Selected quad for the lemma: peace_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
peace_n	case_n	justice_n	session_n	2,687	5	10.4872	5	false

Text snippets containing the quad

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

by the King and his Counsell and that they shall conceale nothing of it Their charge is not onely of misdemeanors of Coroners but also of concealements of murders and felonies and letting such escape c. done happely in default of a whole towneship in generall and perhaps in default of the very Bailifes particularly who be sworne and therefore criminall or penall to them yet by vertue of their oathes not to be concealed 6 9. Ed. 3 stat de ●…oneta ca 9. Maiors and Bailifes in euery port where merchants and ships be shall take an oath of merchants and masters of shippes going and returning that they shall not doe any fraude against that ordinance touching money in any point By which oath it seemeth they not onely are to promise not to doe it for they are to take it at their going but also that they haue not done it being abroad because they must take that oath also at their returning And this being concerning fraude not to haue bene committed toucheth matter of discouering a mans owne turpitude offence besides the penaltie due to the offender If a bill or information bee put vp in any court of Recorde against a man vpon the statute of 1 8. Ed. 4. ca. 2. Liueries and Reteiners being very criminall and penall to the offendors after the Informer hath taken oathe that his complaint is rightfull where by the way wee may see some vse in these courtes of that iuramentum calumniae which is required by the Ciuill lawes if it be demaunded by either of the parties the defendant shall bee brought in and put to answere to such bill or billes by such information And the same Iudges and euery of them in euery of the sayde Courts shall haue power in their seuerall Iurisdictions to examine all persons defendants and euery of them vppon such information and to iudge him or them conuict or attainted aswell by such examination as by triall as the case requireth after the discretion of the Iudges Vpon 2 11. H. 7. ca. 25. complaint by any touching periurie and certified by a Iustice of Peace vnto the lorde Chancelour it was enacted in the time of King Henry the seuenth that the partie complained of might bee compelled to come afore the Chancelour and Treasourer of England the chiefe Iustice of either Bench and Clerke of the Rolles for the time being and they had full power and authoritie by their discretion to examine him of all things in the bill of complaint and by their discretion to punish such as by examination should bee found offendours aswell in periurie as in other offences viz. in maintenance imbracerie or corruption in any Officer c. In the sayde Kings dayes a statute was afterwarde made against Reteiners whereby 3 19. H. 7. 〈◊〉 14. Iustices at their Sessions of Peace were authorized to examine all such by their discretion as they should thinke to bee suspected of any Reteinour and their Certificate into the Kings Bench against any examined and found faultie was against such as a conuiction and against others as an Inditement The same 4 Ibidem statute also giueth authoritie to diuers great persons to examine defendants informed against for certaine offenses and breach of Statutes as well by oath as otherwise by their discretion and to adiudge c. Likewise authoritie is giuen by 1 3. H 7. ca. 1. 21. H. 8. ca. 10. 5. Eliz. ca. 9. two seueral statutes vnto certaine great officers of the kingdome Lordes c. to call such grieuous offenders as there be named vpon bill or information and them and others by their discretions by whom the trueth may be knowen to examine That this examination is by a corporall oath taken the continuall custome in that honorable court of Starre-chamber obserued doeth shewe for the breach of the sayd statutes is there to be punished And if examination were not so to be taken for the parties owne oath then coulde it not so bee vnderstoode of the witnesses For the word examine is indiffererently vsed for them all And 2 Brooke tit examination nu 32. Brooke in his Abridgement doth testifie that examination spoken of in lawe is vpon oathe If a 3 24. H. 8. ca. 6. Vintener shall refuse to sell his wine in grosse without iust cause vnto such as offereth him the set price thereof in ready money he shall forfeite as much as the price of the wine Such vintener also may at the discretion of any Officer there named be put to affirme and depose vpon his bodily oath what and howe much quantitie and sortes of wines hee shall haue and whether hee keepeth them to sell by retaile or in grosse and if after such affirmance of intent to retaile them hee shall sell any of them in grosse hee forfeites the double value By a statute of 4 34. H. 8. ca. 4. Bankrupts the lordes there named may vpon relation to them giuen call any person suspected to conceale such offenders goods and may examine