booke of Anno 2. R. 3. whereby it is euident that vnlesse these Ordinaries could prooue their forcing of oathes ex officio to be warranted by authoritie of the lawes and justice of this lande as in trueth they can not all their dealinges in such cases are by the same lawes vtterlie disallowed and condemned But here me thinkes some retchlesse or inconsiderate reader steppeth forth and sayeth What is your meaning to circumscribe and include all authoritie of ministringe oathes in the Courtes Ecclesiasticall within the streight limites and boundes of causes Testamentarie and Matrimoniall howe then shall all other matters subiect to their jurisdiction being in number manie and in nature diuers receyue due examination For aunswere therevnto this shortlie may suffice That the state of the question whiche at this present we haue in hande is not in what cases those Courtes may giue or impose an oath but the matter wher of we nowe intreate is concerning forced and constrained oathes ex officio and especiallie in that generall maner before remembred And as touching the triall of causes by examination of witnesses judiciallie depending betweene partie and partie in th'Ecclesiasticall Courtes it standeth firme and for founde lawe according to the saide Prohiâ—â—on and the opinion of Maister Iustice Fitzherbert in his booke of Iustice of Peace is That those Iudges Ecclesiasticall haue no lawfull power or authoritie to force or constraine by censures of the Church or otherwise any subject of this Realme against his will to testifie vppon his oathe other then in the foresaide causes of Mariage and Testamentes although comming before them as produced by the parties in the suite they may lawfullie as vnto men voluntarilie accepting the same minister an oath otherwise it is plaine extortion and wrong vnto the partie And admitte they would denie to depose what prejudice were that to the Court Christen but rather a faylinge in proofe in the partie suing And in this state and sorte standeth the proofe of causes by witnesses at the common law Neuerthelesse since the statute made against wilfull perjurie the witnesse serued with processe and hauinge his charges tendered making default incurreth a paine pecuniarie And why should the Cleargie and Iudges Ecclesiasticall thinke it much to be ruled and restrayned concerning their jurisdiction by the Kings Prerogatiue and the common lawes of this Realme since what jurisdiction or authoritie soeuer they haue or enjoye matters of the Diuine lawe excepted yea euen in those especiall causes of Testamentes Mariages Diuorses and Tythes is no otherwise theirs then by the goodnes of the Princes of this Realme and by the lawes and customes of the same as the statute of Anno 24. H. 8. cap 12. well declareth and may be taken from them and restored to the temporall Iudges especiallie the abuses of the Cleargie well descruing it at the will and pleasure of the Prince and people But to returne againe to our prohibition and attachment it is euident thereby that all the sommons and citations which those Ecclesiastical Iudges sende forth vnder these general termes propter saluteÌ„ animarum or ex officio mero And all their arrestes distresses impeachmentes excommunications and imprisonmentes therevpon ensuing are altogither injurious both to the Prince and people And of this opinion seemeth to be that learned Iudge Maister Fitzherbert who in his booke De natura breuium sayeth vppon these writtes in this maner By this appeareth that these generall citations which Bb. make to cite men to appeare before them pro salute animae without expressing any cause especiall are against the lawe And true it is for by the statute of Magna Charta Magna Charta conteyninge many excellent lawes of the liberties and free customes of this Kingdome It is ordeyned that no free man be apprehended imprisoned distrained or impeached but by the lawe of the lande and by the statute made Anno 5. Ed. 3. ca. 9. It is enacted That no man shall be attached vpon any accusation contrarie to the forme of the great Charter and the lawe of the Realme Moreouer it is accorded by Parliament Anno 43. E. 3. ca. 9. for the good gouernement of the Communaltie That no man be put to aunswere without presentment before Iustices or matter of recorde or by due processe or by writt originall after the auncient lawe of this Lande And howe then shall that kinde of proceedinge ex officio by forced oathes the vrging of this general oath and streight imprisoning of such as refuse to sweare bee justifiable If these things were not yet a man would haue thought that at the least the sharpe and seuere statutes of Prouision and Premunire so offensiue to popishe Polidore and such like Premunire should haue staied and stopt the violent course of those injurious inquisitions examinations and wrested oathes ex officio For no doubt the Ordinaries Cleargiemen practizing the same are all offendors doe incur the forfaitures of those penal lawes For profe wherof let vs consider the wordes of the statute of Premunire made AnnÌ„ 16. Ri. 2. ca. 5. and the judgments expositions thervpon had that statute reciting first the grieuous complaint of the whole Realm against the