upon contempts arising on other causes Ecclesiastical then any of those ten crimes mentioned in the Statute 5 Eliz. 23. C. 17 Of a Prohibition what it is where it lyeth not and where it doth and how it ceaseth by a Consultation and of the Writ of Indicavit C. 18 An Analysis or unfolding of the two special Statutes touching Praemunire with sundry questions and doubts about that matter requiring more grave resolution Then in the second part of his Apology the Doctor sets forth his Proofs together with his Answers to the objections made against the manner of practice of Jurisdiction Ecclesiastical by those that oppugn it C. 1 Of the distinction of Offences and several kinds and ends in punishing them with the necessity of punishments C. 2 Of two sorts of prosecution of crimes and offences viz. by a party and of office the practice of them in Scripture and in the several Courts of this Realm C. 3 Of the sundry kinds of objecting crimes by a party mentioned in the Civil Law as by reason of a mans publick charge and function also by way of Exception Supplication Complaint Delation and Accusation The true signification of the word Accusatio its divers acceptions definition and exposition thereof with some reason of the frequency of Accusation in Courts of the Civil Laws in former times is also declared C. 4 That the prosecution of crimes by way of Accusation is in most places forbidden or grown into disuse The reasons hereof be partly the danger to the Accusers and partly the hatefulness of that course Therein also is disputed whether all Accusation be unlawful and certain points delivered to be observed by all them that will accuse others C. 5 Of the several acceptions of the word Officium the signification of the words Inquisitio Questio crimina ordinaria extraordinaria the reason why enquiry by office came in place of Accusation Of Enquiry in general and special of-Enquiry special Ex officio nobih sive mero mixto promoto and of the privileges of proceeding ex mero officio above the other C. 6 Of Denunciation a special means of stirring up the office of the manifold use thereof on the other side the Sea The general acception of that word and of four kinds of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expences and what course of dealing against crimes and offences is holden both in Courts of the Ecclesiastical Commission and in ordinary Courts Ecclesiastical of this Realm C. 7 That the Civil and Canon Laws allow sundry means to ground a special Enquiry of office against a crime besides Accusation and Presentment therein is also conteined an Answer to a supposed Rule end declared how from general they descend to special Enquiry And that besides those two either a fame or clamosa insinuatio or private judicial Denunciation or Canonical Denunciation or Indicia or taking with the manner or other notoriety of the fact or impeachment by some of the Complices or collusion of the accuser or the not objecting in due time or when the Enquiry tendeth but to a spiritual punishment may severally any of them serve to warrant such enquiry with some observations touching the nature of most of these C. 8 That to proceed sometimes against an offence otherwise then upon Accusation or Presentment or then upon an Appeal or Indictment which two at the Common Law have respective correspondence unto the two former is no diverse much less any contrary or repugnant course to the Laws Statutes and Customs of this Realm This is proved by Common Law Statutes and practice in proceedings informative and punitive with answer to certain objections made to the contrary C. 9 How the second opinion here to be treated of is that no Lay-person may be cited of office in any cause but Testamentary or Matrimonial and that the drift of that opinion is against proceeding of office in matters criminal The necessary use and equity of proceeding somtimes criminally by the Judges office in Courts both Temporal and Ecclesiastical C. 10 Conteineth an Answer to some further objections made against the conveniency and reasonableness of proceeding against crimes of office C. 11 That the Laws of the Realm do use Enquiries and Proceedings ex officio that they allow it in Courts Ecclesiastical with answer to some objections that are made to the contrary C. 12 Is set down a Reply to the Note-gatherers answers given to certain reasons that have been made long ago for to shew the like course to be also practised in Temporal Courts and an answer to his reasons brought to prove that in proceeding of office there is some contrariety unto the Laws of England C. 13 That the Enquiry ex officio against crimes is allowed both in Civil and Temporal Courts and in Ecclesiastical also by the two Laws Canon and Civil C. 14 Conteineth an answer to such objections as upon the Civil or Canon Laws are brought against all proceedings of office in causes criminal by the Treatisor and the Note-gatherer C. 15 Enquiry and proceeding of office without an accuser and grounded upon some other of the means afore proved sufficient to enter into such enquiry is approved by sundry examples of Scripture C. 16 An Answer is made to such objections as out of Scripture or Ecclesiastical Writers be made against criminal proceeding of office by the Note-gather and others In the third part he concludes upon the whole matter for which his Apology was made C. 1 Of the lawfulness of Oaths What an Oath is and the reason or original formal cause of the use of Oaths C. 2 An Answer to certain doubts made concerning oaths as namely why in Scripture God is said to have sworn how by Oath he is said to be called to Witness An Oath no tempting of God but a part of his Worship Why nevertheless some are repelled from taking Oaths Whether Adjuration be lawful After whose meaning an Oath is to be understood Whether every promissory Oath be simply to be kept Whether an Oath may be dispensed with and how far and whether a Christian may by mutual Oaths contract with him that sweareth by false gods C. 3 Division of Oaths according to the outward form of taking them according to the matter and inward form of them with plain description of every kind of Oath C. 4 That the Ceremonies used in taking and giving of corporal oaths with laying hands upon the Bible or Testament and swearing by the Contents of it are not unlawful C. 5 The true issue of the next Opinion in question Two sorts of crimes and offences prohibited In what causes an Oath here spoken of may not be ministred and the manifold convenience and necessity of an Oath sometimes to be ministred in a cause criminal and penal unto the party with some few objections touching inconveniences thereof answered C. 6 That Oaths of men touching matters damageable criminal and penal to themselves are urged and acted by Temporal Courts and
