of Gods worde by auncient Fathers and Councils and by practice of such moderne Churches as the greatest oppugners of this course doe account to be best reformed And therefore is manifoldly warranted both by humane and diuine approbation The ende of the second part THE THIRD PART OF AN APOLOGIE FOR SVNDRIE PROceedings by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuerslie by them impugned Treating Of Oaths but more specially that oaths may be imposed tending to the discouerie of a mans owne offenses and of his brethrens Vnto the end whereof is adioyned A Determination in Latine made to like effect by Master D. ANDREVVS in the Vniuersitie of Cambridge Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie An Aduertisement vnto the Reader I Haue not quoted gentle Reader any Pages in the Treatisours or Notegatherers writings which I haue occasion to alleage because those which I folowed are but priuate written copies but when I had almost finished the reuiewing of this Part I was credibly tolde that the sayd Treatise was put foorth and spred abroad in Print from Scotland or from Middleburgh and I haue since seene the same in print howbeit varying in certaine places from my Copy namely about the latter ende thereof For there bee some additions which in my iudgement differ no lesse from the stile of the rest then they doe from the written copy Farewell The Contents of the Chapters in this third part MAtter 's in this third part to be handled Of the lawfulnesse of Oathes What an Oath is and the reason or originall
layde downe in the printed Register especially by these wordes of them Recognitiones sacramenta provoluntate sua ipsis inuitis For full answere whereof to auoyde vnnecessarie length and vaine repetition I must referre the Reader ouer vnto the xj and xij Chapters in the first parte of this Apologie He affirmeth also that the practisers of such oathes are for that cause in a Pramunire and therefore gathereth the oathe to be contrary and repugnant to the common lawe I graunt the consequence to be good and sound but how doth hee prooue them to be thereupon in a Praemunire For proofe of this he assumeth that this manner of oathe is contrary to the Queenes regalitie and crowne as if his reasons afore brought had sufficiently euinced so much which wee doe vtterly and resolutely deny vnto him And yet as if he had fully cleared that point he addresseth himselfe to prooue that whereof there was lesse controuersie viz. that what is done by a Bishop or by an Ecclesiasticall Court against the Kings regalitie and crowne hath beene heretofore adiudged to be within the compasse of this worde Alibi contained in the Statute of Praemuuire 16. Ric. 2. For this he alledgeth two books of the common law yet 1 5. Ed. 4. sol 6. Praemunire the first of them doth but speake of an excommunication by a Bishop not of euery dealing whatsoeuer in a matter belonging to the Kings regalitie And what if it had beene twise so adiudged both of them in such corrupt times when as the royall prerogatiue of the Kings of this land to be Supreme Gouernours in all Iurisdiction Ecclesiasticall due to them in right and by Gods Lawe was not de facto vnited to the crowne For the Bishops then did not claime their Iurisdictions Ecclesiasticall next and immediately vnder God from the Crowne as now they doe But seeing this parte of Regall power is nowe no lesse truely and fully vested in the crowne then is the Temporall so as the Lawes allowed for the gouernement Ecclesiasticall are termed by sundry Parliaments The Queenes Ecclesiastical lawes and Lawes of the Realme as well as those which were first and originally made heere And the Bishops are proued to haue their authoritie and Iurisdiction Ecclesiasticall deriued downe vnto them from the Queenes Highnes vnder the great Seale of England as vpon fundrie incident occasions hath beene shewed afore Is it then the like reason still to comprise their Iurisdictions and Courts vnder that word of Alibi as if their Courts and Iurisdictions were not nowe the Queenes nor yet belonging vnto her Regalitie Nay let such as shall so affirme beware they incurre not hereby the danger of implied if not direct denyall of a part of her Highnesse Royall stile and the breach also of their oathes taken for assistance and defence of all Prerogatiues c. vnited or belonging to this Imperiall crowne Yea and though this might be truely verified of ordinarie Courts Ecclesiasticall yet is there no colour at all so to affirme of the Commission Ecclesiasticall exercised vnder the great Seale of England by force of the same Statute that restores the Supremacie Ecclesiasticall to the Crowne I omit here what is touched else where viz. howe by sundry learned it hath bene thought that by Alibi there was encluded or meant nothing els but matters of that quality there specified which were enterprised by and vnder the Papall authoritie though the Pope perhaps resided not then at Rome it selfe Therefore seeing this is not pregnant ynough for him to driue