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
Bernard Serm. 65. 66. in canticum other sorte of heretiques in the time of Bernard that were termed Apostolici And by certaine other as it is written that were called Flagellantes where by the way wee may obserue that none in those dayes had learned absolutely to refuse an oathe in a matter made by the Examiners criminous vnto the parties examined or yet to their complices and brethren But for not reuealing their owne or their brethrens secrets those heretiques of olde time had learned perfitly ynough to conceale the trueâ—…h yea albeit they incurred flatte periurie by such their concealement or deniall of the trueth I wil now assaye to answere the reasons which I haue heard brought for y e establishing of this their conceipt But first I must put you in minde how vnreasonable incoÌ„uenieÌ„t it is to be accouÌ„ted in al practise of lawes For wheÌ„ the defendaÌ„t hath denyed a crime obiected or refused to answere yea or nay if it might be free for all y t by likelyhood can testifie thereof to make such pretense to y e intent to excuse theÌ„selues froÌ„ that necessarie dutie vnto y e commoÌ„-wealth what criminous person could or were likely to bee euer directly conuicted whereas by the ciuil 2 〈◊〉 6. § 4. C. de his qui ad eccles consugiunt lawes sometimes he that is supposed to haue appointed the delinquent to doe the facte he that is his suretie he that is called into question for the same crime he that is fellowe or familiar with the suspected person may be compelled to sweare depose of a crime By the coÌ„mon law if such as are supposed can giue euidaece for the Queene should not oftentimes bee compelled thereunto by authoritie would there not in many causes want due proofe for iusticeing and for execution of offenders But to this it is said that men are but bounde in an obligation or recognizance to prosecute the fellonie It is true what other bond shoulde any man enter for his apparance But if hee refuse that may he not be sent to the gaole himselfe And when hee commeth before the Iudges hee is bounde also by a necessarie oathe to giue true euidence to the vtmost of his knowledge against the prisoner or person to be tried Which if he shall refuse he is like to stand in boltes with him whose fault he mindeth to conceile as hee well deserueth and happely may be condemned to pay a rounde fine besides for his notorious contempt and for abbetting of offenders in their lewdnes If it be said as some haue obiected that it is not amisse to certifie so the partie bee willing but that it is hard to bind him vpon his oath to testifie whatsoeuer he knoweth against the defendant touching that matter truely I cannot gesse whereunto this speach may tend except witnesses might say what and how little they list of the trueth or els that they would haue mens words to be beleeued against others to their coÌ„uiction without any oath But what matter can be confirmed without oathe in any outward actions of men not knowen by some sense vnto y e Iudge it is the law of nature and nations to beleeue no man against another without an oath For why should not any mans bare denial for his owne clearing bee as strong as many other mens bare words for his condemnation quia proniores esse debemus ad absolueÌ„duÌ„ quà m ad coÌ„demnanduÌ„ Therefore the holy Ghost noting it to be a law of nations that no mans word vnsworne should be receiued thus testifieth that an 1 Heb. 6. v. 16. oath for confirmation is amongs men indefinitely therefore most vniuersally an end of all strife It is 2 Alex. ab Alex. Gen. Dierum Lib. 5. cap. 10. told as amaruaile of one only amongs y e heatheÌ„ named Zenocrates for whose bare word the Athenians by alawe decreed that it should be holden of as great force as his oath in all matters such was his rare and singular vprightnesse integritie Touching their reasons I make this to be the first as most general viz. Because they haue not iustly incurred the Magistrates displeasure by any offence therfore they cannot hold themselues bound in conscience to be the Magistrates iustruments against such as be none offendours To which may be added that they are bound to seeke rather the deliuerance of the Innocent because it is said 3 Prouerb 24. ver 11. Deliuer them that are drawen to death and wilt thou not preserue them that are led to be slaine And it is noted as a sinne in S. Paul himselfe that he 4 Actes 22. v. 20. stoode by consented to Steuens death and kept the clothes of them that slue him As if they should say We haue gone in this matter as farre as our brethren we know our course to be good whatsoeuer the lawes or the Magistrates determine or thinke to the contrary that doe but seeke to punish vs for it And seeing we are so well perswaded of all our innocencies we may not be any instruments of our owne or their further detection for this were to consent to haue guiltlesse men punished But is not this to take vpon theÌ„ being but witnesses of the fact to iudge also of the lawe what it ought to be and to condemne it as it is and is it not in effect asmuch as to condemne the lawes of vniustice and the magistrats of tyrannie persecution and of seeking the vexation of innocents But if the lawes were such yet at the commandement of the magistrate to tell the particulars of these their actions so iustifiable as they thinke whereof the Magistrates already knowe the generalitie is not to consent vnto the punishment of innocents Doth euery one that confesseth his owne crime pleadeth guiltie in a cause capitall consent to his owne death or is thereby giltie of his owne blood then why is he more consenting or guiltie to their punishing due by lawe for these actions who onely declareth them truely as they are more theÌ„ he that confesseth being in deed guiltie may be said to be guiltie of his owne death It is a subiects dutie most especially in causes not capital to himselfe if he be required by authoritie not to dallie nor to lie vnto the Magistrate but to tell the fact truely as it was whomsoeuer besides it may concerne Now if thereupon either the Magistrate punish it where he ought not or more grieuously then law permitteth or if the lawe punish that as a crime which is a vertue the fault and guilt before God is not in them that declare the trueth but either in the Iudges or in the lawe Nay to enforce this point a little further I would aske this question of euery of theÌ„ that be of y e side A man being of necessitie to plead either guiltie or not guiltie to a crime capital vnto him or els to be pressed to death if he be guiltie of the fact and yet
happely he knoweth there can be no pregnant no nor any likely euidence brought against him whether in foro conscientiae without any sinne may such a man pleade not guiltie vnto the matter of inditement for the time place and other wordes of fourme and course are not trauersable on the other side if in this case hee pleade guiltie being so in deede whether is he thereby guiltie of his owne death or not But if for auoyding of sinne before God such one ought in conscience to plead guiltie rather then lyeÌ„ and yet shall not thereby be made guiltie of his owne death why shall y e declaring of the trueth touching other mens actioÌ„s make him y t reuealeth it being charged thereunto guiltie or coÌ„senting vnto their punishmeÌ„ts how vniust soeuer otherwise they might be surmised to be for if any mans faults may be spared a man might most lawfully spare himselfe quia Ordinaria charitas incipit à seipsa And to presse this reason à Paribus at least if not à fortiori a little further If such a man shoulde chuse rather to be pressed to death for standing wilfully mute and not answering directly vnto either should he not de iure poli euen in true termes of Diuinitie be accounted guiltie of his owne death to be in the sight of God a murderer of himselfe the very like therefore is to bee iudged of these persons viz. that their punishment as coÌ„uicted of the crime is most iust that their blood is vpon their owne heads that none are causes of y e punishment inflicted vpon them but themselues for standing obstinately mute without direct answering in fourme of lawe as they ought though it were admitted that such their actions whereof they bee interrogated were all good and they innocents And as the reuealing of other mens actions when we are duly charged maketh vs not guiltie or consenting to their punishment so our refusing to answere neither is any meanes in deed nor yet is so appointed of God to serue for their deliueraÌ„ce For God wil not allowe to haue innocents deliuered by our disobedience to his LieutenaÌ„ts on earth nor by concealemeÌ„t of any trueth expedient to be knowen according to law commanded to be declared And therefore y e place of the Prouerbes by theÌ„ brought fitteth not this purpose For if they for their obedience sake with a single heart without intent to hurt the innocent and being charged shall deliuer but the very plaine trueth how vniustly soeuer the magistrate may seeme to deale afterward yet shal not the discouerer of the trueth bee a partaker of the magistrates sinne For it is but he 1 Prouerb 24. ver 8. which imagineth to doe euil whome men shall call an authour of wickednesse as is recorded in the same Chapter The other place out of y e Acts is nothing like to y e matter case that we haue in hand For Paul was not there charged by autoritie to bewray any thing he knewe against Steuen much lesse to deale at all in that action But hee willingly as one forwarde of himselfe and of a malice against the very profession which he then detested did thrust himselfe into the cause and rather then he would not be some stickler in it he thought good to do some office of kindenes vnto the tormeÌ„ters executioners of that holy Martyr though it were but by keeping their clothes thereby he directly gaue approbation and consent vnto Steuens death Yea this their opinion is without any other like example in any text of Scripture except perhappes they will gather it from an obseruation and note pretended to be collected from the next Chapter following For I finde an opinion collected thence which iumpeth with theirs in this behalfe 1 Rhemish Testament in annotat cap. 23. Act. A. post ver 12. If thou bee put to an oathe saith that note to accuse Catholikes for seruing God as they ought to doe or to vtter any innocent man vnto Gods enemies and his thou oughtest first to refuse such vnlawfull oathes But if thou haue not constancie and courage so to doe yet knowe thou that such oathes binde not at all in conscience and lawe of God but may and must be broken vnder paine of damnation They will not confesse that they haue sucked this opinion from hence and they may not be endured to flappe vs out with T. C. their olde dogge tricke and to say they borrowed it not of the Papistes but obserued so much themselues by reading of the Bible For this were both to iustifie their owne and with-all this corrupt doctrine of the Iesuites as if they both so well agreeing together were arightly grounded vpon the worde of God But they bring seuerall places and examples whereby they thinke this is prooued The officers of the children of Israel that were appointed by Pharaohs taske-masters to looke that the people shoulde make as much Bricke by day and gather the strawe themselues as they did when strawe was found to their handes seeing that the people were not able to perfourme it and yet were beaten for not doing it did signifie the impossibilitie vnreasonablenes of this vnto the king But the king gaue them a resolute answere that they shoulde doe it vpbraiding them that it was but idlenesse which made them pretend that they would goe to offer sacrifice vnto their God Which thing was the ground of Moyses and Aarons suite vnto him that the people might haue leaue to goe into the wildernesse So when these officers comming with this hard answere from the king did meete with Moyses and Aaron they expostulated thus with them Ye 1 Exod. 5. vâ—… 21. haue made our sauour to stinke before Pharaoh and his seruants in that ye haue put a sword in their hands to slay vs meaning that their sute for going forth to sacrifice did so discontent y e king that he would in that respect oppresse them euen vnto death But what is this to purpose doth this phrase of putting a sword into another mans hand so please these men that they will imagine by what occasion soeuer a wicked man pickes quarell to oppresse Gods children that such a thing whereupon the occasion is taken of necessitie is vnlawfull to be done from the best actions of godly men tyrants will oftentimes take occasion to persecute the whole Church shall therefore all exercises of religion be intermitted Euen in this place the message that Moyses and Aaron brought to Pharaoh which occasioned such oppression to the children of Israel was put in their mouthes by the Lord. And therefore they sinned not albeit this was like to haue turned to be as a sword to destroy vp all the children of Israel but rather these officers did offend that thus did mutine and grudge against those who fulfilled Gods coÌ„mandement and did but as they ought to do Euen so shall they offend likewise that shall be displeased with such as doe