sentence viz. Sed proditus per famam tenetur seipsum ostendere innocentiam suam purgare The accuser of his brethren cited Scripture to our Saviour sayes he Mat. 4 6. He shall give his Angels charge concerning thee and in their hands they shall bear thee up c. leaving out that in the Text that follows after these words Psal 91.11 He shall give his Angels charge concerning thee that is to keep thee in all thy wayes which alters the case That note or comment upon the Law or if they will needs call it a Rule or Maxime it matters not Nemo tenetur seipsum prodere vel accusare sive propriam turpitudinem revelare is to be understood in crimes simply secret and which are no wayes disclosed or come to light But when such secret sins are by some of those wayes that open a way to enquiry of a person supposed criminous come abroad and so in some sort are manifested then those former rules cease and that of St. Chrysostom comes in Homil. 31. ad Hebraeos Non tibi dico ut te prodas in publicum neque apud alium accuses but upon such disclosing then Proditus tenetur seipsum ostendere innocentiam suam purgare This is for the avoiding of scandal and that the party may be reformed Therefore doth Aquinas himself reason thus Thom. 2.2 Cum quis saith he secundum ordinem juris à judice interrogatur non ipse se prodit sed ab alio proditur dum ei necessitas respondends imponitur per eum cui obedire tenetur As for tendering the Oath to the party where there is an accuser that is not done upon the crime till the fame be proved or sufficient presumptions circumstances indicia or suspitions or semiplena probatio the oath of one sufficient witness at least to induce the judge to give that oath though penal in some sort to the party This practice he proves consonant to Gods Word to the practice of the primitive Christian and the opinion of the holy Doctors and Fathers of the Church as also consonant to the practice of Geneva and other at least seemingly strictly reformed Churches and to the practice of all Christian Nations and other Nations not Christian guided onely by right reason and the Law of Nature as also that by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that oath the Ecclesiastical Laws and Canons being full and clear in that point Then he shews how the proceeding at Common Law in this Land is the same not onely in some criminal but civil causes also For private debts 'twixt private persons penal to them as in Wagers of Law sometimes for a greater sometimes a lesser debt 'twixt two private parties with the parties oath that is accused and his Compurgators too even as in Purgation Canonical in the Ecclesiastical Courts together with other Purgation or Decisory Oaths at Common Law Proceedings in Chancery with the several species and kinds of cases wherein such Oaths at Common Law are tendered being very numerous and are by him cap. 6. in the third part of his Apology and other parts thereof reckoned up and fully set forth And if this may be done in civil causes ought it not much rather be allowed the Church in criminal which works onely medicinaliter to reformation the Common-wealth works ad poenam the Church not so this to the amendment of the party to bring him to a voluntary submission and to take away the offence and scandal which he hath justly given to his Neighbour and to lead a new life that perhaps to the loss of liberty corporal punishment or livelyhood at least besides the infamy of being convicted of doing dishonestly and unworthily CHAP. V. That it is consonant to Gods Word to give such an Oath Ex officio or otherwise Rom. 13. EVery soul is to be subject to the Higher Powers This is to be understood in all commands not contrary to Gods Word in such comes in the Apostles rule Acts 5.29 It is better to obey God then man That the giving such an oath is not contrary to Gods word An oath duly imposed by the Magistrate necessitates the Subject to take it as appears by the commandment of God himself Thou shalt fear the Lord thy God and serve him and shalt swear by his name The like is given by the Lord in the Prophet Jeremy Jer. 4.25 O Israel thou shalt swear The Lord liveth in truth in judgment and righteousness Joshua gave charge to all the Magistrates of Israel that Josh 13.2,7 They shall not make mention of the Gods of other Nations nor shall cause to swear by them Saul did not onely charge the people with an oath but 1 Sam. 14. made them vow with a curse not to eat any food that day till night therefore one of them reported to Jonathan Sauls son That his father had made the people to swear Some would cavil at this as but an Adjuration and would without reason difference that from an Oath but in that Chapter 1 Sam. 14. it is four several times called an Oath The wise King Salomon imposed an oath upon Shime◠in a cause capital to him 2 Kings 41. Did not I make thee saith he swear by the Lord c. So King Saul 1 Sam. 24. urged David to swear unto him For a private offence only between Neighbours King Salomon testifieth that a necessary oath of Purgation may be required by the Complainant 1 Kings 8. When a man shall trespass against his neighbour and he lay upon him an Oath to cause him to swear c. King Josias 2 Chron. 34. made a covenant and vow and caused all that were found in Jerusalem and Benjamin to stand to it Nehemiah Neh. 5.12 caused the Priests to swear c. It is assigned for a special mark of a Godly man Num 30.3 Psal 15.4 To swear to his neighbour and not to disappoint him though it be to his own hinderance Abraham said thus to his servant I will make thee swear by the Lord God of the Heavens c. Gen. 14.3 this in a private cause much more a Magistrate in a cause wherein the Commonwealth or Church of God hath Interest to have it sincerely dealt in Gen. 25.33 Jacob moved Esau to the sale of his birthright and took an Oath for confirmation of it Deut. 19.17 A man supposed to have born false witness against another is thereof brought in question and re-examined if it be objected it was not upon oath by consequence of reason it must be upon oath when what he has said before upon oath is re-examined and this in a case very penal to him The oath of Adjuration is very frequent in Scripture Prov. 29.14 about not declaring cursing which he heard By the History * Jud 17 1,2 of Micah as we are †1 Cor. 10.3 bound
concluded 1571. by the French Churches For Purgation Canonical as it was used in the Ecclesiastical Courts of this Kingdom in a word 't is the same in these Courts in a criminal cause as at Common Law a Wager of Law is in a civil cause differs no more then thus this is touching out Lands or Goods that touching our Good name and Credit It is so far from being condemned by good and godly Bishops in ancient times that by whole Councils it hath been prescribed Concil Tribur canon 21. Let a Lay-man saith one Council if need be purge himself by his Oath and let a Priest by the consecration of the holy Sacrament be interrogated And another Council thus Ivo lib. 5. ex concil Agath Let a Priest if he can purge himself of the crime with seven of his Order and a Deacon with three So was it decreed by a third Council Ivo ibid. ex concil Herdeâ— If a Priest or Minister be infamed amongst his charge and it cannot be proved before the Bishop by witness let him be suspended untill he perform due satisfaction lest the faithful people be scandalized But as our Elders have taught then is the satisfaction due and orderly when according to the Canons or as the Bishops shall judge fit he joyneth unto him seven Compurgators and swears by the holy Gospel laid afore him that he hath not committed the crime laid unto him When he is thus purged then let him again freely execute his office And in another Council we find Concil Worm Purgation prescribed for Theft and also for Adultery and according to the prescriptions of these Canons