this matter neerer home to his purpose hee sayeth it is against the Kings Regalitie and so a Praemunire for an Ecclesiasticall Court to holde plea of a matter appertaining to the Iudgement of a Common Lawe Court or to deale in any cause not belonging to Ecclesiasticall Iurisdiction The first of these he prooueth by the pardon sued by Barlow Bishop of Bathe and Welles in king Ed. 6. his time by reason hee had depriued the Deane there being a meere donatiue of the Kings If there were but any probable doubt whether thereby hee were fallen into a Praemunire it was wisedome for him to procure a pardon afore hand if he could Alealitis resincertissima yet depriuing of one placed by the King is much more then bare holding of some plea that appertaineth to a temporall Court besides that there was a further matter in it then I last here to open The other allegation of his to like ende taken from a 1 38. Ed. 3. of Prouisours Statute doth make no shew of proofe thereof for it is but thus viz. the King chiefly desireth to susteine his people in tranquilitie and peace and to gouerne according to the Lawes Usages and Franchises of his land as hee is bound by his oathe made at his coronation And are not Ecclesiasticall persons nowe parte of the Queenes people Are not the Liberties and Franchises that bee giuen and confirmed vnto them by the goodnesse of Princes for holding plea in certaine matters the vsages of this Realme Are not the receiued Lawes which lawfully they may practise termed Ecclesiasticall Lawes of this Realme no lesse then temporall be And is not the Prerogatiue royall in and for causes Ecclesiasticall as high and as rightfully setled in the Prince and incident to her Highnesse Crowne and Regalitie as the same is for temporall power and authoritie What cause is there then seeing seu Alibi in the Statute signifieth in true construction anie place whatsoeuer besides Rome that euery holding plea by an Ecclesiasticall Court of a matter wherein it ought not to holde shoulde at this time bee reckoned a thing contrarie to the Queeenes Regalitie more then dealing in an Ecclesiasticall cause shoulde bee in anie temporall Court at Westminster For no Statute of Prouision or Praemunire assigneth these for causes which haue indeede but growen since by collections whiles the Popes vsurpation was continued in this land against which oftentimes the remedie by Prohibition coulde not serue the turne I graunt it is a contempt or great misprision in any but for this a Prohibition and attachment thereupon c. as afore those Statutes they did might sufficiently serue the turne Neuerthelesse all these matters are wholly impertinent to his purpose till he shall haue prooued the particular issue viz. that such oathe as wee treate of is against the Queenes Regalitie c. But if that might be prooued then vpon so generall interpretation of Alibi these oathes would fall into the case of Praemunire by what Court soeuer whether temporall or Ecclesiasticall they should be tendered And that which he vowcheth to the same effect out of Saint Germans booke of Doctor Student receiueth the like answere In the next place I set some of the Treatisors reasons that are made by collection and discourse of reason These collections he maketh partly from examples past and partly at large therefore touching the first of these two he impugneth these oathes and would prooue
the Imposers of them to be in a Praemunire for incroching vpon the Kings rights and prerogatiues and for conuenting subiects by forrein made Lawes and for practising Antichristian Decrees and Popish Canons which hee sayeth appeareth by the Praemunire brought by Hunne against a person suing the said Hunne for his yoong deceased infants bearing-cloth by the name of a Mortuarie in an Ecclesiasticall Court howe doth this inferre that it is Praemunire either to encroch vpon the Kings rights prerogatiues though this peraduenture by some circumstances may amounte sometimes to no lesse or to conuent subiects by foreine made lawes It may not be thought that euery intrusion deteiner or concealement which is incroching vpon the Kings right or rauishment of his wardes which hee ought to haue by his Prerogatiue Royall is straightway and necessarilie a Praemunire neither were the Kings Temporall Courtes in this case encroched vpon because they could not giue remedie for deteining a Mortuary if this were so in trueth to be accounted neither yet is there so much as any mention made of foreine lawes which the Ecclesiasticall Court then proceeded by or practised This course of the Treatisour is rather to prophesie then to reason thus to tell vs afore hand vpon the very bringing of the action of Praemunire by Hunne what the iudgement was in that matter yea and vpon what ground the iudgement was giuen in a cause which neuer receiued iudgement for any thing I can learne To this point he also mentioneth the Praemunire wherein blind Nixe sometimes Bishop of Norwich was condemned and addeth to the aforesaid two points that by that