AN APOLOGIE FOR SVND …
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AN APOLOGIE FOR SVNDRIE PROCEEDINGS by Iurisdiction Ecclesiasticall, of late times by some chalenged, and al­so diuersly by them impugned.

By which Apologie (in their seuerall due places) all the Reasons and Allegations set downe as well in a Treatise, as in certaine Notes (that goe from hand to hand) both against proceeding ex Officio, and against Oaths ministred to parties in causes criminall; are also examined and answered:

Vpon that occasion lately reuiewed, and much enlarged aboue the first priuate proiect, and now published, being diuided into three partes: the first part whereof chief­lie sheweth what matters be incident to Ecclesiasticall conisance; and so allowed by Statutes and Common law: the second treateth (for the most part) of the two wayes of proceeding in causes Cri­minal, viz. by way of Accusation, & ex officio Iudicis: the third concerneth Oaths in generall, but more specially the lawfulnesse of such as be ministred touching supposed of­fenses, either of themselues that sweare, or of their brethren:

Respectiuelie submitted to the graue iudgements of the reuerend Iudges and other Sages of the Common lawe: of Iudicious Professors of the Ciuill lawe: and of the right reucrend Prelates and other grounded Diuines in this Realme.

Whereunto (for the learneds sake, and for similitude of Argument and Iudgement) I haue presumed to adioine that right excellent and sound determina­tion (concerning Oaths) which was made by M. LANCE­LOT ANDROVVES Doctor in Diuinitie, in the common Diuinitie Schoole of the Uni­uersitie of Cambridge in Iulie, An. 1591.

Lex, iustitiae; Iustitia, Reipub. basis.

Imprinted at London by the Depu­ties of CHRISTOPHER BAR­KER, Printer to the Queenes most excellent Maiestie.

THE GENERALL Preface, conteining the Occasion, and generall distribution of this Treatise following, before it was meant to make it publike.

THE indeuours of such disturbers as haue bene the chiefest staies of a further propagation of the Go­spell, and the onely staines of her Maiesties happie reformation; haue rested most, in aduancing a new found discipline, & in discre­diting the present gouernement Ecclesiasticall, by their speeches and writings. The later whereof they haue gone about; as well by im­pugning the callings and forme of gouernement Ec­clesiasticall, (as if they were contrary to Gods word) as also by defacing the persons of the Gouernours, with vnchristian gibes, contumelies, and other indig­nities.

But these succeeding not to their wish, nor sorting to that effect they purposed; sundry of thē haue entred in­to, & pursued a more politike course. for by thēselues & [Page] others (more simple) excited cunningly by them, they chalenge diuers receiued proceedings in Courts Ec­clesiasticall, not to bee iustifiable by lawe: pretending now their especiall griefe to rest herein; for that they are delt with and oppressed contrary to law, euen as if they did carie a principall and zealous care to haue all her Maiesties lawes dulie obserued.

By whose frequent clamours, some very graue, wise and learned (no way affected to their other fansies) ei­ther not being well informed of proceedings Ecclesia­sticall, or not weying (for want of leisure) certain points seeming to bee doubtfully reported in the bookes of Common lawe, so throughly as their great learning therein doeth affoord: in a kind of commiseration (for so I interprete it) towards some of those who seeme di­stressed, and to be otherwise well meaning men; haue lately called into question diuers proceedings Ecclesi­astical, both for matter, and for circumstance or maner; that they are contrary to the lawes of this Realme.

Yet all of them doe not iumpe in the selfe same opi­nions hereafter touched. For they are seuerally hol­den by seuerall men; the most whereof, are stood in by men of meanest place and reckoning in that studie; and such as are knowen to bee ouermuch addicted to factious innouations. But all the chalenges whatsoe­uer (for contrarietie vnto the lawes of the realme only, so farre foorth as they are hitherto commen to know­ledge) may fitly be reduced into this order & summe. They tende to the chalenging of proceedings Eccle­siasticall, done either by those who proceed by her Maiesties immediate Commission, who are either Iud­ges delegates (dealing in matters onely betwixt partie and partie brought before them by appellation) or [Page] Commissioners in causes Ecclesiasticall (seruing espe­cially for punishing of crimes & offences) or els such as be executed by those, who deale in ordinary iurisdiction.

The exceptions that touch the very matter and ob­iect of Ecclesiasticall iurisdiction, do in very deed by necessarie consequence tend, either to the whole ta­king away of the Ordinarie iurisdiction (as where it is affirmed, that no Canon, constitution, nor ordinance pro­uinciall whatsoeuer, may now be put in vre, without her Maiesties expresse assent first had to execute the same:) or els do reach to the taking of it away but in part.

Those opinions that tend to the abridging of it but in some part; doe goe about it partly by way of exclu­ding Ecclesiasticall Iudges, from the handling of cer­teine matters; (as by holding, that none Ordinarie may cite any whomesoeuer, but in causes Testamentarie and Ma­trimoniall: and that no Lay man ought to be cited or sum­moned to appeare before any Iudge Ecclesiasticall, to take an oath in any other cause, then Testamentarie or Matrimoni­all:) And partly by deriuing them from the conisance Ecclesiasticall vnto other Courts: (as that the iudge­ment of heresie now lieth rather in the Common law, then in the law Ecclesiasticall:) and some other of them (be­ing defended by the same men that holde the next precedent opinion) doe tend both to the excluding of Courts Ecclesiasticall, and to the diuerting of such causes another way, as that nothing now can be adiudged heresie, but according to the statute, 1. Eliz. cap. 1.

As for the exceptions (pretended to be taken from the lawes of the Realme) against the circumstances, or maner of proceeding in courts Ecclesiasticall, they do either concerne such points as goe afore, and are pre­paratories to the suite (& such is this: that, the Queenes [Page] Maiestie cannot giue, nor any man receiue authoritie, to vse any other processe in matters Ecclesiasticall, then by citati­on:) Or do touch the maner of entring into the suite, as that an Ecclesiasticall Court may not proceed without accusa­tion or presentment, and that Lay men may not be cited ex officio, in any cause but Testamentarie or Matrimoniall: Or they concerne the maner of handling, and procee­ding in the suite, as that, If a matter be duely presented a­gainst a man, he may not be examined vpon his oath: where­unto some (belike meaning to qualifie and distinguish it) do adde this, viz. in a matter of incontinencie or such cause: and that, no man is bound to declare any matter a­gainst another, except some be an accuser: Or do concerne the sentence or iudgement of the Court Ecclesiasti­call, as that by none Ecclesiasticall authoritie, a man may be depriued of his benefice being his freeholde, being not endi­ted, and no suite of partie offered against him: Or els doe touch the execution of the iudgement: as that the Q. Maiestie cannot giue, nor any man may take authority of her, to vse any coërtion for any matter Ecclesiasticall, but excōmu­nications & such like: and that therefore a man may not be punished by imprisonment or fine, for or in any matter Eccle­siasticall: and lastly, that a man that standeth aboue fortie dayes excommunicate, may no way be punished, but vpon the writ De excommunicato capiendo: and that the said writ may not be awarded, but vpon originall cause arising vpon some of the ten crimes touched in the stat. 5. El. c. 23.

But others that be indeed professed dealers for an innouation in the Church (when they are conuented before authority) not only do most greedily take hold of these exceptions pretended to be taken from the Common law against iurisdiction Ecclesiasticall; but do allege also sundry others, yet pretending to ground [Page] themselues for both, not alonely vpon the lawes of the realme (as those do, of whom we hitherto haue spoken) but vpon Gods law also, the Ciuill, the Canon, or Ec­clesiasticall law, and vpon equitie and reason. Not be­cause they were persuaded by the pregnancy of any of these so to thinke, but hauing embarked themselues in that common quarrell, viz. to impugne the gouern­ment Ecclesiasticall of this Realme, in all things to their vtmost: haue first (as is probable) entred into the opinions; and after haue sought some colour to vernish them ouer with, wheresoeuer they could hit of it. Which their exceptions peculiarly framed by the professed Innouatours, and their owne proofs both for them, and for these also afore recited, (which were put into their heads by some Lawyers) shall (God wil­ling) then be distributed & layd forth, when we come to the handling of them, because other parts of this Treatise are more apt for that purpose, then this gene­rall Preface.

These opinions of late ringing sundry times in mine eares, and seeming to me to be diuersly mistaken; I called to memorie (so nere as I could) what, and where I had read any thing touching them. Whereupon tur­ning some books, and confusedly noting what I found, I was more and more confirmed in my former con­ceits, sufficient for mine owne persuasion.

Now because you pretend not to haue trauelled in these kinde of questions, & haue so earnestly importu­ned me to take some paines therein: I haue bin content for your owne onely priuate reading & satisfaction, to plot my simple conceits into this order as you see. For owing very much vnto you, & therefore not daring to deny you so small a matter, I haue (with y e litle leasure I [Page] could get) hazarded rather to haue want of iudgement in me, then lacke of good will, by you to be censured. Meaning in the first part of this Treatise to pursue the particular order heere aboue comprised: sauing that those foure recited opinions which touch the cir­cumstances of entring into a suite Ecclesiasticall, and the maner of proceeding in it, I shall be forced (contrarie to the naturall methode) to put after all the others, as requiring seuerall handling, and falling more fit in the second and third partes of this Treatise.

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An Epistle to the Reader, contey­ning the occasion of the publication of this Apologie, with a generall delinea­tion of two Treatises written a­gainst the scope of some part of the same.

VPon occasion touched in the Preface going before (gentle Reader) I was about a yere & three quarters since, drawen to set downe this simple A­pologeticall discourse ensuing, albeit in very many places thereof nowe enlarged. Which Treatise (by him to whom it was addressed) be­ing then imparted vnto certaine others of honour and qua­litie, it is saide, that they were also desirous to haue copies thereof, for some considerations to themselues best knowen.

The booke was somewhat long, and had many quotations, so that it coulde not conueniently in any short time be written out truely and faire, for so many as seemed earnestly to re­quest it. Hereupon it was then (in priuate sort) committed to the presse, and fourtie copies, or there abouts were printed, without any purpose of further publishing.

It appeareth nowe, that neere about the same time, cer­taine Doctours of the Ciuill lawe (required thereunto by some in authoritie) did agree vpon a briefe schedule, contey­ning some groundes of ministring an oath of office in crimes punishable by Ordinaries, and Ecclesiasticall Iurisdiction: a matter referred but to priuate consideration, and desired for like satisfaction onely.

This small schedule was after deliuered foorth (by some to [Page] whose handes it came; as the report went) to be confuted by certaine Diuines and Ciuilians of either Vniuersitie, and by certaine professing the Common lawe.

Sure it is, that within foure moneths after, a Treatise (said to be penned against the purport and drift of that sche­dule) by sundry (holden wise, & not vnlearned, to whose sight the written copies thereof were credited) was most highly commended, and extolled.

It seemed so precious, that copies thereof (though desired) were made very rare: and not vouchsafed to the vulgar and meaner sort, but kept tanquam Cereris mysteria. So that almost a yeere (after knowledge of it had,) did passe; ere it happened to come to my poore handes: and that was by the meanes of a right noble Counsellour, who had also much adoc, to procure a copie thereof for himselfe.

That which came to my handes doeth carry this title, viz. A briefe Treatise of Oathes, exacted by Ordinaries and Ecclesiasticall Iudges, to answere generally to all such Articles or interrogatories, as pleaseth them to pro­pound: and of their forced and constreyned oathes ex officio: wherein is prooued, that the same are vn­lawfull.

I was glad of this opportunitie offered; for I hoped to be in­structed in some important point, that I had not afore consi­dered of: and either to be aright perswaded (whereof I am most desirous) if I had mistaken; or else be confirmed in my former opinion. For there was reason I should so be, if in a booke drawne with so great aduise, by men of such rare skill and dexteritie, and so well digested, I should not finde de­monstratiue arguments, euen to presse mine assent against the course (as I tooke it) of the lawes both Ciuill and Eccle­siasticall; against the practice of all the other states of Chri­stendome; and against apparent approbation thereof by [Page] Gods booke it selfe.

But when I had first cursorily runne that Treatise ouer; I must confesse, I was partly drawne into cogitation, that I had not hitte vpon the right booke: because such is either my dulnesse or preiudice (for I doe assure you, I will not be opi­niatiue against that which I may discerne to be well groun­ded reason, or sounde authoritie) that I stand yet as reso­lutely perswaded as afore, this piece of worke notwithstāding.

And albeit I wanted both fitte occasion, and iudged it al­so (for the reasons hereafter touched) not worthe the while to say any thing to the vnconcludency and imperfections, which I conceiued to bee in that Treatise; yet was I neuer­thelesse (not long since) moued, by those who may com­maunde me, to take some time to answere it. Being sig­nified withall from them vnto me, that it was otherwise fully meant, to put mine aforesaide rawe discourse of these matters (euen as it was) vnto print againe, to bee made publike.

Whereupon, knowing this resolution, and that [...] might perhappes be [...]; I condescended to assaye, whether I coulde as it were licke ouer my discourse a­gaine, into any more tolerable fashion: not omitting with­all, to answere the whole matter of the aforesaid Treatise seeming to me any way pertinent; yet not in the same order as it is there set downe, but in seuerall places of my booke, as it falleth in most aptly, after the method, into which I had first plotted it.

Of which whole Treatise, I trust I may (without offense) giue you a generall taste, by this Epistle. Truely I neither doe knowe, nor haue heard, who were any of the Authors, or who was the Enditer of it. If therefore it should happen that I did vse some measure (though farre scanted) of that libertie of speeche, which is vppe-mette, pressed downe, [Page] and running ouer in the Treatisour, against many in place, (I doubt not) his betters, and of as great woorth and suffi­ciencie as himselfe euery way; I hope that I shall not (iust­ly) be noted, to be caried with sharpnesse of humour against any particular person; but to haue beene prouoked vnto a moderate, necessary, and generall defence. Albeit I purpose rather to waye, what is fitte for vs to speake, then for him to heare.

Vnto the whole matter of the Treatise, these three seue­rall pointes might haue sufficed for a generall answere. The first is, that the state of the controuersie, or issue, is by him mistaken: the second concerneth his arguments; for he assu­meth that as graunted, which is not; which in the schooles is called, a fallacie petitionis principij: the last and third, is his sophisticall answering, euen to such obiections as him selfe frameth. For the first therefore; yee are to vnderstand, that in the Treatise it selfe, this seemeth to be the generall issue by him tendered, against which he would argue: viz. the forcing of oathes by Ordinaries and Iudges Eccle­siasticall, generally to answere to all such questions or interrogatories, as they shall demaund or minister, touching either the thoughts, words, or deedes of him, that is to depose. Vnto which in the title is also added ano­ther challenge, for that they are ministred of office, by the Iudges. So that he conceiueth erroniously all proceeding of office to be onely in causes Criminall; and in this respect alone worthie to bee chalenged, because it is done by the Iudge, without prosecution of a partie.

Nowe if hee doe reason (as hee pretendeth) against some matter practiced by Iudges and lawes Ecclesiasticall in this Realme; then by charging them with exacting of oathes, for men generally to answere vnto all their thoughtes, wordes, and deedes, that they shall be [Page] enquired of, that I speake but mildely; it is a very vntrue, and slanderous imputation, both to the men, and to the Lawe it selfe. If it were mistaken by him through ignorance, yet was it ouer great rashnesse, thus to speake euill of such as be in Iudae ep. V. 8. & 9. authoritie, especially for matters hee perfectly knoweth not. But if it were wilfully done, then must I needs say, that he peruerted and wrested the matter in controuersie of set purpose, to make the men and whole calling odious; and thereby to giue the better tang (in some mens tastes) vnto those Cart-loads of contumelies, and spitefull The Latines call this calumni­am, the Grecians, [...]. reproches, wherewith throughout the whole Treatise, it pleaseth him to charge both them, and their proceedings; as (in part) shall by and by appeare.

For the seconde point of the three: hee first defineth an oathe: then hee sayeth it is a part of Gods worship: hee telleth the ende and institution of oathes by Gods Lawe: and that they are either priuate or publicke: hee sheweth the necessitie of it in some priuate suites: and what things are to be obser­ued by him that taketh it, and what by the Magistrate, that giueth it: likewise hee setteth downe (yet but in part) cer­taine cases, how an oathe is vsed in some Temporall Courts; and how it ought to be vsed (as he saith) by the Canon Law. All which, I will not greatly now trauerse with him. But hereupon hee inferreth, that the oathes ex Officio vsed in Ecclesiastical Courts, are against Gods Lawe, Common Lawe, and the Canon Lawe it selfe.

So that if he minde to reason out of those premisses, it must needes be gathered for him to this effect, viz.

In the Law of God, in the Common and Canon Lawes, we finde oathes thus and thus prescribed, and vsed:

But the oathes ministred in Courtes Ecclesiasticall tou­ching matters Criminal, are cōtrary to this prescription and vse: Ergo. They are contrary to those three Lawes.

[Page] I will omit that this reason concludeth not necessarily, be­ing ex meris particularibus: because it might bee, that though sundry othes by those three Lawes were in deede of such forme; neuerthelesse other there may be also farre diffe­rent; and yet both sorts allowable.

But for answere I say, that the Assumption, or second proposition (which must be vnderstoode) is by the Treatiser not once mentioned, much lesse vndertaken to be proued, but is taken vp by him as graunted, which in trueth is flatly by vs denied. For it shall bee prooued (God willing) that there is no such contrarietie as is by him surmised, no nor great diuersitie betwixt the othes there ministred, and those, which Scripture mentioneth, or Common Lawe pra­ctiseth.

Now touching the last point of the three: Hee maketh it as a sufficient answere vnto obiections that may be made, for assertion of such othes as hee impugneth: if hee can but note any difference betwixt the things resembled together: though such diuersitie bee not in the point, for which the compari­son is made: no, nor in any other point, that is materiall. As for example. If a man affirme, that Christes se­cond comming may bee compared to the comming of a thiefe in the night, meaning for the secresie thereof, and want of expectation; should hee well confute this comparison, that woulde thus say: No Sir, that is vntrue, for there is a great diuersitie betwixt their commings: because Christ commeth to deale iustly, but a thiefe to doe vniustly? But to come neerer home: If I did argue thus, viz. The receiued vse of the Starre-Chamber to deny men counsell, when they an­swere to Interrogatories, is not against the Rules of Iustice; therefore no cause is there, why the like approoued vse in the Chauncerie, should be counted against Iustice: I pray ye, [Page] should he reason soundly against it, that would answere it in this sort: Oh Sir, there is a great diuersitie betwixt those two Courtes: for the one proceedeth Criminallie, to in­flict penalties for the Queene, the other but Ciuillie for priuate amendes in equitie, vnto the partie? Or if hee shoulde answere thus: The Lordes of the Counsell bee Iudges in the one, but not so in the other? Considering, that in all things (being not the same) there is diuersitie; and yet a reason of comparison is concludent; if there be no difference in the point, for which it is brought.

If then the whole substance of that Treatise shall bee founde vpon discussing, to labour of some of those three in­firmities; so that (as himselfe affirmeth in the winding vp of all) he might truely say hee hath vsed but fewe proofes: I could therefore haue wished, that hee had not shewed him­selfe as Suffenus sibiipsi, by setting the Garland vpon his owne head, before the victorie; where hee telleth vs, that al­beit his proofes by him brought be fewe, yet (saith he) they are effectuall. And thus much for the matter of that Treatise.

Now let vs here also consider the maner of penning, and the briefe of the rest of his vnnecessarie wordes, which are wholly besides the matter. For the enditing, surely I doe esteeme it (for my part) to be a very commendable, easie, and flowing (if not ouerflowing) stile. Yet if I may be pardo­ned to speake freely, that which I thinke, truely it runneth altogether vpon an haughtie, comptrolling, contemptu­ous, disdainefull, and salte minerall veyne, as may appeare by a taste of some particulars, not vnfitte to bee opened; which for order sake, I will contriue into these fiue seuerall heades: viz. 1. Of his discourteous and opprobrious termes vsed against sundrye particular persons and cal­lings: 2. His couert reproching and wounding of all Eccle­siasticall [Page] Iudges through the sides of Papists, for their ra­ging against Subiects, and treacherie to their Soueraignes, in former times: 3. His reuiling the proceedings Ecclesia­sticall, which he there impugneth: 4. His vntrue imputa­tions and slander of these proceedings: And lastly, the pre­tended impieties supposed thereby to be committed, with the dangers and penalties, that hee chargeth all such to haue in­curred, which haue bene dealers in such practise of Ecclesia­sticall Iurisdiction.

For the first of these: as where hee termeth all that pra­ctise that part of Ecclesiasticall Iurisdiction (whether Or­dinaries or Commissioners) by the names of Inquisitors, rough and rigorous exactors, and offensiue butchers: Chargeth them to cloake and shadowe foule matters vnder glorious and painted glosses, beautifull shewes, and fained pretenses: that of their Iudiciall Courtes and Consistories, this saying of the Poet is verified, viz.

Victa iacet pietas, & tergo caede madentes

Vltima coelestûm terras Astraea reliquit: As if they had there murdered or vnlawfully put some to death.

Where hee also saith, that Ordinaries challenge or as­sume to themselues the goodly name and title of Spi­rituall men: that they are men to whome the sauour of gaine is sweete, and therefore sayeth of them, Auro lo­quente tacendum est.

Those Doctors also which by commandement do (as afore) seeke to iustifie the course that he oppugneth, he calleth (tho­rowe contempt) English Doctours: a terme vsually sa­stened but vpon such, as beare the name of learned, and yet besides English (their mother tongue) perhappes vnder­stand none other language at all: yet the meanest of such Doctors can tell, that a Publican differeth from a Colle­ctour, and that regula Iuris signifieth not an example [Page] or precedent, at both which he stumbleth. He pleasantly al­so (like a Sennor Soldado) sorteth nine of them by rankes, into more then two quaternions, as the souldiers which kept S. Peter were sorted: as if through their basenesse, a quaternion of them were not woorthie to be laid in ballance with a messe of such as himselfe is; or as though in a braue resolution of his owne single valour, he valued them by doz­zens together, and durst encounter them all at once, like as the single Spaniard doth, with so many naked and contemp­tible Barbarians.

He termeth them also (in scorne) Learned Canonists: as if he would insinuate, that the litle skill they haue, were in the Canon lawe onely, which he nameth the Popes Testa­ment: and as if their degrees of schooles were taken in that profession. Whereas it is well knowen, that their profession and degree, is in the Ciuill lawes: a lawe being (for the equi­tie and wisedome thereof) by the space of sundrie quaterni­ons of hundreths of yeeres, the common lawe of all the Ci­uill nations of the world saue one. What he esteemeth of it, greatly skilleth not, but Tullie, a man more wise then he, doeth giue it exceeding great commendations. And all the Christian worlde (sauing ourselues) are not destitute of rea­son, for well esteeming and practising of it. For the course of those Doctours education, it hath beene in the liberall sci­ences, in the languages called learned, and perhaps in such of the vulgar also, as be of any commendable note, and in other sortes of good learning. Wherein if they haue accordingly profited, their employment (happely) may bee many wayes (thereby) as behoofefull to the seruice of their Countrey, as that which some call learning, is beneficiall and gainefull to themselues.

Likewise the poore Apparitors that serue in Ecclesia­sticall Courtes, he calleth them, their hunting Spaniels, [Page] malepert Apparitours, Messengers and Pursuiuants: men though in meane place, and but ministeriall qualitie, yet as necessary to be had in those Courtes, as Errand-bailifs be for Temporall.

To come to the second; may it be denied, that the matters wherewith he reprocheth the Popish prelates, of former times, are bent per obliquum, through their sides to wound all the Reuerend fathers, and others nowe liuing? who (for proceeding of Office against some of his darlings) are fallen as deepely into his indignation. For haue these sharpe biting termes bene bestowed vpon any of their late Predecessours, or vpon them, till of late yeeres, that certaine disordered persons ioyning (though in other respectes) with the Pa­pistes, to oppugne this Church, haue bene dealt with in the same course, that Papists are, and were from the beginning of her Maiesties reigne, before these other sprung vp? If this were not his meaning, for what ende is almost halfe his Treatise spent by way of Inuectiue against the Popish Pre­lates? So that (no doubt) hee meant to lay vpon the present Iudges Ecclesiasticall the reproches of them, whose steppes hee chargeth them to followe, in that this course of pro­ceeding was (if wee may trust him vpon his bare worde) brought in by the practice of the Popish Cleargie: And therefore hee sayeth, that Bishops nowe practice Antichristian decrees, and Popish Canons, the ve­ry heades of that Hellish Cerberus of Rome, and the synewes of his tyrannicall authoritie: For else this were but running of riot, and vaine barking against the Moone.

Of this sort are those his other speeches also, viz. that the Papisticall Cleargie most irreligiously practised the same: that they finding it a fitte instrument to main­teine their Romish Hierarchie, and to tyrannize ouer [Page] the consciences of good men, most impiously viola­ting the lawes both of God & man, imposed this ma­ner of corrupt oath vpon the people: that they were far more cruell then Claudius or Caligula: mad men, gree­die & deuouring Wolues: that they fed (with delight) their fierce and cruell mindes: that they tyrannized in cruell maner: that they forced men with rough and ri­gorous termes of disgrace & reproch: that they were mercilesse magistrates vsing sudden and raging com­mittance: that they promised in verbo sacerdotali, if that be ought worth: and he calleth them vnbridled Clergie men, Pharisaicall Clergie men, vniust & lawlesse men, with their bad practices and fond intentions: merci­lesse Ordinaries, with their extraordinarie and lawlesse power: their actions cruell and accursed dealings of Barbarous bloudy bishops, murtherous mindes and intollerable iniquitie of bishops, vsing a Barbarous course of inquisition. He inueigheth also at large, against their hypocrisie & feined holinesse: against their tem­porall possessions, as the nurses of pride, presumption, and vaine pompe of the world. Truly if this kinde of mis­likers, had that litle of temporalties which is still left, how hūble they would be may iustly be doubted: but I durst vnder­take for them, that they will vse no great pompe in hospita­litie, nor in any thing els, sauing in words. Likewise against their ambition: for he affirmeth, that three Archb. infor­ced aboue the kings of the land: against vsurping & en­croching vpon the kinges iurisdiction by Popish pre­lates, to bring causes to their costly and lingering con­sistories: against bringing in (by them) of forrein de­crees, corrupt canons, and ceremonies of the accursed See of Rome: against their claiming of exemption from taxes imposed by any other whomsoeuer, then by the [Page] Popes authority: and against certeine clergie men, that (in former times) opposed themselues (with great ob­stinacie) against the paiment of a subsidie: as if lay men had not done (rebelliously) as much, as these did obstinately: Against haughtie Hugh bishop of Lincolne, who (hee saith) as a lusty champion of that irregular confederacy drew out his woodden dagger of excommunication, against the kinges Iudges: against a bishop of Winche­ster, who was outlawed for a wilfull murther, and a while refused the iudgement of the kings law: against the Popes collectour who conuented the vicar of Sal­tash afore himselfe, for breach of an othe giuen for strength of a bond: against the Hospitallers and Tem­plers, who drew the kings subiects into suite, before the conseruatour of their priuileges: And against the proud prelate cardinall Woolseys court legatine; and both his and Nixe the blinde bishop of Norwich his fal­ling into praemunire, for encroching vpon the kings iu­risdiction: Adding also a slie surmise of some other things (in the times of Poperie) to haue bene vsed, which he doth but vainely imagine, to be now practised by Commissio­ners Ecclesiasticall. So that by this tricke of cunning con­ueyance, he would induce and draw on his affectionate rea­ders to beleeue, the same to be now in all bishops present, which was blame woorthie in any of their predecessours. For his fauourers may not iudge that such a man as he, would wander so farre wide (as he doth) from his purpose: belike if these now do but any one action (though neuer so iustifiable) which the Papists haue done in times past, they shall carry all the cōtumelies, which they (in any other respects) haue either worthely, or vnworthely deserued. Whether this be a direct Christian course, euery one that is in any place of iustice shall most sincerely discerne; which will but consider with him­selfe, [Page] how vnequall he would iudge it to bee, to haue his owne honestie, discretion, loialtie, and religion measured and estee­med of, according to the actions of the worst men that euer a­fore occupied the same place that he now doeth.

Vnto the third point (which is reuiling of proceedings Ec­clesiasticall (in this behalfe) all such speeches of his, as these following doe appertaine: of the whole Canon lawe indi­stinctlie and generally he speaketh thus: that they be lawes and ordinances contumelious against God, iniurious to Magistrates, and especially established to maintaine Antichristian tyrannie: Of an Oath of purgation, or an oath ministred to answere (in some cases) vnto Articles and interrogatories criminall, he saieth, It is against law and reason; an intollerable error and disorder: a fowle and great abuse: hard and vniust dealing: vndiscreete, vn­iust, and vnlawfull forcing: offensiue proceeding: v­surped officious power, and licentious pleasure, con­trarie to all due course of Iustice: a violent course of in­iurious inquisition, examination, and of wrested oaths: a lawlesse proceeding which the Iustice of the land de­testeth: that they be vniust oaths, and full of iniquitie: strange oaths & strong purgations, not healthfull but hurtful: poisoning purgations, giuen for preseruatiues: Catholique oaths: a vicious and lawlesse inquisition: and lastly, a prophane, and more then heathenish In­quisition.

The fourth point concerneth his vntrue and slanderous ac­cusations of their proceedings, who be Iudges Ecclesiastical: as where he saieth, that such generall oaths (viz. as afore hath bene touched, when I spake of the issue mistaken) are exacted, none accusation, suite, lawfull information, presentment or inditement iudiciallie preceding: that the Ecclesiasticall Commissioners, terme themselues high [Page] and supreme Commissioners: that it is exacted by eue­ry ecclesiasticall Iudge to satisfie his iealous suspicion of any crime, to appose by othe, and compell men to their purgation, or vpon euery bare surmise and vncer­taine rumour: that by the like reason (vnto the practise of this othe) there should bee erected a court of Inquisiti­on, more then Spanish, to sift and ransacke (by othe) most secret thoughts: That the Interrogatories vsed by Ec­clesiasticall Iudges are not certaine, but doe foolishly wan­der at the doubtfull will of a slie and subtill apposer: that hauing snared the sillie subiect, they doe either (a­gainst lawe) enforce him to accuse himselfe of his most secrete thoughts; or contrarie to Christian charitie, yea humanitie, constraine him to answere against his naturall parents, &c. And that in defence of these abuses, diuers euen of the learned sorte, doe great violence to the Statute, 1. Eliz. cap. 1. wresting the same to a wrong sense: all which are verie calumnious ac­cusations.

The fifth and last point of his lauish and loose speeches; concerneth the impieties, dangers and penalties, wherewith he chargeth all that haue delt in any such Ecclesiastical cause. As first, that it is a great and prophane abuse of the holie name and maiestie of God: that Gods sacred instituti­on is thereby greatlie peruerted: that it is hurtful to the Church and common weale: that it is a great indigni­tie to the Crowne: that they vsurpe conisance of pleas: that they doe no lesse-then Thorpe sometime chiefe Iustice did, who (as much as in him lay) broke the oath which the king is bound to keepe towardes the people: that they are violaters of the king, and in­iurious dealers against his Regalitie, Crowne and king­dome: nay rather laie violent handes on him, im­pugne [Page] his royall throne and scepter contrarie to the policie, Iustice, lawes, customes, and freedomes of this kingdome; yea contrarie to the lawe of God it selfe: that hereby they impugne the royall preroga­tiues vnited to the Crowne, with the breach of their owne oaths; especiallie if they haue taken the oath for the maintenance of the supremacie royall, where­of hee maketh some doubt (as it seemeth) and aduiseth them of this danger, as a Scilicet. welwiller: that it is playne extortion and wrong vnto the partie. And lastlie, that they are all offenders, and doe incurre the forfaiture of the penall lawes of Premunire.

Seeing then his wordes of this matter bee so bigge, his termes so biting, his speeches so confident and peremptorie, and his accusations so grieuous: Is there not (in defence of Iustice and of so many good and great learned men in seuerall professions) great occasion offered to haue it examined; whe­ther the force and weight of his reasons will beare out this co­pious haruest, and hote raging feuer of wordes, or whether these wordes were but vsed because matter wanted? What weight and moment his reasons are of, is not of this place par­ticularlie to discusse, but shall bee reserued to the seuerall partes of the Discourse following. And I will not striue by bare wordes to returne these of-scowrings of a fowle mouth and a defiled penne vpon him agayne; further then must needes cleaue fast to himselfe, the Authour of them: when they shall (by reason) bee wiped off from the persons charged, and so are to rebound backe, vpon their first owner.

And to giue you an inckling (in the meane time) that it is not otherwise like, then to fall out so: It shall not bee amisse, a little to consider how gingerlie sometimes hee treadeth in this matter: and how here and there himselfe [Page] minceth and qualifieth the state of the controuersie, as it were waiuing his first issue; notwithstanding all those his former high lookes and braue termes. For first he granteth, that di­uers euen of the learned sort, doe hold, and that verie confidently, (meaning hereby as I take it, sundrie professors of the Common lawe) that these proceedings which he im­pugneth, are warranted by the Statute, 1. Eliz. cap. 1. and can he (whosoeuer he be for a man) shewing no more, yet see more herein then so many of the learned sort can, that be of an other iudgement?

And though he exclaime (as yee haue heard) mightilie, that this kind of oath is contrarie, and a stranger to the lawes, Iustice, and policie of this Realme; yet in the ve­rie closing vp of his treatise, hauing sayd, that it was neuer put in vre or vse by any Ciuill magistrate of this land: by the strength of trueth is forced to adde thereunto this ex­ception: viz. but as it is corruptly crept in amongst o­ther abuses, by the sinister practises and pretenses of the Romish prelates: thereby imploying, that yet it hath bene vsed of long time by the Ciuill policie and magistrates of this Realme: noting them withall, I know not with what other abuses, as being ouerrought, which belike they also shall heare of, as his leisure will permit him, if they please him not in the meane time the better.

Likewise, going about to answere the obiection that may be made, for iustifying of this othe by the like approoued course in the Starre-chamber: he vseth these wordes as a reason of his allowance of such proceeding there: viz. The Starre-chamber requireth an answere to matter in fact, done either to the iniurie of a priuate person, or hurt to the publike State. Then (by like reason) if Iudges and Com­missioners Ecclesiasticall, shall but require this oath to answere matter in facte (as in very trueth they doe none [Page] otherwise) done to the hurt of the publike State, then is the cause in controuersie thus farre yeelded vp by him. But can he (in deed) thinke it reasonable and iust, to exact such oath for punishment of an iniurie done but to a priuate person in his temporall goods, or such like: and shall it bee in his iudge­ment vniust and vnreasonable to be exacted for discouerie and restraint of such enormities, which cannot be denied to be preiudiciall both to the state of the Church & Common weale, wherein Iudges Ecclesiasticall most vsually doe practise it? Vl­trà non desidero; habemus quasi confitentem reum.

In another place of the Treatise, he sharpely inueieth, for that the Commissioners Ecclesiasticall, minister the oath before the partie be permitted to haue the Articles. Now in his shewing of differences betwixt the proceedings by Com­missioners ecclesiasticall and the Starre-chamber, one of them is this; that the defendant there, hath the copie of the bill of Information to answere by his counsell, ere hee take his othe for the trueth of it: yet hee restraineth it thus, viz. So the Information in the Starre-chamber bee not made Oretenus: so that it must hereupon needes be yeelded that at sometime, and vpon some occasion it may bee: and therefore it is not simplie vniust, to giue the oath before the defendant haue a copie: nor for him to be debarred from coun­sell, when he answereth but interrogatories of his owne fact or knowledge. For (in deed) the defendant in the Starre-chamber is not allowed counsel, whē he answereth to Inter­rogatories, sorted into Articles, but only is allowed counsel for the maner of framing of his answere to the Bill into due forme of law: the Counseller not aduising him in the matters of fact, least happily he draw the defendant into periurie. For it were very vnreasonable, that counsell should direct him in the matter, and as it were to say vnto him: answere not this thus, though it be true; for then you are like to be grie­uouslie [Page] punished. Nay rather, as a writer in the Ciuill law aduiseth: the counsell (euen to the bill of Information) ought to tell the defendant to this effect: Si hoc modo re­spondeas, perdes quidem causam: sed si aliter quàm ve­ritas se habet, perdes animam.

Furthermore, in one place where he reprehendeth forced and constrained oaths; hee limiteth his meaning by these words, viz. in that generall maner: which is, as afore he had surmised: viz. to sift generally all a mans thoughts, words and deeds, and that without any accusation, or complaint precedent: so that it is not simply the vrging of them to take oath in a criminall cause which grieues him, or is to be condemned: but to doe it in that generall maner, for all thoughts, wordes and deeds. If then no such matter be (in very trueth) euer practised, the man (it seemeth) will easilie bee reconciled againe vnto them, whom hee so eagerlie afore snatched at, and tooke vp.

Lastly, in one part of the Treatise hee speaketh in deed a­gainst oaths in criminall causes: but it is with this taxa­tiue restraint: especiallie (saieth he) in causes of life and death, contrarie to the lawes of this realme: so that if it be not ministred in any cause of life and death, no, nor yet in any cause of mutilation of limme (as in very trueth it is not now by any court ecclesiastical, a thing most notorious) then there is no cause of offense giuen, either to the lawes of the realme, or vnto himself. And therfore for this time the Trea­tiser, and those which exercise Iurisdiction ecclesiasticall, may seeme (in some broken maner) to bee growen againe to a pretie kind of pacification; hold as wel, & as long as it shall.

But there is another partie also, that perhaps will venture to rip vp agayne the seames of this greene peace, if hee may not (in some sort) bee satisfied. For there came vnto mine handes a good while after the former Treatise, certaine briefe [Page] Notes (without discourse) that are deliuered abroad into many hands by writing; being commended to be gathered by a man of great reading, and iudgement in Diuinitie, I awe, and in what not? It beareth this title, Notes to prooue the proceeding ex Officio, and the oath and subscription which are now required, to be against the word of God, the ancient Fathers, and Canons of the Church, and the lawes, liberties, and customes of the realme of En­gland: the proceeding of Office, and the oath requi­red, though hee telleth not how he conceiues it to bee requi­red, (as the Treatiser did) doe both fall into this disputation, which we haue in hand. As for the subscription; (vpon o­ther occasion) that may hereafter elsewhere be debated. The seuerall points which (in respect of the two former) hee hand­leth, are by himselfe distributed and sorted into these seuerall heads: viz. First, testimonies out of ancient Fathers, that do mislike the proceeding ex Officio, and oath now vsed: Secondly, English Martyrs that haue refused and misliked the oath now vsed: Thirdly, the proceeding against heretikes in Englād, without exacting an oath &c: Fourthlie, the Canon lawe teaching Inquisition and proceeding ex officio by oath. Fiftly, another order of proceeding, but yet in causa fidei, and not otherwise. Sixtlie, the bishops proceedings contrarie. Seuenthly, the lawes of England. Eightlie, the maner of the reuo­cation of the proceeding ex officio in king Henry the 8. time. Ninthly, the maner of debating of that cause in those dayes. 10. Sir Thomas Mores reasons for main­tenance of proceeding ex Officio & the oath, with sum­marie answeres to them. 11. And lastly, Inconuenien­ces which come by the vse ex Officio, contrary to the common lawe. For proofe of some of which (especially the first) he is so plentifull in quotation onely of places, (without [Page] rehearsing their sayings) out of the ancient Fathers, coun­sels, &c. that for mine owne part, I must confesse that vpon the first view of their names in his moster booke, I was greatly astonished, least I had too resolutelie defended a mat­ter against such an armie of ancient Fathers, and as it were against the generall consent of the olde Primitiue Church; from which I meane not (God willing) casilic or rashlie to swarue. But when I had approched neerer, I well discerned this my feare to be all in vayne, in that they had neither ban­ner displaied, nor weapons bent against this cause, but rather against the faces of the aduersaries thereof: as may plainelie appeare in the seuerall & opportune places of this simple Dis­course ensuing.

I may well resemble this dealing of the Note-gatherer vnto yong setters vp in London, as Apothecaries and such like, that be not at first well stored with stuffe: who to furnish vp their shoppes vnto the best shewe, are woont oftentimes to embellish them with good numbers of painted gallie pots, boxes and glasses, intituled on the outside (euen with golden letters sometimes) of such precious Waters, Oyles, Simples, and other drugges of medicine, which they neuer smelt of, be­cause such neuer came within them. And perhaps I should saue him from suspicion of a greater fault, (that is eyther want of iudgement, or of wilfull peruerting of the ancient Fathers) if I should freelie deliuer my conceite in this be­halfe: which is, that his leisure serued him not, to looke what was indeede contained in those places, which there hee quoteth: but that hee did set them downe (vpon trust) out of the Pies or Indices of the sayd seuerall bookes, wheresoe­uer the bare wordes of Inquisition, of Accusing, of Oath, or of Swearing was found. For I dare auowe, that hee which shal read thē in the Authors themselues, will iudge, that ma­ny of them were gathered together in condemnatiō of taking [Page] any oath at all, (an errour holden by the Anabaptists) albeit being truely vnderstood according to the circumstances, the places serue neither the one turne nor the other) rather then that by any colour, they may be wrested to speake either a­gainst oathes ministred in causes criminall, or against pro­ceeding by Iudges of Office.

Let thus much therefore (if it be not too much) suffice, to haue deliuered in some generalitie, touching the said Trea­tise and Notes. both which are vndertaken, for the whole substance of them, to be here and there answered, in this sim­ple discourse ensuing.

THE CONTENTS OF the seuerall Chapters of the First part.

