for it in a Spirituall Court But if a man take from the executors goods bequeathed for this the executor must vse his action of trespasse and not sue in the Spirituall Court for 3 2. R. 3. 17. executours can not sue for the goods of their testatour in a Court Ecclesiasticall but at the Common Lawe If 4 T. 18. Ed. 2. testa 6. a testament beare date at Cane in Normandie and be prooued in England the executour may vpon such testament haue action Of legacies or deuises it will be sufficient to touch a few points In the books of the Common Law it is set downe that they 5 37. H. 6. pag. 9. shal be recouered in a Spirituall Court and not in a Court Temporall Therefore 6 H. 8. H. 3. ex Fitzh tit prohib 19. if a termor of certaine land bequeath his croppe and die the Spirituall Court shall hold plea thereof Likewise 7 46. E. 3. fol. 32. where one sued in Court Christian for goods deuised by testament which another claimed by deede of gift and thereupon brought a prohibition and shewed the deed of gift and alledged withall that the defendant was neither executor nor administrator yet because it was by name of a legacie it was adiudged to belong to the Spiritual court by which it was to be determined and the circumstances to be tried whether the deuise were good or not And in respect a man hath such action against the executor for a legacie before the Ecclesiasticall Iudge therefore the 8 M. 20. E. 4. 9. legatarie or deuisee may not of his owne head take the goods or chattels deuised to himselfe out of the possession of the executour And for this also especially because 9 T. 2. H. 6. 15. the Lawe doeth not binde that the legacies shall be assigned payed or deliuered untill the debts of the testatour be satisfied and payed But because 1 Bracton lib. 5. cap. 16. a franke tenement or inheritance deuised is not demaundable in an Ecclesiasticall Court but in the Temporall therefore the 2 Perkins tit deuises legatarie according to the deuise without further assignment or deliuerie may enter into them after the death of the testatour If a man 3 Reg. in br orig pag. 48. b. by his testament do bequeath goods to the fabricke of a Church for this legacie the executors may be sued in court Ecclesiasticall Also if 4 Liberties of the Clergie by the Lawes of the Realme by Iohn Gooddall Printed by Rob. Wier tempore Hen. 8. wardship or chattels reall as a lease be bequeathed by will a man may sue for them in the Court Ecclesiasticall but not so for lands deuised If a 5 Ibidem testatour by his testament doth charge his executors to pay his debts the creditours in respect of such charge may sue for them in the Court Ecclesiasticall When a 6 Ibidem man as I doe interprete it being executour or legatary and so enioyned by will doth refuse to collate or erect a Grammer Schoole and is therefore sued in a Court Ecclesiasticall if he purchase a prohibition the other partie shall haue a consultation Touching committing of administrations by the very statute whereby they were established it is enacted that 7 31. Ed. 3. ca. 11. where a man dieth intestate the Ordinaries shall depute the next and most lawfull friends of the dead person intestate to administer his goods which deputies as they haue action against others in the Kings Court for to recouer the debts owing to the dead so in that Court there lieth action against them for such as the dead did owe but they are made accountable to the Ordinaries as executours be in the case of testament c. And 8 36. H. 6. 31. referente Perk. tit testa when such letters of administration be shewed vnder the Ordinaries seale or when a testament is so shewed a man hath no direct trauerse against it in the Temporall Court That to sequester the goods of an intestate cōmonly called letters ad colligendum belongeth to the Ordinary appeareth by this case If an 9 7. H. 4. 18. Ordinary sequester the goods of an intestate to another man and a third disturbeth here the Ordinary hath an action of trespasse at the Common law though the sequestration be a spiritual acte because he had possession yet he cannot haue an action of debt albeit actions of debt in this case runne against him But if the Ordinary do sequester the goods ex officio or for any contumacie which giueth no possession to him there the Spirituall Court shall haue iurisdiction That diuorces are of Spirituall iurisdiction is apparant by many bookes at the Common Lawe needlesse to be rehearsed but whereas prohibition 1 12. H. 7. 24. lay in Corbets case vpon a suite brought in the Spiritual court to repeale a diuorce and cōsequently to make the issue of the second wife bastards whereupon no Consultation would be graunted which may therefore seeme to make this point doubtful it was not for that the Court Ecclesiasticall might not hold plea of diuorces but the prohibition lay because the title and discent were comprised in the libell and this was agreed to be the cause by the Court and so it is 2 Brooke tit prohib nu 9. reported by Brooke And if a man giue goods in 3 T. 13. H. 3. referente Fitzh tit Prohib nu 21. mariage with a woman vnto the husband if they be afterward diuorced it was holden that the woman diuorced may wel sue for those goods in Court Christian. But if any further doubt should herein vpon the former case of Corbet remaine That statute which 4 24. H. 8. ca. 12. affirmeth that diuorces by appellation were caried forth of this Realme vnto Rome like as other causes Ecclesiasticall of testament of matrimonie of right of tithes oblations and obuentions and appointeth how delegates vpon such appellations made shall determine them all within the Realme doth put it cleare out of doubt Likewise where it is affirmed by a farre elder statute that Ordinaries are 5 18. Ed. 3. pro Clero cap. 2. both to certifie and trie of bastardie and bigamie which for the most part cannot be done without the conusance of diuorces whereupon the former especially doth depend As for 6 Regist. in bre iudicialibus pag. 5. a. 26. a. questions touching Bastardie or Legitimation of any it appeareth that at the Common Lawe they do belong to a court Ecclesiastical and vpon a writ are to be certified into the Queenes Courts by the Bishop If 7 Regist. in bre iudic pag. 53. 2. a man be spoyled of the possession of his wife so farre forth as the Action doth but extend to be restored to her possession it must be handled in a Court Ecclesiasticall notwithstanding 8 Goodall of the liberties of the Clergie by the Lawes of the Realme sayeth Gooddall in
5 44. Ed. 3. 33. benefice a man is to be sued in Court Christian. But this lieth not but where a Clerke is in as an incumbent for if he be in as an vsurper of the Church being full or as a trespasser there lieth action of trespasse and not spoliation But if two 6 38. H. 6. 19. incumbents be in and the one claimeth by one patrone and the other by another there lieth no spoliation but where both claime to be in by one patrone or by meanes of one patrone then lieth action of spoliation and not otherwise For where the right of Aduouson may come in questiō there lieth no spoliation for that cannot goe to a Spirituall Court And againe a litle after 7 38. H. 6. 20. Spoliation and debate vpon an appropriation shal be determined in the Spirituall Court Touching tithes where they are to be sued it appeareth by actes of Parliament thus The 1 13. Ed. 1. ca. 5. Westm. 2. plea for tithes shall passe in the court Christian as farre foorth as it is derained in the Kings court In the next Kings 2 9. Ed. 2. ca. 1. Artic. Cleri dayes thus In tithes oblations obuentions mortuaries sithence they are proposed vnder these names the Kings prohibition shal holde no place 3 Ibidem cap. 5. And againe the Kings prohibition shal not lie for tithes of a Mill newly erected Likewise in the dayes of K. Richard the 2. it is thus 4 1. Ric. 2. ca. 13. conteined in a statute The Clergie complaine for that the people of holy Church pursuing in the spiritual court for their tithes and their other causes which of right ought and of olde times were woont to perteine to the spirituall court and that the Iudges of holy Church hauing conisance in such causes and other persons thereof medling according to the lawe be malitiously endited c. and by secular power oppressed and be forced by oathes obligations and many vndue meanes compelled to ceasse vtterly against the liberties franchises of holy Church It is enacted that such obligations made by violence should be voide and the enditors of malice when the enditees be acquit should incurre the paine of those that procure false appeales c. Likewise the preamble of a 5 23. H. 8. ca. 9. statute in K. Hen. the 8. dayes doeth argue that matters of tithes are to be heard and determined by Iudges Ecclesiasticall The same is also proued by that where in 6 24. H. 8. ca. 12. another statute it is said thus Inconueniences haue arisen by reason of appeales out of the Realme to the See of Rome in causes testamentarie causes of matrimonie and diuorces right of tithes oblations and obuentions And in 7 27. H. 8. ca. 20. the preamble of another statute Deteiners of tithes pursuing such their detestable enormities and iniuries haue attempted in late time past to disobey contemne and despise the processe lawes and decrees of the ecclesiasticall courtes of this Realme in more temerous and large manner then before this time hath bin seene And therefore it 8 Ibidem was then enacted that for subtraction of tithes offerings and other dueties of holy Church the partie grieued may by due processe of the kings ecclesiasticall lawes of the Church of England conuent the person offending before the Ordinarie and also compell him to yeelde their saide duties And likewise for any his contempt disobedience or other misdemeanor vpon complaint to any of the Counsell or to two Iustices of the peace to haue him committed vntill he shall be bound to giue due obedience to the processe proceedings decrees and sentences of the ecclesiasticall court of this Realme And 1 32 H. 8. ca. 7. afterward by another statute of the same King it is enacted that for denying to set out tithes for deteining withholding or refusing to paye tithes or offerings Ordinaries may proceede according to the course and processe of the ecclesiasticall lawes And in the 2 Ibidem preamble thereof it is directly affirmed that by order of the common lawes of this Realme a man cannot haue any due remedie against deteiners of tithes And the 3 2. Ed. 6. ca. 13. like also appeareth by the statute of tithes made in K. Edwardes reigne That which is afore affirmed and determined concerning tithes oblations obuentions and mortuaries may likewise be said of pensions portions corrodies procurations indemnities and other such dueties ecclesiasticall For it is enacted that 4 34. 35. H. 8. ca. 19. for these denied ecclesiasticall persons themselues may make such processe against the person denying or against the Church charged as heretofore they haue lawfully done and as by and according to the lawes and statutes of the Realme they nowe lawfully may doe And the person conuict according to the ecclesiasticall lawes shall pay to the plaintife the things recouered and his costes CHAP. VI. That suites forright of tithes belong to the ecclesiastical Iurisdiction and how farre is shewed out of the bookes and reportes of the cōmon lawe so of places of buriall and Church-yardes and of Pensions Mortuaries Oblations c. THe reportes of iudgements and opinions of the Courtes at the Common lawe conteyned in the bookes of termes and yeeres called booke-cases and other treatises of that lawe are no lesse plaine pregnant in this matter An 5 M. 44. Edw. 3. fol. 32. attachement vpon a prohibition was sued against a plaintife in a Court Ecclesiasticall surmising that he did sue there for hay and money which touched neither matrimony nor testament but vpon shewing the libel which proued it was for tithes oblations a consultation was granted for the spiritual court to proceede And 6 M. 22. Ed. 4. fol. 24. passim alibi where the right of tithes is in question it is triable in the Court spiritual Likewise 7 38. H. 6. fol. 21. so soone as it appeareth that the right of tithes comes in debate the Lay court shal cease shal be out of iurisdiction quod fuit concessum The same is testified in the booke of Assises 1 22. Assis. fol. 75. For if the Kings patentee of tythes renewing in a Forrest that is in no Parish in which case the tythes doe belong to the King haue cause to sue any that ought to yeelde tythes and ought to seuer them from the nine partes such suite shall goe to the spirituall Court In the booke of Entrees in the precedent of a 2 Prohibition consultation 2. consultation graunted it is thus said In causis de decimis de testamento velmatrimonio quando sub eo nomine proponuntur prohibitioni Regiae non est locus And so 3 Bracton lib. 5. cap. 2. Bracton saith Non pertinet ad Iudicem secularem cognoscere de ijs quae sunt spiritualibus annexa sicut de decimis alijs Ecclesiae prouentibus 4 Bracton lib. 5. cap. 16. And againe afterward Mutatur
drawe it to the Common lawe it should seeme by all reason of his owne nature to be a matter belonging to the conusance of a court ecclesiasticall accordingly as alwayes without impeachment it hath bin vsed Yet I finde in the bookes of Common lawe that 3 22. H. 6. 32. an action of the case was mainteinable for not saying diuine seruice albeit it was there confessed to be a spirituall matter What the circumstances and cause thereof was that it was so ruled in that case Quaere It appeareth by the 4 Reg. pag. 56. a. Register that a prohibition being brought vpon a suite in court ecclesiasticall for withholding a Chauntery a consultation was after graunted whereby is affirmed that pro subtractione Cantariae debita punitione pro huiusmodi subtractione the suite belongeth to a court ecclesiasticall and the like therefore must needes be thought of a Chaplaine or Curate not found to say diuine seruice where it ought to be either by composition or by prescription But that parishioners ought to be contributories and may be cited in a cause of contribution towards the reparations of the body of the Church termed Nauis ecclesiae and to the charges of buying and furnishing other vtensiles ornaments and bookes required by lawe to be bought of the common charge doth appeare partly by the Register and partly by Fitzherbert in his noua natura breuium who doeth gather it thence For if saith he a 1 Fitzh no. na br tit Consult fol. 50. Bishop doe cite any of the parishioners of a Church to be contributorie to the reparations of the parish Church or of any Chappell annexed to it if the partie sue a prohibition directed to the Bishop surmising that he is impleaded touching lay fee in court Christian the Bishop shall haue a consultation vpon this matter shewed in the Chancerie on his behalfe And partly also by the Iniunctions which were set out by the Queenes Maiestie in the first yeere of her reigne and are vnder the great seale of England for better record of the matter her highnesse being thereunto authorised by acte of Parliament For in 2 Iniunctions published 1559. these are conteined sundry vtensiles ornaments bookes and other things that by the common cost of euery Parish shal be prouided and from time to time supplied and whether they be wanting or no is to be enquired by ecclesiastical Iudges and the obseruation of the Iniunctions is by them to be vrged against those that shall infringe any of them by processes and censures ecclesiasticall according to the course of that lawe And herein the Iniunctions followe but the Cōmon law For 3 Of the liberties of the Clergie by the lawes of the Realme if a terre-tenant holding land that hath vsually paid for such tenement a pound of waxe or such like vnto the Church doe withhold it the Church-wardens may sue him for it in a court eccles Also 4 Ibidem if a man that withholdeth Church goods doe by his last will enioyne his executours to make deliuerance any of the Parish may sue the executours for them in court ecclesiasticall For proceeding ecclesiastically against refusers to contribute vnto the reparations of the body of the Church there remaineth a iudgement in a consultation 5 Reg. pag. 45. 2. recorded in the Register to this effect viz. vobis significamus quod super reparatione emendatione defectuum corporis ecclesiae iuxta consuetudinem approbatam facienda procedere poteritis ea facere quae ad forum ecclesiasticum noueritis pertinere dicta prohibitione non obstante And by reason of defectes in reparations of a Church money it selfe may lawfully be sued for in a court ecclesiastical as 6 Reg. pag. 48. 2. appeareth by another consultatiō in the Register And so is it also prouided by statute in this behalfe amongst other things viz. 7 Circumspectè agatis 13. Ed. 1. Prelates may punish for leauing Churchyards vnclosed or for that the Church is vncouered or not conuentently decked in which cases none other penance can be enioyned but pecuniarie CHAP. VIII Proofes in generall that sundry crimes and offences are punishable by ecclesiasticall Iurisdiction and namely idolatrie heresie periurie or laesio fidei and howe farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments LAstly doe followe the testimonies of the lawes of the Realme for proofe that many crimes also and offences are punishable by iurisdiction ecclesiasticall and first in generall then in particular for sundry of them The King writ thus to his Iudges 1 Statut. Circumspectè agatis 13. E. 1. vse your selues circumspectly in all matters concerning the Bishop of Norwich his Clergie not punishing them if they holde plea in court Christian of such things as be meerely spirituall that is to wit of penance enioyned for mortall sinne c. In hospitals 2 2. H. 5. ca 1. that be of any others foundation then the Kings it is enacted that Ordinaries shall enquire of the foundation erection and gouernance of them and of all other matters necessary in that behalfe and thereupon make thereof correction and reformation after the lawes of holy Church as to them belongeth In the statute of Citation it is permitted that a man may 3 23. H. 8. ca. 9. be cited out of the Dioeces where he dwelleth when some spirituall offence or cause is committed and done or omitted neglected or foreslowed to be done by some hauing spirituall iurisdiction In a statute of K. Edward the 6. 4 1. Ed. 6. cap. 2. Causes of correction be reckoned as ecclesiasticall which statute though it be repealed for the principall purport there of being touching Ordinaries seales and names not to be vsed any more in their citations and processes yet it bringeth sufficient euidence that sundry matters of correction be of ecclesiasticall iurisdiction And so Bracton testifieth that it was vsed and holden in his time for he saith In 5 Bracton lib. 5. cap. 2. causis spiritualibus vel spiritualitati annexis vt si propeccato vel transgressione fuerit poenitentia iniungenda iudex ecclesiasticus habet cognitionem quia non pertinet ad regem iniungere poenitentias nec ad iudicem Secularem The sundry consultations set downe in the Register do shewe that whē the proceeding is ad correctionem animae for some sinne not punishable in the Temporall Court the conisance is Ecclesiasticall One 1 Regist. 45. a. b. example shall suffice viz. Nolumus cognitionem ecclesiasticam in ijs quae ad forum ecclesiae maximè ad correctionem animae pertinent contra iustitiam impedire But to descend to more particulars and first concerning those which are contrary Pietati in Deum That idolatrie is punishable by Iurisdiction ecclesiasticall appeareth by the statute 2 5. Eliz. cap. 23. De excommunicato capiendo afore alleaged and touching Heresie
assises and the other booke case of 34. H. 6. both which admit a party to sue in the Court ecclesiasticall do seeme to me only therefore to reiect a partie and to require proceeding ex officio Iudicis because it was presumed that a party would not prosecute to haue the sinne alone punished but rather for satisfaction of the thing promised to him Yet this in truth may be otherwise by the law ecclesiasticall So that vpon all that which hath herein bin last spoken it might probably seeme to some that punishment of periury or breach of faith euen arising vpon a temporall cause should be still by the Common law of ecclesiasticall conisance so that penance for the sinne be but enioyned and no temporall amends required which doubt is to be referred to the reuerend Iudges resolutions That disturbance of diuine seruice is also punishable by iurisdiction ecclesiasticall the statute thereof made in the time 3 1. Mar. cap. 3. of Q. Marie doth prooue for though it do prouide punishment temporall therefore yet it reserueth the iurisdiction that Ordinaries had for punishment thereof by lawes ecclesiasticall Not to frequent or come to diuine seruice at times appointed is declared to be subiect to proceeding and censures ecclesiasticall aswell as to other punishments by the statute 4 1. Eliz. cap. 2. for Vniformitie of Common prayer and so is both that and neglect of the Sacraments by the statute De excommunicato capiendo heeretofore often alleged prooued to be of Ecclesiasticall conusance Long afore that statute vpon a prohibition brought a consultation 1 Reg. pag. 50. a. b. was granted whereby the Ordinaries proceeding ex officio against one that refused to receiue the Communion is allowed and warranted And so doth the litle 2 Goodall of the liberties of the Clergie Treatise of the liberties of the Clergie report this offence to be of Ecclesiasticall conusance Thus much touching offences ecclesiasticall being referred to impietie towards God CHAP. IX That simony vsury defamation or slander beating of a Clerke sacrilege brauling or fighting in Church or Churchyard dilapidations or waste of an Ecclesiasticall liuing and all incontinencie are punishable by Ecclesiasticall authority and how farre AMongst such crimes as be offences against iustice I do place simony first as participating also not a litle with the former sort yet rightly sorted hither because it is as a buying and selling of such things as be not in trueth res mancipi as the olde Romanes spake things lying not in commerce betweene men to be bought and solde This fault the said 3 Ibid. in fine statute De excommunicato capiendo sheweth to be punishable by iurisdiction ecclesiasticall That vsurie is likewise it doth appeare by authoritie of diuers Parliaments The king and his 4 15. E. 3. cap. 5. shall haue the conusance of the vsurers dead and the Ordinaries of holy church shall haue the conusance of vsurers on liue as to them apperteineth to make compulsion by the censures of holy church for the sinne and to make restitution of the vsuries taken against the lawes of holy church By annother later act made against vsurie 5 11. H. 7. cap 8. there are reserued to the spiritnall iurisdiction their lawfull punishments in euery cause of vsury And so is it expresly also mentioned in the aforenamed statute De excommunicato capiendo but this iurisdiction is since somewhat restreined because 6 13 Eliz. cap. 8. vsurie can not now therby be punished nor corrected except it reach aboue the rate of tenne in the hundred by yere By a consultation in the 7 Reg. pag 49. b. Register which was granted in allowance of proceeding against one for his vsury it is thus sayd in this behalfe Quta in articulis Cleri continetur quòd si Praelati imponant alicui poenitentiam pro peccato prohibitioni nostrae non est locus vobis significamus quòd ad correctionem animae praefati S. in hac parte viz. pro vsura dum tamen nihil aliud attentetis quod cedat in laesionem dignitatis nostrae in curia Christianitatis procedere poteritis prohibitione nostra non obstante But this fault sinne of Vsurie is mixti fori that is to say in some respect is of temporall in other regard of eccllesiasticall conisance not only by the statutes of the Realme as you haue heard but also euen by the law ciuill albeit in a diuers sort For in countreyes where that law hath place if it be 1 D D. in l. Titia ff soluto matrimonio called in question whether a contract be vsurarious or not the court ecclesiasticall doth determine this but for to pronounce such a contract void and to execute that sentence belongeth to a temporall court For cause of defamation it is 2 Stat. circumsp agatis 13. Ed. 1. recorded by an olde statute that it is alreadie granted it shall be tried in a Spirituall court And againe In 3 Artic. cleri 9. Ed. 2. cap. 4. defamation prelates shall correct by penance corporall the kings prohibition notwithstanding but if the offender will redeeme the penance with money the prelate may freely receiue the money though the kings prohibition be shewed By the preamble also of the statute for 4 23. H. 8. cap. 9. citations it is plainely argued that defamations belong to the comsance of iurisdiction ecclesiasticall so they be duely and according to law prosecuted Also by the bookes of Common law it appeareth throughout the arguments made in the great case of prohibition in the time of 5 T. 12. H. 7. fol. 22. Henry the seuenth that the suite for defamation belongeth to ecclesiasticall iurisdiction for there aswell by those Sergeants that stood against the consultation as the others and by the Iudges also that granted the consultation the originall cause being defamation it is yeelded that the punishment of slander or defamation is belonging to the Spirituall law Whereas there is a Prouinciall constitution that decreeth a slanderer or defamer of another to be ipso facto excommunicate this is allowed by 6 Reg. pag. 49. a consultation in the Register vnto a court ecclesiasticall And it is there added to this effect viz. Si in causa diffamationis ad poenam canonicam imponendam agatur tunc vlterius licitè facere poteritis quod ad forum ecclesiae noueritis pertinere prohibitione nostra non obstante One that sued 1 Reg. pag. 51. 2. another in a cause of diffamation in court ecclesiasticall was there condemned in expenses to the defendant who was absolued for that the plaintife failed in his proofes The plaintife to hinder the execution of the sentence and to escape without expenses procured a prohibition Yet vpon debating of the matter a Consultation was herein also awarded So that wee see both the Principall and the Accessarie cause to be of ecclesiasticall conisance If saieth 2 Liberties of the Clergie by the lawes of
the Realme the Treatise of the Liberties of the Clergie a man defame or publish one for false an adulterer or vsurer he may be sued in court ecclesiasticall And another Treatise published also in king Henry the 8. time by a common Lawyer saieth thus 3 That the bishop of Rome c. cap. 3. printed by Berthelet In some cases of diffamation and slander the kings courts and in some cases the Clergie haue holden plea thereof Therefore I doe the more maruell the lawe being so plaine at the Note that is set 4 Nota in Reg. pag. 54. b. downe in the Register touching this matter viz. All the Iustices are against a Consultation in a case of diffamation which is spoken indistinctly and indefinitely and therefore more generally perhaps touching any diffamation what so euer then the Iustices meant or then by Statutes and lawe may be warranted It may be that a booke case of Henry the 4. gaue occasion of this mistaking being not throughly weied for at first sight it seemeth to sound as if no diffamation at all were of ecclesiasticall conisance And so 5 Tit. Consultation nu a. alibi euen Brooke in his Abridgement seemeth to take it But the trueth is by that case is onely meant that such diffamation as ariseth vpon a Temporall matter is not of ecclesiasticall conisance which is the first exception of the generall rule set downe in the Statute of Circumspectè agatis where is sayd that diffamation shal be tried in the Spirituall court And that the said case is to be restrained to such diffamation onely will appeare most plamlie to him that considereth the scope of 6 M. 2. H. 4. fol. 15. Hankefords argument The Vicar of Saltashe had giuen an othe before the Popes Collecter in confirmation of an obligation by him made The Deane of Windsor sued the Vicar before the Collecter prolaesione fidei the Vicar purchased a prohibition Hankeford to maintaine this prohibition argueth that the periurie couldnot bee sued in an ecclesiasticall court for that it arose vpon a temporall cause Adding for proofe of his saying that himselfe had a matter vpon the like reason ruled for him and against the Archbishop of Canterbury H. 14. Edw. 3. par attachment sur Prohibition c. de ceo que il suist en court Christian pur diffamation The matter then was not ruled against the Archbishop simply for suing diffamation there but of such a kinde of diffamation For else this would not haue fitted the purpose of Hankefords argument because hee hauing to prooue that laesio fidei arising vpon a Temporall cause might not bee sued in an ecclesiasticall court could not make any colour of that assertion by alleaging of a iudgement that no diffamation at all might bee prosecuted there for that is not the like reason And therefore as that laesio fidei arose on a Temporall cause so did the diffamation there spoken of for which a prohibition did lie without Consultation That diffamatorie words touching a temporall cause may not be sued in court ecclesiasticall we haue also a prohibition 1 Regist. fol. 42. b in the Register without any Consultation granted For whereas one gaue witnesse in an Inquisition made by the king about his exchange in Yorke the partie touched sued the witnesse for diffaming him in a court ecclesiasticall whereupon the witnesse brought a Prohibition by reason the matter was a Temporall cause By Statute likewise it is 2 Ed. 3. c. 11. enacted that a Prohibition shall lie if a man be sued in court ecclesiasticall for diffamation in that hee endited the other I finde also another cause why some diffamation may not be sued in a court Ecclesiasticall and that is when action therefore lieth at the Common lawe As 3 P. 18. Ed. 4. fol. 6. where a man brought Action of trespasse for goods taken away the defendant hereupon sued him in a spirituall Court for diffamation But Hussey the kings Atturney in behalfe of the Plaintife desired a Prohibition because the plea in Court Christian was mooued the suite hanging there and had it graunted Quod nota So if I be robbed and speake of him that robbed mee before others so that hee sueth mee in a spirituall court for diffamation there lieth a Prohibition because I may haue an Action at the Common lawe videlicet mine appeale of the robberie There be also in the booke of 1 Booke of Entries tit Prohibition Entries precedents of Prohibitions granted agaynst those that for diffamation prosecuted such in court ecclesiasticall as sued them in temporall courtes for maime and for forging of euidences So that wee may conclude this point that out of the cases excepted the rule of Circumspecte agatis and Articuli Cleri for diffamation to bee of ecclesiasticall conisance hath place euen by allowance of the common lawe There resteth yet one point belonging to this place fit to be cleared There is alleaged for other purposes by the Note-gatherer a little olde printed Treatise Concerning the power of the Clergie and lawes of the Realme In which the Statute of Circumspectè agatis both here and elsewhere by me alleaged is auouched to bee no Statute but a bare constitution The words 2 Of the power of the Clergie and lawes of the realme cap. 8. bee these Wee neuer sawe any proofe that Circumspectè agatis was a Statute or taken out of the kings answeres and there bee in the sayd treatise diuers things that bee directlie agaynst the lawes of the Realme as it is in this point That Prelates for fornication auouterie and such other may sometime assigne bodilie paine and sometime pecuniarie payne And the lawe is that Prelates shall neuer assigne pecuniarie payne for correction of sinne but onely at the desire of the partie And also it is recited in the sayd Treatise that if the Prelate of any Church or his Aduocate aske of the person a pension that the suite should bee in the Spirituall Courte and the lawe of the Realme is euen to the contrarie And we thinke that if it had bene a Statute that the lawe should neuer haue bene vsed therein so directlie agaynst the Statute as it hath bene vsed And in the nineteenth yeere of King Edward the third in a Writte of Annuitie brought in the Kings Court against the sayd Article of the sayd Treatise it is sayd that the sayd Treatise is no Statute but named so to bee by the Prelates And also the sayde Writte of Annuitie is iudged to bee maintenable in the Kings Courte and that is directlie agaynst the Treatise of Circumspectè agatis wherefore wee thinke it is no Statute The verie like wordes are also vsed I thinke all by one Author in 1 Ibid. cap. 8. another Treatise of constitutions Prouinciall and Legatine Nowe in that to prooue it no Statute he saieth There bee in it diuers things directly against the lawes of the realme seemeth to me a strange reason As
in it selfe and therfore it is a contempt to sue against it In a prohibition we are to consider In what matter it lieth not at what time it lieth not where and when it lieth how it ceaseth or looseth his force For the first it is 2 18. Edw. 3. pro clero ca. 5. prouided by statute and the king there determineth thus that no prohibition shall goe out of the Chancerie but in such case where we haue the Conisance of right ought to haue And therefore Thirning 3 M. 2. H. 4. fol. 15. said when we see the iurisdiction belongeth not to vs wee will graunt a Consultation So that if the matter be meere Ecclesiasticall there lieth no Prohibition Touching the second point it seemeth a Prohibition is not to be granted till by sight of the Libel there appeare cause to grant it For 4 31. H. 6. fol. 14. Henkstone held that by the statute de Regia prohibitione de coniunctim fe offatis in fine a man shall not haue prohibition antequam lis sit contestata in curia spirituali which is till a libell be put in and the partie put to answere it this is to be certified to the Chancellor by the view of the Libell which Fortescue granted But this hath two exceptions one is when the copie of the Libell contrary to the Statute 2. H. 5. is denied for vpon this cause I finde a 1 M. 4. E. 4. fol. 37 prohibition granted that the Ordinarie should surcease till the copie of the Libell according to that statute were deliuered another exceptiō is in some court where a surmise is made that the suite in trueth is for some other matters then are expressed in the Libell for Brooke reporteth that 2 Brooke tit prohib nu 17. a man may haue a prohibition in the kings Bench vpon such a surmise as for example by surmising the suite to be in deede for great timber though it bee demanded in the Libel vnder the name of Sylua caedua but he saith it is otherwise in the Common Pleas. Touching the third point for what causes a Prohibition is granted I find it may be granted either in respect of some of the parties to the sute or in regard of the Iudge before whom it is or for the very matter handled For the first of these three If a 3 T. 12. H. 7. fol. 22. Parson of a Church do sue another Parsons farmour or seruant for right of tithes being not such as can trie the right of tithes Fineux held that a prohibition may be granted Here of see further in the 6. chap. afore Touching the second it may be granted either for the Iudges contempt as in not deliuering copie of the Libell as is afore touched or for that he hath not in deed any iurisdiction for so it was iudged by Hankeford and by the whole Court as it seemeth in the vicar of Saltash his 4 M. 2. H. 4. fol. 15. case being cōuented before the Popes Collector Though a Consultation did otherwise lie the court wil not grant it to one that hath no iurisdiction in right Concerning the third and last poynt of the three if the matter bee Temporall that is such as 5 Stat. de consultat 24. Ed. 1. there lieth redresse for by some Writte in the Chancerie then there lieth a Prohibition as seemeth by Statute to which agreeth the 6 Lib. 2. ca. 24. place before alleaged out of the booke of Doctor Student Yet this hath also two exceptions one is whereas the Spirituall Court holdeth Plea quite to another end For 7 Artic. Cleri 9. Ed. 2. cap. 6. when one the selfe same case is debated before Iudges spiritual and temporal as for beating of a Clerke there the statute is that notwithstanding the spirituall iudgement the kings Court also shall debate it For both these conisances tending the one to the amends the other to the excommunication may stand together as is shewed in the 8. chapter The second exception hereof seemeth to be 1 T. 9. H. 3. per Fitzh Prohib when one Clerke sueth another in the spirituall Court for the goods of his house for there lies no prohibition as when one Abbot sueth another Secondly a prohibitiō lieth where a matter being at first ecclesiasticall brings at last in debate a meere temporall matter with it to be determined Therefore it was holden that so soone 2 38. H. 6. fol. 21 as it appeareth that the right of tithes comes in debate the laie Court shall cease and be out of iurisdiction and the same law is of the spirituall Court for if it may appeare that the right of aduowson may come in debate although it appeared not at first the spirituall Court must surcease quod fuit concessum This may happen as for example when suite is brought at first for right of tithes and it fals out by depositions or otherwise that the tithes 3 Circumspectè agatis 13. Ed. 1. demanded amount to the 4. part of the benefice by yeere in which case it is determined that the temporall Court shall haue conusance euen as if the right of Patronage were in demand principally Thirdlie a prohibition lieth for such a cause 4 Doctor Student Loco d. as albeit there lie none action for it in a temporall Court yet the matter is such as of custome neuer belonged to an ecclesiastical court As if an ecclesiasticall court would hold Plea against an executor vpon a bare contract made by his testator for neither the court may heare it nor yet there lieth action for it in a Temporall court Fourthlie there lieth Prohibition when the suite tendeth to determine and giue execution in a temporall matter as money c. being due otherwise then by the iudgement giuen in the Court ecclesiasticall Therefore if a composition by indenture 5 11. H. 4. fol. 85. be made by an Ordinarie betwixt two ecclesiasticall persons that the one shall haue tithes the other an annuitie with penaltie for default of paiment the suite for this shall bee at the Common lawe but the suite for any thing that riseth vpon a iudgement giuen in the spirituall Court shal be there per Hill For 6 T. 12. H. 7. fol. 22. though amends bee to bee made by a certaine summe of money this is no necessarie cause to grant a prohibition no more then when the suite is for tithes yet the condemnation in money being the valew of them nor when a penance is redeemed by the partie for money which may be sued for in a spirituall court per Butler Because when an offence is done to a man it is 1 Ibidem reason that he haue amends for it but there can be no more proper amends then money because euery thing may be valued by money per Keble Which they speake to prooue that amends in money may be awarded in an ecclesiasticall Court for Diffamation