and the other is forbidden to be done 1 Arg. l. 13. cùm ita ff de rebus dubiis A disiunctiue argueth seueral things that had neede to be expressed by seuerall wordes And by like reason it cannot be meant of witnesses depositions for if the partie conuented shall be content de facto though he be not compellable by lawe as this opinion presupposeth to denie the intention of his aduersarie then no Lay witnesse might in any such other cause ecclesiasticall be vsed either to depose with oathe or without oathe because both be forbidden and so no plea in any such other ecclesiasticall cause coulde be holden which is afore prooued to be otherwise and therefore consequently that is not the meaning of these wordes of the writte which is by 1 Fitzh nou na breu fol. 41. a. Fitzherbert and others that follow him enforced Touching the writ of Attachement thereupon whether as it is set out in the Register it may be holden to haue bin an originall writ at the Common law drawen at first by the grauest aduise in the Realme to be so perfite as that nothing further then is expressed by the words neede therein to be vnderstood to come by the true meaning may partly be gathered by that which followeth First it is said pone talem episcopū not vsing letters for his name as in most of the other writs Next a Bishop who in that he hath a Barony is presumed to haue temporalties whereon to be distreined is here appointed to finde vadios plegios Thirdly it hath laicos homines foeminas as if women were not homines seeing homo is the cōmon gender Fourthly though the prohibition whereupō it is framed forbiddeth both recognitiōs to be made and oathes also to be taken by lay men yet the Attachement wholly omitteth the making of recognitions And yet howe many oathes soeuer should be giuen if none answeres or depositions doe thereupon euer followe which two the opinion that we impugne meaneth by recognition what colour of preiudice doeth or can growe that either Prohibition or Attachement should neede to be awarded Fiftly neither by Ciuill nor Canon lawe neither yet by practice doth any sommons or citation goe out of an ecclesiasticall court in such sort as this Attachement assigneth to be a preiudice vnto the royall dignitie viz. ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis For it were a grieuance giuen euen at the Canon lawe if an Ordinarie should either call any being not a partie or necessarie witnesse in some matter depending or should call witnesses against their will not being first required and hauing their charges offered or if he should do it when there is no cause but 2 Pro voluntate sua for his owne pleasure as this writ implieth Sixtly the proceeding hereby condemned is saide to be done in praeiudicium graue coronae dignitatis nostrae regiae But if no matters be thereby drawen from the kings courtes as in deede none be though you followe the interpretatiō thereof by some enforced then what preiudice commeth to the crowne For though lay men be vrged to depose vpon their othes in all other causes besides that be of Ecclesiasticall conisance what damage or detriment doth the Crowne and dignitie royall thereby susteine more then it doth by their compulsiue deposing with othe in causes Testamentarie and Matrimoniall which this opinion admitteth and alloweth of For if none other causes Ecclesiasticall then those two could conueniently be proceeded in nor any remedy could be giuen by a court Ecclesiastical for want either of the parties answere or witnesses depositions vpon othe yet could not Temporall Courts as the Lawe standeth giue any more remedy in them And so no preiudice to them or to the Crowne that Courtes Ecclesiasticall do proceed as they do to the determination of such causes Nay rather on the other side it were a preiudice to the Crowne that subiects should offend and no good meanes should be found by Law to punish them or to haue a right yet no way for them to come by it Seuenthly that which is there condemned is said to be 1 Consuetudine praed vsi fuerimus semper libettatibus huiusmodi Prohibition in Rastell tit Prohib nu 6. contra consuetudinem regni nostri which doeth strongly argue that vrging parties in other Ecclesiastical causes to put in their answere vpō their othes or witnesses so to testifie is neither by that fourme of Prohibition forbidden nor by the Attachment thereupon ment to be disallowed For first the custome of diuers Courts Temporal requireth parties answeres vpon othe and likewise alloweth Writs of sub poena and other processe in sundry cases to compel witnesses to come in and to testifie their knowledge And againe in Courts Ecclesiastical the custome hath alwayes bene to require othes of parties and witnesses though otherwise vnwilling in maner as is a fore touched Which may appeare both in that the Lawes Ciuill and also Canon which they deale by doe require it and that no bookes of Actes Ecclesiasticall as I am verely perswaded can be shewed whether of olde or later times by which it may not appeare that this course of compelling parties and witnesses to take othes in other causes then those two hath bene vsed so often as occasion hath required And therefore not this but some other maner of proceeding it was which by the Writte of Attachment is meant to be contra consuetudinem regni Lastly this fourme of Attachment mentioneth not so much as excepting of compelling to take othe in causes Testamentarie and Matrimoniall albeit the prohibition haue that exception And therefore for auoyding of iarre betwixt them something must necessarily be vnderstood to haue bene at first in the Writ it selfe whereof this is a minute further then is here expressed And why shall not then the clause de catallis debitis be vnderstood therein aswell as this other seeing so strong probabilities doe leade it and so many absurdities and inconueniences be thereby auoyded which the late enforced interpretation doth necessarily inferre with it selfe Therefore wee may conclude this second point that to debarre Courtes Ecclesiasticall in any cause of that Iurisdiction from exacting parties conuented to put in their answeres vpon their othes or from compelling such witnesses by censures to testifie who being required and their necessary charges being offered doe neuerthelesse refuse to testifie a trueth is not nor yet can be the meaning of that Prohibition or of the Attachment thereupon The last point of the three to be touched is concerning the true meaning of those wordes of the Writte whence these controuersies haue flowed It is therefore to be remembred that it was very vsuall for men in those dayes at making of any contracts whether in matters of Lay fee or others for their more securitie to make faith or othe for performance This they either did priuately for
Treatiser putteth vs in minde of viz. that in K. H. 3. time there was a iust sentence of curse and anathematization denounced by the Bishops against the violaters orbreakers of the said great Charter But what if Bishops should vse the like authority now to excommunicate indefinitely and aforehand all such as shall hereafter breake some temporall law it is to be doubted that the Treatiser would not in this case be the same man nor yet affirme it to be a iust sentence but would rather threaten them with a Praemunire for their kindnesse It is assured that par in parem non habet imperium and none authority can so binde it selfe by any law but that vpon good occasion and by like power it may be abrogated againe Yet how litle this plea of ours is needfull in this case is sufficiently shewed Yea rather the defenders of these such like opinions against the rights and liberties of the Church of England notoriously knowen so to be by the reported lawes customes thereof to them that know any thing in either had need more iustly to feare that censure of the Bishops if it be so iust if so be they cary any feare at all or reuerence vnto the censures of the Church which be so iustly inflicted as themselues do yeeld As these opinions do onely reach and shoot at the commission ecclesiasticall to impound and streine the authority thereof vnto so narrow a roome as that her Maiestie should thereby haue no seruice done by those her subiects which are imployed therein wherby the fansies of the fauorites of these men might more freely growe without discouery or any such penal◅ie as they thinke they need care for so for the iust defence herein of that commission I may allege the words of the same statute whereby it is established 1 1. Eliz. cap. 1. viz. They shall haue full power and authoritie by vertue of this act and of the said letters patents vnder your highnesse your heires or successors to exercise vse and execute all the premisses according to the tenour and effect of the said letters patents any matter or cause to the contrary in any wise notwithstanding By which words tenor literarum is signified whatsoeuer tenent in se viz. that which is expresly conteined in them by the effect of them is vnderstood whatsoeuer is within the true and vnforced meaning of any such letters patents So that if attachment fine imprisonment c. be either in the letters patents expresly conteined as in trueth they be or vndoubtedly meant by them then the vse and excercise of these shall thereby sufficiently be warranted and authorized vnto her Maiesty for granting and to the commissioners for so executing And if any doubt otherwise might be made yet there be two clauses in the words aforesaid that be called verba siue clausulae operatinae and do therefore supply many defects and wants in the exercise of a iurisdiction delegated by the Princes rescript The first of them are those words Full power authoritie and the other is the generall non obstante in transcendenti viz. of any matter or cause whatsoeuer But to all this is answered by some that these words viz. according to the tenour and effect of the said letters patents do worke thus much that her