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
following of their opinion it wil be said that those aboue rehearsed are knowen and manifest crimes to allmen euen by the light of nature but so are not their Disciplinarie and Synodicall Constitutions c. It is true that treason murther theft and such like 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 euen in their generall nature are condemned for crimes by all men Yet when men come ad 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the particular application of their owne factes vnto the generall crime they are then contented to flatter with their consciences and to please them selues in their owne actions and so with such and such circumstances to deny theirs to be in any like degree Doe the Iesuites thinke ye when they are conuented condemne their lewde seducing of her Maiesties subiectes as treasonable did the damnable conspirators with Babington the traytor albeit they were not ignorant what the lawes of the land did adiudge of their actions when they went about their treasons condemne themselues as traytors and not rather lewdly flatter them selues vpon some circumstances which they thought should assoyle them of all guilt afore God Therefore this opinion though it cary a colourable shewe of some greater obedience yet when the reckonning is cast vp it iumpeth in very deede with the second For it commeth to this point that euery man shal be his owne Iudge how faâ—…e he neede to obeye lawes and Magistrates that require him to deliuer his knowledge touching his owne or other mens factes so he himselfe will account them lawfully done Besides the absurdities that followe this opinion it is also in it selfe very vnreasonable For if a man may reueale his brothers or his owne sinne may he not much more his vertue If God be glorified in detecting of sinne much more in making vertues knowen If trueth must needs be vttered of sinne much more of vertue for wisedome is iustified of her children If their doings be good instifiable then to conceale the trueth is in very trueth nothing lesse then to betray and forsake the trueth And that this is but a vaine glosse deuised in trueth to couer their misdemeanours and to escape from deserued punishment may appeare by the desire they carrie by all wayes meanes to cloke their sayd actions If their workes were not of darkenesse and secrecie they would not flie the light For it is a propertie of those which doe euill to flie from the light If their doings be workes of the light let that light shine foorth before men that they may see those their goodworks and glorifie their father which is in heauen If they stand assured they haue done but well what punishmeÌ„t soeuer should light vpon them for it they should confesse their obedience and T. C. practise of the whole Gospell of Christ whereof they make their discipline a necessarie part and reioyce with the Apostles that they are found woorthie to suffer punishment for the Disciplinarian part of the Gospell But is not this strange that where the most part of this Disciplinarian humour do thinke that they ought to discouer nothing of themselues nor of their brethren that is criminall that yet these others being fewer shooting at the same markes will as they say reueale their crimes onely but nothing else no not their owne and their brethrens vertues and good deedes belike for feare least they should be counted to doe it vpon some vayne glorie Yet this opinion giueth vs this aduantage that if a man may lawfully reueale and discouer not onely his brothers but his owne crimes and offenses if they beetruely crimes then haue they no colour but they must doe it when by the Magistrate according to lawe and vpon their oath they are so commaunded That which they may lawfully doe that may the Magistrate lawfully enioyne and they without disobedience to Gods ordinance may not refuse So that for the lawfulnes of ministring an oathe to a partie in a cause verily criminall and thereby penall to himselfe being a maine and principall controuersie betwixt the State and them we haue allowance by some of their complices owne positions but yet wee cannot get their practise vnto it But more hereof in the next Chapter The fourth and last of their opinions touching such oaths seemeth to bee something better and euen perhaps Classicallie or Synodicallie digested by them Yet it caries no small contradiction in it selfe which to their most aduantage that they can possiblie haue it vnderstood I will seeke by distinction to reconcile and to make stand together These therefore may be thought generally to holde that for anything whereof witnesses may be had the partie may not bee examined vpon his oath Out of which generall they diduce this that the Iudge may not examine a Preacher vpon his oathe touching his doctrine deliuered in publike place And if he goe about it the Preacher without breach of duetie to the Magistrate may lawfully refuse to sweare But if the crime be so hidden and secret that witnesses may not be had then a man may bee charged say they by oath But this they also limite and restraine thus so it bee not to drawe matter of accusation against themselues And to this purpose they doe vse seuen reasons Albeit the same men also say that to remooue euill from the lande they will take such oathe They will c. But they tell vs not plainely whether they take themselues bound to doe it or not So that I cannot see how to make these their opinions dwell peaceably together except their meaning herein be this that for crimes which be hidden being in themselues euill that is prohibita quia mala they will be pleased to take an oathe to reueale them but things that be secrete where no witnesse can be had and be none otherwaies euill but because they be prohibited such they may and will refuse to declare by oath which if they meane in deed as it is very probable they doe then doe they runne quite contrary to the opinions of all men besides For if it might be left to most mens choise they would rather discouer of themselues and others some breaches of Statutes not directly sorbidden by Gods lawe then such their owne crimes as be forbidden and therefore conteine more turpitude in them as adulterie periurie and such like But it must be remembred that these men haue an odde grace in framing opinions of diuinitie Pro re nata euen as present occasions doe leade them And they temper not their actions oftentimes vnto their former conceiued opinions but they conceiue opinions and coyne conceites as may best stand for defense of their owne and their fauorers present actions Nowe because many of them hope to bee found cleare in their owne persons from grosse and actuall crimes so expresly forbidden by Gods lawe but not so cleare perhappes in breache of the lawes of this Realme and peace of the Church therefore is this newe opinion stamped by them to stoppe vp this
vpon hearing the miracles that God had done and wrought for the children of Israel and by special reuelation Rahab knew that God 5 Ibid. ver 11. euen the God of heauen aboue and earth beneath whose the earth is and the fulnesse thereof and who according to his prouidence and wisedome doth translate and establish kingdomes as it seemeth best to his diuine pleasure had afore that giuen that whole 6 Iosu. Ibid. V. 9. land vnto the children of Israel So that in very right and trueth she did owe no more obedience to the late king of Iericho but was by God discharged thereof and lawfully might as she did submit her selfe capitulate for her safegard with the embassadours of those to whō of very right her subiection then belonged and therefore could not without sinne haue betraied them being sent frō Ioshua her lawful soueraigne into the hands of an vsurper whō she knew perfitely the Lord had deposed 7 Ibid. ver 13. meant soone after to destroy accordingly This interpretation is euidently very strongly confirmed by that place of Scripture where she is for this cōmended By 8 Hebr. ibid. faith saith that place the harlot Rahab perished not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the disobedient when she had receiued the spies peaceably If then the rest of Iericho were disobedient in respect of which Rahabs obedience peaceable receiuing of them are cōmended therfore they perished by the hand of Ioshua the people is it not manifest that Ioshua was their lawfull Magistrate in right and that they ought to haue taken knowledge thereof and to haue obeyed him at their owne perils Lastly there is in this fact something extraordinarie as done by spectall oeconomy which by vs may not safely be followed As the lye that shee made in 1 Ios. 2. v. 4. 5. saying shee wist not whence they were and that they went out in the euening And likewise it is not to be presumed by any subiects in these dayes when as miraculous and speciall reuelations are ceased to adiudge themselues either wholly or in some particular actions circumstances to stand discharged of their obedience and alegeance towards their Soueraigne or vndermagistrates when and how farre themselues wil fansie For if by this and such like extraordinarie examples or by that of Obadiahs hiding of the hundred Prophets such presumption were lawfull or tolerable what a goodly colour might all disobedient and rebellious subiects haue namely vnnatural fugitiues ouer sea Iesuites Seminarimen recusants concealers harberours of these and such like boutifeux bellowes of sedition for all their godlesse attempts are they not or at least will they not pretend to be as assured and resolute of the goodnes of their cause as the Disciplinarians are touching theirs their designements so that for these men that would be counted most sincere professors of the Gospel to holde the like dangerous positions to seeke to confirme them with the same no better reasons and examples then the Papists doe theirs for my part I doe recken it to be the practise and part neither of grounded and iudicious Diuines nor of well aduised or duetifull subiects quorum vestigijs insistunt eorundem exitus perhorrescant But they say further that by such oath they should be drawen to discouer vnaduised speeches that sometimes passe men in priuate felowship as at table c. or such as come vnto them for counsell and for priuate resolution of their consciences First there is no man bound to answere more matters then be conteined in the Article or Interrogatorie whereof he is examined But if any matter be therein layde downe in such sort as it leadeth pertinently directly to such discouerie then is it likely that by some meanes it is detected vnto the Magistrate afore and by him thought expedient for some necessarie publike cause worthy of such Enquirie Againe if such priuate talke or asking of counsell haue bene cōcerning some platte or practise laid or to be laide that shall in discretion be adiudged by the Magistrate expedient for the common wealths sake to bee knowen and discouered and therefore if they shall enquire directly of it I can not see howe it may stand with any mans dutie to God vnto the Prince vnto Lawes to the Common wealth to conceale it being charged to the contrary But of other secret speeches treaties and resolutions of mens consciences no Magistrate is of so slender discretion as to enquire nor can by lawe though hee would for want of those indicia and speciall presumptions and inducements that are required to ground an enquirie vpon and therefore this is but matter deuised ad concitandam conflandam inuidiam against lawfull authoritie They alleage also that by their discouerie some that be very poore may be vndone and that the most of the matters and persons being