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
conceiuing thereof sundry tooke occasion to wrangle quarrell with that which was after enioyned vnto them as if it were not conteined within the words or meaning of their caution and therfore that clause that such should satisfie for their contempt for the iniury to the church was often vsed in the kings writs of that nature to auoid all cauill and for more full explanation In such caution two things besides are required the one that it be idonea sufficiens as appeareth by all the writs in this behalfe that be set downe in the Register the other that it be offered by the party who is to submit himselfe For it is 2 Ibid. pag. 66. b. 67. a. Nou. nat br pag. 63. c. said in one of those writs thus viz. Idem W. cautionem saltem pignoratitiam iuxta intentionem mandati nostri praedicti de satisfaciendo de huiusmodi contemptu iniuria antequam à prisona praedicta deliberetur offerre debet tenetur For a caution is not imposed by the Ordinarie but is accepted by him vpon the parties submission and offer therof when he seeketh to be absolued from the censure and deliuered out of prison But what may be reckoned to be idonea sufficiens cautio I finde not determined or colligible out of the bookes of Common law One kinde thereof which is pignoratitia a caution reall or by gage is mentioned in the next allegation afore And in that it is there said the party should put in cautionem saltem pignoratitiam we are thereby giuen to vnderstand that the courts of Common law doe take knowledge of some other kindes of cautions besides this and accounteth of this as being not of the most grieuous sort of cautions vnto the partie The word Cautio is a terme taken out of the Ciuill law for which at the Common law they 3 Nou. nat br pag. 63. c. vse securitie or obligation c. therefore what be the seuerall kindes of cautions must be taken out of that learning Cautions in Ciuill law be of three sorts one is Fideiussoria as when a man bindeth himselfe with sureties to performe somewhat another is Pignoratitia or realis Cautio as when a man gageth his plate or morgageth his land for performance the last is luratoria cautio as when the party which is to performe any thing taketh a corporall oath to do it By the Ciuill law a Iudge is not bound to accept of this last vnlesse the partie will also sweare that he is not able to put in either of the other And therefore where Ordinaries doe promiscuously at absolutions accept this Iuratorie caution offered de parendo iuri stando mandatis ecelesiae in forma iuris they doe more then they simply need to doe and rather gratifie then doe any grieuance to the partie as some haue thought For seeing this hath bin the most vsuall nay for a long time almost the only caution giuen at absolutions that they may lawfully still accept it is made manifest by statute viz. sauing and reseruing to allarchbishops and bishops and all others hauing authoritie to certifie any person excommunicated like authoritie to accept and receiue the submission and satisfaction of the said person so excommunicated in maner and forme heretofore vsed and him to absolue and release c. 5. Eliz. cap. 23. yet is not any of them so simple but he will thinke either of the other two if they be offered to be better security then the parties bare oath a matter so little regarded of most men in these latter times of this bad world For satius est incumbere rei quà m personae Reall securitie is more safe then personall Now when such caution is offered as the Ordinarie doth accept of for the parties performance of that which shall be enioyned vnto him shall he needs be forced to send for a writ of deliuerance vnto the Chancery No verely For the bishop himselfe if he will may enioyne the shiriffe to deliuer him Accedas saith 1 Reg. in br orig pag. 66. a. nou nat br pag. 63. c. d. the writ vnto the shiriffe in propria persona ad episcopum ex parte nostra moneas efficaciter indicas vt accepta cautione praedicta ipsum mandet deliberari à prisona And againe a writ to a bishop runneth thus Mandamus quòd accepta cautione praedicta ipsum deliberari mandetis alioquin quòd nostri est in hac parte exequemur And therefore Fitzherbert 2 Nou. nat br pag. 63. g. sayeth plainelie that the bishop or hee at whose certificate the partie was taken may command the shiriffe to deliuer him out of prison But what if the Ordinarie shall refuse to admit of the caution offered and thereupon to release him albeit the caution be good and sufficient shall the partie remaine still in prison Nay the writte de cautione admittenda is prouided for remedie in such a case This not deliuerance after sufficient caution offered may happen either vpon negligence delay in the bishops vnder-officers or vpon his owne wilfulnesse Vpon such vnder-officers delay as when the bishop willeth them to absolue the party excommunicated in which case 1 Reg. in br orig pag. 65. b. Nou. nat breu pag. 63. f. the shiriffe is not to make deliuerance till it appeare vnto him that the party is indeed absolued Neither is 2 Ibidem such officiall or archdeacon bound to certifie the shiriffe that they haue receiued letters from the bishop to absolue him but the shiriffe ought to go or sen to them to know the truth and accordingly to make deliuerance If it happen vpon the bishops owne wilfulnesse in such case I finde two degrees obserued in proceeding for first 3 Reg. pag. 66. a. Nou. nat breu pag. 63. d. there goeth a writte to the bishop himselfe that he admit of the caution and also that he command the partie imprisoned to be deliuered or else the king will doe that which apperteineth to him in like case to be done But if this will not serue the turne then secondly may the party haue a 4 Reg. in br orig pag. 66. a. Nou. nat breu pag. 63. d. writ directed to the shiriffe that in his owne person he repaire to the bishop and on the Queenes behalfe monish him and effectually require him that taking first such caution he command the prisoners deliuerance and that if he shall refuse in the shiriffes presence to doe it then the shiriffe himselfe taking 5 Reg. pag. 67. a. such sufficient caution of him doe deliuer him And if the shiriffe also shall appeare to be negligent or wilfull the 6 Reg. 66. a. partie may haue the like writte to the Coroners But they must likewise first before they deliuer him take sufficient caution of him viz. de parendo mandatis ecclesiae in forma iuris de satisfaciendo tam de contemptu quà m de iniuria ecclesiae illata