Maiestie need not grant all but so much iurisdiction as her Highnesse thinketh meet and that so many or few of them so they be two atleast may thereby be authorized vnder her Maiestie to exercise such iurisdiction It is true that those words so worke and import so much but doeth it heereof follow that nothing else is meant or can be comprehended thereby Nothing say they for other processe then citation or other censures or punishment then excommunication c. her Maiestie can not commit vnto them else might she also giue them authoritie to hang men What is there no more difference with these men betwixt attaching fining or imprisoning and plaine hanging What will they then say of the Starre Chamber which may impose all those three and yet cannot put any man to losse of limme or of life and this is great reason For we are taught by the Ciuill lawe and I thinke it is agreeable also to the lawes of the land that wheresoeuer an authoritie is giuen in neuer so generall or pregnant wordes it cannot be drawen foorth to reach vnto any mutilation of limme or paines capitall except they be plainely expressed Other some as the Treatisour doeth answere this obiection in this sort but yet to the ende of prouing othes of the parties in causes criminall to be vnlawfull a matter to be handled in the thirde part viz. that how general soeuer the words of the acte be in one place yet are they to be restrained to this particular viz. none other then such iurisdiction ecclesiasticall as may be lawfully vsed and entending per petitionem principij that such oathes be contrary to law But in this his interpretation he saith he contrarieth diuerse great learned men in that lawe whom it behoueth with a more narrowe eye to beholde this statute lawe Truely halfe an eye of a meane learned man will serue to discouer that he cautelously leaueth out one member of the disiunctiue alternation which is in that statute For it is thus viz. all Iurisdictions c. whatsoeuer by any Spirituall or Ecclesiasticall power or authoritie hath heretofore bene or may lawfully be exercised c. So that if either it haue bene exercised at any time or hauing not bene put in exercise yet lawfully may be it is here graunted to her Maiestie And were it in deede meete either in temporall or spiritual Iurisdictiō to leaue it to the dispute determinatiō of euery priuate subiect that is dealt with what may be lawfully and what may not so be done in either lawe The Treatisour nor any other cannot in answere hereof say that the worde lawfully must also be vnderstood as repeated in the first member First because it is a disiunctiue proposition and therefore that word should haue bin expressed in the first part if it had bin to be drawen vnto both and not to haue bin put in the second part onely Secondly for that it would then take away from her Maiestie all such ecclesiasticall authoritie being most lawfully in her Highnesse as was heretofore exercised by or vnder the Pope by vsurpation and therefore most vnlawfully Neuerthelesse the matters graunted and exercised by the commission which are by him chalenged I trust God willing shall be also otherwise prooued lawfull and warrantable Against imprisoning by vertue of the commission one of the speciall matters nowe in handling the said Treatisour obiecteth that such parties as refuse to sweare to answere the articles exhibited against them are imprisoned without baile or maineprise whereas by the lawe ecclesiasticall they ought not to be imprisoned but to be proceeded against as pro confessis It is true that by Ordinary authoritie
pursuite of the writ De excommunicato capiendo being ouer-trouble some and full of vnnecessary circumstances But hereunto he doth answer that we forget the olde and true saying Compendiaria res improbitas virtus longa Now if he will haue this to be a good answere then must he holde the shorter way alwayes to be the woorse and the longer the better And where is then the rule of Logike Frustrà fit per plura quod fieri potest per pauciora and how is he so suddenly fallen out with himselfe that else-where condemneth Courts ecclesiasticall for lingering consistories I perceiue neither long nor short will please him long together But his reason is a fallacie of the consequent For though it be but a short cut vnto wickednesse and the way vnto vertue be long and hard yet is not all length commendable nor yet are all short courses condemnable The latter opinion of the two here also to be handled doth crosse thwart other of their owne opinions for the Ciuill law saith Frustrà fertur sententia nisi parata sit executio A decree or iudgement is of no effect where execution of such sentence can not be had The Iudges ecclesiasticall haue no compulsorie meanes to put their iudgements vnto finall execution sauing excommunication the writ De excommunicato capiendo after forty dayes obstinacie Those of the impugners of ecclesiasticall iurisdiction vnder pretence of the lawes of the Realme that be straitest laced doe yeeld causes testamentarie and matrimoniall to be of ecclesiasticall conusance and I hope sundry others be prooued no lesse to be Now how shall any of those be euer effectually proceeded in seeing they are none of the tenne crimes reckoned in that statute if for not performance of that which is decreed the wilfull partie shall neuer be attached for persisting vnder excommunication It appeareth also plainly by the Preamble that the sayd statute was enacted for better assistance vnto iurisdiction ecclesiasticall by more due execution of the writ De excommunicato capiendo especially against offenders in crimes of ecclesiasticall conusance The Ordinaries afore this who had to deale in any matter ecclesiasticall and all subiects that sued any other there had this interest of hauing a contemptuous person being excommunicated and so remaining aboue fortie dayes to be attached and imprisoned by vertue of that writ vpon what originall cause ecclesiasticall soeuer such contempt grew Now if that statute prouiding but a straiter course for execution of that writ in tenne crimes onely should with all take away the force and vse of it as it stood afore at the Common law not onely in sundrie other crimes of ecclesiasticall conusance still there punishable but also in all causes Testamentarie Matrimoniall of tithes and in all other rights ecclesiasticall in that Court onely still demandable then should it worke a cleane contrary effect to the very true drift and scope aimed at and to the meaning it selfe of the Law-makers But this is very vnreasonable and absurd to imagine for quae in fauorem sunt introducta non debent in odium retorqueri and quae ad vnum effectnm parantur non debent contrarium operari effectum It is true that in the beginning of the body of that Statute the words be generall in this sort viz. Euery Writ of excommunicato capiendo that shall be granted out of the high court of Chancerie against any person or persons c. Whereupon some very learned in those lawes haue thought that the maner of granting it returning and deliuering it which be there especified doeth reach vnto all and euery writ de excommunicato capiendo but yet that the new penalties there prouided for such person excommunicate as shall not yeeld his bodie are to be restrained vnto those onely who by Significauit are certified to haue bene excommunicated vpon some cause or contempt arising vpon some originall matter of some of those ten crimes there especified This seemeth to carie great reason with it for in trueth that generalitie there not withstanding not only in the Preamble but in diuers partes of the body of that statute we find wordes taxatiue and of restraint carying the chiefe purport of that Act vnto such writs as be grounded vpon some of those ten crimes For the Preamble onely speaketh of persons offending in many great crimes and offences of continuing in their sinnefull and criminous life and of such offenders And the beginning of the bodie of the Statute is for redresse thereof be it c. and afterward this word of Limitation is often vsed viz. Such writ of excommunicato capiendo such persons excommunicate and such Significauit And therefore that statute nor any Prouiso in it cānot be entended generally to take away the writ de excommunicato capiendo in all causes sauing in those ten crimes as by this opinion is enforced But the clause thereof Sauing and reseruing to all persons hauing authoritie to certifie excommunicate persons doth put all this matter out of doubt and dispute For thereby is saued and reserued to them like authoritie to accept and receiue the submissions satisfactions to absolue and release and to signifie and thereupon to haue such writs c. in such maner and forme as heretofore respectiuelie they haue vsed as hath bene accustomed and as they or any of them had or ofright ought or might haue had anything in that statute specified or conteined to the contrary here of notwithstanding If then they may still signifie in like maner and forme shall haue writs thereupon may absolue and release receiue satisfaction and submission c. as they had done before that time then may and ought the writ de excommunicato capiendo to be awarded for contempt arising on other originall causes ecclesiasticall then any of those ten crimes in that statute reckoned For so Ordinaries did and had afore that time and since also whatsoeuer this opinion now doeth deliuer to the contrary CHAP. XVII Of a Prohibition what it is where it lieth not and where it doeth and how it ceaseth by a Consultation of the writ of Indicauit WHen any Court goeth beyond his bounds and dealeth in other matter or sort then the lawes of the land will warrant there lieth in some cases writs at the common lawe which are of Prohibition or Indicauit and in other cases a writ brought in by statute called Prouision and Premunire and the Prohibition and Praemunire doe lie as well against temporall as against ecclesiasticall Courts The Prohibition is a charge by the kings writ to forbeare to hold Plea either in some matter or maner which it is supposed a man dealeth in beyond his iurisdiction or otherwise then lawe will warrant Euery Prohibition is either Prohibitio iuris by the very lawe it selfe or Prohibitio hominis where the ministerie of the competent iudges in that behalfe is vsed Any Statute prohibitorie is 1 21. E. 3. fol. 29. Prohibitio Iuris a very prohibition