Pope of Rome who impeached many Patrons in the presentations to their Ecclesiasticall benefices excommunicated the Bb. of this realme for executing the kings writts de Clerice admittendo sought to translate some of them against their and the Kings will and diuers other inconueniences in derogation of the Kings Crowne and Regalitie prouideth remedie for those and such like mischiefes in this maner That if any purchase or pursue or doe to be purchased or pursued in the Court of Rome or elswhere any such translations processe sentences of excommunications bulles instrumentes or any other thinges whiche touche the Kinge against him his Crowne and his Regalitie or his Realme or them receyue or make thereof notification or any other execution within the same Realme or without that they their Notaries Procurators Mainteiners Abbetters Fautors and Counsellors shal be put out of the Kings protection and their landes and tenementes goods and chattelles forfait to the King c. Since the making of whiche statute it hath bene helde and adjudged for cleere lawe in the Kinges Courtes That if any subject of the kinges sue or impleade an other in any Ecclesiasticall Court of this Realme for any cause or matter appertayninge to the examination and judgement of the Courtes of the common lawe or any judge Ecclesiasticall presume to holde plea thereof or deale in any causes not belonginge to his jurisdiction that they incurre the daunger and penaltie of premunire as by the booke of 5. Ed. 4. fol. 6. by th' opinion of the Court Anno 11. H. 7. remembred by Maister Fitzherbert plainelie doeth appeare According also therevnto is the case of Maister Barloo late Bishop of Bathe reported by Maister Iustice Brooke Which Bish in the time of Kinge Edwarde the 6. depriuing the
articles commissions are appointed to be directed to the Archb. or Bishop of the Diocesse and to his Chauncellor or Commissarie and such other as the Kinge should appoint giuinge them power to take information and accusation not by oath of the partie conuented but by the oathes depositions of two able and lawfull persons at the least or to enquire by the oathes of xij men Giuing also to the Ordinaries power and authoritie to enquire in their visitations and Senis and to take accusations and informations as in forme aforesaide and not otherwise The maner also of processe against the persons indighted accused or presented is there prescribed And the forme of proceedinge vpon apparaunce of the partie appointed to bee not according to those vnjust examinations by oath ex officio but accordinge to the lawes of the Realme and th' effect of that act And although at that tyme this statute lawe seemed just and equall as concerning the maner of enquirie and trial yet time disclosing all thinges made it appeare that the same was not false in respect that diuers secret and vntrue accusations and presentementes might bee and by all likelihoode were maliciouslie conspired and therefore it was enacted Anno 35. H. 8. cap. 5. That no person should bee arraigned or put to triall for or vpon any accusation information or presentment concerning any of the offences mentioned in the statute of 6. articles but onely vppon such presentementes and indightements as shoulde bee sounde and made by the oathes of 12. men or moe c. These things standing thus howe may any man justifie or defende much lesse practize those generall oathes or examinations by oath ex officio by any statute lawe of this Realme being by them not onelie rejected but vtterlie condemned as not standing with the right order of Iustice nor good equitie especiallie the statute made Anno 25. H. 8. beinge in force and limitinge vnto Archb. and Bish none other jurisdiction then such as they may vse without offence to the Prerogatiue Royall and the lawes and customes of this Realme Of which lawes and customes the common lawe is no part or portion And as a well-willer I would aduise all Ordinaries and such as exercise Ecclesiasticall jurisdiction especiallie hauing taken the oathe ordeyned for the maintenaunce of the Supremacie Royall wherein they sweare to assist to their power and defende all jurisdictions Priuiledges Preheminences and authorities graunted or belonging to the Queenes Highnes her heyres and successours or vnited and annexed to the Imperiall Crowne of this Realme to take heede that they attempt not to put in practize or exercise any such Oathes or examinations ex officio least happilie they bee not onely founde thereby to be impugnors of the Royall Prerogatiues but discredited farther by the breach of their oath If it be saide for what will not be moued for a defence that the King heretofore gaue in those cōmissions besides the lettre and meaning of the statute of 6. The Kings commission Articles power and authoritie by expresse words vnto the Commissioners Ecclesiasticall to examine by oath the persons accused or presented As that is not likelie neither as I suppose can be proued So admitting it were true and that such kind of oathes were consonant to the lawe of God yet were the same no sufficient or lawfull justification inasmuch as we haue prooued and further shal prooue such examinations and inquiries vpon