  • 1 THat a seuerall royall assent is not required to the executing of euery particular Canon.
  • 2 The particular distribution of all other causes to be proued to be of Ec­clesiasticall conusance, besides Testamentarie or Matrimoniall, with a dis­course of bishops certificates against persons excommunicated, being a spe­ciall point of their voluntarie iurisdiction, where there is no partie which prosecuteth.
  • 3 That matters in the former chapter adioyned to Testamentarie & Ma­trimoniall causes (though properly they be not of Testament or Matrimony) are of Ecclesiasticall conusance, and how farre.
  • 4 Generall proofs out of statutes, that sundry other causes besides Testa­mentarie or Matrimoniall, are of Ecclesiasticall conusance.
  • 5 That suites for title of Benefices vpon voidance or spoliation: likewise that suites for tithes, oblations, mortuaries, &c. for pensions, procurations, &c. are of Ecclesiasticall iurisdiction, is prooued by statutes especially.
  • 6 That suites for right of tithes belong to the Ecclesiasticall iurisdiction, and how farre, is shewed out of the books and reports of the Common law: so of places of buriall and Churchyardes: and of pensions, mortuaries, ob­lations, &c.
  • 7 Of right to haue a Curate: and of contributions to reparations, and to other things required in Churches.
  • 8 Proofes in generall, that sundry crimes and offences are punishable by Ecclesiasticall iurisdiction: and namely idolatrie, heresie, periurie, or laesio fi­dei, and how farre the last of these is there to be corrected: also of disturbance of diuine seruice, or not frequenting of it, and neglect of the Sacraments.
  • [Page] 9 That Simony, Vsury, defamation or slander, beating of a Clerke, sacri­ledge, brawling or fighting in Church or Churchyarde, dilapidations or waste of an Ecclesiasticall liuing, and all incontinency are punishable by ec­clesiasticall authority, and how farre.
  • 10 That the matters and crimes here reckoned, be also of ecclesiasticall iurisdiction: and proofes that any subiects, lay or other, may be cited in any cause ecclesiasticall.
  • 11 That lay men may be cited and vrged to take oathes in other causes, then Testamentarie or Matrimoniall.
  • 12 The grounds of the two next former opinions examined and confuted.
  • 13 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 ecclesiasticall commissioners thereby autho­rised.
  • 14 That by the statute, her Maiestie may commit authoritie, and they may take and vse for ecclesiasticall causes, attachments, imprisonments, and fines.
  • 15 That an ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie.
  • 16 That after fortie dayes, an excommunicate person may be otherwise punished then vpon the writ De excomm. capiendo; and that the said writ may and ought to be awarded, vpon contempts rising on other causes ecclesiasti­call then any of those ten crimes that be mentioned in the stat. 5. Eliz. cap. 23.
  • 17 Of a prohibition, what it is: where it lieth not, and where it doth: and how it ceaseth by a consultation: and of the writ of Indicauit.
  • 18 An analysis or vnfolding of the two speciall statutes touching Premu­nire, with sundry questions and doubts about that matter, requiring more graue resolution.
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THE FIRST PART OF an Apologie of certeine proceedings in COVRTS ECCLESIASTICALL, wherein is chiefly shewed what matters be inci­dent to Ecclesiasticall conusance, and so allowed by Statutes, and Common law.

CHAP. I. That a seuerall royall assent is not required to the executing of euery particular Canon.

IF no Canon or Constitution Ecclesiastiall might now be put in vre, but such as her Maiesties expresse assent is first had vn­to; then do all their other opinions a­gainst the ordinarie iurisdiction ecclesi­asticall stand in no stead, and might be spared; because this would serue to cut off all at once, which they shoot at. For none that exercise ordinarie iurisdiction haue hitherto had it in particularity (which by the oppugners seemeth to be meant) otherwise then by permission of law, vnto euery of their proceedings. Neither in trueth, for the infinitie of it, and troublesomnesse to procure such assent from her Maiestie, for euery particular matter & dioecesse of this Realme (from time to time) were it possible to be vsed. Now if Ordinartes (from whom either mediately or immediately, ap­pellations do lie vnto her Maiestie in the Chancerie) by reason of the want of such particular assent, vnto the execution of euery canon, shall (according to this conceit) haue nothing to doe; then cannot the Queenes delegates neither (to whom appellations from Ordinaries doe come) haue any thing wherein to bestow their trauell: and therefore this point seemeth first of all meet to be cleared, and to be bestowed in the first ranke.

The absurdity of this opinion (whosoeuer were the hatchers of it) will easily shew it selfe. For if matters testamentary & matri­moniall (which all they grant to be ecclesiasticall) right of tithes, [Page 2] and sundry other causes (which shall be also prooued so to be) shall not, ne can not, by reason of this want, be dispatched (as now they are) by ecclesiasticall iurisdiction, and yet can not be dealt in by any other authoritie, according to any law now in force: then is there a maine imperfection in the policie of this Common weale, viz. For men to haue a right, and yet no likely or readie meane to come by it: and for grosse oftences to be com­mitted (that are by law punishable) and yet no man sufficiently authorized to execute such lawes.

The iudgement of whole Parliaments kept in seuerall Kings and Queenes reignes (since that act, whereupon this fancie see­meth to be grounded) so many as haue had cause to speake of the iurisdiction ecclesiasticall, doe also fully conuince it. The 25. H. 8. ca. 19. statute for delegates vpon appellations, doth argue, that Ordi­naries might (without further leaue obteined, as in former times they did) execute their iurisdiction ecclesiasticall. For if there were to be no more ordinarie proceedings, till the king should giue his assent to the execution of euery canon; for what vse should appellations from the decrees and iudgements of Ordinaries, be there prouided for? Likewise 27. H. 8. ca. 20. 32. H. 8. cap. 7. two statutes were not long after prouided in assistance of iurisdiction ordinary, and for the better and speedier recouerie of tithes in Courts ecclesiasticall, accor­ding to the course of the ecclesiasticall lawes in that behalfe. And the 34. & 35. H. 8. cap. 19. like was also enacted for recouerie of pensions, procu­rations &c. withholden.

In the time of K. Edward the sixt, in 1. Ed. 6. cap. 2. a statute (since repealed by queene Marie) a great number of particular causes of iuris­diction ecclesiasticall, are there (by the way) rehearsed; that Ordi­naries & other ecclesiasticall Iudges might, and did then deale in.

In the time of queene Marie (before the supremacie was gi­uen vnto the Pope) the 1. Mar. cap. 3. act for not disturbing of diuine seruice or preaching, reserueth the iurisdiction that Ordinaries then had, for punishment thereof, by lawes ecclesiasticall, ouer and aboue the penalties (of new) thereby inflicted.

In the Queenes Matesties 1. Eliz. cap. 2. time that now is; by the act for v­niformitie of Common prayer, Ordinaries &c. may enquire &c. and punish the violations of that act, by censures &c. as heeretofore hath bene vsed in like cases, by the Queenes ecclesiasticall lawes.

[Page 3] The Statute De excom. capiendo, reckoneth 5. Eliz. ca. 23. vp (particular­ly) diuers Crimes and offences Ecclesiasticall; punishable by that iurisdiction, which were hindered much from punishment that apperteined, for want of due execution of that writte De ex­com. capiendo, and therefore prouideth remedie therein. Which necessarily argueth the continuance and approbation of execu­tion of Iurisdiction Ecclesiasticall by Ordinaries, without further obteyning of leaue.

By the statute against periurie (made at the same time) 5. Eliz. cap. 9. it is prouided, that it should not extend to Courts Ecclesiasticall: but that offenders in periurie, or subornation in a Court Ecclesiastical, shall and may be punished by such vsual and ordinarie Lawes, as here­tofore haue bene, and yet are vsed and frequented, in the saide Eccle­siasticall Courts: which prooueth the vsuall practise of Iurisdiction Ecclesiasticall hitherto vsed (without any speciall assent) to be lawfull.

The statute against vsurie prouideth, 13. Eliz. cap. 4. that such vsurie as is a­boue ten pound in the hundred by yeere, shall (not withstanding the other penalties there newly inflicted) be also punished and corrected (as in times past) by the Lawes Ecclesiasticall. And by the 13. Eli. cap. 10. statute of dilapidations, the remedies that by the Lawes Ec­clesiasticall were (afore) giuen against executors and administra­tors of incumbents; are there extended also to donees and alie­nees; to be (by the same authoritie) dealt with. In the which clauses of statutes, there is no repeale of any former particular statute or Lawe, nor any generall non obstante conteined. And therefore, if those Parliaments had bene of this iudgement; that no Canon might now be put in vre, without the Royall assent first obteined, there woulde haue bene added these, or some like words, viz. They the said Ordinaries first obteining the royall assent for the putting in vre of such Canon, as they minde in that cause to proceed by: that thereby (without all scruple of danger) their pro­ceedings (so appointed to them) might haue bene warranted. But being altogether needelesse, it is no maruell though it were omitted. For can any man doubt (if it were needfull) but that there is a sufficient Royall assent had, when as it is giuen to the whole acte, before it can passe for a Lawe?

Lastly, the same statute out of 25. H. 8. ca. 19. which (as I coniecture) this [Page 4] opinion was stirred vp, doth establish all Canons which be not con­trariant nor repugnant to the Lawes, Statutes, and customes of this Realme, nor to the dammage or hurt of the Kings prerogatiue Royall, that they shall now still be vsed and executed as they were afore the making of that acte, till they should be viewed &c. by the 32. persons, &c. which is not hitherto done. But such were vsed afore, with­out any expresse or particular Royal assent (from time to time) ob­teined: and therefore may still be vsed without any such newe assent. For to exact it were (in very deed) to bring in a quite dis­use of all ordinarie Ecclesiasticall Iurisdiction in stead of vsing it: which hitherto (from planting of Christianitie) and in all succee­ding times, hath neuerthelesse bene practised.

This opinion, as an arrow shot vnaduisedly at the Bishops, glan­ceth off them, and woundeth very deadly the fauourers of the new Discipline (in whose behalfe it was framed.) for they are so farre from taking expresse leaue of the Prince, to put euery of their Constitutions ecclesiasticall in vre, that they holde, her Ma­iestie hath nothing to doe to make or establish any Church-lawes. And the clause for vse of such former Canons and Constitutions synodall afore mentioned, as they were vsed afore that time, will not helpe the exercise of their synodicall cōstitutions made long after in a Conuenticle, called together by their Moderators writ. But belike (when they set vp) the statute of submission of the Cleargie shall be turned into a statute of submitting the Princes scepter, to the rule of their Presbyterie in all Church-matters.

The chiefest colour and pretence 25. H. 8. ca. 19. for this opinion, is taken (as I coniecture) out of the now reuiued statute made in K. H. the eights time, of submission of the Cleargie. But the wordes thereof doe plainely discouer the weakenes of such collection. for it is not enacted simply, that they shall not put in vre, &c. any constitutions &c. but according to their aboue said submission and pe­tition, which was, that they would not enacte nor put in vre any new Canons, &c. in their Conuocation, without the Kings royall assent and authoritie in that behalfe. Otherwise there were a flat contrarietie in the selfe same Acte, by reason of the last prouiso thereof (next afore repeated) where Canons already made (so they haue the qualities thereby limitted) are appointed to be vsed. For it is there said, shall be now still vsed and executed as they were before [Page 5] the making of that Acte. And where in 27. H. 8. c. 15. the 27. yeere of the said King, the same submission and former Acte is repeated, there in the very body of the statute (touching not putting in vre of Ca­nons, &c.) the same modification (as afore) is retained, viz. Accor­ding to the said submission and petition of the Clergie, which concer­neth onely newe Canons. For of those that were then already made, the very selfe same prouiso (as afore is set downe) appoin­teth, that they shall still bee vsed and executed, as they were before the making of either of those Acts. Which was, without any such expresse assent (as by this opinion is enforced) and is therefore neither requisite, nor almost possible.

I haue also heard some alledge the 1. Eliz. ca. 1. clause of the statute, made for vniting of all Ecclesiasticall Iurisdiction to the Crowne; against the exercise of Iurisdiction by any Ordinaries: which (to mine vnderstanding) is a very simple collection. Belike they meane, that no Iurisdiction is vnited to the Crowne, but there must be a Commission vnder the great Seale (to warrant the execution of it) vnto him, that is to exercise it. Then must euery Stewarde of a Leete, euery Constable, and sundrie other Officers be driuen to procure like warrant for the execution of their Temporall offi­ces, for (I trust) it will not be denied by these men, but that all Temporall authoritie and Iurisdiction, is by Lawe also vnited to the Crowne.

In deede this reason would serue against either the one or the other Iurisdiction, if they were not deriued and claimed from the Crowne, but from some other authoritie immediatly; as the Po­pish Clergie did theirs from God, by the meanes and direction of the Pope. Yea euen another 8. Eliz. ca. 3. Parliament sheweth, howe farre this collection is from the minde of the makers of that Lawe. For that very clause 1. Eliz. ca. 1. (together with her Maiesties letters Patents, directed foorth for confirming and consecrating Archbishops and Bishops) is brought, in the Pre­amble thereof, as a strong proofe without scruple and ambigui­tie, that the authorities and Iurisdictions by them executed; be thereby giuen vnto them, from her Maiestie. And therefore this opinion doth remaine desti­tute of any ground of Lawe.

CHAP. II. The particular distribution of all other causes to be prooued to be of Ecclesiasticall conusance, besides Testamentarie or Matrimonial, with a discourse of Bishops certificats against persons excommu­nicate, being a speciall point of their voluntarie Iurisdiction, where there is no partie that prosecuteth.

THe next opinion, viz. That by the lawes of this Realme none Ordinary may cite any whomsoeuer, but in causes Testamentarie or Matrimoniall (though it draw deepe) yet it hath not so large a reach, nor draweth so great a compasse as the former. For this leaueth some ordinarie Iuris­diction Ecclesiasticall in these two cases; where the other (vpon the matter) sweepeth away all. But if this be simply true, then the former must needes be false. For if (by Lawe) an Ordinarie, without more a doe, may cite men in these two cases, then may some Canon, &c. (by Lawe) be put in vre, without any further Royall assent to execute the same.

But if it shall be prooued true, that (by the Law of the land) in some causes besides Testamentarie or Matrimoniall, an Ordinarie may cite: Then this opinion, that in no causes besides Testamentary or Matrimoniall, an Ordinarie may cite (being the contradictorie thereof) must needes (according to rule of reason) be prooued false. For it will not be denied by any, but in what cause soeuer an Ordinarie may lawfully deale, in that (if neede be) he may vse citation. All matters done by Bishops (who onely be immediate Ordinaries vnder her Maiestie) either belong to their order and degree, as ordeining of Ministers or Deacons, cōfirmation of chil­dren, dedication of Churches or Churchyards, or to their Iu­risdiction. Their Iurisdiction is of two sorts: the first is voluntarie, that is, when those whom they deale with, doe not stand against it: (and such for the most part, are Institutions, probate of Wils, and committing of administrations, visitations, Certificats of Bi­shops into the Q. Courts, ordeining of Reall compositions in mat­ters ecclesiasticall, &c.)

But something must here be said touching certificats of Bishops; because none so fit a place hereafter doth fal out, for this matter. A little Treatise set out in the time of King Henry the eight, and [Page 7] printed by Berthelet, cum priuilegio, (prouing that by the lawes of this Realme the B. of Rome had not, ne ought euer to haue had any supremacie here) doeth Cap. 1. thus write of these certificates. If (saith he) Excommunication, Bastardy, Bigamie, Deposition, or De­raignement of a religious person, or Diuorce, be certified by a Bishop of this Realme, it is admitted in the Kings Courtes; but the Popes cer­tificate is not admitted. And as certificates of Bishops be in these cases admitted at the common lawe, so haue sundry statutes since, authorised their Certificates duely made into the Queenes Courtes, in certaine other cases.

Neuerthelesse, I finde two cases in the said Treatise, where the Certificate of a mans excommunication from a Bishop, shall not disable the partie excommunicated from his action: as regularly excommunication doth when it is duely certified.

For first, Ibidem ca 4. if a Bishop be a partie to a suite, and doe excommunicate his aduersarie; such excommunication (though it be certified) doeth not disable his aduersary in his action.

Secondly, Ibidem. where an action of debt was brought by an executour, and an excommunication vnder a Bishops seale was pleaded against such executour; this was adiudged no good plea: because the execu­tour was not to recouer any thing to his owne vse: and for this there is alledged 14. and 21. Hen. 6. But if this were the onely ground and reason of such iudgement, then where this reason is not found true in facte: as it may often happen, if the goodes and chattels be great, the debtes and legacies small, and where the executour hath clausulam de residuis by the will, viz. all the rem­nant of the goodes and chattels bequeathed to him: it woulde seeme to me (vnder correction) that in such a different case, the lawe also should be otherwise: because much commeth to the executours owne vse in particular.

This certificate of excōmunication by Bishops of all the others is most in vse: and would be of more vse, to the great cōmoditie of her Maiestie (especially vpon the statute de excom. capiendo) and to the terrour of sundry malefactors: were it not for the chargeablenes of that course vnto Ordinaries (whom the tenth man that is certified, doeth not satisfie againe) and for the ma­nifolde abuses about the execution of that writte, committed by vnder officers: and were it not that, iura & libertates, the lawes or [Page 8] rightes, and liberties of holy Church, graunted and confirmed by the great Charter, are not so inuiolably in these dayes mainteined; as was meant by 15. Ed. 3. ca. 3. those actes of Parliament, which doe exacte othes for obseruation and defence of them.

It is a libertie peculiar to this Church of England, aboue all the Realmes in Christendome, that I reade of: that if a man stande wilfully fourtie dayes together excommunicate, and be accordingly Nota interlin. pag. Regist. 65. b. certified by the Bishop into the Chauncery, that then he is to be committed to prison, by vertue of a writ directed to the Sherife. Notwithstanding, that in one precedent (in the Re­gister) of this writ, it Regist. in breu original. pag. 68. a. is said; quòd huiusmodi breue nostrum, de gra­tia nostra procedat.

For a note in the same booke vpon the same worde (vsed in another writte) doth teache vs; that such clause is but vsed, pro ho­nore regio, etiamsiad id de iure teneatur. And it appeareth by sun­drie olde precedents of writtes there, that the graunting of this writ, is by lawe required: as where in a writ de excommunicato capiendo Reg. in br. orig. pag. 65. it is said: quòd potestas regia sacrosanctae ecclesiae in suis querelis deesse non debet. And in sundry other writtes of that kinde, it is Ibid. & pag. 66. a. & b. 68. a. & 69. b. & 65. b. affirmed to bee, secundum consuetudinem An­gliae, which is the Common lawe of this Realme. And there­fore in other precedents of the same writte, the King saith Ibid. pag. 69. a. thus: Nolumus quod libertas ecclesiastica, per nos vel ministros nostros quoscumque aliqualiter violetur. And againe, Ibidem. Iura & libertates ec­clesiasticas illaesa volentes in omnibus obseruari.

In these Certificates, the Bishops, and others, hauing in some cases authoritie to certifie (as the Chauncellour of Oxford, the Custos Spiritualitatis of a vacant See, and the Bishops Officiall, and vicar generall, ipso in remotis agente) that they make none errour; must remember to obserue these three things. First, that it be Noua nat. breu. pag. 64. f. expressed therein, that the partie against whom they doe certifie, is excommunicated maiori excommunicatione: because for the lesser excommunication (as happely for companying with an excommunicate person) a man shal not be imprisoned. Secondly, that Ibidem. it be certified, that he was by name and particu­larly so excommunicated; and not in grosse, in companie of a multitude (as was often done in elder times) or indefinitely and in generalitie, as when the BB. excommunicated all, whosoeuer [Page 9] should violate any part of the great charter. For that excommu­nication (saith Fitzherbert in that place) must growe vpon a spe­ciall suite against a man either ex officio, or by a partie, whereupon a Significauit may be grounded.

Thirdly, Reg. in bre. orig. pag 69. b. & notainterlin. pag. 65. b. (if any inferiour officer vnder the Bishop or his Archdeacon, did excommunicate the partie certified) yet must the Bishops Certificate runne, that it was done nostra autoritate ordinaria.

But that the expressing in the certificate of a particular cause of the excommunication, is at the Common lawe (of necessitie) re­quired; I cannot gather out of any place of the Register, or of Fitzherberts Natura Breuium.

It is true, that when the proceeding is vpon any of the tenne crimes mentioned 5. Eliz. ca. 23. in the statute, made for that purpose; the particular originall cause must be expressed in the certi­ficate.

Neuerthelesse, when the proceeding is vpon any other crime ef ecclesiastical conisance, orin matters testamentary, matrimonial, or for tithes &c. whether moued of office, or at the instance of the partie; therethe Common lawe (as it was afore) is reteined.

Nowe I finde precedents of these writtes in the Register, wherein no particular originall cause, but onely generall be ex­pressed; which, as in other certificates of Bishops as touching ba­stardy, &c. the Court beleeueth, without further trauerse or exa­mination. namely in sundry precedents of this kinde of writtes, is onely conteyned, Reg. in br. orig. pag. 65. a. 66. a. 69. a. that the partie was excōmunicated propter suam manifestam contumaciam: but what was the cause origi­nall of his conuenting, out of which such contumacie grewe, is not at all declared; and yet the certificates were allowed to be good in lawe.

Likewise in another precedent of the same writ, though some more particularitie be founde; yet is it left so generally, as the certaine and speciall cause cannot thereby be knowen vnto the Court, to which it is directed. For it is Ibid. pag. 65. b. certified, that a partie was excommunicated, propter suam manifestam contumaciam, in non parendo certis mandatis licitis sibi factis: but what those mandata were, is not touched.

And as these Certificates doe only in generality mention the [Page 10] parties contumacies, and disobediences: so is there also a prece­dent there, of crimes themselues certified but in a generality, whereupon a writ of excommunica [...]o capiendo, was neuerthelesse awarded. For it is Ibid. pag. 66. b. testified that a Clerke excommunicated prop­ter manifestas offensas suas, was appointed to be attached, and thereupon imprisoned.

Notwithstanding this be a speciall right and libertie of this Church of England; yet is not this writte de excommunicato ca­piendo alwayes to goe foorth, and vpon euery certificate whatso­euer of a Bishop, or of other thereunto authorised; albeit the cer­tificate be contriued into neuer so due forme. For if he Reg. in breu. orig. pag. 67. b. & in breu. Iudic. pag. 39. 71. b. & 72. [...]s. that did excommunicate, be himselfe for some supposed contempt to be attached at the suite of the partie certified: then shall the exe­cution of the attaching of the partie excommunicated be respi­ted, till the other plea of the Ordinaries attaching be determi­ned: least otherwise the parties suite against the Ordinarie should be hindered by his imprisonment. Yet it is Nou. nat. br. pag. 64. & 65. f. to be vnderstoode, that a Bishop shall haue Significauit vpon his owne certificat, tou­ching an excommunication for contumacie, incurred euen in his predecessours time.

But albeit the certificate be duely made, and the writte de ex­communicato capiendo be thereupon awarded foorth: yet if there be loose or corrupt execution thereof by the Sherife, or by his vnder officers; both the endeuour of the Bishop, and care of the Queene to haue contemptuous persons iusticed, are wholy fru­strated. Though this carelesnesse in times past were not so com­mon as nowe it is; yet it Reg. in br. orig. pag. 65. a. seemeth by the Aliâs and Pluriès in the Register, that Sherifes, and their vnder officers were then al­so slacke ynough, to perfourme this part of their duetie: howbeit it is testified by the Kings writ in this behalfe, Ibid. pag. 65. b. that the vndue execution of it, redoundeth in contemptum manifestum regis, epis­copi damnum non modicum & grauamen, ac iuris Ecclesiae suaelaesio­nem manifestam. In which regard, such a negligent Sherife is (by lawe) vpon a writ to be called into the Court, whence the writ issued; there to answere such his contempt.

The effect of the writ de excommunicato capiendo, (when he hath his due course and execution) is double. First, vpon the ve­ry certificate of the Bishop, the partie excommunicated, is to be [Page 11] debarred action in all the Queenes Courts. Yet if vpon an Nou. nat. br. pag. 65. d. ap­pellation by him made from the sentence of excommunication, he be deliuered out of prison; or haue a Supersedeas thereupon; then is he not to be barred from action in respect of such certificate, or of the sentence of excommunication. Secondly, the Reg. in br orig. pag. 65. a. & b. partie is to be imprisoned by his body. Per corpus suum secundum consue­tudinem Angliae, iusticies, donec &c. This iusticing by body ac­cording to the custome of England, is committing to prison; and that Westm. 13. Ed. 1. cap. 15. 5. Eliz. cap 23. without baile or mainprise. Nither Nou. nat. br. pag. 66. e. doth the writ de ho­mine replegiando, lie in this case. Now a man being thus in pri­son, I finde in law but two meanes of his deliuery. The first is, by submitting himselfe to the bishop. This submission may be in two sorts: either by present satisfaction, at or immediately vpon his deliuery; or by caution put in, that he will hereafter performe it. Quia vicecomes (saith a Regi. in br orig. pag. 67. a. writ in the Register) nulla inde facta satisfactione, aut praestita cautione prout moris est, de parendo man­datis ecclesiae in forma iuris, quosdam deliberauit; idcirco &c. where we also see, to what end the caution (by the party excommuni­cate) must be put in, agreeably to sundry Ibid. pag. 65. b bis 66. b. & 67. a other precedents of this writ, viz. de parendo mandatis ecclesiae, in forma iuris. Which is to performe that which the bishop shall reasonably and accor­ding to law, enioyne vnto him. For it was thought most incon­uenient, that he who had resisted the course of law, & contuma­ciously persisted in excommunication, vntill his imprisonment; should now be trusted without good security first giuen, afore his deliuery. This clause of those writs in the Register, Fitzher­bert Nou. nat. br. pag. 63. c. doth translate thus into French, viz. de estoier & obeier les ordinances & rules de seint esglise.

Vnder the clause in formaiuris, is that other part of submission conteined: which is prescribed by the law ecclesiasticall in this case of submission and of giuing caution; viz. de parendo iuri. This appeareth by that writ in the Reg in br. orig. pag. 66. b. & 67. a Register, where a clerke im­prisoned vpon the significauit offered caution to his ordinary (the bishop of Elie) de parendo iuri; but yet could not thereupon alone be deliuered, for that he expresly refused, to satisfie tam de iniuria ecclesiae illata, quàm de contemptu, as the writ required. This forme de contemptu & iniuria, is not only here, but in Reg. in br. orig. pag. 65. a. b. 68. a. other precedents also of this writ obserued, as they be recorded in the Register. [Page 12] And in another writ by words more generall, yet tending to the same purpose, viz. Ibidem 65. b. ad satisfaciendum Deo & sanctae ecclesiae suffi­cientem exposuit cautionem. To satisfie God, viz. for his continued contempt of the keies & power of his church: and to satisfie the church, aswell for the euill example and scandall giuen, as for the needlesse charges that he had put the officers vnto, to bring him to conformity. For it seemeth when a caution was put in onely thus: de parendo iuri & mandatis ecclesiae, in forma iuris: that by reason of the generall 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 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 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.

[Page 13] 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 quàm 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 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 Nou. nat. br. pag. 63. g. sayeth plaine­lie, that the bishop, or hee at whose certificate the partie was [Page 14] 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 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 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 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 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 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 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, quàm de iniuria ecclesiae illata.

If the shiriffe be too forward, so that the bishop feareth that he will deliuer the Nou. nat. br. pag. 63. & 64. h. Reg. pag. 66. b. & 67. prisoner by coulour of some writte, without ta­king such caution, as may be iudged sufficient; then may the bi­shop purchase a writ to the shiriffe, that in no case the prisoner be deliuered; except in his presence, he offer to the bishop cautionem [Page 15] saltem pignoratitiam; at the least a gage or reall caution, de sa­tiffaciendo, &c.

But if the Shiriffe shall in deede deliuer him out of prison without such sufficient caution (which in the Reg. p. 67. a. Nou. nat. br. pag. 64. b. Register is thus ex­pressed; nulla inde facta satisfactione, aut praestita cautione prout moris est, de parendo mandatis Ecclesiae, in forma iuris) then must a Writ goe foorth out of the Chancerie, for the new attaching of the prisoner; conteining also a Venire facias for the Shiriffe; that hee doe appeare and answere his contempt. For such his dealing, is there sayd to be, In laesionem libertatis ecclesiae, & con­temptum manifestum regis. Thus much touching the first meanes of deliuerance of a person excommunicated out of prison.

The other meane for deliuerance of such excommunicate person out of prison, is when hee hath appealed to a superiour ecclesiasticall Iudge, from the sentence of excommunication gi­uen against him; as vniust, or as voyde and erroneous. For if hee rest in the sentence giuen, then must hee needs submit himselfe, and offer caution, as afore is sayd. But if hee holde himselfe to bee vniustlie delt with, and therefore will not submit: then ought he not to be enlarged out of prison, but vpon Appella­tion made to the superiour Ecclesiasticall Iudge, who is the onely competent and able Iudge (in that behalfe) to deter­mine; whether hee haue bene duelie proceeded with, and right­fully excommunicated, Iuxta canonicas sanctiones, or not: as Reg. pag. 69. b. & 70. a & b. Nou. nat. br. pag. 64. c. ap­peareth by sundrie of these Writtes in the Register, and other­wise.

The reasons why such one is not to bee detained in prison that hath appealed from the sentence of excommunication, are first, because vpon the Appellation, the Iudge from whom it was made, doeth thereby cease to bee his Iudge in that cause. Secondlie, for Ibid. pag. 68. a. that the nature of an appellation is, to put the Appellant into the same state that he was in before the sentence giuen, for the doubtfulnesse that is in the meane time of the va­liditie or inualiditie of it. Thirdlie, by reason that where the pre­sence of the Iudge to whom the Appellation is made, may be had: there the partie Appellant is (for the time) vsuallie absolued and released from the excommunication. Lastlie, least by his impri­sonment hee bee hindered from the effectuall prosecution of his [Page 16] Appeale, which may happen prooue to haue bene iust.

If allegation bee made to the court in his behalfe, against whom the Writte de excommunicato capiendo, is awarded and gone foorth, that he hath appealed: and yet it doe not authenti­callie so appeare by publike instrument there shewed; yea (for the most part) euen where such publike instrument hath bene shewed: a Reg. 69. b. 70. a. & b. Nou. nat. br. pag. 65. b. c. Writte of Scire fasias first goeth foorth to the Shi­riffe, that he doe Reg. pag. 70. b. warne the Bishop, and him who did prosecute the partie imprisoned; to come into the court, and there to shew cause why the Shiriffe should not surcease from attaching him, or deliuer him if he be afore in prison, whiles the matter of the Appellation dependeth. In the same Writ also (for the most part) is conteined, that the partie (if hee bee taken) either shall bee brought Reg. pag. 69. & 70. Nou. nat. br. pag. 65. c. vp into the Chancerie, vnder sure and safe gard, or else shall find sufficient mainpernors that shall vndertake for him bo­die for bodie, for his personall apparance in court at the day pre­fixed; also that he shall prosecute his Appeale, and that hee shall receiue and endure what the court shall thinke good to order him vnto; yea Reg. pag. 70. b. that his mainpernours shall safely euen redeli­uer him againe to the prison where he was; if it shal happen that the court shall so order it.

Now if the Bishop, when the proceeding was of Office, or the partie at whose instance it was; doe Reg. pag. 70. a. not come vpon the Scire fa­cias serued at the day prefixed, or at furthest quarto die pòst, (vnto which day the custome of the Chancerie is to continue the Pro­cesse) thē is the partie to be deliuered out of prison; so that it doe first appeare by publike instrument that he hath in deed appealed.

But if the Bishop Reg. pag. 70. b. Nat. br. pag. 65. e. and hee that prosecuted, either by them­selues or by their Attorney, doe come at the day prefixed; and hee that was imprisoned or his mainepernours doe not come: then a Writ for the reattachment of the excommunicated per­son goeth foorth to imprison him; vntill hee satisfie tam de con­temptu, quàm de iniuria ecclesiae illata. And likewise an Attach­ment for his mainpernours, to be brought into the court to sa­tisfie the King, the Bishop, and him that prosecuted; and to re­ceiue what the court shall further consider. And this course of Scire facias before the partie be deliuered, doth seeme chieflie to be obserued; when there may be doubt made, that some cause [Page 17] may be alleaged (by those who haue interest) why hee should not be deliuered.

If no such doubt may be made, and when by very Nou. nat. br. pag. 64. e. authenti­call publike instruments (shewed foorth in court) his appellation e­uidently appeareth; there sometimes without any Scire facias first awarded, a Supersedeas is directed foorth vnto the Shiriffe. Ibid. & Nota interlin. in Reg. pag. 68. b. Neuerthelesse (in this case) the partie must within the yeere of his Appeale, by witnesses or othe; prooue his diligence in prose­cuting his Appeale with effect.

For there are precedents of such Writs in the Register, where no Scire facias before the Supersedeas went foorth, for any thing that there appeareth, viz. Quia C. appellauit A. Reg. pag. 68. a. & 69. a. & b. Nou. nat. br. pag. 64. e. sententia excom­municationis tanquam ab iniqua, & prosequitur appellationem cum effectu, proutper instrumenta publica apparet: nos nolentes quòd prae­fato C. per praedictum breue nostrum via praecludatur, quominus dictae appellationis suae negotium prosequi possit in forma iuris, &c. maximè cùm appellantium status debet esse integer, ideo pendente appellatione supersedeas, &c. And thus farre of the second means of deliuering an excommunicated person out of prison. But mo or other means then these two, (for my part) I haue not hitherto found mentio­ned in any Statute, or any report of the Common lawe; though I haue carefully sought for them.

Now I will resume againe (after this long, but I trust not vn­necessarie digression) the second member of ecclesiasticall Iuris­diction; called contentiosa Iurisdictio. That is, when such matters be handled; against which some partie standeth, or is delt with thereby against his will. If it be contentiosae iurisdictionis, whether it be for a right there demandable and determinable, or else for a crime there punishable, (which are the heads of all litigious Iuris­diction ecclesiasticall) it cannot be intended, that parsrea, is contra quem res agitur, the partie to be delt against, will gratis without processe appeare, & frō time to time attend: except it happē som­times by collusion w t the plaintife. And in this respect (amōgst o­thers) it is said, that iudiciū redditur in inuitū: & Reus is called pars fugiens, the partie presumed to come thither against his will, and willing inough to be gone if he might. Therfore if any cause, be­sides those two, shall be proued such, as the Ordinarie may law­fully deale in; it wil folow, that in such a matter also he may vse a [Page 18] citation to call him. Dato enim principali, necessaria adiacentia ve­niunt in consequentiam.

But that an Ordinarie may deale in sundrie other causes be­sides these two, it shall appeare both by Statutes (which are the iudgements of the whole Realme) and by the iudgements and vncontrolled opinions reported in the bookes of the Common lawe.

In discourse whereof will appeare not onely Aristot. in lib. poste:. Analyt. [...], that the matter is so, but also [...], the reason why, and in what maner and sort it is determinable or punishable there: being three principall questions to be opened, for the perfect knowledge of anything that is to be handled: and seruing in these controuer­sies, to some further vse and profite, which may lighten you in the length of the disputation.

Pursuing therefore the two former heads of that part of Ec­clesiasticall Iurisdiction: first the matters by litigious Iurisdiction demandable and determinable, are either such as are yeelded to be meere Ecclesiasticall (by the authors of this opinion) viz. Testa­mentarie and Matrimoniall: to the first whereof (for affinitie sake) I adde last Wils, (such as may not be termed Testaments,) Codicils, Legacies, Administrations, & Sequestrations of the deads goods, (commonly called letters ad colligendum:) and to the later, I ioyne diuorces, iactitation of Matrimonie, questions of legitimation or bastardie, for restitution of a mans wife taken a­way, that a man shall receiue his wife againe, and suites for goods or chattels promised with a woman in mariage: or else they are such others (claimed to bee Ecclesiasticall) as remaine still (by this opinion) in controuersie. All which (I thinke) may bee comprehended vnder the generall terme of reliqua iura Eccle­siastica.

And these are either some duetie arising at first vpon exer­cise of voluntarie Iurisdiction, and yet by deniall made litigious: & such be reall compositions sought by some partie to be disanul­led, procurations, pensions, Synodals, Pentecostals, indemnities, fees for probates, &c. or growing due only vpō exercise of litigious Iurisdi­ction: & these are either due to the Iudge himselfe (as fees of citati­ons, fees of sentences, &c.) or are due to others attendants in the Court, (as fees of Aduocats, Proctors, Registers, Apparitors, &c.) [Page 19] or else they are such as are due to Ministers in the Church, that haue no title, as wages for a Curate, or a Clerke, or vnto a Minister, that hath title. And this right of a Minister that hath title, tou­cheth either something incident to him, as to name the Parish Clerke: or concerneth the whole title and interest in and to his benefice, or else toucheth but his maintenance and liuing. His in­terest and title tendeth either to attaine it when he pretendeth iust title to it, or to reteine it being in his possession, or else to reco­uer it being bereaued or spoiled of it.

The dueties which concerne Ministers maintenance, are tithes of all kindes, Oblations, Obuentions, Pensions, Mortuaries, Churchyard or place of buriall, &c. Or lastly, it is something, that is due to a whole Parish, as to haue a Chapleine found, or diuine seruice, or Sacraments administred amongst them, or something due to their Church to be deliuered, or for a Parishioner to be contributo­rie with the rest to reparations of the Church, to seates, to bels, to the buying of bookes, of Vtensiles, or of other ornaments, and requisites in the Church.

Concerning crimes & offences claimed to be punishable by Iu­risdiction Ecclesiasticall: they may al (I thinke) be reduced to some of the three heads, touched by S. Paul: viz. as being contrary ei­ther to Pietie vnto God, to Iustice towards our neighbour, or Sobrietie towards our selues. That which is against God; the Latinists cal by the name of Impietas; that which is against a mās neighbour, they terme Facinus; and that which a man designeth against himselfe, Flagitium. albeit the two last be often confounded, without any curious obseruation of such proprietie of wordes.

Against Pietie to God-wardes, are these: blsasphemie, swearing, idolatrie, heresie, errour in faith, schisme, apostacie from Christianitie, not frequenting publike prayer, neglect of the Sacraments, periurie in an Ecclesiasticall Court or matter, disturbance of diuine seruice, vto­lating and prophaning the Sabboth, and such like. Contrary to Iu­stice are these: Simonie, vsurie, diffamation, subornation of periurie in a Court Ecclesiasticall: violence to a Minister, sacrilege, dilapida­tions, not building of a Church enioyned by atestatour; not fencing the Church-yard; not repairing a Church or Chauncell, or not keeping of it in comely sort; or when a Church-warden refuseth to yeelde an ac­count of the Church stocke, & goodes; & violating of a sequestration [Page 20] made for tithes not paide; hindering to gather or carry tithes; money promised for redeeming corporall penance, and detained; contempt to the ecclesiasticall iurisdiction, fighting or brawling in Church or Churchyard, and such like. And against Sobrietie are these: all Incontinencie (not made death by the lawe of the Realme) whe­ther committed with one which is of his kindred in blood, for­bidden either in generalitie, or by some of the degrees Leuitical, or with one of his alliance so forbidden, both which are called incest: or committed by such whereof the one is married, which is adulterie: or where the one of them hath bin maried, termed by some stuprum: or where both be single, termed simplex forni­catio: or whether it be marying of two wines, or being maried vnto two husbandes at once, which is called Polygamie: Sollicitation of a womans chastitte, drunkennesse, filthie speeche, and such others.

There be also certaine punishments and censures (besides these) which I thinke will be yeelded to be matters of ecclesiasti­call iurisdiction, as enioyning of penance; suspension from entrance into the Church, or from the Lordes supper, or from execution of a ministers office, or from his benefice; sequestration of a bene­fice; interdiction of some place, from hauing seruice or sacra­ments there administred; interdiction of some certaine acte, (as not to marry, whiles a suite matrimoniall dependeth) and excom­munication, the lesse and the greater.

I doe also finde in writers of the Ciuil and Ecclesiasticall lawes, certeine offences affirmed to be of ecclesiasticall conusance: which may seeme (euen in this Realme) to be such, albeit I doe not ex­presly reade them to be so accounted, in statutes or reportes of the Common lawes. As for violation or perturbation of liberties ec­clesiasticall: for admitting of excommunicated persons, vnto Quaere of these two first named: & see for the first Lyndwood e. oecernae. de poenis. verbo regis An­gliae. action or testimonie in a temporall Court: forging of letters and matters ecclesiasticall, as testimonials for ordeining &c. or vsing and putting them in practice wittingly: burying excommuni­cate persons, or notorious heretikes in the vsuall places of good Christians: abbettours and voluntary company keepers with persons excom­municate: and diggers vp of corpses buried.

CHAP. III. That matters in the former Chapter adioyned to testamentarie and matrimoniall causes (though properly they be not of testament or matrimonie) are of ecclesiasticall conusance, and howe farre.

TOuching such as I haue adioyned for necere­nesse of qualitie, vnto matters testamentarie: First a mans last will, (whereby legacies be gi­uen, but none is therein made executour) can­not be called a testament. The like is to be said of a codicill: and a legacie though it be giuen by testament, yet may it also be giuen by such a last will, and can (in neither case) be properly called a matter testamentary, be­cause it is but Delibatio haereditatis, or successio particularis. And by suite for a legacie, neither the testament commeth directly and principally to be proued, nor yet to be impugned. But much lesse may administrations and letters ad colligendum, be properly accounted matters testamentarie, because they are committed, when a man dieth intestate, or per viam intestati. Besides that, the course of graunting administrations was not at the common law, but came in by statute, long after this writte of Prohibition 31. Ed. 3. cap. 11. (whence this controuersie springeth) is pretended to haue beene framed.

As for diuorce (which by like reason I ioyned with matters of matrimonie) because it tendeth to the ouerthrowe and dissolu­tion of marriage; it cannot be termed (properly) a matter of ma­trimonie: (though no man can be diuorced but he which hath beene married) no more then blindnesse may be called seeing, for that nothing can truely and properly be said to be blind, but such as either once did see, or by nature of the thing, should haue eyes: Priuatio enins praesupponit habitum. This appeareth also by 24. H. 8. ca. 12. a statute; where diuorce is contrediuided and reckoned as a di­uers suite from a cause of matrimonie.

Likewise iactitation of marriage, because it tendeth (by the in­tention of him that bringeth the suite) to be cleered of a matri­monie or contract matrimoniall, that is pretended by the other par­tie; it can no more properly then the former, be called a matter of matrimonie. As for goods or chattels that are promised with a womā [Page 22] in marriage, who seeth not, that it is a meere circumstance, no­thing touching the validitie or inualiditie of a matrimonie? yet neuerthelesse (I take it) no man is so wedded to his opinion, that he will deny the conisance of these matters to belong to the Ecclesiastiall iurisdiction, aswell as causes properly termed testa­mentary or matrimoniall.

But I purpose to make the matter a litle more plaine, and withall to shewe, aswell when and howe some matters testa­mentary themselues, as the rest annexed to testamentary or matri­monial causes (which I finde touched in the lawes of the realme) doe belong to the conisance of an ecclesiasticall Court, & when and howe vnto a temporall Court; beginning first with testa­ments. M. 2. H. 3. Fitz. testa. 4. These are to be proued before Ordinaries, sauing in certaine places, where the lord in his temporall Court (by custome) prooues the testaments of his tenants.

The Canon lawe doeth not permit an Ecclesiasticall person to declare his will, and to dispose of such goodes as he hath gotten by reason of his ecclesiasticall promotions as he liste: but they must be left to that Church, by which he gotte them. But Treatise of Const. prou. & legatine, printed by Thomas God­frey tempore H. 8. cap. 13. the lawe of this Realme is, that Clerkes may make their willes as liberally and freely, as any Lay man may: and that though they haue them, for their spirituall ministration. And therefore by reason of this con­tradiction and repugnancie to the Common lawe, such Canons are here of no force, nor in practice.