also appeareth Iudges Ecclesiasticall are in Praemunire whensoeuer they exceede their Iudiciall authority But if euery exceeding of authoritie were a Praemunire then what Iudge is there of any court of either sort so skilfull or alwayes so aduised but might iustly feare that at one time or other he shall not escape this rigorous doom of Praemunire In trueth this example prooueth all his three points iust alike that is none of them at all I doe verily beleeue the Treatisour neuer sawe that Record if he haue either he makes verie bolde with his Reader or else with the Arte of reasoning thus to collect I haue perused the Record 1 H. 25 H. 8. Rot. 42. Suffolk it selfe it containeth a suite of Praemunire brought against the saide Bishop by the Kings Attourny generall on the Friday after the Pâ—…rification pleading the Statute of 16. Ric. 2 and adding that al Indictments Presentments and Impetitions in any court of the Kings 2 B. Nixe his condemnation in a Praemunite or in any Court of a subiects which is in any sort deriued or diduced from the Kings crowne duely taken or found are to be tried iudged in that Court where they were found or in some of the Kings Courts and not in any Ecclesiasticall Court and that whereas there was an old custome in the Towne of Thetford that whosoeuer should trouble any of the Kings or Duke of Lancasters tenants commorant in that Towne and shoulde call them by citation into an Ecclesiasticall Court out of the Deanery of the saide Towne shoulde thereby forfeit and he also that should execute such processe should also forfeit 6 shillings 8. pence which custom by a Iurie of twelue men being accordingly presented before the Maior the said B. cited the Maior two others to appeare personally before him in his Mannor and Chappell at Hoxne or Hoxstone in Suffolke The Maior and the one of the other two appearing and hauing nothing obiected but that presentment made were by the B. enioyned vpon paine of excommunication at the next court of the Kings to be holden in Thetford to call the same Iurours together and therepublikely to adnull and reuoke the said presentment as being against Gods Lawe so that saith the Record the B. did in an Ecclesiasticall Court iudge of the presentment being duely made in the Kings court and enioyned the reuoking and disanulling of it against the King his regalitie crowne c. wherevpon immediately the Bishop appeared and desired libertie of imparlance till monday next after and had it graunted vpon good mainprise c. On the prefixed monday the B. appeared againe and said he could not deny but that he was culpable in all the premisses put himselfe thereupon into the Kings hands c. so had iudgement to be from thenceforth out of the Kings protection and al his lands and tenements goods chattels to be forfeited to the King and that he should remaine in the custody of the Marshall quousque c. but presently vpon special grace of of the Court he was let to baile in a far lesse summe then afore for his appearance in Easter terme next after At what time hee appeared by his Atturney and both he and his pledges were discharged by vertue of an Act of Parliament made the same yeere Whereby wee may see that encroching vpon the Kings rights c. is not heere specially assigned for any cause of such iudgement and much lesse is the practising of any Canons or forreine made Lawes for they are not once mentioned and least of all that euery exceeding of their authoritie by any Court shoulde be a Praemunire For the originall and onely cause hereof was the B. enioyning of the Maior and of another townesman of Thetford vpon paine of censures to adnull and make voyde a presentment first duly made in a temporall Court of the Kings It is also to be noted out of the generall Atturneys bill in this Record where it is saide that presentments c. found or made in the Kings or in a subiects Court which is in any sort deriued from the Kings crowne must be tried there or in some of the Kings Courts and not in an ecclesiasticall Court that at this time Courts ecclesiasticall were not holden to be deriued any way from the Kings Crowne as no we they are and so bee acknowledged and indeede by conferring the times I finde that this fault of the Bishop was done in Nouember 24. H. 8. hee was attainted in Hilarie terme 25. H. 8. which is a yeere and more after and it was in a Parliament time that was continued till 30. Martij next aster Now the supremeheadship ouer the English Church was not yeelded vnto the King vntill the Parliament by prorogation holden the third of Nouember then next following viz. 26. H. 8. That which the Treatisour collecteth by Cardinall Wolseys Praemunire and the whole Cleargies also for assenting to and assisting the Court Legatiue which the saide Wolsey had erected hee himselfe doth sufficiently confute for albeit hee doe affirme that Wolsey was in a Praemunire for preiudicing but ecclesiasticall Courtes and not the Kings and thence gathereth thus How much more those which practise Antichristian Lawes and Popish Canons repugnant to the royall Matestie and policie of this laend yet doeth hee by implication contrary his owne