them by their oathes and otherwayes as in discretion they shall thinke meete vpon the specialtie certaintie true declaration and knowledge of such offenders goods or debts owing to him And if he shewe not the whole trueth to be after prooued by witnesses c. then he forfeiteth double the goods concealed The like 5 13. Eliz. ca. 7. authority is also giuen to certaine Commissioners to be appointed by vertue of a later statute to tender an oath But in this later the double penaltie runnes against him If either hee doe not vpon his oath disclose the whole trueth or shall denie to sweare The 6 5. Eliz. ca. 1. oath of Supremacie or obedience is a necessarie oath to be taken by such as the L. Chancelour shall thinke fit ex officio to haue it tendered vnto Yet if the party carying a contrary perswasion shall refuse it it becomes very criminall and penall vnto him Such 1 13. Eliz. ca. 3. as be supposed to be parties and priuy to the fraude collusion and couin vsed in conueyances by fugitiues ouer the sea which fraude c. are there affirmed to be things detested and abhorred by all good lawes may be Commissioners appointed or by the Barons of the Exchequer be examined vpon their corporall oathes to open and declare plainely the very trueth to such Interrogatories as shall bee ministred vnto them touching the premisses and the circumstances and dependances of the same vpon paine if they shall refuse to loose such a fine and fines for the saide contempt as shall be assessed by such before whome such examination shoulde be made In which as in the other Statutes mentioned it is euident by how many wayes it may happen that such oathes shall tend to the vrging of them to discouer matters criminall and penall to themselues that are appointed to take them And the foure last alledged concerne oathes giuen where neither bill nor yet information is preferred

it in the Register that vnderstoode it before Fitzherbert or was it not put downe there but in some late copies as is most likely And after he had set it downe would not the law in that behalfe haue bin vrged against sundry Bishops that practised the contrary in K. Hen. the 8. time continually since if that opinion had bin holden for good lawe Touching this matter the Treatisour saith thus in effect that the not cōpelling of witnesses to sweare to depose their knowledges brings none other preiudice but that the partie plaintife faileth in his proofes thereby Why is that no small preiudice for a man which hath in deede a right to haue the causes goe against him through the wilfulnesse of witnesses y t neither will come of thēselues nor may be cōpelled by others as this opiniō importeth Is not this to giue cause of acquiting the wrōg doer of cōdemning him that hath the very right and doth it not nourish or at least tolerate that sinne in the witnes which i●… cōdemned by the law of God in these 1 Leuit. 5. V. 1. wordes viz. If any haue thus sinned that is if he haue heard the voyce of an oath he can be a witnes whether he hath seene or knowen of it if he doe not vtter it he shall beare his iniquitie In which place I doubt not but all such be included who knowing the matter which is in examination or question before a Magistrate shall refuse neuerthelesse being duely called to giue testimonie to the trueth according to their knowledges The Treatisour further saith that it may be sufficiēt for a court ecclesiastical to haue no better meanes for bringing in of witnesses to testifie then tēporall courts haue Truely if they might be allowed the same I thinke none of them would desire any better For when a witnesse is vnwilling to depose vnlesse he be vrged by processe what is more vsuall in tēporall courts then to haue a sub-poena to charge him to appeare and to testifie at such a time place But because by this his saying it seemeth he entendeth that the course of vrging witnesses to testifie as is claimed alwaies hath bin vsed by courts ecclesiasticall conteineth some repugnancie against the lawes of the Realme therefore for cleering of that point I wil briefely shew that it is not so much as a diuerse and much lesse a contrary or repugnant order vnto the lawes of this Realme First for practise what is more frequent then for Iustices of the peace to binde men by recognisance to giue in euidenc at Sessions or Assises touching supposed offendours It would be ouer tedious to set downe the sundry cases reported by the booke of Assiles to this effect viz. that where a deede is pleaded denied and processe against the witnesses is desired that it shall go out to call them to testifie It wil be sufficient to referre you to 1 Brooke titulo testmoignes Brookes Abridgemēt where they be gathered yea though the actiō be 2 1. H. 6. 