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
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
be ripped vp I finde foure opinions pretending that the lawes of the Realme be against the maner of entrance into some suites and against certaine proceedings Ecclesiasticall that are mentioned in the generall Preface to haue bene put off vnto this place for auoyding of needelesse repetition and as falling here more fit to be discussed among other like obiections of the Innouatours The first of them that we put ouer vnto this place is that an Ecclesiasticall court may not proceede without accusation or presentment meaning as I take it a presentment by Officers sworne for that purpose If this were true according as the proprietie of the wordes importeth then Ordinaries might not so much as deale in those two excepted causes of matrimonie and testament nor in any other concerning rights and dueties Ecclesiasticall but onely in offences and crimes punishable by that iurisdiction For an accusation or presentment hath none vse but in matters of crime or offence incident vnto that iurisdiction to punish Besides that this opinion doth contradict the next following For this implieth that if the matter be Ecclesiasticall and that there be either accusation or such presentment then may the Iudge Ecclesiasticall proceede so that if there be but a presentment without any accusation his proceeding without a partie which is to proceede ex officio shall be warranted Whereupon doeth followe that proceeding ex officio is not tied to those two causes onely of Testament or Matrimonie as the next opinion doth holde For the second is that no lay person may bee cited ex officio in any cause but either restamentarie or matrimoniall which if it were true though a lay man be dùely presented for any crime yet shall hee neuer bee cited for it or brought into question for want of an accuser to prosecute it Concerning the citing of laye persons absolutely in any cause besides those two ynough hath beene saide in the former part So that in this opinion the citing ex officio onely remaineth needefull to bee further spoken of Truely if the authour of it had vnderstood what he writte he would neuer haue put it in the tale or reckoning For of all other causes Ecclesiasticall whatsoeuer there can be least vse of proceeding ex officio in those two because the chiefest and almost onely vse of it is in dealing against crimes and offences But I wil bring these two opinions into a briefe thus the first seemeth to permit proceeding of Office in an Ecclesiasticall matter so there be a solemne presentment precedent The second condemneth all proceeding without a partie sauing in those two cases and so in effect in all causes if it haue none vse in those two The third of those opinions is that albeit a matter bee duely presented against a man yet he may not be examined vpon his oath as of incontinencie or such like Whereby I thinke is meant that hee may not be so examined of any criminall and penall matter The last opinion of the saide foure is that no man is bound to declare any matter against another except there be some that is an accuser So that by this last no witnesses shall euer be had when the Iudge proceedeth ex officio except themselues list which commonly none wil thrust himselfe into but vpon some pique or humor of enmitie And so an accuser who for the most part commeth in of malice shall by this opinion haue compulsories to force witnesnesses to testifie but a magistrate proceeding for satisfaction of his dutie only shall not By the way may be noted that hereby also that opinion is ouerthrowen which holdeth no man to be bound against his will to testifie but in causes matrimoniall or testamentary for accusation is onely of offences By this opinion is implied that when there is an accuser a man may bee compelled and is bound to declare a trueth against another Which last being ioyned to the former viz. that albeit a matter be duely presented that is criminall and may be penall to him yet he may not be examined of it vpon his owne oath doth come to this passe that of an Ecclesiasticall crime there is by lawe no way to conuict a man except some man will be an accuser or els by voluntarie witnesses qui sese ingerunt ad testimonium viz. such whome the very lawe of nations doth entend to be enemies vnto the partie because they thrust themselues into the matter You are not to marueile that the opinions of those who shoote at one generall marke are so absurd and do so varie and iarre among themselues and doe as it were confront one another For you remember quòd vno absurdo dato multa consequuntur and that trueth is simple constant and like it selfe and therefore no trueth is disagreeing from another trueth whereas vntrueth is manifold and variable from it selfe For two contraries can neuer be both true but they may be and are oftentimes both of them false The first of these opinions then taketh away all proceeding either in crimes or in any other causes where there wanteth an accusation or such solemne presentment as the author of it meaneth The second in effect taketh away all proceeding ex officio but especially in crimes and offences The third impugneth all examination by the othe of the partie in a matter criminall and penall The last woulde ouerthrowe all vrging of witnesses to testifie in a cause moued ex officio viz. where there is none accuser yea though there bee a solemne presentment These foure challenges among others are also made against iurisdiction Ecclesiasticall by the innouators not onely for contrarietie vnto the lawes of the Realme but for contrarietie also to Canon lawe to Ciuill lawe to Gods lawe and vnto reason as is by them pretended But aswell their other exceptions that of late haue beene taken by any of them and stirred vp against the maner of exercising iurisdiction Ecclesiasticall so farre as I can learne as also these foure last recited falling in with them albeit all their said opinions be not holden by euery of them but according to the varietie of their humors and seuerall capacities may be reduced not vnfitly vnto these two heads They doe respect either the manner of entrance into the suite or els the fourme of proceeding in it In the maner of entrance you see they challenge it for that it is not either at the suite of some accuser or vpon a solemne Presentment Or for being ex officio in any other cause then those two of testament or matrimony wherein in very deede such proceeding hath little or none vse In the course of proceeding in the suite they take exception partly against some principall acte therein vsed and partly against some meaner circumstances In that more principall acte viz. of giuing an othe they impugne either the examination vpon othe of the partie himselfe or the examination of witnesses concerning their brethrens actions Touching the othe of the partie both fault is
found by some with the ceremonie vsed in giuing the othe and because the othe is giuen in a cause criminal and penal to themselues In the ceremonie at taking an oth there is reprehended by some the laying of the hand on a booke and the swearing by the booke or by the contents of it Of meaner circumstances falling out in proceeding that they challenge some are concurring with the very tender of the oath as that they haue not distinct knowledge of euery particular whereupon they are to be examined before they resolue whether to take the othe or not and other are ensuing the othe and examination as that the Iudges doe not rest in that which is affirmed or denied vpon their oth but oftentimes proceede to a further examination by witnesses vpon the same pointes All which I mind God willing to prosecute in the same order that I haue here set foorth hauing first touched some matters that I holde not vnnecessary to be knowen by the vnlearned sort for the better opening and vnderstanding of the disputations following THE CONTENTS OF the Chapters of the Second part of this Apologie OF the distinction of offences and seuerall kindes and endes in punishing chapter 1 them with the necessity of punishments Of two sorts of prosecution of crimes and offences viz. by a party of office chapter 2 the practice of them in Scripture and in the seuerall Courtes of this Realme Of the sundry kindes of obiecting crimes by a party mentioned in the Ciuill law as by reason of a mans publike charge and function also by way of chapter 3 Exception Supplication Complaint Delation and Accusation The true signification of the word Accusatio his diuers acceptions definition exposition thereof with some reason of the frequencie of accusation in courts of the Ciuill lawes in former times is also declared That the prosecution of crimes by way of Accusation is in most places forbidden chapter 4 or growen into disuse the reasons hereof be partly the danger to the Accusers and partly the hatefulnesse of that course Therein also is disputed whether all Accusation be vnlawfull and certeine points deliuered to be obserued by all them that will accuse others Of the seuerall acceptions of this word Officium the signification of Inquisitio chapter 5 Quaestio Crimina ordinaria extraordinaria the reason why Inquiry by office came in place of Accusation of Enquiry generall and speciall of Enquiry speciall ex officio nobili siue mero mixto promoto and of the priuileges of proceeding ex mero officio aboue the other Of Denunciation a speciall meanes of stirring vp the Office of the manifolde chapter 6 vse thereof in the olde Common weale and Empire of Rome and at this present on the other side the Sea the general acception of that word and of foure kindes of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expenses And what course of dealing against crimes and offences is holden both in courts of the Ecclesiasticall Commission and in Ordinary courts Ecclesiasticall in this Realme That the Ciuill and Canon lawes allow sundry meanes to ground a Speciall Enquiry chapter 7 of office against a crime besides Accusation and Presentment therein is also conteined an answere to a supposed rule and declared how from Generall they descend to Speciall enquiry and that besides those two either à Fame or Clamosa insinuatio or Priuate Iudiciall Denunciation or Canonicall Denunciation or Indicia or taking with the maner or other Notoriety of the fact or appeachment by some of the complices or collusion of the Accuser or the not obiecting in due time that euery of these do want or when the Enquiry tendeth but to a Spirituall punishment may seuerally any of them serue to warrant such Enquiry with some obseruations touching the nature of most of these That to proceed sometimes against an offence otherwise then vpon an Accusation chapter 8 or Presentment or then vpon an Appeale or Enditement which two at the Common law haue respectiue correspondence vnto the two former is no diuers much lesse any contrary or repugnant course to the lawes statutes and customes of this Realme this is prooued by Common law statutes and practice in proceeding informatiue and Punitiue with answere to certeine obiections made to the contrary How the second opinion here to be treated of is that no lay person may chapter 9 be cited of office in any cause but testamentary or matrimoniall and that the drift of that opinion is against proceeding of office in matters criminall the necessary vse and equity of proceeding sometimes criminally by the Iudges office in courts both Temporall and Ecclesiasticall Conteineth an answere to some further obiections made against the conueniency chapter 10 and reasonablenesse of proceeding against crimes of office That the lawes of the Realme do vse Enquiries and proceedings ex officio that chapter 11 they allow it in courts Ecclesiasticall with answere to some obiections that are made to the contrary Is set downe a replie to the Note-gatherers answers giuen to certeine reasons chapter 12 that haue bene made long agone for to shew the like course to be also practised in Temporall courts and an answere to his reasons brought to proue that in proceeding of office there is some contrariety vnto the lawes of England That the Enquiry ex officio against crimes is allowed both in Ciuill or Temporall chapter 13 courts and in Ecclesiasticall also by the two lawes Canon and Ciuill Conteineth an answere to such obiections as vpon the Ciuill or Canon lawes chapter 14 are brought against all proceedings of office in causes Criminall by the Treatiser and the Note-gatherer Enquiry and proceeding of office without an accuser and grounded vpon chapter 15 some other of the meanes afore prooued sufficient to enter into such Enquiry is approoued by sundry examples of Scripture An answere is made to such obiections as out of Scripture or Ecclesiasticall chapter 16 writers be made against criminall proceeding of office by the Note-gatherer and others THE SECOND PART of the Apologie published in defence of sundrie proceedings by Iurisdiction Ecclesiasticall CHAP. I. Containing a distinction of offences and seuerall kindes and ends in punishing them with the necessitie of punishments ALl the controuersies remaining to bee handled in either of the two partes ensuing doe rest chieflie about the maner of discouering of such crimes as are punishable by ecclesiasticall Iurisdiction And because many bee talkers of these matters who vnderstand but litle the true nature of them therefore to giue light vnto the whole disputation to make it appeare to be a matter of no small consequence but much to be stood vpon before I proceed further I mind to touch some necessarie points seruing for the better vnderstanding of all proceedings against crimes And first of the diuersitie of faults in generall then the seuerall kindes of punishment of
AN APOLOGIE FOR SVNDRIE PROCEEDINGS by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuersly by them impugned By which Apologie in their seuerall due places all the Reasons and Allegations set downe as well in a Treatise as in certaine Notes that goe from hand to hand both against proceeding ex Officio and against Oaths ministred to parties in causes criminall are also examined and answered Vpon that occasion lately reuiewed and much enlarged aboue the first priuate proiect and now published being diuided into three partes the first part whereof chieflie sheweth what matters be incident to Ecclesiasticall conisance and so allowed by Statutes and Common law the second treateth for the most part of the two wayes of proceeding in causes Criminal viz. by way of Accusation ex officio Iudicis the third concerneth Oaths in generall but more specially the lawfulnesse of such as be ministred touching supposed offenses either of themselues that sweare or of their brethren Respectiuelie submitted to the graue iudgements of the reuerend Iudges and other Sages of the Common lawe of Iudicious Professors of the Ciuill lawe and of the right reucrend Prelates and other grounded Diuines in this Realme Whereunto for the learneds sake and for similitude of Argument and Iudgement I haue presumed to adioine that right excellent and sound determination concerning Oaths which was made by M. LANCELOT ANDROVVES Doctor in Diuinitie in the common Diuinitie Schoole of the Uniuersitie of Cambridge in Iulie An. 1591. Lex iustitiae Iustitia Reipub. basis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie THE GENERALL Preface conteining the Occasion and generall distribution of this Treatise following before it was meant to make it publike THE indeuours of such disturbers as haue bene the chiefest staies of a further propagation of the Gospell and the onely staines of her Maiesties happie reformation haue rested most in aduancing a new found discipline in discrediting the present gouernement Ecclesiasticall by their speeches and writings The later whereof they haue gone about as well by impugning the callings and forme of gouernement Ecclesiasticall as if they were contrary to Gods word as also by defacing the persons of the Gouernours with vnchristian gibes contumelies and other indignities But these succeeding not to their wish nor sorting to that effect they purposed sundry of thē haue entred into pursued a more politike course for by thēselues others more simple excited cunningly by them they chalenge diuers receiued proceedings in Courts Ecclesiasticall not to bee iustifiable by lawe pretending now their especiall griefe to rest herein for that they are delt with and oppressed contrary to law euen as if they did carie a principall and zealous care to haue all her Maiesties lawes dulie obserued By whose frequent clamours some very graue wise and learned no way affected to their other fansies either not being well informed of proceedings Ecclesiasticall or not weying for want of leisure certain points seeming to bee doubtfully reported in the bookes of Common lawe so throughly as their great learning therein doeth affoord in a kind of commiseration for so I interprete it towards some of those who seeme distressed and to be otherwise well meaning men haue lately called into question diuers proceedings Ecclesiastical both for matter and for circumstance or maner that they are contrary to the lawes of this Realme Yet all of them doe not iumpe in the selfe same opinions hereafter touched For they are seuerally holden by seuerall men the most whereof are stood in by men of meanest place and reckoning in that studie and such as are knowen to bee ouermuch addicted to factious innouations But all the chalenges whatsoeuer for contrarietie vnto the lawes of the realme only so farre foorth as they are hitherto commen to knowledge may fitly be reduced into this order summe They tende to the chalenging of proceedings Ecclesiasticall done either by those who proceed by her Maiesties immediate Commission who are either Iudges delegates dealing in matters onely betwixt partie and partie brought before them by appellation or Commissioners in causes Ecclesiasticall seruing especially for punishing of crimes offences or els such as be executed by those who deale in ordinary iurisdiction The exceptions that touch the very matter and obiect of Ecclesiasticall iurisdiction do in very deed by necessarie consequence tend either to the whole taking away of the Ordinarie iurisdiction as where it is affirmed that no Canon constitution nor ordinance prouinciall whatsoeuer may now be put in vre without her Maiesties expresse assent first had to execute the same or els do reach to the taking of it away but in part Those opinions that tend to the abridging of it but in some part doe goe about it partly by way of excluding Ecclesiasticall Iudges from the handling of certeine matters as by holding that none Ordinarie may cite any whomesoeuer but in causes Testamentarie and Matrimoniall and that no Lay man ought to be cited or summoned to appeare before any Iudge Ecclesiasticall to take an oath in any other cause then Testamentarie or Matrimoniall And partly by deriuing them from the conisance Ecclesiasticall vnto other Courts as that the iudgement of heresie now lieth rather in the Common law then in the law Ecclesiasticall and some other of them being defended by the same men that holde the next precedent opinion doe tend both to the excluding of Courts Ecclesiasticall and to the diuerting of such causes another way as that nothing now can be adiudged heresie but according to the statute 1. Eliz. cap. 1. As for the exceptions pretended to be taken from the lawes of the Realme against the circumstances or maner of proceeding in courts Ecclesiasticall they do either concerne such points as goe afore and are preparatories to the suite such is this that the Queenes Maiestie cannot giue nor any man receiue authoritie to vse any other processe in matters Ecclesiasticall then by citation Or do touch the maner of entring into the suite as that an Ecclesiasticall Court may not proceed without accusation or presentment and that Lay men may not be cited ex officio in any cause but Testamentarie or Matrimoniall Or they concerne the maner of handling and proceeding in the suite as that If a matter be duely presented against a man he may not be examined vpon his oath whereunto some belike meaning to qualifie and distinguish it do adde this viz. in a matter of incontinencie or such cause and that no man is bound to declare any matter against another except some be an accuser Or do concerne the sentence or iudgement of the Court Ecclesiasticall as that by none Ecclesiasticall authoritie a man may be depriued of his benefice being his freeholde being not endited and no suite of partie offered against him Or els doe touch the execution of the iudgement as that the Q. Maiestie cannot giue nor any man may take authority of
whereof hee maketh some doubt as it seemeth and aduiseth them of this danger as a 1 Scilicet welwiller that it is playne extortion and wrong vnto the partie And lastlie that they are all offenders and doe incurre the forfaiture of the penall lawes of Premunire Seeing then his wordes of this matter bee so bigge his termes so biting his speeches so confident and peremptorie and his accusations so grieuous Is there not in defence of Iustice and of so many good and great learned men in seuerall professions great occasion offered to haue it examined whether the force and weight of his reasons will beare out this copious haruest and hote raging feuer of wordes or whether these wordes were but vsed because matter wanted What weight and moment his reasons are of is not of this place particularlie to discusse but shall bee reserued to the seuerall partes of the Discourse following And I will not striue by bare wordes to returne these of-scowrings of a fowle mouth and a defiled penne vpon him agayne further then must needes cleaue fast to himselfe the Authour of them when they shall by reason bee wiped off from the persons charged and so are to rebound backe vpon their first owner And to giue you an inckling in the meane time that it is not otherwise like then to fall out so It shall not bee amisse a little to consider how gingerlie sometimes hee treadeth in this matter and how here and there himselfe minceth and qualifieth the state of the controuersie as it were waiuing his first issue notwithstanding all those his former high lookes and braue termes For first he granteth that diuers euen of the learned sort doe hold and that verie confidently meaning hereby as I take it sundrie professors of the Common lawe that these proceedings which he impugneth are warranted by the Statute 1. Eliz. cap. 1. and can he whosoeuer he be for a man shewing no more yet see more herein then so many of the learned sort can that be of an other iudgement And though he exclaime as yee haue heard mightilie that this kind of oath is contrarie and a stranger to the lawes Iustice and policie of this Realme yet in the verie closing vp of his treatise hauing sayd that it was neuer put in vre or vse by any Ciuill magistrate of this land by the strength of trueth is forced to adde thereunto this exception viz. but as it is corruptly crept in amongst other abuses by the sinister practises and pretenses of the Romish prelates thereby imploying that yet it hath bene vsed of long time by the Ciuill policie and magistrates of this Realme noting them withall I know not with what other abuses as being ouerrought which belike they also shall heare of as his leisure will permit him if they please him not in the meane time the better Likewise going about to answere the obiection that may be made for iustifying of this othe by the like approoued course in the Starre-chamber he vseth these wordes as a reason of his allowance of such proceeding there viz. The Starre-chamber requireth an answere to matter in fact done either to the iniurie of a priuate person or hurt to the publike State Then by like reason if Iudges and Commissioners Ecclesiasticall shall but require this oath to answere matter in facte as in very trueth they doe none otherwise done to the hurt of the publike State then is the cause in controuersie thus farre yeelded vp by him But can he in deed thinke it reasonable and iust to exact such oath for punishment of an iniurie done but to a priuate person in his temporall goods or such like and shall it bee in his iudgement vniust and vnreasonable to be exacted for discouerie and restraint of such enormities which cannot be denied to be preiudiciall both to the state of the Church Common weale wherein Iudges Ecclesiasticall most vsually doe practise it Vltrà non desidero habemus quasi confitentem reum In another place of the Treatise he sharpely inueieth for that the Commissioners Ecclesiasticall minister the oath before the partie be permitted to haue the Articles Now in his shewing of differences betwixt the proceedings by Commissioners ecclesiasticall and the Starre-chamber one of them is this that the defendant there hath the copie of the bill of Information to answere by his counsell ere hee take his othe for the trueth of it yet hee restraineth it thus viz. So the Information in the Starre-chamber bee not made Oretenus so that it must hereupon needes be yeelded that at sometime and vpon some occasion it may bee and therefore it is not simplie vniust to giue the oath before the defendant haue a copie nor for him to be debarred from counsell when he answereth but interrogatories of his owne fact or knowledge For in deed the defendant in the Starre-chamber is not allowed counsel whē he answereth to Interrogatories sorted into Articles but only is allowed counsel for the maner of framing of his answere to the Bill into due forme of law the Counseller not aduising him in the matters of fact least happily he draw the defendant into periurie For it were very vnreasonable that counsell should direct him in the matter and as it were to say vnto him answere not this thus though it be true for then you are like to be grieuouslie punished Nay rather as a writer in the Ciuill law aduiseth the counsell euen to the bill of Information ought to tell the defendant to this effect Si hoc modo respondeas perdes quidem causam sed si aliter quà m veritas se habet perdes animam Furthermore in one place where he reprehendeth forced and constrained oaths hee limiteth his meaning by these words viz. in that generall maner which is as afore he had surmised viz. to sift generally all a mans thoughts words and deeds and that without any accusation or complaint precedent so that it is not simply the vrging of them to take oath in a criminall cause which grieues him or is to be condemned but to doe it in that generall maner for all thoughts wordes and deeds If then no such matter be in very trueth euer practised the man it seemeth will easilie bee reconciled againe vnto them whom hee so eagerlie afore snatched at and tooke vp Lastly in one part of the Treatise hee speaketh in deed against oaths in criminall causes but it is with this taxatiue restraint especiallie saieth he in causes of life and death contrarie to the lawes of this realme so that if it be not ministred in any cause of life and death no nor yet in any cause of mutilation of limme as in very trueth it is not now by any court ecclesiastical a thing most notorious then there is no cause of offense giuen either to the lawes of the realme or vnto himself And therfore for this time the Treatiser and those which exercise Iurisdiction ecclesiasticall may seeme in some broken maner to bee growen