iointly if some one of these must necessarily be foūd in euery lawful oth then to what purpose serue those other seueral ends of oathes here not required nor mentioned viz. that honor may be giuen to God Innocencie protected and Iustice mainteined Seing there may be assurance of dutie couenant contract or promise giuen without any seeking to glorifie God thereby as heathens othes of obediēce to their superiors any other mens oathes for assurance of promises c. without respect to protection of Innocencie and without such Iudiciall course namely as may happen in priuate cōmerce betwixt man man From these reasons by him simply propounded I wil now come to his reasons by way of cōparison He cōdemneth this othe by comparing it to Herods othe that as that was generall to giue whatsoeuer the damsell woulde aske so these are to answere whatsoeuer shal bee demaunded This his imputation vnto Ecclesiasticall courtes of tendering such generall oathes which he so often and almost onely beateth vpon to the entent to giue a better lustre to the weakenes of the cause he defendeth I haue as seueral occasions haue bene giuē declared to be a meere slaunder Neuerthelesse it was not the generalitie of Herods othe which was cōdemned For the prophet Ieremie made vnto y e king as generall a promise of answering what he would demaunde of him as Herod made of giuing vnto the dauncing damsell But it was the rashe vnaduisednes of it rising vpon a carnall delight and when he had made it a more vnlawfull performance of a thing simply wicked which are the things therein to be condemned Next to his collections by discourse of reason I place his answeres vnto obiections which are supposed may be made for establishing general othes or other more particular yet in causes criminal to the partie examined The first of which is that of 1 Ioann 18. v. 19. 20. 21. the high Priests who examined Christ of his disciples and doctrine he put them of to those that heard him saying he had spoken nothing in secret But neither answering to interrogatories being so general as this was nor general othes are defended And if they were yet it is not the example of the high Priest refelled by Christ that any would alledge as he pleasantly doth insinuate to burden them and the cause with the greater weight of enuie and preiudice But touching this obiection the true vnderstanding thereof more fully in the next Chapter as in a more fit place Touching the next supposed obiection he saith It is not any sufficient allegation to saye that the partie deponent is no further bound to answere then the lawe requireth how generall soeuer his oath be since it is not safe for the conscience of such a deponent to stand vpon termes and questions how farre by lawe and by what law he is bound to answere Not safe for his conscience c is not this plainly and directly to leaue it vnto the libertie free choise of ech deponent in euery cause whatsoeuer to refuse to take any oath thē which what can giue greater strength vnto that detestable error of Anabaptisme for if it be not safe for his conscience to put it vpon the question how farre by law he is bound then may and also ought the Anabaptist and euery other fantastike to be a Iudge for himselfe whether to take any oath at all or onely so far and in what cause himselfe listeth vnder pretense of his conscience In that hee saith how farre by lawe c. it seemeth to me that he is in doubt both that Gods lawe and all the lawes of the land are against the refusall of such oathe and yet that hee would neuerthelesse arme all deponents against taking this oath because it may not be done forsooth with a safe consciēce In y t he further addeth and by what law it is probable he would thereby insinuate that howsoeuer it wil not be thought good by many of thē to be resused when it shal be imposed in courts of the temporol law yet if the same oath be imposed by force of ecclesiastical law that it cannot then be so safe vnto the deponents conscience Assuredly it is most strange that men pretending such pietie and sinceritie will teach others thus to dally with lawes and with their owne consciences as if the thing were godly enough to be exacted in one court but perillous to conscience in another Court albeit as well authorised vnto the one as it is vnto the other Insomuch as here he yeeldeth that this cōdition of not being bound by any such oth taken further then law requireth is obserued or vnderstood in ministring the oths which he impugneth doth he not thereby plainely discouer himselfe to be an oppugner of that which is but by law vrged and an encourager of others to oppose thēselues against lawes or else it must follow that none that be in authoritie do know the lawe therein besides himselfe or at least will not deliuer it truly doth he not also therein imply that in some cases the lawes allow of such oathes and that his charge of ministring