5. personall if a deede with witnesses at it be pleaded denied processe shal be awarded for the witnesses per Markham Rolfe Be not Iurours also that be summoned to passe on trials fined if they appeare not and what more equitie to amerce or fine them then necessarie witnesses seeing trials can no more be made without euidence then they may without a Iurie By statute 3 23. H. 8. ca. 3. Iurours for triall of Periurie are appointed to be fined if they refuse to make apparance Likewise if any 4 5. Eliz. ca. 9. witnesse be serued to testifie in a court of Recorde and hauing tendred according to his countenance his necessarie charges doe not appeare he shall forfeite tenne poundes and make further recompence according to the losse So that we see it is no contrary or repugnant course to the Common lawes to haue witnesses vrged to testifie being there also practised But if here it be replied that the Common lawe forbiddeth it vnto courtes ecclesiasticall sauing in those two cases it will easily appeare that it is so farre from being forbidden that it is indeede allowed vnto them by Common lawe and by statutes There be very many precedents in the Register of consultations graunted vpō debating of the seuerall matters there after that prohibitions had bene purchased in euery of which almost general wordes of allowance of the maner of proceedings according to the lawe ecclesiasticall be conteined as 5 Reg. in br orig fol. 56. b. fol. 57. b. namely allowing of the proceeding iuxta Canonicas sāctiones setting in the end of euery cōsultatiō there except two or three these or the like wordes in effect viz. Cicitè procedere vlteriùs facere poteritis prout ad forum ecclesiasticum noueritis pertinere prohibitione nostra non obstante Nay let an instance be giuen if any man can doe it where of olde any such prohibition hath gone foorth and not bin reuersed againe by consultation yea almost where it hath gone foorth at all onely for censuring a wittiesse that refused to come in and testifie in any other matter of ecclesiasticall conisance besides testamentarie and matrimoniall And yet hath it bin in continual and vninterrupted practice for so long time as any ecclesiasticall actes now remaining do mention pleas in those courtes to be holden Iustice Brooke in his Abridgement both testifieth that by the Ciuill lawe witnesses which wil be holden indifferent should not come till they be called and setteth it downe as a matter woorth the noting whereby may be gathered his allowance thereof The 1 Brooke tit Corone nu 220. wordes be these By the Ciuill lawe Accusers be as parties and not as witnesses for witnesses ought to be indifferent and not to come till they be called but Accusers doe offer themselues to Accuse c. quod nota That by the Ciuill and Canon lawe witnesses may be vrged to giue testimonie and in what sort wil appeare by this distinction By the Ciuill lawe 2 l. si quando C. de testibus witnesses may be vrged to giue testimonie and that without distinction whether the cause be Ciuil or Criminall be Ciuilly or Criminally directly or by way of exception moued except their persons be priuiledged As by 3 l. inviti ff de testibus the law Ciuill men of 70. yeeres of age be in this behalfe viz. that they may not against their willes be vrged to testifie By the Canon lawe if the cause be Ciuill and not criminall witnesses may be compelled without distinction also except they be persons priuileged Neuerthelesse euen 4 Panor min c. dilectorum de testibus cogendis priuileged persōs may be cōpelled in want and defect of other proofes that the trueth may be found out If the 5 Alphon. Villag lib. 3. ca. 15. conclus 12. cause be criminall whether Ciuilly or criminally moued so the action be

the apprehension of the parties their examinations personall and the taking of informations from others against them is founded but also as often falleth out other penalties and disgraces be inflicted as binding to the Peace or to their good behauiour making them to answere enditements of Barattarie or such like imprisonment of them by a good space sometimes till the next Sessions or generall Assises and sometime extending discretion euen to condemne men to be whipped publickely vpon the single Denunciation of a woman being infamous and partie in the pretended Crime one who is as easie to be suborned to speake and charge a man falsely as to deale lewdly and whose testimonie though it were not singular is of no weight and credite Much lesse therefore being but one ought she to be taken for sufficient to condemne any flat contrary to Gods owne Morall Lawe I haue also knowen Articles put vp against a good Minister and Preacher to haue bene reiected in respect of their insufficiencie by the Commission ecclesiasticall Yet the same Articles being preferred euen by his aduersarie but assisted with some of countenance in the Countrey haue afterwards serued to haue an Enditement found against him to be a Common Barattour yea by those and before those who perhaps might all of them be apposed to tell directly what Barattaria truely signifieth and importeth and whence it is deriued Likewise doe we not see that vpon the like grounds to some of these a man may be touched with great disgrace and discredite and that