oath to be injurious both to the Prince and people of this Realme and to impugne our gouernement and forme of Iustice In which cases the Kings graūt or commission is of no force in lawe For as Bracton well hath written Potestas Principis juris est nō injuriae cùm ipso sit author juris non debet inde injuriarum nasci occasio vnde jura nascuntur That the King by his Commission or graunt or otherwise thē by Parliament may not change or alter the lawes of this Realme nor the order maner or fourme of administration of Iustice is rightlie also noted vnto vs by that graue and learned Iudge Maister Fortescue saying Non potest Rex Angliae ad libitum suum leges mutare Regni sui Principatu namque nedum Regali sed politico ipse suo populo dominatur And by the booke also of Anno 11. H. 4. where it is agreed that neither the King by his graunt nor the Pope by his Bulles for all his triple Crowne can change or alter the lawes of the lande whervnto concurre diuers other bookes of the report of the lawe Worthie also of remembraunce is that saying of Iustice Scroope Anno 1. Ed. 3. fol. 26. If the King sayeth hee commaunde any thing impossible that which the lawe will in the case must be done 49. Ed. 3. 36. H. 6. if he commaunde any thinge contrarie to lawe his Iustices ought not to doe it Anno 42. Ed. 3. There was a Commission awarded out of the Chauncerie to apprehende a certen subject of this Realme and to seize his goods and chattells no enditement suite of partie or other due processe of lawe precedent and the same was by the Iustices holden to be altogither voyde as a matter against the Pollicie of the Realme and maner of execution of justice Likewise it appeareth in the same yeare that a writte proceeding from the Chauncerie to enquire of Chaunperties Conspiracies c. whereby one of the Kings subjectes stood indighted was by Iustice Kneuet vppon the resolution of the rest of the Iudges damned adjudged voyd in respect that such matters are not inquireable by writ but by Commission But it wil be said of some I verily suppose that although neither the common lawes nor statutes of this Realme nor the Kings commission doe or can warrant such maner of oath and examinations ex officio yet the publique practize and vse of the honorable Courtes of Starchamber Chauncerie the one in causes criminall the other in suites ciuill of equitie and conscience concurring in one forme of taking aunsweres and examinations by oath doe fortifie and confirme the thing which wee impugne Whiche speach as it may seeme at the first to giue some coulor and shewe of credit to their cause so vppon consideration had and due comparing the one with the other it will soone appeare to be but a vanishing smoake and shadowe voyde of substance For first if it should bee graunted that such kinde of oathes and examinations were vsed in the Courts of Starchamber and Chauncerie yet would it not followe that the same might be practized in the Courtes and Consistories Ecclesiasticall vnlesse the like allowance thereto and consent of the whole Realme might be prooued also And who knoweth not howe weake a profe examples and presidentes are where an expresse lawe or certen policie is to the contrarie Therefore it is well said in the ciuill lawe Jus non ex regula sumatur sed ex jure regula fiat By better Logick might they
conclude thus All answeres are made vpon oath in the Kings Courtes of Starchamber Chaūcerie Ergo the same course may be vsed in the Courtes of the Kings Bench and common place which neuerthelesse were an absurd conclusion It is verie true in deede that these honorable Courtes of Starchamber and Chauncerie proceede not to the tryall of causes by Iurie after the manner of the common lawes of this Realme but giue their judgementes and definitiue sentence vppon the aunswere and examination of the defendent affirmed by his corporall oathe and vpon the depositions of witnesses But who hath euer seene in these Courtes any subject of this lande in a cause concerning him selfe brought forth and compelled to depose or make aunswere vppon his oath no bill of complainte or information formerlie exhibited against him Nay on the contrarie these Courtes obseruing the due forme of Iustice enforce no man to answere but where hee hath a knowne accusor and perfect vnderstandinge of the cause or cryme objected and therewithall is permitted to haue a coppie of the bill of complainte or information beeing not ore tenus And allowed moreouer both tyme conuenient and counsell learned well to consider and aduise of his oathe and aunswere And if his aduersaries complaint bee either insufficient in forme or matter or such as the Court hath no jurisdiction to determine the defendent vppon demurrer without oathe is dismissed and that with costes And admitt the accusation such as euery way is aunswerable yet if the Interr ministred bee impertinent to the matter of complaint the defendent without offence to the Court may refuse to make aunswere to the same What similitude or likenes then is there betweene the oathes and examinations vsed in these honorable Courtes and those constreiners ex officio since the former sorte bee orderlie taken in Courtes of Iustice th' other without