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
thereby authorised 14 That by the statute her Maiestie may commit authoritie and they may take and vse for ecclesiasticall causes attachments imprisonments and fines 15 That an ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie 16 That after fortie dayes an excommunicate person may be otherwise punished then vpon the writ De excomm capiendo and that the said writ may and ought to be awarded vpon contempts rising on other causes ecclesiasticall then any of those ten crimes that be mentioned in the stat 5. Eliz. cap. 23. 17 Of a prohibition what it is where it lieth not and where it doth and how it ceaseth by a consultation and of the writ of Indicauit 18 An analysis or vnfolding of the two speciall statutes touching Premunire with sundry questions and doubts about that matter requiring more graue resolution THE FIRST PART OF an Apologie of certeine proceedings in COVRTS ECCLESIASTICALL wherein is chiefly shewed what matters be incident to Ecclesiasticall conusance and so allowed by Statutes and Common law CHAP. I. That a seuerall royall assent is not required to the executing of euery particular Canon IF no Canon or Constitution Ecclesiastiall might now be put in vre but such as her Maiesties expresse assent is first had vnto then do all their other opinions against the ordinarie iurisdiction ecclesiasticall stand in no stead and might be spared because this would serue to cut off all at once which they shoot at For none that exercise ordinarie iurisdiction haue hitherto had it in particularity which by the oppugners seemeth to be meant otherwise then by permission of law vnto euery of their proceedings Neither in trueth for the infinitie of it and troublesomnesse to procure such assent from her Maiestie for euery particular matter dioecesse of this Realme from time to time were it possible to be vsed Now if Ordinartes from whom either mediately or immediately appellations do lie vnto her Maiestie in the Chancerie by reason of the want of such particular assent vnto the execution of euery canon shall according to this conceit haue nothing to doe then cannot the Queenes delegates neither to whom appellations from Ordinaries doe come haue any thing wherein to bestow their trauell and therefore this point seemeth first of all meet to be cleared and to be bestowed in the first ranke The absurdity of this opinion whosoeuer were the hatchers of it will easily shew it selfe For if matters testamentary matrimoniall which all they grant to be ecclesiasticall right of tithes and sundry other causes which shall be also prooued so to be shall not ne can not by reason of this want be dispatched as now they are by ecclesiasticall iurisdiction and yet can not be dealt in by any other authoritie according to any law now in force then is there a maine imperfection in the policie of this Common weale viz. For men to haue a right and yet no likely or readie meane to come by it and for grosse oftences to be committed that are by law punishable and yet no man sufficiently authorized to execute such lawes The iudgement of whole Parliaments kept in seuerall Kings and Queenes reignes since that act whereupon this fancie seemeth to be grounded so many as haue had cause to speake of the iurisdiction ecclesiasticall doe also fully conuince it The 1 25. H. 8. ca. 19. statute for delegates vpon appellations doth argue that Ordinaries might without further leaue obteined as in former times they did execute their iurisdiction ecclesiasticall For if there were to be no more ordinarie proceedings till the king should giue his assent to the execution of euery canon for what vse should appellations from the decrees and iudgements of Ordinaries be there prouided for Likewise 2 27. H. 8. ca. 20. 32. H. 8. cap. 7. two statutes were not long after prouided in assistance of iurisdiction ordinary and for the better and speedier recouerie of tithes in Courts ecclesiasticall according to the course of the ecclesiasticall lawes in that behalfe And the 3 34. 35. H. 8. cap. 19. like was also enacted for recouerie of pensions procurations c. withholden In the time of K. Edward the sixt in 4 1. Ed. 6. cap. 2. a statute since repealed by queene Marie a great number of particular causes of iurisdiction ecclesiasticall are there by the way rehearsed that Ordinaries other ecclesiasticall Iudges might and did then deale in In the time of queene Marie before the supremacie was giuen vnto the Pope the 5 1. Mar. cap. 3. act for not disturbing of diuine seruice or preaching reserueth the iurisdiction that Ordinaries then had for punishment thereof by lawes ecclesiasticall ouer and aboue the penalties of new thereby inflicted In the Queenes Matesties 6 1. Eliz. cap. 2. time that now is by the act for vniformitie of Common prayer Ordinaries c. may enquire c. and punish the violations of that act by censures c. as heeretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes The Statute De excom capiendo reckoneth 1 5. Eliz. ca. 23. vp particularly diuers Crimes and offences Ecclesiasticall punishable by that iurisdiction which were hindered much from punishment that apperteined for want of due execution of that writte De excom capiendo and therefore prouideth remedie therein Which necessarily argueth the continuance and approbation of execution of Iurisdiction Ecclesiasticall by Ordinaries without further obteyning of leaue By the statute against periurie made at the same time 2 5. Eliz. cap. 9. it is prouided that it should not extend to Courts Ecclesiasticall but that offenders in periurie or subornation in a Court Ecclesiastical shall and may be punished by such vsual and ordinarie Lawes as heretofore haue bene and yet are vsed and frequented in the saide Ecclesiasticall Courts which prooueth the vsuall practise of Iurisdiction Ecclesiasticall hitherto vsed without any speciall assent to be lawfull The statute against vsurie prouideth 3 13. Eliz. cap. 4. that such vsurie as is aboue ten pound in the hundred by yeere shall not withstanding the other penalties there newly inflicted be also punished and corrected as in times past by the Lawes Ecclesiasticall And by the 4 13. Eli. cap. 10. statute of dilapidations the remedies that by the Lawes Ecclesiasticall were afore giuen against executors and administrators of incumbents are there extended also to donees and alienees to be by the same authoritie dealt with In the which clauses of statutes there is no repeale of any former particular statute or Lawe nor any generall non obstante conteined And therefore if those Parliaments had bene of this iudgement that no Canon might now be put in vre without the Royall assent first obteined there woulde haue bene added these or some like words viz. They the said Ordinaries first obteining the royall assent for the putting in vre of such Canon as they minde in that cause to
proceed by that thereby without all scruple of danger their proceedings so appointed to them might haue bene warranted But being altogether needelesse it is no maruell though it were omitted For can any man doubt if it were needfull but that there is a sufficient Royall assent had when as it is giuen to the whole acte before it can passe for a Lawe Lastly the same statute out of 5 25. H. 8. ca. 19. which as I coniecture this opinion was stirred vp doth establish all Canons which be not contrariant nor repugnant to the Lawes Statutes and customes of this Realme nor to the dammage or hurt of the Kings prerogatiue Royall that they shall now still be vsed and executed as they were afore the making of that acte till they should be viewed c. by the 32. persons c. which is not hitherto done But such were vsed afore without any expresse or particular Royal assent from time to time obteined and therefore may still be vsed without any such newe assent For to exact it were in very deed to bring in a quite disuse of all ordinarie Ecclesiasticall Iurisdiction in stead of vsing it which hitherto from planting of Christianitie and in all succeeding times hath neuerthelesse bene practised This opinion as an arrow shot vnaduisedly at the Bishops glanceth off them and woundeth very deadly the fauourers of the new Discipline in whose behalfe it was framed for they are so farre from taking expresse leaue of the Prince to put euery of their Constitutions ecclesiasticall in vre that they holde her Maiestie hath nothing to doe to make or establish any Church-lawes And the clause for vse of such former Canons and Constitutions synodall afore mentioned as they were vsed afore that time will not helpe the exercise of their synodicall cōstitutions made long after in a Conuenticle called together by their Moderators writ But belike when they set vp the statute of submission of the Cleargie shall be turned into a statute of submitting the Princes scepter to the rule of their Presbyterie in all Church-matters The chiefest colour and pretence 1 25. H. 8. ca. 19. for this opinion is taken as I coniecture out of the now reuiued statute made in K. H. the eights time of submission of the Cleargie But the wordes thereof doe plainely discouer the weakenes of such collection for it is not enacted simply that they shall not put in vre c. any constitutions c. but according to their aboue said submission and petition which was that they would not enacte nor put in vre any new Canons c. in their Conuocation without the Kings royall assent and authoritie in that behalfe Otherwise there were a flat contrarietie in the selfe same Acte by reason of the last prouiso thereof next afore repeated where Canons already made so they haue the qualities thereby limitted are appointed to be vsed For it is there said shall be now still vsed and executed as they were before the making of that Acte And where in 1 27. H. 8. c. 15. the 27. yeere of the said King the same submission and former Acte is repeated there in the very body of the statute touching not putting in vre of Canons c. the same modification as afore is retained viz. According to the said submission and petition of the Clergie which concerneth onely newe Canons For of those that were then already made the very selfe same prouiso as afore is set downe appointeth that they shall still bee vsed and executed as they were before the making of either of those Acts. Which was without any such expresse assent as by this opinion is enforced and is therefore neither requisite nor almost possible I haue also heard some alledge the 2 1. Eliz. ca. 1. clause of the statute made for vniting of all Ecclesiasticall Iurisdiction to the Crowne against the exercise of Iurisdiction by any Ordinaries which to mine vnderstanding is a very simple collection Belike they meane that no Iurisdiction is vnited to the Crowne but there must be a Commission vnder the great Seale to warrant the execution of it vnto him that is to exercise it Then must euery Stewarde of a Leete euery Constable and sundrie other Officers be driuen to procure like warrant for the execution of their Temporall offices for I trust it will not be denied by these men but that all Temporall authoritie and Iurisdiction is by Lawe also vnited to the Crowne In deede this reason would serue against either the one or the other Iurisdiction if they were not deriued and claimed from the Crowne but from some other authoritie immediatly as the Popish Clergie did theirs from God by the meanes and direction of the Pope Yea euen another 3 8. Eliz. ca. 3. Parliament sheweth howe farre this collection is from the minde of the makers of that Lawe For that very clause 1. Eliz. ca. 1. together with her Maiesties letters Patents directed foorth for confirming and consecrating Archbishops and Bishops is brought in the Preamble thereof as a strong proofe without scruple and ambiguitie that the authorities and Iurisdictions by them executed be thereby giuen vnto them from her Maiestie And therefore this opinion doth remaine destitute of any ground of Lawe CHAP. II. The particular distribution of all other causes to be prooued to be of Ecclesiasticall conusance besides Testamentarie or Matrimonial with a discourse of Bishops certificats against persons excommunicate being a speciall point of their voluntarie Iurisdiction where there is no partie that prosecuteth THe next opinion viz. That by the lawes of this Realme none Ordinary may cite any whomsoeuer but in causes Testamentarie or Matrimoniall though it draw deepe yet it hath not so large a reach nor draweth so great a compasse as the former For this leaueth some ordinarie Iurisdiction Ecclesiasticall in these two cases where the other vpon the matter sweepeth away all But if this be simply true then the former must needes be false For if by Lawe an Ordinarie without more a doe may cite men in these two cases then may some Canon c. by Lawe be put in vre without any further Royall assent to execute the same But if it shall be prooued true that by the Law of the land in some causes besides Testamentarie or Matrimoniall an Ordinarie may cite Then this opinion that in no causes besides Testamentary or Matrimoniall an Ordinarie may cite being the contradictorie thereof must needes according to rule of reason be prooued false For it will not be denied by any but in what cause soeuer an Ordinarie may lawfully deale in that if neede be he may vse citation All matters done by Bishops who onely be immediate Ordinaries vnder her Maiestie either belong to their order and degree as ordeining of Ministers or Deacons cōfirmation of children dedication of Churches or Churchyards or to their Iurisdiction Their Iurisdiction is of two sorts the first is voluntarie that is when those whom they deale
the Booke aforesaide that a man for his wife onely may haue Action of trespasse at the Common Lawe and also a writte de vxore abducta cum bonis viri Also for a man that liueth asunder from his wife there lyeth Action in a Court Ecclesiastical for him to receiue her againe and to cohabite with her as may be gathered by 9 13. Ed. 1. c. 34. that statute of Westminster the second where it is prouided that a woman eloped from her husband shall loose her dower except the husband without compulsion Ecclesiasticall doe receiue her againe Therefore for a man to receiue his wife againe compulsion Eccles. may in some case be vsed with allowance of the statutes of this Realme Lastly it remaineth to shew here when and howe goods and chattels promised with a woman in marriage after the marriage accomplished be demandable and determinable in the Court Ecclesiasticall For besides one or two cases afore rehearsed where by the way so much is implied it appeareth by many consonant iudgements in the very point For if a 1 22. Assisatum fol. 70. per Thorpe cui concordat M 16. H. 3. per Fitzh proh 22. contract be made betweene two men that if the one will take to wife the others daughter then he will giue him tenne pounds In this case if the money be to be demaunded it shall be demaunded in the kings Court because hee did not promise the money with his daughter in mariage but by way of couenant that he should marry his daughter But if he had promised the money with his daughter in marriage then it shoulde haue bene demaunded in Court Christian. Likewise 2 14. Ed. 4. 6. in an action of debt the plaintife declared that he had married the daughter of the defendant and that he should haue twentie pounds in respect thereof and by agreement of all the Iustices of the Common Plees without any answere of the defendant it was decreed that the plaintife should haue nothing vpon his writ because it is determinable in a Court Christian and is of the same nature as the very marriage is So doth 3 Reg. fol. 46. 48. per Brooke tit prohib Brooke also collect out of the Register that for marriage money and pensions the suite lieth in the Spirituall Court and agreeable to the former distinction of Thorpe Fitzherbert 4 Fitzh no. na br tit proh fol. also reporteth it in his Nouanatura breuium Bracton in like maner affirmeth it 5 Bracton lib. 5. cap. 16. and yeeldeth a reason thereof for hee speaking of Ecclesiasticall iurisdiction saith thus Sic de rebus datis vel promissis ob causam matrimonij principaliter sic de rebus quae accidunt matrimonio vt sipe cunia promissa fuerit ob causam matrimonij quia eiusdem iuris id est iurisdictionis esse debet accessorium cuius est principale And albeit Brooke 6 Brooke t. t. iutisdict in his abridgement report that the same was also else-where holden by 7 17. E. 4. fol. 4. three viz. Chocke Townesend and Littleton yet hee himselfe seemeth to doubt of it and saith there is also great 8 37. H. 6. fol. 9. opinions against it because there is quid pro quo and therefore likely to be determinable in a Temporall Court Therefore it may probably bee thought that these opinions which hee speaketh of in this behalfe 37. Hen. 6. either were meant in such a case as grewe to a lay contract such as Thorpe speaketh of in the booke of Assises afore alleaged or else there was some couenant for the money by deede For 1 45. E. 3. fol. 24. per Br iurisdict 11. in an Action of debt brought vpon a couenant by deed that if the plaintife should marry the defendants daughter the defendant should giue him an hundred pounds which condition of marriage the plaintife had performed it was adiudged that notwithstanding Articuli Cleri the matter did belong to the Temporall Court because it was by deede but it had not belonged to it but to the Court Ecclesiasticall if it had bene without deede And the rather may it be thought because this hath bene taken for Lawe both afore and since notwithstanding those opinions mentioned by Brooke First in the 2 Reg. in Br. orig pag. 46. b. Register wee finde to this effect a certaine woman in consideration of Matrimonie to be contracted with her daughter promised 40. marks the Matrimonie was accordingly celebrated the woman dieth making executours Then for not paiment thereof the husband bringeth his Action in the Court Ecclesiasticall the executours obteine a prohibition whereupon the matter comming to scanning a Consultation is neuerthelesse graunted whereby is affirmed that the Ecclesiasticall Court may lawfully proceede therein Yea and long after these opinions deliuered Fitzherbert affirmeth that such suite belongeth to the Court Ecclesiasticall as hath bene alleadged And so doth the little Treatise of the liberties of the Clergie by the Lawes of the Realme in these 3 Goodall of the liberties of the Clergie wordes viz. If he that promised money with his daughter in marriage dieth hee that married her may sue the executours for the money in the Spirituall Courts There is in the saide little Treatise another case touched affirmed to be of Ecclesiasticall conisance which belongeth to this Chapter It is 4 Ibidem this If a man saith hee giue goods with his daughter in marriage and after there is a Diuorce the same may sue for those goods in Ecclesiasticall Court But hee sheweth not whether vpon any Diuorce whatsoeuer the goods be there recouerable viz. whether aswell when the Diuorce arose of the womans adulterie as when it grew vpon some consanguinitie or other Canonicall impediment founde out after mariage Hitherto concerning those kindes of Iurisdiction Ecclesiasticall which I adioyned to causes Testamentarie and Matrimoniall CHAP. IIII. Generall proofes out of Statutes that sundry other causes besides Testamentarie or Matrimonial are of Ecclesiastical conusance BEfore I proceed further to shewe in particular what matters besides be of Ecclesiasticall conisance and Iurisdiction and how farre I holde it nothing amisse to shew in some generalitie first that there are some other such which be neither Testamentarie nor Matrimoniall nor yet any way depending or of affinitie to them The Great Charter to the obseruation and propugnation whereof the King and the great Nobles and Officers were wont to be sworne layeth this ground-worke of all which followeth We haue granted to God and by this our present 1 Mag. Chart. cap. 1. Charter confirmed for vs and our heires for euermore that the Church of England shal be free and shall haue all her whole rights and liberties inuiolable But that the Church had these rights and liberties then which are now claimed the Actes of Courtes Ecclesiastical in those and former times and in all succeeding ages without prohibition or other oppugnation with the
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
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
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
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
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