already knowen vnto authoritie there can be none vse for them to appeach any but to alienate their mutuall affections and to haue one another in ielousie This is very loose simple to reason vpō a casuall euent which may happen thereby to prooue a thing vnlawfull for of a good matter an ill euent may and doeth often fall out è conuerso Careat successibus opto quisquis ab euentis facta notāda putat could the very heathē Poet say And why should a mā withdraw his duty to Magistrates onely for particular priuate respects touching himselfe and some few other priuate persons Whatsoeuer may happen let him doe as he ought Fiat iustitia ruat mundus Particularly to the first why should any man pitie his pouertie that pitieth not himself but wilfully runneth into dāger of lawes shal a man holde a poore man more deare vnto him then the common quiet peace of the Church and Common wealth both The second part implieth a contradiction in itselfe for if the matters and persons were sufficiently knowen then in trueth were it of no vse for the Magistrate to enquire further yet if they be so knowen already then what wilfulnesse is it in these men thus obstinately to persist to their owne hurt and yet to doe others no good thereby They obiect further that to discouer their brothers secrets is condemned as a fault by the Holy ghost for 1 Prou. 11. v. 13. he that goeth about as a slanderer discouereth a secret but he that is of a faithfull heart concealeth a matter And seeing they haue met in some mens houses that did it for good affection and opinion vnto them if they should discouer such it were a very vnthankefull requitall they say towardes them And for that their felowship is in the trueth the course they walke holy therefore euen by the law of loue and felowship they may not detect one another for that were a note of a false brother As for the trueth of the matters that they meete about the holines of the course they
ecclesiasticall whatsoeuer but either testamentarte or matrimoniall are voyd of all ground of law nay are contrary to Statute lawe to Common lawe to practise for time immemoriall and also vnto reason in some sort CHAP. XIII That iudgement of heresie still remaineth at the Common law in Iudges ecclesiasticall and that the Prouiso touching heresie in the Statute 1. Eliz. cap. 1. is onely spoken of ecclesiastical Commissioners thereby authorized THe two other opinions remaining that respect matters handled by Ecclesiasticall iurisdiction and come next to be treated of for the affinitie of them and because they both depend vpon one and the selfe same grounds I purpose brieflie to handle together viz. whether the iudgement of Heresie nowe lieth rather in the Common lawe then Ecclesiasticall and whether nothing may at this day be adiudged heresie but according to the statute primo of her Maiesties 1 1. Eliz. cap. 1. reigne For in the true vnderstanding of that statute the decision of these two opinions will wholie rest It seemeth by the latter the author of them thinketh that before the statute 2. H. 4. Ordinaries at the Common law might not by their iurisdiction Ecclesiastical proceed to the condemnation of an heretike and therefore seeing all former statutes made against heretikes stand now repealed he gathereth that no heretike may be delt with but according to the said statute made in the first yeere of her Maiesties reigne This opinion it may be he gathered out 2 Fitzh in noua nat br fol. 269. D of Fitzherbert his Noua natura breuium yet I thinke rather it was his owne conceit both because he doeth not alleage Fitzherbert for it and for that Fitzh leaueth euen at the Common lawe authoritie in the whole Conuocation of a Prouince to condemne an heretike albeit he there also hold that at the Common lawe before such statute a Bishop in his dioecesse could not so condemne But I haue shewed in the twelfth chapter hereof by very great and good opinion the law in this point to be mistaken For proofe that it is so I also touched it something in the 8. chapter For in the Preamble of the statute it is thus conteined The 3 2. H. 4. cap. 15. dioecessans of the realme then complained that they could not by their iurisdiction spirituall without aide of the roiall Maiestie what not at all Nay but not sufficiently correct nor restraine the malice of heretikes Why because they wanted authoritie at all to deale with them No but because the heretikes goe from dioecesse to dioecesse and will not appeare before the dioecessans but contemne the keies of the Church and censures of the same So that had it not bene for their fugitiuenesse their refusing to appeare and contempt of the keies the ordinarie dioecessans had Iurisdiction spiritual to correct and restraine them In which respect and for better assistance of their former iurisdiction it was then first prouided that heretikes should be attached and imprisoned Other authorities out of Statutes I there in the eight Chapter alleaged also to this purpose The wordes of the Statute made primo of her 4 1. Eliz. cap. 1. Maiestie from which this second opinion is gathered doe make the matter cleere that nothing thereby is meant but that Commissioners for causes ecclesiasticall according to that Act termed by the common people the high Commission shal not haue authoritie to adiudge any matter or cause to be heresie but onely such as hath bene so adiudged by the authoritie of the Canonicall Scriptures or by the first foure generall Councels or by any other generall Councell wherein the same was declared Heresie by the expresse and playne wordes of the Canonicall Scriptures So that the iurisdiction of Ordinaries and of the Conuocation still remaineth as it did afore at the Common lawe But I muse greatly what colour or pretence he could haue to gather the first of these two opinions out of the aforesayd words for doeth he or can he thinke that the ordering determining or adiudging of a matter to be Heresie by the Commissioners ecclesiasticall there spoken of is a iudgement at or according to the course of the Common lawe as the Common law is taken in vsuall signification Or shall it be imagined that wheresoeuer any matter by occasion comes in to bee mentioned in a statute as for 1 13. Eliz. c. 12. example naming matters of faith mentioning errors in doctrine or the doctrine of the Sacraments that the determination of all such points and what and how many speciall matters are conteined vnder those generall heads whatsoeuer shall by reason of such incident mentioning of them in a statute be put ouer to the iudgement of a Iurie or to the determination of Temporall Iudges What other may conceiue I know not for my part I must take it till I be better informed to be so simple a conceit as is worthie rather to be dismissed with laughter then to be confuted with further reason CHAP. XIIII That by the Statute her Maiestie may commit authoritie and naturall borne subiects may take and vse in Ecclesiasticall causes attachments imprisonments and fines THe next opinion that comes to be treated on is Whether the Queens Maiestie by her letters patents vnder the great seale of England may authorise the vse of any other processe in matters ecclesiasticall then by citation as by letters missiue attachment or such like whereunto I adde the other two of the same author depending vpō the same string whether her highnesse may so authorise the vse in matters ecclesiastical of any other coërtion or punishmēt as by fine or imprisonment These opinions if they be not well grounded vpon lawe seeme to me to touch her Maiesties prerogatiue roiall and supreme gouernment that was yeelded vnto her highnesse by statute very deeplie whosoeuer be Author of them And if this authoritie that is hereby impugned be in trueth a preheminence vnited and annexed to the Imperiallcrowne of this realme by Parliament and if he be a man of any qualitie so that hee hath taken the oath of Obedience let him vse good aduisement how it may stand with such his oath and allegeance They are pretended both by the Treatiser and the Note-gatherer to be grounded vpon 1 Magna charta cap. 39. these words of Magna charta viz. No free man shall be taken or imprisoned or be disseised of his free hold or liberties or free customes or be outlawed or exiled or any otherwise destroyed nor we shal not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land Whereupon the Note-gatherer also doeth collect that none may be attached but such as be first endited But the end why this law was made and the time when it was made are needfull to be considered The ende was this that the Kings of this realme should not chalenge an infinite and an absolute power to themselues as some kings elsewhere did
the apprehension of the parties their examinations personall and the taking of informations from others against them is founded but also as often falleth out other penalties and disgraces be inflicted as binding to the Peace or to their good behauiour making them to answere enditements of Barattarie or such like imprisonment of them by a good space sometimes till the next Sessions or generall Assises and sometime extending discretion euen to condemne men to be whipped publickely vpon the single Denunciation of a woman being infamous and partie in the pretended Crime one who is as easie to be suborned to speake and charge a man falsely as to deale lewdly and whose testimonie though it were not singular is of no weight and credite Much lesse therefore being but one ought she to be taken for sufficient to condemne any flat contrary to Gods owne Morall Lawe I haue also knowen Articles put vp against a good Minister and Preacher to haue bene reiected in respect of their insufficiencie by the Commission ecclesiasticall Yet the same Articles being preferred euen by his aduersarie but assisted with some of countenance in the Countrey haue afterwards serued to haue an Enditement found against him to be a Common Barattour yea by those and before those who perhaps might all of them be apposed to tell directly what Barattaria truely signifieth and importeth and whence it is deriued Likewise doe we not see that vpon the like grounds to some of these a man may be touched with great disgrace and discredite and that not vniustly As when some great and potent man in a Countrey against whom fewe or none there abouts dare openly deale is put out of all Commissions and publicke charge in his Countrey vpon priuate yet credible information giuen to some of the great officers of the Kingdome touching his oppression or other ill demeanour of himselfe Doe not the like grounds of Suspicion of priuate Complaint and Information exhibited vnto them iustly and sufficiently often times mooue and warrant the Lords of the Counsell to call some great malefactours into question and to deteine them till they be acquited or condemned by due triall Besides this vsuall practise doe not the very Lawes of the land allow of these and like inducements to take informations and to enquire into matters Criminall 1 10. H. 7. fol. 17. For in an Action of false imprisonment it is a good plea for the defendant to shewe the felonie and to pleade that he tooke the plaintife for suspicion of such felonie per Frowick And why then may not three or moe of the Queenes Commissioners ecclesiasticall be in reason as deepely trusted vpon their suspicions though in trueth they vse it not in this sort as some one single Iustice of Peace may be vpon his owne onely suspicion And is it not 〈◊〉 â—…ikely that they will haue as good ground of their suspicion as he hath of his and as much care of Iustice and of their owne credite In an old 1 3. Ed. x. ca. 12. statute we finde that