and many others that might be alledged examples of sundry ancient Bishops in the Church that have themselves made their own Purgation for avoiding and removing scandal and offence 12 qu. 4. c. Mandastis Sixtus the third an ancient Bishop of Rome but upon the accusation of one Bassus did willingly make his Purgation upon his oath in a Council Ivo Carn l. 5. And so did Leo another ancient Bishop of the same See purge himself with twelve Bishops Gregory the Great enjoyned unto * Greg. ep 23. ad Iustin Presb. Leo †Id. ep 8. l. 2. Memius and * Id. ep 8. l. 7. ep 79. Maximus three Bishops to clear and purge themselves of several crimes by their oaths whereof the last was for Simony Innocentius also caused the Bishop of Trent to purge himself likewise of the like crime of Simony And what be the Oaths touching Goods stollen or imbezelled which were left with a man upon trust appointed in Exodus Exod. 22.7,8 and those in Salomons Prayer at the Dedication of the Temple â— Kings 8.31 other than oaths of Purgation of a crime imposed by the party having an interest Likewise the oaths mentioned in Leviticus Lev. 6.2 concerning goods denyed that are pretended to have been left in deposito or goods gotten by robbery or violent oppression or casually found after they were lost yet by the finder denyed are they not for purgation and clearing of the party from the crimes imputed and in some respect also decisory of the whole controversie unlesse sound proofs touching the true guiltinesse of the party may afterwards be found out and used Num. 5 14. The Oath of Jealousie taken with a further solemnity of Purgation and imposed by the Priest a publick Magistrate in that behalf is an oath not onely of Enquiry but of Purgation to the woman denounced for suspicion of Adultery by her husband Duet 21.8 Lastly the oath imposed by Gods Law upon the Elders of the City scituated next unto the corps of a man which is found secretly murdered is a plain and most direct oath of Purgation even in a crime in his own nature evil and capital to the offendors For justifying of the Oath Ex officio and at the instance of a party and of Purgation with Compurgators all in a manner as above the authority of the Civil and Canon Laws is manifoldly extant but that even the oppugners doubt not of nor deny but reject them as in their conceit unreasonable and ungodly and therefore 't is needlesse to name them being so easie to be seen and obvious to every common eye The received use of them amongst most Civil Nations make it to be little lesse than Jus gentium and therefore by moderate and grave men not to be sleighted CHAP. VII That the like practice touching these Oaths is and was in all Forreign Christian Nations and other Nations not Christian guided onely by the Light of Nature TO prove this in Christian Commonwealths the Canons of the Church and the practice thereof in all such sorreign Christian Nations evince it then which nothing is more manifest To cite the particulars at leastwise to recite them would be voluminous scattered all along the Civil and Canon Law Dr. Cosens in his third part of that Apology chap. 9. quotes many of them as they were used in the Roman Empire before Constantines time as well as after Consâ—…d Hungar. deâ—…uram purgaâ—… By the customs of Hungary there be many and long Constitutions made for the taking such Oath and of the manner of it Mâ—rian inâ—… qualitâ—… qu. 84. Casonus in Pract. fol. 8â— num 3. It is testified also to be the usual practice of all the Dominions in Italy that the party convented in Temporal Courts whether by way of Accusation or at the Prosecution of another or by way of Enquiry Ex officio judicis must swear to declare the truth in all those things that shall be asked of him even of the crime it self This is much stricter than in the Laws of England Ecclesiastical or Civil Ordenances du France liv 2. tom 2. tit 14. du droit deresâ—… have passage c. pag. 895. For Merchandizes to be carried out of France the Merchant must under his hand particularize the commodities with the weight and measure thereof that there be no deceitful or forbidden Merchandize there and upon the truth thereof he is to swear Ordonance de France premter an 1539. artic 38. In another Ordinance there the Plaintiffs swear to the truth of what is in their Bills and the Defendants answer upon oath to confesse those things which be within their knowledge Marcus deciscor 674. In other matters criminal it is reported to be the custom of France for the party Defendant onely to make faith when they are objected and he is thereupon to answer whether he hath committed them or not but he is not to take a corporal oath betwixt which two before God there is no difference Grand Constumier entre les constumes du Normandy But by the custom of Normandy the Appealed of murther must upon his oath holding his Adversary by the hand solemnly swear whether he hath committed such fact or no and Stamford affirmeth the Law of England to be the same in
tit exâ—minat num 17 A suspected Jury to have received a letter from the Defenfendant were all examined upon their oaths * M. 35 H. 6.11 A Sheriff examined supposed to have made a false return †Brooke tit Ley-gager num 77. They have a custom in London allowed good by the Common Law to cause the Plaintiff to swear to the truth of his Declaration which if he do then the Defendant is condemned if the Plaintiff refuse he is barred 19 H. 6.43 The like Decisory Oath at Common Law which is peremptory to the Plaintiff and so is the Wager of Law ex parte defendentis 44 E. 3.41 In an Action of Detinue for a Chest sealed with certain Gold Silver c. the Defendant tender'd his Law that is his Oath Quod non detinet and the opinion of the Court was he should have it Dr. Cosens chap. 3. in the third part of his Apology writes thus The grand Jury as I take it have their oath given to enquire and present their own their fellows and others faults And Part 3. chap. 14. he sayes that at Assizes and Sessions Grand Juries are urged by oath to enquire and present Treasons Murthers and other Felonies breach of the Peace violation of sundry Laws and Statutes common Nusances c. Now if one of the Grand Jury being to be sworn would deny to take the Oath except he might have some certain offences usually given in charge left out and foreprised severally out of his Oath lest otherwise he should thereby be driven to accuse himself Or if one supposed most able to give evidence to the Coroners Inquest upon a murther committed should desire to be spared from telling his utmost knowledge thereof upon his oath lest thereby he be driven to accuse himself would the Judges spare them and not rather repute them to be guilty of these crimes for which they refuse to take oath and discover their knowledge And why not then other men should not upon crimes nothing so penal who refuse to take the oath to answer them be judged by any man to do it upon good ground and conscience 10 H. 6.7 If a Tithingman refuse to make Presentment the Steward of the court may amerce him 19 H 7. c. 14. Chief Constables and Bayliffs were to give evidences upon their oaths touching unlawful Retainers within the precinct of their Offices and upon concealment were to be punished And many more such Therefore hereupon may it not be concluded thus That whatsoever