Treatiser putteth vs in minde of viz. that in K. H. 3. time there was a iust sentence of curse and anathematization denounced by the Bishops against the violaters orbreakers of the said great Charter But what if Bishops should vse the like authority now to excommunicate indefinitely and aforehand all such as shall hereafter breake some temporall law it is to be doubted that the Treatiser would not in this case be the same man nor yet affirme it to be a iust sentence but would rather threaten them with a Praemunire for their kindnesse It is assured that par in parem non habet imperium and none authority can so binde it selfe by any law but that vpon good occasion and by like power it may be abrogated againe Yet how litle this plea of ours is needfull in this case is sufficiently shewed Yea rather the defenders of these such like opinions against the rights and liberties of the Church of England notoriously knowen so to be by the reported lawes customes thereof to them that know any thing in either had need more iustly to feare that censure of the Bishops if it be so iust if so be they cary any feare at all or reuerence vnto the censures of the Church which be so iustly inflicted as themselues do yeeld As these opinions do onely reach and shoot at the commission ecclesiasticall to impound and streine the authority thereof vnto so narrow a roome as that her Maiestie should thereby haue no seruice done by those her subiects which are imployed therein wherby the fansies of the fauorites of these men might more freely growe without discouery or any such penal◅ie as they thinke they need care for so for the iust defence herein of that commission I may allege the words of the same statute whereby it is established 1 1. Eliz. cap. 1. viz. They shall haue full power and authoritie by vertue of this act and of the said letters patents vnder your highnesse your heires or successors to exercise vse and execute all the premisses according to the tenour and effect of the said letters patents any matter or cause to the contrary in any wise notwithstanding By which words tenor literarum is signified whatsoeuer tenent in se viz. that which is expresly conteined in them by the effect of them is vnderstood whatsoeuer is within the true and vnforced meaning of any such letters patents So that if attachment fine imprisonment c. be either in the letters patents expresly conteined as in trueth they be or vndoubtedly meant by them then the vse and excercise of these shall thereby sufficiently be warranted and authorized vnto her Maiesty for granting and to the commissioners for so executing And if any doubt otherwise might be made yet there be two clauses in the words aforesaid that be called verba siue clausulae operatinae and do therefore supply many defects and wants in the exercise of a iurisdiction delegated by the Princes rescript The first of them are those words Full power authoritie and the other is the generall non obstante in transcendenti viz. of any matter or cause whatsoeuer But to all this is answered by some that these words viz. according to the tenour and effect of the said letters patents do worke thus much that her Maiestie need not grant all but so much iurisdiction as her Highnesse thinketh meet and that so many or few of them so they be two atleast may thereby be authorized vnder her Maiestie to exercise such iurisdiction It is true that those words so worke and import so much but doeth it heereof follow that nothing else is meant or can be comprehended thereby Nothing say they for other processe then citation or other censures or punishment then excommunication c. her Maiestie can not commit vnto them else might she also giue them authoritie to hang men What is there no more difference with these men betwixt attaching fining or imprisoning and plaine hanging What will they then say of the Starre Chamber which may impose all those three and yet cannot put any man to losse of limme or of life and this is great reason For we are taught by the Ciuill lawe and I thinke it is agreeable also to the lawes of the land that wheresoeuer an authoritie is giuen in neuer so generall or pregnant wordes it cannot be drawen foorth to reach vnto any mutilation of limme or paines capitall except they be plainely expressed Other some as the Treatisour doeth answere this obiection in this sort but yet to the ende of prouing othes of the parties in causes criminall to be vnlawfull a matter to be handled in the thirde part viz. that how general soeuer the words of the acte be in one place yet are they to be restrained to this particular viz. none other then such iurisdiction ecclesiasticall as may be lawfully vsed and entending per petitionem principij that such oathes be contrary to law But in this his interpretation he saith he contrarieth diuerse great learned men in that lawe whom it behoueth with a more narrowe eye to beholde this statute lawe Truely halfe an eye of a meane learned man will serue to discouer that he cautelously leaueth out one member of the disiunctiue alternation which is in that statute For it is thus viz. all Iurisdictions c. whatsoeuer by any Spirituall or Ecclesiasticall power or authoritie hath heretofore bene or may lawfully be exercised c. So that if either it haue bene exercised at any time or hauing not bene put in exercise yet lawfully may be it is here graunted to her Maiestie And were it in deede meete either in temporall or spiritual Iurisdictiō to leaue it to the dispute determinatiō of euery priuate subiect that is dealt with what may be lawfully and what may not so be done in either lawe The Treatisour nor any other cannot in answere hereof say that the worde lawfully must also be vnderstood as repeated in the first member First because it is a disiunctiue proposition and therefore that word should haue bin expressed in the first part if it had bin to be drawen vnto both and not to haue bin put in the second part onely Secondly for that it would then take away from her Maiestie all such ecclesiasticall authoritie being most lawfully in her Highnesse as was heretofore exercised by or vnder the Pope by vsurpation and therefore most vnlawfully Neuerthelesse the matters graunted and exercised by the commission which are by him chalenged I trust God willing shall be also otherwise prooued lawfull and warrantable Against imprisoning by vertue of the commission one of the speciall matters nowe in handling the said Treatisour obiecteth that such parties as refuse to sweare to answere the articles exhibited against them are imprisoned without baile or maineprise whereas by the lawe ecclesiasticall they ought not to be imprisoned but to be proceeded against as pro confessis It is true that by Ordinary authoritie
pursuite of the writ De excommunicato capiendo being ouer-trouble some and full of vnnecessary circumstances But hereunto he doth answer that we forget the olde and true saying Compendiaria res improbitas virtus longa Now if he will haue this to be a good answere then must he holde the shorter way alwayes to be the woorse and the longer the better And where is then the rule of Logike Frustrà fit per plura quod fieri potest per pauciora and how is he so suddenly fallen out with himselfe that else-where condemneth Courts ecclesiasticall for lingering consistories I perceiue neither long nor short will please him long together But his reason is a fallacie of the consequent For though it be but a short cut vnto wickednesse and the way vnto vertue be long and hard yet is not all length commendable nor yet are all short courses condemnable The latter opinion of the two here also to be handled doth crosse thwart other of their owne opinions for the Ciuill law saith Frustrà fertur sententia nisi parata sit executio A decree or iudgement is of no effect where execution of such sentence can not be had The Iudges ecclesiasticall haue no compulsorie meanes to put their iudgements vnto finall execution sauing excommunication the writ De excommunicato capiendo after forty dayes obstinacie Those of the impugners of ecclesiasticall iurisdiction vnder pretence of the lawes of the Realme that be straitest laced doe yeeld causes testamentarie and matrimoniall to be of ecclesiasticall conusance and I hope sundry others be prooued no lesse to be Now how shall any of those be euer effectually proceeded in seeing they are none of the tenne crimes reckoned in that statute if for not performance of that which is decreed the wilfull partie shall neuer be attached for persisting vnder excommunication It appeareth also plainly by the Preamble that the sayd statute was enacted for better assistance vnto iurisdiction ecclesiasticall by more due execution of the writ De excommunicato capiendo especially against offenders in crimes of ecclesiasticall conusance The Ordinaries afore this who had to deale in any matter ecclesiasticall and all subiects that sued any other there had this interest of hauing a contemptuous person being excommunicated and so remaining aboue fortie dayes to be attached and imprisoned by vertue of that writ vpon what originall cause ecclesiasticall soeuer such contempt grew Now if that statute prouiding but a straiter course for execution of that writ in tenne crimes onely should with all take away the force and vse of it as it stood afore at the Common law not onely in sundrie other crimes of ecclesiasticall conusance still there punishable but also in all causes Testamentarie Matrimoniall of tithes and in all other rights ecclesiasticall in that Court onely still demandable then should it worke a cleane contrary effect to the very true drift and scope aimed at and to the meaning it selfe of the Law-makers But this is very vnreasonable and absurd to imagine for quae in fauorem sunt introducta non debent in odium retorqueri and quae ad vnum effectnm parantur non debent contrarium operari effectum It is true that in the beginning of the body of that Statute the words be generall in this sort viz. Euery Writ of excommunicato capiendo that shall be granted out of the high court of Chancerie against any person or persons c. Whereupon some very learned in those lawes haue thought that the maner of granting it returning and deliuering it which be there especified doeth reach vnto all and euery writ de excommunicato capiendo but yet that the new penalties there prouided for such person excommunicate as shall not yeeld his bodie are to be restrained vnto those onely who by Significauit are certified to haue bene excommunicated vpon some cause or contempt arising vpon some originall matter of some of those ten crimes there especified This seemeth to carie great reason with it for in trueth that generalitie there not withstanding not only in the Preamble but in diuers partes of the body of that statute we find wordes taxatiue and of restraint carying the chiefe purport of that Act vnto such writs as be grounded vpon some of those ten crimes For the Preamble onely speaketh of persons offending in many great crimes and offences of continuing in their sinnefull and criminous life and of such offenders And the beginning of the bodie of the Statute is for redresse thereof be it c. and afterward this word of Limitation is often vsed viz. Such writ of excommunicato capiendo such persons excommunicate and such Significauit And therefore that statute nor any Prouiso in it cānot be entended generally to take away the writ de excommunicato capiendo in all causes sauing in those ten crimes as by this opinion is enforced But the clause thereof Sauing and reseruing to all persons hauing authoritie to certifie excommunicate persons doth put all this matter out of doubt and dispute For thereby is saued and reserued to them like authoritie to accept and receiue the submissions satisfactions to absolue and release and to signifie and thereupon to haue such writs c. in such maner and forme as heretofore respectiuelie they haue vsed as hath bene accustomed and as they or any of them had or ofright ought or might haue had anything in that statute specified or conteined to the contrary here of notwithstanding If then they may still signifie in like maner and forme shall haue writs thereupon may absolue and release receiue satisfaction and submission c. as they had done before that time then may and ought the writ de excommunicato capiendo to be awarded for contempt arising on other originall causes ecclesiasticall then any of those ten crimes in that statute reckoned For so Ordinaries did and had afore that time and since also whatsoeuer this opinion now doeth deliuer to the contrary CHAP. XVII Of a Prohibition what it is where it lieth not and where it doeth and how it ceaseth by a Consultation of the writ of Indicauit WHen any Court goeth beyond his bounds and dealeth in other matter or sort then the lawes of the land will warrant there lieth in some cases writs at the common lawe which are of Prohibition or Indicauit and in other cases a writ brought in by statute called Prouision and Premunire and the Prohibition and Praemunire doe lie as well against temporall as against ecclesiasticall Courts The Prohibition is a charge by the kings writ to forbeare to hold Plea either in some matter or maner which it is supposed a man dealeth in beyond his iurisdiction or otherwise then lawe will warrant Euery Prohibition is either Prohibitio iuris by the very lawe it selfe or Prohibitio hominis where the ministerie of the competent iudges in that behalfe is vsed Any Statute prohibitorie is 1 21. E. 3. fol. 29. Prohibitio Iuris a very prohibition
likewise that none shall bring them into the Realme or being perhaps brought in by another shall receiue them or being neither brought in by them nor yet receiued froÌ„ others but comming some way to their knowledge shall not make any notification or any other execution of them where neither within the realme nor without c. vpon paines there at large conteined Of those generall heads whereunto I said afore that all questions of Praemunire might be referred there be some that being expressed in these statutes are I thinke without all doubt to be within the compasse thereof as by the first of these two to draw any of the Queenes liegeance out of the realme in a plea whereof the conisance pertaineth or iudgements be giuen in the kings Court And that which is sayd of a Plea in the kings court is also drawen by some opinion vnto a court Ecclesiasticall for 1 9. Ed. 4. fol. 3. Yeluerton in the Kings bench held opinion oftentimes that if a Clerke doe sue another in the Court of Rome for a spiritnall matter whereof he may haue remedie within the realme that he is in case of Praemunire quia trahit in placitum extra regnum And 2 Fitzh Noua nat br fol. 44. lit H. Fitzh holdeth that for collation of a Prebend sued out of the realme a prohibition doeth lie Secondlie it is an vndoubted Praemunire by that statute to sue in another court to defeate or impeach the iudgements giuen in the kings court In these wordes of another court there seemeth to be an opposition and seuerance of such a court from the Kings court the rather because both the Preamble and the body of the statute do mention drawing men out of the realme in Plea Whereof at that time there was no colour for any man to be drawen any whither but onely to the court of the bishop of Rome whether he resided there at Auignon in France where the Popes about that time did lie 70. yeeres together at Bononie or elsewheresoeuer Therefore for the true vnderstanding of those words enquire If any of this realme of late yeeres whiles the parliament of Paris was established by the authoritie of the French king vpoÌ„ colour that the Queenes maiâ—…stie is in very right Queene of France should haue brought processe thence against another subiect to appeare there whether this had not been a Praemunire by that statute likewise If any of the Q. Courts not authorised therunto by law vpon writ of errour should defeate a iudgement giuen in any other of the Queenes courts enquire whether this be within the meaning of those words notwithstanding the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and distinction whereby such another court seemeth to be seuered and made a distinct thing from all the Queenes court Thirdly it is an vndoubted Praemunire according to the later of the foresaid two statutes to purchase or pursue or to procure so to be done in the court of Rome or else-where any such translations c. or any other things which touch the King be against him his Crowne and Regaltie or his Realme as is there aforesaid or c. as is there further conteined Fitzherbert reporteth 1 Fitzh tit Praemunire nu 5. that the opinion of the court was Paschae II. H. 7. that Alibi in the said statute was vnderstood of Bishops courts so that if a man sue there for a thing that belongeth to the Common law he shall be in the Praemunire Therefore 2 Brooke titulo Praemu nu 21. was it holden by some that a benefice Donatiue by the Patron is a meere lay thing and the Bishop shall not visit it and therefore shall not depriue from it and if he meddle in this case it is a Praemunire and sayth that Barlow bishop of Bathe for depriuing the Deane that had it as a Donatiue by the Kings Letters patents was driuen to sue a pardon Fineux chiefe 3 15. H. 7. fol. 9. Iustice saith a spirituall man may execute temporall iurisdiction as the Bishop of Durham doth in his countie Palantine viz. as he hath iura regalia but not as a Bishop and saith he the Bishop shall punish his Clerks by Praemunire for suing in Spirituall courts for a cause temporall But whether that Bishop hath this authoritie seeing Praemunire is brought in by statute there is a Quaere inde made as of a matter doubtfull It is holden that a Prohibition doth 4 24. H. 8. titulo Praemu num 16. often lie where a Praemunire doth not as of tithes of great trees c. for the nature of the action doth belong to the Spirituall court albeit not that very cause in that forme but when it is of a lay matter or of a thing that neuer did belong vnto the Court spirituall herein as is said there lieth a Praemunire But these notwithstanding sundry doubts are made in this behalfe because at this day all iurisdiction Ecclesiasticall is now truely acknowledged and is in deed as it was alwayes in law in the Souereigne prince and from her prerogatiue royall deriued downe to others no lesse then the Admirall court is or the court of the Constable of England in times past was when it was vsed albeit they vsed their peculiar seales and names to the processes there sped And I haue heard very credibly that some reuerend and great learned Iudges whiles they liued were of opinion that for an Ecclesiasticall Iudge to deale in a matter apperteining in very truth to a Temporall court yet for some neerenesse and cohereÌ„ce by him probably supposed to be an ecclesiasticall cause could not at this day be a Praemunire but subiect onely to a Prohibition and punishable as a contempt as it was at the Common law vpon an attachment after Prohibition Which opinion if it be sound then the Treatiser is farre wide from the truth where he saith that for men to deale in any cause not belonging to their iurisdiction is Praemunire This were very hard and rigorous if euerie mistaking or going beyond their commission by Iustices of Peace by any Iudges ecclesiasticall or temporall should be no lesse then Praemunire I haue heard it deliuered by great Lawyers that so to do doth but make the Actvoid as being coram non Iudice and inferreth no such grieuous penaltie For it is alleged that Alibi in the statute was put in to enclude processes deriued from the Popes authoritie albeit he kept his abode any where els then at Rome In which respect it is affirmed in a 1 25. H. 8. ca. 21. statute that the said statute of Prouision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the kings crowne and dignitie royall And it seemeth to some that Alibi can not now signifie Bishops and their Courts which are called the Queenes Ecclesiasticall courts and Iudges and the Canons by law established the Queenes Ecclesiasticall lawes Insomuch as the power giuen by statute to her
Maiestie by her Letters Patents to 2 1. El. cap. 1. name such as shall execute all maner of iurisdictions touching or concerning any Spirituall or Ecclesiasticall power is brought 3 8. El. cap. 1. in the Preamble to prooue the sufficient ordinarie authoritie that Bishops haue giuen vnto them by the very Letters Patents directed from her Highnesse for their confirming and consecrating c. It is further alleged that such dealing of an Ordinary toucheth not the King against him his Crowne and Regalie or Realme as not falling into any of the mischiefs whereof that statute was meant to be a remedie And for that all iurisdiction Ecclesiasticall is now both in fact and Law vnited to the Crowne and from thence deriued if it should be sayd that the handling of a matter but in an incompetent court yet established by the Queenes authoritie were in that high degree of offence punishment against her Crowne some thinke it reacheth thus farre as to implie an incompatibilitie betwixt the Crowne and Ecclesiasticall iurisdiction and so by implication to denie her iust Royall prerogatiue ouer all persons and in all causes aswell Ecclesiasticall as Temporall as if these could not both flow from the Crowne nor stand together and meet in one person which is most erroneous to thinke and traiterous to affirme It is likewise alleged that this were to make in effect a Praemunire to lie in euery case where a Prohibition may and alwayes hath serued the turne Whereas a Praemunire seemeth to be as a remedie prouided where a Prohibition could not serue to stay the course of proceeding And that euen before the supremacy was acknowledged to the Crowne no Praemunire vpon this point onely is reported in the bookes of termes and yeeres to haue bene inflicted but onely for pursuing pleas of the conusance of the kings court out of the Realme seeking to defeat iudgements there giuen and procuring Bulles from the court of Rome in derogation of the lawes of the Realme Moreouer it is to this purpose alleged that by the 1 3. 4. Edw. 6. cap. 11. statute authorising two and thirtie persons to set downe lawes Ecclesiasticall though repealed it was prouided as they thinke in affirmance of the law that no man for executing any of them should haue incurred contempt paine forfeiture losse nor haue bene in danger of any action or suite of praemunire Yet if such lawes had bene framed the Iudges ecclesiasticall might by mistaking haue giuen some cause of prohibition Therefore it is gathered by like equitie to be very hard that an Ecclesiasticall Iudge meaning to do his dutie and but to execute Ecclesiasticall iurisdiction ecclesiastically yet by similitude and neere coherence of one matter with another mistaking and so exceeding his authoritie a thing very easie in the Common law wherein sometimes do happen varietie of iudgements amongst the oldest professers of it if before any prohibition brought as it were to forwarne him he should hereupon de drawen at the very first push into a praemunire For by like reason if a court Baron should heare plea of a matter aboue fortie shillings a praemunire in stead of a prohibition might be brought against them Therefore enquire and seeke to enforme your selfe aswell in the premisses as of these questions following what is to be holden for law viz. in holding plea in an Ecclesiasticall court 1. Doubt of a temporall matter whether there be not a difference when it is propounded vnder the very name of a temporall action and when it is propounded vnder the name of an ecclesiast matter And whether the Iudge be in danger before the matter be 2. Doubt opened vnto him or no For I thinke in no Court temporall or ecclesiasticall the Iudges peruse the writs declarations c. when they are first put in And whether it be as great an offence in law but to hold plea 3. Doubt as to giue iudgement and to award execution in an Ecclesiasticall court of a temporall matter Also whether it be like degree of offence for an ecclesiasticall 4. Doubt Iudge to execute a temporall matter by censures ecclesiasticall as it is to execute it or a matter ecclesiasticall by temporall viz. fine imprisonment losse of limme or such like Likewise of what qualitie the offence is to go on in plea in a 5. Doubt Court ecclesiasticall after a meere temporall matter as right of aduowson c. falleth in controuersie principally to be determined Or to holde plea there in a matter worthie of redresse yet neuer of custome handled either in temporall or ecclesiasticall 6. Doubt Court nor whereof any remedie lieth at the Common law Also what offence it is to make lawes temporall or ecclesiasticall without the Princes assent 7. Doubt What it is to deale in temporall causes or courts without 8. Doubt commission and what in ecclesiasticall And lastly of what degree and qualitie of offence is it for a 9. Doubt Court temporall to holde plea of a meere ecclesiasticall cause or to deale in censures ecclesiasticall Or for such a court to holde plea of a temporall matter being 10. Doubt no competent Iudges thereof as for example if the Court of Common pleas or the Eschequer should deale in pleas of the Crowne that be capitall with such like a great number And so thus much for the first part The end of the first part THE SECOND PART OF AN APOLOGIE FOR SVNDRIE PROceedings by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuerslie by them impugned This second part especiallie treateth of the two seuerall wayes of proceeding in causes Criminall viz. by way of Accusation and ex Officio Iudicis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie ¶ THE PREFACE wherein is declared howe the foure opinions put ouer vnto this place doe fall in with the challenges of the Innouatours and a generall distribution made of matters to be handled in the second and thirde Parts THe second part of this treatise containeth our proofes together with answere to the obiections made against the maner of practise of iurisdiction Ecclesiasticall by those who do euen professe themselues to endeuour an innouation in the frame of gouernment of this Church of England But wee meane not in this place to handle all which they obiect in this behalfe but only some such of them as touch the maner and fourme of the proceedings in the exercise thereof For it is knowen they take sundry other exceptions as against the maner of calling to function Ecclesiasticall against the ordination against sundry the callings and the functions themselues against deriuing of the iurisdiction Ecclesiastical from the Prince against the matters handled by that iurisdiction and against the maner of handling them in sundry other respects condemning them as Antichristian and contrary to Gods word All which are of another consideration and not fit here to
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.
