7. 2. 3. Ed. 6. cap. 13. statutes for tithes do now stint this strife and makes both cases to be Ecclesiasticall Vpon 5 14. H. 4. 17. corne carried away whereupon it comes to be tried betwixt two Parsons of Churches who hath right to the tithes this triall belongeth to the spirituall Court and is not vpon action of trespasse to be brought to the Common law And so it was adiudged albeit that the defendant there said that his Parsonage was then in lease But if they 6 39. Ed. 3. 23. 5. H. 5. 10. had ioyned issue whether the place whence the sheaues were taken were in the one Parish or the other then it should haue bene tried at the Common law because 7 Brooke tit Iurisdict the bounds of a Parish shall be tried by the Countrey as is there said Yet in a litle Treatise 8 An answere to a letter cap. 1. printed by Tho. Godfrey circa 26. H. 8. printed by Thomas Godfrey in K. Henrie the eights time it is testified that it hath bene holden in times past c. that the diuision and distinction of parish from parish is a thing so meere spirituall that no man may doe it but the Clergie which asseueration though he disallow if the Clergie claime it by any immediate power giuen them from God yet saith he of these and of diuers other things it is no doubt but they haue holden plea in times past rather by a custome and by a sufferance of princes then for that they be meere spirituall or that they of the Clergie had authoritie so to do by any immediate power of the law of God So that he alloweth diuision and distinction of parishes to haue bene of olde of ecclesiasticall conusance though to be deriued from the kings prerogotiue royall And it 1 Prou. constit aeternae sanctio de poenis ibi Lindwood verb. limitibus paro chiarum appeareth by a constitution prouinciall made in a Synode at Lambhith holden vnder Boniface then Archbishop of Canterburie in the yeere of Christ 1260 that the Clergie then vndoubtedly held and so practiced touching limites parochiarum that they meerely belonged to the court ecclesiasticall And Lindwood comming 200 yeeres or thereabout after him in his Commentaries or Glosses therupon maketh no doubt of it but onely quoteth Canon law for it If a Parson grant to 2 M. 8. Edw. 4. fol. 13. me by deed all the tithes of his benefice and yet afterward he sueth me in a Court Christian for the tithes of mine owne landes whereupon I bring mine action of couenant in the Temporall Court neuerthelesse I shall not haue a prohibition because I may plead that matter in barre in the Ecolesiasticall court Danbie and Chok But if a rent reserued vpon a lease of tithes or offerings be 3 44. Ed. 3. 32. sued for in a Spirituall court there lieth a prohibition for this is a Lay rent and so Bracton 4 Lib. 5. ca. 16. holdeth in the place before alleged agreeable to the statute of Articuli Cleri It is holden 5 Regist. fol. 38. that if a Patron hauing an Indenture to be quit of certeine tithes be sued in a Court Christian for those tithes hee shall haue a prohibition But aske whether this precedent of the Register notwithstanding hee may not haue a consultation by the opinion of Danbie and Chok afore recited and the rather in this case then in the former by how much it is more to be presumed to be a Symoniacall compact against him that is Patron For if it be not Symoniacall he may plead this couenant in barre in a Court ecclesiasticall as well as in the former case The competencie of the Court for suite of tithes dependeth also much vpon the consideration of the parties that contend for them For 6 38. Edw. 3. 6. 31. H. 6. 11. 7 in an action of trespasse brought at the Common law the defendant said that the corne whereof the plaintife complaineth was growing in D. which is parcell of M. where he is Parson and thereby he claimeth And because in the pleadings they were both named Parsons the opinion of the Court was that it was out of their iurisdiction In another 7 Hill 7. H. 4. fol. 35. per quosdam libros 102. per alios action of trespasse brought against a Lay man that claimed by lease from another Parson notwithstanding that by M. 44. Ed. 3. it was alleged that the Kings Bench in such case shall haue iurisdiction because it is betweene a Lay man and a Parson and that by Articuli Cleri by the contract transcunt decimae in catalla yet because it was of tithes which they might reconer in Court Christian Gascoigne held that the Temporall court ought to be out of iurisdiction for said he though it had bin so done afore yet it shall not be done so by vs here And of the same opinion was Moile in another like action of trespasse that 1 6. Ed. 4. 