the Booke aforesaide that a man for his wife onely may haue Action of trespasse at the Common Lawe and also a writte de vxore abducta cum bonis viri Also for a man that liueth asunder from his wife there lyeth Action in a Court Ecclesiastical for him to receiue her againe and to cohabite with her as may be gathered by 9 13. Ed. 1. c. 34. that statute of Westminster the second where it is prouided that a woman eloped from her husband shall loose her dower except the husband without compulsion Ecclesiasticall doe receiue her againe Therefore for a man to receiue his wife againe compulsion Eccles. may in some case be vsed with allowance of the statutes of this Realme Lastly it remaineth to shew here when and howe goods and chattels promised with a woman in marriage after the marriage accomplished be demandable and determinable in the Court Ecclesiasticall For besides one or two cases afore rehearsed where by the way so much is implied it appeareth by many consonant iudgements in the very point For if a 1 22. Assisatum fol. 70. per Thorpe cui concordat M 16. H. 3. per Fitzh proh 22. contract be made betweene two men that if the one will take to wife the others daughter then he will giue him tenne pounds In this case if the money be to be demaunded it shall be demaunded in the kings Court because hee did not promise the money with his daughter in mariage but by way of couenant that he should marry his daughter But if he had promised the money with his daughter in marriage then it shoulde haue bene demaunded in Court Christian. Likewise 2 14. Ed. 4. 6. in an action of debt the plaintife declared that he had married the daughter of the defendant and that he should haue twentie pounds in respect thereof and by agreement of all the Iustices of the Common Plees without any answere of the defendant it was decreed that the plaintife should haue nothing vpon his writ because it is determinable in a Court Christian and is of the same nature as the very marriage is So doth 3 Reg. fol. 46. 48. per Brooke tit prohib Brooke also collect out of the Register that for marriage money and pensions the suite lieth in the Spirituall Court and agreeable to the former distinction of Thorpe Fitzherbert 4 Fitzh no. na br tit proh fol. also reporteth it in his Nouanatura breuium Bracton in like maner affirmeth it 5 Bracton lib. 5. cap. 16. and yeeldeth a reason thereof for hee speaking of Ecclesiasticall iurisdiction saith thus Sic de rebus datis vel promissis ob causam matrimonij principaliter sic de rebus quae accidunt matrimonio vt sipe cunia promissa fuerit ob causam matrimonij quia eiusdem iuris id est iurisdictionis esse debet accessorium cuius est principale And albeit Brooke 6 Brooke t. t. iutisdict in his abridgement report that the same was also else-where holden by 7 17. E. 4. fol. 4. three viz. Chocke Townesend and Littleton yet hee himselfe seemeth to doubt of it and saith there is also great 8 37. H. 6. fol. 9. opinions against it because there is quid pro quo and therefore likely to be determinable in a Temporall Court Therefore it may probably bee thought that these opinions which hee speaketh of in this behalfe 37. Hen. 6. either were meant in such a case as grewe to a lay contract such as Thorpe speaketh of in the booke of Assises afore alleaged or else there was some couenant for the money by deede For 1 45. E. 3. fol. 24. per Br iurisdict 11. in an Action of debt brought vpon a couenant by deed that if the plaintife should marry the defendants daughter the defendant should giue him an hundred pounds which condition of marriage the plaintife had performed it was adiudged that notwithstanding Articuli Cleri the matter did belong to the Temporall Court because it was by deede but it had not belonged to it but to the Court Ecclesiasticall if it had bene without deede And the rather may it be thought because this hath bene taken for Lawe both afore and since notwithstanding those opinions mentioned by Brooke First in the 2 Reg. in Br. orig pag. 46. b. Register wee finde to this effect a certaine woman in consideration of Matrimonie to be contracted with her daughter promised 40. marks the Matrimonie was accordingly celebrated the woman dieth making executours Then for not paiment thereof the husband bringeth his Action in the Court Ecclesiasticall the executours obteine a prohibition whereupon the matter comming to scanning a Consultation is neuerthelesse graunted whereby is affirmed that the Ecclesiasticall Court may lawfully proceede therein Yea and long after these opinions deliuered Fitzherbert affirmeth that such suite belongeth to the Court Ecclesiasticall as hath bene alleadged And so doth the little Treatise of the liberties of the Clergie by the Lawes of the Realme in these 3 Goodall of the liberties of the Clergie wordes viz. If he that promised money with his daughter in marriage dieth hee that married her may sue the executours for the money in the Spirituall Courts There is in the saide little Treatise another case touched affirmed to be of Ecclesiasticall conisance which belongeth to this Chapter It is 4 Ibidem this If a man saith hee giue goods with his daughter in marriage and after there is a Diuorce the same may sue for those goods in Ecclesiasticall Court But hee sheweth not whether vpon any Diuorce whatsoeuer the goods be there recouerable viz. whether aswell when the Diuorce arose of the womans adulterie as when it grew vpon some consanguinitie or other Canonicall impediment founde out after mariage Hitherto concerning those kindes of Iurisdiction Ecclesiasticall which I adioyned to causes Testamentarie and Matrimoniall CHAP. IIII. Generall proofes out of Statutes that sundry other causes besides Testamentarie or Matrimonial are of Ecclesiastical conusance BEfore I proceed further to shewe in particular what matters besides be of Ecclesiasticall conisance and Iurisdiction and how farre I holde it nothing amisse to shew in some generalitie first that there are some other such which be neither Testamentarie nor Matrimoniall nor yet any way depending or of affinitie to them The Great Charter to the obseruation and propugnation whereof the King and the great Nobles and Officers were wont to be sworne layeth this ground-worke of all which followeth We haue granted to God and by this our present 1 Mag. Chart. cap. 1. Charter confirmed for vs and our heires for euermore that the Church of England shal be free and shall haue all her whole rights and liberties inuiolable But that the Church had these rights and liberties then which are now claimed the Actes of Courtes Ecclesiastical in those and former times and in all succeeding ages without prohibition or other oppugnation with the
statutes and reports some whereof were made not long after and so from time to time downeward till these late challenges doe make it very manifest It is prouided by Statute that 2 24. Edw. 1. stat de consultatione the Chancellor or chiefe Iusticer of the King vpon sight of the libell whereupon any prohibition is brought if the case cannot be redressed by any Writte out of the Chancerie but that the Spirituall Court ought to determine the matter shall write to the Iudges where the cause was first mooued to proceede the prohibition directed notwithstanding So that wherein soeuer by custome and liberties of Holy Church Iudges Ecclesiasticall were wont to proceede if no Writ lie thereupon in Chancerie they may still holde plea and take conusance Also in the conclusion of the Statute of Articuli 1 Artic. Cleri 9. Ed. 2. ca. 16. Cleri where sundry matters besides Testamentarie and Matrimoniall are mentioned it is thus enacted that the Prelates Clergie and their successours shall vse execute and practise for euermore the Iurisdiction of the Church in the premisses after the tenor of the answeres aforesaid without quarell inquieting or vexation of our heires or any of our Officers whatsoeuer they be Likewise it is by Parliament 2 15. Ed. 3. ca. 6. accorded that the Ministers of holy Church for money taken for redemption of corporall penance nor for proofe and account of Testaments or for trauaile taken about the same nor for solemnitie of marriage nor for other things touching the Iurisdiction of the Church shall not be empeached nor arrested nor driuen to make answere before the Kings Iustices nor other Ministers and thereupon shall haue Writs in the Chancerie when they will demaund Where we finde that other things besides Commutations matters Testamentarie and Matrimoniall doe belong to the Iurisdiction of the Church And to like effect after in the same Kings dayes 3 18. Edw. 3. pro Clero c 6. Commissions to enquire of Iudges of Holy Church whether they made iust Proces or excessiue in causes Testamentarie and others which notoriously pertaine to the conisance of Holy Church were from thencefoorth forbidden Therefore these Statutes being still in force if Iudges Ecclesiasticall shall be found but to deale as they ought in matters appertaining meerely to Iurisdiction Ecclesiasticall how the vexations impeachments driuings to answere and strange enquiries against them vsed in some places may be iustified by Lawe is worthie the consideration of those that are or shall be procurers therein In a statute of King 4 1. Ric. 2. ca 13. Richard the second mention is made that the pursuites for Tithes and for some other causes of right ought and of olde times were wont to pertaine to the Spirituall Court. In a Statute of King Henrie the eight it is 5 24. H. 8. c. 12. in the praeamb testified that both the authorities and Iurisdictions Spirituall and Temporall doe conioyne together in the due administration of Iustice the one to helpe the other And that the Lawes Temporall are for triall of propertie of landes and goods and for the conseruation of the people of this Realme in vnitie and peace without rauin and spoyle And in the bodie of the Statute are particularly named and reckoned for Ecclesiasticall besides causes Testamentarie and Matrimoniall these viz. diuorces right of tythes oblations and obuentions of which it is affirmed that the knowledge of these causes by the goodnesse of Princes of this Realme and by the Lawes and customes of the same appertaineth to the Spirituall Iurisdiction of this Realme And because by that Statute remedie was onely prouided that appellations in those aforesaide cases should not be prosecuted out of the Realme there being also many other causes of Iurisdiction Ecclesiasticall wherein a like remedie was conuenient to be had therefore the next yeere after it was enacted that 1 25. H. 8. c. 19. all maner of appeales of what nature or condition soeuer they bee or what cause or matter soeuer they concerne shall bee made and had by the parties grieued c. after such maner as is limitted for causes of appeales in matters Testamentarie Matrimoniall tythes c. in the said former statute mentioned In a Statute of King 2 1. Ed. 6. c. 2. Edward the 6. besides matters of voluntarie Iurisdiction Ecclesiasticall as collations presentations Institutions inductions letters of orders and dimissories are reckoned in generall as Ecclesiasticall all suites and causes of instance betwixt partie and partie and all causes of correction And in particular all causes of bastardie or bigamie and enquirie De Iure patronatus besides matters of Testament of administration or of accounts vpon them And 3 5. Eliz. c. 23. in one Statute in her Maiesties reigne are reckoned in particular as the more grieuous sort of matters of correction in Ecclesiasticall Courtes heresie refusing to haue a childe baptized or to receiue the holy Communion or to come to diuine seruice errour in matters of religion or doctrine now receiued incontinencie vsurie Simonie periurie in the ecclesiasticall Court and Idolatrie And therefore Iudges Ecclesiasticall may lawfully cite men in certaine other causes besides Testamentarie or Matrimoniall and ought not eonomine tantùm to be vexed vnquieted impeached driuen to answere or arrested CHAP. V. That suites for title of Benefices vpon Voidance or Spoliation likewise that suites for tythes Oblations Mortuaries c. for Pensions Procurations c. are of Ecclesiasticall Iurisdiction is prooued by statutes MAtter 's and suites for the title of Benefices ecclesiastical so they touch not the trial of the patronage do belong also to the knowledge and iurisdiction of a court ecclesiastical by the lawes of the Realme For conisance of voidāce of benefices 1 25. Ed. 3. pro Clero ca. 8. and the discussing thereof de iure doe belong to Iudges of holy Church and not to the Lay Iudge The Common 2 Treatise of constitu Prou. Legatine ca. 9. printed by Tho. Godfrey tempore H. 8 lawe doth mention fiue causes of auoidance of a benefice viz. death resignation depriuation creation and cession But whether it may be deemed void in law vpō any of the last foure meanes of auoidance is by the law ecclesiasticall determinable And by the bookes of the Common lawe 3 M. 22. Edw. 4. fol. 24. whether the Church be full or not full or the Clerke able or not able is triable in an ecclesiasticall Court Townesend For if an 4 Regist. in br orig pag. 55. b. inferiour Ordinary shal differ or refuse to admit or institute a Clerke presented and the Clerke bring his double Querele being of the nature in some sort of an appellatiō from the Archbishops court and the aduerse parte doe bring a prohibition the said Clerke may haue hereupō his consultation so that the court eccles by colour hereof deale not with the right of patronage of the benefice Likewise for spoliation of a
may belong to a temporall Iudge at least touching the corporall penaltie but not concerning the censures of the Church that ought to bee laied vpon such 7 15. 6. Ed. 6. cap. 4. Concerning fighting quarelling and brawling in Church or Churchyard the Ordinarie in some degree is to punish it by suspension ab ingressu ecclesiae in a laie man and from ministration in his office in a Clerke and in another degree in either sorte Laie or Ecclesiasticall by denouncing the partie offending to bee excommunicate ipso facto by vertue of that Statute Dilapidations likewise waste made vpō a liuing Ecclesiasticall are determinable 8 13. Eliz. ca. 10. punishable by Ordinaries For the Statute made in her Maiesties time for remedy in Dilapidations prouideth that as afore by the lawes Ecclesiasticall iust actions and remedies might bee had against executors and administrators of deceased incumbents so they should by vertue thereof bee vsed against alienees and donees of the goods of such incumbents The Treatise of the Clergies liberties saieth that for 1 Liberties of the Clergie by the lawes of the Realme Dilapidation the parson may sue in courte Ecclesiasticall the executors of his predecessor So at the 2 M. 2. H. 4. sol 9. Common lawe Tirwhit did hold that if an ecclesiasticall person make waste of his benefice he shal be deposed as a Dilapidator of his Church But deposition cannot be iustified but by authoritie ecclesiasticall Those crimes which I sayd were opposite to sobrietie in a mans owne selfe are also punishable by ecclesiasticall authoritie 3 Stat. Circumspectè agatis 13. Ed. 1. For the Clergie are not to be punished for holding plea in court Christian of such things as bee meerelie spirituall that is to wit of penance enioyned for deadlie sinne as fornication adulterie and such like In which words of such like I doubt not but other incontinencies as Incest Stuprum and Polygamie be also vnderstood being all more grieuous then fornication and two of them more execrable then adulterie And so doeth Lyndwood interprete the word huiusmodi such like that 4 Lyndw. V. huiusmodi c. Circumspectè de foro competenti is to say saieth hee Incest whoredome and others which be contained vnder the sinne of Lecherie And to these are to bee added other crimes which also are to bee handled and punished in a court ecclesiasticall as namelie Sacrilege Usurie Heresie Simonie and Periurie to 5 c. Ecce 23. q. 4. which an old Canon also addeth such offenders as be Inspectatores nugarum and consulters of Starre-gazers Phanaticall persons Wisardes Fortune-tellers Drunkards and Idolaters And to make it more plaine that all vnlawfull companie of man and woman not being capitall by the lawes of the Realme is subiect to the Iurisdiction ecclesiasticall the 6 5. Eliz. ca. 23. generall worde of Incontinencie which comprehendeth all is vsed in the statute De excommunicato capiendo In the 7 Reg. sol 45. a. 57. b. Register there bee two precedents of Consultations granted in causes of Fornication agaynst which in both the Iudge also proceeded of office And the treatise of Clergie liberties saieth 1 Gooddall of Clergie Liberties Though a bishop may not visite the Kings free Chappell yet he may cite and punish the Chaplaine thereof for keeping a concubine Heare also what another olde Treatise written by a common Lawyer in those times 2 An answere to a letter cap. 1. Printed by Tho. Godfrey tempore H. 8. saieth in this behalfe viz. the Clergie ought to haue correction as of crimes meere spirituall of auoutrie fornication Simonie and Vsurie and to order matrimonie tithes oblations and periurie in some case and of diuers other things whereof it is no doubt but they haue holden plea in times past rather by a custome and by sufferance of princes then for that they be meere spirituall or that they had authoritie by the immediate power of God So that they bee by him yeelded of long time to haue bene of ecclesiasticall conisance CHAP. X. That the matters and crimes here reckoned bee also of ecclesiasticall Iurisdiction and proofes that any subiect laie or other may be cited in any cause ecclesiasticall THere doe yet remaine sundrie points which in the second Chapter of this part I haue set out as being of ecclesiasticall conisance hitherto not spoken vnto purposelie First then for ordaining of reall compositions being a matter of voluntarie iurisdiction and disanulling of them if they haue bene made contrarie to lawe and right which is for the most part of Iurisdiction contentious we haue in the Register some testimonie For 3 Reg. fol. 51. b. whereas an Ordinarie had made an ordination or reall composition for certaine Chaplains to serue from time to time in a Church which were not found by those that ought the bishop hereupon ex officio proceeded to interdict the Church and vnto other Canonicall paines And though thereupon a Prohibition was brought yet was it reuersed vpon debating by consultation and the bishops proceeding allowed for lawfull Touching 4 Reg. fol. 50. a. disanulling of a reall composition vnduely made in a Consultation there is thus conteined Significamus quod in negotio adnullationis Ordinationis pro Pensione tanquam iniquae non rationabiliter factae non de laico feodo in curia Christianitatis agitur procedere vlteriùs facere poteritis c. prohibitione nostra nonobstante Next follow the censures ecclesiasticall whereby Ordinaries punish or vrge execution of their sentences or decrees First suspension ab ingressu ecclesiae is 1 5. 6. Edw. 6. cap. 4. shewed to be an ecclesiasticall censure by a statute of king Edward the sixt forbidding brauling in Church or Church-yard The other suspension indistinctly taken whether ab officio tantùm or ab officio beneficio is mentioned for a censure ecclesiasticall by 2 1. Eliz. cap. 2. a statute 1. El. and by her 3 Iniunctiones in fine Highnesse Iniunctions Interdiction of a Church is also prooued so to be by the first allegation out of the Register in this chapter That Sequestration is another censure ecclesiasticall and the conisance of the violation thereof of that iurisdiction is prooued cleerely by a consultation in the Register For there a certeine Parishioner 4 Regi fol. 44. b. had cut downe Syluam caeduam not paying but deteining the tithe from the Parson Hereupon the bishop of Elie his Officiall did sequester the said wood cut downe The Parishioner did breake and violate the sequestration therefore the Officiall proceeded with him in causa violationis sequestri the defendant purchased a prohibition Neuerthelesse vpon discussing of the matter a consultation was granted in these wordes Licitè procedere poteritis quatenus de 5 Concordat Clem. vnica de sequest possess quoad violat interdicti Clem. grauis de sententia excomm violatione sequestri syluae caeduae excisae ratione
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
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.
