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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

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happely he knoweth there can be no pregnant no nor any likely euidence brought against him whether in foro conscientiae without any sinne may such a man pleade not guiltie vnto the matter of inditement for the time place and other wordes of fourme and course are not trauersable on the other side if in this case hee pleade guiltie being so in deede whether is he thereby guiltie of his owne death or not But if for auoyding of sinne before God such one ought in conscience to plead guiltie rather then lyē and yet shall not thereby be made guiltie of his owne death why shall y e declaring of the trueth touching other mens actiōs make him y t reuealeth it being charged thereunto guiltie or cōsenting vnto their punishmēts how vniust soeuer otherwise they might be surmised to be for if any mans faults may be spared a man might most lawfully spare himselfe quia Ordinaria charitas incipit à seipsa And to presse this reason à Paribus at least if not à fortiori a little further If such a man shoulde chuse rather to be pressed to death for standing wilfully mute and not answering directly vnto either should he not de iure poli euen in true termes of Diuinitie be accounted guiltie of his owne death to be in the sight of God a murderer of himselfe the very like therefore is to bee iudged of these persons viz. that their punishment as cōuicted of the crime is most iust that their blood is vpon their owne heads that none are causes of y e punishment inflicted vpon them but themselues for standing obstinately mute without direct answering in fourme of lawe as they ought though it were admitted that such their actions whereof they bee interrogated were all good and they innocents And as the reuealing of other mens actions when we are duly charged maketh vs not guiltie or consenting to their punishment so our refusing to answere neither is any meanes in deed nor yet is so appointed of God to serue for their deliuerāce For God wil not allowe to haue innocents deliuered by our disobedience to his Lieutenāts on earth nor by concealemēt of any trueth expedient to be knowen according to law commanded to be declared And therefore y e place of the Prouerbes by thē brought fitteth not this purpose For if they for their obedience sake with a single heart without intent to hurt the innocent and being charged shall deliuer but the very plaine trueth how vniustly soeuer the magistrate may seeme to deale afterward yet shal not the discouerer of the trueth bee a partaker of the magistrates sinne For it is but he 1 Prouerb 24. ver 8. which imagineth to doe euil whome men shall call an authour of wickednesse as is recorded in the same Chapter The other place out of y e Acts is nothing like to y e matter case that we haue in hand For Paul was not there charged by autoritie to bewray any thing he knewe against Steuen much lesse to deale at all in that action But hee willingly as one forwarde of himselfe and of a malice against the very profession which he then detested did thrust himselfe into the cause and rather then he would not be some stickler in it he thought good to do some office of kindenes vnto the tormēters executioners of that holy Martyr though it were but by keeping their clothes thereby he directly gaue approbation and consent vnto Steuens death Yea this their opinion is without any other like example in any text of Scripture except perhappes they will gather it from an obseruation and note pretended to be collected from the next Chapter following For I finde an opinion collected thence which iumpeth with theirs in this behalfe 1 Rhemish Testament in annotat cap. 23. Act. A. post ver 12. If thou bee put to an oathe saith that note to accuse Catholikes for seruing God as they ought to doe or to vtter any innocent man vnto Gods enemies and his thou oughtest first to refuse such vnlawfull oathes But if thou haue not constancie and courage so to doe yet knowe thou that such oathes binde not at all in conscience and lawe of God but may and must be broken vnder paine of damnation They will not confesse that they haue sucked this opinion from hence and they may not be endured to flappe vs out with T. C. their olde dogge tricke and to say they borrowed it not of the Papistes but obserued so much themselues by reading of the Bible For this were both to iustifie their owne and with-all this corrupt doctrine of the Iesuites as if they both so well agreeing together were arightly grounded vpon the worde of God But they bring seuerall places and examples whereby they thinke this is prooued The officers of the children of Israel that were appointed by Pharaohs taske-masters to looke that the people shoulde make as much Bricke by day and gather the strawe themselues as they did when strawe was found to their handes seeing that the people