3. betweene a Parson and a Fermer of another Parson action for tithes lies in a Spirituall court because the Fermer claimes the tithes as due to himselfe during his terme which none gainsaid But vpon the former of these two last cases Brooke 2 Brooke tit Iurisdict 82. doth thus collect that it thereby appeareth cleerely that vpon contention for tithes betweene a Parson a Lay seruant of another Parson the Spirituall court shall haue iurisdiction For saith he the seruant doth claime to the vse of his Maister and not to his owne vse vpon any Lay contract Yet how this collection may stand together with other iudgements else-where reported to be giuen may mooue some doubt For in 3 31. H. 6. 11. 1. H. 6. 5. an action of trespasse brought by a Parson against the seruant of another Parson the seruant iustified for tithes of his Maister and thereupon demanded iudgement whether that Court would holde plea thereof and it was not allowed because the said defendant was a Lay man Likewise 4 6. Edw. 4. 3. it an action of trespasse brought by a Vicar for corne taken by the seruant of another Parson that claimed them as tithes of his Master and the plaintife claimed them as tithes due to his Vicarage it was adiudged by three that the Court temporall had iurisdiction because the plaintife had none action against the seruant in a Court spirituall at least as is there affirmed Markham seemeth to be of opinion that if any 5 38. H. 6. 19. part of right of tithes do come in debate betweene two Patrons that there the court Ecclesiasticall can not holde plea. And if 6 25. H. 8. vt refert Brooke tit Iurisdict nu 95. the Lord of a Mannour claime tithes of certeine landes in D. to finde a Chapleine or Curate in D. therewith and the Parishioners there claime those tithes likewise for the selfe same end It was deliuered for law that
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
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
Let vs see then whether they retained Accusation as the onely lawfull course It is true 1 Mat. 27. V. 12. Luke 23. V. 2. three of the Euangelists doe report that the chiefe Priests and Elders accused him before Pilate and 2 Mark 15. V. 3. as one of them saith of many things as 3 Luk. 23. V. 10. another of them saith they accused him before Herod vehemently Yet whoso will attentiuely way and consider of that historie shal well perceiue that our Sauiour was condemned afore by the Eldership and that these imputations of crimes against him before Pilate and Herode called there Accusing was nothing else but to approoue vnto them the iustice of the sentence formerly giuen by the Sanedrin or great Councill vpon him to the intent that they might obteine a decree for his executing at Pilates or at Herodes handes For albeit the Iewes after they were conquered by Pompeius Magnus had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their owne lawes ordinances and ceremonies left vnto them yet had they not iuâ—… gladij the power of life and death in them and so they signifie vnto Pilate when he was willing to haue shaken them off and to haue had no dealing at all in that action For when he saide 4 Ioh. 19. V. 31. take ye him and iudge him after your owne lawe then the Iewes saide vnto him It is not lawfull for vs to put any man to death And Pilates decree was nothing else but that it shouldbe 5 Luk. 23. V. 24. as they required What that was two other Euangelistes doe expresse viz. that he might be 6 Mat. 27. V. 23. Iohn 19. V. 16. deliuered vnto them to be crucified Lo whereunto his decree tended vnto Christs execution but not to condemnation for he had afore washed his handes and pronounced Iesus innocent For proofe that he was first condemned by the Eldership and then execution only sought for by Pilates authoritie it appeareth in the 26. chapter of 7 Vers. 65. 66. S. Matthew thus behold nowe ye haue heard his blasphemie what thinke ye they answered and said he is worthie to die And this Council was holden ouernight immediatly after his apprehension This action Saint Marke sheweth plainely to haue bin his condemnation They 1 Mar. 14. V. 64. all condemned him saith he to be worthy of death Thus hauing condemned him when 2 Mat. 27. V. 1. 2 the morning was come they helde a Councill againe to put him to death and thereupon ledde him bounde to Pilate the gouernour to procure a decree for his execution For in the next verse after it is directly said 3 Ibid. V. 3. thus then when Iudas c. sawe that he was condemned he repented himselfe c. which was afore his appearance before Pilate and afore he had dealt with him at all What then was the course whereby the great CouÌ„cill proceeded with him not by Accusation made by any other then themselues but vpon witnesses though false by them suborned and vpon pretence of his owne coÌ„fession 4 Mat. 26. V. 59 60. They sought false witnesses c. at the last came two false witnesses c. a litle after what 5 Ibid. V. 65. haue we more neede of witnesses behold now ye haue heard his blasphemie And S. Luke 6 Luk. 22. V. vlt. thus then said they what neede we any further witnesses for we haue heard it of his owne mouth Whereby it is made manifest that albeit the Priestes and other Elders sought by all meanes possible outwardly to approue their proceeding against Christ vnto Pilate and the people yet did they neuer seeke or require any third person to preferre vp Accusation against him and therefore a course of proceeding not of necessity to be obserued by Gods law as they al then conceiued vnderstood it Likewise when the first martyr S. Steuen was proceeded with by the same Councill Eldership residing at Ierusalem none accuser but 7 Act. 6. V. 11. 