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
CoÌ„missioners wil take it as a great benefit to haue bin instructed by theÌ„ in a point touching the pleasure of God increase of vertue conseruation of vnitie which by most of their large trauels in Diuinitie by themselues they haue not hitherto fouÌ„d Howbeit this last part of his saying seemeth vnto me to sound as if he would not stick any more to grant vnto vs that the large words of the Act doe allow of this oath So that we finde nothing any way materiall by him alleaged to impeach our former conclusion viz. that the common lawes and statutes of this Realme allowe such oaths to be tendered by Ecclesiastical Iudges therfore the oath of the partie in some matter of crime that may be daÌ„mageable penal vnto him is both in practise is alowed also to be practised in courts ecclesiastical by y e lawes of this realme CHAP. IX That such oath touching a mans owne crime is allowed both by the Canon and Ciuill lawes howe farre and in what sort and that the like is established and thought equall by the lawes customes of sundry other nations aswell ancient as moderne SEing then the giuing of an oath in a cause criminall penall to a mans owne selfe is practised by the lawes of the Realme and allowed by them vnto courts Ecclesiasticall in both which respects such Canons as prescribe it are by statute warranted to be still vsed as they were before the making of the Act. 25. H. 8. and in trueth haue bene alwayes since let vs therefore see whether this course be iustifiable also by Canon and Ciuill lawes and by them allowed and practised First the lawes of the realme that do allow certaine matters to be of ecclesiasticall conusance caÌ„not be intended but to allow an ecclesiastical forme of proceeding by such lawes receiued For it were as vnreasonable to barre them from proceeding in a cause ecclesiasticall according to that lawe as it would be to require of them to deale by way of Inditements and Iuries Those lawes are so plentisull in this point that it were vaine to set downe but a tenth part of that which in this behalfe might be sayd Therefore I holde it best to shewe vnto you what is the lawe herein agreeable also to the practise in ordinarie courts ecclesiasticall as I conceiue it in as great briefnes as I can which may boâ—…h declare that by those lawes it is allowed how farre and why it is lawfull may also serue to answere by true distinction vnto all obiections drawen out of either of those lawes against this course An oath touching a criminall position or matter is either taken by a witnes or by a partie A witnes by the very nature of testimonie must depose indifferently aswell for the partie against whom he is produced as for him which produceth him And therefore is to answere truely not onely to the positions and articles giuen in by him by whom he is produced but also vnto the lawfull and pertinent Interrogatories ministred euen by the aduerse part In which Interrogatories two seuerall sortes of matters may be conteined tending to disable him from giuing testimonie The first is an Interrogatorie tending to the discouerie of his owne turpitude and vnto 1 Felinus in ca. cum causam de testibus nu 10. per communem opinionem this whether it concerne any crime supposed to be committed by the witnes or his confession thereof or the fame and infamie against him of such crime or a sentence thereof or an excommunication thereupon gone out against him or any such like matter he is not bound to answer vpon his oath though he haue done penance for it and thereby be presumed to be reformed The reason hereof is truely alleaged to be this 2 Io. Andr. in ca. 2. de confessis nu 6. per c. ex tu arum de purgat Canon c. because the end of such a criminous Interrogatory ministred by way of exception or barre to a witnes or to an accuser is onely to disable him from accusing or witnessing not to the acquitall or condemnation of the person so challenged of the crime as the ende is where a Purgation of a mans owne selfe is to be enioyned therefore no reason to aske it of himselfe For as one wel saith by the 3 Alph. Villag in Pract. Can. li. 3. c. 13. conclus 3. order of charitie eche man is bound to loue his owne body and fame one degree sooner and neerer then his neighbours insomuch as the loue towards our selues is made the rule howe to loue our neighbours in which respect it is sayd that ordinaria charitas incipit a seipsa and therefore no man is bound to furnish one that standeth opposeth himselfe against him euen against himselfe in matter of crimes but sayth he it is otherwise when a man is vrged to the like by a Magistrate that is his competent Iudge Whereby the reason of the 4 Vide 2. Part. pag. 36. priuilege of an oath ministred ex officio aboue that which is at the instance of a partie appeareth The second sort of Interrogatories tending to the disabling of a witnes is such as conteine no turpitude in themselues as 5 Felin ibid. per Baldum Interrogatories touching his condition as whether he be bond or free or of his pouertie kindred or aliance and such like and to these he is bound to answere When a criminall matter is obiected as to be answered by him that is partie vnto the suite it either toucheth the crime of some witnesse by him produced or else the partie his owne crime if 1 Specul de teste § iam de interrogat it toucheth a crime of his owne witnesse he must answere it by the vertue of that part of Iuramentum calumniae by him taken which is that he shal not burthen more then needs his aduersary in making his proofes but shall himselfe confesse a trueth therein when he is asked But when it toucheth the parties owne crime it is of two diuers considerations for either the cause is Ciuilly mooued for the priuate interest of the prosecutor or els criminally for publike punishment If the suite be but ciuilly mooued the criminous position or interrogatorie may concerne such a crime as being concealed brings benefit commoditie to him with another mans losse And in 2 Bartol in l. Manellus §. qui rerum nu 30. ff rerum amotarum this case albeit there be no fame or no detection precedent the partie is bound to answere it vpon his oath But if the concealing of it cannot procure his gaine with another mans losse 3 L. qui iurasse §. qui pater ff de iureiur ibi glo l. si a te ff de excep rei iudic then is not the partie himselfe in such case bound to answere a position criminous so mooued by his oath yet euen in this 4 Bartol vbi supra
it in the Register that vnderstoode it before Fitzherbert or was it not put downe there but in some late copies as is most likely And after he had set it downe would not the law in that behalfe haue bin vrged against sundry Bishops that practised the contrary in K. Hen. the 8. time continually since if that opinion had bin holden for good lawe Touching this matter the Treatisour saith thus in effect that the not coÌ„pelling of witnesses to sweare to depose their knowledges brings none other preiudice but that the partie plaintife faileth in his proofes thereby Why is that no small preiudice for a man which hath in deede a right to haue the causes goe against him through the wilfulnesse of witnesses y t neither will come of theÌ„selues nor may be coÌ„pelled by others as this opinioÌ„ importeth Is not this to giue cause of acquiting the wroÌ„g doer of coÌ„demning him that hath the very right and doth it not nourish or at least tolerate that sinne in the witnes which iâ—… coÌ„demned by the law of God in these 1 Leuit. 5. V. 1. wordes viz. If any haue thus sinned that is if he haue heard the voyce of an oath he can be a witnes whether he hath seene or knowen of it if he doe not vtter it he shall beare his iniquitie In which place I doubt not but all such be included who knowing the matter which is in examination or question before a Magistrate shall refuse neuerthelesse being duely called to giue testimonie to the trueth according to their knowledges The Treatisour further saith that it may be sufficieÌ„t for a court ecclesiastical to haue no better meanes for bringing in of witnesses to testifie then teÌ„porall courts haue Truely if they might be allowed the same I thinke none of them would desire any better For when a witnesse is vnwilling to depose vnlesse he be vrged by processe what is more vsuall in teÌ„porall courts then to haue a sub-poena to charge him to appeare and to testifie at such a time place But because by this his saying it seemeth he entendeth that the course of vrging witnesses to testifie as is claimed alwaies hath bin vsed by courts ecclesiasticall conteineth some repugnancie against the lawes of the Realme therefore for cleering of that point I wil briefely shew that it is not so much as a diuerse and much lesse a contrary or repugnant order vnto the lawes of this Realme First for practise what is more frequent then for Iustices of the peace to binde men by recognisance to giue in euidenc at Sessions or Assises touching supposed offendours It would be ouer tedious to set downe the sundry cases reported by the booke of Assiles to this effect viz. that where a deede is pleaded denied and processe against the witnesses is desired that it shall go out to call them to testifie It wil be sufficient to referre you to 1 Brooke titulo testmoignes Brookes AbridgemeÌ„t where they be gathered yea though the actioÌ„ be 2 1. H. 6. 5. personall if a deede with witnesses at it be pleaded denied processe shal be awarded for the witnesses per Markham Rolfe Be not Iurours also that be summoned to passe on trials fined if they appeare not and what more equitie to amerce or fine them then necessarie witnesses seeing trials can no more be made without euidence then they may without a Iurie By statute 3 23. H. 8. ca. 3. Iurours for triall of Periurie are appointed to be fined if they refuse to make apparance Likewise if any 4 5. Eliz. ca. 9. witnesse be serued to testifie in a court of Recorde and hauing tendred according to his countenance his necessarie charges doe not appeare he shall forfeite tenne poundes and make further recompence according to the losse So that we see it is no contrary or repugnant course to the Common lawes to haue witnesses vrged to testifie being there also practised But if here it be replied that the Common lawe forbiddeth it vnto courtes ecclesiasticall sauing in those two cases it will easily appeare that it is so farre from being forbidden that it is indeede allowed vnto them by Common lawe and by statutes There be very many precedents in the Register of consultations graunted vpoÌ„ debating of the seuerall matters there after that prohibitions had bene purchased in euery of which almost general wordes of allowance of the maner of proceedings according to the lawe ecclesiasticall be conteined as 5 Reg. in br orig fol. 56. b. fol. 57. b. namely allowing of the proceeding iuxta Canonicas saÌ„ctiones setting in the end of euery coÌ„sultatioÌ„ there except two or three these or the like wordes in effect viz. Cicitè procedere vlteriùs facere poteritis prout ad forum ecclesiasticum noueritis pertinere prohibitione nostra non obstante Nay let an instance be giuen if any man can doe it where of olde any such prohibition hath gone foorth and not bin reuersed againe by consultation yea almost where it hath gone foorth at all onely for censuring a wittiesse that refused to come in and testifie in any other matter of ecclesiasticall conisance besides testamentarie and matrimoniall And yet hath it bin in continual and vninterrupted practice for so long time as any ecclesiasticall actes now remaining do mention pleas in those courtes to be holden Iustice Brooke in his Abridgement both testifieth that by the Ciuill lawe witnesses which wil be holden indifferent should not come till they be called and setteth it downe as a matter woorth the noting whereby may be gathered his allowance thereof The 1 Brooke tit Corone nu 220. wordes be these By the Ciuill lawe Accusers be as parties and not as witnesses for witnesses ought to be indifferent and not to come till they be called but Accusers doe offer themselues to Accuse c. quod nota That by the Ciuill and Canon lawe witnesses may be vrged to giue testimonie and in what sort wil appeare by this distinction By the Ciuill lawe 2 l. si quando C. de testibus witnesses may be vrged to giue testimonie and that without distinction whether the cause be Ciuil or Criminall be Ciuilly or Criminally directly or by way of exception moued except their persons be priuiledged As by 3 l. inviti ff de testibus the law Ciuill men of 70. yeeres of age be in this behalfe viz. that they may not against their willes be vrged to testifie By the Canon lawe if the cause be Ciuill and not criminall witnesses may be compelled without distinction also except they be persons priuileged Neuerthelesse euen 4 Panor min c. dilectorum de testibus cogendis priuileged persoÌ„s may be coÌ„pelled in want and defect of other proofes that the trueth may be found out If the 5 Alphon. Villag lib. 3. ca. 15. conclus 12. cause be criminall whether Ciuilly or criminally moued so the action be
confirming of deedes drawen betwixt them or else for more readinesse of dispatch and better testimonie they 1 Register pag. 37. would recognize one to another such contractes with faithful promise called fidei praestatio and sometimes with 2 Register pag. 43. monstrauit nobis Matilda corporall othes voluntarily taken before Ordinaries and therefore procure an Acte to be made by a publicke Notary Then if either paertie failed in performance he was by Processe Ecclesiastical called before the Ordinary as to answere for an Acte done afore him or fidei laesione which failing being confessed or proued the Offendour was enioyned grieuous penance and no doubt oftentimes compelled by censures to keepe his faith or othe by satisfying of the other partie This course being so ready at their owne doores in euery Dioeces and of so speedy execution for the great feare then caried by most sorts of men vnto the censures Ecclesiasticall and for grieuousnes of the penance otherwise grew to be very vsuall in euery place as may partly appeare by the often disputes vpon prohibitions brought hereupon euen after this Writte was framed that are here and there mentioned in the bookes of the Common Law and are afore touched by me in 1 c. 8. huius part the 8. Chapter and partly may be shewed by sundry old euidences and instruments recorded in ancient legers and in Acts of Ecclesiasticall Courts before the time of Edward the second which I haue seene and perused Namely I haue ready to be shewed a solemne contract in writing made almost 400. yeres agone wherein the Earle of Arundel vpon a concord then made for himselfe and his heires promiseth and graunteth to the Archbishop of Canterbury and to his successors certaine red deere and fallow of both seasons yeerely for euer to be at a certaine place deliuered for the Archbishop out of the forest of Arundel For the obseruation whereof he there bindeth himselfe and his heires by a corporall othe taken and further graunteth that if he or they faile herein then the Archbishop shall excommunicate them so failing and keepe them vnder the same censure till the purport of that agreement be perfourmed I haue likewise to be shewed an olde written booke of 2 23. Ed. primi Acts Ecclesiasticall sped in the Audience Court of the Archbishop of Canterbury in the reigne of King Edward the first wherein sundry suites pro laesione fidei of that nature be conteined The thing which gaue colour hereunto was the pretence of auoyding and punishing the sinne of Periurie For the Canon Lawe saith thus Iuramenti causa regulariter quis forum Ecclesiasticum non seculare sortitur c. praedicandum 22. q. D D. in c. cum sit ex de foro competenti If saith a learned writer on 3 Panorm in c. cum sit de foro competenti the Canon Lawe the Action be touching an othe in respect of the Court Poenitentiall or be commenced for release of the bonde of such othe so that it respect not principally the commoditie of some Lay person or if it bee doubted whether the othe be lawfull or not be to be kept or not then the conisance of it doeth belong to a Court Ecclesiasticall And in 4 Panor in c. qualiter el. 2. de accusat another place thus When the partie to bee damaged by violation of the othe is such as cannot vse Action or when enquirie is made for the correction of the Crime then may the Iudge Ecclesiasticall enquire euen against a Lay man not obseruing his othe Insinuating that in all other cases violating of othes by that Lawe belongeth to the conisance of a Temporall Court And the statute also of circumspectè agatis which alloweth punishment by the Court Ecclesiasticall for breach of an othe but distinguisheth not there in what causes or how farre did giue herein some incouragement So that the mischiefe that grew hereupon was this that most Lay contracts of goods and chattels were by this meanes drawen into Ecclesiasticall Courts though in trueth as I thinke contrary to the Common Lawe of the Realme For if the principall matter be of Lay conusance for confirmation whereof such faith is made or othe taken then according to the distinction 1 Cap. huius partis 8. afore prooued out of the Common Law it is not such faith or othe that will change the authoritie of the Court to make it simply of Ecclesiasticall Iurisdiction For so 2 Bracton lib. 5. cap. 9. Bracton writing in the time of Henry the 3. testifieth and withall giueth good light and euidence to the interpretation hereafter following of those words of this Writ Iurisdictionem regiam non mutat fidei interpositio sacramentum praestitum nec spontanea partium renuntiatio quamuis sibijpsis in hac parte praeiudicent per consensum illud idem dicendum erit de debitis catallis quae non sunt de Testamento vel Matrimonio vel eorum sequela It was 3 Grauam 64. one of the hundred Grieuances which the Germaine nation complained of that Ciuill causes and contracts by pretence of faith or othe giuen were drawen into Ecclesiasticall conisance Therefore to meete with this mischiefe and to cut off the occasion this Writte of Prohibition seemeth to haue bene framed viz. to forbid Lay men in any place either before Ordinaries or in priuate amongs themselues to make any recognitions or acknowledgings whereof of debts or of cōtracts touching goods and chattels by their faiths or othes taken in any cause whatsoeuer besides Testamentary or Matrimoniall For in these two causes neither then nor at any time since as in part is afore shewed was it vnlawfull for Lay men to make acknowledgement and depose in a Court Ecclesiasticall vpon othe though it touched goods and chattels In matters Testamentary as in Probats and in legacies of goods and chattels in demaund in matter of inuentaries and of accounts of the deads goods and chattels In matters matrimoniall as in money promised with a woman in mariage as is more fully shewed in the 3. Chapter And so this writ is not simply prohibitorie of all Recognitions and Oathes by lay men in Ecclesiasticall Courtes excepting those two causes but onely forbiddeth Recognitions and oathes in other causes made or taken that doe touch debtes goods and chattels or other such lay contracts and all citing of parties to take them or which haue taken them and all citing or compelling of witnesses to depose touching such contracts about goods and chattels though confirmed by faith or othe of the contractours Nay there is strong euidence to be brought that not many scores of yeeres before the 9. of Edward the 2. when as Articuli Cleri were enacted whereupon that Prohibition is said to be framed the Clergie both vsed and thought they shoulde haue wrong to be barred from hearing all breaches of faith and periuiurie arising of or touching what cause soeuer so they dealt not with the
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.