oathes that are generall vnto all a mans thoughts words and deedes is a plaine slander insomuch as no law requireth that and yet the takers of this oathe are no further bound then the law it selfe bindeth And lastly it appeareth hereby if these oths restrained but vnto that which law requires be neuertheles vniust cruel vngodly tyrannicall that then the lawes of this realme establishing thē must needes endure his like hard vntrue and disloyall censure It hath bin often and no lesse truly said that none but Iesuites Seminary priests such like obstinate Papists haue refused this oth in hir Maiesties time or haue charged it to be vngodly vntil these new reforming Innouators did start vp that both the sorts of thē do build vpon the selfe same grounds of argument In answer of this he saith that by the ancient godly writing entituled The praier and complaint of the Plowman it appeareth that this kind of generall othes and examinations ex officio mero were not first misliked by Iesuites and Seminarie Priests and from them deriued to others that mislike gouernement and would bring the Church to an Anarchie as the world hath bene borne in hand For general oaths we stand not but who first misliked examinatiō ex officio mero or which of these two sorts of mislikers haue troden in the others steps by imitation is not so material as with what trueth or soundnes of reason it is misliked by either of thē I haue not the Ploughmans booke to peruse what is indeed there said here of neither greatly skilleth it though he were perhaps a good diuine disguised vnder a ploughmans title and stile If he had vsed any reason for his saying I doubt not but the Treatisour would haue enforced it But it followeth not that whatsoeuer in elder times hath bin by
what they are lawfully commanded albeit trouble and punishment by that occasion shal happen vnto them that so take offence So that this example doth make flat against their owne purpose and intention and can no way helpe them Another example they bring of 2 1. Reg. 1◅ ver 4 13. Obadiah who hid 100. Prophets in two caues secretly and susteined them with necessaries when Iesabel slewe the other Prophets whom she could hit vpon But this commeth farre short of the purpose for which it is brought For who euer denied it to be lawfull to shewe charitie vnto the Lords Prophets then there appeareth no commaundement to the contrary but that he might receiue them againe it doth not appeare that he was euer by authoritie charged to reueile them or to tel his knowledge what was become of those Prophets and therefore it is vnlike to the case in handling furthermore it was wholly an vniust wilfull and tyrannous persecution without warrant of law or colour of any iudiciall proceeding besides if he had bene charged by Iesabel to discouer where they were or had beene commaunded by her to relieue none such yet had it bene no disobedience towards the Magistrate for it is not noted to be the doings of the king but that Iesabel slew them Now the kings wife is no soueraigne but a subiect her selfe Moreouer the killing of the Prophets for no pretence or colour of cause at all is in it selfe so apparant an euill as no man can haue any shadow to giue a lawfull consent vnto it Lastly a man cannot gather a generall doctrine in a matter doubtfull and not plainely deliuered els where in Scripture out of any particular mans fact because all the circumstances which then fell out are not knowen But most especially an example can neuer serue to the ouerthrow of the generall commandement of obeying the Magistrate And viuendum est legibus non exemplis Out of the first booke of Samuel they bring three other examples 1. Sam. 19. ver 1. 2. The first that Saul spake to Ionathan his sonne and to all his seruants that they should kill Dauid but Ionathan Sauls sonne had a great fauour vnto Dauid and bade him take heede c. The second when Saul said to Ionathan Send and fetch Dauid vnto 1. Sam. 20. ver 31. 32. me for he shall surely die Ionathan answered Wherefore shall hee die What hath he done the third that when Saul commanded his seruants to fall vpon the Priests of the Lord to slay them they would 1. Sam. 22. ver 17. not moue their hands to fall vpon the Priests of the Lord. To these three one answere may serue and therfore they are thus set together First these commandements though of the king yet they were when he was enraged and in a furie after the Lord was departed from him an euil spirit was come vpon him Againe it is apparantly vngodly in it self for any to kill an Innocent vpon the tyrannous and vnaduised commandement of the king euen without all colour of any lawful Iudiciall course Lastly Dauid was knowen vnto them to be afore appoynted yea their annointed king from the Lord howsoeuer Saul was tolerated de facto to continue in place till the measure of his iniquitie was fulfilled And therfore in this respect was it vnlawful to kil either him or those that fauoured him especially the Lords Priests whose linnen Ephod should be