13 witnesses only were vsed For though the Libertines CyreniaÌ„s vpoÌ„ spite toward SteueÌ„ did suborne the witnesses yet did they not appeare themselues openly in the action as Accusers Neuerthelesse it bare the shew at first of a 8 Ibid. V. 15. due and Iudicial proceeding in Councill howsoeuer the execution of him after was done without iudgement giuen and 9 Act. 7. V. 57 58 59. by tumult of the people Nowe least any man should surmise that this was but a corrupt custome crept into those later times we will therfore looke something higher what was done in former ages In the proceeding against Naboth though it was a most wicked iudgement grounded vpon periury and subornation yet we may 10 1. Reg. cap. 21. V. 9 10 11 12 13. see the plot was so laid as it might seeme to cary apreteÌ„ce of a due Iudiciall course whereupon may be truely gathered something touching the maner of proceeding then vsed For in a solemne fast when Naboth sate Iudicially with the rest of the Elders and chiefe of the people vpon the onely witnessing of two wicked men in his presence that he blasphemed God and the king Naboth was condemned to be stoned The matter for which I note it is this that the processe was without any Accuser or party For there are named onely the witnesses the elders and gouernours Naboth the party condemned By which together with the historie of the adulteresse 1 Ioh. 8. cap. 10. mentioned in the Gospel being conferred with 2 Deut. 17. Deuteronomie I do gather that ostentimes in their Iudiciall proceedings the Iewes had none other persons that any way dealt but witnesses Iudges and the party against whom they proceeded For in the Gospel albeit those that told Christ of the womans adultery are 3 Ioh. 8. V. 10. called Accusers in these wordes Where be those thine accusers yet such of 4 Verse 7. them as were without sinne were willed by him to cast the first stone at her Alluding therein to that lawe 5 Deut. 17. V. 7. that the hands of the witnesses shal be first vpon an offendour condemned to kill him So that there were none other Accusers but the witnesses This is more plainely proued out of the same booke 6 Deut. ca. 19. V. 15 16 17 18 19. afterwardes For where it is saide that one witnesse shall not rise against a man for any trespasse or for any sinne or for any fault that he offendeth in but in the mouth of two or three witnesses shall the matter be established it is foorthwith added thus If a false witnesse rise vp against a man to accuse him of trespasse then both the men which striue together shall stand before the Lord euen before the Priests and the Iudges which shall be in those dayes and the Iudges shall make diligent inquisition and if the witnesse be found false and hath giuen false witnesse against his brother
against the parties examined and therefore to be tendered more then ex mero officio In matters that may induce dammage to him that sweareth there be sundrie examples at the Common lawe one or two may suffice If 2 T. 25. Ed. 3. fol. 44. a woman couertbaron being to acknowledge a fine it be doubted whether she be 21. yeeres of age or no she shall be examined vpon her oathe In an 3 P. 3. Hen. 6. 38. action of detinue of goods supposed to be deliuered in Fleetstreete the Plaintife was examined where they were deliuered An 4 H. 3. H. 6. 30. obligation bare date in the Countie of Lincolne and a Scriueners name was put to it that remained in London hereupon the Plaintife was examined where the obligation was made Besides the dammage hereof the circumstances of this might be such as might haue vrged him to discouer perhaps a forgerie It is a commō practise in this land straitly to examine persons holden suspected of some crime or offence and to vrge their answers or else the Magistrate will and must needes holde them greatly violently to be suspected litle lesse then conuicted If an vnlikely person but suspected at large be found in a priuie search or stayed as he passeth and be brought before a Iustice of peace or higher Officer is he not straitly thereupon to be examined of his abilitie course of life trade and place of abode c. which may importe Roguerie that is both criminall and very penall to him if he be such an one in deede and shall choose rather to endure the penaltie of lawe then to lye before God and his Magistrate If to this it be answered that such examination is without oath I replye that this is but as it happeneth but admit it so be yet the matter is hereby nothing holpen For as to this purpose of being vrged to discouer him