the Ecclesiastical Laws do allow and require being not contrary nor repugnant to the Prerogative Royal nor to the Laws Statutes and customs of this Realm that may be lawfully practised by Judges Ecclesiastical But this oath is such by reason that sundry Temporal courts by Law hold the like course and do not prohibite it in Courts Ecclesiastical so that not being so much as divers courses they cannot be contrariant or repugnant therefore these oaths were lawfully practised in courts Ecclesiastical or thus That which is justice and equity in one court cannot be unjust unequal or cruel in another court that is thereunto no lesse authorized than the first But such be these Oaths as appeareth by the practice of the aforementioned Temporal courts therefore they are lawful and equal also in Ecclesiastical courts CHAP. X. The inconvenience and hurt that probably may follow by the forbidding the ministring of an Oath Ex officio or any other Oath whereby such person to whom the same is tendered or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment Praise of the Civil Laws Civilians first and last and greatest Sufferers Amity 'twixt both Robes His Majesties and the Lord Chancellors favours to Civilians DOctor Cosens hath touched upon some of such inconveniences in general not much in particular sparsìm in that his Apology but not in any one distinct chapter Some of such as I have thought of I shall set down That Evil should be removed is often inculcated in holy Writ and that right and justice should be done in all causes as well criminal as civil publick and private all Laws sacred and prophane command this tending to the well-being even the being of all Kingdoms Commonwealths and Governments whatsoever as the contrary to the desolation and destruction thereof and of all commerce and humane society That in respect of the whole Church and Commonwealth punishments are most needful the sacred Writ shews it and gives many examples where for the sins of a few whole Armies and Societies have been punished Josh 7. Achans stealing of the accursed garment c. was a cause of the overthrow of Israel in battel 1 Sam. 4. So for the sin of Eli and his sons many thousands of the Israelites were slain by the Philistines 1 Kings 1.2 Salomon giving charge to kill Joab sayes Smite him that thou mayest take away the bloud which Joab shed causless from me and the house of my Father And for Jonas his disobedience the whole Ship was in danger to have perished The Heathen could say Justicia est Reipublicae basis Aristot Rhetor. Tâ—…odor c. 14. Aristotle could say that punishment is a remedy to be used against faults and Cassiodor Remedium est contra peccatum accelerata correctio For all crimes and offences are but as so many Maladies and distempers in the body of the Commonwealth which if suffered to grow without the curb of Law will quickly like a Canker disperse either to the destruction or eminent danger of both So that the necessity of punishment and forcing justice to be done both in civil and criminal causes by the very ends unto which it is referred clearly appears a Aâ—g inc◠〈◊〉 tract 7. Charitas non est sed languor ubi mali mores digna poena non castigantur b Idem ep 50 ad Bonifac. c. erroâ— dist 83. Error cui non resistitur approbatur c Cassiod l 3. u. c. epist 14. Malum cum perseveret augetur d Câ—cum Tanto de ceasu tudine Tanto sunt graviora peccata quanto diutiùs animam detinent illigatam Tully sayes e Cicer. pro Mâ—… Impunitatis spes magna peccandi illecebra f Câ—…d Aâ—d dist 45. Quae est ista misericordia quae bonitas um parcere omnes in discrimen adducere The very Light of Nature did teach even Heathen men thus g F. add Aquild Iâ—a vulnerat Interest Reipublicae delicta puniriâ—… and h H. de fide pur l. 7. sect final Poenas ob malesicia solvi magna ratio suadet Now if upon such weighty reasons it be most needful that Justice be duly administred and crimes punished for in criminal matters the greatest care is to be had though no neglect neither to be in commutative and
not lawful to question and without an Oath 't is to little purpose theresore God commands that way of Adjuration or giving an Oath * 1 Kings 2â— So the King adjured Micheas †Mat. 26.93 so the High Priest our Saviour and both of them answered But should any question Adjuration even a clear oath was lawfully given even to the actor as Exod. 22.8 1 Kings 8 3. and therefore more then permitted to the Magistrate For surely it were hard if every private man might require an oath of the questioned and not the Magistrate should it be lawful in the case of a Pawn and not of a Kingdom An oath is an end of controversie saith St. Paul Heb. 6.16 then an oath to be taken for that end In a case Matrimonial which is meerly Ecclesiastical Interrogatories were administred with oath as in a cause of Incontinency Num. 5. and the proceedings being by Enquiry without any accuser at all And this which is to be noted in the case in Esdras Esdras 1.8,9 they are no wayes forced to it but desire to take their oath first and to be examined after then which there is no cause more suitable then to the proceedings in Ecclesiastical Courts before the passing of the late Act and against which the Innovators heretofore used to take exceptions In some of these above-mentioned instances we see how oaths were administred even in capital causes much more may they be where there is not that danger nay no danger of losse of Goods Liberty or any other losse but onely for a medicine to the soul for reformation of manners and taking away scandal and offence given They were questioned too we see upon small suspicions signs presumptions or any other causes of question nay nothing at all as to the person questioned upon whom no true colour of suspicion lay something like our Coroners proceedings in some cases but onely a fact was committed that was apparent whereof it was possible that he was not guilty as in the case of a person found slain then much more ought it to be upon great suspicions presumptions or publick fame thereof proved This being thus by Gods Word in the next place we may look into the practice and opinion of the primitive Christians hereupon CHAP. VI. That the Opinion and Practice of the Primitive Christians and the Fathers of the Church was to administer such Oath Ex officio and upon Accusation and for Purgation Canonical with the practice at Geneva IT is well said by an ancient and learned * Cromatius in 5 Mat. Facit canon 36. concil Tolet. quart Writer Dominus inter juramentum loquelam nostram nullam vult esse differentiam And Aquinas saith †Thom. 2.2 qu. 69. art 3. If he which is brought into question and interrogated by the Judge without his oath shall answer untruly that therein he sinneth deadly The old Christians in the primitive Church were far from such shifts of answering dangerous questions propounded to them by Heathen Magistrates or from answering untruths to them Tertullian is herein very plentiful especially in his book called Apologeticon Tertul. in Apol. c. 1. A Christian saith he if he be indicted or denounced to the Magistrate he rejoyceth in it if he be accused he propoundeth no defence when he is interrogated he most willingly confesseth and when he is condemned he giveth them or God thanks And much more hath Tertullian to this purpose St. Augustine