Ecclesiasticall and for rounder proceeding and for more grieuous punishment at least in these dissolute times more feared then can or may by Ordinarie Iurisdiction be inflicted Therefore if by the general words of that Acte 1. Elizabeth both these proceedings whereof wee here speake and many other particularities of maner persons times places and other circumstances might not be warranted then the authoritie there giuen to her Maiestie were of none vse at all neither could it possibly be practised But I thinke this power here by these opinions impugned may be also prooued directly out of the words of the very Acte thus whatsoeuer by any Spirituall or Ecclesiasticall power or authoritie hath heretofore bene or may lawfully bee exercised or vsed for visitation c. or reformation c. of all maner errours c. and enormities whatsoeuer that is vnited to the Crowne and by that Acte may be committed ouer by her Maiestie But Attaching imprisoning and such like corporall coërtion by some Spirituall or Ecclesiasticall power or authoritie hath heretofore lawfuly bene exercised And therefore may be appointed by her Maiestie to be now exercised by the Commissioners Ecclesiasticall For proofe of the Minor I am to put you in minde what corporall punishments and chastisements the superiours of euery Regular person as of Monke Frier and Nunne might and did lawfully from time to time lay vpon them that were vnder their Ecclesiasticall obedience and yet euen after their professing they remained still the Kings subiects Likewise when the statutes against Heresies were in force these Attachings imprisonings and other corporall chastisements were then lawfully exercised and vsed by Ecclesiasticall power and authoritie Lastly 1 1. H. 7. ca. 4. Bishops and Ordinaries may lawfully at this day punish and chastise Priestes Clearkes and religious men within their Iurisdiction being conuicted of incontinencie by committing them to warde and prison there to abide for such time as shall be thought to their discretions cōuenient for the qualitie and quantitie of their trespasse So that we may conclude that if any such power haue bene vsed then her Maiestie may as it please her vse it still and appoint the same to be vsed by her Highnesse Commissioners howe and vpon whom she thinketh good The Treatisour himselfe testifieth that diuers euen of the learned sort do hold and affirme and that very confidently that the Acte and Commission thereupon doe giue full power and authoritie for any course soeuer for the gouernment in causes Ecclesiasticall that shall be mentioned in the letters Patents This he exemplifieth by sundry examples though holden by such learned men which neuerthelesse he accounteth contrary to Lawe whereof some fall in most fitte for this place because they are bent against the saide Commission and others for other places of this Apologie First he thinketh it very absurde and not warrantable that the Commissioners Ecclesiasticall shoulde commaunde Iustices of Peace to assist any for attaching and imprisoning of offenders till they giue bonde for appearance And saith this is against Lawe and Iustice. The onely reason he rendreth of this his assertion is for that Iustices of Peace bee Magistrates and Commissioners of Recorde authorised as well as the other Belike himselfe is some Iustice of peace Hoc vrit hominem qui imperare non parêre didicit And will he then vpon his learning deliuer That no Magistrate or Commissioner of Recorde may be commaunded by another though no lesse be warranted by his Commission Hereupon would follow that Iustices of Peace and Sherifs might not be commanded in any case by the Iudges of either Benche by the Exchequer by the Iustices of Assisse by the L. Treasourer by the L Chauncellour or L. Keeper nor yet by the whole Counsell boord He thinketh it also not iustifiable that any Magistrates should be commanded by the Ecclesiasticall Commissioners to assist in Attaching or to attache any vpon a warrant called Quorum nomina For reason of vnlawfulnesse hereof he alledgeth that no cause or matter is therein expressed or declared But this might be de facto omitted in any other warrant as well as in that and yet is it vntrue that in this kinde of warrant no cause is declared But admit it were otherwise what Lawe of the Realme is against it And if the like warrant shall come from the Lords of the Counsell to him or any other Iustice of the Peace to be ayding and assisting vnto some Messenger in attaching of certaine persons to be caried