not vniustly As when some great and potent man in a Countrey against whom fewe or none there abouts dare openly deale is put out of all Commissions and publicke charge in his Countrey vpon priuate yet credible information giuen to some of the great officers of the Kingdome touching his oppression or other ill demeanour of himselfe Doe not the like grounds of Suspicion of priuate Complaint and Information exhibited vnto them iustly and sufficiently often times mooue and warrant the Lords of the Counsell to call some great malefactours into question and to deteine them till they be acquited or condemned by due triall Besides this vsuall practise doe not the very Lawes of the land allow of these and like inducements to take informations and to enquire into matters Criminall 1 10. H. 7. fol. 17. For in an Action of false imprisonment it is a good plea for the defendant to shewe the felonie and to pleade that he tooke the plaintife for suspicion of such felonie per Frowick And why then may not three or moe of the Queenes Commissioners ecclesiasticall be in reason as deepely trusted vpon their suspicions though in trueth they vse it not in this sort as some one single Iustice of Peace may be vpon his owne onely suspicion And is it not 〈◊〉 ●…ikely that they will haue as good ground of their suspicion as he hath of his and as much care of Iustice and of their owne credite In an old 1 3. Ed. x. ca. 12. statute we finde that Notoriousnes of a facte an euill name of a man yea and light suspicion also of Felonie may any of them serue to imprison a man Albeit in the two first cases such a person is by that statute appointed to endure hard and strong imprisonment yet aske whether in the originall Rolles this statute doe speake of imprisoning or else of strong and hard poenance which such be appointed to suffer that refuse to be iustified by the Common lawe of the land And as these and like inducements doe serue to ground the processe informatiue so doe they no lesse euen in Processe punitiue when the enquirie and examination is to punish the offender For if any the Iudges at Westminster or of Assises haue iust occasion of suspicion ministred of a misdemeanour to be committed by some belonging to that Court touching matters of their Courts and present iurisdiction may they not and is it not vsuall with them euen hereupon onely without any enditement or other prosecution of partie to call such supposed offender vnto examination before them to the effect of punishing him according as the qualitie of the facte shall fall out to require In the time of King Henry the seuenth it was prouided by 2 19. H. 7. ca. 14. Parliament for suppressing of Retainours That two Iustices whereof one to be of the Quorum might call all such persons as they shall thinke to be suspected of any Retaynour and them to examine of all such Retaynours by their discretion and their certificate into the K. Benche against all of them so examined and by that examination found in default to be against them as a conuiction and their certificate of any persons by that examination accused to be Retainours to be of like effect and strength against them as an Enditement By the same it was also 3 Ibidem enacted that such Iustices as afore or the Lord Chaunceller or Lord Keeper or three of the Kings Counsell attending him shoulde haue full power and auctoritte without any sute or information made or put before them or any of them to sende for by Writte Sub poena Priuie seale Warrant or otherwise by their discretion for any person so offending and the same person to examine by othe or otherwise by their discretion and to adiudge such as should bee founde guiltie by verdict confession examination proues or otherwise in the forfeitures and paines as though they were condemned after the course of the Common lawe c. So that it was thought then by the whole state of the Realme none vniust course no not in a Temporall Court for Magistrates to call some offenders into question criminall whom they did but thinke to be suspected and to condemne them without either Enditement Appeale suite or Information made By a Statute made in her Maiesties time it is enacted 1 1. Eliz. ca. 1. That if any man be in prison for supposed speaking in behalfe of forreigne Supremacie and happen not to be endited within one halfe yeere of the offence committed that then he shall be set at libertie Whereby appeareth that a man may happen to be brought into Question criminall and to be in prison also which is an Attachment and some punishment without any Enditement or Appeale precedent The statute for 2 1. Eliz. ca. 2. Uniformitie in Common prayer mentioneth three meanes of Conuiction by the course of the Temporall lawe viz. Verdict of twelue men the parties confession and the notorious euidence of the facte If then the Notorious euidence of the fact without Appeale or Enditement Verdict or Confession may at that Lawe serue for a Conuiction may it not with as good iustice and equitie serue for the same purpose at the Ecclesiastical lawe without either Accusation or Presentment If here it be said by any that though such practise of Temporall Iudges be lawfull and the Lawes and Statutes be iust in this behalfe yet perhaps the