Notoriousnes of a facte an euill name of a man yea and light suspicion also of Felonie may any of them serue to imprison a man Albeit in the two first cases such a person is by that statute appointed to endure hard and strong imprisonment yet aske whether in the originall Rolles this statute doe speake of imprisoning or else of strong and hard poenance which such be appointed to suffer that refuse to be iustified by the Common lawe of the land And as these and like inducements doe serue to ground the processe informatiue so doe they no lesse euen in Processe punitiue when the enquirie and examination is to punish the offender For if any the Iudges at Westminster or of Assises haue iust occasion of suspicion ministred of a misdemeanour to be committed by some belonging to that Court touching matters of their Courts and present iurisdiction may they not and is it not vsuall with them euen hereupon onely without any enditement or other prosecution of partie to call such supposed offender vnto examination before them to the effect of punishing him according as the qualitie of the facte shall fall out to require In the time of King Henry the seuenth it was prouided by 2 19. H. 7. ca. 14. Parliament for suppressing of Retainours That two Iustices whereof one to be of the Quorum might call all such persons as they shall thinke to be suspected of any Retaynour and them to examine of all such Retaynours by their discretion and their certificate into the K. Benche against all of them so examined and by that examination found in default to be against them as a conuiction and their certificate of any persons by that examination accused to be Retainours to be of like effect and strength against them as an Enditement By the same it was also 3 Ibidem enacted that such Iustices as afore or the Lord Chaunceller or Lord Keeper or three of the Kings Counsell attending him shoulde haue full power and auctoritte without any sute or information made or put before them or any of them to sende for by Writte Sub poena Priuie seale Warrant or otherwise by their discretion for any person so offending and the same person to examine by othe or otherwise by their discretion and to adiudge such as should bee founde guiltie by verdict confession examination proues or otherwise in the forfeitures and paines as though they were condemned after the course of the Common lawe c. So that it was thought then by the whole state of the Realme none vniust course no not in a Temporall Court for Magistrates to call some offenders into question criminall whom they did but thinke to be suspected and to condemne them without either Enditement Appeale suite or Information made By a Statute made in her Maiesties time it is enacted 1 1. Eliz. ca. 1. That if any man be in prison for supposed speaking in behalfe of forreigne Supremacie and happen not to be endited within one halfe yeere of the offence committed that then he shall be set at libertie Whereby appeareth that a man may happen to be brought into Question criminall and to be in prison also which is an Attachment and some punishment without any Enditement or Appeale precedent The statute for 2 1. Eliz. ca. 2. Uniformitie in Common prayer mentioneth three meanes of Conuiction by the course of the Temporall lawe viz. Verdict of twelue men the parties confession and the notorious euidence of the facte If then the Notorious euidence of the fact without Appeale or Enditement Verdict or Confession may at that Lawe serue for a Conuiction may it not with as good iustice and equitie serue for the same purpose at the Ecclesiastical lawe without either Accusation or Presentment If here it be said by any that though such practise of Temporall Iudges be lawfull and the Lawes and Statutes be iust in this behalfe yet perhaps the
with how many interpretations limitations and protestations doe in very deed take the whole force and true meaning of it away as deepely as the Papists doe though in other respects But it will bee sayd the contents of the Booke be creatures and therefore not lawfull to sweare by them Truely it must be confessed that simply to sweare by a creature is 4 Mat. 5. v. 34. 35. 36. forbidden Sweare not at all neither by heauen c. nor by earth c. saieth our Sauiour in the Gospell which must be vnderstood to be forbidden in any other creature as well as in those The prophet Esay saieth Hee 5 Esay 65. v. 16. that sweareth in the land shall sweare by the God of trueth Ieremie 6 Iere. 5. v. 7. saieth How should I spare thee for this thy children haue for saken mee and sworne by them that are no gods Therefore are they 7 Iere. 12. v. 16. taxed that sweare by Baall and are taught to sweare thus the Lord liueth Saint Augustine as to this purpose writeth 8 Aug ad Publicol epist. 154. thus The very swearing by creatures is euill because it is forbidden by God but to keepe that thou so swearest is good that thereby thou may auoyde the sinnes of lying and deceipt The godly ancient 1 Eâ—…seb lib 4. hist. ca. 15. Martyr Polycarpus did rather choose to be burned to afhes then to sweare by the fortune of Caesar. Saint 2 Hierom. in 5. Matth. Hierome sayeth He that sweareth either worshippeth or loueth him by whome he sweareth The decrees 3 c. iurabunt c. considera c. clericum c. si quis per. c. mouer te § ficut etiam 22. qu. pâ—…ima of Gratian do gather the same prohibition against swearing by creatures out of sundrie olde Fathers and Councels Swearing is a kinde of religious acte whereby wee giue worship to God as most true most iust and knowing all thinges and therefore to be taken onely in his name Yet these reasons notwithstanding we finde sundrie examples of vertuous and godly personages in the Scriptures that haue sworne by creatures First it may seeme that God himselfe so sweareth where it 4 Amos. 8. ver 7. is said the Lorde hath sworne by the excellencie of Iacob Ioseph did 5 Gene. 42. V. 15. sweare thus By the life of Pharaoh ye shall not goe hence except your yongest brother come hither In the communication and treatie of league betwixt Dauid and Ionathan it is said thus And Dauid sware againe c. as 6 1. Sam. 20. V. 5. the Lord liueth and as thy soule liueth there is but a step betwene me death So did Abigail 7 1. Sam. 25. vers 26. sweare before Dauid as the Lord liueth as thy soule liueth The Patriarch Iacob at the league betwixt him and LabaÌ„ sware by the feare of his father 8 Gen 31. vers 53 Isaac And Vrias sware thus vnto king Dauid 9 2. Sam. 11. vers 11. as thou liuest and thy soule liueth The like oath doeth Elisha 10 2. Reg. ca. 2. vers 3. 6. vse to Eliah the Prophet twise in one Chapter as the Lord liueth and as thy soule liueth I will not leaue thee The Sunamite woman sweareth 11 2. Reg. ca. 4. vers 30. thus to Elisha the Prophet as the Lord liueth and as thy soule liueth I will not leaue thee Saint Paul 12 1. Cor. 15. vers 31. writeth thus by our reioycing which I haue in Christ Iesus our Lorde I die daily This doth S. 13 Aug. in 1. ca. ad Galatas ser. 30. de verbis Apostoli Augustine affirme and also proue to be an oath in two seueral places of his works And so doth 14 Beda in 1. Cor. ca. 15. Beda also our countrieman and an ancient Writer Which none of these holie persons woulde haue done or suffered in their presence to be done if it had beene either idolatrous or blasphemous In the times of the Primitiue Church we find records of this forme of oath taken viz. by the holy Gospels Saint 15 Aug. ad Publicol epist. 154. Augustine saieth It is a greater matter to sweare by God then to sweare by the Gospels which prooueth that this forme of Oathe was then in vse and that without reprehension But Saint 1 Chrysost. Hom. 44. in Matth. in opere imperfecto Chrysostome more fullie If saieth hee there bee any cause at all it is counted but a light matter to sweare by God but hee that sweareth by the Gospelles is thought to haue doone a farre greater matter to whome must bee saide Yee fooles the Scriptures were made for God not God for the Scriptures The same ancient Father elsewhere also noteth that manner of ceremonie to haue beene vsed in his time in taking corporall oathes whereas going about to reclaime men from that vsuall deferring of decisorie oathes vnto others hee 2 Chrys. Hom. 15. ad pop Antioch thus saieth At least sayeth hee if nothing else will mooue thee haue a reuerend regarde of the very Booke which thou reachest to him to sweare by and peruse but the Gospell which thou takest in thine handes and vrgest him to sweare by c. Ancient Christian Emperours did set downe by lawe that this forme of oath should be 3 Iustinian Nou. Coll. 2. const 3. vsed viz. by God Almightie the Father Sonne and holy Ghost c. and by the foure Gospels that I do hold in mine hand And other Emperours afore 4 Arcad. Ho. norius A A. l. 41. C. de transactio nibus anno Christi 395. allowed euen of this kinde of oath per salutem principis For resolution of this doubt I cannot disallow of the Schoolemens answere that whether the oathe be expresly by God or by implication it is not materiall so that wee doe not sweare simply by the creature Now there is no man so full of cauill who wil conceiue when we sweare to the oathe of Supremacie thus So God helpe vs and by the contents of the booke or By the holy Gospels that thereby we sweare either by the couer paper inke or forme of letters but rather by the wisedome and spirit of God by which it was indited and withall as it were renouncing all the promisses and calling vpon vs all the curses therein made if wee sweare not truely Therefore 5 Bonauentura Angel de Clauasio alij say they there is relatio ad Deum actualis in an oathe when both in words and meaning wee sweare by him and when wee sweare by some excellent creature not simply but in respect as there shineth in it a great measure of diuine trueth or Maiestie then it is called relatio habitudinalis ad Deum a secret implied reference to God himselfe For as the good that is doone to a Prophet or Disciple in the name of a Prophet or Disciple and the despite that