selfe which these men call accusing in a matter criminall penall it comes all to one passe because he must either holde his peace altogether or confesse the truth plainly both which may bring him to punishment or else he must lie whereby he grieuously offendeth God though not in so high degree indeede as in periurie neuerthelesse this bond of not saying vntruely before a Magistrate must needes be counted a kinde of causatiue vrging of a man that hath any conscience to discouer matter of crime against himselfe if he be guiltie in deede of that which is asked of him If a Sherife Stewarde of Liberties Reeue Bedell of Strayes and wayues rentgatherer sheepe-Reeue Baylife Baylife of husbandry or other accountant to the Prince or any great Lorde be vrged by their Auditour to giue vp their account vpon their oathes as is vsually done doeth not this in case they haue done negligently or deceitfully tend to bewray or if ye wil accuse them selues in a matter ignominious to themselues and in it selfe criminall The Treatisour himselfe though he bend most of his ordinance against this point yet when he had more exactly a little waded into and weyed the matter seemeth but onely to finde fault with sifting generally by oath of all mens thoughts words and deedes and especially sayth he in another place in matters of life and death which his issues if he will not waiue and relinquish there is none I thinke in this Realme that will impugne that his assertion either by colour of lawe or by rigour of practise For euen at the common lawe oathes in matters criminall and penall to the parties bee oftentimes necessarily to bee taken when they are enioyned For if 1 Stanford Pleas of the Crowne li. 3. ca. 14. a man sue an appeale of murder against another who will bee tryed by battaile the defender that is appealed must before the battaile holding his aduersarie by the hand solemnely sweare thus Heare this you whome I holde by the hand who call your selfe by such a name I haue not feloniously murdered your father c. so helpe mee God and all Saints Of Oathes ministred at the Common lawe tending to the discouerie of matter criminall and penall to the partie himselfe I finde these examples One 1 M. 34. Ed. 3. fol. 3. sworne of a Iurie did after departe from his fellowes In the meane time an other was sworne in his roome But when the first returned hee was by the Iudges ex officio examined vpon his booke oathe whether hee had talked with the defendant or beene in his company since he was sworne This if he had confessedit as it is an offence so had it beene very penall vnto him Neuerthelesse for his apparant fault of departure hee was committed and fined In an action 2 T. 7. H. 4. fol. 19 of Formedon the tenant of the land was supposed to confesse the action of the demandant by couin and was thereupon examined by the Iudges and the couin being thereby founde it was decreed there should be no iudgement and that he should be punished by their discretion A 3 P. 9. H. 5. 1. woman brought an appeale for the death of her husband but as it was supposed by another name then she had in very deede vpon which couin she should haue beene fined and thereupon she was examined A 4 H. 35. H. 6. Fitzh Abridgem tit examinat nu 17. Iurie after they were gone together were supposed to haue receiued a letter on the behalfe of the defendant which in law is said to be a grieuous fault and it is to be grieuously fined yet all the Iurours were thereupon examined vpon their oathes A 5 M. 35. H. 6. 11. Sherife returned that certaine witnesses who should haue appeared were dead whereof it was desired he might be examined because the returne was razed and two of the witnesses were saide to be aliue whereof one was then in the Hall and had his remaining in the Countrey Whereupon the Sherife was examined which Prisot enformed and hee deposed that the returne was made by a Clearke and neither by him nor by his Vnder-sherife and that he knew two of the witnesses were liuing Now if he could not with a good conscience thus haue cleared himselfe vpon his oathe had not this crime of razure and false returne beene verie penall and shamefull vnto him being so directly contrary to honestie and to his oath taken at the entrance into his office 1 H. 10. Ed. 4. 16. And it was at another time the opinion of the whole court if the parties in a cause had then had a day in courte that they might haue examined them touching their couin and lewd practise tending to defeate another man of his lawfull action They haue a certaine custome in London and it is allowed for good by the Common lawe of the Realme 2 Brooke tit ley gager nu 77. That if the defendant thinke the plaintife haue made a false declaration in an action of debt he may desire to haue the