were not able to perfourme it and yet were beaten for not doing it did signifie the impossibilitie vnreasonablenes of this vnto the king But the king gaue them a resolute answere that they shoulde doe it vpbraiding them that it was but idlenesse which made them pretend that they would goe to offer sacrifice vnto their God Which thing was the ground of Moyses and Aarons suite vnto him that the people might haue leaue to goe into the wildernesse So when these officers comming with this hard answere from the king did meete with Moyses and Aaron they expostulated thus with them Ye 1 Exod. 5. v●… 21. haue made our sauour to stinke before Pharaoh and his seruants in that ye haue put a sword in their hands to slay vs meaning that their sute for going forth to sacrifice did so discontent y e king that he would in that respect oppresse them euen vnto death But what is this to purpose doth this phrase of putting a sword into another mans hand so please these men that they will imagine by what occasion soeuer a wicked man pickes quarell to oppresse Gods children that such a thing whereupon the occasion is taken of necessitie is vnlawfull to be done from the best actions of godly men tyrants will oftentimes take occasion to persecute the whole Church shall therefore all exercises of religion be intermitted Euen in this place the message that Moyses and Aaron brought to Pharaoh which occasioned such oppression to the children of Israel was put in their mouthes by the Lord. And therefore they sinned not albeit this was like to haue turned to be as a sword to destroy vp all the children of Israel but rather these officers did offend that thus did mutine and grudge against those who fulfilled Gods cōmandement and did but as they ought to do Euen so shall they offend likewise that shall be displeased with such as doe
that whereby hee may cast another out of his countrey or take him out of this life who both standes defended by himselfe and by his friends yea and by such as be meere strangers vnto him For wee all willinglie runne to helpe to keepe off dangers and when a man is called into triall for his life libertie or Countrey if he bee not a very enemie vnto vs wee doe tender and yeeld vnto him the good offices wishes and endeuours of most perfect friends albeit in deed he bee a meere stranger vnto vs. How hardlie Tullie himselfe though sometimes he vsed it thought hereof in the time of his age this saying of his declareth 5 Cic. li. 2. Offic. It is the part of an hard hearted and cruell man yea rather of no man to bring manie into danger Capitis of their liues liberties or countrey For besides that it is full of perill euen to the Accuser himselfe it is also very infamous for a man to bring vpon himselfe to be termed an Accuser Neither can it possibly be done without great wickednesse that a man for filthie lucres sake should turne eloquence which was deuised for the helpe and preseruation of men vnto their plague and vtter ouerthrow This course was so hatefull that oftentimes such as pursued it were vpbraided with it as odious For Mamercus Scaurus 1 Tacitus l. 3. Annalium when he accused Seianus hauing this cast in his teeth sought to excuse himselfe by the examples of their forefathers that had done the like But Cornelius Tacitus who reporteth this storie iudgeth it to be an infamous endeuor whereby noble families are greatly stained and dishonested Seneca reporteth 2 Senec. li. 3. de benefic that vnder Tiberius the Emperour this rage of publike accusing for so he termeth it was very rife and sayth that it did waste that Common weale euen in that time of peace more then any ciuill and intestine warre which they had amongst themselues had done in times by past And not onely these Heathen men but the Fathers of the Church had it also in like detestation that a man by Accusations should be so carefull to bring other men into danger which 3 August li. 1. confess cap. 18. S. Augustine therefore among others greatly reprehendeth And he saith in another place thus 4 August in Sermone Domini in monte All matters wherein we suffer any indignitie are of two sorts The one is such as cannot be restored the other which may be Now for that which cannot be restored we seeke some comfort by taking reuenge But alas what doth it auaile thee if thou being smitten doest smite againe or that another doe it to reuenge thy quarrell Will that hurt which is in thy body be thereby healed Which seeing it cannot be truely said it must needes be that all these reuengements proceed but from an haughtie and a proud heart In this regard 5 c. Si quis episc 2. q. 7. olde Canons do call Accusation Genus illaudabilis intentionis a kinde of discommendable endeuour or sute The reason whereof is for that it is done for the most part vpon a reuengefull and wrathfull minde whatsoeuer be pretended otherwise If a man to excuse this shall thinke that herein he pleaseth God 6 Anaclet ep 1. de oppres episcoporum for