to make such a briefe abridgement of so long a writ For it doeth not appeare that before the imprinting it was perused allowed by any the Iudges then being or by any others deputed by publike authoritie for the reuiewing and correcting of it No doubt if it had bin that I speake of nothing else so many grosse errors in the Latin both against cōgruity al sense as in every leafe almost of the copie which the Printer followed are to be found could not haue so escaped without cōtrolement and amendment But the former wordes set downe by Rastall at large in the writ in selfe where neither of these last recited clauses are to be found are too cleare in this point to be dimmed by any such light colours But if hereupon it be perhaps graūted as the authour of the Treatise doth that witnesses may take oath depose willingly in other ecclesiasticall causes at the request of some of the parties I must then call to their minde that I haue shewed afore that following their owne interpretation they may not though they be willing Yea though witnesses might if they were willing how can a reasonable man entend that the partie to be sued will come in at all but much lesse answere if he may not be cōpelled vnto neither viz. neque ad recognitionem faciendā neque praestandū sacramentū as Fitzherbert in his natura breuiū also doeth vnderstand and reade it And the wordes reach vnto all lay persons not distinguishing a partie from a witnesse Againe by that their interpretation of recognition oath they could neuer haue such witnesses that be indifferent as in part is afore touched For if witnesses may not be vrged to sweare or to answere further then they list themselues then will they onely answere to the matters propounded by him who produceth them and wil refuse to answere the Interrogatories propunded by the other partie for his defence by whom they were not requested to come Which course vpon the matter taking away all testimonie that ought to be indifferent for either partie in such pertinent matters as are to be demaunded is contrary to the lawe of God of nature of nations and to the very qualitie of a witnesse Decius saith 1 Decius in l. 2. C. de edendonu 43. Si testis deposuit pro vna parte interrogatus pro alia noluerit respōdere illi fides adhiberi non debet quia praesumitur supprimere veritatem And so the course being most vnreasonable that whereupon it followeth must needes be also very absurde and against Iustice. By all which premised discourse it is made I hope manifest whether Fitzherbert had good ground out of that fourme of Prohibition and Attachement to 2 Nou. nat breu fol. 41. litera a. gather not onely that Ordinaries must expresse a particular cause in all their Citations but also that if they expresse any cause at all in the Citation that it seemeth by that writte it must bee a cause matrimoniall or testamentarie For seeing they haue none other meanes besides Citations to summon men to their Courtes What is this latter collection built but vpon a doubtfull seeming else then an asseueration implied that none other of the causes afore proued to be of ecclesiasticall conisance shall euer be dealt in by any court ecclesiasticall and so vpon the matter in no court at all for that temporall courts be out of iurisdiction in those matters Which howe it may be defended from grosse absurditie I would gladly learne from any that patroniseth this opinion But if the lawe were so in deede that none should be called into ecclesiasticall courts but for those two causes I marueile what the Preshyteries so much doted after especially by sundry fauourers of this interpretation would doe here in this Realme when their Cōsistorial power should be so lopped that they could not call any man before them but either in testamentarie causes which they make in other mens dealings to be meere Ciuil causes or matrimoniall many of which also they now seeme willing to abandō as temporall matters for they should be driuen either to be kings of molehils or else to preache in the most vehement veine they haue against that lawe and those magistrates which in such sort would restraine them as if they were both Antichristian at least for hindering and so impounding of the pretended gouernement of Christ that thereby they might at length be set at libertie to deale in their Consistories against all crimes whatsoeuer according to their owne platfourmes Yet herein they should deale very vnequally because they will not nowe suffer that vnder this gouernment which themselues would practice against crimes in a farre more ample and peremptory maner then either nowe is done or were meete to be suffered In the bookes of the Common lawe I finde also some cases that giue strength to this interpretation For an 1 M. 44. E. 3. fol. 32. Attachement vpon a Prohibition was sued because they sued in a spirituall Court for haye and money which touched neither matrimonie nor testament and after vpon shewing the Libell which prooued that it was for tithes and oblations a consultation was graunted Likewise 2 M. 38. H. 6. fol. 14. a Prohibition was sued foorth of the Chauncery directed to the Iustices of the common Pleas to make an Attachement because the defendant had sued the plaintiffe in the spiritual court for debt which did not touch matter of matrimonie nor testament whereof the conisance belongs to the Kings Court and thereupon a prohibition was granted thence Wherein it is woorth the noting that Fitzherbert in his 1 Fitzh Prohibition nu 5. Abridgement leaueth out these words for debt contrary to the booke it selfe at large and also 2 Brooke Prohibition nu 6. to Brooke I will not say it was to giue colour to his opinion in his Natura breuium as if he ment to haue it sound that no matter at all but either matrimoniall or testamentarie might be sued in court spirituall whereas by these two reports it may appeare that Prohibitions did not lie in this respect for that the parties were sued and called into the ecclesiastical court against their wils in any other cause whatsoeuer then those two but onely for suing there for chattels debt which did touch neither matrimony nor testament Whereof may bee gathered that euer since the first framing of this writ either none in this point hath knowen the lawe vntill Fitzherbert for nō est instandum inproposito or else those words doe carie another meaning then is now fathered vpon thē which that they doeboth in the affirmatiue for ours negatiue against theirs I hope is somewhat plainely prooued And therefore we may conclude that these two last opinions the one for not citing any person in any other cause then these two the other for not citing laie men for not vrging them to take oath in any other cause
ecclesiasticall no man may be imprisoned Therefore the vntying of this knot resteth vpon the whole matter here disputed of viz. whether that statute 10. Eliz. doe not warrant her Maiestie to graunt by her Highnes letters patents power to imprison for such contempt as this obiection importeth To prooue that her Maiestie may not so graunt nor they take such authoritie the Note-gatherer affirmeth that the commission bindeth them precisely to crimes punishable by the ecclesiasticall lawe and to proceede according to the ecclesiasticall lawes of this Realme and not according to the temporall quoting fiue statutes for this albeit there be in none of them any such matter but both the first and second part of this obiection is vntrue For the commission though nowe that power be not altogether vsed graunteth the execution of foure statutes vnto them and alloweth them to proceede aswell by Iuries as by course of the lawe ecclesiasticall And when Doctor Grindall was Bishop of London sundry crimes ecclesiasticall by vertue of the commission were tried by Iuries before him and certaine Iudges and other professours also of the common lawe being then in that commission Yet is the Note-gatherer vpon this vntrue ground bold to inferre that to doe otherwise is to encroche vpon the temporall iurisdiction and to make an hotchepot in one commission Truely this his collection is not worth an hotchepot that is a pudding as Littleton doeth expound that worde For the temporall Iudges are not to proceede in matters of ecclesiasticall iurisdiction and therefore their iurisdiction is not encroched vpon though in such matters ecclesiasticall attachements or imprisonments be vsed or fines imposed seeing they themselues cannot in those causes vse or impose them When the whole Realme at the beginning of her Maiesties reigne was visited by vertue of this statute by Diuines Ciuiliās and Common Lawiers in that seruice imploied who had authority by their seuerall cōmissions to attache imprison fine c. aswell as to vse censures ecclesiasticall al which they did accordingly then and at that time none of these quicke narrow sighted fellowes lately sprung vp were to be found that could see more then the reuerend Iudges and could so roundly tel her Maiestie that she did graunt more authoritie to her Commissioners then by that statute was giuen to her selfe Oh belike it was lawe then and good iustice against Papistes but to deale against pretended Reformatists it commeth farre too short But the Treatisour vrgeth this matter yet further he saith that no learned man wil affirme any Iurisdiction by that acte 10. Eliz. to be vnited to the crowne but spirituall or ecclesiasticall And that none such can affirme that any iurisdictiō c. repugnant or offensiue to the Common or Ciuill Policie of this Kingdome is established by that Acte for that there is none Antinomy or contrarietie of lawes Whereupon he woulde inferre that Attaching Imprisonning and Fining c. by vertue thereof is not warranted to be graunted In answere whereof let him vnderstand that his argument followeth not vpon either of those Antecedents For the first though the matters of iurisdiction thereby vnited to the crowne be onely ecclesiasticall yet the maner of conuenting or punishing in them is not in that Acte so restrained but that such other courses may be vsed as to her Maiesties wisedome shall seeme most fitte which by and by shall be shewed God willing For the second we deny the maner of conuenting and punishing established by the commission to be repugnant or offensiue any way to the Ciuill Policie of this kingdome for it is warranted by that Acte This point if the wordes of that whole clause be aduisedly weyed and considered will be made most plaine In the exercise of a criminall iurisdiction there is the matter wherein it is bestowed the maner of conuenting and sanction or penaltie to be inflicted vpon offenders which are to be considered Now the matter of this iurisdiction and authoritie graunted to her Highnes and that may be assigned ouer by her Maiestie vnto Commissioners is visiting reforming redressing ordering correcting and amending all such errours heresies schismes abuses offences contemptes and enormities whatsoeuer which by any spirituall c. Yet what course is to be holden in calling and conuenting and what kind of penalties or censures shal be inflicted vpon offenders by that authoritie are by no wordes of that acte expresly graunted to her Highnes or mentioned that they may be assigned by her vnto the Commissioners and therefore of necessitie to be supplied by those generall wordes viz. According to the tenour and effect of the letters patentes For els by such an interpretation of theirs we should haue matters for a Iurisdiction but neither any maner to conuent and compell to come afore the Commissioners nor yet punishment to lay vpon enormious offendours against whom it was intended Which because it is very vnreasonable therefore that opinion whereupon it necessarily followeth must needes be more absurd and without ground of reason Yea say other of them be this as it may and let them seeke out what processes c. may and shall be vsed by the Commission Ecclesiasticall for it is contrary to the lawe to graunt by Commission authoritie to inflict any punishment vpon a faul◅ which by lawe ought not to be inflicted and therefore they gather that the Queene cannot authorise nor any man may take power to attache to fine or to imprison men by that Commission Thus farre it is true that a Cōmission may not be graunted to alter or change any lawe in force but I trust it is not contrary to the Common lawe and custome of the Realme by acte of Parliament to alter and change that which stoode otherwise afore at the Common lawe If this so did by the course of the Common lawe no man may be put to the racke or torture especially about felonies or murders thereby to drawe him to confesse of himselfe or of other men his complices Yet is it notorious that in Wales and the Marches thereof the President and Counsaile there established doe vse and lawfully may put men to such torture by warrant of instructions onely sent vnto them from time to time vnder her Maiesties gratious hand This their authoritie I take it is deriued from these 1 38. H. 8. ca. 28. Rastall Wales 32. wordes in an Acte of Parliament The President and Counsaile there shall haue power and authoritie to heare and determine by their wisdomes and discretions such causes and matters as be or hereafter shall bee assigned to them by the Kings Maiestie as heretofore hath bene accustomed and vsed Which doe conteine no more particularitie of authoritie nor yet are of so much pregnancie to that purpose as the wordes that establish the Commission Ecclesiasticall be for Attachment fine and imprisonment to be vsed if it shall please her Maiestie so to commit them The deuise of the Commission Ecclesiasticall was for assistance and ayde of Ordinary Iurisdiction
and matters Temporall betweene which and causes ecclesiasticall as is noted afore there was made both in those times and also long after a plaine seuerance and distinction in the groundes of their seuerall authorities and iurisdictions so that the one was called the Kings Court and the other a Spirituall or Court Christian. and therefore as nothing was in that Charter anewe graunted but confirmed onely vnto the Church of England so is it to be iudged on all handes that the king would not make lawes there to restraine the courses of proceeding ecclesiasticall because it could not be without disanulling and reuoking of that which immediately afore euen by the same Acte hee had first of all confirmed vnto them Secondly a Bailife onely is there mentioned which should put or not put a man to his oath which cannot well and properlie be vnderstood of any but of some officer temporall Thirdly these wordes are no way appliable to the practise of courtes ecclesiasticall for albeit vnder the name of Bailife an Ordinarie might be vnderstood which were very harsh insomuch as a Bailife is but a Reeue of a Baile or Libertie yet is it not holden by any lawe ecclesiasticall that vpon an Ordinaries owne bare saying whether he haue witnesses after to bee produced or not a man may bee put to an oath for there must bee some better matter of inducement to open way to the enquirie whereupon the oath ensueth Lastly this statute will rather hurt then helpe forward these mens purposes if an Ordinarie might here be vnderstood by a Baylife because if I conceiue the matter aright by this is implyed that so an Ordinarie be able to bring in good witnesses he may then vpon his bare saying put a man to his open lawe or to an oath But hereupon would followe that Criminall prosecution without any accuser or other partie and so ex officio mero yea and without any presentment too may bee lawfully admitted and which is most to our present purpose in handling that an oath in such case by him may bee imposed in any matter aswell Criminall as other For heere is no distinction made of any one kinde of cause from another and they which alledge it doe bring it to impugne proceeding by the defendants oath against crimes The allegation of the Treatisour out of the statute of Marlebridge or Marleborough falleth next in time to bee considered the whole wordes 1 Marlebr 52. H. 3. cap. 22. whereof are these none from hencefoorth may distreyne his freeholders to answere for their free holdes nor for any thing touching their freeholde without the kings writ nor shall cause his freeholders to sweare against their willes for no man may doe that without the kings commaundement But the Treatisour leaueth out the first part which sheweth howe the second that he alledgeth is to be vnderstoode And because like the lapwing with her diuerting c◅ies hee would leade vs further and further from the matter herein chiefly to be respected or for that he thought wee would make some aduantage hereof he saith that the kings commaundement importeth here thus much viz. according to the law Iustice of this Realme and for this quoteth a booke thus 2. R. 3. The booke he meaneth as I gesse is in 2 Mich. 2. R. 3. sol 11. these words wheresoeuer a man for offence misprision or otherwise is to make fine or redemption all the Iustices agreed that those Iustices before whome he was committed c. should take suretie and pledges for the fine c. and after by their discretion they should assesse the fine and not the king in his chamber nor otherwise before him but by his Iustices and so is the kings will in statute to be taken viz. by his Iustices and his lawe which to say in effect is all one c. Where you see that the booke speaking of Iustices viz. the men before whome the conuiction was made he referreth this to the Iustice of the land But though it be neither off nor on to our Principall purpose neuerthelesse it seemeth this booke is not truely applied by him vnto this statute and that by the kings commaundement in the statute the kings writ is to be vnderstood as in the first part of that statute is plainely expressed rather then any determination or Act of his Iustices of the Bench. Touching the statute it selfe the wordes doe euidently shew that neither oath in cause criminall nor any Court Ecclesiasticall is thereby meant there is onely forbidden that lords of manors shall not inforce their Freeholders that holde lande of them whether it be by distresse or oathes to answere in their Courtes baron touching the estates they haue in their landes because neither the lordes owne courts in such a case be competent or indifferent for feare of vnlawfull euiction nor the goodnesse or weakenesse of the states men holde are meete to be fished out by their owne oathes in satisfaction of their lordes greedinesse to haue their lands except the king by his writ shall so especially command And yet hereby wee see the statute leaueth it at large at the kings pleasure to warrant euen this course and therefore this is not simply vniust but inconuenient onely for lords so to vrge their tenants He alledgeth further against these oathes a statute as hee saith made 43. Ed. 3. ca. 9. that no man be put to answere without presentment before Iustice or matter of Record or by due proces or by writ originall after the ancient lawes of this land But I doe finde no such statute either in that yeere or in any other like number of Chapter of that king and that Parliament which he voucheth hath not so many Chapters But admitting it what is this to proue an vnlawfulnesse of oathes ministred vnto defendants in matters criminall whereof there is no shadowe of mention it rather speaketh of matters that ought to goe afore proceedings criminall at the common lawe and what makes this against Courts Ecclesiasticall woulde hee haue them to proceede in the selfe same maner that common lawe courts doe hee might aswell exact of them Indictments and afterward tryals by Iuries of twelue and yet Ecclesiasticall courts put none to answere but vpon moe then one of these or at least that which is equiualent at that lawe vnto these at the common lawe For first courts Ecclesiastical haue great vse of presentments and complaints or denunciations before the partie be called to answere as is shewed in the second part Then the defendant is not called neither but by due processe as by letters missiue or by attachment in Courtes of Commission by Primarie citation in Ordinarie Courtes which haue a correspondence vnto originall writs at the cōmon law So that of foure matters wherof some one or other of them is thereby required three of them be vsed in Ecclesiasticall proceedings against crymes His next proofe of this kinde cōming to be discussed is out of the 1 25.