2 Ordonnance du France premier an 1539. art 38. the parties are bounde by oathe to affirme touching the factes conteined in their billes and additions and by their answere vpon oathe vnto Interrogatories to confesse those which be within their knowledge In other matters criminall it is reported to be the 3 Marcus decisione 674. custome of France for the partie defendant onely to make fayth when they are obiected and hee is thereupon to answere whether he haue committed them or not but hee is not to take a corporall oathe betwixt which two before God there is no difference But by the 4 Grand Coustuâ—…er entre les coustumes de Normandie customes of Normandie I finde that the appealed of murther or such like when it is to bee tried by battaile must vpon his oathe holding his aduersarie by the hand solemnelie sweare whether hee hath committed such facte or no in the very selfe same wordes and maner as Stanford afore alleadged affirmeth to bee the lawe of England in like case of Appeale Generally y t to giue 5 Bâ—…tol in l. inter omnes §. reâ—… fl de furtis an oath to the partie conueÌ„ted in a cause criminall to tell the trueth is the present vsuall practise of most nations abroad and 1 August ad Angel de maleficijs in ver comparuerunt Bertrand consil 321. nu 3. li. 3. in prima parte Marsil in l. quaestio habeÌ„dae nu 72. ff de quaestionibus Conradus in Practica fol. 280. Go. mez ca. 1. Delictorum nu 65. that the common opinion of writers in these two lawes is that it may bee so giuen euen by the lawe Ciuill which is their common lawe doeth appeare by the places of Authors here quoted in the margent Amongst nations of farre elder times in most flourishing common weales we finde oathes in all causes whether Ciuillie or Criminallie mooued to haue bene taken both by the plaintifes and also by the defendants Amongst the 2 Ex Polluce Sigonius li 4. ca. 4. de republica Atheniensi Suidas in verbo Athenians both parties tooke oathes and besides that did lay downe a certaine summe of money to be forfeited by him that should bee ouerthrowen The Plaintifes or Accusers oath was that he would obiect nothing but true crimes and matters This was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the defendant sware that he would deale and answere plainlie not fraudulently and cautelously and this was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 When Aeschines accused Timarchus of a fowle crime supposed to be done vpon him by one 3 Aeschines contra Timarchum pag. 7. Graece Misgolas he saieth thus that if Misgolas being called and vrged to beare witnesse shall denie it to the intent to gratifie Timarchus hee shall thereby doe him no good because Aeschines can prooue it by witnesses but shall only for sweare himselfe and withall shew how cunningly hee can couer such villanies Whereby appeareth that in that common wealth oaths might bee giuen in matters criminall tending to the opening of their owne turpitude as well as of other mens Radamanthus for his seuere and strict course of Iustice holden was fained by Poets like as Aeacus and Minos also were to be a Iudge in another world ouer ghosts deceassed Of him 4 Plato lib. 12. de legibus Plato thus writeth to our purpose I am perswaded saieth he that Radamanthus deserued to bee had in great admiration for he perceiued how in those dayes all men confessed that there were gods which had regard ouer humane actions therefore he thought best to commit deciding of matters in iudgement vnto gods and not vnto men So that by a very plaine and easie course hee ended all matters of iudgement for hee exacting an oath in euery cause in controuersie vsed thereby no lesse speedily then safely to giue his iudgements 5 Libr. 3. Polit. c. 10. Aristotle also Plato his scholer testifieth the like that in olde times supposed offenders that were called into question were some of them proceeded with vpoÌ„ their oaths other without and their oath was performed by holding vp of a scepter The historie of Glaucus 1 Herodotus in Etato lib. 6. an auncient Spartan doeth giue plaine euidence that amongst that most iust people of Greece a man that would denie a thing to haue bene left with him in deposito that is in trust to keepe was to take his oathe whether it was so left with him or not and consequentlie was to sweare of matter tending either to periurie or to his dishonestie and shame hauing once vniustly denied it afore to the defeating of his right who had trusted him For the said Glaucus his whole house and posteritie was rooted out by Gods vengeance onely for that a while hee denied it and had once in purpose to haue forsworne the money which was in deede left with him vpon trust and thereupon consulted with the Oracle at Delphos whether he had best forsweare himselfe or deliuer the money The vse of an oath in matters criminall amongst the people of Greece may be prooued to be most ancient by that purgation which king Agamemnon made to cleare himselfe that he had not liued incontinently with Hippodamia this his purgation is recorded to haue bene made in this forme 2 Dictyâ—… Cretensis lib. 2. belli Troiani