that he accuseth offenders saying that he doth it for their reformation and amendment this man as is testified laboureth but vainely and is in deed carried with a sting of malice rather then heat of charitie So that besides the danger to himselfe we see how odious a kinde of prosecution Accusation hath bene holden and therefore we are not to maruell that it is either recalled by contrary lawes as in most places or growen in a maner to an vniuersall disuse in the world Hereupon and perhaps also vpon occasion of certaine places of Scripture some may gather that the course of Accusation is altogether vnlawfull to be vsed by any Christian. In deed thus it is written in Leuiticus 1 Leu. cap. 19. V. 16. Thou shalt not stand against the bloud of thy neighbour I am the Lord. And a little after 2 Vers. 18. ibid. Thou shalt not auenge nor be mindefull of wrong against the children of thy people but shalt loue thy neighbour as thy selfe I am the Lorde Likewise Iesus the sonne of Syrach sayth 3 Ecclesiasticus cap. 10. V. 6. Be not angry for any wrong with thy neighbour and doe nothing by iniurious practises In the Gospell wee are thus commanded 4 Matth. 5. V. 38 39. Ye haue heard that it hath bene sayd an eye for an eye and a tooth for a tooth But I say vnto you resist not euill but whosoeuer shall smite thee on thy right cheeke turne to him the other also Againe 5 Vers. 44. ibid. Loue your enemies blesse them that curse you doe good to them that hate you and pray for them which hurt you and persecute you Which commandements are also repeated by 6 Luke cap. 6. V. 27. c. S. Luke And to like purpose 7 1. Cor. 6. V. 7. sayth S. Paul There is vtterly a fault among you because ye goe to law one with another Why rather suffer ye not wrong why rather susteine ye not losse Truely it may not be denied but that the pregnancie of these places is such that all prosecution of priuate iniuries or crimes done vpon reuenge malice enuie vaine-glorie gaine or any such like particular respect alone is heereby condemned For in Accusation it is first required that a reuengefull minde be wanting which is presumed to be present when the iniurie prosecuted is but priuate and such as is not subiect to restitution according to the former distinction repeated out of S. Augustine Secondly it must be done vpon a good zeale to the entent the offender may be amended and others not hurt by the euill example For by those 8 August in ser. Domini in mōte wordes of the Gospell such punishment of sinne as tendeth to correction is not forbidden because that is a part of mercie sayth S. Augustine And sayth hee 9 August ibid. holy men haue punished certeine sinnes euen with death both to strike a profitable feare into the liuing and that the death it selfe might not hurt them who were punished by it but the sinne diminished which was like rather to be encreased in them if they shoulde haue liued longer Thirdly Accusation by a Christian ought to be referred onely to the publike benefit of the Common weale In this behalfe Plato being but an heathen Philosopher hath a very seuere saying 10 Plato in Euthyph It is an holy thing sayth hee to draw them into iudgement that haue committed any murther or sacrilege whether it be thy father mother or any other whosoeuer that hath so offended so it be done for this end to ridde the Common weale of them as of a
what they are lawfully commanded albeit trouble and punishment by that occasion shal happen vnto them that so take offence So that this example doth make flat against their owne purpose and intention and can no way helpe them Another example they bring of 2 1. Reg. 1●… ver 4 13. Obadiah who hid 100. Prophets in two caues secretly and susteined them with necessaries when Iesabel slewe the other Prophets whom she could hit vpon But this commeth farre short of the purpose for which it is brought For who euer denied it to be lawfull to shewe charitie vnto the Lords Prophets then there appeareth no commaundement to the contrary but that he might receiue them againe it doth not appeare that he was euer by authoritie charged to reueile them or to tel his knowledge what was become of those Prophets and therefore it is vnlike to the case in handling furthermore it was wholly an vniust wilfull and tyrannous persecution without warrant of law or colour of any iudiciall proceeding besides if he had bene charged by Iesabel to discouer where they were or had beene commaunded by her to relieue none such yet had it bene no disobedience towards the Magistrate for it is not noted to be the doings of the king but that Iesabel slew them Now the kings wife is no soueraigne but a subiect her selfe Moreouer the killing of the Prophets for no pretence or colour of cause at all is in it selfe so apparant an euill as no man can haue any shadow to giue a lawfull consent vnto it Lastly a man cannot gather a generall doctrine in a matter doubtfull and not plainely deliuered els where in Scripture out of any particular mans fact because all the circumstances which then fell out are not knowen But most especially an example can neuer serue to the ouerthrow of the generall commandement of obeying the Magistrate And viuendum est legibus non exemplis Out of the first booke of Samuel they bring three other examples 1. Sam. 19. ver 1. 