all course of judgement th' one where pl. and complaint are manifest the other where neyther accusor nor matter of accusation doe appeare the one oath made vppon certen knowledge and good aduisement the other soddenlie without all discretion vpon vncertaine demaundes the one wiselie restrained to certen limittes and boundes the other foolishlie wandringe at the doubtfull will of a slie and subtill apposer Vpon the one the deponent aunswereth to the accusation of his aduersarie by the other hee is compelled oftentimes to bee his owne accusor and condemner the one enquireth an aunswere to matter in fact done eyther to the injurie of some priuate person or hurte of the publique state the other constreyneth the reuealing of wordes deedes and thoughtes though neuer offensiue to any Than since it is apparaunt that these manner of oathes are altogither mere straungers to our pollicie The practise of the cleargie and not so much as once countenaunced by any lawe custome statut or Court of this Realme Howe then by whose meanes hath this alien heretofore intruded as a troublesome guest into the house of the common wealth This partlie as before hath bene declared with some griefe of minde by that godlie seruaunt of Christ Iohn Lambert who noteth the papisticall Cleargie and religious men of his time most irreligiouslie to haue practized the same And no doubt the Prelates of former ages fayning and pretendinge such oathes to be necessarie for the gouernment of the church and to purge the Prouince of euill men as aforesaide But in trueth finding it a fitt instrument to maintaine the Romishe Hierarchie and to tyrannize ouer the consciences of good men most impiouslie violating the lawes both of God and man imposed this maner of corrupt oath vppon the people and no mervaile since there was no euil or mischiefe that could bee deuised either against the Prince people or pollicie of this lande which these kinde of our Prelates haue not attempted and put in practize For firste disguising themselues vnder the visor and maske of hipocrisie and feined holines and making marchandize of all thinges euen of heauen and hell purchased and acquired in short time such was the blinde deuotion of the superstitious laitie great and large Seignories Landes and possessions the verie mother and nource of pryde presumption and vaine pompe of this worlde And not so satisfied but vnsaitablie and most ambitiouslie lusting after rule dominion spared not against their due alleadgance to ensest euen the Kings and Princes of the lande Lett the contention and strife of Anselme Archbishop of Canterburie with King Rufus the manifolde practizes of Thomas Becket against King Henrie the seconde the tragicall life and pitifull ende of King John occasioned chieflie by the malitious meanes of the Archbishop Stephen Langton the treason of Archbishop Arundell against his soueraigne Lorde and King Richard the second and the pryde and insolencie of Cardinall Woolsey against that renowmed Prince Kinge H. 8. among others be sufficient testimonies in this behalf And as these pontificall Prelates with others more puffed vp in swelling pryde and ambition strake at the head so the crewe of that Antichristian Cleargie ceased not from time to time to wrastle and make warre euen with the sinewes and strength of the bodie politike of this Realme the lawes I meane and customes of this kingdome beinge the principall stay and stoppe to their insolent and ambitious attemptes endeuouring them selues to writhe out and exempt them selues from their due subjectiō to the same sometimes againe encroching and vsurping the right and jurisdiction of the Kinges courtes coueringe to drawe all causes into their costlie and lingring Consistories And oftentimes bringing in to the prejudice both of the Prince and the people forreine decrees and constitutions with the corrupt Canons and ceremonies of the accursed sea of Rome For proofe whereof lette the particular examples hereafter mentioned serue as a fewe amongest manie The Pope sayeth Polidore Virgill made a lawe in the Counsell of Lyons that the Cleargie should not bee taxed without his leaue or commaundement which lawe of immunitie although it were of no force to binde within this Realme for that the same is not subject to any foreine made lawes or constitutions not suffred by the King and voluntarilie accepted and vsed by his people as is expreslie declared by the statute made Anno 25. H. 8. cap. 21. yet see the good disposition and obedience of the Cleargiemen of this Realme in the time of King Ed. 1. which Churchmen with great obstinacie refused to paye the subsidie graunted to the King Robert then Archbish of Canterburie head primate of that faction wickedlie abusing this text of holie scripture to serue his rebellious intent obedire oportet Deo magis quam hominibus The Pope and his pursle beeing his best beloued Gods Howe much better and more Bishoplike might he haue remembred Date quae sunt Caesaris Caesari quae sunt Dei Deo That holy saint Hugh sometimes Bishop of Lincolne related amongest the Romish Gods puffed vp with the like arrogancie in the time of the seuerall
