Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	defendant_n	matter_n	plaintiff_n	1,393	5	10.0338	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A19394	An apologie for sundrie proceedings by iurisdiction ecclesiasticall, of late times by some chalenged, and also diuersly by them impugned By which apologie (in their seuerall due places) all the reasons and allegations set downe as well in a treatise, as in certaine notes (that goe from hand to hand) both against proceeding ex officio, and against oaths ministred to parties in causes criminall; are also examined and answered: vpon that occasion lately reuiewed, and much enlarged aboue the first priuate proiect, and now published, being diuided into three partes: the first part whereof chieflie sheweth what matters be incident to ecclesiasticall conisance; and so allowed by statutes and common law: the second treateth (for the most part) of the two wayes of proceeding in causes criminal ... the third concerneth oaths in generall ... Whereunto ... I haue presumed to adioine that right excellent and sound determination (concerning oaths) which was made by M. Lancelot Androvves ....; Apologie: of, and for sundrie proceedings by jurisdiction ecclesiasticall	Cosin, Richard, 1549?-1597.; Andrewes, Lancelot, 1555-1626. Quaestionis: nunquid per jus divinum, magistratui liceat, a reo jusjurandum exigere? & id, quatenus ac quousque liceat?.	1593 (1593)	STC 5822; ESTC S118523	485,763	578

amendment in me and by remouing the scandal which els might iustly be taken against me And by the Canon lawe as is else-where touched mitiùs agitur cum inquisito conuicto quàm cum accusato conuicto Seing then vpon conuiction by way of accusation the very ordinarie penaltie by law appointed is for the terrour of others imposed without any mitigation therfore the oath cannot so reasonably thereupon be exacted as it may vpō the Iudges proceedings by his meere office vnto a farre other more milde end for y e most part But as if those Doctors had absolutely denyed penances which be enioyned ex officio Iudicis to be any punishments at al because they are said to be medicinae he asketh whether penance although it be but standing in a sheete aswell as the standing on the Pillorie in respect of publike shame grieuous and odious to all men shall not bee accounted a punishment I answere that neither the law nor those Doctors in saying they be medicinae non poenae doe thereby deny absolutely as he reasoneth that they be punishments For this saying of the lawe is a Negatiue by comparison only which the Treatisor either would not or did not vnderstand to be none absolute denial and that penancies in deed be so we may learne by S. 1 August epistola 159. ad Marcellum Augustine speaking hereof in this maner quis non intelligit magis beneficium quàm supplicium nuncupandum vbi nec saeuiendi relaxatur audacia nec poenitendi salutaris medicina subtrahitur Standing on the Pillorie which as I take it by a word borrowed of the Graecians may be termed catamidtatio it was euen of ancient times aswell as at this day accounted an infamous punishment vnto the partie that endured it and is allowed for a good proofe of infamie by law but he that hath done publike penance is not in lawe to be accounted therfore infamous but rather to be a man amended and reformed and such as at whose conuersion the Angels in heauen doe reioyce and therefore his companie is not afterward to be shunned or auoyded by any discreete or moderate Christian as if he were still a man of steined credit or conuersation So that the great diuersitie of the endes whereunto these be referred doe make a very notable difference in the punishments themselues For in the one of thē the delinquent is propounded for a publike spectacle of shame reproch to be shunned of all men the other by these outward tokens of humilitie submission testifieth his inward sorow griefe for the sinne and as it were thereby craueth in pitie and compassion to be receiued againe into the Christian fellowship as a man by repentance fully reconciled againe vnto God and vnto his Church Hitherto in answere of his obiections made against some by-circumstances of such oath Against the oath it selfe the Treatisour bringeth some reasons some allegations frō lawyers some out of the lawes thēselues First he saith there is no Iustice in the proceeding at giuing such oath because there be not three in Iudgement viz. the plaintife the defendant and the Iudge and thereunto alledgeth Bracton But what if the maner of proceeding ex officio were vniust which in y e second part is shewed to be otherwise can this proue the ministring of an oath to the defendant in a Criminall cause to be vnlawfull For first proceeding ex officio may be euen where the matter is Ciuill or criminall howbeit but Ciuilly moued and there for the most part none oath is vsed Secondly it may be when none oath touching any crime is to be ministred to the defendant at all Lastly an oath in a cause criminall may sometimes be tendered where the proceeding is not of office at all but hauing all these three persons in iudgement and that not by implication or representatiuely only but euen formally and therefore in all those respects his argument doth not follow yet for further answere I must also tell him that in all due proceeding of office there be three persons in iudgement For as hath bene said that which openeth way to such Enquirie doth represent and standeth in stead of a Plaintife for preferring vp of the matter Againe that an expressed and formall plaintife to preferre vp matter criminall is not alwayes required is 1 Cap. 15. 