Common Lawe will not giue so large a scope vnto Iudges ecclesiasticall against such doubters I will obiect those wordes of 3 Magna Charta cap. 1. Magna Charta where it is not a newe graunted but Confirmed onely That for euermore the Church of England shal be free and shall haue all her whole rights and liberties inuiolable And this is a confirmation of their rights and liberties before any graunt was made to the rest of the Realme besides being yeelded at such time when as through generall ignorance it was vntruly holden that the state Ecclesiasticall signified there by those wordes The Church of England had not their Iurisdictions from the Prince but from God alone deriued downe to them by the meanes of the Pope and therefore that their Courtes and Lawes whereby they proceeded were not in any respect to be accounted for Courts holden by the Kings auctoritie or their Lawes the Kings Lawes Whereupon arose that vntrue and preiudiciall phrase of seuerance of a Court Christian from the Kings Court So that if they were confirmed to them when their Iurisdictions in facte were not holden of the King as now they be and ought to be by Gods Lawe is there not then more iust cause so to continue them at this time seeing they be not so much as a diuerse course from the Customes and Lawes of the Realme in Courts Temporall But that this course of proceeding in causes Criminall sometimes without either Accusation or Presentment is in trueth a right and libertie of the Church of England may appeare by that which to this point hath bene afore deliuered and by the continuall practise also of those Courts in all ages as the Acts thereof from time to time doe make very manifest Yet this is more particularly and neerely prooued in the very point that we handle by a 1 1. Eliz. ca. 2. statute made in her Maiesties reigne where it is prouided that Ordinaries not only at any other time and place then at their visitations and Synods may take accusations and informations a word of farre more large signification then Presentment but may also enquire else-where within their iurisdiction Which Enquirie is afore shewed to be alwayes ex Officio and being absolutely spoken without further addition and in some sort seuered from all ki●…de of Informations must necessarily be without Presentment But how farre and in what maner may they so doe Truely in like fourme as heretofore hath bene vsed in like cases by the Queenes ecclesiastical Lawes If then to proceed Criminally without either of them two be warranted practised by the Queenes ecclesiasticall Lawes as afore is shewed assuredly this Statute doth auouche and iustifie them To this disputation may be referred that obiection which the Notegatherer maketh touching a 2 11. H. 7. ca. 3. statute of K. Henry the seuenth Note gatherer whereupon he saith Empson and Dudley proceeded that was 3 1. H. 8. ca. 6. repealed by another in the time of K. Henry the eight although he putteth it vnder his title of the lawes of England as by them seeking to impugne al proceeding ex officio albeit vnder presentment which this opinion alloweth proceeding ex Officio is necessarily implied and presupposed For answere whereof it is true that the saide statute was so repealed but whether it were the same and the onely statute whereupon Empson and Dudley proceeded is left there vncertaine and vntouched Howsoeuer it was in this behalfe seeing it authorised all Iustices of Assise and of the Peace to proceede thereby it is most probable that many besides them two did also deale by vertue thereof The effect of the saide statute was that vpon information to be made for the King afore Iustices vpō any penal statute not extending to life or member they might without enditement heare and determine all offences against the forme of any statute in force The reason of making the said statute is signified by the preamble to haue bin for that although at Sessions charge was giuen to enquire of many offences against statutes and Enquests to that effect were straightly sworne and charged to enquire and to preferre the trueth yet they were letted to be found by imbracerie maintenance corruption and fauour by occasion whereof the statutes coulde not be put in due execution And againe in the same place The twelue men for the causes afore rehearsed will not finde nor present the trueth Howesoeuer this were at that time it may bee feared that it is in some place too true still euen vntill this day So that if this were then a sufficient cause to make such a statute the cause still continuing if not encreasing that statute will seeme to haue beene in that regarde lesse vnreasonable In the statute of Repeale thereof for the reason of abrogating 1. Hen. 8. c. 6. it is onely assigned That thereby many sinister craftie feigned and forged informations haue beene pursued to the great damage and wrongfull vexation of the subiectes But this might aswell happen euen when men be prosecuted by way of enditement For is it not vsuall to finde them vpon any one mans euidence and information the Iurie not regarding oftentimes what enimitie rests betwixt them Therefore it was not the course by information that displeased but the badnes of the informations that gaue occasion of repeale For by statute euen in K. Hen. 8. 