not haue conusance of the breach of an othe voluntarily taken is when there lieth an action for the matter whereof the othe was confirmatorie at the Common Lawe therefore it was holden by Brian 6 T. 22. Ed. 4. fol. 20. not long after that if a man sweare to pay twentie pounds that he oweth at a certaine time and pay it not and for the periurie be brought into the Spiritual Court there shall lie a prohibition because saith he an action of debt lieth at the Common Lawe I make this a seueral cause and reason from the former because an othe may grow vpon a Temporall matter which was the former cause and yet none action lie for it And if I promise without any consideration to giue you twentie pounds and binde it with a voluntarie othe it seemeth the Common Lawe will holde it still but pro nudo pacto and so giue none action at all But some occasion is giuen vnto me to thinke that courts Ecclesiasticall de facto howsoeuer de iure helde plea of breach of othe and of faith falsified which 1 Lyndw. in cap. aeterâ—…ae sanctio verbo fidei transgressione de poenis amounteth to asmuch in some respects as breach of a corporall othe euen when such othe or faith voluntarie taken was for confirming of a matter Temporall For this I finde not onely before the Writ was framed de recognitionibus per sacrament a non faciendis de catallis debitis quae non sunt de testamento vel matrimonio but afterwarde also and that aswel by iudgement as by opinions deliuered and reported for booke cases albeit with certaine cautions which shall by the way be touched First then that Ecclesiastical Courtes handled this cause long afore that Writte was deuised I finde in a 2 Prou. Constitutio 〈◊〉 sanctio de poenis Prouinciall Constitution made at a Synode holden at Lambhith vnder Boniface then Archbishop of Canterburie in the time of King Henrie the third Anno Christi 1260. which constitution I doe alleadge not as being of force now for the purport thereof because it aimeth at the bridling of the Kings Prerogatiue and of his Temporall Courtes but thereby historically to shewe what was then held and practised vsually The effect of it to this purpose is that whereas Prelats doe take Conisance of sinnes and of misdemeanours of such as be vnder their Iurisdiction as of Periurie or breache of faith of Sacriledge of violation of Church liberties for infringing of which euen by the Kings Charter graunted to the Church of England such disturbers doe fall into Excommunication ipso facto and of such like causes which be meerely of Ecclesiastical Conisance yet are prohibitions directed foorth out of the Kings Court and Iudges Ecclesiasticall are called thither to answere as if they delt not concerning Periurie and breach of faith but suggesting that they deale touching chattels Therefore a little after is added this viz. 3 Dicta Prou. Const. And if perhaps the King in his attachements prohibitions and summons shall make mention not of Tithes but of right of Patronage not of faith falsified or periury but of Chattelles not of sacrilege or disturbance of ecclesiasticall liberties but of some trespasse pretended to be done by his subiects or bailiffes the â—…edresse whereof belongeth vnto him then let the Prelates aforesaid make knowen vnto him that they holde no plea neither intend to do concerning right of Patronage or chattelles or any other things belonging to his court but concerning tithes sinnes and other meere spirituall matters belonging to their office and iurisdiction and tonching the safety of mens soules c. So that the trueth of such allegation being manifested to the king they thought the plea sound and sufficient to obteinea discharge from such prohibitions c. if they were in those respects onely granted Yea and Lindwood who writ anno 1423 and long after that writ was framed who also by reason he was Officiall principall of Canterbury or Deane of the Arches had good experience in these causes maketh no 1 Lindw ibidem V. periurio doubt but that matter of periury or of breach of faith arising vpon what cause soeuer so farre foorth as it concerneth doubt whether such oath were lawfull or not and doe binde in conscience or not is of ecclesiasticall conisance And therefore teacheth how the libell in that case is to be framed that no cause of prohibition be giuen viz. the partie hath damnably broken his oath made for payment of so much money vnlawfully pretending that hee is not thereby bound or tied The statute Circumspecte agatis saith defamation shal be tried in a Spirituall court when money is not demanded but a thing done for punishment of the sinne and likewise for breaking an oath without distinction whether it arose of a temporall cause or not Since the said writ we haue a iudgement in the very point in the time 2 Lib. 22. Assis. fol. 70. of king Edward the third For if a man demand a debt of tenne pounds before the Ordinarie for that the defendant plight his faith to pay it c. and hath not payd it but broken his faith the Ordinarie cannot enioyne him to pay the debt for sauegard of his faith and if he do he doth it against the kings prohibition But he ought to enioyne him other corporall penance except the partie will willingly redeeme it For so Fitzherbert 3 Fitzherberts Abridgement tit Prohibition num 2. readeth those last wordes of exception more truely then my booke of Assises as it is printed carying indeed therein no sense at all The like appeareth in the reigne of king Henrie the sixt for there it 4 34. H. 6. 70. vt Brooke allegat tit Iurisdiction num 2. was holden that if a man buy an horse of me and sweare vpon the Euangelists to pay me ten pounds for him such a day and pay it not I shall haue action of debt at the Common law and also a citation pro laesione fidei at the Spirituall law and shall not therein offend the Common law because they are diuers things As for opinions afterward we finde it was held by Brian and Litleton in the time of K. Edward the fourth none there gainsaying it that 1 M. 20. Ed. 4. foâ—… 10. in laesione fidei arising vpâ—… a temporall matter the Spirituall court might punish it ex officio but not at the suite of the party To the same purpose also Mordant said in the time of K. Henrie the seuenth 2 T. 12. H. 7. fol. 22. that if a man be sued in a Court ecclesiasticall by a party pro laesione fidei in not paying a summe of money promised there shall lie a prohibition but if the Iudge ecclesiasticall shall do it ex officio then no prohibition shall lie which no man gainsaid or impugned These two opinions lest they should seeme to crosse the former iudgement in the booke of