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
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
or errour in matter of Religion or doctrine besides that Statute others doe also shew how it is inquirable and punishable by Iurisdiction ecclesiasticall For both the Preamble and Statute of Henrie the fourth and the Statute of Henry the fift touching Heresies doe plainely testifie hereof In the former whereof is said 3 2. H. 4. ca. 15. that the Dioecesans of the Realme cannot by their Iurisdiction Spirituall without ayde of the Royall Maiestie sufficiently correct nor restreine the malice of Heretickes because they goe from Dioecesse to Dioecesse and willnot appeare before the Dioecesans but contemne the keyes of the Church and censures of the same c. And in the 4 2. H. 5. ca. 7. later that the conusance of Heresie errours and lollardies belongeth to Iudges of holy Church and not to secular Iudges And likewise by a later 5 25. H. 8. c. 14 Statute then those whereby it was prouided that euery person being presented or indicted of any Heresie or duely accused or detected thereof by two lawfull witnesses at the least to any Ordinaries c. might by them bee proceeded against c. and none otherwise Neither is it materiall though the said three statutes do stand repealed for they shew neuerthelesse touching Heresie what then was and now is still at the Common Lawe which offence to be still punishable at the Common Lawe doeth also more plainely appeare by the statute of Citations being stil in force For there it is prouided that the said statute notwithstanding 6 23. H. 8. c. 9. the Archbishop may cite and summon any person of his prouince for cause of Heresie if the immediate Ordinarie doe consent or doe not his duetie and that the prerogatiue of the Archbishop of Canterburie shall not be preiudiced by that Statute The like is testified of breach of an oathe and of periurie in an ecclesiasticall Court or matter For after that amongst diuers other matters in the statute of 7 Circumspectè agatis 13. Ed. 1. Circumspectè agatis breache of an othe is mentioned it is thus in the ende added In all cases afore rehearsed the Spiritual Iudge shall haue power to take knowledge notwithstanding the kings prohibition And by the aforesaide 1 5. Eliz. ca. 23. Statute De excommunicato capiendo among sundry other crimes and offences Periurie in the Ecclesiasticall Court is reckoned to be of Ecclesiasticall Iurisdiction And so is it by a 2 5. Eliz. cap. 9. prouiso in the statute against periurie made at the same time By bookes of the Common Lawe I finde two cases wherein breach of othe called laesio fidei in an othe voluntarily taken whether priuately or before an Ecclesiasticall Iudge as was in those dayes much vsed is to be determined in the Temporall and not in the Ecclesiasticall Court The one is such as fell out in the case of the vicar of Saltash who had made an Obligation and had bound it by an othe that he would not goe against it before the Popes collector in England who pretended though vniustly some Iurisdiction Ecclesiasticall in himselfe Against which othe when the Uicar was supposed to deale and was therefore conuented before the said Collector there went foorth a prohibition and no consultation could be obteined For said Hankeford a 3 M. 2. H. 4. 15. Concordat 24. H. 1. per Brooke praemunire 16. Doct. stud lib. 2 cap. 24. man shall not be sued before an Ordinarie for periurie but where the principall matter whereupon the periurie grew was a matter Spirituall or touching it and alledged this reason for else if the periurie should be found against him hee should be straight awarded there to performe the othe whereupon the periurie grewe and where of hee is attainted and so though it were to pay debts he should be there compelled to pay them and hereby Lay contracts should be determined there contrary to the Kings royaltie And againe the same man in the 4 T. 11. H. 4. fol. 241. secund vnam impress 88. vel 85. secund aliam same Kings dayes afterward reporteth that a man had sworne to make a feofment of his land and because hee did it not hee was vexed by the partie in the Court Christian as for the periurie and because such suite shall be as a compulsion to performe a thing touching land and inheritance it was adiudged in such maner as if he had sued for the principall in Court Christian. And the effect 5 P. 38. H. 6. 29. of both these cases is rehearsed with the like reason by Fortescue in the Eschequer Chamber and was expressely graunted by some and gainesaide by none Therefore 6 Fitzh tit proh 12. ex Regist. if a man and his wife doe aliene the right of his wife and the wife is sworne that shee will not sue the Cui in vita and yet after the death of her husband brings the Writte and the other sueth her in Court Christian for breache of her othe shee shall haue her prohibition Agreeable to which is that iudgement long agone that 1 M. 4. H. 3. referente Fitzh prohib 15. if a man sue another in Court Christian pro laesione fidei which othe arose vpon a temporall contract or cause a prohibition lieth And 2 Bracton lib. 5. cap. 2. Bracton that writ in that time saith thus In placito quod pertinet ad coronam dignitatem regis etsi fides fuerit apposita in contractu non propter hoc pertinebit cognitio super principali ad iudicium Ecclesiasticum Hereof he allegeth a reason in another place of the same booke 3 Idem lib. 5. cap. 9. Iurisdictionem regiam non mutat fidei interpositio sacramentum praestitum nec spontanea renuntiatio partium To which resolutions accordeth this booke case In an 4 M. 20. Ed. 4. fol. 10. attachment vpon a prohibition where the plaintife was sued in Court Christian pro laesione fidei in that hee had sworne to pay fifteene pounds and did not Brian held that when the faith is made touching a matter Spirituall then the breach there of shal be punished in a Court Spirituall as if one should sweare to pay me his tithes truely or a woman to marry with me but if the faith be made vpon a matter Temporall then the breache of faith shall not be punished there because they will not assoile him if he be conuict till some Temporall duetie be contented and payed A later Treatise of the Common Lawe made in King Henry 8. his time doth touche this 5 A Treatise that the B. of Rome had neuer Supremacie here by the Lawes of the Realme cap. 1. point thus viz. In most cases of periurie the King and his Courtes haue had the punishment and in some cases the Clergie in their Courtes haue had the punishment by the custome of the Realme onely viz. such as haue risen vpon Spirituall causes Another case where the Ecclesiastical Law shall
not haue conusance of the breach of an othe voluntarily taken is when there lieth an action for the matter whereof the othe was confirmatorie at the Common Lawe therefore it was holden by Brian 6 T. 22. Ed. 4. fol. 20. not long after that if a man sweare to pay twentie pounds that he oweth at a certaine time and pay it not and for the periurie be brought into the Spiritual Court there shall lie a prohibition because saith he an action of debt lieth at the Common Lawe I make this a seueral cause and reason from the former because an othe may grow vpon a Temporall matter which was the former cause and yet none action lie for it And if I promise without any consideration to giue you twentie pounds and binde it with a voluntarie othe it seemeth the Common Lawe will holde it still but pro nudo pacto and so giue none action at all But some occasion is giuen vnto me to thinke that courts Ecclesiasticall de facto howsoeuer de iure helde plea of breach of othe and of faith falsified which 1 Lyndw. in cap. aeterâ—…ae sanctio verbo fidei transgressione de poenis amounteth to asmuch in some respects as breach of a corporall othe euen when such othe or faith voluntarie taken was for confirming of a matter Temporall For this I finde not onely before the Writ was framed de recognitionibus per sacrament a non faciendis de catallis debitis quae non sunt de testamento vel matrimonio but afterwarde also and that aswel by iudgement as by opinions deliuered and reported for booke cases albeit with certaine cautions which shall by the way be touched First then that Ecclesiastical Courtes handled this cause long afore that Writte was deuised I finde in a 2 Prou. Constitutio 〈◊〉 sanctio de poenis Prouinciall Constitution made at a Synode holden at Lambhith vnder Boniface then Archbishop of Canterburie in the time of King Henrie the third Anno Christi 1260. which constitution I doe alleadge not as being of force now for the purport thereof because it aimeth at the bridling of the Kings Prerogatiue and of his Temporall Courtes but thereby historically to shewe what was then held and practised vsually The effect of it to this purpose is that whereas Prelats doe take Conisance of sinnes and of misdemeanours of such as be vnder their Iurisdiction as of Periurie or breache of faith of Sacriledge of violation of Church liberties for infringing of which euen by the Kings Charter graunted to the Church of England such disturbers doe fall into Excommunication ipso facto and of such like causes which be meerely of Ecclesiastical Conisance yet are prohibitions directed foorth out of the Kings Court and Iudges Ecclesiasticall are called thither to answere as if they delt not concerning Periurie and breach of faith but suggesting that they deale touching chattels Therefore a little after is added this viz. 3 Dicta Prou. Const. And if perhaps the King in his attachements prohibitions and summons shall make mention not of Tithes but of right of Patronage not of faith falsified or periury but of Chattelles not of sacrilege or disturbance of ecclesiasticall liberties but of some trespasse pretended to be done by his subiects or bailiffes the â—…edresse whereof belongeth vnto him then let the Prelates aforesaid make knowen vnto him that they holde no plea neither intend to do concerning right of Patronage or chattelles or any other things belonging to his court but concerning tithes sinnes and other meere spirituall matters belonging to their office and iurisdiction and tonching the safety of mens soules c. So that the trueth of such allegation being manifested to the king they thought the plea sound and sufficient to obteinea discharge from such prohibitions c. if they were in those respects onely granted Yea and Lindwood who writ anno 1423 and long after that writ was framed who also by reason he was Officiall principall of Canterbury or Deane of the Arches had good experience in these causes maketh no 1 Lindw ibidem V. periurio doubt but that matter of periury or of breach of faith arising vpon what cause soeuer so farre foorth as it concerneth doubt whether such oath were lawfull or not and doe binde in conscience or not is of ecclesiasticall conisance And therefore teacheth how the libell in that case is to be framed that no cause of prohibition be giuen viz. the partie hath damnably broken his oath made for payment of so much money vnlawfully pretending that hee is not thereby bound or tied The statute Circumspecte agatis saith defamation shal be tried in a Spirituall court when money is not demanded but a thing done for punishment of the sinne and likewise for breaking an oath without distinction whether it arose of a temporall cause or not Since the said writ we haue a iudgement in the very point in the time 2 Lib. 22. Assis. fol. 70. of king Edward the third For if a man demand a debt of tenne pounds before the Ordinarie for that the defendant plight his faith to pay it c. and hath not payd it but broken his faith the Ordinarie cannot enioyne him to pay the debt for sauegard of his faith and if he do he doth it against the kings prohibition But he ought to enioyne him other corporall penance except the partie will willingly redeeme it For so Fitzherbert 3 Fitzherberts Abridgement tit Prohibition num 2. readeth those last wordes of exception more truely then my booke of Assises as it is printed carying indeed therein no sense at all The like appeareth in the reigne of king Henrie the sixt for there it 4 34. H. 6. 70. vt Brooke allegat tit Iurisdiction num 2. was holden that if a man buy an horse of me and sweare vpon the Euangelists to pay me ten pounds for him such a day and pay it not I shall haue action of debt at the Common law and also a citation pro laesione fidei at the Spirituall law and shall not therein offend the Common law because they are diuers things As for opinions afterward we finde it was held by Brian and Litleton in the time of K. Edward the fourth none there gainsaying it that 1 M. 20. Ed. 4. foâ—… 10. in laesione fidei arising vpâ—… a temporall matter the Spirituall court might punish it ex officio but not at the suite of the party To the same purpose also Mordant said in the time of K. Henrie the seuenth 2 T. 12. H. 7. fol. 22. that if a man be sued in a Court ecclesiasticall by a party pro laesione fidei in not paying a summe of money promised there shall lie a prohibition but if the Iudge ecclesiasticall shall do it ex officio then no prohibition shall lie which no man gainsaid or impugned These two opinions lest they should seeme to crosse the former iudgement in the booke of
necessarily to report what is lawe for that Prohibitions are so often reuersed disanulled againe by consultations as might haue happened in this very-matter for any thing that can be certainely knowen as well as in any other such like For the second point that Recognitionem facere simply and absolutely cannot signifie the answere vnto the Libel of the partie conuented nor the deposition of witnesses may appeare because this fourme of Prohibition is said to be formata super Articulis Cleri But out of them no such matter can with any colour be gathered therefore being taken in such sense must needes be a glose besides his text Againe I finde in the fourme of another writ in Fitzherbert where Sacramento recognoscere so being ioyned together 1 Fitzh nou na breu fol. 31. doth signifie a testification by oath Likewise in sundry 2 Reg. in br Iudic fol. 7. a. 12. a. 75. a. writs of the Register recognitio per sacramentū velrecognoscere per Sacramentū is vsed for a deposition vpon oath But where Recognitionem facere without further addition should signifie a parties answere or witnesses deposition I doe not call to minde that I haue read in any so much as pretending to write Latine Howesoeuer it might be shewed in other surely in that Prohibition which is in the Register for auoiding many absurdities it cannot so signifie for the Register reades it that the Sherife shall not permit laye men to come together in any place ad recognitiones faciendas vel Sacramenta praestanda but in those two causes So that by the disiunctiue Vel whatsoeuer recognitionem facere be there neither that may be done nor an oath in any other cause may be taken by any Lay man whatsoeuer though otherwise he were willing For the word Laici is indefinite not restrained to any one sort of Lay men and so that which is here forbidden is simply forbiddento all Lay persons and in al other causes whether they be parties or witnesses willing or vnwilling with oathe or without oathe For in the Prohibitiō there no mentiō is made of that clause which the attachement thereupō doth inserte viz. ipsis inuitis So that if that precedent of Prohibition be of it self perfite this which I haue said doth thereupon necessarily follow But if any thing be to be vnderstood which is not expressed then why may we not for recōciling of Rastels writ this together safely affirme that they be both to be vnderstood of recognitions and oathes giuen in deede in eccles courtes but yet touching goodes chattels no way concerning matter either testamentarie or matrimoniall It cānot be truely said that recognoscere is Sacramentū praestare or recognitio to be the same that Sacramentū ipsū the oath it self This is proued by the precedēt of that very prohibitiō in the Register where they are distinguished as two seueral things with a particle disiunctiue And like wise by the writ in Rastals Abridegemēt for there the recognitiō is forbiddē to be made per Sacramentū therfore not the same but diuerse things seeing no matter is the selfe same thing with that which is but his adiuncte Then being not the same things both forbiddē and presupposing the interpretatiō that is vrged it wil follow that no Lay defendant neede nay he may not recognise though without oath or make any answere at all in any other cause eccles then those two So that there wil neuer be issue ioyned and so no plea ecclesiasticall sauing in those two causes For will any defendant thinke ye make any answere at al either whē a thing is demaūded of him that he list not to yeeld vnto or when he is cited to be punished if neither he neede doe it nor yet may by law though he would But admit the defendant would be willing would aduenture the daunger of lawe for answering to the plaintife ioyning issue with him yet how many such pleas could proceede any further whē no lay witnesses might be vsed either with oath or without oathe to make recognition or to depose And if Rastals writ be law so to be vnderstood as is nowe enforced so that witnesses may not testifie in other causes then those two super sacramenta sua their depositiōs as of men vnsworne must needes be meerely void by al lawes diuine humane So that if the prohibition be not meant of holding plea touching goodes or chattels in other causes it must needes sort to this point that in no cause besides those two any lay persō may by law though he would come to answere or testifie with an oath or without an oath in a court ecclesiastical But this is absurd vnreasonable to imagine and wil be so confessed euen by those who stand in this opinion and therefore that must needes be also absurd whereupon it necessarily followeth For omne verum vero cōsentaneū and by the rule of reason we knowe Ex veris possunt nil nisi vera sequi Nowe for proofe that it is absurd and contrary to lawe thus I proceede No plea can be holden but where there is one that affirmeth and another which denieth that which is affirmed and then either matter of recorde or witnesses must be vsed to proue the intention of the plaintife But in sundry other causes then those two pleas by law may be holden in a court ecclesiasticall as I hope manifoldely and sufficiently is afore shewed in this Treatise and therefore in those other causes Lay men may and ought to answere and testifie which is the contradictorie of that which doeth necessarily followe vpon this their interpretation So that this conclusion being true the contradictory of it is vntrue and then that vntrue also whereupon it is necessarily consequent For as I said afore I trust no reasonable man will conceiue that onely ecclesiasticall men will prooue deteiners of such ecclesiastical dueties and culpable in those offences that are proued afore to be of ecclesiasticall conusance nor yet that they only shal alwayes happen to be present and able to beare witnesse in all those other seuerall ecclesiasticall causes afore touched Furthermore to make it more plaine and to deliuer it in seueralty recognitionem facere cannot signifie in this place the answere of the party conuented For if a lay man against whō there is cause of action vpon some other of the matters ecclesiasticall list not nay if he neede not and which is more if by law he may neither come to the place nor being come may answere either yea or no then could no plea at all in any such ecclesiastical cause be holden If it be said that a Lay man must answere but not by oath in such other cause I replie againe that either the Register hath not the writ aright printed or else this no way can be so meant For by the disiunctiue vel when the proposition is negatiue and prohibitiue as it is here both the one
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
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.
cum traxisset in placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio c. prohibitionem impetrauit We haue further in the Register of originall Writtes to this effect 3 Regist. in Br. origin fol. 57. b. Quatenus ad correctionem animae non placita de catallis debitis concernunt c. licitè ex officio procedere poteritis c. And in diuers other Writs of 4 Regist. in Br. orig fol. 46. qua ter 49. a. Consultation there to this purpose Prohibitionem nostram impetrauit asserens se trahi in placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio c. Inso much that this 5 Regist. in Br. origin fol. 46. b. 49. a. in fine Writ is entituled as by his name thus Prohibitio nostra or regia de catallis c. I finde a Consultation in the 6 Regist. in Br. orig fol. 54. a. Register where is rehearsed that certaine Lay men of Couentree were by compulsories called into an Ecclesiasticall Court as necessary witnesses in trueth in a cause of legacie yet they to auoyde apparance and to obteine a Prohibition suggested that they were drawen into the Court Christian to testifie about chattels and debts not belonging to testament or Matrimony Now if that meaning of the Writ in controuersie which we here impugne were true what needed they to haue mentioned chattels and debts at all for then the other part of their suggestion though false had bene in Lawe sufficient to haue obteined the prohibition viz. That they were called against their wils to testifie in a Court Ecclesiasticall touching matters being neither Testamentary nor Matrimoniall But seeing they were driuen to pleade both it argueth that citing men to take othes and to depose against their wills in any other cause then those two is not simply and absolutely prohibited but for that the matter concerneth chattels and debts and yet is neither Testamentary nor Matrimonial And therefore not that which of late is enforced but this meaning of the Writ by me deliuered is the true interpretation thereof The very Writte it selfe set downe by 7 Abridgement of the statutes Prohibition 6. Rastall at large doth establish this interpretation Rex Episcopo Norwicensi c. salutem Cùm cognitiones placitorum c. super turatis Recognitionibus Laicum feodum contingentibus rebus alijs ac causis pecuniarum alijs catallis debitis quae non de testamento vel matrimonio ad coronam dignitatem nostram pertineant c. for if Iurata recognitio being in the same writ should signifie a diuerse thing then must we needes say that the recital speakes of a matter to be remedied and yet the remedie giuen is of another nature and so not pursuant to the former Furthermore the tenour of that writ runneth to the Bishop of Norwich and to his Archdeacons c. yet those wordes thereof whereupon the doubt riseth are not directed to them as if they should be charged thereby which had bin most apt if any such thing had bin meant not so to cite lay men or that they should not charge them with such oathes or that they should not suffer such Recognitions to be made afore them but it is there saide that the King had commaunded the Sherife that he should not permit quod laici conueniant in aliquibus locis ad faciendas recognitiones c. which vse of the wordes ne laici conueniant and the changing of the persons argue strongly that it was meant of such recognitions of debts and chattels and such oathes as Lay men of themselues were willing ynough to make and therefore had neede of such restraint by the Sherifes authoritie which their voluntarie perfourming thereof without vrging by censures is also argued by that which is there said of the Ordinaries accepting at Lay mens hands of such things viz. vobis praemissa alia consimilia in partibus illis acceptantibus This of their willingnesse without constraint is also prooued by the wordes immediatly following the point in controuersie viz. ne super huiusmodi feodis debitis catallis coram vobis alijs iudicibus Ecclesiasticis in praeiudicium iurisdictionis nostrae regiae ad coronam dignitatem nostram spectantibus subire praesumant Whereby as in a thing needefull Lay men are charged not to dare or presume in any other causes before Ordinaries to make any such Recognition or oathe touching goods or chattels preiudiciall to the Crowne by which wordes this our interpretation is expressely established Nowe if those wordes in the copie of the Prohibition and of the Attachement in the Register shal be obiected against this viz. Ad citationem talis Episc. And those Ipsis inuitis I answere that for many absurdities thereupō following which are afore noted these wordes cannot stand with the writ in Rastall nor with the interpretatiō that is by some of late vrged But vnderstanding them as I declare of citations and compulsories to make answere or testifie by oathe concerning chattels and debtes not belonging vnto matter testamentary or matrimoniall maketh al most aptly to agree together For whether we say that Ordinaries then vsed to cite all in generall of their Dioecesse who had made promises or contractes in lay causes by worde onely or by writing to come and confirme them by their faith giuen or by their corporall oathes before them for better confirmation and securitie of the bargaine as some wise and learned haue thought very 1 Pro huiusmodi rebus per vices trahitis coram vobis Prohibition in Rastall vbi supra probably or whether they be meant of citing parties to put in their answeres by oath concerning such chattels debtes in demaund confirmed by faith or oath giuen or of witnesses being not willing to depose in those causes or of all these three it is assured that he who findeth himselfe grieued thereby wil be vn willing and that albeit the pretence of such Ordinarie be to punish the sinne onely yet hereby per obliquum the conisance of lay contractes wil be drawen to eccles courtes and so the Kings courtes vnto which they properly belong shall thereby be encroched vpon preiudiced But this cannot be truely said touching matters of meere ecclesiastical conisance being neither testamentarie nor matrimoniall though lay men be vrged by courtes eccles to answere or testifie in them vpon their oathes Besides what damage cōmeth to the cause nowe by vs defended if we say that the absurdities following vpō such their interpretatiō being not a fore wel weyed he out of whose copy the Register was printed vnderstāding it as they doe was content to adde those two clauses for an explanatiō of the said writs according to his owne meaning or that he was willing they should so be vnderstood which perhaps enduced him
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
man in a graund Iurie doe the like And what should hinder such a man afterward to giue also particular euidence therof at time of the triall For is there any course more vsuall then for him that preferres vp the enditement giues euidence to haue it found to be also a witnesse to giue euidence of the very felonie c. at the prisoners triall for life and death But if it were true that euery Infourmer prosecutour might be examined also as a witnesse which is very vntrue both by lawe and practice howe could this proue that which he aduoucheth viz. that no challenge against the Accuser is admitted in Courtes Ciuill and Ecclesiasticall seeing both against prosecutors and witnesses by the Ciuill Canon lawes exceptions or challenges may be taken And though it were true that this were generally allowed and were also an inconuenience shall therefore the examining of one for another when he ought not in equitie to be ouerturne all proceeding of office as vnreasonable which is the drift at which he aimeth Another of his Inconueniences hereof is that hereby a Bishop may vpon his owne suspicion supplie the place of an Infourmer a Witnesse and a Iudge That his owne suspicion alone will not serue to open way to such proceeding is shewed afore in the seuenth Chapter And howe the Bishop being Iudge should be vsed as a witnesse in the same cause wherein he is a Iudge there is no colour in al the lawe or practice that I haue knowen or can imagine Except it be in a matter done in his owne presence whiles he sits iudicially and appearing also notoriously vnto others there besides himselfe or espied onely by himselfe Now if the preiudice to the partie be not very great why the Iudge alone aswell as any cōmon person there that might happen to haue heard it or seene it may not be trusted for a sounde witnesse I for my part can see no cause Hath the Note-gatherer neuer heard of a Cut-purse espied by the Iudge himselfe sitting on the bench by him caused to be staied and being endited vpon his relation presently tried and condemned For a third inconuenience hereof hee assigneth that it is a meanes to drawe causes from the Common lawe when neither in the Citation nor Bill men shall knowe the cause why they be conuented and so are depriued of the meanes of suing a Prohibition at the Common lawe This he termeth Addere forum foro Yet enquirie by office prescribeth no such generalitie of Citation And therefore if this were true it maketh nothing against that proceeding But that a Libel doth not conteine the cause of the conuenting is a very strange and no lesse bold assertion If his meaning in this obiection be that a man cannot procure a Prohibition till he haue the copie of the Libell thereby to shewe the temporal Iudge that something is there in demaunde or prosecution that is not of ecclesiasticall Conisance then he might more plainely haue declared it And for mine owne opinion hereunto I wil agree that in most cases the law is so howsoeuer late practice be otherwise For when the ecclesiasticall Iudge denieth the copie of the Libel where he ought not to the preiudice of the partie in this respect then the statute of K. Hen. the 5. and a writ therevpon framed doth relieue him And denying copies of libels needed not to 2. Hen. 5. ca. 3. Register pag. 58. haue bin cōplained of at that time as a grieuāce if the law had bin that vpon the parties owne suggestion only without sight of the Libell the temporal Court might at pleasure award a Prohibition So that this not expressing of cause in the Citation and denying copie of the Libel is so farre from being a meanes to drawe causes from the Common law vnto those Courts that it is of it selfe sufficient to bring thither by Prohibition causes originally being of ecclesiasticall Conisance But what serueth this not expressing of the cause of conuenting if it were so for condēnation of all proceeding by Office seeing this might no lesse happen to be omitted though the prosecution were at the instance of a partie or Accuser Yet further to satisfie both him and others herein Citations in causes Criminall out of ordinarie Courtes Letters missiue and Attachements out of Commission Courtes doe all import that there be misdemeanors of ecclesiasticall Conisance to be obiected against the partie conuented Albeit to expresse al the particulars would be both ouer tedious and chargeable to the subiect and in many respectes inconuenient besides And why should this be accounted any more inconuenient or vnreasonable then writtes of sub poena out of the Starre-Chamber or Chauncerie are which conteine not so much particularitie of the matters obiected as those Citations in ecclesiasticall Courtes In the reigne of K. Hen. the 8. there were contrary writings published betwixt S. German a common lawyer and Sir Thomas More about proceeding onely against heresie ex officio mero and without any of those allowed meanes precedent which by law may open a way to such Enquirie These reasons of Sir Thomas Mores the Note-gatherer assaieth summarily to answere and I minde not to defende further then I finde them coincident with some by me vsed and not fully answered by him And the rather because hauing not Sir Th. Mores bookes in readines with me I cānot know how truely they be gathered for that proceeding of office against other crimes vpon allowed groūdes by lawe may stand sound and good though all that which Sir Thomas More defendeth in dealing against heresie without Presentment fame c especially where the penaltie is so grieuous were to be condemned for vniust and vnequall Sir Thomas More in iustification of such proceeding against heresie alledgeth the like course to be holden in ministring of temporall Iustice viz. that Iudges vpon secret information binde a man to his good abearing and awarde out a Writ to enquire De gestu fama against any man whome they please and that the Lorde Chaunceller vpon like secret information putteth men out of Commission For answere of these the Note-gatherer saith thus But they doe not without matter prooued put a man from his free-holde or in danger of life losse of goods c as Ministers be depriued and put from their freeholde By which his answere appeareth that he yeeldeth these obiections in facte to be true and the consequence cannot be denied For if the same course be iust and reasonable in them why should it be vnreasonable in others As for the grieuousnesse of the penaltie surmised to be in the one greater then in y e other this is not material to make it of iust vniust For Magis minus non variant speciem more or lesse makes not things to be of diuers kindes And what will he say then against that Criminall proceeding of Office where neither life free-holde nor goods is called into question Shall that then in his
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.