2. The first that Saul spake to Ionathan his sonne and to all his seruants that they should kill Dauid but Ionathan Sauls sonne had a great fauour vnto Dauid and bade him take heede c. The second when Saul said to Ionathan Send and fetch Dauid vnto 1. Sam. 20. ver 31. 32. me for he shall surely die Ionathan answered Wherefore shall hee die What hath he done the third that when Saul commanded his seruants to fall vpon the Priests of the Lord to slay them they would 1. Sam. 22. ver 17. not moue their hands to fall vpon the Priests of the Lord. To these three one answere may serue and therfore they are thus set together First these commandements though of the king yet they were when he was enraged and in a furie after the Lord was departed from him an euil spirit was come vpon him Againe it is apparantly vngodly in it self for any to kill an Innocent vpon the tyrannous and vnaduised commandement of the king euen without all colour of any lawful Iudiciall course Lastly Dauid was knowen vnto them to be afore appoynted yea their annointed king from the Lord howsoeuer Saul was tolerated de facto to continue in place till the measure of his iniquitie was fulfilled And therfore in this respect was it vnlawful to kil either him or those that fauoured him especially the Lords Priests whose linnen Ephod should be a protection vnto them against Ibid. ver 18. al such precipitate executions where neither conisance of their cause nor any due conuiction and iudgement was precedent Another example they bring of the mid wiues of the Israelites to proue their intention It is thus written they feared God and did Exod. 1. ver 17. not as the king of Egypt commanded them but preserued aliue the men children This obiection carrieth his answere with him For it is said they feared God therefore did not herein as the king cōmanded noting vnto vs that the cōmandement was such as could no way stand with the feare of God There is no Prince in the world to bee obeyed when he commaundeth any thing directly forbidden by God for it is better to obey God then man The Prince is no God nor yet Gods Lieutenant but a meere man in that which he cōmandeth directly contrary to God That this was of that kinde it appeareth for to kil is manifestly by y e moral law of God nature forbidden Yet this hath his exception viz. that it is no murder when we execute the penaltie of lawe vpon murderers other wicked persons duely conuicted condemned For he that Gene. 9. ver 6. sheddeth mans blood his blood shall be shed by man saith the Lord. But there could be no colour or apparance of any actual wickednesse in children newly borne why they should be executed being but by a generall iudgement condemned most wickedly and tyrannously euen before they were non censetur existere saith the law qui adhuc est in vtero matris Now let vs compare these last foure examples with the scope and purpose for which they are vsed The very act of murdering a person notoriously innocent in that he is neither conuicted nor condemned is malumper se a thing simply and absolutely in his owne nature euill without any further circumstance But to declare what a man knoweth to be done by another the very authours themselues of this opinion must needes confesse to bee sometimes lawfull and requisit and therefore they must at least graunt it to be medius Actus such as by circumstance may be lawfull howsoeuer by the circumstances of this case as it is propounded they will perhaps hold it vnlawfull And therefore there is such dissimilitude and diuersitie betwixt these examples and that which they holde as they can neuer serue this purpose Therefore to fit their turne in the very poynt of the issue they must proue vnto vs that it is vngodly for any man though charged by lawfull authoritie to declare his knowledge of another mans actions if hee that is vrged so to make declaration doe iudge afore-hand that the Magistrate mindes to punish such action either where he ought not at all or in other sort then Gods law permitteth For this purpose they alledge as strongest the example 1 Iosh. 2. ver 3. 4. of Rahab who would not tell the king of Iericho where the two spies of Israel were though she were by him commanded to bring them foorth and she is commended for it by the 2 Heb. 11. ver 31. holy Ghost In answere hereof I say we reade not that the king asked her whether they were there still or not albeit shee 3 Iosu. 2. ver 5. answered that they went out but she was commanded to bring them forth which is something more then to tell where they were if she had beene so asked Secondly by 4 Heb. ibid. Iosu ibid. V. 10. faith