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
is but decreed by the Iudge which because it may be vniust and without good cause in which case it is called Clauis errans or voyde and erroneous as being decreed after an appellation is made c. therefore it doth not necessarily binde and consequently ought therfore to be answered by the parties own oath Hitherto of offences meerely secrete But when they are by signes or otherwise in some lawful sort manifested abroad they are then of a farre different consideration And yet if they be but blowen abroad by reason of an Accusation coÌ„menced or by one who voluntarily maketh himselfe a partie and so is presumed to do it of malice or for some other sinister respect in this case the defendant is not to be vrged vpon his oath to answere the truth of the crime nor yet any thing which very neerely presumptiuely inferreth it for no man is bound simply to furnish vp his aduersaries intention who at his owne peâ—…ill ought to come otherwise sufficiently prepared Neuertheles if the Accuser or partie do make an halfe proofe as by one vpright and vntouched witnesse or by any thing equiualent thereunto in law then may the Iudge tender to the defendant an oath which he cannotrefuse de veritate ipsius criminis in way of his purgation or more cleare conuiction by reason of the interest which the common weale or Church hath to haue sinne punished and all scandall thereupon arising remoued To this effect a 1 Alph. Villag lib. Pract. Can. 1. cap. 5. conclu 1. Canonist writeth thus Seeing God alone doth know is Iudge of thoughts meerely secret and that ech man is bound to preserue his owne good name according to that of S. Augustines viz. that man is cruell who is carelesse of his good name it doth thereupon follow that if nothing at all be proued by the Accusour that then a man is not bound to confesse anything against himselfe And 2 Diaz cap. 140. another to like purpose viz. albeit when the Iudge proceedeth of office and the crime is not fully proued he may enioyne purgation vnto the defendant yet is he not bound to do it at the petition of him who voluntarily offred himselfe to be promotor officij but it is otherwise when a necessarie promotour who is assigned by the Iudge doth make such petition But when the proceeding is to be of meere office where the crime is manifested and discouered abroade by some wayes and meanes sufficient to ground an Enquirie vpoÌ„ yet those meanes not prooued before an Ordinarie Iudge the Iudge is not thereupon to vrge the parties oath vpon the very crime it selfe albeit 3 Spec. ibld. c. qualiter 1. §. finali c. qualiter 2. V. nos igitur de accusationib he may require him to sweare whether he beleeue such an infamie doe runne of him or whether he haue bene adiudged by sentence to bee conuicted of it whether hee haue at any time confessed it or whether he beleeue it to be notorious If he shall deny to take oath to answere but vnto these vpon his credulitie he doeth thereby incurre contumacie and may bee proceeded against as conuicted of so much as he wilfully refuseth to answere One reason hereof is this because he offendeth to charge the office with proofe of a matter of this nature being of it selfe no crime and whereof he knoweth the very trueth Another reason is for that hee is not hereby accounted to bewray himselfe of any hidden fault because these points import no crimes of themselues and by common intendement may bee otherwise sufficiently knowen Now if the 1 Specul ibidem nu 41. 42. partie defendant shall denie vpon his oathe all these aforesaid matters whereof he is interrogated none other sufficient detectioÌ„ besides being against him theÌ„ cannot the Ordinarie Iudge proceed to giue him an oath touching the trueth of the very crime it selfe obiected vntill hee shall haue made proofe by witnesses that the partie is in deede thereof infamed hath else-where confessed it is conuicted thereof or some such like For when all of these or any of them is either prooued or by the partie himselfe confessed iudiciallie then may the Iudge lawfully giue vnto the partie defendant an oath touching the trueth of the very crime it selfe to the 2 Io. Andr. in c. dudum el. 2. de electione intent if the matter fall out true by due tokens of penitencie to bee enioyned him hee may be reformed the scandall and offence remooued and others terrified from the like The equitie hereof is manifest for 3 c. omnibus c. Presbyter 2. q. 5. de purgat canon per totum vpon such infamie c. running vpon him and so prooued or confessed he may be put to his oathe with his Compurgators which is 4 Arg. c. ex parte 3. de decimis c per venerabilem qui filij sunt legitimi much more and harder for him to doe then to deliuer the trueth vpon his owne onely confession Neuerthelesse you are not to vnderstand that this compulsion here spoken of to take such oathes is an absolute simple or precise compulsion but onely causatiue as Interpreters doe call it 5 Arg. l. deaetate ff de interrog §. qui tacuit c. fin §. poena de iura calumniae that is to say if he refuse to answere or to purge and cleare himselfe being infamed c. and thereby scandalous for some fault he is but therefore to be declared for conuicted to be suspended or otherwise to bee proceeded against as the qualitie of the cause and law requireth and none other corporall violence to wring out his assent vnto such oath is to be vsed Yet to prooue further that by these lawes an oath is appointed and may be ministred in some cases touching a cause criminall I will for auoiding of tediousnesse set downe onely the 1 l. 13. § idem Iulianus ff de Iureiur l. 26. 28. d. l. vlt. ff de in litem iurando l. 11. §. 1. ff rerum amotarum l. qui peritorio ff de rei venditione passim alibi l. vlt. C. de fide instrumentorum Leo. Aug. l. 6. §. vlt. C. de his qui ad ecclesiam confugiunt Iustinia A. l. vbi C. de falsis l. vlt. §. licentia C. de iure deliberandi idem A. l. vlt. C. de iure Dominij impetrando idem A. Nou. const 124. Auth. nouo iure C. de poena Iud. qui malè iudicauit Auth vt litigatores iurent §. si vero l. cum apud veteres §. sin autem in fine C. de bonis autor iud possidendis l. penult C. de probationibus l. in bonae fidei C. derebus creditis iureiurando ibi Apostilla Nou. 8. const 7. ibid. glossae DD. Vide DecianuÌ„ to 1. 125. nu 9. 11. q. 3. c. quisquis ibidem q. vlt. c. 1. 35. q. 6. c. si duo gl in c. ex
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
euen in thesi of his owne nature and in generall For the slender remnants of honest and vnhonest left euen to the very reprobate euer since the fall of our first parent doth remooue this action euen where it may be lawfully committed from the sight and knowledge of others so much as may be And in this 1 Ibid. V. 13. place it is hidden and secret exipsa hypothesi because the case is put that there neither bee witnes nor shee taken with the manner and yet the husband hath her in iealousie So that if God in his diuine wisedome found it equall and iust for satisfaction onely of the strange humour of iealousie not onelie vpon paine of conuiction to make her vndertake so perillous a kind of purgation but also to charge her by an oathe and a most solemne curse to declare the trueth in a crime of this quality and consequence to her life howe can the wisedome of those that chalenge oaths of farre more apparant mildenes in diuers points noted stand so opposite to the wisedome of an whole Realme for many ages together and being so strongly warranted by the wisedome of God both in this and the former Iudicialles seruing for the gouernance of his owne peculiar people In answere of this example out of Gods lawe the Treatisour saieth that the woman is not heere called for ex officio but vpon the complaint of her husband But if it be conuenient and equall vpon that most slender ground of iealousie and vpon the husbandes suspicious denunciation who perhappes is weary of his wife and mindeth to put her away if his iealous humor in that behalfe be not satisfied how much more then is it equall and iust vpon the Iudges office to be done who is no way priuatly interessed for the satisfaction or preseruation of the church or common weale to remoue a common scandall and offence by the parties clearing or by his punishment The consequence of this mine argument to be good for proofe of a farre greater equitie in the one then in the other viz. rather to minister such oathe of office then vpon an Accusers complaint the lawes both Ciuil and Canon and the customes of all nations abroade doe warrant vnto vs. all which doe permit an oathe touching a crime to be ministred vnto the defendant ex officio Iudicis and yet they all doe denie it vpon an accusation or vpon a complaint made by a voluntarie and priuate partie And therefore this difference by him taken is such as maketh flat against him without working of anie diuersitie to inferre an equitie in the one and an vniustice in the other as is pretended therefore vntruely and vainely doeth hee surmise that out of this example we wil conclude that euery Iudge Ecclesiasticall to satisfie his iealous suspition of any crime may appose by oathe and compell men to their purgation a matter repugnant vnto reason vnto lawe and vnto all practise For no man 's onlie bare suspition besides an husbands can by any equity worke an interest to driue an other to purgation of such a crime by his or her oathe The examples also of godly men reported in Scriptures doe sufficiently condemne the froward disobedience of refusers of such oathes in these dayes For they being asked sometimes particular questions dangerous to thēselues if they had not stood cleare and sometimes charged euen but in generalitie to answer what should be demanded of them they vsed not any such friuolous tergiuersations and euasions as this sorte of people and as Seminarie Priestes doe that is to say Let me knowe euery point afore that you will aske me and then I will tell you what I will doe or I will answere so far as I am bound by law and by a good conscience whereof by your leaue I my selfe will be Iudge or I will not sweare to accuse my selfe or my brother for that is contrarie to charitie or where be mine accusers let thē stand forth or if you haue any thing against me proue it by witnesses with such like a number For when the Prophet Ieremy 1 Ierem. 38. vers 14 15. was charged by the King in a generalitie to answere that which hee woulde aske him hee stoode not vpon refusall till hee might knowe what it was but made this doubt onely whether if hee tolde trueth the King woulde not kill him which when the King had promised hee woulde not then Ieremy condescended to answere what hee woulde demaunde of him signifying thereby to vs that being asked by a Magistrate if it were not a matter capitall vnto him hee ought and woulde discouer it If this were done vpon an oathe then must wee doe the like in the like case also If hee did yeelde to answere vnto Interrogatories vncertaine and vnknowen vnto him both in generalitie and also in particularitie and yet thought himselfe bounde to saie the trueth without oath then much the rather would hee haue done it vnto those whereof the qualitie he should haue knowen afore hand but especially vpon his oath And so ought wee being so deepely charged Yet these questions so generally to be propounded vnto him might haue beene of matters both criminall and very penall vnto himselfe and vnto others also When the same 2 Ierem. 37. vers 13. 14. Prophet was charged with a particular crime of intended defection and fleeing to the Chaldeans by Irijah a chiefe officer sitting Iudicially in the gate of Beniamin hee did not refuse directly to answere by putting him off to prooue it by witnesses or by anie such like dilatorie but answereth roundely and truely in the very contradictorie as it were ioyning issue with him and sayeth That is false I flee not to the Chaldeans Nowe if the Prophet had beene guiltie woulde hee haue falsely denied it or haue made anie shiftes to auoyde it thinke yee or woulde hee say vntruely being vnsworne more then being sworne I thinke no man will so imagine of the holie Prophet and therefore by this example a Magistrate in authoritie or a superiour must bee directly dealt with in questions pertinent that he shall aske whether vpon oathe or without oathe so farre as godlie Lawes doe require albeit the matter be criminall as it was in this case vnto the partie Interrogated When 3 2. Reg. ca. 5. Elisha the Prophet vpon none other detection but diuine reuelation entred to the examination of Gehazi his seruant touching a criminall matter and that without any accuser formall or representatiue besides himselfe did hee not require an answere of him and was not the seruant before God bound to answere him and that truely If heere it bee saide that he ministred none oathe vnto him it is true yet was it no more lawfull for Gehazi being his seruant and vnder his authoritie to deny it by falsehoode as hee did or to haue answered not directly or else nothing at all then it would haue bene for him to haue slatly forsworne it So