in it selfe and therfore it is a contempt to sue against it In a prohibition we are to consider In what matter it lieth not at what time it lieth not where and when it lieth how it ceaseth or looseth his force For the first it is 2 18. Edw. 3. pro clero ca. 5. prouided by statute and the king there determineth thus that no prohibition shall goe out of the Chancerie but in such case where we haue the Conisance of right ought to haue And therefore Thirning 3 M. 2. H. 4. fol. 15. said when we see the iurisdiction belongeth not to vs wee will graunt a Consultation So that if the matter be meere Ecclesiasticall there lieth no Prohibition Touching the second point it seemeth a Prohibition is not to be granted till by sight of the Libel there appeare cause to grant it For 4 31. H. 6. fol. 14. Henkstone held that by the statute de Regia prohibitione de coniunctim fe offatis in fine a man shall not haue prohibition antequam lis sit contestata in curia spirituali which is till a libell be put in and the partie put to answere it this is to be certified to the Chancellor by the view of the Libell which Fortescue granted But this hath two exceptions one is when the copie of the Libell contrary to the Statute 2. H. 5. is denied for vpon this cause I finde a 1 M. 4. E. 4. fol. 37 prohibition granted that the Ordinarie should surcease till the copie of the Libell according to that statute were deliuered another exceptiō is in some court where a surmise is made that the suite in trueth is for some other matters then are expressed in the Libell for Brooke reporteth that 2 Brooke tit prohib nu 17. a man may haue a prohibition in the kings Bench vpon such a surmise as for example by surmising the suite to be in deede for great timber though it bee demanded in the Libel vnder the name of Sylua caedua but he saith it is otherwise in the Common Pleas. Touching the third point for what causes a Prohibition is granted I find it may be granted either in respect of some of the parties to the sute or in regard of the Iudge before whom it is or for the very matter handled For the first of these three If a 3 T. 12. H. 7. fol. 22. Parson of a Church do sue another Parsons farmour or seruant for right of tithes being not such as can trie the right of tithes Fineux held that a prohibition may be granted Here of see further in the 6. chap. afore Touching the second it may be granted either for the Iudges contempt as in not deliuering copie of the Libell as is afore touched or for that he hath not in deed any iurisdiction for so it was iudged by Hankeford and by the whole Court as it seemeth in the vicar of Saltash his 4 M. 2. H. 4. fol. 15. case being cōuented before the Popes Collector Though a Consultation did otherwise lie the court wil not grant it to one that hath no iurisdiction in right Concerning the third and last poynt of the three if the matter bee Temporall that is such as 5 Stat. de consultat 24. Ed. 1. there lieth redresse for by some Writte in the Chancerie then there lieth a Prohibition as seemeth by Statute to which agreeth the 6 Lib. 2. ca. 24. place before alleaged out of the booke of Doctor Student Yet this hath also two exceptions one is whereas the Spirituall Court holdeth Plea quite to another end For 7 Artic. Cleri 9. Ed. 2. cap. 6. when one the selfe same case is debated before Iudges spiritual and temporal as for beating of a Clerke there the statute is that notwithstanding the spirituall iudgement the kings Court also shall debate it For both these conisances tending the one to the amends the other to the excommunication may stand together as is shewed in the 8. chapter The second exception hereof seemeth to be 1 T. 9. H. 3. per Fitzh Prohib when one Clerke sueth another in the spirituall Court for the goods of his house for there lies no prohibition as when one Abbot sueth another Secondly a prohibitiō lieth where a matter being at first ecclesiasticall brings at last in debate a meere temporall matter with it to be determined Therefore it was holden that so soone 2 38. H. 6. fol. 21 as it appeareth that the right of tithes comes in debate the laie Court shall cease and be out of iurisdiction and the same law is of the spirituall Court for if it may appeare that the right of aduowson may come in debate although it appeared not at first the spirituall Court must surcease quod fuit concessum This may happen as for example when suite is brought at first for right of tithes and it fals out by depositions or otherwise that the tithes 3 Circumspectè agatis 13. Ed. 1. demanded amount to the 4. part of the benefice by yeere in which case it is determined that the temporall Court shall haue conusance euen as if the right of Patronage were in demand principally Thirdlie a prohibition lieth for such a cause 4 Doctor Student Loco d. as albeit there lie none action for it in a temporall Court yet the matter is such as of custome neuer belonged to an ecclesiastical court As if an ecclesiasticall court would hold Plea against an executor vpon a bare contract made by his testator for neither the court may heare it nor yet there lieth action for it in a Temporall court Fourthlie there lieth Prohibition when the suite tendeth to determine and giue execution in a temporall matter as money c. being due otherwise then by the iudgement giuen in the Court ecclesiasticall Therefore if a composition by indenture 5 11. H. 4. fol. 85. be made by an Ordinarie betwixt two ecclesiasticall persons that the one shall haue tithes the other an annuitie with penaltie for default of paiment the suite for this shall bee at the Common lawe but the suite for any thing that riseth vpon a iudgement giuen in the spirituall Court shal be there per Hill For 6 T. 12. H. 7. fol. 22. though amends bee to bee made by a certaine summe of money this is no necessarie cause to grant a prohibition no more then when the suite is for tithes yet the condemnation in money being the valew of them nor when a penance is redeemed by the partie for money which may be sued for in a spirituall court per Butler Because when an offence is done to a man it is 1 Ibidem reason that he haue amends for it but there can be no more proper amends then money because euery thing may be valued by money per Keble Which they speake to prooue that amends in money may be awarded in an ecclesiasticall Court for Diffamation
one of those books which the Note gatherer doth alleage against this course though in trueth it haue no one word tending that way Belike he thought no man had the booke but himselfe because it may be he casuallie happened vpon it in rifeling amongst other olde bookes cast aside in some Stationers shoppe To like effect the same booke hath that 9 Ibid. if a man bequeath a bullocke to a church for reparation of it or of the churchyard if he that hath him will not deliuer him either the Church-wardens may sue for such detinue in a court ecclesiasticall or the Ordinarie may ex Officio call him and vrge him to deliuerie And the like is there testified being taken out of the Register in a more grieuous crime of ecclesiasticall cognisance For saieth he 1 Ibid. ex Regist in br orig pag. 45. a. if the Iudge ecclesiasticall cite a man of office for fornication c. a prohibition or appeale being brought he after renounceth all delayes and submitteth himselfe the Iudge shall proceed ad poenam Canonicam imponendam vpon a consultation or writ vnto him to be directed Likewise the Register is very plentifull in this behalfe as first where 2 Berous in rubr de accusationibus nu 10. Enquirie which is alwayes ex officio is not onely allowed but commanded to be made by a Iudge ecclesiasticall 3 Register pag. 54 b. Uobis mandamus quòd habita super praemissis per Inquisitionem alios modos informatione pleniori c. and for the very word of proceeding ex officio as where it was written vnto the Officiall of the court of Canterbury or his Commissarie thus 4 Register pag. 57. b. Cum vos nuper ex Officio vestro fama publica referente quod T. c. vestrae iurisdictionis C. in amplexibus fornicarijs tenet ipsam coraÌ„ vobis in curia christianitatis pro correctione animae suae in hac parte citari feceritis procedentes contra eum ibidem iuxta Canonicas sanctiones c. vobis significamus quòd in causis praedictis ex officio vestro quatenus ad correctionem animae c. procedere facere poteritis quod ad officium vestrum speciale de iure noueritis pertinere c. Likewise in another Consultation it is conteined thus viz. Cum vos 5 Register pag. 57. a. nuper vt acceâ—…imus iuxta officij vestri debitum obieceritis Ioanni de E. parochiano de C. quòd ipse c. detinet c. vobis significamus quòd in causa praedicta quatenus adrestitutionem c. ad poenam canonicam eidem I. pro detentione eorundem legatorum imponendam coram vobis agitur licite procedere c. poteritis And againe thus Cumper 6 Register pag. 54 b. vos contra H. de Lyndesey NotariuÌ„ publicum super 7 Vide 3. part c. fornicationis crimine infra iurisdictionem vestram commisso grauiter infamatum tum super dicto crimine quam super eo quòd iurisdictionem vestram per tumultum rixas executionésque vestras in hac parte debitè faciendas nequiter impediuit ex officio ad animae suae correctionem fuisset processum c. vobis significamus c. quod procedere poteritis Mention is also there made in a precedent of a Consultation of proceeding 8 Register pag. 51. b. ex officio ad promotionem parochianoruÌ„ in these words Cum ex officio ad promotioneÌ„ dictorum parochianorum traxeritis in placitum c. vobis significamus quòd procedere poteritis c. Furthermore there is mention made of one who by that course was proceeded lawfullie with for refusing to pay his vsuall oblations to be confessed to the Priest and to receiue the Communion in these wordes 1 Register pag. 50. b. cum ipsum ex Officio vestro coram vobis ex causis praemissis euocari feceritis ad procedendum contra eum ad poenam corporalem sibi pro correctione animae suae in hac parte infligendam c. vobis significamus quòd in dicto placito sic coram vobis ex Officio vestro moto procedere vlterius facere poteritis in curia Christianitatis quod ad vos ad forum ecclesiasticum noueritis pertinere prohibitione nostra non obstante And vpon a prohibition brought by a knight to his Ordinarie that proceeded ex Officio agaynst him for certaine his crimes and excesses a Consultation was 2 Register pag. 44. b. granted the wordes of the Register are these Cum vos nuper ad corrigendum crimina excessus subditorum vestrorum iuxta Officij vestri debitum procedentes R. de C. militi obieceritis c. The like consultation is there founde agaynst a Chaplaine proceeded with ex Officio for fornication that had also brought a prohibition The wordes 3 Reg. pag. 45. a. of the Writ vnto the Ordinarie be these videlicet Cum vos T. de W. capellano ex Officij vestri debito obieceritis quòd ipse carnaliter cognouit c. in animae suae periculum scandalum aliorum vnde contra eundem ad correctionem animae c. As in other consultations there after prohibitions vpon vntrue suggestions had bene purchased An example is also 4 Reg. pag. 51. a. there of allowing by Consultation of proceeding ex Officio to the ende of enioyning corporall punishment agaynst one that laied violent hands vpon a Clerke whereby hee incurreth saieth the Writ excommunication ipso facto Likewise an 5 Reg. pag. 51. b. 52. a. Ordinaries proceeding ex Officio to the interdicting of a Church and to the inflicting of other Canonicall paines for with-holding and not finding of a Chaplaine or Curate to serue according to an ordination or reall composition thereof made is there approoued lawfull by Consultation granted And so is the like proceeding of Office allowed for 6 Reg. pag. 51. a. tithes with-holden falling due to the Bishop and Archdeacon in the time of vacation of the benefice for by the lawe and custome then in 1 Changed by the statute 28. H. 8. most Dioecesses of this realme tithes of vacant benefices were due to them In the writ of Consultation alleaged afore out of the 57. page of the Register for allowing proceeding ex Officio against a fornicator it is 2 Reg. pag. 57. B. also conteined that the partie before prohibition by him brought had submitted himselfe for which cause of the parties violating his owne submission and for his contempt mandatorum sibi factorum the Ordinarie is authorized and warranted to deale against him as afore he had begun ex officio By all which may appeare both the practise of Inquisition and proceeding ex officio in some cases by the lawes of the Realme and the allowance also by those lawes of such course holden in courtes ecclesiasticall both in offences and in other causes also that be neither