ecclesiasticall whatsoeuer but either testamentarte or matrimoniall are voyd of all ground of law nay are contrary to Statute lawe to Common lawe to practise for time immemoriall and also vnto reason in some sort CHAP. XIII 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 ecclesiastical Commissioners thereby authorized THe two other opinions remaining that respect matters handled by Ecclesiasticall iurisdiction and come next to be treated of for the affinitie of them and because they both depend vpon one and the selfe same grounds I purpose brieflie to handle together viz. whether the iudgement of Heresie nowe lieth rather in the Common lawe then Ecclesiasticall and whether nothing may at this day be adiudged heresie but according to the statute primo of her Maiesties 1 1. Eliz. cap. 1. reigne For in the true vnderstanding of that statute the decision of these two opinions will wholie rest It seemeth by the latter the author of them thinketh that before the statute 2. H. 4. Ordinaries at the Common law might not by their iurisdiction Ecclesiastical proceed to the condemnation of an heretike and therefore seeing all former statutes made against heretikes stand now repealed he gathereth that no heretike may be delt with but according to the said statute made in the first yeere of her Maiesties reigne This opinion it may be he gathered out 2 Fitzh in noua nat br fol. 269. D of Fitzherbert his Noua natura breuium yet I thinke rather it was his owne conceit both because he doeth not alleage Fitzherbert for it and for that Fitzh leaueth euen at the Common lawe authoritie in the whole Conuocation of a Prouince to condemne an heretike albeit he there also hold that at the Common lawe before such statute a Bishop in his dioecesse could not so condemne But I haue shewed in the twelfth chapter hereof by very great and good opinion the law in this point to be mistaken For proofe that it is so I also touched it something in the 8. chapter For in the Preamble of the statute it is thus conteined The 3 2. H. 4. cap. 15. dioecessans of the realme then complained that they could not by their iurisdiction spirituall without aide of the roiall Maiestie what not at all Nay but not sufficiently correct nor restraine the malice of heretikes Why because they wanted authoritie at all to deale with them No but because the heretikes goe from dioecesse to dioecesse and will not appeare before the dioecessans but contemne the keies of the Church and censures of the same So that had it not bene for their fugitiuenesse their refusing to appeare and contempt of the keies the ordinarie dioecessans had Iurisdiction spiritual to correct and restraine them In which respect and for better assistance of their former iurisdiction it was then first prouided that heretikes should be attached and imprisoned Other authorities out of Statutes I there in the eight Chapter alleaged also to this purpose The wordes of the Statute made primo of her 4 1. Eliz. cap. 1. Maiestie from which this second opinion is gathered doe make the matter cleere that nothing thereby is meant but that Commissioners for causes ecclesiasticall according to that Act termed by the common people the high Commission shal not haue authoritie to adiudge any matter or cause to be heresie but onely such as hath bene so adiudged by the authoritie of the Canonicall Scriptures or by the first foure generall Councels or by any other generall Councell wherein the same was declared Heresie by the expresse and playne wordes of the Canonicall Scriptures So that the iurisdiction of Ordinaries and of the Conuocation still remaineth as it did afore at the Common lawe But I muse greatly what colour or pretence he could haue to gather the first of these two opinions out of the aforesayd words for doeth he or can he thinke that the ordering determining or adiudging of a matter to be Heresie by the Commissioners ecclesiasticall there spoken of is a iudgement at or according to the course of the Common lawe as the Common law is taken in vsuall signification Or shall it be imagined that wheresoeuer any matter by occasion comes in to bee mentioned in a statute as for 1 13. Eliz. c. 12. example naming matters of faith mentioning errors in doctrine or the doctrine of the Sacraments that the determination of all such points and what and how many speciall matters are conteined vnder those generall heads whatsoeuer shall by reason of such incident mentioning of them in a statute be put ouer to the iudgement of a Iurie or to the determination of Temporall Iudges What other may conceiue I know not for my part I must take it till I be better informed to be so simple a conceit as is worthie rather to be dismissed with laughter then to be confuted with further reason CHAP. XIIII That by the Statute her Maiestie may commit authoritie and naturall borne subiects may take and vse in Ecclesiasticall causes attachments imprisonments and fines THe next opinion that comes to be treated on is Whether the Queens Maiestie by her letters patents vnder the great seale of England may authorise the vse of any other processe in matters ecclesiasticall then by citation as by letters missiue attachment or such like whereunto I adde the other two of the same author depending vpō the same string whether her highnesse may so authorise the vse in matters ecclesiastical of any other coërtion or punishmēt as by fine or imprisonment These opinions if they be not well grounded vpon lawe seeme to me to touch her Maiesties prerogatiue roiall and supreme gouernment that was yeelded vnto her highnesse by statute very deeplie whosoeuer be Author of them And if this authoritie that is hereby impugned be in trueth a preheminence vnited and annexed to the Imperiallcrowne of this realme by Parliament and if he be a man of any qualitie so that hee hath taken the oath of Obedience let him vse good aduisement how it may stand with such his oath and allegeance They are pretended both by the Treatiser and the Note-gatherer to be grounded vpon 1 Magna charta cap. 39. these words of Magna charta viz. No free man shall be taken or imprisoned or be disseised of his free hold or liberties or free customes or be outlawed or exiled or any otherwise destroyed nor we shal not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land Whereupon the Note-gatherer also doeth collect that none may be attached but such as be first endited But the end why this law was made and the time when it was made are needfull to be considered The ende was this that the Kings of this realme should not chalenge an infinite and an absolute power to themselues as some kings elsewhere did
vsually In what detestation and hatred this kinde of men though not altogether vnnecessarie were had amongs the old Romanes this saying of Quintilian doth manifest 5 Quintil. lib. vlti cap. 7. Ad deferendos reospraemio duci proximum est latrocinio To be induced for reward or gaine to preferre criminall matter against offenders is next a kin to robberie And in deede Delatours were farre more stomacked and maligned then other Accusours as may bee gathered by these places in the Ciuill lawe 1 l. 3. C. de Malefic Wee doe iudge him that accuseth in such a crime to deserue rather rewarde then to bee called a Delatour And againe in another place 2 l. Nulli in fine C. de Epis. Cleric Let not such feare either the name or suspicion of Delatours The last of those wayes by which a partie brings offences into question and discussing before a Iudge is Accusation It is called 3 Isidor vt in c. forus de verb. signif Accusatio ab Ad Caussa quia Accusator quasi ad causam vocat There bee other wordes of neere signification vnto this yet not the same altogether as postulare when it is vsed with the ablatiue case Postulare aliquem crimine insimulare incusare and such like But there is a difference noted betwixt this last and Accusation which is this We are saide saieth 4 Servius in prim Aeneid one properly incusare such as bee our betters and to accuse those that be our equals or inferiours But this difference is not much obserued 5 l. Qui accusare C. de edendo l. Si maritus § Si negauer ff de adulter This worde Accusation is sometimes so generally taken that it signifieth an Action in a Ciuill cause like as on the contrary side Action is taken for Accusation Tullie pro Milone nameth it Actionem Perduellionis But most properly it is called Accusation when it is intended in causes Criminall We reade of inwarde and of externall or outwarde Accusations Internall Accusation is of a mans owne conscience Such is the Accusation spoken of by Salomon 6 Prouerb 18. vers 17. Hee that is first in his owne cause is iust or as the vulgar Latine translation readeth it The iust man is the first Accuser of himselfe Externall or outward Accusation is either Priuate or Publike Priuate is either betwixt enemies or betwixt friendes That priuate Accusation and imputation which is among enemies is of three sortes either spitefull vpbraiding called of the Grecians by the generall name 7 Plutarch in vita Publicol of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a worde also fitting euery Accusation or reproche and reuiling called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or els Calumniation that is malicious or false wresting of his enemies wordes or actions to an offensiue purpose Priuate Accusation of one friend touching another is nothing els but a friendly expostulation with him that is supposed not to haue dealt singlie or considerately in the course of good friendship called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Grecians That Accusation which is publike is either ciuillie moued that is for priuate amends vnto the partie grieued or criminallie that is for some publike punishment whether it be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And it is that Accusation which here we especially treate of This publike Accusation is sometimes done ore tenus that is by bare wordes without writing which the Grecians doe expresse also by the aforesaide name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But most vsually publike Accusation is made by writing That which is conceiued in writing in a more large signification conteyneth and reacheth euen vnto those preferrings of crimes afore spoken of that are done by Exception or Chalenge by Complaint or by Delation And vnto this publike Accusation which is of more generall acception that definition of Aristotle agreeth viz. that it is a publike declaration against some of iniuries or crimes committed But in the strict and proper signification it is taken for that solemne Accusation termed by the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and also sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when as this latter is not taken generally but for the most especiall kinde thereof onely The effect of this Accusation when the crime declared is proued to bee true and by arguments conuicted is called by the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is 1 l. indicasse ff de verb. signific as the Latines doe expresse it arguere There is also another different acception from the former of the worde Accusour that is not hitherto touched which is when that worde is applied 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vnto any that testifieth some criminall matter against another And in this signification wee doe finde it very 2 Vide infrâ—… cap. 15. vsually taken in holy Scripture as shall afterwarde more fully appeare So in sundry statutes of this Realme as namely in these wordes of a statute viz. duely accused or detected by two lawfull witnesses 25. Hen. 8. cap. 14. and in such other statutes whereby is required that the Accusours be brought face to face against the prisoner meaning thereby such witnesses as are to giue euidence vpon their oathes against the partie conuented Hereof we haue diuers examples and namely in these wordes of a statute 3 1. Ed. 6. ca. 12. in fine That no person shal be conuicted c. or suffer c. vnlesse the same offendour c. be accused by two sufficient lawfull witnesses as shal willingly without violence coÌ„fesse the same Where the witnesses sayings are called Accusation their Depositions Confession Likewise in the same Kings dayes where it is thus prouided 1 5. 6. Edw. 6. cap. 11. That no person shal be convicted c. for any treasons c. that nowe be or hereafter shal be c. vnlesse the same offendour be thereof accused by two lawfull accusers which saide accusers at the time of the arraignment of the partie accused if they be then liuing shal be brought in person before the partie so accused and auowe and mainteyne that that they haue to say against the partie to proue him guiltie of the Treasons or Offences conteyned in the Bill of inditement So that here those that giue euidence to prooue the matter of the enditement which must needes be the witnesses are called Accusers which termein these like statutes seemeth to haue bin borrowed from the coÌ„mon speach of men who often vse to say thus Who is able to accuse me of such or such things meaning to testifie against them rather then that the true proprietie of the worde was there followed For Iustice Brooke in his Abridgement testifieth 2 Tit. Corone nu 220. That the common triall at the Common lawe is by Iurie and witnesses and not by Accusers So that albeit witnesses touching offences by some statutes and by vsuall speeche of the vulgar sort be
In which respect all danger to themselues was the lesse regarded by them Lastly they thought themselues bounde in strict termes of duetie no lesse to persecute and to plague their enemies by all meanes then they were to doe good and to shew kindenesse vnto their friendes Therefore the same 2 Arist. 2. li. Topic. Philosopher makes this to be a good argument and consequence Wee must doe good to our friendes therefore we must hurt and annoy our enemies But Christ refuteth this heathenish opinion in the Gospel Matth. 5. vers 43. 44. Now for proofes of that wee haue saide in this behalfe we are furnished of them out of the grauest writers among the Greekes and Latines Plutarch saith thus 3 Plut. in vita Luculli Publique Iudgements and Accusations haue bene of long time ordeined to th'entent young men might be bredde vp in the studie of Eloquence and that they might thereby be excited to the valoure of a braue minde that like as dogs of the best kinde by naturall instinct doe at first sight fiercely assaile wilde beastes euen so noble youthes should be kindled and inflamed with great courage thus by accusations to set vpon lewde and euill members in a Common weale To like purpose 4 Quintil. li. 1â—… ca. 7. writeth Quintilian Crediti sunt clari Iuuenes obsidem dare Reipub. malorum Ciuium accusationem quia nec odisse improbos nec simultatem prouocare nisi exfiduciâ bonae mentis videbantur Tullie assigneth three seuerall motiues whereby without any discommendation in those times a man might be drawen to become an Accuser of others A man may be well induced saith he 5 Cic. pro 〈◊〉 to be an Accuser either Pietate in a duetifull care by necessitie or els by reason of his yeeres If hee willingly enter into it I doe attribute it to his Pietie If he were commanded then vnto necessitie If in hope to attaine glory and renowne I ascribe it to his youth But vpon any other occasion to doe it doth rather deserue resistance then pardon He also else-where teacheth for what ende we may enter into Accusation of others Of accusing we are not saith he 1 Cic. li. 2. Offic. to make as it were an vsuall trade or profession neither are we at any time to doe it but either in behalfe of the Common weale as the two Luculli did or for our nearest friends and allies being tyrannously and piteously oppressed whom we haue receiued to our patronizing as M. Cato Cn. Domitius and others did or els but once onely as happely in our flourishing youth for attayning honour thereby But it seemeth that the chiefest ende among the rest was for procuring with the people glorie reputation of eloquence vnto theÌ„selues For so Apuleius an auncient writer testifieth where he 2 Apuleius in 2. defens Mag. saith thus He doth not accuse me for to procure vnto himselfe glorie as M. Antonius did Cn. Carbo c. For it was vsuall saith he with yong men of greatest ripenesse in learning for their commendation to vndertake to accuse others thereby to giue an experiment of themselues in Iudiciall Courts to the entent that at some notable Iudgement or arraignement they might become knowen vnto the multitude of Ciâ—…izens Yet this Custome which in olde time was permitted vnto yong beginners to set out thereby the forwardnesse and sharpenesse of their wittes is long agone saith he growne into disuse But what might be the very true causes of the giuing ouer of such Accusations it will not be amisse here also to examine as being very requisite for the perfite vnderstanding of the nature of it and of some other discourses following CHAP. IIII. That the prosecution of crimes by way of Accusation is in most places forbidden or growne into disvse the reasons hereof be partly the dangers to the Accusers and partly the Hatefulnesse of that course Therein is also declared whether all Accusation be vnlawfull and certaine points deliuered to be obserued by all them that will accuse others IT is very assured that how vsual soeuer it was in those populare Common weales yet of very long time it hath not nor is now practised in most ciuil Common weales or kingdomes that I haue read of But in place thereof is come either proceeding of meere Office or els some way mixt partly of that proceeding and partly of prosecutioÌ„ by a Partie who is not properly to be termed an Accuser First in this kingdom how rarely Appeales be brought and prosecuted against any supposed offenders sauing murderers those scarse two in an age euery one but of meane experience knoweth I doe call to mind one Appeale of robberie brought by Benet Smith against Giles Rufford in the beginning of Queene Maries raigne as appeareth by the preamble of a Statute 2 3. Phil. Mariae c. 17. And this kind of prosecution of Crimes though of all those which we haue it resemble neerest the Accusation practised amongst the olde Romanes and others yet in some points it doeth also somewhat differ from it In Flanders all Accusation is altogether inhibited In the kingdome of Naples it is onely permitted 1 Clarus q. 10. vnto those which in that sort will prosecute some iniurie or enormitie done vpon them or theirs In the 2 Decianus Venetian common weale it is wholie forbidden vnto priuate persons to Accuse so that the care of prosecuting offences is wholie left to the publike magistrate In France none but the kings generall Atturneis whereof there be three may take vpon him 3 Gul. Bened. in c. Rainutius V. mortuo nu 200. de testam to be an Accuser and yet those not properly so to bee called And this reason is alleaged by a learned writer in Law of that nation Least too great opportunitie of calumniation and of oppressing the meanest by the power of the mightie should there by be giuen and for retaining of publike tranquillitie in the kingdome It is testified by a graue learned Ciuilian writer 4 Clarus li. 5. §. fin q. 11. that the solemne maner of Accusation mentioned in the Ciuill law of the Romanes is almost generally now growen in disuse The chiefest causes of such disuse thereof as I doe coniecture hath growen by these two wayes The first because it is so full of danger and trouble The second because it is and hath bene so odious and abhorred of most men in all ages The danger and trouble may be considered at the beginning of the fuite in the course of prosecuting it and vpon the euent which may ensue of it At the entrance of the suite vpon the Accusers inscription 5 l. 16. C. de accus inscrip which contained the hainousnesse of the crime and the time of committing it the Accuser was by and by to 6 l. 17. ibidem endure Custodiae similitudinem habitâ tamen dignitatis aestimatione to bee committed to the like safe custodie that
contagious plague vnto it Lastly Accusation may not be vsed for gaine and lucres sake For such Accusers especially are odious to all men Another heathen writer could say thus heereof 1 Quintil. siue Tacitus de claris Orator The vse of this gainefull and bloudie eloquence is sprung vp of late times by corrupt custome and was deuised as one Aper was woont to say but instead of a iaueline or dart to thrust men thorow with In locum teli repertus So that if men could keepe themselues strictly within these former boundes then prosecution by Accusation would neither be so perilous to the Accuser nor yet so hurtfull vnto others but that it might still haue a tollerable and profitable vse in Christian Common weales And then that which Tullie writeth might haue place where hee sayth that 2 Pro S. Roscio Amer. it is profitable to haue many Accusers in a Common weale yet so as that men be not abused by such Accusations And thus much for prosecution of crimes by a partie CHAP. V. Of the seuerall acceptions of this word Officium the signification of Inquisitio Quaestio Crimina ordinaria extraordinaria Cognitio ordinaria or perpetua extraordinaria the reason why Enquirie by Office came in place of Accusation of Enquirie generall and speciall Enquirie speciall ex officio nobili siue mero mixto promoto and the priuileges of proceeding ex mero officio aboue the other NOw because the aforesaid Cautions be so hard to obserue and for that Accusation is so odious and of so perillous consequence albeit these foure points were kept in case either the Magistrate or people among whome wee liue should not so construe our doings as perhaps we doe sincerely meane them therefore where there be so many difficulties incident to Accusation lest crimes and offences should remaine wholly vndiscouered and so vnpunished to the great detriment of the whole body of the Common weale and Church It was very necessarily prouided in most places of the world to haue the Iudges office by Enquirie to supply this want and scarsitie of Accusers and parties which is the other generall meane afore spoken of whereby offences may be brought into question examination The Office or duetie of the Iudge is the cause efficient of this prosecution and Enquirie is the peculiar effect and act which in Criminall matters that cause produceth or the course whereby the Office doth proceed and is that kinde of prosecution which is counterdiuided against Accusation and prosecution by a partie The word Officium in the Ciuill law from whence it is taken hath diuers acceptions It signifieth either priuate dueties and thinges of conueniencie to be regarded and practiced in the common life and societie of man with man or els some more publike function And in this latter signification we reade of it to be taken two wayes By the first for a ministeriall function vnto some Court hauing iurisdiction And by the second for the power authoritie or iurisdiction it selfe of the Court I doe obserue three seuerall ministeriall functions termed in the Ciuill lawes by this name Officium The first are those persons that were publikely appointed to present crimes vnto the Magistrates as in these words 1 L. ea quidem C. de accus inscrip Quae per officium praesidibus nunciantur The second denoteth vnto vs an Apparatour as in these words 2 L. 1. C. de Ap. parit Procoss lib. 12. Officio quod tuis meritis obsecundat non Curialem quenquam nec excaeteris corporibus volumus aggregari c. The third an Actuarie that entred the acts of the Court as in these lawes 3 L. 11. C. de Numerarijs Actuarijs li. 12. Officio tuae magnitudinis datis precibus postulant c. And againe 4 L. 1. C. de offic Comitis sacri patrimonij Officium Hellesponti adijt rogauit c. In both which lawes by the word Officium an Actuarie is vnderstood But Officium signifying the authoritie and iurisdiction of the Iudge is that power whereby he may deale of himselfe without the petition or instance of a partie And this Office is exercised either in actions Ciuill or in Criminall In actions Ciuill 5 L. 56. ff locati l. 51. §. fin ff de act empti sometimes the Iudge doth of Office decree a thing which he findeth to be equall besides the action and besides the bond whereupon the action riseth and 6 L. Si longiùs §. 1 ff de iudic l. cum siliusfam ff de reb creditis l. 7. C. de iudic alibi passim sometimes also vpon a point in equitie hee relieueth by his Office such as the strict law giueth none action vnto Calistratus reduceth all causes Ciuill wherein a Iudge hath conusance extraordinarie vnto these two generall heads Per cognitionem 1 L. 5. ff de extraord cognit viz. extraordinariam siue officio Iudicis factam aut de honoribus siue muneribus gerendis agitatur aut de re pecuniaria disceptatur A Iudge exerciseth his authoritie extraordinarie in causes Ciuill either when hee taketh knowledge of bearing offices and functions or of causes pecuniarie But in causes Criminall hee practiseth this authoritie of Office aut cum 2 Callistratus ibid. de existimatione alicuius cognoscitur aut cùm de capitali crimine quaeritur when hee sitteth to take knowledge whether a mans honour or reputation ought to be atteinted or when he enquires and makes inquisition of some crime capitall viz. whereby a mans libertie countrey or life may bee endamaged This Office Ouid touched 3 Ouid. lib. 1. de Tristib in these wordes Iudicis Officium est vt res ita tempora rerum Quaerere The effect of the Iudges Office and the course which hee thereupon doth followe is called Enquirie Inquirere saith Bartolus est 4 Bartol in l. transigere nu 13. C. de transaction quasi intus quaerere diligentiùs abdita indagare secreta detegere in iudicium deducere It is to search into a matter deepely and carefully that is kept close to bring it to triall of iudgement which it deserueth This Enquirie in the old common wealth of Rome was more commonly called 5 l. 1. § item illud ff de S. C. Syllan Quaestio Which word hath two significations in that lawe The one more generall signifying any enquirie The other that enquirie and examination which was vsed vpon bond slaues and men of the meaner sort by torture Quaestionem sic accipimus sayeth the Ciuill lawe to this purpose non tormenta tantùm sed omnem inquisitionem defensionem or as another reading hath it detectionem mortis Where we see that the worde Inquisitio is also vsed Of this worde Quaestio such as dealt by it were called Quaesitores and so doth 6 Virgil. 6. Aeneid Virgil call Minos a Iudge quaesitorem Out of which by abbreuiation came the