this answere may serue vnto all his quotations touching examples of omission as of William Swinderby and others which are brought by him to shewe proceedings to haue beene in England against Heretiques without exacting an oath Besides it is not the exacting of an oath in heresie but in other crimes Ecclesiasticall that we doe principally mainteine howsoeuer he doe seeme rather to allowe it in matter of faith then in others of lesse moment Thirdly if when they were proceeded with in those countries they knew the matter first then is not that true which he said afore of them viz. that their refusals were like vnto that of the aforenamed martyrs of England And by this word first he seemeth at vnawares to implie a confession that they were neuerthelesse examined afterward by their oathes howsoeuer in the selfe same sentence he denie it Fourthly if by the copulatiue which he puts betwixt accusation and denunciation he meaneth both them ioyntly together then doth hee affirme impossibilities for they bee diuers courses of proceeding Fifthly the ground of his mislike is rather vpon the order of time when the oath is ministred then for the Criminall matter which we speake of Lastly vpon an accusers instance an oath cannot be ministred in any crime by the Ciuill lawe which those Countries mentioned doe most followe much lesse then vpon an accusation of heresie Furthermore in that he saith no Martyr in Q. Maries time was forced to an oath vntill the statute exofficio so he calleth 2. H. 4. then reuiued for attaching of heretiques and the Popes authoritie were restored which authoritie is now abolished It seemeth he would collect that to minister an oath in a criminall cause is vngodly as being onely builded vpon the Popes authoritie Indeede if it were onely so grounded then were it no lesse impious in this Realme to builde it vpon y e vnlawfull authoritie then his other vsurpations are But there were none martyred nor I thinke so much as examined of heresie till that statute was established viz. in the 1 1. 2. Phil. Mar. caâ—… An. 1554. Parliament begun 11. Nouemb. ended 16. Ianuar. For the sentence against Rogers who first of all was condemned to be burned was 2 Fox pag. 1030. 〈◊〉 edit pronounced 19. Ianuarie 1555. viz. the yeere after Then what maruaile is it when as further then imprisonmeÌ„t they were not dealt with or examined though an oath were not ministred to any of them But that in any ordinary Ecclesiastical court from the commingin of Q. Marie till the end of that Parliament wherein that statute was reuiued such oath was not for any other crimes tendered is I beleeue ouer pregnant a Negatiue then that it can be prooued by him or by any man And therefore neither the examples of those who are pretended to haue misliked it nor the supposed omitting of it vnto some that were dealt with for heresie doe not nor can serue to prooue any vnlawfulnesse or vngodlinesse to be in such oath as we defend So that we may conclude that our former reasons vsed to prooue the lawfulnesse of it by Gods word doe rest yet vnshaken notwithstanding any obiections hitherto made to the contrary CHAP. XIII Foure seuerall opinions of the Innouators against the parties taking of oath in criminall causes with answeres also vnto their reasons and obiections AGainst the ministring and taking of this oath by a mans owne selfe the Innouatours doe also holde sundrie opinions and doe make many other obiections and arguments meete to be viewed and briefly as may be answered It may not be looked for that I should touch them all because not many of them are come to mine handes neither if they were will leasure serue nor if it would serue were it worth the while they be so friuolous but especially because their conceits and opinions in this behalfe are so manifold so variable and intricated with such contradictions one against another and of the same man against himselfe as I doe assure you it is a worke of more labour to set downe certainely what they holde about this matter then to confute them But it is meete that errours should so be viz. diuided into many heads one of them hissing against another howsoeuer they be tied together by the tayles like Samsons foxes to set both Church Common wealth on fire So neere as I can collect them their opinions be of foure sortes The first is of those who being required to take such oath truely to answere the matters whereof they be brought into question the chiefe heads whereof are also made knowen first vnto them will answere neither yea nor nay either touching the trueth of the matters or what they resolue to doe but onely thus viz. if you haue matters against me that be manifest then proceede to prooue them by witnesses if they be hidden then tarie till the Lord come who will 1 1. Cor. 4. V. 5. lighten things that are hidden in darkenesse and make the Counsels of the hearts manifest And these commonly will call for an accuser And if it be tolde them that the common voyce a presentment or other iudiciall denunciation or the publike interest c. is their accuser that brings them into question then come they againe to the first poynt and bid their accusers and their witnesses to come and stand forth against them This dealing as it is most peremptorie and franticke of all the rest so it is most vnreasonable and dangerous for it tendeth to the taking away of all Iudiciall courses both criminall and Ciuill To what purpose should a man produce witnesses before the defendant hath answered directly what hee confesseth and what he denieth and would haue prooued Neither is this to deale sincerely iustly and vprightly as we woulde haue others to deale with vs. For we should speake the trueth one to another and not seeke to circumuent any by cautels and frustratorie shifts but least of all in matter of iudgement where by law and by the Magistrate that is lex loquens we are required and be in conscience also bound to procure that controuersies doubtfull may be composed with least adoe and trouble to the intent that which is right and trueth in euery cause expedient to be knowen may quickly be knowen and come to light Such froward answeres as this is doe rather put off the Iudge with contempt and disdaâ—…e then yeelde any good reason why such oath should be refused This pretended dilemma of theirs hath many media or meanes to make it easie to be dissolued First a crime may be so manifested that the supposed offender becomes thereby noted infamed and scandalous and therefore fit to be enquired of albeit happely the thing be done so couertly or of his owne nature be so hidden as it cannot be exactly prooued by witnesses For wicked and lewde persons make all prouision that may be that there may be no witnesses of their wickednesse And therefore it
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
matter before they heare it But indeed they take an oath aforehand to answer the matter truely when they shall come to their examination and then they do heare al the matters obiected before they neede make answere vnto them The grand Enquests do take alike yet a lawful oth which is that they shal diligently enquire and truly present al offenders against any such point as shal be giuen vnto them in charge which charge is giuen after their oath is taken Their next reason is that for a man to take an oth without a sure perswasion that it tendeth to 1 Rom. 14. ver 〈◊〉 glorify God and to further his brethren is sinne because whatsoeuer is not of faith is sinne And that this oath is such for that a man knoweth not what the matter is whereof hee taketh his oath Herein the assumption is to be denied prosyllogisme or reason which is brought to prooue it for it is of and also according to euery honest mans faith to beleeue himself bound in conscience to obey the positiue lawes of his country which require him to take such othe so they be not contrary to Gods commandement And albeit euery particular neither is vsed to bee nor yet is meet nor indeed oft times can be aforehand declared which is requisit to be asked of him as one questioÌ„ wil grow of another neuertheles the general heads are signified opened vnto him and it is withal declared that he shal but answere matters of his own fact or knowledge that they touch neither his life nor limme that if he think good he may challenge any of theÌ„ at the time of his examinatioÌ„ as not being bound by law to answer them he shal therein if law do not bind him be allowed to refuse For the Iudges of ech court are appointed to yeeld vnto euery man indifferent Iustice according to law So that the examinate may haue as sure perswasion hereof by this course as if euery particular were read vnto them Their third reason is that this kinde of oathe is infinite and therfore a snare to a mans conscience and not like the oath that Abraham 2 Gen. 24. à princip vsque ad versum 9. gaue to his seruant Though it be not like in this point bicause that was but a promise to do one particular matter whereas in our case the oath albeit at the taking of it to answer it be promissorie yet the performance of it is assertory by telling the trueth of matters either past or present neuertheles such dissimilitude doth not hinder but that this may be no lesse lawfull then that promissorie oathe was which Abraham made Eleazar his seruant to take There is none infinitenes in it for it is not generall either concerning his owne or other mens thoughts words or workes as very vntruly slanderously is by some giuen forth but it hath sufficient certainty vpoÌ„ the certain reference vnto articles afore exhibited which also are theÌ„ declared to contain particular diducing laying forth of such such especiall misdemeanors with some of their pertinent circuÌ„stances of time person place maner Their fourth last obiectioÌ„ is that a maÌ„ ought to sweare 1 Ierem. 4. vers 2. the Lord liueth in righteousues in iudgemeÌ„t in truth This iudgemeÌ„t discretion they say they cannot vse in such swearing bicause they knowe not euery particular afore-hand whereunto they must answere And this obiection is also propounded and enforced by the Treatisour But if it be well weighed it is a childish fallacie of the ignorance of the Elenche by want of due distinction of times For by reason the matters are many and the articles oftentimes long besides sundry other inconueniences infinitie of trouble which would els growe vnto the Iudges it is therefore meet that the defendant be examined apart at some leasurable times and out of the court In which respect though the oath be giuen openly in Court yet the very examination is dispatched afterward by the examiner and then it is acknowledged before a Iudge as in diuers Courts temporall is vsuall in like cases of Articles or Interrogatories The Iudgemâ—… spoken of there by the Prophet that ought to be vsed is not to be referred only to the very action of the oth when we take it corporally but it is specially meant of the aduised maturity coÌ„sideratioÌ„ that we ought to vse in y e depositions setting downe of our answers so that y e not knowing of euery particular when by oth we only promise to answer truly at y e time of our examination doth no way impeach or hinder the iudgement which is meete and required to be vsed in our answering at what time we may consider fully deliberately of euery particular point That this is a true no forced sense of the place may be also gathered by the last point required there by the prophet vnto an oth viz. that we sweare in truth for in the very action of taking the oath that truth there meant cannot be vsed but must be shewed by the vpright and faithful answering at the time of the examination yea though the examinate know them all so well as that he had them without booke because as he that giueth the oth doth but charge so by the receiuing of the oath a man doth but promise to answere truly afterwards And a promise doth neither affirme nor deny the trueth of a matter but is to be made a true vowe and promise by the due performance of it according as the promise runneth and it is truely meant It may be that one of the Note-gatherers quotatioÌ„s out of Tindall was by him set downe to enforce also this point namely where he thus writeth If 1 Tindal in resp ad 3. lib. Mori pag. 309. a Iudge put a man to an oath that he shall answer to al that he shal be demanded of he ought to refuse Is it any maruel that he which holdeth a little afore that no Iudge ought to make a man sweare against his will in any case shoulde also inferre thereupon that such a generall oath as this he speaketh of which no law or practise simply requireth neede not be taken But what is this to the refusall of oathe when it is not generall but restrained vnto certaine articles and points the heads whereof are also opened afore vnto him who is to sweare or what serueth it to iustifie a refusal for that the defendant may not first peruse euery Interrogatorie particularly before he will resolue whether he wil take the oath or refuse it The Treatisor also alledgeth to this point especially as I gather a saying of Ioh. Lambert Martyr in his 2 Fox pag. 565. 1. edit answer vnto the 41. article ministred vnto him The fault which in this behalfe he findeth is for that a man is charged by vertue of the contents of the Euangely to make true relation of all that they shal demand
Interrogatories be vsed and where they are not written there is no possibilitie of knowing all particularly that shal be demaunded insomuch as one question necessarily riseth vpon the answeres that shall bee made to the former I reade a report of the Canon lawe where in an 1 15. E. 4. 〈◊〉 action of debt brought against the husband and his wife for the wiues debt before the couerture the woman without the husband could not be suffered to wage her lawe And is not this oath of the husbands part though lawfull as farre from that assured perswasion of the very trueth thereof and is there not as great want of the husbands certaine iudgement herein as when an oath is taken to answere articles in themselues finite and certaine though particularly not perused by him afore For nothing to the contrary can be heere I thinke alledged sauing that it may bee the husband himselfe had afore the wager of lawe payde the said debt of his wife There is a 2 2. H. 5. ca. 9. statute saith the Notegatherer which requireth a copie of the Libell put vp in a court Ecclesiasticall to be deliuered to the defendant and thereupon is there a writte framed and put in the Register pro copia libelli deliberanda It is very true which by him is alledged the reason was for that the defendants coulde not then procure prohibitions from temporall courtes without their viewe of the Libell which in that respect was sometime by Iudges Ecclesiasticall denied and the lawe as it seemeth was at that time so taken but if the lawe were not onely so taken but so practised still for my part I should hold it more agreeable to reason and that it would preuent many long delayes and other great inconueniences Neuerthelesse when one thing seemeth cautelously to bee in demaund by the Libell and another thing in trueth not incident to an Ecclesiasticall court is vnder hand shot at then and in such case only vpon apparant probabilities thereof shewed vnto the temporall Iudges it cannot be thought inconuenient for them to graunt a Prohibition yea though the Libell be not viewed afore by them nor cōteine expresly any matter belonging to a temporal court But seeing the statute speaketh but of a Libell it cannot be extended to all articles or Interrogatories whatsoeuer ministred in a Criminall cause especially where there is no likelyhood or colour but that the cause is meerely Ecclesiasticall or where it is handled by vertue of Commission vnder the great Seale of England grounded vpon the statute For if her Maiesties Supreme Royall auctoritie and power Ecclesiasticall granted by cōmission to others be as highly vested in her crowne as is her Temporall then will it bee probably gathered both of them being in their seuerall kindes supreme and the exercise of them cōmitted ouer to others vnder the great seale that the one of them is not to be abridged restrained or controlled by the other In 1 Gen. 21. V. 23. Scripture by the oath that Abimelech ministred to Abraham and which he tooke appeareth that thereby Abraham was to deale well with him or as the Hebrew word is not to deale falsly orlye vnto him nor vnto his children and that he should deale well both with him and the whole Countrey according to the mercie and kindnesse there shewed vnto him which poynts be of greater largenesse and generalitie then that all the particulars falling vnder that oath can possibly before-thought or called to mind at the very taking of it By Iacobs 2 Gen. 25. V. 33. requiring an oath of Esau for confirmation of the sale of his birthright a thing of greater generalitie yea consequence also then Esau could or did then consider may be gathered that an oath may be ministred though euery particular included therein be not specially rehearsed for this oath was approued and stood ratified The like generall league and couenant that was betwixt Abimelech and Abraham was also 3 Gen. 26. v. 29. 