vp vnto them as Prisoners whom the saide Messenger shall name vnto them will hee refuse to intermeddle in the seruice as surmising the Lords to do therein against Lawe because they commaunde him being a Iustice of Recorde and for that they signifie not by their Warrant what the particular cause is where with they minde to charge such persons that are to be Attached But if in so doing their Lordships doe nothing contrary to Lawe howsoeuer he doe foolishly and vndutifully to refuse to giue his assistance why shall the Lawe anymore be against the Commissioners doing but the like and that by expresse Warrant of her Maiesties letters Patents Another reason why such Warrant should not be iustifiable he doth alledge because the names of such persons to be Attached be not set downe by the Commissioners but are referred ouer vnto others to set them downe Mine answere hereunto is First that the Warrant of Quorum nomina is very rarely vsed by the Commission and the rarer the better Secondly when it is vsed the names of the parties are set downe and allowed afore by the Commissioners and not by others for anything that I can learne Neuerthelesse there may be good and weightie occasions to omit this course as when such Warrant is directed to a man of qualitie and good credite that he may put in the names for this ende lest when one is serued he bewray all to the rest whose names be also in the same Warrant that they may conuey themselues out of the way Howsoeuer it be in this behalfe I thinke the Treatisour will be long in finding out how this should be reckoned to be contrary to the Lawes of this Realme Hitherto touching the challenges made to some particular points in the maner of exercising that Commissun But the Note-gatherer to cut off all these particular disputes alleadgeth that it may be thought the whole Commission is voyde in Lawe For that as he surmiseth it beareth date in Iuly but was signed in Nouember next after 1 18. H. 6. cap. primo contrary to a Statute What was this quarrell which is now picked against it worth the practise of abusing a Counsellours name to procure a copie thereof Well both the Preamble and body of the statute also doth cleare this cauill For by the Preamble it appeareth that the mischiefe to be remedied was for that by grauntes antedated long before the King graunted them other grauntees who in very trueth had the first
likewise that none shall bring them into the Realme or being perhaps brought in by another shall receiue them or being neither brought in by them nor yet receiued froÌ„ others but comming some way to their knowledge shall not make any notification or any other execution of them where neither within the realme nor without c. vpon paines there at large conteined Of those generall heads whereunto I said afore that all questions of Praemunire might be referred there be some that being expressed in these statutes are I thinke without all doubt to be within the compasse thereof as by the first of these two to draw any of the Queenes liegeance out of the realme in a plea whereof the conisance pertaineth or iudgements be giuen in the kings Court And that which is sayd of a Plea in the kings court is also drawen by some opinion vnto a court Ecclesiasticall for 1 9. Ed. 4. fol. 3. Yeluerton in the Kings bench held opinion oftentimes that if a Clerke doe sue another in the Court of Rome for a spiritnall matter whereof he may haue remedie within the realme that he is in case of Praemunire quia trahit in placitum extra regnum And 2 Fitzh Noua nat br fol. 44. lit H. Fitzh holdeth that for collation of a Prebend sued out of the realme a prohibition doeth lie Secondlie it is an vndoubted Praemunire by that statute to sue in another court to defeate or impeach the iudgements giuen in the kings court In these wordes of another court there seemeth to be an opposition and seuerance of such a court from the Kings court the rather because both the Preamble and the body of the statute do mention drawing men out of the realme in Plea Whereof at that time there was no colour for any man to be drawen any whither but onely to the court of the bishop of Rome whether he resided there at Auignon in France where the Popes about that time did lie 70. yeeres together at Bononie or elsewheresoeuer Therefore for the true vnderstanding of those words enquire If any of this realme of late yeeres whiles the parliament of Paris was established by the authoritie of the French king vpoÌ„ colour that the Queenes maiâ—…stie is in