Hee commanded two Sergeants to bring the hoste or sacrifice which being by two lifted vp from the earth Agamemnon drewe out his sworde and therewith diuided it into two partes and caused it in the presence of all to be laied downe then holding in his hand the bloudie sworde hee went betwixt the two partes of the sacrifice and when hee was passed through he then sware that he had neuer polluted Hippodamia by incontinencie Homer 3 Homer lib. 19. Iliad v. 257. mentioneth that the same king in another forme cleared himselfe that he had not violated Briseis For at that purgation a Boare was offered vp by Talthibius then Agamemnon cut off some of the Boares bristles and offered them to Iupiter swearing withall that he had not violated Briseis and the Boare was after tumbled into the sea For clearing men from suspicion of all lewd and sinister dealing not onely those which came to striue 4 Pausanias in Eliacis at the solemne exercises and games of Olympus but their parents also and brethren were sworne ouer the entrailes of a sacrificed hogge that they had vsed no fraude or deceit whatsoeuer nor done otherwise then the ordinnances for Olympus did permit So much then for the vse thereof among the old Graecians In the old Romane common 1 Cato de re rust ca. 144. 145. wealth we read that euen priuate housholders did lawfully impose such an oathe vpon their labourers that gathered Oliues videlicet that neither themselues nor yet any other by their couin or fraude had stollen or embezelled away either oyle or oliues which oathe if they
sell his lande but not the day before albeit hee haue receiued my money that the wrecke of the sea albeit the owner of the goods bee certainely knowen shall bee confiscated and belong to the Prince that a straie proclaimed according to lawe after a yeere and a day shall belong to the lord of the Mannour where it was taken vp with infinite such like Therefore it is no good nor safe ground that the Innouatours doe stand vpon when as being pressed to take such oath according to the lawes of the Realme they alleage that in conscience they may not doe it because they finde no direct warrant for it by Scripture whereupon to staie their consciences For if it were graunted vnto them that there bee no commaundements no examples no footesteppes or traces thereof in Scriptures yet if it be not by them prohibited or condemned the generall obedience of subiects will tie them thereunto But I purpose also here to shew the lawfulnesse of it euen positiuely out of the worde of God First declaring that Magistrates may laie oathes vpon their Subiectes which are necessarilie by them to be taken Then that they may be tendered and taken in causes criminall and penall to the parties themselues and lastly I minde in the next chapter God willing to answere the obiections that I finde brought to the contrarie That when an oathe is duely imposed there is a necessitie enioyned the subiect to take it doeth appeare by the commandement of God himselfe Thoushalt feare the Lord thy God and serue him and shalt sweare by his name which words being dispositiue not onely to the maner of the oath viz. by Godsname but also to the action it selfe offwearing doth argue euidently that there be oaths as well necessarie as there be voluntarie The like commandement is giuen by the Lord in the prophet 1 Iere. 4. v. 2. Ieremie O Israel thoushalt sweare The Lord liueth in trueth in iudgement and in righteousnesse Wherein there is both a commandement of that action and an instruction in what sorte an oathe is to be taken and with what necessarie adiuncts In the charge that 1 Iosh. 23. v. 2. Iosua gaue to all the Magistrates of Israel viz. to their Elders to their heads their Iudges and their Officers this amongst other things is conteined that they shall not make mention of 2 Ver. 7. the Gods of other nations nor shal cause to sweare by them And therefore Magistrates haue authoritie to cause those that be vnder them to sweare and to take oaths For an example of such charge giuen wee haue that of king Saul who not onely 3 1. Sam. 14. v. 24 28. charged the people with an oathe but made them vowe with a curse not to eate any food that day till night Therefore one of them reported thus to Ionathan Sauls sonne that his Father had made the people to sweare The most wise king Salomon when he meant for a punishment to confine and imprison Shimei within the compasse of Ierusalem for his reuilings of king Dauid telleth what hee did 4 1. Reg. 2. v. 42. 43. vnto him Did I not make thee saieth he to sweare by the Lord and protested vnto thee saying c. why then hast thou not kept the oath of the Lord and the commandement wherewith I charged thee And yet this oath and promise was without excepting of any cause though most important to him and most necessary that might happen to occasion him to goe out of the Citie and therefore did bring apparant danger with it to entangle him as deepe as his life And albeit the cause which he had of going afterward out of the Citie might seeme something reasonable in that he 5 Ibid. v. 39. 