31. made sworne betwixt Isaac and the said Abimelech And albeit it be not directly set downe that the king exacted an oath of the Prophet Ieremy yet we 4 Ierem. 38. ver 14. 15. find a promise of the said Prophets then made after the kings charge was laid vpon him of answering truely what he should aske him yea without expressing any particular matters afore-hand what y e king would aske Yet may we not therefore charge the Prophet to haue done this without faith or foolishly vnaduisedly or without Iudgement And it is sure that a godly man ought to haue no lesse regard to performe what he promiseth to deale truely when by his Soueraigne Prince he is in like sort charged then if hee were to answere it vpon his Corporal oath So that we may conclude that it is not vnlawful or vngodly to take an oath that we wil performe some such matter whereof euery particular is not afore-hand or at the very time remembred vnto vs or then can bee called to minde or knowne by vs in distinct and speciall maner CHAP. XVI That after the partie hath answered vpon his oath it is neither vnusuall vnlawfull nor vngodly to seeke to conuince him by witnesses or other triall if he be supposed not to haue deliuered a plaine full trueth and somewhat also in approbation of Canonicall purgations with answere to the Treatisours obiections against them THeir next exception set out afore in this order to be spoken of which this sorte of men doe make vnto the maner of proceeding Ecclesiasticall being of a thing ensuing after the oath and examination is for that Iudges Ecclesiasticall doe not alwayes rest in that which is affirmed or denied vpon the parties oath but doe oft times proceede to a further enquirie by examination of witnesses vpon the poynts denied by the partie A man might iustly maruell what should mooue them thus to require all other men to thinke so well of their single oathes and especially in their owne cause as if they had some indignitie offered vnto them onely because their owne single oathes are not perfitly beleeued but that proofes by witnesses are after made to conuince them of that which is denied by them But for this they bring also some pretence as for the rest of their opinions out of the Scriptures It is said in the Epistle to 1 Heb. 6. v. 16. the Hebrewes that an oath for confirmation is amongst men an ende of all strife Whereupon they gather that whatsoeuer they shall deliuer vpon their oathes it ought to be finall peremptorie to conclude the cause of necessitie without any more adoe The vse of the oath which is in that place spoken of is especially and most properly appliable to two kindes of oathes The first is an oath Promissorie when for more assurance of the promise to bee kept the parties agree that it shall bee taken which thing is argued by the circumstance of the place as being
me that it was otherwise fully meant to put mine aforesaide rawe discourse of these matters euen as it was vnto print againe to bee made publike Whereupon knowing this resolution and that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 might perhappes be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I condescended to assaye whether I coulde as it were licke ouer my discourse againe into any more tolerable fashion not omitting withall to answere the whole matter of the aforesaid Treatise seeming to me any way pertinent yet not in the same order as it is there set downe but in seuerall places of my booke as it falleth in most aptly after the method into which I had first plotted it Of which whole Treatise I trust I may without offense giue you a generall taste by this Epistle Truely I neither doe knowe nor haue heard who were any of the Authors or who was the Enditer of it If therefore it should happen that I did vse some measure though farre scanted of that libertie of speeche which is vppe-mette pressed downe and running ouer in the Treatisour against many in place I doubt not his betters and of as great woorth and sufficiencie as himselfe euery way I hope that I shall not iustly be noted to be caried with sharpnesse of humour against any particular person but to haue beene prouoked vnto a moderate necessary and generall defence Albeit I purpose rather to waye what is fitte for vs to speake then for him to heare Vnto the whole matter of the Treatise these three seuerall pointes might haue sufficed for a generall answere The first is that the state of the controuersie or issue is by him mistaken the second concerneth his arguments for he assumeth that as graunted which is not which in the schooles is called a fallacie petitionis principij the last and third is his sophisticall answering euen to such obiections as him selfe frameth For the first therefore yee are to vnderstand that in the Treatise it selfe this seemeth to be the generall issue by him tendered against which he would argue viz. the forcing of oathes by Ordinaries and Iudges Ecclesiasticall generally to answere to all such questions or interrogatories as they shall demaund or minister touching either the thoughts words or deedes of him that is to depose Vnto which in the title is also added another challenge for that they are ministred of office by the Iudges So that he conceiueth erroniously all proceeding of office to be onely in causes Criminall and in this respect alone worthie to bee chalenged because it is done by the Iudge without prosecution of a partie Nowe if hee doe reason as hee pretendeth against some matter practiced by Iudges and lawes Ecclesiasticall in this Realme then by charging them with exacting of oathes for men generally to answere vnto all their thoughtes wordes and deedes that they shall be enquired of that I speake but mildely it is a very vntrue and slanderous imputation both to the men and to the Lawe it selfe If it were mistaken by him through ignorance yet was it ouer great rashnesse thus to speake euill of such as be in 1 Iudae ep V. 8. 9. authoritie especially for matters hee perfectly knoweth not But if it were wilfully done then must I needs say that he peruerted and wrested the matter in controuersie of set purpose to make the men and whole calling odious and thereby to giue the better tang in some mens tastes vnto those Cart-loads of contumelies and spitefull 2 The Latines call this calumniam the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 reproches wherewith throughout the whole Treatise it pleaseth him to charge both them and their proceedings as in part shall by and by appeare For the seconde point of the three hee first defineth an oathe then hee sayeth it is a part of Gods worship hee telleth the ende and institution of oathes by Gods Lawe and that they are either priuate or publicke hee sheweth the necessitie of it in some priuate suites and what things are to be obserued by him that taketh it and what by the Magistrate that giueth it likewise hee setteth downe yet but in part certaine cases how an oathe is vsed in some Temporall Courts and how it ought to be vsed as he saith by the Canon Law All which I will not greatly now trauerse with him But hereupon hee inferreth that the oathes ex Officio vsed in Ecclesiastical Courts are against Gods Lawe Common Lawe and the Canon Lawe it selfe So that if he minde to reason out of those premisses it must needes be gathered for him to this effect viz. In the Law of God in the Common and Canon Lawes we finde oathes thus and thus prescribed and vsed But the oathes ministred in Courtes Ecclesiasticall touching matters Criminal are cōtrary to this prescription and vse Ergo. They are contrary to those three Lawes I will omit that this reason concludeth not necessarily being ex meris particularibus because it might bee that though sundry othes by those three Lawes were in deede of such forme neuerthelesse other there may be also farre different and yet both sorts allowable But for answere I say that the Assumption or second proposition which must be vnderstoode is by the Treatiser not once mentioned much lesse vndertaken to be proued but is taken vp by him as graunted which in trueth is flatly by vs denied For it shall bee prooued God willing that there is no such contrarietie as is by him surmised no nor great diuersitie betwixt the othes there ministred and those which Scripture mentioneth or Common Lawe practiseth Now touching the last point of the three Hee maketh it as a sufficient answere vnto obiections that may be made for assertion of such othes as hee impugneth if hee can but note any difference betwixt the things resembled together though such diuersitie bee not in the point for which the comparison is made no nor in any other point that is materiall As for example If a man affirme that Christes second comming may bee compared to the comming of a thiefe in the night meaning for the secresie thereof and want of expectation should hee well confute this comparison that woulde thus say No Sir that is vntrue for there is a great diuersitie betwixt their commings because Christ commeth to deale iustly but a thiefe to doe vniustly But to come neerer home If I did argue thus viz. The receiued vse of the Starre-Chamber to deny men counsell when they answere to Interrogatories is not against the Rules of Iustice therefore no cause is there why the like approoued vse in the Chauncerie should be counted against Iustice I pray ye should he reason soundly against it that would answere it in this sort Oh Sir there is a great diuersitie betwixt those two Courtes for the one proceedeth Criminallie to inflict penalties for the Queene the other but Ciuillie for priuate amendes in equitie vnto the partie Or if hee shoulde answere thus The Lordes of the Counsell bee Iudges in the one
whereof hee maketh some doubt as it seemeth and aduiseth them of this danger as a 1 Scilicet welwiller that it is playne extortion and wrong vnto the partie And lastlie that they are all offenders and doe incurre the forfaiture of the penall lawes of Premunire Seeing then his wordes of this matter bee so bigge his termes so biting his speeches so confident and peremptorie and his accusations so grieuous Is there not in defence of Iustice and of so many good and great learned men in seuerall professions great occasion offered to haue it examined whether the force and weight of his reasons will beare out this copious haruest and hote raging feuer of wordes or whether these wordes were but vsed because matter wanted What weight and moment his reasons are of is not of this place particularlie to discusse but shall bee reserued to the seuerall partes of the Discourse following And I will not striue by bare wordes to returne these of-scowrings of a fowle mouth and a defiled penne vpon him agayne further then must needes cleaue fast to himselfe the Authour of them when they shall by reason bee wiped off from the persons charged and so are to rebound backe vpon their first owner And to giue you an inckling in the meane time that it is not otherwise like then to fall out so It shall not bee amisse a little to consider how gingerlie sometimes hee treadeth in this matter and how here and there himselfe minceth and qualifieth the state of the controuersie as it were waiuing his first issue notwithstanding all those his former high lookes and braue termes For first he granteth that diuers euen of the learned sort doe hold and that verie confidently meaning hereby as I take it sundrie professors of the Common lawe that these proceedings which he impugneth are warranted by the Statute 1. Eliz. cap. 1. and can he whosoeuer he be for a man shewing no more yet see more herein then so many of the learned sort can that be of an other iudgement And though he exclaime as yee haue heard mightilie that this kind of oath is contrarie and a stranger to the lawes Iustice and policie of this Realme yet in the verie closing vp of his treatise hauing sayd that it was neuer put in vre or vse by any Ciuill magistrate of this land by the strength of trueth is forced to adde thereunto this exception viz. but as it is corruptly crept in amongst other abuses by the sinister practises and pretenses of the Romish prelates thereby imploying that yet it hath bene vsed of long time by the Ciuill policie and magistrates of this Realme noting them withall I know not with what other abuses as being ouerrought which belike they also shall heare of as his leisure will permit him if they please him not in the meane time the better Likewise going about to answere the obiection that may be made for iustifying of this othe by the like approoued course in the Starre-chamber he vseth these wordes as a reason of his allowance