writ to the shirifs of London signifiyng that no Clerke though he forfeit his recognizance of statute merchant shal be attached or imprisoned by his body except there bee some cause why hee should not enioy the priuiledge of a Clerke Besides it is no new or strange thing to haue some forme of a writ which is set down in the Register to be vpon better aduise disallowed For I haue credibly heard that it was not long since adiudged that in an action for trespasse done in a warren of Conies a mā might not plead that they were cuniculi sui albeit the Register in that behalfe 1 Reg. fol 102. tit de transgressione frameth the writ so And in the selfe same title whence this forme of prohibition is taken a clause in a prohibition was 2 Reg. fol. 37. reiected by the court For it is said in the margēt Curia noluit concedere istam clausulam in prohibitione but if it were law assured the Iudges would not haue reiected it Fitzherbert who in his booke 3 No. na br fol. 37. G. of Nature of writs was the first that sucked this conceit thence in the selfe same booke touching this rule set downe in the Register viz. notandum est quòd quando rex praesentat vt in iure coronae tunc incurrit ei tempus saieth thus now this rule is not holden for lawe But it will bee said that Fitzherbert himselfe and sundry that follow him since doe hold this point we speake of for lawe This no doubt carieth a great presumption with it that worthily for the worth of the learning iudgements of such men Yet I wil shew that his saying from whom they all since do take it is none vndoubted rule of lawe therefore theirs neither that do gather from him I protest before God I wil not seeke after obiections against his booke but take only such two in stead of mo which I had in my mind because they do touch ecclesiasticall matters He saieth that 1 Fitzh ibid. fol. 269. D. at the Common law an heretike ere he can be condemned must be conuicted of heresie before the Archbishop the whole Clergie of the prouince after abiured thereupon after that of fresh conuicted condemned by the clergie of that prouince this must be in their general councel of conuocation holdeth there that at the Common law a bishop in his dioecesse might not condemne an heretike vntill 2. H. 4. 2 2. H. 4. cap. 15. did giue him authoritie that then he might not be committed to the secular power to be burnt vntil he had once abiured was againe relapsed into that or some other heresie But neither of these points be law so I haue heard the two chiefe Iustices the L. chief Baron some other Iudges the Queens learned councel resolue in a speciall consultation holden about the matter of heresie For albeit the Conuocation may in deed condemn an heretike yet euery B. at the Common law before any statute might at this day may also in his own dioecesse so condemn as the preamble of that very statute makes manifest so by thē all was it then holden for lawe notwithstanding Fitzh opinion there which was fully by thē considered of And albeit it may seeme needlesse yet for further strengthening of these reuerend mens opinions there is a 3 10. H. 7. fol. 17. booke in the very point For it is said that for heresie or any point against the faith the BB. had none other power to bring thē in but to make processe against them by citations vntill the Statute of Heresie 2. H. 4. ergo afore that statute they had power to proceed against heretikes in Ordinarie course of the lawe ecclesiasticall Which assertion the very Note-gatherer also maketh in his title of the lawes of England yet to another purpose howsoeuer in the maine point y t we now treat of he sticke fast to Fitzherbert Likewise 4 Fitzh no. na br fol. 30. F. he saith it appeareth that before the statute made pro clero in the 18. of king Edw. 3. cap. 7. the right of tithes were determinable in the Temporall court of the king and that the lawe was altered at that time herein by that statute Whereas in very trueth there appeareth no such matter other then a grieuance offered in this behalfe to the libertie of the Church which then was determined that it should afterward cease I know that Gooddall writing of the liberties of the Clergie by the lawes of the Realme concurreth in this point with Fitzherbert for thus he writeth It seemeth that before the Statute the right of tithes were determinable in the Temporall courte but that statute hath altered the law So that it may be coniectured the one of them borowed it of the other But this whole doubt whether causes of tithes before that statute of Edw. 3. were determinable in an ecclesiasticall court or no is resolued by a Treatise nipping in trueth wholie at the Clergie and lawes ecclesiasticall and so indifferent an Vmpier as that the Note-gatherer alleageth him for his purposes therefore in this case not to be refused by them who produce him for their witnesse For that 1 Of the power of the Clergie and lawes of the realme cap. 15. Treatise writeth thus viz. Long after that the kings courts of his Bench commō Pleas also all inferior courts were put out of iurisdiction for tithes yet neuerthelesse Writs of Scire facias were commonly sued in the Chancerie for tithes and the defendants were thereupon put to answere wherefore at the petition of the clergie and in consideration of a disme that the clergie grāted to the king it was enacted 18. E. 3. ca. vlt. that such Writs of Scire facias thenceforth should not be granted for tithes And a litle afore 2 Ibidem thus viz. That suites for tithes shal be taken in the Spirituall court is only groūded vpon a fauour that the kings of this realme the whole realme haue in times past borne to the clergie And 3 Ibidem againe in this sort We thinke that the kings courts be put out of iurisdictiō for tithes by a custome of the realme not by the immediate power of the lawe of God Therfore by this mans opinion it is the common law or custome of the land and not that statute which made tithes of conisance ecclesiasticall And in very trueth that tithes were demandable in a court ecclesiastical before this may appeare by statutes afore that time by reports after testifying that the conusance of right of tithes at the Common law is incident to iurisdiction ecclesiastical as in the peculiar 4 Ca. 4 5 6. huius Partis treatise thereof is afore shewed Lastly to shut vp this first point a precedent of a prohibition of all other Writs that can be deuised may with least reason bee said