31. Hen. 8. c. 14. his dayes an Information was made equiualent vnto a presentment by verdict of twelue in matter of heresie that is far more penal then the former Which cruell statute I would not haue alledged but that the Note-gatherer groundeth himselfe thereupon for another purpose And we see that there is no such cause alledged as the Note-gatherer insinuateth either as if it were an vniust vnreasonable course or in respect that it was ex officio at the instigation and solicitation of some one person or yet that it was without Appeale or Enditement For if it had bin simply vniust then all the treasure which had bin leuied by colour thereof should haue bin restored And it is euident that Bils and Informations against offenders are still in frequent vse and may be preferred for the Queene by any and against any whomseuer And those which be found offenders may without either Appeale or Enditement be condemned and punished thereupon in sundry geat penalties and losses both pecuniarie corporall and of their good name and credite And for further proofe that it is at this day holden none vniustice by the tempor all lawes for to ground an enquirie yea and also a Conuiction without either Appeale or enditement is plainely prooued by a latter statute which is yet in force For Iustices of 5. 6. Edw. 6. cap. 25. Peace at their Sessions haue authoritie to enquire of the offences of them which be admitted to keepe Ale-houses not onely by Presentment but by Information or otherwise by their discretion c.

not so much as iiij s. towards their charges that Iustices of Peace be allowed by Statute at such times as they serue at Sessions of the Peace c whereas Commissioners are employed and serue therein freely at their owne charges with losse of time and intermitting their owne businesse only of dutie and conscience to her Maiestie and to the Common weale So that if it were not in this respect the Commissioners ecclesiasticall both might and would sit still with more ease to themselues and lesse obloquie howbeit by the worst of euery sort of Subiects As for Courts of Ordinaries I knowe some of the greatest of them in England that haue not two matters ex Officio mero prosecuted in them in three yeeres space And for such ordinarie Courts as haue some moe causes of that nature alas what great fee is it for the Iudge ecclesiasticall to haue iij. pence for a Citation or vj. pence for examination of a witnesse or vpon an acte of Absolution or such like to make him desirous in that respect to entertaine the cause seeing hee will hardly be excused with xx pound charges that euery such seuerall matter may put him vnto if an Appellation be brought vpon any errour or mistaking that may happen to be found in his proceedings of Office Besides that the like fees are due to the Iudge no lesse vpon the prosecution of a partie then they be vpon proceeding by office and therefore none inconuenience heereupon more in the one course which this opinion alloweth then there is in the other Yea may some say all prooue not offenders that be so called and that are thereby put vnto trouble and charges It is true yet meet to be called if the law be obserued in this point that there must be afore a sufficient ground of inducement thereto Neither doe all those prooue to be offenders that are prosecuted by a partie or by an Accuser and thereby be put to no lesse charges and trouble euen when besides the malice of the preferrer there was no colourable ground of the accusation The like may be also truely said of many others who be called euen before temporall Iudges and Iustices of the peace either by warrant writte or otherwise Yet is this no cause heereupon wholly to disallow these conuentings And there is no more reason to finde fault with the fees due vnto the Iudges ecclesiasticall in regard that euery one which happeneth to be conuented prooueth not guiltie of the matter imputed to him then there ought to be with the fees that are due to Iudges in temporall Courts for iudiciall or originall writtes c. because many of such suites be commenced as often falleth out in the end without good matter on the Plaintifs or Informers behalfe Thus much in answere to the obiections made against the reasonablenesse and conueniencie of proceeding by Office CHAP. XI That the lawes of the Realme do vse Enquiries and proceedings ex officio and that they allow it in Courts Ecclesiasticall with answere to some obiections that are made to the contrary IN the next place