these sortes are Iuramentum calumniae veritatis Purgationis All these by lawe are necessarie to be taken for 1 l. 2. Authen principales C. de iuram calumniae Marr. de iuram cal nu 6. Cuiacius li. 9. obs ca. 37. if they be refused being so tendered hee is ouerthrowen in his cause that refuseth and is holden pro confesso conuicto And yet very often it falleth out that by such oathe the partie is drawen to discouer his owne dolum malum couine fraude or mal-engine and other also his owne lewdnesse both preiudiciall by lawe to his honestie and good name and also otherwise penall to himselfe For examples sake by the nature of Iuramentum calumniae hee is to discouer in some sorte euen the cogitations of his heart in that behalfe viz. 1 l. 2. C. de iuram calumniae That he standeth in lawe or affirmeth something in a full opinion and confidence that hee hath of his owne right and that the suite as hee mainteineth it seemeth to him good and iust And 2 Ibid. d. Authen principales §. i. Instit. de poena temerè litig Nou. 49. c. 3. further that what soeuer he shall be asked about that matter he shall answere it from time to time truly that he neither hath fraudulently giuen nor will after giue or promise to giue any thing to corrupt the minde of any man that hath to iudge in that cause Nowe if in a priuate cause betwixt priuate persons suing but for priuate benefite and commoditie and at one of their petitions per mercenarium Iudicis officium his aduersarie must of necessitie take such an oathe touching matters perhaps of his owne fraude and lewdnesse and to the discouering oftentimes of matters criminall and penall to himselfe or else must loose his suite and bee condemned as conuicted by his owne presumed and implied confession and this both by the Canon and Ciuill lawes being the Common lawe in both courtes of all other nations abroad in Christ endome then in a publike cause mooued by the Iudge ex nobili officio where hee seeth by his discretion and direction of lawes good cause in equitie for the publike interest that the Church and Common wealth haue that sinnes be punished and repressed for discharge of his duetie according to the trust reposed in him and not of malice or to pull any priuate benefite from the partie how much more is it herein equal and necessarie that an oath be ministred to such presumed delinquent for the discouerie of the whole trueth or else if hee stubburnely shall refuse that he bee holden as in the other case afore pro confesso conuicto When an enemie of malice or for other sinister respect doeth accuse a man of a crime iudiciallie and brings him thereupon into question and great danger if he cannot make sufficient proofes for his condemnation yet by probable presumptions hath so touched him as thereby hee becommeth vnto the Iudge iustly to bee holden suspected thereof In this case by both the lawes aforesaid the Iudge is to giue an oath of Purgation to the suspected person touching that crime which if he shall refuse he is holden as conuicted of it whereby it may happen that his accuser is more gratified and pleasured then by any proofes that him selfe could bring or could otherwise procure Is there not then much more equitie when the question and enquirie of the crime is stirred vp for a better purpose and without any such malitious accuser that vpon like presumptions and probabilities the like oath should be giuen and tendered by the Iudge to such supposed delinquent Can any man giue a sound reason why it should seeme equall that when an enemie gaue the first occasion pars reae should then vpon presumptions be vrged to take the oath or els to be condemned of the crime And that it should not bee much more equitie for him to take it when the Iudge for his dueties sake and stirred vp by probable inducements doeth originally call him into question And when a man is pressed with such probabilities as the Iudge findeth to be sufficient thereunto hee is iustly put to his oath of clearing himselfe if hee so can and so this tendeth in some sort to his owne benefit Is it not much more reason then that vpon the like presumptions appearing to the Iudge hee be vrged to that oath to tell the whole trueth of the matter with the pertinent circumstances aswell for the publike benefites sake of the common weale as for his owne good and escaping of punishment Some may perhaps here aske why the proceeding by the Iudge of Office should bee more priuiledged in this behalfe then when a crime is proceeded against by an accuser or party For in the very beginning of the sute the Iudge proceeding ex officio may require the oath of the supposed delinquent touching both circumstances and crime but when hee proceedeth by way of accusation albeit in courts Ecclesiasticall the partie conuented may be examined by oath vpon other matter of circumstance yet hee may not so be examined touching the very fact and crime or any thing neerely or presumptiuely tending thereunto vntill by sufficient presumptions the Iudge be induced to account him greatly to be holden suspected This question almost doeth answere it selfe for when the Iudge proceedeth by enquirie before hee offer the oath to the partie the presumptions against the partie are knowen vnto the Iudge but when by way of accusation till the accuser haue brought in such proofes as hee can they are not knowen vnto him Besides the Accuser doeth it of malice or for reuenge or for other satisfaction of his owne priuate humour for the most part But the Iudge by common entendement doeth it of sinceritie of minde and for the good of the common weale Againe 1 Panorm in c. per Inquisitionem de electione c. inquisitionis extra de accusat those that be conuicted vpon such Enquirie are most vsually punished by some milder punishment then when they are connicted vpon an accusation yea and in ecclesiastical courts sometimes not so much as punished at all corporally but meanes onely of inducement to repentance are vsed towards them All which being ioyned to that which hath bene afore spoken of the equitie of Enquirie ex officio doe sufficiently I trust recommend both the generall equitie of the vse of this oath and also the great necessitie of it in sundry causes and vpon diuers occasions But the Treatisour towards the very beginning of his disputation against these oaths surmiseth that in iustification of the equitie and conueniencie of them it will by vs be alledged that the same is requisite for the Enquirie and finding out of suspected faultes whereof there is no proofe and to search and trie the euill mindes and corrupt consciences of dangerous dissemblers and so necessarie for the gouernement of the Church and common wealth He that
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
remissiue case if such crime bee notorious or be otherwise sufficiently discouered by fame c. then is he bound to answere it vpon his oath Nowe if it bee mooued criminally to the intent of publike punishment it is either touching a crime altogether hidden or a crime which in some sorte is bruted abroade and manifested if it be simply hidden and secrete the 5 L qui iurassè §. si pater d. c. inquisitionis ex de accusat c. dudum el. 2. de electione gl Innoc. ibi Specultit de Positionibus §. 7. nu 40. est communis regula secundum Decium L. sin C. de edendo c. qualiter el. 〈◊〉 de accusat c. si peccauerit 2. q. 1. rule is that a man is not bound to answere such crime vpon his oath quia nemo tenetur propriam turpitudinem reuelare And it is 6 De poenitentis dist 1. c. quis aliquando ibi non tibi dico alledged out of Chrysostome in the Decrees Non tibi dico vt te prodas in publicum c. One reason hereof is 7 Arg. 6. q. 1. c. si omnia because mecre secrete sinnes neede not be published but are to be left vnto God alone De occultis Ecclesia non iudicat And another Canon to like effect 8 Vrbanus 〈◊〉 c. erubescant dist 32. sayeth thus We speake of sinnes manifested but as for meere secretes God alone is hee that knoweth them and will iudge them where by secrete sinnes hee vnderstandeth such as are by none inckling and probabilitie brought vnto light and therefore cannot possibly be denounced in any particularitie vnto the Iudge Therefore in generall Enquiries as at visitations the lawe prescribeth this forme of oath to be taken by them who are to 1 e. qualiter el. 1. de accusat denounce and present viz. touching such matters as they knowe or beleeue haue in charge excepting alwayes crimes meerely hidden they shall say the full truth and nothing but the trueth In which respect it is said that if 2 Salicet in l. ea quidem 17. q. C. de accusat an Officer of a Towne as such which be called in Italie Decani villarum by prescript of some statute be to denounce al misdemeanors committed in that towne vpon a grieuous punishment otherwise to bee inflicted vpon him yet is hee not thereby bound to present any secrete offence committed by himselfe Neuerthelesse I haue heard it in the forme of the oath giuen to grand Iuries at Assises and Sessions conteined that they should enquire of their owne their fellowes and other mens misdemeanors which they should haue in charge A great learned 3 Aquin. in quodlib 6. q. 8. art 12. in corpore quaest vide plura 2. part ca. 6. pag. 42. Schooleman by distinction doth thus determine of this poynt If the Adulterie be altogether secret a man is not bound iudicially to confesse his sinne neither in this case ought an oath of telling the trueth to bee exacted of him because hidden faults are reserued to Gods owne iudgement according to the 1. Cor. 4. Chap. But when an euill fame runneth of adulterie committed or when there appeare some euident tokens which may induce great suspition thereof or else when it is prooued Semiplene that is by one good witnesse without exception then ought an oath to declare the trueth to be imposed vpon him and he is then bound to confesse the verie trueth Another reason thereof is that a 4 L. 8. §. 1. §. illud quaeritur ff de interrog Iudge may not interrogate iudicially but where he is ledde thereunto by good equitie But there is none equitie to enquire of faultes that are absolutely secrete and hidden And yet there be also certaine cases which are excepted out of this rule The first 5 d. c. inquisition is Barthol in d. l. Marcellus Abb. in c. cum super de confessis Specula tit de positionibus §. 7. nu 40. is when the hidden crime is such as doth by lawe hinder the execution of function Ecclesiasticall or the reteyning of a benfice as Simonie Irregularitie or such like An example 6 Conc. Cartha 4. relatum a Gratiano di 50. c. ex poenitentibus hereof wee haue also in the olde Canons of Councels where it was thus decreed Though he be otherwise a very good man yet let not such be ordeined a Clerke which is a solemne penitent viz. such as for some crime hath beene put to such grieuous and publike penance as was very vsuall in those straiter times But if such happen to bee ordeyned through the Bishops want of knowledge of his state let him bee deposed from the Clergie because at the time of his ordination non se prodidit esse poenitentem he himselfe bewrayed not so much Then much more ought he to open it vpon his oath The reason that in all 1 Arg. 23. q. 5. ca. prodest de â—…c nunciat c. nisi cum pridem §. 1. §. propter conscientiam Specul ibidem Panor in c. cum oporteat de accusat such matters as do hinder the execution of an Ecclesiasticall function the partie himselfe is to answere though it be otherwise secrete or that he haue done penance for it is this because thereby his owne good and safetie of conscience is procured least he should else wrongfully liue vpon and spend that which by lawe and right belongs in deede and right to another and not vnto him And this holdeth 2 Bartol in d. L. Marcellus nu 3 generally whether the matter be ciuilly or criminally moued in case by concealing the partie that is to answere shall winne and gaine with anothers losse sauing when by such answere of the partie some matter that was fully afore decided is called afresh into question for then is he not compellable to answere it againe The second 3 Specul ibidem c. qualiter 2. extra de accusat 22. q. 1. c. si quis per capillum exception of the aforesaide rule touching not vrging to reueale secret faults is when as by concealing of the offence great perill doth growe to the Church as in heresie and dilapidating or spoyle and waste of an Ecclesiasticall liuing If here it be asked whether a partie be compellable to answere an Interrogatorie or position touching his owne being excommunicated or not it is to be remembred there be in lawe two kindes of excommunication One is 4 Specul ibidem nu 42. 43. excommunicatio Canonis when as the law inflicteth that censure ipso facto as by statute for fighting with drawen weapon in the Church or Churchyard Now because this censure so by law inflicted is alwaies presumed to be iust to binde therefore we are not bound by oath to answere vnto a position or interrogatorie diducing our owne being excommunicated no more then we are touching our secret faults The second is excoÌ„municatio hominis when as the censure