Reignes of King H. 2. and Richarde the 1. and of King Iohn denied the payment of tribute and subsidie blustering and puffinge out moreouer like Cacus in his denne his smokie blastes of cursse and excommunication against the Kings collectours A notable example of humilitie and obedience in a Popeholie Bishop It is saide also by Maister Frowick Anno 10. H. 7. That the Cleargie had a Constitution that no Priest should be impleaded by the common lawe of this Realme for any cause whatsoeuer whether he saide truelie therein lette the Canonistes judge But certain I am the whole rabble of that Romish Cleargie did from time to time their best endeuour to make them selues lawlesse altogither as by the grieuances exhibited by the Princes of Germanie at the Counsell of Norrenberg in the time of the Emperour Charles the fifte may well appeare And this our haughtie Hugh of Lincolne eyther emboldened by such a Cannon or of his own free courage as a lustie champion of that irregular confederacie drewe out his woodden dagger of excommunication against the Kings Iudges and Magistrates secluding them as farre as his follie might from the fellowship and companie of Christians because they had by course of lawe imposed a fine vpon a Proselite of theirs newlie crept into their vnholie orders for his trespasse committed in the Kings Forrestes 27. H. 8. So likewise the reuerende Iudge Maister Fitzherbert declared that in the time of King Henrie the 6. a Bishop of Winchester being outlawed for no lesse fault then wilfull murther and his temporalities therfore seized into the Kings handes refused the iudgement of lawe and sued to the court of Roome the Pope writinge to the King in his behalfe aunswere was made that the lawes of this Realme were such wherevpon as vanquished and driuen from his shiftes the Bishop submitted himselfe to the grace of the King and though vnworthie obteined pardon We heard also in the 2. yeare of King H. 4. howe the Popes publication or collector tooke vpon him by vsurpation of authoritie to take both oath and obligation of a certain Vicar to holde him selfe contented with such endowment as the collector had appointed the Parsonage being appropriate to the Deanrie of Windsor and howe the Deane drewe the Vicar into plea before this new founde Iudge the Collector for the breache both of his oath and bonde Vpon which wrong done to the Royall jurisdiction the Vicar complayning had a Prohibition In which case are principallie to be noted the vnlawfull imposing of an oath by one that was no Magistrate but quid domini facient audent cum talia fures and th' injurious pro sequting and drawing into plea of the Kinges subject before an incompetent Iudge by this Deane a Cleargie man of the Realme In like sorte the Hospitallers and Templers assuming to them selues jurisdiction in prejudice of the King and of his Crowne drewe the subjectes of this Realme into suite before the Conseruators of their Priuiledges for causes perteyning to the jurisdiction of the Kings Courtes for reformation whereof the statute of Westm. the 2. cap. 43. was ordeyned Howe rigorous injurious and intollerable the dealinges ex officio by those Prelates and Ordinaries were whereof these examinations by extorted oath were a principall parte the grieuous complaint of the whole Communaltie of this Realme in the 23. yeare of the reigne of King H. 8. doeth sufficientlie declare Whereby the King was enformed how these mercilesse Ordinaries by their extraordinarie lawlesse power cited and sommoned his subiectes feyned and framed straunge accusations against them no accusers appearing examined them vpon articles captiouslie deuised for their purpose and in the ende admitting no defence and disallowing all purgation forced them to abjure or condemned them to the fire a most fearfull and barbarous course of inquisition Vnto which complaint those Pharisaicall Cleargie men who will not enter Pilates common Hall least they should be defiled and yet crye out with loude voyce Crucifige crucifige made as to the King him selfe there it seemed a verie weake and slender defence And no maruayle since wickednesse may more easilie be committed then well defended But will you see more fullie and clearelie beholde as in a glasse the manifold vsurpations incrochmentes injuries and oppressions committed and done from time to time by the Pope Prince of that curssing accursed Cleargie and by his sworne deuoted Baalamites and shauelinges against the rightes and prerogatiues of this Imperiall Crowne the lawes of this Monarchie and the liberties of the subjectes thereof then read and consider the grieuances of the commons exhibited against the Cleargie Anno 21. H. 8. the seuerall statutes of Prouision and Premunire the statutes of Mortmaine with the diuers kindes of prohibitions to the Courtes and Consistories Ecclesiasticall Among which you may finde an especiall prohibition with an attachement therevpon deuised against these injurious oathes and examinations as against abuses greatlie offensiue to the Crowne and dignitie Royall Which the better shall appeare by the writtes them selues which are in this forme set downe in the Register Prohibitiō Rex Vicecomiti salutem Praecipimus tibi quod non permittas quod aliqui Laici ad citationem