Aug. serm 28. de verbo Apost cap. 6. doth plainly establish and allow of Oaths taken concerning a mans open offences being indeed such also in their own nature If perhaps saith he thine Oath be urged meaning a Decisory oath be exacted of thee by a private person say not I will not swear for it cometh of evil which thou doest but yet of his evil that exacteth it of thee insomuch as thou hast no other means but thine oath to purge and clear thy self of the matter in handling Aug. ibid. c. 10. In another place he speaks and allows of oaths taken in way of purgation of one suspected for theft Aug. ep 137. and in another place he sayes and approves of the same practice at Millain this was in a civil cause criminally moved and for theft a crime though not simply capital by the Civil Laws In another place Aug. in qu. Lev. In denouncing others saith he speaking of Denunciation of faults to the Magistrate this moderation is alwayes to be used by us that we relate it unto such which may rather help than hurt him in case the party shall swear falsly either by correcting him or by deprecation to God for him so that he will by confessing his fault apply this remedy unto himself Chrys hom 16. ad pop Antioc St. Chrysostom alloweth of Decisory Oaths or Wagers of Law and testifieth that such necessary oaths were in those times imposed to exact mens confessions and whether they had stollen some certain thing or not This he allowes touching meer crimes in their own nature and that upon the instance of a Plaintiff particularly interested but in his goods and chattels This kind of oath was not onely allowed in the old Church but commanded to be put in use as lawful and consonant unto Gods Word against persons convented and had in suspicion even in one Church which the most and hottest oppugners of this oath do reckon to be best yea and almost the onely Reformation that may rightly be so called For in the Discipline of France concluded of in the National Synod there 1559 1561 1563 1565. it was thus declared The Ecclesiastical Senate or Consistory act 12. The faithful may be constrained by the Consistory to tell the truth so far forth as it derogateth nothing from the duthority of the Magistrate They may be constreined say they but there is no compulsion but either Civil which they will not arrogate to themselves as torture or racking imprisoning or fining c. or else by the parties oath which upon pain of Perjury if he once swear or of conviction if he will not doth as it were constrein a man to say truth And that an Oath is meant by the Canon of the French Church we are taught both by the History of Camperell a French Minister at Geneva as also by that of those who danced in Widow Balthazar 's house there Interepist Calvâ—n in folio pag. 421 422. Camperell was appointed by the Consistory of Elders there to be examined upon his Oath upon certain Interrogatories whereof also two concerned what he had in his very purpose and intention of mind Calvin Farello pag. 64. epist in folio The Dancers because at first they denyed it were put to their corporal oaths to declare the whole truth of that merriment And all dancing there is held as an offence and grievous crime as appears by the Ordinances of Geneva and by the very last frame of Discipline
without some of these that have been mentioned but with these he hath good warrant even as good as Gods own example and commandment Sufficient hath been said to shew that without an Accuser a Judge may proceed by enquiry to interrogate a party but whether upon his Oath that is the second point to be shewed no less warrantable by the Word of God then the former In the case of the Woman suspected to have made a fault to her husband and that upon no other ground but upon her husbands own jealousie the Ecclesiastical Judge was not onely authorized to examine her concerning it and then to rest on her denyal but also to put her to her oath and make her to abjure it with execration as it is plainly Num. 5. And it is a case of a sin against the seventh Commandment In a sin against the eighth Commandment betwixt man and man If one had committed ought to anothers trust and were perswaded that he had played false with him he might bring him before the Judge and have the matter searched into and at the Plaintiffs instance the Judge was to lay an oath upon him and the other not to refuse it And of this there are more cases then one Exod. 21. And if in private causes betwixt man and man this manner of proceeding be allowed it will follow à fortiori if for the private benefit much more that which God granteth to a private man it is to be presumed he will not deny to a Magistrate that which to satisfie one party he licenseth he will likewise think meet to license for the taking away of offence and giving satisfaction unto many And the chastity of a mans Wife shall never be more precious to him then the keeping of his own Spouse the Church free from the like stains of pollution In a sin against the sixth Commandment a case of Murther one is found slain no man can be accused or suspected for doing it In this case the Governors of the next City to the body so found are by the Law to come to the place to offer a sacrifice to invocate the name of God and solemnly to testifie by that Invocation that they are no waye privy to the murther This is the course in the Law of Moses but before ever the Law was written we see the very same holden by Joseph under the Law of Nature In a matter of State in a suspicion of a sin against the fifth Commandment It pleased him to charge his ten Brethren as Spies coming to discover the weakness of the Land there was no party to accuse or to say ought against them yet for all that he put them to it sub attestatione juramenti to answer They were no such men The very like course was holden in the search for Elias he was thought to be the cause of the long and great drought The King sent all over the Land to seek for him and to have him apprehended these especially that were thought to be the Professors of the same Religion all denyed him it would not serve the turn he put them to their oaths and they refused them not yet was there none to accuse them at all Yet for the good as it was supposed of the State this course was well allowed So have we Interrogatories administred and the parties sworn to them in cases of the fifth sixth and seventh Commandment And if this may be done in civil causes and be not unlawful in them we argue that much rather it ought to be allowed the Church in her proceedings First for that both Commonwealth and Church be to remove evil yet work they not both one way for the Commonwealth as it is well known doth agere ad poenam the Church never so but doth onely agere ad poenitentiam seeketh to alter mens minds from the evil courses they have entered into seeketh by making them to yield to a voluntary submission rhemselves to take away the scandal whereof they have been a cause Now there is great odds between those and great reason more means be allowed those that seek for nothing else but the reformation of the party and his souls health and those that end their proceedings alwayes in the loss of life limb or liberty or living as doth the Civil Besides it is well known the civil power hath many wayes and means to sift out the truth though not by this That the Church if Accusations cease hath none but this onely Indeed therefore most proper and peculiar to her because an oath is the bond of the Soul and they be the sole causes the Church hath to deal with The inconvenience is none at all for admit a party should thereby disclose his offence yet groweth thereby no damage unto him in that his repentance onely and reformation is thereby sought and wrought and nothing else Thus reasons the Church but for her practice taketh her ground to be full and good out of the fifth of Numbers in a case of suspected Incontinency which is meerly Ecclesiastical And again out of 1 Esdras 8. 