Touching executours, it is sometimes to be determined by the Common lawe, in what cases, and who may be made an execu­tour: for a T. 12. H. 7. sol. 22. woman (by the Common lawe) may make her husband executour of such things whereof she was executour to another before, or of a duetie due vnto her before co [...]erture, or of rent being behinde, vpon a lease made vnto her for terme of life, or of a lease, or of any thing whereof the possession must be attained by action: but she cannot make him executour of that which she hath in possession. for by the very entermariage, the propertie is in her husband: albeit, by the Spi­rituall law, aswell in the one case as in the other, she may make her hus­band executour: which (saith Tremayle and Frowicke) whether it be their law or no, is not to be disputed by the Common law, because we are ignorant, and cannot iudge what is their lawe.

And if a man T. 12. H. 7. be cōdemned in costs in a court ecclesiastical, & after [Page 23] die, making an executour (by the opinion of King smell) it is as good reason to sue the executour in a spirituall cause, according to the Spi­rituall Lawe, as to sue him for a temporall matter in the Temporall Lawe. Else (saith he) when an amends is adiudged in a Spirituall court, and the partie dieth, the ether shoulde be without remedy, which were no reason: and none did gainsay it. But a H. 6. H. 3. re­ferente Fitzh. tit. prohib. 17. man may not sue an executour in a Spirituall Court, for the testators debt: albeit if the testator enioyne the executor to pay the debt to him, hee may then sue for it in Court Spirituall, because of the iniunction and promise. And this sheweth how an Executor may be sued or not sued in an Ec­clesiasticall Court.

Now an Executor may sue another in a Spirituall Court tou­ching his testatours goods, in this case, viz. If a T. 4. H. 3 re­ferente Fitzh. tit. prohib. nu. man deuise or bequeath corne growing, or goods, vnto one, and a stranger will not suf­fer the executor to performe the testament for this legacie, he shall sue the stranger for it, in a Spirituall Court. But if a man take from the executors, goods bequeathed: for this, the executor must vse his action of trespasse, and not sue in the Spirituall Court: for 2. R. 3. 17. executours can not sue for the goods of their testatour in a Court Ecclesiasticall, but at the Common Lawe. If T. 18. Ed. 2. testa. 6. a testament beare date at Cane in Nor­mandie, and be prooued in England, the executour may vpon such te­stament haue action.

Of legacies or deuises it will be sufficient to touch a few points. In the books of the Common Law it is set downe, that they 37. H. 6. pag. 9. shalbe recouered in a Spirituall Court, and not in a Court Temporall. There­fore H. 8. H. 3. ex Fitzh. tit. pro­hib. 19. if a termor of certaine land bequeath his croppe, and die, the Spirituall Court shall hold plea thereof. Likewise, 46. E. 3. fol. 32. where one sued in Court Christian, for goods deuised by testament, which another clai­med by deede of gift, and thereupon brought a prohibition, and shewed the deed of gift, and alledged withall, that the defendant was neither executor nor administrator: yet because it was by name of a legacie, it was adiudged to belong to the Spiritual court, by which it was to be de­termined, and the circumstances to be tried, whether the deuise were good or not. And in respect, a man hath such action against the executor for a legacie before the Ecclesiasticall Iudge, therefore the M. 20. E. 4. 9. legatarie or deuisee may not of his owne head, take the goods or chattels deuised to himselfe, out of the possession of the executour. And for this also especially, because T. 2. H. 6. 15. the Lawe doeth not binde [Page 24] that the legacies shall be assigned, payed, or deliuered, untill the debts of the testatour be satisfied and payed: But because Bracton. lib. 5. cap. 16. a franke tene­ment or inheritance deuised, is not demaundable in an Ecclesiasticall Court, but in the Temporall: therefore the Perkins tit. deuises. legatarie (according to the deuise) without further assignment or deliuerie, may enter into them, after the death of the testatour.

If a man Reg. in br. orig. pag. 48. b. by his testament do bequeath goods to the fabricke of a Church: for this legacie the executors may be sued in court Ecclesiasticall. Also, if Liberties of the Clergie, by the Lawes of the Realme, by Iohn Gooddall. Prin­ted by Rob. Wier, tempore Hen. 8. wardship or chattels reall (as a lease) be be­queathed by will; a man may sue for them in the Court Ecclesiasti­call, but not so for lands deuised.

If a Ibidem. testatour by his testament doth charge his executors to pay his debts: the creditours (in respect of such charge) may sue for them in the Court Ecclesiasticall. When a Ibidem. man (as I doe interprete it, being executour or legatary, and so enioyned by will) doth refuse to collate or erect a Grammer Schoole, and is therefore sued in a Court Ecclesiasticall, if he purchase a prohibition: the other partie shall haue a consultation.

Touching committing of administrations, by the very statute whereby they were established it is enacted, that 31. Ed. 3. ca. 11. where a man dieth intestate, the Ordinaries shall depute the next and most lawfull friends of the dead person intestate, to administer his goods: which de­puties, as they haue action against others in the Kings Court, for to re­couer the debts owing to the dead, so in that Court there lieth action against them, for such as the dead did owe: but they are made accoun­table to the Ordinaries, as executours be, in the case of testament &c. And 36. H. 6. 31. referente Perk. tit. testa. when such letters of administration be shewed vnder the Ordi­naries seale, or when a testament is so shewed, a man hath no direct trauerse against it, in the Temporall Court.

That to sequester the goods of an intestate, cōmonly called let­ters ad colligendum, belongeth to the Ordinary, appeareth by this case: If an 7. H. 4. 18. Ordinary sequester the goods of an intestate to another man, and a third disturbeth, here the Ordinary hath an action of tres­passe at the Common law, though the sequestration be a spiritual acte, because he had possession: yet he cannot haue an action of debt, albeit actions of debt in this case runne against him. But if the Ordinary do sequester the goods (ex officio, or for any contumacie) which giueth no possession to him, there the Spirituall Court shall haue iurisdiction.

[Page 25] That diuorces are of Spirituall iurisdiction, is apparant by ma­ny bookes at the Common Lawe, needlesse to be rehearsed: but whereas prohibition 12. H. 7. 24. lay in Corbets case vpon a suite brought in the Spiritual court, to repeale a diuorce, and cōsequently to make the issue of the second wife bastards, whereupon no Consultation would be graunted (which may therefore seeme to make this point doubtful) it was not, for that the Court Ecclesiasticall might not hold plea of diuorces: but the prohibition lay, because the title and discent were comprised in the libell: and this was agreed to be the cause, by the Court: and so it is Brooke tit. prohib. nu. 9. reported by Brooke. And if a man giue goods in T. 13. H. 3. re­ferente Fitzh. tit. Prohib. nu. 21. mariage with a woman vnto the husband, if they be afterward diuorced, it was holden, that the woman diuorced may wel sue for those goods in Court Christian. But if any further doubt should (herein) vpon the former case of Corbet remaine: That statute which 24. H. 8. ca. 12. affirmeth, that diuorces (by appellation) were caried forth of this Realme vnto Rome, like as other causes Ecclesiasticall of testament, of matrimonie, of right of tithes, oblations, and obuentions, and appointeth how delegates (vpon such appellations made) shall determine them all within the Realme, doth put it cleare out of doubt.

Likewise where it is affirmed by a farre elder statute, that Ordi­naries are 18. Ed. 3. pro Clero cap. 2. both to certifie and trie of bastardie and bigamie, which (for the most part) cannot be done, without the conusance of di­uorces, whereupon the former (especially) doth depend.

As for Regist. in bre. iudicialibus. pag. 5. a. & 26. a. questions touching Bastardie or Legitimation of any, it appeareth that at the Common Lawe, they do belong to a court Ecclesiastical; and vpon a writ, are to be certified into the Queenes Courts, by the Bishop. If Regist. in bre. iudic. pag. 53. 2. a man be spoyled of the possession of his wife: so farre forth as the Action doth but extend to be resto­red to her possession; it must be handled in a Court Ecclesiasti­call: notwithstanding ( Goodall, of the liberties of the Clergie, by the Lawes of the Realme. sayeth Gooddall in the Booke afore­saide) that a man for his wife onely, may haue Action of trespasse at the Common Lawe; and also a writte, de vxore abducta cum bo­nis viri.

Also for a man that liueth asunder from his wife, there lyeth Action in a Court Ecclesiastical, for him to receiue her againe and to cohabite with her; as may be gathered by 13. Ed. 1. c. 34. that statute of Westminster the second; where it is prouided; that a woman eloped [Page 26] from her husband, shall loose her dower: except the husband (without compulsion Ecclesiasticall) doe receiue her againe. Therefore for a man to receiue his wife againe, compulsion Eccles. may (in some case) be vsed, with allowance of the statutes of this Realme.

Lastly, it remaineth to shew here when, and howe, goods and chattels promised with a woman in marriage (after the marriage ac­complished) be demandable and determinable in the Court Ec­clesiasticall. For besides one or two cases afore rehearsed, where (by the way) so much is implied, it appeareth by many conso­nant iudgements in the very point. For if a 22. Assisatum fol. 70. per Thorpe cui con­cordat M 16. H. 3. per Fitzh. proh. 22. contract be made be­tweene two men, that if the one will take to wife the others daughter, then he will giue him tenne pounds: In this case, if the money be to be demaunded, it shall be demaunded in the kings Court: because hee did not promise the money with his daughter in mariage, but by way of co­uenant, that he should marry his daughter. But if he had promised the money with his daughter in marriage, then it shoulde haue bene de­maunded in Court Christian.

Likewise 14. Ed. 4. 6. in an action of debt, the plaintife declared, that he had married the daughter of the defendant, and that he should haue twen­tie pounds in respect thereof: and by agreement of all the Iustices of the Common Plees, without any answere of the defendant, it was de­creed that the plaintife should haue nothing vpon his writ, because it is determinable in a Court Christian, and is of the same nature, as the very marriage is. So doth Reg. fol. 46. & 48. per Brooke tit. prohib. Brooke also collect out of the Register, that for marriage money and pensions, the suite lieth in the Spirituall Court: and agreeable to the former distinction of Thorpe, Fitz­herbert Fitzh. no. na. br. tit. proh. fol. also reporteth it in his Nouanatura breuium. Bracton in like maner affirmeth it, Bracton. lib. 5. cap. 16. and yeeldeth a reason thereof: for hee (speaking of Ecclesiasticall iurisdiction) saith thus: Sic de rebus datis vel promissis ob causam matrimonij principaliter: & sic de rebus quae accidunt matrimonio, vt sipe cunia promissa fuerit ob causam ma­trimonij: quia eiusdem iuris, id est iurisdictionis, esse debet accessori­um, cuius est principale. And albeit Brooke Brooke t. t. iutisdict. in his abridgement report, that the same was also else-where holden by 17. E. 4. fol. 4. three, viz. Chocke, Townesend and Littleton: yet hee himselfe seemeth to doubt of it, and saith there is also great 37. H. 6. fol. 9. opinions against it, be­cause there is quid pro quo, and therefore likely to be determina­ble in a Temporall Court.

[Page 27] Therefore it may probably bee thought that these opinions which hee speaketh of in this behalfe 37. Hen. 6. either were meant in such a case, as grewe to a lay contract, such as Thorpe speaketh of in the booke of Assises (afore alleaged) or else there was some couenant for the money, by deede. For 45. E. 3. fol. 24. per Br, iuris­dict. 11. in an Acti­on of debt brought vpon a couenant by deed, that if the plaintife should marry the defendants daughter, the defendant should giue him an hundred pounds, which condition of marriage the plaintife had per­formed: it was adiudged, that (notwithstanding Articuli Cleri) the matter did belong to the Temporall Court, because it was by deede: but it had not belonged to it, but to the Court Ecclesiasticall, if it had bene without deede.

And the rather may it be thought, because this hath bene ta­ken for Lawe both afore and since; notwithstanding those opi­nions mentioned by Brooke.

First in the Reg. in Br. orig. pag. 46. b. Register wee finde to this effect, a certaine wo­man in consideration of Matrimonie to be contracted with her daughter promised 40. marks: the Matrimonie was accordingly celebrated: the woman dieth, making executours. Then for not paiment thereof the husband bringeth his Action in the Court Ecclesiasticall: the executours obteine a prohibition: whereupon, the matter comming to scanning; a Consultation is neuerthelesse graunted; whereby is affirmed, that the Ecclesiasticall Court may lawfully proceede therein.

Yea, and long after these opinions deliuered, Fitzherbert af­firmeth, that such suite belongeth to the Court Ecclesiasticall, as hath bene alleadged. And so doth the little Treatise of the liber­ties of the Clergie, by the Lawes of the Realme, in these Goodall, of the liberties of the Clergie. wordes, viz. If he that promised money with his daughter in marriage, dieth: hee that married her, may sue the executours for the money, in the Spirituall Courts. There is in the saide little Treatise, another case touched & affirmed to be of Ecclesiasticall conisance; which belongeth to this Chapter. It is Ibidem. this: If a man (saith hee) giue goods with his daughter in marriage, and after there is a Diuorce: the same may sue for those goods in Ecclesiasticall Court. But hee sheweth not whether vpon any Diuorce whatsoeuer, the goods be there recouerable, viz. whether, aswell when the Diuorce a­rose of the womans adulterie; as when it grew vpon some con­sanguinitie [Page 28] or other Canonicall impediment, founde out after mariage. Hitherto concerning those kindes of Iurisdiction Ec­clesiasticall, which I adioyned to causes Testamentarie and Ma­trimoniall.

CHAP. IIII. Generall proofes out of Statutes, that sundry other causes besides Testamentarie or Matrimonial, are of Ecclesiastical conusance.

BEfore I proceed further to shewe (in parti­cular) what matters besides be of Ecclesi­asticall conisance and Iurisdiction, and how farre; I holde it nothing amisse to shew (in some generalitie) first; that there are some other such, which be neither Testamentarie nor Matrimoniall, nor yet any way depen­ding, or of affinitie to them. The Great Charter (to the obser­uation and propugnation whereof, the King and the great No­bles and Officers were wont to be sworne) layeth this ground­worke of all which followeth: We haue granted to God, and by this our present Mag. Chart. cap. 1. Charter confirmed, for vs and our heires for euermore; that the Church of England shalbe free, and shall haue all her whole rights and liberties inuiolable. But that the Church had these rights and liberties then, (which are now claimed) the Actes of Courtes Ecclesiastical in those and former times, and in all succee­ding ages, (without prohibition, or other oppugnation,) with the statutes and reports, (some whereof were made not long after) and so from time to time downeward (till these late challenges) doe make it very manifest.

It is prouided by Statute; that 24. Edw. 1. stat. de consultatione. the Chancellor or chiefe Iusti­cer of the King, vpon sight of the libell whereupon any prohibition is brought (if the case cannot be redressed by any Writte out of the Chancerie, but that the Spirituall Court ought to determine the mat­ter) shall write to the Iudges (where the cause was first mooued) to proceede; the prohibition directed, notwithstanding. So that, where­in soeuer (by custome and liberties of Holy Church) Iudges Ec­clesiasticall were wont to proceede; if no Writ lie thereupon in Chancerie, they may still holde plea, and take conusance.

[Page 29] Also in the conclusion of the Statute of Articuli Artic. Cleri. 9. Ed. 2. ca. 16. Cleri, where sundry matters besides Testamentarie and Matrimoniall are mentioned, it is thus enacted: that the Prelates, Clergie, and their successours, shall vse, execute, and practise for euermore, the Iurisdi­ction of the Church, in the premisses; after the tenor of the answeres aforesaid, without quarell, inquieting, or vexation of our heires, or any of our Officers, whatsoeuer they be.

Likewise it is by Parliament 15. Ed. 3. ca. 6. accorded, that the Ministers of holy Church, for money taken for redemption of corporall penance, nor for proofe and account of Testaments, or for trauaile taken about the same, nor for solemnitie of marriage, nor for other things touching the Iurisdiction of the Church, shall not be empeached nor arrested, nor driuen to make answere before the Kings Iustices, nor other Mi­nisters: and thereupon shall haue Writs in the Chancerie, when they will demaund. Where we finde, that other things besides Commu­tations, matters Testamentarie and Matrimoniall, doe belong to the Iurisdiction of the Church.

And to like effect after, in the same Kings dayes: 18. Edw. 3. pro Clero. c 6. Commissi­ons to enquire of Iudges of Holy Church, whether they made iust Pro­ces or excessiue, in causes Testamentarie and others, which notoriously pertaine to the conisance of Holy Church, were from thencefoorth forbidden. Therefore, these Statutes being still in force, if Iudges Ecclesiasticall shall be found but to deale as they ought, in mat­ters appertaining meerely to Iurisdiction Ecclesiasticall; how the vexations, impeachments, driuings to answere, and strange en­quiries against them, (vsed in some places) may be iustified by Lawe; is worthie the consideration of those, that are, or shall be procurers therein.

In a statute of King 1. Ric. 2. ca 13. Richard the second, mention is made, that the pursuites for Tithes, and for some other causes, of right ought, and of olde times were wont, to pertaine to the Spirituall Court. In a Statute of King Henrie the eight it is 24. H. 8. c. 12. in the praeamb. testified, that both the au­thorities and Iurisdictions Spirituall and Temporall, doe conioyne together in the due administration of Iustice, the one to helpe the other: And that the Lawes Temporall are for triall of propertie of landes, and goods, and for the conseruation of the people of this Realme in vnitie and peace, without rauin and spoyle. And in [Page 30] the bodie of the Statute are particularly named and reckoned for Ecclesiasticall, (besides causes Testamentarie and Matrimo­niall,) these, viz. diuorces, right of tythes, oblations, and obuentions, of which it is affirmed, that the knowledge of these causes by the goodnesse of Princes of this Realme, and by the Lawes and customes of the same, appertaineth to the Spirituall Iurisdiction of this Realme. And because by that Statute, remedie was onely prouided, that appellations in those aforesaide cases should not be prosecuted out of the Realme: (there being also many other causes of Iuris­diction Ecclesiasticall, wherein a like remedie was conuenient to be had) therefore the next yeere after it was enacted, that 25. H. 8. c. 19. all ma­ner of appeales, of what nature or condition soeuer they bee, or what cause or matter soeuer they concerne, shall bee made and had by the parties grieued, &c. after such maner, as is limitted for causes of ap­peales, in matters Testamentarie, Matrimoniall, tythes, &c. in the said former statute mentioned.

In a Statute of King 1. Ed. 6. c. 2. Edward the 6. (besides matters of volun­tarie Iurisdiction Ecclesiasticall, as collations, presentations, Insti­tutions, inductions, letters of orders and dimissories) are reckoned in generall as Ecclesiasticall, all suites and causes of instance betwixt partie and partie, and all causes of correction: And in particular, all causes of bastardie, or bigamie, and enquirie De Iure patronatus: besides matters of Testament, of administration, or of accounts vpon them. And 5. Eliz. c. 23. in one Statute in her Maiesties reigne, are reckoned in particular (as the more grieuous sort of matters of correction in Ecclesiasticall Courtes) heresie, refusing to haue a childe bapti­zed, or to receiue the holy Communion, or to come to diuine seruice, errour in matters of religion or doctrine now receiued, incontinencie, vsurie, Simonie, periurie in the ecclesiasticall Court, and Idola­trie. And therefore Iudges Ecclesiasticall may lawfully cite men, in certaine other causes, besides Testa­mentarie or Matrimoniall: and ought not (eonomine tantùm) to be vexed, vn­quieted, impeached, driuen to answere, or arrested.

CHAP. V. That suites for title of Benefices vpon Voidance or Spoliation: like­wise that suites for tythes, Oblations, Mortuaries, &c. for Pensi­ons, Procurations, &c. are of Ecclesiasticall Iurisdiction, is proo­ued by statutes.

MAtters and suites for the title of Benefices ecclesiastical (so they touch not the trial of the patronage) do belong also to the knowledge and iurisdiction of a court ecclesiastical, by the lawes of the Realme. For conisance of voidāce of benefices, 25. Ed. 3. pro Clero. ca. 8. and the discussing thereof, de iu­re doe belong to Iudges of holy Church, and not to the Lay Iudge.

The Common Treatise of con­stitu. Prou. & Le­gatine. ca. 9. prin­ted by Tho. God­frey. tempore H. 8 lawe doth mention fiue causes of auoidance of a be­nefice, viz. death, resignation, depriuation, creation, and cession. But whether it may be deemed void in law, vpō any of the last foure meanes of auoidance: is by the law ecclesiasticall determinable.

And by the bookes of the Common lawe, M. 22. Edw. 4. fol. 24. whether the Church be full or not full, or the Clerke able or not able, is triable in an eccle­siasticall Court. Townesend.

For if an Regist. in br. orig. pag. 55. b. inferiour Ordinary shal differ or refuse to admit or in­stitute a Clerke presented, and the Clerke bring his double Querele (being of the nature in some sort of an appellatiō) from the Arch­bishops court: and the aduerse parte doe bring a prohibition, the said Clerke may haue hereupō his consultation, so that the court eccles. by colour hereof, deale not with the right of patronage of the benefice.

Likewise for spoliation of a 44. Ed. 3. 33. benefice, a man is to be sued in Court Christian. But this lieth not, but where a Clerke is in, as an incumbent. for if he be in, as an vsurper of the Church being full, or as a trespasser, there lieth action of trespasse, and not spoliation. But if two 38. H. 6. 19. incum­bents be in, and the one claimeth by one patrone, and the other by ano­ther, there lieth no spoliation: but where both claime to be in by one pa­trone, or by meanes of one patrone, then lieth action of spoliation, and not otherwise. For where the right of Aduouson may come in questiō, there lieth no spoliation, for that cannot goe to a Spirituall Court. And againe a litle after: 38. H. 6. 20. Spoliation and debate vpon an appropriation, shalbe determined in the Spirituall Court.

[Page 32] Touching tithes where they are to be sued, it appeareth by actes of Parliament thus: The 13. Ed. 1. ca. 5. Westm. 2. plea for tithes shall passe in the court Christian, as farre foorth as it is derained in the Kings court. In the next Kings 9. Ed. 2. ca. 1. Artic. Cleri. dayes, thus: In tithes, oblations, obuentions, mortuaries, (sithence they are proposed vnder these names) the Kings prohibition shal holde no place. Ibidem cap. 5. And againe, the Kings prohibition shal not lie for tithes of a Mill, newly erected.

Likewise in the dayes of K. Richard the 2. it is thus 1. Ric. 2. ca. 13. contei­ned in a statute: The Clergie complaine for that the people of holy Church pursuing in the spiritual court for their tithes, and their other causes which of right ought, and of olde times were woont to perteine to the spirituall court, and that the Iudges of holy Church hauing co­nisance in such causes, and other persons thereof medling (according to the lawe) be malitiously endited, &c. and by secular power oppressed, and be forced by oathes, obligations, and many vndue meanes compel­led to ceasse vtterly, against the liberties & franchises of holy Church: It is enacted, that such obligations made by violence should be voide: and the enditors of malice when the enditees be acquit, should incurre the paine of those that procure false appeales, &c. Likewise the pre­amble of a 23. H. 8. ca. 9. statute in K. Hen. the 8. dayes doeth argue, that mat­ters of tithes are to be heard and determined by Iudges Ecclesia­sticall.

The same is also proued by that, where in 24. H. 8. ca. 12. another statute it is said thus: Inconueniences haue arisen by reason of appeales out of the Realme to the See of Rome, in causes testamentarie, causes of matri­monie, and diuorces, right of tithes, oblations, and obuentions. And in 27. H. 8. ca. 20. the preamble of another statute, Deteiners of tithes. pursuing such their detestable enormities and iniuries, haue attempted in late time past, to disobey, contemne and despise the processe, lawes, and decrees of the ecclesiasticall courtes of this Realme, in more temerous and large manner, then before this time hath bin seene. And therefore it Ibidem. was then enacted, that for subtraction of tithes, offerings, and other due­ties of holy Church, the partie grieued, may by due processe of the kings. ecclesiasticall lawes of the Church of England, conuent the person of­fending, before the Ordinarie, and also compell him to yeelde their saide duties. And likewise for any his contempt, disobedience, or o­ther misdemeanor, vpon complaint to any of the Counsell, or to two Iu­stices of the peace, to haue him committed, vntill he shall be bound to [Page 33] giue due obedience to the processe, proceedings, decrees, and sentences of the ecclesiasticall court of this Realme. And 32, H. 8. ca. 7. afterward by ano­ther statute of the same King, it is enacted, that for denying to set out tithes, for deteining, withholding, or refusing to paye tithes or offe­rings, Ordinaries may proceede according to the course and processe of the ecclesiasticall lawes. And in the Ibidem. preamble thereof, it is di­rectly affirmed, that by order of the common lawes of this Realme, a man cannot haue any due remedie against deteiners of tithes. And the 2. Ed. 6. ca. 13. like also appeareth by the statute of tithes, made in K. Ed­wardes reigne.

That which is afore affirmed and determined, concerning tithes, oblations, obuentions, and mortuaries, may likewise be said of pensions, portions, corrodies, procurations, indemnities, and other such dueties ecclesiasticall. For it is enacted, that 34. & 35. H. 8. ca. 19. for these denied, ec­clesiasticall persons themselues, may make such processe against the person denying, or against the Church charged, as heretofore they haue lawfully done, and as by, and according to the lawes and statutes of the Realme, they nowe lawfully may doe. And the person conuict, (ac­cording to the ecclesiasticall lawes) shall pay to the plaintife, the things recouered, and his costes.

CHAP. VI. That suites forright of tithes belong to the ecclesiastical Iurisdiction, and how farre, is shewed out of the bookes and reportes of the cōmon lawe: so of places of buriall and Church-yardes, and of Pensions, Mortuaries, Oblations, &c.

THe reportes of iudgements and opinions of the Courtes at the Common lawe (conteyned in the bookes of termes and yeeres) called booke-cases, and other treatises of that lawe, are no lesse plaine & pregnant in this matter. An M. 44. Edw. 3. fol. 32. attachement vpon a prohibition was sued against a plaintife in a Court Ecclesiasticall, surmising that he did sue there for hay and money, which touched neither matrimony nor testa­ment: but vpon shewing the libel, which proued, it was for tithes & ob­lations, a consultation was granted, for the spiritual court to proceede. And M. 22. Ed. 4. fol. 24. & passim alibi. where the right of tithes is in question, it is triable in the Court spiritual. Likewise, 38. H. 6. fol. 21. so soone as it appeareth, that the right of tithes comes in debate, the Lay court shal cease, & shalbe out of iurisdiction: quod fuit concessum.

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[Page 34] The same is testified in the booke of Assises: 22. Assis. fol. 75. For if the Kings patentee of tythes renewing in a Forrest, that is in no Parish (in which case the tythes doe belong to the King) haue cause to sue any, that ought to yeelde tythes, and ought to seuer them from the nine partes; such suite shall goe to the spirituall Court.

In the booke of Entrees in the precedent of a Prohibition. consultation. 2. consultation graunted, it is thus said: In causis de decimis, de testamento, velma­trimonio, quando sub eo nomine proponuntur, prohibitioni Regiae non est locus. And so Bracton lib. 5. cap. 2. Bracton saith: Non pertinet ad Iudicem secula­rem cognoscere de ijs quae sunt spiritualibus annexa, sicut de decimis, & alijs Ecclesiae prouentibus. Bracton lib. 5. cap. 16. And againe afterward: Mutatur quando (que) iurisdictio de iurisdictione in iurisdictionem, mutatis rerum nominibus, vt si de Laico catallo fiat spirituale, (vt cùm res fuerint de­cimatae) fiunt de Laico catallo res spirituales, & sic mutatur iurisdictio secularis in spiritualem. And therefore where it is reported in the booke of Assises, 38. pag. 20. that the Exchequer held plea in matter of tythes betwixt two parsons of Churches, because the one was the Kings debtour; it is Brooke tit. Iu­ris. 9. said, that neither of the Benches would haue done it, and that it was a marueile.

It appeareth in the Register by Regist. in br. orig. pag. 45. b. 46. 47. b. 48. b. sundry consultations graunted after prohibitions brought, that at the Common lawe, so declared and confirmed by Articuli cleri, tithes are of ecclesiasticall coni­sance. And it is alledged Gooddall of the liberties of the Clergie. Regist. pag. 51. a. D. truely out of the Register, that for tithes happening due in time of vacation of a benefice, the Iudge eccle­siasticall may cite ex officio. More particularly, sundry kindes of tithes are there expressed; which by consultations were prooued and allowed to belong to the determination of an ecclesiasticall Court. As first Reg. pag. 48. b. tithe of wooll rising of sheepe killed or dead. Againe, Reg. pag. 48. a. tithe of calues & lacticiniorū, that is, of milke, butter, & cheese, (as it may be gathered by another consultation) are both due to be paide, and demaundable in a court ecclesiastical. Third­ly, another Reg. pag. 49. a. cōsultation cōteineth, not only butter, cheese, & lacti­cinium, to be due and demandable in court eccles. but also of pan­nage, that is, tithe of maste, & of coltes. To these doth the Treatise of the Gooddall of the liberties of the Clergie, by the lawes of the Realme. liberties of the Clergy adde tythes for hony, & waxe of bees. But why he should say further, that it seemeth all these must be by prescription, as if tithes of all kindes were not ipso iure due, sauing when some lawe doeth otherwise specially limit and determine: [Page 35] I must confesse, y t I can see no seeming, nor yet colourable reason.

And not onely the partie himselfe who deteineth tithes may be sued, but if he die, his executors may be sued also for them in court ecclesiasticall. For so is it Regist. in br. origin. pag. 48. a. & Gooddall ibi­dem. testified by a Consultation obtei­ned for tithe of Wooll, denied by the Testator, and by his execu­tors who brought the prohibition. And the Gooddall ibid. like is testified by the said treatise of the Liberties of the Clergie, touching tithes of Mils.

Whereas also for restraint of the malice of diuers, a prouinci­all constitution was made by the Bishops of the Prouince of Can­terbury, in their Synode at London, that such as hindered the gathe­ring or cariage of tithes, by due and accustomed wayes should be excommunicated ipso facto: It happened that a parson bringing his action in court ecclesiasticall vpon that constitution; was hin­dered and staied by prohibition, suggesting that it was instituted touching debts and chattels, being neither Testamentarie nor ma­trimoniall. But the consultation Reg. p. 46. b. & 47. a. & Gooddall of the Liberties of the Clergie. granted, doeth signifie; that the court ecclesiasticall may lawfully proceed in that plea, so farre foorth as the action reacheth but to the excommunication of the partie, by reason of his hindering the Parson to gather and carie tithes, by places due and accustomed, so that the said constitution and suites ecclesiasticall thereupon brought, be both allowable.

Yet we are to vnderstand, that neuerthelesse in some cases, the suite for tithes doeth not lie in an ecclesiasticall court: as for ex­ample, where it is otherwise determined by statute. For it is pro­uided, that 45. Ed. 3. ca. 7. where a man is sued in a court Ecclesiasticall for tithes of great trees aboue 20 yeeres growth, which may serue for timber of ships or houses, the kings prohibition shall lie. But it was Reg. in br. ori­gin. pag. 49. a. in Notabili. Brooke tit. Consultat. 11. agreed in the Parliament at Sarum, that a consultation lieth for Sylua caedua, albeit it renew not yeere by yeere.

It was also Plowden. 17. Eliz. inter Sobie & Mullins. adiudged in the case betwixt Sobie and Mullins, that of hornebeames, Sallowes, and such like trees, (that are of so base nature that they serue not for building, nor are of any endurance, and seruing for fewell and other meane vses) tithes should be paied, not on­ly of the trees themselues, but of their boughes when they are lopped, of what age soeuer they be.

The Ibidem. opinion of the Court in this case then, further also was, that if the tree it selfe by that statute (being but an affirmance of the Common lawe afore) bee priuiledged for tithes, as Oke, Ashe, [Page 36] and such like; that the armes & boughes also of them (being of twen­tie yeeres growth or aboue) shall be free likewise. And the reason is added, for they may serue for some vse in building.

So that here it may be doubted, if trees aboue twentie yeeres growth, being of a kind priuiledged and timberable, as Oke, Ashe, Elme, &c. be of themselues so little, so crooked, or so rotten, as that they can serue for nothing but blocks and fewell, and be al­so so emploied: whether thereof tithes shall be paied, and bee demandable in a Court ecclesiasticall? For here the reason of that iudgement doeth cease, because they serue not for any vse in building, & cessante ratione, cessat lex.

This doubt is also enforced by the opinion T. 11. H. 4. fol. 242. of Askham: who to maintaine the prohibition there brought (though the suite in the ecclesiasticall court were for great wood) was driuen to a­uerre, that they were such great trees as might serue to build an house sufficient for any mans dwelling, according to the custome of the Countrey. Which allegation of matter in fact had not needed, if onely the kind and age of the trees had bene to be respected, to maintaine the Prohibition. But this question is to be discussed by the reuerend and learned Iudges.

I doe find a Note in the Register, but not set downe by whom nor when, touching immunitie of some things, from paying of tithes, to this Nota in Reg. pag. 54. b. effect, viz. Note, that the Iustices say, that tithes shall not be yeelded but of such things as bring profite from yeere to yeere, and that by the memory of man; but this is against the Decretals, saieth he. Now admitting this report to be true; what might be the reason of such opinion of those that were Iustices then, is not expressed; & I cānot coniecture. for not only the Decretals & Ca­nō law, but Gods written law, & before that, y e law of nature (vn­der which other thē such tithes were paid) do seem to be against it: & those Iustices had not (for any thing I can find) either former written law, or any report of vn writtē law or custome to y t effect.

And if this should be receiued for lawe, as is here in words laid downe; then need no tithes be paid of Sylua caedua; yet was it de­termined in the Parliament at Sarum, y t they should: & so Reg. pag. 44. it is at the Cōmon law also. And thē neither parsonall tithes, nor tithes of Mils, nor tithes of Licoras, nor of Saffron heads (being gathered commonly but once in 3. yeeres) nor tithes of corne out of fields [Page 37] that lie fallow & without fruit euery other, or euery third yeere; nor tithe calues or lambes falling of such cattell, as do bring forth but euery other yeere, nor tithe of fruit trees, that beare but one yeere in three. And if tame elephants (for cariage) were vsed as commonly here as in some other countries (which go with yong two or three yeeres together) by like reason no tithe of thē nei­ther might at all be demanded, because euerie of these are such, as bring no profite from yeere to yeere.

Where also is added, that this yeerely profite must haue had his continuance by the whole memorie of man: hereby would be cut of all tithes of grounds newly stubbed vp & turned to good medow, pasture or arable, from great timber trees. Likewise all tithes of any new sets and commodities; as of sundry rootes, artichocks, osiers, woad, rape-seed, hoppes, French wheate, and such like, being in most places but of late knowledge and small continuance, were wholy taken away. And so were all tithes of grounds lately left dry by the sea, or by fresh waters, or wonne by the industrie of man.

The same Note further reporteth, that the Iustices opiniō then was: that for tithes of pit-coles, quarries and other like, by no means a Consultation should be granted: because Parsons tooke tithe of the blades that grew on the ground ouer them, & therefore they should not take tithe of the coles. This opinion (as it seemeth to me) that very Note misliketh in these words: But (saith he) by the like reason, a man ought not to pay tithe of agistment, because hee yeeldeth tithe for the beasts that feed in his pasture. But I doe not well conceiue the trueth of that which he here insinuateth: as if Agistment money were to be paied for the herbage of the same beasts, which by their calfe, lambe, wooll or milke, doe bring commoditie to the Church. Yet if he meane that tithe of Agistment money is to be paid for barren cattel, though they depasture in the same pasture where fruitful cattel do, & at the same time; then doeth he come neerer to the purpose of confuting that reason, which implieth thus much, that seueral kinds of commodities in one yere, arising out of one ground, should yeeld but one kind of tithe. For if this were true, then where tithe of haie hath bene paied, nothing should be yeelded for the after-math (commonly being halfe the value of the haie) though it bee depastured with cattell, [Page 38] which bring no commoditie to the church: then also might not the vicar of Tenham in Kent, haue tithes (as he hath) of the fruit of the great Orchard in Sommer, because he had tithe loppings of the trees in Winter, amounting to sundry loades of fagot. And then also should not the Church haue tithe fruite of such great yong Orchards turned from tillage, as still yeeld tithe corne, or haie growing vnder the trees for sundry yeeres together.

If to these obiections it be said, y t there is great diuersitie; because these examples do in deed import seuerall fruits & commodities to be taken; yet either at diuers times of the yeere, or else arising out of seuerall parts of the ground: for replie I say, that the like may be also said of colepits & quarries, for so much of the groūd aboue as is digged, beareth at that time neither corne nor grasse. And albeit for coles (when men be come to a certaine veine and depth) they vse to dig side-long, leauing great pillars to support the earth frō falling: yet is it not the self same part of the ground below where they dig, that beareth grasse or corne aboue, and therefore herein no diuersitie. And with like reason might tithe of the seed of Woad be denied, because tithe of the leaues was a­fore paied: or tithes of Saffron heads, because tithe Saffron was paied the same yeere. Yea, if this note were assured lawe, then should no tithes be paied of any Minerals: as of lead, tinne, cop­per, quicksiluer, &c. how it goeth in Cornewall, Deuonshire, and at Mendiffe hils in Somerset shire for tinne and lead, I haue not en­quired. but I am assured, that in the Peake in Darbishire, tithe lead is the chiefest part of the Ministers liuing, in such places where it is gotten. Which I feare me would hardlie bee yeelded (as it hath bene by time immemoriall) onely of pure good will; if the lawe in that point were against the Ministers. But the dis­cussing and iudgement of these doubtes, I must referre who­lie to the reuerend Iudges, because they doe surpasse my slender skill.

It seemeth also by the booke of Entrees, that Tit. Prohibitiō. a prohibition li­eth, where tithes of corne and wood bee sued for in an Ecclesiasticall Court, if an action of trespasse bee thereupon depending afore at the Common lawe. De hoc quaere. 38. Ed. 3. fol. 8. Likewise if a man couenant to pay or set out his tithes truely, he must be sued in a Temporall Court vpon this acte of couenant, and not else where. Furthermore, tithes of [Page 39] corne, &c. may be considered either before they be seuered from the nine parts, in which 38. Edw. 3. 6. 50. Edwa. 3. 10. 38. Edw. 3. 8. case, if all the corne be caried away (it is said) the suite lieth in a spirituall Court: Or after seuerance; & then to carie the tithe away, after seuerance from the nine parts; is said to be a trespasse determinable at the Common law. But I finde (to mine vnderstanding) great opinion against this: as Bract. lib. 5. cap. 16. first Bracton, where he saith: Cùm res fuerint decimatae, fiunt de Laico catallo res spirituales. For decimare must needes be to tithe and set out from the nine parts. Secondarily the opinion M. 22. Ed. 4. fol. 23. of the whole Court. For vpon an action of trespasse brought by a Par­son against the Vicar, the Vicar iustified, that he tooke them for tithes being seuered from the nine parts; and that he and his predecessours, time out of minde, had prescribed them to be due: whereupon the Iudges (ex officio, without petition of either partie) dismissed this plea, vnto the Spirituall court; as not perteining to their iurisdicti­on. Soluat Apollo. But it seemeth to me, that the 27. H. 8. ca. 20. 32. H. 8. cap. 7. 2. & 3. Ed. 6. cap. 13. statutes for tithes do now stint this strife, and makes both cases to be Eccle­siasticall. Vpon 14. H. 4. 17. corne carried away, whereupon it comes to be tried betwixt two Parsons of Churches, who hath right to the tithes; this triall belongeth to the spirituall Court, and is not vpon action of tre­spasse, to be brought to the Common law. And so it was adiudged; albeit that the defendant there said, that his Parsonage was then in lease. But if they 39. Ed. 3. 23. 5. H. 5. 10. had ioyned issue, whether the place whence the sheaues were taken, were in the one Parish or the other, then it should haue bene tried at the Common law, because Brooke tit. Iurisdict. the bounds of a Parish shall be tried by the Countrey, as is there said.

Yet in a litle Treatise An answere to a letter cap. 1. printed by Tho. Godfrey circa 26. H. 8. printed by Thomas Godfrey in K. Hen­rie the eights time, it is testified, that it hath bene holden in times past &c. that the diuision and distinction of parish from parish, is a thing so meere spirituall, that no man may doe it but the Clergie. which asseueration though he disallow, if the Clergie claime it by any immediate power giuen them from God: yet (saith he) of these and of diuers other things; it is no doubt, but they haue holden plea in times past; rather by a custome and by a sufferance of princes; then for that they be meere spirituall: or that they of the Clergie, had authoritie so to do, by any immediate power of the law of God. So that he alloweth diuision and distinction of parishes, to haue bene (of olde) of ecclesiasticall conusance; though to be deriued from [Page 40] the kings prerogotiue royall. And it Prou. constit. aeternae sanctio. de poenis. & ibi Lindwood verb. limitibus paro. chiarum. appeareth by a constitution prouinciall made in a Synode at Lambhith holden vnder Boniface then Archbishop of Canterburie, in the yeere of Christ 1260, that the Clergie then (vndoubtedly) held, and so practiced, touching limites parochiarum; that they meerely belonged to the court ecclesiasticall. And Lindwood comming 200 yeeres or thereabout, after him, in his Commentaries or Glosses therup­on; maketh no doubt of it, but onely quoteth Canon law for it.

If a Parson grant to M. 8. Edw. 4. fol. 13. me by deed all the tithes of his benefice, and yet afterward he sueth me in a Court Christian, for the tithes of mine owne landes, whereupon I bring mine action of couenant in the Tem­porall Court; neuerthelesse I shall not haue a prohibition, because I may plead that matter in barre in the Ecolesiasticall court. Danbie and Chok.

But if a rent reserued vpon a lease of tithes or offerings, be 44. Ed. 3. 32. sued for in a Spirituall court, there lieth a prohibition, for this is a Lay rent: and so Bracton Lib. 5. ca. 16. holdeth in the place before alleged agree­able to the statute of Articuli Cleri. It is holden, Regist. fol. 38. that if a Pa­tron hauing an Indenture to be quit of certeine tithes, be sued in a Court Christian for those tithes, hee shall haue a prohibition. But aske whether (this precedent of the Register notwithstanding) hee may not haue a consultation by the opinion of Danbie and Chok, afore recited: and the rather in this case then in the for­mer, by how much it is more to be presumed to be a Symoniacall compact against him, that is Patron. For if it be not Symonia­call, he may plead this couenant in barre, in a Court ecclesiasticall, as well as in the former case.