talis Episcopi aliquo loco conueniant de caetero ad aliquas recognitiones faciendas vel Sacramentum praestandum nisi in casibus Matrimonialibus Testamentarijs teste c. And the Attachement is in this maner Rex Vic salutem Pone per vados c. talem Episcopum quod sit corā Justiciarijs nostris c. ostensurus quare fecit summoniri per Censuras Ecclesiasticas distringi laicos personas vel laicos homines foeminas ad comparendum coram eo ad praestandum juramentum pro voluntate sua ipsis invitis in graue praejudicium Coronae dignit atis nostrae Regiae necnon contra consuetudinem Regni nostri c. By the consideration of which writtes and especiallie of these wordes recognitiones sacramentum pro voluntate sua and ipsis invitis we may plainlie perceyue howe all these inquiries examinations Hindes case and 18. R. Eliz. prooueth no lesse and sifting out of matters by oath and by way of inquisition in the Courtes Ecclesiasticall are by the Regall authoritie impugned and that as prejudicial to the Crowne and dignitie Royall and the lawes and customes of this Realme these wordes pro voluntate sua expreslie deuoting vnto vs the vsurped officious power and licentious pleasure whereby contrarie to all due course of Iustice they constraine an aoth And these wordes ipsis invitis manifestlie painting out the rigorous injurious and compulsarie exacting of the samo Moreouer we see it declared by the statute of Marlebridge cap. 23. That no man may compell anie free-holder of this Realme to sweare against his will without the Kings precept or commaundement that is according to the lawe and Iustice of this Realme for so are we taught to vnderstande the same by the
Deane of Welles whose Deanrie was a donatiue passing therein beyonde the limites of his jurisdiction fell into the daunger of premunire And being called into question and hauinge no just defence was faine to appeale to the Kings mercie and obteyned a pardon And that booke of 5. E. 4. before remembred setteth downe the reason noting these wordes of this statute in curia Romana vel alibi In which wordes alibi sayeth that booke is intended the Courtes of Bb. So that if a man be excōmunicate in any of their Courts for a thing which apperteyneth to the Royal Maiest that is to say sayeth that booke in a matter of the common lawe the partie excommunicate shall haue a premunire facias and so was it adjudged In whiche wordes among other is speciallie to be noted that when so euer a wrong or injurie is offered to the common lawe of this lande there the Kinge is saide to be touched and his Royall Maiestie impeached For accordinge to the Princelie speach of that most Noble King Ed. 3. in the statute of Prouision made in the 38. yeare of his raigne the Kinges Regalitie chieflie consisteth in this To susteine his people in peace and tranquillitie and to gouerne them according to the lawes vsages and franchises of this Lande wherevnto he is bounde by his sacred oath made at his Coronation If then by vsurping cognizance of plea in causes cōcerning the common lawe and the jurisdiction of the Kinges Courtes the Ecclesiasticall Iudges touch the King in Capite doe against him his Crown Regalitie Realme so cōsequentlie incurre the forfeiture penalties of Premunire Howe much more doe they touch the King nay rather lay violent handes on him impugne his Royall Throne and Scepter who contrarie to the Pollicie Iustice Lawes Customes and Freedomes of this Kingdome yea the lawe of God it selfe enforce constraine by censure of excommunication otherwise the Kings people to appeare before them and extort from them an oath to accuse them selues And for more plaine demonstration if plainer may be put the case that a Iudge Iustice or Commissioner authorised by the Kinge to execute justice according to the lawes of this Realme should take vpon him by colour of his office and authoritie to conuent the Kings people before him and vppon their apparaunce to offer vnto them this general oath to aunswere vnto all such questions as him selfe should propounde playing in causes criminall the part both of accusor and Iudge or seekinge by oath and captious Interrogatories matter of accusation wherevppon to proceede to condemnation and to commit the partie refusing such oath to streight prison without bayse or mainprise could any man justifie this his doing to stande with lawe or justice Nay rather might not euerie man justlie cry out against him as against a subuerter of lawe and judgement and a hatefull enimie to our pollicie common wealth yea should not that bee verified of him which is recorded in the judgement against Sir William Thorp sometime chiefe Iustice of Englande for his corrupt dealing which is that as muche as in him laye he had broken the oath which the King is bounde to keepe towardes his people If all this may truelie be affirmed of such a one howe then shall the Ecclesiasticall Iudges practizing in their Courtes and Tribunal Seates the self-same vnjust and vnlawfull manner of proceeding against the Kings people escape the seuere sentence of law pronouncing them offensiue touchers and violaters of the King and injurious dealers against his Regalitie Crown and Kingdome so consequentlie worthie to