an offendour vpon any course of proceeding besides Accusation but only that a man shal not for a supposed offence in the meane time be kept from bearing offices vntill he shal be iudicially called into question for it This will more plainely appeare so to be if we shall call to our remembrance how many sundry sortes of Denounciatours afore spoken of were receiued and vsed by the Ciuill law in the olde Romane Common weale and Empire who were not tied to any Inscription And besides these denunciatours 1 L. 1. §. Quoties ff de offic prat vibi l 4. ff ad L. Iuli. pecul l. 3 ff de offi praes §. vlt. D. Collat. in Nouâ—…l l. 1. C. de custod reorum l. si quis in hoc C. de epis the magistrates themselues also are by that law required euen without any denunciatours to search out robbers and other disturbers of the Common peace and to punish them seuerely And in truth it must needs turne to the great preiudice of the Common weale if no Magistrates at all should deale against any offenders vntill some Accusers yea or denouncers might be found Furthermore the Emperour Traiane writing to Plinius would not haue the Christians 2 Lib. 10. epist. Plinij whom as it seemeth he somewhat fauored purposely sought vp enquired for by the Magistrates appointment but to be punished onely when they were voluntarily preferred vp vnto theÌ„ by others Which doth argue plainly that the custome was then to haue other sorts of offenders sought for and found out by the Iudges and Magistrates yea though none other man preferred matter against them Yea the words of the law in this behalfe are clere 3 L. 4. §. 1. ff ad L. Iul. Peculatus Mandatis cauetur de sacrilegijs vt praesides sacrilegos latrones plagiarios conquirant prout quisque deliquerit in eum animaduertant Et sic constitutionibus cauetur vt sacrilegi extra ordinem dignâ poenâ puniantur Neuerthelesse to the entent that Iudges may put away from themselues all suspicion of calumniation and conspiracie against men the said learned man aduiseth them not to descend to Enquirie of office against any especiall person but vpon some publike fame or other good occasion of inducement to leade them thereunto But as for generall Enquirie the Iudge in duetie is bound so often to make it as the prescript of lawes doth beare that thereby supposed offenders being found out and discouered may be brought into question and vnto speciall triall Now therefore I will shew that there is allowed prosecution of speciall crimes of Office yet without any such Presentment precedent as by this opinion is implied It is true by the Rule of law that generall Enquiry is precedent as a preparatorie course to make way vnto the Iudges Office of proceeding by speciall Enquirie against such as thereby shall be detected denounced presented In which respect it is said that 4 c. qualiter el. 2. deaccusat as Inscription goeth before Accusation so doth Presentment before Enquirie Now vpon detection made vnto them either vpon generall enquirie or otherwise as it is testified by learned 1 Salycetus in l. fin C. de Quaest. Iul. Clarus lib. 5. §. fin q 11. writers in the Ciuill law such Iudges as be discreet and sage doe customably in most prouinces secretly receiue the witnesses depositions in writing for the information of the Court before the supposed offender be cited either really by attachment or verbally by processe serued on him This they doe thus afore-hand in two respects both that the defendant be not forewarned to flie or to hide himselfe and that the witnesses by subornation or other sinister practise of the defendant be not drawen away afterward to denie the trueth and to depose the contrary If the defendant shall afterward make his apparance and denie the matter obiected against him then be the witnesses re-examined and sworne againe in his presence But if he shall still wilfully absent himselfe in that case the first examination of the witnesses may serue for the Iudge to proceed by euen vnto definitiue sentence against him This first receiuing of information from witnesses is called in that law Processus informatiuus and the rest of the whole proceeding of the Iudge after the defendants apparance or his wilfull absence is processus punitiuus And vnto the taking of the processe informatiue though some haue disputed otherwise it is commonly holden 2 Ferretus Consil 31. num 11. not to be necessarie that the supposed delinquent should be called Which course of taking informations doth very much resemble the examination and enquiry against suspected malefactors which commonly is vsed by Iustices of the peace and other Magistrates here in England But albeit detection rising vpon generall enquirie doe in this sort often and very vsually make way to speciall yet neuerthelesse both those lawes do mention many and sundry other receiued meanes besides whereupon to ground a Iudges speciall enquirie So that albeit Presentment be one yet is it not the onely meanes to open a way vnto proceeding of Office by enquirie The first of such meanes is a Fame of an offence to be by some certeine person committed For albeit no Fame be presented by officers specially appointed yet if there be such a fame in deed to be prooued when need shall require 3 Panor in c. Inquisitionis de accusat then an Ordinarie Iudge may hereupon proceed to speciall enquirie against the offender so by fame discoured This word Fame is deriued from the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and both of them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi à fando of speaking as a thing often spoken and by many And therefore is it by Tullie 1 Cic. in Topicis defined to be testimonium multituainis the testimony of a multitude The proper effect of fame is thus declared by olde Grammarians writing of the differences of such words as be of nere signification 2 Cornel. Fronto in differentijs Opinio ostendit Rumor tumultuatur Fama indicat The opinion or weening of men giues an inckling Rumour tosseth a matter to and fro but fame giues an euidence And albeit Plutarch 3 Plutar. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do report that this was a common prouerbe 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In warre and in heare-say be many vaine and vntrue matters yet the olde heathen Poets in an admiration of fame doe attribute a kinde of diuine qualitie and eternitie vnto it 4 Hesiodus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Fame being a thing which many people bruite abroad doth neuer altogether fall to nothing for it is of a certeine diuine nature And therefore by law 5 Arg. l. sin ff de haered instituendis he that is mooued with fame or by the assertions of men woorthy to be credited is said not to be mooued vniustly or without