very right Queene of France should haue brought processe thence against another subiect to appeare there whether this had not been a Praemunire by that statute likewise If any of the Q. Courts not authorised therunto by law vpon writ of errour should defeate a iudgement giuen in any other of the Queenes courts enquire whether this be within the meaning of those words notwithstanding the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and distinction whereby such another court seemeth to be seuered and made a distinct thing from all the Queenes court Thirdly it is an vndoubted Praemunire according to the later of the foresaid two statutes to purchase or pursue or to procure so to be done in the court of Rome or else-where any such translations c. or any other things which touch the King be against him his Crowne and Regaltie or his Realme as is there aforesaid or c. as is there further conteined Fitzherbert reporteth 1 Fitzh tit Praemunire nu 5. that the opinion of the court was Paschae II. H. 7. that Alibi in the said statute was vnderstood of Bishops courts so that if a man sue there for a thing that belongeth to the Common law he shall be in the Praemunire Therefore 2 Brooke titulo Praemu nu 21. was it holden by some that a benefice Donatiue by the Patron is a meere lay thing and the Bishop shall not visit it and therefore shall not depriue from it and if he meddle in this case it is a Praemunire and sayth that Barlow bishop of Bathe for depriuing the Deane that had it as a Donatiue by the Kings Letters patents was driuen to sue a pardon Fineux chiefe 3 15. H. 7. fol. 9. Iustice saith a spirituall man may execute temporall iurisdiction as the Bishop of Durham doth in his countie Palantine viz. as he hath iura regalia but not as a Bishop and saith he the Bishop shall punish his Clerks by Praemunire for suing in Spirituall courts for a cause temporall But whether that Bishop hath this authoritie seeing Praemunire is brought in by statute there is a Quaere inde made as of a matter doubtfull It is holden that a Prohibition doth 4 24. H. 8. titulo Praemu num 16. often lie where a Praemunire doth not as of tithes of great trees c. for the nature of the action doth belong to the Spirituall court albeit not that very cause in that forme but when it is of a lay matter or of a thing that neuer did belong vnto the Court spirituall herein as is said there lieth a Praemunire But these notwithstanding sundry doubts are made in this behalfe because at this day all iurisdiction Ecclesiasticall is now truely acknowledged and is in deed as it was alwayes in law in the Souereigne prince and from her prerogatiue royall deriued downe to others no lesse then the Admirall court is or the court of the Constable of England in times past was when it was vsed albeit they vsed their peculiar seales and names to the processes there sped And I haue heard very credibly that some reuerend and great learned Iudges whiles they liued were of opinion that for an Ecclesiasticall Iudge to deale in a matter apperteining in very truth to a Temporall court yet for some neerenesse and cohereÌ„ce by him probably supposed to be an ecclesiasticall cause could not at this day be a Praemunire but subiect onely to a Prohibition and punishable as a contempt as it was at the Common law vpon an attachment after Prohibition Which opinion if it be sound then the Treatiser is farre wide from the truth where he saith that for men to deale in any cause not belonging to their iurisdiction is Praemunire This were very hard and rigorous if euerie mistaking or going beyond their commission by Iustices of Peace by any Iudges ecclesiasticall or temporall should be no lesse then Praemunire I haue heard it deliuered by great Lawyers that so to do doth but make the Actvoid as being coram non Iudice and inferreth no such grieuous penaltie For it is alleged that Alibi in the statute was put in to enclude processes deriued from the Popes authoritie albeit he kept his abode any where els then at Rome In which respect it is affirmed in a 1 25. H. 8. ca. 21. statute that the said statute of Prouision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the kings crowne and dignitie royall And it seemeth to some that Alibi can not now signifie Bishops and their Courts which are called the Queenes Ecclesiasticall courts and Iudges and the Canons by law established the Queenes Ecclesiasticall lawes Insomuch as the power giuen by statute to her
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.