layde downe in the printed Register especially by these wordes of them Recognitiones sacramenta provoluntate sua ipsis inuitis For full answere whereof to auoyde vnnecessarie length and vaine repetition I must referre the Reader ouer vnto the xj and xij Chapters in the first parte of this Apologie He affirmeth also that the practisers of such oathes are for that cause in a Pramunire and therefore gathereth the oathe to be contrary and repugnant to the common lawe I graunt the consequence to be good and sound but how doth hee prooue them to be thereupon in a Praemunire For proofe of this he assumeth that this manner of oathe is contrary to the Queenes regalitie and crowne as if his reasons afore brought had sufficiently euinced so much which wee doe vtterly and resolutely deny vnto him And yet as if he had fully cleared that point he addresseth himselfe to prooue that whereof there was lesse controuersie viz. that what is done by a Bishop or by an Ecclesiasticall Court against the Kings regalitie and crowne hath beene heretofore adiudged to be within the compasse of this worde Alibi contained in the Statute of Praemuuire 16. Ric. 2. For this he alledgeth two books of the common law yet 1 5. Ed. 4. sol 6. Praemunire the first of them doth but speake of an excommunication by a Bishop not of euery dealing whatsoeuer in a matter belonging to the Kings regalitie And what if it had beene twise so adiudged both of them in such corrupt times when as the royall prerogatiue of the Kings of this land to be Supreme Gouernours in all Iurisdiction Ecclesiasticall due to them in right and by Gods Lawe was not de facto vnited to the crowne For the Bishops then did not claime their Iurisdictions Ecclesiasticall next and immediately vnder God from the Crowne as now they doe But seeing this parte of Regall power is nowe no lesse truely and fully vested in the crowne then is the Temporall so as the Lawes allowed for the gouernement Ecclesiasticall are termed by sundry Parliaments The Queenes Ecclesiastical lawes and Lawes of the Realme as well as those which were first and originally made heere And the Bishops are proued to haue their authoritie and Iurisdiction Ecclesiasticall deriued downe vnto them from the Queenes Highnes vnder the great Seale of England as vpon fundrie incident occasions hath beene shewed afore Is it then the like reason still to comprise their Iurisdictions and Courts vnder that word of Alibi as if their Courts and Iurisdictions were not nowe the Queenes nor yet belonging vnto her Regalitie Nay let such as shall so affirme beware they incurre not hereby the danger of implied if not direct denyall of a part of her Highnesse Royall stile and the breach also of their oathes taken for assistance and defence of all Prerogatiues c. vnited or belonging to this Imperiall crowne Yea and though this might be truely verified of ordinarie Courts Ecclesiasticall yet is there no colour at all so to affirme of the Commission Ecclesiasticall exercised vnder the great Seale of England by force of the same Statute that restores the Supremacie Ecclesiasticall to the Crowne I omit here what is touched else where viz. howe by sundry learned it hath bene thought that by Alibi there was encluded or meant nothing els but matters of that quality there specified which were enterprised by and vnder the Papall authoritie though the Pope perhaps resided not then at Rome it selfe Therefore seeing this is not pregnant ynough for him to driue this matter neerer home to his purpose hee sayeth it is against the Kings Regalitie and so a Praemunire for an Ecclesiasticall Court to holde plea of a matter appertaining to the Iudgement of a Common Lawe Court or to deale in any cause not belonging to Ecclesiasticall Iurisdiction The first of these he prooueth by the pardon sued by Barlow Bishop of Bathe and Welles in king Ed. 6. his time by reason hee had depriued the Deane there being a meere donatiue of the Kings If there were but any probable doubt whether thereby hee were fallen into a Praemunire it was wisedome for him to procure a pardon afore hand if he could Alealitis resincertissima yet depriuing of one placed by the King is much more then bare holding of some plea that appertaineth to a temporall Court besides that there was a further matter in it then I last here to open The other allegation of his to like ende taken from a 1 38. Ed. 3. of Prouisours Statute doth make no shew of proofe thereof for it is but thus viz. the King chiefly desireth to susteine his people in tranquilitie and peace and to gouerne according to the Lawes Usages and Franchises of his land as hee is bound by his oathe made at his coronation And are not Ecclesiasticall persons nowe parte of the Queenes people Are not the Liberties and Franchises that bee giuen and confirmed vnto them by the goodnesse of Princes for holding plea in certaine matters the vsages of this Realme Are not the receiued Lawes which lawfully they may practise termed Ecclesiasticall Lawes of this Realme no lesse then temporall be And is not the Prerogatiue royall in and for causes Ecclesiasticall as high and as rightfully setled in the Prince and incident to her Highnesse Crowne and Regalitie as the same is for temporall power and authoritie What cause is there then seeing seu Alibi in the Statute signifieth in true construction anie place whatsoeuer besides Rome that euery holding plea by an Ecclesiasticall Court of a matter wherein it ought not to holde shoulde at this time bee reckoned a thing contrarie to the Queeenes Regalitie more then dealing in an Ecclesiasticall cause shoulde bee in anie temporall Court at Westminster For no Statute of Prouision or Praemunire assigneth these for causes which haue indeede but growen since by collections whiles the Popes vsurpation was continued in this land against which oftentimes the remedie by Prohibition coulde not serue the turne I graunt it is a contempt or great misprision in any but for this a Prohibition and attachment thereupon c. as afore those Statutes they did might sufficiently serue the turne Neuerthelesse all these matters are wholly impertinent to his purpose till he shall haue prooued the particular issue viz. that such oathe as wee treate of is against the Queenes Regalitie c. But if that might be prooued then vpon so generall interpretation of Alibi these oathes would fall into the case of Praemunire by what Court soeuer whether temporall or Ecclesiasticall they should be tendered And that which he vowcheth to the same effect out of Saint Germans booke of Doctor Student receiueth the like answere In the next place I set some of the Treatisors reasons that are made by collection and discourse of reason These collections he maketh partly from examples past and partly at large therefore touching the first of these two he impugneth these oathes and would prooue
againe to a pretie kind of pacification hold as wel as long as it shall But there is another partie also that perhaps will venture to rip vp agayne the seames of this greene peace if hee may not in some sort bee satisfied For there came vnto mine handes a good while after the former Treatise certaine briefe Notes without discourse that are deliuered abroad into many hands by writing being commended to be gathered by a man of great reading and iudgement in Diuinitie I awe and in what not It beareth this title Notes to prooue the proceeding ex Officio and the oath and subscription which are now required to be against the word of God the ancient Fathers and Canons of the Church and the lawes liberties and customes of the realme of England the proceeding of Office and the oath required though hee telleth not how he conceiues it to bee required as the Treatiser did doe both fall into this disputation which we haue in hand As for the subscription vpon other occasion that may hereafter elsewhere be debated The seuerall points which in respect of the two former hee handleth are by himselfe distributed and sorted into these seuerall heads viz. First testimonies out of ancient Fathers that do mislike the proceeding ex Officio and oath now vsed Secondly English Martyrs that haue refused and misliked the oath now vsed Thirdly the proceeding against heretikes in Englād without exacting an oath c Fourthlie the Canon lawe teaching Inquisition and proceeding ex officio by oath Fiftly another order of proceeding but yet in causa fidei and not otherwise Sixtlie the bishops proceedings contrarie Seuenthly the lawes of England Eightlie the maner of the reuocation of the proceeding ex officio in king Henry the 8. time Ninthly the maner of debating of that cause in those dayes 10. Sir Thomas Mores reasons for maintenance of proceeding ex Officio the oath with summarie answeres to them 11. And lastly Inconueniences which come by the vse ex Officio contrary to the common lawe For proofe of some of which especially the first he is so plentifull in quotation onely of places without rehearsing their sayings out of the ancient Fathers counsels c. that for mine owne part I must confesse that vpon the first view of their names in his moster booke I was greatly astonished least I had too resolutelie defended a matter against such an armie of ancient Fathers and as it were against the generall consent of the olde Primitiue Church from which I meane not God willing casilic or rashlie to swarue But when I had approched neerer I well discerned this my feare to be all in vayne in that they had neither banner displaied nor weapons bent against this cause but rather against the faces of the aduersaries thereof as may plainelie appeare in the seuerall opportune places of this simple Discourse ensuing I may well resemble this dealing of the Note-gatherer vnto yong setters vp in London as Apothecaries and such like that be not at first well stored with stuffe who to furnish vp their shoppes vnto the best shewe are woont oftentimes to embellish them with good numbers of painted gallie pots boxes and glasses intituled on the outside euen with golden letters sometimes of such precious Waters Oyles Simples and other drugges of medicine which they neuer smelt of because such neuer came within them And perhaps I should saue him from suspicion of a greater fault that is eyther want of iudgement or of wilfull peruerting of the ancient Fathers if I should freelie deliuer my conceite in this behalfe which is that his leisure serued him not to looke what was indeede contained in those places which there hee quoteth but that hee did set them downe vpon trust out of the Pies or Indices of the sayd seuerall bookes wheresoeuer the bare wordes of Inquisition of Accusing of Oath or of Swearing was found For I dare auowe that hee which shal read thē in the Authors themselues will iudge that many of them were gathered together in condemnatiō of taking any oath at all an errour holden by the Anabaptists albeit being truely vnderstood according to the circumstances the places serue neither the one turne nor the other rather then that by any colour they may be wrested to speake either against oathes ministred in causes criminall or against proceeding by Iudges of Office Let thus much therefore if it be not too much suffice to haue deliuered in some generalitie touching the said Treatise and Notes both which are vndertaken for the whole substance of them to be here and there answered in this simple discourse ensuing THE CONTENTS OF the seuerall Chapters of the First part 1 THat a seuerall royall assent is not required to the executing of euery particular Canon 2 The particular distribution of all other causes to be proued to be of Ecclesiasticall conusance besides Testamentarie or Matrimoniall with a discourse of bishops certificates against persons excommunicated being a speciall point of their voluntarie iurisdiction where there is no partie which prosecuteth 3 That matters in the former chapter adioyned to Testamentarie Matrimoniall causes though properly they be not of Testament or Matrimony are of Ecclesiasticall conusance and how farre 4 Generall proofs out of statutes that sundry other causes besides Testamentarie or Matrimoniall are of Ecclesiasticall conusance 5 That suites for title of Benefices vpon voidance or spoliation likewise that suites for tithes oblations mortuaries c. for pensions procurations c. are of Ecclesiasticall iurisdiction is prooued by statutes especially 6 That suites for right of tithes belong to the Ecclesiasticall iurisdiction and how farre is shewed out of the books and reports of the Common law so of places of buriall and Churchyardes and of pensions mortuaries oblations c. 7 Of right to haue a Curate and of contributions to reparations and to other things required in Churches 8 Proofes in generall that sundry crimes and offences are punishable by Ecclesiasticall iurisdiction and namely idolatrie heresie periurie or laesio fidei and how farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments 9 That Simony Vsury defamation or slander beating of a Clerke sacriledge brawling or fighting in Church or Churchyarde dilapidations or waste of an Ecclesiasticall liuing and all incontinency are punishable by ecclesiasticall authority and how farre 10 That the matters and crimes here reckoned be also of ecclesiasticall iurisdiction and proofes that any subiects lay or other may be cited in any cause ecclesiasticall 11 That lay men may be cited and vrged to take oathes in other causes then Testamentarie or Matrimoniall 12 The grounds of the two next former opinions examined and confuted 13 That iudgement of heresie still remaineth at the Common law in iudges ecclesiasticall and that the prouiso touching heresie in the statute 1. Eliz. cap. 1. is onely spoken of ecclesiasticall commissioners
proceed by that thereby without all scruple of danger their proceedings so appointed to them might haue bene warranted But being altogether needelesse it is no maruell though it were omitted For can any man doubt if it were needfull but that there is a sufficient Royall assent had when as it is giuen to the whole acte before it can passe for a Lawe Lastly the same statute out of 5 25. H. 8. ca. 19. which as I coniecture this opinion was stirred vp doth establish all Canons which be not contrariant nor repugnant to the Lawes Statutes and customes of this Realme nor to the dammage or hurt of the Kings prerogatiue Royall that they shall now still be vsed and executed as they were afore the making of that acte till they should be viewed c. by the 32. persons c. which is not hitherto done But such were vsed afore without any expresse or particular Royal assent from time to time obteined and therefore may still be vsed without any such newe assent For to exact it were in very deed to bring in a quite disuse of all ordinarie Ecclesiasticall Iurisdiction in stead of vsing it which hitherto from planting of Christianitie and in all succeeding times hath neuerthelesse bene practised This opinion as an arrow shot vnaduisedly at the Bishops glanceth off them and woundeth very deadly the fauourers of the new Discipline in whose behalfe it was framed for they are so farre from taking expresse leaue of the Prince to put euery of their Constitutions ecclesiasticall in vre that they holde her Maiestie hath nothing to doe to make or establish any Church-lawes And the clause for vse of such former Canons and Constitutions synodall afore mentioned as they were vsed afore that time will not helpe the exercise of their synodicall cōstitutions made long after in a Conuenticle called together by their Moderators writ But belike when they set vp the statute of submission of the Cleargie shall be turned into a statute of submitting the Princes scepter to the rule of their Presbyterie in all Church-matters The chiefest colour and pretence 1 25. H. 8. ca. 19. for this opinion is taken as I coniecture out of the now reuiued statute made in K. H. the eights time of submission of the Cleargie But the wordes thereof doe plainely discouer the weakenes of such collection for it is not enacted simply that they shall not put in vre c. any constitutions c. but according to their aboue said submission and petition which was that they would not enacte nor put in vre any new Canons c. in their Conuocation without the Kings royall assent and authoritie in that behalfe Otherwise there were a flat contrarietie in the selfe same Acte by reason of the last prouiso thereof next afore repeated where Canons already made so they haue the qualities thereby limitted are appointed to be vsed For it is there said shall be now still vsed and executed as they were before the making of that Acte And where in 1 27. H. 8. c. 15. the 27. yeere of the said King the same submission and former Acte is repeated there in the very body of the statute touching not putting in vre of Canons c. the same modification as afore is retained viz. According to the said submission and petition of the Clergie which concerneth onely newe Canons For of those that were then already made the very selfe same prouiso as afore is set downe appointeth that they shall still bee vsed and executed as they were before the making of either of those Acts. Which was without any such expresse assent as by this opinion is enforced and is therefore neither requisite nor almost possible I haue also heard some alledge the 2 1. Eliz. ca. 1. clause of the statute made for vniting of all Ecclesiasticall Iurisdiction to the Crowne against the exercise of Iurisdiction by any Ordinaries which to mine vnderstanding is a very simple collection Belike they meane that no Iurisdiction is vnited to the Crowne but there must be a Commission vnder the great Seale to warrant the execution of it vnto him that is to exercise it Then must euery Stewarde of a Leete euery Constable and sundrie other Officers be driuen to procure like warrant for the execution of their Temporall offices for I trust it will not be denied by these men but that all Temporall authoritie and Iurisdiction is by Lawe also vnited to the Crowne In deede this reason would serue against either the one or the other Iurisdiction if they were not deriued and claimed from the Crowne but from some other authoritie immediatly as the Popish Clergie did theirs from God by the meanes and direction of the Pope Yea euen another 3 8. Eliz. ca. 3. Parliament sheweth howe farre this collection is from the minde of the makers of that Lawe For that very clause 1. Eliz. ca. 1. together with her Maiesties letters Patents directed foorth for confirming and consecrating Archbishops and Bishops is brought in the Preamble thereof as a strong proofe without scruple and ambiguitie that the authorities and Iurisdictions by them executed be thereby giuen vnto them from her Maiestie And therefore this opinion doth remaine destitute of any ground of Lawe CHAP. II. The particular distribution of all other causes to be prooued to be of Ecclesiasticall conusance besides Testamentarie or Matrimonial with a discourse of Bishops certificats against persons excommunicate being a speciall point of their voluntarie Iurisdiction where there is no partie that prosecuteth THe next opinion viz. That by the lawes of this Realme none Ordinary may cite any whomsoeuer but in causes Testamentarie or Matrimoniall though it draw deepe yet it hath not so large a reach nor draweth so great a compasse as the former For this leaueth some ordinarie Iurisdiction Ecclesiasticall in these two cases where the other vpon the matter sweepeth away all But if this be simply true then the former must needes be false For if by Lawe an Ordinarie without more a doe may cite men in these two cases then may some Canon c. by Lawe be put in vre without any further Royall assent to execute the same But if it shall be prooued true that by the Law of the land in some causes besides Testamentarie or Matrimoniall an Ordinarie may cite Then this opinion that in no causes besides Testamentary or Matrimoniall an Ordinarie may cite being the contradictorie thereof must needes according to rule of reason be prooued false For it will not be denied by any but in what cause soeuer an Ordinarie may lawfully deale in that if neede be he may vse citation All matters done by Bishops who onely be immediate Ordinaries vnder her Maiestie either belong to their order and degree as ordeining of Ministers or Deacons cōfirmation of children dedication of Churches or Churchyards or to their Iurisdiction Their Iurisdiction is of two sorts the first is voluntarie that is when those whom they deale
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
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
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
contradiction alwayes yeelded to be of ecclesiasticall conusance For being such matters as subiects haue a right vnto and yet no writ lying therefore as I take it at the Common law which 1 Stat. de Consultatione 24. Edw. 1. reason is the ground in statute for granting consultations and of leauing causes of that nature to the determination of an Ecclesiasticall court it will therefore follow that these also doe belong to iurisdiction ecclesiasticall But touching Clerkes wages called in the Prouinciall constitutions eleemosynae consuetae and in the Register conteined vnder the generall word of Largitiones charitatiuae I haue incidently spoken in this chapter afore There remaine yet some offences set out by me to be of Ecclesiasticall conusance which I finde not hitherto so auouched to be by any writer of the Common law yet are they so holden by the law Ecclesiasticall and by vsuall practice also without any prohibition or other impeachment The first 2 c. dura c. falsariorum de crimine falsi of them is forgerie in an ecclesiasticall mattter or the vsing and setting out of forged letters knowing them to be such as of letters testimonialles of orders taken of institution and such like Next is the burying in vsuall buriall for other Christians of 1 c. quicumque de haeret in 6. notorious Heretickes or of persons dying excommunicated and without repentance thereof Thirdly willing 2 c. si concubinae de sent excom and familiar cōuersing with persons whom they knowe to be excommunicated matori excommunicatione Fourthly 3 Bald. in ca. cōuentic de pace iureiurando firmanda frequenters of conuenticles which doth also come vnder schisme Lastly vnlawfull 4 Extrau detestandae de sepultura digging vp of corpses buried either vpon spite or in any other sinister respect whatsoeuer I haue hitherto stoode vpon matters wherein Ordinaries by Law may hold plea to shew thereby that they may cite in other causes then Testamentarie or Matrimoniall For deale in them or handle them they could not vnlesse the party which is pretended to offer the wrong or to be the offendour might be conuented which is by citation Therefore besides the authorities here and there in the former discourse falling in by other occasions which might sufficiently prooue that they may cite and compell men to come before them I will now briefly vse some further direct proofe to conuince that in other causes then those two men may be cited before Iudges Ecclesiasticall It appeareth by Articuli Cleri that for any matter Ecclesiasticall indefinitely men might be cited For vpon doubt mooued whether the Kings tenants were subiect thereto in such sort as others are it is decreed that 5 Artic. Cleri 9. Ed. 2. ca. 12. such as holde of the Kings tenure may bee cited before their Ordinaries and may bee excommunicate for their manifest contumacie and after 40. dayes may bee attached by the Kings Writte as others The 6 23. H. 8. c. 9. preamble of another statute proueth Citations euen of men wiues seruants and other the kings subiects for diffamations and tithes so they be vpon iust matter and in due order to be lawfull The body of that statute 7 Ibidem prouideth that no Citation be made out of the Dioecesse c. where the partie dwelleth but where some Spirituall Offence or Cause is committed or done c. so that à contrario sensu in any other offence or cause Spiritual as very many are afore proued to be any subiect may be cited within his or her Dioecesse and in those also there excepted may be cited out of the Dioecesse Likewise 8 Ibidem for Heresie the Archbishop of Canterbury may cite any of his Prouince if the immediate Ordinarie doe consent or do not his dutie In a statute 9 32. H. 8. cap. 7. made for tythes any man withholding them shall be conuented according to the Ecclesiasticall Lawes And there is also mentioned Compulsorie Processe and censures of the Church In a statute 1 1. Ed. 6. ca. 2. of King Edward the sixt though for the body thereof it be repealed yet thereby is testified that summons and citations be Processe Ecclesiasticall in all suites and causes of instance betwixt party and party and in all causes of correction Therefore seeing there is no colour that onely Ecclesiasticall persons shall fall out to be deteiners of such dueties Ecclesiasticall or that they onely will proue offenders in the crimes afore recited neither can all the Kings tenants nor yet men wiues seruants and other subiects be entended for the most part to be other then Lay persons we may safely conclude that not only in causes Testamentarie or Matrimoniall but in very many other afore noted any subiect whosoeuer may be cited before his Ordinarie or other competent Iudge Quoderat probandum as being the very contradictorie of the opinion that we are in handling CHAP. XI That Lay men may be cited and vrged to take othes in other causes then Testamentary or Matrimoniall THe thirde opinion nowe followeth which is that by the Lawes of the Realme no Layman ought to be summoned or cited to make or take as I thinke is meant an othe in any other cause then Testamentary or Matrimoniall This differeth from the former in two points The first is in the partie to be cited For the second opinion was that none whosoeuer including both Ecclesiasticall and Lay where as this is onely that no Lay man may be cited c. The second difference is in the end of the citation For here is said a lay man may not be cited to take an oth in any other cause thereby leauing as it might seeme the Ordinary at large to vrge persons ecclesiastical to take an othe in other causes also But all comes to one ende For if neither Lay nor Ecclesiasticall as the second opinion holdeth may be cited in any other cause then cannot Ecclesiasticall men be cited in any other cause to take an othe That which cannot be done at all cannot be done for any ende non entis nullae sunt qualitates so that both these runne to one point sauing that hereby is affirmed a citation may not be made to the intent a Lay man shall take an othe sauing in those two cases Now if this citing be meant of the partie defendant then doth it not impugne any proceeding ecclesiasticall in vse for the partie conuented is not cited ad subeundum iuramentum but ad respondendum tali in causa decimarum c. faciendum vlteriùs quod iuris fuerit rationis If it be meant of witnesses neither are they cited against their will not so much as in Testamentarie or Matrimoniall causes or any other to appeare till faith be made by the partie or by some other for him that they take them to be necessary witnesses for to testifie in that cause and that being required and their reasonable charges offered them