The competencie of the Court for suite of tithes, dependeth also much vpon the consideration of the parties, that contend for them. For 38. Edw. 3. 6. 31. H. 6. 11. 7 in an action of trespasse brought at the Common law, the defendant said, that the corne, whereof the plaintife complaineth, was growing in D. which is parcell of M. where he is Parson, and thereby he claimeth: And because in the pleadings they were both named Parsons; the opinion of the Court was; that it was out of their iurisdiction. In another Hill. 7. H. 4. fol. 35. per quos­dam libros, & 102. per alios. action of trespasse brought against a Lay man that claimed by lease from another Parson (notwithstanding that by M. 44. Ed. 3. it was alleged, that the Kings Bench in such case shall haue iurisdiction, because it is betweene a Lay man and a [Page 41] Parson, and that by Articuli Cleri (by the contract) transcunt deci­mae in catalla: yet because it was of tithes, which they might reconer in Court Christian, Gascoigne held; that the Temporall court ought to be out of iurisdiction: for (said he) though it had bin so done afore, yet it shall not be done so by vs here. And of the same opinion was Moile, in another like action of trespasse: that, 6. Ed. 4. 3. betweene a Par­son and a Fermer of another Parson, action for tithes lies in a Spiri­tuall court, because the Fermer claimes the tithes as due to himselfe during his terme, which none gainsaid.

But vpon the former of these two last cases, Brooke Brooke tit. Iu­risdict. 82. doth thus collect: that, it thereby appeareth cleerely, that vpon contention for tithes betweene a Parson & a Lay seruant of another Parson, the Spi­rituall court shall haue iurisdiction. For (saith he) the seruant doth claime to the vse of his Maister, and not to his owne vse, vpon any Lay contract. Yet how this collection may stand together, with other iudgements else-where reported to be giuen, may mooue some doubt: For, in 31. H. 6. 11. 1. H. 6. 5. an action of trespasse brought by a Parson a­gainst the seruant of another Parson: the seruant iustified for tithes of his Maister, and thereupon demanded iudgement, whether that Court would holde plea thereof: and it was not allowed, because the said defendant was a Lay man. Likewise, 6. Edw. 4. 3. it an action of trespasse brought by a Vicar for corne, taken by the seruant of another Par­son, that claimed them as tithes of his Master; and the plaintife claimed them as tithes due to his Vicarage: it was adiudged by three, that the Court temporall had iurisdiction, because the plaintife had none action against the seruant, in a Court spirituall, at least as is there affirmed.

Markham seemeth to be of opinion, that if any 38. H. 6. 19. part of right of tithes do come in debate betweene two Patrons, that there the court Ecclesiasticall can not holde plea. And if 25. H. 8. vt re­fert Brooke tit. Iurisdict. nu. 95. the Lord of a Mannour claime tithes of certeine landes in D. to finde a Chapleine or Curate in D. therewith, and the Parishioners there claime those tithes like­wise for the selfe same end: It was deliuered for law, that the Lay Court should haue iurisdiction betweene them, and not the Spirituall Court.

The last cause of drawing an action for spoliation of tithes from a Court ecclesiasticall, that I finde, is: where the tithes in de­mand, do amount to a fourth part of the yerely commodity of the [Page 42] whole benefice: because hereby, the right of Patronage, may be touched or preiudiced; which right of Patronage is to be hand­led in a court Temporall onely, and by no meanes in Ecclesiasti­call. For so is it testified by Lindwood c. aeternae sanct. V. iute-patrona­tus. const. Prou. de poenis. edita 1260. Lindwood himselfe, to be the olde custome of the Realme; and therefore the Common law of the land. But in another place he seemeth to be of opinion, that (this notwithstanding) no preiudice towards the Patronage can grow, though the suite for all the whole tithes and oblations should be prosecuted in court Ecclesiasticall. For (saith he) Lindwood in verbo quarta pars bonorum. c. 2. Prou. const. de foro competenti. the right of Patronage is founded vpon one of these three, viz. building, founding, or endowing of a Church. So that the right of Patronage doth no way respect tithes or oblations comming to the Church, but rather the building of it, the ground whereon it is situate, or the en­dowment (as of glebe &c.) assigned vnto it. This he writeth saluo iudicio meliori: and vnder the same reseruation, I do holde, that where a great part of tithes is (by suite) euicted from one Church vnto another; the very patronage it selfe is much preiudiced and endamaged. For if the Patron happen to sell it, the lesse value the benefice is of, the lesse recompence shall he haue for it. Besides, if Stat. circum­spectè agatis. a pension be assigned out of the benefice vnto the Patron (as it may be Lindwood, vbi supra. V. pensio­nem. vpon the foundation) the more the bene­fice is empaired, the more hard will the pension be to recouer. Lastly, for somuch as the Clerke presented is (by law) bound to relieue his Patron fallen in decay: in this respect, great preiudice groweth to the Patron, when a fourth or greater part of the be­nefice is euicted.

That which Markham held (as is aforesaid) viz. that if any part of right of tithes doe come in debate betwixt two Patrons, there the Court ecclesiasticall could not holde plea: seemeth to be borro­wed from a consultation in the Reg. pag. 46. a. Register in these words, viz. we being not willing to haue any thing derogated from iurisdiction eccle­siasticall, do signifie, that you may proceed, according to the course of the ecclesiasticall court, in the plea aforesaid; so as the action reach but vnto spoliation of tithes; and not to the aduowson or right of Pa­tronage, of any part of the Church: sauing that he speaketh of the right of any part of the tithes, and the Register goeth to the right of Patronage it selfe, of any part of the Church.

But where Stat. circum. spectè agatis. a fourth or greater part of tithes &c. is not in de­maunde [Page 43] betwixt two Parsons of Churches, there the Plea goeth to the ecclesiasticall court. The Goodall of the liberties of the Clergie by the lawes of the Reàlme. booke of Liberties of the Clergie, hereof writeth thus: one Parson of a Church may sue another in case of spoliation or taking of tithes or pension, in court Christian: so that the matter in demaund, amount not to a fourth part of the value of the Church; by reason thereby the right of Patronage seemeth to come in question. but if they be both of one mans Patronage, they may be sued there, to what value soeuer the thing demaunded shall amount vnto.

That Pensions out of Churches, are demaundable (not onely by statute, but also at the common lawe) in a court ecclesiasticall: is made plaine, by Reg. pag. 47. [...]. ibid. pag. 53. 2. Goodall, vbi supra. two consultations in the Register, and by other bookes of law. But Goodall further addeth: that for a pension, there lieth also a writte of Annuity at the common lawe; so that it is at the plaintifes election, where to sue. but if there he doe declare, vpon the prescription; and after he sue in the spirituall court, by the name of a Pension; the other (it seemeth) may then haue a prohibition.

For Mortuaries, that they at the common lawe be of ecclesiasti­call conisance, reade the two consultations in the Register, and the other which M. 9. H. 4. M. 10. H. 4. 1. Entres, title of prohibition. Reg. pag. 45. b. Reg. pag. 49. a. be here quoted. And likewise Reg. pag. 50. a. b. for oblations detai­ned; which ought (saith Goodall, vbi supra. Goodall) to be paid at their vsuall dayes.

Another thing due to the Minister, whereby also he hath a part of maintenance, is demaundable and determinable in an ecclesiasticall Court, viz. the places of buriall, and the Churchyard.

Touching the first: A Parson, to an Li. 44. assi. pa. 8. assise brought against him for a house, did pleade that he was Parson of P. and that to be parcell of his Church, by time immemoriall, and that there had bin burying of dead bodies: whereupon Persey held opinion, that the court tempo­rall, ought not to take conusance thereof. For the second; 44. E. 3. lib. assi. it is a good plea against the iurisdiction of the temporall court, to pleade, that the land is his Churchyard.

The true reason hereof I take to be alledged by Bracton (be­cause it is dedicated and consecrated to God) where thus he wri­teth: Bra. li. 5. ca. 16. Negocium terminabitur in foro seculari, si de laico feodo aga­tur, nisi fuerit dedicatum & Deo sacratum: sic enim res efficietur sa­cra: hoc autem diet non potest, de re in liberam & perpetuam elee­mosynam data. For though a thing be giuen in Francke almoigne, to an ecclesiasticall person; yet it remaineth of lay fee still, and is not said to be consecrated to God. Therfore 19. H. 6. 20. a trespasse done vpon [Page 44] a Parsons glebe land (which is a francke tenement) cannot be tried in a spirituall court. But it seemeth that in a trespasse done in a Churchyard, it is otherwise. for if a H. 17. H. 3. Fitz. referente, tit. prohib. 26. man take trees that are growing in a Churchyard, the Parson may sue for them in Court Christian. Sed quaere.

And that matters of buriall doe belong to conusance ecclesia­sticall, is declared by a consultation in the Reg. pag. 52. b. Register very plainely.

CHAP. VII. Ofright to haue a Curate: and of contributions to reparations, and to other things required in Churches.

NOwe when a Parish or Hamlet hath right to haue a Curate found in their Chappell, to say them diuine seruice: If this be denied them, and no circumstance otherwise be incident there­to, to drawe it to the Common lawe, it should seeme by all reason (of his owne nature) to be a matter belonging to the conusance of a court ecclesiasticall, ac­cordingly as alwayes (without impeachment) it hath bin vsed. Yet I finde in the bookes of Common lawe, that 22. H. 6. 32. an action of the case was mainteinable for not saying diuine seruice, albeit it was there confessed, to be a spirituall matter. What the circumstances and cause thereof was, that it was so ruled in that case, Quaere.

It appeareth by the Reg. pag. 56. a. Register; that a prohibition being brought vpon a suite in court ecclesiasticall, for withholding a Chauntery, a consultation was after graunted: whereby is affirmed; that pro sub­tractione Cantariae, & debita punitione pro huiusmodi subtractione, the suite belongeth to a court ecclesiasticall: and the like (there­fore) must needes be thought of a Chaplaine or Curate, not found to say diuine seruice, where it ought to be either by composition, or by prescription.

But that parishioners ought to be contributories, and may be ci­ted in a cause of contribution towards the reparations of the body of the Church (termed Nauis ecclesiae) and to the charges of buy­ing and furnishing other vtensiles, ornaments, and bookes, re­quired (by lawe) to be bought of the common charge; doth ap­peare partly by the Register, and partly by Fitzherbert in his noua [Page 45] natura breuium, who doeth gather it thence. For if (saith he) a Fitzh. no. na. br. tit. Consult. fol. 50. Bishop doe cite any of the parishioners of a Church, to be contributo­rie to the reparations of the parish Church, or of any Chappell annexed to it: if the partie sue a prohibition directed to the Bishop, surmising that he is impleaded (touching lay fee) in court Christian; the Bishop shall haue a consultation vpon this matter shewed in the Chancerie, on his behalfe. And partly also by the Iniunctions which were set out by the Queenes Maiestie in the first yeere of her reigne, and are vnder the great seale of England, for better record of the matter, her highnesse being thereunto authorised by acte of Parliament. For in Iniunctions published 1559. these are conteined, sundry vtensiles, ornaments, bookes, and other things, that by the common cost of euery Parish shal­be prouided, and from time to time supplied: and whether they be wanting or no, is to be enquired by ecclesiastical Iudges; and the obseruation of the Iniunctions is by them to be vrged (against those, that shall infringe any of them) by processes and censures ecclesiasticall, according to the course of that lawe.

And herein the Iniunctions followe but the Cōmon law. For Of the liberties of the Clergie by the lawes of the Realme. if a terre-tenant holding land that hath vsually paid for such tene­ment a pound of waxe, or such like, vnto the Church, doe with­hold it; the Church-wardens may sue him for it, in a court eccles.

Also Ibidem. if a man that withholdeth Church goods, doe by his last will enioyne his executours to make deliuerance; any of the Parish may sue the executours for them in court ecclesiasticall.

For proceeding ecclesiastically against refusers to contribute vnto the reparations of the body of the Church, there remaineth a iudgement in a consultation Reg. pag. 45. 2. (recorded in the Register) to this effect, viz. vobis significamus, quod super reparatione & emendatione defectuum corporis ecclesiae (iuxta consuetudinem approbatam) faci­enda: procedere poteritis, & ea facere, quae ad forum ecclesiasticum noueritis pertinere, dicta prohibitione non obstante. And by reason of defectes in reparations of a Church, money it selfe may lawfully be sued for, in a court ecclesiastical, as Reg. pag. 48. 2. appeareth by another con­sultatiō in the Register. And so is it also prouided by statute (in this behalfe) amongst other things, viz. Circumspectè agatis, 13. Ed. 1. Prelates may punish for lea­uing Churchyards vnclosed, or for that the Church is vncouered, or not conuentently decked: in which cases, none other penance can be en­ioyned, but pecuniarie.

CHAP. VIII. Proofes in generall, that sundry crimes and offences are punishable by ecclesiasticall Iurisdiction: and namely, idolatrie, heresie, periurie, or laesio fidei, and howe farre the last of these is there to be corre­cted: also of disturbance of diuine seruice, or not frequenting of it, and neglect of the Sacraments.

LAstly doe followe the testimonies of the lawes of the Realme for proofe, that many crimes also and offences are punishable by iurisdiction eccle­siasticall: and first in generall, then in particular, for sundry of them: The King writ thus to his Iudges: Statut. Cir­cumspectè a­gatis. 13. E. 1. vse your selues circumspectly in all matters concerning the Bishop of Norwich & his Clergie, not punishing them, if they holde plea in court Christian of such things as be meerely spiri­tuall, that is to wit, of penance enioyned for mortall sinne, &c.

In hospitals 2. H. 5. ca 1. that be of any others foundation then the Kings, it is enacted that Ordinaries shall enquire of the foundation, erection and gouernance of them, and of all other matters necessary in that behalfe: and thereupon make thereof correction and reformation after the lawes of holy Church, as to them belongeth.

In the statute of Citation, it is permitted, that a man may 23. H. 8. ca. 9. be cited out of the Dioeces where he dwelleth; when some spirituall offence or cause is committed and done, or omitted, neglected, or fore­slowed to be done by some, hauing spirituall iurisdiction.

In a statute of K. Edward the 6. 1. Ed. 6. cap. 2. Causes of correction be recko­ned as ecclesiasticall: which statute though it be repealed (for the principall purport there of being touching Ordinaries seales, and names not to be vsed any more, in their citations and processes) yet it bringeth sufficient euidence, that sundry matters of corre­ction be of ecclesiasticall iurisdiction. And so Bracton testifieth, that it was vsed and holden in his time: for he saith, In Bracton lib. 5. cap. 2. causis spiritualibus vel spiritualitati annexis, vt si propeccato vel transgres­sione fuerit poenitentia iniungenda, iudex ecclesiasticus habet cogni­tionem, quia non pertinet ad regem iniungere poenitentias, nec ad iudicem Secularem.

The sundry consultations set downe in the Register do shewe; that whē the proceeding is ad correctionem animae, for some sinne [Page 47] not punishable in the Temporall Court; the conisance is Eccle­siasticall. One Regist. 45. a. b. example shall suffice: viz. Nolumus, cognitionem ecclesiasticam, in ijs quae ad forum ecclesiae, & maximè ad correctio­nem animae pertinent, contra iustitiam impedire.

But to descend to more particulars, and first concerning those which are contrary Pietati in Deum, That idolatrie is punishable by Iurisdiction ecclesiasticall; appeareth by the statute 5. Eliz. cap. 23. De ex­communicato capiendo, afore alleaged: and touching Heresie or errour in matter of Religion or doctrine (besides that Statute) others doe also shew, how it is inquirable, and punishable by Iu­risdiction ecclesiasticall. For both the Preamble and Statute of Henrie the fourth, and the Statute of Henry the fift touching He­resies, doe plainely testifie hereof. In the former whereof is said: 2. H. 4. ca. 15. that the Dioecesans of the Realme, cannot by their Iurisdiction Spi­rituall, without ayde of the Royall Maiestie, sufficiently correct nor restreine the malice of Heretickes; because they goe from Dioecesse to Dioecesse, and willnot appeare before the Dioecesans, but contemne the keyes of the Church, and censures of the same, &c. And in the 2. H. 5. ca. 7. later: that the conusance of Heresie, errours and lollardies, belon­geth to Iudges of holy Church, and not to secular Iudges. And like­wise by a later 25. H. 8. c. 14 Statute then those, whereby it was prouided; that euery person being presented or indicted of any Heresie, or duely accused or detected thereof by two lawfull witnesses at the least, to any Ordinaries, &c. might by them bee proceeded against, &c. and none otherwise.

Neither is it materiall, though the said three statutes do stand repealed; for they shew (neuerthelesse) touching Heresie; what then was, and now is still at the Common Lawe. which offence to be still punishable at the Common Lawe, doeth also more plaine­ly appeare by the statute of Citations, being stil in force. For there it is prouided, that (the said statute notwithstanding) 23. H. 8. c. 9. the Arch­bishop may cite and summon any person of his prouince for cause of Heresie, if the immediate Ordinarie doe consent, or doe not his due­tie: and that the prerogatiue of the Archbishop of Canterburie shall not be preiudiced by that Statute.

The like is testified of breach of an oathe, and of periurie in an ecclesiasticall Court or matter. For after that (amongst diuers other matters) in the statute of Circumspectè agatis. 13. Ed. 1. Circumspectè agatis, breache of an [Page 48] othe is mentioned, it is thus in the ende added: In all cases afore rehearsed, the Spiritual Iudge shall haue power to take knowledge, not­withstanding the kings prohibition. And by the aforesaide 5. Eliz. ca. 23. Statute De excommunicato capiendo (among sundry other crimes and of­fences) Periurie in the Ecclesiasticall Court, is reckoned to be of Ecclesiasticall Iurisdiction. And so is it by a 5. Eliz. cap. 9. prouiso in the statute against periurie, made at the same time.

By bookes of the Common Lawe, I finde two cases, wherein breach of othe called laesio fidei, in an othe voluntarily taken, whe­ther priuately, or before an Ecclesiasticall Iudge (as was in those dayes much vsed) is to be determined in the Temporall, and not in the Ecclesiasticall Court. The one is such as fell out in the case of the vicar of Saltash; who had made an Obligation, and had bound it by an othe (that he would not goe against it) before the Popes collector in England; who pretended (though vniustly) some Iurisdiction Ecclesiasticall in himselfe. Against which othe, when the Uicar was supposed to deale, and was therefore con­uented before the said Collector; there went foorth a prohibition, and no consultation could be obteined. For (said Hankeford) a M. 2. H. 4. 15. Concordat 24. H. 1. per Brooke praemunire 16. Doct. & stud. lib. 2 cap. 24. man shall not be sued before an Ordinarie for periurie, but where the principall matter whereupon the periurie grew, was a matter Spiritu­all or touching it: and alledged this reason: for else, if the periurie should be found against him; hee should be straight awarded there, to performe the othe whereupon the periurie grewe, and where of hee is attainted: and so (though it were to pay debts) he should be there com­pelled to pay them; and hereby, Lay contracts should be determined there, contrary to the Kings royaltie.

And againe, the same man, in the T. 11. H. 4. fol. 241. secund. vnam impress. & 88. vel. 85. se­cund. aliam. same Kings dayes, (after­ward) reporteth; that a man had sworne to make a feofment of his land; and because hee did it not, hee was vexed by the partie, in the Court Christian, as for the periurie: and because such suite shall be as a compulsion to performe a thing touching land and inheritance; it was adiudged in such maner, as if he had sued for the principall, in Court Christian.

And the effect P. 38. H. 6. 29. of both these cases is rehearsed (with the like reason) by Fortescue in the Eschequer Chamber; and was ex­pressely graunted by some, and gainesaide by none. There­fore Fitzh. tit. proh. 12. ex Regist. if a man and his wife doe aliene the right of his wife, and the [Page 49] wife is sworne that shee will not sue the Cui in vita: and yet after the death of her husband brings the Writte, and the other sueth her in Court Christian for breache of her othe, shee shall haue her pro­hibition.

Agreeable to which, is that iudgement long agone, that M. 4. H. 3. re­ferente Fitzh. prohib. 15. if a man sue another in Court Christian pro laesione fidei, which othe a­rose vpon a temporall contract or cause, a prohibition lieth. And Bracton lib. 5. cap. 2. Bra­cton that writ in that time, saith thus: In placito quod pertinet ad co­ronam & dignitatem regis, etsi fides fuerit apposita in contractu, non propter hoc pertinebit cognitio super principali ad iudicium Ecclesia­sticum. Hereof he allegeth a reason in another place of the same booke, Idem lib. 5. cap. 9. Iurisdictionem regiam non mutat fidei interpositio, sacra­mentum praestitum, nec spontanea renuntiatio partium.

To which resolutions accordeth this booke case: In an M. 20. Ed. 4. fol. 10. at­tachment vpon a prohibition, where the plaintife was sued in Court Christian pro laesione fidei, in that hee had sworne to pay fifteene pounds, and did not: Brian held, that when the faith is made touching a matter Spirituall, then the breach there of shalbe punished in a Court Spirituall: (as if one should sweare to pay me his tithes truely, or a woman to marry with me) but if the faith be made vpon a mat­ter Temporall, then the breache of faith shall not be punished there: because they will not assoile him (if he be conuict) till some Temporall duetie be contented and payed.

A later Treatise of the Common Lawe made in King Henry 8. his time, doth touche this A Treatise that the B. of Rome had neuer Supremacie here, by the Lawes of the Realme. cap. 1. point thus, viz. In most cases of per­iurie, the King and his Courtes haue had the punishment, and in some cases the Clergie in their Courtes, haue had the punishment, by the custome of the Realme onely: viz. such as haue risen vpon Spiri­tuall causes.

Another case where the Ecclesiastical Law shall 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 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 [Page 50] 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 Lyndw. in cap. aeter [...]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 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. Dicta. Prou. Const. And if perhaps the King in his attachements, prohi­bitions, and summons shall make mention, not of Tithes, but of [Page 51] 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 [...]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 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 shalbe 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 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 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 34. H. 6. 70. vt Brooke allegat tit. Iurisdiction num 2. was holden, that if a [Page 52] 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 M. 20. Ed. 4. fo [...]. 10. in laesione fidei arising vp [...] 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, 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 assises, and the other booke case of 34. H. 6. (both which admit a party to sue in the Court ecclesiasticall) do seeme to me only therefore to reiect a partie, and to require proceeding ex officio Iudicis: because it was pre­sumed; that a party would not prosecute, to haue the sinne alone punished; but rather for satisfaction of the thing promised to him. Yet this in truth may be otherwise by the law ecclesiasticall. So that vpon all that which hath herein bin last spoken, it might probably seeme to some; that punishment of periury or breach of faith, euen arising vpon a temporall cause, should be still (by the Common law) of ecclesiasticall conisance: so that penance for the sinne be but enioyned, and no temporall amends required. which doubt is to be referred to the reuerend Iudges resolutions.

That disturbance of diuine seruice is also punishable by iurisdi­ction ecclesiasticall, the statute thereof made, in the time 1. Mar. cap. 3. of Q. Marie, doth prooue: for though it do prouide punishment tem­porall therefore; yet it reserueth the iurisdiction that Ordinaries had, for punishment thereof by lawes ecclesiasticall. Not to fre­quent or come to diuine seruice at times appointed, is declared to be subiect to proceeding and censures ecclesiasticall, aswell as to other punishments, by the statute 1. Eliz. cap. 2. for Vniformitie of Com­mon prayer: and so is both that, and neglect of the Sacraments; by the statute De excommunicato capiendo, heeretofore often [Page 53] alleged, prooued to be of Ecclesiasticall conusance.

Long afore that statute, vpon a prohibition brought, a consul­tation Reg. pag. 50. a. b. was granted: whereby the Ordinaries proceeding ex of­ficio, against one that refused to receiue the Communion, is allow­ed and warranted. And so doth the litle Goodall of the liberties of the Clergie. Treatise of the liberties of the Clergie, report this offence to be of Ecclesiasticall conusance. Thus much touching offences ecclesiasticall, being referred to impietie towards God.

CHAP. IX. That simony, vsury, defamation or slander, beating of a Clerke, sacri­lege, brauling or fighting in Church or Churchyard, dilapidations, or waste of an Ecclesiasticall liuing, and all incontinencie, are pu­nishable by Ecclesiasticall authority, and how farre.

AMongst such crimes as be offences against iu­stice, I do place simony first; as participating also not a litle with the former sort, yet rightly sor­ted hither: because it is, as a buying and selling of such things, as be not (in trueth) res mancipi (as the olde Romanes spake) things lying not in commerce betweene men to be bought and solde. This fault the said Ibid. in fine. statute De excommunicato capiendo, sheweth to be punisha­ble by iurisdiction ecclesiasticall.

That vsurie is likewise, it doth appeare by authoritie of diuers Parliaments. The king and his 15. E. 3. cap. 5. shall haue the conusance of the v­surers dead, and the Ordinaries of holy church shall haue the conu­sance of vsurers on liue, as to them apperteineth, to make compulsion by the censures of holy church for the sinne, and to make restitution of the vsuries taken, against the lawes of holy church.

By annother later act made against vsurie, 11. H. 7. cap 8. there are reser­ued to the spiritnall iurisdiction, their lawfull punishments in euery cause of vsury. And so is it expresly also mentioned in the afore­named statute De excommunicato capiendo: but this iurisdiction is since somewhat restreined, because 13 Eliz. cap. 8. vsurie can not now ther­by be punished nor corrected, except it reach aboue the rate of tenne in the hundred by yere.

By a consultation in the Reg. pag 49. b. Register, which was granted in allow­ance of proceeding against one for his vsury, it is thus sayd, in [Page 54] this behalfe: Quta in articulis Cleri continetur, quòd si Praelati imponant alicui poenitentiam pro peccato, prohibitioni nostrae non est locus, vobis significamus quòd ad correctionem animae praefati S. in hac parte (viz. pro vsura) dum tamen nihil aliud attentetis quod cedat in laesionem dignitatis nostrae, in curia Christianitatis procedere poteritis, prohibitione nostra non obstante. But this fault & sinne of Vsurie is mixti fori: that is to say, in some respect is of temporall, & in other regard of eccllesiasticall conisance, not only by the sta­tutes of the Realme (as you haue heard) but also euen by the law ciuill, albeit in a diuers sort. For in countreyes where that law hath place, if it be D D. in l. Titia. ff. soluto matri­monio. called in question, whether a contract be v­surarious or not, the court ecclesiasticall doth determine this: but for to pronounce such a contract void and to execute that sen­tence, belongeth to a temporall court.

For cause of defamation, it is Stat. circumsp. agatis. 13. Ed. 1. recorded by an olde statute, that it is alreadie granted, it shall be tried in a Spirituall court. And a­gaine: In Artic. cleri 9. Ed. 2. cap. 4. defamation, prelates shall correct by penance corporall, the kings prohibition notwithstanding: but if the offender will redeeme the penance with money, the prelate may freely receiue the money, though the kings prohibition be shewed.

By the preamble also of the statute for 23. H. 8. cap. 9. citations, it is plainely argued, that defamations belong to the comsance of iurisdiction ecclesiasticall, so they be duely and according to law prosecuted. Also by the bookes of Common law it appeareth throughout the arguments made in the great case of prohibition, in the time of T. 12. H. 7. fol. 22. Henry the seuenth, that the suite for defamation belongeth to ecclesiasticall iurisdiction. for there, aswell by those Sergeants that stood against the consultation, as the others, and by the Iudges al­so that granted the consultation (the originall cause being defa­mation) it is yeelded, that the punishment of slander or defamation, is belonging to the Spirituall law.

Whereas there is a Prouinciall constitution, that decreeth a slanderer or defamer of another, to be ipso facto excommunicate, this is allowed by Reg. pag. 49. a consultation in the Register, vnto a court ec­clesiasticall. And it is there added to this effect, viz. Si in causa diffamationis ad poenam canonicam imponendam agatur, tunc vlte­rius licitè facere poteritis, quod ad forum ecclesiae noueritis pertinere, prohibitione nostra non obstante.

[Page 55] One that sued Reg. pag. 51. 2. another in a cause of diffamation in court ec­clesiasticall, was there condemned in expenses to the defendant, who was absolued, for that the plaintife failed in his proofes. The plaintife to hinder the execution of the sentence, and to escape without expenses, procured a prohibition. Yet vpon debating of the matter; a Consultation was herein also awarded. So that wee see, both the Principall and the Accessarie cause, to be of ecclesia­sticall conisance.

If (saieth Liberties of the Clergie, by the lawes of the Realme. the Treatise of the Liberties of the Clergie) a man defame or publish one for false, an adulterer or vsurer, he may be sued in court ecclesiasticall. And another Treatise (published also in king Henry the 8. time by a common Lawyer) saieth thus: That the bi­shop of Rome, &c. cap. 3. prin­ted by Berthelet. In some cases of diffamation and slander, the kings courts; and in some cases the Clergie haue holden plea thereof.

Therefore I doe the more maruell (the lawe being so plaine) at the Note that is set Nota in Reg. pag. 54. b. downe in the Register touching this mat­ter, viz. All the Iustices are against a Consultation in a case of diffa­mation. which is spoken indistinctly and indefinitely, and there­fore more generally perhaps touching any diffamation what so euer, then the Iustices meant, or then by Statutes and lawe may be warranted.

It may be that a booke case of Henry the 4. gaue occasion of this mistaking, being not throughly weied. for at first sight it seemeth to sound, as if no diffamation at all were of ecclesiasticall conisance. And so Tit. Consulta­tion, nu. a. & alibi. euen Brooke in his Abridgement seemeth to take it. But the trueth is, by that case is onely meant, that such diffamation as ariseth vpon a Temporall matter, is not of ecclesia­sticall conisance: which is the first exception of the generall rule set downe in the Statute of Circumspectè agatis: where is sayd; that diffamation shalbe tried in the Spirituall court.

And that the said case is to be restrained to such diffamation onely, will appeare most plamlie to him, that considereth the scope of M. 2. H. 4. fol. 15. Hankefords argument. The Vicar of Saltashe had gi­uen an othe before the Popes Collecter, in confirmation of an ob­ligation by him made. The Deane of Windsor sued the Vicar be­fore the Collecter, prolaesione fidei: the Vicar purchased a prohibi­tion. Hankeford to maintaine this prohibition, argueth, that the periurie couldnot bee sued in an ecclesiasticall court, for that it arose [Page 56] vpon a temporall cause. Adding for proofe of his saying, that him­selfe had a matter vpon the like reason ruled for him, and against the Archbishop of Canterbury, H. 14. Edw. 3. par attachment sur Prohi­bition, &c. de ceo que il suist en court Christian, pur diffamation. The matter then was not ruled against the Archbishop simply, for su­ing diffamation there; but of such a kinde of diffamation. For else this would not haue fitted the purpose of Hankefords ar­gument: because hee hauing to prooue that laesio fidei arising vpon a Temporall cause might not bee sued in an ecclesiasticall court: could not make any colour of that assertion, by allea­ging of a iudgement that no diffamation at all might bee pro­secuted there: for that is not the like reason. And therefore, as that laesio fidei arose on a Temporall cause; so did the diffama­tion there spoken of, for which a prohibition did lie without Con­sultation.

That diffamatorie words touching a temporall cause may not be sued in court ecclesiasticall; we haue also a prohibition Regist. fol. 42. b in the Register, without any Consultation granted. For whereas one gaue witnesse in an Inquisition made by the king about his ex­change in Yorke: the partie touched, sued the witnesse (for dif­faming him) in a court ecclesiasticall, whereupon the witnesse brought a Prohibition, by reason the matter was a Temporall cause.

By Statute likewise it is Ed. 3. c. 11. enacted, that a Prohibition shall lie, if a man be sued in court ecclesiasticall for diffamation, in that hee en­dited the other.

I finde also another cause, why some diffamation may not be sued in a court Ecclesiasticall: and that is, when action there­fore lieth at the Common lawe. As P. 18. Ed. 4. fol. 6. where a man brought Acti­on of trespasse for goods taken away; the defendant hereupon sued him in a spirituall Court for diffamation. But Hussey the kings At­turney, in behalfe of the Plaintife desired a Prohibition; because the plea in Court Christian was mooued, the suite hanging there: and had it graunted. Quod nota. So if I be robbed, and speake of him that robbed mee before others, so that hee sueth mee in a spiri­tuall court for diffamation; there lieth a Prohibition: because I [Page 57] may haue an Action at the Common lawe, videlicet, mine appeale of the robberie.

There be also in the booke of Booke of En­tries, tit. Prohi­bition. Entries, precedents of Pro­hibitions granted agaynst those that for diffamation prosecuted such in court ecclesiasticall, as sued them in temporall courtes, for maime, and for forging of euidences.

So that wee may conclude this point, that out of the cases excepted; the rule of Circumspecte agatis, and Articuli Cleri (for diffamation to bee of ecclesiasticall conisance) hath place, e­uen by allowance of the common lawe.

There resteth yet one point belonging to this place; fit to be cleared. There is alleaged for other purposes by the Note­gatherer, a little olde printed Treatise, Concerning the power of the Clergie, and lawes of the Realme. In which, the Statute of Circumspectè agatis (both here and elsewhere by me alleaged) is auouched to bee no Statute, but a bare constitution. The words Of the power of the Clergie and lawes of the realme, cap. 8. bee these: Wee neuer sawe any proofe that Circumspectè agatis, was a Statute, or taken out of the kings answeres. and there bee in the sayd treatise diuers things that bee directlie agaynst the lawes of the Realme as it is in this point. That Prelates for fornication, auou­terie and such other, may sometime assigne bodilie paine, and some­time pecuniarie payne. And the lawe is, that Prelates shall neuer assigne pecuniarie payne for correction of sinne, but onely at the de­sire of the partie. And also it is recited in the sayd Treatise, that if the Prelate of any Church, or his Aduocate, aske of the person a pension; that the suite should bee in the Spirituall Courte: and the lawe of the Realme is euen to the contrarie. And we thinke, that if it had bene a Statute; that the lawe should neuer haue bene vsed therein, so directlie agaynst the Statute, as it hath bene vsed. And in the nineteenth yeere of King Edward the third, in a Writte of Annuitie brought in the Kings Court against the sayd Article of the sayd Treatise: it is sayd, that the sayd Trea­tise is no Statute, but named so to bee by the Prelates. And al­so the sayde Writte of Annuitie is iudged to bee maintenable in the Kings Courte, and that is directlie agaynst the Treatise of Circumspectè agatis, wherefore wee thinke it is no Statute. [Page 58] The verie like wordes are also vsed (I thinke all by one Author) in Ibid. cap. 8. another Treatise of constitutions Prouinciall and Legatine.

Nowe, in that to prooue it no Statute, he saieth; There bee in it diuers things directly against the lawes of the realme, seemeth to me a strange reason. As though statutes (for the most part) bee not to the restraining and changing of the lawe of the realme.

His first speciall obiection doeth answere it selfe. For if the Partie desire commutation of corporall penance into pecuniarie, especially if he be a free man; the Ordinarie may lawfully accept of that commutation, and being so vnderstood, circumspectè agatis; iumpeth therein both with Articuli Cleri. 9. Ed. 2. cap. 2. 3. & 4. lawe and practise.

Touching his second obiection against it, of a pension: I referre my selfe to that which hereof hath bene spoken in the 6. Chap­ter of this first part. As concerning his alleaged booke of 19. Ed­ward the 3. reporting it to be no Statute, I must tell him, that hee hath a larger printed booke then mine; if hee haue any reports, either of the 19. or 20. yeeres of king Edw. 3.

But whatsoeuer either he that was Author of those two little Treatises, or any other priuate or particular persons doe thinke may be collected or probablie spoken thereof: I trust they will all be contented to submit their iudgements to an Acte of Parlia­ment. Therefore to cut of all doubts at once in this behalfe; let them read the 1. & 2. Ed. 6. [...] cap. 13. in a Pro­uiso. [...] Acte for true paiment of tithes, made in king Ed­ward the 6. time; where both Articuli Cleri, Sylua caedua, de re­gia prohibitione, and also Circumspectè agatis bee called Statutes, and are appointed to remaine in their entire, as they were afore that new statute.

If a man lay Stat. circums. agatis, 13. Ed. 1. violent hands on a Priest, this offence is punish­able also by ecclesiasticall Iudges. Therefore it was determined in another Parliament, that for excommunication pro violenta ma­nuum iniectione in Clericum, before Art. Cleri. 9. Ed. 2. ca. 3. a Prelate, where penance corporallis enioyned: if the defendant will redeeme his penance by gi­uing money to the Prelate or partie grieued, it shall be required before the Prelate, and the kings prohibition shall not lie.

This seemeth to haue bene there determinable (by some re­ports at the Common law) euen afore these statutes. H. 7. H. 3. refe­rente Fitzh. tit. Prohibition, nu. 30. For if a man enter into S. Iohns place, and beate the brethren there, and take their chattels, for this violence he shall be sued in Court Christian, and so [Page 59] it was adiudged by the Court.

In a Consultation granted after a prohibition in this case was brought, it is Reg. fol, 49. b. thus cōteined in the Register, viz. si in causa iniecti­onis manuum violentarum in clericum, in possessione Clericatus exi­stentem, quém (que) alter sciuit esse clericum, non de violata pace nostra, sed de excommunicatione, ad correctionem animae tantummodo aga­tur: tunc prohibitione nostra non obstante, vlteriùs in eadem facere po­teritis, quod secundum forum ecclesiae, & de iure fore videritis faci­endum.

But I find two cases where laying violent hands on a Clerke, shall not bee sued in a Court Ecclesiasticall, but there will lie a prohibition. The first is, If a Clerke be Regist. fol. 42. & 51. arrested at the Common law, if thereupon he sue in a spirituall Court pro violenta manuum inie­ctione in Clericum, there lieth Prohibition. Another case is, T. 11. H. 4. fol. 241. in alijs libris vel 88. vel 85. when a man is excommunicate for laying violent hands on a Clerke, if the spirituall Court denie absolution till amends bee made to the partie for the batterie, a prohibition also will be granted: because it shall be en­tended, he which sueth, doeth it to recouer damages.

But (though it be at the suite of the partie) if onely the pu­nishment of the offence, and not any amends be sued for, it is de­terminable in a Court ecclesiasticall, albeit the Art. Cleri. 3. & 6. Temporall Court haue also the debating of the matter, touching the amends and the batterie. For (saieth Thirning) if a partie sue onely Ibidem. to enforme the Court that the other hath laid violent handes vpon him, being a Clerke; to the intent, the sentence of holy Church may goe against him, to be excomunicate for the wrong done to holy Church, and not to re­couer dammages; peraduenture it might be tollerable. To which an other booke agreeth, H. 22. Ed. 4. fol. that if a man beate a Clerke, and he sue him in the spirituall Court for his sinne of excommunication, he doeth well: but if he sue to haue the matter there examined, & for amends; there lieth a prohibition. For we finde a Entrees. tit. Prohibition. precedent of a Consultation granted, euen where a partie sued in Court Christian, proviolenta manuum iniectione in Clericum.

And so is it testified by the Gooddall of the Liberties of the Clergie. booke of the Liberties of the Cler­gie, by the lawes of the Realme, in these words: A Priest may sue to haue him excommunicated or corporallie punished that laid vio­lent hands vpon him, but not to haue amends. Neuerthelesse, if Gooddall ibid. a man put to corporallpenance for diffamation, or for beating a Clerke, [Page 60] to redeeme his penance, wil agree to pay mony to the partie damnified: & after contrary to his promise will not pay it; he may then be sued by the partie damnified, euen for the mony, in a court ecclesiasticall. And not onely the partie may thus sue to haue him punished, but the M. 20. Ed. 4. 10 Spiritual court may also punish it exofficio, as Brian and Litleton there did hold.

To this accordeth the said litle booke, where is sayd, that the Gooddall, ibid. ecclesiasticall Iudge may of Office cite for laying violent hands on a Clerke, to punish him corporally, but not by money. Whose opinion is well confirmed by a Consultation in the Register, to that purpose. For thence is Reg. sol. 51. 2. gathered, both that such a beater of a Clerke, doeth incurre excommunication ipso facto: and that the ecclesia­sticall Iudge ex Officio, may lawfully proceed to enioyne him cor­porall punishment.

Touching Sacrilege, that it is also punishable by lawe in a Court ecclesiasticall, two adiudged cases may bee alleaged out M. 4. H. 3. per Fitz. Prohib. nu. 14. of Fitzherberts great Abridgement. For if a man take goods out of the Church or Churchyard, hee that hath propertie, may sue him in a Court Christian, and may compell him to stand to the sen­tence and iudgement of the Spirituall court for this offence. And againe: H. 17. H. 3. per Fitzh. tit. Prohib. nu. 26. If a man take trees that are growing in the Churchyard, the Parson may sue for them in court Christian, and for the sacri­lege also.

Lyndwood, speaking of Sacrilege, Lyndw. in V. Sacrilegio. c. aeternae sanctio. de poenis. saieth, It is not a crime meerelie ecclesiasticall: because the conisance thereof may belong to a temporall Iudge, at least touching the corporall penaltie: but not concerning the censures of the Church, that ought to bee laied vpon such.

15. & 6. Ed. 6. cap. 4. Concerning fighting, quarelling, and brawling in Church or Churchyard, the Ordinarie in some degree is to pu­nish it by suspension ab ingressu ecclesiae in a laie man, and from ministration in his office in a Clerke; and in another degree, in either sorte Laie or Ecclesiasticall, by denouncing the par­tie offending to bee excommunicate ipso facto, by vertue of that Statute.

Dilapidations likewise, & waste made vpō a liuing Ecclesiasti­call, are determinable & 13. Eliz. ca. 10. punishable by Ordinaries. For the Sta­tute made in her Maiesties time for remedy in Dilapidations pro­uideth; [Page 61] that as afore by the lawes Ecclesiasticall, iust actions and remedies might bee had against executors and administra­tors of deceased incumbents: so they should by vertue thereof bee vsed against alienees and donees of the goods of such in­cumbents.

The Treatise of the Clergies liberties saieth, that for Liberties of the Clergie by the lawes of the Realme. Dila­pidation the parson may sue (in courte Ecclesiasticall) the executors of his predecessor.

So at the M. 2. H. 4. sol. 9. Common lawe, Tirwhit did hold, that if an eccle­siasticall person make waste of his benefice, he shal be deposed, as a Di­lapidator of his Church. But deposition cannot be iustified, but by authoritie ecclesiasticall.

Those crimes which I sayd were opposite to sobrietie in a mans owne selfe, are also punishable by ecclesiasticall authoritie. Stat. Circum­spectè agatis. 13. Ed. 1. For the Clergie are not to be punished for holding plea in court Chri­stian, of such things as bee meerelie spirituall, that is to wit, of pe­nance enioyned for deadlie sinne, as fornication, adulterie, and such like. In which words of (such like) I doubt not but other incon­tinencies, as Incest, Stuprum, and Polygamie be also vnderstood, be­ing all more grieuous then fornication, and two of them more execrable then adulterie.

