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

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Decurions there Out of which place a 8 Alberic de Ros. in l. quotiens C. de precibus Imper. offer writer vpon the Ciuill lawe doeth gather that the Emperour may dispense with a mans oath Here then another great and not vnnecessarie doubt ariseth whether any man may discharge or dispense with another mans oath and if he may how farre and in what cases this may bee done In answer whereof we are first to vnderstand that according to the distinction of times into time past present or to come there is also diuersitie of oaths One kind of oath in such regard is termed Assertorie which is an affirmation or deniall with oath touching some thing that is past or present Nowe there is no doubt but that this oath cannot at all be discharged released or dispensed with by any humane authoritie for the matter of it being either concerning a thing past which cannot bee altered and reuoked or present which is also immutable insomuch as it is impossible for a thing both to be not to be at once therefore the oath it selfe must needs be vndischargeable and vndispensable for to giue a dispensation herein were no lesse then in effect to determine that it is lawfull to haue trueth wanting in some oaths insomuch as other dispensation then this the nature of things past or present cannot admit The other kind of oath is called Promissorie whereby a promise confirmed by an oath is made that some thing shall bee done or not done hereafter And about this kinde of oath the doubt onely resteth This Promissorie oath is made either touching such matters as doe immediately and apparantly tend to the aduancing of the glory of God or to the benefite of sundry others whether such benefit be spirituall or corporall or concerneth such matter which euidently derogateth from the glory of God or from the benefite of others or it is of a matter tending to the onely profite and benefite of some particular man to and for whose behoofe such promise with oath is made or lastly it consisteth and is bestowed vpon such matter as by reason of some euent happening or at least discouered afterward it may bee iustly thereupon doubted whether the oath it selfe doe binde or not bee lawfull or vnlawfull expedient or not expedient profitable or hurtfull to the partie all circumstances considered to bee kept and obserued In the first case of these foure no man can discharge from or dispense with such oath except either the oath were at first but conditionally made and the condition faileth or else were made by such one as is vnder an husbands or fathers subiection For in the first of these excepted cases in very trueth the oath bindeth not at all But yet some superiours declaration of so much is therefore necessarie because it is most dangerous to permit vnto euery simple and priuate mans owne discretion and iudgement how farre and where he neede or neede not to performe his promissorie oaths And in the later of the cases excepted an 1 Num. 30. per totuin ferè husband or father before he hath giuen any expresse or implied ratification may euen by Gods owne lawe discharge and disanull his wiues oaths and vowes or his daughters being made in her youth and in his house that is vnder his power of what sorte and qualitie soeuer they bee yea though such promissorie oathes haue bene 2 Ibid. v. 14. made by them to humble the soule and then by reason of such disallowance there of by their superiour it is there sayd The Lorde will forgiue her this breach of her oath and vowe made Now because in any sauing in these excepted cases this kind of oath is simply vndispensable therefore we doe detest the presumption of the bishop of Rome who taketh vpon him oftentimes to commute euen this kinde of oaths and vowes as hee saieth into better and so by this shift of descant hee pretendeth to discharge men from their formall oaths by them aduisedly taken and made to the glory of God and for the benefit of others The second sort of those foure kindes of promissorie oaths are such as if a man should performe hee should doubly sinne which point I haue somewhat touched in the question next going afore yet least a man doe erre herein by mistaking it is holden very requisite that he consult with wise learned Diuines both to resolue him whether such oath be simply vnlawfull by him to be performed and also to aduise him what course hee is to take in respect of his soule and conscience for his oath so vnlawfully and vniustly made In these vnlawfull oaths wee thinke that superiours whether Ciuill or Ecclesiasticall not onely may and ought to discharge the parties thereof if they be scrupulous and desire it but also may and ought to disanull and make them voyde though the parties themselues bee vnwilling thereunto And so wee finde that a 1 34. Edw. 3. ca. 9. Parliament here in England did enact in these words viz. That all alliances and couins of Masons and Carpenters and Congregations Chapters ordinances and oathes amongst them made or to bee made shall bee from hencefoorth voyde and wholy adnulled The reason of this disanulling of all such oaths was for that they were apparantly derogatorie to the publike good of the Common wealth With these kindes of oathes the man of Rome not onely dispenseth when they are alreadie made which were tolerable amongst them of his owne onely proper Iurisdiction but also in the pride of his heart exalting himselfe aboue all that is called God hee dispenseth with men aforehand to make such vnlawfull oathes and vowes and namelie of marriages and also to remayne in them being within the degrees Leuiticall which by God himselfe are prohibited plainely yet because for very shame hee seldome doeth dispense with marriages contracted or to bee contracted inter ascendentes descendentes as the father to marrie the daughter or his niece c. or the sonne to marrie his mother grandmother c. or yet in primo gradu transuersali aequali as the brother to marrie the sister therefore the Schoolemen and Canonists his Parasites but especially since the great case fell out betwixt king H. 8. and Katherine of Castill his deceased brothers widowe haue bene contented to turne those their former olde songs of Papa potest quicquid Deus ipse potest and potest tollere ius Naturae and instead thereof to say 2 Couarrauias now that in those aforesaid degrees of consanguinitie because they are of the lawe of nature the Pope their vnholy father can not dispense withall Neuerthelesse they do still no lesse resolutely then impudently hold that the prohibitions in the rest of the 3 Leu. 18. ca. 〈◊〉 20. Leuiticall degrees are not of the lawe of nature and therefore to be by the Pope dispensable But if they be lawes Ceremonial they are abrogated by Christ and need no dispensation of any mans