directly moued for the crime and not by way of exception or barre onely witnesses are to be compelled sauing that by later Canons Clerkes were not to be compelled to testifie in causes of blood But if the question be touching a crime by way of exception then either there may ensue thereupon some effect of punishment as vpon excepting a man to be criminous who then is to be preferred to a dignitie to a benefice or vnto orders in which case any witnesse may be compelled to giue testimonie or else no penaltie can thereupon follow as when the exception is taken onely to repell a man from testimonie or accusation and in this case witnesses are not compellable except the partie who excepteth be like to be grieuously thereby preiudiced if his witnesses cannot be gotten to depose There is nothing more conuenient then that euery court should vse his peculiar course of proceeding by that law wherin they deale prescribed And therefore 1 Anton. in c. quod clericis de foro competenti lay mens matters in a Court ecclesiasticall are to be handled according to the maner of proceeding by that law required euen as 2 Bartol in l. 3. § fin ff de testibus clerkes shall and ought to be dealt with in temporall or ciuill courts after the maners and orders of those courts Seeing then compelling of witnesses to testifie is not contrariant repugnant nor yet diuerse from the Common law nor by it forbidden but allowed vnto Ecclesiasticall courts according to the course of those lawes which doe require it as is shewed and no reason or equity leading to admit it rather in those two causes then in others of the same conisance therefore may any witnesses whatsoeuer be vrged to take oath and depose in Courts ecclesiasticall and in other matters ecclesiasticall then either testamentarie or matrimoniall But to descend yet to more particulars the Kings tenants may 3 Artic. Cleri 9. Ed. 2 cap. 12. be cited before their Ordinaries as others Therefore both they and others though Lay persons may be cited in all causes of that iurisdiction neither is it there distinguished whether they come in as witnesses or as parties Also they may 4 Ibidem as others be excommunicated for their manifest contumacie This contumacie after appearance groweth onely vpon peremptorie refusall to performe some decree or commandement of the Iudge as in refusing to be sworne or to be examined being sworne Seeing then for manifest contumacie the Kings tenants or others may be excommunicated and this is indefinitely set downe it will follow that as in any other not performance of the decrees of the Iudge according to the ecclesiasticall lawes so in refusall to be sworne whether he be partie principall or witnes there is manifest contumacie Vbi lex non distinguit nec nos distinguere debemus Particularly in matter of tithes being neither a cause Testamentarie nor Matrimoniall the 1 27. H. 8. contemners of the processe lawes and decrees of the Ecclesiasticall courts of this Realme are by statute condemned but an vrging to answer or testifie vpon oath is a decree of an Ecclesiasticall Court ergo may not be contemned The Ordinarie 2 Ibidem in a suite of tithes for any contempt contumacie disobedience or other misdemeanours vpon complaint may haue the partie committed till he shall be bound to giue due obedience to the processe c. decrees and sentences of the Ecclesiasticall court of the Roalme but requiring a parties or a witnesses oath is such a decree Therefore c. Likewise by another statute 3 32. H. 8. cap. 7. the Ordinarie may conuent for withholding tithes according to the lawes Ecclesiasticall therefore he may conuent and cite a man Lay or other if he be supposed to be a withholder to answere vpon his oath For so is the Ecclesiasticall law Further by that statute the 4 Ibidem Ordinarie may proceed to hearing and determination c. according to the course and processe of the ecclesiasticall lawes but the processe and course of hearing by that law is by the parties personall answere vpon oath if it be required and by compulsories of witnesses to depose by oath as is afore touched Therefore c. The statute of 5 2. 3. Edw. 6. cap. 13. king Edward touching tithes prouideth that both they and the costs charges and expenses in the suite shall be recouered before the Ecclesiasticall Iudge according to the kings Ecclesiasticall lawes but for recouery of them those lawes require in cases aforesaid both oath of partie and of witnesses ergo c. By that statute is established that the 6 Ibidem Ordinarie euen for personall tithes may call the partie afore him and by his discretion examine him by all lawfull and reasonable meanes other then the parties owne corporall oath concerning the true payment of such personall tithes Ergo a corporall oath is in other ecclesiasticall causes a lawfull and reasonable means for exceptions are alwayes of the nature of the rule and should be within the rule if they were not excepted and therefore also in all other tithes as prediall and mixt it is a lawfull and reasonable meanes to put the partie vnto his oath quia exceptio firmat regulam in casibus non exceptis The statute for Vniformity of Common 1 1. Elâ—…z cap. 2. ad finem prayer authoriseth ecclesiasticall Iudges to enquire to take accusations and informations and to punish the breaches of that act c. in like forme as before had bene vsed in like cases by the Queenes Ecclesiasticall lawes but in like cases by those lawes oathes both of parties witnesses haue bene vsually taken Therefore c. One only instance destroyes a generall assertion therefore if there were but any one instance to the contrary an oath by law may be vrged of some lay man in some other cause then testamentary or matrimoniall which being true and the very contradictory of the opinion that is in issue vpon this point betweene vs it must needs follow that the opinion is vntrue and therefore not grounded vpon law Quod probandum nobis proponebatur CHAP. XII The grounds of the two next former opinions examined and confuted THe ground of these two opinions last handled for any thing that I could euer learne doeth only rest vpon a precedent of a writ of prohibition and of attachment thereupon In treating whereof for that I shall be forced to gainsay something that is deliuered by graue learned and wise parsonages I must first protest before God in sinceritic of heart that I do it not calumniandi sed veritatis studio whereof I am something resolutely persuaded in this behalfe I do reuerence and esteeme them that are contrary persuaded being men of great learning in their profession neither contemning nor condemning any so much as my selfe as being most priuie to mine owne wants and therefore I trust something taught to measure my selfe by mine
and the other is forbidden to be done 1 Arg. l. 13. cùm ita ff de rebus dubiis A disiunctiue argueth seueral things that had neede to be expressed by seuerall wordes And by like reason it cannot be meant of witnesses depositions for if the partie conuented shall be content de facto though he be not compellable by lawe as this opinion presupposeth to denie the intention of his aduersarie then no Lay witnesse might in any such other cause ecclesiasticall be vsed either to depose with oathe or without oathe because both be forbidden and so no plea in any such other ecclesiasticall cause coulde be holden which is afore prooued to be otherwise and therefore consequently that is not the meaning of these wordes of the writte which is by 1 Fitzh nou na breu fol. 41. a. Fitzherbert and others that follow him enforced Touching the writ of Attachement thereupon whether as it is set out in the Register it may be holden to haue bin an originall writ at the Common law drawen at first by the grauest aduise in the Realme to be so perfite as that nothing further then is expressed by the words neede therein to be vnderstood to come by the true meaning may partly be gathered by that which followeth First it is said pone talem episcopū not vsing letters for his name as in most of the other writs Next a Bishop who in that he hath a Barony is presumed to haue temporalties whereon to be distreined is here appointed to finde vadios plegios Thirdly it hath laicos homines foeminas as if women were not homines seeing homo is the cōmon gender Fourthly though the prohibition whereupō it is framed forbiddeth both recognitiōs to be made and oathes also to be taken by lay men yet the Attachement wholly omitteth the making of recognitions And yet howe many oathes soeuer should be giuen if none answeres or depositions doe thereupon euer followe which two the opinion that we impugne meaneth by recognition what colour of preiudice doeth or can growe that either Prohibition or Attachement should neede to be awarded Fiftly neither by Ciuill nor Canon lawe neither yet by practice doth any sommons or citation goe out of an ecclesiasticall court in such sort as this Attachement assigneth to be a preiudice vnto the royall dignitie viz. ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis For it were a grieuance giuen euen at the Canon lawe if an Ordinarie should either call any being not a partie or necessarie witnesse in some matter depending or should call witnesses against their will not being first required and hauing their charges offered or if he should do it when there is no cause but 2 Pro voluntate sua for his owne pleasure as this writ implieth Sixtly the proceeding hereby condemned is saide to be done in praeiudicium graue coronae dignitatis nostrae regiae But if no matters be thereby drawen from the kings courtes as in deede none be though you followe the interpretatiō thereof by some enforced then what preiudice commeth to the crowne For though lay men be vrged to depose vpon their othes in all other causes besides that be of Ecclesiasticall conisance what damage or detriment doth the Crowne and dignitie royall thereby susteine more then it doth by their compulsiue deposing with othe in causes Testamentarie and Matrimoniall which this opinion admitteth and alloweth of For if none other causes Ecclesiasticall then those two could conueniently be proceeded in nor any remedy could be giuen by a court Ecclesiastical for want either of the parties answere or witnesses depositions vpon othe yet could not Temporall Courts as the Lawe standeth giue any more remedy in them And so no preiudice to them or to the Crowne that Courtes Ecclesiasticall do proceed as they do to the determination of such causes Nay rather on the other side it were a preiudice to the Crowne that subiects should offend and no good meanes should be found by Law to punish them or to haue a right yet no way for them to come by it Seuenthly that which is there condemned is said to be 1 Consuetudine praed vsi fuerimus semper libettatibus huiusmodi Prohibition in Rastell tit Prohib nu 6. contra consuetudinem regni nostri which doeth strongly argue that vrging parties in other Ecclesiastical causes to put in their answere vpō their othes or witnesses so to testifie is neither by that fourme of Prohibition forbidden nor by the Attachment thereupon ment to be disallowed For first the custome of diuers Courts Temporal requireth parties answeres vpon othe and likewise alloweth Writs of sub poena and other processe in sundry cases to compel witnesses to come in and to testifie their knowledge And againe in Courts Ecclesiastical the custome hath alwayes bene to require othes of parties and witnesses though otherwise vnwilling in maner as is a fore touched Which may appeare both in that the Lawes Ciuill and also Canon which they deale by doe require it and that no bookes of Actes Ecclesiasticall as I am verely perswaded can be shewed whether of olde or later times by which it may not appeare that this course of compelling parties and witnesses to take othes in other causes then those two hath bene vsed so often as occasion hath required And therefore not this but some other maner of proceeding it was which by the Writte of Attachment is meant to be contra consuetudinem regni Lastly this fourme of Attachment mentioneth not so much as excepting of compelling to take othe in causes Testamentarie and Matrimoniall albeit the prohibition haue that exception And therefore for auoyding of iarre betwixt them something must necessarily be vnderstood to haue bene at first in the Writ it selfe whereof this is a minute further then is here expressed And why shall not then the clause de catallis debitis be vnderstood therein aswell as this other seeing so strong probabilities doe leade it and so many absurdities and inconueniences be thereby auoyded which the late enforced interpretation doth necessarily inferre with it selfe Therefore wee may conclude this second point that to debarre Courtes Ecclesiasticall in any cause of that Iurisdiction from exacting parties conuented to put in their answeres vpon their othes or from compelling such witnesses by censures to testifie who being required and their necessary charges being offered doe neuerthelesse refuse to testifie a trueth is not nor yet can be the meaning of that Prohibition or of the Attachment thereupon The last point of the three to be touched is concerning the true meaning of those wordes of the Writte whence these controuersies haue flowed It is therefore to be remembred that it was very vsuall for men in those dayes at making of any contracts whether in matters of Lay fee or others for their more securitie to make faith or othe for performance This they either did priuately for
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
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
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
further care I thinke it will not be so supposed The like then may be sayd of Ecclesiasticall officers and offences notwithstanding all generall Enquiries in Senes or Synodes and in visitations But it will perhaps be sayd in the one Court they may bee presented by the sworne men and in the other by enditement of the grand Iurie at Sessions and Assises c. It is true they may be but how many I pray you are so found out and endited from time to time by the grand Iuries of their own enquiries knowledges if either some partie grieued in particular doe not giue euidence or the Iudges or Iustices of themselues do not informe them and vrge them notwithstanding the straitnesse of their charge and oath and that they be taken out of the seuerall parts of euery shire But be it that some notorious murtherer or felon is soby them endited at some times how many other offenders in penall statutes being men of any reckoning in the shire are endited at all thorowout the Realme in many yeeres if none of the bench do take care to vrge the Iuries as Recusants in comming to diuine seruice such as haue and keepe Reteiners and giue liueries contrary to statute onely to band in quarrels and to mainteine bad actions or yet such as goe excessiuely in apparell or which violate the statutes appointed for not eating flesh vpon certeine dayes Nay it falleth out often times that the more to giue edge to such Iuries to do their duties euidence hath bene giuen vnto them in these offences yea such and so good as vpon lesse euidence they would perhaps haue endited a man of felonie to the hazzard of his life especially if he were but some base fellow Now when none almost will be found to giue euidence sauing in such a cause where he findes himselfe or some of his pinched yea and not in such neither if the other partie be a man of any tolerable reckoning or ability and very few albeit themselues do perfectly know it or haue reasonable good euidence giuen against some man of power that will finde an enditement against such an one although both he that giueth the euidence secretly and all the Iurie may be in some hope not to be knowen who it was that did principally stirre in it because they be sworne to keepe the Queenes counsell their fellowes and their owne can it then with reason be imagined that any man almost will be found voluntarily to become an Accuser and to prosecute at his owne costs and charges Experience teacheth that most men will not few that dare and those onely such as take themselues in some particular respect wronged We see in a great multitude of penall statutes at the Common law how men by third parts and moities of forfeitures besides great priuileges in proceeding are as it were allured and entised to informe against offenders yet very few notwithstanding such great gaine as thereby might be got are found besides such as make an occupation of it that will voluntarily preferre informations albeit there be enow that want the money and could well be content to finger it out of what male factours purse soeuer it came The reasons of this backwardnesse in informing I take to be the charge trouble common obloquie and offence taken by them that be prosecuted and thereby feare and perill to come vnto some further mischiefe vpon their procurement or for their fauour Now where men that are so well hired and by reason the Queene is partie to such informations so fully in all reason protected will not lust not or dare not preferre matter penall against others shall wee looke for better courage to be shewed by priuate persons against offenders in Ecclesiasticall crimes where they can expect no such countenance nor remuneration to lighten the other burthens and dangers and therefore either of Office to be prosecuted or must be wholly left vnpunished In riots committed and done vpon others we see iust cause of griefe for the iniury receiued and thereby occasion giuen to seeke lawfull reuenge There was good remedy also prouided for them at the Common law Yet in the time of king Henrie the seuenth for a further remedie and repressing of them by the Lords of the Starre-chamber the State was driuen to make a statute By authority whereof their Lordships proceed in that and others ex officio albeit in many causes they haue some partie grieued that by way of complaint promoteth and prosecuteth the office Yet the proceeding is as was touched afore by way of enquirie in that no man there sueth for priuate recompense but the scope of the whole processe is criminall ad vindictam publicam vel corporalem vel pecuniariam applicandâ—…m fisco non parti So that where men haue â—…ust cause of griefe yet was it thought very expedient requisite to prouide a sharper course by way of enquirie of office How much more then is this course needfull to be holden for punishing Ecclesiasticall crimes which by the policy of this Realme haue no other punishment and where no man hath for the most part any priuate iniury whervpon to complaine himselfe Here perhaps it will be said that he which can giue information of a crime to a iudge may accuse or procure a presentment in an Eccelesiasticall Court if it be of that iurisdiction or may informe and procure an enditement if the cause be Temporall or els that it were meet his information be not beleeued but that he should be holden as a slanderer and a malicious person We are to remember that if this Dilemma viz. either thou must accuse and prosecute him c. or else thou art but a slanderer had not quiddam tertium to minister answere vnto it many grieuous faults should passe vnpunished and many poore men should be sore pinched For experience teacheth that 1 Clarus ibid. q. 6. often times euen in crimes publikly committed you shall hardly finde witnesses that will depose their direct knowledge when it tendeth to the offence of some man of countenance that may do them a displeasure after And therefore they will either say they saw it not heard it not marked it not or at that time remember it not Yet it is knowen that a witnesse is vrged by the religion of an oath and is not entended to thrust himselfe into the matter willingly which as it ought to serue to take away all offence conceiued by him whom he toucheth so ought it to wash away all feare and other affection in the witnesse Then how much more probably may it be supposed that there is many a meane man though otherwise able to giue good and true information perhaps of three or foure witnesses which doe know the matter more fully and touching other particularities sufficient for a Iudge to enquire and to looke into the partie so denounced who neuerthelesse in many respectes dare not become an open Accuser or a preferrer of presentment of
of sir Th. Mores grounded also vpon resemblance of the practise at the Common law vnto the ecclesiasticall in this behalfe viz. that a man may be at that law arrested and imprisoned onely vpō suspicion he frameth two answers The first of them is that at the common law there must be a fact precedent whereby a cause of suspicion must be grounded otherwise there lieth an actiō of false imprisonmēt What If an offence appeare to be done shal this be sufficient without all peril to ground a suspicion against any man whomsoeuer that it was he which did it so to imprison him Neither yet is it generall that a fact must be precedent before a man be arrested For if it be a fact of such qualitie nature as leaueth traces signes after it as murder Coining and such like which be called by Ciuilians facta permanentia in thē it is true that a fact must be precedent But in such facts as leaue no such traces behind them so y t it is not certain whether they be cōmitted at all or not yet probabilities thereof doe appeare as of speaches secret treaties of cōspiracie treason for such facts a suspected partie may be arrested and imprisoned though it be not assuredly knowen whether the fact be committed at all or not And these are called facta transeuntia Neuerthelesse this is not in any sort an answere vnto sir Th. Mores reason For admit that a fact must alwayes be precedent neuer the later this remaineth true that a Iustices onely suspicion may serue to arrest and imprison a man And yet the law ecclesiasticall for which More reasoneth doth in trueth require strōger grounds for enquitie special thē the Iudges only suspiciō as is afore at large in this secōd part declared The Note-gatherers later answere vnto that reason of Mores is that a felonie or murder being done and a fact manifest the partie apprehended and suspected knoweth that he is to answere that facte and not other by-wayes as is vsed in the ecclesiasticall proceedings Trulie of all that euer I heard these answeres be by-wayes and besides all way too of any reasonable answering obiections It may be that the partie himselfe especiallie if he be not guiltie knoweth not till hee be asked the very particular cause of his apprehension But it will be sayd that vpon his examination hee learneth what it is Why sir and so doe all that be conuented in courtes ecclesiasticall know by their examination the matter obiected Then where is the difference and the by-way that this man so talketh of But will you see his clerkelie vayne of reasoning herein For it is as if he had gathered it thus viz. A man arrested knoweth that he is to answere a fact which is committed Ergo Albeit at the common lawe a man may bee arrested vpon suspicion yet proceeding ex Officio is vnlawfull how good grounds soeuer there be for it farre sounder then suspicion For another inconuenience of proceeding by office importing with all a Contrarietie to the lawes of the Realme the Note-gatherer assigneth that thereby the Accessarie may be punished and the principall may escape which is contrarie to the Common law The consequence hereof he goeth about to prooue thus For that as he saieth the Principall may in those courtes be an Informer and a witnesse both against the Accessarie By which saying his slender skill or experience in those lawes appeareth For it is most notorious that there is no better nor more vsuall chalenge exception against an Informer or witnesse then to alleage quod est particeps vel socius criminis praetensi Albeit euen at the Common lawe we vsually see partakers and complices in coining in other kindes of treason and for sundry hainous crimes especially which are secretly contriued to be admitted to appeach and to be witnesses and to giue euidence against others their partners He affirmeth also but maketh no shew of proofe thereof that hereby the two Iurisdictions be confounded and that proceeding of office is derogatorie to the lawes liberties and customes of England In which respect it is sufficient that these be as easilie by vs denied as they be barelie boldly and vntruly by him auouched He further allegeth in three places as if it were a matter very considerable out of Hall and the Actes and Monuments of the Church that by the statute of 25. H. 8. cap. 14. all proceeding of Office is repealed and calleth the statute against Heresie 1. H. 4. the statute ex officio as if it had bene vnknowen before First that very statute 1 1. Eliz. cap. 1. it selfe of H. 8. standeth repealed Secondly it is very vntrue that it did at any time repeale proceeding of Office For it doth not so much as once mention it And therefore what any writers do name the sayd statute of H. 4. thereby repealed as I haue not sought so is it not materiall seeing they misunderstand it if they so write Yea the Notegatherer himselfe yeeldeth that the sayd statute of K. H. 8. doth establish proceeding of Office if he vnderstand what himselfe writeth For it doth appoint and so he allegeth it that from thenceforth proceedings against Heretikes should be vpon accusation or presentment If vpon Presentment then of consequence by the Iudges Office For so all lawes testifie and Presenters be not Accusers or parties For they are seuered counter-diuided euen in that very place one against the other The principall drift of that statute of K. H. 8. was to prouide that an Ordinarie vpon his owne onely suspicion should not call men into the dangerous question of heresie as it seemeth was afore vsed by some of them vpon colour of that statute 1. H. 4. and therefore there repealed The next statute which to the same purpose he quoteth 2 31. H. 8. ca. 14. is so farre from impugning proceeding of Office that for grounding proceeding ecclesiasticall euen in the crime of heresie it prouideth besides Accusation and Presentment not onely information by two witnesses but also enquirie and that is alwayes of Office But do not these men draw neere the lees when they are driuen thus to allege the statute of Sixe Articles being also repealed against proceeding of Office I had thought their courage in the pretended cause of sinceritie had bene so great that they would rather haue quit the place with losse of their cause then once to haue borrowed so much as the shadow of a weapon out of that store house Against this course the Note-gatherer also allegeth certeine bookes printed in king Henrie the eights dayes Cum priuilegio These hee termeth to be the maner of debating that cause in those dayes The first was made by S. German as it is thought and is intituled The diuision of the Spiritualtie and Temporaltie with his replie against Sir Thomas Moore intituled Salem and Bizance The next concerning the power of the cleargie and lawes of the Realme The third intituled Of