And so doeth Lyndwood interprete the word, huiusmodi, such like: that Lyndw. V. hu­iusmodi. c. Cir­cumspectè. de fo­ro competenti. is to say (saieth hee) Incest, whoredome, and others, which be contained vnder the sinne of Lecherie. And to these are to bee added other crimes, which also are to bee handled and puni­shed in a court ecclesiasticall; as namelie, Sacrilege, Usurie, Here­sie, Simonie, and Periurie, to c. Ecce. 23. q. 4. which an old Canon also addeth such offenders as be Inspectatores nugarum, and consulters of Starre­gazers, Phanaticall persons, Wisardes, Fortune-tellers, Drunkards, and Idolaters.

And to make it more plaine, that all vnlawfull companie of man and woman, not being capitall by the lawes of the Realme, is subiect to the Iurisdiction ecclesiasticall, the 5. Eliz. ca. 23. generall worde of Incontinencie (which comprehendeth all) is vsed in the statute De excommunicato capiendo.

In the Reg. sol. 45. a. & 57. b. Register there bee two precedents of Consultations granted in causes of Fornication; agaynst which (in both) the Iudge also proceeded of office. And the treatise of Clergie liberties [Page 62] saieth, Gooddall of Clergie Liber­ties. Though a bishop may not visite the Kings free Chappell, yet he may cite and punish the Chaplaine thereof for keeping a concu­bine. Heare also what another olde Treatise written by a com­mon Lawyer, in those times An answere to a letter, cap. 1. Printed by Tho. Godfrey, tem­pore H. 8. saieth in this behalfe, viz. the Cler­gie ought to haue correction (as of crimes meere spirituall) of auou­trie, fornication, Simonie, and Vsurie, and to order matrimonie, tithes, oblations, and periurie (in some case) and of diuers other things: whereof it is no doubt, but they haue holden plea in times past, rather by a custome and by sufferance of princes; then for that they be meere spirituall, or that they had authoritie by the immediate power of God. So that they bee by him yeelded, of long time to haue bene of ecclesiasticall conisance.

CHAP. X. That the matters and crimes here reckoned bee also of ecclesiasti­call Iurisdiction: and proofes, that any subiect laie or other, may be cited in any cause ecclesiasticall.

THere doe yet remaine sundrie points, which in the second Chapter of this part, I haue set out, as being of ecclesiasticall conisance, hitherto not spoken vnto purposelie. First then for ordai­ning of reall compositions (being a matter of vo­luntarie iurisdiction) and disanulling of them, if they haue bene made contrarie to lawe and right (which is for the most part of Iurisdiction contentious) we haue in the Regi­ster some testimonie. For Reg. fol. 51. b. whereas an Ordinarie had made an ordination or reall composition for certaine Chaplains to serue from time to time in a Church, which were not found by those that ought; the bishop hereupon ex officio proceeded to interdict the Church, and vnto other Canonicall paines. And though there­upon a Prohibition was brought, yet was it reuersed (vpon de­bating) by consultation, and the bishops proceeding allowed, for lawfull.

Touching Reg. fol. 50. a. disanulling of a reall composition (vnduely made) in a Consultation there, is thus conteined: Significamus quod in negotio adnullationis Ordinationis pro Pensione, tanquam iniquae [Page 63] & non rationabiliter factae, & non de laico feodo in curia Christiani­tatis agitur, procedere, & vlteriùs facere poteritis, &c. prohibitione nostra nonobstante.

Next follow the censures ecclesiasticall, whereby Ordinaries punish or vrge execution of their sentences or decrees. First su­spension ab ingressu ecclesiae, is 5. & 6. Edw. 6. cap. 4. shewed to be an ecclesiasticall cen­sure by a statute of king Edward the sixt, forbidding brauling in Church or Church-yard. The other suspension indistinctly taken, whether ab officio tantùm, or ab officio & beneficio; is mentioned for a censure ecclesiasticall, by 1. Eliz. cap. 2. a statute 1. El. and by her Iniunctiones in fine. High­nesse Iniunctions.

Interdiction of a Church is also prooued so to be, by the first allegation out of the Register in this chapter.

That Sequestration is another censure ecclesiasticall, and the conisance of the violation thereof of that iurisdiction, is prooued cleerely by a consultation in the Register. For there a certeine Parishioner Regi. fol. 44. b. had cut downe Syluam caeduam, not paying but de­teining the tithe from the Parson. Hereupon the bishop of Elie his Officiall, did sequester the said wood cut downe. The Pari­shioner did breake and violate the sequestration. therefore the Officiall proceeded with him in causa violationis sequestri. the defendant purchased a prohibition. Neuerthelesse, vpon discus­sing of the matter, a consultation was granted in these wordes: Licitè procedere poteritis, quatenus de Concordat. Clem. vnica de sequest. possess. & (quoad violat. interdicti) Clem. grauis. de senten­tia excomm. violatione sequestri syluae caeduae excisae (ratione decimae inde rectori ecclesiae debitae, iniustè detentae & non solutae) per vos sic interpositi, agitur: & vlteriùs facere poteritis, quod ad forum Ecclesiasticum noueritis perti­nere.

That excommunication is a censure Ecclesiasticall almost all allegations afore, and consultations in the Register do shew.

That which next commeth to handling heere, is: that Const. prou. Bonifacij. c. a no­stris. de concess. praebendae. & ibi Lindwood. the Parson and Vicar haue the appointing of the Parish Clerke: who being so appointed, is to haue the customable fees of the Parishioners for his seruice, or else he may sue for them in Court ecclesiasticall. That Constitution prouinciall calleth these eleemo­synas consuetas: and (I thinke) they may be comprehended vn­der the word Reg. fol. 52. b. Largitiones charitatiuae, for which the Register hath a consultation, as being of ecclesiasticall conisance.

[Page 64] For goods (as a pound of waxe, &c.) due to a Church, and de­teined; Reg. fol. 50. b. the Register alloweth the Church-wardens to sue in court ecclesiastical, and to procure that the church may for them, be againe put in possession.

Now follow (in this place) certeine crimes of ecclesiasticall conusance: and first such, as be contrary to pietie towards God; namely blasphemie, which c. 2. de maled. though in partes on the other side Sea (where Ciuill law hath place) it be mixti fori, that is, enqui­rable and punishable aswell in the temporall as in the ecclesiasti­call court: yet in this Realme, I haue not learned of any punish­ment thereof (or for swearing) by any temporall power. Also i­dolatrie, and errour in religion; which are shewed to be of eccle­siasticall conusance, by 5. Eliz. c. 23. the statute De excommunicato capiendo. Likewise Apostasie from Christianitie; which is the highest de­gree of heresie: and therefore subiect to the same Court and pe­naltie. Lastly, violation and prophanation of the Sabboth, to be punishable by a Court ecclesiasticall, both the continuall cu­stome of the Realme, and the statute of Circumspectè agatis, (which doeth allow them to enioyne penance for sinne) doeth make very manifest.

But we are to vnderstand (as Lindwood in c. circumspectè. de foro competenti. V. mort. peccato. Lindwood also well admoni­sheth) that euery mortall sinne is not of Ecclesiasticall conusance: for then (faith hee) the iurisdiction of the temporall sword, were wholly ouerthrowen; seeing you could hardly name any cause, which vnder colour of the sinne, might not be brought vnto conusance ec­clesiasticall. But the said statute is to be vnderstood, of such sinnes, the punishment whereof doth belong properly to a Court ecclesiasticall. That is all such (as I doe gather) for which no remedie is pro­uided at the Common law, nor by the same forbidden to be dealt with, by a Iudge ecclesiasticall.

And of this sort, is subornation of periurie, in an ecclesiasticall court and matter, tending to the breach of iustice: and vnlawfull sollicitation of a womans chastity, drunkennesse, and filthie speech, referred to the violation of sobrietie.

Violation of a sequestration or of an interdiction, is in this chap­ter touched afore. The hindering and disturbance to carry tithes by wayes due and accustomed, is handled in the sixt chapter of this part.

[Page 65] For sundry crimes, the court Ecclesiasticall may enioyne pe­nance corporall, but not pecuniarie: and if it do, there lieth a pro­hibition. A [...]tic. Cleri. 9. Edw. 2. cap. 2. Notwithstanding, if Prelates enioyne a penance corporall, and the partie will redeeme such penances by money, if this money (so promised) be demanded before a Iudge spirituall, the kings prohibi­tion shall holde no place. And againe: for Ibid. cap. 3. excommunication before a Prelate (for laying violent hands on a Clerke) where corporall pe­nance is enioyned, if the defendant will redeeme it by giuing money to the Prelate or to the partie grieued; it shall be required before the Prelate, and the Kings prohibition shall not lie. Furthermore, Ibid. cap. 4. in defamation, Prelates shall correct in maner aboue said, the Kings pro­hibition notwithstanding, first enioyning a penance corporall, which if the offender will redeeme, the Prelate may freely receiue the mo­ney, though the Kings prohibition be shewed. And to the same ef­fect, there is a consultation in the Register, Reg. fol. 53. b. viz. in a plea for reco­uerie of money promised to a Prelate or to the partie grieued for re­deeming of corporall penance, (imposed for laying violent hands on a Clerke) you may lawfully proceed, our prohibition notwithstanding.

When a Reg. fol. 55. a. partie proceeded with for some offence in Court Ecclesiasticall, submitteth himselfe to such order as the Iudge shall take with him, either at his absolution from the sentence of excommunication, or otherwise, doth after refuse; for such his refusall, he may be dealt with, and punished in Court eccle­siasticall, and may be vrged by censures, to performe the order according to his submission, which the Ordinary shall set downe. Likewise may an Ordinary deale for contempt of his decrees or iurisdiction; as may be perceiued, both by the said consultation against one Lindsey last alleged, and Reg. fol. 57. b. also by another reported in the Register.

And as Ordinaries may deale in the causes afore specified: so may they also in the necessarie accessories and dependences of those causes. And therefore they may adiudge expenses a­gainst the partie ouercome in law; and by censures driue him, to payment of them. Example heereof we Reg. fol. 51. a. haue in the Regi­ster, where the plaintife in a cause of defamation failing in proofe, was condemned in expenses; and could not auoid the paiment of them by the prohibition which he brought. therefore in ano­ther precedent there, it is thus said: Iuri est Reg. fol. 53. b. Goodall, of the liberties of the Clergie, by the lawes of the Realme. consonum, quod vbi [Page 66] cognitio causae principalis ad forum ecclesiasticum pertinet; & eius accessorium pertinere debeat. Vel sic: iuri est consonum, quod cui attribuitur cognitio in causa principali, eidem attribui debet executio eiusdem. And there it is further said, to this purpose: Si praedicti 40. S. pro misis & expensis in causa diffamationis adiudicati fuerint, tunc ad executionem inde faciendam licite procedere poteritis, prohi­bitione nostra non obstante.

Fees due in Ecclesiasticall Courts, and Curates and Clerkes wa­ges deteined, come next in this place to be prooued of Ecclesia­sticall conusance. I must confesse that for the two former of these, I doe not call to minde, nor hitherto finde by turning of my few bookes of the Common law; that any thing is written of them.

Now seeing that from time to time, as occasions haue fallen out of due fees there to haue bene deteined, they haue bene de­mandable in the same Court ecclesiasticall without bringing prohibition: it is some good inducement to leade vs to thinke, that they haue bene (without contradiction) alwayes yeelded to be of ecclesiasticall conusance. For, being such matters as subiects haue a right vnto, and yet no writ lying therefore (as I take it) at the Common law (which Stat. de Con­sultatione, 24. Edw. 1. reason is the ground in statute for granting consultations, and of leauing causes of that nature, to the determination of an Ecclesiasticall court) it will therefore follow, that these also doe belong to iurisdiction eccle­siasticall.

But touching Clerkes wages, called in the Prouinciall constitu­tions eleemosynae consuetae, and in the Register conteined vnder the generall word of Largitiones charitatiuae; I haue incidently spoken in this chapter afore.

There remaine yet some offences (set out by me to be of Ec­clesiasticall conusance) which I finde not hitherto so auouched to be, by any writer of the Common law: yet are they so hol­den by the law Ecclesiasticall, and by vsuall practice also with­out any prohibition or other impeachment. The first c. dura. &c. fal­sariorum. de cri­mine falsi. of them is forgerie[?] in an ecclesiasticall mattter, or the vsing and set­ting out of forged letters knowing them to be such: as of let­ters testimonialles, of orders taken, of institution, and such like. Next, is the burying (in vsuall buriall for other Christians of [Page 67] c. quicumque de haeret. in 6. notorious Heretickes; or of persons dying excommunicated, and without repentance thereof.

Thirdly, willing c. si concubinae. de sent. excom. and familiar cōuersing with persons, whom they knowe to be excommunicated matori excommunicatione.

Fourthly Bald. in ca. cō ­uentic. de pace iureiurando fir­manda. frequenters of conuenticles, which doth also come vnder schisme.

Lastly, vnlawfull Extrau. dete­standae. de sepul­tura. digging vp of corpses buried, either vpon spite, or in any other sinister respect whatsoeuer.

I haue hitherto stoode vpon matters, wherein Ordinaries (by Law) may hold plea: to shew thereby, that they may cite in other causes then Testamentarie or Matrimoniall. For deale in them, or handle them they could not, vnlesse the party which is pretended to offer the wrong, or to be the offendour, might be conuented, which is by citation. Therefore (besides the authorities here and there in the former discourse falling in by other occasions, which might sufficiently prooue that they may cite and compell men to come before them) I will now briefly vse some further direct proofe to conuince; that in other causes then those two, men may be cited before Iudges Ecclesiasticall.

It appeareth by Articuli Cleri, that for any matter Ecclesiasti­call indefinitely, men might be cited. For vpon doubt mooued, whether the Kings tenants were subiect thereto, in such sort as others are: it is decreed, that Artic. Cleri. 9. Ed. 2. ca. 12. such as holde of the Kings tenure, may bee cited before their Ordinaries, and may bee excommunicate for their manifest contumacie, and after 40. dayes, may bee attached by the Kings Writte, as others. The 23. H. 8. c. 9. preamble of another statute proueth Citations euen of men, wiues, seruants, and other the kings subiects for diffamations and tithes (so they be vpon iust matter, and in due order) to be lawfull. The body of that statute Ibidem. pro­uideth, that no Citation be made out of the Dioecesse &c. where the partie dwelleth, but where some Spirituall Offence or Cause is com­mitted or done, &c. so that à contrario sensu in any other offence or cause Spiritual (as very many are afore proued to be) any subiect may be cited within his or her Dioecesse, and in those also there excepted, may be cited out of the Dioecesse.

Likewise Ibidem. for Heresie, the Archbishop of Canterbury may cite any of his Prouince if the immediate Ordinarie doe consent, or do not his dutie. In a statute 32. H. 8. cap. 7. made for tythes, any man withholding them, shall [Page 68] be conuented according to the Ecclesiasticall Lawes. And there is also mentioned Compulsorie Processe and censures of the Church. In a statute 1. Ed. 6. ca. 2. of King Edward the sixt, though for the body there­of it be repealed, yet thereby is testified; that summons and citati­ons be Processe Ecclesiasticall in all suites and causes of instance be­twixt party and party, and in all causes of correction.

Therefore seeing there is no colour, that onely Ecclesiasticall persons shall fall out to be deteiners of such dueties Ecclesiasti­call, or that they onely will proue offenders in the crimes afore recited, neither can all the Kings tenants, nor yet men, wiues, ser­uants and other subiects be entended (for the most part) to be other then Lay persons: we may safely conclude, that not only in causes Testamentarie or Matrimoniall, but in very many other afore no­ted, any subiect whosoeuer, may be cited before his Ordinarie, or other competent Iudge. Quoderat probandum, as being the very contradictorie of the opinion, that we are in handling.

CHAP. XI. That Lay men may be cited and vrged to take othes in other causes, then Testamentary or Matrimoniall.

THe thirde opinion nowe followeth, which is: that by the Lawes of the Realme, no Layman ought to be summoned or cited to make (or take, as I thinke is meant) an othe, in any other cause then Testamentary or Matrimoniall. This diffe­reth from the former in two points. The first is in the partie to be cited: For the second opinion was, that none whosoeuer, including both Ecclesiasticall and Lay: where as this is onely, that no Lay man may be cited, &c. The second difference is in the end of the citation: For here is said: a lay man may not be cited to take an oth in any other cause: thereby leauing (as it might seeme) the Ordinary at large, to vrge persons ecclesiastical to take an othe, in other causes also. But all comes to one ende. For if neither Lay nor Ecclesiasticall (as the second opinion holdeth) may be cited in any other cause: then cannot Ecclesiasticall men be cited in any other cause, to take an othe. That which cannot be done at all, cannot be done for any ende. non entis nullae sunt [Page 69] qualitates. so that both these runne to one point, sauing that hereby is affirmed, a citation may not be made to the intent a Lay man shall take an othe, sauing in those two cases.

Now if this citing be meant of the partie defendant; then doth it not impugne any proceeding ecclesiasticall in vse. for the partie conuented, is not cited ad subeundum iuramentum, but ad respon­dendum tali in causa decimarum, &c. & faciendum vlteriùs quod iuris fuerit & rationis. If it be meant of witnesses, neither are they cited (against their will) not so much as in Testamentarie or Ma­trimoniall causes, or any other, to appeare; till faith be made by the partie, or by some other for him, that they take them to be necessary witnesses for to testifie in that cause; and that being re­quired, and their reasonable charges offered them, they doe ne­uerthelesse without cause refuse to come, and to testifie a trueth. For then goeth a citation called Compulsories for them, sub poena iuris to come and depose their knowledges in such a matter, be­twixt such parties. So that the citation is not ad subeundum iura­mentum, albeit when they come, they are not to set downe any deposition, but vpon othe: because it is iuris diuini, naturalis, & gentium, quòd non credatur testi iniurato. Also the Authour of this opinion should haue done well, to haue signified whether a Lay man being come thither without citation, might then be vr­ged to take an othe. Therefore if the Authour hereof, wil here­by maintaine any controuersie against Courts Ecclesiasticall; the issue must be, either that to make the Defendant put in his an­swere vpon his othe, (so farre foorth as he by Lawe is bound) or to make witnesses testifie vpon their othe, is a thing contrary to the Lawes ofthe Realme.

But it appeareth by discourse vpon the former opinion, in how many sundry causes of litigious Iurisdiction, (besides Testa­mentarie and Matrimoniall) Ordinaries may holde Plea (by the Lawes of this Realme) according to the course of the Queenes ecclesiasticall Lawes. That the ecclesiasticall Lawes doe require this course (with the cautions aforesaide,) I thinke no man that knowes any thing in that Lawe, will make doubt. A Plea is a conflict in cause of Iudgement, betwixt one that affirmeth, and another that denieth. There be but two wayes (besides the parties confession, which is not properly called a proofe) to [Page 70] prooue any thing: that is, by witnesses, or by a publicke instrument, called by the Common Lawe, matter of Record. Now if witnesses might not be vrged to testifie vpon othe, in any causes but Testa­mentarie or Matrimoniall; then could no Plea be holden in any other cause, when the chiefest and most vsuall meanes of proofe in recent facts, be taken away.

This libertie and priuiledge of holding Plea in the causes a­fore shewed, and in this maner as is now claimed, 24. H. 8. c. 12. by the goodnes of Princes of this Realme, and by the Lawes and customes of the same (as a statute rehearseth) appertaineth to the Spirituall Iurisdiction of this Realme, and hath bene in all ages, vsed in Courtes Eccle­siasticall without impeachment, as by the Recordes thereof may appeare. And therefore, vpon any singular conceite (newly taken vp by some priuate persons) it is not safe to be nowe thus questioned, and oppugned. There is an olde Statute in force (as I take it) that may greatly bridle such newe quirkes, ex­cept men were marueilous well assured of the groundes of so great and so generall an innouation. For it is enacted, that 15. Ed. 3. c. 3. great Officers about the King, and in his Courtes of Iustice, shall from time to time forwarde, bee sworne when they shall be put in Of­fice, to keepe and mainteine the priuiledges and franchises of Holy Church, &c.

Can it with any colour be intended, that the Common Lawe doth allow Courts ecclesiastical to hold plea in those sundry other causes, which we haue hitherto proued to be ecclesiasticall: and yet, that it wil not allow them any meanes or possibilitie where­by to hold such pleas? For if no Lay man might be cited to an ec­clesiasticall Court, and there ordered to take othe in any other cause then those two: then first the partie conuented (if by Lawe he needed not) would neuer answere to the Libel vpon his othe. Yet hath this bene a course continually practised, and by Lawe so appointed, not onely in Ecclesiasticall, but also in all Courtes of the Ciuill Lawe both here and throughout the rest of Chri­stendome.

Againe, if no Lay witnesses may be called to testifie in any other matter; then should most men in those causes, be hereby either quite foreclosed of their right; and many grosse sinnes should passe wholly without reformation or punishment: or else [Page 71] all such matters must needes be prooued, onely by such wit­nesses that be of least indifferencie; and therefore of least trueth and credite. For those men be alwayes most indifferent, which either be friendes, or at least be no euill-willers, to either partie. Nowe seeing euery deposition must needes tende to the grie­uance or hinderance of the one partie or the other: can it be pre­sumed of him which loues both, and doth wish alike well vnto them, that he will willingly and gratis without any processe come and depose, and thereby doe one of his friendes a displea­sure? there resteth then, that onely such will offer themselues to testifie; who either be enemies vnto both, or friendes to one, and either enemies or strangres to the other (and howe can these be vpright & indifferent witnesses?) or else such who be meere stran­gers vnto both sides. but it doth most rarely happen, that meere strangers vnto both, shalbe able to depose any thing to purpose: and more rare will it be, that such will offer willingly of them selues, to come in ad testificandum. Besides these and many such like absurdities, necessarily ensuing this opinion; if it be yet still stoode in, that the Common lawe permittes compulsion of lay men (whether parties or witnesses) to take othe in causes testamenta­rie and matrimoniall, but denies it in all other cases: let vs consi­der, what may be imagined for a probable reasō of such differēce in proceeding betwixt causes that belong to the conisance of the selfe same courte. For I haue read and often heard, that the Common lawe is grounded vpon good and sound reason. And it cannot be said in this case: quamuis durum sit, tamen ita lex scripta est. for that this is no statute, or written lawe; but onely the re­ported opinion of one man, whence all the rest haue since taken it. Was it then meant, to giue vnto subiects an ample meanes of comming by their rightes in these two causes: but to restraine or debarre them in al other, as namely for tithes and other rightes demaundable in ecclesiasticall courtes? or was it the purpose of that lawe, to haue men stand conuicted of most grieuous crimes that be of ecclesiasticall conisance (as happely of Heresie) being neither by them confessed, nor yet proued by sincere and vpright witnesses: but onely by such, as doe thrust them selues in to beare witnesse; whom not onely common speach, but also sundry sta­tutes doe terme Accusers, and therefore doe hold at least for par­ties [Page 72] and men not indifferent? May not many other ecclesiasticall causes be of as great importance & preiudice, as (perhaps) a will of goods vnder xl. s. or a trifling legacie, or a x. pound matter, pro­mised with a woman in mariage? and if the law had bin so, could no man hit of it from the Conquest, vntill our fathers time, when Fitzherbert writ his nouanatura breuiū? was none of skil in Edw. the 1. time, to put it into the statute of circūspectè agatis: or in Ed. the 2. times, to mention it in the statute of Articuli Cleri? did none reade it in the Register that vnderstoode it, before Fitzher­bert? or was it not put downe there, but in some late copies, as is most likely? And after he had set it downe, would not the law in that behalfe haue bin vrged against sundry Bishops, that practised the contrary in K. Hen. the 8. time, & continually since, if that o­pinion had bin holden for good lawe? Touching this matter, the Treatisour saith thus in effect: that the not cōpelling of witnesses to sweare & to depose their knowledges, brings none other preiudice; but that the partie plaintife, faileth in his proofes thereby. Why? is that no small preiudice, for a man (which hath in deede a right) to haue the causes goe against him, through the wilfulnesse of witnesses, y t neither will come of thēselues, nor may be cōpelled by others, as this opiniō importeth? Is not this to giue cause of ac­quiting the wrōg doer, & of cōdemning him that hath the very right? and doth it not nourish or at least tolerate that sinne in the witnes, which i [...] cōdemned by the law of God in these Leuit. 5. V. 1. wordes, viz. If any haue thus sinned, that is, if he haue heard the voyce of an oath, & he can be a witnes, whether he hath seene or knowen of it, if he doe not vtter it, he shall beare his iniquitie? In which place I doubt not, but all such be included; who knowing the matter which is in examination or question before a Magistrate; shall refuse ne­uerthelesse (being duely called) to giue testimonie to the trueth, according to their knowledges. The Treatisour further saith: that it may be sufficiēt for a court ecclesiastical, to haue no better meanes for bringing in of witnesses to testifie, then tēporall courts haue. Truely if they might be allowed the same; I thinke none of them would desire any better. For when a witnesse is vnwilling to depose, vnlesse he be vrged by processe: what is more vsuall in tēporall courts, then to haue a sub-poena to charge him to appeare, and to testifie, at such a time & place? But because by this his say­ing [Page 73] (it seemeth) he entendeth, that the course of vrging witnesses to testifie (as is claimed, & alwaies hath bin vsed by courts eccle­siasticall) conteineth some repugnancie against the lawes of the Realme: therefore, for cleering of that point, I wil briefely shew, that it is not so much as a diuerse, and much lesse a contrary or re­pugnant order, vnto the lawes of this Realme.

First for practise; what is more frequent, then for Iustices of the peace to binde men by recognisance, to giue in euidenc at Sessions or Assises touching supposed offendours?

It would be ouer tedious to set downe the sundry cases repor­ted by the booke of Assiles to this effect: viz. that where a deede is pleaded & denied; and processe against the witnesses is desired; that it shall go out to call them to testifie. It wilbe sufficient to referre you, to Brooke titulo testmoignes. Brookes Abridgemēt, where they be gathered: (yea though the actiō be 1. H. 6. 5. personall) if a deede with witnesses at it be pleaded & denied: pro­cesse shalbe awarded for the witnesses per Markham & Rolfe.

Be not Iurours also (that be summoned to passe on trials) fined, if they appeare not? and what more equitie to amerce or fine them, then necessarie witnesses? seeing trials can no more be made without euidence; then they may without a Iurie?

By statute; 23. H. 8. ca. 3. Iurours for triall of Periurie, are appointed to be fined, if they refuse to make apparance.

Likewise if any 5. Eliz. ca. 9. witnesse be serued to testifie in a court of Re­corde, and hauing tendred (according to his countenance) his necessa­rie charges, doe not appeare: he shall forfeite tenne poundes, and make further recompence, according to the losse. So that we see, it is no contrary or repugnant course to the Common lawes, to haue witnesses vrged to testifie; being there also practised. But if here it be replied, that the Common lawe forbiddeth it vnto courtes ecclesiasticall, sauing in those two cases: it will easily appeare, that it is so farre from being forbidden, that it is indeede allowed vn­to them, by Common lawe and by statutes. There be very many precedents in the Register of consultations graunted, vpō debating of the seuerall matters there, after that prohibitions had bene pur­chased: in euery of which almost general wordes of allowance of the maner of proceedings, according to the lawe ecclesiasticall, be conteined, as Reg. in br. orig. fol. 56. b. & fol. 57. b. namely allowing of the proceeding iuxta Canoni­cas sāctiones. & setting in the end of euery cōsultatiō there (except [Page 74] two or three) these or the like wordes in effect, viz. Cicitè proce­dere, & vlteriùs facere poteritis, prout ad forum ecclesiasticum noue­ritis pertinere prohibitione nostra non obstante.

Nay let an instance be giuen (if any man can doe it) where of olde, any such prohibition hath gone foorth, and not bin reuersed againe by consultation, yea almost where it hath gone foorth at all; onely for censuring a wittiesse, that refused to come in and testifie, in any other matter of ecclesiasticall conisance, besides te­stamentarie and matrimoniall. And yet hath it bin in continual and vninterrupted practice, for so long time as any ecclesiasticall actes now remaining, do mention pleas in those courtes to be holden.

Iustice Brooke in his Abridgement, both testifieth that by the Ciuill lawe, witnesses (which wilbe holden indifferent) should not come till they be called, and setteth it downe as a matter woorth the noting; whereby may be gathered his allowance thereof. The Brooke tit. Corone. nu. 220. wordes be these: By the Ciuill lawe, Accusers be as parties, and not as witnesses; for witnesses ought to be indifferent, and not to come till they be called: but Accusers doe offer themselues to Accuse &c. quod nota.

That by the Ciuill and Canon lawe witnesses may be vrged to giue testimonie, and in what sort, wil appeare by this distinction. By the Ciuill lawe, l. si quando C. de testibus. witnesses may be vrged to giue testimonie, and that without distinction, whether the cause be Ciuil or Cri­minall: be Ciuilly or Criminally, directly, or by way of exception moued: except their persons be priuiledged. As by l. inviti. ff. de testibus. the law Ciuill men of 70. yeeres of age be in this behalfe; viz. that they may not (against their willes) be vrged to testifie.

By the Canon lawe, if the cause be Ciuill and not criminall, wit­nesses may be compelled (without distinction also) except they be persons priuileged. Neuerthelesse euen Panor. min c. dilectorum. de testibus cogendis. priuileged persōs may be cōpelled, in want and defect of other proofes; that the trueth may be found out.

If the Alphon. Villag. lib. 3. ca. 15. con­clus. 12. cause be criminall, whether Ciuilly or criminally moued, so the action be directly moued for the crime, and not by way of exception or barre onely: witnesses are to be compelled. sauing that by later Canons; Clerkes were not to be compelled to testi­fie, in causes of blood.

But if the question be touching a crime, by way of exception: [Page 75] then, either there may ensue thereupon some effect of punish­ment, (as vpon excepting a man to be criminous, who then is to be preferred to a dignitie, to a benefice, or vnto orders) in which case any witnesse may be compelled to giue testimonie: or else no penaltie can thereupon follow, (as when the exception is ta­ken onely to repell a man from testimonie or accusation) and in this case witnesses are not compellable, except the partie who excepteth, be like to be grieuously thereby preiudiced; if his witnesses cannot be gotten to depose.

There is nothing more conuenient, then that euery court should vse his peculiar course of proceeding, by that law (wher­in they deale) prescribed. And therefore Anton. in c. quod clericis. de foro compe­tenti. lay mens matters in a Court ecclesiasticall, are to be handled according to the maner of proceeding by that law required: euen as Bartol. in l. 3. § fin. ff. de testibus. clerkes shall and ought to be dealt with in temporall or ciuill courts, after the maners and or­ders of those courts.

Seeing then, compelling of witnesses to testifie, is not contra­riant, repugnant, nor yet diuerse from the Common law; nor by it forbidden, but allowed vnto Ecclesiasticall courts, according to the course of those lawes; which doe require it (as is shewed) and no reason or equity leading to admit it rather in those two causes, then in others of the same conisance: therefore may a­ny witnesses whatsoeuer be vrged to take oath and depose in Courts ecclesiasticall, and in other matters ecclesiasticall, then either testamentarie or matrimoniall.

But to descend yet to more particulars: the Kings tenants may Artic. Cleri. 9. Ed. 2 cap. 12. be cited before their Ordinaries as others. Therefore both they and others (though Lay persons) may be cited in all causes of that iurisdiction: neither is it there distinguished, whether they come in as witnesses, or as parties. Also they may Ibidem. as others be excommunicated, for their manifest contumacie. This contumacie (after appearance) groweth onely vpon peremptorie refusall to performe some decree or commandement of the Iudge, as in re­fusing to be sworne, or to be examined, being sworne. Seeing then for manifest contumacie the Kings tenants or others may be excommunicated, and this is indefinitely set downe: it will fol­low, that as in any other not performance of the decrees of the Iudge (according to the ecclesiasticall lawes) so in refusall to be [Page 76] sworne, whether he be partie principall or witnes, there is mani­fest contumacie. Vbi lex non distinguit, nec nos distinguere debemus.

Particularly in matter of tithes (being neither a cause Testa­mentarie nor Matrimoniall) the 27. H. 8. contemners of the processe, lawes and decrees of the Ecclesiasticall courts of this Realme, are by sta­tute condemned: but an vrging to answer or testifie vpon oath, is a decree of an Ecclesiasticall Court, ergo, may not be contem­ned. The Ordinarie Ibidem. in a suite of tithes for any contempt, contu­macie, disobedience, or other misdemeanours (vpon complaint) may haue the partie committed, till he shall be bound to giue due obedience to the processe, &c. decrees, and sentences of the Ecclesiasticall court of the Roalme: but requiring a parties or a witnesses oath, is such a decree. Therefore, &c.

Likewise by another statute, 32. H. 8. cap. 7. the Ordinarie may conuent for withholding tithes according to the lawes Ecclesiasticall: therefore he may conuent and cite a man Lay or other (if he be supposed to be a withholder) to answere vpon his oath. For so is the Ec­clesiasticall law.

Further, by that statute, the Ibidem. Ordinarie may proceed to hearing and determination &c. according to the course and processe of the ec­clesiasticall lawes: but the processe and course of hearing by that law, is by the parties personall answere vpon oath, if it be required; and by compulsories of witnesses to depose by oath, as is afore touched. Therefore, &c.

The statute of 2. & 3. Edw. 6. cap. 13. king Edward (touching tithes) prouideth, that both they and the costs, charges, and expenses in the suite shall be reco­uered before the Ecclesiasticall Iudge, according to the kings Ecclesi­asticall lawes: but for recouery of them, those lawes require (in cases aforesaid) both oath of partie and of witnesses: ergo, &c. By that statute is established, that the Ibidem. Ordinarie euen for perso­nall tithes may call the partie afore him, and by his discretion examine him by all lawfull and reasonable meanes, other then the parties owne corporall oath, concerning the true payment of such personall tithes. Ergo a corporall oath is in other ecclesiasticall causes a lawfull and reasonable means: for, exceptions are alwayes of the nature of the rule, and should be within the rule, if they were not excepted; and therefore also in all other tithes, as prediall and mixt, it is a lawfull and reasonable meanes to put the partie vnto his oath, quia [Page 77] exceptio firmat regulam in casibus non exceptis.

The statute for Vniformity of Common 1. El [...]z. cap. 2. ad finem. prayer, authoriseth ec­clesiasticall Iudges to enquire, to take accusations, and informations, and to punish the breaches of that act &c. in like forme as before had bene vsed in like cases by the Queenes Ecclesiasticall lawes: but in like cases (by those lawes) oathes both of parties & witnesses haue bene vsually taken. Therefore, &c.

One only instance destroyes a generall assertion; therefore if there were but any one instance to the contrary, an oath by law may be vrged of some lay man in some other cause then testamen­tary or matrimoniall: which being true, and the very contradictory of the opinion that is in issue (vpon this point) betweene vs, it must needs follow that the opinion is vntrue, and therefore not grounded vpon law: Quod probandum nobis proponebatur.

CHAP. XII. The grounds of the two next former opinions examined and confuted

THe ground of these two opinions last handled (for any thing that I could euer learne) doeth only rest vpon a precedent of a writ of prohibi­tion and of attachment thereupon. In treating whereof (for that I shall be forced to gainsay something, that is deliuered by graue, learned, and wise parsonages) I must first protest before God in sinceritic of heart, that I do it not calumniandi, sed veritatis studio; whereof I am something resolutely persuaded, in this behalfe. I do reue­rence and esteeme them that are contrary persuaded, being men of great learning in their profession: neither contemning nor condemning any, so much as my selfe, as being most priuie to mine owne wants, and therefore (I trust) something taught to measure my selfe by mine owne foot. Sed amicus Plato, amicus Socrates, magis amica veritas. The copy of this writ, I finde re­ported and set downe in two seuerall books. In the Register tit. prohib. Register (contrary to the vse of other precedents there) is deliuered but a parcel (as seemeth) of a writ, in two or three lines, in these words, viz. Rex vicecomiti S. Praecipimus tibi, quòd non permittas quòd aliqui laici ad citationem talis episcopi aliquo loco conueniant de cae­tero, [Page 78] ad aliquas recognitiones faciendas vel sacramenta praestanda, nisi in causis matrimonialibus & testamentarijs. T. &c. And in the margent thus: Prohibitio ne latci conuentant ad citationem episco­pi, ad recognitionem faciendam.

But the precedent of attachment framed vpon this writ, run­neth generally, without excepting so much as these two causes; euen as if a lay man (whether partie or witnesse) might not be vr­ged to answere or testifie, or to take an oath except he lust, in a­ny cause ecclesiasticall at all. For it is Reg. in br. orig. fol. 36. b. tit. Pro­hibitiones. thus, viz. Rex vicecomiti Salutem. Pone per vadium &c. talem episcopum, quod sit coram iu­sticiarijs nostris &c. ostensurus quare fecit summoueri, & per censu­ras ecclesiasticas distringi laicas personas, vel laicos homines & foe­minas; ad comparendum coram eo, ad praestandum iuramentum pro voluntate sua, ipsis inuitis; in graue praeiudicium coronae & dignitatis nostrae regiae; necnon contra consuetudinem regni nostri. & habeas ibi nomina pleg. &c. T. &c. And in in the margent it is entituled thus: Attachiamentum inde.

Also in the Abridgement of statutes Abr. Rastall cit. prohib. & consult. nu. 6. gathered by Rastall, I do finde a precedent of a prohibition set downe at large, mentio­ning a writ to like purpose to haue bene sent to the shiriffe; but none attachment thereupon: where of those words rehearsed in the Register (though something altered) seeme to be a parcell. In that point it is thus: Rex episcopo Norw. Salutem &c. Man­dauimus etiam vicecomiti nostro comitat. Norf. & Suff. &c. quòd non permittant quòd aliqui laici in Balliua sua, in aliquibus locis con­ueniant, ad aliquas recognitiones per sacramenta sua faciendas, nisi in causis matrimonialibus & testamentarijs. Whereby these three varieties do appeare, betweene this, and the former: First, that which is said heere by way ofrehearsall, that the king had sent such a writ to the shiriffe; seemeth in the Register to be set downe as conteining part of the writ it selfe, directed to the shiriffe.

Secondly, that which is here recognitiones facere per Sacramen­tum, is in the Register with the disiunctiue; viz. ad aliquas recog­nitiones faciendas, vel Sacrament a praestanda. Thirdly, in the Re­gister these words are added; ad citationem talis episcopi. That writ which Rastall setteth down at large (whēcesoeuer he had it) seemeth to be the perfect & whole copy of the originall, & ther­fore of more credit. It is also probable, that the gatherer of the [Page 79] Register did abridge out of this Writ at large, as hee thought good. For in the very Writs that went foorth in deed (the copies whereof bee in the Register) letters (for the most part) bee put there, in stead of the names of the parties: whereas, here it is ad citationem talis episcopi, & talem episcopum, without name or any letter for it; that might direct men to know, of what Writ it was a parcell; which argueth, it was not verbatim copied foorth of the Writ. Howsoeuer it be, the one of them must expound the o­ther, seeing they concerne one and the selfe same matter.

In treating therefore hereof; I mind first to shew, that albe­it these words did carie the sence y t is inforced; yet it may be, that the law is otherwise, then y t they are not of that acceptiō: & last­lie how they are otherwise meant, & what is that true meaning.

For the first, it is no lawe of necessitie; being neither Statute, nor Common lawe. No statute: for it is not in the Parliament rols, nor in any printed booke of statutes at large, nor in sundrie anci­ent written copies. It is no common law: for it is sayd to be for­mata prohibitio super articulis cleri ( 9. Edw. 2. which is a statute of late time in comparison) and the precedent of that Prohibition (as it is in the Register printed, & being vnderstood according to the mind of the Authors of this opinion) is contrarie to the generall cu­stome of the Realme. For by time immemoriall, all Ecclesiastical courts (without impeachment) haue cited both the parties prin­cipall for answere; and witnesses also, vrging them to depose by oath, in all the other seuerall causes also, that are prooued afore to be of ecclesiasticall iurisdiction and conusance.

I haue had of long time an olde Register in parchment writ­ten (as may be euidently gathered, and appeareth by the frame of the hand and letter) about king Edward the seconds, or king Edward the thirds time. In it there is no such precedent of prohibi­tion or of Attachment; as either the printed Register, or Rastals Abridgement of statutes, setteth downe. But there are many pro­hibitions vnto ecclesiasticall courts, that run in this sort, viz. Ne te­neatis placitum in curia christianitatis de catallis & debitis, quae non sunt de testamento vel matrimonio. And the first of this sort is thus entituled in the margent: Prohibitio regia de catallis & debitis quae non sunt de testamento vel matrimonto.

One thing besides I find there (in mine opinion) worth the no­ting [Page 80] for this purpose; yet not obserued in the printed Register. For such precedents of Originall Writs, as exceeded the memorie of any man, at what time they were first drawen & framed: that old booke setteth downe simply without any addition. But if they were of later times deuised; then this marke & title is giuen vnto them in the margent, viz. Prohibitio formata, or breue, &c. formatū. Now Rastals Abridgement giueth the like title to the writ (wher­upon this controuersie groweth) viz. Prohibitio formata super arti­culis cleri: which argueth that there is no such original writ of old at the common law; but that it was thē newly deuised to meete with a new mischiefe. Quae de nouo emergūt, nouo indigent auxilio.

The being of it in the Register, doth not make it of necessitie to be law; for sundry of those writs were framed of late times (as may appeare to any that wil peruse thē) vpō particular mēs suits (& as occasiōs fel forth) & somtimes (perhaps) drawn vpō priuate suggestiōs of the counsel of one side, though afterward allowed.

Nay in my said old written Register of writs, there is a precedēt which (as I take it) goeth not now for lawe. For there is a direct writ to the shirifs of London; signifiyng, that no Clerke (though he forfeit his recognizance of statute merchant) shalbe 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) 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 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 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 [Page 81] 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 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. 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 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, 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) [Page 82] 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 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 grā ­ted 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 Ibidem. thus, viz. That suites for tithes shalbe 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 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 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 [Page 83] said, necessarily to report what is lawe: for that Prohibitions are so often reuersed & disanulled againe, by consultations: as might haue happened in this very-matter; for any thing that can be certainely knowen, as well as in any other such like.

For the second point, that Recognitionem facere, simply and absolutely, cannot signifie the answere vnto the Libel of the par­tie conuented, nor the deposition of witnesses, may appeare: be­cause this fourme of Prohibition, is said to be formata super Arti­culis Cleri, But out of them no such matter can (with any colour) be gathered; & therefore being taken in such sense, must needes be a glose besides his text.