vpon view of his proofes for them which shall followe I would the Reader might be pleased to consider whether I had not iust cause to put them downe for bare affirmations vnaccompanied in trueth with any reason Fourthly those booke cases are brought to shewe that the common lawes yea the common wealth it selfe hath euer reiected and impugned this maner of swearing whereof wee nowe intreate as a thing vnlawfull and iniurious But this last wee may not so easilie yeeld vnto him without betraying the trueth as we yet verily take the matter The examples then which hee bringeth in proofe of those conclusions and withall to shew how oathes bee ministred at the Common lawe are of witnesses deposing betwixt Prince and subiect or betwixt subiect and subiect of defendants waging their lawe in personall actions with two other swearing with them which wager is neuer admitted where there is witnesse though but one or matter of recorde or the parties owne hand writing of a tenant in a reall action waging his lawe of non summons for safegarde of his lande as hauing none other way to relieue himselfe agaynst the false returne of the Shiriffe Of examining the garnishours returned when the plaintife recouereth in a Scire facias by default vpon an action of deceipt brought by the defendant agaynst the Shiriffe and of a Tenant in a Praecipe of land casting an Essoigne of the Kings seruice where the Essoigner shall sweare that it is no fained excuse Out of these being graunted vnto him I trust neither hee nor any Logician in the world shall be able euer to drawe any sound reason so much as agaynst those generall and Catholique oathes with which throughout hee chargeth Ecclesiasticall Courtes howbeit very vniustly but much lesse agaynst those speciall oathes of defendants in some criminall cause whereof wee here intreate for the reason from these must thus of necessitie be gathered these oathes are vsed and are lawfull therefore the vse of oaths in any other sort is vnlawfull Therefore to presse vs yet further by some examples out of that lawe hee saieth It hath wholy forborne to minister oathes in criminall causes for that in wisedome it was foreseene by reason of mans frailetie what danger of periurie a man was likelie to fall into for safegard of his life for preseruation of his libertie credite and estimation The great presumption and danger of periurie if a man should be sworne in a cause Capitall vnto him I can easily yeeld vnto and that the sentence out of Iob to that ende is very apposite but for auoyding some restraint of his libertie for a time or for the onely retaining of his woonted credite and estimation that a man which hath any feare of God at all or but any slender sparke of godlinesse and true religion would wilfullie through periurie throwe his owne body and soule into hell neither lawe nor yet any nation in the world that I can reade of did euer presume And if great likelyhood and doubt of periurie be so effectuall a motiue for all wise Magistrates to forbeare giuing of an oath then must he also condemne oaths in most of the sayde examples by himselfe afore alleaged and commended for who is ignorant but that in most men there is more danger of periurie by swearing about debt and detinue to saue their goods then for their goodname as is somewhat touched 1 Vide 3. par c◅ afore Hereupon then all wagers of lawe should bee vnlawfull yea not onely for getting or keeping of goods but especially for lands this danger of mens owne periurie is apparantly great in that it is much more common to suborne others thereunto for this end then for preseruation either of libertie or of good name and honestie when these happē to be likewise questioned so that for danger presumptiō of periurie the tenants oath of non summons who is otherwise to lose his land should not be admitted by his owne reason Againe if this feare and doubt be so forcible and necessary a ground of forbearing to minister oath then what wil the Treatisour say vnto those wagers of law allowed of made as by the bookes 1 M. 8. H 6. fo 15 H. 20. H. 6 fo 16. H. 22. H. 6. fol. 41 of termes yeres doth appeare whereas both the plaintifes were vpon their intention examined by their owne oaths the defendants also were permitted to wage their lawe doe not these crosse-oaths inferre periculū periurij either on the one side or the other seeing thereupon oath may be against oath either directly or by implicatiō much more then any oath doth whether it be general or special in criminall causes that he or others do impugne Furthermore in these wagers of law vpon actions of debt or detinue or in actions reall this danger of periurie is inforced not only by the consideratiō of y e extraordinarie care which most mē haue of keeping or getting goods riches by hooke or crooke but somwhat also in regard of their owne worldly credites and honestie if the retaining of that bee of such moment to induce periurie as the Treatisour imagineth For when one of these defendants hath a good while stoutly publiquely stood in deniall of the matter for which he is sued will he not take it to be a reproch vnto him to haue it discouered by his refusal to sweare that he hath so confidently so long auowched an vntrueth euen to defeat another man of his due and right and therefore by all likelyhood what to auoid losse on the one side and shame or obloquie on y e other wil scarcely sticke to hazard an vntrue oath Lastly it is both lawful receiued by practise also when 2 Brooke titulo Iurisdiction nu 105. Iuries for trials of matters betwixt man and man or vpon life and death cannot agree within the time of the abode of the Iustices of Assises in that Countie that then they shall be caried along with the Iudges in cartes till they shall all condescend agree and in the meane time they are to bee kept from all meate drinke and candle light and may not this course driue such of them as cannot satisfie and conforme their owne consciences to the rest of their fellowes to yeeld at length euen vnto damnable and wilfull periurie rather then miserably to famish and to perish for want of foode We may therefore conclude that euery presumption or perill of periurie ought not to be holden sufficient to take away the vse of oathes otherwise being expedient from amongs the societies of men The Treatisour bringeth one other example of oathes out of the reports of the common lawe it is the vicar of Saltash his case 2. H. 4. by which he saith the vnlawfull imposing of an oath vpon him appeareth But it is not any vnlawfulnesse simply of imposing an oath that there appeareth or which was condemned by deniall of a consultation neither was it imposed but voluntarily
amends to the partie wronged for this belongeth to a Temporall Court 4 Ibid. fo 50. a. b. Vpon a publike fame arisen that a certaine parishioner did with hold his due oblations refused to be confessed to the priest to receiue the communiō at least once a yere the Ordinary ex officio did call him to the intent to inflict some corporall paine vpon him for correction of his soule and this proceeding is there allowed vnto Ordinaries to be of their iurisdiction and lawfull One 5 Ibid. 54. b. 55. a. Lindsey a publike Notary being infamed aswel of a crimeof fornication for so I take it that it ought to be read by him cōmitted as for contēpts done to that court was ex officio proceeded against by y e Deane of the Arches for correctiō of his soule maners both which are there allowed together with such proceeding to belong to y e libertie of the church to eccles iurisdiction In which copie of consultation it is to be noted that towards the end therof also in the title of it in the margent this word defamationis is vsed in steed of the word fornicationis for actions of defamatiō be seldom or neuer sued ex officio but at the instance of some partie grieued Besides mention is there made of committing it within that iurisdiction which in desamation that is not properly said to be committed is not material so the defendant remaine then in that iurisdiction and therefore where in the beginning of that Writ the wordes are printed Super formationis c. and conuerso which hath no sence nor yet is any Latin no doubt it ought to be super crimine fornicationis c. commisso As for the 1 Ibid. fol. 45. 〈◊〉 crime of fornication it is twise besides noted by the Register that Ordinaries proceeded against it in that forme In the first wherof it is said that the Ordinary proceeded ex officij debito as bound by his office duty against a chapleine that kept a cōcubine publikely to the danger of his owne soule with scandall of others Therefore this crime was obiected against him ex officio for his correction and for reformation of his maners In the 2 Ibid. fol. 57. b. later of them the Official of Canterb. proceeded ex officio against a vicar for the same crime for contēpts also by him made against that court ad correctionē animae suae And there it is said of both the faults as in al the former cōsultatiōs to like effect that this is cognitio spiritualis quae ad forū Ecclesiasticum pertinet in praemissis And the said writ runneth thus Cùm vos nuper ex officio vestro fama publica referente quod T. c. vestrae iurisdictionis C. in amplexibus fornicarijs tenet ipsum corā vobis in curia christianitatis pro correctione animae suae in hac parte citari feceritis procedentes contra eum ibidem iuxta canonicas sanctiones c. vobis significamus quod in causis praedictis ex officio vestro quatenus ad correctionem ipsius vicarij non concernunt placita de catallis debitis in curia Christianitatis procedere vlterius ibidem pro salute animae suae statuere facere poteritis quod ad officium vestrum speciale noueritis de iure pertinere prohibitione nostra praedicta non obstante So that by these so many precedēts of consultations by citations proceeding against crimes c. being of that iurisdiction by way of inquisition or enquiry by y e authorising of ecclesiasticall iudges in al of thē to proceed therein to do quod ad forum ecclesiasticū nouerint pertinere by the obiecting of the crimes to the parties enquired of ex officio iuxta canonicas sanctiones ius libertatē eccl which maybe by oath in matters aswell prohibita quia mala as mala quia prohibita against lay aswell as ecclesiasticall persons we do conclude gather that by so many iudgemēts of the cōmon law for crimes of ecclesiasticall conisance and consequently in matters neither Testamentarie nor Matrimonial any persons whether lay or ecclesiasticall being vnder that iurisdiction may be cited though against their wils by Ordinaries Iudges Ecclesiasticall ex officio ipsorum mero And vpon apparance may by censures ecclesiastical c. be vrged vpō their oaths vnto examinatiō to answer matter though it concerne their owne crimes And therfore that the lawes of this land do warrāt alow the ministring of that othe wherof we intreat vnto Courts ecclesiasticall We do onely say that the defendant may lawfully be vrged in due proceeding of office to answere concerning some crimes of his owne by vertue of his oathe But according to the Treatisour Note-gatherer and others who seeme to confound all proceeding ex officio with the very ministring of an oathe to a defendant touching a crime obiected against him we might a great deale more peremptorily conclude that if these two as they holde be but in trueth all one thing then wheresoeuer proceeding of office is there such oathe of necessitie must be also ministred and taken These proofes last alleadged are gathered out of Writtes of Consultation after that by the parties conuented Prohibitions had beene brought to remooue the causes from ecclesiasticall Courts And therefore no doubt but that the Lawe before the Consultations awarded was thoroughly debated and that the parties delinquent were cited and proceeded with altogether against their willes For can any be so simple as once to imagine that a man who is cited to answere in a cause criminall and to be punished or corrected for it will willingly appeare and answere if hee neede not to come at all and were therein also by Lawe protected Or that he wil be at cost to procure a prohibitiō to stay the dealing where he is willing enough to be proceeded with But besides allowance hereof by the Statutes and Common Lawe vnto Courtes ecclesiasticall the practise also by time immemoriall hath runne accordingly as may positiuely appeare by Acts of Ecclesiasticall Courts and by way of abnegation may be shewed from the Recordes at the common Lawe In that as I thinke it will not in them be found that any Prohibition hath vpon this point onely beene awarded thence or at least vpon debate for obtaining of a Consultation such hath not stoode nor beene mainteined And albeit either vpon this consideration or some other as weake certaine euill disposed and factious persons haue long agone disputed and maintained opinion against oathes ministred both in Courtes temporall and Ecclesiasticall yet vpon generall mislike of such fond opinions as may be gathered a Prouinciall constitution was then agreed vpon and concluded to make euen all disputations against oathes ministred in either court to be heresie which Constitution I haue not hitherto found to haue bene misliked much lesse condemned at any time since as
viz. that therfore they may not giue oths but as the cōmon law doth wil not any way follow thereupon because the Q. prerogatiue royall and common lawes are so farre from restraining or forbidding these oathes that as it hath beene prooued they allow them and the Temporall Courts in many like cases vse not so much as a different course from this which is in speciall controuersie Now if it shall be said which also some very learned men do hold as the Treatisour confesseth that the Statute law made the first of her Maiestie warranteth and alloweth this manner of oathe then to shew this to be as he conceiueth it absurde hee telleth vs of some other points also defended vpon the generall words of that Acte and of the Commission by the saide learned men which seeme vnto him to be also no lesse absurdities then is the ministring an oath in a cause criminall therfore the one no better warranted thereby then the other for to what other purpose then this he should bring them I cānot possibly cōiecture The first fault he findeth with such learned mens sayings is for that they iudge it to be warranted by the Act and by the Cōmission to put men to othes none accusation sute or lawful informatiō presentment or indictment iudicially preceeding or depending He may father vpon such learned men what he please but is it likely that he himself would thus obiect as if he required bils of Information Inditements as it is at the cōmon law to be vsed also in courts ecclesiastical seing both himselfe and the Note-gatherer do tie the Commission to causes only ecclesiastical and they also to be dealt in only ecclesiastically Such learned mēs sayings may wel truly be defended as namely whē either the offence is notorious or is knowen to the Iudges themselues to be dangerous scandalous to be suffered For these two cases be out of all those that hee nameth yea though he should most vniuersally take suite for any prosecution by another and information for any priuate credible suggestion or denunciation made The second errour which he assigneth to be holden by them is for that secret information may be admitted suppresso nomine notificantis and he calleth such informations secret accusations and the men malicious calumniators adding that all good lawes and well gouerned common wealths haue such hidden backbyters for apparant accusers But if all good Lawes and well gouerned common-weales do indeed hold such men for apparant accusers then doth it follow that when such Information is giuen there is no want of an apparant accusation Yet in very deede euery relation made to a Magistrate by such as will not prosecute nor perhaps bee seene in the cause for some good consideration is not by any law nor in any common weale that I know of holden for an accusation for a malitious calumniation or for any secret backbiting nor yet deseruedly by any necessitie is so to bee accounted For besides other countreys which I haue read of such priuate informations haue oftentimes their manifolde good vse euen in this Realme yea and amongs ech degree of Magistrates And if they should be 1 Vide 2. part pag. 85. wholy reiected or neglected might sometime bring an whole subuersion vnto vs all I pray were those that gaue the first information of Babingtons damnable conspiracie to be misliked as secret backbiters or was the examination of these traitors and the proceedings vniust because the names of the intelligence-giuers were to this day suppressed By this example then you may wey consider of sundry the like Howbeit such informations in ordinarie courtes Ecclesiasticall be not holden for sufficient ground of Speciall Enquirie except they be very frequent and the offence scandalous and in Commssion courtes they bee as rarely receiued as in any courts Temporall of this Realme whatsoeuer and then but from very great and credible persons The third fault he findeth with such learnedmens opinions is that the Iudge may professe himselfe to be an Accuser which lawlesse proceeding the Iustice of this land he saith detesteth for that no man may be accuser and witnes or Inditour and a Iurour therefore much lesse may the Iudge be an Accuser For answere whereof first the lawes ciuill and ecclesiasticall holde not the Iudge proceeding of office to be any accuser but that whereupon the Enquiry is grounded to represent the accusation and so there is no need for them to pleade such plea as he here surmiseth Secondly that an accuser may in some case and sort be a witnes c. is 2 Vide 2. part pag. 110. 111. elsewhere declared and so his antecedent false Thirdly his reason foloweth not for why might not a Iudge be an accuser albeit neither an accuser could be a witnesse nor the Inditour a Iurour Fourthly if it were true that the Iustice of this land and the common lawe did not vse something which an Ecclesiasticall court doeth may it thereupon bee inferred that therein is a contrarietie and thereby for such difference onely a detestation of the other course This maner of reasoning is more cōmon with him others in these causes then any way sound substantial For the one court doeth it the other doeth it not be no contraries nor yet propositions in any other degree of opposition in that subiectum propositionis in both is not the same and therefore doe import no more but a diuersity For is this which is the very like any good reason viz. an Ecclesiasticall court readeth dissinitiue sentences de scripto but a Temporall court doeth it not in giuing iudgement therefore there is contrarietie betwixt these courts so the reading de scripto in a court ecclesiastical vtterly vnlawfull Whereof I thought it not amisse once for all to aduertise the Reader because this erroneous argument is so vsuall Lastly if all these were to be graunted vnto the Treatisour euen as he setteth them down yet what would it auaile his cause For admit these collections were absurdly gathered from the generality of the words of the Act Commission would it therefore folow that authority to minister oaths to defendāts in causes criminal could not thence be argued without absurdities being wholly another point why if euery thing cannot well be inferred thereon may therefore nothing at all be Yet vpon these such like speeches rather thē reasons of his elsewhere by sundry occasions touched the Treatisour wisheth the said learned men wiselier to aduise these Cōmissioners ecclesiastical to respect the ends expressed in the statute viz. the pleasure of God increase of vertue conseruation of peace and vnitie of this Realme rather then the ample and large words of the statute and height of their Iurisdiction as if these ends could not possibly concurre with tender of such oaths But whēsoeuer he or any other learned or vnlearned haue sufficiently indeed prooued that these cannot stand together I doubt not but that the
Interrogatories be vsed and where they are not written there is no possibilitie of knowing all particularly that shal be demaunded insomuch as one question necessarily riseth vpon the answeres that shall bee made to the former I reade a report of the Canon lawe where in an 1 15. E. 4. 〈◊〉 action of debt brought against the husband and his wife for the wiues debt before the couerture the woman without the husband could not be suffered to wage her lawe And is not this oath of the husbands part though lawfull as farre from that assured perswasion of the very trueth thereof and is there not as great want of the husbands certaine iudgement herein as when an oath is taken to answere articles in themselues finite and certaine though particularly not perused by him afore For nothing to the contrary can be heere I thinke alledged sauing that it may bee the husband himselfe had afore the wager of lawe payde the said debt of his wife There is a 2 2. H. 5. ca. 9. statute saith the Notegatherer which requireth a copie of the Libell put vp in a court Ecclesiasticall to be deliuered to the defendant and thereupon is there a writte framed and put in the Register pro copia libelli deliberanda It is very true which by him is alledged the reason was for that the defendants coulde not then procure prohibitions from temporall courtes without their viewe of the Libell which in that respect was sometime by Iudges Ecclesiasticall denied and the lawe as it seemeth was at that time so taken but if the lawe were not onely so taken but so practised still for my part I should hold it more agreeable to reason and that it would preuent many long delayes and other great inconueniences Neuerthelesse when one thing seemeth cautelously to bee in demaund by the Libell and another thing in trueth not incident to an Ecclesiasticall court is vnder hand shot at then and in such case only vpon apparant probabilities thereof shewed vnto the temporall Iudges it cannot be thought inconuenient for them to graunt a Prohibition yea though the Libell be not viewed afore by them nor cōteine expresly any matter belonging to a temporal court But seeing the statute speaketh but of a Libell it cannot be extended to all articles or Interrogatories whatsoeuer ministred in a Criminall cause especially where there is no likelyhood or colour but that the cause is meerely Ecclesiasticall or where it is handled by vertue of Commission vnder the great Seale of England grounded vpon the statute For if her Maiesties Supreme Royall auctoritie and power Ecclesiasticall granted by cōmission to others be as highly vested in her crowne as is her Temporall then will it bee probably gathered both of them being in their seuerall kindes supreme and the exercise of them cōmitted ouer to others vnder the great seale that the one of them is not to be abridged restrained or controlled by the other In 1 Gen. 21. V. 23. Scripture by the oath that Abimelech ministred to Abraham and which he tooke appeareth that thereby Abraham was to deale well with him or as the Hebrew word is not to deale falsly orlye vnto him nor vnto his children and that he should deale well both with him and the whole Countrey according to the mercie and kindnesse there shewed vnto him which poynts be of greater largenesse and generalitie then that all the particulars falling vnder that oath can possibly before-thought or called to mind at the very taking of it By Iacobs 2 Gen. 25. V. 33. requiring an oath of Esau for confirmation of the sale of his birthright a thing of greater generalitie yea consequence also then Esau could or did then consider may be gathered that an oath may be ministred though euery particular included therein be not specially rehearsed for this oath was approued and stood ratified The like generall league and couenant that was betwixt Abimelech and Abraham was also 3 Gen. 26. v. 29. 31. made sworne betwixt Isaac and the said Abimelech And albeit it be not directly set downe that the king exacted an oath of the Prophet Ieremy yet we 4 Ierem. 38. ver 14. 15. find a promise of the said Prophets then made after the kings charge was laid vpon him of answering truely what he should aske him yea without expressing any particular matters afore-hand what y e king would aske Yet may we not therefore charge the Prophet to haue done this without faith or foolishly vnaduisedly or without Iudgement And it is sure that a godly man ought to haue no lesse regard to performe what he promiseth to deale truely when by his Soueraigne Prince he is in like sort charged then if hee were to answere it vpon his Corporal oath So that we may conclude that it is not vnlawful or vngodly to take an oath that we wil performe some such matter whereof euery particular is not afore-hand or at the very time remembred vnto vs or then can bee called to minde or knowne by vs in distinct and speciall maner CHAP. XVI That after the partie hath answered vpon his oath it is neither vnusuall vnlawfull nor vngodly to seeke to conuince him by witnesses or other triall if he be supposed not to haue deliuered a plaine full trueth and somewhat also in approbation of Canonicall purgations with answere to the Treatisours obiections against them THeir next exception set out afore in this order to be spoken of which this sorte of men doe make vnto the maner of proceeding Ecclesiasticall being of a thing ensuing after the oath and examination is for that Iudges Ecclesiasticall doe not alwayes rest in that which is affirmed or denied vpon the parties oath but doe oft times proceede to a further enquirie by examination of witnesses vpon the poynts denied by the partie A man might iustly maruell what should mooue them thus to require all other men to thinke so well of their single oathes and especially in their owne cause as if they had some indignitie offered vnto them onely because their owne single oathes are not perfitly beleeued but that proofes by witnesses are after made to conuince them of that which is denied by them But for this they bring also some pretence as for the rest of their opinions out of the Scriptures It is said in the Epistle to 1 Heb. 6. v. 16. the Hebrewes that an oath for confirmation is amongst men an ende of all strife Whereupon they gather that whatsoeuer they shall deliuer vpon their oathes it ought to be finall peremptorie to conclude the cause of necessitie without any more adoe The vse of the oath which is in that place spoken of is especially and most properly appliable to two kindes of oathes The first is an oath Promissorie when for more assurance of the promise to bee kept the parties agree that it shall bee taken which thing is argued by the circumstance of the place as being
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
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
If the shiriffe be too forward so that the bishop feareth that he will deliuer the 7 Nou. nat br pag. 63. 64. h. Reg. pag. 66. b. 67. prisoner by coulour of some writte without taking such caution as may be iudged sufficient then may the bishop purchase a writ to the shiriffe that in no case the prisoner be deliuered except in his presence he offer to the bishop cautionem saltem pignoratitiam at the least a gage or reall caution de satiffaciendo c. But if the Shiriffe shall in deede deliuer him out of prison without such sufficient caution which in the 1 Reg. p. 67. a. Nou. nat br pag. 64. b. Register is thus expressed nulla inde facta satisfactione aut praestita cautione prout moris est de parendo mandatis Ecclesiae in forma iuris then must a Writ goe foorth out of the Chancerie for the new attaching of the prisoner conteining also a Venire facias for the Shiriffe that hee doe appeare and answere his contempt For such his dealing is there sayd to be In laesionem libertatis ecclesiae contemptum manifestum regis Thus much touching the first meanes of deliuerance of a person excommunicated out of prison The other meane for deliuerance of such excommunicate person out of prison is when hee hath appealed to a superiour ecclesiasticall Iudge from the sentence of excommunication giuen against him as vniust or as voyde and erroneous For if hee rest in the sentence giuen then must hee needs submit himselfe and offer caution as afore is sayd But if hee holde himselfe to bee vniustlie delt with and therefore will not submit then ought he not to be enlarged out of prison but vpon Appellation made to the superiour Ecclesiasticall Iudge who is the onely competent and able Iudge in that behalfe to determine whether hee haue bene duelie proceeded with and rightfully excommunicated Iuxta canonicas sanctiones or not as 2 Reg. pag. 69. b. 70. a b. Nou. nat br pag. 64. c. appeareth by sundrie of these Writtes in the Register and otherwise The reasons why such one is not to bee detained in prison that hath appealed from the sentence of excommunication are first because vpon the Appellation the Iudge from whom it was made doeth thereby cease to bee his Iudge in that cause Secondlie for 3 Ibid. pag. 68. a. that the nature of an appellation is to put the Appellant into the same state that he was in before the sentence giuen for the doubtfulnesse that is in the meane time of the validitie or inualiditie of it Thirdlie by reason that where the presence of the Iudge to whom the Appellation is made may be had there the partie Appellant is for the time vsuallie absolued and released from the excommunication Lastlie least by his imprisonment hee bee hindered from the effectuall prosecution of his Appeale which may happen prooue to haue bene iust If allegation bee made to the court in his behalfe against whom the Writte de excommunicato capiendo is awarded and gone foorth that he hath appealed and yet it doe not authenticallie so appeare by publike instrument there shewed yea for the most part euen where such publike instrument hath bene shewed a 1 Reg. 69. b. 70. a. b. Nou. nat br pag. 65. b. c. Writte of Scire fasias first goeth foorth to the Shiriffe that he doe 2 Reg. pag. 70. b. warne the Bishop and him who did prosecute the partie imprisoned to come into the court and there to shew cause why the Shiriffe should not surcease from attaching him or deliuer him if he be afore in prison whiles the matter of the Appellation dependeth In the same Writ also for the most part is conteined that the partie if hee bee taken either shall bee brought 3 Reg. pag. 69. 70. Nou. nat br pag. 65. c. vp into the Chancerie vnder sure and safe gard or else shall find sufficient mainpernors that shall vndertake for him bodie for bodie for his personall apparance in court at the day prefixed also that he shall prosecute his Appeale and that hee shall receiue and endure what the court shall thinke good to order him vnto yea 4 Reg. pag. 70. b. that his mainpernours shall safely euen redeliuer him againe to the prison where he was if it shal happen that the court shall so order it Now if the Bishop when the proceeding was of Office or the partie at whose instance it was doe 5 Reg. pag. 70. a. not come vpon the Scire facias serued at the day prefixed or at furthest quarto die pòst vnto which day the custome of the Chancerie is to continue the Processe thē is the partie to be deliuered out of prison so that it doe first appeare by publike instrument that he hath in deed appealed But if the Bishop 6 Reg. pag. 70. b. Nat. br pag. 65. e. and hee that prosecuted either by themselues or by their Attorney doe come at the day prefixed and hee that was imprisoned or his mainepernours doe not come then a Writ for the reattachment of the excommunicated person goeth foorth to imprison him vntill hee satisfie tam de contemptu quà m de iniuria ecclesiae illata And likewise an Attachment for his mainpernours to be brought into the court to satisfie the King the Bishop and him that prosecuted and to receiue what the court shall further consider And this course of Scire facias before the partie be deliuered doth seeme chieflie to be obserued when there may be doubt made that some cause may be alleaged by those who haue interest why hee should not be deliuered If no such doubt may be made and when by very 1 Nou. nat br pag. 64. e. authenticall publike instruments shewed foorth in court his appellation euidently appeareth there sometimes without any Scire facias first awarded a Supersedeas is directed foorth vnto the Shiriffe 2 Ibid. Nota interlin in Reg. pag. 68. b. Neuerthelesse in this case the partie must within the yeere of his Appeale by witnesses or othe prooue his diligence in prosecuting his Appeale with effect For there are precedents of such Writs in the Register where no Scire facias before the Supersedeas went foorth for any thing that there appeareth viz. Quia C. appellauit A. 3 Reg. pag. 68. a. 69. a. b. Nou. nat br pag. 64. e. sententia excommunicationis tanquam ab iniqua prosequitur appellationem cum effectu proutper instrumenta publica apparet nos nolentes quòd praefato C. per praedictum breue nostrum via praecludatur quominus dictae appellationis suae negotium prosequi possit in forma iuris c. maximè cùm appellantium status debet esse integer ideo pendente appellatione supersedeas c. And thus farre of the second means of deliuering an excommunicated person out of prison But mo or other means then these two for
from his benefice sequestration of a benefice interdiction of some place from hauing seruice or sacraments there administred interdiction of some certaine acte as not to marry whiles a suite matrimoniall dependeth and excommunication the lesse and the greater I doe also finde in writers of the Ciuil and Ecclesiasticall lawes certeine offences affirmed to be of ecclesiasticall conusance which may seeme euen in this Realme to be such albeit I doe not expresly reade them to be so accounted in statutes or reportes of the Common lawes As for violation or perturbation of liberties ecclesiasticall for admitting of excommunicated persons vnto Quaere of these two first named see for the first Lyndwood e. oecernae de poenis verbo regis Angliae action or testimonie in a temporall Court forging of letters and matters ecclesiasticall as testimonials for ordeining c. or vsing and putting them in practice wittingly burying excommunicate persons or notorious heretikes in the vsuall places of good Christians abbettours and voluntary company keepers with persons excommunicate and diggers vp of corpses buried CHAP. III. That matters in the former Chapter adioyned to testamentarie and matrimoniall causes though properly they be not of testament or matrimonie are of ecclesiasticall conusance and howe farre TOuching such as I haue adioyned for necerenesse of qualitie vnto matters testamentarie First a mans last will whereby legacies be giuen but none is therein made executour cannot be called a testament The like is to be said of a codicill and a legacie though it be giuen by testament yet may it also be giuen by such a last will and can in neither case be properly called a matter testamentary because it is but Delibatio haereditatis or successio particularis And by suite for a legacie neither the testament commeth directly and principally to be proued nor yet to be impugned But much lesse may administrations and letters ad colligendum be properly accounted matters testamentarie because they are committed when a man dieth intestate or per viam intestati Besides that the course of graunting administrations was not at the common law but came in by statute long after this writte of Prohibition 31. Ed. 3. cap. 11. whence this controuersie springeth is pretended to haue beene framed As for diuorce which by like reason I ioyned with matters of matrimonie because it tendeth to the ouerthrowe and dissolution of marriage it cannot be termed properly a matter of matrimonie though no man can be diuorced but he which hath beene married no more then blindnesse may be called seeing for that nothing can truely and properly be said to be blind but such as either once did see or by nature of the thing should haue eyes Priuatio enins praesupponit habitum This appeareth also by 24. H. 8. ca. 12. a statute where diuorce is contrediuided and reckoned as a diuers suite from a cause of matrimonie Likewise iactitation of marriage because it tendeth by the intention of him that bringeth the suite to be cleered of a matrimonie or contract matrimoniall that is pretended by the other partie it can no more properly then the former be called a matter of matrimonie As for goods or chattels that are promised with a womā in marriage who seeth not that it is a meere circumstance nothing touching the validitie or inualiditie of a matrimonie yet neuerthelesse I take it no man is so wedded to his opinion that he will deny the conisance of these matters to belong to the Ecclesiastiall iurisdiction aswell as causes properly termed testamentary or matrimoniall But I purpose to make the matter a litle more plaine and withall to shewe aswell when and howe some matters testamentary themselues as the rest annexed to testamentary or matrimonial causes which I finde touched in the lawes of the realme doe belong to the conisance of an ecclesiasticall Court when and howe vnto a temporall Court beginning first with testaments 1 M. 2. H. 3. Fitz. testa 4. These are to be proued before Ordinaries sauing in certaine places where the lord in his temporall Court by custome prooues the testaments of his tenants The Canon lawe doeth not permit an Ecclesiasticall person to declare his will and to dispose of such goodes as he hath gotten by reason of his ecclesiasticall promotions as he liste but they must be left to that Church by which he gotte them But 2 Treatise of Const. prou legatine printed by Thomas Godfrey tempore H. 8. cap. 13. the lawe of this Realme is that Clerkes may make their willes as liberally and freely as any Lay man may and that though they haue them for their spirituall ministration And therefore by reason of this contradiction and repugnancie to the Common lawe such Canons are here of no force nor in practice Touching executours it is sometimes to be determined by the Common lawe in what cases and who may be made an executour for a 3 T. 12. H. 7. sol 22. woman by the Common lawe may make her husband executour of such things whereof she was executour to another before or of a duetie due vnto her before co◅erture or of rent being behinde vpon a lease made vnto her for terme of life or of a lease or of any thing whereof the possession must be attained by action but she cannot make him executour of that which she hath in possession for by the very entermariage the propertie is in her husband albeit by the Spirituall law aswell in the one case as in the other she may make her husband executour which saith Tremayle and Frowicke whether it be their law or no is not to be disputed by the Common law because we are ignorant and cannot iudge what is their lawe And if a man 4 T. 12. H. 7. be cōdemned in costs in a court ecclesiastical after die making an executour by the opinion of King smell it is as good reason to sue the executour in a spirituall cause according to the Spirituall Lawe as to sue him for a temporall matter in the Temporall Lawe Else saith he when an amends is adiudged in a Spirituall court and the partie dieth the ether shoulde be without remedy which were no reason and none did gainsay it But a 1 H. 6. H. 3. referente Fitzh tit prohib 17. man may not sue an executour in a Spirituall Court for the testators debt albeit if the testator enioyne the executor to pay the debt to him hee may then sue for it in Court Spirituall because of the iniunction and promise And this sheweth how an Executor may be sued or not sued in an Ecclesiasticall Court Now an Executor may sue another in a Spirituall Court touching his testatours goods in this case viz. If a 2 T. 4. H. 3 referente Fitzh tit prohib nu man deuise or bequeath corne growing or goods vnto one and a stranger will not suffer the executor to performe the testament for this legacie he shall sue the stranger