9. in a case Matrimonial which is meerly Ecclesiastical also In both which Interrogatories are ministred with oath the proceeding being by Enquiry without any Accuser at all And that which is to be noted in the case in Esdras they are no wayes forced to it but desire to take their oath first and be examined after Then which there is no case more like to the proceeding at this day against which exception is taken Out of these six it is manifest enough how agreeable to the Will of God this proceeding is But beyond all this is the seventh in the fifth of Leviticus where it appeareth that God is so careful to have all evil removed as leave is given by him upon a fault committed the party being unknown to lay a solemn charge and to bind it with a curse and that at large to take hold of any that were privy to the fault done and did not come and reveal it Which course was clearly of the nature of an Oath as doth plainly appear by 1 Sam. 14. where it is said four several times that Saul bound all the people with an oath not to taste of any thing till the Sun went down that they might pursue their enemies without any intermission Which oath is judged by the Expositors to have been nothing else but the publick denouncing of a curse or adjuring them in the name of God not to do it seeing it is held a thing impossible that he should call so many thousands in particular to take every man an oath the time being so short and he in such haste to pursue the Enemy But it is a thing as Nazianzen saith not unusual either before Christ or since in the time of the Primitive Church to make such adjurations whereby the Church ever thought quod poena commissi revolvitur in conscium that he that concealed was subject to as great a curse as he
that committed it By all which it is evident that such proceeding by oath may be and is not unlawful This as before is by some said to be Dr. Davenants late Lord Bishop of Sarisbury and others say it was the late Lord Bishop of Winchesters that most learned and pious Bishop Dr. Lancelot Andrews Whose soever it was it seems it was to give satisfaction to the Lords of the Council touching such proceedings Ex officio and upon oath and 't is to be believed it gave them satisfaction the Law so long after continuing the same and no wayes altered The Theological Determination of Dr. Lancelot Andrews afterwards Lord Bishop of Winchester had in the publick Divinity-Schools in Cambridge in the Moneth of July 1591. upon this Question following Rendred into English for the use of the meer English Reader Whether by Gods Law it be lawful for the Magistrate to require an Oath of the Party that is the party guilty or Defendant and in what case and how far it is lawful TOuching the questioning of parties guilty or Defendants by the Religion of an Oath as also of such parties taking such Oath or lawfully declining it of late hath a Question arose Whether by Gods Law it be lawful for the Magistrate to require an oath of the party that is the party guilty or defendant and in what case and how far it is lawful This question to prevent any confusion upon your memory or my own I will divide into five branches and indeed in this short two dayes space I have not bethought my self of a more distinct method 1. Whether it be lawful to exact or require an oath 2. Whether it be lawful for the Magistrate to do it 3. Whether from the guilty or defendant party 4. Whether it be lawful in every cause or not in capital causes but such as receive a milder punishment 5. How far this is lawful and in what cases Of which questions the first three have nothing of question in them if we be sound in Divinity therefore I shall in few words dispatch them And first of all it is a sacred right that such an oath may be lawfully required In which matter I think it is very behooveful as Christ did in the case of Divorcement first of all to enquire what every thing was in the beginning in the revolution of time many things are changed the beginning is the most certain rule Therefore I aske where and when the first mention of an oath is made in Scriptures I finde Gea 24. Abraham forcing his servant to take an oath in these words and with this ceremony Put thy hand under my Thigh and I will make thee swear that thou shalt take a wife for my son of my Kindred So the first oath mentioned in Scripture is here expressed and as it is the most ancient and first so it is the most frequent and onely mention almost of such a thing This very term to Swear you will scarce any where find it in the Old Testament but either under the word Hiphil that is the Imperative commanding conjugation in respect of him that gives the oath or under the word Niphal that is the passive suffering conjugation in respect of him that takes the oath And under the same rule are the Greeks amongst whom Orcos is the name of the oath which almost solely the holy Ghost acknowledges in the New Testament In that word is a kind of straitning necessity and as they say an exigengy no less then there is in the word Orcos for from the same word comes both that is of straitning Thereupon comes that common Proverb War and Oaths are voluntary evils and that they may be good they ought to be pressed and expressed as St. Augustine of Oaths sayes wittily either by the Authority of him that gives the oath or at leastwise by the hardness of his heart that believes nor So that it is a sin either to swear or to make war except it be at least in some manner exacted and upon some and no light cause Therefore that it may be required or rather that it ought to be the very force of Nature the very force of the term it self evinceth it But whether from the Magistrate this is the second branch Yes surely from the Magistrate So the Divines of old Not onely every body but every soul is to be subject to the Powers Rom. 13.1 Therefore the Powers have power to commit the body to custody by imprisoning it lest it escape And so likewise the soul to commit that to custody by laying an oath upon it lest it should have any subterfuge by which name God himself hath most fitly called an Oath the Bond or prison of the soul Num. 30.13 by which the soul may as it were be tyed up and being so tyed up may be bound to answer appositely and readily But yet it comes nearer If it be lawful for the Master to force his servant to take an oath as Gen. 24.3 Abraham did if a father to his son as Jacob to Joseph Gen. 47.29 if a brother to a brother as the same Jacob to Esan Gen. 25.33 By how much better right is it lawful for the Magistrate to do it to his Subject whose command is more excellent then any other command I adde also about the right settling in marriage of a son if that be lawful as Abraham to his servant of chusing a fitting place of burial as to Joseph of passing away the right to Birth-right as Esau and in private causes I adde also of the least concernment if compared with the publick Then surely by better right may the Magistrate do it in the common cause of the Commonwealth whose Interest is greater then any other Interest And that is provided for by Gods Law Exod. 12.8 in express terms in the case of a Pawn saith God let them come before the Magistrate In which place the Magistrates are named by the name of God himself and not by any name but by that very name which is taken from the force of an oath as though he should say Let them come before the Oath-givers or those who when they give the Law in Gods stead in his Judgment and in his Name may require his Oath to be taken That is Gods Deputies Psal 82.6 in Gods judgment 2 Chro. 19.8 the Oath of God Eccles. 