Euill in this place wickednesse or sinne is not to be vnderstoode but a punishment of sinne poenapeccati And besides these two sayings of Augustine are spoken of Priuate and not of Publike oathes Now foloweth what an Oath is but first touching the name of it in the Latin tongue wherein it is knowen by three seuerall wordes The first is Iuramentum a word deriued à Iure of Right or Lawe as a thing required by Lawe and this is of most generall vse to all kindes of Oathes The second is Iusiurandum seruing sometimes in generall for euery Oathe but most often for that which is called Decisorium which shal be touched afterwardes The third word is Sacramentum à 1 Quintil. lib. 5. ca. de iureiurando Sacrando because thereby a man doth Deuouere vowe vp and giue ouer his owne safegard and prospering vnto God if willingly and wittingly hee sweare falsly which last of the three in the Emperours dayes whose constitutions are set downe in codice Iustiniani was most of all the three in vse and so is it vsed for an Oath in all the Latin Entries at the common Law and thereof comes their French word Serement S. 2 Aug. serm 28. de verbis apostoli Mag. Sentent dist 39. Augustine saith Iurare est ius veritatis Deo reddere And againe in the same place Quid est iurare per Deum nisi testis est Deus Tullie 3 Cic. 3. Offic. defineth it thus Iusiurandum est affirmatio religiosa 4 Aristot. 18. Rhet. ad Alex. Aristotle defineth it thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an Oath is a speech voide of proofe by any demonstration other then that it is made by taking the name of God to witnesse But more fully yet briefly by 5 Azo in summa Azo Iusiurandum est affirmatio vel negatio adhibita religione It is not tyed to any forme of wordes but in this behalfe is very manifolde S. 6 Hieron in 4. Ieremiae Ierome saith where we finde in the olde Testament The Lord liueth this is an Oath And an other olde 7 Chromatius in c. 5. Matth. writer farre more generally whosoeuer saith he speaketh the trueth doth in some sort sweare because it is written A faithfull witnesse doth not speake vntruely The most generall formall cause and also finall of euery lawful othe is for a confirmation of that whereof we sweare Now the confirmation of matters within compasse of Science is made by discourse of reason proceeding vpon points known by the light of nature to be vnfallibly true But the seuerall accidentall facts and wordes of men cannot by such necessarie discourse of reason be confirmed and therefore those things that are spoken concerning such matters are for the most parte confirmed by the wordes of such as knowe them Yet a mans bare word was not thought sufficient for confirmation of that which was to be deliuered by him One cause why it is not to be thought sufficient is the want of care to deliuer a sincere trueth which most men be possessed with through corruption of our nature but rather in steed therof very vntrueths as by wicked affections we be lead Secondly humane testimonie is not alwayes sufficient by reason of want of knowledge for men can not know things that are to come nor things absent or done in distant and remote places from them Yet because there be sundry occasions to speake hereof and for that it is most requisite in the common affaires of the worlde that a certaintie euen of these matters may be knowen for manifolde occasions happening therefore it was necessary for the further credit of such as pretended to be able to speake thereof to haue recourse vnto diuine testimonie for that in God there is neither vntrueth nor any thing is hidden from him And that which is so confirmed strengthened by so much a better greater testimonie theÌ„ the bare sayings of man are must needs be intended to be more sufficiently thereby approoued vnto vs. To this effect we find it thus determined by a Councel 1 Concil Tolet. 8. ca. 2. Whatsoeuer concerneth any league of peace is then more firmly grounded when an othe doeth strengthen it Yea and eche thing that draweth mens mindes to friendship and concord doth continue more fast when they are tyed by the bondes of mutuall othes Whatsoeuer also is to bee prooued by witnesses is more surely verefied when an othe concurreth with that which is affirmed And where witnesses bee not it is the strictnes of an oath which onely can descry of what credite he is that pretendeth to be innocent and guiltlesse Therefore he that sweareth by calling God to witnesse doeth as it were vse Gods testimonie to concurre with his owne saying And it is in this regarde generally by all nations presumed that what is spoken with such inuocation of diuine testimonie may be probably and for the most part holden for trueth The very heathens by light of nature coulde discerne thus much for 2 Aristot. cap. 18. Rhet. ad Alex. Aristotle saith that no man will forsweare himselfe that feareth the punishment of God and shame amongs men considering that albeit his periurie may be hidden from men yet can it not be concealed from God And another in this sort 1 Terent in Hecyra I know nothing more sacred then an othe whereby I may approue my faith vnto other men And 2 Cic. lib. 3. Tully to like effect Our predecessours thorough the whole course of this life thought there was no straiter bonde to tie men then their othes Therefore the Ciuil lawe holdeth that 3 L. Antistius ff de acquir haâ—…ed he which sweareth doth not onely declare but confirme and establish thereby his true meaning And that law calleth it a 4 L. 1. C. de iuram calumn religious feare whereby the quarrelsome boldnes of such as contend in lawe is restrained The Canons do call it 5 c. cum contingat c. li vero de iureiutando vinculuÌ„ animae a band of the soule borrowing that speech froÌ„ Diuines 6 Demost. contra Baeotum Demosthenes saith that an oath is the greatest and grauest matter that is amongs men and as he elsewhere doth testifie 7 Idem contra Aristocr to sweare in trueth is a duetie which for the most part is to be performed of all men Aristotle hereof further saith 8 Arist. 1. metaph cap. 3. thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 most ancient is most honourable but an othe is a most worthie or honourable thing And an heathen 9 Vlpian l. 1. ff de iureiurando ciuil lawyer giueth it this elogie Iuramentum maximum expediendarum litium remedium an othe is an especiall meane for dispatch of suites Therefore the more commendable necessarie an othe is in any respect the more vglie and horrible is periurie and the violation of an othe 10 Aristot. 1. lib. Rhet.