Againe, I finde in the fourme of another writ in Fitzherbert, where Sacramento recognoscere, so being ioyned together, Fitzh. nou. na. breu. fol. 31. doth signifie a testification by oath. Likewise in sundry Reg. in br. Iu­dic. fol. 7. a. 12. a. & 75. a. writs of the Register, recognitio per sacramentū velrecognoscere per Sacramentū, is vsed for a deposition, vpon oath. But where Recognitionem fa­cere (without further addition) should signifie a parties answere, or witnesses deposition, I doe not call to minde that I haue read in any, so much as pretending to write Latine.

Howesoeuer it might be shewed in other, surely in that Prohi­bition, which is in the Register (for auoiding many absurdities) it cannot so signifie. for the Register reades it, that the Sherife shall not permit laye men to come together in any place, ad recogni­tiones faciendas, vel Sacramenta praestanda, but in those two cau­ses. So that by the disiunctiue (Vel) whatsoeuer recognitionem fa­cere be there: neither that may be done, nor an oath in any other cause may be taken by any Lay man whatsoeuer, though other­wise he were willing. For the word Laici is indefinite, not restrai­ned to any one sort of Lay men: and so that which is here forbid­den, is simply forbiddento all Lay persons, and in al other causes, whether they be parties or witnesses, willing or vnwilling, with oathe or without oathe. For in the Prohibitiō there, no mentiō is made of that clause, which the attachement thereupō doth inserte, viz. ipsis inuitis. So that, if that precedent of Prohibition be of it self perfite: this which I haue said, doth thereupon necessarily follow. But if any thing be to be vnderstood, which is not expressed: then why may we not (for recōciling of Rastels writ & this together) safely affirme; that they be both to be vnderstood, of recognitions [Page 84] and oathes giuen (in deede) in eccles. courtes, but yet touching goodes & chattels, no way concerning matter, either testamentarie, or matrimoniall. It cānot be truely said, that recognoscere is Sacra­mentū praestare, or recognitio, to be the same that Sacramentū ipsū, the oath it self. This is proued by the precedēt of that very prohi­bitiō in the Register: where they are distinguished, as two seueral things, with a particle disiunctiue. And like wise by the writ, in Ra­stals Abridegemēt. for there the recognitiō is forbiddē to be made, per Sacramentū: & therfore not the same, but diuerse things: see­ing no matter is the selfe same thing with that; which is but his adiuncte. Then being not the same things, & both forbiddē; and presupposing the interpretatiō that is vrged: it wil follow that no Lay defendant neede, nay he may not recognise (though without oath) or make any answere at all, in any other cause eccles. then those two. So that there wil neuer be issue ioyned; and so no plea ecclesiasticall, sauing in those two causes. For will any defendant (thinke ye) make any answere at al, either whē a thing is demaū ­ded of him that he list not to yeeld vnto; or when he is cited to be punished; if neither he neede doe it, nor yet may by law, though he would? But admit the defendant would be willing, & would aduenture the daunger of lawe, for answering to the plaintife, & ioyning issue with him: yet how many such pleas could proceede any further; whē no lay witnesses might be vsed, either with oath or without oathe, to make recognition, or to depose? And if Rastals writ be law, & so to be vnderstood, as is nowe enforced: so that witnesses may not testifie in other causes then those two super sa­cramenta sua; their depositiōs (as of men vnsworne) must needes be meerely void, by al lawes diuine & humane. So that if the pro­hibition be not meant of holding plea touching goodes or chattels in other causes, it must needes sort to this point; that in no cause (besides those two) any lay persō may (by law) though he would, come to answere or testifie, with an oath or without an oath, in a court ecclesiastical. But this is absurd & vnreasonable to imagine, and wilbe so confessed, euen by those who stand in this opinion: and therefore that must needes be also absurd, whereupon it ne­cessarily followeth. For omne verum vero cōsentaneū: and, by the rule of reason we knowe, Ex veris possunt nil nisi vera sequi.

Nowe for proofe that it is absurd and contrary to lawe, thus I [Page 85] proceede: No plea can be holden, but where there is one that af­firmeth, and another which denieth that which is affirmed: and then either matter of recorde or witnesses must be vsed, to proue the intention of the plaintife: But in sundry other causes then those two, pleas (by law) may be holden in a court ecclesiasticall; (as I hope) manifoldely and sufficiently, is afore shewed in this Treatise: and therefore in those other causes, Lay men may, and ought to answere and testifie: which is the contradictorie of that, which doeth necessarily followe, vpon this their interpretation. So that this conclusion being true, the contradictory of it is vn­true; and then that vntrue also, whereupon it is necessarily con­sequent. For (as I said afore) I trust no reasonable man will con­ceiue, that onely ecclesiasticall men will prooue deteiners of such ecclesiastical dueties, and culpable in those offences, that are pro­ued (afore) to be of ecclesiasticall conusance: nor yet that they on­ly shal alwayes happen to be present, and able to beare witnesse, in all those other seuerall ecclesiasticall causes, afore touched.

Furthermore to make it more plaine, and to deliuer it in seue­ralty; recognitionem facere cannot signifie (in this place) the an­swere of the party conuented. For if a lay man against whō there is cause of action, vpon some other of the matters ecclesiasticall list not, nay if he neede not, and which is more, if (by law) he may neither come to the place, nor (being come) may answere either yea or no; then could no plea at all in any such ecclesiastical cause be holden. If it be said, that a Lay man must answere, but not by oath in such other cause: I replie againe, that either the Register hath not the writ aright printed, or else this no way can be so meant. For by the disiunctiue (vel) when the proposition is nega­tiue and prohibitiue, as it is here, both the one and the other is forbidden to be done. Arg. l. 13. cùm ita ff. de rebus dubiis. A disiunctiue argueth seueral things, that had neede to be expressed by seuerall wordes.

And by like reason it cannot be meant of witnesses depositions: for if the partie conuented shall be content de facto, (though he be not compellable by lawe, as this opinion presupposeth) to de­nie the intention of his aduersarie; then no Lay witnesse might in any such other cause ecclesiasticall, be vsed, either to depose with oathe or without oathe; because both be forbidden, and so no plea in any such other ecclesiasticall cause coulde be holden, [Page 86] which is afore prooued to be otherwise: and therefore conse­quently, that is not the meaning of these wordes of the writte, which is (by Fitzh. nou. na. breu. fol. 41. a. Fitzherbert and others that follow him) enforced.

Touching the writ of Attachement thereupon whether (as it is set out in the Register) it may be holden to haue bin an originall writ at the Common law, drawen (at first) by the grauest aduise in the Realme; & to be so perfite, as that nothing (further then is expressed by the words) neede therein to be vnderstood to come by the true meaning: may partly be gathered by that which fol­loweth. First it is said, pone talem episcopū, not vsing letters for his name, as in most of the other writs. Next, a Bishop (who in that he hath a Barony, is presumed to haue temporalties whereon to be distreined) is here appointed to finde vadios & plegios. Thirdly, it hath laicos homines & foeminas; as if women were not homines; seeing homo is the cōmon gender. Fourthly, though the prohibiti­on (whereupō it is framed) forbiddeth both recognitiōs to be made, and oathes also to be taken by lay men: yet the Attachement wholly omitteth the making of recognitions. And yet howe many oathes soeuer should be giuen if none answeres or depositions doe there­upon euer followe (which two the opinion that we impugne, meaneth by recognition) what colour of preiudice doeth or can growe, that either Prohibition or Attachement, should neede to be awarded? Fiftly, neither by Ciuill nor Canon lawe; neither yet by practice; doth any sommons or citation goe out of an ecclesi­asticall court, in such sort, as this Attachement assigneth, to be a preiudice vnto the royall dignitie, viz. ad comparendum coram eo, ad praestandum iuramentum, pro voluntate sua; ipsis inuitis. For it were a grieuance giuen (euen at the Canon lawe) if an Ordinarie should either call any being not a partie or necessarie witnesse in some matter depending, or should call witnesses against their will, not being first required, and hauing their charges offered; or if he should do it, when there is no cause, but Pro voluntate sua. for his owne plea­sure, as this writ implieth. Sixtly, the proceeding hereby condem­ned, is saide to be done; in praeiudicium graue, coronae & dignitatis nostrae regiae. But if no matters be thereby drawen from the kings courtes, as in deede none be (though you followe the in­terpretatiō thereof by some enforced) then what preiudice com­meth to the crowne? For, though lay men be vrged to depose [Page 87] vpon their othes, in all other causes besides, that be of Ecclesiasti­call conisance; what damage or detriment doth the Crowne and dignitie royall thereby susteine; more then it doth by their com­pulsiue deposing with othe, in causes Testamentarie and Matri­moniall, which this opinion admitteth and alloweth of? For if none other causes Ecclesiasticall then those two, could conueni­ently be proceeded in, nor any remedy could be giuen by a court Ecclesiastical, for want either of the parties answere, or witnesses de­positions vpon othe: yet could not Temporall Courts (as the Lawe standeth) giue any more remedy in them. And so no preiudice to them or to the Crowne, that Courtes Ecclesiasticall do proceed as they do, to the determination of such causes. Nay rather on the other side it were a preiudice to the Crowne, that subiects should offend, and no good meanes should be found by Law to punish them; or to haue a right, & yet no way for them to come by it.

Seuenthly, that which is there condemned, is said to be Consuetudine praed. vsi fueri­mus semper li­bettatibus huius­modi. Prohibi­tion in Rastell. tit. Prohib. nu. 6. con­tra consuetudinem regni nostri. which doeth strongly argue, that vrging parties in other Ecclesiastical causes to put in their answere vpō their othes, or witnesses so to testifie; is neither by that fourme of Prohibition forbidden, nor by the Attachment thereupon, ment to be disallowed. For (first) the custome of diuers Courts Tem­poral, requireth parties answeres vpon othe; and likewise alloweth Writs of sub poena and other processe (in sundry cases) to compel witnesses to come in, and to testifie their knowledge.

And againe; in Courts Ecclesiastical, the custome hath alwayes bene, to require othes of parties and witnesses (though otherwise vnwilling) in maner as is a fore touched. Which may appeare, both in that the Lawes Ciuill and also Canon, which they deale by, doe require it: and that no bookes of Actes Ecclesiasticall (as I am verely perswaded) can be shewed, whether of olde or later times; by which it may not appeare, that this course of compel­ling parties and witnesses to take othes, in other causes then those two; hath bene vsed, so often as occasion hath required. And therefore not this, but some other maner of proceeding it was; which by the Writte of Attachment is meant, to be contra con­suetudinem regni.

Lastly, this fourme of Attachment, mentioneth not so much, as excepting of compelling to take othe, in causes Testamentarie [Page 88] and Matrimoniall; albeit the prohibition haue that exception. And therefore for auoyding of iarre betwixt them, something must necessarily be vnderstood, to haue bene at first in the Writ it selfe (whereof this is a minute) further then is here expressed. And why shall not then, the clause de catallis & debitis be vnder­stood therein, aswell as this other; seeing so strong probabili­ties doe leade it, and so many absurdities and inconueniences be thereby auoyded; which the late enforced interpretation doth (necessarily) inferre with it selfe?

Therefore wee may conclude this second point: that to de­barre Courtes Ecclesiasticall, in any cause of that Iurisdiction, from exacting parties conuented to put in their answeres vpon their othes, or from compelling such witnesses (by censures) to testifie, who being required, and their necessary charges being offered, doe neuerthelesse refuse to testifie a trueth: is not, nor yet can be, the meaning of that Prohibition, or of the Attachment thereupon.

The last point of the three to be touched, is concerning the true meaning of those wordes of the Writte, whence these con­trouersies haue flowed. It is therefore to be remembred, that it was very vsuall for men in those dayes, at making of any con­tracts, whether in matters of Lay fee or others, for their more se­curitie, to make faith or othe, for performance. This they either did priuately, for confirming of deedes drawen betwixt them: or else (for more readinesse of dispatch and better testimonie) they Register. pag. 37. would recognize one to another such contractes, with faithful promise (called fidei[?] praestatio) and sometimes with Register. pag. 43. monstrauit nobis Matilda. cor­porall othes voluntarily taken before Ordinaries, and therefore procure an Acte to be made by a publicke Notary. Then, if ei­ther paertie failed in performance, he was by Processe Ecclesiastical called before the Ordinary, as to answere for an Acte done afore him, or fidei laesione: which failing, being confessed or proued, the Offendour was enioyned grieuous penance, and (no doubt) oftentimes compelled by censures, to keepe his faith or othe, by satisfying of the other partie.

This course being so ready at their owne doores in euery Dioe­ces, and of so speedy execution; for the great feare then caried (by most sorts of men) vnto the censures Ecclesiasticall, and for grie­uousnes [Page 89] of the penance otherwise; grew to be very vsuall in eue­ry place; as may partly appeare by the often disputes vpon pro­hibitions brought hereupon (euen after this Writte was framed) that are here and there mentioned in the bookes of the Common Law, and are afore touched by me in c. 8. huius part. the 8. Chapter: and partly may be shewed by sundry old euidences and instruments, recor­ded in ancient legers, and in Acts of Ecclesiasticall Courts, before the time of Edward the second, which I haue seene and perused. Namely I haue ready to be shewed, a solemne contract in wri­ting made almost 400. yeres agone: wherein the Earle of Arun­del, vpon a concord then made for himselfe and his heires, pro­miseth and graunteth to the Archbishop of Canterbury and to his successors, certaine red deere and fallow of both seasons, yeerely for euer, to be at a certaine place deliuered for the Archbishop, out of the forest of Arundel. For the obseruation whereof, he there bindeth himselfe and his heires, by a corporall othe taken; and further graunteth, that if he or they faile herein, then the Arch­bishop shall excommunicate them so failing, and keepe them vn­der the same censure, till the purport of that agreement be per­fourmed.

I haue likewise to be shewed, an olde written booke of 23. Ed. primi. Acts Ecclesiasticall, sped in the Audience Court of the Archbishop of Canterbury in the reigne of King Edward the first, wherein sun­dry suites pro laesione fidei of that nature be conteined. The thing which gaue colour hereunto, was the pretence of auoy­ding and punishing the sinne of Periurie. For the Canon Lawe saith thus: Iuramenti causa, regulariter quis forum Ecclesiasticum, & non seculare sortitur. c. praedicandum. 22. q. & D D. in c. cum sit ex. de foro competenti.

If (saith a learned writer on Panorm. in c. cum sit. de foro competenti. the Canon Lawe) the Action be touching an othe in respect of the Court Poenitentiall, or be commen­ced for release of the bonde of such othe, so that it respect not princi­pally the commoditie of some Lay person: or if it bee doubted, whe­ther the othe be lawfull or not, be to be kept or not; then the conisance of it doeth belong to a Court Ecclesiasticall. And in Panor. in c. qualiter. el. 2. de accusat. another place thus: When the partie to bee damaged by violation of the othe, is such, as cannot vse Action: or when enquirie is made for the correction of the Crime; then may the Iudge Ecclesiasticall [Page 90] enquire euen against a Lay man not obseruing his othe. Insinuating, that in all other cases, violating of othes by that Lawe belongeth to the conisance of a Temporall Court. And the statute also of circumspectè agatis which alloweth punishment by the Court Ec­clesiasticall for breach of an othe, but distinguisheth not there, in what causes or how farre, did giue herein some incouragement. So that the mischiefe that grew hereupon was this: that most Lay contracts of goods and chattels were by this meanes drawen into Ecclesiasticall Courts, though (in trueth as I thinke) contra­ry to the Common Lawe of the Realme. For if the principall mat­ter be of Lay conusance, for confirmation whereof such faith is made, or othe taken; then (according to the distinction Cap. huius partis 8. afore prooued out of the Common Law) it is not such faith or othe, that will change the authoritie of the Court, to make it simply of Ec­clesiasticall Iurisdiction. For so Bracton. lib. 5. cap. 9. Bracton writing in the time of Henry the 3. testifieth, and withall giueth good light and eui­dence, to the interpretation hereafter following, of those words of this Writ: Iurisdictionem regiam non mutat fidei interpositio, sa­cramentum praestitum, nec spontanea partium renuntiatio, quamuis sibijpsis in hac parte praeiudicent per consensum: & illud idem dicen­dum erit de debitis & catallis, quae non sunt de Testamento vel Ma­trimonio, vel eorum sequela.

It was Grauam. 64. one of the hundred Grieuances which the Germaine na­tion complained of: that Ciuill causes and contracts, by pretence of faith or othe giuen, were drawen into Ecclesiasticall conisance.

Therefore to meete with this mischiefe, and to cut off the oc­casion, this Writte of Prohibition seemeth to haue bene framed, viz. to forbid Lay men in any place, either before Ordinaries, or in priuate amongs themselues, to make any recognitions or ac­knowledgings: whereof? of debts, or of cōtracts touching goods and chattels by their faiths or othes taken, in any cause whatsoeuer, besides Testamentary or Matrimoniall. For in these two causes neither then, nor at any time since (as in part is afore shewed) was it vnlawfull, for Lay men to make acknowledgement and depose in a Court Ecclesiasticall vpon othe, though it touched goods and chattels. In matters Testamentary, as in Probats, and in legacies of goods and chattels in demaund; in matter of inuen­taries, and of accounts of the deads goods and chattels. In mat­ters [Page 91] matrimoniall, as in money promised with a woman in mariage, as is more fully shewed in the 3. Chapter. And so this writ is not simply prohibitorie of all Recognitions and Oathes (by lay men) in Ecclesiasticall Courtes, excepting those two causes: but onely forbiddeth Recognitions and oathes in other causes made or taken, that doe touch debtes, goods and chattels, or other such lay contracts, and all citing of parties to take them, or which haue taken them, and all citing or compelling of witnesses to depose touching such contracts about goods and chattels: though confirmed by faith or othe of the contractours.

Nay there is strong euidence to be brought; that not many scores of yeeres, before the 9. of Edward the 2. (when as Articuli Cleri were enacted, whereupon that Prohibition is said to be fra­med) the Clergie both vsed, and thought they shoulde haue wrong to be barred from hearing all breaches of faith and periu­iurie arising of, or touching what cause soeuer: so they dealt not with the very Temporal causes themselues whereupon such faith or othe was confirmatorie. If (saith a Constitution Cōstit. aeternae sanctio. de poenis­in Concilio apud Lambhith sub Bonifacio Anno 1260. tempore Henrici 3. Prouinciall of Canterbury) perhaps our Lord the King in his Attachments, prohibi­tions, summons, shall make mention not of tithes, but of right of Patro­nage: not of breach of faith or periurie, but of chattels: not of Sacri­lege, or disturbance of liberties Ecclesiasticall, but of trespasses of his subiects, the correction of which, he affirmeth doth belong to him: then let the aforesaid Prelats make known vnto him, that they neither take conisance, nor minde to doe, touching Patronage, chattels, or other things belonging to his Courts: but of tithes, sinnes, and other causes meere Spiritual, belonging to their Office and Iurisdiction. Where­by we first gather, that the Common Law herein was not then re­solutely agreed vpon; in that they conceiued, this allegation tou­ching faith broken and periury, would satisfie the King and his Courts. And secondly that the Kings Writs of prohibition and At­tachement (in this behalfe) were then awarded, but for faith and othes made, concerning goods and chattels, because by that pre­tence, the conisance of chattels was drawen into Ecclesiasticall Courtes.

I do finde in an old written parchment booke of statutes, rea­ching downe but to H. 5. death; many matters of marke contei­ned amongs the statutes. As among others there be, regiae con­suetudines [Page 92] apud Claringdon promulgatae. which (as is there rehear­sed) were by K. Henry the second, propounded in Parliament vn­to Thomas Becket, then Archbishop of Canterbury long before that Prouinciall constitution. Most of which, he did condemne by his censure, as preiudiciall to the liberties of the Church: And this is said there, to haue bene the originall cause, first of his banish­ment, and afte [...] of his death. But some of those customes, Becket did tolerate; whereof this is one, seruing to our present purpose, viz. Placita de debitis, quae fide interposita debentur, vel absque inter­positione fidei, sint in curia regis. Hoc tolerauit.

At the ende of that Treatise it is saide; that foure yeeres after Beckets death, viz. 1174 of Christ; the King repenting himselfe, did together with the Prelates and greatmen of his kingdome, abro­gate and condemne those euill and vniust customes; appointing onely those that were good, to be thencefoorth obserued. Yet (saith he) some of those that were so abrogated by the king, and condemned by the Church; are still obserued in the kingdome. If this be with the kings knowledge and allowance, let the King looke to it, for God know­eth it.

The chiefe cause why I note it, is this: that it was euen then thought a Custome of the Realme; and by Becket himselfe allow­able and tolerable; that Pleas of debts, though faith or othe were giuen for their payment, belonged to the Kings temporall Courtes. Next is, that hence may be gathered, how the Recognitions and othes forbidden to be made in Courts Ecclesiasticall by the Writs which we here dispute of; are to be vnderstood of such of them onely, as concerne debts or chattels; sauing that in causes Testa­mentary and Matrimoniall onely, they may be there made and acknowledged, albeit they concerne debts and chattels.

It may also appeare euidently, that the Recognitions forbidden to be made in Courts Ecclesiasticall in any cause sauing of Testa­ment or Matrimony, ought to be vnderstoode of Recognitions and othes about debts and chattels. For lightly in euery place, where these two matters of Testament and matrimony are spoken of, there also debts and chattels are spoken of to this effect; that in these two cases, Pleas of debts and chattels may be handled in Courts Ecclesiasticall, but in none other. Bracton (who wrote before this Writte was framed) saith Bracton lib. 5. cap. 2. thus: Si Clericus petat [Page 93] versus Clericum vel Laicum, debitum, quod non sit de Testamento vel Matrimonio, sequi debet forum Laicale. And Ibidem. againe a litle after: Non pertinet ad regem cognoscere de catallis, quae sunt de Testamento vel Matrimonio. Likewise in a precedent of a prohi­bition, he Ibidem. lib. 5. cap. 3. & cap. 10. & 13. vseth this addition: Nec teneatis placitum in curia Christianitatis de catallis vel debitis, quae non sunt ex Testamento vel Matrimonio.

In the Prohib. & Consul. nu. 3. & 7. booke of Entrees the like is often found, as Attachia­tus fuit ad respondendum tam Domino regiquàm N. de placito, qua­re secutus est placitum versus eum in curiae Christianitatis, de catallis & debitis, quae non sunt de Testamento vel Matrimonio. And in a Consultat. 2. copie of Consultation there: callidè machinans impedire, sugge­rénsque in Cancellaria nostra ipsum tractum fuisse in placitum coram vobis in curia Christianitatis, de catall [...]s & debitis quae non erant de Testamento vel Matrimonio &c. Yea, and in Register. Ibidem tit. Prohibitiones. the Register it is set downe more plaine a great deale in a copie at large of a Pro­hibition, vpon the same point, and with the same causes excep­ted, being the next following to that which wee (principally) doe here treate of. For the very worde of Recognitio before an Ordinary, is there vsed and applied to a debt or contract touching goods and chattels. Cum recognitiones debitorum (quae non sunt de Testamento vel Matrimonio) ad nos, coronam & dignitatem no­stram (& non ad alios) pertineant in regno nostro: & executiones earundem per nos & ministros nostros (& non per alios) fieri debe­ant: ac iam ex querela I. acceperimus quod vos ipsum I. ad viginte solidos, quos coram vobis nuper in curia Christianitatis recognouit se debere A. eidem A. soluendos intra certum tempus iam praete­ritum monuistis, & in ipsum I. pro eo, quod praedictos viginti solidos in­tra tempus praedictum, ad monitionem vestram soluere recusauit, (quanquam huiusmodi recognitio Testamentum vel Matrimonium non tangat) &c. excommunicationis sententiam fulminastis &c. vo­bis prohibemus, &c. And the very like words, to the same effect, and with like exceptions, are there vsed in the fiue precedents of Prohibitions, next in order following.

And in the olde written Register (afore spoken of) there be many copies of Prohibitions set downe; in all which whensoeuer that exception of causes Testamentary and Matrimonial is men­tioned, that clause de catallis & debitis quae non sunt de testam. &c, [Page 94] commeth in with all. In the printed Register among the Writs Iudicial, we haue these Regist. in Br. Iudic. fol. 38. a. words: Quare secuti sunt placitum in cu­ria Christianitatis de catallis & debitis quae non sunt de Testamento vel Matrimonio. And againe: Ibid. fol. 39. a. cum traxisset in placitum in curia Christianitatis de catallis & debitis, quae non sunt de Testamento vel Matrimonio &c. prohibitionem impetrauit. We haue further, in the Register of originall Writtes, to this effect: Regist. in Br. origin. fol. 57. b. Quatenus ad corre­ctionem animae & non placita de catallis & debitis concernunt, &c. li­citè ex officio procedere poteritis, &c. And in diuers other Writs of Regist. in Br. orig. fol. 46. qua ter. & 49. a. Consultation there, to this purpose: Prohibitionem nostram impe­trauit, asserens se trahi in placitum in curia Christianitatis, de catal­lis & debitis quae non sunt de Testamento vel Matrimonio &c. In­so much, that this Regist. in Br. origin. fol. 46. b. & 49. a. in fine. Writ is entituled as by his name thus: Prohi­bitio nostra, or regia de catallis &c.

I finde a Consultation in the Regist. in Br. orig. fol. 54. a. Register, where is rehearsed: that certaine Lay men of Couentree were by compulsories, called into an Ecclesiasticall Court, as necessary witnesses (in trueth) in a cause of legacie; yet they to auoyde apparance, and to obteine a Pro­hibition; suggested that they were drawen into the Court Chri­stian to testifie, about chattels and debts, not belonging to testament or Matrimony. Now if that meaning (of the Writ in controuer­sie) which we here impugne, were true; what needed they to haue mentioned chattels and debts at all? for then, the other part of their suggestion (though false) had bene (in Lawe) sufficient, to haue obteined the prohibition, viz. That they were called, a­gainst their wils, to testifie in a Court Ecclesiasticall, touching mat­ters, being neither Testamentary nor Matrimoniall. But seeing they were driuen to pleade both: it argueth, that citing men to take othes, and to depose against their wills, in any other cause then those two; is not simply and absolutely prohibited; but for that the matter concerneth chattels and debts, and yet is neither Testamentary nor Matrimonial. And therefore not that (which of late is enforced) but this meaning of the Writ by me deliuered, is the true interpretation thereof.

The very Writte it selfe set downe by Abridgement of the statutes. Prohibition. 6. Rastall at large, doth establish this interpretation: Rex Episcopo Norwicensi &c. salu­tem. Cùm cognitiones placitorum, &c. super turatis Recognitionibus Laicum feodum contingentibus, & rebus alijs ac causis pecuniarum, [Page 95] & alijs catallis & debitis (quae non de testamento vel matrimonio) ad coronam & dignitatem nostram pertineant &c. for, if Iurata recog­nitio (being in the same writ) should signifie a diuerse thing: then must we needes say, that the recital speakes of a matter to be re­medied, and yet the remedie giuen is of another nature, and so not pursuant to the former.

Furthermore, the tenour of that writ runneth to the Bishop of Norwich, and to his Archdeacons, &c. yet those wordes thereof, (whereupon the doubt riseth) are not directed to them, as if they should be charged thereby (which had bin most apt, if any such thing had bin meant) not so to cite lay men, or that they should not charge them with such oathes, or that they should not suffer such Recognitions to be made afore them: but it is there saide, that the King had commaunded the Sherife, that he should not permit, quod laici conueniant in aliquibus locis ad faciendas recognitiones, &c. which vse of the wordes ne laici conueniant, and the changing of the persons, argue strongly that it was meant of such recogni­tions of debts and chattels, and such oathes, as Lay men of them­selues were willing ynough to make; and therefore had neede of such restraint, by the Sherifes authoritie. which their volunta­rie perfourming thereof, without vrging by censures; is also ar­gued by that which is there said of the Ordinaries accepting at Lay mens hands of such things: viz. vobis praemissa, & alia consi­milia, in partibus illis, acceptantibus. This of their willingnesse without constraint, is also prooued by the wordes immediatly following the point in controuersie, viz. & ne super huiusmodi feo­dis, debitis & catallis, coram vobis & alijs iudicibus Ecclesiasticis, in praeiudicium iurisdictionis nostrae regiae ad coronam & dignitatem nostram spectantibus, subire praesumant.

Whereby (as in a thing needefull) Lay men are charged not to dare or presume in any other causes before Ordinaries to make any such Recognition or oathe, touching goods or chattels, preiu­diciall to the Crowne: by which wordes, this our interpretation is expressely established. Nowe if those wordes in the copie of the Prohibition and of the Attachement in the Register shalbe ob­iected against this, viz. Ad citationem talis Episc. And those, Ipsis inuitis: I answere, that for many absurdities thereupō following, which are afore noted; these wordes cannot stand with the writ [Page 96] in Rastall, nor with the interpretatiō that is by some of late vrged. But vnderstanding them (as I declare) of citations and compulso­ries to make answere or testifie by oathe, concerning chattels and debtes, not belonging vnto matter testamentary or matrimoniall; maketh al most aptly to agree together. For whether we say, that Ordinaries then vsed to cite all in generall of their Dioecesse, who had made promises or contractes in lay causes, by worde onely, (or by writing) to come and confirme them, by their faith giuen, or by their corporall oathes before them, for better confirmation and securitie of the bargaine, as some wise and learned haue thought very Pro huiusmodi rebus (per vices) trahitis coram vobis. Prohibiti­on in Rastall, vbi supra. probably: or whether they be meant of citing par­ties to put in their answeres by oath concerning such chattels & debtes in demaund, confirmed by faith or oath giuen; or of wit­nesses being not willing to depose in those causes, or of all these three: it is assured, that he, who findeth himselfe grieued thereby, wilbe vn willing: and that albeit the pretence of such Ordinarie be to punish the sinne onely; yet hereby (per obliquum) the coni­sance of lay contractes wilbe drawen to eccles. courtes, and so the Kings courtes (vnto which they properly belong) shall thereby be encroched vpon, & preiudiced. But this cannot be truely said, touching matters of meere ecclesiastical conisance, being neither testamentarie, nor matrimoniall; though lay men be vrged by courtes eccles. to answere or testifie in them vpon their oathes.

Besides, what damage cōmeth to the cause nowe by vs defen­ded; if we say, that the absurdities following vpō such their inter­pretatiō being not a fore wel weyed, & he out of whose copy the Register was printed, vnderstāding it as they doe; was content to adde those two clauses, for an explanatiō of the said writs, accor­ding to his owne meaning; or that he was willing they should so be vnderstood? which perhaps enduced him to make such a briefe abridgement, of so long a writ. For it doeth not appeare, that be­fore the imprinting, it was perused & allowed by any the Iudges then being; or by any others, deputed by publike authoritie, for the reuiewing and correcting of it. No doubt if it had bin (that I speake of nothing else) so many grosse errors in the Latin both a­gainst cōgruity & al sense, as in every leafe (almost) of the copie which the Printer followed, are to be found; could not haue so escaped, without cōtrolement and amendment. But the former [Page 97] wordes set downe by Rastall at large in the writ in selfe (where neither of these last recited clauses are to be found) are too cleare in this point, to be dimmed by any such light colours. But if here­upon it be perhaps graūted (as the authour of the Treatise doth) that witnesses may take oath & depose willingly, in other ecclesia­sticall causes, at the request of some of the parties: I must then call to their minde, that I haue shewed afore, that (following their owne interpretation) they may not, though they be willing. Yea though witnesses might, if they were willing; how can a reasona­ble man entend, that the partie to be sued, will come in at all, but much lesse answere, if he may not be cōpelled vnto neither: viz. ne (que) ad recognitionem faciendā, ne (que) praestandū sacramentū: as Fitz­herbert (in his natura breuiū) also doeth vnderstand and reade it. And the wordes reach vnto all lay persons, not distinguishing a partie from a witnesse.

Againe, by that their interpretation of recognition & oath, they could neuer haue such witnesses that be indifferent, as in part is afore touched. For if witnesses may not be vrged to sweare or to answere further then they list themselues; then will they onely answere to the matters propounded by him who produceth them, and wil refuse to answere the Interrogatories propunded by the other partie for his defence, by whom they were not reque­sted to come. Which course (vpon the matter) taking away all testimonie, that ought to be indifferent for either partie, in such pertinent matters as are to be demaunded; is contrary to the lawe of God, of nature, of nations, and to the very qualitie of a witnesse. Decius saith: Decius in l. 2. C. de edendo­nu. 43. Si testis deposuit pro vna parte, & interrogatus pro alia noluerit respōdere, illi fides adhiberi non debet; quia praesumitur sup­primere veritatem. And so the course being most vnreasonable, that whereupon it followeth, must needes be also very absurde, and against Iustice. By all which premised discourse, it is made (I hope) manifest, whether Fitzherbert had good ground out of that fourme of Prohibition and Attachement to Nou. nat. breu. fol. 41. litera a. gather; not onely that Ordinaries must expresse a particular cause in all their Citations: but also, that if they expresse any cause at all in the Citation, that (it seemeth by that writte) it must bee a cause ma­trimoniall or testamentarie. For seeing they haue none other meanes besides Citations to summon men to their Courtes: [Page 98] What is this latter collection (built but vpon a doubtfull see­ming) else then an asseueration implied; that none other of the causes (afore) proued to be of ecclesiasticall conisance; shall euer be dealt in, by any court ecclesiasticall? and so (vpon the matter) in no court at all; for that temporall courts be out of iurisdiction in those matters. Which howe it may be defended from grosse ab­surditie, I would gladly learne from any, that patroniseth this o­pinion. But if the lawe were so in deede, that none should be cal­led into ecclesiasticall courts, but for those two causes: I marueile what the Preshyteries (so much doted after especially by sundry fauourers of this interpretation) would doe here in this Realme, when their Cōsistorial power should be so lopped, that they could not call any man before them, but either in testamentarie causes (which they make in other mens dealings to be meere Ciuil cau­ses) or matrimoniall, many of which also they now seeme willing to abandō, as temporall matters? for they should be driuen, either to be kings of molehils; or else to preache in the most vehement veine they haue, against that lawe and those magistrates, which (in such sort) would restraine them: as if they were both Anti­christian, at least for hindering and so impounding of the preten­ded gouernement of Christ: that thereby they might at length be set at libertie, to deale in their Consistories against all crimes whatsoeuer, according to their owne platfourmes. Yet herein they should deale very vnequally; because they will not nowe suffer that, vnder this gouernment; which themselues would pra­ctice against crimes in a farre more ample, and peremptory ma­ner, then either nowe is done, or were meete to be suffered.

In the bookes of the Common lawe I finde also some cases, that giue strength to this interpretation. For an M. 44. E. 3. fol. 32. Attachement vpon a Prohibition was sued, because they sued in a spirituall Court for haye and money, which touched neither matrimonie nor testament: and after vpon shewing the Libell, which prooued that it was for tithes and oblations, a consultation was graunted.

Likewise M. 38. H. 6. fol. 14. a Prohibition was sued foorth of the Chauncery (dire­cted to the Iustices of the common Pleas) to make an Attachement, because the defendant had sued the plaintiffe in the spiritual court for debt, which did not touch matter of matrimonie nor testament, where­of the conisance belongs to the Kings Court: and thereupon a prohi­bition [Page 99] was granted thence. Wherein it is woorth the noting, that Fitzherbert (in his Fitzh. Prohi­bition, nu. 5. Abridgement) leaueth out these words (for debt) contrary to the booke it selfe at large, and also Brooke. Prohi­bition, nu. 6. to Brooke. I will not say it was to giue colour to his opinion in his Natura breuium, as if he ment to haue it sound, that no matter at all, but either matrimoniall or testamentarie, might be sued in court spiri­tuall, whereas by these two reports it may appeare, that Prohibi­tions did not lie in this respect for that the parties were sued and called into the ecclesiastical court against their wils in any other cause whatsoeuer then those two: but onely, for suing there for chattels & debt, which did touch neither matrimony nor testament. Whereof may bee gathered, that euer since the first framing of this writ, either none in this point hath knowen the lawe, vntill Fitzherbert (for nō est instandum inproposito:) or else those words doe carie another meaning then is now fathered vpon thē: which that they doeboth in the affirmatiue for ours, & negatiue against theirs (I hope) is somewhat plainely prooued. And therefore we may conclude, that these two last opinions, the one for not citing any person, in any other cause then these two: the other for not citing laie men, & for not vrging them to take oath, in any other cause 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 [Page 100] Ecclesiasticall: and whether nothing may at this day be adiudged he­resie, but according to the statute primo of her Maiesties 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 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 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 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 [Page 101] 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 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 [Page 102] 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 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 Note­gatherer 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, & yet do) without iudgement & lawful proceeding, to take away any mans libertie, life, countrey, goods or lands.

And it was at such time when the kings themselues thought, that Iurisdiction ecclesiasticall, was not (in right) no more then it was in fact at that time belonging to the crowne: therefore in that it is here sayd, Wee will not passe vpon him, nor condemne him, but by lawfull iudgement of his peeres, or by the lawe of the land; it is manifest, that the wordes haue no relation to Iurisdiction eccle­siasticall: for that which was done by that Iurisdiction, was not (at that time) taken to be done by the King or by his authoritie: and the lawes that ecclesiasticall Iudges practised; were not then holden to be the Lawes of the Land, or the Kings lawes; as (since the lawfull restitution of the ancient right in that behalfe to the crowne) they be often called, The 1. Eliz. cap. 2. & pass. alibi. Kings or the Queenes eccle­siasticall lawes.

[Page 103] In the Preamble 25. H. 8. ca. 21. of a statute made in king Henrie the eights time, it is to this effect said: that the people of this Realme, haue bound themselues by long vse and custome, to the obseruance of cer­teine mans lawes (besides those which were ordeined in this Realme) not as to the obseruance of the lawes of any forren Prince, Potentate, or Prelate: but as to the accustomed & ancient lawes of this Realme, originally established as lawes of the same, by the sufferance of Kings, and by consent and custome of the people, and none otherwise. And a litle after, mention is there made, of such lawes humane, induced into this Realme; by the said sufferance, consents, and custome. This is brought to prooue; that the Parliament or such as it shall autho­rize, may dispense with those, and with all other humane lawes of this Realme: for so they be termed. Whereupon, in the body of the statute, ensued that authoritie, which the Archbishops of Can­turburie haue, of granting faculties, &c. And therefore the hu­mane lawes (spoken of in the Preamble) are those Canon lawes; which by such sufferance, vse, and custome are (now) as the accu­stomed and ancient lawes of this Realme, originally established as lawes of the same: howbeit by the meanes aforesaid, but induced into the Realme, and not here at first made nor ordeined.

There is 5. Eliz. cap. 25. another statute also, made in her Maiesties time; in the Preamble whereof, they be called the Ecclesiasticall lawes of this Realme. So that when whole Parliaments do aduow them to be lawes of the Realme, yea & that for proofe of another point perhaps doutfull: we may then well make but light account of all the Treatisers exclamations to the contrary, who calleth thē strange lawes and forren lawes &c: so long as we meane but of such Canons, as haue bene of long time vsed, and be 25. H. 8. ca. 19. not to the dam­mage or hurt of the Queenes Maiesties prerogatiue royall, nor con­trariant or repugnant to the lawes, statutes, and customes of the Realme.

Furthermore, it is well and notoriously knowen, that procee­dings and condemnations Ecclesiasticall in ordinarie Courts were neuer made by the iudgement of a mans peeres, viz. by a Iurie: and therefore those words rehearsed, can not be so farre extended, as to include that iurisdiction. Yet as institution vnto a benefice, both before & after Magna charta, belonged alwayes to ecclesiasticall persons and iurisdiction; so did also the destitution [Page 104] or depriuation from a benefice by the Common law: in which re­spect, Bishops (that claime not the patronage) do alwayes plead to a Quare impedit, thus; Nihil clamat praeter institutionem & de­stitutionem Clericorum, vt Ordinarius in dictarectoria de A. &c. whereby may appeare, that a man might (by law) be put out of his benefice (being his freeholde) otherwise then according to the forme of that statute. And this (by the way) may also shew, how vnsound a collection the Note-gatherer maketh, out of those words of Magna Charta; where, because a benefice is a freeholde, he would inferre that a Clerke may not be depriued of his benefice, but by a iudgement at the Common law.

I haue also proued in the chapter next afore, and in the eight, and the twelft chapters; that an Ordinarie in his dioecesse (euen at the Common law) might condemne a man for heresie; where­upon (after committing to the secular power) such an heretike was put to death, by burning: but this was not done by any iudgement of his peeres, and therfore those words of Magna Char­ta, are no way to be construed of any iurisdiction ecclesiasticall.

Furthermore, besides iudgement of a mans peeres, there is ad­ded, or by the law of the land; which permitteth other triall then by Peeres: as by battell, &c.

Now seeing all iurisdiction and authoritie in this Realme, as­well ecclesiasticall as temporall, was euer in right, but now is also (iustly) acknowledged, and is infact, vnited and incorporated vnto the crowne of this Realme: therefore inquire, whether vpon the premises it may not be probably said (albeit not according to the vsuall speech) that a iudgement duely giuen by the iuris­diction ecclesiasticall, is giuen by the law of the land? But this cloud, or rather mist, which they would cast, is also plainely dispersed by the first chapter in Magna Charta: for thereby is made a flat distinction and seuerance, betwixt the grant there made to God, (with confirmation of the Church of Englands freedome, rights, and liberties for euermore) from those grants that are after made, to o­ther the freemen of the whole Realme, in the rest of that charter: so that the iurisdiction of the Church, can not be intended to be meant in any of all the rest, except it be particularly expressed. Yet if those words were admitted to be meant and stretched foorth vnto that iurisdiction also, will not statutes made by the [Page 105] like authoritie of Parliament, sufficiently qualifie or impeach thē?

Vnto this head, is that obiection of the Note-gatherer to be re­ferred, where he allegeth out of the diary acts of the Clerke of the Parliament, I know not how truly, 4. H. 4. art. 29. that the Commons exhibi­ted a petition, that Lollards arrested by the statute of 2. H. 4. should be bailed, and that none should arrest, but the shiriffe or other lawfull officers. Buthe doth fully answere himselfe therein: for the kings answere was (saith he) that Leroys' aduisera; which is the forme of dissent, that the Kings and souereigne Queenes of this Realme do vse, when they dissent or deny any statute or petition in Parli­ament offered vnto them to be confirmed for a law. Whereby we see, that arrests & attaching for crimesmight be made with­out enditement precedent; and by others then the shiriffe and also, that albeit Magna Charta had bene to the contrary, yet an act of Parliament comming after, might change that law. Wherofifneed were I could shew sundry other examples: not­withstanding, that which the Treatiser putteth vs in minde of, viz. that in K. H. 3. time, there was a iust sentence of curse and a­nathematization, denounced by the Bishops; against the violaters or­breakers of the said great Charter. But what if Bishops should vse the like authority now, to excommunicate indefinitely and afore­hand, all such as shall hereafter breake some temporall law? it is to be doubted, that the Treatiser would not in this case be the same man, nor yet affirme it to be a iust sentence; but would ra­ther threaten them with a Praemunire, for their kindnesse.