16. 2. part manifoldly shewed by often practises recorded in the word of God it selfe to the contrary He concludeth also against generall oathes and against extorting by oath of the ground and foundation of Inquisition from the partie conuented out of the saide little schedule of the Doctors From which conclusion albeit not following of those premisses we do not any way debarre him seeing no such practise is either allowed or I thinke in this Realme heard of and therefore he wrongeth all Ecclesiasticall courts the more who so often heapeth vp these vntrue and vnlikely imputations against them An other of his allegations is out of 1 Clar. in pract Crim. q. 3. Iulius Clarus to prooue forsooth by Canons and Canonists this kinde of oath to be a prophane and more then heathenish maner of Inquisition for such is the mildenesse of the mans spirit and contrary if he be not deceiued to the rules and Canons of the Antichristian Church of Rome which be more iust he saith or lesse vniust a great deale then such as haue taken vpon them to iudge by colour of the same for procedere saith Clarus ex officio mero est quando Iudex a seipso ex officio assumit informationes contra deliquentem contra eum procedit c. wherupon he gathereth that to proceede by Inquisition is not to make the partie by oath or examination to be his owne accuser but to receiue information and witnesses against him This which he thence collecteth of not compelling the partie defendant by oath to become his owne Accuser is true if it be as truely vnderstood though it be not inferred truely from that allegation for no man is by oath so compelled but rather by discouery of the whole trueth to cleare himselfe of the crime after he be as it were accused and brought into question by some of those lawfull meanes which open a way vnto speciall Enquirie Besides this allegation maketh nothing for proofe of the vnlawfulnesse of such oath after sufficient detection For Clarus in this place speaketh onely of the processe or enquirie informatiue grounded vpon some Clamosa insinuatio or scandall and not of any part of processe punitiue which followeth vpon the former at what time the oath of the partie is to be taken which thing the same Authour thorowout his whole booke most plainely sheweth if it had pleased the Treatisour to haue perused but a little more of it This therfore is a fallacie of not disputing ad idem besides Ignoratio Elenchi inciuile est nisitotalege perspecta iudicare The next of his allegations is out of

will vse no vaine cauillations and delayes or foorth of Iudgement as an oathe of alleageance or they are obligationis introductoria when the very oath worketh the bond in lawe for something afterward to be done But this bonde is only by the 5 Tot. tit ex de Iureiurando Canon and not by the Ciuill lawes sauing in one case that I can call to minde which is the 6 L. vt iurisiurādi ff de operis libertorum oathe of a man once a bondslaue and now set free called libertus that is made vnto his patron to performe some workes or other thing vnto him For in this case the very oathe is obligationis introductorium and maketh the freed man bound by that Law to performe it in vim turamenti Furthermore a promissorie oath whether taken in iudgement or out of iudgement is either necessarie as when it is imposed by the Magistrate vpon his subiect or it is voluntarie An oath assertorie being of chiefest vse and therefore most to be stood vpon and explaned is also either extraiudiciall or iudiciall and both these be either necessary or voluntarie The iudiciall necessarie oath Assertory is sometimes giuen to the defendant when there is formally another partie besides in iudgement sometimes when there is no such partie beside but the Iudge that proceedeth ex officio When there is a partie it is either iuramentum calumniae veritatis or purgationis but if there be no such partie beside it is either purgatorium tantum or partim purgatorium partim inquisitorium The Iudiciall and voluntarie oath is either suppletorium aestimatortum in litem or decisorium Which last is oftentimes confounded with iudiciale iuramentum without further addition by reason of the more frequent vse of it in Ciuill lawe courts in elder times when men durst trust one anothers conscience better then nowe generally they haue cause to doe The decisory oath is either delatum or relatum by the one of the parties that are in sute together Nowe I minde briefly and plainely without tying my selfe to any exact definitions to describe these vnto you with onely quotations of the Scripture where examples of them may be found as I conceiue it for auoyding of tediousnesse by particular rehearsall 1 Gen. 43. v. 3. 1. Sam. 25. v. 26. 1. Sā 26. v. 10 16. 1. Sam. 29. v. 6. 2. Sam. 4. v. 9. 