H. 8. cap. 14. preamble of a statute of king Henry y e 8. which preamble for breuitie sake he omitteth yet hee omitteth not to gather therefrom that which was neuer scattered viz. so we see saith he that vnder cloked and couert termes of Canonicall sanctions viz. vsed in the statute 2. H. 4. the clergie men vsurped vniustly iurisdiction ouer the people ministring vnto them captious and snarling Interrogatories and as it should seeme by histories vpon oath contrary to the true meaning of the lawe and lawe-makers and against the right order of Iustice and all good equitie impugning thereby the royall prerogatiue the imperiall Crowne the Princely scepter lawes and policie of this kingdome for which cause he saith it was repealed These be imputations of great and high matters which he auowcheth to be by such oath impugned which though he say we see by that preamble though indeede hee would not let vs see it yet when all is cast vp his proofes are no more but thus viz. as it should seeme but how much hereof may in trueth thence be seene either plainely or by any seeming I would the clearest sighted of that opinion would take the paines to peruse that hee may withall discerne with what vpright mindes and sinceritie some of his chiefe complices doe write of this matter For the very true and onely causes of repeale of the statute of heresie 2. H. 4. by the preamble of the saide statute 25. H. 8. nowe likewise standing also it selfe repealed are assigned to be these viz. the not declaring thereby what should be heresie The terme of Canonicall sanctions and other termes thereof so generall that the best learned coulde scarse auoyde the danger of heresie if he should bee examined vpon captious Interrogatories the vnreasonablenesse of being put to losse of life c. vpon suspition and without accusation or presentment whereas for treason it must bee vpon presentment verdict confession or proces of outlawrie and for that speaking or doing against the Canons c of Popes being but humaine yea and many of them contrarie to the kings Prerogatiue Royall is by the sayde Canons made to bee heresie so that there is not one word mentioning much lesse tending to the condemnation of ministring oath no not so much as in the crime of heresie which is capitall nor yet any of the other great thunderclaps which the Treatisour pretendeth he sawe or heard of in that Preamble against oathes in some criminall causes To this purpose he woulde haue vs further note that the statute of sixe Articles doth not enact nor allowe but that it seemeth rather to disallowe and ◅iect these oathes Why Sir it speaketh not of them at all and can you therefore gather that it doth not allowe but rather disallowe them you might so reason against them from all the statutes that euer were made touching any different matter whatsoeuer But say you it seemeth rather to disallowe them is not this seeming a sound demonstratiue argument to ouerthrowe a course so long and so manifoldly vsed and that in the courts of both sortes but why doth it so seeme forsooth because the king is by that statute authorised to direct Commissions to Ordinaries and others to take information and accusation by the oathes of two sufficient persons at the least or by verdict of twelue men What then therefore the examination of the partie vpon his owne oath when he is found out because it is omitted is disallowed Though this loose reason should followe yet none oath should thereby bee touched other then ministred in matters of heresie But if he might reason thus because those Cōmissioners might beginne and grounde their proceedings done by way of speciall enquirie in processu punitiuo vpon such information accusation or verdict therefore they might not proceede afterward according to any course of the lawe ecclesiasticall then might he as well also argue that they might not deale vpon an heretiques owne voluntarie confession for confession is no more mentioned in that Statute then the defendants oath is But what if that Statute had expressely disallowed that oathe is it not nowe repealed and is it woorthie to bee alleaged seeing hee else-where chargeth it to be A bloudie and cruell Statute I perceiue it is verie loose and badde stuffe which hee will not take holde of where hee may haue but as much as a shadowe or glimpse of any thing to his purpose May it bee thought that any man of iudgement can bee in deede ignorant but that such sharpe and pregnant conclusions as throughout his whole Treatise he inferreth cannot possiblie be grounded vpon so feeble and vnconsequent premisses yet hee sticketh not vpon these allegations aforesayd euen as if hee tooke them for good and sound arguments as a well-willer of Ordinaries to disswade them from further practise of such oathe least they bee found thereby not onely impugners of the Roiall Prerogatiue but discredited further by the breach of their owne oathes taken to the Queenes supremacie Neuerthelesse least I be mistaken by any it is to be remembred that he commonlie limiteth all his hote conclusions with some warie wordes of restraint as these videlicet such oaths and such like c. alwayes conueying vnder them a reference vnto generall oathes according to his first vntrue issue Well this helpeth his cause neuer a deale for if none of his reasons brought doe so much as ouerthrow those vnreasonable oathes which are by no man defended howe much lesse can they touche those particular oathes to matter in fact onely that we doe reason and treate of The reasons which he setteth downe as taken from the Reports of the common law doe now follow which are partly by propounding some examples how oaths be there vsed partly by auouching some cases seeming vnto him to inferre a cōdemnation of defendants oaths in any causes criminal Before he come to the first of these two there bee sundry conclusions propounded by him for proofe whereof all his reports out of the Common lawe be laied downe First that he may as he saieth deliuer our lawes Iustice of our land from so foule a slander as that they should bee sayde to allowe of such Catholique oathes Next to assure others like as himselfe is sure that such a generall oathe or such like ex officio was neuer offered by any Magistrate nor taken by any subiect by authoritie of the common lawe Thirdly that the Common lawes haue not imposed or appoynted an oath to bee vsed otherwise then according to the right institution thereof and the godly rules before by him remembred What those rules are I haue noted in the Epistle to the Reader Nowe if by these wordes videlicet such like ex officio he meane onely such generall oathes as afore he had vntruely imputed to Ecclesiasticall courtes then will I not trauerse any of these conclusions whether the oath shall be ministred vpon the Iudges office onely or at a parties instance Yet