of such proceeding there viz. The Starre-chamber requireth an answere to matter in fact done either to the iniurie of a priuate person or hurt to the publike State Then by like reason if Iudges and Commissioners Ecclesiasticall shall but require this oath to answere matter in facte as in very trueth they doe none otherwise done to the hurt of the publike State then is the cause in controuersie thus farre yeelded vp by him But can he in deed thinke it reasonable and iust to exact such oath for punishment of an iniurie done but to a priuate person in his temporall goods or such like and shall it bee in his iudgement vniust and vnreasonable to be exacted for discouerie and restraint of such enormities which cannot be denied to be preiudiciall both to the state of the Church Common weale wherein Iudges Ecclesiasticall most vsually doe practise it Vltrà non desidero habemus quasi confitentem reum In another place of the Treatise he sharpely inueieth for that the Commissioners Ecclesiasticall minister the oath before the partie be permitted to haue the Articles Now in his shewing of differences betwixt the proceedings by Commissioners ecclesiasticall and the Starre-chamber one of them is this that the defendant there hath the copie of the bill of Information to answere by his counsell ere hee take his othe for the trueth of it yet hee restraineth it thus viz. So the Information in the Starre-chamber bee not made Oretenus so that it must hereupon needes be yeelded that at sometime and vpon some occasion it may bee and therefore it is not simplie vniust to giue the oath before the defendant haue a copie nor for him to be debarred from counsell when he answereth but interrogatories of his owne fact or knowledge For in deed the defendant in the Starre-chamber is not allowed counsel whē he answereth to Interrogatories sorted into Articles but only is allowed counsel for the maner of framing of his answere to the Bill into due forme of law the Counseller not aduising him in the matters of fact least happily he draw the defendant into periurie For it were very vnreasonable that counsell should direct him in the matter and as it were to say vnto him answere not this thus though it be true for then you are like to be grieuouslie punished Nay rather as a writer in the Ciuill law aduiseth the counsell euen to the bill of Information ought to tell the defendant to this effect Si hoc modo respondeas perdes quidem causam sed si aliter quà m veritas se habet perdes animam Furthermore in one place where he reprehendeth forced and constrained oaths hee limiteth his meaning by these words viz. in that generall maner which is as afore he had surmised viz. to sift generally all a mans thoughts words and deeds and that without any accusation or complaint precedent so that it is not simply the vrging of them to take oath in a criminall cause which grieues him or is to be condemned but to doe it in that generall maner for all thoughts wordes and deeds If then no such matter be in very trueth euer practised the man it seemeth will easilie bee reconciled againe vnto them whom hee so eagerlie afore snatched at and tooke vp Lastly in one part of the Treatise hee speaketh in deed against oaths in criminall causes but it is with this taxatiue restraint especiallie saieth he in causes of life and death contrarie to the lawes of this realme so that if it be not ministred in any cause of life and death no nor yet in any cause of mutilation of limme as in very trueth it is not now by any court ecclesiastical a thing most notorious then there is no cause of offense giuen either to the lawes of the realme or vnto himself And therfore for this time the Treatiser and those which exercise Iurisdiction ecclesiasticall may seeme in some broken maner to bee growen
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
person as informeth And the enditements be termed vpon their beginning Enquiries or Inquisitions which are alwayes ex officio Now these and such like be notes and markes whereby you may discerne proceedings of these Courtes in criminall causes prosecuted by an Accusour or partie from that which is done vpon the office of the Court for these two prosecutions doe differ in the end and they differ also in certeine priuileged points which that of Office hath aboue that which is by a partie In the end thus they differ because prosecution of Office aimeth at publicam vindictam a publique punishment whether pecuniarie to acerue to the Queene or corporall In deed in all capitall causes vindicta is in truth publique and exemplarie albeit both the Appellour onely doe prosecute perhaps after the Queene haue pardoned it and that he also seeke nothing els but priuate reuenge for his owne iniurie receiued rather then for an example to be made of the offender or for the Common weales satisfaction and contentment Of the contrary side prosecution in these Courtes of an offence criminall being not capitall by an Accuser or partie propoundeth for the most part but a Ciuill end that is some satisfaction and amends to be made vnto the complainant damaged as in actions of sundry trespasses in actions of the case c. And then doe the Ciuilians terme this Causa criminalis ciuiliter and the former Causa criminalis criminaliter mota Besides such difference in the end there be also some priuileges that are granted to the one course of proceeding which are denied to the other whereby those two kindes of prosecution doe differ As that in proceeding of Office for the Queene as was touched afore the defendant may not gage battell against the preferrer as he may doe against the Appellour neither hath any defendant in an enditement or information though he be acquited any costs allowed when the suite is for the Queene as he both hath and ought in iustice to haue when the suite against him is onely prosecuted by a priuate and wrongfull Accuser that was not able to iustifie his declaration as wee may terme it accusatorie of such priuate offence or misdemeanour whereupon he sued him Now let vs consider also how those Courtes which haue none vsuall triall by Iuries doe proceed against offences First the high Court of Parliament hath no great vse that I know of dealing against Offences but such as happen to be committed either by some member of the house during the time of Parliament or against the liberties and orders of that Court. In both which cases they proceed to examination of them either vpon the Notoriety of the fact happening among them or vpon credible relation of some but wholly without any Accuser or partie taking vpon him the proofe thereof with any hazzard of so much as Charges for wrongfull vexation if it should so fall out to be accounted And therefore such proceeding is also of meere Office In the Starre Chamber onely crimes and misdemeanours bee inquired of but especially those which I called afore Extraordinaria Crimina viz. such as haue either no certaine name or at least no set and determinate punishment by Lawe appointed and may not be punished there by losse of life or of limme but either by Fine by open shame and infamie by imprisonment by nayling or cutting of eares or deforming the face by banishing from some certaine place of the Realme or foorth of all the Queenes dominions or vnto a certaine place abroad or by condemnation vnto the Galleis perpetually or for a time c. The misdemeanours punishable in the Starre Chamber bee brought thither into question for the Queene onely either by her Maiesties Atturney generall and that is by bill of information or Ore tenus or els be brought vpon bill preferred by some priuate person that is grieued In all which Cases albeit there be found one which doth prosecute yet can he not truely be called an Accusour or a partie for the reasons before alleaged viz. of the end propounded which is publica vindicta and for other great assistance and priuiledge which that Court giueth to the prosecutor against the def in respect that it is for the Queene And namelie that he is to answere not onely to the Bill vpon his oath but also to Interrogatories more particularly criminall then the Bill and the Interrogatories without counsell which in trueth therefore needeth not because they are brieflie drawen article-wise and concerne but matters of fact within his owne knowledge as is entended Vpon all which matter it followeth that the prosecutour there is but as a relatour partly to stirre vp and partly to ease the office of that Court by furnishing it with proofes Neuerthelesse I am not ignorant that sometimes when it appeareth manifestlie to their Lordships that the plaintife being some priuate person hath calumniously and of malice onely vexed the def then such plaintife there is and iustly also may be condemned in costes and damages for his apparant calumniation and wrongfull molestation of the def Vnto which courses of the Starre Chamber I take the Courts of the Queenes Counsell established in the Marches of Wales and in the North partes to bee also agreeable in their inquiries and examinations of crimes and misdemeanors In the Chancerie and Court of Requests being both Courtes of equitie if any misdemeanours or crimes be diduced and laied downe in the Bils which happeneth very often yet are they not Criminallie laid to haue the def punished for them but onely Ciuilly to the intent that the plaintife may haue an amends and priuate satisfaction as shall be deemed to bee equitie And therefore such prosecution is not by Office of the Court but onely at the parties suite albeit the Office in the Chancerie doe thus farre assist the plaintife for sifting out of a trueth that the def must answere euen to the Criminall points of the Bill vpon his corporall oath But he may not in those two Courts be put to answere the plaintifes interrogatories vpon his oath except the plaintife will be concluded by the def answere vnto them and seeke to make no further proofes But of all the Courts temporall aforesaid aswell those which proceed to the triall of misdemeanours by Iurie as of others I thinke this may bee generally affirmed That when any lewde practice abuse or contempt not capitall not tending to mutilation is supposed to be done against the Court there euen of meere Office without any Accusation or prosecution of any partie by Bill the Iudges of such Courts doe Enquire thereof by examining and by interrogating euery one that is holden suspected thereof or to be priuie thereto vpon their corporall oathes first taken Let thus much then suffice for the two sortes of prosecution and bringing Crimes into question by the course mentioned in Scripture and by vse and practice in Temporall courts of this Realme CHAP. III. Of the sundry kindes of obiecting
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
Canons wherewith they hoped they could haue bound others Quod quisque iuris in alium statuit eodem ipse vtatur Hitherto in answere of their obiections pretended to be taken from the Scriptures and ancient Fathers Now for closing vp of this second part and for proofe which with this kinde of men I trust wil be impregnable that an Accusation is not of necessity required in proceeding Ecclesiastical criminallie let them heare what is established by the Discipline 3 Discipl of France tit Eccles. Senate or Consistorie Art 11. being the 6. Article in the Synode at Lions of the French Churches compiled together when Beza was president of their Synode For in this behalfe they determined no more to be required for calling a man before the Consistory but that it be not done without cause sufficient reason Where you see no mention of Accusation to be made either for the first preferring vp or for further prosecution of the cause And therefore their meaning was as the ordinarie practise of all their Presbyterial Elderships is to proceed Criminally against any Denounced vnto them though it be but by one Elder in his Ward or by any other person vnto whom they giue credite neuer knowen vnto the partie conuented without other Presentment or Prosecution of Accuser or partie and therefore of their owne meere Office That this interpretation is not forced and that the practice of their Consistorial Elderships is according thereunto may be made manifest by one 1 Calu. Farello pa 64. Epistolarum in folio of Caluins Epistles vnto Farellus But you are first to vnderstand that by their discipline all dauncing is simply and absolutely forbidden as a grieuous sinne matched with whoredome and is such as for which a minister must be deposed from his function no lesse for the one then for the other Nowe it happened that sundry in Geneua had daunced together in the house of one Balthasars widowe amongst whom one was a Syndicke which is one of the foure chiefe magistrates ofthat Towne and another of them was an Elder of the Church for that yeere This matter comming I knowe not howe vnto Caluins eare they were called to the Consistorie and charged with that offence without any Accuser or partie and therefore of meere office vpon none other ground but because Resmihi comperta fuit saith Caluin I knewe the matter well ynough Neuerthelesse all almost that were conuented denied it at first very constantly At length Caluin iudged that they should be driuen to confesse the trueth vpō their corporal othes This was done accordingly the matter was thereupon confessed the rather bcause Corneus one of the same companie gaue them warning that he would not suffer any of them to be forsworne Yet for all this one Elder Henrich seeing he was to be deposed from his Eldership for it he would not so easely giue ouer his hold but alledged against their course of proceeding with him as in the very like case Tho. Cartwright did not long since in the Consistorie at Paules before sundry honorable persons in Commission and Cartwrightes allegation against the othe ex officia in a criminall cause by Caluin answered long agoe others that place of Saint Paul viz. Receiue not an Accusation against an Elder vnder two or three witnesses But both did it with the like successe For Caluin put him off he saith with a Dilemma made litle lesse then a ieast at his so impertinent an allegation For he saith it was altercatio non illepida a pleasant kinde of controuersie Well notwithstanding this poore defence Henrich the Elder being