the Lay Court should haue iurisdiction betweene them and not the Spirituall Court The last cause of drawing an action for spoliation of tithes from a Court ecclesiasticall that I finde is where the tithes in demand do amount to a fourth part of the yerely commodity of the whole benefice because hereby the right of Patronage may be touched or preiudiced which right of Patronage is to be handled in a court Temporall onely and by no meanes in Ecclesiasticall For so is it testified by 1 Lindwood c. aeternae sanct V. iute-patronatus const Prou. de poenis edita 1260. Lindwood himselfe to be the olde custome of the Realme and therefore the Common law of the land But in another place he seemeth to be of opinion that this notwithstanding no preiudice towards the Patronage can grow though the suite for all the whole tithes and oblations should be prosecuted in court Ecclesiasticall For saith he 2 Lindwood in verbo quarta pars bonorum c. 2. Prou. const de foro competenti the right of Patronage is founded vpon one of these three viz. building founding or endowing of a Church So that the right of Patronage doth no way respect tithes or oblations comming to the Church but rather the building of it the ground whereon it is situate or the endowment as of glebe c. assigned vnto it This he writeth saluo iudicio meliori and vnder the same reseruation I do holde that where a great part of tithes is by suite euicted from one Church vnto another the very patronage it selfe is much preiudiced and endamaged For if the Patron happen to sell it the lesse value the benefice is of the lesse recompence shall he haue for it Besides if 3 Stat. circumspectè agatis a pension be assigned out of the benefice vnto the Patron as it may be 4 Lindwood vbi supra V. pensionem vpon the foundation the more the benefice is empaired the more hard will the pension be to recouer Lastly for somuch as the Clerke presented is by law bound to relieue his Patron fallen in decay in this respect great preiudice groweth to the Patron when a fourth or greater part of the benefice is euicted That which Markham held as is aforesaid viz. that if any part of right of tithes doe come in debate betwixt two Patrons there the Court ecclesiasticall could not holde plea seemeth to be borrowed from a consultation in the 5 Reg. pag. 46. a. Register in these words viz. we being not willing to haue any thing derogated from iurisdiction ecclesiasticall do signifie that you may proceed according to the course of the ecclesiasticall court in the plea aforesaid so as the action reach but vnto spoliation of tithes and not to the aduowson or right of Patronage of any part of the Church sauing that he speaketh of the right of any part of the tithes and the Register goeth to the right of Patronage it selfe of any part of the Church But where 6 Stat. circum spectè agatis a fourth or greater part of tithes c. is not in demaunde betwixt two Parsons of Churches there the Plea goeth to the ecclesiasticall court The 1 Goodall of the liberties of the Clergie by the lawes of the Reà lme booke of Liberties of the Clergie hereof writeth thus one Parson of a Church may sue another in case of spoliation or taking of tithes or pension in court Christian so that the matter in demaund amount not to a fourth part of the value of the Church by reason thereby the right of Patronage seemeth to come in question but if they be both of one mans Patronage they may be sued there to what value soeuer the thing demaunded shall amount vnto That Pensions out of Churches are demaundable not onely by statute but also at the common lawe in a court ecclesiasticall is made plaine by 2 Reg. pag. 47. 〈◊〉 ibid. pag. 53. 2. Goodall vbi supra two consultations in the Register and by other bookes of law But Goodall further addeth that for a pension there lieth also a writte of Annuity at the common lawe so that it is at the plaintifes election where to sue but if there he doe declare vpon the prescription and after he sue in the spirituall court by the name of a Pension the other it seemeth may then haue a prohibition For Mortuaries that they at the common lawe be of ecclesiasticall conisance reade the two consultations in the Register and the other which 3 M. 9. H. 4. M. 10. H. 4. 1. Entres title of prohibition Reg. pag. 45. b. Reg. pag. 49. a. be here quoted And likewise 4 Reg. pag. 50. a. b. for oblations detained which ought saith 5 Goodall vbi supra Goodall to be paid at their vsuall dayes Another thing due to the Minister whereby also he hath a part of maintenance is demaundable and determinable in an ecclesiasticall Court viz. the places of buriall and the Churchyard Touching the first A Parson to an 6 Li. 44. assi pa. 8. assise brought against him for a house did pleade that he was Parson of P. and that to be parcell of his Church by time immemoriall and that there had bin burying of dead bodies whereupon Persey held opinion that the court temporall ought not to take conusance thereof For the second 7 44. E. 3. lib. assi it is a good plea against the iurisdiction of the temporall court to pleade that the land is his Churchyard The true reason hereof I take to be alledged by Bracton because it is dedicated and consecrated to God where thus he writeth 8 Bra. li. 5. ca. 16. Negocium terminabitur in foro seculari si de laico feodo agatur nisi fuerit dedicatum Deo sacratum sic enim res efficietur sacra hoc autem diet non potest de re in liberam perpetuam eleemosynam data For though a thing be giuen in Francke almoigne to an ecclesiasticall person yet it remaineth of lay fee still and is not said to be consecrated to God Therfore 9 19. H. 6. 20. a trespasse done vpon a Parsons glebe land which is a francke tenement cannot be tried in a spirituall court But it seemeth that in a trespasse done in a Churchyard it is otherwise for if a 1 H. 17. H. 3. Fitz. referente tit prohib 26. man take trees that are growing in a Churchyard the Parson may sue for them in Court Christian. Sed quaere And that matters of buriall doe belong to conusance ecclesiasticall is declared by a consultation in the 2 Reg. pag. 52. b. Register very plainely CHAP. VII Ofright to haue a Curate and of contributions to reparations and to other things required in Churches NOwe when a Parish or Hamlet hath right to haue a Curate found in their Chappell to say them diuine seruice If this be denied them and no circumstance otherwise be incident thereto to
decimae inde rectori ecclesiae debitae iniustè detentae non solutae per vos sic interpositi agitur vlteriùs facere poteritis quod ad forum Ecclesiasticum noueritis pertinere That excommunication is a censure Ecclesiasticall almost all allegations afore and consultations in the Register do shew That which next commeth to handling heere is that 6 Const. prou Bonifacij c. a nostris de concess praebendae ibi Lindwood the Parson and Vicar haue the appointing of the Parish Clerke who being so appointed is to haue the customable fees of the Parishioners for his seruice or else he may sue for them in Court ecclesiasticall That Constitution prouinciall calleth these eleemosynas consuetas and I thinke they may be comprehended vnder the word 7 Reg. fol. 52. b. Largitiones charitatiuae for which the Register hath a consultation as being of ecclesiasticall conisance For goods as a pound of waxe c. due to a Church and deteined 1 Reg. fol. 50. b. the Register alloweth the Church-wardens to sue in court ecclesiastical and to procure that the church may for them be againe put in possession Now follow in this place certeine crimes of ecclesiasticall conusance and first such as be contrary to pietie towards God namely blasphemie which 2 c. 2. de maled though in partes on the other side Sea where Ciuill law hath place it be mixti fori that is enquirable and punishable aswell in the temporall as in the ecclesiasticall court yet in this Realme I haue not learned of any punishment thereof or for swearing by any temporall power Also idolatrie and errour in religion which are shewed to be of ecclesiasticall conusance by 3 5. Eliz. c. 23. the statute De excommunicato capiendo Likewise Apostasie from Christianitie which is the highest degree of heresie and therefore subiect to the same Court and penaltie Lastly violation and prophanation of the Sabboth to be punishable by a Court ecclesiasticall both the continuall custome of the Realme and the statute of Circumspectè agatis which doeth allow them to enioyne penance for sinne doeth make very manifest But we are to vnderstand as 4 Lindwood in c. circumspectè de foro competenti V. mort peccato Lindwood also well admonisheth that euery mortall sinne is not of Ecclesiasticall conusance for then faith hee the iurisdiction of the temporall sword were wholly ouerthrowen seeing you could hardly name any cause which vnder colour of the sinne might not be brought vnto conusance ecclesiasticall But the said statute is to be vnderstood of such sinnes the punishment whereof doth belong properly to a Court ecclesiasticall That is all such as I doe gather for which no remedie is prouided at the Common law nor by the same forbidden to be dealt with by a Iudge ecclesiasticall And of this sort is subornation of periurie in an ecclesiasticall court and matter tending to the breach of iustice and vnlawfull sollicitation of a womans chastity drunkennesse and filthie speech referred to the violation of sobrietie Violation of a sequestration or of an interdiction is in this chapter touched afore The hindering and disturbance to carry tithes by wayes due and accustomed is handled in the sixt chapter of this part For sundry crimes the court Ecclesiasticall may enioyne penance corporall but not pecuniarie and if it do there lieth a prohibition 1 Aâ—…tic Cleri 9. Edw. 2. cap. 2. Notwithstanding if Prelates enioyne a penance corporall and the partie will redeeme such penances by money if this money so promised be demanded before a Iudge spirituall the kings prohibition shall holde no place And againe for 2 Ibid. cap. 3. excommunication before a Prelate for laying violent hands on a Clerke where corporall penance is enioyned if the defendant will redeeme it by giuing money to the Prelate or to the partie grieued it shall be required before the Prelate and the Kings prohibition shall not lie Furthermore 3 Ibid. cap. 4. in defamation Prelates shall correct in maner aboue said the Kings prohibition notwithstanding first enioyning a penance corporall which if the offender will redeeme the Prelate may freely receiue the money though the Kings prohibition be shewed And to the same effect there is a consultation in the Register 4 Reg. fol. 53. b. viz. in a plea for recouerie of money promised to a Prelate or to the partie grieued for redeeming of corporall penance imposed for laying violent hands on a Clerke you may lawfully proceed our prohibition notwithstanding When a 5 Reg. fol. 55. a. partie proceeded with for some offence in Court Ecclesiasticall submitteth himselfe to such order as the Iudge shall take with him either at his absolution from the sentence of excommunication or otherwise doth after refuse for such his refusall he may be dealt with and punished in Court ecclesiasticall and may be vrged by censures to performe the order according to his submission which the Ordinary shall set downe Likewise may an Ordinary deale for contempt of his decrees or iurisdiction as may be perceiued both by the said consultation against one Lindsey last alleged and 6 Reg. fol. 57. b. also by another reported in the Register And as Ordinaries may deale in the causes afore specified so may they also in the necessarie accessories and dependences of those causes And therefore they may adiudge expenses against the partie ouercome in law and by censures driue him to payment of them Example heereof we 7 Reg. fol. 51. a. haue in the Register where the plaintife in a cause of defamation failing in proofe was condemned in expenses and could not auoid the paiment of them by the prohibition which he brought therefore in another precedent there it is thus said Iuri est 8 Reg. fol. 53. b. Goodall of the liberties of the Clergie by the lawes of the Realme consonum quod vbi cognitio causae principalis ad forum ecclesiasticum pertinet eius accessorium pertinere debeat Vel sic iuri est consonum quod cui attribuitur cognitio in causa principali eidem attribui debet executio eiusdem And there it is further said to this purpose Si praedicti 40. S. pro misis expensis in causa diffamationis adiudicati fuerint tunc ad executionem inde faciendam licite procedere poteritis prohibitione nostra non obstante Fees due in Ecclesiasticall Courts and Curates and Clerkes wages deteined come next in this place to be prooued of Ecclesiasticall conusance I must confesse that for the two former of these I doe not call to minde nor hitherto finde by turning of my few bookes of the Common law that any thing is written of them Now seeing that from time to time as occasions haue fallen out of due fees there to haue bene deteined they haue bene demandable in the same Court ecclesiasticall without bringing prohibition it is some good inducement to leade vs to thinke that they haue bene without
they doe neuerthelesse without cause refuse to come and to testifie a trueth For then goeth a citation called Compulsories for them sub poena iuris to come and depose their knowledges in such a matter betwixt such parties So that the citation is not ad subeundum iuramentum albeit when they come they are not to set downe any deposition but vpon othe because it is iuris diuini naturalis gentium quòd non credatur testi iniurato Also the Authour of this opinion should haue done well to haue signified whether a Lay man being come thither without citation might then be vrged to take an othe Therefore if the Authour hereof wil hereby maintaine any controuersie against Courts Ecclesiasticall the issue must be either that to make the Defendant put in his answere vpon his othe so farre foorth as he by Lawe is bound or to make witnesses testifie vpon their othe is a thing contrary to the Lawes of the Realme But it appeareth by discourse vpon the former opinion in how many sundry causes of litigious Iurisdiction besides Testamentarie and Matrimoniall Ordinaries may holde Plea by the Lawes of this Realme according to the course of the Queenes ecclesiasticall Lawes That the ecclesiasticall Lawes doe require this course with the cautions aforesaide I thinke no man that knowes any thing in that Lawe will make doubt A Plea is a conflict in cause of Iudgement betwixt one that affirmeth and another that denieth There be but two wayes besides the parties confession which is not properly called a proofe to prooue any thing that is by witnesses or by a publicke instrument called by the Common Lawe matter of Record Now if witnesses might not be vrged to testifie vpon othe in any causes but Testamentarie or Matrimoniall then could no Plea be holden in any other cause when the chiefest and most vsuall meanes of proofe in recent facts be taken away This libertie and priuiledge of holding Plea in the causes afore shewed and in this maner as is now claimed 1 24. H. 8. c. 12. by the goodnes of Princes of this Realme and by the Lawes and customes of the same as a statute rehearseth appertaineth to the Spirituall Iurisdiction of this Realme and hath bene in all ages vsed in Courtes Ecclesiasticall without impeachment as by the Recordes thereof may appeare And therefore vpon any singular conceite newly taken vp by some priuate persons it is not safe to be nowe thus questioned and oppugned There is an olde Statute in force as I take it that may greatly bridle such newe quirkes except men were marueilous well assured of the groundes of so great and so generall an innouation For it is enacted that 2 15. Ed. 3. c. 3. great Officers about the King and in his Courtes of Iustice shall from time to time forwarde bee sworne when they shall be put in Office to keepe and mainteine the priuiledges and franchises of Holy Church c. Can it with any colour be intended that the Common Lawe doth allow Courts ecclesiastical to hold plea in those sundry other causes which we haue hitherto proued to be ecclesiasticall and yet that it wil not allow them any meanes or possibilitie whereby to hold such pleas For if no Lay man might be cited to an ecclesiasticall Court and there ordered to take othe in any other cause then those two then first the partie conuented if by Lawe he needed not would neuer answere to the Libel vpon his othe Yet hath this bene a course continually practised and by Lawe so appointed not onely in Ecclesiasticall but also in all Courtes of the Ciuill Lawe both here and throughout the rest of Christendome Againe if no Lay witnesses may be called to testifie in any other matter then should most men in those causes be hereby either quite foreclosed of their right and many grosse sinnes should passe wholly without reformation or punishment or else all such matters must needes be prooued onely by such witnesses that be of least indifferencie and therefore of least trueth and credite For those men be alwayes most indifferent which either be friendes or at least be no euill-willers to either partie Nowe seeing euery deposition must needes tende to the grieuance or hinderance of the one partie or the other can it be presumed of him which loues both and doth wish alike well vnto them that he will willingly and gratis without any processe come and depose and thereby doe one of his friendes a displeasure there resteth then that onely such will offer themselues to testifie who either be enemies vnto both or friendes to one and either enemies or strangres to the other and howe can these be vpright indifferent witnesses or else such who be meere strangers vnto both sides but it doth most rarely happen that meere strangers vnto both shal be able to depose any thing to purpose and more rare will it be that such will offer willingly of them selues to come in ad testificandum Besides these and many such like absurdities necessarily ensuing this opinion if it be yet still stoode in that the Common lawe permittes compulsion of lay men whether parties or witnesses to take othe in causes testamentarie and matrimoniall but denies it in all other cases let vs consider what may be imagined for a probable reasō of such differēce in proceeding betwixt causes that belong to the conisance of the selfe same courte For I haue read and often heard that the Common lawe is grounded vpon good and sound reason And it cannot be said in this case quamuis durum sit tamen ita lex scripta est for that this is no statute or written lawe but onely the reported opinion of one man whence all the rest haue since taken it Was it then meant to giue vnto subiects an ample meanes of comming by their rightes in these two causes but to restraine or debarre them in al other as namely for tithes and other rightes demaundable in ecclesiasticall courtes or was it the purpose of that lawe to haue men stand conuicted of most grieuous crimes that be of ecclesiasticall conisance as happely of Heresie being neither by them confessed nor yet proued by sincere and vpright witnesses but onely by such as doe thrust them selues in to beare witnesse whom not onely common speach but also sundry statutes doe terme Accusers and therefore doe hold at least for parties and men not indifferent May not many other ecclesiasticall causes be of as great importance preiudice as perhaps a will of goods vnder xl s. or a trifling legacie or a x. pound matter promised with a woman in mariage and if the law had bin so could no man hit of it from the Conquest vntill our fathers time when Fitzherbert writ his nouanatura breuiū was none of skil in Edw. the 1. time to put it into the statute of circūspectè agatis or in Ed. the 2. times to mention it in the statute of Articuli Cleri did none reade
directly moued for the crime and not by way of exception or barre onely witnesses are to be compelled sauing that by later Canons Clerkes were not to be compelled to testifie in causes of blood But if the question be touching a crime by way of exception then either there may ensue thereupon some effect of punishment as vpon excepting a man to be criminous who then is to be preferred to a dignitie to a benefice or vnto orders in which case any witnesse may be compelled to giue testimonie or else no penaltie can thereupon follow as when the exception is taken onely to repell a man from testimonie or accusation and in this case witnesses are not compellable except the partie who excepteth be like to be grieuously thereby preiudiced if his witnesses cannot be gotten to depose There is nothing more conuenient then that euery court should vse his peculiar course of proceeding by that law wherin they deale prescribed And therefore 1 Anton. in c. quod clericis de foro competenti lay mens matters in a Court ecclesiasticall are to be handled according to the maner of proceeding by that law required euen as 2 Bartol in l. 3. § fin ff de testibus clerkes shall and ought to be dealt with in temporall or ciuill courts after the maners and orders of those courts Seeing then compelling of witnesses to testifie is not contrariant repugnant nor yet diuerse from the Common law nor by it forbidden but allowed vnto Ecclesiasticall courts according to the course of those lawes which doe require it as is shewed and no reason or equity leading to admit it rather in those two causes then in others of the same conisance therefore may any witnesses whatsoeuer be vrged to take oath and depose in Courts ecclesiasticall and in other matters ecclesiasticall then either testamentarie or matrimoniall But to descend yet to more particulars the Kings tenants may 3 Artic. Cleri 9. Ed. 2 cap. 12. be cited before their Ordinaries as others Therefore both they and others though Lay persons may be cited in all causes of that iurisdiction neither is it there distinguished whether they come in as witnesses or as parties Also they may 4 Ibidem as others be excommunicated for their manifest contumacie This contumacie after appearance groweth onely vpon peremptorie refusall to performe some decree or commandement of the Iudge as in refusing to be sworne or to be examined being sworne Seeing then for manifest contumacie the Kings tenants or others may be excommunicated and this is indefinitely set downe it will follow that as in any other not performance of the decrees of the Iudge according to the ecclesiasticall lawes so in refusall to be sworne whether he be partie principall or witnes there is manifest contumacie Vbi lex non distinguit nec nos distinguere debemus Particularly in matter of tithes being neither a cause Testamentarie nor Matrimoniall the 1 27. H. 8. contemners of the processe lawes and decrees of the Ecclesiasticall courts of this Realme are by statute condemned but an vrging to answer or testifie vpon oath is a decree of an Ecclesiasticall Court ergo may not be contemned The Ordinarie 2 Ibidem in a suite of tithes for any contempt contumacie disobedience or other misdemeanours vpon complaint may haue the partie committed till he shall be bound to giue due obedience to the processe c. decrees and sentences of the Ecclesiasticall court of the Roalme but requiring a parties or a witnesses oath is such a decree Therefore c. Likewise by another statute 3 32. H. 8. cap. 7. the Ordinarie may conuent for withholding tithes according to the lawes Ecclesiasticall therefore he may conuent and cite a man Lay or other if he be supposed to be a withholder to answere vpon his oath For so is the Ecclesiasticall law Further by that statute the 4 Ibidem Ordinarie may proceed to hearing and determination c. according to the course and processe of the ecclesiasticall lawes but the processe and course of hearing by that law is by the parties personall answere vpon oath if it be required and by compulsories of witnesses to depose by oath as is afore touched Therefore c. The statute of 5 2. 3. Edw. 6. cap. 13. king Edward touching tithes prouideth that both they and the costs charges and expenses in the suite shall be recouered before the Ecclesiasticall Iudge according to the kings Ecclesiasticall lawes but for recouery of them those lawes require in cases aforesaid both oath of partie and of witnesses ergo c. By that statute is established that the 6 Ibidem Ordinarie euen for personall tithes may call the partie afore him and by his discretion examine him by all lawfull and reasonable meanes other then the parties owne corporall oath concerning the true payment of such personall tithes Ergo a corporall oath is in other ecclesiasticall causes a lawfull and reasonable means for exceptions are alwayes of the nature of the rule and should be within the rule if they were not excepted and therefore also in all other tithes as prediall and mixt it is a lawfull and reasonable meanes to put the partie vnto his oath quia exceptio firmat regulam in casibus non exceptis The statute for Vniformity of Common 1 1. Elâ—…z cap. 2. ad finem prayer authoriseth ecclesiasticall Iudges to enquire to take accusations and informations and to punish the breaches of that act c. in like forme as before had bene vsed in like cases by the Queenes Ecclesiasticall lawes but in like cases by those lawes oathes both of parties witnesses haue bene vsually taken Therefore c. One only instance destroyes a generall assertion therefore if there were but any one instance to the contrary an oath by law may be vrged of some lay man in some other cause then testamentary or matrimoniall which being true and the very contradictory of the opinion that is in issue vpon this point betweene vs it must needs follow that the opinion is vntrue and therefore not grounded vpon law Quod probandum nobis proponebatur CHAP. XII The grounds of the two next former opinions examined and confuted THe ground of these two opinions last handled for any thing that I could euer learne doeth only rest vpon a precedent of a writ of prohibition and of attachment thereupon In treating whereof for that I shall be forced to gainsay something that is deliuered by graue learned and wise parsonages I must first protest before God in sinceritic of heart that I do it not calumniandi sed veritatis studio whereof I am something resolutely persuaded in this behalfe I do reuerence and esteeme them that are contrary persuaded being men of great learning in their profession neither contemning nor condemning any so much as my selfe as being most priuie to mine owne wants and therefore I trust something taught to measure my selfe by mine
owne foot Sed amicus Plato amicus Socrates magis amica veritas The copy of this writ I finde reported and set downe in two seuerall books In the 2 Register tit prohib Register contrary to the vse of other precedents there is deliuered but a parcel as seemeth of a writ in two or three lines in these words viz. Rex vicecomiti S. Praecipimus tibi quòd non permittas quòd aliqui laici ad citationem talis episcopi aliquo loco conueniant de caetero ad aliquas recognitiones faciendas vel sacramenta praestanda nisi in causis matrimonialibus testamentarijs T. c. And in the margent thus Prohibitio ne latci conuentant ad citationem episcopi ad recognitionem faciendam But the precedent of attachment framed vpon this writ runneth generally without excepting so much as these two causes euen as if a lay man whether partie or witnesse might not be vrged to answere or testifie or to take an oath except he lust in any cause ecclesiasticall at all For it is 1 Reg. in br orig fol. 36. b. tit Prohibitiones thus viz. Rex vicecomiti Salutem Pone per vadium c. talem episcopum quod sit coram iusticiarijs nostris c. ostensurus quare fecit summoueri per censuras ecclesiasticas distringi laicas personas vel laicos homines foeminas ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis in graue praeiudicium coronae dignitatis nostrae regiae necnon contra consuetudinem regni nostri habeas ibi nomina pleg c. T. c. And in in the margent it is entituled thus Attachiamentum inde Also in the Abridgement of statutes 2 Abr. Rastall cit prohib consult nu 6. gathered by Rastall I do finde a precedent of a prohibition set downe at large mentioning a writ to like purpose to haue bene sent to the shiriffe but none attachment thereupon where of those words rehearsed in the Register though something altered seeme to be a parcell In that point it is thus Rex episcopo Norw Salutem c. Mandauimus etiam vicecomiti nostro comitat Norf. Suff. c. quòd non permittant quòd aliqui laici in Balliua sua in aliquibus locis conueniant ad aliquas recognitiones per sacramenta sua faciendas nisi in causis matrimonialibus testamentarijs Whereby these three varieties do appeare betweene this and the former First that which is said heere by way ofrehearsall that the king had sent such a writ to the shiriffe seemeth in the Register to be set downe as conteining part of the writ it selfe directed to the shiriffe Secondly that which is here recognitiones facere per Sacramentum is in the Register with the disiunctiue viz. ad aliquas recognitiones faciendas vel Sacrament a praestanda Thirdly in the Register these words are added ad citationem talis episcopi That writ which Rastall setteth down at large whēcesoeuer he had it seemeth to be the perfect whole copy of the originall therfore of more credit It is also probable that the gatherer of the Register did abridge out of this Writ at large as hee thought good For in the very Writs that went foorth in deed the copies whereof bee in the Register letters for the most part bee put there in stead of the names of the parties whereas here it is ad citationem talis episcopi talem episcopum without name or any letter for it that might direct men to know of what Writ it was a parcell which argueth it was not verbatim copied foorth of the Writ Howsoeuer it be the one of them must expound the other seeing they concerne one and the selfe same matter In treating therefore hereof I mind first to shew that albeit these words did carie the sence y t is inforced yet it may be that the law is otherwise then y t they are not of that acceptiō lastlie how they are otherwise meant what is that true meaning For the first it is no lawe of necessitie being neither Statute nor Common lawe No statute for it is not in the Parliament rols nor in any printed booke of statutes at large nor in sundrie ancient written copies It is no common law for it is sayd to be formata prohibitio super articulis cleri 1 9. Edw. 2. which is a statute of late time in comparison and the precedent of that Prohibition as it is in the Register printed being vnderstood according to the mind of the Authors of this opinion is contrarie to the generall custome of the Realme For by time immemoriall all Ecclesiastical courts without impeachment haue cited both the parties principall for answere and witnesses also vrging them to depose by oath in all the other seuerall causes also that are prooued afore to be of ecclesiasticall iurisdiction and conusance I haue had of long time an olde Register in parchment written as may be euidently gathered and appeareth by the frame of the hand and letter about king Edward the seconds or king Edward the thirds time In it there is no such precedent of prohibition or of Attachment as either the printed Register or Rastals Abridgement of statutes setteth downe But there are many prohibitions vnto ecclesiasticall courts that run in this sort viz. Ne teneatis placitum in curia christianitatis de catallis debitis quae non sunt de testamento vel matrimonio And the first of this sort is thus entituled in the margent Prohibitio regia de catallis debitis quae non sunt de testamento vel matrimonto One thing besides I find there in mine opinion worth the noting for this purpose yet not obserued in the printed Register For such precedents of Originall Writs as exceeded the memorie of any man at what time they were first drawen framed that old booke setteth downe simply without any addition But if they were of later times deuised then this marke title is giuen vnto them in the margent viz. Prohibitio formata or breue c. formatū Now Rastals Abridgement giueth the like title to the writ wherupon this controuersie groweth viz. Prohibitio formata super articulis cleri which argueth that there is no such original writ of old at the common law but that it was thē newly deuised to meete with a new mischiefe Quae de nouo emergūt nouo indigent auxilio The being of it in the Register doth not make it of necessitie to be law for sundry of those writs were framed of late times as may appeare to any that wil peruse thē vpō particular mēs suits as occasiōs fel forth somtimes perhaps drawn vpō priuate suggestiōs of the counsel of one side though afterward allowed Nay in my said old written Register of writs there is a precedēt which as I take it goeth not now for lawe For there is a direct
writ to the shirifs of London signifiyng that no Clerke though he forfeit his recognizance of statute merchant shal be attached or imprisoned by his body except there bee some cause why hee should not enioy the priuiledge of a Clerke Besides it is no new or strange thing to haue some forme of a writ which is set down in the Register to be vpon better aduise disallowed For I haue credibly heard that it was not long since adiudged that in an action for trespasse done in a warren of Conies a mā might not plead that they were cuniculi sui albeit the Register in that behalfe 1 Reg. fol 102. tit de transgressione frameth the writ so And in the selfe same title whence this forme of prohibition is taken a clause in a prohibition was 2 Reg. fol. 37. reiected by the court For it is said in the margēt Curia noluit concedere istam clausulam in prohibitione but if it were law assured the Iudges would not haue reiected it Fitzherbert who in his booke 3 No. na br fol. 37. G. of Nature of writs was the first that sucked this conceit thence in the selfe same booke touching this rule set downe in the Register viz. notandum est quòd quando rex praesentat vt in iure coronae tunc incurrit ei tempus saieth thus now this rule is not holden for lawe But it will bee said that Fitzherbert himselfe and sundry that follow him since doe hold this point we speake of for lawe This no doubt carieth a great presumption with it that worthily for the worth of the learning iudgements of such men Yet I wil shew that his saying from whom they all since do take it is none vndoubted rule of lawe therefore theirs neither that do gather from him I protest before God I wil not seeke after obiections against his booke but take only such two in stead of mo which I had in my mind because they do touch ecclesiasticall matters He saieth that 1 Fitzh ibid. fol. 269. D. at the Common law an heretike ere he can be condemned must be conuicted of heresie before the Archbishop the whole Clergie of the prouince after abiured thereupon after that of fresh conuicted condemned by the clergie of that prouince this must be in their general councel of conuocation holdeth there that at the Common law a bishop in his dioecesse might not condemne an heretike vntill 2. H. 4. 2 2. H. 4. cap. 15. did giue him authoritie that then he might not be committed to the secular power to be burnt vntil he had once abiured was againe relapsed into that or some other heresie But neither of these points be law so I haue heard the two chiefe Iustices the L. chief Baron some other Iudges the Queens learned councel resolue in a speciall consultation holden about the matter of heresie For albeit the Conuocation may in deed condemn an heretike yet euery B. at the Common law before any statute might at this day may also in his own dioecesse so condemn as the preamble of that very statute makes manifest so by thē all was it then holden for lawe notwithstanding Fitzh opinion there which was fully by thē considered of And albeit it may seeme needlesse yet for further strengthening of these reuerend mens opinions there is a 3 10. H. 7. fol. 17. booke in the very point For it is said that for heresie or any point against the faith the BB. had none other power to bring thē in but to make processe against them by citations vntill the Statute of Heresie 2. H. 4. ergo afore that statute they had power to proceed against heretikes in Ordinarie course of the lawe ecclesiasticall Which assertion the very Note-gatherer also maketh in his title of the lawes of England yet to another purpose howsoeuer in the maine point y t we now treat of he sticke fast to Fitzherbert Likewise 4 Fitzh no. na br fol. 30. F. he saith it appeareth that before the statute made pro clero in the 18. of king Edw. 3. cap. 7. the right of tithes were determinable in the Temporall court of the king and that the lawe was altered at that time herein by that statute Whereas in very trueth there appeareth no such matter other then a grieuance offered in this behalfe to the libertie of the Church which then was determined that it should afterward cease I know that Gooddall writing of the liberties of the Clergie by the lawes of the Realme concurreth in this point with Fitzherbert for thus he writeth It seemeth that before the Statute the right of tithes were determinable in the Temporall courte but that statute hath altered the law So that it may be coniectured the one of them borowed it of the other But this whole doubt whether causes of tithes before that statute of Edw. 3. were determinable in an ecclesiasticall court or no is resolued by a Treatise nipping in trueth wholie at the Clergie and lawes ecclesiasticall and so indifferent an Vmpier as that the Note-gatherer alleageth him for his purposes therefore in this case not to be refused by them who produce him for their witnesse For that 1 Of the power of the Clergie and lawes of the realme cap. 15. Treatise writeth thus viz. Long after that the kings courts of his Bench commō Pleas also all inferior courts were put out of iurisdiction for tithes yet neuerthelesse Writs of Scire facias were commonly sued in the Chancerie for tithes and the defendants were thereupon put to answere wherefore at the petition of the clergie and in consideration of a disme that the clergie grāted to the king it was enacted 18. E. 3. ca. vlt. that such Writs of Scire facias thenceforth should not be granted for tithes And a litle afore 2 Ibidem thus viz. That suites for tithes shal be taken in the Spirituall court is only groūded vpon a fauour that the kings of this realme the whole realme haue in times past borne to the clergie And 3 Ibidem againe in this sort We thinke that the kings courts be put out of iurisdictiō for tithes by a custome of the realme not by the immediate power of the lawe of God Therfore by this mans opinion it is the common law or custome of the land and not that statute which made tithes of conisance ecclesiasticall And in very trueth that tithes were demandable in a court ecclesiastical before this may appeare by statutes afore that time by reports after testifying that the conusance of right of tithes at the Common law is incident to iurisdiction ecclesiastical as in the peculiar 4 Ca. 4 5 6. huius Partis treatise thereof is afore shewed Lastly to shut vp this first point a precedent of a prohibition of all other Writs that can be deuised may with least reason bee said
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
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
and so the iudgement then passed vpon this ground among others as 2 Brooke Consultation nu 5. Brooke testifieth And 3 T. 12. H. 7. fol. 22. there is a great diuersitie betwixt a duetie or summe of money or other things at the first demandable and determinable at the Common lawe and such a summe as before sentence giuen in the Spirituall lawe is not due at all For the first there lieth a Prohibition but not for the second for otherwise it would followe that the spirituall lawe might giue a iudgement which it could not put in execution but this were absurd per Reed Tremaile Fiftlie it is sayd that there lies a Prohibition when the partie sued hath an action giuen him at the Common lawe for the originall and principall matter whereupon the suite at the ecclesiasticall lawe did grow The case was thus Aman 4 T. 22. Ed. 4. fol. 20. reported that the Abbot of S. Albanes did detaine his wife in the said Abbots lodging against her will to the intent to make her his harlot the Abbot hereupon brought his action of Diffamation in the Court ecclesiasticall and the husband his prohibition nowe because the husband might haue his action of false imprisonment at the Common lawe agaynst the Abbot Brian held that a Consultation was not to be graunted de hoc quaere A prohibition ceaseth and looseth his force after a 5 Stat. de Consultat 24. Ed. 1. Consultation be once granted This may bee prooued by the Statute De Consultat for the Chanceller or chiefe Iusticer of the king vpon sight of the Libell c. if they can see no redresse by Writ c. shall write to the spiritual iudges c. to proceed notwithstanding the kings prohibition directed to them before But more plainlie after Where 6 50. Ed. 3. ca. 4. a consultation is once duely granted the Iudge may proceed in the cause notwithstanding any other prohibition thereupon to him to be deliuered so the matter in the Libell be not changed The writ of Indicauit is 7 Fitzh Natur. bâ—… tit Prohibition fol. 45. likewise a kind of Prohibition and lieth especially naturally for a suite of tithes which do amount to a fourth part or aboue of the whole benefice It lieth also for the Patrone where his Clerke is impleaded for the aduowson id est the right of Patronage in a spirituall Court the Patrone and Clerke that is sued in the court ecclesiasticall may sue it foorth both against the Ecclesiasticall Iudge and the partie that sueth there But it 1 34. Ed. 1. de coniunctim â—…fat lieth not till the Libell be brought to be viewed into the Chancerie lis 2 Fitzh ibid. etiam contestata and 3 Regist. fol. 47. it lieth onely before sentence be giuen in the Court ecclesiasticall for it is afterward voyd CHAP. XVIII An Analysis or vnfolding of the two speciall statutes touching Praemunire with sundrie questions and doubts about that matter requiring more graue resolution IN the matter of Praemunire which is a question falling often in doubt about execution of Ecclesiasticall iurisdiction wherein as in the matter of prohibition consultation you desired earnestly that I would write vnto you what I thought I cannot in any point satisfie my selfe much lesse you by reason that this matter is enwrapped in ouer many difficult doubts for me to vnfold yet I haue some thing considered of it do trust that I shal be able to point out vnto you certaine general heads whereunto most of the doubts coÌ„monly made or hapning may not vnfitly perhaps be referred that thereby tanquam Thesei filo you may be directed as opportunitie shal serue what how in this behalfe to enquire of the reuerend Iudges or of other great learned and graue men of that profession There be two statutes whereupon it is principally grounded The first is 4 27. Ed. 3. cap. 1. de Prouisor of Prouisors established in the time of king Edward the 3. the complaint and griefe there propounded was that the kings people were drawen out of the Realme to answere vnto things whereof the Conisance pertaineth to the kings Court and that iudgements there giuen were impeached in another court The mischiefes then noted thereupon were the preiudice and disherison of the king and of his crowne and of all the people of the Realme and the vndoing and destruction of the Common lawe of the Realme The remedie there giuen for these mischieues was that if any of what condition soeuer being of the kings liegeance should drawe any out of the realme in plea whereof the Conusance pertaineth to the kings court or of things whereof iudgements be giuen in the kings court or which do sue in another court to defeate or impeach the iudgements giuen in the kings court should haue day c. as is there more largelie by the sanction contriued The other statute is 1 16. R. 〈◊〉 cap. 5. of the time of king Richard the 2. there is shewed and laied foorth that the Conisance of plee of Presentments to Benefices belongeth onely to the kings court by the old right of his crowne and that Archbishops Bishops and other spirituall persons hauing the instituting vnto such Benefices within their iurisdictions be bound and haue made execution of such iudgements by kings commandements without interruption and that also they bee bound of right to make execution of many other of the kings commandements but it is there complained that processes and censures of excommunication vpon certaine Bishops of England were made by the Bishop of Rome because the sayd Bishops haue made execution of such commandements and that hee purposed to translate some Prelats out of the realme some froÌ„ one bishoprike to another within the Realme without the Kings knowledge and without their assent that so should be translated There are assigned also for mischiefes hereupon growing the open disherison of the crowne the destruction of the king of his lawe and realme and that these things are against the kings crowne and regalie that they defeate and destroy the statutes that they tend to make the realme submitted to the Bishop of Rome and the lawes and statutes of it by him to be defeated and destroied at his will that they drawe out of the realme against the kings will the sayd Prelates his liege persons of his councell that be much profitable and necessarie to the king and to all his realme and that these deuises will be are away the treasure of the Realme for remedie whereof it is prouided what shall not bee done viz. that none shall purchase or pursue or doe to bee purchased or pursued where in the Court of Rome or elsewhere what any such translations processes and sentences of excommunications buls instrumeÌ„ts or any other things of what sort which touch the king against him his crowne and his regalie or his realme in what maner touching these as is aforesayde and