I am to shew that dealing by way of enquirie or enquest ex officio without suite of a partie called by the Common law Office del Court are both mentioned and practised by the lawes of the Realme In 1 Mag. Charta cap. 26. Magna Charta mention is made of a writ of Inquisition of life and member In an olde statute of king Edward the first a seuerance is made betwixt the suite of the King from the suite of a partie and the King is thereby as it were bound to sue and to lend his office for prosecution of the misdemeanours For it is 1 3. Ed. 1. cap. 13. thus prouided that if any take away a woman by force c. the King at his suite that will sue shall doe common right within fortie dayes and if none commence his suite within fortie dayes the King shall sue Which suite being in his owne Court and before himselfe must needs be of office For where there is Inquisitio Enquirie there the King is partie as by another statute of the same 2 Star de Inquis capiend 33. Ed. 1. Kings dayes appeareth De Inquisitionibus coram Iusticiarijs quibuscunque capiendis in quibus D. Rex est pars qualitercunque concordatum est c. In a statute of 3 18. Edw. 3. pro Clero c. 2. king Edward the third arreignment at the suite of the King which is ex officio as a distinct matter from that which is at the suite of a partie is spoken of and so 4 42. Ed. 3. c. 4. are also Commissions of inquisition afterward Furthermore in K. 5 8. H. 6. c. 16. Henrie the sixt his time en quest or inquisition of office is mentioned and in sundrie 6 11 H. 7. c. 25. 1. H. 8 c. 12. statutes both after and afore which are needlesse to be repeated For as I take the matter euery enditement is an Inquisition which if it be at the prosecution of a partie it is as officium promotum but if it be by the Iudges for the Queene in respect of the interest of the Common-wealth then is it officium merum or nobile as afore is declared This maner of dealing in sundrie cases is so vsuall at the Common law that there be whole titles made in the Abridgements touching Inquisition and office del Court viz. of enquiries and matters done by the Iudges vpon their discretions without the instance of any partie In reports at the Common law we finde it said 7 M. 20. H. 6. 38. that Iudges ex officio did charge an enquest to make enquirie of their owne collusion supposed to be committed among them 8 34. Edw. 3. 3. Further One of a Iurie that departed from his fellowes after that he was sworne was examined at his returne by the Iudges ex officio whether he had since spoken with the defendant or no Likewise it is said 9 11. H. 4. 17. that the Court ex officio ought to award an Assise to enquire whether the disseisin were with force by reason of the kings fine In the booke of 10 Assis. lib. 16. pag. 4. Assises The Court ex officio sent a man to prison because they found he had not made fine And a great number of particular articles are there set down wherupon 11 Assis. lib. 27. pag. 138. enquest or inquisition ex officio in the Kings bench is to be made We finde of elder time by 1 Bracton li. 4. c. 8. fol. 302. Bracton where the appellor that prosecuteth makes default or dieth there the king may proceed ex officio And againe there Let the king ex officio suo for his peace proceed to inquisitiō for the suspicion that he hath of the appeale Moreouer where a Parson and Vicar were both willing enough to sue before the Temporall Iudges yet 2 M. 22.

continue as in Murder Forgerie lybelling c and yet y e inquirie by the parties examination vpon his oathe so it be neither Capital nor for Mutilatiō is no lesse lawful and necessarie in the one then it is in the other In 1 〈◊〉 Leuit. 5. v. 1. Leuiticus a sacrifice is appointed to be made for certaine sinnes amongst which this is one according as Arias Montanus doeth translate it forth of the Hebrew And if a soule or a man shall haue sinned and haue heard the voyce of an Ad uration or oathe and he a witnesse either hath seene it or doeth knowe it if he doe not reueale it he shall beare his owne iniquitie That which is here said If he haue heard the voyce of an oathe the Geneua translation vttereth thus in the Margent as if it were neerer to the Hebrewe then the other in that text viz. If the Iudge hath taken an oathe of any other If this then be the meaning we are hereby bound to reueale what we haue seene or knowen touching that which the Iudge seeketh to finde out by another mans Oathe yea though we be not at all pressed therein much more ought we then to tel what we knowe or haue seene touching the matter when we our selues are particularly so cōmanded by the Iudge Saint 1 Ang. in quaest Leuit. ad ca 5. quaest 1. Angustine expoundeth it of this case viz. where a man heareth another sweare and depose falsely For saith he this that place seemeth to saye that a man sinneth who heareth another sweare something that he knowes to be false if he hold his peace But he is then said to knowe either when he is a witnesse of the matter deposed of or did see it or