Prouerbs of Salomon for proofe that an adiuration curse made but indefinitely generally against any whōsoeuer that had cōmitted an offence did before God bind y e offender for auoiding of sinne to reueale y e matter though it concerned euen his owne turpitude He 1 Prou. 29. V. 24. that is partener with a thiefe saith Salomon hateth his owne soule he heareth cursing and declareth it not To be partner with a thiefe is no doubt a filthie crime and such a man cannot be aptly sayde to hate his owne soule vnlesse the fault it selfe were a grieuous sinne The reason why such one is noted by the holy Ghost so grieuously to sinne as that he is thereby accounted an enemie to his owne soule is because he heareth cursing and reuealeth not the theft wherein he is partaker It resteth then onely to knowe what that cursing is which in this place is meant The Hebrewe interpreters as I haue learned of those who bee very skilfull and conuersant in them doe expound it of that curse with adiuration which the Priestes vsually gaue against any whosoeuer had done or knowen of some certaine offence which was committed if they would not reueale who were the offendors whereupon doth followe that euen the partner with a thiefe vpon such a generall and indefinite curse was bounde in conscience to reueale the theft though it touched both anothers and also his owne shame and dishonestie and albeit hee was not called into question nor perhaps had in any suspition thereof Then how much more when Gods Priest or the Iudge who is Gods Lieutenant vpon probable groundes and inducements afore discouered to him doth charge a singular person with such a crime is hee bounde before God to reueile the whole trueth This kinde of Adiuration with curse to the intent to haue reuealed by whom goods were stollen was also in vse amongs priuate persons in the people of God and they had a conscience being but charged indefinitely amongs others without any discouerie or cause of suspition against any of them in particular not to conceale the theft as 2 Iudic. 17. ver 1. 2 3. appeareth by the historie of Michah and his mother for that which the latin interpreter there readeth thus quos separaueras Arias 3 Montan. ibid. in lib. de varia Republica Montanus by the Hebrewe Chaldee and Greeke copies prooueth that it ought to bee expounded in this sort viz. quos furto amiseras viz. the 1100. sicles or halfe ounces which were stollen from thee and for which thou did curse or adiure faith Michah her sonne I haue them Furthermore wee are 1 1. Cor. 10. v. 31. bounde to doe all to the glorie of God but it belongeth to the glorie of God for a man by due presumptions burdened with a crime and charged by the Magistrate to confesse of himselfe as appeareth by the historie of Achan For albeit the lotte fell vpon him yet was this nothing but an inducement to ground a speciall Inquisition against him being so detected vpon the generall Inquirie For if hereupon onely he might haue bene executed because the discouerie by lotte was by diuine prouidence directed to fall vpon him then Ioshua needed not to haue required any further confession of him Yet he doth not rest in that detection but goeth further with a most solemne adiuration in those dayes vsed for 2 Leuit. 5. ver 1. an oath the Hebrew word signifying both and being translated sometimes iuramentum and sometimes adiuratio in this 3 Iosh. 7. ver 19. maner Sonne giue glory to the Lord God of Israel and make confession vnto him shew me now what thou hast done vrging him vpon this generall detection by lot to a particular confession of the hidden crime and the circumstances thereof albeit the punishment of it was capitall In which historie we finde first a feare conceiued by Ioshua but at large vpon the badde successe they had in battell that it was likely God was offended with them then a care in him to enter into a general enquirie for the finding out of some probable and presumptiue matter of inducement against particular persons who were likely to be the offendors that had stollen something which was accursed and for which God was so displeased therefore according to the direction giuen by God himselfe and the custome of those times when as God did more miraculously and extraordinarily worke among his people knowing that albeit the lots were cast confusedly together into the lappe yet God by his wonderfull prouidence disposeth of them as to his owne diuine wisdome seemeth best he followed that course in his generall Enquirie of casting lottes A generall Enquirie I call it because albeit it was most probable some heynous offence to haue bene committed amongst them yet was it not knowen till God himselfe reuealed it what kinde of crime it was nor who was likely to be the committer of it But after the lot was fallen vpon Achan whereby a sufficient inducement was giuen to proceede specially against him Ioshua then entred into a speciall Enquirie by examining and charging him as he tendered the glorie of God to tell the whole trueth what he had done For as yet albeit by the lot fallen vpon him there was good probabilitie against him to bee that grieuous offender neuerthelesse Ioshua had no coniecture what the very particular thing was which he had stollen nor whether he had any partners nor yet knewe hee any other circumstances of place time c. so that this second Inquirie was speciall in respect of the person but in some sorte generall in respect of the maner of the fault which consideration greatly fortifieth our cause in handling wherein after good inducements found these Enquiries are speciall both for person and for particularitie of crime Whereby is also argued a fortiori that whereas by fame or other good presumptions and euidence a man is detected of crimes most secret afore there the Magistrate may exact the parties owne confession especially if it be not so penall as either life or limme which this of Achan was Next may bee gathered that to confesse vnto a Magistrate duely charging a man is to confesse vnto God thirdly that to make such confession to God is to glorifie him And lastly that in like cases the partie is bound to disclose the particular circumstances though perhaps he be not seuerally and in particular interrogated of euery one for it is there sayd shew me now what thou hast done Whereupon Achan being touched in conscience knowing his duetie to the Magistrate confessed his fault with all the particularities thereof If this were done vpon his oath as many learned interpreters do hold then may an oath be vrged in a matter criminall and most penall to the partie If he thus confessed and was bound so to doe though it were without oath then howe much more when the partie is tied by an oath giuen by the Magistrate
iointly if some one of these must necessarily be foūd in euery lawful oth then to what purpose serue those other seueral ends of oathes here not required nor mentioned viz. that honor may be giuen to God Innocencie protected and Iustice mainteined Seing there may be assurance of dutie couenant contract or promise giuen without any seeking to glorifie God thereby as heathens othes of obediēce to their superiors any other mens oathes for assurance of promises c. without respect to protection of Innocencie and without such Iudiciall course namely as may happen in priuate cōmerce betwixt man man From these reasons by him simply propounded I wil now come to his reasons by way of cōparison He cōdemneth this othe by comparing it to Herods othe that as that was generall to giue whatsoeuer the damsell woulde aske so these are to answere whatsoeuer shal bee demaunded This his imputation vnto Ecclesiasticall courtes of tendering such generall oathes which he so often and almost onely beateth vpon to the entent to giue a better lustre to the weakenes of the cause he defendeth I haue as seueral occasions haue bene giuē declared to be a meere slaunder Neuerthelesse it was not the generalitie of Herods othe which was cōdemned For the prophet Ieremie made vnto y e king as generall a promise of answering what he would demaunde of him as Herod made of giuing vnto the dauncing damsell But it was the rashe vnaduisednes of it rising vpon a carnall delight and when he had made it a more vnlawfull performance of a thing simply wicked which are the things therein to be condemned Next to his collections by discourse of reason I place his answeres vnto obiections which are supposed may be made for establishing general othes or other more particular yet in causes criminal to the partie examined The first of which is that of 1 Ioann 18. v. 19. 20. 21. the high Priests who examined Christ of his disciples and doctrine he put them of to those that heard him saying he had spoken nothing in secret But neither answering to interrogatories being so general as this was nor general othes are defended And if they were yet it is not the example of the high Priest refelled by Christ that any would alledge as he pleasantly doth insinuate to burden them and the cause with the greater weight of enuie and preiudice But touching this obiection the true vnderstanding thereof more fully in the next Chapter as in a more fit place Touching the next supposed obiection he saith It is not any sufficient allegation to saye that the partie deponent is no further bound to answere then the lawe requireth how generall soeuer his oath be since it is not safe for the conscience of such a deponent to stand vpon termes and questions how farre by lawe and by what law he is bound to answere Not safe for his conscience c is not this plainly and directly to leaue it vnto the libertie free choise of ech deponent in euery cause whatsoeuer to refuse to take any oath thē which what can giue greater strength vnto that detestable error of Anabaptisme for if it be not safe for his conscience to put it vpon the question how farre by law he is bound then may and also ought the Anabaptist and euery other fantastike to be a Iudge for himselfe whether to take any oath at all or onely so far and in what cause himselfe listeth vnder pretense of his conscience In that hee saith how farre by lawe c. it seemeth to me that he is in doubt both that Gods lawe and all the lawes of the land are against the refusall of such oathe and yet that hee would neuerthelesse arme all deponents against taking this oath because it may not be done forsooth with a safe consciēce In y t he further addeth and by what law it is probable he would thereby insinuate that howsoeuer it wil not be thought good by many of thē to be resused when it shal be imposed in courts of the temporol law yet if the same oath be imposed by force of ecclesiastical law that it cannot then be so safe vnto the deponents conscience Assuredly it is most strange that men pretending such pietie and sinceritie will teach others thus to dally with lawes and with their owne consciences as if the thing were godly enough to be exacted in one court but perillous to conscience in another Court albeit as well authorised vnto the one as it is vnto the other Insomuch as here he yeeldeth that this cōdition of not being bound by any such oth taken further then law requireth is obserued or vnderstood in ministring the oths which he impugneth doth he not thereby plainely discouer himselfe to be an oppugner of that which is but by law vrged and an encourager of others to oppose thēselues against lawes or else it must follow that none that be in authoritie do know the lawe therein besides himselfe or at least will not deliuer it truly doth he not also therein imply that in some cases the lawes allow of such oathes and that his charge of ministring oathes that are generall vnto all a mans thoughts words and deedes is a plaine slander insomuch as no law requireth that and yet the takers of this oathe are no further bound then the law it selfe bindeth And lastly it appeareth hereby if these oths restrained but vnto that which law requires be neuertheles vniust cruel vngodly tyrannicall that then the lawes of this realme establishing thē must needes endure his like hard vntrue and disloyall censure It hath bin often and no lesse truly said that none but Iesuites Seminary priests such like obstinate Papists haue refused this oth in hir Maiesties time or haue charged it to be vngodly vntil these new reforming Innouators did start vp that both the sorts of thē do build vpon the selfe same grounds of argument In answer of this he saith that by the ancient godly writing entituled The praier and complaint of the Plowman it appeareth that this kind of generall othes and examinations ex officio mero were not first misliked by Iesuites and Seminarie Priests and from them deriued to others that mislike gouernement and would bring the Church to an Anarchie as the world hath bene borne in hand For general oaths we stand not but who first misliked examinatiō ex officio mero or which of these two sorts of mislikers haue troden in the others steps by imitation is not so material as with what trueth or soundnes of reason it is misliked by either of thē I haue not the Ploughmans booke to peruse what is indeed there said here of neither greatly skilleth it though he were perhaps a good diuine disguised vnder a ploughmans title and stile If he had vsed any reason for his saying I doubt not but the Treatisour would haue enforced it But it followeth not that whatsoeuer in elder times hath bin by