8.2 therefore to the Magistrate It is lawful to the Magistrate I say as well Ecclesiastical as Civil Before him that is the Ecclesiastical Judge by Law the Woman is commanded to purge her self in a case of suspicion of breach of Wedlock bond Num. 5.19 Before him that is the Temporal Judge by Law the man is commanded to purge himself in a cause of suspicion of breach of Social promise or Contract Exod. 22.8 The practice whereof we see and the practice of the Saints is the Interpreter of the Commandments of the Ecclesiastical Judge in Ezra who required an oath in a Matrimonial cause Ezra
10.5 Of the Temporal Judge in Nehemiah who forced an Oath in a cause of Usury Neh. 5.12 Neither hath the pious and religious Magistrate onely right to do this but the Heathen Magistrate too and that to Gods people Zedckiah gave his Oath of Allegeance to Nebuchadnezzar 2 Chron. 36.9 though forced he gave it and rightly too if we believe Ezekiel and afterwards by a sacrilegious boldness he attempted to break it he scaped not unpunished for it Ezek. 17.13 Lastly I adde that this was not lawful to do to their own people onely but also to guests and strangers living within thrir Territories either for trafficking or any other cause In which regard Joseph now become Vice-Roy of Aegypt imposes an Oath upon his Brethren in a case of Treason suspected though both by Law and by Nature they were Canaanites Gen. 43.3 therefore hence it now appears that it is lawful to impose an Oath and that it is lawful also to the Magistrate But whether is it lawful to do it to the party that is the party guilty or defendant the third thing I propounded Nor can that be called into question Exod. 22.8 He to whom the Pawn was concredited is the party guilty or defendant Num. 5.19 The woman suspected by the jealous husband to have wronged his bed is also the party guilty or defendant but to each of them is this oath to be given nor is it lawful for them to decline it In a few words I will summe it up Whether one deceitfully keeps his neighbours goods or perfidiously deteins his friends goods or restores not to the owner his found goods when he requires them Levit. 6.3 or as it seems to me in any other crime for it is mentioned indefinitely 1 Kings 8.31 in whatsoever he shall sin it is lawful for the Plaintiff or Agent to impose an oath upon the party that is the guilty or defendant or to lay an oath upon him as it is in the Hebrew phrase nor is it lawful for the guilty or defendant party to refuse it whether it be imposed by the Agent or Plaintiff or by the Magistrate Indeed I cannot deny but we are fallen into such times that it may be expedient to impose the oath upon the party Agent or Plaintiff and not onely upon the Defendant for it may happen that they may both prevaricate that is the party Agent or Plaintiff by calumniating and the party guilty or defendant by Tergiversation But if we would take the Law from Heaven from the holy Writ to the party guilty or defendant 't is more necessary to be given Examples are thereof Scarce will you find in the Law an oath laid upon the Agent or Plaintiff but very often may you find it upon the party guilty or defendant Moses renders the reason of it The actor who for the most part is the party endamaged he is inflamed with anger he is wholly wrapt up in the Leaven of anger and revenge struck through with the sting of malevolence will be rash with his mouth which the Wiseman forbids to be in an oath Eccl. 5.1 therefore the matter of an Oath herein is altogether unfit But the party guilty or defendant whom the Law alwayes supposes to be guilty of the crime charged till the contrary appear is much fitter In him there is less prejudice less of affections besides perhaps of fear which is as it were the heart of an oath Therefore it is lawful to lay it upon the party guilty or defendant and fitting too to do so Now I come to the fourth branch In what cause this is fitting which is more intricate and hath more question in it And I shall not seek any where else for the division of these causes but in our Law that is the Law of Divines there in the holy Law some are called wrongs or prevarications Exod. 22.9 some capital causes Deut. 21.21 whereof some of those being heinous are punished with loss of life life either by being deprived of natural life or civil that is Banishment or as the holy Writ speaks rooting out Ezra 7.26 To which are allied causes of bloud such as are Deut. 25.12 Lopping off a limb and there in the second Verse inflicting of stripes but these others were not so great and were partly punished by pecuniary Mulcts partly by imprisonment Esth 7.26 Was there any place for such an oath to be given in such crimes as were punished by loss of life truly I do not perswade to that First the practice in Scripture contraries it for I see when Achans life was in question Joshua dealt thus Tell me my son swear not to me So likewise Saul in the like case concerning Jonathan Tell me Jonathan do not swear to me a willing not express confession a simple interrogation not under the bond of an oath But which is the hinge of the question I see the Prophet Jeremy himself interrogated by the King himself I will aske thee a thing hide nothing from me The Prophet covenants with him If I declare it unto thee wilt thou not surely put me to death nor did Jeremy thus covenant without the dictate of the holy Ghost as if in such causes God had given an immunity of answering Jer. 38.14 And indeed Reason perswades the same for indeed so ought Inquisition as far as it may be to be made by the Magistrate that the manifest loss of souls may be avoided When as from the mouth of the greatest Liar that most true sentence proceeded Skin after skin and all that a man hath will he give for his life Job 2.4 it is to be feared that that whatsoever or all that a man hath will comprehend as well the conscience of an oath as the fear of God and what else soever comes under the notion of Religion as men are and as they are disposed Wherefore though I define nothing I know not how in such causes as these in regard of the present danger of Perjury yet I think 't is best to forbear the imposing of an Oath And the Laws which we use at least according to leave or permission judge the same But in other cases being of lesser offense and so punished more easily I think otherwise Except perhaps we take that sentence out of the Comick Poet and place it in Divinity An Oath is for the keeping of a thing not for the losing of it For by that general Law it is provided Lev. 5.4 If a soul swear pronouncing with his lips to do evil or to do good whatsoever it is that a man shall pronounce with an oath and it be hid from him when he knoweth of it then he shall be guilty in one of these And whereas this cannot be understood of the Evil of guilt or of a crime as we speak in the Schools lest an Oath which is a bond of piety should become a bond of Iniquity it follows it must hold in an evil of punishment in which kind it is neither lawful to