2. Sam. 19. v. 7. Assertorie is when by oath any thing past or present is affirmed or denyed to be A 2 Gen. 24. v. 3. 9. Gen. 47. v. 31. Leuit. 5. v. 4. Num. 30. v. 3. 14. Iosh. 1. v 6. Iosh. 2. v. 12. Iosh. 2. v. 22. Iosh. 9. v. 15. 18. 19. 20. Iudg 15. v. 12. 1. Sam. 14. v. 45. 1. Sam. 28. v. 10. 2. Sam. 3. v 35. 2. Sam. 19. v. 13. 1. Reg. 1. v. 13. 17. Promissorie oath is when any thing is by oath promised to be done or not done In a Promissorie oath there is a double bond before God the one is that it is sinne if trueth be wanting and the other is that he is bound to doe hat which he promiseth But in an Assertorie oath there is no bond but onely this that the matter be true which is affirmed thereby or denyed The effect of a Promissorie oath is that he is bound to make that true which he hath sworne but if it were not in his power to doe it then there wanted in such oath iudgement and discretion except it were in his power to doe it when he swore but became impossible by some casuall euent after happening that could not be before thought on In which case neuerthelesse hee is bound to perfourme it as farre forth as lyeth any way in him so the oath be such which did binde as carying with it none impietie But if the promissorie oath be made touching such a thing as was in his power yet such as ought not to bee done either because it was in it selfe euill or is an hinderance or let of something that is good then in such an oath Iustice is wanting An 1 Gen. 21. v. 31. Gen. 26. v. 31. Iudg. 21. v. 1. 1. Sam. 19. v. 6. 1. Sā 20. v. 13. 17. 1. Sam. 30. v. 15. 2. Sam. 19. v. 23. 2. Sam. 21. v. 17. 1. Reg. 1. v. 29. 30. 51. 1. Reg. 2. v. 8. 23. 24. 2. Reg. 25. v. 24. 2. Chro. 15. v. 14. Nehe. 7. v. 18. Nehe. 10. v. 29. Ierem. 38. v. 16. Ierem. 40. v. 9. Hebr. 6. v. 16. 17. oathe promissorie and confirmatorie is when it is made for more full assurance of some act to be done or not to bee done A 2 1. Sam. 14. v. 24. 28. 1. Sā 24. v. 22. 23. 1. Reg. 2. v. 42. 43. Ezra 10. v. 5. Nehe. 5. v. 12. Iosh. 23. v. 7. In these wordes Nor cause to sweare by them necessarie oath generally whether there be two parties formally or the Iudge proceedeth ex officio is that which a Magistrate causeth those that be vnder his authoritie to take for some conuenient purpose and ende In law it is defined to be 3 Postilla in v. iureiur L. in bonae fidei C. de reb cred iureiur such as you neither may referre or put ouer to the other partie to take his oath to the contrarie nor yet may be refused by your selfe For 4 L. 11. § quita●…it ff de interrog act L. 11. de periurio ff de in litem iurando ibi ex necessitate if you doe you shall be holden as conuicted and the sute must goe against you This necessarie oath is tendered by the Iudge whensoeuer hee seeth cause in equitie to mooue him albeit no partie make petition and then it is called Nobile vel merum Iudicis officium or els it is tendered and ministered by him at the petition of a partie and then it is termed mercenarium Iudicis officium because thereby hee seemeth but as it were to serue his turne that maketh the petition The first of this necessarie sort where there bee formallie two parties is Iuramentum calumniae which is when one is vrged to sweare that hee moues a cause alledgeth or answereth some Iudiciall matter bona fide that is truely directly and not captiously and that he beleeues it to be true and thinkes he can indeede make proofe of it and that hee doeth it not to vexe his aduersary but to relieue himselfe and not of any purpose to delay the sute Necessarium iuramentum veritatis is 5 Mascard de probat vol. 1. pag. 18. nu 6. that which is ministred to witnesses and that also which is ministred to the partie who is to answere vnto Positions or Articles And that also is so called whereby the Iudge doeth interrogate and examine either of the parties or the witnesses to the intent to bee more fully instructed in the cause 1 1. Reg. 8. v. 31. luramentum

purgationis where there be such parties is when in a cause criminally mooued by some accuser or partie the Iudge vpon defect of sufficient proofe doeth tender to the defendant an oath to cleare himselfe This though it be established by the Canon yet of long time it hath bene in vse aswell in Ciuill or Temporall courts on the other side of the Sea as in Ecclesiasticall so that if the defendant shall refuse to take it in either he is holden pro confesso conuicto The other oath of purgation or clearing simply when there is no formall partie in iudgement besides the defendant is that which by reason of fame scandall vehement presumption or vpon some other of those meanes that as I haue shewed afore doe open a way to Enquirie ex officio the Iudge doeth giue vnto the defendant to his clearing of the very crime obiected without any meaning then to seeke further proofes of that crime after the defendant hath taken such oath The other oath necessarie being partly of 2 Leuit. 5. v. 1. Num. 5. v. 12. sic deinceps Iosh. 7. v. 19. 