amends to the partie wronged for this belongeth to a Temporall Court 4 Ibid. fo 50. a. b. Vpon a publike fame arisen that a certaine parishioner did with hold his due oblations refused to be confessed to the priest to receiue the communiō at least once a yere the Ordinary ex officio did call him to the intent to inflict some corporall paine vpon him for correction of his soule and this proceeding is there allowed vnto Ordinaries to be of their iurisdiction and lawfull One 5 Ibid. 54. b. 55. a. Lindsey a publike Notary being infamed aswel of a crimeof fornication for so I take it that it ought to be read by him cōmitted as for contēpts done to that court was ex officio proceeded against by y e Deane of the Arches for correctiō of his soule maners both which are there allowed together with such proceeding to belong to y e libertie of the church to eccles iurisdiction In which copie of consultation it is to be noted that towards the end therof also in the title of it in the margent this word defamationis is vsed in steed of the word fornicationis for actions of defamatiō be seldom or neuer sued ex officio but at the instance of some partie grieued Besides mention is there made of committing it within that iurisdiction which in desamation that is not properly said to be committed is not material so the defendant remaine then in that iurisdiction and therefore where in the beginning of that Writ the wordes are printed Super formationis c. and conuerso which hath no sence nor yet is any Latin no doubt it ought to be super crimine fornicationis c. commisso As for the 1 Ibid. fol. 45. 〈◊〉 crime of fornication it is twise besides noted by the Register that Ordinaries proceeded against it in that forme In the first wherof it is said that the Ordinary proceeded ex officij debito as bound by his office duty against a chapleine that kept a cōcubine publikely to the danger of his owne soule with scandall of others Therefore this crime was obiected against him ex officio for his correction and for reformation of his maners In the 2 Ibid. fol. 57. b. later of them the Official of Canterb. proceeded ex officio against a vicar for the same crime for contēpts also by him made against that court ad correctionē animae suae And there it is said of both the faults as in al the former cōsultatiōs to like effect that this is cognitio spiritualis quae ad forū Ecclesiasticum pertinet in praemissis And the said writ runneth thus Cùm vos nuper ex officio vestro fama publica referente quod T. c. vestrae iurisdictionis C. in amplexibus fornicarijs tenet ipsum corā vobis in curia christianitatis pro correctione animae suae in hac parte citari feceritis procedentes contra eum ibidem iuxta canonicas sanctiones c. vobis significamus quod in causis praedictis ex officio vestro quatenus ad correctionem ipsius vicarij non concernunt placita de catallis debitis in curia Christianitatis procedere vlterius ibidem pro salute animae suae statuere facere poteritis quod ad officium vestrum speciale noueritis de iure pertinere prohibitione nostra praedicta non obstante So that by these so many precedēts of consultations by citations proceeding against crimes c. being of that iurisdiction by way of inquisition or enquiry by y e authorising of ecclesiasticall iudges in al of thē to proceed therein to do quod ad forum ecclesiasticū nouerint pertinere by the obiecting of the crimes to the parties enquired of ex officio iuxta canonicas sanctiones ius libertatē eccl which maybe by oath in matters aswell prohibita quia mala as mala quia prohibita against lay aswell as ecclesiasticall persons we do conclude gather that by so many iudgemēts of the cōmon law for crimes of ecclesiasticall conisance and consequently in matters neither Testamentarie nor Matrimonial any persons whether lay or ecclesiasticall being vnder that iurisdiction may be cited though against their wils by Ordinaries Iudges Ecclesiasticall ex officio ipsorum mero And vpon apparance may by censures ecclesiastical c. be vrged vpō their oaths vnto examinatiō to answer matter though it concerne their owne crimes And therfore that the lawes of this land do warrāt alow the ministring of that othe wherof we intreat vnto Courts ecclesiasticall We do onely say that the defendant may lawfully be vrged in due proceeding of office to answere concerning some crimes of his owne by vertue of his oathe But according to the Treatisour Note-gatherer and others who seeme to confound all proceeding ex officio with the very ministring of an oathe to a defendant touching a crime obiected against him we might a great deale more peremptorily conclude that if these two as they holde be but in trueth all one thing then wheresoeuer proceeding of office is there such oathe of necessitie must be also ministred and taken These proofes last alleadged are gathered out of Writtes of Consultation after that by the parties conuented Prohibitions had beene brought to remooue the causes from ecclesiasticall Courts And therefore no doubt but that the Lawe before the Consultations awarded was thoroughly debated and that the parties delinquent were cited and proceeded with altogether against their willes For can any be so simple as once to imagine that a man who is cited to answere in a cause criminall and to be punished or corrected for it will willingly appeare and answere if hee neede not to come at all and were therein also by Lawe protected Or that he wil be at cost to procure a prohibitiō to stay the dealing where he is willing enough to be proceeded with But besides allowance hereof by the Statutes and Common Lawe vnto Courtes ecclesiasticall the practise also by time immemoriall hath runne accordingly as may positiuely appeare by Acts of Ecclesiasticall Courts and by way of abnegation may be shewed from the Recordes at the common Lawe In that as I thinke it will not in them be found that any Prohibition hath vpon this point onely beene awarded thence or at least vpon debate for obtaining of a Consultation such hath not stoode nor beene mainteined And albeit either vpon this consideration or some other as weake certaine euill disposed and factious persons haue long agone disputed and maintained opinion against oathes ministred both in Courtes temporall and Ecclesiasticall yet vpon generall mislike of such fond opinions as may be gathered a Prouinciall constitution was then agreed vpon and concluded to make euen all disputations against oathes ministred in either court to be heresie which Constitution I haue not hitherto found to haue bene misliked much lesse condemned at any time since as