Nicephorus doe write in two places quoted also by the Note-gatherer as if they serued his purpose out of Antoninus his edict My father saith the edict did decree that this sort of men should not be troubled except they commit some crime against the Romane empire And therefore if any shall hereafter dare to trouble or impute crime vnto any Christian only for that he is a Christian let him that is so accused be acquited albeit he be found indeed to be a Christian. But let him that accused him be duely punished as he hath deserued Now because in fauor of the Christians these seuerall Emperours did command aswell that they should not be accused as Traian did that they should not be enquired after sought vp shall we therefore hereupon gather that neither accusation nor inquisition might be vsed by the law of the Romanes against any offenders or that these ancient fathers which report theÌ„ misliked of both those proceedings and so vpon the matter condemned all proceeding punishing of any offenders whatsoeuer But if this be most absurdly gathered then consequently are these his allegations friuolously and absurdly alleged to proue either an absolute or simple prohibition or any mislike at all of proceeding by enquirie and of Office against offenders In Dion Cassius whom to like end he quoteth the life of the Emperor Nerua is not found In Dion Nicaeus abridged by Xiphilinus 3 Xiph. in Neâ—…ua these words be read in the life of Nerua which it may be he meant 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The emperour would not permit the rest to accuse certeine persons either of impiety or of Iewish profession by which terme the Christian religion is thought to be meant What Because he forbad certeine to be acused of those crimes doth it hereupon follow that enquirie of Office which is a seuerall course from accusation was wholly mislliked This might therefore with some more colour considering that which followeth haue bene brought against the course of proceeding by accusation and yet impertinenly enough also For in the same place 4 Ibidem it is recorded thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 No small tumult was stirred vp hereupon for that euery one did accuse whom he listed There remaineth yet one quotation to be spoken of that is to be referred to this place which he bringeth out of Eusebius 5 Euseb. li. 4. c. 9. Niceph. li. 3. e. 37. and Nicephorus where Adrian the Emperor thus writeth vnto Minutius Fundanus If the men of that prouince in iustification of their request can bring and affirme any thing truely and plainly against the Christians whereby before the tribunall seat by due course of iudgement they may be conuicted then let them onely bend themselues to that purpose But I can by no meanes endure it that they should be put to death onely vpon the petitions and out-cries of the multitude But this hath no kinde of shew either against Accusation or Enquirie of Office For it condemneth only the mercilesse and cruell iniustice of some Deputies who to gratifie the clamorous common people were contented to execute the poore Christians without any proofs To this place perteine also the Note-gatherers allegations 1 c. qualiter quando el. 2. de accusat c. ad abolendam c. excommunicamus § Qui autem de haereticis c. cum contumacia de haereticis in 6. out of the Canon law yet they are so far from impugning proceeding by way of Enquirie that they do very especially establish it Which though he be not ignorant of and being so plaine cannot dissemble neuerthelesse he doth summe them withall affirmeth though vntruly that the bishops proceedings are to the contrarie whereas all ecclesiasticall Iudges will yeeld vnto him that those Canons both are and ought to be obserued so far as the statutes of the Realme doth warrant them sauing in such points as himselfe hath misreported them For first where a Bishop as was then for the most part vsed but now by long prescription worne out which prescription 2 Panor d. c. Qualiter is also of validitie and force did in all weighty matters perscrutari diligentiùs causam coram ecclesiae Senioribus that is examined theÌ„ before his Chapter or so many of them as would be present this he peruerteth thus causa perscrutanda ab ecclesiae Senioribus as if from the Canon law he could hammer vs out the Lay elderships that be dreamed of and could make them in euery parish the Iudges of that which was onely done by Bishops corà m in the presence of the Praebendaries of the Cathedrall Church but not by them Secondly whereas only in proceeding against a Prelate it is required that the excesse be grieuous this he doth make generall and indifferent to all enquiries against any whomsoeuer Thirdly he hath forged of his owne head besides the text there that to the entent of degradation a Iudge ecclesiasticall may not proceed by way of Inquisition but by accusation onely And for specification of such contrarieties as he surmiseth to be in bishops proceedings against those alleged Canons he first sayth that their oath is not abiurationis or purgationis It is true that besides these two some oathes which they minister are veritatis dicendae vpon the crime enquired of Which oath one of his owne Canons by him quoted might haue taught him if he had read it ouer viz. 1 c. accusatus §. licet verò de haeret in 6. Coram Inquisitoribus iurantes tam de se quà m de alijs super facto haeresis dicere veritatem If then in heresie much more in other crimes And in truth there is not one word in any of those Canons tending to restreine al othes vnto abiuration purgation alone as to any that list peruse them wil be manifest The next contrarietie vnto them he assigneth 2 c. accusatus de haeret in 6. Clem. 1. de haereticis for that Ordinaries and Commissioners ecclesiasticall deale by way of Enquiry in other matters then heresie Heerein hee childishly mistaketh his booke and yet will he be dealing in matters wherein he seemeth to me to haue no insight at all howsoeuer perhaps he do flatter himselfe otherwise For no Canons doe forbid Ordinaries to deale in any matters criminall being of ecclesiasticall conisance nor any others in causes duely committed vnto them whether they deale by the one course of proceeding or by the other But Inquisitours for heresie hauing that matter onely delegated vnto them by their Commission are in deed there forbidden that by colour thereof they should not reach out their authoritie vnto matters no way touching the crime of heresie So that the prohibition there is for matters that are out of their Commission and not for any maner of proceeding For they may not deale in matters that are not committed to them any more vpon Accusation then they may do by way of Enquirie The third contrariety surmised by him to be
ca. 15. in fine Aristotle could discerne thus much 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hee that standeth not to his othe or performes not what hee sweareth turneth all the world vpside downe It is written of 11 Plutarch in apotheg Aelian 14. var. lect c. 2. Agesilaus when he heard howe Tissaphernes the Generall of the Persians had broken the league which was mutually agreed vpon and also confirmed by othe betwixt them that hee saide he tooke himselfe greatly beholding to Tissaphernes for it for he doubted not but God and men woulde take vengeance on him that had periured himselfe and woulde on the other side prosper and giue good successe vnto himselfe in those warres who was willing to keepe his othe but was deceiued by the other And 12 Plato lib. 12. de legibus Plato accounted periured persons as so many monsters amongs men and therefore sayth they seeme to be of the race of the Tytanes insomuch as by their periuries they doe no lesse then those Gyants were fayned to haue done that is euen wage battaile with God himselfe Hitherto concerning some part of the nature of othes CHAP. II. An answere to certaine doubtes made concerning Oaths as namely why in Scripture God is said to haue sworne how by Oath he is said to be called to witnes an Oath no tempting of God but a part of his worship why neuerthelesse some are repelled from taking Oath whether Adiuration be lawfull after whose meaning an Oath is to be vnderstoode whethere uery Promissorie Oath bee simply to be kept whether an Oath may be dispensed with and how farre and whether a Christian may by mutuall Oaths contract with him that sweareth by false gods SEing then as the 1 Ad Heb. 6. v. 16 Apostle testifieth an Oath is made by him that is greater it may be asked how in Scriptures God is reported to haue sworne The same Scripture doth answere it selfe in this point for it is there saide that men when they sweare do sweare by a greater but 2 Ibidem v. 13. God hauing no greater to sweare by did 3 Genes 22. v. 16. Isai. 45. Ierem. 49. v. 13. Ierem. 22. v. 5. sweare by himselfe Nowe because an Oath is for a confirmation of trueth vnto others least he be supposed to speake vntruely as hath bene said how can this doubt fall in God who is trueth it selfe I answeare as afore it is 4 Hebr. 6. v. 16. amongs men that an Oath is for such confirmation But when in Scripture God is reported to haue sworne this is not in respect of any possibilitie that defect of truth may happen to be in his diuine Maiestie which had neede so to be confirmed or as if it were not needefull for vs wretches to rest in his sacred single word but it is done 5 Ibid. v. 17. 28. more abundantly to shewe vnto the heires of promise the setled incommutabilitie of his counsell or decree that by two vnchangeable things in which it is impossible God should faile or be deceiued we might haue strong comforte So that thereby we are taught to our comfort that what is so confirmed by Gods Oathe doth proceede from the infallible and vnremoueable determination of Almightie God It may be asked in what respects God is said to be called vnto witnesse by an Oathe I answere with the Schoolemen for two respects the first is because he oftentimes reuealeth and bringeth foorth the verie trueth of a matter vntruely deliuered by any man either by inward inspiration of some other person or else by bringing it to the open light and view of the worlde which afore was kept close and secret The second consideration is for his punishing of all those that sweare vntruely and heerein hee is as in this worlde their witnesse so either heere or in the world to come he is their Iudge and a reuenger A ciuil Lawyer though but an heathen could say Quipeierat Deum habet vltorem God himselfe will take vengeance of a periured person Neither can an Oathe be saide to be a tempting or a prouoking of God so long as it is vsed but vpon necessity or good occasion An oath is said to be a seruice and worship yeelded vnto God himselfe in a two-fold regarde the first is in that we sulfil and performe that which we sweare the second in that by calling of him to witnesse we do withall acknowledge that he knoweth all things and is a swift Iudge and Reuenger of all those that loue or make leasings So that albeit an oathe in respect of the matter concerning which it is made for the most part may be termed an humane and ciuill matter yet in respect of him who is called to witnesse it is alwayes a diuine and a religious acte But insomuch as an Oath is vpon diuerse occasions necessarily required of vs as a peece of Gods seruice worship it may be questioned why some sorte of men are repelled by politike Lawes from taking any Oath and from bearing testimonie I answere that children mad men and such like are not admitted to take oathes because they haue no perfite vse of reason and therefore do want that due and reuerend consideration and also that 1 Hierem. 4. v. 2. iudgement which the worde of God requireth besides trueth and Iustice to be had and vsed in taking of an Oath but periured persons are therefore to be repelled because by their demeanour fore-past it is made apparant howe slender account they make of Gods holy name for their contempt in this behalfe is intended still to rest in them Semel malus semper praesumitur malus praesertim in eodem genere delicti It is made doubtfull in diuerse respects whether euery or any adiuration be lawfull to be vsed amongs Christians the resolution whereof will best I thinke be made manifest by the definition thereof and by distinction To adiure as 1 Thom. 2. 2. q. 90. in Axiom Aquinas doth define it though not altogether so generally is nothing else but to induce or prouoke one to do or omit something by vsing or interposing of the name of God or of some other sacred thing This is vsed either towards our selues or else towards others towards our selues as when by a promissorie Oath or vow we binde our selues solemnly to God for performance of something And this kind of adiuration may be lawful or vnlawfull according to the seuerall qualities and circumstances of the matters which wee haue so adiured or bound our selues to performe which is not my purpose here at large to prosecute The consideration of adiuring others reacheth either to such as be no way vnder the Adiurers auctoritie or to such as bee Of those which bee not vnder the Adiurers authoritie the first is God aboue all Now albeit we vse in our prayers vnto his diuine Maiestie sundrie vehement obtestations as by his holie name and for his Gospels and his sonne Christ Iesus his sake and for the promisses