It is assured, that par in parem non habet imperium: and none authority can so binde it selfe by any law; but that (vpon good occasion and by like power) it may be abrogated againe. Yet how litle this plea of ours is needfull in this case is sufficiently shewed. Yea rather the defenders of these & such like opinions against the rights and liberties of the Church of England notori­ously knowen so to be, by the reported lawes & customes there­of, to them that know any thing in either: had need more iustly to feare that censure of the Bishops, if it be so iust; if so be they cary any feare at all or reuerence vnto the censures of the Church, which be so iustly inflicted, as themselues do yeeld.

As these opinions do onely reach and shoot at the commission ecclesiasticall, to impound and streine the authority thereof vnto [Page 106] so narrow a roome; as that her Maiestie should thereby haue no seruice done by those her subiects which are imployed there­in; wherby the fansies of the fauorites of these men, might more freely growe without discouery, or any such penal [...]ie as they thinke they need care for: so for the iust defence (herein) of that commission, I may allege the words of the same statute, whereby it is established; 1. Eliz. cap. 1. viz. They shall haue full power and authoritie, by vertue of this act, and of the said letters patents, vnder your highnesse, your heires or successors, to exercise, vse and execute all the premisses, according to the tenour and effect of the said letters patents, any mat­ter or cause to the contrary, in any wise notwithstanding. By which words, tenor literarum, is signified whatsoeuer tenent in se, viz. that which is expresly conteined in them: by the effect of them is vnderstood, whatsoeuer is within the true and vnforced mea­ning, of any such letters patents. So that if attachment, fine, im­prisonment, &c. be either in the letters patents expresly contei­ned (as in trueth they be) or vndoubtedly meant by them; then the vse and excercise of these, shall thereby sufficiently be war­ranted and authorized vnto her Maiesty for granting; and to the commissioners, for so executing. And if any doubt (otherwise) might be made, yet there be two clauses in the words aforesaid, that be called verba siue clausulae operatinae: and do therefore sup­ply many defects and wants in the exercise of a iurisdiction, dele­gated by the Princes rescript. The first of them are those words, Full power & authoritie: and the other is, the generall non obstan­te, in transcendenti, viz. of any matter or cause whatsoeuer.

But to all this is answered by some, that these words, viz. ac­cording to the tenour and effect of the said letters patents, do worke thus much: that her Maiestie need not grant all, but so much iu­risdiction, as her Highnesse thinketh meet: and that so many or few of them (so they be two atleast) may thereby be autho­rized vnder her Maiestie, to exercise such iurisdiction. It is true, that those words so worke and import so much: but doeth it heereof follow, that nothing else is meant or can be compre­hended thereby? Nothing (say they:) for other processe then citation, or other censures or punishment then excommunica­tion, &c. her Maiestie can not commit vnto them: else might she also giue them authoritie to hang men. What? is there no more [Page 107] difference with these men, betwixt attaching, fining or impriso­ning, and plaine hanging? What will they then say of the Starre Chamber, which may impose all those three, and yet cannot put any man to losse of limme or of life? and this is great reason. For we are taught by the Ciuill lawe, (and I thinke it is agreeable al­so to the lawes of the land) that wheresoeuer an authoritie is gi­uen (in neuer so generall or pregnant wordes) it cannot be dra­wen foorth to reach vnto any mutilation of limme, or paines ca­pitall, except they be plainely expressed.

Other some, as the Treatisour, doeth answere this obiection in this sort: but yet to the ende of prouing othes of the parties, in cau­ses criminall to be vnlawfull, a matter to be handled in the thirde part, viz. that how general soeuer the words of the acte be in one place, yet are they to be restrained to this particular, viz. none other then such iurisdiction ecclesiasticall, as may be lawfully vsed: and enten­ding (per petitionem principij) that such oathes, be contrary to law. But in this his interpretation (he saith) he contrarieth diuerse great learned men in that lawe, whom it behoueth with a more nar­rowe eye to beholde this statute lawe.

Truely halfe an eye of a meane learned man, will serue to dis­couer, that he cautelously leaueth out one member of the disiun­ctiue alternation, which is in that statute. For it is thus, viz. all Iu­risdictions &c. whatsoeuer, by any Spirituall or Ecclesiasticall power or authoritie, hath heretofore bene, or may lawfully be exercised, &c. So that if either it haue bene exercised at any time, or hauing not bene put in exercise, yet lawfully may be; it is here graunted to her Maiestie. And were it in deede meete either in temporall or spiri­tual Iurisdictiō, to leaue it to the dispute & determinatiō of euery priuate subiect that is dealt with; what may be lawfully, and what may not so be done, in either lawe?

The Treatisour, nor any other, cannot in answere hereof, say: that the worde lawfully, must also be vnderstood as repeated in the first member. First because it is a disiunctiue proposition; and therefore that word should haue bin expressed in the first part, if it had bin to be drawen vnto both; and not to haue bin put in the second part onely. Secondly, for that it would then take away from her Maiestie all such ecclesiasticall authoritie (being most lawfully in her Highnesse) as was heretofore exercised by, or [Page 108] vnder the Pope, by vsurpation; and therefore most vnlawfully. Neuerthelesse the matters graunted and exercised by the com­mission, which are by him chalenged; (I trust, God willing) shall be also otherwise prooued lawfull and warrantable. Against im­prisoning by vertue of the commission (one of the speciall matters nowe in handling) the said Treatisour obiecteth: that, such par­ties as refuse to sweare to answere the articles exhibited against them, are imprisoned without baile or maineprise: whereas by the lawe ec­clesiasticall, they ought not to be imprisoned, but to be proceeded a­gainst, as pro confessis.

It is true, that by Ordinary authoritie ecclesiasticall, no man may be imprisoned. Therefore the vntying of this knot, resteth vpon the whole matter here disputed of, viz. whether that sta­tute 10. Eliz. doe not warrant her Maiestie, to graunt by her Highnes letters patents, power to imprison, for such contempt, as this obiection importeth.

To prooue that her Maiestie may not so graunt, nor they take such authoritie: the Note-gatherer affirmeth, that the commission bindeth them precisely to crimes punishable by the ecclesiasticall lawe; and to proceede according to the ecclesiasticall lawes of this Realme, and not according to the temporall: quoting fiue statutes for this, albeit there be in none of them any such matter. but both the first and second part of this obiection, is vntrue. For the commissi­on (though nowe that power be not altogether vsed) graun­teth the execution of foure statutes vnto them, and alloweth them to proceede aswell by Iuries, as by course of the lawe eccle­siasticall. And when Doctor Grindall was Bishop of London, sundry crimes ecclesiasticall (by vertue of the commission) were tried by Iuries, before him and certaine Iudges, and other professours al­so of the common lawe; being then in that commission. Yet is the Note-gatherer, vpon this vntrue ground bold to inferre, that to doe otherwise, is to encroche vpon the temporall iurisdiction: and to make an hotchepot in one commission. Truely this his collection is not worth an hotchepot, that is a pudding, as Littleton doeth ex­pound that worde. For the temporall Iudges are not to proceede in matters of ecclesiasticall iurisdiction: and therefore their iurisdi­ction is not encroched vpon, though in such matters ecclesiasticall attachements or imprisonments be vsed, or fines imposed; see­ing [Page 109] they themselues cannot (in those causes) vse or impose them.

When the whole Realme at the beginning of her Maiesties reigne was visited (by vertue of this statute) by Diuines, Ciuiliās, and Common Lawiers in that seruice imploied; who had authority by their seuerall cōmissions to attache, imprison, fine, &c. aswell as to vse censures ecclesiasticall; al which they did accordingly: then and at that time, none of these quicke & narrow sighted fellowes (lately sprung vp) were to be found; that could see more then the reuerend Iudges, and could so roundly tel her Maiestie, that she did graunt more authoritie to her Commissioners, then by that statute was giuen to her selfe. Oh, belike it was lawe then, and good iustice against Papistes: but to deale against pretended Re­formatists, it commeth farre too short.

But the Treatisour vrgeth this matter yet further: he saith, that no learned man wil affirme, any Iurisdiction (by that acte 10. Eliz.) to be vnited to the crowne, but spirituall or ecclesiasticall. And that none such can affirme, that any iurisdictiō &c. repugnant or offensiue to the Common or Ciuill Policie of this Kingdome, is established by that Acte: for that there is none Antinomy or contrarietie of lawes. Whereupon he woulde inferre, that Attaching, Im­prisonning, and Fining &c. (by vertue thereof) is not warranted to be graunted.

In answere whereof, let him vnderstand, that his argument followeth not vpon either of those Antecedents. For the first, though the matters of iurisdiction thereby vnited to the crowne, be onely ecclesiasticall: yet the maner of conuenting, or punishing in them, is not in that Acte so restrained, but that such other courses may be vsed, as to her Maiesties wisedome shall seeme most fitte: which by and by shall be shewed God willing. For the second: we deny the maner of conuenting and punishing establi­shed by the commission, to be repugnant or offensiue any way to the Ciuill Policie of this kingdome: for it is warranted by that Acte.

This point (if the wordes of that whole clause be aduisedly weyed and considered) will be made most plaine. In the exer­cise of a criminall iurisdiction, there is the matter, wherein it is bestowed, the maner of conuenting, and sanction or penaltie to be inflicted vpon offenders, which are to be considered. Now the matter of this iurisdiction and authoritie graunted to her Highnes, [Page 110] and that may be assigned ouer by her Maiestie vnto Commissio­ners, is visiting, reforming, redressing, ordering, correcting, and amen­ding all such errours, heresies, schismes, abuses, offences, contemptes and enormities whatsoeuer, which by any spirituall, &c. Yet what course is to be holden in calling and conuenting, and what kind of penal­ties or censures shalbe inflicted vpon offenders by that authoritie; are by no wordes of that acte expresly graunted to her Highnes, or mentioned, that they may be assigned by her vnto the Com­missioners; and therefore of necessitie to be supplied by those generall wordes, viz. According to the tenour and effect of the let­ters patentes. For els (by such an interpretation of theirs) we should haue matters for a Iurisdiction, but neither any maner to conuent and compell to come afore the Commissioners; nor yet punishment to lay vpon enormious offendours, against whom it was intended. Which, because it is very vnreasonable; therefore that opinion, whereupon it necessarily followeth, must needes be more absurd, and without ground of reason.

Yea (say other of them) be this as it may; and let them seeke out what processes, &c. may and shall be vsed by the Commission Ecclesiasticall: for it is contrary to the lawe, to graunt (by Commis­sion) authoritie to inflict any punishment vpon a faul [...], which (by lawe) ought not to be inflicted: and therefore they gather that the Queene cannot authorise, nor any man may take power to attache, to fine, or to imprison men, by that Commission. Thus farre it is true, that a Cōmission may not be graunted to alter or change any lawe in force: but I trust it is not contrary to the Common lawe and custome of the Realme, by acte of Parliament, to alter and change that which stoode otherwise afore, at the Common lawe.

If this so did by the course of the Common lawe, no man may be put to the racke or torture (especially about felonies or mur­ders) thereby to drawe him to confesse of himselfe, or of other men, his complices: Yet is it notorious, that in Wales and the Marches thereof, the President and Counsaile there established, doe vse, and lawfully may put men to such torture; by warrant of instructions onely sent vnto them from time to time, vnder her Maiesties gratious hand.

This their authoritie (I take it) is deriued from these 38. H. 8. ca. 28. Rastall, Wales 32. wordes [Page 111] in an Acte of Parliament: The President and Counsaile there, shall haue power and authoritie, to heare and determine, by their wis­domes and discretions, such causes and matters, as be or hereafter shall bee assigned to them by the Kings Maiestie, as heretofore hath bene accustomed and vsed. Which doe conteine no more particulari­tie of authoritie, nor yet are of so much pregnancie to that pur­pose; as the wordes (that establish the Commission Ecclesiasticall) be, for Attachment, fine, and imprisonment to be vsed, if it shall please her Maiestie so to commit them.

The deuise of the Commission Ecclesiasticall, was for assistance and ayde of Ordinary Iurisdiction Ecclesiasticall; and for roun­der proceeding, and for more grieuous punishment at least (in these dissolute times) more feared; then can or may by Ordi­narie Iurisdiction be inflicted. Therefore, if by the general words of that Acte, 1. Elizabeth, both these proceedings whereof wee here speake, and many other particularities of maner, persons, times, places, and other circumstances might not be warranted: then the authoritie (there) giuen to her Maiestie, were of none vse at all, neither could it possibly be practised.

But I thinke this power here by these opinions impugned, may be also prooued directly, out of the words of the very Acte, thus: whatsoeuer by any Spirituall or Ecclesiasticall power or autho­ritie hath heretofore bene, or may lawfully bee exercised or vsed for visitation, &c. or reformation, &c. of all maner errours, &c. and enormities whatsoeuer, that is vnited to the Crowne, and by that Acte may be committed ouer by her Maiestie: But Attaching, imprisoning, and such like corporall coërtion, by some Spirituall or Ecclesiasticall power or authoritie, hath heretofore lawfuly bene exercised: And therefore may be appointed by her Ma­iestie to be now exercised by the Commissioners Ecclesiasticall.

For proofe of the Minor, I am to put you in minde, what cor­porall punishments and chastisements the superiours of euery Regular person, as of Monke, Frier, and Nunne, might and did lawfully from time to time lay vpon them that were vnder their Ecclesiasticall obedience; and yet (euen after their professing) they remained still the Kings subiects.

Likewise, when the statutes against Heresies were in force, these Attachings, imprisonings, and other corporall chastisements [Page 112] were then lawfully exercised and vsed by Ecclesiasticall power and authoritie.

Lastly, 1. H. 7. ca. 4. Bishops and Ordinaries may lawfully at this day punish and chastise Priestes, Clearkes, and religious men within their Iu­risdiction, being conuicted of incontinencie, by committing them to warde and prison, there to abide, for such time as shall be thought to their discretions cōuenient, for the qualitie and quantitie of their tre­spasse. So that we may conclude, that if any such power haue bene vsed, then her Maiestie may (as it please her) vse it still; and ap­point the same to be vsed by her Highnesse Commissioners, howe and vpon whom, she thinketh good.

The Treatisour himselfe testifieth, that diuers euen of the lear­ned sort, do hold and affirme (and that very confidently) that the Acte and Commission thereupon, doe giue full power and authoritie for any course soeuer, for the gouernment in causes Ecclesiasticall, that shall be mentioned in the letters Patents. This he exemplifieth by sun­dry examples, though holden by such learned men, which neuer­thelesse he accounteth contrary to Lawe: whereof some fall in most fitte for this place (because they are bent against the saide Commission) and others for other places of this Apologie.

First he thinketh it very absurde and not warrantable; that the Commissioners Ecclesiasticall shoulde commaunde Iustices of Peace, to assist any for attaching and imprisoning of offenders till they giue bonde for appearance. And saith, this is against Lawe and Iustice. The onely reason he rendreth of this his assertion, is: for that Iustices of Peace bee Magistrates, and Commissioners of Recorde, authorised, as well as the other. Belike himselfe is some Iustice of peace: Hoc vrit hominem, qui imperare, non parêre didicit.

And will he then (vpon his learning) deliuer; That no Magi­strate or Commissioner of Recorde, may be commaunded by another; though no lesse be warranted by his Commission? Hereupon would follow, that Iustices of Peace and Sherifs might not be comman­ded in any case by the Iudges of either Benche, by the Exchequer, by the Iustices of Assisse, by the L. Treasourer, by the L Chauncel­lour or L. Keeper; nor yet by the whole Counsell boord. He thin­keth it also not iustifiable, that any Magistrates should be comman­ded by the Ecclesiasticall Commissioners to assist in Attaching, or to [Page 113] attache any, vpon a warrant, called Quorum nomina. For reason of vnlawfulnesse hereof, he alledgeth: that no cause or matter is therein expressed or declared. But this might be (de facto) omit­ted, in any other warrant, as well as in that. and yet is it vntrue, that in this kinde of warrant, no cause is declared. But admit it were otherwise; what Lawe of the Realme is against it? And if the like warrant shall come from the Lords of the Counsell to him, or any other Iustice of the Peace, to be ayding and assisting vnto some Messenger, in attaching of certaine persons to be caried vp vnto them as Prisoners, whom the saide Messenger shall name vnto them: will hee refuse to intermeddle in the seruice as sur­mising the Lords to do therein against Lawe; because they com­maunde him being a Iustice of Recorde; and for that they signi­fie not by their Warrant, what the particular cause is, where with they minde to charge such persons that are to be Attached? But if in so doing their Lordships doe nothing contrary to Lawe, howsoeuer he doe foolishly and vndutifully to refuse to giue his assistance: why shall the Lawe anymore be against the Commis­sioners, doing but the like; and that by expresse Warrant of her Maiesties letters Patents?

Another reason, why such Warrant should not be iustifiable, he doth alledge: because the names of such persons to be Attached be not set downe by the Commissioners, but are referred ouer vnto others to set them downe.

Mine answere hereunto is: First, that the Warrant of Quorum nomina, is very rarely vsed by the Commission, and the rarer, the better. Secondly, when it is vsed, the names of the parties are set downe and allowed (afore) by the Commissioners, and not by others, for anything that I can learne. Neuerthelesse there may be good and weightie occasions, to omit this course: as when such Warrant is directed to a man of qualitie and good credite, that he may put in the names; for this ende lest when one is ser­ued, he bewray all to the rest, whose names be also in the same Warrant, that they may conuey themselues out of the way. Howsoeuer it be in this behalfe, I thinke the Treatisour will be long in finding out how this should be reckoned, to be contra­ry to the Lawes of this Realme. [Page 114] Hitherto touching the challenges made to some particular points, in the maner of exercising that Commissun.

But the Note-gatherer, (to cut off all these particular disputes) alleadgeth; that it may be thought, the whole Commission is voyde in Lawe. For that (as he surmiseth) it beareth date in Iuly, but was signed in Nouember next after; 18. H. 6. cap. primo. contrary to a Statute. What? was this quarrell which is now picked against it, worth the pra­ctise, of abusing a Counsellours name, to procure a copie thereof? Well, both the Preamble and body of the statute also doth cleare this cauill. For by the Preamble it appeareth; that the mischiefe to be remedied was: for that by grauntes antedated long before the King graunted them, other grauntees who (in very trueth) had the first graunt and great seale set to it, (yet bearing date truely) were expelled by colour of letters Patents, bearing the elder date. In the body of the Acte is conteined this particle Such, which is of restraint, viz. That the King (willing to put out such slye deuises or imaginations) did ordeine by Parliament; that letters Patents should be dated the day of their deliuery into the Chauncery; or else be voyde. Now if this Statute were to be vnderstood of all letters Patents whatsoeuer, where is the reason of that Lawe found in a Commission? but, ratio, est animalegis: & cessante ra­tione, cessat Lex. Therefore this Statute can be stretched to none other letters Patents but Such, as the mischiefe mentioned in the Preamble, may happen into.

Yea, if it were otherwise to be vnderstoode; he must (ere any will beleeue him) bring more euident matter then this: viz, It is thought, and It may bee thought. Let him then goe seeke the Re­cords in the Chauncery; and see, whether the date and the day of the deliuery of it, doe not agree: and so may hee haue more colour to wrest the statute, when he doth not misreport the matter in facte, as herein hee hath done.

CHAP. XV. That an Ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie.

IN the next opinion, I minde to be very short: it is this, that by none ecclesiasticall authoritie, a man may be depriued of his benefice (which is his freeholde) being not endited, and no suite of partie offered against him. Whereby (we see) he requi­reth both an enditement, and a suite of some partie. It seemeth his meaning is, that a Minister cannot be de­priued, but by way of enditement at the Common law, and that the Iudge (of Office) may not preferre such enditement; but it must needs be at the sute of a partie. I can not well coniecture, whereupon he pretendeth to ground this opinion. If vpon the 29 chapter of Magna Charta; it is shewed in the chapter next precedent, not to be vnderstood of Ecclesiasticall iurisdiction, or of the practice thereof. And moreouer, that chapter in Magna Charta requireth no suite of partie to preferre the enditement; so that it may be done by the Iudges of Office well enough.

But this conceit is very strange, that Bishops shall not haue au­thoritie to depriue an Ecclesiasticall person from his benefice. It is shewed in the chapter afore, that by vsuall and allowed course of pleading to a Quare impedit, the Ordinarie doeth claime (as of common right) institutionem & destitutionem Cle­ricorum, in benefices within his iurisdiction. And the olde rule was, Cuius estinstituere, eius est destituere. But perhaps it will be said, he meant, that a Bishop might doe it, but not of Office, that is, without a partie, albeit he put a Copulatiue in stead of a Disiunctiue.

But if his meaning be such, he meaneth more then is true. And further, what priuilege or benefite is this to the partie con­uented, to be prosecuted by a partie, (and therefore perhaps of malice and by subornation of proofs) rather then by the ordina­rie proceeding of office and duetie, for whose sinceritie, we may more probably presume and intend?

Moreouer, what if one that hath a benefice will come vnto the Bishop, and there stoutly defend Atheisme, Apostasie, or de­nying [Page 116] of Christ, or any other heresie, grosse blasphemy, or idolatry: may he not (till some accuser be found, or a partie to prosecute) depriue such a person from his benefice ex Officio? What if the beneficed person will confesse before the Ordinarie, that he was neuer called to the Ministerie, but hath vsurped it, by colour of forged testimonials of Orders: or that he hath committed Simo­nie, Incest, Adulterie, or hath two wiues liuing at once, or 13. Eliz. ca. 12. that he neuer subscribed nor read the Articles of religion, or being once conuicted, do againe defend some errour against such Ar­ticles: may not the Bishop ex officio in all, or in any of these cases, depriue or declare his benefice void, except some other will come and make himselfe a partie? But that he may do it, appea­reth 1. Eliz. cap. 2. by the statute 1. of her Maiestie: for there it is said, he may enquire (which is alwayes ex officio, as shall be more plainly she­wed in the second part) and may punish by Depriuation, &c. as in like cases hath bene vsed by the Queenes ecclesiasticall lawes.

CHAP. XVI. That after fortie dayes, an excommunicate person may be otherwise punished, then vpon the writ De excommunicato capiendo: And that the said writ may and ought to be awarded vpon contempts, rising on other originall causes ecclesiasticall, then any of those ten crimes mentioned in the statute 5. Eliz. cap. 23.

THe last opinions to be handled in this part, be these: viz. that an excommunicate person stan­ding so aboue fortie dayes, may in none other sort be punished then vpon the writ De excommunica­to capiendo. The other is: that, the said writ De excommunicato capiendo, ought not at all to be a­warded vpon contempts rising from any other originall causes then vpon some of the tenne crimes, that be mentioned in the statute 5. Eliz. cap. 23. The first is easily impugned: for he may be pu­nished twentie pounds by moneth, for absence from diuine prayer: neither shall his excommunication excuse him, for it is in his owne default. Besides, it is a great contempt in an ecclesi­asticall cause, and therefore punishable by the Ecclesiasticall com­mission, vpon the expresse wordes vsed in that Act, which doeth [Page 117] establish that Commission.

And this standeth with reason, where there are great num­bers of such wilfull persons, or slacke execution by Vnder-shirifs and Bailifs of that writ, as often falleth out; besides the great charges, in suing of it out. For I dare auow that in sundrie dioe­cesses in the Realme, the whole yeerely reuenues of the Bishops there, would not reach to the iusticing of all such contemners (being of the baser sort of persons) by the course of this writ. They might happely to the great charge of the shire, keepe ma­ny of them in prison long enough: yet they should neuer pro­cure the fees backe againe, that first, whether for rich or poore must be defrayed, for want of ability in the persons so excom­municated.

Lastly, the law ecclesiasticall very reasonably & grauely proui­deth in this behalfe, that if a c. excommuni­camus. §. qui au­tem. ex. de haere­tic. man stand excommunicate aboue an whole yere, he may be proceeded with for suspicion of here­sy: because the law presumeth, that such a mā hath smal feeling of religion, but rather contemneth it, and nourisheth some dam­nable opinion against God and his Church. And therefore, such an excommunicate person, may be punished by reason thereof, otherwise then by that writ.

All the colour of reason that I find alleged against this course, by the Treatiser, is thus: that on our behalfe it will be said; this is a shorter way then the other pursuite of the writ De excommuni­cato capiendo; being ouer-trouble some and full of vnnecessary cir­cumstances. But hereunto he doth answer, that we forget the olde and true saying: Compendiaria res improbitas, virtus longa. Now if he will haue this to be a good answere, then must he holde; the shorter way alwayes to be the woorse, and the longer the bet­ter. And where is then the rule of Logike, Frustrà fit per plura, quod fieri potest per pauciora? and how is he so suddenly fallen out with himselfe, that else-where condemneth Courts ecclesiasti­call for lingering consistories? I perceiue neither long nor short will please him long together. But his reason is a fallacie of the con­sequent. For though it be but a short cut vnto wickednesse; and the way vnto vertue be long and hard: yet is not all length commen­dable, nor yet are all short courses condemnable.

The latter opinion of the two, here also to be handled; doth [Page 118] crosse & thwart other of their owne opinions: for the Ciuill law saith: Frustrà fertur sententia, nisi parata sit executio. A decree or iudgement is of no effect, where execution of such sentence can not be had. The Iudges ecclesiasticall haue no compulsorie meanes to put their iudgements vnto finall execution, sauing excommu­nication, & the writ De excommunicato capiendo, after forty dayes obstinacie. Those of the impugners of ecclesiasticall iurisdiction (vnder pretence of the lawes of the Realme) that be straitest la­ced; doe yeeld causes testamentarie and matrimoniall to be of ec­clesiasticall conusance; and (I hope) sundry others be prooued no lesse to be.

Now how shall any of those be euer effectually proceeded in, seeing they are none of the tenne crimes reckoned in that sta­tute; if for not performance of that which is decreed, the wil­full partie shall neuer be attached, for persisting vnder excom­munication?

It appeareth also plainly by the Preamble, that the sayd sta­tute was enacted, for better assistance vnto iurisdiction ecclesi­asticall, by more due execution of the writ De excommunicato capiendo; especially against offenders in crimes of ecclesiasticall conusance. The Ordinaries (afore this) who had to deale in a­ny matter ecclesiasticall, and all subiects that sued any other there, had this interest; of hauing a contemptuous person being excommunicated, and so remaining aboue fortie dayes; to be attached and imprisoned by vertue of that writ; vpon what o­riginall cause ecclesiasticall soeuer such contempt grew. Now if that statute prouiding but a straiter course for execution of that writ, in tenne crimes onely; should with all take away the force and vse of it, as it stood afore at the Common law; not onely in sundrie other crimes of ecclesiasticall conusance still there punishable; but also in all causes Testamentarie, Matri­moniall, of tithes, and in all other rights ecclesiasticall in that Court onely still demandable: then should it worke a cleane contrary effect to the very true drift and scope aimed at; and to the meaning it selfe of the Law-makers. But this is very vnrea­sonable and absurd to imagine. for, quae in fauorem sunt introdu­cta, non debent in odium retorqueri: and, quae ad vnum effectnm pa­rantur, non debent contrarium operari effectum.

[Page 119] It is true, that in the beginning of the body of that Statute, the words be generall in this sort, viz. Euery Writ of excommuni­cato capiendo, that shall be granted out of the high court of Chancerie, against any person or persons, &c. Whereupon some very learned in those lawes haue thought, that the maner of granting it, retur­ning and deliuering it, which be there especified; doeth reach vn­to all and euery writ de excommunicato capiendo: but yet that the new penalties there prouided for such person excommunicate, as shall not yeeld his bodie; are to be restrained vnto those one­ly, who by Significauit are certified to haue bene excommunicated vpon some cause or contempt, arising vpon some originall matter of some of those ten crimes, there especified.

This seemeth to carie great reason with it: for in trueth (that generalitie there not withstanding) not only in the Preamble, but in diuers partes of the body of that statute, we find wordes taxa­tiue and of restraint; carying the chiefe purport of that Act vnto such writs, as be grounded vpon some of those ten crimes. For the Preamble onely speaketh, of persons offending in many great crimes and offences: of continuing in their sinnefull and criminous life, and of such offenders. And the beginning of the bodie of the Statute is: for redresse thereof be it, &c. and afterward this word of Limi­tation is often vsed, viz. Such writ of excommunicato capiendo: such persons excommunicate; and such Significauit. And therefore that statute nor any Prouiso in it cānot be entended, generally to take away the writ de excommunicato capiendo, in all causes, sauing in those ten crimes; as by this opinion is enforced.

But the clause thereof, Sauing and reseruing to all persons hauing authoritie to certifie excommunicate persons; doth put all this mat­ter out of doubt and dispute. For thereby is saued and reserued to them like authoritie to accept and receiue the submissions & satisfa­ctions: to absolue and release, and to signifie: and thereupon to haue such writs, &c. in such maner and forme as heretofore (respectiue­lie) they haue vsed, as hath bene accustomed; and as they or any of them had, or ofright ought or might haue had: anything in that sta­tute specified or conteined, to the contrary here of, notwithstanding. If then they may still signifie in like maner and forme, shall haue writs thereupon, may absolue and release, receiue satisfaction and submis­sion, &c. as they had done before that time: then may and ought the [Page 120] writ de excommunicato capiendo, to be awarded for contempt ari­sing on other originall causes ecclesiasticall, then any of those ten crimes in that statute reckoned. For so Ordinaries did, and had afore that time, and since also; whatsoeuer this opinion now doeth deliuer to the contrary.

CHAP. XVII. Of a Prohibition, what it is, where it lieth not, and where it doeth: and how it ceaseth by a Consultation: & of the writ of Indicauit.

WHen any Court goeth beyond his bounds, and dealeth in other matter or sort, then the lawes of the land will warrant; there lieth in some cases writs at the common lawe, which are of Prohibition or Indicauit: and in other cases, a writ brought in by statute, called Prouision and Premunire: and the Prohibition and Praemunire doe lie as well a­gainst temporall, as against ecclesiasticall Courts.

The Prohibition is a charge by the kings writ, to forbeare to hold Plea, either in some matter or maner, which it is supposed a man dealeth in, beyond his iurisdiction, or otherwise then lawe will warrant. Euery Prohibition is either Prohibitio iuris by the very lawe it selfe; or Prohibitio hominis, where the ministerie of the competent iudges (in that behalfe) is vsed. Any Statute pro­hibitorie is 21. E. 3. fol. 29. Prohibitio Iuris; a very prohibition in it selfe, and ther­fore it is a contempt, to sue against it.

In a prohibition we are to consider; In what matter it lieth not, at what time it lieth not, where and when it lieth, & how it cea­seth or looseth his force. For the first, it is 18. Edw. 3. pro clero. ca. 5. prouided by statute, and the king there determineth thus: that no prohibition shall goe out of the Chancerie, but in such case, where we haue the Conisance, & of right ought to haue. And therefore Thirning M. 2. H. 4. fol. 15. said; when we see the iurisdiction belongeth not to vs; wee will graunt a Consultation. So that if the matter be meere Ecclesiasticall, there lieth no Pro­hibition.

Touching the second point, it seemeth a Prohibition is not to be granted, till by sight of the Libel, there appeare cause to grant it. For 31. H. 6. fol. 14. Henkstone held, that by the statute de Regia prohibitione & [Page 121] de coniunctim fe offatis in fine, a man shall not haue prohibition, ante­quam lis sit contestata in curia spirituali: which is, till a libell be put in, and the partie put to answere it: & this is to be certified to the Chan­cellor by the view of the Libell: which Fortescue granted.

But this hath two exceptions: one is, when the copie of the Libell (contrary to the Statute 2. H. 5.) is denied: for vpon this cause, I finde a M. 4. E. 4. fol. 37 prohibition granted, that the Ordinarie should sur­cease, till the copie of the Libell, according to that statute, were deliue­red. another exceptiō is in some court, where a surmise is made, that the suite (in trueth) is for some other matters, then are ex­pressed in the Libell: for Brooke reporteth that Brooke tit. prohib. nu. 17. a man may haue a prohibition in the kings Bench vpon such a surmise (as for example by surmising the suite to be (in deede) for great timber, though it bee demanded in the Libel, vnder the name of Sylua caedua) but he saith it is otherwise in the Common Pleas.

Touching the third point, for what causes a Prohibition is granted: I find it may be granted either in respect of some of the parties to the sute, or in regard of the Iudge before whom it is, or for the very matter handled. For the first of these three: If a T. 12. H. 7. fol. 22. Par­son of a Church do sue another Parsons farmour or seruant for right of tithes, being not such as can trie the right of tithes: Fineux held that a prohibition may be granted. Here of see further in the 6. chap. afore.

Touching the second; it may be granted, either for the Iud­ges contempt; as in not deliuering copie of the Libell, as is afore touched: or for that he hath not (in deed) any iurisdiction. for so it was iudged by Hankeford and by the whole Court, (as it see­meth) in the vicar of Saltash his M. 2. H. 4. fol. 15. case being cōuented before the Popes Collector. Though a Consultation did otherwise lie, the court wil not grant it to one, that hath no iurisdiction in right.

Concerning the third and last poynt of the three, if the mat­ter bee Temporall, that is such, as Stat. de con­sultat. 24. Ed. 1. there lieth redresse for, by some Writte in the Chancerie, then there lieth a Prohibition, as seemeth by Statute: to which agreeth the Lib. 2. ca. 24. place before alleaged, out of the booke of Doctor & Student. Yet this hath also two excep­tions: one is, whereas the Spirituall Court holdeth Plea quite to another end. For Artic. Cleri. 9. Ed. 2. cap. 6. when one & the selfe same case is debated before Iudges spiritual and temporal (as for beating of a Clerke) there the statute is; that (notwithstanding the spirituall iudgement) the kings [Page 122] Court also shall debate it. For both these conisances tending the one to the amends, the other to the excommunication; may stand together, as is shewed in the 8. chapter.

The second exception hereof seemeth to be, T. 9. H. 3. per Fitzh. Prohib. when one Clerke sueth another in the spirituall Court, for the goods of his house; for there lies no prohibition: as when one Abbot sueth another. Se­condly, a prohibitiō lieth, where a matter (being at first ecclesiasti­call,) brings at last in debate, a meere temporall matter with it, to be determined. Therefore it was holden, that so soone 38. H. 6. fol. 21 as it appea­reth, that the right of tithes comes in debate, the laie Court shall cease, and be out of iurisdiction: and the same law is of the spirituall Court: for if it may appeare, that the right of aduowson may come in debate, although it appeared not at first, the spirituall Court must surcease: quod fuit concessum. This may happen (as for example) when suite is brought (at first) for right of tithes; and it fals out by de­positions or otherwise; that the tithes Circumspectè agatis. 13. Ed. 1. demanded amount to the 4. part of the benefice by yeere: in which case it is determined, that the temporall Court shall haue conusance, euen as if the right of Patro­nage were in demand principally.

Thirdlie, a prohibition lieth for such a cause, Doctor & Stu­dent. Loco. d. as albeit there lie none action for it in a temporall Court, yet the matter is such, as of custome neuer belonged to an ecclesiastical court. As if an ec­clesiasticall court would hold Plea against an executor, vpon a bare contract made by his testator: for neither the court may heare it, nor yet there lieth action for it in a Temporall court.

Fourthlie, there lieth Prohibition, when the suite tendeth to determine and giue execution in a temporall matter; as money, &c. being due otherwise, then by the iudgement giuen in the Court ecclesiasticall. Therefore if a composition by indenture 11. H. 4. fol. 85. be made by an Ordinarie betwixt two ecclesiasticall persons; that the one shall haue tithes, the other an annuitie, with penaltie for default of paiment: the suite for this shall bee at the Common lawe: but the suite for any thing that riseth vpon a iudgement giuen in the spirituall Court, shalbe there, per Hill. For T. 12. H. 7. fol. 22. though amends bee to bee made by a certaine summe of money, this is no necessarie cause to grant a prohibition, no more then when the suite is for tithes, yet the condemnation in money being the valew of them: nor when a penance is redeemed by the par­tie for money, which may be sued for in a spirituall court, per Butler. [Page 123] Because when an offence is done to a man, it is Ibidem. reason that he haue a­mends for it: but there can be no more proper amends then money, be­cause euery thing may be valued by money, per Keble. Which they speake to prooue; that amends in money may be awarded in an ecclesiasticall Court for Diffamation: and so the iudgement then passed, vpon this ground (among others) as Brooke Con­sultation. nu. 5. Brooke testifieth.

And T. 12. H. 7. fol. 22. there is a great diuersitie betwixt a duetie or summe of money or other things at the first demandable and determinable at the Com­mon lawe; and such a summe as before sentence giuen in the Spiritu­all lawe, is not due at all. For the first, there lieth a Prohibition, but not for the second: for otherwise, it would followe, that the spirituall lawe might giue a iudgement, which it could not put in execution. but this were absurd, per Reed & Tremaile.

Fiftlie, it is sayd that there lies a Prohibition, when the partie sued hath an action giuen him at the Common lawe, for the ori­ginall and principall matter, whereupon the suite at the ecclesiasti­call lawe did grow. The case was thus: Aman T. 22. Ed. 4. fol. 20. reported that the Abbot of S. Albanes did detaine his wife in the said Abbots lodging against her will; to the intent to make her his harlot. the Abbot here­upon brought his action of Diffamation in the Court ecclesiasticall; and the husband his prohibition. nowe because the husband might haue his action of false imprisonment at the Common lawe agaynst the Abbot, Brian held, that a Consultation was not to be graunted. de hoc quaere.

A prohibition ceaseth and looseth his force, after a Stat. de Con­sultat. 24. Ed. 1. Consulta­tion be once granted. This may bee prooued by the Statute De Consultat. for the Chanceller or chiefe Iusticer of the king vpon sight of the Libell, &c. if they can see no redresse by Writ, &c. shall write to the spiritual iudges, &c. to proceed, notwithstanding the kings prohibi­tion directed to them before. But more plainlie after: Where 50. Ed. 3. ca. 4. a con­sultation is once duely granted, the Iudge may proceed in the cause, notwithstanding any other prohibition thereupon to him to be deliue­red: so the matter in the Libell be not changed.

The writ of Indicauit is Fitzh Natur. b [...]. tit. Prohibi­tion. fol. 45. likewise a kind of Prohibition; and lieth especially & naturally for a suite of tithes, which do amount to a fourth part or aboue, of the whole benefice. It lieth also for the Patrone, where his Clerke is impleaded for the aduowson (id est) the right of Patro­nage, in a spirituall Court. the Patrone and Clerke that is sued in the [Page 124] court ecclesiasticall may sue it foorth both against the Ecclesiasticall Iudge, and the partie that sueth there. But it 34. Ed. 1. de coniunctim [...] ­fat. lieth not till the Libell be brought to be viewed into the Chancerie, & lis Fitzh. ibid. etiam contesta­ta. and Regist. fol. 47. it lieth onely before sentence be giuen in the Court ecclesiasti­call: for it is afterward voyd.

CHAP. XVIII. An Analysis or vnfolding of the two speciall statutes touching Prae­munire, with sundrie questions and doubts about that matter, re­quiring more graue resolution.

IN the matter of Praemunire (which is a question falling often in doubt about execution of Eccle­siasticall iurisdiction, wherein as in the matter of prohibition & consultation you desired earnestly that I would write vnto you what I thought) I cannot in any point satisfie my selfe, much lesse you: by reason that this matter is enwrapped in ouer many dif­ficult doubts for me to vnfold. yet I haue some thing considered of it, & do trust that I shal be able to point out vnto you certaine general heads, whereunto most of the doubts cōmonly made or hapning, may not vnfitly perhaps be referred: that thereby tan­quam Thesei filo you may be directed (as opportunitie shal serue) what & how in this behalfe to enquire of the reuerend Iudges, or of other great learned and graue men of that profession.

There be two statutes, whereupon it is principally grounded. The first is 27. Ed. 3. cap. 1. de Prouisor. of Prouisors, established in the time of king Edward the 3. the complaint and griefe there propounded was, that the kings people were drawen out of the Realme, to answere vnto things, whereof the Conisance pertaineth to the kings Court: and that iudge­ments there giuen were impeached in another court. The mischiefes then noted thereupon were, the preiudice and disherison of the king and of his crowne, and of all the people of the Realme: and the vndo­ing and destruction of the Common lawe of the Realme. The remedie there giuen for these mischieues was: that if any of what conditi­on soeuer (being of the kings liegeance) should drawe any out of the realme in plea, whereof the Conusance pertaineth to the kings court, or of things, whereof iudgements be giuen in the kings court, or which do [Page 125] sue in another court to defeate or impeach the iudgements giuen in the kings court, should haue day, &c. as is there more largelie by the sanction contriued.

The other statute is, 16. R. [...]. cap. 5. of the time of king Richard the 2. there is shewed and laied foorth, that the Conisance of plee of Present­ments to Benefices, belongeth onely to the kings court by the old right of his crowne: and that Archbishops, Bishops, and other spirituall per­sons hauing the instituting vnto such Benefices (within their iurisdi­ctions) be bound, and haue made execution of such iudgements, by kings commandements, without interruption: and that also they bee bound of right, to make execution of many other of the kings comman­dements: but it is there complained, that processes and censures of excommunication vpon certaine Bishops of England, were made by the Bishop of Rome, because the sayd Bishops haue made execution of such commandements: and that hee purposed to translate some Pre­lats out of the realme, & some frō one bishoprike to another within the Realme, without the Kings knowledge, and without their assent that so should be translated. There are assigned also for mischiefes here­upon growing, the open disherison of the crowne, the destruction of the king, of his lawe and realme, and that these things are against the kings crowne and regalie, that they defeate and destroy the statutes, that they tend to make the realme submitted to the Bishop of Rome, and the lawes and statutes of it by him to be defeated and destroied at his will, that they drawe out of the realme (against the kings will) the sayd Prelates his liege persons of his councell, that be much profitable and necessarie to the king, and to all his realme, and that these deuises will be are away the treasure of the Realme: for remedie whereof it is prouided, what shall not bee done: viz. that none shall pur­chase or pursue, or doe to bee purchased or pursued: where? in the Court of Rome or elsewhere: what? any such translations, proces­ses, and sentences of excommunications, buls, instrumēts, or any other things: of what sort? which touch the king, against him, his crowne and his regalie, or his realme: in what maner touching these? as is aforesayde, and likewise, that none shall bring them into the Realme: or being perhaps brought in by another, shall receiue them; or being neither brought in by them, nor yet receiued frō others, but comming (some way) to their knowledge, shall not make any notification, or any other execution of them: [Page 126] where? neither within the realme nor without, &c. vpon paines there at large conteined.