first reviled and rated of all was deposed from his Eldership and also shut vp in prison where he did exasperate against Caluin the chiefe cause thereof the hatred of so many as did beare vnto him but sclender good will afore The Syndick also was for the same offence put out of his A chiefe Ciuill magistrate deposed by the Eldership of Geneua for dauncing Magistracie vntill he should shewe foorth some publike testimonie of his penitencie Diuers others of that merie companie were likewise for the same crime imprisoned And Perinus though for a time he were stept out of the way as farre as to Lions yet doe what he coulde Caluin there protesteth that he should not scape vnpunished So that we see it was made no Peccadillo or trifling sinne but an heinous criminall matter worthie of degradation of publike penance and also of imprisonment against which that Consistorie so proceeded without Accusation or Presentment and of meere office euen against one of the Elders of their Church and also against a principall Magistrate of their Citie and for which all that denied it were compelled to make answere vpon their corporall oathes first taken to answere the whole trueth which in that behalfe they should be asked by those of the Consistorie Which not onely touched euery mans owne acte but no doubt reached vnto all their Complices also which had troden the same dismall daunce together with them Thus much of this second part touching the two sortes of proceeding criminall viz. by Accusation and vpon the Iudges Office by way of enquirie and for the iustification of the latter of them by reason by lawes temporall of this Realme by lawes Ciuill of the Romanes by Canons by examples and proofes out of Gods worde by auncient Fathers and Councils and by practice of such moderne Churches as the greatest oppugners of this course doe account to be best reformed And therefore is manifoldly warranted both by humane and diuine approbation The ende of the second part THE THIRD PART OF AN APOLOGIE FOR SVNDRIE PROceedings by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuerslie by them impugned Treating Of Oaths but more specially that oaths may be imposed tending to the discouerie of a mans owne offenses and of his brethrens Vnto the end whereof is adioyned A Determination in Latine made to like effect by Master D. ANDREVVS in the Vniuersitie of Cambridge Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie An Aduertisement vnto the Reader I Haue not quoted gentle Reader any Pages in the Treatisours or Notegatherers writings which I haue occasion to alleage because those which I folowed are but priuate written copies but when I had almost finished the reuiewing of this Part I was credibly tolde that the sayd Treatise was put foorth and spred abroad in Print from Scotland or from Middleburgh and I haue since seene the same in print howbeit varying in certaine places from my Copy namely about the latter ende thereof For there bee some additions which in my iudgement differ no lesse from the stile of the rest then they doe from the written copy Farewell The Contents of the Chapters in this third part MAtter 's in this third part to be handled Of the lawfulnesse of Oathes What an Oath is and the reason or originall
Formall cause of the vse of Oathes chapter 1 An answere to certaine doubtes made concerning Oathes as namely why in Scripture God is said to haue sworne how by Oath he is said to be called to witnesse an Oath no chapter 2 tempting of God but a part of his worship way neuerthelesse some are repelled from taking Oath whether Adiuration be lawfull after whose meaning an Oath is to bee vnderstoode whether euery Pr◅m ssor◅e Oath bee simply to be kept whether an Oath may bee dispensed with and how farre and whether a Christian may by mutuall Oathes contract with him that sweareth by false gods Diuision of Oathes according to the outward forme of taking them according to the matter and inward forme of them with plaine description of euery kind of oathe chapter 3 That the ceremonies vsed in taking and giuing corporall oathes with laying hands vpon chapter 4 the Bible or Testament and swearing by the contents of it are not vnlawfull The true issue of the next opinion in question two sortes of crimes and offences prohibited in what cases an oath here spoken of may not be ministred and the manifolde conueniencie chapter 5 and necessitie of an oath sometimes to be ministred in a cause criminall and penall vnto the partie with some fewe obiections touching inconueniencie thereof an◅wered That oathes of men touching matters dammageable criminall and penall to themselues chapter 6 are vrged and exacted by temporall Courts and by the lawes of this Realme Wherein are conteyned answeres to such obiections and reasons as be made for proofe of a chapter 7 contrarietie or repugnācie in these oathes vnto the statutes lawes or customes of this Realme and a Replie to the Treatisors answers made vnto certaine obiections supposed likely to be made in Iustification of this kind of oath by the temporall lawes That ministring of such oathes is by the Lawes of the Realme allowed vnto Iudges of Ecclesiasticall chapter 8 courts and some fewe obiections made to the contrary are answered That such oath touching a mans owne crime is allowed both by the Canon and Ciuill chapter 9 lawes how faire and in what sort and that the like is established and thought equall by the lawes and customes of sundry other nations a◅well ancient as moderne An answere to some obiections pretended to be made against this kind of oath from the chapter 10 lawes Ciuill or Canon That not onely such an oath may be taken but also being by Magistrates duely commaunded chapter 11 ought not to be refused is approoued by Scriptures by practise of the Primitiue Church and of late times together with a Replie vnto certaine answeres made vnto some proofes here vsed An answere to such obiections as be pretended to be gathered from Diuinitie Diuines chapter 12 and from the Examples of godly men against ministring oathes vnto parties in matters of their owne crimes Foure seuerall opinions of the Innouators against the parties taking of oath in criminall chapter 13 causes with answeres also vnto their reasons and obiections That a man being charged by authoritie to discouer his knowledge touching some offence chapter 14 which his Christian brother is supposed to haue done is bound to reueale it though it may breede trouble and punishment to his brother and the reasons to the contrary are answered and refuted Their arguments are answered that condemne the ministring and taking of an oath as chapter 15 vnlawfull because they haue not distinct knowledge giuen vnto them of euery particular before the taking of it and the like course by examples is approoued lawfull and godly That after the partie hath answered vpon his oath it is neyther vnusuall vnlawfull not chapter 16 vngodly to seeke to conuince him by witnesses or other triall if hee bee supposed not to haue deliuered a plaine and full trueth and somewhat also in approbation of Canonicall Purgations with answere to the Treatisours obiections against them The third part of an Apologie for certaine proceedings by Ecclesiasticall iurisdiction of late times by some chalenged CHAP. I. Matters in this third part to be handled Of the lawfulnesse of Oathes What an Oath is and the reason or originall Formall cause of the vse of Oathes THat which followeth in this third part of Apologie to be handled according to the order that I haue proposed to my selfe in the Preface before the second are the chalenges taken either to the oath of the partie which is sued conuented they are either against the ceremony outward actions vsed in taking it or els because it is giuen to tie the party to answer in a cause criminall penall vnto himself or else they are against examining vrging men to depose touching actions of their brethren being criminall or at least such as albeit the examiners do hold and make to be criminall and misdemeanors yet the examinates themselues doe take them for good and godly not deseruing any punishment but rather high commendation Or they doe touch some circumstance concurring with the tender of the oath as that the examinates haue not distinct knowledge of euery particular whereupon they are to bee examined before they resolue whether to take the oath or not Or lastly they concerne some euent ensuing the oath and examination as that the Iudges doe not rest in that which is affirmed or denied vpon the parties oath but oftentimes proceed to a further examination by witnesses concerning the same points This matter of an oath is a principall chalenge of theirs which they drawe and spinne out into these particular exceptions and chalenges as yousee And it is the thing together with proceeding against crimes and offences by way of Enquirie Ex officio wherein you most especially desired a full resolution which would to God either in the rest or in this I were as able to doe as I am readie and willing and as the matter it selfe and goodnesse of the cause would yeeld and affoord to a skilful and sufficient man But the rather to performe my promised vtmost endeuour I hold it not amisse for better vnderstanding of the rest to touch as brieflie and plainly as I can the nature of an oath and some I trust not vnnecessarie questions about that matter which I haue collected First I will touch but very briefly not taking vpon me to doe it in sort as Diuines could the lawfulnesse of oaths with answere to some obiections which is the question An sit I will stand the lesse herein least I seeme to seeke to drawe any of them into hatred as if these innouating disciplinarians did directly condemne oathes before Magistrates which most solemnly they protest they doe not Albeit if all their positions hereabouts were scanned and compared together some holden deliuered by one and some by others of them both shrewd and lewde conclusions pricking fast forwarde to this point would necessarily thereupon follow Next I wil handle what an oath is which is the question Quid sit Then the originall Formall
may penne his owne Commission will commonly make it large enough and he that may be allowed to frame and temper his aduersaries armour is likely to make it thinne and slender inough Were it then any maruell though this man should throughly answer such obiections as be wholy of his owne framing You are to vnderstand that by this worde the same in this place vsed he vnderstandeth generall oathes for a man to discouer all his thoughtes wordes and deedes whereof he had spoken in the sentence afore and this is the false issue which in the Epistle to the Reader I haue noted to bee by him tendered agaynst which if any reason materiall had bene brought by him yet it were but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is fighting with his owne shadowe and nothing touching any lawe or practise in this Realme In way of retortion against vs vpon this obiection he inferreth that all such are iustly reprooued who haue practised and put in vre this generall oath where otherwise there was sufficient proofe But he may not thus cary away this later point which he interlaceth viz. that there is no lawfull vse of any defendants oath touching a matter criminall where other sufficient proofes may be had For these absurdities hereupon would followe First where no witnesses are knowen to the Iudges aforehand though they come in after the parties oath taken that there a man by his owne periurie should bee for euer cleared and acquited and so without any punishment or other worldly danger hee might heape one grieuous sinne vpon another Secondly that a mans owne single oathe in his owne cause yea and for his owne clearing should bee as effectuall and powerfull as any two * Vide de hoc plura ca. vit 3. partis mens oathes by Gods worde are allowed to be touching another mans fact whether it tende to acquitall or to condemnation Thirdly it would thereof follow that all oathes in causes criminall should be of purgation and clearing onely and none at all of Enquirie But the Treatisour himselfe reasoneth also in this his booke against all cathes for purgation So that vpon the whole matter hee maketh all kindes of oathes by defendants touching their owne offenses or misdemeanors to be simply vniust and vnlawfull The contrary whereof in both will I trust be prooued Lastly it would hereupon follow that not onely Ecclesiasticall Courts but for auoyding like iniustice the Starre-chamber also should be barred from giuing an oath in any criminall cause to the defendant where the matter may perhaps bee prooued by witnesses But I pray howe can either the Court or the prosecutour tell precisely what the witnesses will or can prooue when they come to depose by vertue of their oathes For many a man when he is sworne telleth another tale then he did afore when his tongue walked at libertie Therefore by this opinion the Iudges for giuing the defendant such an oath shall so long remaine vnder a doubtfull danger to haue dealt vniustly vntill by the euent of the sute it might be discouered that the matter indeede coulde not bee proued by witnesses The Treatisor in refuting ex absurdo his own absurd obiectiō bringeth in by the way that these general oathes would enforce men to accuse themselues to their publike shame reproch or condemnation and their naturall parents deerest friends and neerest neighbours or else for auoyding of such mischiefe and inconuenience to commit most wilfull and damnable periurie and the Notegatherer sayth it is vnnaturall which because it will be perhappes applied also to all oathes giuen euen in a particular criminall cause and for that he thinketh this a matter very absurde therefore it requireth some briefe answere When a man vpon some such sufficient inducement as is spoken of in the second part is brought before a Magistrate by speciall Enquirie vnto examination his discouery against himselfe or other neither by Gods Lawe nor yet by mans Lawe is taken for an accusation vnnaturall but a necessary confession of trueth whereby God is glorified sin punished the common wealth benefited howsoeuer the partie susteine thereby some touch in his reputation Be not 1 Eccles. ca. 4. vers 24. 