a protection vnto them against Ibid. ver 18. al such precipitate executions where neither conisance of their cause nor any due conuiction and iudgement was precedent Another example they bring of the mid wiues of the Israelites to proue their intention It is thus written they feared God and did Exod. 1. ver 17. not as the king of Egypt commanded them but preserued aliue the men children This obiection carrieth his answere with him For it is said they feared God therefore did not herein as the king cōmanded noting vnto vs that the cōmandement was such as could no way stand with the feare of God There is no Prince in the world to bee obeyed when he commaundeth any thing directly forbidden by God for it is better to obey God then man The Prince is no God nor yet Gods Lieutenant but a meere man in that which he cōmandeth directly contrary to God That this was of that kinde it appeareth for to kil is manifestly by y e moral law of God nature forbidden Yet this hath his exception viz. that it is no murder when we execute the penaltie of lawe vpon murderers other wicked persons duely conuicted condemned For he that Gene. 9. ver 6. sheddeth mans blood his blood shall be shed by man saith the Lord. But there could be no colour or apparance of any actual wickednesse in children newly borne why they should be executed being but by a generall iudgement condemned most wickedly and tyrannously euen before they were non censetur existere saith the law qui adhuc est in vtero matris Now let vs compare these last foure examples with the scope and purpose for which they are vsed The very act of murdering a person notoriously innocent in that he is neither conuicted nor condemned is malumper se a thing simply and absolutely in his owne nature euill without any further circumstance But to declare what a man knoweth to be done by another the very authours themselues of this opinion must needes confesse to bee sometimes lawfull and requisit and therefore they must at least graunt it to be medius Actus such as by circumstance may be lawfull howsoeuer by the circumstances of this case as it is propounded they will perhaps hold it vnlawfull And therefore there is such dissimilitude and diuersitie betwixt these examples and that which they holde as they can neuer serue this purpose Therefore to fit their turne in the very poynt of the issue they must proue vnto vs that it is vngodly for any man though charged by lawfull authoritie to declare his knowledge of another mans actions if hee that is vrged so to make declaration doe iudge afore-hand that the Magistrate mindes to punish such action either where he ought not at all or in other sort then Gods law permitteth For this purpose they alledge as strongest the example 1 Iosh. 2. ver 3. 4. of Rahab who would not tell the king of Iericho where the two spies of Israel were though she were by him commanded to bring them foorth and she is commended for it by the 2 Heb. 11. ver 31. holy Ghost In answere hereof I say we reade not that the king asked her whether they were there still or not albeit shee 3 Iosu. 2. ver 5. answered that they went out but she was commanded to bring them forth which is something more then to tell where they were if she had beene so asked Secondly by 4 Heb. ibid. Iosu ibid. V. 10. faith
lawe then can it not bee auoided but that the Treatisour in very deede had such an vnduetifull and slaunderous purpose and reach in his words aforesayd To the second degree of their bare affirmations such speaches of Temporall Courts practise or forbearing to practise as these following bee doe belong videlicet that such a generalloathe or such like ex officio was neuer offered nor taken for you may perceiue he is not resolued throughly whether of these two hee had best insist vpon or take for his issue And that the common lawes haue euer reiected and impugned it Likewise that it was neuer put in vre by any Ciuill Magistrate of the land but as it is corruptly crept in amongst other abuses by the smister practises and pretenses of the Romish Prelates and Clergie-men which asseueration as it is in that part voyd of all likelyhood where it is surmised that the practises pretenses of Clergie-men did first shoulder this oath into Ciuill or Temporall Courts so is it yet an implied kind of confession that it is not such an Alien to the Ciuill pollicie of the Realme nor by it wholie reiècted impugned as in his treatise he beareth vs strangelie in hand Besides that such implication is flat repugnant contradictorie to y e Note-gatherer who writeth that it was neuer vsed here to make men accuse themselues for by this accusing he meaneth giuing of oaths to defendants touching discouerie of some their owne offences Lastly that where losse of life libertie or good name may ensue the Common law hath forborne oathes As for losse of life it is yeelded to be true which he here saith but not so for the other two for the Starre-chamber being a Temporall or Ciuill Court imposeth oathes where both infamie may and doeth