suffer the paines and penalties declared in this statute of Premunire That this is no newe opinion or construction wee finde the resolution of that learned man Saint Germaine in his booke of Doctor and Student well agreeing where he writeth in this maner Jf any man bee excommunicate in the spirituall Court for debt trespas or such other thing as belongeth to the Kings Crowne and to his Royall dignitie there he ought to be assoyled without making any satisfaction for they not onelie offended the partie in calling him to aunswere before them of such things as belong to the law of the Realme but also the King who by reason of such suites looseth a great aduantage which he might haue of the writs originalles judicialls fines amerciamentes and such other thangs if the suites had bene in his Courtes accordinge to his lawes Hee sheweth further That if the Ecclesiasticall Iudges will not make the partie his letters of absolutiō where hee ought the partie shall haue his action against him Hee affirmeth also The Lawe to bee according where a man is accursed he meaneth excommunicate for a thinge that the Judge had no power to accurse him in notwithstandinge that he may haue his suite of premunire facias Againe we reade howe the late Cardinall Woolsey the Popes Legate here in Englande erected a newe Court or Consistorie called The Court of the Legate in which he tooke vppon him to proue Testamentes and to heare and determine causes in prejudice of the jurisdiction Ecclesiasticall of this Realme And howe by his vsurped power Legatiue he gaue and bestowed benefices by preuention to the disinheritance of the Kings subjectes and vifiting the state Ecclesiasticall vnder coulor of reformation gained to him selfe exceeding great treasure But this loftie height of vnlawfull authoritie weake and feeble in foundation could not long continue For in the one and twentieth yeare of the reigne of King Henrie the eight this proude prieste with all his glorious pompe and glittering shewe of all his Crosses Siluer Pillers guylt Axes imbrodered Cloakbagges and purple Hattes was attainted by his owne confession in a Premunire and the next yeare following all the Lordes spirituall hauinge deserued the same paines and punishmentes for their vnjust maintenaunce and supportation were called to aunswere in the Kinges Benche and knowing them selues guiltie before their day of appearaunce exhibited to the Kinge their humble submission joyninge therevnto an offer of a 100000. pounde to purchase their peace whiche after much suite the King accepted and by Parliament gaue them a pardon If then this Romish Legate for assuming to him selfe jurisdiction by authoritie Papall in prejudice not of the Kinges Courtes but of the Courtes Ecclesiasticall neuerthelesse to the hurt of the Royall Maiestie and for disturbaunce of the rightes and inheritaunce of the Kinges subjectes fell into the daunger and penaltie of Premunire and all the Bishops and Ordinaries of this Realme likewise through their maintayning onelie and supporting the same may we not safelie conclude that the Bishops and Ordinaries in these dayes vsurping power and jurisdiction in like sorte and maner although not in the same particulars by coulor of Antichristian decrees or practizing those popishe Cannons the verie head of that hellishe Cerberus of Rome as a learned man well termed them and the sinewes of his tyrannicall authoritie repugnant to the Royall Maiestie and Pollicie of this
partes in judgement that is to be both Actor Reus Accusor and accused whereby the three principall parties by the rule aforesaide faylinge true judgement by no meanes may consist Furthermore by this kinde of oath it can not be truely saide that Innocentes circumuented by fraude or practise are cleared since there is no complaint or accusation judiciallie exhibited Except we shall affirme that the Iudge or Magistrate by enforcing such an oathe doeth him selfe play the patt of a subtil circumventor and accusor which as it is a most wicked sinne in any man so in the person of a publique Magistrate whose actions should be sincere the same is most detestable And finally howe can an ende of controuersie ensue by such an oathe whereas no quarrell or complaint is any way dependinge Nay rather the same is often tymes the cause of stirring vp of debate and contention in steade of former quietnes being principallie vsed not to make an end of controuersies but to procure some accusation and that by the secrete malice of some vndermining or malignant aduersarie or calumniatour Againe since an oath is to be taken in judgement that is with good aduisement and consideration of the matter wherein the Deponent is to call the Name of God to witnesse and that whosoeuer otherwise taketh an oath doeth therein vainelie and indiscreetlie abuse the Name of God Howe can this generall oath be eyther rightlie vrged or receyued without great offence to his diuine Maiestie forasmuch as the partie deposing is not before he swear made acquainted nor vnderstandeth what questions or interrogatories shal be demaūded but by his oath hath fast bound and subjected him selfe to the discretion or indiscretion of another that is the Iudge Ecclesiasticall