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
of God and examples of holy Scripture I do not call to my slender remembrance where any criminall matters be appointed commanded to be prosecuted by a Partie but in very few places where any haue bene vsed who might properly be termed an Accuser or a Partie For albeit in sundry places of Scripture we finde Accusers mentioned yet in many of them such cannot be accusors or parties properly and strictly so termed but onely in a very large signification because their testimonies were receiued against those whom they denounced of crimes For where a man is partie himselfe making it as it were his owne cause and not the Iudges office there it is no reason that his owne testimony should be admitted 1 L. 1. §. in propria ff Quando appell Quia testimonium in propria causa vel quasi propria non valet And it may then be said to be a mans owne cause whereof he may reape benefit or dammage But more God willing shal be spoken hereof in his proper place Touching bringing crimes into question in Temporal Courts of this Realme that deale in matters ciuill or criminall it is to be first remembred that these Courts be of two sorts some vsing the Queenes immediate auctoritie yet the same still actually being in her Highnes as all the Courts at Westminster Others vsing but a kinde of mediate auctoritie deriued from the Crowne yet by her Graunt made in some sort their owne as deriued downe thereby vnto them For sundry subiects albeit they haue but a deriued power from the Queene as from whome through the dominions of this Crowne all iustice and iurisdiction to administer it whether Temporall or Ecclesiasticall doth originally flowe yet do not their Processes runne in the Queenes name nor her seale is vsed to them Of such Temporall Courts as sit but by such a mediate and deriued auctoritie from the Queene vnto them and therefore vse not her Seale or name some were in times past established for causes Martiall as the 2 Ric. 2. cap. Constables of England and the Earle Marshall his Courts whereof I haue very small experience and some for matters perteyning to the Peace And of these last some be for causes growing within the land as Courts of Counties Palantine of cities and townes corporate Sherifs turnes and Court-Leets or views of Francke-pledge and others be for causes Marine as all the Courts of the Admiraltie In temporal courts of counties Palantine in courts of townes and cities corporate fauing where some speciall custome preuaileth as in London many in Sherifs turnes and in Leetes the course of the common Lawe is for the most part obserued In Admiral courts the order of the Ciuill lawe of the Romanes because it is the written Common law of most nations not barbarous with whom wee haue to deale is especially vsed sauing where by Statute or Custome it is otherwise directed Of such courts as exercise the Queenes immediate autoritie some haue no letters Patents of Commission to direct them as the Parlement which is called and sitteth by the Queenes onely writ the Chauncerie from whence all originall writs do come and yet the L. Chauncellour or L. Keeper haue no Commission by letters Patents but receiue their authority by deliuery vnto them of the great Seale as I am infourmed the Starre-Chamber established of the Queenes priuie Counsell and some others to be called partly by praescription and partly by Statute the court of Requests by custome and praescription And the Counsaile in the Principalitie and Marches of Wales auctorised by Act of Parliament vnto such and in such maner as her Maiestie by instructions vnder her Roial hand-writing shal from time to time direct But those Courtes Temporall which sit by Commission and letters Patents for exercising in stead of her Highnesse the Queenes owne and immediate autoritie are either such as be vsually now holden at Westminster as the Courts of the Queens Bench the common Pleas the Exchequer and the Court of Wards and Liueries or in other places of the Realme abroad as Courts of Generall Assises Nisipriùs Gaole deliuerie Sessions of the Peace the Counsell established in the North parts the Court of Stannery in Deuonshire and Cornewall and as I haue bene infourmed the Court for triall of life and death at Halisax and such like I know that by speach and by vse also in sundry mens writings touching the aforenamed Courts such only as it were by a kinde of appropriation be most vsually called Courts of the Common lawe wherein matters of fact touching hereditaments contracts or misdemeanours be tried by a Iurie of twelue men because this triall is more frequent then any other But yet we are not to thinke that none but these may truely so be named as though the other were contrary to the Lawe Common seeing they be also allowed by the Lawes Statutes or Customes of this Realme aswell as those which proceede to triall by Iuries In the Courts afore specified that proceede to the triall of crimes by Iuries of twelue if there be any Appellour as of murder robberie or such like then may the prosecution most properly and truely be said to be done by an Accuser and at the prosecution of a partie If it be for the Queene whether it be by way of enditemenâ—… and be preferred by the Iudges themselues or by the Queenes Atturney generall or by some priuate person oâ—… be by way of Information put vp against some offence made poenall and not capitall and this either by the Atturney generall or by some other person then all such proceedings are in trueth done ex officio Iudâ—… And this either of meere and entire office as when the Iudge himselfe preferreth it or ex officio promoto as when it is first related and preferred vp vnto him and prosecuted by any other But in this last case there is a kinde of mixt proceeding betwixt both And albeit the Informer do prosecute partly for himselfe yet is it for the Queene also whos 's the Court is and so may be truly said to be of office This appeareth plainely in that the Appeller because he Is a meere partie is not so fauoured assisted and pâ—…iuileged in many respects as when the prosecution is instituted of Office for the Queene For the Appellee may put it to triall of battell with the Appellour which he cannot doe vpon enditement at the suite of the Queene Like wise whosoeuer doth preferre the endiâ—…ement or information though the defendant happen to be acquited yet the preferrer payeth neither costs nor dammages nor is subiect to any action in that behalfe as an Accuser and partie both is and ought to be But if the defendant be conuicted so the crime be not capitall but fineable then is the fine if it be imposed by the Court to come wholly to the Queene If by poenâ—…ll statute then most commonly it accrueth by disposition thereof partly to her Highnesse and partly to such priuate
person as informeth And the enditements be termed vpon their beginning Enquiries or Inquisitions which are alwayes ex officio Now these and such like be notes and markes whereby you may discerne proceedings of these Courtes in criminall causes prosecuted by an Accusour or partie from that which is done vpon the office of the Court for these two prosecutions doe differ in the end and they differ also in certeine priuileged points which that of Office hath aboue that which is by a partie In the end thus they differ because prosecution of Office aimeth at publicam vindictam a publique punishment whether pecuniarie to acerue to the Queene or corporall In deed in all capitall causes vindicta is in truth publique and exemplarie albeit both the Appellour onely doe prosecute perhaps after the Queene haue pardoned it and that he also seeke nothing els but priuate reuenge for his owne iniurie receiued rather then for an example to be made of the offender or for the Common weales satisfaction and contentment Of the contrary side prosecution in these Courtes of an offence criminall being not capitall by an Accuser or partie propoundeth for the most part but a Ciuill end that is some satisfaction and amends to be made vnto the complainant damaged as in actions of sundry trespasses in actions of the case c. And then doe the Ciuilians terme this Causa criminalis ciuiliter and the former Causa criminalis criminaliter mota Besides such difference in the end there be also some priuileges that are granted to the one course of proceeding which are denied to the other whereby those two kindes of prosecution doe differ As that in proceeding of Office for the Queene as was touched afore the defendant may not gage battell against the preferrer as he may doe against the Appellour neither hath any defendant in an enditement or information though he be acquited any costs allowed when the suite is for the Queene as he both hath and ought in iustice to haue when the suite against him is onely prosecuted by a priuate and wrongfull Accuser that was not able to iustifie his declaration as wee may terme it accusatorie of such priuate offence or misdemeanour whereupon he sued him Now let vs consider also how those Courtes which haue none vsuall triall by Iuries doe proceed against offences First the high Court of Parliament hath no great vse that I know of dealing against Offences but such as happen to be committed either by some member of the house during the time of Parliament or against the liberties and orders of that Court. In both which cases they proceed to examination of them either vpon the Notoriety of the fact happening among them or vpon credible relation of some but wholly without any Accuser or partie taking vpon him the proofe thereof with any hazzard of so much as Charges for wrongfull vexation if it should so fall out to be accounted And therefore such proceeding is also of meere Office In the Starre Chamber onely crimes and misdemeanours bee inquired of but especially those which I called afore Extraordinaria Crimina viz. such as haue either no certaine name or at least no set and determinate punishment by Lawe appointed and may not be punished there by losse of life or of limme but either by Fine by open shame and infamie by imprisonment by nayling or cutting of eares or deforming the face by banishing from some certaine place of the Realme or foorth of all the Queenes dominions or vnto a certaine place abroad or by condemnation vnto the Galleis perpetually or for a time c. The misdemeanours punishable in the Starre Chamber bee brought thither into question for the Queene onely either by her Maiesties Atturney generall and that is by bill of information or Ore tenus or els be brought vpon bill preferred by some priuate person that is grieued In all which Cases albeit there be found one which doth prosecute yet can he not truely be called an Accusour or a partie for the reasons before alleaged viz. of the end propounded which is publica vindicta and for other great assistance and priuiledge which that Court giueth to the prosecutor against the def in respect that it is for the Queene And namelie that he is to answere not onely to the Bill vpon his oath but also to Interrogatories more particularly criminall then the Bill and the Interrogatories without counsell which in trueth therefore needeth not because they are brieflie drawen article-wise and concerne but matters of fact within his owne knowledge as is entended Vpon all which matter it followeth that the prosecutour there is but as a relatour partly to stirre vp and partly to ease the office of that Court by furnishing it with proofes Neuerthelesse I am not ignorant that sometimes when it appeareth manifestlie to their Lordships that the plaintife being some priuate person hath calumniously and of malice onely vexed the def then such plaintife there is and iustly also may be condemned in costes and damages for his apparant calumniation and wrongfull molestation of the def Vnto which courses of the Starre Chamber I take the Courts of the Queenes Counsell established in the Marches of Wales and in the North partes to bee also agreeable in their inquiries and examinations of crimes and misdemeanors In the Chancerie and Court of Requests being both Courtes of equitie if any misdemeanours or crimes be diduced and laied downe in the Bils which happeneth very often yet are they not Criminallie laid to haue the def punished for them but onely Ciuilly to the intent that the plaintife may haue an amends and priuate satisfaction as shall be deemed to bee equitie And therefore such prosecution is not by Office of the Court but onely at the parties suite albeit the Office in the Chancerie doe thus farre assist the plaintife for sifting out of a trueth that the def must answere euen to the Criminall points of the Bill vpon his corporall oath But he may not in those two Courts be put to answere the plaintifes interrogatories vpon his oath except the plaintife will be concluded by the def answere vnto them and seeke to make no further proofes But of all the Courts temporall aforesaid aswell those which proceed to the triall of misdemeanours by Iurie as of others I thinke this may bee generally affirmed That when any lewde practice abuse or contempt not capitall not tending to mutilation is supposed to be done against the Court there euen of meere Office without any Accusation or prosecution of any partie by Bill the Iudges of such Courts doe Enquire thereof by examining and by interrogating euery one that is holden suspected thereof or to be priuie thereto vpon their corporall oathes first taken Let thus much then suffice for the two sortes of prosecution and bringing Crimes into question by the course mentioned in Scripture and by vse and practice in Temporall courts of this Realme CHAP. III. Of the sundry kindes of obiecting
of custome turned to a more moderate and sase course not onely for the Prosecuter but also for the defendant For mitiùs agitur 2 Abbas in ca. inquis de accusat cum inquisito conuicto quà m cum accusato He that is cōuicted by way of Accusation especially by the Canon law is more grieuously punished then he which is conuicted vpon Enquirie Which yet is alwayes so tied that being a prosecution of Office the Iudge needs not lend his assistance but where he seeth good and probable inducement to ground it vpon All Enquirie is either Generall or Speciall 1 Bald. in l. ea quidem C. de accusat Generall Enquirie is a preparatoriecourse proceeding of meere Office purposed to enquire and finde out criminous persons within some certaine territorie or compasse This is of three sortes The first is generall in respect of the persons but speciall in respect of the fault as when the Coroner inquireth of a murder committed and no certaine person knowen or an Ordinarie of a forgerie in some cause Ecclesiasticall And by this 2 l. 1. C. de falsa moneta l. 1. C. de rapt Virgin Enquirie generall in certaine hainous crimes euerie priuate person may enquire to bring the Offenders in by lawe to be iustified The second is generall in respect of the faultes but speciall in regard of the persons as when some Hospitall College or Cathedrall Church is visited The third and last is generall both in respect of the persons and faults as a generall visitation of a whole Dioecesse or an Enquirie made by the grand Iurie at an Assise or Sessions of the Peace for the whole Countie 3 Summa Antonini part 3. t. 9. c. 7. Speciall Enquirie is when some certaine and singular person and crime also is enquired of and brought by due course of iudgement vnto triall to the intent to be punished This Enquirie is done either when there is a kinde of prosecuter besides the Iudge albeit the proceeding bee of Office or when there is absolutelie no prosecuter besides the Iudge himselfe against the partie conuented There may besides the Iudge be prosecuters of the Office in two seuerall degrees One that doeth prosecute throughout the whole suite as when an Information for the Queene alone or for the Queene and Informer is put vp at the Common lawe and is termed by the lawe Ecclesiasticall Officium promotum The other which doeth but prosecute or sollicite in some part of the suite as by furnishing the Court with proofes c. which is called Officium mixtum in some temporall courtes a Relater Likewise 4 Abbas in e. cum dilectis de Purg. canonica Officium promotum is of two sortes The first is when a man voluntarilie offereth himselfe to prosecute called Promotor voluntarius officij and he differeth a litle from a Partie The second is when the Court assigneth one to sollicite the Office who is termed Necessarius promotor officij because hee may not refuse this emploiment But when no persecuter at all doeth stirre in the matter then the Court onely doeth it in duetie to the Common wealth and to see sinne and disorder punished Then is this Enquirie termed Officium simplie or Officium merum by the Canon lawe and by the Ciuill lawes Officium Nobile as of more woorth and dignitie then the other course which is by a Partie and at his petition and instance For by a more base appellation in comparison of the former that lawe termeth this Officium Mercenarium ac si merccde aliquâ propositâ alterius petitiont quasi deseruiret that-is when the Office of the Iudge is as it were hired and employed but at another mans becke to serue his turne For albeit in temporall courtes of other realmes long custome which is 1 Crauetta Consil 238. nu 7. the Wel-spring of all their iurisdiction hath 2 Alph. lib. 3. c. 11. established the verie same course of proceeding in causes criminall euen at the instance of a Partie with that which may bee done when the Office of the Court alone proceedeth neuerthelesse the lawe it selfe hath giuen greater priuiledges vnto proceeding of Meere Office then vnto the other which was some occasion also why it was the rather called Nobile Officium Iudicis The first priuiledge is that whereas by lawe nowe altered by Custome an Accuser or Partie properlie so called is in danger of Poenatalionis if he faile in his proofes Propter praesumptam Calumniam yet the presumption and entendment 3 Arg. c. in nostr de procur in c. ad audientiam de praescrip of lawe runneth not so agaynst a Iudge exercising but the publike lawes by his Office as it doeth against a Partie And therefore is hee not subiect to that penaltie as a prosecuteris 4 l. iniuriarū §. 1. ff de iniurijs Non videtur facere iniuriam qui iure publico vtitur The next priuiledge by lawe yeelded vnto proceeding of Office in a Criminall cause which is denied to a prosecuter yea though he bee not an Accuser or Partie properlie so called is that the Iudge proceeding 5 Panor in c. qualiter el. 2. de accusat of Office may giue an othe to the defendant to answere some criminall matter But it is otherwise when the suite is at the instance of a partie which prosecuteth because the defendant ought not to bee driuen to furnish vp his aduersaries intention Thirdly an Ordinarie or delegate Advniuersitatem causarum that proceedeth of Office is not bound to make proofes of the 6 Pan. ibid. alij DD. fame sauing before his superiour Iudge if an appellation be brought and doe lie because it sufficeth that the fame is apparant and knowen vnto himselfe But it is otherwise in a delegate of one cause or vpon the instance of one that voluntarily prosecuteth Fourthly when the sute is at the instance of a partie contrarie proofes for proofe of the defendants good fame are admitted But this need not be granted vpon proceeding of Office because 1 Arg. c. in nostr de procur c. ad audientiam de praescrip the law doth not entend and presume against the sinceritie of the Iudge as against the partie prosecuting Fiftly vpon the instance of a voluntarie prosecutour or preferrer vnto the Office 2 Hostiens in c. cum clamor de testibus fit litis contestatio as I may English it an issue is ioyned betweene the two parties But if either one be but a soliciter and assistant to the Office or els a preferrer assigned by the Iudge or that the proceeding be of meere Office there is then no contestation in the sute properly so to be termed but a kinde of contradiction in sted thereof required betwixt the fame or denunciation c. on the one side and the defendants answere by deniall on the other side Lastly when the proceeding is of Office 4 Arg. c. cum clamor de
afore him the ecclesiasticall Iudge is to admit because they be referred onely to the parties reformation or restraint of him and of others by spirituall correction But his proceeding in them is for the most part summarilie and not Iudiciallie and as a spirituall Father rather then a Iudge The next kinde termed Denunciation Iudiciall in respect of the Denouncers and matters denounced is either publike or priuate 4 l. Dious ff de Cust. exh reis l. ea quidē C. de accusationib l. 1. §. sanè ff de off Praef. vrbi c. episcopus in Synodo 35. q. 6. Publike is that relation or solemne presentment of some crime which is made vnto a competent Iudge whether Ciuill or Ecclesiasticall by publike Officers thereunto appointed whereupon the Iudge of his pure and meere Office proceedeth by due Iudiciall course of special enquirie to the acquital clearing of the partie denounced if he be found innocent or to the punishing of him by some penaltie bodilie and temporall which is the peculiar end of this Iudiciall denunciation vnto which also no Monition is required to proceed But Iudiciall and priuate denunciation is that which may bee preferred by a priuate person in respect of a particular interest that hee hath as being either hurt or particularlie grieued by some fault or offence committed by another The ende here of is not onely the punishment of the offender but that the denouncer grieued may be restored or preserued harmelesse For explanation of the latter of these by examples first in a Ciuil or temporal court 1 vel alieni l. 1. §. Quid autem ff de off praef vrb as when he that is oppressed is a bondman §. pen. Inst. de his qui sunt sui or is subiect to another mans power as an apprentice is so that hee hath none ordinarie action against his superiour that doeth wrong him but by this Iudiciall denunciation is forced to flie vnto the Iudges office for remedie In a court ecclesiasticall 2 Innoc. in c. Insinuante Qui cler vel vov as when a religious person who hath no direct action agaynst his Prelate denounceth some grieuances done vnto him by his Abbot or other superiour or when as the poore of an Hospitall doe denounce and relate vnto their visitour some offences or grieuances done to them by the master thereof requiring punishment and remedie therein by his office in due course of lawe And these two Iudiciall kindes of Denunciation are most frequent in this Realme both in Ordinarie courtes and also in courtes of Commission for causes and misdemeanors ecclesiasticall But the first of them more vsuall in Ordinarie courts the second in courts of Commission The third kind of Denunciation is Canonicall so called because it had his originall from that lawe and it hath also vnder it two kindes The one more speciall to bee preferred and made by him onely who hath interest of hauing either his Prelate or Pastour good or els some ecclesiasticall person good who is vnder his iurisdiction And 3 c. 1. de offi Custod c. licet Heli. de simon the end of this Denunciation is to haue such being criminous to be remooued from their administration ecclesiasticall The other Canonicall denunciation is more generall in that it may be preferred by any whomsoeuer and concerneth either the hinderance 4 c. praeterea de Sponsalib c. cum inhibitio de cland despons or dissoluing of some mariage contracted or to be contracted within the degrees forbidden or els the desisting from some sinne which is of that qualitie that it increaseth by multiplicatiō of Acts in the same kind or by continuance of some one Act and wherein the Denouncer hath none other particular interest then as euery Christian hath besides The last kind called Regular is that Denunciation 5 Specul tit de Denunt §. 2. vers vt autem which is published by any person in Chapter touching some offence of his brother committed contrarie to the locall and positiue rules or statutes of that place to the intent he may amend it hereupon rather then that it should come to a more publike denunciation and from this there lieth none Appellation The two first kinds of Denunciation viz. Euangelicall and Iudiciall doe differ the one from the other in sundry points but especiallie in these following First 1 Pan. in c. noult de Iudiciis addie Vlt. euery one though he be infamous for some crime formerlie committed so he perseuere not in that crime still is admitted to denounce another Euangelically because it is indefinitelie commaunded by Christ as a necessarie office of Christian duetie for reclaiming of our brother from offending But none are to bee admitted to the publike Iudiciall denunciation besides those which be specially thereunto appointed sauing that the Canons 2 c. Causam Qui filii sint legitimi c. Quapropter 2. q. 7. c. Quisquis 1. q. 1. c. primo 5. q. 5. do compell all Clerkes to denounce the crimes of other persons ecclesiasticall and to the priuate iudiciall none but such as haue some peculiar interest And in this case it forceth not though such do euen then perseuere in a crime because vnder pretence of crime no mā is to be repelled from prosecution of his right Secondly Euangelicall denunciation is referred to the amendment of the offender whereas vpon the publike Iudiciall his punishment is propounded for an end thereof and the priuate is referred both to such punishment and that the thing be restored and the denouncer also preserued harmelesse Thirdly vpon Euangelicall denunciation there is no proceeding in foro contentioso or iudiciallie but onely in Poemtentiali whereas vpon Iudiciall denunciation there ensueth a due course of Iudiciall proceeding and thereof it hath his name Fourthlie and lastly in priuate iudiciall denunciation or witnesses other then such as be lawfull and without iust exception are admitted because it lieth for restitution of some thing But in Euangelicall for proofe of the first priuate monitiō the denouncer alone must of necessitie be admitted for the witnesse if the denounced doe denie the fault and for proofe of the second monition any one other together with the 3 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Mat. 18. V. 16. denouncer may bee admitted for two witnesses though both of them happen to bee infamous for some crime in times past by them committed so that at such time of denouncing they perseuere not in the crime But albeit the lawe be thus for admitting of some and reiecting of others from denouncing yet throughout all Italie and in other places of Christendom besides 4 Alphons Villa li. 2. de denunc Cano. concl 8. Custome in both courts hath thus farre preuailed as to suffer any mā almost to denounce whether hee doe it of his owne voluntarie minde or by occasion of a Charge and duetie in that behalfe laied vpon him The reason hereofis for that the Common wealth hath interest
either for the greatnesse of the partie whom poore men dare not present or denounce or for the delinquents often remoouing from one Dioecesse to another or for the dwelling of the witnesses else where or for the offenders frequent friuolous and chargeable appeales or for such like considerable occasion or vpon credible information made by some great personage or of some that be in that Commission or being referred from her Maiestie or from the Lords of the Counsell or vpon complaint of some partie iustly grieued otherwise being without remedie or by complaint of a whole Parish or of a great part thereof or vpon frequent relation of sundry credible persons taking offence and griefe thereat and setting downe particular euidence of the facte or in aide and assistance of ordinarie Iurisdiction as when the delinquent hath no certaine place of abode or lastly by some notorietie of the fact as by the parties knowen hand-writing or for a matter done in great assembly of people and such like Hereupon Articles be framed wherein are conteined the place time and oftentimes the persons able to testifie informe further and all such other circumstances and Indicia which I interprete as the worde is commonly vsed Euidences tending to the plainer manifestation of the Crime The Articles are perused and allowed to be incident to the conisance of that Court and conteining sufficient detection to open a way to proceede by way of further enquirie ex officio into that crime by one of those three Commissioners at the least whereof one is of the Quorum that doe subscribe the Processe for conuenting of the partie This Processe is either by way of Citation commonly there called letters missiue or by way of attachment when the partie is fugitiue or flitting or the Crimes be grieuous and publikely offensiue so that it may probably be feared he will lurke or steppe out of the way for a time But in both courses some one is bound to the Queenes Maiestie to prosecute to furnish the Court with witnesses for proofe of the matter not to compound it priuately and to pay charges vnto the partie if it shal appeare he hath bene without iust cause troubled Yet where the Commissioners themselues are sufficiently enformed Indicijs viz. with euident matter against the partie and where no such prosecutor or relator doeth offer to follow it so that the Court it selfe takes chiefe care of the prosecution in some like fewe cases such bonde is omitted Nowe when as the partie appeareth for such iust considerations as hereafter are debated and prooued lawfull he is required on her Maiesties behalfe to take oathe to answere the Articles or Interrogatories truely being matters of his owne facte and knowledge so farre foorth as by lawe he is bound before euery particular thereof be made knowen vnto him least after perusall afore his oath taken he be drawen by counsell to answere cautelously indirectly or wholly to refuse to make answere perhaps because he sees they touch him ouer neerely as coniecturing by whom they may be prooued But after the oath is taken in setting downe his answere he may consider as aduisedly and deliberate for so long time as in any reason may be desired And thus farre foorth the partie conuented is for the most part without any partie at all proceeded with but ex officio Iudicum nobili vel mero to the intent he may not bee priuileged to say that he is not bounde to answere being at the suite of the Office and duetie of the Iudge for the publique interest of the Church and Common-weale as perhaps by Lawe he might if it were at first preferred and prosecuted by a partie But after he hath perfitely answered them for the most part a partie is then made who if sufficient matter be not confessed thereupon to proceede vnto a iudgement vpon the Articles and answere doeth take vpon him to prooue it by witnesses and then Interrogatories exceptions against witnesses and other defenses for the conuented partie are vsed almost wholly as in Ordinarie Courtes By which making of a partie that which was merum officium afore doeth afterward become officium mixtum viz. ex mero promoto When the matter comes to finall iudgement if the partie bee conuicted hee is punished either by penance for his reformation and for satisfaction of the Church offended or by imprisonment fine or censures of the Church or by so many of them as is thought fittest or by him or others most feared or to be most conuenient weighing alwayes the qualitie of the person and the offence together with other circumstances thereof In ordinarie Iurisdiction Crimes be vsually proceeded against either ex officio promoto that is at the instance and petition of some that will voluntarily stirre vp and sollicite the Iudge vnto his duetie or else ex officio Iudicis mero In the first of these albeit the partie conuented is bound to answere matters by oathe if it bee required so they bee not of the Crime obiected yet the rule is that he is not bounde to answere vpon oathe touching the very Crime it selfe notwithstanding a fame doe runne hereupon vntill he shal be enioyned his purgation But when an Ordinarie proceedeth against a crime without a partie promouent viz. ex officio mero then his proceeding must be grounded either vpon a presentment of a fame or of the crime made by such as be specially deputed thereunto as Church-wardens c. or proued by other witnesses or else vpon notorietie of the facte speeches and information of credible persons touching such fame or scandale thereupon risen brought often vnto his eares which is called clamosa insinuatio or by some other course allowed by lawe to be sufficient to open a way vnto such proceeding If it be vpon a perfite presentment of the crime or fame thereof the Iudge may safely without doubt of nullitie or grieuance in that behalfe proceede ex officio and so may vrge the partie presented to answere vpon his oath touching the very crime it selfe But if there be no such presentment but clamosa insinuatio delata ad aures suas or some equiualent matter whereby the partie becomes offensiue and scandalous though no man will prosecute or present him yet the Iudge may and ought ex officio of very duetie to proceede vnâ—…o the examination of neighbours there abouts touching such fame or crime which fame if it shall be by such enquirie found and prooued then he may proceede as afore But if vpon such denunciation and notification had from credible persons and the crime being not declared to be notorius nor none infamie or scandall prooued or presented nor any other sufficient meane to open way to such Enquirie he shal neuerthelesse proceede and vrge the partie to answere of the very crime vpon his oath this of it selfe shall make none errour or nullitie in the proceeding albeit not warranted by lawe For if the partie conuented shall make none opposition
Common Lawe will not giue so large a scope vnto Iudges ecclesiasticall against such doubters I will obiect those wordes of 3 Magna Charta cap. 1. Magna Charta where it is not a newe graunted but Confirmed onely That for euermore the Church of England shal be free and shall haue all her whole rights and liberties inuiolable And this is a confirmation of their rights and liberties before any graunt was made to the rest of the Realme besides being yeelded at such time when as through generall ignorance it was vntruly holden that the state Ecclesiasticall signified there by those wordes The Church of England had not their Iurisdictions from the Prince but from God alone deriued downe to them by the meanes of the Pope and therefore that their Courtes and Lawes whereby they proceeded were not in any respect to be accounted for Courts holden by the Kings auctoritie or their Lawes the Kings Lawes Whereupon arose that vntrue and preiudiciall phrase of seuerance of a Court Christian from the Kings Court So that if they were confirmed to them when their Iurisdictions in facte were not holden of the King as now they be and ought to be by Gods Lawe is there not then more iust cause so to continue them at this time seeing they be not so much as a diuerse course from the Customes and Lawes of the Realme in Courts Temporall But that this course of proceeding in causes Criminall sometimes without either Accusation or Presentment is in trueth a right and libertie of the Church of England may appeare by that which to this point hath bene afore deliuered and by the continuall practise also of those Courts in all ages as the Acts thereof from time to time doe make very manifest Yet this is more particularly and neerely prooued in the very point that we handle by a 1 1. Eliz. ca. 2. statute made in her Maiesties reigne where it is prouided that Ordinaries not only at any other time and place then at their visitations and Synods may take accusations and informations a word of farre more large signification then Presentment but may also enquire else-where within their iurisdiction Which Enquirie is afore shewed to be alwayes ex Officio and being absolutely spoken without further addition and in some sort seuered from all ki◅de of Informations must necessarily be without Presentment But how farre and in what maner may they so doe Truely in like fourme as heretofore hath bene vsed in like cases by the Queenes ecclesiastical Lawes If then to proceed Criminally without either of them two be warranted practised by the Queenes ecclesiasticall Lawes as afore is shewed assuredly this Statute doth auouche and iustifie them To this disputation may be referred that obiection which the Notegatherer maketh touching a 2 11. H. 7. ca. 3. statute of K. Henry the seuenth Note gatherer whereupon he saith Empson and Dudley proceeded that was 3 1. H. 8. ca. 6. repealed by another in the time of K. Henry the eight although he putteth it vnder his title of the lawes of England as by them seeking to impugne al proceeding ex officio albeit vnder presentment which this opinion alloweth proceeding ex Officio is necessarily implied and presupposed For answere whereof it is true that the saide statute was so repealed but whether it were the same and the onely statute whereupon Empson and Dudley proceeded is left there vncertaine and vntouched Howsoeuer it was in this behalfe seeing it authorised all Iustices of Assise and of the Peace to proceede thereby it is most probable that many besides them two did also deale by vertue thereof The effect of the saide statute was that vpon information to be made for the King afore Iustices vpō any penal statute not extending to life or member they might without enditement heare and determine all offences against the forme of any statute in force The reason of making the said statute is signified by the preamble to haue bin for that although at Sessions charge was giuen to enquire of many offences against statutes and Enquests to that effect were straightly sworne and charged to enquire and to preferre the trueth yet they were letted to be found by imbracerie maintenance corruption and fauour by occasion whereof the statutes coulde not be put in due execution And againe in the same place The twelue men for the causes afore rehearsed will not finde nor present the trueth Howesoeuer this were at that time it may bee feared that it is in some place too true still euen vntill this day So that if this were then a sufficient cause to make such a statute the cause still continuing if not encreasing that statute will seeme to haue beene in that regarde lesse vnreasonable In the statute of Repeale thereof for the reason of abrogating 1. Hen. 8. c. 6. it is onely assigned That thereby many sinister craftie feigned and forged informations haue beene pursued to the great damage and wrongfull vexation of the subiectes But this might aswell happen euen when men be prosecuted by way of enditement For is it not vsuall to finde them vpon any one mans euidence and information the Iurie not regarding oftentimes what enimitie rests betwixt them Therefore it was not the course by information that displeased but the badnes of the informations that gaue occasion of repeale For by statute euen in K. Hen. 8. 31. Hen. 8. c. 14. his dayes an Information was made equiualent vnto a presentment by verdict of twelue in matter of heresie that is far more penal then the former Which cruell statute I would not haue alledged but that the Note-gatherer groundeth himselfe thereupon for another purpose And we see that there is no such cause alledged as the Note-gatherer insinuateth either as if it were an vniust vnreasonable course or in respect that it was ex officio at the instigation and solicitation of some one person or yet that it was without Appeale or Enditement For if it had bin simply vniust then all the treasure which had bin leuied by colour thereof should haue bin restored And it is euident that Bils and Informations against offenders are still in frequent vse and may be preferred for the Queene by any and against any whomseuer And those which be found offenders may without either Appeale or Enditement be condemned and punished thereupon in sundry geat penalties and losses both pecuniarie corporall and of their good name and credite And for further proofe that it is at this day holden none vniustice by the tempor all lawes for to ground an enquirie yea and also a Conuiction without either Appeale or enditement is plainely prooued by a latter statute which is yet in force For Iustices of 5. 6. Edw. 6. cap. 25. Peace at their Sessions haue authoritie to enquire of the offences of them which be admitted to keepe Ale-houses not onely by Presentment but by Information or otherwise by their discretion c.