enditement or of information because there is more cause to take offence at such then at one who is called and vrged to testifie So that if there were no meanes for a Iudge Ecclesiasticall to take knowledge nor to proceed but vpon the voluntarie prosecution and accusation of some partie which is the course opposite vnto proceeding ex officio then surely many execrable offences that are most displeasing to Almightie God offensiue to the godly dangerous to mens inheritances and to the offenders owne soules health yea and some that be pernicious banes to all religion vnto professing of God and to Christianitie it selfe were like through want of discouerie and impunitie to spread themselues ouer both Church and Common-wealth in very short time before Accusers would be found Namely Atheisme Apostasie from Christianitie Heresie Idolatrie Schisme Errour in matter of Religion Sacrilege Periurie Ecelesiasticall Blasphemie Subornation of periurie aswell in matters of mariage and testament being of speciall consequence as in others Horrible swearing Polygamy or many wiues Incest Adulterie and other vncleannesse Drunkennesse excessiue Vsurie Simonie Forgeries of Ecclesiasticall seales for testimonie Vsurpation of the holy Ministerie dangerous Conuenticles vngodly libelling and such like For who are commonly made priuie to such sinnes but men of like humour and affection in whom we may not presuppose such sinceritie of conscience that for reformation of the partie delinquent they will abandon all friendship and aduenture any displeasure euen but to take a triall with their great charge and trouble howe they shall be able to make proofe of such matters against them Besides these inconueniences that otherwise would ensue there be many others all which in particularitie to rehearse would be ouer tedious As after an accusation be begun that the Iudge seeth violent presumptions against the partie conuented if the prosecutour for feare for tediousnesse for bribes or by collusion would desist were it not meet that the Iudge of office should neuerthelesse proceed by enquirie that the delinquent may reape as he hath deserued is it not meet that a Iudge should be more carefull of the publike good of the Common-weale then euery common person and if he be so in deede shall he not be allowed as good meanes to doe these good offices to his Prince and Countrey as any priuate person And shall he not be as much cherished and allowed vpon his owne care and for his dueties sake to procure the suppressing of sinne and reformation of offenders as to do it at the instigation of any priuate partie Nay is there not lesse danger of suborning corrupting or instructing of witnesses by a Iudge who hath no priuate interest to see a man punished then there is in the prosecution by a partie who for the most part doth it but of malice or vpon some other sinister respect And what if any that is in deed a friend should be 1 Ioh. Andr. in add ad Spec. tit deinquisitionib purposely framed to be an Accuser to the intent some delinquent may escape and not be called againe into perill vpon the same crime If it be saide hereunto that the penaltie of calumniation viz. poena taltonis which is to be inflicted vpon him that faileth in proofe of his accusation will take away this suspicion it may be replied that in most countries this poenatalionis is growen in disuse but chiefely this may be answered euen where that penaltie still hath place that the Accuser may make halfe a good proofe as by one vpright witnesse and 1 c 1. de elect in 6. so should both the delinquent escape punishment and himselfe also by lawe be freed from danger of the penaltie of calumniation presumed and of enduring retaliatio Besides the like equitie may also often happen when onely two sufficient witnesses can testifie of a crime for if the one of these should be driuen of necessitie to be a partie then the full proofes required in such cases were thereby cleare taken away and so the offendour should escape punishment And therefore there is both necessary vse and good equitie to warrant proceeding ex Officio in matters criminall CHAP. X. An answere to some further obiections made against the conueniencie and reasonablenesse of proceeding against crimes of Office TO crosse the necessarie practice of proceeding by Office 1 In his title of Inconueniences the Note-gatherer assigneth sundry inconueniences by him surmised to arise thereof First saith he In treason and felonie chalenge is admitted to the Accuser here none For it is in the Ordinarie to admit one to infourme and to witnesse againe in the cause wherein he was before deposed to the contrary What these last wordes viz. to the contrarie doe serue for here neither I nor perhaps the Author himselfe of the Notes can coniecture If Acouser here be taken for a witnesse as is afore shewed then I must tell him that challenges and exceptions against witnesses not onely be allowed vnto the defendant at the lawe Ciuill and Ecclesiasticall but in a farre more beneficiall manner then is receiued by vse at the Common lawe of this Realme For it is commonly said howe truely I am not to discusse that a witnesse ought not to be receiued nor deposed vpon his oathe for the prisoner as being against the Queene And if such be permitted to speake at the prisoners request as some seldome times hath bin and be not sworne thereunto what credite will the Iurie giue vnto his bare wordes nay what credite may they giue to them and saue their owne oathes who are sworne to dealc according to their Euidence which cānot be so termed except it be vpō oath vpon matter of record or vpō the parties cōfession But if he take Accuser here for him that voluntarily prosecuteth and soliciteth the office then he may remember that against such the very Cōmon lawe giueth no challenge because any man may preferre Enditements follow them for the Queene whereas the Ciuil law hath whole titles of chalenges that may be made against Accusers which lawes be also retained in those Courtes against all voluntarie preferrers to the office who are holden as parties But if the Iudge alone at the Common law cause an Enditement to be put vp may the prisoner challenge the Iudge when as he shall not challenge any common person which doth it That is true in part which he saith that in 1 Bartol in 1. Diuus ff de custod reorum enquirie of office a Iudge by the Ciuill lawe may examine him which denounced the matter as a witnesse therein Yet it is not generall in euery denounceour or preferrer vp vnto the office but onely in such as be officers specially appointed sworne for that purpose Now what wāt of equitie or what iniustice is herein seeing perhaps such knoweth the matter best was the man that infourmed his fellowes of his particular knowledge therein which made it to be presēted May not one single
iudgement be reasonable and iust Furthermore what doth this particular recrimination hinder the conueniencie of proceeding by office For doth that course of proceeding teach or require that men be punished without any matter proued Therefore if this should happen so to be yet is it onely the personall fault of the men and not of Law which establisheth proceeding ex Officio For though an Accuser should prosecute yet the Iudges if they were so vngodly minded might de facto offer this vniustice Yet this ought not to be any cause to condemne all proceeding by Accusation to be vnreasonable or vnequall But this is so farre from any tolerable answere vnto those obiections that it is in trueth nothing else then a very vntrue and â—…anderous imputation that will not nay cannot be iustified What Ministers depriued yea put in danger of losse of life or goods without any matter proued I cannot coÌ„iecture what further meaning herein he may haue otherwise then to slander except perhaps he thinke the Notorious wilfull contumacie of those that refused sundry times vpon their oathes to answere Articles obiected on her Maiesties behalfe for matters of their owne facts or within their knowledges and not touching either their liues or limmes so farre as by Lawe they were bound not to be a matter sufficiently appearing and proued to the Iudges whereas such their contumacie and contempt euidently appeared to the honourable persons Iudges and other sage prudent and learned men not onely to be most vntolerable but was iudged by them to tende also vnto the vtter ouerthrow of the whole fundamentall iustice of this Realme if it should be suffered I do read in deed 1 Inter epist. Caluini in folio pag. 421. 422. that the Ministers of Geneua do in a letter of their owne written to the Ministers of Berne against one Cumperell a Minister also of Geneua testifie no lesse of the Eldership there then here is traduced For because Cumperell 2 Two meanes to occasion Enquirie and examination of Office euen at Geneua did not answere directly as they thought before the Consistory or Eldership vnto their Interrogatories by them of meere Office ministred vnto him whereof two concerned his thoughts and the very cogitations of his heart so that they helde him thereupon as conuicted and for that there were vehementia indicia great presumptions with a common fame that he being ordeined Minister for a parish in their territorie called Drallian had neuerthelesse vnder hand sought to place himselfe in the territorie of Berne for this was his heinous fault whereof they then enquired Therefore the Consistorie pronounced Quòd erant iustae causae cur Ministerio abdicaretur that they were iust causes to depose him from his Ministerie So that albeit we haue no such Lawe or practise in England thanks be to God whatsoeuer the Note-gatherer saith to condemne a man without any matter proued yet some other Churches whom he his Consorts doe more admire then their owne thinke they haue warrant ynough euen vpon a fame and some tokens to depose a minister when they shal find that course meete to be vsed Another reason in that behalfe is alledged by Sir Th. More that the Lords of the Counsel vpon secret information call men of Office without any prosecutor vnto examination of matters criminall To which the Notegatherer answereth thus viz. that this is in matters concerning the state of the Prince and of the Realme in matters of allegeance and that a Iesuite or Seminarie priest may be examined by othe quia ipso facto a traitour First all the matters that their Lordships doe or may examine are not of such hie qualitie And if they were it is not the importance or hemousnes of the matter that can make Iustice of that which is Iniustice in it selfe as was touched by me afore And so be also sundry matters dealt with in some Courts Ecclesiasticall neerely touching the state of the Prince and Realme Besides it is a very strange allegation to say The Iesuits or Seminarie Priests may be examined by othe quia ipso facto traitours As if all or any traitours might be examined by othe of their treasons considering that to examine the partie by othe of matters touching losse of his life or limmes is flat contrary to the Lawes policie and custome of this Realme in both sorts of Courts yea and perhaps contrarie to diuinitie too as the Treatisoure his owne Camerade though fighting in the selfe same quarrell and following the same Coloures can and doth tell him That which hath bene said to these two last obiections may also serue to retoyne vnto his replie made against the obiection that the like course is vsed by Martiall Lawe But if this proceeding of office by Speciall enquirie be so reasonable and oftentimes necessarie how commeth it to passe may some man aske that the names of Inquisition and Inquisitours be holden so odious Admit those names be odious vnto many yet this without further reason may not serue to coÌ„demne y e course it selfe For many sorts of men be also odious perhaps without any iust desert or particular abuse in themselues other then for their office sake who are not therefore wholly to be reiected as Informers of concealments of poenal statutes Takers Purueyers Bailifes errand yea and some administers of Iustice too if they be any thing exact seuere therein Neither is this odiousnes generall against all Inquisition whatsoeuer but only against one particular course of proceeding thereby in the crime of heresie practised in some Popish dominions but of al other most rigorously and cruelly in Spaine yea as is supposed farre beyond their owne Commission that they haue from the Pope and yet their Commission is also in many points exorbitant from all Lawe and reason A writer in the Ciuil Law assigneth a speciall cause of the hatefulnes vnto the CoÌ„mon people of the Spanish Inquisition for matters of heresie 1 Albericus de Rosate in rub C. de haeret nu 6. Inquisitors of heresie saith he are hatefull and suspected of all Lay-men because of a long time it hath bene beleeued that they are wont to proceede vpon most light suspicions especially against those that be riche Nay in deede how can it be otherwise seeing their dealing by that Inquisition is especially against men of greatest wealth because vpon their condemnation their goods and lands are confiscated to the house of Inquisition that is to the Inquisitours themselues Now seeing none of these strange courses be vsed in any Criminall proceeding in this Realme there is therefore no iust cause here to make it hateful vnto any Yet the Treatiser doth imagine this kind of proceeding to be more frequent in Courts ecclesiastical within this Realme in respect of the Iudges owne fees thereby arising For answere whereof First in Courts of Commission Ecclesiasticall against which some haue the greatest edge and egernesse the Commissioners haue no fees at all no
Ed. 4. 23. the Iudges finding the plea to be of Ecclesiasticall iurisdiction did ex officio at no mans instance dismisse it out of that court as not perteining to their iurisdiction And do we not often see the ordinarie course for enditements much assisted and holpen by the Iudges and Iustices search examinations and dealing therein of office and duetie onely both in treasons felonies and in other causes of more priuate interest that be preferred by others doe they not also vpon their owne discretion for causes knowen to themselues without prosecution of any partie and so ex officio onely often times commit persons of suspected behauiour to prison and not dismisse them till by a writ of enquirie de bono gestu fama they be found worthie to be set at libertie So that by these few and sundry other that might be brought it may appeare that proceeding and enquirie ex officio is so farre from being so much as a diuers course from the lawes of the Realme that it is often practised thereby when no partie besides the Iudges themselues do entermeddle But it is not onely by that law practised but also allowed by it for a lawfull course of proceeding in Ecclesiasticall Courts against crimes and offences By a statute of 3 2. H. 5. cap. 1. Henrie the fift such an Inquisition of Hospitals of the Kings foundation is appointed vnto Ordinaries and in those that be of any other mans foundation Ordinaries are authorised not onely to enquire of the foundation estate and gouernance of them and of all other matters necessarie in that behalfe but also to make thereof correction reformation after the lawes of holy Church as to them belongeth So that if Ecclesiasticall lawes doe warrant this enquirie and course of reformation and correction then this statute will giue force vnto it By 4 1. H. 7. cap. 4. another statute If any Clerkes be conuicted of incontinent liuing in their bodies being but afore perhaps openly noised thereof before whom conuicted afore Ordinaries How by examination other lawfull proofe requisite by the law of the Church they may by the Ordinarie at his discretion be committed to ward Which together with the committing must needs be both done ex officio for that no partie to prosecute is there mentioned to be required and because the Ordinarie thereby may proceed vpon the publike infamie noised abroad The statute of 1 23. H. 8. ca. 9. Citations made afterward mentioneth a case where an inferior Ordinarie may be partie to a suite holden afore him which may aswell be vnderstood in a cause mooued of Office for an offence as in any other matter But more plainely afterward for there the very word ex Officio is vsed and it is prouided that the forfeiture of that statute for calling a man out of the iurisdiction where he dwelleth shall runne against him that cited whether he proceed by vertue of his office or at the suite of any person Whereof may be gathered that the lawes of the Realme take knowledge of that course ex officio to be as warrantable as the other made at the suite of a partie so that other requisites be obserued And though the statute against Heresie stand 2 27. H. 8. ca. 10 now repealed yet it may serue to prooue that not onely inquirie but examination also of the partie himselfe in a visitation by Ordinaries both which are done ex officio is holden for a course of the law ecclesiasticall not to be condemned or disallowed by the lawes of the Realme In a statute touching 3 1. Ed. 6. cap. 2. Ordinaries seales now also repealed certeine ecclesiasticall causes be rehearsed among which causes of instance betwixt partie and partie are plainly seuered distinguished from causes of correction thereby giuing vs to vnderstand also how rarely causes of correction be prosecuted by any partie but by the Iudge ecclesiasticall himselfe alone proceeding of Office And 4 1. Eliz. cap. 2. by a statute in the first yeere of her Maiesties reigne made for vniformitie of Common prayer Ordinaries are authorised to inquire and to punish c. the violation of that act as heretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes But that an enquiry is alwayes of office and what the lawes ecclesiasticall be in this behalfe and how the continuall vse hath bene is shewed afore so that none need remaine doubtfull in these points The very Common law not onely taketh knowledge of this course holden in Courts ecclesiasticall but in some respect doth also priuiledge it euen aboue the proceeding by a partie 1 7. H. 4. 18. For if an Ordinarie doe sequester goods of the dead for any contumacie or ex Officio which giueth no possession to him the court spirituall in this case shall haue Iurisdiction And it seemeth by that case the lawe to be otherwise when it is at the suite of a Partie So in a case 2 M. 20. E. 4. 10. of violent hands laied vpon a Clerke both Brian and Litleton held no man gaine saying of it that the spirituall court may punish it ex officio but not at the suite of the partie least the beater thereby bee kept from his absolution till some temporall duetie bee contented and paied And Mordant 3 T. 12. H. 7. sol 22. was of opinion that if a man bee sued by a partie pro laesione fidei in not paying a summe of money promised there shall lie a Prohibition yet if the iudge ecclesiasticall shall doe it ex officio that then no Prohibition shall lie Neither doeth any gaine say him herein Vnto which opinion of his another iudgement giuen in the 4 Assis. lib. 22. pag. 70. booke of Assises in like case seemeth to accord To like effect also 5 Fitzh nou nat breu tit Consultation fol. 50. c. Fitzherbert reporteth that an Ordinarie may cite and proceed against a man ex Officio pro violenta manuum iniectione in Clericum likewise for tithes detained in the time of vacation of a benefice so he may cite also such as refuse to maintaine a Curate or Chaplaine and for fornication or like offences Fitzherbert 6 Nou. nat br pag. 64. E. in another place also thus writeth If a man saieth he be sued in court Christian or if the bishop sue and cite him ex Officio and excommunicate him c. And againe 7 Ibid. litera F. thus Significauit lieth not but where the partie is excommunicate by name maiori excōmunicatione vpon a spectall suite against him ex Officio or by a partie therefore both are alike lawfull and allowable by the common lawe And that for wrongfull detaining of tithes in time of vacation of a benefice the ecclesiasticall Iudge may cite and proceed ex Officio doeth plainly appeare euen by 8 Liberties of the Clergie out of the lawes of the realme by Iohn Gooddall Printed by Rob. Wier