was priuie to it that is did by any meanes knowe it as either by seeing it or by hearing him speake of it that now sweareth otherwise So that he leaueth it at large to extend to Oathes falsely taken either before a Magistrate or priuately or how else soeuer Iunius in his second edition of Annotations vpon this chapter restraineth it onely vnto such vaine and rashe oathes as men sweare extraiudicially making him that heareth another to sweare without reprehending him to be guilrie of sinne himselfe as no doubt he is But surely this interpretation of his cannot be grounded vpon this place at least the place cannot by any meanes be onely restrained vnto this case For the matter concerning which a man heareth another sweare is the thing here principally considerable and not the very Oathe it selfe because it is not onely said If a man heare the voyce of an oathe but it is also added as most materiall ipse testis vidit sciuit which matter he as a witnesse hath seene or otherwise by some meanes hath knowledge of if he shall not declare it or reueale it he shall beare his owne iniquitie and sinne Therefore it is the matter which the by-stander is able to witnesse of by reason of his sight or some other meanes of knowing it that for the auoyding of sinne must be declared Againe if it were onely meant of him that heareth another blaspheme or vainely and falsely sweare and doeth not reprehend and rebuke him for it then could not the verbe of Declaring haue bene vsed but rather some worde of rebuke or reprehension Thirdly if it were meant onely of the Act of swearing that is not rebuked then needed no mention to haue bene made of any other sense but of hearing onely But we see that there is mentioned seeing and also with a disiunctiue any other meanes of knowing it besides hearing of the oath and therefore that meaning which Iunius giueth thereof cannot possibly be the very true sense of this place Nay Iunius himselfe in his first Annotations confesseth the most to holde that it ought to be vnderstood thus viz. that he sinneth who heareth an oath giuen to another man touching any matter whereof he hath knowledge if hee doe not therein disclose what he knoweth So that whether the other depose vainely falsely or not is not here spoken of or to be attended but whether a man conceale his knowledge of a matter in question that is conuenient to be knowen vnto a Iudge for it is he that hath authoritie to vse the voyce of an oath or of that adiuration or charge vnto another which is here spoken of By this sense hereof giuen by the most and flowing easily from the very wordes themselues may be gathered that an oath may be giuen to the partie enquired of indefinitely as the Iudge according to lawe shall thinke good to proceede euen before any witnesses bee produced against the partie that this voyce of an oath and charge to sweare may be giuen before it be knowen whether any or what witnesses can testifie therein and that a man knowing the trueth touching a matter whereof another is enquired of by oath ought for auoyding of sinne to testifie and to declare his knowledge therein Yet because in that place no mention is expressely made of any other person but of him that heareth such oath who also hath seene or knowen something and who is to declare and reueale it or else to beare his owne sinne therefore it is also very probably by some taken to haue place when a man 's owne selfe is adiured or charged by the Magistrate to take oath For the person of the Magistrate or some other must needes be vnderstoode besides though none be expressed because it is sayde If a man haue heard the voyce of an oath whereby some other person then the hearer himselfe is necessarily implied For albeit the Hebrew interpreters do vnderstand it of that adiuration with curse which was done by the Priest whereby he vsually cursed any whosoeuer had committed some particular apparant crime though the person were vnknowen vnsuspected if they would not reueale it according to the place afore alledged out of the 29. Chapter of the Prouerbs yet the Chaldee Paraphraste that writ in or before Christs time and of all Interpreters is of highest and most vncontrolled authoritie vnderstandeth it of the Iudge and reades it thus viz. the voyce of Adiuration or Execration made by the Iudge And then out of both these Interpretations doth follow that without sinne a man cannot but testific both against another enquired of for it is said whether he haue seene also against himselfe if it be required for it is said or haue knowen of it which may as properly be referred to a mans own fact as to any other mans the rather to his owne because a man is least ignorant of his owne facts And vpon this latter acception of the place it doth follow that a Iudge and Magistrate may lawfully tender vrge such oathe and a subiect ought not to refuse it because hee shall beare his owne sinne for hearing the voice of an oath giuen and for not reuealing his knowledge in that matter When a