duelie done either preciselie or by that which is aequiualent vnto them And so we may conclude that to proceed in an Ecclesiasticall Court agaynst a crime otherwise then either by Accusation or such Presentment is not contrary or repugnant vnto the lawes of the Realme but rather the like course often practised by them and thereby the Iustice equitie of such proceeding more stronglie confirmed and iustified vnto vs and the contrarie opinion quite ouerthrowen CHAP. IX The second opinion here to be treated of is that No laie person may be cited of Office in any cause but Testamentarie or Matrimoniall the drift of that opinion is against proceeding of Office in matters criminall the necessarie vse and equitie of proceeding criminallie sometimes by the Iudges office in courtes both temporall and ecclesiasticall THe very drift of the second opinion that commeth here to be disputed of is that a Iudge ecclesiasticall may not proceed at all of Office or make speciall Enquirie which is the effect produced by that cause against any crimes or offences of late persons For in debarring them frō Citing any such the very whole proceeding against them vnto which that is the introduction is thereby also debarred and by restraining their citing of Office vnto causes onely Testamentarie or Matrimoniall all dealing against Crimes without there be an Accuser is thereby taken away Which second opinion therfore quite ouerthroweth the presenting of any laie persons though criminous allowed by the generalitie of the next precedent opinion insomuch as vpon Presentments followeth proceeding of Office by Enquirie and yet both these opinions had one Author So well bee these mens conceits digested But let vs first examine what may be the colourable occasion of this second opinion ouer and aboue the impounding of all ecclesiastical proceeding vnto those two heads spoken of in the first part sauing where the partie conuented himselfe is willing Which willingnesse in the partie for rights that may be supposed to be by him deteined but especially for crimes supposed by him to bee committed can neuer with any reason be intended that it shall bee obtained at his hands considering there is so small vse of any proceeding by office but against crimes and least of all in causes Matrimoniall or Testamentarie That no laie persons then should be delt with at all for such crimes as I haue before prooued to bee of ecclesiasticall cognisance but be suffred to do them without controlment I thinke in charitie not to be their meaning It must needs then follow that it is the proceeding against crimes ex officio Iudicis viz. without an Accuser which is hereby principallie condemned as vnreasonable or vniust Therefore to prooue it reasonable I mind here somewhat further to shew the necessarie vse equitie thereof as well in the one court as in the other And to cleare it from vniustice I wil declare first that it is both practised by the temporall lawes also is by common and statute law an allowed proceeding vnto courtes ecclesiastical next that it is practised not onely by the law Canon which many would take for a sufficient disallowance of it but also by the Ciuill lawes subiect to no such exception insomuch as they are vsed by the rest of Christendome for their Common law by the grounds whereof all their customarie lawes ordinances be argued disputed And lastly that such course of proceeding was vsed is allowed by sundry exāples in holy Scripture together with answeres vnto the obiections made to the contrary as they fall fittest into each of the seuerall parts of this disputation The equitie and necessarie vse of this course to bee holden may be shewed by the partie which by lawe is supposed to be the exciter stirrer vp of a Iudge vnto it whē none other person is found that wil prosecute This partie I meane is the 1 Clarus ibid. q. 7 publike interest which the Church or Commō welth hath to haue crimes punished Interest Reip. prouinciā purgari malis hominibus ne maleficia remaneant impunita poena enim vnius terror est multorū Bonis nocet qui malis parcit Sicut est misericordia puniēs sic est crudelitas parcens w t sundry other like rules of law Canon partly afore touched Now the publike interest doth not only rest in this when some benefite is comming towards the common treasure but is chieflie shewed by procuring common tranquillitie and repose of the subiect with sinceritie of religion and integritie of conuersation And it was called by the Romanes especially after the popular state was turned into a monarchie by the name of Fiscus and may well and significantly with vs in respect of the meaning be termed the interest of the crowne dignitie royall which by all offences are sayd to be violated Therefore doe the 2 Practica Millei fol. 3. nu 31. Ciuilians of other nations say In quocunque crimine fiscus est accusator against euery crime the benefit of the Common-wealth is an accuser And another 3 Clarus ibid. q. 10. saieth that in what crime soeuer a Iudge may proceed of office there Fiscus the common benefite stands in stead of a Partie And it is testified to bee a 1 Decius consilio 170. nu 1. common rule that euen in an offence but against a priuate person principally the iudge oftentimes is of office to proceed to the inflicting of some penaltie not expreslie set downe in lawe against such an offence for so is poena extraordinaria ment in the Ciuill lawe by reason of the very interest the Common wealth hath to haue misdemeanors punished In which 2 Clarus ibid. q. 12. respect some mā that by law may not vse action yet is not forbidden implorare officium Iudicis to stirre vp the Iudge by petition to proceed for his owne office and duties sake If her Maiesties most honourable councell together and euerie one apart if the Iudges of the land if carefull and vpright gentlemen of the Commission of Peace in euery countrey of office and for their dueties sake for the most part without any so much as priuate complaint much lesse professed Accuser or Partie but perhaps vpon some generall muttering yea and sometimes without so much for a care and vpon a feare at large onely conceiued what may happen did not or should not enquire looke into and take informations of riots violences disturbances of peace conspiracies felonies murders and of other misdemeanors and outrages and so seeke further to discouer them and to punish them or bring them to Iustice might it not iustly be feared that the realme would much more abound and ouerflow in all kinde of mischiefe Would the Constables abroad Headboroughs Bursholders and such other inferior officers and ministers of themselues preferre such vp or being found out and presented by others would they effectually folow and prosecute them as appertaineth so that the magistrates need not to take
further care I thinke it will not be so supposed The like then may be sayd of Ecclesiasticall officers and offences notwithstanding all generall Enquiries in Senes or Synodes and in visitations But it will perhaps be sayd in the one Court they may bee presented by the sworne men and in the other by enditement of the grand Iurie at Sessions and Assises c. It is true they may be but how many I pray you are so found out and endited from time to time by the grand Iuries of their own enquiries knowledges if either some partie grieued in particular doe not giue euidence or the Iudges or Iustices of themselues do not informe them and vrge them notwithstanding the straitnesse of their charge and oath and that they be taken out of the seuerall parts of euery shire But be it that some notorious murtherer or felon is soby them endited at some times how many other offenders in penall statutes being men of any reckoning in the shire are endited at all thorowout the Realme in many yeeres if none of the bench do take care to vrge the Iuries as Recusants in comming to diuine seruice such as haue and keepe Reteiners and giue liueries contrary to statute onely to band in quarrels and to mainteine bad actions or yet such as goe excessiuely in apparell or which violate the statutes appointed for not eating flesh vpon certeine dayes Nay it falleth out often times that the more to giue edge to such Iuries to do their duties euidence hath bene giuen vnto them in these offences yea such and so good as vpon lesse euidence they would perhaps haue endited a man of felonie to the hazzard of his life especially if he were but some base fellow Now when none almost will be found to giue euidence sauing in such a cause where he findes himselfe or some of his pinched yea and not in such neither if the other partie be a man of any tolerable reckoning or ability and very few albeit themselues do perfectly know it or haue reasonable good euidence giuen against some man of power that will finde an enditement against such an one although both he that giueth the euidence secretly and all the Iurie may be in some hope not to be knowen who it was that did principally stirre in it because they be sworne to keepe the Queenes counsell their fellowes and their owne can it then with reason be imagined that any man almost will be found voluntarily to become an Accuser and to prosecute at his owne costs and charges Experience teacheth that most men will not few that dare and those onely such as take themselues in some particular respect wronged We see in a great multitude of penall statutes at the Common law how men by third parts and moities of forfeitures besides great priuileges in proceeding are as it were allured and entised to informe against offenders yet very few notwithstanding such great gaine as thereby might be got are found besides such as make an occupation of it that will voluntarily preferre informations albeit there be enow that want the money and could well be content to finger it out of what male factours purse soeuer it came The reasons of this backwardnesse in informing I take to be the charge trouble common obloquie and offence taken by them that be prosecuted and thereby feare and perill to come vnto some further mischiefe vpon their procurement or for their fauour Now where men that are so well hired and by reason the Queene is partie to such informations so fully in all reason protected will not lust not or dare not preferre matter penall against others shall wee looke for better courage to be shewed by priuate persons against offenders in Ecclesiasticall crimes where they can expect no such countenance nor remuneration to lighten the other burthens and dangers and therefore either of Office to be prosecuted or must be wholly left vnpunished In riots committed and done vpon others we see iust cause of griefe for the iniury receiued and thereby occasion giuen to seeke lawfull reuenge There was good remedy also prouided for them at the Common law Yet in the time of king Henrie the seuenth for a further remedie and repressing of them by the Lords of the Starre-chamber the State was driuen to make a statute By authority whereof their Lordships proceed in that and others ex officio albeit in many causes they haue some partie grieued that by way of complaint promoteth and prosecuteth the office Yet the proceeding is as was touched afore by way of enquirie in that no man there sueth for priuate recompense but the scope of the whole processe is criminall ad vindictam publicam vel corporalem vel pecuniariam applicandâ—…m fisco non parti So that where men haue â—…ust cause of griefe yet was it thought very expedient requisite to prouide a sharper course by way of enquirie of office How much more then is this course needfull to be holden for punishing Ecclesiasticall crimes which by the policy of this Realme haue no other punishment and where no man hath for the most part any priuate iniury whervpon to complaine himselfe Here perhaps it will be said that he which can giue information of a crime to a iudge may accuse or procure a presentment in an Eccelesiasticall Court if it be of that iurisdiction or may informe and procure an enditement if the cause be Temporall or els that it were meet his information be not beleeued but that he should be holden as a slanderer and a malicious person We are to remember that if this Dilemma viz. either thou must accuse and prosecute him c. or else thou art but a slanderer had not quiddam tertium to minister answere vnto it many grieuous faults should passe vnpunished and many poore men should be sore pinched For experience teacheth that 1 Clarus ibid. q. 6. often times euen in crimes publikly committed you shall hardly finde witnesses that will depose their direct knowledge when it tendeth to the offence of some man of countenance that may do them a displeasure after And therefore they will either say they saw it not heard it not marked it not or at that time remember it not Yet it is knowen that a witnesse is vrged by the religion of an oath and is not entended to thrust himselfe into the matter willingly which as it ought to serue to take away all offence conceiued by him whom he toucheth so ought it to wash away all feare and other affection in the witnesse Then how much more probably may it be supposed that there is many a meane man though otherwise able to giue good and true information perhaps of three or foure witnesses which doe know the matter more fully and touching other particularities sufficient for a Iudge to enquire and to looke into the partie so denounced who neuerthelesse in many respectes dare not become an open Accuser or a preferrer of presentment of
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
not so much as iiij s. towards their charges that Iustices of Peace be allowed by Statute at such times as they serue at Sessions of the Peace c whereas Commissioners are employed and serue therein freely at their owne charges with losse of time and intermitting their owne businesse only of dutie and conscience to her Maiestie and to the Common weale So that if it were not in this respect the Commissioners ecclesiasticall both might and would sit still with more ease to themselues and lesse obloquie howbeit by the worst of euery sort of Subiects As for Courts of Ordinaries I knowe some of the greatest of them in England that haue not two matters ex Officio mero prosecuted in them in three yeeres space And for such ordinarie Courts as haue some moe causes of that nature alas what great fee is it for the Iudge ecclesiasticall to haue iij. pence for a Citation or vj. pence for examination of a witnesse or vpon an acte of Absolution or such like to make him desirous in that respect to entertaine the cause seeing hee will hardly be excused with xx pound charges that euery such seuerall matter may put him vnto if an Appellation be brought vpon any errour or mistaking that may happen to be found in his proceedings of Office Besides that the like fees are due to the Iudge no lesse vpon the prosecution of a partie then they be vpon proceeding by office and therefore none inconuenience heereupon more in the one course which this opinion alloweth then there is in the other Yea may some say all prooue not offenders that be so called and that are thereby put vnto trouble and charges It is true yet meet to be called if the law be obserued in this point that there must be afore a sufficient ground of inducement thereto Neither doe all those prooue to be offenders that are prosecuted by a partie or by an Accuser and thereby be put to no lesse charges and trouble euen when besides the malice of the preferrer there was no colourable ground of the accusation The like may be also truely said of many others who be called euen before temporall Iudges and Iustices of the peace either by warrant writte or otherwise Yet is this no cause heereupon wholly to disallow these conuentings And there is no more reason to finde fault with the fees due vnto the Iudges ecclesiasticall in regard that euery one which happeneth to be conuented prooueth not guiltie of the matter imputed to him then there ought to be with the fees that are due to Iudges in temporall Courts for iudiciall or originall writtes c. because many of such suites be commenced as often falleth out in the end without good matter on the Plaintifs or Informers behalfe Thus much in answere to the obiections made against the reasonablenesse and conueniencie of proceeding by Office CHAP. XI That the lawes of the Realme do vse Enquiries and proceedings ex officio and that they allow it in Courts Ecclesiasticall with answere to some obiections that are made to the contrary IN the next place I am to shew that dealing by way of enquirie or enquest ex officio without suite of a partie called by the Common law Office del Court are both mentioned and practised by the lawes of the Realme In 1 Mag. Charta cap. 26. Magna Charta mention is made of a writ of Inquisition of life and member In an olde statute of king Edward the first a seuerance is made betwixt the suite of the King from the suite of a partie and the King is thereby as it were bound to sue and to lend his office for prosecution of the misdemeanours For it is 1 3. Ed. 1. cap. 13. thus prouided that if any take away a woman by force c. the King at his suite that will sue shall doe common right within fortie dayes and if none commence his suite within fortie dayes the King shall sue Which suite being in his owne Court and before himselfe must needs be of office For where there is Inquisitio Enquirie there the King is partie as by another statute of the same 2 Star de Inquis capiend 33. Ed. 1. Kings dayes appeareth De Inquisitionibus coram Iusticiarijs quibuscunque capiendis in quibus D. Rex est pars qualitercunque concordatum est c. In a statute of 3 18. Edw. 3. pro Clero c. 2. king Edward the third arreignment at the suite of the King which is ex officio as a distinct matter from that which is at the suite of a partie is spoken of and so 4 42. Ed. 3. c. 4. are also Commissions of inquisition afterward Furthermore in K. 5 8. H. 6. c. 16. Henrie the sixt his time en quest or inquisition of office is mentioned and in sundrie 6 11 H. 7. c. 25. 1. H. 8 c. 12. statutes both after and afore which are needlesse to be repeated For as I take the matter euery enditement is an Inquisition which if it be at the prosecution of a partie it is as officium promotum but if it be by the Iudges for the Queene in respect of the interest of the Common-wealth then is it officium merum or nobile as afore is declared This maner of dealing in sundrie cases is so vsuall at the Common law that there be whole titles made in the Abridgements touching Inquisition and office del Court viz. of enquiries and matters done by the Iudges vpon their discretions without the instance of any partie In reports at the Common law we finde it said 7 M. 20. H. 6. 38. that Iudges ex officio did charge an enquest to make enquirie of their owne collusion supposed to be committed among them 8 34. Edw. 3. 3. Further One of a Iurie that departed from his fellowes after that he was sworne was examined at his returne by the Iudges ex officio whether he had since spoken with the defendant or no Likewise it is said 9 11. H. 4. 17. that the Court ex officio ought to award an Assise to enquire whether the disseisin were with force by reason of the kings fine In the booke of 10 Assis. lib. 16. pag. 4. Assises The Court ex officio sent a man to prison because they found he had not made fine And a great number of particular articles are there set down wherupon 11 Assis. lib. 27. pag. 138. enquest or inquisition ex officio in the Kings bench is to be made We finde of elder time by 1 Bracton li. 4. c. 8. fol. 302. Bracton where the appellor that prosecuteth makes default or dieth there the king may proceed ex officio And againe there Let the king ex officio suo for his peace proceed to inquisitiō for the suspicion that he hath of the appeale Moreouer where a Parson and Vicar were both willing enough to sue before the Temporall Iudges yet 2 M. 22.
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
one of those books which the Note gatherer doth alleage against this course though in trueth it haue no one word tending that way Belike he thought no man had the booke but himselfe because it may be he casuallie happened vpon it in rifeling amongst other olde bookes cast aside in some Stationers shoppe To like effect the same booke hath that 9 Ibid. if a man bequeath a bullocke to a church for reparation of it or of the churchyard if he that hath him will not deliuer him either the Church-wardens may sue for such detinue in a court ecclesiasticall or the Ordinarie may ex Officio call him and vrge him to deliuerie And the like is there testified being taken out of the Register in a more grieuous crime of ecclesiasticall cognisance For saieth he 1 Ibid. ex Regist in br orig pag. 45. a. if the Iudge ecclesiasticall cite a man of office for fornication c. a prohibition or appeale being brought he after renounceth all delayes and submitteth himselfe the Iudge shall proceed ad poenam Canonicam imponendam vpon a consultation or writ vnto him to be directed Likewise the Register is very plentifull in this behalfe as first where 2 Berous in rubr de accusationibus nu 10. Enquirie which is alwayes ex officio is not onely allowed but commanded to be made by a Iudge ecclesiasticall 3 Register pag. 54 b. Uobis mandamus quòd habita super praemissis per Inquisitionem alios modos informatione pleniori c. and for the very word of proceeding ex officio as where it was written vnto the Officiall of the court of Canterbury or his Commissarie thus 4 Register pag. 57. b. Cum vos nuper ex Officio vestro fama publica referente quod T. c. vestrae iurisdictionis C. in amplexibus fornicarijs tenet ipsam coraÌ„ vobis in curia christianitatis pro correctione animae suae in hac parte citari feceritis procedentes contra eum ibidem iuxta Canonicas sanctiones c. vobis significamus quòd in causis praedictis ex officio vestro quatenus ad correctionem animae c. procedere facere poteritis quod ad officium vestrum speciale de iure noueritis pertinere c. Likewise in another Consultation it is conteined thus viz. Cum vos 5 Register pag. 57. a. nuper vt acceâ—…imus iuxta officij vestri debitum obieceritis Ioanni de E. parochiano de C. quòd ipse c. detinet c. vobis significamus quòd in causa praedicta quatenus adrestitutionem c. ad poenam canonicam eidem I. pro detentione eorundem legatorum imponendam coram vobis agitur licite procedere c. poteritis And againe thus Cumper 6 Register pag. 54 b. vos contra H. de Lyndesey NotariuÌ„ publicum super 7 Vide 3. part c. fornicationis crimine infra iurisdictionem vestram commisso grauiter infamatum tum super dicto crimine quam super eo quòd iurisdictionem vestram per tumultum rixas executionésque vestras in hac parte debitè faciendas nequiter impediuit ex officio ad animae suae correctionem fuisset processum c. vobis significamus c. quod procedere poteritis Mention is also there made in a precedent of a Consultation of proceeding 8 Register pag. 51. b. ex officio ad promotionem parochianoruÌ„ in these words Cum ex officio ad promotioneÌ„ dictorum parochianorum traxeritis in placitum c. vobis significamus quòd procedere poteritis c. Furthermore there is mention made of one who by that course was proceeded lawfullie with for refusing to pay his vsuall oblations to be confessed to the Priest and to receiue the Communion in these wordes 1 Register pag. 50. b. cum ipsum ex Officio vestro coram vobis ex causis praemissis euocari feceritis ad procedendum contra eum ad poenam corporalem sibi pro correctione animae suae in hac parte infligendam c. vobis significamus quòd in dicto placito sic coram vobis ex Officio vestro moto procedere vlterius facere poteritis in curia Christianitatis quod ad vos ad forum ecclesiasticum noueritis pertinere prohibitione nostra non obstante And vpon a prohibition brought by a knight to his Ordinarie that proceeded ex Officio agaynst him for certaine his crimes and excesses a Consultation was 2 Register pag. 44. b. granted the wordes of the Register are these Cum vos nuper ad corrigendum crimina excessus subditorum vestrorum iuxta Officij vestri debitum procedentes R. de C. militi obieceritis c. The like consultation is there founde agaynst a Chaplaine proceeded with ex Officio for fornication that had also brought a prohibition The wordes 3 Reg. pag. 45. a. of the Writ vnto the Ordinarie be these videlicet Cum vos T. de W. capellano ex Officij vestri debito obieceritis quòd ipse carnaliter cognouit c. in animae suae periculum scandalum aliorum vnde contra eundem ad correctionem animae c. As in other consultations there after prohibitions vpon vntrue suggestions had bene purchased An example is also 4 Reg. pag. 51. a. there of allowing by Consultation of proceeding ex Officio to the ende of enioyning corporall punishment agaynst one that laied violent hands vpon a Clerke whereby hee incurreth saieth the Writ excommunication ipso facto Likewise an 5 Reg. pag. 51. b. 52. a. Ordinaries proceeding ex Officio to the interdicting of a Church and to the inflicting of other Canonicall paines for with-holding and not finding of a Chaplaine or Curate to serue according to an ordination or reall composition thereof made is there approoued lawfull by Consultation granted And so is the like proceeding of Office allowed for 6 Reg. pag. 51. a. tithes with-holden falling due to the Bishop and Archdeacon in the time of vacation of the benefice for by the lawe and custome then in 1 Changed by the statute 28. H. 8. most Dioecesses of this realme tithes of vacant benefices were due to them In the writ of Consultation alleaged afore out of the 57. page of the Register for allowing proceeding ex Officio against a fornicator it is 2 Reg. pag. 57. B. also conteined that the partie before prohibition by him brought had submitted himselfe for which cause of the parties violating his owne submission and for his contempt mandatorum sibi factorum the Ordinarie is authorized and warranted to deale against him as afore he had begun ex officio By all which may appeare both the practise of Inquisition and proceeding ex officio in some cases by the lawes of the Realme and the allowance also by those lawes of such course holden in courtes ecclesiasticall both in offences and in other causes also that be neither
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
may penne his owne Commission will commonly make it large enough and he that may be allowed to frame and temper his aduersaries armour is likely to make it thinne and slender inough Were it then any maruell though this man should throughly answer such obiections as be wholy of his owne framing You are to vnderstand that by this worde the same in this place vsed he vnderstandeth generall oathes for a man to discouer all his thoughtes wordes and deedes whereof he had spoken in the sentence afore and this is the false issue which in the Epistle to the Reader I haue noted to bee by him tendered agaynst which if any reason materiall had bene brought by him yet it were but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is fighting with his owne shadowe and nothing touching any lawe or practise in this Realme In way of retortion against vs vpon this obiection he inferreth that all such are iustly reprooued who haue practised and put in vre this generall oath where otherwise there was sufficient proofe But he may not thus cary away this later point which he interlaceth viz. that there is no lawfull vse of any defendants oath touching a matter criminall where other sufficient proofes may be had For these absurdities hereupon would followe First where no witnesses are knowen to the Iudges aforehand though they come in after the parties oath taken that there a man by his owne periurie should bee for euer cleared and acquited and so without any punishment or other worldly danger hee might heape one grieuous sinne vpon another Secondly that a mans owne single oathe in his owne cause yea and for his owne clearing should bee as effectuall and powerfull as any two * Vide de hoc plura ca. vit 3. partis mens oathes by Gods worde are allowed to be touching another mans fact whether it tende to acquitall or to condemnation Thirdly it would thereof follow that all oathes in causes criminall should be of purgation and clearing onely and none at all of Enquirie But the Treatisour himselfe reasoneth also in this his booke against all cathes for purgation So that vpon the whole matter hee maketh all kindes of oathes by defendants touching their owne offenses or misdemeanors to be simply vniust and vnlawfull The contrary whereof in both will I trust be prooued Lastly it would hereupon follow that not onely Ecclesiasticall Courts but for auoyding like iniustice the Starre-chamber also should be barred from giuing an oath in any criminall cause to the defendant where the matter may perhaps bee prooued by witnesses But I pray howe can either the Court or the prosecutour tell precisely what the witnesses will or can prooue when they come to depose by vertue of their oathes For many a man when he is sworne telleth another tale then he did afore when his tongue walked at libertie Therefore by this opinion the Iudges for giuing the defendant such an oath shall so long remaine vnder a doubtfull danger to haue dealt vniustly vntill by the euent of the sute it might be discouered that the matter indeede coulde not bee proued by witnesses The Treatisor in refuting ex absurdo his own absurd obiectiō bringeth in by the way that these general oathes would enforce men to accuse themselues to their publike shame reproch or condemnation and their naturall parents deerest friends and neerest neighbours or else for auoyding of such mischiefe and inconuenience to commit most wilfull and damnable periurie and the Notegatherer sayth it is vnnaturall which because it will be perhappes applied also to all oathes giuen euen in a particular criminall cause and for that he thinketh this a matter very absurde therefore it requireth some briefe answere When a man vpon some such sufficient inducement as is spoken of in the second part is brought before a Magistrate by speciall Enquirie vnto examination his discouery against himselfe or other neither by Gods Lawe nor yet by mans Lawe is taken for an accusation vnnaturall but a necessary confession of trueth whereby God is glorified sin punished the common wealth benefited howsoeuer the partie susteine thereby some touch in his reputation Be not 1 Eccles. ca. 4. vers 24. 25. ashamed saith Ecclesiasticus to tell trueth for the good of thy soule for there is ashame that bringeth sinne and there is ashame that turneth a man to honour and grace and therefore he 2 Ibidem vers 30. 31. saieth afterward Doe not gainesay the trueth in anie the least point but be ashamed of an vntrueth though it proceede from thine owne ignorance Be not ashamed to confesse thy sinne and stop not the course of the floude And therefore in such respect hee ought not to refuse to take and performe his oathe as more fully God willing remaineth to be shewed hereafter Another obiectiō he also maketh falling not vnaptly into this place viz. that where losse of life libertie member of the bodie or good name may ensue there the presumption of periurie is great and where it is so great the sentence of the Magistrate trusting to such an oathe is grounded but vpon aweake and feeble foundation So that in this his presumptiō of periurie he matcheth without any good reason the danger of losse of good name with danger of life libertie and limme with better reason he might haue put in losse of worldly goodes and then by necessary consequence hee had taken away the vse of al oaths in euery subiect matter whatsoeuer For who knoweth not that for attaining riches and substance most worldly men not onely doe willingly hazard their good names honesties and reputation but that many doe also apparantly aduenture for them their liberties limmes liues and soules Therefore if for feare of periurie none oaths may be tendered whereby a mans good name may be questioned or impeached much more then ought they not to be where a mans welth and substance which most men doe most thirst after may be any way thereby impaired it is vpbraided as an affectiō too common with all men O ciues ciues quaerenda pecunia primùm Virius post nummos Vertue honestie and good reputation are esteemed by many degrees woorthie to come behind riches and therefore I answere that where a crime is in some sorte detected vnto the Magistrate alreadie the presumption is more strong that most men being sworne will rather deliuer a trueth yea though it touch themselues or their friends somewhat in reputation then that by periuring themselues they wil throwe both their owne bodies and soules into hell Nemo praesumitur immemor salutis aeternae saieth the lawe In deed where the Iudge hath good and probable inducements against some speciall person that he is like in any cause whatsoeuer to forsweare himselfe there as was said afore he ought to forbeare to tender an oath But it may not therefore bee made generall as if no man at all should be vrged to take an oath for feare of being periured Yet the Treatisour here
the end of the Epistle to the Romanes And againe the same Poet. Dicitur nostros cantare Britannia versus which argueth the vse and knowledge of the Latine tongue to haue bene then rife in this Iland That the Ciuill lawe of the Romanes was then vsed here their histories may testifie for they gaue their owne lawes to most of the Prouinces which they subdued and permitted 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to very few of them Many of the same lawes were also taken vp and reteined by the Saxons euen vntill the Norman conqueror brought hither established the customes of Normandie And namely amongst others they retained til then the law y t al brethrē should participate alike their Fathers inheritance And we do 1 Cic. samil 〈◊〉 reade that Trebatius an ancient Ciuill Lawyer and often alleadged in the Pandects who liued in Iulius Caesars time more then fourtie yeeres before Christ did remaine at Samarobrina in this Iland of Brytaine Likewise afterward the 2 Forcatulus very oracle of that Law Aemilius Paulus Papinianus did professe the lawe and kept his Tribunall seate of Pretorship at the citie of Yorke Fourthly that the Chancerie tooke this course many points besides from the Ciuill law is apparant by the whole course of other proceedings there viz. by the defendāts answer to the bil vpon his oath and sometimes to interrogatories by the sundrie issues that there may be tendred by that terme and whole maner of publication of witnesses depositions by examining witnesses vpon Interrogatories by examining witnesses in perpetuam rei memoriam by the terme and vse of finall decree and manie other such like points much varying from the manner of common Lawe and iumping almost wholy with the Ciuill And to conclude this consideration is thereby made more probable for that in elder times the Chancellors to the Kings for the most part were Clergie men whose studie and profession then was the Ciuill lawes Therefore this vrging to put in answere vpon corporall oathes taken albeit the matter in some degree happen to bee criminall being a speciall practise in that chiefest Court of Equitie can hardly be construed to bee against equitie and being in the originall temporall Court of the land cannot bee contrary to the fundamentall lawes of the same and that Court being of so great antiquitie and continuance this answere by oath can not be an abuse or corruption lately crept in wherewith the Treatisour without any ground chargeth all those temporall Courts that haue receiued it In the Court of Starre-chamber the proceedings are against crimes criminally mooued by way of Enquirie though for the most parte at the promotion or solicitation of some priuate partie grieued namely against forgeries periuries subornations ryots rowts and other sundrie heinous misdemeanours against which there lieth no capital punishment nor losse of limme by the common law Yet is the defendant there to answer vpon his corporall oathe not onely to the bill preferred against him but to as many other perhappes sometimes euen crosse Interrogatories as the Counsell of the plaintife shall deuise But to this I heare it is replied by some that there bee two maine differences betwixt the course there and the proceedings in a Court Ecclesiasticall The first that none there is bound to take his oathe but onely where there is an accusation preferred against him by an other so as if he purge himselfe lawfully hee is to recouer dammages Touching recouery of dammages if by dammages be meant costs and charges these for the most part be in this case also giuen euen by the high Commission that is so much impugned For except it be immediately for the Queene there is a partie bound to prosecute and pay charges if the defendant bee molested without cause But if such dammages as they terme them bee recouerable in the Starrechamber I thinke they are not very great and where the matter is preferred once by her Maiesties learned Counsel I am tolde there be no costs adiudged though the defendant happen to be cleared But if in this behalfe there were any difference yet it makes no difference in the very point in handling videlicet that an oathe is there giuen to the partie in a cause criminall and penall to himselfe The other part of the replic builded vpon an accusation there preferred is indeede different from the course of Ecclesiasticall proceeding but yet if there be equitie for it in the Starre-chamber it doeth much more fortifie the giuing of such an Oathe in Courts Ecclesiasticall For in these Courts if there be an accuser or any partie that informeth or promoteth then the defendant is neuer examined by oathe vpon the very crime For when a partie prosecuteth who as the law intendeth doth it for malice reuenge or some other particular respect hee is not so much fauoured nor priuiledged in the proceeding as when the Iudge ex officio Nobili euen for his duties sake and for the publike commoditie of the common weale doeth make the Inquirie If then it bee both equall and lawfull in the Starre-chamber at the prosecution euen of a priuate person who may be intended for the most part not to doe it of conscience onely zeale of Iustice to haue vice punished to examine the defendant vpon his oathe for discouerie ofte times of faults and misdemeanours euen openly doone and committed and so the more easie to be prooued by witnesses and where the punishments are vsually corporall and otherwise farre more grieuous then bee inflicted in any Court Ecclesiasticall then howe can it in an Ecclesiasticall court be thought vnreasonable whereas the office dutie and charge laide vpon the Iudge are by common entendment the onely exciters and causes of prosecution and where if it be an Ordinarie Court canonicall penance for the reformation of the partie is inflicted And if it be before the Commissioners Ecclesiasticall neither their greatest corporall paine is so grieuous nor their fines so deepe And yet many of the crimes are as heinous towards God as secretly and closely committed and plotted as any crimes are that bee punishable before their Lordships in that most honourable and sincere court of the Starre-chamber The second difference by some taken in this behalf betwene these proceedings I heare is this that in the Starre-chamber a man is not driuen to answere directly to the fact it selfe but onely to the circumstances of the facte as was in Trussers case as is saide But I am certainely informed by those that haue better cause to knowe the practise of that Court then the Authour of these obiections and differences that the practise of that Court is cleane otherwise As for Trussers case it was the felonie onely a matter capitall to him that was ordered not to be enquired of him by Oathe but touching the lewd confederacie it selfe and of his other practises about it he was ordered by oath to answere them So that the reason of the like equitie in both courts