the liberties of the clergie collected out of the lawes of the Realme by Iohn Goodall and printed by Robert Wier but without priuilege And the last Marsilij Patauini Defensor Pacis in English with the Kinges and her Maiesties mothers armes which belike hee mentioneth that they may stand in stead of priuilege But will you see what great and strong debating there was of this matter by the sayd foure bookes Truely sauing in the first of them there is not a word mentioned against proceeding of Office And in Goodalles booke by sundrie places thereof as is else-where in this Apologie alleged this kinde of proceeding is plainely auouched to be a Libertie of the Clergie giuen vnto them by the lawes of the Realme And all that is sayd in that one booke 1 Of diuision betwixt the temporaltie and spiritualtie cap. 7. and one onely place thereof is no more but thus worde by worde viz. Another cause of diuision for that diuers suites haue bene taken ex officio so that the parties haue not knowen who haue accused them and thereupon they haue bene caused to abiure in cause of heresie sometime to doe penance and to pay great summes of money for redeeming Which vexation they thought came by the Iudges and the Officers Therefore the fault that hee then found was not the very proceeding of Office but for that it was handled in such sort that the partie knew not who gaue the information which he calleth Accusing and for that it was in cause of heresie being a crime of farre more important danger to the partie then any other offence Ecclesiasticall yet not challenging the very proceeding thereby for vnlawfull but as being with such circumstances some cause of diuision betweene the two states as he surmised The soundnesse of which iudgement I minde not here to examine The Note-gatherer vrgeth further that the Popish bishops were depriued in king Edward the sixt his time by Accusation or Presentment though as it seemeth hee knoweth not by whether of them But what if they at that time had bene proceeded with otherwise then of Office Woulde this prooue all proceeding of Office to be contrarie to the lawes of England which is his drift and purpose Yet I haue often shewed afore that Presentment is a preparatorie course peculiar onely to proceeding by speciall enquirie of office But for plaine proofe in fact that they were in deed proceeded with ex officio Iudicum I referre me to the actes iudiciall of their depriuation yet remaning and to that also which I haue written in a certeine chapter of the third part of this booke Heere it will not be vnseasonable to admonish the Reader once for all of a palpable 1 Aduertisement of an errour mistaking both of the Note-gatherer and Treatisour in a materiall point who by the whole course of their writings and titles of their bookes seeme to imagine proceeding ex Officio to signifie nothing els then ministring of an oath to the suspected partie in a cause criminall Whereas in verie trueth there may be some proceeding of Office though that oath be not at all vrged or vsed yea and where it ought not to be imposed though it were vrged Like as on the contrarie side there may be proceeding euen by way of Accusation where the oath may and ought to be exacted for the parties purgation perhappes burthened by great probabilities yet not being so pregnant as to conuict him And therefore without all colour of reason and ignorantlie doe they and some others as the late Petitioner to her Maiestie confound proceeding of Office with ministring of an oath being but one Act thereof which is in deed sometimes but not alwayes no nor yet alonely vsed in that course of proceeding Neuerthelesse taking it whether way they lust the sayd Popish bishops were in trueth proceeded with of Office though denounced by certeine and as is expreslie set downe of some of them were vrged and did answere the Articles obiected vpon their corporall oathes which by lawe they needed not and therefore as it is likely would not haue done if the Denunciatours had beene parties To prooue this course to be against law he allegeth also out of a booke made 2 Defence of Priests marriages pag. 175. by D. Parker sometime Archbishop of Canterbury these words viz. The very front of her Graces articles meaning Queene Marie chargeth the ecclesiasticall Ordinaries to put in execution the Canons and Ecclesiasticall lawes none other but such as were vsed in the time of king Henrie the eight And commandeth also moreouer that those should no further be put in execution but as they may stand with the lawes and statutes of the land What then Ergo all proceeding of Office though continuallie practiced in sundrie matters in both their reignes without contradiction is contrarie to the Lawes of the Realme Truely if there be one methode of sound reasoning as Ramus holdeth concerning teaching of Artes I would be sorie this kinde of disputing should be it For I haue not bene taught nor shall euer learne I thinke either to reason thus or to put such Enthymemata into true Syllogismes viz. Such Canons onely were then to be put in execution as might stand with the lawes of the Realme Ergo proceeding of Office is contrarie to the lawes of the Realme His last allegation falling into this place to be discussed that he bringeth in maymed also to prooue this proceeding to be against the lawes of England is out of one of her Maiesties Iniunctions 1 Iniunction 50. Against slanderous and infamous wordes which is thus verbatim viz. Her Maiestie straitly commandeth all maner her subiects to forbeare all vaine and contentious disputations in matters of religion and not to vse in despight or rebuke of any person these conuicious wordes Papist or Papisticall heretike Schismatike or Sacramentarie or any such like wordes of reproch But if any maner of person shall deserue the accusation of any such that first he be charitablie admonished thereof and if that shall not amend him then to denounce the offender to the Ordinarie or to some higher power hauing authoritie to correct the same But what I pray can be gathered hereof more then a care to reteine priuate persons in a charitable course one towardes another without reprochfull wordes vpon any differences of opinions Or doth this reach to the abrogating of any course of proceeding Nay rather it doeth establish it seeing vpon Denunciation which is heere mentioned proceeding of Office may be grounded but not Accusation But the Treatiser saith that heereby the same man is Iudge and Accuser which is contrary to the policy of this Realme that suffereth not an Accusor to be a witnesse nor an Enditour to be a Iuror for triall of the fact I answer that the first is vntrue For that which openeth way to the Iudges Enquirie is holden by Lawe as the Accusour and not the Iudge Touching the second I haue shewed out of
Formall cause of the vse of Oathes chapter 1 An answere to certaine doubtes made concerning Oathes as namely why in Scripture God is said to haue sworne how by Oath he is said to be called to witnesse an Oath no chapter 2 tempting of God but a part of his worship way neuerthelesse some are repelled from taking Oath whether Adiuration be lawfull after whose meaning an Oath is to bee vnderstoode whether euery Pr◅m ssor◅e Oath bee simply to be kept whether an Oath may bee dispensed with and how farre and whether a Christian may by mutuall Oathes contract with him that sweareth by false gods Diuision of Oathes according to the outward forme of taking them according to the matter and inward forme of them with plaine description of euery kind of oathe chapter 3 That the ceremonies vsed in taking and giuing corporall oathes with laying hands vpon chapter 4 the Bible or Testament and swearing by the contents of it are not vnlawfull The true issue of the next opinion in question two sortes of crimes and offences prohibited in what cases an oath here spoken of may not be ministred and the manifolde conueniencie chapter 5 and necessitie of an oath sometimes to be ministred in a cause criminall and penall vnto the partie with some fewe obiections touching inconueniencie thereof an◅wered That oathes of men touching matters dammageable criminall and penall to themselues chapter 6 are vrged and exacted by temporall Courts and by the lawes of this Realme Wherein are conteyned answeres to such obiections and reasons as be made for proofe of a chapter 7 contrarietie or repugnācie in these oathes vnto the statutes lawes or customes of this Realme and a Replie to the Treatisors answers made vnto certaine obiections supposed likely to be made in Iustification of this kind of oath by the temporall lawes That ministring of such oathes is by the Lawes of the Realme allowed vnto Iudges of Ecclesiasticall chapter 8 courts and some fewe obiections made to the contrary are answered That such oath touching a mans owne crime is allowed both by the Canon and Ciuill chapter 9 lawes how faire and in what sort and that the like is established and thought equall by the lawes and customes of sundry other nations a◅well ancient as moderne An answere to some obiections pretended to be made against this kind of oath from the chapter 10 lawes Ciuill or Canon That not onely such an oath may be taken but also being by Magistrates duely commaunded chapter 11 ought not to be refused is approoued by Scriptures by practise of the Primitiue Church and of late times together with a Replie vnto certaine answeres made vnto some proofes here vsed An answere to such obiections as be pretended to be gathered from Diuinitie Diuines chapter 12 and from the Examples of godly men against ministring oathes vnto parties in matters of their owne crimes Foure seuerall opinions of the Innouators against the parties taking of oath in criminall chapter 13 causes with answeres also vnto their reasons and obiections That a man being charged by authoritie to discouer his knowledge touching some offence chapter 14 which his Christian brother is supposed to haue done is bound to reueale it though it may breede trouble and punishment to his brother and the reasons to the contrary are answered and refuted Their arguments are answered that condemne the ministring and taking of an oath as chapter 15 vnlawfull because they haue not distinct knowledge giuen vnto them of euery particular before the taking of it and the like course by examples is approoued lawfull and godly That after the partie hath answered vpon his oath it is neyther vnusuall vnlawfull not chapter 16 vngodly to seeke to conuince him by witnesses or other triall if hee bee supposed not to haue deliuered a plaine and full trueth and somewhat also in approbation of Canonicall Purgations with answere to the Treatisours obiections against them The third part of an Apologie for certaine proceedings by Ecclesiasticall iurisdiction of late times by some chalenged CHAP. I. Matters in this third part to be handled Of the lawfulnesse of Oathes What an Oath is and the reason or originall Formall cause of the vse of Oathes THat which followeth in this third part of Apologie to be handled according to the order that I haue proposed to my selfe in the Preface before the second are the chalenges taken either to the oath of the partie which is sued conuented they are either against the ceremony outward actions vsed in taking it or els because it is giuen to tie the party to answer in a cause criminall penall vnto himself or else they are against examining vrging men to depose touching actions of their brethren being criminall or at least such as albeit the examiners do hold and make to be criminall and misdemeanors yet the examinates themselues doe take them for good and godly not deseruing any punishment but rather high commendation Or they doe touch some circumstance concurring with the tender of the oath as that the examinates haue not distinct knowledge of euery particular whereupon they are to bee examined before they resolue whether to take the oath or not Or lastly they concerne some euent ensuing the oath and examination as that the Iudges doe not rest in that which is affirmed or denied vpon the parties oath but oftentimes proceed to a further examination by witnesses concerning the same points This matter of an oath is a principall chalenge of theirs which they drawe and spinne out into these particular exceptions and chalenges as yousee And it is the thing together with proceeding against crimes and offences by way of Enquirie Ex officio wherein you most especially desired a full resolution which would to God either in the rest or in this I were as able to doe as I am readie and willing and as the matter it selfe and goodnesse of the cause would yeeld and affoord to a skilful and sufficient man But the rather to performe my promised vtmost endeuour I hold it not amisse for better vnderstanding of the rest to touch as brieflie and plainly as I can the nature of an oath and some I trust not vnnecessarie questions about that matter which I haue collected First I will touch but very briefly not taking vpon me to doe it in sort as Diuines could the lawfulnesse of oaths with answere to some obiections which is the question An sit I will stand the lesse herein least I seeme to seeke to drawe any of them into hatred as if these innouating disciplinarians did directly condemne oathes before Magistrates which most solemnly they protest they doe not Albeit if all their positions hereabouts were scanned and compared together some holden deliuered by one and some by others of them both shrewd and lewde conclusions pricking fast forwarde to this point would necessarily thereupon follow Next I wil handle what an oath is which is the question Quid sit Then the originall Formall
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
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
her to vse any coërtion for any matter Ecclesiasticall but excōmunications such like and that therefore a man may not be punished by imprisonment or fine for or in any matter Ecclesiasticall and lastly that a man that standeth aboue fortie dayes excommunicate may no way be punished but vpon the writ De excommunicato capiendo and that the said writ may not be awarded but vpon originall cause arising vpon some of the ten crimes touched in the stat 5. El. c. 23. But others that be indeed professed dealers for an innouation in the Church when they are conuented before authority not only do most greedily take hold of these exceptions pretended to be taken from the Common law against iurisdiction Ecclesiasticall but do allege also sundry others yet pretending to ground themselues for both not alonely vpon the lawes of the realme as those do of whom we hitherto haue spoken but vpon Gods law also the Ciuill the Canon or Ecclesiasticall law and vpon equitie and reason Not because they were persuaded by the pregnancy of any of these so to thinke but hauing embarked themselues in that common quarrell viz. to impugne the gouernment Ecclesiasticall of this Realme in all things to their vtmost haue first as is probable entred into the opinions and after haue sought some colour to vernish them ouer with wheresoeuer they could hit of it Which their exceptions peculiarly framed by the professed Innouatours and their owne proofs both for them and for these also afore recited which were put into their heads by some Lawyers shall God willing then be distributed layd forth when we come to the handling of them because other parts of this Treatise are more apt for that purpose then this generall Preface These opinions of late ringing sundry times in mine eares and seeming to me to be diuersly mistaken I called to memorie so nere as I could what and where I had read any thing touching them Whereupon turning some books and confusedly noting what I found I was more and more confirmed in my former conceits sufficient for mine owne persuasion Now because you pretend not to haue trauelled in these kinde of questions haue so earnestly importuned me to take some paines therein I haue bin content for your owne onely priuate reading satisfaction to plot my simple conceits into this order as you see For owing very much vnto you therefore not daring to deny you so small a matter I haue with y e litle leasure I could get hazarded rather to haue want of iudgement in me then lacke of good will by you to be censured Meaning in the first part of this Treatise to pursue the particular order heere aboue comprised sauing that those foure recited opinions which touch the circumstances of entring into a suite Ecclesiasticall and the maner of proceeding in it I shall be forced contrarie to the naturall methode to put after all the others as requiring seuerall handling and falling more fit in the second and third partes of this Treatise An Epistle to the Reader conteyning the occasion of the publication of this Apologie with a generall delineation of two Treatises written against the scope of some part of the same VPon occasion touched in the Preface going before gentle Reader I was about a yere three quarters since drawen to set downe this simple Apologeticall discourse ensuing albeit in very many places thereof nowe enlarged Which Treatise by him to whom it was addressed being then imparted vnto certaine others of honour and qualitie it is saide that they were also desirous to haue copies thereof for some considerations to themselues best knowen The booke was somewhat long and had many quotations so that it coulde not conueniently in any short time be written out truely and faire for so many as seemed earnestly to request it Hereupon it was then in priuate sort committed to the presse and fourtie copies or there abouts were printed without any purpose of further publishing It appeareth nowe that neere about the same time certaine Doctours of the Ciuill lawe required thereunto by some in authoritie did agree vpon a briefe schedule conteyning some groundes of ministring an oath of office in crimes punishable by Ordinaries and Ecclesiasticall Iurisdiction a matter referred but to priuate consideration and desired for like satisfaction onely This small schedule was after deliuered foorth by some to whose handes it came as the report went to be confuted by certaine Diuines and Ciuilians of either Vniuersitie and by certaine professing the Common lawe Sure it is that within foure moneths after a Treatise said to be penned against the purport and drift of that schedule by sundry holden wise not vnlearned to whose sight the written copies thereof were credited was most highly commended and extolled It seemed so precious that copies thereof though desired were made very rare and not vouchsafed to the vulgar and meaner sort but kept tanquam Cereris mysteria So that almost a yeere after knowledge of it had did passe ere it happened to come to my poore handes and that was by the meanes of a right noble Counsellour who had also much adoc to procure a copie thereof for himselfe That which came to my handes doeth carry this title viz. A briefe Treatise of Oathes exacted by Ordinaries and Ecclesiasticall Iudges to answere generally to all such Articles or interrogatories as pleaseth them to propound and of their forced and constreyned oathes ex officio wherein is prooued that the same are vnlawfull I was glad of this opportunitie offered for I hoped to be instructed in some important point that I had not afore considered of and either to be aright perswaded whereof I am most desirous if I had mistaken or else be confirmed in my former opinion For there was reason I should so be if in a booke drawne with so great aduise by men of such rare skill and dexteritie and so well digested I should not finde demonstratiue arguments euen to presse mine assent against the course as I tooke it of the lawes both Ciuill and Ecclesiasticall against the practice of all the other states of Christendome and against apparent approbation thereof by Gods booke it selfe But when I had first cursorily runne that Treatise ouer I must confesse I was partly drawne into cogitation that I had not hitte vpon the right booke because such is either my dulnesse or preiudice for I doe assure you I will not be opiniatiue against that which I may discerne to be well grounded reason or sounde authoritie that I stand yet as resolutely perswaded as afore this piece of worke notwithstāding And albeit I wanted both fitte occasion and iudged it also for the reasons hereafter touched not worthe the while to say any thing to the vnconcludency and imperfections which I conceiued to bee in that Treatise yet was I neuerthelesse not long since moued by those who may commaunde me to take some time to answere it Being signified withall from them vnto
cruell mindes that they tyrannized in cruell maner that they forced men with rough and rigorous termes of disgrace reproch that they were mercilesse magistrates vsing sudden and raging committance that they promised in verbo sacerdotali if that be ought worth and he calleth them vnbridled Clergie men Pharisaicall Clergie men vniust lawlesse men with their bad practices and fond intentions mercilesse Ordinaries with their extraordinarie and lawlesse power their actions cruell and accursed dealings of Barbarous bloudy bishops murtherous mindes and intollerable iniquitie of bishops vsing a Barbarous course of inquisition He inueigheth also at large against their hypocrisie feined holinesse against their temporall possessions as the nurses of pride presumption and vaine pompe of the world Truly if this kinde of mislikers had that litle of temporalties which is still left how hūble they would be may iustly be doubted but I durst vndertake for them that they will vse no great pompe in hospitalitie nor in any thing els sauing in words Likewise against their ambition for he affirmeth that three Archb. inforced aboue the kings of the land against vsurping encroching vpon the kinges iurisdiction by Popish prelates to bring causes to their costly and lingering consistories against bringing in by them of forrein decrees corrupt canons and ceremonies of the accursed See of Rome against their claiming of exemption from taxes imposed by any other whomsoeuer then by the Popes authority and against certeine clergie men that in former times opposed themselues with great obstinacie against the paiment of a subsidie as if lay men had not done rebelliously as much as these did obstinately Against haughtie Hugh bishop of Lincolne who hee saith as a lusty champion of that irregular confederacy drew out his woodden dagger of excommunication against the kinges Iudges against a bishop of Winchester who was outlawed for a wilfull murther and a while refused the iudgement of the kings law against the Popes collectour who conuented the vicar of Saltash afore himselfe for breach of an othe giuen for strength of a bond against the Hospitallers and Templers who drew the kings subiects into suite before the conseruatour of their priuileges And against the proud prelate cardinall Woolseys court legatine and both his and Nixe the blinde bishop of Norwich his falling into praemunire for encroching vpon the kings iurisdiction Adding also a slie surmise of some other things in the times of Poperie to haue bene vsed which he doth but vainely imagine to be now practised by Commissioners Ecclesiasticall So that by this tricke of cunning conueyance he would induce and draw on his affectionate readers to beleeue the same to be now in all bishops present which was blame woorthie in any of their predecessours For his fauourers may not iudge that such a man as he would wander so farre wide as he doth from his purpose belike if these now do but any one action though neuer so iustifiable which the Papists haue done in times past they shall carry all the cōtumelies which they in any other respects haue either worthely or vnworthely deserued Whether this be a direct Christian course euery one that is in any place of iustice shall most sincerely discerne which will but consider with himselfe how vnequall he would iudge it to bee to haue his owne honestie discretion loialtie and religion measured and esteemed of according to the actions of the worst men that euer afore occupied the same place that he now doeth Vnto the third point which is reuiling of proceedings Ecclesiasticall in this behalfe all such speeches of his as these following doe appertaine of the whole Canon lawe indistinctlie and generally he speaketh thus that they be lawes and ordinances contumelious against God iniurious to Magistrates and especially established to maintaine Antichristian tyrannie Of an Oath of purgation or an oath ministred to answere in some cases vnto Articles and interrogatories criminall he saieth It is against law and reason an intollerable error and disorder a fowle and great abuse hard and vniust dealing vndiscreete vniust and vnlawfull forcing offensiue proceeding vsurped officious power and licentious pleasure contrarie to all due course of Iustice a violent course of iniurious inquisition examination and of wrested oaths a lawlesse proceeding which the Iustice of the land detesteth that they be vniust oaths and full of iniquitie strange oaths strong purgations not healthfull but hurtful poisoning purgations giuen for preseruatiues Catholique oaths a vicious and lawlesse inquisition and lastly a prophane and more then heathenish Inquisition The fourth point concerneth his vntrue and slanderous accusations of their proceedings who be Iudges Ecclesiastical as where he saieth that such generall oaths viz. as afore hath bene touched when I spake of the issue mistaken are exacted none accusation suite lawfull information presentment or inditement iudiciallie preceding that the Ecclesiasticall Commissioners terme themselues high and supreme Commissioners that it is exacted by euery ecclesiasticall Iudge to satisfie his iealous suspicion of any crime to appose by othe and compell men to their purgation or vpon euery bare surmise and vncertaine rumour that by the like reason vnto the practise of this othe there should bee erected a court of Inquisition more then Spanish to sift and ransacke by othe most secret thoughts That the Interrogatories vsed by Ecclesiasticall Iudges are not certaine but doe foolishly wander at the doubtfull will of a slie and subtill apposer that hauing snared the sillie subiect they doe either against lawe enforce him to accuse himselfe of his most secrete thoughts or contrarie to Christian charitie yea humanitie constraine him to answere against his naturall parents c. And that in defence of these abuses diuers euen of the learned sorte doe great violence to the Statute 1. Eliz. cap. 1. wresting the same to a wrong sense all which are verie calumnious accusations The fifth and last point of his lauish and loose speeches concerneth the impieties dangers and penalties wherewith he chargeth all that haue delt in any such Ecclesiastical cause As first that it is a great and prophane abuse of the holie name and maiestie of God that Gods sacred institution is thereby greatlie peruerted that it is hurtful to the Church and common weale that it is a great indignitie to the Crowne that they vsurpe conisance of pleas that they doe no lesse-then Thorpe sometime chiefe Iustice did who as much as in him lay broke the oath which the king is bound to keepe towardes the people that they are violaters of the king and iniurious dealers against his Regalitie Crowne and kingdome nay rather laie violent handes on him impugne his royall throne and scepter contrarie to the policie Iustice lawes customes and freedomes of this kingdome yea contrarie to the lawe of God it selfe that hereby they impugne the royall prerogatiues vnited to the Crowne with the breach of their owne oaths especiallie if they haue taken the oath for the maintenance of the supremacie royall
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