are in mine vnderstāding the nearest in any of those chapters to y t purpose for which they are brought in which respect I am ashamed that we which professe the gospel shuld by perturbatiō so far be caried as either not to discern that no refusal of oth cā hence be gathered or if we wil vnderstand it shuld so vntruly friuolously by nūber not by weight quote places that looke nothing y t way Of Gregories writing vpon the booke of Kings which he also quoteth I find no mention in my booke But I find it noted that he writ such others also which were burnt after his death vpon emulation as Iohannes Diaconus in Gregories life cōplaineth His other quotation out of Gregorie toucheth not this matter of oathe and is answered else-where And so what here and what in other places afore as they fell in most fitly I haue answered I trust althe Note-gatherers quotations taken out of the ancient Fathers and other old Writers Whereby I hope is iustified that which I writ in the epistle to the Reader that most of thē that pertain to this matter of oaths may seeme to haue bene collected together against al taking of oaths whatsoeuer though being truely vnderstood as the same places do expound no such matter followeth thereon rather thē to make any shew against oaths in criminal causes which some of those places do in truth as you haue heard plainly establish and none do condemne or disallow And it appeareth likewise that they can no way be retched out to touch oathes in causes of crimes except wee expound them absolutely to condemne all oathes which to impute vnto those fathers were great iniurie and vntruth and yet no way aduantageable to this cause But both he and the Treatisor do also assaile vs in this point with some allegations out of Canons and later diuines as first where 1 6. q. 5. c. quod autem Gratian alledgeth the saide Gregories authoritie that no reason doth lay necessity of proofe vpon the defendant What he imagineth may follow hereof to his purpose I know not except he thinke the defendants confession vpon oathe being first burdened by fame presentment or such like may bee accounted for a proofe vndertaken against himself Besides that place speaketh when there is an accusation preferred and then may not the defendant by Lawe or Canon be examined of the crime vpon his oathe vnlesse it be at the time of his purgation He likewise quoteth 2 2. q. 4. c. consuluisti Gratian alleadging an epistle of Steuen the fift a Bishop of Rome the words thereof which he meaneth I take it are these publike crimes are committed to my iudgement vpon the parties willing confession or vpon proofe by witnesses but those that are hidden and vnknowen are to be left to him who onely knoweth the heartes of the children of men In that the confession here spoken of is required to be voluntarie perhappes hee meant absolutely to inferre that no man may be vrged by his oath to confesse a crime But what the matter was and the circumstances are first wel to be weied The doubt there propounded and to be answered was this When yong infants are founde dead in bed with their parents whether the parents were to bee put to the vulgar purgation of enduring hote burning yron or scalding water thereby to t◅ye whether they had not oppessed nor smothered them And the answere is that these kindes of vulgar purgation are superstitious and condemned by the Canons as being a tempting of God and then followeth that which is afore alledged The case then being such the parents might not by lawe be put to any purgation at all For the vulgar aforesaid is vnlawfull and they could not be put to their Canonical purgation insomuch as thereby 1 c. quotiens de purgat Can. they should be sworne touching the verie trueth of the matter and that would induce anceps periurium in which case an oathe 2 L. Videamus ff de in litem iurando may not be imposed For if they shoulde directly haue sworne that they did not oppresse or smother their infant in so great vncertaintie thereof as must needes be whiles men be on sleepe it might happen that thereby they should in deede be periured though not knowing certainely whether they had so done or not And 3 Archid. m. d. cap. consuluisti nu 2. Geminianus ibid. nu 2. 3. Praeposit ibid. nu 5. Interpreters doe wholly agree that this was the onely reason why an oathe might not in that case be imposed not any regard which was had simply to condemne all vrging of men vnto confession of their crimes That which the Notegatherer 4 c. vlt. de purg vulgari alledgeth out of the decretall Epistles onely toucheth the condemnation of that vulgar purgation in those times much vsed We may reade euen in our owne histories of a Q. mother in this land before y t conquest who being charged by great presumptiōs of incontinent life with the then Bishop of Winchester is saide in the course of vulgar purgation to haue cleared her selfe by going barefooted and vnhurt ouer nine red-hotte plough-shares if we may beleeue stories Oflater Diuines he also quoteth Tyndall in seueral places of his works In y e first of these I take it these 1 Tyndall in 5. Matth. pag 208. words of Tyndal be meant neither ought a Iudge saith Tyndall to compell a man to sweare against himselfe that he make him not sinne and forsweare he yeeldeth then by implication that in some cases a superiour may compell his inferior to sweare and so much doe his words next precedent importe Indeede we all confesse that where there is great apparant probabilitie that the party is such a man who wil rather for sweare then confesse a trueth against himself vpō such a man an oath should not be imposed But where the penaltie is not capitall nor of mutilation nor none other particular strong presumption to induce such suspition touching the partie and especially where he stands afore charged vpon good and probable grounds to haue in deede committed such a fact there the lawe will not intend or presume but that he will make further discouery rather then to be forsworne quia nemo praesumitur immemor salutis aeternae as afore hath bene aleaged Albeit Tyndall seeme in this place to insinuate that truely that in some other cases an inferior may be compelled to take an oath Yet in the next place quoted he taketh away all necessarie oathes and leaueth none but voluntarie whereby his iudgement in this matter of oaths though otherwise a godly martyr is much lightened No Iudge saith he ought to make a man sweare 2 Tyndall in resp ad Morum pag. 309. against his will for many inconueniences If a man receiue an office he that putteth him in the roume ought to charge him to doe it truely and may and
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
is meete that such being probably touched that witnesse instar omnium be vsed and called on by them who knoweth all things before whom the whole world stands as a 1 Apocal. 4. v. 6. sea of pure Christall Some examples of such crimes are shewed in the eleuenth Chapter by the Scriptures And what shall witnesses neede if the partie himselfe will not denie it Or what if the witnesses be not meete to be knowen at first least the partie vpon his oath or otherwise discouer no more when he once knoweth them then he supposeth by them can be deposed Or what if at the parties first conuenting no witnesses be knowen that can testifie but doe come afterward vnto the Iudges knowledge Touching hidden crimes if they be simply hidden and in such sorte as is meant by that place of S. Paul and by the like rules in lawe it is very true that they are not to bee enquired after by any Magistrate neither is any man bound to reueale such Therefore it may not bee asked of any man as was done in Popish shrift what faults and sinnes hee knoweth by himselfe Such be the counsels and secrete thoughts of mens hearts spoken of by Saint Paul in that place and all actions also not come abroade at all nor manifested either by fame or by other good presumptions or euidences For before they be at least so manifested it is not of any possibilitie to make enquirie or question after particular crimes when they bee not so much as supposed to be done Concerning which crimes what the law Ecclesiasticall and practise is I referre you to the ninth chapter of this third part But if they shall be once so manifested abroad as before is declared then is not the fault simplie hidden but in part is manifested and brought to light and therefore is it fit and conuenient that the partie be either cleared of it or corrected for it Besides that place of S. Paul is not meant of any Iudiciall proceedings but of priuate rash and vncharitable iudging of our brother in the worst part without any iust ground thereof as if wee would take vpon vs Gods owne office and would iudge the inward cogitations of another mans heart Such peruerse iudging our Sauiour Christ also 1 Matth. 