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 coÌ„pelling 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 theÌ„selues nor may be coÌ„pelled by others as this opinioÌ„ importeth Is not this to giue cause of acquiting the wroÌ„g doer of coÌ„demning him that hath the very right and doth it not nourish or at least tolerate that sinne in the witnes which iâ—… coÌ„demned 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 sufficieÌ„t for a court ecclesiastical to haue no better meanes for bringing in of witnesses to testifie then teÌ„porall 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 teÌ„porall 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 AbridgemeÌ„t where they be gathered yea though the actioÌ„ 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 vpoÌ„ 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 saÌ„ctiones setting in the end of euery coÌ„sultatioÌ„ 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 persoÌ„s may be coÌ„pelled 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 〈◊〉 â—…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.
duelie done either preciselie or by that which is aequiualent vnto them And so we may conclude that to proceed in an Ecclesiasticall Court agaynst a crime otherwise then either by Accusation or such Presentment is not contrary or repugnant vnto the lawes of the Realme but rather the like course often practised by them and thereby the Iustice equitie of such proceeding more stronglie confirmed and iustified vnto vs and the contrarie opinion quite ouerthrowen CHAP. IX The second opinion here to be treated of is that No laie person may be cited of Office in any cause but Testamentarie or Matrimoniall the drift of that opinion is against proceeding of Office in matters criminall the necessarie vse and equitie of proceeding criminallie sometimes by the Iudges office in courtes both temporall and ecclesiasticall THe very drift of the second opinion that commeth here to be disputed of is that a Iudge ecclesiasticall may not proceed at all of Office or make speciall Enquirie which is the effect produced by that cause against any crimes or offences of late persons For in debarring them frō Citing any such the very whole proceeding against them vnto which that is the introduction is thereby also debarred and by restraining their citing of Office vnto causes onely Testamentarie or Matrimoniall all dealing against Crimes without there be an Accuser is thereby taken away Which second opinion therfore quite ouerthroweth the presenting of any laie persons though criminous allowed by the generalitie of the next precedent opinion insomuch as vpon Presentments followeth proceeding of Office by Enquirie and yet both these opinions had one Author So well bee these mens conceits digested But let vs first examine what may be the colourable occasion of this second opinion ouer and aboue the impounding of all ecclesiastical proceeding vnto those two heads spoken of in the first part sauing where the partie conuented himselfe is willing Which willingnesse in the partie for rights that may be supposed to be by him deteined but especially for crimes supposed by him to bee committed can neuer with any reason be intended that it shall bee obtained at his hands considering there is so small vse of any proceeding by office but against crimes and least of all in causes Matrimoniall or Testamentarie That no laie persons then should be delt with at all for such crimes as I haue before prooued to bee of ecclesiasticall cognisance but be suffred to do them without controlment I thinke in charitie not to be their meaning It must needs then follow that it is the proceeding against crimes ex officio Iudicis viz. without an Accuser which is hereby principallie condemned as vnreasonable or vniust Therefore to prooue it reasonable I mind here somewhat further to shew the necessarie vse equitie thereof as well in the one court as in the other And to cleare it from vniustice I wil declare first that it is both practised by the temporall lawes also is by common and statute law an allowed proceeding vnto courtes ecclesiastical next that it is practised not onely by the law Canon which many would take for a sufficient disallowance of it but also by the Ciuill lawes subiect to no such exception insomuch as they are vsed by the rest of Christendome for their Common law by the grounds whereof all their customarie lawes ordinances be argued disputed And lastly that such course of proceeding was vsed is allowed by sundry exāples in holy Scripture together with answeres vnto the obiections made to the contrary as they fall fittest into each of the seuerall parts of this disputation The equitie and necessarie vse of this course to bee holden may be shewed by the partie which by lawe is supposed to be the exciter stirrer vp of a Iudge vnto it whē none other person is found that wil prosecute This partie