with doe not stand against it and such for the most part are Institutions probate of Wils and committing of administrations visitations Certificats of Bishops into the Q. Courts ordeining of Reall compositions in matters ecclesiasticall c. But something must here be said touching certificats of Bishops because none so fit a place hereafter doth fal out for this matter A little Treatise set out in the time of King Henry the eight and printed by Berthelet cum priuilegio prouing that by the lawes of this Realme the B. of Rome had not ne ought euer to haue had any supremacie here doeth 1 Cap. 1. thus write of these certificates If saith he Excommunication Bastardy Bigamie Deposition or Deraignement of a religious person or Diuorce be certified by a Bishop of this Realme it is admitted in the Kings Courtes but the Popes certificate is not admitted And as certificates of Bishops be in these cases admitted at the common lawe so haue sundry statutes since authorised their Certificates duely made into the Queenes Courtes in certaine other cases Neuerthelesse I finde two cases in the said Treatise where the Certificate of a mans excommunication from a Bishop shall not disable the partie excommunicated from his action as regularly excommunication doth when it is duely certified For first 2 Ibidem ca 4. if a Bishop be a partie to a suite and doe excommunicate his aduersarie such excommunication though it be certified doeth not disable his aduersary in his action Secondly 3 Ibidem where an action of debt was brought by an executour and an excommunication vnder a Bishops seale was pleaded against such executour this was adiudged no good plea because the executour was not to recouer any thing to his owne vse and for this there is alledged 14. and 21. Hen. 6. But if this were the onely ground and reason of such iudgement then where this reason is not found true in facte as it may often happen if the goodes and chattels be great the debtes and legacies small and where the executour hath clausulam de residuis by the will viz. all the remnant of the goodes and chattels bequeathed to him it woulde seeme to me vnder correction that in such a different case the lawe also should be otherwise because much commeth to the executours owne vse in particular This certificate of excōmunication by Bishops of all the others is most in vse and would be of more vse to the great cōmoditie of her Maiestie especially vpon the statute de excom capiendo and to the terrour of sundry malefactors were it not for the chargeablenes of that course vnto Ordinaries whom the tenth man that is certified doeth not satisfie againe and for the manifolde abuses about the execution of that writte committed by vnder officers and were it not that iura libertates the lawes or rightes and liberties of holy Church graunted and confirmed by the great Charter are not so inuiolably in these dayes mainteined as was meant by 1 15. Ed. 3. ca. 3. those actes of Parliament which doe exacte othes for obseruation and defence of them It is a libertie peculiar to this Church of England aboue all the Realmes in Christendome that I reade of that if a man stande wilfully fourtie dayes together excommunicate and be accordingly 2 Nota interlin pag. Regist. 65. b. certified by the Bishop into the Chauncery that then he is to be committed to prison by vertue of a writ directed to the Sherife Notwithstanding that in one precedent in the Register of this writ it 3 Regist. in breu original pag. 68. a. is said quòd huiusmodi breue nostrum de gratia nostra procedat For a note in the same booke vpon the same worde vsed in another writte doth teache vs that such clause is but vsed pro honore regio etiamsiad id de iure teneatur And it appeareth by sundrie olde precedents of writtes there that the graunting of this writ is by lawe required as where in a writ de excommunicato capiendo 4 Reg. in br orig pag. 65. it is said quòd potestas regia sacrosanctae ecclesiae in suis querelis deesse non debet And in sundry other writtes of that kinde it is 5 Ibid. pag. 66. a. b. 68. a. 69. b. 65. b. affirmed to bee secundum consuetudinem Angliae which is the Common lawe of this Realme And therefore in other precedents of the same writte the King saith 6 Ibid. pag. 69. a. thus Nolumus quod libertas ecclesiastica per nos vel ministros nostros quoscumque aliqualiter violetur And againe 7 Ibidem Iura libertates ecclesiasticas illaesa volentes in omnibus obseruari In these Certificates the Bishops and others hauing in some cases authoritie to certifie as the Chauncellour of Oxford the Custos Spiritualitatis of a vacant See and the Bishops Officiall and vicar generall ipso in remotis agente that they make none errour must remember to obserue these three things First that it be 8 Noua nat breu pag. 64. f. expressed therein that the partie against whom they doe certifie is excommunicated maiori excommunicatione because for the lesser excommunication as happely for companying with an excommunicate person a man shal not be imprisoned Secondly that 9 Ibidem it be certified that he was by name and particularly so excommunicated and not in grosse in companie of a multitude as was often done in elder times or indefinitely and in generalitie as when the BB. excommunicated all whosoeuer should violate any part of the great charter For that excommunication saith Fitzherbert in that place must growe vpon a speciall suite against a man either ex officio or by a partie whereupon a Significauit may be grounded Thirdly 1 Reg. in bre orig pag 69. b. notainterlin pag. 65. b. if any inferiour officer vnder the Bishop or his Archdeacon did excommunicate the partie certified yet must the Bishops Certificate runne that it was done nostra autoritate ordinaria But that the expressing in the certificate of a particular cause of the excommunication is at the Common lawe of necessitie required I cannot gather out of any place of the Register or of Fitzherberts Natura Breuium It is true that when the proceeding is vpon any of the tenne crimes mentioned 2 5. Eliz. ca. 23. in the statute made for that purpose the particular originall cause must be expressed in the certificate Neuerthelesse when the proceeding is vpon any other crime ef ecclesiastical conisance orin matters testamentary matrimonial or for tithes c. whether moued of office or at the instance of the partie therethe Common lawe as it was afore is reteined Nowe I finde precedents of these writtes in the Register wherein no particular originall cause but onely generall be expressed which as in other certificates of Bishops as touching bastardy c. the Court beleeueth without further trauerse or examination namely
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
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
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
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
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
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
ecclesiasticall whatsoeuer but either testamentarte or matrimoniall are voyd of all ground of law nay are contrary to Statute lawe to Common lawe to practise for time immemoriall and also vnto reason in some sort CHAP. XIII That iudgement of heresie still remaineth at the Common law in Iudges ecclesiasticall and that the Prouiso touching heresie in the Statute 1. Eliz. cap. 1. is onely spoken of ecclesiastical Commissioners thereby authorized THe two other opinions remaining that respect matters handled by Ecclesiasticall iurisdiction and come next to be treated of for the affinitie of them and because they both depend vpon one and the selfe same grounds I purpose brieflie to handle together viz. whether the iudgement of Heresie nowe lieth rather in the Common lawe then Ecclesiasticall and whether nothing may at this day be adiudged heresie but according to the statute primo of her Maiesties 1 1. Eliz. cap. 1. reigne For in the true vnderstanding of that statute the decision of these two opinions will wholie rest It seemeth by the latter the author of them thinketh that before the statute 2. H. 4. Ordinaries at the Common law might not by their iurisdiction Ecclesiastical proceed to the condemnation of an heretike and therefore seeing all former statutes made against heretikes stand now repealed he gathereth that no heretike may be delt with but according to the said statute made in the first yeere of her Maiesties reigne This opinion it may be he gathered out 2 Fitzh in noua nat br fol. 269. D of Fitzherbert his Noua natura breuium yet I thinke rather it was his owne conceit both because he doeth not alleage Fitzherbert for it and for that Fitzh leaueth euen at the Common lawe authoritie in the whole Conuocation of a Prouince to condemne an heretike albeit he there also hold that at the Common lawe before such statute a Bishop in his dioecesse could not so condemne But I haue shewed in the twelfth chapter hereof by very great and good opinion the law in this point to be mistaken For proofe that it is so I also touched it something in the 8. chapter For in the Preamble of the statute it is thus conteined The 3 2. H. 4. cap. 15. dioecessans of the realme then complained that they could not by their iurisdiction spirituall without aide of the roiall Maiestie what not at all Nay but not sufficiently correct nor restraine the malice of heretikes Why because they wanted authoritie at all to deale with them No but because the heretikes goe from dioecesse to dioecesse and will not appeare before the dioecessans but contemne the keies of the Church and censures of the same So that had it not bene for their fugitiuenesse their refusing to appeare and contempt of the keies the ordinarie dioecessans had Iurisdiction spiritual to correct and restraine them In which respect and for better assistance of their former iurisdiction it was then first prouided that heretikes should be attached and imprisoned Other authorities out of Statutes I there in the eight Chapter alleaged also to this purpose The wordes of the Statute made primo of her 4 1. Eliz. cap. 1. Maiestie from which this second opinion is gathered doe make the matter cleere that nothing thereby is meant but that Commissioners for causes ecclesiasticall according to that Act termed by the common people the high Commission shal not haue authoritie to adiudge any matter or cause to be heresie but onely such as hath bene so adiudged by the authoritie of the Canonicall Scriptures or by the first foure generall Councels or by any other generall Councell wherein the same was declared Heresie by the expresse and playne wordes of the Canonicall Scriptures So that the iurisdiction of Ordinaries and of the Conuocation still remaineth as it did afore at the Common lawe But I muse greatly what colour or pretence he could haue to gather the first of these two opinions out of the aforesayd words for doeth he or can he thinke that the ordering determining or adiudging of a matter to be Heresie by the Commissioners ecclesiasticall there spoken of is a iudgement at or according to the course of the Common lawe as the Common law is taken in vsuall signification Or shall it be imagined that wheresoeuer any matter by occasion comes in to bee mentioned in a statute as for 1 13. Eliz. c. 12. example naming matters of faith mentioning errors in doctrine or the doctrine of the Sacraments that the determination of all such points and what and how many speciall matters are conteined vnder those generall heads whatsoeuer shall by reason of such incident mentioning of them in a statute be put ouer to the iudgement of a Iurie or to the determination of Temporall Iudges What other may conceiue I know not for my part I must take it till I be better informed to be so simple a conceit as is worthie rather to be dismissed with laughter then to be confuted with further reason CHAP. XIIII That by the Statute her Maiestie may commit authoritie and naturall borne subiects may take and vse in Ecclesiasticall causes attachments imprisonments and fines THe next opinion that comes to be treated on is Whether the Queens Maiestie by her letters patents vnder the great seale of England may authorise the vse of any other processe in matters ecclesiasticall then by citation as by letters missiue attachment or such like whereunto I adde the other two of the same author depending vpō the same string whether her highnesse may so authorise the vse in matters ecclesiastical of any other coërtion or punishmēt as by fine or imprisonment These opinions if they be not well grounded vpon lawe seeme to me to touch her Maiesties prerogatiue roiall and supreme gouernment that was yeelded vnto her highnesse by statute very deeplie whosoeuer be Author of them And if this authoritie that is hereby impugned be in trueth a preheminence vnited and annexed to the Imperiallcrowne of this realme by Parliament and if he be a man of any qualitie so that hee hath taken the oath of Obedience let him vse good aduisement how it may stand with such his oath and allegeance They are pretended both by the Treatiser and the Note-gatherer to be grounded vpon 1 Magna charta cap. 39. these words of Magna charta viz. No free man shall be taken or imprisoned or be disseised of his free hold or liberties or free customes or be outlawed or exiled or any otherwise destroyed nor we shal not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land Whereupon the Note-gatherer also doeth collect that none may be attached but such as be first endited But the end why this law was made and the time when it was made are needfull to be considered The ende was this that the Kings of this realme should not chalenge an infinite and an absolute power to themselues as some kings elsewhere did
Ecclesiasticall and for rounder proceeding and for more grieuous punishment at least in these dissolute times more feared then can or may by Ordinarie Iurisdiction be inflicted Therefore if by the general words of that Acte 1. Elizabeth both these proceedings whereof wee here speake and many other particularities of maner persons times places and other circumstances might not be warranted then the authoritie there giuen to her Maiestie were of none vse at all neither could it possibly be practised But I thinke this power here by these opinions impugned may be also prooued directly out of the words of the very Acte thus whatsoeuer by any Spirituall or Ecclesiasticall power or authoritie hath heretofore bene or may lawfully bee exercised or vsed for visitation c. or reformation c. of all maner errours c. and enormities whatsoeuer that is vnited to the Crowne and by that Acte may be committed ouer by her Maiestie But Attaching imprisoning and such like corporall coërtion by some Spirituall or Ecclesiasticall power or authoritie hath heretofore lawfuly bene exercised And therefore may be appointed by her Maiestie to be now exercised by the Commissioners Ecclesiasticall For proofe of the Minor I am to put you in minde what corporall punishments and chastisements the superiours of euery Regular person as of Monke Frier and Nunne might and did lawfully from time to time lay vpon them that were vnder their Ecclesiasticall obedience and yet euen after their professing they remained still the Kings subiects Likewise when the statutes against Heresies were in force these Attachings imprisonings and other corporall chastisements were then lawfully exercised and vsed by Ecclesiasticall power and authoritie Lastly 1 1. H. 7. ca. 4. Bishops and Ordinaries may lawfully at this day punish and chastise Priestes Clearkes and religious men within their Iurisdiction being conuicted of incontinencie by committing them to warde and prison there to abide for such time as shall be thought to their discretions cōuenient for the qualitie and quantitie of their trespasse So that we may conclude that if any such power haue bene vsed then her Maiestie may as it please her vse it still and appoint the same to be vsed by her Highnesse Commissioners howe and vpon whom she thinketh good The Treatisour himselfe testifieth that diuers euen of the learned sort do hold and affirme and that very confidently that the Acte and Commission thereupon doe giue full power and authoritie for any course soeuer for the gouernment in causes Ecclesiasticall that shall be mentioned in the letters Patents This he exemplifieth by sundry examples though holden by such learned men which neuerthelesse he accounteth contrary to Lawe whereof some fall in most fitte for this place because they are bent against the saide Commission and others for other places of this Apologie First he thinketh it very absurde and not warrantable that the Commissioners Ecclesiasticall shoulde commaunde Iustices of Peace to assist any for attaching and imprisoning of offenders till they giue bonde for appearance And saith this is against Lawe and Iustice. The onely reason he rendreth of this his assertion is for that Iustices of Peace bee Magistrates and Commissioners of Recorde authorised as well as the other Belike himselfe is some Iustice of peace Hoc vrit hominem qui imperare non parêre didicit And will he then vpon his learning deliuer That no Magistrate or Commissioner of Recorde may be commaunded by another though no lesse be warranted by his Commission Hereupon would follow that Iustices of Peace and Sherifs might not be commanded in any case by the Iudges of either Benche by the Exchequer by the Iustices of Assisse by the L. Treasourer by the L Chauncellour or L. Keeper nor yet by the whole Counsell boord He thinketh it also not iustifiable that any Magistrates should be commanded by the Ecclesiasticall Commissioners to assist in Attaching or to attache any vpon a warrant called Quorum nomina For reason of vnlawfulnesse hereof he alledgeth that no cause or matter is therein expressed or declared But this might be de facto omitted in any other warrant as well as in that and yet is it vntrue that in this kinde of warrant no cause is declared But admit it were otherwise what Lawe of the Realme is against it And if the like warrant shall come from the Lords of the Counsell to him or any other Iustice of the Peace to be ayding and assisting vnto some Messenger in attaching of certaine persons to be caried vp vnto them as Prisoners whom the saide Messenger shall name vnto them will hee refuse to intermeddle in the seruice as surmising the Lords to do therein against Lawe because they commaunde him being a Iustice of Recorde and for that they signifie not by their Warrant what the particular cause is where with they minde to charge such persons that are to be Attached But if in so doing their Lordships doe nothing contrary to Lawe howsoeuer he doe foolishly and vndutifully to refuse to giue his assistance why shall the Lawe anymore be against the Commissioners doing but the like and that by expresse Warrant of her Maiesties letters Patents Another reason why such Warrant should not be iustifiable he doth alledge because the names of such persons to be Attached be not set downe by the Commissioners but are referred ouer vnto others to set them downe Mine answere hereunto is First that the Warrant of Quorum nomina is very rarely vsed by the Commission and the rarer the better Secondly when it is vsed the names of the parties are set downe and allowed afore by the Commissioners and not by others for anything that I can learne Neuerthelesse there may be good and weightie occasions to omit this course as when such Warrant is directed to a man of qualitie and good credite that he may put in the names for this ende lest when one is serued he bewray all to the rest whose names be also in the same Warrant that they may conuey themselues out of the way Howsoeuer it be in this behalfe I thinke the Treatisour will be long in finding out how this should be reckoned to be contrary to the Lawes of this Realme Hitherto touching the challenges made to some particular points in the maner of exercising that Commissun But the Note-gatherer to cut off all these particular disputes alleadgeth that it may be thought the whole Commission is voyde in Lawe For that as he surmiseth it beareth date in Iuly but was signed in Nouember next after 1 18. H. 6. cap. primo contrary to a Statute What was this quarrell which is now picked against it worth the practise of abusing a Counsellours name to procure a copie thereof Well both the Preamble and body of the statute also doth cleare this cauill For by the Preamble it appeareth that the mischiefe to be remedied was for that by grauntes antedated long before the King graunted them other grauntees who in very trueth had the first
graunt and great seale set to it yet bearing date truely were expelled by colour of letters Patents bearing the elder date In the body of the Acte is conteined this particle Such which is of restraint viz. That the King willing to put out such slye deuises or imaginations did ordeine by Parliament that letters Patents should be dated the day of their deliuery into the Chauncery or else be voyde Now if this Statute were to be vnderstood of all letters Patents whatsoeuer where is the reason of that Lawe found in a Commission but ratio est animalegis cessante ratione cessat Lex Therefore this Statute can be stretched to none other letters Patents but Such as the mischiefe mentioned in the Preamble may happen into Yea if it were otherwise to be vnderstoode he must ere any will beleeue him bring more euident matter then this viz It is thought and It may bee thought Let him then goe seeke the Records in the Chauncery and see whether the date and the day of the deliuery of it doe not agree and so may hee haue more colour to wrest the statute when he doth not misreport the matter in facte as herein hee hath done CHAP. XV. That an Ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie IN the next opinion I minde to be very short it is this that by none ecclesiasticall authoritie a man may be depriued of his benefice which is his freeholde being not endited and no suite of partie offered against him Whereby we see he requireth both an enditement and a suite of some partie It seemeth his meaning is that a Minister cannot be depriued but by way of enditement at the Common law and that the Iudge of Office may not preferre such enditement but it must needs be at the sute of a partie I can not well coniecture whereupon he pretendeth to ground this opinion If vpon the 29 chapter of Magna Charta it is shewed in the chapter next precedent not to be vnderstood of Ecclesiasticall iurisdiction or of the practice thereof And moreouer that chapter in Magna Charta requireth no suite of partie to preferre the enditement so that it may be done by the Iudges of Office well enough But this conceit is very strange that Bishops shall not haue authoritie to depriue an Ecclesiasticall person from his benefice It is shewed in the chapter afore that by vsuall and allowed course of pleading to a Quare impedit the Ordinarie doeth claime as of common right institutionem destitutionem Clericorum in benefices within his iurisdiction And the olde rule was Cuius estinstituere eius est destituere But perhaps it will be said he meant that a Bishop might doe it but not of Office that is without a partie albeit he put a Copulatiue in stead of a Disiunctiue But if his meaning be such he meaneth more then is true And further what priuilege or benefite is this to the partie conuented to be prosecuted by a partie and therefore perhaps of malice and by subornation of proofs rather then by the ordinarie proceeding of office and duetie for whose sinceritie we may more probably presume and intend Moreouer what if one that hath a benefice will come vnto the Bishop and there stoutly defend Atheisme Apostasie or denying of Christ or any other heresie grosse blasphemy or idolatry may he not till some accuser be found or a partie to prosecute depriue such a person from his benefice ex Officio What if the beneficed person will confesse before the Ordinarie that he was neuer called to the Ministerie but hath vsurped it by colour of forged testimonials of Orders or that he hath committed Simonie Incest Adulterie or hath two wiues liuing at once or 1 13. Eliz. ca. 12. that he neuer subscribed nor read the Articles of religion or being once conuicted do againe defend some errour against such Articles may not the Bishop ex officio in all or in any of these cases depriue or declare his benefice void except some other will come and make himselfe a partie But that he may do it appeareth 2 1. Eliz. cap. 2. by the statute 1. of her Maiestie for there it is said he may enquire which is alwayes ex officio as shall be more plainly shewed in the second part and may punish by Depriuation c. as in like cases hath bene vsed by the Queenes ecclesiasticall lawes CHAP. XVI That after fortie dayes an excommunicate person may be otherwise punished then vpon the writ De excommunicato capiendo And that the said writ may and ought to be awarded vpon contempts rising on other originall causes ecclesiasticall then any of those ten crimes mentioned in the statute 5. Eliz. cap. 23. THe last opinions to be handled in this part be these viz. that an excommunicate person standing so aboue fortie dayes may in none other sort be punished then vpon the writ De excommunicato capiendo The other is that the said writ De excommunicato capiendo ought not at all to be awarded vpon contempts rising from any other originall causes then vpon some of the tenne crimes that be mentioned in the statute 5. Eliz. cap. 23. The first is easily impugned for he may be punished twentie pounds by moneth for absence from diuine prayer neither shall his excommunication excuse him for it is in his owne default Besides it is a great contempt in an ecclesiasticall cause and therefore punishable by the Ecclesiasticall commission vpon the expresse wordes vsed in that Act which doeth establish that Commission And this standeth with reason where there are great numbers of such wilfull persons or slacke execution by Vnder-shirifs and Bailifs of that writ as often falleth out besides the great charges in suing of it out For I dare auow that in sundrie dioecesses in the Realme the whole yeerely reuenues of the Bishops there would not reach to the iusticing of all such contemners being of the baser sort of persons by the course of this writ They might happely to the great charge of the shire keepe many of them in prison long enough yet they should neuer procure the fees backe againe that first whether for rich or poore must be defrayed for want of ability in the persons so excommunicated Lastly the law ecclesiasticall very reasonably grauely prouideth in this behalfe that if a 1 c. excommunicamus §. qui autem ex de haeretic man stand excommunicate aboue an whole yere he may be proceeded with for suspicion of heresy because the law presumeth that such a mā hath smal feeling of religion but rather contemneth it and nourisheth some damnable opinion against God and his Church And therefore such an excommunicate person may be punished by reason thereof otherwise then by that writ All the colour of reason that I find alleged against this course by the Treatiser is thus that on our behalfe it will be said this is a shorter way then the other
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
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
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
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
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