7. v. 1. Rom. 2. v. 1. condemneth in the Gospell But it pertaineth nothing vnto such enquirie by oath as the Magistrate hath good enducements and presumptions for to enter into Another sorte no lesse pernicious then the former are those who will pretend not to refuse to take an oath in a cause criminall but yet they will doe it with this limitation and protestation that they entend not thereby to be bound either to accuse themselues or their brethren By accusation meaning the reuealing of any thing for which they or their brethren may be troubled or punished Vpon what ground other then the generall reasons of the rest and of the Iesuites as if it were against nature and charitie c. these should build this opinion I for my part cannot wel coniecture But it sorteth to this passe that seeing we are all brethren and members one of another therefore it shall not be lawful for the Magistrate to punish any sinne or transgression sauing where himselfe doeth take the offender with the maner yea and scarse then too For they will hardly I beleeue allowe that the same man shall be accuser witnesse and Iudge For they conceiue howbeit erroneouslie the Iudge who proceedeth of office to be an accuser This plainlie followeth of it because no sinne may lawfully be punished but where the partie is conuicted There can be none other conuiction but either by the parties owne confession or vpon depositions of witnesses So that if no Christian be bound nor ought before a Magistrate to reueale either his owne or his brothers offences then doeth it followe that crimes shall neuer be punished till the offenders themselues being moued in conscience if happily they shall euen then by these men be suffered to accuse or discouer themselues shal wilfully come in and desire for Gods sake to be hanged vp or otherwise punished as the qualitie of their offence leadeth Amongst the heathens I reade of no nation but they vsed and had oathes in great estimation and necessarie practise sauing 1 Alex. ab Alex. Genial Dierum li. 5. cap. 10. the foolish Phrygians who onely condemned them And amongst Christians the olde heretikes Manichees of later times the Anabaptistes and now lastly these fellowes who albeit not in plaine wordes yet in very deede doe vpon the matter take away all oathes in matters criminall and consequently all both Ciuill and Ecclesiasticall punishments and censures from among men For 2 Cyprian in exposit Symboli Manes the olde heretique taught that it was not lawfull for Christians to sweare at all The third sort of opinions being deliuered by diuers of the more learned sorte of the Innouatours are of such as holde that they may reueale both their owne and their brothers crimes and offences to remoue euill from the land as they speake when they are duely charged thereunto by oathe But some actions there be which they beleeue to be well and lawfully done and yet by lawe or iniquitie of the time they holde to be such as may bring trouble and punishment vpon them And those they saye they are bound in conscience not to declare at all This opinion for y e first part thereof is directly cōtrarie to the next afore precedent But who shall iudge whether such matters as they be enquired of ought to be accounted for faults and offenses and which being punished will remoue euill from the land or whether they be in deed and trueth good vertuous actions I greatly feare that these men wil not in this point be content to be ouer-ruled either by the lawes of the Realme or by the Magistrates Iudges that be interpreters of the lawes But no remedie an oathe they will not take till they shal be satisfied and resolued which they can make as long in doing as them selues lust that such actions be iustly and lawfully to be condemned for Crimes and offenses by Gods lawe So that this is nothing else then to permitte vnto euery priuate subiect the iudgement how farre in what causes and against whom he needeth to declare his knowledge of anymatter how expedient soeuer for her Maiestie and vnto the whole common-wealth it be to be knowen Is not this to put a sure buckler into the hands of Iesuites other traitors murderers felons and euery lewde companion to holde foorth against the lawfull examination of Magistrates touching themselues or their complices For if they neede not declare any thing by oathe much lesse will they haue conscience to doe it when they are not sworne which forbearing of the parties own oath in examination of crimes that may be capitall to him is alwayes obserued in this Realme Perhappes vnto this absurditie
dum ei necessitas respondendi imponitur per eum cui obedire tenetur And againe very pertinently to this purpose of giuing taking an oath Quicunque facit contra debitum iustitiae peccat sed pertinet ad debitum iustitiae vt quis suo superiori obediat in ijs quae exigit secundum formam Iuris This distinction of the said rule is strongly confirmed by that which is alledged of the oath of Ielousie and of him which is depositarius in the law of God handled in the eleuenth Chapter afore For if they that be bewrayed by the onely perhaps vaine suspition of another partie pretending griefe must vnder-goe so strait a course of purgation or else bewray themselues to their app◅ant shame and dishonestie besides the grieuousnesse of the punishment how much more then is it equall that those who by fame or vehement presumption or such like arisen are discouered to the Magistrate and by him not for any priuate satisfaction but for the publike good and benefit of the Church are vrged to such oath and for their owne reformation should either take it or else according to those examples and to all good lawes be reputed conuicted by their owne implied confessions To this poynt is that not impertinent which is alledged by 1 De poenitentia dist 1. c. quia aliquando in fine Gratian out of an ancient Father Taciturnitas peccati ex superbia nascitur cordis ideo enim peccatum suum quisque celare desiderat ne iniquitas sua alijs manifesta fiat ne talis reputetur apud homines foris qualem se tamdudum exhibuit diuino conspectui Their other sixe reasons to this purpose I assure you I doe blush in their behalfe once to mention them they are so childish so vaine and flashie the very rehearsing of them doth carie a sufficient confutation and answere on his backe as that he which is put to this oath is bound to prooue a Negatiue against law that it doth peruert the ende of the Ciuill lawe which is to be safe belike they meane the last law of the twelue tables Salus reipub suprema lex esto that it transferreth the glorie of God vnto man by searching mens consciences that it is contrary to the equitie of Gods lawe in that witnesses should stand forth and not he accuse himselfe this is coincident with the first of the seuen that it is of the nature of auricular confession that it is a nowrisher of sclanderous persons because not the sclanderer but the partie accused must take his oath If the reasons hereupon to be framed were to be put into forme of Syllogismes then these propositions must be vsed for assumptions but they are not onely very vntrue and to bee denied but are not at all prooued by their Prosyllogismes or reasons which are ioyned vnto them to vpholde and vnderproppe them So that to conclude this maine poynt of ministring oath to a defendant touching his owne crime or offence these their foure opinions against this kinde of oath are neither reasonable nor their or any others reasons vsed against it are of any force or weight and therefore though no further confirmation had beene vsed by vs such oath would haue beene iustifiable which is nowe as you haue heard otherwise also manifoldly approoued CHAP. XIIII That a man being charged by authority to discouer his knowledge touching some offence which his Christiā 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 cōtrary are answered refuted IN the generall distribution made in the Preface before the second part for matters after to be handled and which are challenged of vnlawfulnesse or of impietie by the Innouators I there noted that fault is found by them not only because oathes be giuen in criminall causes vnto the parties themselues but because they are examined as witnesses also touching other their complices and brethrens actions This their challenge is made in this respect for that it is sought they say by vertue of their oath to draw out of them such their brethrens actions as albeit the lawes of the Realme and those who are their Iudges doe holde to be crimes and offences and minde to punish them in that qualitie yet they who are to be examined are perswaded that they are well and commendably done whether by thēselues or any other their brethren And therfore they doe thinke that they are bound in conscience not to take an oath wherby they may be tied to so vngodly a discouery of their brethrens good actions whereby they shal bring them to trouble or punishment For if they were offences and crimes then say some of them to remooue euill from the land they would be ready to reueale them vpon their oath but being as they take them to be whatsoeuer other men do by no meanes they may discouer them And this point is now by most of them that seeme to be of any skill chiefly rested vpon letting other more easily goe albeit they deliuer it abroad charily and somewhat fearfully But the absurdities and inconsequence of this opinion I haue somewhat also by occasion touched in the 13. Chapter of this part Howsoeuer it is now newly taken vp and an opinion which they greatly please themselues in yet did the Fathers in the Primitiue Church condemne it for erroneous and the practise of it as vngodly Both are 1 Augustin ad Casulanum guiltie saith S. Augustine that is aswell he which hideth the trueth as he which telleth an vntrueth because the first of these will do no good the other seeketh to do hurt So that these two are matched together by him as being not much vnlike A sufficient reason hereof in crimes may bee taken from those 2 2. Timoth. c◅ 3. v. 13. wordes of the Apostle where he saith Euill men and seducers will goe forward from worse to worse both continuing in error themselues and leading others into it And therefore their wickednes is meete to be discouered that y e mischiefe may be preuented But to this it will be saide that the case is put and the controuersie is made onely where y e parties to be examined do not thinke such their brethrens actions practises to be euil or their opiniōs erroneous howsoeuer the Magistrates do otherwise cōceiue of thē Let vs therefore cōsider what is to be thought determined concerning the bewraying of our complices and friendes about matter of heresie and errour in faith In which crime of all other such as knowe their heresies ioyne therein with thē are most resolutely perswaded their cause to be passing good Neuerthelesse if this crime also ought to be discouered manifested then much more are all other sortes of criminous persons especially when in some sorte they be discouered before vnto the Magistrate S. 2 Iacob ca. 5. v. 20. Iames saith let him know that he which
walke it is not of this place to discusse how holy and true soeuer it is it dare not looke out at noone dayes and yet we liue in a state professing the Gospel Num sic Apostoli num sic Martyres c but y e more true holy it is the lesse ought they to be ashamed to reueile it being called into question for it as is signified afore Here we see that the law of their loue and felowship and ius hospitale towards such their priuate friends as haue receiued them is by them more esteemed accounted of then either the publike lawes and statutes of the realme or then their duetie to the Christian Magistrate and to their countrey quae 1 Cicero offic li. 〈◊〉 omnes omnium in se charitates complectitur As for the discouering of a secret of concealing a matter false brotherhood there spoken of who doeth not see that it is meant of needlesse slanderous malicious and trecherous bewrayings of our friends or of others secrets and not of any iudiciall deposing of our knowledges when we are brought before a Magistrate For if this were not lawfull and godly then might no witnesse testifie a trueth in any matter whatsoeuer that is not knowen abroad afore or vnto the Magistrate for that it can not but turne to the declaring of some matter doubted of or not perfitely knowen The coÌ„mon translation fortifieth this interpretation viz. qui ambulat fraudulenter reuelat arcana qui autem fidelis est celat amici commissum Therefore Aquinas 2 The. Aquinâ—… 2. 2. expounding the true meaning of that place of the Prouerbs saith that such matters as tend to the corrupting either of the soules or bodies of a number or to the great detriment of any one priuate person a man that knoweth them is in conscience bound straightway to reueale them Thus farre in answere of their reasons who of such as professe the Gospel gaue the first example of disobedience in our dayes by refusall to take oath in this respect viz. for that they were vrged to testifie of their fellowes aswell as of their owne actions whereof they were interrogated But an example of William Thorpe who is said by y e Treatisor to haue refused an oath about 160 yeres since vpon this consideration amoÌ„gs others doth most aptly I thinke take his place here For when 1 Fox fol. 146. 