these sortes are Iuramentum calumniae veritatis Purgationis All these by lawe are necessarie to be taken for 1 l. 2. Authen principales C. de iuram calumniae Marr. de iuram cal nu 6. Cuiacius li. 9. obs ca. 37. if they be refused being so tendered hee is ouerthrowen in his cause that refuseth and is holden pro confesso conuicto And yet very often it falleth out that by such oathe the partie is drawen to discouer his owne dolum malum couine fraude or mal-engine and other also his owne lewdnesse both preiudiciall by lawe to his honestie and good name and also otherwise penall to himselfe For examples sake by the nature of Iuramentum calumniae hee is to discouer in some sorte euen the cogitations of his heart in that behalfe viz. 1 l. 2. C. de iuram calumniae That he standeth in lawe or affirmeth something in a full opinion and confidence that hee hath of his owne right and that the suite as hee mainteineth it seemeth to him good and iust And 2 Ibid. d. Authen principales §. i. Instit. de poena temerè litig Nou. 49. c. 3. further that what soeuer he shall be asked about that matter he shall answere it from time to time truly that he neither hath fraudulently giuen nor will after giue or promise to giue any thing to corrupt the minde of any man that hath to iudge in that cause Nowe if in a priuate cause betwixt priuate persons suing but for priuate benefite and commoditie and at one of their petitions per mercenarium Iudicis officium his aduersarie must of necessitie take such an oathe touching matters perhaps of his owne fraude and lewdnesse and to the discouering oftentimes of matters criminall and penall to himselfe or else must loose his suite and bee condemned as conuicted by his owne presumed and implied confession and this both by the Canon and Ciuill lawes being the Common lawe in both courtes of all other nations abroad in Christ endome then in a publike cause mooued by the Iudge ex nobili officio where hee seeth by his discretion and direction of lawes good cause in equitie for the publike interest that the Church and Common wealth haue that sinnes be punished and repressed for discharge of his duetie according to the trust reposed in him and not of malice or to pull any priuate benefite from the partie how much more is it herein equal and necessarie that an oath be ministred to such presumed delinquent for the discouerie of the whole trueth or else if hee stubburnely shall refuse that he bee holden as in the other case afore pro confesso conuicto When an enemie of malice or for other sinister respect doeth accuse a man of a crime iudiciallie and brings him thereupon into question and great danger if he cannot make sufficient proofes for his condemnation yet by probable presumptions hath so touched him as thereby hee becommeth vnto the Iudge iustly to bee holden suspected thereof In this case by both the lawes aforesaid the Iudge is to giue an oath of Purgation to the suspected person touching that crime which if he shall refuse he is holden as conuicted of it whereby it may happen that his accuser is more gratified and pleasured then by any proofes that him selfe could bring or could otherwise procure Is there not then much more equitie when the question and enquirie of the crime is stirred vp for a better purpose and without any such malitious accuser that vpon like presumptions and probabilities the like oath should be giuen and tendered by the Iudge to such supposed delinquent Can any man giue a sound reason why it should seeme equall that when an enemie gaue the first occasion pars reae should then vpon presumptions be vrged to take the oath or els to be condemned of the crime And that it should not bee much more equitie for him to take it when the Iudge for his dueties sake and stirred vp by probable inducements doeth originally call him into question And when a man is pressed with such probabilities as the Iudge findeth to be sufficient thereunto hee is iustly put to his oath of clearing himselfe if hee so can and so this tendeth in some sort to his owne benefit Is it not much more reason then that vpon the like presumptions appearing to the Iudge hee be vrged to that oath to tell the whole trueth of the matter with the pertinent circumstances aswell for the publike benefites sake of the common weale as for his owne good and escaping of punishment Some may perhaps here aske why the proceeding by the Iudge of Office should bee more priuiledged in this behalfe then when a crime is proceeded against by an accuser or party For in the very beginning of the sute the Iudge proceeding ex officio may require the oath of the supposed delinquent touching both circumstances and crime but when hee proceedeth by way of accusation albeit in courts Ecclesiasticall the partie conuented may be examined by oath vpon other matter of circumstance yet hee may not so be examined touching the very fact and crime or any thing neerely or presumptiuely tending thereunto vntill by sufficient presumptions the Iudge be induced to account him greatly to be holden suspected This question almost doeth answere it selfe for when the Iudge proceedeth by enquirie before hee offer the oath to the partie the presumptions against the partie are knowen vnto the Iudge but when by way of accusation till the accuser haue brought in such proofes as hee can they are not knowen vnto him Besides the Accuser doeth it of malice or for reuenge or for other satisfaction of his owne priuate humour for the most part But the Iudge by common entendement doeth it of sinceritie of minde and for the good of the common weale Againe 1 Panorm in c. per Inquisitionem de electione c. inquisitionis extra de accusat those that be conuicted vpon such Enquirie are most vsually punished by some milder punishment then when they are connicted vpon an accusation yea and in ecclesiastical courts sometimes not so much as punished at all corporally but meanes onely of inducement to repentance are vsed towards them All which being ioyned to that which hath bene afore spoken of the equitie of Enquirie ex officio doe sufficiently I trust recommend both the generall equitie of the vse of this oath and also the great necessitie of it in sundry causes and vpon diuers occasions But the Treatisour towards the very beginning of his disputation against these oaths surmiseth that in iustification of the equitie and conueniencie of them it will by vs be alledged that the same is requisite for the Enquirie and finding out of suspected faultes whereof there is no proofe and to search and trie the euill mindes and corrupt consciences of dangerous dissemblers and so necessarie for the gouernement of the Church and common wealth He that
amends to the partie wronged for this belongeth to a Temporall Court 4 Ibid. fo 50. a. b. Vpon a publike fame arisen that a certaine parishioner did with hold his due oblations refused to be confessed to the priest to receiue the communiō at least once a yere the Ordinary ex officio did call him to the intent to inflict some corporall paine vpon him for correction of his soule and this proceeding is there allowed vnto Ordinaries to be of their iurisdiction and lawfull One 5 Ibid. 54. b. 55. a. Lindsey a publike Notary being infamed aswel of a crimeof fornication for so I take it that it ought to be read by him cōmitted as for contēpts done to that court was ex officio proceeded against by y e Deane of the Arches for correctiō of his soule maners both which are there allowed together with such proceeding to belong to y e libertie of the church to eccles iurisdiction In which copie of consultation it is to be noted that towards the end therof also in the title of it in the margent this word defamationis is vsed in steed of the word fornicationis for actions of defamatiō be seldom or neuer sued ex officio but at the instance of some partie grieued Besides mention is there made of committing it within that iurisdiction which in desamation that is not properly said to be committed is not material so the defendant remaine then in that iurisdiction and therefore where in the beginning of that Writ the wordes are printed Super formationis c. and conuerso which hath no sence nor yet is any Latin no doubt it ought to be super crimine fornicationis c. commisso As for the 1 Ibid. fol. 45. 