robbed yet if there be likelyhood to the contrary the partie is not beleeued but the Iudge proceedeth ex Officio quia interest Reipub. puniri furtum Touching the penaltie due vpon such proceeding some writers holde that 7 D D. in c. qualiter el. 2. de accus the ordinarie paine appointed by Lawe is not to be inflicted vpon proceeding of Office But they also make these exceptions viz. that this doth not holde 8 Innoc in d. ca. where the Crime is notorious nor 9 Card. Alexand in c. de accusat col 39. where the defendant vpon the enquirie confesseth the Crime nor by the 10 Plerique omnes D D. course of the Ciuill Lawe For in these cases they affirme that the very ordinarie paine expressed in the Law may be imposed But it is assured 11 Clarus lib. 5. § fin qu. 49. that by Custome at both these Lawes not onely a milder paine but the very set paine of Lawe it selfe may be inflicted euen when a Iudge hath proceeded of Office But here some may obiect that those Lawes do seeme sometimes to require an Accuser It is true but neither alwayes nor of necessitie as hath bene opened And it is shewed afore that publike interest stands in steede of an Accuser Likewise the 1 c. qualiter quando cl 2. de accusat Lawe accounteth fame precedent to be a kinde of Accuser And where fame wanteth other 2 Bartol in l. congruit ff de Off. praesidis presumptions and Indicia or euidences are in this behalfe equiualent vnto a fame It may further perhaps be vrged that by Ciuill lawe this Enquirie ex officio is counted an extraordinarie remedie If it were so admitted to be what would this auaile those that oppugne it simply for the rule is Vbi cessat remedium Ordinarium ibi decurritur ad extraordinarium And it is not holden nor is otherwise likely if a partie will seriously and with effect prosecute but that the Ordinarie Iudge will cease further to deale therein ex officio yet it is a little afore signified that by reason of such generall custome this Enquirie ex officio is become euen by the Ciuill Lawe to be an Ordinarie remedie And besides that custome wheresoeuer 3 Specul Marran de Inquisit nu 39. Enquirie of office is specially permitted either by Lawe as in many cases or by statute there it is as ordinarie a remedie as Accusation And by the 4 Ibid. nu 48. Canon Lawe it is absolutely an ordinarie remedie I haue also heard it to haue bene obiected against this course that bad and infamous persons suggestions haue bene accepted If it be so it is but the fault of persons not of the Lawe And if by an Appellation from any ordinarie Court this point come to hammering it wil not be found absolutely iustifiable yet experience teacheth that not onely Relatours that be infamous and bad persons be in some cases admitted by the Lawes of this Realme but which is more they are permitted also to be witnesses As both infamous persons and those that be partakers with the appeached in treasons murders and felonies which is permitted in fauour of the Prince and common wealth in detestation of such grieuous crimes and for the very nature of the crimes which are for the most part so perfourmed as none honest persons but such as themselues are or can be priuie vnto them Vpon the same grounds the Ciuil Law also admitteth the like witnesses Therefore is it testified to be 4 Decius consilio 342. nu 8. the common opinion of writers in that Law that for the horriblenes of some crimes witnesses otherwise disabled in Law may be receiued as in here sie and in Treason Also when the trueth of the matter cannot otherwise bee had therefore the rule is that when the facte is of such qualitie that other witnesses cannot by any possibilitie be had in such case those shal be admitted that are in other cases forbidden by lawe Therefore none of these nor any such like friuolous obiections will be able to ouerthrowe this course so manifoldly grounded both vpon those former seuerall lawes and also vpon reason CHAP. XIIII An answere to such obiections as vpon the Ciuill or Canon lawes are brought against all proceeding of Office in causes Criminall by the Treatisour and the Note-gatherer AGainst all that is or may be brought out of those two lawes for confirmation hereof the Treatisour rather exclaimeth then obiecteth that they are strange lawes strange and forreigne proceedings and I knowe not against what pretended strange courses he bitterly inueieth as if nothing that is vsed els-where in the world could sauour of Iustice besides our owne or might be receiued amongst vs howe apt or beneficiall soeuer it be otherwise Neuerthelesse we finde in the bookes of termes and yeeres many things reported out of the Ciuill and Canon lawes yea many rules taken out of them which are there both alledged and allowed of That sage and prudent Senate with the whole people of Rome when of twelue Tables which conteined the ground of all their lawes tenne of them were transcribed taken out of the lawes of sundry common weales then in Greece they neither helde it any disparage to their owne Nation nor in that respect accounted them the lesse to be Romane lawes Though it were graunted that the proceeding of office in Courtes Ciuil and Ecclesiasticall with vs was drawen at first from those two lawes yet the same or like proceeding which is vsed in sundry temporall Courtes here perhaps will not be iudged to haue bin taken and borrowed from those two lawes but rather to haue bin the very olde originall custome and Common lawe of the land Which consideration if it be true must needes in mine opinion make much for the approuing of the reasonablenesse and equitie of that proceeding when as seuerall nations by one instinct of the light of reason haue so long iumped hitte vpō one the same course without borrowing it the one of the other But frō whencesoeuer any of these courtes in this lād haue borrowed their proceeding of office seeing temporall Courts of the Realme haue practice of the like course those lawes do allow it also vnto Courtes ecclesiastical according to the vse euen of so many hundreths of yeeres as this Nation hath bin Christian therefore these 1 Vide preamb. stat 25. H. 8. c. 21. proceedings ought not now at length to be accounted either forreine or strange from our policy but rather as our owne homebred English lawes and her Maiesties lawes ecclesiastical as they be often termed in actes of Parliament It is true which is said out of the Ciuil law Ea nostra facimus quibus auctoritatem 2 l. 1. C. de Vet. iure emendando nostram impartimur Those things we make ours vpon which we bestowe our authoritie whether expresly or by implication vpon long continuance of
will vse no vaine cauillations and delayes or foorth of Iudgement as an oathe of alleageance or they are obligationis introductoria when the very oath worketh the bond in lawe for something afterward to be done But this bonde is only by the 5 Tot. tit ex de Iureiurando Canon and not by the Ciuill lawes sauing in one case that I can call to minde which is the 6 L. vt iurisiuraÌ„di ff de operis libertorum oathe of a man once a bondslaue and now set free called libertus that is made vnto his patron to performe some workes or other thing vnto him For in this case the very oathe is obligationis introductorium and maketh the freed man bound by that Law to performe it in vim turamenti Furthermore a promissorie oath whether taken in iudgement or out of iudgement is either necessarie as when it is imposed by the Magistrate vpon his subiect or it is voluntarie An oath assertorie being of chiefest vse and therefore most to be stood vpon and explaned is also either extraiudiciall or iudiciall and both these be either necessary or voluntarie The iudiciall necessarie oath Assertory is sometimes giuen to the defendant when there is formally another partie besides in iudgement sometimes when there is no such partie beside but the Iudge that proceedeth ex officio When there is a partie it is either iuramentum calumniae veritatis or purgationis but if there be no such partie beside it is either purgatorium tantum or partim purgatorium partim inquisitorium The Iudiciall and voluntarie oath is either suppletorium aestimatortum in litem or decisorium Which last is oftentimes confounded with iudiciale iuramentum without further addition by reason of the more frequent vse of it in Ciuill lawe courts in elder times when men durst trust one anothers conscience better then nowe generally they haue cause to doe The decisory oath is either delatum or relatum by the one of the parties that are in sute together Nowe I minde briefly and plainely without tying my selfe to any exact definitions to describe these vnto you with onely quotations of the Scripture where examples of them may be found as I conceiue it for auoyding of tediousnesse by particular rehearsall 1 Gen. 43. v. 3. 1. Sam. 25. v. 26. 1. SaÌ„ 26. v. 10 16. 1. Sam. 29. v. 6. 2. Sam. 4. v. 9. 2. Sam. 19. v. 7. Assertorie is when by oath any thing past or present is affirmed or denyed to be A 2 Gen. 24. v. 3. 9. Gen. 47. v. 31. Leuit. 5. v. 4. Num. 30. v. 3. 14. Iosh. 1. v 6. Iosh. 2. v. 12. Iosh. 2. v. 22. Iosh. 9. v. 15. 18. 19. 20. Iudg 15. v. 12. 1. Sam. 14. v. 45. 1. Sam. 28. v. 10. 2. Sam. 3. v 35. 2. Sam. 19. v. 13. 1. Reg. 1. v. 13. 17. Promissorie oath is when any thing is by oath promised to be done or not done In a Promissorie oath there is a double bond before God the one is that it is sinne if trueth be wanting and the other is that he is bound to doe hat which he promiseth But in an Assertorie oath there is no bond but onely this that the matter be true which is affirmed thereby or denyed The effect of a Promissorie oath is that he is bound to make that true which he hath sworne but if it were not in his power to doe it then there wanted in such oath iudgement and discretion except it were in his power to doe it when he swore but became impossible by some casuall euent after happening that could not be before thought on In which case neuerthelesse hee is bound to perfourme it as farre forth as lyeth any way in him so the oath be such which did binde as carying with it none impietie But if the promissorie oath be made touching such a thing as was in his power yet such as ought not to bee done either because it was in it selfe euill or is an hinderance or let of something that is good then in such an oath Iustice is wanting An 1 Gen. 21. v. 31. Gen. 26. v. 31. Iudg. 21. v. 1. 1. Sam. 19. v. 6. 1. SaÌ„ 20. v. 13. 17. 1. Sam. 30. v. 15. 2. Sam. 19. v. 23. 2. Sam. 21. v. 17. 1. Reg. 1. v. 29. 30. 51. 1. Reg. 2. v. 8. 23. 24. 2. Reg. 25. v. 24. 2. Chro. 15. v. 14. Nehe. 7. v. 18. Nehe. 10. v. 29. Ierem. 38. v. 16. Ierem. 40. v. 9. Hebr. 6. v. 16. 17. oathe promissorie and confirmatorie is when it is made for more full assurance of some act to be done or not to bee done A 2 1. Sam. 14. v. 24. 28. 1. SaÌ„ 24. v. 22. 23. 1. Reg. 2. v. 42. 43. Ezra 10. v. 5. Nehe. 5. v. 12. Iosh. 23. v. 7. In these wordes Nor cause to sweare by them necessarie oath generally whether there be two parties formally or the Iudge proceedeth ex officio is that which a Magistrate causeth those that be vnder his authoritie to take for some conuenient purpose and ende In law it is defined to be 3 Postilla in v. iureiur L. in bonae fidei C. de reb cred iureiur such as you neither may referre or put ouer to the other partie to take his oath to the contrarie nor yet may be refused by your selfe For 4 L. 11. § quitaâ—…it ff de interrog act L. 11. de periurio ff de in litem iurando ibi ex necessitate if you doe you shall be holden as conuicted and the sute must goe against you This necessarie oath is tendered by the Iudge whensoeuer hee seeth cause in equitie to mooue him albeit no partie make petition and then it is called Nobile vel merum Iudicis officium or els it is tendered and ministered by him at the petition of a partie and then it is termed mercenarium Iudicis officium because thereby hee seemeth but as it were to serue his turne that maketh the petition The first of this necessarie sort where there bee formallie two parties is Iuramentum calumniae which is when one is vrged to sweare that hee moues a cause alledgeth or answereth some Iudiciall matter bona fide that is truely directly and not captiously and that he beleeues it to be true and thinkes he can indeede make proofe of it and that hee doeth it not to vexe his aduersary but to relieue himselfe and not of any purpose to delay the sute Necessarium iuramentum veritatis is 5 Mascard de probat vol. 1. pag. 18. nu 6. that which is ministred to witnesses and that also which is ministred to the partie who is to answere vnto Positions or Articles And that also is so called whereby the Iudge doeth interrogate and examine either of the parties or the witnesses to the intent to bee more fully instructed in the cause 1 1. Reg. 8. v. 31. luramentum
purgationis where there be such parties is when in a cause criminally mooued by some accuser or partie the Iudge vpon defect of sufficient proofe doeth tender to the defendant an oath to cleare himselfe This though it be established by the Canon yet of long time it hath bene in vse aswell in Ciuill or Temporall courts on the other side of the Sea as in Ecclesiasticall so that if the defendant shall refuse to take it in either he is holden pro confesso conuicto The other oath of purgation or clearing simply when there is no formall partie in iudgement besides the defendant is that which by reason of fame scandall vehement presumption or vpon some other of those meanes that as I haue shewed afore doe open a way to Enquirie ex officio the Iudge doeth giue vnto the defendant to his clearing of the very crime obiected without any meaning then to seeke further proofes of that crime after the defendant hath taken such oath The other oath necessarie being partly of 2 Leuit. 5. v. 1. Num. 5. v. 12. sic deinceps Iosh. 7. v. 19. 1. Sam. 14. v. 43. clearing and partly of further enquirie is that which as is next aforesayd is giuen to the defendant vpon criminall matter obiected and vpon the circumstances thereof yea oftentimes with purpose to make further proofe in case the defendant shall not confesse it or not so fully in materiall circumstances as the Iudge hath cause to thinke may by witnesses or otherwise be prooued Yet if he shall confesse so farre as is thought may bee prooued then according to the qualitie of such his answere hee is presently either proceeded with thereupon vnto a iudgement or else dismissed as cleared thereof by his oath The examples and other iustification hereof shall more largely God willing be shewed in their proper place hereafter For this is the oath that the Innouators doe so much condemne and exclaime against But nowe touching voluntarie Iudiciall oathes whereof Suppletorium is that which is tendered to the plaintife or defendant according to the qualitie of the cause in a ciuill matter for supply of proofe made semiplenè tantùm as happily by one singular witnes being without all iuâ—…t exceâ—…tion Iuramentum in litem or Aestimatorium is then 1 L. 1. cum l. sequ ff de in litem iurando giuen by the Iudge when the defendant doeth not restore the very thing that is in demaund in which respect he is to be condemned in the value thereof according to such rate as the plaintife is endamaged taking it vpon his oath yet so as the Iudge by equitie may taxe and moderate the quantitie of the summe which he may not exceede and also when the partie hath sworne the Iudge may defalke thereof as he seeth cause in equitie Decisorium iuramentum delatum is that which 2 Exod. 22. v. 11. 1. Reg. 8. v. 31. Hebr. 6. v. 16. either the one or the other of the parties first offereth vnto his aduersarie to take according to that hee affirmeth or standeth in perhaps vpon confidence of his good conscience or for want of better proofe So that if he to whom it is so deferred shall take such oath then must the matter be adiudged according to his oath as if the parties had so agreed the cause But if he shall refuse it and yet will not referre it that is will not put it ouer vnto his oath that first made the offer then shall hee be ouerthrowen in the cause So that to referre an oath is nothing els but to offer it backe to be decided by his oath according to his owne issue that first made the offer 3 L. iusiurandum 34. § ait Praetor ff eodem l. generaliter 12. § se liuramento C. d. But if vpon such referring it ouer backe againe he also that made the first offer will not take the oath then hee that so referred it ouer againe shall haue iudgement passe with him as if he himselfe had sworne when it was first offered him for maximae turpitudinis est nec delatum subire nec referre iuramentum Examples of these decisorie oathes there be also at the common lawe for 4 19. H. 6. 43. where the defendant desires that the plaintife may be examined or sworne this is peremptorie to the plaintife in this point and so is the wager of lawe ex parte defendentis By the custome of London if the defendant desire to haue the plaintife sweare to his declaration and hee doe it the defendant is thereupon condemned But this oathe decisorie at the 5 Iul. Clarus li. 5. § finali qu. 63. ciuil Law is neuer vsed in matters criminall except they be mooued ciuilly not criminally that is for the plaintifes priuate amends and satisfaction or else the cause be but of small value or the proceeding in such criminall cause criminally be referred and intended to no corporall but to a pecuniarie punishment or fine onely Thus farre for a generall vnderstanding of the nature of euery seuerall kinde of oathe CHAP. IIII. That the ceremonies vsed in taking and giuing corporall oathes with laying handes vpon the Bible or Testament and swearing by the contents of it are not vnlawfull THe first challenge nowe comming to be spoken of that is made by some of them against the ceremonie vsed through this Realme in all corporall oathes taken either in Temporall or in Ecclesiasticall Courts is the laying of our hands vpon a booke when we take the oathe For the better approbation hereof it is meete to consider the generall ende of it the particular vse of it and the generall practise of that or of the like ceremony reported both in Scripture and in other writers to haue bene vsed in such action The generall and chiefe ende of this or of any the like ceremony vsed in this action is to signifie thereby that we do then aduisedly attend and giue heede to the oath wherewith we are charged and that we do accept of it and bind ourselues in sort as it is giuen The vse of this in particular is to strike a more aduised feare reuerence into vs when wee consider the reuerence due to an oathe as it is described in that booke the curses there threatned against those that for sweare themselues or shall take the name of God vainely This vse of such corporall ceremonie in taking of an oathe is touched in the 1 L. 3. C. si minor se maiorem dixerit ciuil law out of which it is gathered that by touching and by corporall taking of it the oath is holden to be more inuiolable and the harder vpon any plea to be recalled The practise of corporall oathes taken with some like effectuall and significant ceremonie by the godly is to be found in Scripture When 1 Gen. 24. v. 3. 9. Abraham caused his seruant that was vnder his authoritie to take a corporall Promissorie and necessarie oath for
these sortes are Iuramentum calumniae veritatis Purgationis All these by lawe are necessarie to be taken for 1 l. 2. Authen principales C. de iuram calumniae Marr. de iuram cal nu 6. Cuiacius li. 9. obs ca. 37. if they be refused being so tendered hee is ouerthrowen in his cause that refuseth and is holden pro confesso conuicto And yet very often it falleth out that by such oathe the partie is drawen to discouer his owne dolum malum couine fraude or mal-engine and other also his owne lewdnesse both preiudiciall by lawe to his honestie and good name and also otherwise penall to himselfe For examples sake by the nature of Iuramentum calumniae hee is to discouer in some sorte euen the cogitations of his heart in that behalfe viz. 1 l. 2. C. de iuram calumniae That he standeth in lawe or affirmeth something in a full opinion and confidence that hee hath of his owne right and that the suite as hee mainteineth it seemeth to him good and iust And 2 Ibid. d. Authen principales §. i. Instit. de poena temerè litig Nou. 49. c. 3. further that what soeuer he shall be asked about that matter he shall answere it from time to time truly that he neither hath fraudulently giuen nor will after giue or promise to giue any thing to corrupt the minde of any man that hath to iudge in that cause Nowe if in a priuate cause betwixt priuate persons suing but for priuate benefite and commoditie and at one of their petitions per mercenarium Iudicis officium his aduersarie must of necessitie take such an oathe touching matters perhaps of his owne fraude and lewdnesse and to the discouering oftentimes of matters criminall and penall to himselfe or else must loose his suite and bee condemned as conuicted by his owne presumed and implied confession and this both by the Canon and Ciuill lawes being the Common lawe in both courtes of all other nations abroad in Christ endome then in a publike cause mooued by the Iudge ex nobili officio where hee seeth by his discretion and direction of lawes good cause in equitie for the publike interest that the Church and Common wealth haue that sinnes be punished and repressed for discharge of his duetie according to the trust reposed in him and not of malice or to pull any priuate benefite from the partie how much more is it herein equal and necessarie that an oath be ministred to such presumed delinquent for the discouerie of the whole trueth or else if hee stubburnely shall refuse that he bee holden as in the other case afore pro confesso conuicto When an enemie of malice or for other sinister respect doeth accuse a man of a crime iudiciallie and brings him thereupon into question and great danger if he cannot make sufficient proofes for his condemnation yet by probable presumptions hath so touched him as thereby hee becommeth vnto the Iudge iustly to bee holden suspected thereof In this case by both the lawes aforesaid the Iudge is to giue an oath of Purgation to the suspected person touching that crime which if he shall refuse he is holden as conuicted of it whereby it may happen that his accuser is more gratified and pleasured then by any proofes that him selfe could bring or could otherwise procure Is there not then much more equitie when the question and enquirie of the crime is stirred vp for a better purpose and without any such malitious accuser that vpon like presumptions and probabilities the like oath should be giuen and tendered by the Iudge to such supposed delinquent Can any man giue a sound reason why it should seeme equall that when an enemie gaue the first occasion pars reae should then vpon presumptions be vrged to take the oath or els to be condemned of the crime And that it should not bee much more equitie for him to take it when the Iudge for his dueties sake and stirred vp by probable inducements doeth originally call him into question And when a man is pressed with such probabilities as the Iudge findeth to be sufficient thereunto hee is iustly put to his oath of clearing himselfe if hee so can and so this tendeth in some sort to his owne benefit Is it not much more reason then that vpon the like presumptions appearing to the Iudge hee be vrged to that oath to tell the whole trueth of the matter with the pertinent circumstances aswell for the publike benefites sake of the common weale as for his owne good and escaping of punishment Some may perhaps here aske why the proceeding by the Iudge of Office should bee more priuiledged in this behalfe then when a crime is proceeded against by an accuser or party For in the very beginning of the sute the Iudge proceeding ex officio may require the oath of the supposed delinquent touching both circumstances and crime but when hee proceedeth by way of accusation albeit in courts Ecclesiasticall the partie conuented may be examined by oath vpon other matter of circumstance yet hee may not so be examined touching the very fact and crime or any thing neerely or presumptiuely tending thereunto vntill by sufficient presumptions the Iudge be induced to account him greatly to be holden suspected This question almost doeth answere it selfe for when the Iudge proceedeth by enquirie before hee offer the oath to the partie the presumptions against the partie are knowen vnto the Iudge but when by way of accusation till the accuser haue brought in such proofes as hee can they are not knowen vnto him Besides the Accuser doeth it of malice or for reuenge or for other satisfaction of his owne priuate humour for the most part But the Iudge by common entendement doeth it of sinceritie of minde and for the good of the common weale Againe 1 Panorm in c. per Inquisitionem de electione c. inquisitionis extra de accusat those that be conuicted vpon such Enquirie are most vsually punished by some milder punishment then when they are connicted vpon an accusation yea and in ecclesiastical courts sometimes not so much as punished at all corporally but meanes onely of inducement to repentance are vsed towards them All which being ioyned to that which hath bene afore spoken of the equitie of Enquirie ex officio doe sufficiently I trust recommend both the generall equitie of the vse of this oath and also the great necessitie of it in sundry causes and vpon diuers occasions But the Treatisour towards the very beginning of his disputation against these oaths surmiseth that in iustification of the equitie and conueniencie of them it will by vs be alledged that the same is requisite for the Enquirie and finding out of suspected faultes whereof there is no proofe and to search and trie the euill mindes and corrupt consciences of dangerous dissemblers and so necessarie for the gouernement of the Church and common wealth He that