who hauinge straightlie tied and snared this seelie subiect may nowe vse or abuse him at his will and pleasure eyther against lawe enforcing him by the bande of his oath to accuse him selfe euen of his most secret and inward thoughtes or contrarie to christian charitie yea humanitie it selfe constrayning him to enforme against his naturall parentes dearest friends and nearest neighbors or to bewray with griefe of heart such matters of secrecie as otherwise were inconuenient peraduenture not honest to be reuealed In which hard proceeding besides the great hazard peril of wilful perjurie without all necessitie of an oath great trouble of minde and scruple of conscience must needes ensue when as the Deponent on the one side considering the waight heauie burthen of his oath feareth to conceale any thing and on the other side finding him felfe thereby entrapped shrinketh to make aunswere to the questions propounded Whereof you may beholde a most miserable and lamentable spectacle in the booke of Actes monumentes where in a large table is set forth the great iniquitie and rigorous dealing of Longland Bishop of Lincolne in the time of the late Prince of famous memorie King H. the eight Which bloudie Bishop by forced and violent oathes and captious interrogatories constrayned the children to accuse their parentes the parentes their naturall children the wife her husbande the husbande his wife one brother and sister an other some of these seelie soules of sworne becomminge forsworne whyle they made daintie to accuse such as they dearlie affected Of which blinde ignorāce or rather murderous mindes and intollerable iniquitie of Romish Bish and barbarous abuse of an oath that godlie man of worthie memorie Maister Iohn Foxe justlie complaineth For what might be added more to extreame crueltie saue only this one point of detestable inhumanitie whiche also was pursuaunt as a part of that tragical church-gouernement to compell the children to set fire to their condemned parentes Which example of crueltie sayeth that good man as it is contrarie both to God and nature so hath it not bene seene or heard of in the memorie of the heathen That wicked king Herode as it is recorded by the holy Euangelistes Mathewe and Marke voluntarilie promised and that with an oath to giue the dauncing daughter of Herodias his harlot whatsoeuer shee should demaunde As this vnaduised oath proceeding of vaine pleasure and delight vppon the wicked demaunde of that Damosell wrought much griefe of minde in the king so was it the cause of the sudden dispatche and murther of that iust man Iohn the Baptist And although it may truelie be said that Herode was not bounde by his oath to haue accomplished so foule and wicked a deede yet can it not bee denied but that the same was a rashe and inconsiderate oath and so an offence against the Maiestie of Almightie God And what difference is there I pray you betweene the oath of Herode and that which nowe we haue in question the one being to performe or graunt whatsoeuer should be required and the other to aunswere to all questions that shal be demaunded since there may be as vnlawfull and as vnhonest questions ministred as vngodlie requestes made or desired Againe it would not be forgotten that in all the volume the sacred scriptures to my remembrance there is no one president or example to bee shewed of any such generall oath taken by any godlie man in priuate or exacted by any Magistrate in publique neither yet any rule lawe or commaundement for the same But against this our last assertion may happilie bee alleadged by some fauourer of this foule abuse the manner of triall by adjuration of the suspected wife that is the law of jelousie The inquisition and expiation of man-slaughter where the authour is vnknowen and the examination of Achan all which neuerthelesse make nothing for these generall oathes or those enjoyned ex officio as by the consideration of the lawes and historie it selfe shall easilie appeare For as concerning the lawe of jelousie although the wife were to be tried by oath and adjuration in that manner and with those circumstances as is there prescribed either to satisfie the restlesse head of her jelous husbande if shee were guyltlesse or to receyue by the wonderfull workinge of that accursed water if shee were saultie condigne punishment for her heynous offence both of perjurie and adulterie yet is it verie manifest in this case that the wife is not sommoned or cited by the Priest or Magistrate ex officio but brought vnto him by her accusing husband who vpon offence conceyued offring vp his complaint and thervpon the woman is called for and put to her purgation well knowing her accusor and hauinge perfect notice before shee sweare of the crime objected Moreouer who is so simple that seeth not howe weake an argument or conclusion this were God hath appointed an oath to be taken by the wife in this especiall and singular case of jelousie for the satisfaction of the suspitious minde of the husband Ergo euery Iudge Ecclesiasticall to satisfie his jelous suspition or imagination of any crime may appose by oath and compell men to their purgation For by as good reason the Ordinarie or Iudge