147. 148. 1. editi Archbishop Arundell before whom he was conuented vnder pretense of Lollardie offered him fauour if amongs other matters he would be sworne to forsake his opinions to withstand all such as should holde the same opinions in case they should not be reformed to put them vp in euery Diocesse where he came vnto the Bishops he refused this fauour vpon any such condition because he would not as he sayd become euery Bishops espie and Summoner of all England nor giue such offence as to be accounted to haue forsaken the trueth In answer whereof I say that this was but a fauor voluntarily offred vnto him vpon that condition and that oath was none otherwise exacted of him nor yet by lawe might be exacted Insomuch as no man is by law bound to make any such promise or to enter into such a course Againe there was no speciall opinion in particularitie charged vpon him which he should be sworne to forsake should detect others of except he should be bound to forsake all that he had learned in Scripture concerning the feare seruice of God and therefore it is nothing like vnto the case against which wee doe here argue For those Innouators which were authours of this opinion had particular articles concerning their owne and others actions treaties and conclusions obiected vnto them which were also afore-hand conueniently though not in euery necessarie particular knowen and discouered afore vnto the Magistrates vnto which albeit after many tergiuersations and much a doe they answered at last in the Starre-chamber vpon their oathes that which touched their owne facts only yet vnto no more thereof would they answer then they presupposed gathered to be afore knowen sufficient for their conuiction though they should haue concealed it But what other company they had theÌ„ those who were defendants at that time or in whose houses such Synodes and treaties were held they pretended themselues bound in conscience not to answere And yet the Iudges of the land twise or thrise ouerruled it and signified so much vnder their hands that by lawe they ought and were bound to answere the Interrogatories preferred concerning ech of their complices and partakers It may be that the Note-gatherer also by one of his quotatioÌ„s meant to enforce 1 Tindal in respons ad Moruâ—… pag. 309. Tindalls authoritie against vs in this behalfe For he writeth that if a wicked Iudge aske him that hath sworne of things hurtfull to his neighbour and against the loue that is in Christ then he must repent that he hath sworne but not sinne againe to fulfill his oath I make no doubt nor do gainesay it but if mine answer shal be both against the loue that is in Christ also to my neighbor hurtfull that an oath cannot tie me to answer in such a case yet if Tindall thought y e whatsoeuer may bring punishmeÌ„t vpon my neighbor is of that nature then must he giue me leaue to doubt of the soundnes of his iudgement herein no lesse then the Note-gatherer himselfe will do vpon the pointes afore touched and many other conteined in Tindalles workes and no lesse then hee will doe vpon the Rhemish note agreeing wholly with Tindall here and touched by me afore He seeketh also to ouerthrowe howbeit but generall oathes which none defends by coÌ„paring them to the doings of Longland sometimes Bishop of Lincolne against whom he most bitterly inueieth for constraining children by oath to accuse their parents c. of heresie whereof some he saieth chose rather to bee forsworne and bringeth Master Foxe his condemnation thereof But I gesse what it is which chiefly pincheth the man in this sort belike because certaine of his Clients whome hee would patronize were lately required to discouer their complices in their disciplinarie assemblies I can easily yeelde that where great presumption or perill of periurie is rather then a man wil discouer a trueth that there and vnto such it is no good discretion to minister an oath but especially against the life of those who attaine so neere vnto vs in proximitie of blood or other no lesse strong affection For the ciuil law saith Filius noÌ„ torquetur in caput patris a child ought not to be tortured in a point of perill vnto his fathers life And the like reason which is in torture may by some perhaps be thoght to be also in an oth against his fathers life But we may not make this a general doctrine as if in no case whatsoeuer a childe or such like might be examined in a point capitall to
this principle is thereby wholy destroyed when as the detection made by fame by denunciatiō or presentment c. commeth from others and is not a mans owne detection of himselfe therefore it is not so much as a limitation properly but rather a true exposition how that rule ought to be vnderstood By as good reason it might be said that because a man is not at first by any course of Iustice bound to discouer the very facte against himselfe that therefore being called into question and touched by great presumptions and arraigned for it there is no Iustice to vrge him to pleade either not guiltie and so to lye or else guiltie and so to bewraye himselfe For proofe of an abuse of Gods name and Maiestie by purgations he sayeth to offer an oathe vnto persons diffamed concerning their owne corrupt life argueth a lightnes and want of good discretiō in the Magistrate For that he wittingly doeth minister an occasion of periurie I haue spoken of this point by occasion afore and I trust the Readers wil pardon my necessary repetitiōs sometime of one matter in diuers places considering the Treatisour vpon one reason seeketh very often to build many seuerall distinct conclusions First no man ought by any occasion whatsoeuer be drawen to goe against his oath or to periure himselfe a word most properly verified in an oathe Assertorie such as that of purgation is Secondly it is to bee denied that whatsoeuer a man of a bad minde may take for an occasion to forsweare himselfe that in euery such case it is lightnes and vndiscretion in the Magistrate to offer an oathe Which may appeare by decisorie oathes or wagers of lawe in actions reall or personall for landes and goods being such things which be as deepely by most men tendered and affected as their owne good names or honest reputations Thirdly it is too grieuous a charge to bring euery lightnes or vndiscretion of a Magistrate within the compasse of abusing Gods name maiestie though this were admitted to be such lightnes Fourthly no lawe presumeth so vncharitably as though euery one detected or presented of corrupt life were straightway of necessitie and in very deed guiltie of such crime nor yet is it to bee intended that most which be in trueth guiltie will rather forsweare themselues then confesse the trueth considering the penaltie inflicted by courtes Ecclesiasticall are not very grieuous and the chiefe end therein aymed at is but an inducement vnto a testification of the delinquēts repentance Fiftly euery one who vpon a fame is detected or presented cannot be truely said to be thereupō diffamed infamia iuris For a fame may rise yea very probable cause of suspition of a crime may also be giuen where neuerthelesse the fact is not at all committed Lastly it is not euery person suspected of any crime who in discretion of the Magistrate is not to be vrged with an oathe but it is such an one who is probably suspected to be more likely to forsweare himselfe then to confesse a trueth But herein he presseth vs yet further with a piece of old counsell viz. Dedecus magis quà m periculum vites Whosoeuer giues this counsell if hee shoulde meane that the perill of a mans soule were rather to be embraced then any worldly shame it were very vnsounde and wicked counsell For it is better to loose not onely our whole credites in the worlde yea all the world besides rather then our owne soules It is in trueth but an exhortation vnto valor and courage and that a man in a good cause should rather incurre any bodily perill then empaire or distaine his honor and loyaltie to his countrie by cowardise Besides in matters spirituall and belonging to the soule there is a shame which bringeth honor as Ecclesiasticus writeth He inueigheth also against them ex absurdo because if purgations should be vsed he saieth at the Common Lawe vpon Enditements of felonie or other criminall causes periurie would ouerflowe the land I am also of this minde that if for matters of life death a man might be acquited vpon his owne oathe and his Compurgators that many wilfull periuries would be committed But othes of purgation bee not imposed any more at the Ecclesiasticall lawe then they be at the Common lawe in any matters capitall And as purgation is onely a presumptiue kinde of clearing to remoue the offense for safegard of his credit who being infamed can iustly and truely performe it so is it no such finall acquitall but that the partie purged may againe be conuented for the same if any man by lawe allowed will vndertake the proofe not of the same but of the very crime and offense it selfe whereof hee was afore purged As for other criminall causes which endanger not life nor limme diuerse Temporall courtes though not vpon Enditements without such feare of driuing men to periurie do minister vrge the parties othes as hath bin shewed Yet not holding them purged or cleared thereby albeit they deny the crimes but enquiring further and examining witnesses also afterwardes touching the trueth of the offense Besides such othes be ministred in those Temporal courtes vpon no detection of fame or other presumption grounded vpon the othes of any but vpon the priuate vindicatiue minde of him which putteth in the bill and prosecuteth Lastly there bee fewe or none of the crimes called transeuntia and not capitall which be enquirable in any courtes temporal or if any be they are not in their owne nature so secretly and without possibilitie of direct proofe performed as the crime of incontinencie is touching which most purgations fall out in Ecclesiasticall courtes There was therefore small cause of that his question here viz. Why Ecclesiastical courtes offer not to the laitie the like good measure and vpright and sincere Iustice that themselues finde in courtes temporal Besides that by the same question hee indirectly also taxeth all courtes whatsoeuer that impose othe on the partie for want of good measure and of vpright and sincere Iustice. Vpon the former reasons against purgation he groūdeth another question also viz. Why these ordinaries which challenge or assume to themselues the goodly name and title of spiritual men doe not proceede to condemnation by good proofe of lawfull witnesses and againe absolue the partie diffamed where such sufficient proofe failes them I answere first Ordinaries doe not in these dayes eyther challenge or assume to thēselues such goodly name as he solaceth himselfe at but rather the title of persons or Iudges Ecclesiastical In deede that other name in times past was willingly embraced by the Cleargie and as they thought without any iniurie to other callings in respecte of the subiect matter of their profession which is spirituall And by no mans writings or speeches is it more often attributed vnto them euen vntill this day then it is in statutes of the Realme in reportes and vsuall speeches at the Commō law Therefore