〈◊〉 crime of fornication it is twise besides noted by the Register that Ordinaries proceeded against it in that forme In the first wherof it is said that the Ordinary proceeded ex officij debito as bound by his office duty against a chapleine that kept a cōcubine publikely to the danger of his owne soule with scandall of others Therefore this crime was obiected against him ex officio for his correction and for reformation of his maners In the 2 Ibid. fol. 57. b. later of them the Official of Canterb. proceeded ex officio against a vicar for the same crime for contēpts also by him made against that court ad correctionē animae suae And there it is said of both the faults as in al the former cōsultatiōs to like effect that this is cognitio spiritualis quae ad forū Ecclesiasticum pertinet in praemissis And the said writ runneth thus Cùm vos nuper ex officio vestro fama publica referente quod T. c. vestrae iurisdictionis C. in amplexibus fornicarijs tenet ipsum corā vobis in curia christianitatis pro correctione animae suae in hac parte citari feceritis procedentes contra eum ibidem iuxta canonicas sanctiones c. vobis significamus quod in causis praedictis ex officio vestro quatenus ad correctionem ipsius vicarij non concernunt placita de catallis debitis in curia Christianitatis procedere vlterius ibidem pro salute animae suae statuere facere poteritis quod ad officium vestrum speciale noueritis de iure pertinere prohibitione nostra praedicta non obstante So that by these so many precedēts of consultations by citations proceeding against crimes c. being of that iurisdiction by way of inquisition or enquiry by y e authorising of ecclesiasticall iudges in al of thē to proceed therein to do quod ad forum ecclesiasticū nouerint pertinere by the obiecting of the crimes to the parties enquired of ex officio iuxta canonicas sanctiones ius libertatē eccl which maybe by oath in matters aswell prohibita quia mala as mala quia prohibita against lay aswell as ecclesiasticall persons we do conclude gather that by so many iudgemēts of the cōmon law for crimes of ecclesiasticall conisance and consequently in matters neither Testamentarie nor Matrimonial any persons whether lay or ecclesiasticall being vnder that iurisdiction may be cited though against their wils by Ordinaries Iudges Ecclesiasticall ex officio ipsorum mero And vpon apparance may by censures ecclesiastical c. be vrged vpō their oaths vnto examinatiō to answer matter though it concerne their owne crimes And therfore that the lawes of this land do warrāt alow the ministring of that othe wherof we intreat vnto Courts ecclesiasticall We do onely say that the defendant may lawfully be vrged in due proceeding of office to answere concerning some crimes of his owne by vertue of his oathe But according to the Treatisour Note-gatherer and others who seeme to confound all proceeding ex officio with the very ministring of an oathe to a defendant touching a crime obiected against him we might a great deale more peremptorily conclude that if these two as they holde be but in trueth all one thing then wheresoeuer proceeding of office is there such oathe of necessitie must be also ministred and taken These proofes last alleadged are gathered out of Writtes of Consultation after that by the parties conuented Prohibitions had beene brought to remooue the causes from ecclesiasticall Courts And therefore no doubt but that the Lawe before the Consultations awarded was thoroughly debated and that the parties delinquent were cited and proceeded with altogether against their willes For can any be so simple as once to imagine that a man who is cited to answere in a cause criminall and to be punished or corrected for it will willingly appeare and answere if hee neede not to come at all and were therein also by Lawe protected Or that he wil be at cost to procure a prohibitiō to stay the dealing where he is willing enough to be proceeded with But besides allowance hereof by the Statutes and Common Lawe vnto Courtes ecclesiasticall the practise also by time immemoriall hath runne accordingly as may positiuely appeare by Acts of Ecclesiasticall Courts and by way of abnegation may be shewed from the Recordes at the common Lawe In that as I thinke it will not in them be found that any Prohibition hath vpon this point onely beene awarded thence or at least vpon debate for obtaining of a Consultation such hath not stoode nor beene mainteined And albeit either vpon this consideration or some other as weake certaine euill disposed and factious persons haue long agone disputed and maintained opinion against oathes ministred both in Courtes temporall and Ecclesiasticall yet vpon generall mislike of such fond opinions as may be gathered a Prouinciall constitution was then agreed vpon and concluded to make euen all disputations against oathes ministred in either court to be heresie which Constitution I haue not hitherto found to haue bene misliked much lesse condemned at any time since as
hoping fall worst that may to bee iudges thereof in their owne causes and so to shrowd their disobedience in refusing to be examined vpon oath vnder pretence of conscience and of a religious care not to offend God thereby And therefore they holde that they are by Gods lawe bound not to answere in that sort vpon their oath which is more then if they had onely sayd that they are not bound and so left at libertie either to answere or not as themselues should thinke good whereby they would leaue a dangerous impression in the peoples mindes that such lawes of this land wherein they are borne subiects and by which they are to be gouerned may not be obeyed of Gods people with a safe conscience as being contrary to the word of God A matter assuredly of most perillous consequence to leaue vnto the onely scanning and finall determination of euery priuate subiect how farre he neede to obey the positiue lawes of his countrey As it commeth therefore orderly in this place so is it also a matter most fit to be discussed whether the oath of a partie in a cause criminall penall to himselfe may be exacted vrged by the Magistrate without breach of Gods law and consequently not to be refused by the subiect It is said in 1 Rom. 13. ver 1. 2. 5. Scripture that euery soule must be subiect vnto the higher powers for there is no power but of God the powers that be are ordeined of God and therefore whosoeuer resisteth the power resisteth the ordinance of God and that they which resist shall receiue to themselues iudgement That we 2 Tit. 3. ver 1. must be subiect not because of wrath onely but also for conscience sake And 3 1. Pet. 2. ver 13. we are commanded to be subiect to Principalities and Powers and to be obedient And to submit our selues 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to all manner ordinance of man viz. publike gouernement for the Lords sake By which power ordinance of man or publike gouernment are not onely vnderstood all kindes of Magistracie and superiour authoritie and that we may not resist doe violence or offer contempt to their persons but much more that we are to fulfill and obserue all their politique lawes without wilfull breach of them so they be not repugnant vnto Gods word For if this happen then that hath 1 Act. Apost ca. 5. v. 29. place It is better to obey God then man And if they command contrary things we must remember that wee 2 Matt. 6. v. 24. cannot serue two masters Yet Godsword doeth not abrogate lawes common wealthes nor ciuill policies but doeth establish them Therefore except they which refuse to take such oath can shew some direct Prohibition either expressed or to be necessarilie and immediately gathered out of Gods worde against it they must know that their contempt and disobedience in this behalfe reacheth vnto God himselfe whose ordinance both the Magistrate and his lawes be S. 3 August de verb. Domini serm 57. Augustine hereof writeth thus contumaciae crimen est quod iubetur contemnere quod praecipitur nolle quod imperatum est declinare But more particularly to our purpose in handling it may bee prooued by a generall Councell that hee which holdeth his peace when he is asked or will not directly answere is wilfully disobedient and may bee conuicted for such his stubbernnesse For 4 Synod General 8. Actione 5. when as one Photius was demaunded by the Councell whether he would admit of the ordinances of the holy Fathers and he answered not any thing thereto the Presidents of the Synode signified vnto him that by his silence he should not escape from being condemned which thereby was made more manifest And to like purpose a late Schooleman writeth 5 Sotus de iust iure lib. 5. q. 6. When any thing is asked of the defendant but according to order of lawe he is vponpaine of deadly sinne bound to reueale the trueth yea though he be not sworne but much more vpon his oath Therefore is it well gathered that he which beyng duely interrogated though it be touching an offence and refuseth to answere as hee ought first offendeth against Iustice and against the 6 Iosu. 7. glorie of God Secondlie hee offendeth agaynst the reuerence of the Iudge whom he is bound to obey if he bee vnder his iurisdiction Lastly against the Common-weale which hath 1 l. ita vulneratus §. ad l. Aquil. a great interest to haue crimes discouered and punished Concerning the second of these it is by great and some of them ancient 2 Cyuus alij in l. 2. §. quod si actor C. de iuram calum Ciuill interpreters deliuered If a man who hath sworne that he will neuer take oath yet hauing a suite shall be commanded by the Iudge according to lawe to take iur amentum calumniae and thereupon doeth take it that he shall not thereby be accounted to be periured because such commaundement of the Iudge doeth excuse him For mine owne part I haue alwayes taken it to be a 3 T. C. grosse error in Diuinitie to affirme that a man may not holde any humane matter with a certaine perswasion nor doe any thing in externall actions but such onely as we haue a positiue or affirmatiue warrant for in the word of God For if this were a true position then a man might beleeue no historie to be true which is not in the Bible no Maximes or grounds of any sciences nor common principles left knowen vnto vs by the light of nature as that two and two make foure nor that there is any such countrey as America c. neither might a man with safe conscience doe infinite many things permitted by humane lawes and sundry of them also commaunded to be done because all these histories and Principles and the most of these lawes be such as can neuer by any sound reason be positiuely immediately and particularly prooued out of Scripture but onely by this generalitie that therefore they may be beleeued or done because they are not contrary to Scripture are agreeable to the vncorrupted light of nature or to sundry credible mens experience or are by the politique lawes of our countrey receiued For who can giue any other sound reason directly drawen from the Scripture that theft shall be punished with death that matters of fact shall bee tried by a Iurie of twelue led sometimes not by witnesses but by circumstances and probable inducements that the eldest sonne shall haue all his fathers land by descent from the rest of his brethren though they bee neuer so many who no lesse then the eldest are descending from him that my kinsman remooued perhaps fiue or sixe degrees descending of the whole bloud from my fathers brother shall and lawfully may inherite my lande before mine owne fathers sonne by another wife that at one and twentie yeeres a man may effectually