25. ashamed saith Ecclesiasticus to tell trueth for the good of thy soule for there is ashame that bringeth sinne and there is ashame that turneth a man to honour and grace and therefore he 2 Ibidem vers 30. 31. saieth afterward Doe not gainesay the trueth in anie the least point but be ashamed of an vntrueth though it proceede from thine owne ignorance Be not ashamed to confesse thy sinne and stop not the course of the floude And therefore in such respect hee ought not to refuse to take and performe his oathe as more fully God willing remaineth to be shewed hereafter Another obiectiō he also maketh falling not vnaptly into this place viz. that where losse of life libertie member of the bodie or good name may ensue there the presumption of periurie is great and where it is so great the sentence of the Magistrate trusting to such an oathe is grounded but vpon aweake and feeble foundation So that in this his presumptiō of periurie he matcheth without any good reason the danger of losse of good name with danger of life libertie and limme with better reason he might haue put in losse of worldly goodes and then by necessary consequence hee had taken away the vse of al oaths in euery subiect matter whatsoeuer For who knoweth not that for attaining riches and substance most worldly men not onely doe willingly hazard their good names honesties and reputation but that many doe also apparantly aduenture for them their liberties limmes liues and soules Therefore if for feare of periurie none oaths may be tendered whereby a mans good name may be questioned or impeached much more then ought they not to be where a mans welth and substance which most men doe most thirst after may be any way thereby impaired it is vpbraided as an affectiō too common with all men O ciues ciues quaerenda pecunia primùm Virius post nummos Vertue honestie and good reputation are esteemed by many degrees woorthie to come behind riches and therefore I answere that where a crime is in some sorte detected vnto the Magistrate alreadie the presumption is more strong that most men being sworne will rather deliuer a trueth yea though it touch themselues or their friends somewhat in reputation then that by periuring themselues they wil throwe both their owne bodies and soules into hell Nemo praesumitur immemor salutis aeternae saieth the lawe In deed where the Iudge hath good and probable inducements against some speciall person that he is like in any cause whatsoeuer to forsweare himselfe there as was said afore he ought to forbeare to tender an oath But it may not therefore bee made generall as if no man at all should be vrged to take an oath for feare of being periured Yet the Treatisour here
CoÌ„missioners wil take it as a great benefit to haue bin instructed by theÌ„ in a point touching the pleasure of God increase of vertue conseruation of vnitie which by most of their large trauels in Diuinitie by themselues they haue not hitherto fouÌ„d Howbeit this last part of his saying seemeth vnto me to sound as if he would not stick any more to grant vnto vs that the large words of the Act doe allow of this oath So that we finde nothing any way materiall by him alleaged to impeach our former conclusion viz. that the common lawes and statutes of this Realme allowe such oaths to be tendered by Ecclesiastical Iudges therfore the oath of the partie in some matter of crime that may be daÌ„mageable penal vnto him is both in practise is alowed also to be practised in courts ecclesiastical by y e lawes of this realme CHAP. IX That such oath touching a mans owne crime is allowed both by the Canon and Ciuill lawes howe farre and in what sort and that the like is established and thought equall by the lawes customes of sundry other nations aswell ancient as moderne SEing then the giuing of an oath in a cause criminall penall to a mans owne selfe is practised by the lawes of the Realme and allowed by them vnto courts Ecclesiasticall in both which respects such Canons as prescribe it are by statute warranted to be still vsed as they were before the making of the Act. 25. H. 8. and in trueth haue bene alwayes since let vs therefore see whether this course be iustifiable also by Canon and Ciuill lawes and by them allowed and practised First the lawes of the realme that do allow certaine matters to be of ecclesiasticall conusance caÌ„not be intended but to allow an ecclesiastical forme of proceeding by such lawes receiued For it were as vnreasonable to barre them from proceeding in a cause ecclesiasticall according to that lawe as it would be to require of them to deale by way of Inditements and Iuries Those lawes are so plentisull in this point that it were vaine to set downe but a tenth part of that which in this behalfe might be sayd Therefore I holde it best to shewe vnto you what is the lawe herein agreeable also to the practise in ordinarie courts ecclesiasticall as I conceiue it in as great briefnes as I can which may boâ—…h declare that by those lawes it is allowed how farre and why it is lawfull may also serue to answere by true distinction vnto all obiections drawen out of either of those lawes against this course An oath touching a criminall position or matter is either taken by a witnes or by a partie A witnes by the very nature of testimonie must depose indifferently aswell for the partie against whom he is produced as for him which produceth him And therefore is to answere truely not onely to the positions and articles giuen in by him by whom he is produced but also vnto the lawfull and pertinent Interrogatories ministred euen by the aduerse part In which Interrogatories two seuerall sortes of matters may be conteined tending to disable him from giuing testimonie The first is an Interrogatorie tending to the discouerie of his owne turpitude and vnto 1 Felinus in ca. cum causam de testibus nu 10. per communem opinionem this whether it concerne any crime supposed to be committed by the witnes or his confession thereof or the fame and infamie against him of such crime or a sentence thereof or an excommunication thereupon gone out against him or any such like matter he is not bound to answer vpon his oath though he haue done penance for it and thereby be presumed to be reformed The reason hereof is truely alleaged to be this 2 Io. Andr. in ca. 2. de confessis nu 6. per c. ex tu arum de purgat Canon c. because the end of such a criminous Interrogatory ministred by way of exception or barre to a witnes or to an accuser is onely to disable him from accusing or witnessing not to the acquitall or condemnation of the person so challenged of the crime as the ende is where a Purgation of a mans owne selfe is to be enioyned therefore no reason to aske it of himselfe For as one wel saith by the 3 Alph. Villag in Pract. Can. li. 3. c. 13. conclus 3. order of charitie eche man is bound to loue his owne body and fame one degree sooner and neerer then his neighbours insomuch as the loue towards our selues is made the rule howe to loue our neighbours in which respect it is sayd that ordinaria charitas incipit a seipsa and therefore no man is bound to furnish one that standeth opposeth himselfe against him euen against himselfe in matter of crimes but sayth he it is otherwise when a man is vrged to the like by a Magistrate that is his competent Iudge Whereby the reason of the 4 Vide 2. Part. pag. 36. priuilege of an oath ministred ex officio aboue that which is at the instance of a partie appeareth The second sort of Interrogatories tending to the disabling of a witnes is such as conteine no turpitude in themselues as 5 Felin ibid. per Baldum Interrogatories touching his condition as whether he be bond or free or of his pouertie kindred or aliance and such like and to these he is bound to answere When a criminall matter is obiected as to be answered by him that is partie vnto the suite it either toucheth the crime of some witnesse by him produced or else the partie his owne crime if 1 Specul de teste § iam de interrogat it toucheth a crime of his owne witnesse he must answere it by the vertue of that part of Iuramentum calumniae by him taken which is that he shal not burthen more then needs his aduersary in making his proofes but shall himselfe confesse a trueth therein when he is asked But when it toucheth the parties owne crime it is of two diuers considerations for either the cause is Ciuilly mooued for the priuate interest of the prosecutor or els criminally for publike punishment If the suite be but ciuilly mooued the criminous position or interrogatorie may concerne such a crime as being concealed brings benefit commoditie to him with another mans losse And in 2 Bartol in l. Manellus §. qui rerum nu 30. ff rerum amotarum this case albeit there be no fame or no detection precedent the partie is bound to answere it vpon his oath But if the concealing of it cannot procure his gaine with another mans losse 3 L. qui iurasse §. qui pater ff de iureiur ibi glo l. si a te ff de excep rei iudic then is not the partie himselfe in such case bound to answere a position criminous so mooued by his oath yet euen in this 4 Bartol vbi supra
that euery one in authoritie that requireth an answere of a guiltie person being vnder his power in a matter of crime must needes either driue him to a lie which 1 Sapient 1. slayeth the soule or else to accuse himselfe of a matter dishonest as these men speake and gainesay When Peter and Iohn 2 Act. 4. V. 7. 8 were examined in the great Councell vpon this Interrogatorie By what power or in what name they had doone that miracle Peter full of the holy Ghost answered plainely and truely though happely it might haue beene capitall vnto him Then what are they full of who being required by authoritie to answer vnto matters of no such danger vnto them doe neuerthelesse refuse to answere directly or who will not answere at all for vpon a mans owne confession Iudiciall though he be not sworne he may aswell be conuicted as if hee had answered vpon his oathe In the proceeding 3 Act. 6. vers 11. against Saint Stephen there were in trueth none Accusers but those who by subornation denounced him to the Priestes and who are twise 4 Ibid. V. 13. ca. 7. vers 58. called witnesses because they deposed against him yet when the high Priest asked him 5 Act. ca. 7. vers 1. c. thus Are these things so Stephen refused not to make answere and that truly howbeit they made his Apologie to be capitall vnto him Likewise when the 6 Act. 21. vers 38. 39. Captaine asked of Saint Paul whether hee were not that Aegyptian which had made a sedition c. Paul answered directly and slatly denied it Likewise the same Saint Paul 7 Act. c. 24 25. 26. in all his other seuerall conuentings before authoritie mentioned in the Acts euen at the suite accusation of a partie refused not particularly truly to answer to all that was obiected by confessing some denying other some of the crimes by his aduersaries and accusers imputed to him But if hee had learned the readie way that is nowe deuised not onely to answere accusers obiections but the Magistrates owne questions hee might haue wiped them off quickely without such long Apologies and haue willed them onely to prooue what they sayde yet neither expressely affirming nor denying any thing No doubt though the Apostle or any of those other godly men mentioned had beene guiltie of anie thing yet being duely asked they would not haue stood mute nor haue answered doubtfully neither would they haue affirmed more without it then they would haue doone vpon their oaths if the course of the proceeding had admitted it and that their oathes had bene required It is therefore well 1 Chromatius in 5. Matth. facit can 36. concil Tolet. quart saide by an ancient and learned Writer thus Dominus inter iuramentum loquelam nostram nullam vult esse differentiam God makes no difference betwixt our speech whether it be without oath or vpon our oath And 2 Thom. 2. secundae qu. 69. art 1. Aquinas saith if he which is brought into question and interrogated by the Iudge without his oathe shall answere vntruely that therein he sinneth deadly The olde Christians in the Primitiue Church were as farre off from these shifts of answering vnto most dangerous Interrogatories demanded of them euen by heathen Magistrates as they were from all vntrue answeres thereunto which point I minde to make apparant out of such of the Ancient Fathers especiallie as bee auowched by the Note-gatherer for condemnation of these examinations and of exacting men to confesse their owne crimes so that heereby it may bee the better iudged howe sclenderlie their Writinges by him quoted doe serue this turne Tertullian herein is very plentifull especially in his Booke called Apologeticon yet is hee quoted by the Note-gatherer for a condemner of examining and interrogating men touching their owne crimes of which sort y e very profession of Christianitie was then accounted to be A Christian 3 Tertull. in Apolog cap 1. sayth he if he be endited or denounced to the Magistrate he reioyceth in it if he be accused he propoundeth no defence when he is interrogated he most willingly confesseth and when he is condemned he giueth them or God thanks By his complaint in the same place for that Christians were not dealt with as other offenders were he both sheweth what then was practised in Criminall proceedings by the lawes Ciuill and also his owne good lyking thereof At the Chrstians handes 1 Tertul. ibidem saith he that onely is expected which suffiseth to stirre vp the peoples hatred against them that is an onely confession of the name of a Christian not an examination of his crime whereas if you hold conisance against any offendour as a mansleaer sacrilegious incestuous person or publique enemie to the state these being vsuall praises giuen vnto vs Christians you doe not pronounce sentence vpon the bare confession of the name of the crime but you enquire also of the qualitie of the facte the number place manner time priuies and partners But concerning vs you obserue no such matter which you ought no lesse to doe then with those others And againe 2 Ibid. Apolog. cap. 7. We are still said to be murderers of infants and incestuous persons yet you haue no care to finde that out which of so long time hath bene said of vs. Therefore either get it out of vs if ye beleeue it or else refuse to beleeue it because you cannot finde it to be so Then 3 Ibidem followeth this You commaund Christians by a farre stranger kinde of torture viz. not that they should declare what they doe commit but that they should deny themselues to be the men which in deed they are Which vrging of Christians to declare what they had committed that Tertullian doeth not disallow if the Magistrates would haue taken that course with them appeareth also by 4 Tertull. Apo log cap. 3. another place Whatsoeuer we are charged saith he to haue committed secretly though by others the same be committed openly yet we will answere it point by point or euery iote yea euen that for which we are reputed as pestilent persons as vaine and as men worthie to be scorned and condemned by others Saint Augustine also in his verie booke alledged by the Notegatherer doeth plainely establish and allowe of Othes taken concerning a mans owne offenses being in deede such also in their owne nature If perhappes saith he 5 August serm 28. de verbis Apostol cap. 6. thine oathe be vrged meaning a Decisorie oathe be exacted of thee by a priuate person say not I will not sweare for it commeth of euill which thou doest but yet of his euil that doeth exact it of thee Insomuch as thou hast none other meanes but thine oathe to purge and cleare thy selfe of the matter in handling But it may perhappes be said that the oathe here meant may be aswel in a cause