Nicephorus doe write in two places quoted also by the Note-gatherer as if they serued his purpose out of Antoninus his edict My father saith the edict did decree that this sort of men should not be troubled except they commit some crime against the Romane empire And therefore if any shall hereafter dare to trouble or impute crime vnto any Christian only for that he is a Christian let him that is so accused be acquited albeit he be found indeed to be a Christian. But let him that accused him be duely punished as he hath deserued Now because in fauor of the Christians these seuerall Emperours did command aswell that they should not be accused as Traian did that they should not be enquired after sought vp shall we therefore hereupon gather that neither accusation nor inquisition might be vsed by the law of the Romanes against any offenders or that these ancient fathers which report theÌ„ misliked of both those proceedings and so vpon the matter condemned all proceeding punishing of any offenders whatsoeuer But if this be most absurdly gathered then consequently are these his allegations friuolously and absurdly alleged to proue either an absolute or simple prohibition or any mislike at all of proceeding by enquirie and of Office against offenders In Dion Cassius whom to like end he quoteth the life of the Emperor Nerua is not found In Dion Nicaeus abridged by Xiphilinus 3 Xiph. in Neâ—…ua these words be read in the life of Nerua which it may be he meant 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The emperour would not permit the rest to accuse certeine persons either of impiety or of Iewish profession by which terme the Christian religion is thought to be meant What Because he forbad certeine to be acused of those crimes doth it hereupon follow that enquirie of Office which is a seuerall course from accusation was wholly mislliked This might therefore with some more colour considering that which followeth haue bene brought against the course of proceeding by accusation and yet impertinenly enough also For in the same place 4 Ibidem it is recorded thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 No small tumult was stirred vp hereupon for that euery one did accuse whom he listed There remaineth yet one quotation to be spoken of that is to be referred to this place which he bringeth out of Eusebius 5 Euseb. li. 4. c. 9. Niceph. li. 3. e. 37. and Nicephorus where Adrian the Emperor thus writeth vnto Minutius Fundanus If the men of that prouince in iustification of their request can bring and affirme any thing truely and plainly against the Christians whereby before the tribunall seat by due course of iudgement they may be conuicted then let them onely bend themselues to that purpose But I can by no meanes endure it that they should be put to death onely vpon the petitions and out-cries of the multitude But this hath no kinde of shew either against Accusation or Enquirie of Office For it condemneth only the mercilesse and cruell iniustice of some Deputies who to gratifie the clamorous common people were contented to execute the poore Christians without any proofs To this place perteine also the Note-gatherers allegations 1 c. qualiter quando el. 2. de accusat c. ad abolendam c. excommunicamus § Qui autem de haereticis c. cum contumacia de haereticis in 6. out of the Canon law yet they are so far from impugning proceeding by way of Enquirie that they do very especially establish it Which though he be not ignorant of and being so plaine cannot dissemble neuerthelesse he doth summe them withall affirmeth though vntruly that the bishops proceedings are to the contrarie whereas all ecclesiasticall Iudges will yeeld vnto him that those Canons both are and ought to be obserued so far as the statutes of the Realme doth warrant them sauing in such points as himselfe hath misreported them For first where a Bishop as was then for the most part vsed but now by long prescription worne out which prescription 2 Panor d. c. Qualiter is also of validitie and force did in all weighty matters perscrutari diligentiùs causam coram ecclesiae Senioribus that is examined theÌ„ before his Chapter or so many of them as would be present this he peruerteth thus causa perscrutanda ab ecclesiae Senioribus as if from the Canon law he could hammer vs out the Lay elderships that be dreamed of and could make them in euery parish the Iudges of that which was onely done by Bishops corà m in the presence of the Praebendaries of the Cathedrall Church but not by them Secondly whereas only in proceeding against a Prelate it is required that the excesse be grieuous this he doth make generall and indifferent to all enquiries against any whomsoeuer Thirdly he hath forged of his owne head besides the text there that to the entent of degradation a Iudge ecclesiasticall may not proceed by way of Inquisition but by accusation onely And for specification of such contrarieties as he surmiseth to be in bishops proceedings against those alleged Canons he first sayth that their oath is not abiurationis or purgationis It is true that besides these two some oathes which they minister are veritatis dicendae vpon the crime enquired of Which oath one of his owne Canons by him quoted might haue taught him if he had read it ouer viz. 1 c. accusatus §. licet verò de haeret in 6. Coram Inquisitoribus iurantes tam de se quà m de alijs super facto haeresis dicere veritatem If then in heresie much more in other crimes And in truth there is not one word in any of those Canons tending to restreine al othes vnto abiuration purgation alone as to any that list peruse them wil be manifest The next contrarietie vnto them he assigneth 2 c. accusatus de haeret in 6. Clem. 1. de haereticis for that Ordinaries and Commissioners ecclesiasticall deale by way of Enquiry in other matters then heresie Heerein hee childishly mistaketh his booke and yet will he be dealing in matters wherein he seemeth to me to haue no insight at all howsoeuer perhaps he do flatter himselfe otherwise For no Canons doe forbid Ordinaries to deale in any matters criminall being of ecclesiasticall conisance nor any others in causes duely committed vnto them whether they deale by the one course of proceeding or by the other But Inquisitours for heresie hauing that matter onely delegated vnto them by their Commission are in deed there forbidden that by colour thereof they should not reach out their authoritie vnto matters no way touching the crime of heresie So that the prohibition there is for matters that are out of their Commission and not for any maner of proceeding For they may not deale in matters that are not committed to them any more vpon Accusation then they may do by way of Enquirie The third contrariety surmised by him to be
it vpon question of her incontinencie There was none Accuser that tooke vpon him to proue it neither was any Fame risen thereof but inuidia conflata ipsi she was depraued by light persons by hereticks and infamous men and that by wicked practises through briberie and intemperancie yea by some such as had bene afore put out of her house for actions farre vnseeming that which they outwardly professed But it was alledged in iustification of the saide Bishops proceeding with her that a rumour had bene spread that the saide Indicia had borne a childe which she had made away And that this rumour was so spread by certaine women though but base that ranne vnto the Monasterie and there first bruited it from whence it came abroade among the people and so to the eares of one Maximus Howbeit these which were said to be the first authors of that rumour were conueyed out of the way Now Syagrius the Bishop there hearing of such a rumour and thereupon proceeding against the saide Indicia did decree that she should be inspected by Midwiues for the clearing and proofe of her Virginitie Which as he alledged he did the rather because certaine taking scandal hereat did affirme that if she should be tolerated without such inspection they would not communicate any more with their Bishop But S. Ambrose there taxeth them thus Quales illi qui volunt praescribere Sacerdotibus quid sequi debeamus What kinde of persons be these that will presume to prescribe vnto vs Bishops what we haue to doe And albeit the said Maximus was in very trueth the Relatour 1 Sermone suo accusationem detulit aures tuas impleuit clamore testes auditionis deduxit cognitionem poposcit thereof to the Bishop yet was there none Accuser in proper termes of Lawe so to be called nor any that did iudicially denounce her thereof Quam nullus argueret nullus deferret Now because a woman of her qualitie in so disorderly sort vpon no better grounds of inducement was adiudged to so vncomely a course of clearing her Virginitie and of so great vncertaintie besides the danger that the Midwiues might be suborned Therefore S. Ambrose being Archbishop of Millaine in whose Prouince Verona stoode did auocate this cause from the Bishop vnto his owne audience He therefore hearing it Iudicially in the presence of his brethren and fellowe Bishops to whom he imparted it besides the former defects did finde vpon examining of the matter that Renatus and Leontius two witnesses produced vpon the Fame which it was entended they had heard though they were suborned yet did they materially varie one from the other in the ground of the cause It fell out likewise by proofe that they two had sent out of the way Mercurius and Lea two other supposed witnesses and but lewde persons Also that another pretended witnesse called Theudule was runne away knowing that it would be obiected in way of exception against her how she had lien at the saide Renatus his beds feete Besides another woman had also confessed that the said Renatus did commit fornication with her Now because hereupon no sinister or bad fame against Indicia was in Lawe sufficiently proued but rather to the contrary a good fame was proued by one Paterna and by the nurse of Indicia therefore S. Ambrose absolued and dismissed her from such inspection restoring her to her former good name but cōdemning Maximus and excommunicating Renatus and Leontius for their indirect vniust and calumnious dealings Yet did he not as he saith simply cōdemne that kinde of purgation and proofe of Virginitie by inspection For he saith thus Quid ergo Negamus inspiciendas virgines interim quòd nusquam legerim Non adstruo nec verum arbitror In which Processe many pointes may be noted to auoche the Iurisdiction of Archbishops and Bishops and sundrie their proceedings Ecclesiasticall at this day but I finde no footesteps or colour of any mislike If these wordes of his be alledged to proue that no Criminall Processe should be made without an Accuser properly so called viz. It is requisite that the witnesses be voyd of partialitie yet so that there first appeare an Accusour this very Epistle will shewe that such Accusour though then they were more vsuall is not necessarily alwayes to be required For he findeth fault that she was conuented although there would appeare neque author criminationis neque accusator neque professor delationis Maximus in trueth being vnder-hand both a Relatour and a kinde of Prosecutour So that no Fame being thereof if any one would but haue shewed himselfe as a Relatour or a Denounceour it might haue sufficed though he were not a very Accusour Qui delationis se nexu obligabat as S. Ambrose there speaketh of the Inscription required by Lawe adpoenam Talionis for him which should faile in proofe And in trueth if Enquire of office were not lawfull and none Accusour were to be receiued but as Lawe and olde Canons appoint assuredly there would be fewe or no Crimes at all in any Court euer prosecuted So great is the trouble and danger Besides if the want of an Accusour had bene sufficient to haue reuersed Syagrius his sentence and to haue quashed the whole Processe then what needed S. Ambrose so carefully to haue examined her Fame good or bad by so many witnesses But that he knew if an euill Fame had bene proued the Iudge might by Lawe haue proceeded as he did without any either Accusour or Denunceour So that we see he thought it meete and by Lawe required at his handes for her clearing and absoluing to make Enquirie of the Fame albeit eche of those were wanting And therefore he did of meere Office by way of Enquirie proceede to the final sentencing of that cause In like sort was that his condemnation of Maximus Renatus and Leontius done of his meere Office without somuch as prosecution by any other man Furthermore to shewe that hee required not of necessitie an Accusour in euery Criminall cause he maketh there a plaine seuerance betweene the Ciuill Lawes as in that behalfe they were then most practised from the Lawes Ecclesiasticall euen at that time For saith he Si leges publicas interrogemus accusatorem exigunt Si Ecclesiae duobus in quit aut tribus testibus stat omne verbum Then where witnesses might bee had to prooue the matter there was not in an Ecclesiasticall cause no not in Saint Ambroses time any Accusour necessarilie required besides the Iudges Office In the 136. Epistle of S. Augustine by him also quoted there is nothing sounding that way Hee there onely sheweth that Bonifacius a Priest was not detected before him of any Crime and that he had not commaunded his name to be razed out of the number of Priests In the next Epistle is contained that the saide Bonifacius being of S. Augustines householde and perceiuing the lewde inclination of another in that house would neither agree vnto it nor yet conceile it
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
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
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
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
saide affirmatiō in that he confesseth Wolsey did grant benefices by way of Prouision for thereby he was within the very letter of the Statutes of Prouision and Praemunire and so consequently he preiudiced also the Kings regalitie and crowne and not Ecclesiasticall courts alone Yea and what is all this to the imposing of an oathe that we treate of seeing if it were true that euery practise of Antichristian decrees and Popish Canons were a Praemunire yet it may be truely affirmed that the very temporall Lawes of this Realme do allow vnto Ecclesiasticall Courts to minister such oathes as shall be prooued in the next chapter therefore not to be said to be practised by vertue of Canons only And also for that no Canons that are agreeing to those conditions and qualities which are required by the 1 25. H. 8. 27. H. 8. Statute of Submission of the Cleargie are Antichristian or Popish or foreine Lawes but are the Queenes Ecclesiasticall Lawes and Lawes of this Realme no lesse then such as were originally made within the land as is afore by occasion 2 Vide 1. part ca. 14. pag. 102. 103. shewed and prooued Insomuch as the Note-gatherer himselfe calleth them the ecclesiasticall Lawes of England Hee also telleth vs as to this purpose of a complaint by the Commons made 21. H. 8. vnto the said King touching grieuances by the Clergie offered but telleth not that it was this matter nor how iust or vniust the complaint was found to be nor yet of any remedy therein giuen He discourseth also of the particulars of an other complaint likewise made 23. H. 8. but hee doth not assigne oathes tendered in some criminall matter to be any part of that complaint The Note-gatherer saith the L. Audley then chosen Speaker did exhibite it and that it was for proceeding ex officio albeit the Treatisour do tell vs of many points besides which belike if he had pēned that complaint it should haue conteined This I haue answered in the second part of this Apologie Another reason by way of collection the Treatisor maketh at large thus viz. What if a Iustice by colour of his office should offer this generall othe to answer to all he will aske commit the partie refusing coulde any man iustifie his doing but rather crie out against him as a subuerter c Well howe strange a course soeuer hee maketh this and therefore so cryeth out neuerthelesse it may bee that little better hath beene vsed by some Iustices of Peace But I neither accuse any thereof nor wil excuse either them or any others which shal so deale either from the Treatisors or from any other mans outcries so that in this point we both agree But in one part of his Treatise he gathereth also thus against practising of Canons in ministring oath No Canons 1 25. H. 8. ca. 19. may be practised but such as be not contrary nor repugnant to the Prerogatiue royall nor to the lawes and Customes of this Realme but this Canon Law is not any part or portion of such lawes Whereupon it seemeth he would haue his Reader to conclude that no Canon at al may be practised First it is vntrue if you take the Canon Law indefinitely for all Canons absolutely and indistinctly to say that it is no portion of the Lawes and Customes of this Realme as hath bin afore shewed yea there was here an vse and custome thereof long afore it was accounted any parte of the Lawe of the Realme Secondly there be quatuor termini in this reason Lastly it consisteth all of Negatiues In both which respects it is vtterly inconcludent So that by all hitherto deliuered wee may perceiue that albeit there bee some diuersitie in sundrie the courses of proceeding betwixt the Ecclesiasticall and the temporall Lawes yet there is found not so much as any great diuersitie in the very point which is of ministring oathes in certaine criminall causes and much lesse is there any contrarietie or repugnancie in that behalfe Besides there is not so great diuersitie betwixt any part of the law Ecclesiasticall being now of force within this Realme and the Lawes temporall as is betwixt sundrie points of the customs of London the customes of the Stannerie the customes of Kent the customes of Halifax both in trying and executing offendors and by dealing by vertue of the Queenes Instructions at the Counsell of the Marches of Wales on the one side and betwixt sundry parts of the Common lawe on the other side as might but for auoiding of tediousnes by sundry particulars be exēplified yet none of those which practise thē are by reason of any such notable diuersity only thus threatned with danger of Praemunire In the last ranke of matters brought by him to this purpose I doe marshall the Treatisours shifting answeres vnto such obiections as himselfe imagineth will be or may be made by those who defend this kinde of oathe whereof we are now treating First to the obiection made of the like oathes ministred to defendants in causes criminall both in the Courts of Starre-chamber and Chancerie he answereth that if it were graunted that the like oathes be there vsed yet would it not followe that the same might be practised in courts Ecclesiasticall and why would it not followe vnlesse sayth he the like allowance thereto and consent of the whole Realme might be prooued Belike if it were not most euident he would also denie the like oaths to be vsed in those two courts The whole Realme is sayde to allowe and to consent vnto that which is enacted by Parliament Shall the same course then vsed also in the Chancerie that hath none Acte of Parliament to establish it be vnlawfull in his iudgement for hee cannot say that the whole Realme either indeede or representatiuely hath giuen consent hereunto albeit the prescription thereof be most ancient because al euery one in particular haue not had from time to time iudiciall matters there But yet since this prescription is good and will serue to mainteine that course there why shall it not also alike serue for Ecclesiasticall courts which haue reteined the practise of such oath beyond all memorie of man and beyond most Records nowe extant Neuerthelesse there be also Acts of Parliament to warrant the practise of these oathes in courts Ecclesiasticall vnlesse they could be prooued to be either contrary or repugnant to the Prerogatiue Royall or else to the Statutes lawes and customes of this Realme Neither yet are the examples of Starre-chamber and Chancerie to any other ende by vs alleaged but thereby onely to shewe that such defendants oathes inferring confession of some his owne crimes is neither to be holden vniust vnlawfull vnequall barbarous cruell nor yet Antichristian or Popish as they be challenged For a second answere hereunto he sayth that examples and Precedents be weake where an expresse lawe or certaine policie is to the contrary as if he should say though these two high
Temporall courts doe practise it yet is it contrary to an expresse lawe or certaine policie for else he sayth iust nothing to the purpose and yet he doth no lesse dutifully say it then he prooues it substantially euen out of the Ciuill lawe viz. ius non ex regula sumatur sed ex iure quod est regula fiat I pray yee who euer heard afore that regula here signifieth an example or a Precedent The true vnderstanding therefore of that part of Ciuill lawe is this when many cases runne one way so that for roundnes or better memories sake they haue bene by Iudicious men contriued into a summarie rule then whatsoeuer might be comprised vnder the generalitie of the words of such rule was not straight way to be reckoned for lawe because it is not possible in this great weaknesse of mans wit so to comprehend the lawe being to guide such infinite varietie of mens particular externall actions in a briefe rule as that it shall not haue sundry exceptions and limitations and therefore rarò est quin regula fallat And againe in this place non ex regula ius sumitur c. that is you can not conclude it necessarily to be lawe because you may apply vnto it some rule of lawe but because the lawe runneth accordingly in sundry cases you may therefore conueniently drawe them into a short rule which some doe call maximes in lawe yet abusiuely Thirdly he sayth to this obiection that by better Logicke we might conclude thus viz. because in these two courts answeres bee put in vpon oath therefore the same may be vsed in the Kings Bench and common Pleas which neuerthelesse were an absurde conclusion No Sir it is so farre from better that it is not any Logicke at all so to conclude except you adde more vnto it for if you could truely adde that the Kings Bench and common Pleas had time out of minde vsed that course for answeres to Billes in crimes not capital nor tending to mutilation of limme which may be verified of courts Ecclesiasticall besides the direction of that lawe by which they proceede then with very good Logicke might you conclude thus the same course hath time out of minde bene vsed in all those courts and it is not vniust nor cruell c. in the one and therefore not in the other for the diuersitie of places where they sit nor diuersitie of persons which doe sit as Iudges nor any other like circumstance cannot make a matter iust and equall if in his owne nature and simply it were vniust cruell or barbarous as this is often by him and others challenged to be Fourthly he sayth that in the Starre-chamber there is a bill of complaint formerly exhibited and so be there Articles in an Ecclesiasticall court Fiftly that there is also a knowen accuser Not alwayes an accuser for the office or common Interest of the Prince whose the court is oftentimes is there excited stirred vp by her Maiesties Atturney or Solicitour without any danger of them to be punished or condemned in charges though the matter should not fall out fully against the defendants euen as it is in courtes Ecclesiasticall when they proceede of Office albeit these more often proceede hauing a priuate Prosecutour especially in the court of Commission then they doe ex mero officio Sixtly that in the Starre-chamber they haue a copie of the complaint yet he himselfe doeth limit it thus viz. so it be not ore tenus Well then vpon some good occasion it is none vniustice though the defendant want a copie altogether of the matter obiected but in all ordinarie courts and in the Commission Ecclesiasticall at the furthest when they haue answered the articles they haue copies of them Seuenthly in the Starre-chamber the defendants are allowed counsell in answering the Bill and yet when this is ore tenus he knoweth they cannot haue counsell neither are they there alowed any counsell for answering to Interrogatories nor yet to haue a copy of them til they haue fully answered to them which Interrogatories vpon crimes in that court haue a correspondence vnto articles criminall preferred in Ecclesiasticall courts Lastly sayth he in the Starre-chamber if the Interrogatories be impertinent the defendant without offence may refuse to answere them and so may he refuse also to answere such articles in an Ecclesiasticall court But who shall then iudge whether they be impertinent or not shall the partie himselfe no verily but as it is in the Starre-chamber the court it selfe or else some of them that are skilfull in lawe being thereunto required by the rest Whereupon what great difference there is in any circumstance much lesse in matter of substance betwixt the proceedings in these courtes may easily be considered howsoeuer he doe largely conclude thereupon after his olde maner that there be mightie and great dissimilitudes For in his conclusion hereof he encludeth also other differences more bitterly and not spoken of at all in any his premisses whereupon he inferreth it albeit that such his additions be also very vntrue as that Ecclesiasticall courts giue oathes without all course of iudgement that the oathes there are made suddenly without all discretion vpon vncertaine demaunds that their oathes doe foolishly wander at the doubtfull will of a subtil and slye opposer and that the oathe in Ecclesiasticall courtes constraineth the reuealing of wordes deedes and thoughts though neuer offensiue to any Belike then where others be offended he mindes and will not sticke to allowe vnto those courts the ministring euen of these generall oathes which he so often besides the purpose harpeth vpon Let vs then lay aside these imputations being vtterly vntrue which hee coucheth together in his conclusion made of this point viz. concerning the like course obiected to be vsed in the Starre-chamber what then doe all or any the former differences of proceeding by him noted betwixt the Starre-chamber and courts Ecclesiasticall make to prooue the vnlawfulnesse of ministring an oath in a criminall cause which is the matter onely in issue here betwixt vs yea though they were admitted to bee indeede differences which is shewed to bee farre otherwise For albeit these courts should differ in many other points yet such difference cannot prooue an equitie to bee in the very like oath when it is vsed in the Starre-chamber and an iniquitie to be in it when an Ecclesiasticall court doeth in the like case minister it Truely he might out of those differences as wel conclude thus the Starre-chamber is kept and the oath is ministred at Westminster and they haue in that court but three or foure Atturneys therefore the very like oath ministred in the Consistorie at Paules where there be a dozen Procurators sometimes present is vniust and vnequall This therefore falleth into that point which in the Epistle to the Reader I affirmed to be his sophisticall answering of obiections He also doubteth that the Statute authorizing the attaching of heretikes by Ordinaries made 2.