thought fitting that Juries of life and death as also in other Actions both criminal and civil should be considered of and better Juries impanelled then often are and the Sheriff and Under-Sheriff and other inferiour Officers power in impannelling such Juries be looked after 40 s. per annum as is touched above was in the beginning of that Law or custom of tryal by Juries a good considerable estate and so the persons probably more considerable and knowing They anciently used to be twelve Knights so sayes Sir Edward Coke in his Comment upon Littletons Tenures citing Mr. Lambert Many instances might be given of the strange Verdicts given by some such Juries out of their ignorance or wilfulness or both who oftentimes expresly deny to follow the Judges directions but go quite contrary but I spare to instance them in reverence to the Law under which I was born and live and the practice thereof both which especially in most parts thereof are very excellent And we see what Pamphlets have been published by John Lilburn if not by others too affirming the power of Juries not as is commonly held to be onely in matter of fact but in matter of Law too and how they have controuled learned Judges in their Verdicts and obstinately carried it against them and how the meaning of that Axiom Ex facto jus oritur hath been extremely rack'd The meaning of Legalis homo to qualisie him to be of a Jury is not nor formerly was meant to be onely a man of 40 s. per annum but to be at least in some good measure in legibus peritus as some are of opinion and so as it were a kind of assistant to the Judge New 〈…〉 And also if thought fitting that new Laws should be made upon emergencies and accidents when they happen and are notorious and publickly known be the crimes never so heynous and horrid Till they have happened it may be thought fit not to make a prohibitory Law against them for the reason afore mentioned Neâ—dum prohibent jubent 〈…〉 As namely of making Eunuches of men or women That case may be remembred of the Horse-gelder in Nottinghamshire that spayed a young woman and being a casus omissus the Judge could find it no more then a misdemeanour It hath been anciently forbidden by the Imperial Laws and the punishment is capital Cod. de Eunuchis lib. 4. tit 42. l. 1. The stealing of a Winding-sheet out of a Grave 〈…〉 That abominable basenesse of a woman and a Mastiff-dog not far from Temple-bar London not many years since if the Law be not plain enough in that case that it may be amended Stealing or men c. The stealing of men or women girles or boyes by these extraordinary thieves called Spirits or others to be carried into remote Plantations where probably their Parents shall never hear of them Shall we provide good Laws against the stealing of our Cattel and our Goods and not of our Children Such kind of Plagiaries have been more taken notice of in other parts and severely punished St. Paul 1 Tim. 1.10 amongst those against whom the Laws are made reckons up the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Men-stealers Against delays in Comâ—… And also if thought fitting that a select Committee should be appointed to consider of the dilatory proceedings in all Laws both Ecclesiastical and Temporal delaying of justice being almost as bitter as injustice and the promise is as well not to delay justice as to do justice Many instances might be given of delayes in justice and perhaps none more then in actions upon the Writ of Formedon especially where there are many Copartners which I have heard some Common Lawyers complain of Fees in all Courts And also that such a select Committee should consider of Fees in all Courts and to fix a settled rule for them that onely such may be taken as cannot justly be grievous to the Subject and yet may be sufficient for the Officers that receive them due consideration being had of their respective qualities pains charges and all incidents and circumstances concerning them and of the great rates of all commodities raised exceeding highly since the time that such Fees were settled especially in Ecclesiastical Courts 21 H. 8. this hath alwayes been a consideration for the raising of Fees Against the 〈◊〉 examining of witnesses upon oath in the Defendant defence And also if it shall be thought fitting that the practice of the Laws touching Non-admission of witnesses to be sworn upon oath in defence of the party prosecuted against by the King should be amended And whether it seem not strange to some that A. B. being indicted at London for killing C. D. at Barwick upon Tweed in such a place there on such a day about such time of the day and the accused party endeavouring by the negative pregnant to defend himself would prove that that very day he was perhaps at St. Michaels Mount in Cornwal about the same time of the day and so could not be then at Barwick and he produces sufficient witnesses upon this yet they must not be examined upon oath and why should the Jury rather believe witnesses without oath then sworn witnesses especially when they hear no just exceptions against the sworn witnesses which haply the Defendant cannot at least upon an instant give perhaps having not heard of them till the very time of their production against him at his tryal and the cause being heard so summarily as is usual and so exceeding small time of defence given that he cannot possibly enquire after them to resute their testimony by just exceptions against them The usual answer is Witnesses must not be examined upon oath against the King as though it concerned not the King as much to save a guiltless man as to hang a guilty It was accounted a good speech of that Roman Emperor that said Mallem unum servare civem quam decem occidere hostes Against the examination of witnesses in the hearing of one another And also if it be thought fitting that witnesses should not be examined as usually they are at our common tryals both in civil and criminal causes openly in the hearing of one another when it is to be feared that it hath happened sometimes that the craftiest witnesse has been put on to speak first and he hath thereby given aim dangerously to the rest Should any object that in such summary proceedings it cannot well be otherwise May it not be answered that 't is to be feared there may be more haste then good speed and they might be examined privately and apart not in the hearing of one another even in such summary causes almost in as short time and according to the course of the Civil Law that examines so apart their testimonies when all taken might be published and if need be even in their own presence to confirm them viva voce Daniels hearing of the cause 'twixt the two Elders and Suzanna seems to be summary and yet he