not bee straite with vs in this poynt for hee yeeldeth that the Magistrate may impose oaths so these conditions following be obserued videlicet that either the glorie of God bee thereby maintained or the good of the Common wealth or of our neighbours furthered also that it bee not in matters of trifles which though it be true yet he prooueth it euen triflingly because saieth hee de minimis non curat lex Likewise that it bee not ouer frequent that it bee not touching matters impossible or beyond a mans power that the Deponent bee not circumuented with captious questions and that it bee not giuen to men of suspected faith or credite which last is neither by any lawe nor Diuinitie that I know of required except he thus vnderstand it that an oathe is not to bee ministred vnto any who is probably suspected to bee likelie to forsweare himselfe For a man may be suspected yea and diffamed also for conuersation of life and yet without iust cause yea and though there bee cause of the fame and suspicion yet is it not in charitie to be presumed that euery one who through frailtie hath offended will therefore forsweare himselfe when he shall bee put to an oathe These afore recited bee his proofes and all his premisses taken from Diuinitie whereupon he buildeth his frequent and vehement conclusions agaynst the oathe which we speake of to make it contrary vnto Gods worde which premisses and conclusion I beleeue can neuer bee truely drawen together into a good consequence by any strength of mans wit or by arte of reasoning For though these maior propositions may bee such as will be yeelded yet his assumptions will alwayes be vntrue and not to be prooued The next poynt to be handled is that oathes may lawfullie be taken euen in matters criminall and penall to him that taketh them If an oathe must be kept though it be to a mans owne hinderance and damage then may it also be taken For that which we neede not keepe and may lawfully breake was vnlawfull at first to be taken But sundrie oathes made though happilie tending to our owne hinderance must be kept for so it is commaunded indefinitely and indistinctly by God And it is 1 Num. 30. v. 3. Psal. 15. v. 4. assigned for a speciall marke of a godly man to sweare to his neighbour and not to disappoint him though it be to his owne hinderance How much more then must it be kept beyng commaunded by a Magistrate then when it is made to a priuate person onely and being by vertue of his obedience imposed then when it is only voluntarily taken And therefore being to be kept may also lawfully be taken 1 Gen. 24. v. 3. Abraham sayd thus to his seruant I will make thee sweare by the Lord God of the heauens and of the earth that thoushalt not take a wife vnto my sonne of the daughters of the Canaanites whereby appeareth that a Superiour may cause him that is vnder him to sweare to doe his endeuour in a priuate matter appertaining to him Much more therefore may a publike Magistrate cause those that be vnder him to sweare touching a matter wherein the common wealth or Church of God hath interest to haue it sincerely delt in When 2 Gen. 25. v. 33. Esau was greatly distressed by famine so that he was almost dead Iacob mooued him to the sale of his birthright and tooke an oathe for confirmation of it and the right continued thereby ratified in Iacob which argueth that an oath may bee kept and shall stand euen where hee that sweareth is thereby greatly endammaged preiudiced and ouer-reached so it be not by fraud and mal-engine We are forbidden to 3 Col. 3. v. 9. speake vntrueth or to lie one vnto another euen in priuate affaires amongst our selues and are 4 Ephe. 4. v. 25. commanded not onely to cast off lying but also to speake the trueth euerie one to his neighbour because we are members one of another Signifying thereby that in all matters this is to bee done where it is expedient for our neighbour and he hath interest to knowe the very trueth How much more then ought we to tell and manifest a trueth being commanded by a publike Magistrate for a common benefite seeing wee are all members of one Common-wealth and of one Church howsoeuer it may turne to our priuate dammage or of our friends For if a man bee bound to auouch the trueth oftentimes euen with his bloud howe much more is he to doe it in his wordes Where a mā is supposed to haue borne fals witnes against another is thereof brought into questiō y e law of God appointeth the 5 Deut. 19. v. 17. 18. 19. men which striue together to stand before the Lord euē before the Priests and the Iudges which shall be in those dayes and the Iudges shall make diligent inquisition and if the witnesse be found false and hath giuen false witnesse against his brother then shall yee saieth God doe vnto him as hee had thought to doe vnto his brother Nowe how can this diligent Inquisition be made or the witnesse by any possibilitie or likelyhood be euer found false but by re-examination of him agayne as Daniel did with the two Elders touching euery circumstance for the boulting foorth of the trueth For it cannot bee imagined that moe good witnesses may be had in euery matter of periurie that are able to depose in the flatte contrarie But because the matter is criminall to condemne him of periurie and very penall euen as deepe as the punishment of the other should haue bene if the matter had bene found true which may happen to bee capitall It will perhaps therefore be sayde that the supposed false witnesse may not be vrged to answere his reexamination vpon his oathe But the very like reason and allegation may be made that hee may not bee vrged to answere either yea or nay to any question at all thereabouts For if the question demaunded bee true it is no more lawfull for him in the sight of God to denie it without oath then it is with an oath And so could there bee no likelyhood of any possible meanes euer to finde out a false witnesse and then that lawe of God should serue to none vse which were absurd and impious to imagine And what cause I pray haue the Iudges of that Inquisition to beleeue him vpon his owne bare word if he list to answere at all which is to doe more then by the Innouators is thought needfull whose very oath they haue iust occasion to suspect and doe therefore make Inquisition against the trueth of his former oath So that hereof it must needs by due consequence of reason be gathered that it may happen a man may bee examined vpon his oathe in a matter criminall of his owne turpitude and very penall to himselfe and that iustly There seemeth to me a very direct and playne place in the
vpon hearing the miracles that God had done and wrought for the children of Israel and by special reuelation Rahab knew that God 5 Ibid. ver 11. euen the God of heauen aboue and earth beneath whose the earth is and the fulnesse thereof and who according to his prouidence and wisedome doth translate and establish kingdomes as it seemeth best to his diuine pleasure had afore that giuen that whole 6 Iosu. Ibid. V. 9. land vnto the children of Israel So that in very right and trueth she did owe no more obedience to the late king of Iericho but was by God discharged thereof and lawfully might as she did submit her selfe capitulate for her safegard with the embassadours of those to whō of very right her subiection then belonged and therefore could not without sinne haue betraied them being sent frō Ioshua her lawful soueraigne into the hands of an vsurper whō she knew perfitely the Lord had deposed 7 Ibid. ver 13. meant soone after to destroy accordingly This interpretation is euidently very strongly confirmed by that place of Scripture where she is for this cōmended By 8 Hebr. ibid. faith saith that place the harlot Rahab perished not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the disobedient when she had receiued the spies peaceably If then the rest of Iericho were disobedient in respect of which Rahabs obedience peaceable receiuing of them are cōmended therfore they perished by the hand of Ioshua the people is it not manifest that Ioshua was their lawfull Magistrate in right and that they ought to haue taken knowledge thereof and to haue obeyed him at their owne perils Lastly there is in this fact something extraordinarie as done by spectall oeconomy which by vs may not safely be followed As the lye that shee made in 1 Ios. 2. v. 4. 5. saying shee wist not whence they were and that they went out in the euening And likewise it is not to be presumed by any subiects in these dayes when as miraculous and speciall reuelations are ceased to adiudge themselues either wholly or in some particular actions circumstances to stand discharged of their obedience and alegeance towards their Soueraigne or vndermagistrates when and how farre themselues wil fansie For if by this and such like extraordinarie examples or by that of Obadiahs hiding of the hundred Prophets such presumption were lawfull or tolerable what a goodly colour might all disobedient and rebellious subiects haue namely vnnatural fugitiues ouer sea Iesuites Seminarimen recusants concealers harberours of these and such like boutifeux bellowes of sedition for all their godlesse attempts are they not or at least will they not pretend to be as assured and resolute of the goodnes of their cause as the Disciplinarians are touching theirs their designements so that for these men that would be counted most sincere professors of the Gospel to holde the like dangerous positions to seeke to confirme them with the same no better reasons and examples then the Papists doe theirs for my part I doe recken it to be the practise and part neither of grounded and iudicious Diuines nor of well aduised or duetifull subiects quorum vestigijs insistunt eorundem exitus perhorrescant But they say further that by such oath they should be drawen to discouer vnaduised speeches that sometimes passe men in priuate felowship as at table c. or such as come vnto them for counsell and for priuate resolution of their consciences First there is no man bound to answere more matters then be conteined in the Article or Interrogatorie whereof he is examined But if any matter be therein layde downe in such sort as it leadeth pertinently directly to such discouerie then is it likely that by some meanes it is detected vnto the Magistrate afore and by him thought expedient for some necessarie publike cause worthy of such Enquirie Againe if such priuate talke or asking of counsell haue bene cōcerning some platte or practise laid or to be laide that shall in discretion be adiudged by the Magistrate expedient for the common wealths sake to bee knowen and discouered and therefore if they shall enquire directly of it I can not see howe it may stand with any mans dutie to God vnto the Prince vnto Lawes to the Common wealth to conceale it being charged to the contrary But of other secret speeches treaties and resolutions of mens consciences no Magistrate is of so slender discretion as to enquire nor can by lawe though hee would for want of those indicia and speciall presumptions and inducements that are required to ground an enquirie vpon and therefore this is but matter deuised ad concitandam conflandam inuidiam against lawfull authoritie They alleage also that by their discouerie some that be very poore may be vndone and that the most of the matters and persons being already knowen vnto authoritie there can be none vse for them to appeach any but to alienate their mutuall affections and to haue one another in ielousie This is very loose simple to reason vpō a casuall euent which may happen thereby to prooue a thing vnlawfull for of a good matter an ill euent may and doeth often fall out è conuerso Careat successibus opto quisquis ab euentis facta notāda putat could the very heathē Poet say And why should a mā withdraw his duty to Magistrates onely for particular priuate respects touching himselfe and some few other priuate persons Whatsoeuer may happen let him doe as he ought Fiat iustitia ruat mundus Particularly to the first why should any man pitie his pouertie that pitieth not himself but wilfully runneth into dāger of lawes shal a man holde a poore man more deare vnto him then the common quiet peace of the Church and Common wealth both The second part implieth a contradiction in itselfe for if the matters and persons were sufficiently knowen then in trueth were it of no vse for the Magistrate to enquire further yet if they be so knowen already then what wilfulnesse is it in these men thus obstinately to persist to their owne hurt and yet to doe others no good thereby They obiect further that to discouer their brothers secrets is condemned as a fault by the Holy ghost for 1 Prou. 11. v. 13. he that goeth about as a slanderer discouereth a secret but he that is of a faithfull heart concealeth a matter And seeing they haue met in some mens houses that did it for good affection and opinion vnto them if they should discouer such it were a very vnthankefull requitall they say towardes them And for that their felowship is in the trueth the course they walke holy therefore euen by the law of loue and felowship they may not detect one another for that were a note of a false brother As for the trueth of the matters that they meete about the holines of the course they