the word of God and some are taken from Diuines And of these later sort sundrie are by waye of Allegation out of their writings and some others are brought from their Examples Of those reasons that are pretended to be drawen from the word of God I place that of the Treatisour in the first place as most general wherehe sayeth that by this oathe Gods sacredinstitution is greatly peruerted and forced to another ende and purpose then he in his diuine wisedome hath appointed And the Note-gatherer sayth it is contrary to Gods word But why and how it should be found contrarie to Gods institution in his worde otherwise then is in part afore shewed in mine Epistle to the Reader and in other places of this Apologie as occasion hath bene offered they bring no proofe at all And yet without any better vnderpropping the Treatisour affirmeth this euen for proofe of another point viz. that by this oathe no due honour can be giuen to God but that he is thereby rather dishonoured In deede if it were contrarie to Gods institution then no doubt God is thereby dishonoured For hauing laid downe that the true vse and ende of an oathe is that due honor may be giuen vnto God the trueth confirmed Iustice mainteined Innocencie protected and an ende had of strife and controuersie he thereupon auoucheth his said former assertion It seemeth to me that all these endes cannot concurre and meete in euery oathe though otherwise it will be yeelded most lawfull For in case the partie himselfe by an Assertorie oathe doe vntruely sweare being guiltie of some crime or offence or whether witnesses shall truely sweare touching the said parties guiltines it is most cleare that by such oathes none Innocencie is protected but nocencie either more heaped vp vpon the partie himselfe or else discouered by the witnesses Besides when Abrahams seruant sware to him that hee would not take a wife for his sonne from amongst the Infidels of other nations Or when a man sweareth allegeance homage or fealtie or faithfull seruice and obedience to his generall or taketh oathe of her Maiesties supremacie and such like what strife and controuersie I pray do these make any end of Yea or what Innocencie is thereby protected seeing these oathes bee rather for reteyning the partie in his Innocencie if hee stand afore well affected or else doe serue for discouerie o his hollow and treacherous heart in case hee shall make refufall of them But let vs see how he prooueth that the oathe which wee treate of answereth not vnto the other endes which are by himselfe propounded The trueth in controuersie he sayth is not thereby confirmed since there is none issue ioyned in this case betweene parties affirming and denying As if the trueth of no matter neede to be confirmed by oath sauing where there is first a iudiciall controuersie Yet he himselfe speaking afore of the endes of an oath made no mention of this trueth in controuersie vnlesse hee will say that he confounded the second of these ends with the last Furthermore what controuersie was there betwixt Abraham and his seruant or betwixt one that tendereth and a Iustice of peace or other that taketh an oath to the Supremacie Neuerthelesse it hath bene often declared that the very meanes or inducements which open way to Enquirie in proceeding of Office are as a partie that chargeth the other and so a iudiciall controuersie dependeth And that there neede not to be any other formall partie alwayes in iudgement is many wayes shewed in the second part euen by 1 Vide part 2. ca. 15. criminall proceedings mentioned in Scripture yea what Scripture is there to require alwayes a partie promouent as of necessitie Thirdly there is euen here a kinde of cōtestatio litis or ioyning of issue in y e proceeding of meere Office viz. betwixt the denunciation fame or some other inducement as it were affirming and charging and the parties deniall that is conuented which point answereth also to that other argument of his by which hee would prooue that Iustice thereby is not mainteined because there be not three persons in iudgement Furthermore if such Iustice and Iudiciall course by three were necessary in euery lawfull oath by the worde of God then should all Promissorie oathes bee vtterly vnlawfull In which there be but the partie promising and he to whome the promise is made yet not iudicially for the most part He goeth further and to prooue that an ende of controuersie cannot ensue vpon such oath he vseth in effect his next precedent reason viz. because no quarell nor complaint is anyway depending First there is a complaint made and depending before such oath be tendered and I haue shewed howe Secondly if there were not yet an ende of controuersie might thereupon ensue in that the partie burdened by presumptions might perhaps thereupon be cleared and dismissed and so the matter in question ended Thirdly doe not the Lordes of the Counsell and doe not Iudges and Iustices of Peace oftentimes lawfully examine sometimes parties onely and sometimes witnesses euen where no Iudiciall sute dependeth Lastly hee mistaketh the place in the Epistle to the Hebrewes if hee imagine that vpon any single mans oath taken euery controuersie should thereby presently be decided and determine according to that oath which matter resteth to be shewed * Cap. huius part vltimo hereafter He sayeth also that it rather maketh more contention then endeth controuersie Indeede hee or such other mislikers haue thereupon of very late time taken occasion to make great stirres and contentions in this Church and common weale But assuredly this oath otherwise tendeth to ending of matters doubtfull and in question either by the punishment or else by the clearing of defendants and not to procure any accusation as he surmiseth and calleth it which is knowen and entred into afore any oath be tendered Yet Innocents hereby sayth he are not cleared since there is no complaint or accusation iudicially exhibited as though a man priuately charged with some offence towards his neighbor may not also priuately cleare and approoue his innocencie and integritie vnto him by his oath except there were first a publike iudiciall complaint or accusation presented vp betwixt them Besides I haue afore shewed that many oathes may lawfully be tendered and taken where none ende of clearing Innocents but rather of charging nocents is propounded Thirdly it may fall out that by such oath Innocents shal be cleared in case no pregnant proofe shall afterward be brought But if all these endes must concurre vnto euery lawfull oath how is the Treatisour constant with himselfe at least how doeth his former argument holde whereby hee would confute these oaths for that they were neither saith he for assurance of duetie couenant contract or promise neither yet for confirmation of trueth in controuersie for if any one of these last recited wil serue to mainteine the lawfulnes of an oath then what need all the other ends
one way or the other The other two places of the 30. of Numbers and 19. of Deuteronomie doe onely determine that no man shal be condemned vpon one witnesses deposition onely and do make nothing to prooue either off or on whether a partie may be examined by oath where witnesses may be had or not had except they minde to gather it thus there be mentioned onely depositions of witnesses to the conuiction of a matter therefore no course besides or in any other fourme may be vsed But this cannot be for though the partie denie it yea with oath yet vpon two witnesses shall the matter be established And if such collection were consequent vpon these two places then albeit a man woulde willingly confesse the matter against himselfe he might not be cast and conuicted till witnesses also should depose no lesse But this is absurd in that nullae sunt partes Iudicis in confessum nisi vt ferat sententiam and in the Gospell ex ore tuo teipsum iudico Besides this the condemnation by Iuries were then quite to bee condemned for vngodly For they may giue verdict sometimes but vpon one witnesses testimonie and sometime without any vpon violent and strong presumptions onely which in hidden crimes are good proofes Neither are they of the Iurie to bee accounted as witnesses but are as a kinde of Iudges of the fact Therefore in Magna Charta it is called Iudicium per pares and they much resemble Pedanei Iudices or Recuperatores in the Ciuill lawe and pares Curiae in the Feudall lawe which is practised chiefly in Italie Germanie and France The place in the 1 Iohn 18. ver 19 20 21. Gospel of S. Iohn where Christ being asked by the high Priest of his disciples and doctrine doth answere thus Why askest thou me aske them that heard me for I spake openly in the world I euer taught in the Synagogues and in the Temple whither the Iewes resort continually and in secret haue I sayd nothing they doe greatly insist vpon and vrge as a commandement to this purpose viz. that where any witnesses may be had there a man may not be examined himselfe but especially touching doctrine publikely deliuered but they are manifoldly deceiued Euery action of Christ is for our instruction saith S. Augustine but not euery one for our imitation Therefore of any particular action done or not done according to seuerall circumstances by our Sauiour Christ being the wisedome of his Father we may not gather a generall doctrine of imitation except wee were sure of all the causes and circumstances then concurring that so did mooue him at that time When 1 Matth. 26. v. 62 63 64. Iesus was falsly charged by vntrue witnesses hee answered nothing though hee were vrged greatly thereunto by the Priest but helde his peace And of holding our peace in like case Origen 2 Origen tract 35 in Matth. thus speaketh to what purpose is it to gainesay those who gainesay and ouerthrowe themselues by their owne contrarieties especially seeing it is more worthie freely and resolutely to bee silent then to stand in defence to no purpose for so shall not false and lewde witnesses insult ouer vs Yet when the Priest presently thereupon adiured him by the liuing God to tell them if he were the Christ the sonne of God he made them an answere albeit in his diuine wisedome he knewe that they meant to make it capitall vnto him Nowe shall wee hereupon gather that whensoeuer our wordes before a Iudge bee calumniously detorted by false witnesses to our great danger and wee vrged by him to make answere that wee are therefore bound to hold our peace When Saint Iohn Baptist was 3 Ioan. 1. v. 19. 20. asked by the Priestes and Leuites a dangerous question such as if hee had beene as they seemed to doubt the Messiah might haue turned him to great daunger viz what hee was hee confessed and denied not but sayde plainely I am not Christ. So that wee see such a generall doctrine as they gather may not be collected out of the former answere of our Sauiour Wee are therefore to knowe that the answere was very apposite and fitte vnto the question which was infinite and generall touching his doctrine which no man otherwise then in generalitie can answere and therefore the answere was correspondent to the question For it was as if he had sayde thus vnto them you aske mee of the whole doctrine by mee taught this is impossible for mee to answere and to recount vp vnto you If you thinke any thing therein particularly to bee erroneous or seditious enfourme your selues by those that haue heard mee and then what you shall so obiect I will bee ready to answere This you may easily doe for that which I haue taught I haue done it publikely in the Temple and in Synagogues and not in corners so that you shall not neede to make mee take vpon mee such an endlesse and impossible worke as you might haue iust occasion to doe and to make mee yeelde account if my teaching had beene in secrete Whereupon thus I gather against them if Christ being willed to giue an account of his whole course of doctrine did therefore refuse because it was too generall a question to bee answered and also because it was in publike places onely deliuered by him so that they might easily first enfourme themselues what they tooke to be amisse and worthie to bee obiected against him in somuch as hee had sayde nothing in secrete which if hee had might haue giuen in trueth iust cause vnto them to examine himselfe what poyntes they were that hee so carefully did auoyde the light to teach them in then these men that bee asked not of their doctrine in generall but of their particular actions in this and that poynt in this place at that time done not publikely but of set purpose so couertly as might bee so that no witnesses but such as bee also parties can bee had haue no iust defence nor colour of it out of this place And therefore of such hidden crimes by their owne position they ought to answere by their oathes Besides Christ was not detected afore of any particular matter wherewith they might charge him neither if he had beene was it his principall purpose otherwise then that hee would leaue testimonie that hee died an innocent to stand to cleare and excuse himselfe particularly that the determinate Counsell of God might take place with him By the premisses may appeare that the three reasons which they bring to prooue this maner of question and Inquisition mooued by the Priest to bee vnlawfull are altogether needelesse seeing no man defendeth the like But for proofe either of that more generall position viz. where witnesses may bee had a partie may not be examined or of the more particular viz. that a Preacher may not be asked of any poynts of his doctrine by him publikely deliuered neither doth this example of Christ