40. went foorth but to fetch home two of his seruants that had runne away from him yet did this breache of his oathe and of the kings adiuration to him wherewith hee had charged him most iustlie cost Shimei his life So king Saul 6 1. Sam. 24. v. 22. 23. vrged Dauid to sweare vnto him that he would not destroy his posteritie after him For a priuate offence and iniurie only betweene neighbour and neighbour king Salomon testifieth that a necessarie oath of purgation may be required by the 7 1. Reg. ca. 8. v. 31. 32. complainant When a man shall trespasse against his neighbour and he lay vpon him an oathe to cause him to sweare and the swearer shall come before thine altar in this house then heare O Lorde in heauen and do and iudge thy seruants that thou condemne the wicked to bring his way vpon his owne head and iustifie the righteous according to his righteousnes Where we see that a priuate person vpon a supposed offence and trespasse agaynst him may vrge his aduersarie vnto a necessarie oath albeit the matter be criminall and penall to him if either he shal refuse it or be afterwards otherwise conuicted How much more then may a Magistrate vrge it for the publike interest especially for an offence supposed to be done against the Church or Commonwealth King Iosias also meaning to reforme religion and to restore the true worship of God greatly then decayed did make a 1 2. Chro. 34. v. 31. 32. couenant and vowe and caused all that were found in Ierusalem and Beniamin to stand to it So 2 Ezra ca. 10. v. 5. Ezra the Scribe being also a Magistrate caused the chiefe Priestes the Leuites and all Israel to sweare that they would doe according to this worde which oathe that by vertue of his office it was imposed necessarilie vpon them and not onely voluntarilie by them taken wee haue good testimonie in the wordes 3 Ibid. v. 4. next going before Rise saieth Sechaniah vnto Ez-ra for this matter belongeth to thee and we will be with thee or assist thee confirmare bee thou resolute and effect it And likewise out of the booke of 4 1. Esdr. Apocr ca. 8. v. 92. 93. Esdras Apocryphall where that storie is reported for it is there sayd thus To thee it doeth appertaine and we are with thee to make thee strong whereupon is added And 5 Ibid. v. 94. 95. hee made them sweare By which wee may gather that if any of them would not haue sworne vpon his commaundement they should haue bene compelled thereunto by some Ciuill constraint When the richer Iewes had receiued the lands of the poorer sorte to Morgage and they were forfeited vnto them yea and their very sonnes and daughters were drawen into bondage for satisfaction of such things as they had borowed for their necessarie sustentation 6 Nehe. 5. v. 11. 12. 13. Nehemias caused the Priests to sweare to restore these againe and to forgiue the hundreth part of the very principall due vnto them So by the premisses we see that Magistrates may exact oaths of those that be vnder them which ought not to be refused The Treatisour himselfe will
is meete that such being probably touched that witnesse instar omnium be vsed and called on by them who knoweth all things before whom the whole world stands as a 1 Apocal. 4. v. 6. sea of pure Christall Some examples of such crimes are shewed in the eleuenth Chapter by the Scriptures And what shall witnesses neede if the partie himselfe will not denie it Or what if the witnesses be not meete to be knowen at first least the partie vpon his oath or otherwise discouer no more when he once knoweth them then he supposeth by them can be deposed Or what if at the parties first conuenting no witnesses be knowen that can testifie but doe come afterward vnto the Iudges knowledge Touching hidden crimes if they be simply hidden and in such sorte as is meant by that place of S. Paul and by the like rules in lawe it is very true that they are not to bee enquired after by any Magistrate neither is any man bound to reueale such Therefore it may not bee asked of any man as was done in Popish shrift what faults and sinnes hee knoweth by himselfe Such be the counsels and secrete thoughts of mens hearts spoken of by Saint Paul in that place and all actions also not come abroade at all nor manifested either by fame or by other good presumptions or euidences For before they be at least so manifested it is not of any possibilitie to make enquirie or question after particular crimes when they bee not so much as supposed to be done Concerning which crimes what the law Ecclesiasticall and practise is I referre you to the ninth chapter of this third part But if they shall be once so manifested abroad as before is declared then is not the fault simplie hidden but in part is manifested and brought to light and therefore is it fit and conuenient that the partie be either cleared of it or corrected for it Besides that place of S. Paul is not meant of any Iudiciall proceedings but of priuate rash and vncharitable iudging of our brother in the worst part without any iust ground thereof as if wee would take vpon vs Gods owne office and would iudge the inward cogitations of another mans heart Such peruerse iudging our Sauiour Christ also 1 Matth. 