1. Sam. 14. v. 43. clearing and partly of further enquirie is that which as is next aforesayd is giuen to the defendant vpon criminall matter obiected and vpon the circumstances thereof yea oftentimes with purpose to make further proofe in case the defendant shall not confesse it or not so fully in materiall circumstances as the Iudge hath cause to thinke may by witnesses or otherwise be prooued Yet if he shall confesse so farre as is thought may bee prooued then according to the qualitie of such his answere hee is presently either proceeded with thereupon vnto a iudgement or else dismissed as cleared thereof by his oath The examples and other iustification hereof shall more largely God willing be shewed in their proper place hereafter For this is the oath that the Innouators doe so much condemne and exclaime against But nowe touching voluntarie Iudiciall oathes whereof Suppletorium is that which is tendered to the plaintife or defendant according to the qualitie of the cause in a ciuill matter for supply of proofe made semiplenè tantùm as happily by one singular witnes being without all iu●…t exce●…tion Iuramentum in litem or Aestimatorium is then 1 L. 1. cum l. sequ ff de in litem iurando giuen by the Iudge when the defendant doeth not restore the very thing that is in demaund in which respect he is to be condemned in the value thereof according to such rate as the plaintife is endamaged taking it vpon his oath yet so as the Iudge by equitie may taxe and moderate the quantitie of the summe which he may not exceede and also when the partie hath sworne the Iudge may defalke thereof as he seeth cause in equitie Decisorium iuramentum delatum is that which 2 Exod. 22. v. 11. 1. Reg. 8. v. 31. Hebr. 6. v. 16. either the one or the other of the parties first offereth vnto his aduersarie to take according to that hee affirmeth or standeth in perhaps vpon confidence of his good conscience or for want of better proofe So that if he to whom it is so deferred shall take such oath then must the matter be adiudged according to his oath as if the parties had so agreed the cause But if he shall refuse it and yet will not referre it that is will not put it ouer vnto his oath that first made the offer then shall hee be ouerthrowen in the cause So that to referre an oath is nothing els but to offer it backe to be decided by his oath according to his owne issue that first made the offer 3 L. iusiurandum 34. § ait Praetor ff eodem l. generaliter 12. § se liuramento C. d. But if vpon such referring it ouer backe againe he also that made the first offer will not take the oath then hee that so referred it ouer againe shall haue iudgement passe with him as if he himselfe had sworne when it was first offered him for maximae turpitudinis est nec delatum subire nec referre iuramentum Examples of these decisorie oathes there be also at the common lawe for 4 19. H. 6. 43. where the defendant desires that the plaintife may be examined or sworne this is peremptorie to the plaintife in this point and so is the wager of lawe ex parte defendentis By the custome of London if the defendant desire to haue the plaintife sweare to his declaration and hee doe it the defendant is thereupon condemned But this oathe decisorie at the 5 Iul. Clarus li. 5. § finali qu. 63. ciuil Law is neuer vsed in matters criminall except they be mooued ciuilly not criminally that is for the plaintifes priuate amends and satisfaction or else the cause be but of small value or the proceeding in such criminall cause criminally be referred and intended to no corporall but to a pecuniarie punishment or fine onely Thus farre for a generall vnderstanding of the nature of euery seuerall kinde of oathe CHAP. IIII. That the ceremonies vsed in taking and giuing corporall oathes with laying handes vpon the Bible or Testament and swearing by the contents of it are not vnlawfull THe first challenge nowe comming to be spoken of that is made by some of them against the ceremonie vsed through this Realme in all corporall oathes taken either in Temporall or in Ecclesiasticall Courts is the laying of our hands vpon a booke when we take the oathe For the better approbation hereof it is meete to consider the generall ende of it the particular vse of it and the generall practise of that or of the like ceremony reported both in Scripture and in other writers to haue bene vsed in such action The generall and chiefe ende of this or of any the like ceremony vsed in this action is to signifie thereby that we do then aduisedly attend and giue heede to the oath wherewith we are charged and that we do accept of it and bind ourselues in sort as it is giuen The vse of this in particular is to strike a more aduised feare reuerence into vs when wee consider the reuerence due to an oathe as it is described in that booke the curses there threatned against those that for sweare themselues or shall take the name of God vainely This vse of such corporall ceremonie in taking of an oathe is touched in the 1 L. 3. C. si minor se maiorem dixerit ciuil law out of which it is gathered that by touching and by corporall taking of it the oath is holden to be more inuiolable and the harder vpon any plea to be recalled The practise of corporall oathes taken with some like effectuall and significant ceremonie by the godly is to be found in Scripture When 1 Gen. 24. v. 3. 9. Abraham caused his seruant that was vnder his authoritie to take a corporall Promissorie and necessarie oath for