I meane is the 1 Clarus ibid. q. 7 publike interest which the Church or Commō welth hath to haue crimes punished Interest Reip. prouinciā purgari malis hominibus ne maleficia remaneant impunita poena enim vnius terror est multorū Bonis nocet qui malis parcit Sicut est misericordia puniēs sic est crudelitas parcens w t sundry other like rules of law Canon partly afore touched Now the publike interest doth not only rest in this when some benefite is comming towards the common treasure but is chieflie shewed by procuring common tranquillitie and repose of the subiect with sinceritie of religion and integritie of conuersation And it was called by the Romanes especially after the popular state was turned into a monarchie by the name of Fiscus and may well and significantly with vs in respect of the meaning be termed the interest of the crowne dignitie royall which by all offences are sayd to be violated Therefore doe the 2 Practica Millei fol. 3. nu 31. Ciuilians of other nations say In quocunque crimine fiscus est accusator against euery crime the benefit of the Common-wealth is an accuser And another 3 Clarus ibid. q. 10. saieth that in what crime soeuer a Iudge may proceed of office there Fiscus the common benefite stands in stead of a Partie And it is testified to bee a 1 Decius consilio 170. nu 1. common rule that euen in an offence but against a priuate person principally the iudge oftentimes is of office to proceed to the inflicting of some penaltie not expreslie set downe in lawe against such an offence for so is poena extraordinaria ment in the Ciuill lawe by reason of the very interest the Common wealth hath to haue misdemeanors punished In which 2 Clarus ibid. q. 12. respect some mā that by law may not vse action yet is not forbidden implorare officium Iudicis to stirre vp the Iudge by petition to proceed for his owne office and duties sake If her Maiesties most honourable councell together and euerie one apart if the Iudges of the land if carefull and vpright gentlemen of the Commission of Peace in euery countrey of office and for their dueties sake for the most part without any so much as priuate complaint much lesse professed Accuser or Partie but perhaps vpon some generall muttering yea and sometimes without so much for a care and vpon a feare at large onely conceiued what may happen did not or should not enquire looke into and take informations of riots violences disturbances of peace conspiracies felonies murders and of other misdemeanors and outrages and so seeke further to discouer them and to punish them or bring them to Iustice might it not iustly be feared that the realme would much more abound and ouerflow in all kinde of mischiefe Would the Constables abroad Headboroughs Bursholders and such other inferior officers and ministers of themselues preferre such vp or being found out and presented by others would they effectually folow and prosecute them as appertaineth so that the magistrates need not to take
iudgement be reasonable and iust Furthermore what doth this particular recrimination hinder the conueniencie of proceeding by office For doth that course of proceeding teach or require that men be punished without any matter proued Therefore if this should happen so to be yet is it onely the personall fault of the men and not of Law which establisheth proceeding ex Officio For though an Accuser should prosecute yet the Iudges if they were so vngodly minded might de facto offer this vniustice Yet this ought not to be any cause to condemne all proceeding by Accusation to be vnreasonable or vnequall But this is so farre from any tolerable answere vnto those obiections that it is in trueth nothing else then a very vntrue and â—…anderous imputation that will not nay cannot be iustified What Ministers depriued yea put in danger of losse of life or goods without any matter proued I cannot coÌ„iecture what further meaning herein he may haue otherwise then to slander except perhaps he thinke the Notorious wilfull contumacie of those that refused sundry times vpon their oathes to answere Articles obiected on her Maiesties behalfe for matters of their owne facts or within their knowledges and not touching either their liues or limmes so farre as by Lawe they were bound not to be a matter sufficiently appearing and proued to the Iudges whereas such their contumacie and contempt euidently appeared to the honourable persons Iudges and other sage prudent and learned men not onely to be most vntolerable but was iudged by them to tende also vnto the vtter ouerthrow of the whole fundamentall iustice of this Realme if it should be suffered I do read in deed 1 Inter epist. Caluini in folio pag. 421. 