these notwithstanding remaineth still vnshaken To this reason as is noted else where the Treatisour also for his parte doeth thus answere viz. that the Starre-chamber requireth answere to matter in facte doone eyther to the iniurie of a priuate person or hurte to the publike State as if he would insinuate that Courtes Ecclesiasticall vrged Oathes in farre more vnreasonable cases Truely if the iniurie reach onely to a priuate person without any further offence or scandall the imposing of anie such oathe by Ciuill or Canon lawe will not be iustified and other then for answering matters in fact do one to the breach of lawes or to the offense of Almightie God and consequently to the hurt of the publike State none oathe is at any time there exacted Yea not onely in the Courts aboue named but in al the other Courts of Record at Westminster I am credibly informed that time out of minde it hath beene obserued for the Iudges by corporall oathe to examine any person whome they had cause in discretion to suspect to haue dealt lewdly about any writ returne entrie of rule pleading or such like matter not being capitall touching their seuerall Courts as namely Sherifes their vnder Officers Ministers Protonotaries Philizars Chirographers keepers of Records or Rules Clerkes and sometimes Councellours and Atturneis or the very parties hauing suites But because the Commission as the Note-gatherer collecteth bindeth them precisely to crimes punishable by the Ecclesiasticall law and to proceede according to the Ecclesiasticall lawes of the Realme and not according to the temporall therefore saith he it is a friuolous allegation to say such a thing is vsed in the Starre-chamber Chancerie or the Benches ergo the Ecclesiasticall Commission may do the like First here hee calleth them Ecclesiasticall lawes of the Realme how then are they foreine and strange lawes and sinewes of the Romish Cerberus as the Treatisour raueth Secondly if Courtes Ecclesiasticall may not deale according to temporall Lawes why doeth the Treatisour threaten them with praemunire for that the policie of this Realme knoweth no such oaths as he argueth What may they neither deale according to temporall Lawes nor yet in a different course from them Thirdly the antecedent is vntrue for by that Commission the breach of foure Statutes be enquirable and punishable and the punishment also may bee other then Ecclesiasticall as is prooued in the first parte Lastly none that stand in defence of these oathes do drawe their reason onlie from the practise of temporall Courtes in that sorte as hee surmiseth but thus Whatsoeuer the Ecclesiasticall Laws do allow and require being not contrary nor repugnant to the Queenes prerogatiue royall nor to the Lawes Statutes and Customes of this Realme that may be lawfully practised by Iudges Ecclesiasticall But this oath is such by reason that sundry temporall Courts by lawe holde the like course and doe not prohibit it in courts Ecclesiasticall so that not being so much as diuers courses they can not be contrary or repugnant therefore these oathes are lawfully practised in Courts Ecclesiasticall or thus That which is iustice and equitie in one court cannot be vniust vnequall or cruell in another court that is thereunto no lesse authorized then the first but such be these oathes as appeareth by the practise of the aforesayd temporall courts therefore they are lawfull and equall also in Ecclesiasticall courtes But for more particular and fuller proofe of these two minor propositions I will speake first of oathes prescribed by statutes And in these first of such as be taken in matters that may onely bring dammage to the takers of such oath and then of oathes taken in matters both criminall and penall to the partie that takes them By the 1 13. Ed. 1. stat Winton statute of Winchester men within certaine yeeres of age are to be assessed and also sworne to haue all such assessed armour in their houses The 2 17. Ed. 2. Praerog Reg. ca. 4. kings widowes that haue dower of lands holden in chiefe of y e king must be sworne not to marry without the kings licence By a 3 25. Ed. 3. de seru. ca. 2. 7. statute of king Edward the third a taxe is set what labourers shall take and they are thereby appointed to be sworne to doe those labours and to take no more then is allotted them And that they shall not in sommer depart to serue in other places then where they serued in winter This oath is to be taken twise in a yeere and if any of them refuse to take it hee is to be sent to the stockes or gaole till he will reforme himselfe Likewise by 4 27. H. 4. ca. 17. another statute afterwarde all labourers and seruants are appointed to be sworne both to doe seruice and to take for the same according to the statutes And if they refuse they shall be set in the stockes for three dayes till they will agree to it and if they doe not from thence shal be sent to the common gaole The 5 8. H. 6. ca. 7. sherife hath power by statute to examine euery chooser of a Knight for the Parliament vpon the Euangelists how much he may dispend by yeere Those that shall 6 27. Ed. 3. stat stapulae go about to shippe ouer any woolles and other merchandises the Maior of the Staple and Customer shall make them take oath that they shall not keepe Staple of those merchandises on the other side the Sea 1 11. H. 7. ca. 33. Likewise he that shall shippe an horse to carry ouer Sea must sweare that at the time of shipping him and at that time he sweareth he is fully purposed not to sell him but to haue him for his vse By the statute or awarde made at Kenelworth all that had to doe in that behalfe were appointed to 2 51. H. 3. sweare vpon the holy Gospels of God that they should not take reuengement c. by occasion of the commotion For the 3 Stat. de stap 27. Ed. 3. ca. 6. value of merchandise brought in by strangers if they haue not letters of credence thereof from their lordes or companies they are to take an oath The master 4 23. Eli. ca. 6. owner or shipper is to giue true information by his oath concerning the burden of his shippe to the intent the money out of euery tunne allotted to Douer hauen may be receiued All which oathes though most necessarie and equall yet you see howe they may bring great dammage and losse vnto the partie Nowe touching oathes appointed by statutes that may tend and reach to make the partie discouer euen matter criminall or penall to himselfe By the 5 Statut. de Exon. de Inquisitione super Coronatores anno 14. Ed. 1. Rastall tit Coroners nu 3. statute of Inquisition vpon Coroners the Enquirors shall make all the Bailifes sweare that they shall well and faithfully doe that which they shall haue in charge
against the parties examined and therefore to be tendered more then ex mero officio In matters that may induce dammage to him that sweareth there be sundrie examples at the Common lawe one or two may suffice If 2 T. 25. Ed. 3. fol. 44. a woman couertbaron being to acknowledge a fine it be doubted whether she be 21. yeeres of age or no she shall be examined vpon her oathe In an 3 P. 3. Hen. 6. 38. action of detinue of goods supposed to be deliuered in Fleetstreete the Plaintife was examined where they were deliuered An 4 H. 3. H. 6. 30. obligation bare date in the Countie of Lincolne and a Scriueners name was put to it that remained in London hereupon the Plaintife was examined where the obligation was made Besides the dammage hereof the circumstances of this might be such as might haue vrged him to discouer perhaps a forgerie It is a commō practise in this land straitly to examine persons holden suspected of some crime or offence and to vrge their answers or else the Magistrate will and must needes holde them greatly violently to be suspected litle lesse then conuicted If an vnlikely person but suspected at large be found in a priuie search or stayed as he passeth and be brought before a Iustice of peace or higher Officer is he not straitly thereupon to be examined of his abilitie course of life trade and place of abode c. which may importe Roguerie that is both criminall and very penall to him if he be such an one in deede and shall choose rather to endure the penaltie of lawe then to lye before God and his Magistrate If to this it be answered that such examination is without oath I replye that this is but as it happeneth but admit it so be yet the matter is hereby nothing holpen For as to this purpose of being vrged to discouer him selfe which these men call accusing in a matter criminall penall it comes all to one passe because he must either holde his peace altogether or confesse the truth plainly both which may bring him to punishment or else he must lie whereby he grieuously offendeth God though not in so high degree indeede as in periurie neuerthelesse this bond of not saying vntruely before a Magistrate must needes be counted a kinde of causatiue vrging of a man that hath any conscience to discouer matter of crime against himselfe if he be guiltie in deede of that which is asked of him If a Sherife Stewarde of Liberties Reeue Bedell of Strayes and wayues rentgatherer sheepe-Reeue Baylife Baylife of husbandry or other accountant to the Prince or any great Lorde be vrged by their Auditour to giue vp their account vpon their oathes as is vsually done doeth not this in case they haue done negligently or deceitfully tend to bewray or if ye wil accuse them selues in a matter ignominious to themselues and in it selfe criminall The Treatisour himselfe though he bend most of his ordinance against this point yet when he had more exactly a little waded into and weyed the matter seemeth but onely to finde fault with sifting generally by oath of all mens thoughts words and deedes and especially sayth he in another place in matters of life and death which his issues if he will not waiue and relinquish there is none I thinke in this Realme that will impugne that his assertion either by colour of lawe or by rigour of practise For euen at the common lawe oathes in matters criminall and penall to the parties bee oftentimes necessarily to bee taken when they are enioyned For if 1 Stanford Pleas of the Crowne li. 3. ca. 14. a man sue an appeale of murder against another who will bee tryed by battaile the defender that is appealed must before the battaile holding his aduersarie by the hand solemnely sweare thus Heare this you whome I holde by the hand who call your selfe by such a name I haue not feloniously murdered your father c. so helpe mee God and all Saints Of Oathes ministred at the Common lawe tending to the discouerie of matter criminall and penall to the partie himselfe I finde these examples One 1 M. 34. Ed. 3. fol. 3. sworne of a Iurie did after departe from his fellowes In the meane time an other was sworne in his roome But when the first returned hee was by the Iudges ex officio examined vpon his booke oathe whether hee had talked with the defendant or beene in his company since he was sworne This if he had confessedit as it is an offence so had it beene very penall vnto him Neuerthelesse for his apparant fault of departure hee was committed and fined In an action 2 T. 7. H. 4. fol. 19 of Formedon the tenant of the land was supposed to confesse the action of the demandant by couin and was thereupon examined by the Iudges and the couin being thereby founde it was decreed there should be no iudgement and that he should be punished by their discretion A 3 P. 9. H. 5. 1. woman brought an appeale for the death of her husband but as it was supposed by another name then she had in very deede vpon which couin she should haue beene fined and thereupon she was examined A 4 H. 35. H. 6. Fitzh Abridgem tit examinat nu 17. Iurie after they were gone together were supposed to haue receiued a letter on the behalfe of the defendant which in law is said to be a grieuous fault and it is to be grieuously fined yet all the Iurours were thereupon examined vpon their oathes A 5 M. 35. H. 6. 11. Sherife returned that certaine witnesses who should haue appeared were dead whereof it was desired he might be examined because the returne was razed and two of the witnesses were saide to be aliue whereof one was then in the Hall and had his remaining in the Countrey Whereupon the Sherife was examined which Prisot enformed and hee deposed that the returne was made by a Clearke and neither by him nor by his Vnder-sherife and that he knew two of the witnesses were liuing Now if he could not with a good conscience thus haue cleared himselfe vpon his oathe had not this crime of razure and false returne beene verie penall and shamefull vnto him being so directly contrary to honestie and to his oath taken at the entrance into his office 1 H. 10. Ed. 4. 16. And it was at another time the opinion of the whole court if the parties in a cause had then had a day in courte that they might haue examined them touching their couin and lewd practise tending to defeate another man of his lawfull action They haue a certaine custome in London and it is allowed for good by the Common lawe of the Realme 2 Brooke tit ley gager nu 77. That if the defendant thinke the plaintife haue made a false declaration in an action of debt he may desire to haue the
plaintife sworne to the trueth of his declaration and shall haue it If the plaintife sweare the defendant is condemned and if the plaintife refuse he is barred And may not this delation of such decisorie oath occasion and causatiuely vrge the plaintife sometimes to discouer himselfe to haue demaunded a debt not due which is dishonestie and vniustice or perhaps induce him to periurie partly for filthie lucres sake partly that he may not seeme to haue dishonestly demaunded what was not due vnto him if then a priuate person neuerthelesse may so deferre an oath but in a priuate money matter how much more may a magistrate in a publike crime these doubts and perils notwithstanding And the like decisorie oathes be not onely receiued in that Citie alone but also at the common lawe For 3 19. H. 6. 43. when 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 In an action of 4 44. Ed. 3. 41. detinue brought against a Deane for a chest sealed with certaine golde siluer and Charters in it as being deliuered to his predecessour the Deane tendered his law that is his oath quod non detinet and the opinion of the court was that he should haue it Now who seeth not howe many wayes this course may no lesse induce men vnto periurie For doeth not common experience teach vs howe readily for a trifling piece of gaine tradesmen in buying and selling will sweare falsely or els cautelously which is all one fault before God yea when as no such matter is required or exspected at their hands therefore howe much more strongly may periurie bee feared in a matter of good weight especially when men by the vexation and sute of their aduersaries are whetted on and where as they hauing a good while stoode in deniall their credits amongs other men might otherwise be called in question and seeme to be impayred And yet this danger that periurie may perhaps ensue is no sufficient reason to change the common lawe in this behalfe Howe then can most of the Treatisours arguments holde which are chiefly grounded vpon perill of periurie which he saith is likely a man will fall into rather then haue his good name and honestie brought into question and hazarded I haue also credibly heard that in the time of that Reuerend Iudge Dyer the court of Common pleas examined certaine by their corporall oathes touching a very lewde plat layde by some of them and the names of the dealers pro contra in that cause were as I remember Greuill Pyue and Hockam which being so found out was condignely also punished in some of the offendours both by perpetuall infamie and with other punishment CHAP. VII Wherein are conteyned answeres to such obiections and reasons as bee made for proofe of a contrarietie or repugnancie in these oathes vnto the statutes lawes or Customes of this Realme and a Replie to the Treatisors answeres made vnto certaine obiections supposed likely to be made in Iustification of this kinde of oath by the temporall lawes IN this Chapter I purpose God willing to answere those poynts which by the Treatisour or Note-gatherer are brought to perswade that such oath as here we handle is either plainely impugned or closely contraryed by the lawes temporall of this Realme Vnder this consideration doe fall certaine bare affirmations about this matter their reasons for this assertion and their answeres to such obiections as are by them supposed may be made in defense of this kinde of oath Among their bare affirmations about this matter I recken some things which they imagine to be sayde or practised by Ecclesiasticall Courtes or persons and that which they affirme the common lawe either holdeth or practiseth on the one side or els on the other side forbeareth to put in vse in this behalfe To the poynt of practise by persons and Courtes Ecclesiasticall are referred those the Treatisours imputations whereby he surmiseth generall oathes for all a mans thoughts wordes and workes to bee ministred by them and that vpon the Ecclesiasticall Iudges onely iealousie and suspition without any other lawfull inducement precedent Likewise that it is tendered in matters tending to losse of life or of limme All which I haue else-where shewed to bee very vntrue and slanderous Hither also is to be reduced another speech of the Treatisours for whereas the defenders of this oath doe affirme it as it is practised but not in such a catholike or vniuersall maner as he sporteth himselfe at to be warranted by the temporall lawes he saith that this is a foule sclander both to our lawes and to the Iustice of our land The trueth or falsehoode of which his fowle saying will appeare vpon perusall of the next precedent of this and of the next Chapters following And so will also these other his speeches to like purpose viz. where hee calleth it an alien heretofore entruded as a trouble some ghest into the house of our common wealth And where he saith that as Sir William Thorpe by his corrupt dealing so much as in him lay had broken the oath which the king is bound to keepe towards his people so the ecclesiasticall Iudges practising in their Courts and tribunall seates the selfe same vniust and vnlawfull maner of proceedings against the kings people coulde not escape the seuere sentence of lawe pronouncing them offensiue butchers and violatours of the king and iniurious dealers agaynst his Regalitie crowne and kingdome and so consequently c. in a Praemunire But for any testimonie of this corrupt dealing of Sir William Thorpes which here hee speaketh of or of his breaking of the kings oath and so seuere sentence of lawe passed in that respect against his butcherie and violation of the kings Regalitie c. though I haue sought for it yet can I not finde neither doth the Treatisour giue vs any direction for it His meaning herein though couered with slye wordes is easie to bee discerned through his vizard For if the oath were made by the king onely how could it bee broken by Thorpe and the king bee vnblameable for no man is simplie bound by oath to performe other mens integrities and seeing hee chargeth ecclesiasticall Iudges with the selfe same vniust and vnlawfull maner of proceeding though his conclusion drawen from the likenesse betwixt these cases be onely this videlicet that they are thereby fallen into Praemunire yet his very meaning and what conclusion was by him meant to haue followed thereon by the former part of the comparison is made apparant videlicet a couert disloyall and most lewde charge as if some now had no lesse broken the oath which they haue taken howbeit procured or induced thereunto by Iudges and Courtes ecclesiasticall But if such Ecclesiasticall Iudges haue neither indeuoured any such breach neither yet their practise of the oathe by him here condemned bee impugned by any
lawe then can it not bee auoided but that the Treatisour in very deede had such an vnduetifull and slaunderous purpose and reach in his words aforesayd To the second degree of their bare affirmations such speaches of Temporall Courts practise or forbearing to practise as these following bee doe belong videlicet that such a generalloathe or such like ex officio was neuer offered nor taken for you may perceiue he is not resolued throughly whether of these two hee had best insist vpon or take for his issue And that the common lawes haue euer reiected and impugned it Likewise that it was neuer put in vre by any Ciuill Magistrate of the land but as it is corruptly crept in amongst other abuses by the smister practises and pretenses of the Romish Prelates and Clergie-men which asseueration as it is in that part voyd of all likelyhood where it is surmised that the practises pretenses of Clergie-men did first shoulder this oath into Ciuill or Temporall Courts so is it yet an implied kind of confession that it is not such an Alien to the Ciuill pollicie of the Realme nor by it wholie reiècted impugned as in his treatise he beareth vs strangelie in hand Besides that such implication is flat repugnant contradictorie to y e Note-gatherer who writeth that it was neuer vsed here to make men accuse themselues for by this accusing he meaneth giuing of oaths to defendants touching discouerie of some their owne offences Lastly that where losse of life libertie or good name may ensue the Common law hath forborne oathes As for losse of life it is yeelded to be true which he here saith but not so for the other two for the Starre-chamber being a Temporall or Ciuill Court imposeth oathes where both infamie may and doeth follow for punishment and where libertie is restrained most often by imprisonment and sometimes also by banishment Vnto the other head of their bare affirmations which is what the Common lawe holdeth in this behalfe such of their speaches as these following doe appertaine videlicet to giue oath they meane to the defendants in causes of life and death is contrarie to the Iustice of the lande This albeit it no way impugne any practise Ecclesiasticall yet is it flat repugnant to the Note-gatherers assertion spoken vnto in the 1 ca. 10. pag. 93. second part Agayne that the Common lawes haue not appoynted an oath to bee vsed but according to the right institution thereof and that in causes capitall or criminall these lawes neither vrge by oath nor force by torment a thing most cruell and barbarous and therefore agaynst torturing he alleageth master Fortescue in his booke De laudibus legum Angliae It is wholie besides my purpose either to auow or disauow here the course of finding out trueth by torture yet much might on both sides probablie bee sayd therein both by reason and also by graue authoritie That the defendants oath in causes capitall neither is vsed nor allowed by the lawes of this Realme I doe yeeld vnto him as afore I haue sayd but for torture let me neuerthelesse put him in minde that it may perhaps be thought of very hard to haue it thus affirmed that the torturing of supposed Capitall offenders not only vsed in Campes but also within the Marches principalitie of Wales euen in time of peace well warranted by her Maiesties instructions and by Act of Parliament in the Tower of London for matters of treason should all of them be accounted absolutely contrary to lawe or which is more to bee courses most cruell and barbarous The other poynt thereof which is of not vrging a defendant by oathe in any cause criminall is the maine point here trauersed betwixt vs and therefore may not be caried thus away by him per petitionem principij without some sound reason All these aforesayde speaches I doe muster amongst their bare affirmations and haue the longer stoode vpon them because themselues doe not so much as assaie or vndertake to prooue most of thē by any colourable argument or authoritie for that the reasons which they tacke on vnto some of them doe not hang together by any consequence and for that diuers of them might bee granted without any detriment to the cause which wee defend for they be but voluntarie speaches let slip at randome this therefore commeth vnder his mistaking of the true issue yet they be such as seemed not vnmeete to bee mentioned least if the Author of them doe happilie holde them for sound reasons hee should complaine to haue a piece of wrong offered vnto him for that all his booke was not spoken vnto and answered Next doe follow those their reasons to be discussed which they take from the lawes of this Realme and first concerning such of them as be made out of Statutes and afterward we will come to their booke cases That which hee speaketh of Magna charta albelt he handle it last yet for the ancientie seemeth to deserue the first ranke he auoucheth no particular part thereof but taking as graunted a contrarietie belike in his opinion not trauersable to be betwixt proceeding by this oath and the sayd Statute he onely in high wordes telleth vs of a most iust curse of Anathematizing laied by the Bishops then against all wilfull infringers of that Charter If I should gesse what poynt thereof it is which hee intendeth to bee so contrary to these oathes I would take the nineteenth chapter thereof if any to bee meant both because putting to an oathe is there mentioned and for that I haue heard it to like purpose alleaged by some other Howbeit the Treatisour hauing farre better insight as seemeth in lawe then hee that so alleaged it thought good to skippe it ouer without all allegation for feare it would not so wel helpe his turne The wordes are these videlicet No 1 Magna charta ca. 19. Bailiffe shall from hencefoorth put any man to his open lawe nor to an oathe vpon his owne bare saying without faythfull witnesses brought in for the same I must confesse that these wordes are some thing too obscure and darke for mee to vnderstand what is positiuely and preciselie meant by them and so much the rather because I know not the vsage afore that time which thereby was ment to be remedied except I should coniecture that the bare saying there spoken of is to bee referred to the man that taketh the oath and not to the Bailife and then would it seeme to establish that practise which is vsed in waging of lawe with two or more witnesses or handes concurring with his oath that sweareth Howsoeuer it be in verie deed to be vnderstood it is easie inough to gather what can not be meant by it First therefore it cannot any way be extended to proceedings and courtes Ecclesiasticall for whatsoeuer is in that Statute graunted after confirmation of the Churches liberties except it bee otherwise plainely expressed is referred to Courtes
statuti anno 5. Reginae nunc and it was doubted if the defendant would pleade not guiltie whether he should be sworne to his Plea and also to answere to Interrogatories as is vsed in the Starre-chamber And it was resolued by the opinion of Catline Dyer Saunders and Whiddon that hee should not be examined nor sworne vpon Interrogatories except the court of Chancerie had absolute authoritie and had vsed to examine periuries in that court before the Statute for then this is still reserued by the last Prouiso of the Statute as it is also for the Starre-chamber Otherwise if the court of Chancerie will examine periurie committed there as it may by Statute this must be by Latin Bill and bee pleaded in Latin and issue must be ioyned there to be tryed in the Kings Bench as in like cases is wont In this whole report as there is nothing that tendeth to the absolute impugnation of oathes in some causes criminall so is there not any point which we doe not willingly embrace and like of For the Chancerie being a court by the institution whereof to handle by Bill and answere in English no crimes but ciuilly laide and not criminally mooued to the intents of any punishment vnto which Bill the defendants must answere vpon their oathes therefore it is no marueile when by Statute any new authoritie is giuen therunto as in this case that then the course of the common lawe should be folowed except such Statute do otherwise determine But hereupon might well be gathered that defendants oathes to English Billes there alwayes vsed albeit criminall matters touching their shame and dishonestie be diduced and in other courts thereunto authorized the continuall vse of such oathes euen for crimes criminally mooued are no way against the Lawe of the land For we see that it is here yeelded to be lawfull in case the Chancerie had vsed such course afore Also that it is vsuall and lawfull in the Starre-chamber and that these Iudges opinions reach no further but that the partie accused of periurie should not be examined by oath vpon Interrogatories in the Chancerie for answering of Interrogatories vpon oath is not vsed there no not when the crime is but ciuilly prosecuted except the other partie will be contented to be wholy concluded by his aduersaries answeres that shall be so made to his Interrogatories Another case at the common lawe is alleaged by the 1 Notes tit the lawes of EnglaÌ„d Notegatherer thus It appeareth sayth he by the Lord Dyers booke that one Hinde being called before the Commissioners Ecclesiasticall for vsurie refused to sweare whereupon he was committed but vpon an Information in the common Pleas he had a Corpus cum causa to remoue him so as it seemeth that the Iudges were then of opinion that the Commissioners could not then giue them any such oath hereof he giues vs not any direction to finde out the particular place of this report All that I can to any such effect hit vpon is onely this marginall note viz. Simile M. 18. fol. per Hynde qui noluit iurare coram Iusticiarijs ecclesiasticis super articulos pro vsura so that if this be the place being but a Marginall note it can not necessarily be fathered as a Report of the Lord Dyers the rather because it is not likely that he would terme ecclesiastical Commissioners by the name of Iusticiarij ecclesiastici for the perfitnes thereof it might seeme rather to bee some note of the Notegatherers owne then any of Iudge Dyers gathering Secondly here is no mention of Hindes commitment nor of corpus cum causa nor that the sayd writ vpon information was graunted out of that court of common Pleas so that these bee but the Notegatherers owne surmises and gesses Thirdly before it might bee inferred thereof that the Iustices then were of opinion that Commissioners Ecclesiasticall might not giue any oathe in a matter of vsurie and so by like reason as hâ—…e gathereth in none other criminall cause this case in the Margent must first bee made like vnto that case which is in the text it selfe Nowe that conteineth no more but that one Skrogges appearing before certaine speciall Commissioners by 〈◊〉 Maiestie appoynted to heare and determine the validitie of two seuerall Patents of an Office the one graunted to the sayd Skrogges and the other to Coleshill and refusing to make any other answere then a demurre vpon the Bill and to the Iurisdiction graunted them by that Commission and being committed to the Fleete for such contempt by the sayd Commissioners was neuerthelesse by a Corpus cum causa out of the common Pleas remooued from prison because he was a person belonging to that court and a necessarie member thereof But where doeth it appeare that this Hinde was likewise a member of that court Or howe can these be like cases when as in Skrogges cause none oath was vrged neither was the Plea betwixt him and Coleshill criminall as this was betwixt the office of the Commissioners and Hinde Or where may Hindes case at large be found in Michaelmas Terme 18. Eliz. seeing no such matter is in the L. Dyers reports of that yeere Or howe can it be made to appeare that the Commission Ecclesiasticall was then perused the Statute whereon it is grounded considered of the whole matter argued and debated any such opinions yeelded or yet that Hinde was not by the court sent backe againe to prison though it were admitted he had once such writ as many other in like cases before and since that time haue bene for all the similitude which that Note mentioneth might rest in this one onely point viz. that as the one being committed for contempt by vertue of the Queenes speciall Commission had notwithstanding his writ of Corpus cum causa so the other had it likewise graunted But there might also be in the eighteenth yeere of her Maiestie other good cause to deliuer Hinde clearely out of prison being called before the Commissioners into question for vsurie if it were not aboue tenne in the hundred and yet oathes in any criminall cause besides ministred by Commissioners Ecclesiasticall shall be no whit thereby impeached or preiudiced because afore that viz. in the thirteenth yeere of the Reigne of her Maiestie a 1 〈◊〉 Eliz. ca. 8. Statute was made forbidding any punishment then that which is conteined in that Acte to bee inflicted by lawes Ecclesiasticall vpon vsurers so their vsurie amount not aboue the rate of ten in the hundred for one yeere therefore it might well haue bene that Hinde was so deliuered from his commitment not in respect of any vnlawfulnes by the Iudges deemed to be in such oath but for that y e conysance punishment of his crime by reason of that Statute belonged not then and in that case to an Ecclesiasticall Court This point the Treatisour further enforceth also by the formes of a peece of a precedent of a prohibition and another of Attachment thereupon
the Imposers of them to be in a Praemunire for incroching vpon the Kings rights and prerogatiues and for conuenting subiects by forrein made Lawes and for practising Antichristian Decrees and Popish Canons which hee sayeth appeareth by the Praemunire brought by Hunne against a person suing the said Hunne for his yoong deceased infants bearing-cloth by the name of a Mortuarie in an Ecclesiasticall Court howe doth this inferre that it is Praemunire either to encroch vpon the Kings rights prerogatiues though this peraduenture by some circumstances may amounte sometimes to no lesse or to conuent subiects by foreine made lawes It may not be thought that euery intrusion deteiner or concealement which is incroching vpon the Kings right or rauishment of his wardes which hee ought to haue by his Prerogatiue Royall is straightway and necessarilie a Praemunire neither were the Kings Temporall Courtes in this case encroched vpon because they could not giue remedie for deteining a Mortuary if this were so in trueth to be accounted neither yet is there so much as any mention made of foreine lawes which the Ecclesiasticall Court then proceeded by or practised This course of the Treatisour is rather to prophesie then to reason thus to tell vs afore hand vpon the very bringing of the action of Praemunire by Hunne what the iudgement was in that matter yea and vpon what ground the iudgement was giuen in a cause which neuer receiued iudgement for any thing I can learne To this point he also mentioneth the Praemunire wherein blind Nixe sometimes Bishop of Norwich was condemned and addeth to the aforesaid two points that by that also appeareth Iudges Ecclesiasticall are in Praemunire whensoeuer they exceede their Iudiciall authority But if euery exceeding of authoritie were a Praemunire then what Iudge is there of any court of either sort so skilfull or alwayes so aduised but might iustly feare that at one time or other he shall not escape this rigorous doom of Praemunire In trueth this example prooueth all his three points iust alike that is none of them at all I doe verily beleeue the Treatisour neuer sawe that Record if he haue either he makes verie bolde with his Reader or else with the Arte of reasoning thus to collect I haue perused the Record 1 H. 25 H. 8. Rot. 42. Suffolk it selfe it containeth a suite of Praemunire brought against the saide Bishop by the Kings Attourny generall on the Friday after the Pâ—…rification pleading the Statute of 16. Ric. 2 and adding that al Indictments Presentments and Impetitions in any court of the Kings 2 B. Nixe his condemnation in a Praemunite or in any Court of a subiects which is in any sort deriued or diduced from the Kings crowne duely taken or found are to be tried iudged in that Court where they were found or in some of the Kings Courts and not in any Ecclesiasticall Court and that whereas there was an old custome in the Towne of Thetford that whosoeuer should trouble any of the Kings or Duke of Lancasters tenants commorant in that Towne and shoulde call them by citation into an Ecclesiasticall Court out of the Deanery of the saide Towne shoulde thereby forfeit and he also that should execute such processe should also forfeit 6 shillings 8. pence which custom by a Iurie of twelue men being accordingly presented before the Maior the said B. cited the Maior two others to appeare personally before him in his Mannor and Chappell at Hoxne or Hoxstone in Suffolke The Maior and the one of the other two appearing and hauing nothing obiected but that presentment made were by the B. enioyned vpon paine of excommunication at the next court of the Kings to be holden in Thetford to call the same Iurours together and therepublikely to adnull and reuoke the said presentment as being against Gods Lawe so that saith the Record the B. did in an Ecclesiasticall Court iudge of the presentment being duely made in the Kings court and enioyned the reuoking and disanulling of it against the King his regalitie crowne c. wherevpon immediately the Bishop appeared and desired libertie of imparlance till monday next after and had it graunted vpon good mainprise c. On the prefixed monday the B. appeared againe and said he could not deny but that he was culpable in all the premisses put himselfe thereupon into the Kings hands c. so had iudgement to be from thenceforth out of the Kings protection and al his lands and tenements goods chattels to be forfeited to the King and that he should remaine in the custody of the Marshall quousque c. but presently vpon special grace of of the Court he was let to baile in a far lesse summe then afore for his appearance in Easter terme next after At what time hee appeared by his Atturney and both he and his pledges were discharged by vertue of an Act of Parliament made the same yeere Whereby wee may see that encroching vpon the Kings rights c. is not heere specially assigned for any cause of such iudgement and much lesse is the practising of any Canons or forreine made Lawes for they are not once mentioned and least of all that euery exceeding of their authoritie by any Court shoulde be a Praemunire For the originall and onely cause hereof was the B. enioyning of the Maior and of another townesman of Thetford vpon paine of censures to adnull and make voyde a presentment first duly made in a temporall Court of the Kings It is also to be noted out of the generall Atturneys bill in this Record where it is saide that presentments c. found or made in the Kings or in a subiects Court which is in any sort deriued from the Kings crowne must be tried there or in some of the Kings Courts and not in an ecclesiasticall Court that at this time Courts ecclesiasticall were not holden to be deriued any way from the Kings Crowne as no we they are and so bee acknowledged and indeede by conferring the times I finde that this fault of the Bishop was done in Nouember 24. H. 8. hee was attainted in Hilarie terme 25. H. 8. which is a yeere and more after and it was in a Parliament time that was continued till 30. Martij next aster Now the supremeheadship ouer the English Church was not yeelded vnto the King vntill the Parliament by prorogation holden the third of Nouember then next following viz. 26. H. 8. That which the Treatisour collecteth by Cardinall Wolseys Praemunire and the whole Cleargies also for assenting to and assisting the Court Legatiue which the saide Wolsey had erected hee himselfe doth sufficiently confute for albeit hee doe affirme that Wolsey was in a Praemunire for preiudicing but ecclesiasticall Courtes and not the Kings and thence gathereth thus How much more those which practise Antichristian Lawes and Popish Canons repugnant to the royall Matestie and policie of this laend yet doeth hee by implication contrary his owne
putteth him out of the Queenes protection forfeiteth all his lands c. and condemneth him to perpetuall imprisonment In a statute made against 5 5. Eliz. ca. 9. periurie the same time this prouiso is cōteined y t the said Act nor any thing therein cōteined shal not extend to any spiritual or ecclesiastical court or courts within the Realme of England or Wales or the Marches of the same but that al euery such offender and offenders that shall offend in forme aforesayd shall and may be punished by such vsuall and ordinarie lawes as heretofore hath bene and yet is vsed and frequented in the sayd Ecclesiasticall courts any thing in this present Acte to the contrary notwithstanding Where I thinke it will not be doubted but that vnder that worde punish is vnderstood the whole course also vsed by those lawes which must neeedes goe afore and doe tend to the conuicting of such faults as be thereby to be punished It was neuer claimed nor vsed by any Ecclesiasticall courts either afore or after to punish any periurie or subornation of periurie but either for breach of oathes voluntarily taken called laesio fidei in sort as is shewed in the first part or else for periurie or subornation thereof committed in an Ecclesiasticall court matter So that it can not be intended but that this statute meaning to reserue vnto courts Ecclesiasticall if not more yet at least the punishment of all false oaths there made did minde withal rather to establish then to preiudice oathes there appointed to be taken by such vsuall and ordinarie lawes Ecclesiasticall For if oathes especially in criminall causes were neuer there to be taken there could then be none at all or at least there would be much lesse danger of any periurie and breach of oath In the 1 5. Eliz. ca. 23. statute de excōmunicato capiēdo sundry grieuous crimes being of ecclesiasticall conusance are reckoned vp thereby it is also prouided that the significauit frō the Ordinarie vpon any of them must cōteine that the excōmunication proceeded vpon some cause or contempt of some originall matter of some of the said crimes there mentioned Now it is sure that after appearance yeelded cōtempts most vsually are committed by not performing something that is cōmanded according to that law as by refusing to sweare or being sworne to answere directly as a man ought So that this statute leaueth the determination of all such contempts to the disposition of that law by which the proceeding is made I haue touched afore in the second part certaine cases where the common law not only alloweth but also in some sort aboue the other course doeth priuilege vnto courts Ecclesiasticall the proceeding ex officio against crimes punishable by that Iuridiction As namely that in proceeding against an offence for laying violent hands vpon a Clerke Bryan and Littleton helde no man gainesaying it that the 2 M. 20. Ed. 4. 10. spirituall court may punish it ex officio but not at the sute of the partie least the beater be thereby kept from his absolution till some temporall duetie be contented and payde And 1 T. 12. H. 7. fol. 22. Mordant was of opinion that if a man be sued by a party prolaesione 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 shal lie And a iudgement giuen long afore in the booke of 2 Lib. 22. Assis. fol. 70. Assises seemeth to accorde herewith and to strengthen this opinion Fitzherbert in his Nouanaturabreuium reporteth the Lawe to be that an 3 Nou. nat breu tit consultation fo 50. deinceps Ordinary may cite proceede against a man ex officio pro violenta manuum iniectione in clericum Likewise for tithes deteined in the time of the vacation of a Benefice so also hee may cite those who refuse to mayntaine a Curate or Chapleine and for fornication and like offences But by the law ecclesiasticall according to which the proceeding is the course of proceeding against crimes and offences for the most part is by the parties corporall oathe vnto articles or positions of the very crime it selfe so there be precedent a donunciation a fame notoriousnes of the facte taking in the maner or anie other matter sufficient in law to open a way to such Enquirie That enquirie is allowed by common law vnto Courts ecclesiasticall and so consequently these oaths appeareth also further by two precedents of consultations set down in the Register The 4 Register tit Consultat fol. 48. a. former of them mentioneth alloweth of an Inquisition made by the Deane of Yorkes Officiall and of his proceeding therevpon for defects in a Chancell and for want of sundrie ornamēts and other requisites in a Church The 5 Ibid. fol. 54. b. other beside a consultation doth conteine also a cōmandement to the Ordinarie to take full information euen by way of Inquisition and by other meanes touching the value of tithes and to certifie into the Chancerie Now al Enquirie generally as is shewed afore is ex officio and is by oathes of other men in generall enquirie and in processu informatiuo and may be by the oath of the defendant in processu punitiuo so the crime be not capitall or of multilation of limme But to speake more particularly for proceeding of Office we finde there that an 6 Ibid. fol. 51. b. Ordinarie proceeded ex officio as for a crime against a parishioner for tithes deteined by him whiles a benefice was vacant That it is 7 Ibid. fol. 49. 〈◊〉 allowed vnto them to proceede against crimes ad correctionem animae we haue a precedent there of an Ordinaries proceeding against a lay man for vsurie euen at the instance of a partie grieued That against crimes defects and excesses they may proceede obiect articles ex ossicio 1 Ibid. fo 51. b. appeareth by the precedēt there set downe where an Ordinarie proceeded ex officio to the interdicting of a church by reason a part of diuine seruice as it was then holden founded to be vsed in that Church was withdrawen Where an 2 Ibid. fo 43. b. Ordinarie proceeded ex officij sui debito to the correcting of crimes and excesses of those that were vnder his Iurisdiction and among others obiected articles against a Knight for not sufficient reparations of a Church tending to the correction of his soule by reason of his deteining of that which hee ought not this is there allowed to belong to the court Ecclesiasticall and to the liberties of the Church Likewise we find there an 3 Ibid. fo 51. a. Ordinaries dealing allowed who proceeded ex officio against one that had laied violent hands vpon a Clearke so farre foorth as he dealt but for correction of the delinquent to the excommunication of him punishment of his sinne without adiudging any