follow for punishment and where libertie is restrained most often by imprisonment and sometimes also by banishment Vnto the other head of their bare affirmations which is what the Common lawe holdeth in this behalfe such of their speaches as these following doe appertaine videlicet to giue oath they meane to the defendants in causes of life and death is contrarie to the Iustice of the lande This albeit it no way impugne any practise Ecclesiasticall yet is it flat repugnant to the Note-gatherers assertion spoken vnto in the 1 ca. 10. pag. 93. second part Agayne that the Common lawes haue not appoynted an oath to bee vsed but according to the right institution thereof and that in causes capitall or criminall these lawes neither vrge by oath nor force by torment a thing most cruell and barbarous and therefore agaynst torturing he alleageth master Fortescue in his booke De laudibus legum Angliae It is wholie besides my purpose either to auow or disauow here the course of finding out trueth by torture yet much might on both sides probablie bee sayd therein both by reason and also by graue authoritie That the defendants oath in causes capitall neither is vsed nor allowed by the lawes of this Realme I doe yeeld vnto him as afore I haue sayd but for torture let me neuerthelesse put him in minde that it may perhaps be thought of very hard to haue it thus affirmed that the torturing of supposed Capitall offenders not only vsed in Campes but also within the Marches principalitie of Wales euen in time of peace well warranted by her Maiesties instructions and by Act of Parliament in the Tower of London for matters of treason should all of them be accounted absolutely contrary to lawe or which is more to bee courses most cruell and barbarous The other poynt thereof which is of not vrging a defendant by oathe in any cause criminall is the maine point here trauersed betwixt vs and therefore may not be caried thus away by him per petitionem principij without some sound reason All these aforesayde speaches I doe muster amongst their bare affirmations and haue the longer stoode vpon them because themselues doe not so much as assaie or vndertake to prooue most of thē by any colourable argument or authoritie for that the reasons which they tacke on vnto some of them doe not hang together by any consequence and for that diuers of them might bee granted without any detriment to the cause which wee defend for they be but voluntarie speaches let slip at randome this therefore commeth vnder his mistaking of the true issue yet they be such as seemed not vnmeete to bee mentioned least if the Author of them doe happilie holde them for sound reasons hee should complaine to haue a piece of wrong offered vnto him for that all his booke was not spoken vnto and answered Next doe follow those their reasons to be discussed which they take from the lawes of this Realme and first concerning such of them as be made out of Statutes and afterward we will come to their booke cases That which hee speaketh of Magna charta albelt he handle it last yet for the ancientie seemeth to deserue the first ranke he auoucheth no particular part thereof but taking as graunted a contrarietie belike in his opinion not trauersable to be betwixt proceeding by this oath and the sayd Statute he onely in high wordes telleth vs of a most iust curse of Anathematizing laied by the Bishops then against all wilfull infringers of that Charter If I should gesse what poynt thereof it is which hee intendeth to bee so contrary to these oathes I would take the nineteenth chapter thereof if any to bee meant both because putting to an oathe is there mentioned and for that I haue heard it to like purpose alleaged by some other Howbeit the Treatisour hauing farre better insight as seemeth in lawe then hee that so alleaged it thought good to skippe it ouer without all allegation for feare it would not so wel helpe his turne The wordes are these videlicet No 1 Magna charta ca. 19. Bailiffe shall from hencefoorth put any man to his open lawe nor to an oathe vpon his owne bare saying without faythfull witnesses brought in for the same I must confesse that these wordes are some thing too obscure and darke for mee to vnderstand what is positiuely and preciselie meant by them and so much the rather because I know not the vsage afore that time which thereby was ment to be remedied except I should coniecture that the bare saying there spoken of is to bee referred to the man that taketh the oath and not to the Bailife and then would it seeme to establish that practise which is vsed in waging of lawe with two or more witnesses or handes concurring with his oath that sweareth Howsoeuer it be in verie deed to be vnderstood it is easie inough to gather what can not be meant by it First therefore it cannot any way be extended to proceedings and courtes Ecclesiasticall for whatsoeuer is in that Statute graunted after confirmation of the Churches liberties except it bee otherwise plainely expressed is referred to Courtes