7. v. 1. Rom. 2. v. 1. condemneth in the Gospell But it pertaineth nothing vnto such enquirie by oath as the Magistrate hath good enducements and presumptions for to enter into Another sorte no lesse pernicious then the former are those who will pretend not to refuse to take an oath in a cause criminall but yet they will doe it with this limitation and protestation that they entend not thereby to be bound either to accuse themselues or their brethren By accusation meaning the reuealing of any thing for which they or their brethren may be troubled or punished Vpon what ground other then the generall reasons of the rest and of the Iesuites as if it were against nature and charitie c. these should build this opinion I for my part cannot wel coniecture But it sorteth to this passe that seeing we are all brethren and members one of another therefore it shall not be lawful for the Magistrate to punish any sinne or transgression sauing where himselfe doeth take the offender with the maner yea and scarse then too For they will hardly I beleeue allowe that the same man shall be accuser witnesse and Iudge For they conceiue howbeit erroneouslie the Iudge who proceedeth of office to be an accuser This plainlie followeth of it because no sinne may lawfully be punished but where the partie is conuicted There can be none other conuiction but either by the parties owne confession or vpon depositions of witnesses So that if no Christian be bound nor ought before a Magistrate to reueale either his owne or his brothers offences then doeth it followe that crimes shall neuer be punished till the offenders themselues being moued in conscience if happily they shall euen then by these men be suffered to accuse or discouer themselues shal wilfully come in and desire for Gods sake to be hanged vp or otherwise punished as the qualitie of their offence leadeth Amongst the heathens I reade of no nation but they vsed and had oathes in great estimation and necessarie practise sauing 1 Alex. ab Alex. Genial Dierum li. 5. cap. 10. the foolish Phrygians who onely condemned them And amongst Christians the olde heretikes Manichees of later times the Anabaptistes and now lastly these fellowes who albeit not in plaine wordes yet in very deede doe vpon the matter take away all oathes in matters criminall and consequently all both Ciuill and Ecclesiasticall punishments and censures from among men For 2 Cyprian in exposit Symboli Manes the olde heretique taught that it was not lawfull for Christians to sweare at all The third sort of opinions being deliuered by diuers of the more learned sorte of the Innouatours are of such as holde that they may reueale both their owne and their brothers crimes and offences to remoue euill from the land as they speake when they are duely charged thereunto by oathe But some actions there be which they beleeue to be well and lawfully done and yet by lawe or iniquitie of the time they holde to be such as may bring trouble and punishment vpon them And those they saye they are bound in conscience not to declare at all This opinion for y e first part thereof is directly cōtrarie to the next afore precedent But who shall iudge whether such matters as they be enquired of ought to be accounted for faults and offenses and which being punished will remoue euill from the land or whether they be in deed and trueth good vertuous actions I greatly feare that these men wil not in this point be content to be ouer-ruled either by the lawes of the Realme or by the Magistrates Iudges that be interpreters of the lawes But no remedie an oathe they will not take till they shal be satisfied and resolued which they can make as long in doing as them selues lust that such actions be iustly and lawfully to be condemned for Crimes and offenses by Gods lawe So that this is nothing else then to permitte vnto euery priuate subiect the iudgement how farre in what causes and against whom he needeth to declare his knowledge of anymatter how expedient soeuer for her Maiestie and vnto the whole common-wealth it be to be knowen Is not this to put a sure buckler into the hands of Iesuites other traitors murderers felons and euery lewde companion to holde foorth against the lawfull examination of Magistrates touching themselues or their complices For if they neede not declare any thing by oathe much lesse will they haue conscience to doe it when they are not sworne which forbearing of the parties own oath in examination of crimes that may be capitall to him is alwayes obserued in this Realme Perhappes vnto this absurditie