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
of him he not knowing what they will demand neither whether it be lawfull for to shew them the trueth of their demands or no for such things there be that are not lawful to be shewed This he exemplifieth thus as if saith he I were accused of fornication and none could be found in me if then they should require me to sweare to bewray any other that I haue knowen to offendin that vice I suppose it were expedient c. not to follow their will c. He also further findeth fault with such Iudges for that sometimes not knowing by any due proofe that such as haue to do afore them are culpable yet will enforce them by an oth to detect themselues in opening before them their hearts For answer hereuÌ„to First there is none that defendeth any such generall exacting of an oth to answer whatsoeuer shal be demaÌ„ded Besids what is here any way sounding to the condeÌ„nation of ministring an oth for answering to particular Interrogatories touching certain knoweÌ„ points opened before vnto y e party SecoÌ„ndly the iudgement of LaÌ„bert that a man is not bouÌ„d in distinctly to bewray whoÌ„soeuer hee knoweth to haue offended is also allowable For a man being so generally asked is not bouÌ„d by any law that I know to take oth to bewray whatsoeuer he knowes touching al other mens faults so they be meerely secret not manifested at al abroad nor bringing any scandal or apparant danger either to the church or common weale or vnto the soules of a multitude where of he may ought in charitie presume that the offendors be repentant Thirdly I take this iudgemeÌ„t also to be very sound both in diuinity and law that a man may not be vrged in any humane court to disclose what hee thinketh in his heart vnles by word or deed it be come vnto some ouert Acte For if it come so far there may be then sundrie occasions why a man should be examined what he thinketh or beleeueth As if a man wil alledge iudicially something desire it to be admitted which ought so to be in case he propound it bonafide not calumniously the Iudge may here vrge him to declare by his oth whether he beleeueth the said matter to be true that he thinketh it may be prooued Likewise he that shall be detected to haue spoken like an Atheist or an Heretike against God may be examined vpon his oath touching his beleefe neither is the bewraying of himselfe herein capitall vnto him vnles he shall wilfully persist in his error and blasphemy and therefore I thinke that by the lawes and policie of this realme it is otherwise in a person which hath once abiured is againe relapsed that he ought not to be examined by oath touching his heresies by him vttered and holden because if he be conuinced to haue relapsed he ought by lawe to be burned notwithstanding he shall then againe pretend reuocation of his error and hearty repentance Out of this answere of Lamberts vnto that article I obserue that the Treatisour in my copie at least hath some what changed these words viz. and none could be found in me if then they should require me c. for insteede of if then hee hath put these viz. or if because he would not haue them sound any way as if Lambert meant that a man might bee sworne touching the crime of fornication imputed to himselfe albeit hee were not bound to bewray all others whome he knewe to haue offended that way Besides by Lamberts said answer it appeareth that he thought Magistrates might cause subiects to sweare though against their wils that they are bound to obey them therein which he exemplifieth by that which Salomon might haue done with the two women which contended about the childe if otherwise he could not haue found out the trueth thereof And he concludeth his answere to that article thus viz. that he thinketh it lawfull at the commandement of a Iudge to take an oath to say the trueth specially if the Iudge require it duely and in lawfull wise whereby we see Tyndals iudgement by Lambert to be controlled where he writeth absolutely that no Iudge ought to make a man sweare against his will Lastly Lambert there concludeth that a Iudge may cause a man to make an oath in any other case conuenient and that also for purgation of infamie when any infamie is lawfully laide against a man So that the Treatisour himselfe who condemneth all such oathes of clearing as purgations poysonfull for that they may induce periurie is by this his owne allegation which he may notrefuse well confuted The Notegatherer auoucheth also three examples where men were proceeded with for matter of pretended heresie and yet had a copy of the Articles deliuered vnto them But he telleth not whether they were afore that or afterwarde sworne But howsoeuer some were then thought good to be proceeded with yet cannot this prooue that it was holden to be vnlawfull to doe otherwise For I haue also knowen the like fauour vsed vnto sundry pretending scruple in this point who in very deed little deserued it for they were neuer the neerer afterward to make oath to answere them The equitie of this proceeding yea farre aboue the lawfull practise of courts on the other side the sea in their proceeding against crimes euen capitall by the course of the Ciuil lawes may appeare by comparing of them in some points together They haue there two Processes in most criminall matters the first is called processus informatiuus which conteineth al the Indicia or the EuideÌ„ces presumptions sayings of those which can testifie against the partie enquired of These be taken aforehand for the priuate instruction of the Iudge euen in the absence of the partie serue for to ground his Enquirie The other is y e very Processe criminall or punitiue whereunto the partie conuented is to answere and resembleth much our Inditements at the common lawe which inditing in France they call making a mans Processe Nowe it is by 1 Conrad fol. 255. Foller in Pract. crim fol. 165. nu 9. Iodoc in Pract. fol. 24. nu 18. Maranta in Specul fol. 8. nu 8. a general custome obserued where the Ciuill lawe in that behalfe hath place that the supposed delinquent is interrogated and examined and the witnesses also after production in his presence are againe vpon their oaths repeated in the processe punitiue before the partie may haue a copy of the euidâ—…nces and presumptions that were taken against him vpon the processe informatiue And it is testified that the Iudge should doe euil if he should otherwise obserue it For 1 Inâ—…oc in c. bonz el. 〈◊〉 na 5. de elect Bâ—…us in l. edita in repetit Patau nu 30. C. de edendo in l. ea quidem r. u. 42. c. de Acâ—…sat al. j pluriâ—…ni that which hath receiued interpretation approbation of equitie by continual practise long