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
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
contrary to any the lawes or policie of this land Let 1 Constit proude haereticis c nullus no man saith that Constitution presume to dispute c. against othes which are made either in Ecclesiasticall or temporall Courtes in cases accustomed and in vsuall manner c. and from henceforth let it be commonly taught and preached that oathes may lawfully be taken by all to whom it appertaineth by touching the holie Gospels and vpon them in all cases by law expressed and which are vsual in both courts Seeing then it is most apparant that the oathes which wee here dispute of are both expressed and prescribed by lawes Ciuil and Ecclesiasticall and were also there vsed both at the very time of such Constitution and long afore it wil hereupon follow that the like oaths were then also vsed in temporall Courts and were by that Constitution aswel alowed vnto Ecclesiasticall courts as they were in their owne temporall courts Which thing is so much the more manifest in that a little Treatise purposely compiled I take it by Saint German in the time of king Hen. 8. euen against sundry such Constitutions both Legatine and Prouinciall yet saith thus of this very point viz. 2 A Treatise concerning Constit. Prouinciall and Legatine ca. 23. printed by Tho. Godfrey though such a mans saying viz against vsuall othes in both courts be vntrue yet it is none heresie He yeeldeth then that in all cases then accustomed in both courts othes might lawfully and also ought to be taken The practise of this oathe as in all former times so was it also receiued and vsed in the time of king Henry the eight as well after the Papacie was ouerthrowne heere as afore and so hath it continued euer since And after his time the 3 Actes and Mon. 2. edit 2. tom fol. 1495. Lords of the Counsell finding Bonner thē B. of London somthing slack in his duty did enioine him to cal afore him al refusers to come to diuine seruice to search out conuent punish al adulterers according to the ecclesiasticall lawes The 1 Ibid. fol. 1501. kings commissioners visiting the Church of Paules did examine al thē of that church by vertue of their oathe touching their doctrine and conuersation of life Wherevpon one Iohn Painter and others did confesse adulterie euen by themselues to haue bene committed yet this was a generall enquirie The Kings 2 Ibid. fol. 1511. commission to proceed against Bonner affirmeth that the commissioner shal proceed aswel by meere office as also by way of denūciation by either of thē or by any other means by their discretions By vertue 3 Ibid. fol. 1512. whereof they charged him w t a corporal oath ex officio in form of law to answer the positiōs that shuld be ministred which vpon his oath takē were after ministred vnto him But 4 Ibid. fol. 1516. for that he would not answer them fully he was pronounced contumax pro confesso was remaunded backe to prison as afore The 5 Ibid. fol. 1536. proceedings about that time also against Ste. Gardiner the oath ministred to him was ex officio in matters criminal penall as appeareth by the sentence of depriuation from his Bishopricke of Winchester And yet besides Bishops there were some of the Kings counsell some Ciuilians and also some Iudges of the land and other common lawyers who were then commissioners in that cause and knewe the lawes as sufficiently well as any doth which now impugneth this course In her 6 Circa 3. aut 4. regni domninae Elizabethae reginae Maiesties time that now is a special cōmission was directed forth by her highnes vnto certaine great persons both ecclesiastical lay wherof diuers were of the priuy counsel to proceed by way of enquiry ex officio against 2. great honorable personages in a cause of correction for incontinency for so the commission did runne Whereupon they were accordingly called and proceeded with and were put to answer the criminal articles vpon their corporal oaths Not onely at all general visitations holden in the beginning of her Maiesties reigne by speciall commissions grounded vpon the stat 1. El. c. 1. but also euer since by vertue of the commissiōs ecclesiastical this course of exacting such oaths hath bin practised and continued was it then so long together against papists and other delinquēis a most iust necessary oath such as against which no good subiect bearing the name of a professor of the gospel euer did open his mouth in any dislike and is it now become on a sodain a bloudy cruel vniust more then Spanish Inquisition bicause a few vaine factious Reformatists are vrged with the selfe same maner of oath Belike lawes themselues are but partial which in respect of acception of some mens persons doe so quickely turne their nature from sweete to sower and from iust to vniust When D. Grindal late Archb. of Canterb. was B. of London he cōplained to the Lords others of her Ma. most honorable priuy coūsel for that by vertue of the cōmission ecclesiastical he could not so duly thorowly proceed to the discouery punishment of certaine knights other great possessioners being Recusants as he ought because som Ciuilians common lawyers supposed thē by him to be like affected did sinisterly animate and aduise them not to take oath to answer vnto any articles obiected ex officio vnlesse some fame by presentment or such like were first found against thē which would proue said the B. a long troublesome and chargeable course if it should be pursued seing some of thē dwelt in remote places of the Realme where as the people also stood like affected so that they would neuer be induced to make any such presentment or discouery and yet that the matter was by denunciations by vehement presumptions and by good euidence giuen vnto the commissioners sufficiently otherwise detected or was so notorious as that by lawe they might ground an Enquiry of office against thē as by others no lesse sound Lawyers he was informed For redresse whereof and for furtherance of Iustice it pleased their honorable LL. to cal som both of the Ciuilians cōmon lawyers afore thē to the Counsel boord that had giuen such aduise thereupon three of the doctors and one counsellor at law were by thē cōmitted to the Fleet. which I think some of their honorable LL. others yet remaining can do wel remember By al which here premised it doth appeare how sufficiently manifoldly our intention in this behalf is grounded likewise to how smal purpose the Treatisor resoneth where he gathereth that ecclesiast courts must be restrained by the Q. prerogatiue roial common lawes in that their iurisdiction is from the Crown Considering none of the defenders of this oath wil deny either the antecedent or consequence hereof But that which couertly he would thēce inferre
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
CoÌ„missioners wil take it as a great benefit to haue bin instructed by theÌ„ in a point touching the pleasure of God increase of vertue conseruation of vnitie which by most of their large trauels in Diuinitie by themselues they haue not hitherto fouÌ„d Howbeit this last part of his saying seemeth vnto me to sound as if he would not stick any more to grant vnto vs that the large words of the Act doe allow of this oath So that we finde nothing any way materiall by him alleaged to impeach our former conclusion viz. that the common lawes and statutes of this Realme allowe such oaths to be tendered by Ecclesiastical Iudges therfore the oath of the partie in some matter of crime that may be daÌ„mageable penal vnto him is both in practise is alowed also to be practised in courts ecclesiastical by y e lawes of this realme CHAP. IX That such oath touching a mans owne crime is allowed both by the Canon and Ciuill lawes howe farre and in what sort and that the like is established and thought equall by the lawes customes of sundry other nations aswell ancient as moderne SEing then the giuing of an oath in a cause criminall penall to a mans owne selfe is practised by the lawes of the Realme and allowed by them vnto courts Ecclesiasticall in both which respects such Canons as prescribe it are by statute warranted to be still vsed as they were before the making of the Act. 25. H. 8. and in trueth haue bene alwayes since let vs therefore see whether this course be iustifiable also by Canon and Ciuill lawes and by them allowed and practised First the lawes of the realme that do allow certaine matters to be of ecclesiasticall conusance caÌ„not be intended but to allow an ecclesiastical forme of proceeding by such lawes receiued For it were as vnreasonable to barre them from proceeding in a cause ecclesiasticall according to that lawe as it would be to require of them to deale by way of Inditements and Iuries Those lawes are so plentisull in this point that it were vaine to set downe but a tenth part of that which in this behalfe might be sayd Therefore I holde it best to shewe vnto you what is the lawe herein agreeable also to the practise in ordinarie courts ecclesiasticall as I conceiue it in as great briefnes as I can which may boâ—…h declare that by those lawes it is allowed how farre and why it is lawfull may also serue to answere by true distinction vnto all obiections drawen out of either of those lawes against this course An oath touching a criminall position or matter is either taken by a witnes or by a partie A witnes by the very nature of testimonie must depose indifferently aswell for the partie against whom he is produced as for him which produceth him And therefore is to answere truely not onely to the positions and articles giuen in by him by whom he is produced but also vnto the lawfull and pertinent Interrogatories ministred euen by the aduerse part In which Interrogatories two seuerall sortes of matters may be conteined tending to disable him from giuing testimonie The first is an Interrogatorie tending to the discouerie of his owne turpitude and vnto 1 Felinus in ca. cum causam de testibus nu 10. per communem opinionem this whether it concerne any crime supposed to be committed by the witnes or his confession thereof or the fame and infamie against him of such crime or a sentence thereof or an excommunication thereupon gone out against him or any such like matter he is not bound to answer vpon his oath though he haue done penance for it and thereby be presumed to be reformed The reason hereof is truely alleaged to be this 2 Io. Andr. in ca. 2. de confessis nu 6. per c. ex tu arum de purgat Canon c. because the end of such a criminous Interrogatory ministred by way of exception or barre to a witnes or to an accuser is onely to disable him from accusing or witnessing not to the acquitall or condemnation of the person so challenged of the crime as the ende is where a Purgation of a mans owne selfe is to be enioyned therefore no reason to aske it of himselfe For as one wel saith by the 3 Alph. Villag in Pract. Can. li. 3. c. 13. conclus 3. order of charitie eche man is bound to loue his owne body and fame one degree sooner and neerer then his neighbours insomuch as the loue towards our selues is made the rule howe to loue our neighbours in which respect it is sayd that ordinaria charitas incipit a seipsa and therefore no man is bound to furnish one that standeth opposeth himselfe against him euen against himselfe in matter of crimes but sayth he it is otherwise when a man is vrged to the like by a Magistrate that is his competent Iudge Whereby the reason of the 4 Vide 2. Part. pag. 36. priuilege of an oath ministred ex officio aboue that which is at the instance of a partie appeareth The second sort of Interrogatories tending to the disabling of a witnes is such as conteine no turpitude in themselues as 5 Felin ibid. per Baldum Interrogatories touching his condition as whether he be bond or free or of his pouertie kindred or aliance and such like and to these he is bound to answere When a criminall matter is obiected as to be answered by him that is partie vnto the suite it either toucheth the crime of some witnesse by him produced or else the partie his owne crime if 1 Specul de teste § iam de interrogat it toucheth a crime of his owne witnesse he must answere it by the vertue of that part of Iuramentum calumniae by him taken which is that he shal not burthen more then needs his aduersary in making his proofes but shall himselfe confesse a trueth therein when he is asked But when it toucheth the parties owne crime it is of two diuers considerations for either the cause is Ciuilly mooued for the priuate interest of the prosecutor or els criminally for publike punishment If the suite be but ciuilly mooued the criminous position or interrogatorie may concerne such a crime as being concealed brings benefit commoditie to him with another mans losse And in 2 Bartol in l. Manellus §. qui rerum nu 30. ff rerum amotarum this case albeit there be no fame or no detection precedent the partie is bound to answere it vpon his oath But if the concealing of it cannot procure his gaine with another mans losse 3 L. qui iurasse §. qui pater ff de iureiur ibi glo l. si a te ff de excep rei iudic then is not the partie himselfe in such case bound to answere a position criminous so mooued by his oath yet euen in this 4 Bartol vbi supra
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
what they are lawfully commanded albeit trouble and punishment by that occasion shal happen vnto them that so take offence So that this example doth make flat against their owne purpose and intention and can no way helpe them Another example they bring of 2 1. Reg. 1◅ ver 4 13. Obadiah who hid 100. Prophets in two caues secretly and susteined them with necessaries when Iesabel slewe the other Prophets whom she could hit vpon But this commeth farre short of the purpose for which it is brought For who euer denied it to be lawfull to shewe charitie vnto the Lords Prophets then there appeareth no commaundement to the contrary but that he might receiue them againe it doth not appeare that he was euer by authoritie charged to reueile them or to tel his knowledge what was become of those Prophets and therefore it is vnlike to the case in handling furthermore it was wholly an vniust wilfull and tyrannous persecution without warrant of law or colour of any iudiciall proceeding besides if he had bene charged by Iesabel to discouer where they were or had beene commaunded by her to relieue none such yet had it bene no disobedience towards the Magistrate for it is not noted to be the doings of the king but that Iesabel slew them Now the kings wife is no soueraigne but a subiect her selfe Moreouer the killing of the Prophets for no pretence or colour of cause at all is in it selfe so apparant an euill as no man can haue any shadow to giue a lawfull consent vnto it Lastly a man cannot gather a generall doctrine in a matter doubtfull and not plainely deliuered els where in Scripture out of any particular mans fact because all the circumstances which then fell out are not knowen But most especially an example can neuer serue to the ouerthrow of the generall commandement of obeying the Magistrate And viuendum est legibus non exemplis Out of the first booke of Samuel they bring three other examples 1. Sam. 19. ver 1. 2. The first that Saul spake to Ionathan his sonne and to all his seruants that they should kill Dauid but Ionathan Sauls sonne had a great fauour vnto Dauid and bade him take heede c. The second when Saul said to Ionathan Send and fetch Dauid vnto 1. Sam. 20. ver 31. 32. me for he shall surely die Ionathan answered Wherefore shall hee die What hath he done the third that when Saul commanded his seruants to fall vpon the Priests of the Lord to slay them they would 1. Sam. 22. ver 17. not moue their hands to fall vpon the Priests of the Lord. To these three one answere may serue and therfore they are thus set together First these commandements though of the king yet they were when he was enraged and in a furie after the Lord was departed from him an euil spirit was come vpon him Againe it is apparantly vngodly in it self for any to kill an Innocent vpon the tyrannous and vnaduised commandement of the king euen without all colour of any lawful Iudiciall course Lastly Dauid was knowen vnto them to be afore appoynted yea their annointed king from the Lord howsoeuer Saul was tolerated de facto to continue in place till the measure of his iniquitie was fulfilled And therfore in this respect was it vnlawful to kil either him or those that fauoured him especially the Lords Priests whose linnen Ephod should be a protection vnto them against Ibid. ver 18. al such precipitate executions where neither conisance of their cause nor any due conuiction and iudgement was precedent Another example they bring of the mid wiues of the Israelites to proue their intention It is thus written they feared God and did Exod. 1. ver 17. not as the king of Egypt commanded them but preserued aliue the men children This obiection carrieth his answere with him For it is said they feared God therefore did not herein as the king cōmanded noting vnto vs that the cōmandement was such as could no way stand with the feare of God There is no Prince in the world to bee obeyed when he commaundeth any thing directly forbidden by God for it is better to obey God then man The Prince is no God nor yet Gods Lieutenant but a meere man in that which he cōmandeth directly contrary to God That this was of that kinde it appeareth for to kil is manifestly by y e moral law of God nature forbidden Yet this hath his exception viz. that it is no murder when we execute the penaltie of lawe vpon murderers other wicked persons duely conuicted condemned For he that Gene. 9. ver 6. sheddeth mans blood his blood shall be shed by man saith the Lord. But there could be no colour or apparance of any actual wickednesse in children newly borne why they should be executed being but by a generall iudgement condemned most wickedly and tyrannously euen before they were non censetur existere saith the law qui adhuc est in vtero matris Now let vs compare these last foure examples with the scope and purpose for which they are vsed The very act of murdering a person notoriously innocent in that he is neither conuicted nor condemned is malumper se a thing simply and absolutely in his owne nature euill without any further circumstance But to declare what a man knoweth to be done by another the very authours themselues of this opinion must needes confesse to bee sometimes lawfull and requisit and therefore they must at least graunt it to be medius Actus such as by circumstance may be lawfull howsoeuer by the circumstances of this case as it is propounded they will perhaps hold it vnlawfull And therefore there is such dissimilitude and diuersitie betwixt these examples and that which they holde as they can neuer serue this purpose Therefore to fit their turne in the very poynt of the issue they must proue vnto vs that it is vngodly for any man though charged by lawfull authoritie to declare his knowledge of another mans actions if hee that is vrged so to make declaration doe iudge afore-hand that the Magistrate mindes to punish such action either where he ought not at all or in other sort then Gods law permitteth For this purpose they alledge as strongest the example 1 Iosh. 2. ver 3. 4. of Rahab who would not tell the king of Iericho where the two spies of Israel were though she were by him commanded to bring them foorth and she is commended for it by the 2 Heb. 11. ver 31. holy Ghost In answere hereof I say we reade not that the king asked her whether they were there still or not albeit shee 3 Iosu. 2. ver 5. answered that they went out but she was commanded to bring them forth which is something more then to tell where they were if she had beene so asked Secondly by 4 Heb. ibid. Iosu ibid. V. 10. faith
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