taken but it was for that the Popes Collector who had in England no iurisdiction did conuent the said vicar afore him ecclesiastically at the suite of the Deane of Windsor for breaking his oath taken afore the sayd Collector to performe the condition of an obligation that he the said vicar had entred into which is a temporall cause What then doth this make against oathes imposed vpon defendants in some criminall causes For I trust though the Collector had vnlawfully imposed it the Treatisour will not thence reason thus mightily against vs viz. This was an imposed oath in a ciuill cause but it was vnlawfull therefore all imposed oathes in any criminall cause are also vnlawful For this reason is ex meris particularibus hath quatuor terminos besides is a fallacie of the Accident Seeing is was not therefore vnlawfull because it was imposed but vpon the other grounds alone Hitherto touching examples of oathes alledged out of the reports of the common lawe Now follow these reasons that are vsed as for a more direct condemnation by the common lawe of oathes imposed vpon defendants in some Criminall cases in which behalfe the Note-gatherer saith that nemo tenetur seipsum prodere is the common custome of England I will not greatly sticke with him herein so it be truely vnderstoode albeit this maxime being taken notoriously out of the Interpreters of Ciuill and Canon lawes I thinke he would haue much a doe to finde it by any booke of the common lawe to be the common custome of England It is true that when a man 's owne fault is secret and not any way bruted and published abroad he himselfe is not bound by lawe to make confession thereof to any Magistrate or officer Ciuill or Ecclesiasticall whether he be vrged to sweare thereupon or otherwise for in such case it is simply secret and the Magistrate except he shoulde minister a generall oath like vnto the Popish charge at shrift not warranted by any lawe cannot possibly in speciall or particular manner interrogate him of that whereof he neuer heard nor once dreamed But if a man be once discouered thereof by Presentment denunciation Fame or such like according to lawe then is not the fault simply secret but reuealed in some sort abroade or to the Magistrate who for auoyding scandall to Christian religion and for reformation of the partie may thus enquire of the offence to see it redressed and punished and therefore to the former maxima must be added thus much sed proditus per denunciationem Famam c. tenetur seipsum ostendere Any more exact or further discussing hereof is not of this place I doe 1 2. part ca. 6. 7 3. part ca. 9. therefore referre the reader to the places of this Apologie here quoted in the margent The onely case carying any shewe or colour of condemnation of oathes in any cause criminall at the course of proceeding by common law is alledged by the Treatisour out of the 2 Li. Assisar 4. 9. E. 3. Assis. 1. sol 316. booke of Assises there certaine returned of a Iurie being readie to be empanelled with others were challenged some of them for that it was supposed they had declared the right for the one partie and not for the other thereby as it were telling their verdict aforehand And othersome were challenged to be of Counsel or fee to the parties Nowe it is thereupon further reported that such of them as were in the first respect challenged were sworne to giue euidience to the Iurours and that it shall bee so in like case where the challenge sounds not in reproofe or dishonour of them but for those which were challenged that they had receiued money of the partie this challenge was tryed by the tryours without hauing any euidence by their owne oathes Causa qua supra whereby hee woulde gather that an oathe may not bee giuen in any cause at all where the parties owne honestie may be touched But he might with better reason haue gathered out of y e former part of this case the very contradictorie hereof because it is very small honestie for any man in some sort to offer himselfe to be sworne as an indifferent Iurour when he is indeede vnindifferent his iudgement so forestalled as that he hath taken vpon him to scan the right for the one partie before hee be sworne or haue heard the euidence for the other yet neuerthelesse these chalenged persons were put to giue euidence hereof to the Iurours vpon their corporall oathes Cōcerning the other persons chalenged to haue receiued some money or fee of the one partie that it was thought good that they should not be examined by oath hereof because it was a matter that might tend to their reproch and dishonestie cannot inferre this generall conclusion viz. that in no cause whatsoeuer a man may be put to an oath whereby his owne turpitude and dishonestie may be discouered For this was but in a particular point of challenge where the persons challenged were no defendants but came in to be Iurours a kinde of tryours and Iudges and against whome there was no lawfull inducement for the Iudges to impose such oath other then the challengers owne exception But that is not sufficient to cast ouer the clearing or proouing of the point obiected vpon him that is challenged and so from the challenger who by lawe is to come prepared and to make proofes of his owne intention which hee affirmeth because nemo praesumitur malus donec contrarium probetur and therefore the putting of the tryall of the challengers assertion here vnto the tryours was a fauour done vnto him by the Iudges more then the Ciuill lawes vsed abroad in other nations would haue admitted For he that will except must at his owne peril of loosing the aduantage thereof without any helpe of the Iudges office or of the parties owne oath be able to prooue his exceptions And therefore if this very case had bene in a Ciuill or in an Ecclesiasticall court that is guided by those two lawes the parties so challenged yea though they had bene Accusers or witnesses and much more being returned for Iurours who are a kinde of Recuperatores or Pedanei Iudices should not ne are bound to answere such exception touching their crimes vpon their owne oathes For further declaration of which point that when an answere in a criminall cause ought to be made by vertue of a mans oath and when it may be refused I referre you to the ninth Chapter of this third part So that the Iudges did herein very grauely considerately and but according to equitie and to the common lawe of all other ciuill nations The Treatisours next obiection to like purpose is out of Iudge 1 12. Reg. Eli. fol. 288. titul Periuric nu 51. Dyers booke and it is in the very booke it selfe thus worde for worde A bill of periurie was sued in the Chancerie as for periurie committed contra formam
2 Ordonnance du France premier an 1539. art 38. the parties are bounde by oathe to affirme touching the factes conteined in their billes and additions and by their answere vpon oathe vnto Interrogatories to confesse those which be within their knowledge In other matters criminall it is reported to be the 3 Marcus decisione 674. custome of France for the partie defendant onely to make fayth when they are obiected and hee is thereupon to answere whether he haue committed them or not but hee is not to take a corporall oathe betwixt which two before God there is no difference But by the 4 Grand Coustuâ—…er entre les coustumes de Normandie customes of Normandie I finde that the appealed of murther or such like when it is to bee tried by battaile must vpon his oathe holding his aduersarie by the hand solemnelie sweare whether hee hath committed such facte or no in the very selfe same wordes and maner as Stanford afore alleadged affirmeth to bee the lawe of England in like case of Appeale Generally y t to giue 5 Bâ—…tol in l. inter omnes §. reâ—… fl de furtis an oath to the partie conueÌ„ted in a cause criminall to tell the trueth is the present vsuall practise of most nations abroad and 1 August ad Angel de maleficijs in ver comparuerunt Bertrand consil 321. nu 3. li. 3. in prima parte Marsil in l. quaestio habeÌ„dae nu 72. ff de quaestionibus Conradus in Practica fol. 280. Go. mez ca. 1. Delictorum nu 65. that the common opinion of writers in these two lawes is that it may bee so giuen euen by the lawe Ciuill which is their common lawe doeth appeare by the places of Authors here quoted in the margent Amongst nations of farre elder times in most flourishing common weales we finde oathes in all causes whether Ciuillie or Criminallie mooued to haue bene taken both by the plaintifes and also by the defendants Amongst the 2 Ex Polluce Sigonius li 4. ca. 4. de republica Atheniensi Suidas in verbo Athenians both parties tooke oathes and besides that did lay downe a certaine summe of money to be forfeited by him that should bee ouerthrowen The Plaintifes or Accusers oath was that he would obiect nothing but true crimes and matters This was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the defendant sware that he would deale and answere plainlie not fraudulently and cautelously and this was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 When Aeschines accused Timarchus of a fowle crime supposed to be done vpon him by one 3 Aeschines contra Timarchum pag. 7. Graece Misgolas he saieth thus that if Misgolas being called and vrged to beare witnesse shall denie it to the intent to gratifie Timarchus hee shall thereby doe him no good because Aeschines can prooue it by witnesses but shall only for sweare himselfe and withall shew how cunningly hee can couer such villanies Whereby appeareth that in that common wealth oaths might bee giuen in matters criminall tending to the opening of their owne turpitude as well as of other mens Radamanthus for his seuere and strict course of Iustice holden was fained by Poets like as Aeacus and Minos also were to be a Iudge in another world ouer ghosts deceassed Of him 4 Plato lib. 12. de legibus Plato thus writeth to our purpose I am perswaded saieth he that Radamanthus deserued to bee had in great admiration for he perceiued how in those dayes all men confessed that there were gods which had regard ouer humane actions therefore he thought best to commit deciding of matters in iudgement vnto gods and not vnto men So that by a very plaine and easie course hee ended all matters of iudgement for hee exacting an oath in euery cause in controuersie vsed thereby no lesse speedily then safely to giue his iudgements 5 Libr. 3. Polit. c. 10. Aristotle also Plato his scholer testifieth the like that in olde times supposed offenders that were called into question were some of them proceeded with vpoÌ„ their oaths other without and their oath was performed by holding vp of a scepter The historie of Glaucus 1 Herodotus in Etato lib. 6. an auncient Spartan doeth giue plaine euidence that amongst that most iust people of Greece a man that would denie a thing to haue bene left with him in deposito that is in trust to keepe was to take his oathe whether it was so left with him or not and consequentlie was to sweare of matter tending either to periurie or to his dishonestie and shame hauing once vniustly denied it afore to the defeating of his right who had trusted him For the said Glaucus his whole house and posteritie was rooted out by Gods vengeance onely for that a while hee denied it and had once in purpose to haue forsworne the money which was in deede left with him vpon trust and thereupon consulted with the Oracle at Delphos whether he had best forsweare himselfe or deliuer the money The vse of an oath in matters criminall amongst the people of Greece may be prooued to be most ancient by that purgation which king Agamemnon made to cleare himselfe that he had not liued incontinently with Hippodamia this his purgation is recorded to haue bene made in this forme 2 Dictyâ—… Cretensis lib. 2. belli Troiani Hee commanded two Sergeants to bring the hoste or sacrifice which being by two lifted vp from the earth Agamemnon drewe out his sworde and therewith diuided it into two partes and caused it in the presence of all to be laied downe then holding in his hand the bloudie sworde hee went betwixt the two partes of the sacrifice and when hee was passed through he then sware that he had neuer polluted Hippodamia by incontinencie Homer 3 Homer lib. 19. Iliad v. 257. mentioneth that the same king in another forme cleared himselfe that he had not violated Briseis For at that purgation a Boare was offered vp by Talthibius then Agamemnon cut off some of the Boares bristles and offered them to Iupiter swearing withall that he had not violated Briseis and the Boare was after tumbled into the sea For clearing men from suspicion of all lewd and sinister dealing not onely those which came to striue 4 Pausanias in Eliacis at the solemne exercises and games of Olympus but their parents also and brethren were sworne ouer the entrailes of a sacrificed hogge that they had vsed no fraude or deceit whatsoeuer nor done otherwise then the ordinnances for Olympus did permit So much then for the vse thereof among the old Graecians In the old Romane common 1 Cato de re rust ca. 144. 145. wealth we read that euen priuate housholders did lawfully impose such an oathe vpon their labourers that gathered Oliues videlicet that neither themselues nor yet any other by their couin or fraude had stollen or embezelled away either oyle or oliues which oathe if they
amendment in me and by remouing the scandal which els might iustly be taken against me And by the Canon lawe as is else-where touched mitiùs agitur cum inquisito conuicto quà m cum accusato conuicto Seing then vpon conuiction by way of accusation the very ordinarie penaltie by law appointed is for the terrour of others imposed without any mitigation therfore the oath cannot so reasonably thereupon be exacted as it may vpō the Iudges proceedings by his meere office vnto a farre other more milde end for y e most part But as if those Doctors had absolutely denyed penances which be enioyned ex officio Iudicis to be any punishments at al because they are said to be medicinae he asketh whether penance although it be but standing in a sheete aswell as the standing on the Pillorie in respect of publike shame grieuous and odious to all men shall not bee accounted a punishment I answere that neither the law nor those Doctors in saying they be medicinae non poenae doe thereby deny absolutely as he reasoneth that they be punishments For this saying of the lawe is a Negatiue by comparison only which the Treatisor either would not or did not vnderstand to be none absolute denial and that penancies in deed be so we may learne by S. 1 August epistola 159. ad Marcellum Augustine speaking hereof in this maner quis non intelligit magis beneficium quà m supplicium nuncupandum vbi nec saeuiendi relaxatur audacia nec poenitendi salutaris medicina subtrahitur Standing on the Pillorie which as I take it by a word borrowed of the Graecians may be termed catamidtatio it was euen of ancient times aswell as at this day accounted an infamous punishment vnto the partie that endured it and is allowed for a good proofe of infamie by law but he that hath done publike penance is not in lawe to be accounted therfore infamous but rather to be a man amended and reformed and such as at whose conuersion the Angels in heauen doe reioyce and therefore his companie is not afterward to be shunned or auoyded by any discreete or moderate Christian as if he were still a man of steined credit or conuersation So that the great diuersitie of the endes whereunto these be referred doe make a very notable difference in the punishments themselues For in the one of thē the delinquent is propounded for a publike spectacle of shame reproch to be shunned of all men the other by these outward tokens of humilitie submission testifieth his inward sorow griefe for the sinne and as it were thereby craueth in pitie and compassion to be receiued againe into the Christian fellowship as a man by repentance fully reconciled againe vnto God and vnto his Church Hitherto in answere of his obiections made against some by-circumstances of such oath Against the oath it selfe the Treatisour bringeth some reasons some allegations frō lawyers some out of the lawes thēselues First he saith there is no Iustice in the proceeding at giuing such oath because there be not three in Iudgement viz. the plaintife the defendant and the Iudge and thereunto alledgeth Bracton But what if the maner of proceeding ex officio were vniust which in y e second part is shewed to be otherwise can this proue the ministring of an oath to the defendant in a Criminall cause to be vnlawfull For first proceeding ex officio may be euen where the matter is Ciuill or criminall howbeit but Ciuilly moued and there for the most part none oath is vsed Secondly it may be when none oath touching any crime is to be ministred to the defendant at all Lastly an oath in a cause criminall may sometimes be tendered where the proceeding is not of office at all but hauing all these three persons in iudgement and that not by implication or representatiuely only but euen formally and therefore in all those respects his argument doth not follow yet for further answere I must also tell him that in all due proceeding of office there be three persons in iudgement For as hath bene said that which openeth way to such Enquirie doth represent and standeth in stead of a Plaintife for preferring vp of the matter Againe that an expressed and formall plaintife to preferre vp matter criminall is not alwayes required is 1 Cap. 15. 16. 2. part manifoldly shewed by often practises recorded in the word of God it selfe to the contrary He concludeth also against generall oathes and against extorting by oath of the ground and foundation of Inquisition from the partie conuented out of the saide little schedule of the Doctors From which conclusion albeit not following of those premisses we do not any way debarre him seeing no such practise is either allowed or I thinke in this Realme heard of and therefore he wrongeth all Ecclesiasticall courts the more who so often heapeth vp these vntrue and vnlikely imputations against them An other of his allegations is out of 1 Clar. in pract Crim. q. 3. Iulius Clarus to prooue forsooth by Canons and Canonists this kinde of oath to be a prophane and more then heathenish maner of Inquisition for such is the mildenesse of the mans spirit and contrary if he be not deceiued to the rules and Canons of the Antichristian Church of Rome which be more iust he saith or lesse vniust a great deale then such as haue taken vpon them to iudge by colour of the same for procedere saith Clarus ex officio mero est quando Iudex a seipso ex officio assumit informationes contra deliquentem contra eum procedit c. wherupon he gathereth that to proceede by Inquisition is not to make the partie by oath or examination to be his owne accuser but to receiue information and witnesses against him This which he thence collecteth of not compelling the partie defendant by oath to become his owne Accuser is true if it be as truely vnderstood though it be not inferred truely from that allegation for no man is by oath so compelled but rather by discouery of the whole trueth to cleare himselfe of the crime after he be as it were accused and brought into question by some of those lawfull meanes which open a way vnto speciall Enquirie Besides this allegation maketh nothing for proofe of the vnlawfulnesse of such oath after sufficient detection For Clarus in this place speaketh onely of the processe or enquirie informatiue grounded vpon some Clamosa insinuatio or scandall and not of any part of processe punitiue which followeth vpon the former at what time the oath of the partie is to be taken which thing the same Authour thorowout his whole booke most plainely sheweth if it had pleased the Treatisour to haue perused but a little more of it This therfore is a fallacie of not disputing ad idem besides Ignoratio Elenchi inciuile est nisitotalege perspecta iudicare The next of his allegations is out of
brought to prooue the certaintie of the Promissorie oath which God made vnto Abraham and also by the word of Confirmation there vsed Secondly this place hath vse very properly also in an oath Decisorie when 2 Azo in Summa de rebus creditis as either the one or the other of the parties is contented to put the matter that is in variance vpon his aduersaries owne oath which if he thereupon shall take it maketh an end of the whole suite and strife For in this case he that so offered it shall not bee permitted to vse any contrarie proofes afterwards because hee made choise to haue the whole cause in variance betwixt them composed in that forte It may also truely be answered to that place that an oath indefinitely taken is in deede a meanes prouided and tending to make ende of all strifes amongst men but not that in euery cause and matter whatsoeuer one mans single oath should therfore be sufficient because many absurdities would follow of such an interpretation as namely that a mans oath in his owne cause should be as good and forcible as any other two mens oathes touching the same matter But the law saith dictum vnius dictum nullius One singular deposition though of a witnesse who is not interessed in the cause and therefore the more indifferent is not to be taken for a full proofe Then howe much lesse should the parties oath whom the lawe presumes to be partiall in his owne cause be admitted for a concludent proofe especially to his owne clearing or benefite Besides if such their interpretation of that place should be followed then were this place coÌ„trary to sundry other places in the Scripture which is blasphemie to imagine For 1 Num. 35. v. 30. one witnesse shall not testifie against a person to cause him to die but witnesses therfore moe then one And by consequence a mans owne witnesse in his owne behalfe is not sufficient At the 2 Deut. 17. v. 6. mouth of two or three witnesses shall he that is worthy of death die but at the mouth of one witnesse he shall not die Againe 3 Deut. 19. v. 15. One witnesse shall not rise against a man for any trespasse or for any sinne or for any fault that he offendeth in but at the mouth of two witnesses or at the mouth of three witnesses shal euery word be established 4 Matt. 18. v. 16. Like-wise in the Gospell by the mouth of two or three witnesses euery word may be confirmed Furthermore it is 5 Iohn 8. v. 17. written saith Christ in your law that the testimonie of two men is true 6 2. Cor. 13. v. 1. Moreouer S. Paul saith in the mouth of two or three witnesses shall euery word stand And 7 Heb. 10. v. 28. againe he that despiseth Moyses law dieth without mercy vnder two or three witnesses And to 8 1. Tim. 5. v. 19. Timothie in like maner receiue none accusation against an Elder or Minister but vnder two or three witnesses Much lesse then of any necessitie shall a mans owne testimonie of himselfe and for his owne benefite or clearing be receiued for an vndoubted trueth The blinde Pharisees could see so much that it was absurd for any sinfull man to arrogate so much to himselfe that his owne witnesse touching himselfe should suffice Therefore they say 1 Ioan. 8. v. 13. to Christ whom they tooke to be but man onely thou bearest record of thy selfe thy record is not true And Christ himselfe signifieth the like for he saith 2 Ioan. 5. v. 31. If I shoulde beare witnesse of my selfe my witnesse were not true meaning that where there is no further testimonie for a man then his owne there is nosufficient cause that other men shoulde holde his speech for true or rest in it as certeine And therefore we see that albeit the woman whom her husband hath in Iclousie is put 3 Num. 5. v. 22. vsque ad 28. vnto a most strict oath with an imprecation and curse that she is not defiled yet is there by the law of God appointed a further triall and she is also to drinke the cursed water which by Gods secret operation giuing might vnto it was of force both to reucale and to punish her periurie if she were forsworne by making her most lothsomely to rotte aboue the ground being yet aliue Of further inquirie and the equitie of it after the oath taken and deniall or qualifying of the matter by the partie we haue also sundry examples in the 4 l. 13. C. derebus creditis iureiur Ciuill law of the Romanes If an oath be taken by any man touching a legacie left vnto him by a Testament or of the truth of any other instrument this oath is not so to be rested in but that all may be againe reuoked vpon proofs made against that oathe least the lawes shoulde seeme to permit a man to reape benefite by his owne wicked periurie So 5 l. admonendi 31. ff de iureiur if the Iudge and not the partie doe tender and defer an oath to the other partie if by some publike instrument viz. matter of record or any like sufficient matter proofe may afterwards be made of the falshood of such oath it shall be reuoked and all that dependeth vpon it The reason hereof 6 Duarenus 2. disp anniuers cap. 33. is assigned for that the parties owne othe is but a kinde of doubtfull proofe Furthermore 7 Auth. nouo iure C. de poena iud qui malè iudicauit Nouell const 124. if either of the parties suing doe take oath that he hath neither giuen nor promised any thing to the Iudge yet if within ten moneths after the sentence giuen it shall be prooued that herein he hath sworne falsly both the giuer and the taker shal haue all their goods and lands confiscated and shall be banished So is that 8 Iason in l. scimuâ—… §. licentia C. de iure deliberandi num 1. law also after an oath is taken of the trueth of an Inuentarie and in respect of the proofe is dayly practised For any of the Creditors or Legataries may take vpon them to proue that something is left out of the Inuentarie Which if they doe the heire or executor shall forfeite double as much by that lawe where in this behalfe it hath his place and vse Yet that which in the two former examples is saide of punishing is 1 Alex. in Apostil ad Bartol in l. 1. nu 1. ff de bonis corum c. special vnto those two cases to such like as the law doeth specially so determine of For ordinarily the rule is that if it happen and so fall out vpon proofes afterward that the defendant hath deposed falsly in his personall answeres the cause being mooued by way of litigious iurisdiction thereupon he is not to be punished as a person 2 Bossius tit de