422. that the Ministers of Geneua do in a letter of their owne written to the Ministers of Berne against one Cumperell a Minister also of Geneua testifie no lesse of the Eldership there then here is traduced For because Cumperell 2 Two meanes to occasion Enquirie and examination of Office euen at Geneua did not answere directly as they thought before the Consistory or Eldership vnto their Interrogatories by them of meere Office ministred vnto him whereof two concerned his thoughts and the very cogitations of his heart so that they helde him thereupon as conuicted and for that there were vehementia indicia great presumptions with a common fame that he being ordeined Minister for a parish in their territorie called Drallian had neuerthelesse vnder hand sought to place himselfe in the territorie of Berne for this was his heinous fault whereof they then enquired Therefore the Consistorie pronounced Quòd erant iustae causae cur Ministerio abdicaretur that they were iust causes to depose him from his Ministerie So that albeit we haue no such Lawe or practise in England thanks be to God whatsoeuer the Note-gatherer saith to condemne a man without any matter proued yet some other Churches whom he his Consorts doe more admire then their owne thinke they haue warrant ynough euen vpon a fame and some tokens to depose a minister when they shal find that course meete to be vsed Another reason in that behalfe is alledged by Sir Th. More that the Lords of the Counsel vpon secret information call men of Office without any prosecutor vnto examination of matters criminall To which the Notegatherer answereth thus viz. that this is in matters concerning the state of the Prince and of the Realme in matters of allegeance and that a Iesuite or Seminarie priest may be examined by othe quia ipso facto a traitour First all the matters that their Lordships doe or may examine are not of such hie qualitie And if they were it is not the importance or hemousnes of the matter that can make Iustice of that which is Iniustice in it selfe as was touched by me afore And so be also sundry matters dealt with in some Courts Ecclesiasticall neerely touching the state of the Prince and Realme Besides it is a very strange allegation to say The Iesuits or Seminarie Priests may be examined by othe quia ipso facto traitours As if all or any traitours might be examined by othe of their treasons considering that to examine the partie by othe of matters touching losse of his life or limmes is flat contrary to the Lawes policie and custome of this Realme in both sorts of Courts yea and perhaps contrarie to diuinitie too as the Treatisoure his owne Camerade though fighting in the selfe same quarrell and following the same Coloures can and doth tell him That which hath bene said to these two last obiections may also serue to retoyne vnto his replie made against the obiection that the like course is vsed by Martiall Lawe But if this proceeding of office by Speciall enquirie be so reasonable and oftentimes necessarie how commeth it to passe may some man aske that the names of Inquisition and Inquisitours be holden so odious Admit those names be odious vnto many yet this without further reason may not serue to coÌ„demne y e course it selfe For many sorts of men be also odious perhaps without any iust desert or particular abuse in themselues other then for their office sake who are not therefore wholly to be reiected as Informers of concealments of poenal statutes Takers Purueyers Bailifes errand yea and some administers of Iustice too if they be any thing exact seuere therein Neither is this odiousnes generall against all Inquisition whatsoeuer but only against one particular course of proceeding thereby in the crime of heresie practised in some Popish dominions but of al other most rigorously and cruelly in Spaine yea as is supposed farre beyond their owne Commission that they haue from the Pope and yet their Commission is also in many points exorbitant from all Lawe and reason A writer in the Ciuil Law assigneth a speciall cause of the hatefulnes vnto the CoÌ„mon people of the Spanish Inquisition for matters of heresie 1 Albericus de Rosate in rub C. de haeret nu 6. Inquisitors of heresie saith he are hatefull and suspected of all Lay-men because of a long time it hath bene beleeued that they are wont to proceede vpon most light suspicions especially against those that be riche Nay in deede how can it be otherwise seeing their dealing by that Inquisition is especially against men of greatest wealth because vpon their condemnation their goods and lands are confiscated to the house of Inquisition that is to the Inquisitours themselues Now seeing none of these strange courses be vsed in any Criminall proceeding in this Realme there is therefore no iust cause here to make it hateful vnto any Yet the Treatiser doth imagine this kind of proceeding to be more frequent in Courts ecclesiastical within this Realme in respect of the Iudges owne fees thereby arising For answere whereof First in Courts of Commission Ecclesiasticall against which some haue the greatest edge and egernesse the Commissioners haue no fees at all no