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
Temporall courts doe practise it yet is it contrary to an expresse lawe or certaine policie for else he sayth iust nothing to the purpose and yet he doth no lesse dutifully say it then he prooues it substantially euen out of the Ciuill lawe viz. ius non ex regula sumatur sed ex iure quod est regula fiat I pray yee who euer heard afore that regula here signifieth an example or a Precedent The true vnderstanding therefore of that part of Ciuill lawe is this when many cases runne one way so that for roundnes or better memories sake they haue bene by Iudicious men contriued into a summarie rule then whatsoeuer might be comprised vnder the generalitie of the words of such rule was not straight way to be reckoned for lawe because it is not possible in this great weaknesse of mans wit so to comprehend the lawe being to guide such infinite varietie of mens particular externall actions in a briefe rule as that it shall not haue sundry exceptions and limitations and therefore rarò est quin regula fallat And againe in this place non ex regula ius sumitur c. that is you can not conclude it necessarily to be lawe because you may apply vnto it some rule of lawe but because the lawe runneth accordingly in sundry cases you may therefore conueniently drawe them into a short rule which some doe call maximes in lawe yet abusiuely Thirdly he sayth to this obiection that by better Logicke we might conclude thus viz. because in these two courts answeres bee put in vpon oath therefore the same may be vsed in the Kings Bench and common Pleas which neuerthelesse were an absurde conclusion No Sir it is so farre from better that it is not any Logicke at all so to conclude except you adde more vnto it for if you could truely adde that the Kings Bench and common Pleas had time out of minde vsed that course for answeres to Billes in crimes not capital nor tending to mutilation of limme which may be verified of courts Ecclesiasticall besides the direction of that lawe by which they proceede then with very good Logicke might you conclude thus the same course hath time out of minde bene vsed in all those courts and it is not vniust nor cruell c. in the one and therefore not in the other for the diuersitie of places where they sit nor diuersitie of persons which doe sit as Iudges nor any other like circumstance cannot make a matter iust and equall if in his owne nature and simply it were vniust cruell or barbarous as this is often by him and others challenged to be Fourthly he sayth that in the Starre-chamber there is a bill of complaint formerly exhibited and so be there Articles in an Ecclesiasticall court Fiftly that there is also a knowen accuser Not alwayes an accuser for the office or common Interest of the Prince whose the court is oftentimes is there excited stirred vp by her Maiesties Atturney or Solicitour without any danger of them to be punished or condemned in charges though the matter should not fall out fully against the defendants euen as it is in courtes Ecclesiasticall when they proceede of Office albeit these more often proceede hauing a priuate Prosecutour especially in the court of Commission then they doe ex mero officio Sixtly that in the Starre-chamber they haue a copie of the complaint yet he himselfe doeth limit it thus viz. so it be not ore tenus Well then vpon some good occasion it is none vniustice though the defendant want a copie altogether of the matter obiected but in all ordinarie courts and in the Commission Ecclesiasticall at the furthest when they haue answered the articles they haue copies of them Seuenthly in the Starre-chamber the defendants are allowed counsell in answering the Bill and yet when this is ore tenus he knoweth they cannot haue counsell neither are they there alowed any counsell for answering to Interrogatories nor yet to haue a copy of them til they haue fully answered to them which Interrogatories vpon crimes in that court haue a correspondence vnto articles criminall preferred in Ecclesiasticall courts Lastly sayth he in the Starre-chamber if the Interrogatories be impertinent the defendant without offence may refuse to answere them and so may he refuse also to answere such articles in an Ecclesiasticall court But who shall then iudge whether they be impertinent or not shall the partie himselfe no verily but as it is in the Starre-chamber the court it selfe or else some of them that are skilfull in lawe being thereunto required by the rest Whereupon what great difference there is in any circumstance much lesse in matter of substance betwixt the proceedings in these courtes may easily be considered howsoeuer he doe largely conclude thereupon after his olde maner that there be mightie and great dissimilitudes For in his conclusion hereof he encludeth also other differences more bitterly and not spoken of at all in any his premisses whereupon he inferreth it albeit that such his additions be also very vntrue as that Ecclesiasticall courts giue oathes without all course of iudgement that the oathes there are made suddenly without all discretion vpon vncertaine demaunds that their oathes doe foolishly wander at the doubtfull will of a subtil and slye opposer and that the oathe in Ecclesiasticall courtes constraineth the reuealing of wordes deedes and thoughts though neuer offensiue to any Belike then where others be offended he mindes and will not sticke to allowe vnto those courts the ministring euen of these generall oathes which he so often besides the purpose harpeth vpon Let vs then lay aside these imputations being vtterly vntrue which hee coucheth together in his conclusion made of this point viz. concerning the like course obiected to be vsed in the Starre-chamber what then doe all or any the former differences of proceeding by him noted betwixt the Starre-chamber and courts Ecclesiasticall make to prooue the vnlawfulnesse of ministring an oath in a criminall cause which is the matter onely in issue here betwixt vs yea though they were admitted to bee indeede differences which is shewed to bee farre otherwise For albeit these courts should differ in many other points yet such difference cannot prooue an equitie to bee in the very like oath when it is vsed in the Starre-chamber and an iniquitie to be in it when an Ecclesiasticall court doeth in the like case minister it Truely he might out of those differences as wel conclude thus the Starre-chamber is kept and the oath is ministred at Westminster and they haue in that court but three or foure Atturneys therefore the very like oath ministred in the Consistorie at Paules where there be a dozen Procurators sometimes present is vniust and vnequall This therefore falleth into that point which in the Epistle to the Reader I affirmed to be his sophisticall answering of obiections He also doubteth that the Statute authorizing the attaching of heretikes by Ordinaries made 2.
H. 4. ca. 15. which he termeth the twise damned and repealed Statute and a bloody and boyling lawe will be alleaged for proofe of these oathes In trueth wee should be brought to a very straite exigend if we were forced as he is to runne vnto such repealed statutes for proofe of any principall point in controuersie Yet let vs see howe he assayeth to vntye this knot which he doeth two wayes First he sayth it appeareth not that thereby any authoritie was giuen to impose any such generall oath if then no such thing appeare why doth the Notegatherer so confidently Repugnancie betweene the Treatisour and Note-gatherer and so often affirme that this oath was then first brought in and established and therefore hee calleth that the statute ex officio though ex officio or oath be not once named there thereby confounding the very course of proceeding with that one Act thereof viz. of ministring an oath The Treatisour goeth further and sayth it appeareth not that any authoritie was thereby giuen to compell by oath the prisoner to become his owne Accuser for that and especially in causes of life and death had bene against the lawes and iustice of the land By which restraint in this worde especially he seemeth little lesse then to yeelde that in other cases not capitall this oath is not against the lawes nor iustice of the land But it is very vntrue to thinke that whatsoeuer is wholly forborne in Temporal courts should therfore straight way be accounted to be against them For there is great difference betwixt not vsing or forbearing and plaine forbidding of a thing to be done Furthermore we are commanded in 1 1. Pet. ca. 3. ver 15. Scripture to be ready to giue an account to euery one that asketh vs a reason of the hope that is in vs with meeknes and feare If to euery one much more to a Magistrate What then if he hauing also authoritie to impose oathes will exact it in this case may he not as lawfully doe it as without oath he may aske and interrogate the partie Nowe it is no more lawfull before God for vs being but asked of our fayth or hope euen by a priuate man to dally with him or to say vntruly though it might saue our life then wee may say vntruly when wee be sworne to tell the trueth thereof vnto a Magistrate 2 Ecclesiast 4. ver 30. doe not gaine say the trueth in any case saith the wiseman and againe be 3 Ecclesiast 41. ver 21. ashamed of vntrueth before a Magistrate or a man in authoritie So that hereupon it may seeme to be against Gods lawe to set any man at libertie from answering truely touching his fayth and hope and so in heresie when howe and by whomsoeuer he shal be interrogated yea though danger of death might ensue thereby vnto him His second answere to that statute is that if this oath be implyed vnder the worde of Canonicall sanctions mentioned in that statute then was it no binding law nor gaue sufficient authoritie c. because all lawes of man repugnant to the lawe of God are meerely voyd Where he assumeth as graunted that this oath is repugnant to Gods law which shal God willing be prooued far otherwise The last point which to this purpose he supposeth wil be obiected is that the kings heretofore haue graunted Commissions to examine by oath This he thinketh cannot be prooued and though it could yet sayth he such Commissions are against law and therefore voyde Therefore vntill they be prooued to be herein against lawe this answere will fall to nought and the obiection will remaine till then good and sound And so I ende this tedious Chapter made in answer of all that which I finde brought for proofe that these oathes whereof we argue should be contrarie or repugnant vnto the statutes common lawe or customes of this Realme CHAP. VIII That ministring of such oathes is by the Lawes of the Realme allowed vnto Iudges of Ecclesiasticall courts and some fewe obiections made to the contrary are answered THat the lawes of the Realme allowe it vnto courts Ecclesiasticall which point comes next to be declared these few allegatiōs folowing may suffice 1 〈◊〉 H. 5. ca. 〈◊〉 Ordinaries are authorized to enquire of the foundation estate and gouernance of Hospitals being not of the Kings foundation and of all other matters necessarie in that behalfe and vpon that to make correction and reformation howe after the lawes of holy Church as to them belongeth Now by those lawes Enquirie touching crimes not capitall is made by the defendants oath as in the next Chapter folowing is declared So that if any such faultes be the persons visited are to discouer them vpon their oathes which cannot be entended but that they may be criminall and penall to them selues because the statute sayth that they are to be corrected and reformed If 2 Clerkes be conuicted before Ordinaries of incontinency by examination and by other lawfull proofe requisite by the lawes of holy Church they may be committed to ward But it is shewed afore that examination euen at the cōmon law like as at the Ecclesiasticall is vpon oath So that such oath is by the iudgment of that statute deemed a lawfull proofe requisite by the lawes of holy Church Executors 1 21. H. 8. ca. 5. administrators must giue oath before Ordinaries of the trueth of such Inuentaries as they doe exhibite Yet this may implye in it either periurie or some discouery of a mans owne fault if he haue dealt therein corruptly and fraudulently And another 2 27. H. 8. ca. 10. statute though standing repealed yet giueth good testimonie that not onely Enquirie at an Ordinaries visitation but also that the parties owne examination of whome the enquirie criminall ex officio is made is holden for a due course of the lawe ecclesiasticall not disallowed of by the lawes of the Realme And such examination is done by oath according both to that lawe and to the Temporall in like behalfe as hath bene shewed out of Iustice Brookes abridgement Moreouer 3 1. Eliz. ca. 2. Ordinaries are authorized to enquire to punish c. the violation of the Act made for vniformity of common prayer howe euen as heretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes But such enquirie generall is prescribed and so was alwayes practised by the oathes of men and the enquirie speciall is and was vsed by the defendants owne oath in case he should stand in deniall The oath of 4 5. Eliz. ca. 1. Supremacie may be giuen ex officio by any Ordinarie to a Clerke being within his iurisdiction yet if such Clerke doe cary a contrary perswasion it vrgeth him to reueale and discouer himselfe and his erroneous opinion by refusall of the oath or els to be foresworne which if he list not to be but rather refuse then falleth he thereby into a Praemunire which