poenitentibus 2. q. 6. in toto 6. q. 5. c. vlt. Item in princ cum c. sequ 15. q 5. c. si quis de gradu 4. c. sequ ex de purga Canonica c. 10. ibidem c praesentium 2. § praeterea singillatim cum sua gl de testibus in 6. c. cum I. A. de sent re iudicata est communis opinio Bartol in l. inter omnes §. rectè in fine ff de furtis Iul. Clar. q. 45. v. sed quaeso places of lawe by quotations and first out of the Ciuill before the Emperours were Christians and then after they were Christians as they be reported in Codâ—…ce Iustiniani and then out of the Canon lawe taken especially out of the ancient Fathers and Councels that by perusall thereof as your leasure may serue you may discerne vnto what member and part of the former distinction each of them may seuerallie be reduced This point might be further enlarged both by authorities of lawe by argument If he that hath 2 l. Marcel §. 1. fin cum ll seq ff rerum amotarum action for embezelling his goods which is but a priuate yet a criminall action at the Ciuill law will put it to the defendants oath to sweare that hee hath not embezelled them the defendant then must either take it or else be conuicted thereof Neither may he returne the oath backe vpon the plaintife the like is obserued in an action of theft which is no publike criminall action at the Ciuill lawe And the defendant may not answere 3 Bartol ibid. in l. inter omnes ff de furtis in l. de aetate §. nihil ff de Interrog act vnto these Interrogatories criminall by the worde credit vel non credit as he may doe in Ciuill actions but is to answere them directly yea or no. Though it be but at the suite of a 4 l. de aetate 12. §. qui. tacuit ff de Interr c. si post 2. de confessis in 6. priuate person if hee that is iudiciallie interrogated will not answere at all or doeth answer obscurely and peruersely he shall be holden pro confesso and be condemned no lesse then if he had confessed it because he therein contemneth the lawes and the Magistrate Likewise at a priuate persons suite and petition the oath of 5 c fin ibi DD. de iuram calumniae Iuramentum calumniae de veritate dicenda purgationis is giuen by the Iudge and 6 Abb. in c. veritatis nu 27. de dolo contu must necessarily be taken by the partie albeit the matter be criminall or else he shall be taken as conuicted thereof And when the Accuser in a criminall cause hath prooued nothing 7 Gail de pace publ ll 2. c. 7. est comm opinio per Socin seniorem in l. ait Praetor ff de iurâ—…ur besides probabilities and presumptions the Iudge if he will may minister of Office vnto the partie conuented an oathe touching the trueth of the crime called Iuramentum purgationis according to a former distinction And this kind of necessarie oath and the former haue place in 1 Clarus li. 5. §. fin 63. q. per Anaman alios all temporall or Ciuill courts abroad in the world as well as in courts Ecclesiasticall Then if where but a common person sueth either for his own priuate interest or for reuenge the Iudge by the Ciuill law may exact such necessarie oaths of the other partie importing oftentimes discouerie of matter criminall and penall to the defendant how much more then may the Iudge and ought hee to doe it after good presumptions and probabilities had where there is a publike interest growen vnto the Church or Common weale to haue the very trueth knowen for reformation of the partie and suppressing of the sinne or offence By all which premised we may see the equitie necessitie and true vse of such oaths by those two lawes Canon and Ciuill Besides those lawes it is also receiued and vsed by the Municipall and Customarie lawes of many nations of Chrstendome By the lawe 2 c. Sacramentum §. cum datur de consuetudine rectifeudi Feudall or as we here speake of Tenures such oath hath vse in crimes For if the obiected crime bee denied by the partie and cannot sufficiently be prooued he must then haue twelue compurgators to sweare of their consciences and credulities for his clearing after himselfe haue taken the oath De veritate vel falsitate criminis By the 3 Ord. Camerae Imper. tit de Purgatione ordinances and custoâ—…s of the Imperiall chamber seruing for all the Empire the like oath is vsed sauing that a Nobleman is permitted to take it by his Procurator authorized by him to sweare in animamsuam By the 4 Consuet Hungariae de Iuram Purgat customes of Hungarie there be many and long constitutions made for the taking of it and of the maner of this kinde of oath It is testified 5 Marian. in c. qualiter q. 84. Casonus in Pract. fol. 84. nu 3. also to bee the vsuall practise of all the seuerall dominions of Italie that the partie conuented in Temporall courts whether by way of Accusation or at the prosecution of another or by way of Enquirie ex officio Iudicis must sweare to declare the trueth in all those things that shall be asked of him euen of the crime it selfe Which proceeding is farre more grieuous and strict then is or may be vsed in any ecclesiasticall courts or any other in England For at the suite of a partie a man is not in any ecclesiasticall court here to be sworne De veritate ipsius criminis except there bee cause for the Iudge ex officio to enioine him his purgation And an other point of greater rigour there is that they giue such an oath not only where some corporall punishment is to be inflicted as in the Starre-chamber is vsed but where it is capitall to the partie or tendeth to the mutilation of limmes a course not allowed by the lawes and pollicie of this land For 1 Ordonnances du France liu 2. tom 2. tilt 14 du droict de refue haut passage c. pag. 1195. merchandise to bee caried out of the Realme of France the Merchant must make a declaration vnder his owne hand of the particulars thereof and the weight or measure in what ship and whither he will carrie it and that there is no more then is there set downe and that there be no deceitfull nor forbidden merchandise there and for the trueth of such note or declaration he must take an oath vpon the holy Euangelists They haue also another ordonnance in France to like purpose of swearing reaching to all Plaintifes declarations c. and to all â—…fendants answers c. without any distinction whether the same tend to discouer any crime of either of them or no. For
refused they neither had any wages nor any oyle or oliues For as it is by 2 c. fin §. 1. de iuram calum c. inter solicitudines d. lawe that when probable tokens or presumptions c. doe appeare hee that refuseth to take oathe though the cause bee criminall is reputed conuicted thereof So was it holden among the olde Romanes for an assured note of guiltinesse to refuse to take such oathe as may bee noted by the historie of Victorinus when hee was lord Generall of Germanie for 3 Xiphilinus in Commodo hauing his Legate or Lieutenant in some suspicion for corruption he did priuately seeke to perswade with him to take an oathe that hee would not suffer himselfe to be bribed which when he could not obtaine of him the Generall himselfe came into the Tribunall seate and there did sweare that he neither had nor euer would accept of anie bribes then he commanded his Legate to take and binde himselfe with the like oathe which because hee refused the Generall commanded that hee should giue ouer his office and place And that it might bee better discerned whether any man vpon guiltinesse of his owne conscience would at taking his oathe blanch alter the very words of the oath they somtimes deuied to haue a solemne oath whereby he that gaue the oath did vtter certaine set and conceiued words as he thought fittest which he that sware was preciselie to follow or else it serued not his turne as afore hath bene noted This they called Conceptis verbis iurare and the Graecians termed it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a solemne imposed oath An example hereof in a very fowle cause we reade in 4 Tacit. lib. 〈◊〉 Annalium Cornelius Tacitus The Senate couceiued a forme of oath and the chiefe of them first beginning to take it prouoked by their example all the rest of the Magistrates as they were asked their voyces to call God to witnesse that by their meanes nothing had bene done whereby the safetie of any citizen might bee hurt nor that they had gotten either reward or honour through the calamitie of any other Citizens but it was perceiued that such as had a guiltie conscience herein did come but tremblinglie to it and chaunged the set conceiued wordes of the oathe like as those are woont to doe who sweare falsely or cautelouslte When the Praetor one of the 1 Lex Seruilia Glauciae apud Sigonium li. 2. ca. 6 de iudicijs chiefe Magistrates of Rome had made choice of 450. Judges for deciding of causes he was by lawe for his owne clearing to sweare that hee had not wittingly chosen any of them dolo malo viz. by fraud mal-engine or for any other sinister respect By all which the premisses out of the Canon Ciuill and the lawes and customes of other nations may appeare how lawfull and equall a course it was by them also holden vpon sundry occasions to vrge oaths though some matter criminall in the partie himselfe might thereby be disclosed CHAP. X. An answere to some obiections pretended to be made against this kind of oath from the lawes Ciuil or Canon IN this Chapter such obiections as already are and some which perhaps hereafter may bee made against this kind of oath from the Ciuill or Canon lawes come to be answered Of these most be made by the Treatisour c. and some may hereafter be obiected perhaps by others The Treatisours be either against some circumstances about it or else against the oath it selfe But first touching his by-matters or circumstances Because the priuate Schedule concerning these oaths which was set downe by certaine Doctors as is mentioned in the epistle to the Reader conteineth that the defendant in a cause criminall is to answere other Articles so they be not tending to the crime it selfe though it be at the suite of a partie hee saieth that the Maxime of nemo tenetur seipsum prodere is thereby so weakened as it will scarcely nowe serue for a Minime For reason of this consequence hee asketh if this be not to goe like the crabbe oblique and to proceed the same way although not to treade the direct steppes and asketh also what should be meant by other articles but such as concerne circumstances and inducements to the crimes He is therefore to vnderstand that at the suite of a partie a man by those lawes is neither to answere criminous articles diducing 1 Angelus de maleficijs the very crime it selfe nor yet such as haue any neere coherence thereto or be propinqui Actus ipsi maleficio But of other matters hauing none affinitie with the very crime as whether he be of that Iurisdiction and such like the defendant is by vertue of his oath euen at another mans suite to answere and therefore no such crooked measure is offered herein at all But he seeth no reason he saith why there should be any difference betweene the suite and instance of the partie and the proceeding ex officio in that the reason alledged for to make a difference is but this Penancies enioyned by Ordinaries are not taken in lawe for poenae but medicina If he see not this why there should be any difference betweene those two proceedings I maruaile then what cause he can see so highly else-where to magnifie the course of proceeding by an Accusour as very equall and iust but to condemne simply all proceeding of Office as vniust forreine cruell heathenish and prophane and I know not what That he may therefore see great cause of difference betwixt these two let him a litle weigh with himselfe what the reason at the common law should be why an Appellee is allowed more freedome in sundry respects then a man endited at the Q. suite ex officio simply and why he may then put it to tryall by battaile with the appellor but cannot haue that tryall vpon an Inditement And also why a defendant against whom an Information is preferred for some criminall matter in the Courtes of the Q. Bench common pleas or Exchequer which neuerthelesse is by a kinde of proceeding mixt of both the kindes shall not be vrged to answere the bill or any interrogatories vpon his oath as all defendants in Criminall causes be forced to doe in the Starchamber He is also to be put in minde that men vse not in such briefe schedules as that was to alledge for euery matter all the reasons they can yet that one alledged is of it selfe a reason sufficient of such diuersitie for is there as great reason that I should vpon mine oath discouer my crimes being no way therof duely infamed or they otherwise proued for the satisfaction onely of mine aduersaries malicious humor by mine owne more grieuous punishment as there is when these or some like be precedent that I should to mine Ordinary or Spirituall father who in a farre milder course for his duties sake in charitie seeketh my good by reformation of me
iointly if some one of these must necessarily be foūd in euery lawful oth then to what purpose serue those other seueral ends of oathes here not required nor mentioned viz. that honor may be giuen to God Innocencie protected and Iustice mainteined Seing there may be assurance of dutie couenant contract or promise giuen without any seeking to glorifie God thereby as heathens othes of obediēce to their superiors any other mens oathes for assurance of promises c. without respect to protection of Innocencie and without such Iudiciall course namely as may happen in priuate cōmerce betwixt man man From these reasons by him simply propounded I wil now come to his reasons by way of cōparison He cōdemneth this othe by comparing it to Herods othe that as that was generall to giue whatsoeuer the damsell woulde aske so these are to answere whatsoeuer shal bee demaunded This his imputation vnto Ecclesiasticall courtes of tendering such generall oathes which he so often and almost onely beateth vpon to the entent to giue a better lustre to the weakenes of the cause he defendeth I haue as seueral occasions haue bene giuē declared to be a meere slaunder Neuerthelesse it was not the generalitie of Herods othe which was cōdemned For the prophet Ieremie made vnto y e king as generall a promise of answering what he would demaunde of him as Herod made of giuing vnto the dauncing damsell But it was the rashe vnaduisednes of it rising vpon a carnall delight and when he had made it a more vnlawfull performance of a thing simply wicked which are the things therein to be condemned Next to his collections by discourse of reason I place his answeres vnto obiections which are supposed may be made for establishing general othes or other more particular yet in causes criminal to the partie examined The first of which is that of 1 Ioann 18. v. 19. 20. 21. the high Priests who examined Christ of his disciples and doctrine he put them of to those that heard him saying he had spoken nothing in secret But neither answering to interrogatories being so general as this was nor general othes are defended And if they were yet it is not the example of the high Priest refelled by Christ that any would alledge as he pleasantly doth insinuate to burden them and the cause with the greater weight of enuie and preiudice But touching this obiection the true vnderstanding thereof more fully in the next Chapter as in a more fit place Touching the next supposed obiection he saith It is not any sufficient allegation to saye that the partie deponent is no further bound to answere then the lawe requireth how generall soeuer his oath be since it is not safe for the conscience of such a deponent to stand vpon termes and questions how farre by lawe and by what law he is bound to answere Not safe for his conscience c is not this plainly and directly to leaue it vnto the libertie free choise of ech deponent in euery cause whatsoeuer to refuse to take any oath thē which what can giue greater strength vnto that detestable error of Anabaptisme for if it be not safe for his conscience to put it vpon the question how farre by law he is bound then may and also ought the Anabaptist and euery other fantastike to be a Iudge for himselfe whether to take any oath at all or onely so far and in what cause himselfe listeth vnder pretense of his conscience In that hee saith how farre by lawe c. it seemeth to me that he is in doubt both that Gods lawe and all the lawes of the land are against the refusall of such oathe and yet that hee would neuerthelesse arme all deponents against taking this oath because it may not be done forsooth with a safe consciēce In y t he further addeth and by what law it is probable he would thereby insinuate that howsoeuer it wil not be thought good by many of thē to be resused when it shal be imposed in courts of the temporol law yet if the same oath be imposed by force of ecclesiastical law that it cannot then be so safe vnto the deponents conscience Assuredly it is most strange that men pretending such pietie and sinceritie will teach others thus to dally with lawes and with their owne consciences as if the thing were godly enough to be exacted in one court but perillous to conscience in another Court albeit as well authorised vnto the one as it is vnto the other Insomuch as here he yeeldeth that this cōdition of not being bound by any such oth taken further then law requireth is obserued or vnderstood in ministring the oths which he impugneth doth he not thereby plainely discouer himselfe to be an oppugner of that which is but by law vrged and an encourager of others to oppose thēselues against lawes or else it must follow that none that be in authoritie do know the lawe therein besides himselfe or at least will not deliuer it truly doth he not also therein imply that in some cases the lawes allow of such oathes and that his charge of ministring oathes that are generall vnto all a mans thoughts words and deedes is a plaine slander insomuch as no law requireth that and yet the takers of this oathe are no further bound then the law it selfe bindeth And lastly it appeareth hereby if these oths restrained but vnto that which law requires be neuertheles vniust cruel vngodly tyrannicall that then the lawes of this realme establishing thē must needes endure his like hard vntrue and disloyall censure It hath bin often and no lesse truly said that none but Iesuites Seminary priests such like obstinate Papists haue refused this oth in hir Maiesties time or haue charged it to be vngodly vntil these new reforming Innouators did start vp that both the sorts of thē do build vpon the selfe same grounds of argument In answer of this he saith that by the ancient godly writing entituled The praier and complaint of the Plowman it appeareth that this kind of generall othes and examinations ex officio mero were not first misliked by Iesuites and Seminarie Priests and from them deriued to others that mislike gouernement and would bring the Church to an Anarchie as the world hath bene borne in hand For general oaths we stand not but who first misliked examinatiō ex officio mero or which of these two sorts of mislikers haue troden in the others steps by imitation is not so material as with what trueth or soundnes of reason it is misliked by either of thē I haue not the Ploughmans booke to peruse what is indeed there said here of neither greatly skilleth it though he were perhaps a good diuine disguised vnder a ploughmans title and stile If he had vsed any reason for his saying I doubt not but the Treatisour would haue enforced it But it followeth not that whatsoeuer in elder times hath bin by
his father c. For if the matter do concerne treason against the Prince or the common wealth I make no doubt but that a man may ought to be tortured euen against his natural father and others howe neere soeuer But if this be lawful for treason against man much more then for that which is heresie indeede being no lesse then treason against the diuine maiestie of God himselfe who is King of kings and Lord of all lords Thus farre touching their reasons and allegations from d◅uinitie and diuines So that al their obiections being refuted I will nowe presse them in this point but with one pregnāt place out of 1 Leult 5. vers 1. Leuiticus which is also handled more fully by me in the 11. chapter of this third part viz. If any haue sinned that is if he haue heard the voice of an oth and he can be a witnes whether he hath seene or knowen of it if he do not vtter it he shal beare his iniquity But these of whom we speake haue heard the voice and forme of the oath haue bene adiured in God and in her Maiesties name and by authoritie charged and recharged and they can beare witnesse for they haue seene and know the matters whereof the charge is as themselues do confesse and yet they will not vtter them in particular but obstinatly without any good ground as may appeare do persist in refusall and therefore they do grosly sin and shall beare their owne iniquity indistinctly whether the matters to be vttered be cōmendable in their brethrē or not whether they shal thereby be brought into trouble vnto punishment or otherwise Much might be alledged out of the common lawe and statutes to proue thereby the lawfull exacting of a necessary oath for discouery of our christian neighbors crimes and offences aswel such of them as be but mala quia prohibita as those which in their owne nature be euill and be therefore forbidden As that grand Iuries at Assises Sessions are vrged by oath to enquire present treasons murders other felonies breach of the peace violation of sundry lawes statutes common Nusances c. That if a 2 10. H. 6. 7. tythingman c. refuse to make presentment the steward of the Leete may amerce him And in an action of debt brought he shall not wage his lawe vpon that amercement That by a 3 19. H. 7. ca. 14. Statute chiefe constables and bailifes were to giue euidence vpon their oathes touching vnlawfull retainers within the precinct of their offices and vpon concealement were to be punished with such like a great number But because the Innouators who are nowe the most especiall defenders of this opiniō both by argument practise do make no accoūt at al of any humane lawes whensoeuer they list to fansie vnto themselues a cōdemnation contrariety of such lawes vnto the word of God as in this case they doe therefore I will no further trouble myselfe or the Reader in that course CHAP. XV. Their arguments are answered that condemne the ministring taking of an oath as vnlawful because they haue not distinct knowledge giuen vnto them of euery particular before the taking of it the like course by examples is approoued lawfull and godly ANother challēge of theirs made vnto the maner of proceeding against crimes in Ecclesiasticall courts cōcurring with the very tēder of the oth is for that they are vrged to take the oth to answer truly before sight and perusall of the articles Interrogatories by thē had whereby they might haue special and distinct knowledge of euery particular therein conteined The cause why this exception is by them taken is not for that al such refusers do purpose to take the oth when they shall haue seene the articles but if they shall finde them to be such as they thinke either cannot be proued in case they shal deny them or to be of that sort as they can easily wade through with thē then some of thē heretofore haue not stuck nor made any bones to take their oths whatsoeuer they wil do now And therfore certaine of thē will not so much as promise by their word to take oth to answer thē after perusal So that it may appeare this is but a quarrell picked by them of purpose to aduertise their complices how far they also may be touched rather then that there is any serious matter of scruple herein which they stand vpon Some of the causes why it is not thought cōuenient by those that be in authoritie to let them always know the seueral particularities aforehand so to leaue it in their liberty either to refuse or to take oath afterward to answere them are sufficient and weighty One is because it is sometimes impossible in it selfe for that one Interrogatorie often riseth of an other especially where a man answereth affirmatiuely so that the oathe cannot conueniently be in ech case restrained vnto such of thē as are set downe afore seeing necessarie occasion of circūstance ministred may leade vnto a further examination Another is because as some of them haue done when this fauour hath beene shewed they vse it but as a meanes to instruct their confederates for concealing or disguising of the trueth which may appeare for that after perusall they themselues remaine as obstinate in refusall as they were before And albeit no lawe that I knowe doth of necessitie require articles to be shewed to them at such proceeding before they resolue whether they will take the oathe or not yet if any will sweare afore but thus that he will peruse them and after hee hath perused them he wil then take the oath directly and truely to answere them so far as by law he is bound assuredly then the sight of them aforehand neither hath bin nor will I thinke at any time hereafter be denied vnto any in such a case Some reasons I haue heard to haue by thē bin vsed to proue it vngodly It is thus written in the 1 Prouerbs He that answereth Prou. 18. ver 13 a matter before he heare it it is folly and shame to him Much more then say they is it folly to sweare to answere a matter before a man heare it In very deed it is not possible directly to answere any matter before a man heare it and know what it is But the meaning of the holy Ghost there is to taxe such as vpon a pretence or for ostentation of pregnancie of wit and quicknes of conceipt or vpon some other rashnes will take vpon them to vnderstand a matter and to answer to it before halfe the tale and materiall points of it be opened vnto them Whereupon grossely ofttimes mistaking the whole matter such a man is shamed and folly is also iustly imputed vnto him for it Besides this their collection hereof is out of the rule that is in controuersie and practise For there are neuer any sworn to answer a
this principle is thereby wholy destroyed when as the detection made by fame by denunciatiō or presentment c. commeth from others and is not a mans owne detection of himselfe therefore it is not so much as a limitation properly but rather a true exposition how that rule ought to be vnderstood By as good reason it might be said that because a man is not at first by any course of Iustice bound to discouer the very facte against himselfe that therefore being called into question and touched by great presumptions and arraigned for it there is no Iustice to vrge him to pleade either not guiltie and so to lye or else guiltie and so to bewraye himselfe For proofe of an abuse of Gods name and Maiestie by purgations he sayeth to offer an oathe vnto persons diffamed concerning their owne corrupt life argueth a lightnes and want of good discretiō in the Magistrate For that he wittingly doeth minister an occasion of periurie I haue spoken of this point by occasion afore and I trust the Readers wil pardon my necessary repetitiōs sometime of one matter in diuers places considering the Treatisour vpon one reason seeketh very often to build many seuerall distinct conclusions First no man ought by any occasion whatsoeuer be drawen to goe against his oath or to periure himselfe a word most properly verified in an oathe Assertorie such as that of purgation is Secondly it is to bee denied that whatsoeuer a man of a bad minde may take for an occasion to forsweare himselfe that in euery such case it is lightnes and vndiscretion in the Magistrate to offer an oathe Which may appeare by decisorie oathes or wagers of lawe in actions reall or personall for landes and goods being such things which be as deepely by most men tendered and affected as their owne good names or honest reputations Thirdly it is too grieuous a charge to bring euery lightnes or vndiscretion of a Magistrate within the compasse of abusing Gods name maiestie though this were admitted to be such lightnes Fourthly no lawe presumeth so vncharitably as though euery one detected or presented of corrupt life were straightway of necessitie and in very deed guiltie of such crime nor yet is it to bee intended that most which be in trueth guiltie will rather forsweare themselues then confesse the trueth considering the penaltie inflicted by courtes Ecclesiasticall are not very grieuous and the chiefe end therein aymed at is but an inducement vnto a testification of the delinquēts repentance Fiftly euery one who vpon a fame is detected or presented cannot be truely said to be thereupō diffamed infamia iuris For a fame may rise yea very probable cause of suspition of a crime may also be giuen where neuerthelesse the fact is not at all committed Lastly it is not euery person suspected of any crime who in discretion of the Magistrate is not to be vrged with an oathe but it is such an one who is probably suspected to be more likely to forsweare himselfe then to confesse a trueth But herein he presseth vs yet further with a piece of old counsell viz. Dedecus magis quà m periculum vites Whosoeuer giues this counsell if hee shoulde meane that the perill of a mans soule were rather to be embraced then any worldly shame it were very vnsounde and wicked counsell For it is better to loose not onely our whole credites in the worlde yea all the world besides rather then our owne soules It is in trueth but an exhortation vnto valor and courage and that a man in a good cause should rather incurre any bodily perill then empaire or distaine his honor and loyaltie to his countrie by cowardise Besides in matters spirituall and belonging to the soule there is a shame which bringeth honor as Ecclesiasticus writeth He inueigheth also against them ex absurdo because if purgations should be vsed he saieth at the Common Lawe vpon Enditements of felonie or other criminall causes periurie would ouerflowe the land I am also of this minde that if for matters of life death a man might be acquited vpon his owne oathe and his Compurgators that many wilfull periuries would be committed But othes of purgation bee not imposed any more at the Ecclesiasticall lawe then they be at the Common lawe in any matters capitall And as purgation is onely a presumptiue kinde of clearing to remoue the offense for safegard of his credit who being infamed can iustly and truely performe it so is it no such finall acquitall but that the partie purged may againe be conuented for the same if any man by lawe allowed will vndertake the proofe not of the same but of the very crime and offense it selfe whereof hee was afore purged As for other criminall causes which endanger not life nor limme diuerse Temporall courtes though not vpon Enditements without such feare of driuing men to periurie do minister vrge the parties othes as hath bin shewed Yet not holding them purged or cleared thereby albeit they deny the crimes but enquiring further and examining witnesses also afterwardes touching the trueth of the offense Besides such othes be ministred in those Temporal courtes vpon no detection of fame or other presumption grounded vpon the othes of any but vpon the priuate vindicatiue minde of him which putteth in the bill and prosecuteth Lastly there bee fewe or none of the crimes called transeuntia and not capitall which be enquirable in any courtes temporal or if any be they are not in their owne nature so secretly and without possibilitie of direct proofe performed as the crime of incontinencie is touching which most purgations fall out in Ecclesiasticall courtes There was therefore small cause of that his question here viz. Why Ecclesiastical courtes offer not to the laitie the like good measure and vpright and sincere Iustice that themselues finde in courtes temporal Besides that by the same question hee indirectly also taxeth all courtes whatsoeuer that impose othe on the partie for want of good measure and of vpright and sincere Iustice. Vpon the former reasons against purgation he groūdeth another question also viz. Why these ordinaries which challenge or assume to themselues the goodly name and title of spiritual men doe not proceede to condemnation by good proofe of lawfull witnesses and againe absolue the partie diffamed where such sufficient proofe failes them I answere first Ordinaries doe not in these dayes eyther challenge or assume to thēselues such goodly name as he solaceth himselfe at but rather the title of persons or Iudges Ecclesiastical In deede that other name in times past was willingly embraced by the Cleargie and as they thought without any iniurie to other callings in respecte of the subiect matter of their profession which is spirituall And by no mans writings or speeches is it more often attributed vnto them euen vntill this day then it is in statutes of the Realme in reportes and vsuall speeches at the Commō law Therefore
H. 8. cap. 14. preamble of a statute of king Henry y e 8. which preamble for breuitie sake he omitteth yet hee omitteth not to gather therefrom that which was neuer scattered viz. so we see saith he that vnder cloked and couert termes of Canonicall sanctions viz. vsed in the statute 2. H. 4. the clergie men vsurped vniustly iurisdiction ouer the people ministring vnto them captious and snarling Interrogatories and as it should seeme by histories vpon oath contrary to the true meaning of the lawe and lawe-makers and against the right order of Iustice and all good equitie impugning thereby the royall prerogatiue the imperiall Crowne the Princely scepter lawes and policie of this kingdome for which cause he saith it was repealed These be imputations of great and high matters which he auowcheth to be by such oath impugned which though he say we see by that preamble though indeede hee would not let vs see it yet when all is cast vp his proofes are no more but thus viz. as it should seeme but how much hereof may in trueth thence be seene either plainely or by any seeming I would the clearest sighted of that opinion would take the paines to peruse that hee may withall discerne with what vpright mindes and sinceritie some of his chiefe complices doe write of this matter For the very true and onely causes of repeale of the statute of heresie 2. H. 4. by the preamble of the saide statute 25. H. 8. nowe likewise standing also it selfe repealed are assigned to be these viz. the not declaring thereby what should be heresie The terme of Canonicall sanctions and other termes thereof so generall that the best learned coulde scarse auoyde the danger of heresie if he should bee examined vpon captious Interrogatories the vnreasonablenesse of being put to losse of life c. vpon suspition and without accusation or presentment whereas for treason it must bee vpon presentment verdict confession or proces of outlawrie and for that speaking or doing against the Canons c of Popes being but humaine yea and many of them contrarie to the kings Prerogatiue Royall is by the sayde Canons made to bee heresie so that there is not one word mentioning much lesse tending to the condemnation of ministring oath no not so much as in the crime of heresie which is capitall nor yet any of the other great thunderclaps which the Treatisour pretendeth he sawe or heard of in that Preamble against oathes in some criminall causes To this purpose he woulde haue vs further note that the statute of sixe Articles doth not enact nor allowe but that it seemeth rather to disallowe and ◅iect these oathes Why Sir it speaketh not of them at all and can you therefore gather that it doth not allowe but rather disallowe them you might so reason against them from all the statutes that euer were made touching any different matter whatsoeuer But say you it seemeth rather to disallowe them is not this seeming a sound demonstratiue argument to ouerthrowe a course so long and so manifoldly vsed and that in the courts of both sortes but why doth it so seeme forsooth because the king is by that statute authorised to direct Commissions to Ordinaries and others to take information and accusation by the oathes of two sufficient persons at the least or by verdict of twelue men What then therefore the examination of the partie vpon his owne oath when he is found out because it is omitted is disallowed Though this loose reason should followe yet none oath should thereby bee touched other then ministred in matters of heresie But if he might reason thus because those Cōmissioners might beginne and grounde their proceedings done by way of speciall enquirie in processu punitiuo vpon such information accusation or verdict therefore they might not proceede afterward according to any course of the lawe ecclesiasticall then might he as well also argue that they might not deale vpon an heretiques owne voluntarie confession for confession is no more mentioned in that Statute then the defendants oath is But what if that Statute had expressely disallowed that oathe is it not nowe repealed and is it woorthie to bee alleaged seeing hee else-where chargeth it to be A bloudie and cruell Statute I perceiue it is verie loose and badde stuffe which hee will not take holde of where hee may haue but as much as a shadowe or glimpse of any thing to his purpose May it bee thought that any man of iudgement can bee in deede ignorant but that such sharpe and pregnant conclusions as throughout his whole Treatise he inferreth cannot possiblie be grounded vpon so feeble and vnconsequent premisses yet hee sticketh not vpon these allegations aforesayd euen as if hee tooke them for good and sound arguments as a well-willer of Ordinaries to disswade them from further practise of such oathe least they bee found thereby not onely impugners of the Roiall Prerogatiue but discredited further by the breach of their owne oathes taken to the Queenes supremacie Neuerthelesse least I be mistaken by any it is to be remembred that he commonlie limiteth all his hote conclusions with some warie wordes of restraint as these videlicet such oaths and such like c. alwayes conueying vnder them a reference vnto generall oathes according to his first vntrue issue Well this helpeth his cause neuer a deale for if none of his reasons brought doe so much as ouerthrow those vnreasonable oathes which are by no man defended howe much lesse can they touche those particular oathes to matter in fact onely that we doe reason and treate of The reasons which he setteth downe as taken from the Reports of the common law doe now follow which are partly by propounding some examples how oaths be there vsed partly by auouching some cases seeming vnto him to inferre a cōdemnation of defendants oaths in any causes criminal Before he come to the first of these two there bee sundry conclusions propounded by him for proofe whereof all his reports out of the Common lawe be laied downe First that he may as he saieth deliuer our lawes Iustice of our land from so foule a slander as that they should bee sayde to allowe of such Catholique oathes Next to assure others like as himselfe is sure that such a generall oathe or such like ex officio was neuer offered by any Magistrate nor taken by any subiect by authoritie of the common lawe Thirdly that the Common lawes haue not imposed or appoynted an oath to bee vsed otherwise then according to the right institution thereof and the godly rules before by him remembred What those rules are I haue noted in the Epistle to the Reader Nowe if by these wordes videlicet such like ex officio he meane onely such generall oathes as afore he had vntruely imputed to Ecclesiasticall courtes then will I not trauerse any of these conclusions whether the oath shall be ministred vpon the Iudges office onely or at a parties instance Yet