Of those generall heads whereunto I said afore, that all que­stions of Praemunire might be referred, there be some that being expressed in these statutes, are (I thinke) without all doubt, to be within the compasse thereof: as by the first of these two, to draw any of the Queenes liegeance out of the realme in a plea, whereof the conisance pertaineth, or iudgements be giuen in the kings Court. And that which is sayd of a Plea in the kings court, is also drawen by some opinion, vnto a court Ecclesiasticall, for 9. Ed. 4. fol. 3. Yeluerton in the Kings bench held opinion oftentimes, that if a Clerke doe sue another in the Court of Rome for a spiritnall matter, whereof he may haue re­medie within the realme, that he is in case of Praemunire, quia trahit in placitum extra regnum. And Fitzh. Noua nat. br. fol. 44. lit. H. Fitzh. holdeth, that for collation of a Prebend sued out of the realme, a prohibition doeth lie.

Secondlie, it is an vndoubted Praemunire by that statute to sue in another court, to defeate or impeach the iudgements giuen in the kings court. In these wordes of (another court) there seemeth to be an opposition and seuerance of such a court, from the Kings court: the rather, because both the Preamble and the body of the statute do mention, drawing men out of the realme in Plea. Where­of at that time there was no colour for any man to be drawen a­ny whither, but onely to the court of the bishop of Rome, whe­ther he resided there at Auignon in France, (where the Popes a­bout that time did lie 70. yeeres together) at Bononie, or else­wheresoeuer.

Therefore for the true vnderstanding of those words enquire: If any of this realme of late yeeres (whiles the parliament of Pa­ris was established by the authoritie of the French king) vpō co­lour, that the Queenes mai [...]stie is in very right Queene of France, should haue brought processe thence against another subiect to appeare there: whether this had not been a Praemunire by that statute? likewise, If any of the Q. Courts (not authorised therunto by law vpon writ of errour) should defeate a iudgement giuen in any other of the Queenes courts: enquire, whether this be within the meaning of those words, notwithstanding the [...] and di­stinction, whereby such another court seemeth to be seuered and made a distinct thing from all the Queenes court?

[Page 127] Thirdly, it is an vndoubted Praemunire according to the later of the foresaid two statutes, to purchase or pursue, or to procure so to be done, in the court of Rome or else-where, any such translations &c. or any other things, which touch the King, be against him, his Crowne and Regaltie, or his Realme, as is (there) aforesaid: or &c. as is there further conteined.

Fitzherbert reporteth, Fitzh. tit. Prae­munire. nu. 5. that the opinion of the court was (Pas­chae II. H. 7.) that Alibi in the said statute was vnderstood of Bi­shops courts: so that if a man sue there, for a thing that belongeth to the Common law, he shall be in the Praemunire. Therefore Brooke titulo Praemu, nu. 21. was it holden by some, that a benefice Donatiue by the Patron is a meere lay thing, and the Bishop shall not visit it, and therefore shall not depriue from it, and if he meddle in this case, it is a Praemunire: and sayth that Barlow bishop of Bathe, for depriuing the Deane that had it as a Donatiue by the Kings Letters patents, was driuen to sue a pardon.

Fineux chiefe 15. H. 7. fol. 9. Iustice, saith; a spirituall man may execute tem­porall iurisdiction, as the Bishop of Durham doth in his countie Pa­lantine (viz. as he hath iura regalia, but not as a Bishop) and (saith he) the Bishop shall punish his Clerks by Praemunire for suing in Spirituall courts for a cause temporall. But whether that Bishop hath this authoritie (seeing Praemunire is brought in by statute) there is a Quaere inde made, as of a matter doubtfull.

It is holden, that a Prohibition doth 24. H. 8. titulo Praemu. num. 16. often lie, where a Praemu­nire doth not: as of tithes of great trees &c. for the nature of the a­ction doth belong to the Spirituall court, albeit not that very cause in that forme; but when it is of a lay matter, or of a thing that neuer did belong vnto the Court spirituall, herein (as is said) there lieth a Prae­munire.

But these notwithstanding, sundry doubts are made in this behalfe, because at this day all iurisdiction Ecclesiasticall is now truely acknowledged, and is in deed (as it was alwayes in law) in the Souereigne prince, and from her prerogatiue royall deriued downe to others, no lesse then the Admirall court is, or the court of the Constable of England in times past was, when it was vsed: albeit they vsed their peculiar seales, and names to the processes there sped. And I haue heard very credibly, that some reuerend and great learned Iudges (whiles they liued) were of opinion, [Page 126] that for an Ecclesiasticall Iudge to deale in a matter apperteining (in very truth) to a Temporall court, yet for some neerenesse and coherēce, by him probably supposed to be an ecclesiasticall cause; could not at this day be a Praemunire; but subiect onely to a Pro­hibition, and punishable as a contempt, as it was at the Common law, vpon an attachment after Prohibition. Which opinion if it be sound; then the Treatiser is farre wide from the truth, where he saith: that for men to deale in any cause not belonging to their iu­risdiction, is Praemunire. This were very hard and rigorous, if eue­rie mistaking or going beyond their commission by Iustices of Peace, by any Iudges ecclesiasticall or temporall, should be no lesse then Praemunire. I haue heard it deliuered by great Law­yers, that so to do, doth but make the Actvoid, as being coram non Iudice, and inferreth no such grieuous penaltie. For it is alle­ged, that (Alibi) in the statute was put in, to enclude processes deriued from the Popes authoritie, albeit he kept his abode any where els then at Rome. In which respect it is affirmed in a 25. H. 8. ca. 21. sta­tute; that the said statute of Prouision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the kings crowne and dignitie royall. And it seemeth to some, that Alibi can not now signifie Bishops and their Courts, which are called the Queenes Ecclesiasticall courts and Iudges, and the Ca­nons by law established, the Queenes Ecclesiasticall lawes. In­somuch, as the power giuen by statute to her Maiestie, by her Let­ters Patents to 1. El. cap. 1. name such as shall execute all maner of iurisdictions touching or concerning any Spirituall or Ecclesiasticall power, is brought 8. El. cap. 1. in the Preamble. to prooue the sufficient ordinarie authoritie, that Bishops haue giuen vnto them, by the very Letters Patents directed from her Highnesse, for their confirming and consecrating, &c.

It is further alleged, that such dealing of an Ordinary toucheth not the King, against him, his Crowne and Regalie, or Realme, as not falling into any of the mischiefs, whereof that statute was meant to be a remedie.

And for that (all iurisdiction Ecclesiasticall is now both in fact and Law vnited to the Crowne, and from thence deriued) if it should be sayd that the handling of a matter but in an incompe­tent court (yet established by the Queenes authoritie) were in that high degree of offence & punishment against her Crowne: [Page 127] some thinke it reacheth thus farre; as to implie an incompatibi­litie betwixt the Crowne and Ecclesiasticall iurisdiction; and so by implication, to denie her iust Royall prerogatiue ouer all persons, and in all causes aswell Ecclesiasticall as Temporall; as if these could not both flow from the Crowne, nor stand together and meet in one person; which is most erroneous to thinke, and traiterous to affirme.

It is likewise alleged, that this were to make in effect a Prae­munire to lie in euery case, where a Prohibition may, and alwayes hath serued the turne. Whereas a Praemunire seemeth to be as a remedie prouided, where a Prohibition could not serue, to stay the course of proceeding. And that euen before the supremacy was acknowledged to the Crowne, no Praemunire vpon this point (onely) is reported in the bookes of termes and yeeres, to haue bene inflicted: but onely for pursuing pleas of the conusance of the kings court out of the Realme, seeking to defeat iudgements there giuen, and procuring Bulles from the court of Rome, in de­rogation of the lawes of the Realme.

Moreouer, it is to this purpose alleged, that by the 3. & 4. Edw. 6. cap. 11. statute au­thorising two and thirtie persons to set downe lawes Ecclesiasti­call, though repealed, it was prouided (as they thinke) in affir­mance of the law, that no man for executing any of them, should haue incurred contempt, paine, forfeiture, losse, nor haue bene in dan­ger of any action or suite of praemunire. Yet if such lawes had bene framed, the Iudges ecclesiasticall might (by mistaking) haue giuen some cause of prohibition. Therefore it is gathered by like equi­tie, to be very hard, that an Ecclesiasticall Iudge meaning to do his dutie, and but to execute Ecclesiasticall iurisdiction ecclesiastically, yet by similitude and neere coherence of one matter with ano­ther, mistaking and so exceeding his authoritie (a thing very ea­sie in the Common law, wherein sometimes do happen varietie of iudgements, amongst the oldest professers of it) if before any prohibition brought (as it were to forwarne him) he should here­upon de drawen at the very first push into a praemunire. For by like reason, if a court Baron should heare plea of a matter aboue fortie shillings, a praemunire in stead of a prohibition might be brought against them.

Therefore enquire, and seeke to enforme your selfe aswell [Page 130] in the premisses, as of these questions following, what is to be holden for law: viz. in holding plea in an Ecclesiasticall court 1. Doubt. of a temporall matter, whether there be not a difference, when it is propounded vnder the very name of a temporall action, and when it is propounded vnder the name of an ecclesiast. matter?

And whether the Iudge be in danger before the matter be 2. Doubt. opened vnto him, or no? For I thinke in no Court temporall or ecclesiasticall, the Iudges peruse the writs, declarations &c. when they are first put in.

And whether it be as great an offence in law but to hold plea, 3. Doubt. as to giue iudgement, and to award execution in an Ecclesiasti­call court of a temporall matter?

Also whether it be like degree of offence for an ecclesiasticall 4. Doubt. Iudge to execute a temporall matter by censures ecclesiasticall, as it is to execute it, or a matter ecclesiasticall by temporall, viz. fine, imprisonment, losse of limme, or such like?

Likewise of what qualitie the offence is to go on in plea in a 5. Doubt. Court ecclesiasticall after a meere temporall matter (as right of aduowson, &c.) falleth in controuersie, principally to be deter­mined?

Or to holde plea there in a matter worthie of redresse, yet ne­uer of custome handled either in temporall or ecclesiasticall 6. Doubt. Court, nor whereof any remedie lieth at the Common law?

Also what offence it is to make lawes temporall or ecclesia­sticall without the Princes assent? 7. Doubt.

What it is to deale in temporall causes or courts, without 8. Doubt. commission? and what in ecclesiasticall?

And lastly of what degree and qualitie of offence is it, for a 9. Doubt. Court temporall to holde plea of a meere ecclesiasticall cause? or to deale in censures ecclesiasticall?

Or for such a court to holde plea of a temporall matter, be­ing 10. Doubt. no competent Iudges thereof? as for example, if the Court of Common pleas, or the Eschequer should deale in pleas of the Crowne, that be capitall? with such like a great number. And so thus much for the first part.

The end of the first part.
THE SECOND PART OF A …

THE SECOND PART OF AN APOLOGIE, FOR SVNDRIE PRO­ceedings by Iurisdiction Ecclesia­sticall; of late times by some cha­lenged, and also diuerslie by them impugned.

This second part (especiallie) treateth of the two seuerall wayes of proceeding in causes Criminall, viz. by way of Accusation, and ex Officio Iudicis.

Imprinted at London by the Depu­ties of CHRISTOPHER BAR­KER, Printer to the Queenes most excellent Maiestie.

¶THE PREFACE, wherein is declared, howe the foure opinions put ouer vnto this place doe fall in with the challenges of the Innouatours; and a generall distribution made of matters to be handled in the second and thirde Parts.

THe second part of this treatise contai­neth our proofes, together with an­swere to the obiections made against the maner of practise of iurisdiction Ecclesiasticall by those, who do euen professe themselues to endeuour an innouation in the frame of gouern­ment of this Church of England. But wee meane not in this place to handle all, which they obiect in this behalfe, but only some such of them, as touch the maner and fourme of the proceedings in the exercise there­of. For it is knowen they take sundry other exceptions, as a­gainst the maner of calling to function Ecclesiasticall, against the ordination, against sundry the callings and the functions themselues, against deriuing of the iurisdiction [Page] Ecclesiastical from the Prince, against the matters hand­led by that iurisdiction, and against the maner of handling them in sundry other respects, condemning them as Anti­christian and contrary to Gods word. All which are of ano­ther consideration, and not fit here to be ripped vp.

I finde foure opinions (pretending that the lawes of the Realme be against the maner of entrance into some suites, and against certaine proceedings Ecclesiasticall) that are mentioned in the generall Preface to haue bene put off vnto this place, for auoyding of needelesse repetition, and as falling here more fit to be discussed, among other like obiections of the Innouatours.

The first of them that we put ouer vnto this place is, that an Ecclesiasticall court may not proceede without ac­cusation or presentment: meaning (as I take it) a present­ment by Officers sworne for that purpose. If this were true (according as the proprietie of the wordes importeth) then Ordinaries might not so much as deale in those two excep­ted causes of matrimonie and testament, nor in any other concerning rights and dueties Ecclesiasticall, but onely in offences and crimes punishable by that iurisdiction. For an accusation or presentment hath none vse, but in matters of crime or offence incident vnto that iurisdiction to pu­nish. Besides that, this opinion doth contradict the next fol­lowing. For this implieth, that if the matter be Ecclesiasti­call, and that there be either accusation or such presentment; then may the Iudge Ecclesiasticall proceede; so that if there be but a presentment without any accusation, his procee­ding without a partie, which is to proceede ex officio, shall be warranted. Whereupon doeth followe, that proceeding ex officio is not tied to those two causes onely of Testament or Matrimonie, as the next opinion doth holde.

For the second is, that no lay person may bee cited ex [Page] officio in any cause, but either restamentarie or matri­moniall: which if it were true, though a lay man be dùely pre­sented for any crime; yet shall hee neuer bee cited for it, or brought into question, for want of an accuser to prosecute it. Concerning the citing of laye persons, absolutely in any cause besides those two, ynough hath beene saide in the former part So that in this opinion the citing ex officio onely remai­neth needefull to bee further spoken of. Truely if the authour of it had vnderstood what he writte, he would neuer haue put it in the tale or reckoning. For of all other causes Ecclesiasti­call whatsoeuer, there can be least vse of proceeding ex offi­cio in those two: because the chiefest, and almost onely vse of it is, in dealing against crimes and offences. But I wil bring these two opinions into a briefe thus: the first seemeth to per­mit proceeding of Office in an Ecclesiasticall matter, so there be a solemne presentment precedent. The second condem­neth all proceeding without a partie (sauing in those two cases) and so (in effect) in all causes, if it haue none vse in those two.

The third of those opinions is, that albeit a matter bee duely presented against a man, yet he may not be exa­mined vpon his oath, as of incontinencie or such like. Whereby (I thinke) is meant, that hee may not be so exami­ned of any criminall and penall matter.

The last opinion of the saide foure, is: that no man is bound to declare any matter against another, except there be some, that is an accuser. So that by this last, no witnesses shall euer be had, when the Iudge proceedeth ex of­ficio, except themselues list, which commonly none wil thrust himselfe into, but vpon some pique or humor of enmitie. And so an accuser who for the most part commeth in of ma­lice shall (by this opinion) haue compulsories to force witnes­nesses to testifie: but a magistrate proceeding for satisfaction [Page] of his dutie only, shall not. By the way may be noted, that here­by also that opinion is ouerthrowen which holdeth, no man to be bound against his will to testifie, but in causes matrimo­niall or testamentary: for accusation is onely of offences. By this opinion is implied, that when there is an accuser, a man may bee compelled and is bound to declare a trueth a­gainst another. Which last being ioyned to the former, viz. that albeit a matter be duely presented (that is crimi­nall, and may be penall to him) yet he may not be exa­mined of it, vpon his owne oath: doth come to this passe, that of an Ecclesiasticall crime, there is (by lawe) no way to conuict a man, except some man will be an accuser, or els by voluntarie witnesses qui sese ingerunt ad testimonium: viz. such, whome the very lawe of nations doth entend to be enemies vnto the partie, because they thrust themselues into the matter.

You are not to marueile that the opinions of those, who shoote at one generall marke, are so absurd, and do so varie and iarre among themselues, and doe as it were confront one ano­ther. For you remember, quòd vno absurdo dato, multa consequuntur: and that trueth is simple, constant, and like it selfe, and therefore no trueth is disagreeing from another trueth: whereas vntrueth is manifold, and variable from it selfe. For two contraries can neuer be both true, but they may be, and are oftentimes both of them false.

The first of these opinions then taketh away all proceeding, either in crimes, or in any other causes, where there wanteth an accusation or such solemne presentment, as the author of it meaneth. The second (in effect) taketh away all proceeding ex officio, but especially in crimes and offences. The third impugneth all examination by the othe of the partie, in a mat­ter criminall and penall. The last woulde ouerthrowe all vr­ging of witnesses to testifie, in a cause moued ex officio, viz. [Page] where there is none accuser, yea though there bee a solemne presentment.

These foure challenges (among others) are also made a­gainst iurisdiction Ecclesiasticall, by the innouators, not onely for contrarietie vnto the lawes of the Realme, but for contra­rietie also to Canon lawe, to Ciuill lawe, to Gods lawe, and vnto reason, as is by them pretended.

But aswell their other exceptions, that of late haue beene taken by any of them, and stirred vp against the maner of exercising iurisdiction Ecclesiasticall, (so farre as I can learne) as also these foure last recited falling in with them (albeit all their said opinions be not holden by euery of them, but according to the varietie of their humors and seuerall ca­pacities) may be reduced (not vnfitly) vnto these two heads.

They doe respect, either the manner of entrance into the suite, or els the fourme of proceeding in it. In the maner of entrance (you see) they challenge it, for that it is not either at the suite of some accuser, or vpon a so­lemne Presentment: Or for being ex officio in any other cause, then those two of testament, or matrimony, wherein (in very deede) such proceeding hath little or none vse.

In the course of proceeding in the suite, they take ex­ception, partly against some principall acte therein vsed: and partly against some meaner circumstances.

In that more principall acte (viz. of giuing an othe) they impugne either the examination vpon othe of the partie himselfe, or the examination of witnesses, concerning their brethrens actions. Touching the othe of the par­tie, both fault is found by some with the ceremonie vsed in giuing the othe, and because the othe is giuen in a cause criminal and penal to themselues. In the ceremonie at ta­king an oth, there is reprehended (by some) the laying of the hand on a booke, and the swearing by the booke, or by [Page] the contents of it. Of meaner circumstances (falling out in proceeding) that they challenge, some are concurring with the very tender of the oath (as that they haue not distinct knowledge of euery particular, whereupon they are to be examined, before they resolue, whether to take the othe or not: and other are ensuing the othe and exami­nation: as that the Iudges doe not rest in that which is affirmed or denied vpon their oth, but oftentimes pro­ceede to a further examination by witnesses, vpon the same pointes. All which I mind (God willing) to prosecute, in the same order, that I haue here set foorth: hauing first touched some matters, that I holde not vnnecessary to be knowen by the vnlearned sort, for the bet­ter opening and vnderstanding of the di­sputations following.

THE CONTENTS OF the Chapters of the Second part of this Apologie.

OF the distinction of offences: and seuerall kindes and endes in puni­shing chapter 1 them, with the necessity of punishments.

Of two sorts of prosecution of crimes and offences, viz. by a party & of office: chapter 2 the practice of them in Scripture; and in the seuerall Courtes of this Realme.

Of the sundry kindes of obiecting crimes by a party mentioned in the Ciuill law: as by reason of a mans publike charge and function: also by way of chapter 3 Exception, Supplication, Complaint, Delation, and Accusation. The true signi­fication of the word Accusatio: his diuers acceptions, definition & expo­sition thereof; with some reason of the frequencie of accusation, in courts of the Ciuill lawes, in former times is also declared.

That the prosecution of crimes by way of Accusation, is in most places for­bidden chapter 4 or growen into disuse: the reasons hereof, be partly the danger to the Accusers, and partly the hatefulnesse of that course. Therein also is disputed, whether all Accusation be vnlawfull; and certeine points deliue­red to be obserued by all them, that will accuse others.

Of the seuerall acceptions of this word Officium: the signification of Inquisitio, chapter 5 Quaestio, Crimina ordinaria & extraordinaria: the reason why Inquiry by office came in place of Accusation: of Enquiry generall and speciall: of Enquiry spe­ciall ex officio nobili siue mero, mixto, & promoto: and of the priuileges of pro­ceeding ex mero officio aboue the other.

Of Denunciation, a speciall meanes of stirring vp the Office: of the manifolde chapter 6 vse thereof, in the olde Common weale and Empire of Rome: and at this present on the other side the Sea: the general acception of that word; and of foure kindes of Denunciation: how they differ one from another: what is required in them: and when a Denouncer is to be condemned or excused of expenses. And what course of dealing against crimes and offences is hol­den both in courts of the Ecclesiasticall Commission, and in Ordinary courts Ecclesiasticall in this Realme.

That the Ciuill and Canon lawes allow sundry meanes to ground a Speciall En­quiry chapter 7 of office, against a crime, besides Accusation and Presentment: therein is also conteined an answere to a supposed rule: and declared how from Generall they descend to Speciall enquiry: and that besides those two, either à Fame; or Clamosa insinuatio; or Priuate Iudiciall Denunciation; or Canoni­call Denunciation; or Indicia; or taking with the maner: or other Notoriety of the fact: or appeachment by some of the complices: or collusion of the Accuser: or the not obiecting in due time, that euery of these do want: or when the Enquiry tendeth but to a Spirituall punishment, may seuerally a­ny of them serue to warrant such Enquiry: with some obseruations, tou­ching the nature of most of these.

That to proceed sometimes against an offence, otherwise then vpon an Ac­cusation chapter 8 [Page] or Presentment: or then vpon an Appeale or Enditement (which two, at the Common law haue respectiue correspondence vnto the two former) is no diuers, much lesse any contrary or repugnant course to the lawes, sta­tutes, and customes of this Realme: this is prooued by Common law, sta­tutes, and practice, in proceeding informatiue, and Punitiue: with answere to certeine obiections made to the contrary.

How the second opinion (here to be treated of) is: that no lay person may chapter 9 be cited of office, in any cause but testamentary or matrimoniall: and that the drift of that opinion is against proceeding of office in matters criminall: the necessary vse and equity of proceeding (sometimes) criminally, by the Iudges office, in courts both Temporall and Ecclesiasticall.

Conteineth an answere to some further obiections, made against the conue­niency chapter 10 and reasonablenesse of proceeding against crimes of office.

That the lawes of the Realme do vse Enquiries and proceedings ex officio; that chapter 11 they allow it in courts Ecclesiasticall: with answere to some obiections, that are made to the contrary.

Is set downe a replie to the Note-gatherers answers, giuen to certeine reasons chapter 12 that haue bene made long agone, for to shew the like course to be also pra­ctised in Temporall courts: and an answere to his reasons brought to proue, that in proceeding of office, there is some contrariety vnto the lawes of England.

That the Enquiry ex officio against crimes, is allowed both in Ciuill or Tempo­rall chapter 13 courts, and in Ecclesiasticall also, by the two lawes Canon and Ciuill.

Conteineth an answere to such obiections, as vpon the Ciuill or Canon lawes, chapter 14 are brought against all proceedings of office in causes Criminall, by the Treatiser and the Note-gatherer.

Enquiry and proceeding of office without an accuser, and grounded vpon chapter 15 some other of the meanes afore prooued sufficient to enter into such En­quiry, is approoued by sundry examples of Scripture.

An answere is made to such obiections, as out of Scripture or Ecclesiasticall chapter 16 writers be made, against criminall proceeding of office; by the Note-gathe­rer and others.

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THE SECOND PART of the Apologie published in defence of sundrie proceedings by Iurisdiction Ecclesiasticall.

CHAP. I. Containing a distinction of offences, and seuerall kindes and ends in punishing them, with the necessitie of punishments.

ALl the controuersies remaining to bee handled in either of the two partes en­suing, doe rest (chieflie) about the ma­ner of discouering of such crimes as are punishable by ecclesiasticall Iurisdicti­on. And because many bee talkers of these matters, who vnderstand but li­tle the true nature of them; therefore to giue light vnto the whole disputati­on, & to make it appeare to be a matter of no small consequence, but much to be stood vpon; before I proceed further, I mind to touch some necessarie points seruing for the better vnderstan­ding of all proceedings against crimes. And first of the diuersitie of faults in generall, then the seuerall kindes of punishment of them, and the ends of such punishing, and of the necessitie of pu­nishing them: whereupon (by consequence) dependeth a ne­cessitie also to haue them first discouered.

All Gl. in c. pecca­tum de reg. Iur. in 6. gl. in c. si pec­catum. dist. 1. de poenit. August. in quaest. in Leui­ticum. faults are done either by committing; as where in action we doe that which is euill, or forbidden, called properly Pecca­tum, a sinne, a crime and offence: or else by omitting and leauing vndone, some thing that we ought to do, called Delictum, à delin­quendo, a default, negligence or contempt. For to him that knoweth how to do well, and doeth it not, to him it is sinne, saieth S. Iacob c. 4. V. 17. Iames. And yet these two be often c. d. si pecca­tum. confounded together, and the one is ta­ken for the other in sundry writers.

Of both these sortes, some there bee which (by the Ciuill lawes) are called Crimina ordinaria. Such L. 3. § poena ff. de crim. stellio­natus. as bee knowen by a peculiar name, and haue in lawe a certaine penaltie expressed [Page 2] for the offenders in them, by speciall set Magistrates thereunto appointed, in which respect they are also called Crimina legiti­ma. And all other be Crimina extraordinaria, so called, either be­cause they were committed vncertainelie to some, as occasions fell out, or for that they haue no peculiar and proper name in lawe, or else no certaine punishment determinately appointed (by lawe) for those who offend in them; and most of them are therefore for the varietie of them (vpon the great varietie of spots which be in a certaine beast named Plinius. Stellio) termed in that lawe Crimina Stellionatus: and may be englished by the general terme of misdemeanors: and such be many of these crimes which vsually are enquired of and examined in the Starre-chamber.

Of animaduersions or chastisements exercised against offen­ders for either of these kindes of faults: Aul. Gelli­us, lib. 6. c. 14. some be by word onely, and some be by deed. Of those which be by word alone, (which we may English Aduertisements) the one is significantly by the Grecians termed [...] admonition, and the other [...] rebuke or reproofe.

The end of those animaduersions or chastisements which con­sist in words, is referred onely to the reformation & amendment of him, vpon whom they are vsed, by making him sorowfull for it, & more circumspect & carefull how he carieth himselfe in the like afterward, and thereby is a man said to be won by another.

The punishments which be inflicted in deed and not in word onely, are in the Greeke tongue very aptly distinguished being of three seuerall sorts, according to the seuerall ends vnto which they are referred. For euery actual punishment and penaltie is ei­ther [...] or [...], the first of actual punishments (as Aristotle the most exact obseruer of the proprietie both of words & matters Aristot. 1. Rhe­thor. noteth) is [...]: it is such punishment, as especially aimeth at his bettering, vpon whom it is inflicted, being a punishmēt tempered with mercie. For c. duo. 33. q. 4. c. fraternitas. 12. q. 2. c. qui sincera, &c. disciplina. dist. 45. it is whē the par­tie is in deed punished as an offender, yet the rigour of the penal­tie is spared, & he cōmiserated and pitied as a man, and therefore apt inough to offend through humane frailtie. The end of the se­cond sort of actual punishmēts called [...]: that is to say, is done for his cause that prosecuteth it, or is grieued; to the intent there may be some satisfaction.

[Page 3] This may happen in two seuerall sorts. viz. either for the pre­seruing or reteining the dignitie of the L. 1. & 2. ff. de legibus. law, or of the L. obseruandū. ff. de ossic. Praes. magi­strate happening to be violated (non enim licet impunè legesirri­dere transgrediendo) as by fine or such like: or els for the con­tentment of some priuate person, that hath receiued iniury by such offence; which in the French lawes is called Amende hono­rable; and with vs in England are either dammages against him (as is in actions of the case) or els the offenders publik acknow­ledgement of the fault.

The end whereunto the third sort of actuall punishment, called [...], looketh, is especially for the example of others: and may be Englished an Exemplarie punishment: being vsu­ally inflicted for more heinous crimes. Plato Plato in Goe­gia. affirmeth of this, [...]. It is (saith he) done for others, that they who beholde the punishment, may at least for terrour thereof, become better and amend. And else­where in the same booke he saith to this effect, It is required, that euery one which is duely punished, be either himselfe reformed, and made better thereby, or to be an example vnto others to reforme themselues, at the least for feare of like punishment. To which pur­pose the Demosth. con­tra Neoeram. Greeke Oratour also hath a like sentence of this matter.

Plato in his Plato 9. de le­gibus. bookes of lawes assigneth one other end of a­ctuall and exemplarie punishment: which is, that they are also inflicted in grieuous offences, vpon a very detestation and ab­horring of the crime. For which cause euen brute beastes, yea and sometimes insensible creatures also, are (in a sort) punished; by whose occasion some heinous deede happeneth. Of brute beastes slaine in this respect, wee haue example in Gods Leu. 20. V. 15. & 16. Ioseph. lib. 4. an­tiqui [...]. c. fin. owne law. The Romanes did of purpose nourish vp continually dogs in their Capitoll, to giue warning of any secret approch by night; and when the olde Gaules sacking Rome, had almost secretly surprised the Capitoll also: because the dogges at that time did not barke to giue warning, they had their legges broken, and in memorie of a detestation Liuius lib. 7. Plin. lib. 19. c. 3. & 4. & lib. 1. cap. 22. heereof, some dogges euery yeere afterward were put to a kinde of punishment. for certeine were yerely splitted aliue vpon a twiforked stake made of elder-tree, and set vp in that sort publikely, betwixt the Temples of Iuuen­tus and Sumanus in Rome.

[Page 4] And we reade, Aeschines con­tra Ctesiphon­tem. that amongs the Athenians, insensible crea­tures, as stones, trees, yron, and such like (which by their fal­ling had casually occasioned the death of any man) were so­lemnely, as it were, banished from thence, and remooued from the common vse and sight of men. The L. 1. C. de falsa moneta. Ciuill lawes do appoint the very houses to be ouerthrowen where forging of mony hath bene vsed. And vpon the same groundes doth the Common law of this Realme, giue Deodands to the Queene, as thinges accur­sed, and to be either (at her Highnesse pleasure) destroyed, or be­stowed vpon the poore: and the houses of attainted persons in treasons, to the entent to haue them demolished, and the trees about them to be rooted vp; and so in this behalfe is also the law in France, yet in frequent practices. All which tend to sig­nifie, in what detestation & abhomination such enormities are to be had; and that men, who are endued with reason, may by such examples of law be admonished, what punishment more iustly abideth them, if they commit the same for which euen brute beastes and insensible thinges are so duely, as it were, pu­nished. For either it doth, or at least wise ought to worke this effect in men. In which respect Aristotle Arist. 1. Rhet. ad Theod. c. 14. saith, that punishment is a remedie or medicine to be vsed against faults. And so Lib 3. Var. epist. 14. Cassi­odorus grauely writeth: Remedium est contrapeccatum, accelerata correctio. Quicke punishment of sinne, giues a remedie against sinne. For all crimes and offences be (in truth) but as so many maladies and distemperatures in the body of the Church and Common weale; which if they be tolerated to grow (without restraint & coercion of lawes) will quickly spread like a canc­ker, either to the destruction, or to the great and apparant dan­ger of both: so that the necessity of punishments and penalties, by the very endes vnto which they are referred, may sufficient­ly be thus approoued vnto vs.

The necessarie vse of them might be further enlarged and en­forced also, by the consideration of sundry, who are interessed in this behalfe. And first in respect of the Magistrate himselfe: for it is said, Non c. dilecto. de sent. excomm. [...]. 6. caret scrupulo societatis occultae qui manifesto fa­cinori desinit obuiare. He that list not to oppose himselfe against a crime manifested vnto him, may iustly be had in iealousie himselfe, that hee is a partaker with the offender. And againe [Page 5] August. in ep. Ioan. tract. 7. Charitas non est sed languor, vbi mali mores digna poena non casti­gantur. It is not charitie but faintnesse, to be remisse in puni­shing offences. And of such as haue authoritie to punish offen­ders, it is said, Aug. epist. 50. ad Boni [...]. c. error. dist. 83. Si illos negligant & perire permittant, ista potiùs falsa mansuctudo est crudelitas. And againe, Error cui non resisti­tur approbatur. But of that Magistrate which punisheth offen­ders, it is thus said, Aug. in Enchi­rid. cap. 72. Qui emendat verbere, in quem potestas datur, vel coërcet aliqua disciplina &c. eleemosynam facit, quia misericor­diam praestat. To an offender himselfe it is behouefull, that hee may be recalled thereby from his wicked course. for Cassiod. lib. 3. Var. epist. 14. malum cùm perseuerat, augetur: and c. cum tanto. de consuetudine. tanto sunt grauiora peccata, quanto diutiùs animam detinent illigatam. Therefore Iuo. lib. 8. non corripere ma­los est eos occidere. Et consuetudo peccandi tollit sensum peccati.

In respect of others also, that might take encouragement to goe on in wickednesse, or to commit the like, punishments be very necessatie. For in regard heereof, Tullie saith, Pro Milone. Impunitatis spes magna peccandi illecebra. And in law it is said thus: c. vt clerico­rum. § 1. de vita & hon. cler. Iussum est rectoribus prouinciarum, ne sinant crimina coale scere, sed puniant, ne facilit as ventae incentiuum tribuat delinquendi. To like purpose Ambrose Serm. 8. in psal. 118. V. 2. writeth: Nonne etiam cum vni indulget indigno, ad prolapsionis contagium prouocat vniuersos? And therefore it is grauely c. sed illud. dist. 45. said by another: Quae est ista misericordia, quae bonitas, vni parcere, & omnes in discrimen adducere?

Lastly in respect of the whole Church and Common wealth, punishments are most needfull. Examples are plentiful in Scrip­ture, where for the sinne of a few, whole armies and societies haue bene punished. This we may see in Iosua. 7. Achan, whose stea­ling of the accursed garment, &c. was a cause of the ouerthrow of Israel in battell. So for 1. Sam. c. 4. the sinne of Ely and his sonnes ma­ny thousands of Israel were slaine by the Philistims. And to like effect 1. Reg. c. 2. Salomon speaketh, when he giueth charge to kill Ioab. Smite him, (saith he) that thou mayst take away the bloud which Io­ab shedde causelesse, from me, and the house of my father. And Ion. c. 1. for Ionas his disobedience, the whole shippe was in danger to be wrecked. Therefore an ancient Father c. sed illud. dist. 45. saith, That as one dis­eased sheepe infecteth the whole flocke, so by the fornication or other crime of some one person, often oftentimes the whole people is holden defiled.

Vpon these and such like considerations, the light of nature [Page 6] did teach euen heathen men thus: l. ita vulnera­tus. ff. ad l. Aquil. Interest semper Reipub. delicta puniri. And l. 7. § finali. ff. de fideiuss. poenas ob maleficia solui, magna ratio suadet, the whole common wealth hath an especiall and continuall interest, and great reason also mooueth to haue wickednesse punished.

If then vpon so many & weightie causes it be needful to haue crimes punished, can it be denied but that all good means are to be vsed, to bring them to discouerie and conuiction, which must needs goe before the punishment of them? l. aut facta. ff. de Poenis. Multis grassanti­bus exemplo opus est, saieth the lawe: where there be many trans­gressers, it is needefull to haue some made an example to the rest: and therefore l. eum qui. ff. de iniutijs. Peccata nocentium expedit esse nota: it is most expedient to haue euill mens lewdenesse made knowen and reueiled.

CHAP. II. There in is shewed how there are two sortes of prosecution of Crimes and Offences; viz. by a Partie and of Office; and the practise of them in Scripture, and in the seuerall Courtes of this Realme declared.

NOw, the meanes to bring any Crime and Of­fence into question before Iudges and Superi­ours in authoritie, must needs be, and so by all lawes, and in all common weales generallie (that I haue read of) are either by prosecution of some partie, or else vpon the Office of the Iudge: the Iul. Cla. lib. 5. § fin. q. 3. Office of the Iudge is occasioned, and as it were set on worke, either vpon relation made vnto him by some other, or vpon his owne meere motion, without any relation from o­thers, which may happen, as when an outrage or misdemeanor is committed in his sight, or in some publike presence, where he then happeneth to be.

In the law of God and examples of holy Scripture, I do not call to my slender remembrance where any criminall matters be appointed & commanded to be prosecuted by a Partie: & but in very few places, where any haue bene vsed, who might proper­ly be termed an Accuser, or a Partie. For albeit in sundry places of Scripture we finde Accusers mentioned; yet in many of them, [Page 7] such cannot be accusors or parties (properly and strictly so ter­med) but onely in a very large signification. because their testi­monies were receiued against those, whom they denounced of crimes. For where a man is partie himselfe, making it as it were his owne cause, and not the Iudges office; there it is no reason, that his owne testimony should be admitted. L. 1. §. in pro­pria. ff. Quando appell. Quia testimoni­um in propria causa vel quasi propria, non valet. And it may then be said to be a mans owne cause; whereof he may reape benefit or dammage. But more (God willing) shalbe spoken hereof, in his proper place.

Touching bringing crimes into question in Temporal Courts of this Realme, (that deale in matters ciuill or criminall) it is to be first remembred, that these Courts be of two sorts: some vsing the Queenes immediate auctoritie, yet the same still actually be­ing in her Highnes as all the Courts at Westminster: Others vsing but a kinde of mediate auctoritie, deriued from the Crowne; yet by her Graunt made (in some sort) their owne, as deriued downe thereby vnto them. For sundry subiects, albeit they haue but a deriued power from the Queene (as from whome through the dominions of this Crowne, all iustice, and iurisdiction to ad­minister it, whether Temporall, or Ecclesiasticall, doth originally flowe:) yet do not their Processes runne in the Queenes name, nor her seale is vsed to them.

Of such Temporall Courts as sit but by such a mediate and de­riued auctoritie from the Queene vnto them, and therefore vse not her Seale or name; some were in times past established for causes Martiall, as the Ric. 2. cap. Constables of England, and the Earle Marshall his Courts (whereof I haue very small experience:) and some for matters perteyning to the Peace. And of these last, some be for causes growing within the land, as Courts of Coun­ties Palantine, of cities and townes corporate, Sherifs turnes, and Court-Leets, or views of Francke-pledge: and others be for causes Marine, as all the Courts of the Admiraltie.

In temporal courts of counties Palantine, in courts of townes and cities corporate, fauing where some speciall custome preuai­leth (as in London many) in Sherifs turnes and in Leetes, the course of the common Lawe is (for the most part) obserued. In Admiral courts, the order of the Ciuill lawe of the Romanes (be­cause [Page 8] it is the written Common law of most nations not barba­rous, with whom wee haue to deale) is especially vsed; sauing where by Statute or Custome, it is otherwise directed.

Of such courts as exercise the Queenes immediate autoritie, some haue no letters Patents of Commission to direct them; as the Parlement, which is called, and sitteth by the Queenes onely writ: the Chauncerie, from whence all originall writs do come; and yet the L. Chauncellour or L. Keeper haue no Commission by letters Patents, but receiue their authority by deliuery vnto them of the great Seale, as I am infourmed: the Starre-Chamber (esta­blished of the Queenes priuie Counsell, and some others to be called) partly by praescription, and partly by Statute: the court of Requests by custome and praescription: And the Counsaile in the Principalitie and Marches of Wales, auctorised by Act of Parlia­ment vnto such, and in such maner, as her Maiestie (by instructi­ons vnder her Roial hand-writing) shal from time to time direct.

But those Courtes Temporall, which sit by Commission and letters Patents for exercising (in stead of her Highnesse) the Queenes owne and immediate autoritie, are either such, as be vsually now holden at Westminster, as the Courts of the Queens Bench, the common Pleas, the Exchequer, and the Court of Wards and Liueries: or in other places of the Realme abroad, as Courts of Generall Assises, Nisipriùs, Gaole deliuerie, Sessions of the Peace, the Counsell established in the North parts, the Court of Stan­nery in Deuonshire and Cornewall, and (as I haue bene infourmed) the Court for triall of life and death at Halisax, and such like.

I know, that by speach, and by vse also (in sundry mens wri­tings) touching the aforenamed Courts; such only (as it were by a kinde of appropriation) be most vsually called Courts of the Common lawe, wherein matters of fact, touching hereditaments, contracts, or misdemeanours be tried by a Iurie of twelue men, be­cause this triall is more frequent then any other. But yet we are not to thinke, that none but these may truely so be named, as though the other were contrary to the Lawe Common; seeing they be also allowed by the Lawes, Statutes, or Customes of this Realme, aswell as those which proceede to triall by Iuries.

In the Courts afore specified that proceede to the triall of crimes, by Iuries of twelue; if there be any Appellour, as of mur­der, [Page 9] robberie, or such like; then may the prosecution most properly and truely be said to be done by an Accuser, and at the prosecu­tion of a partie. If it be for the Queene, whether it be by way of enditemen [...] and be preferred by the Iudges themselues, or by the Queenes Atturney generall, or by some priuate person; o [...] be by way of Information put vp against some offence made poenall, and not capitall, (and this either by the Atturney generall, or by some other person) then all such proceedings, are in trueth done ex of­ficio Iud [...]: And this, either of meere and entire office, as when the Iudge himselfe preferreth it; or ex officio promoto, as when it is first related and preferred vp vnto him, and prosecuted by any other. But in this last case, there is a kinde of mixt proceeding betwixt both. And albeit the Informer do prosecute partly for himselfe; yet is it for the Queene also whose the Court is, and so may be truly said to be of office.

This appeareth plainely, in that the Appeller (because he Is a meere partie) is not so fauoured, assisted, and p [...]iuileged in many respects; as when the prosecution is instituted of Office for the Queene. For the Appellee may put it to triall of battell with the Appellour, which he cannot doe vpon enditement; at the suite of the Queene. Like wise, whosoeuer doth preferre the endi [...]ement; or information, though the defendant happen to be acquited: yet the preferrer payeth neither costs, nor dammages, nor is sub­iect to any action in that behalfe, as an Accuser and partie both is, and ought to be. But if the defendant be conuicted (so the crime be not capitall, but fineable:) then is the fine, if it be impo­sed by the Court, to come wholly to the Queene: If by poen [...]ll statute; then (most commonly) it accrueth (by disposition there­of) partly to her Highnesse, and partly to such priuate person as informeth. And the enditements be termed vpon their begin­ning, Enquiries or Inquisitions, which are alwayes ex officio.

Now these and such like; be notes and markes; whereby you may discerne proceedings of these Courtes in criminall causes prosecuted by an Accusour or partie, from that which is done vpon the office of the Court: for these two prosecutions doe dif­fer in the end; and they differ also in certeine priuileged points, which that of Office hath, aboue that which is by a partie. In the end, thus they differ; because prosecution of Office aimeth at [Page 10] publicam vindictam, a publique punishment, whether pecunia­rie, to acerue to the Queene, or corporall. In deed, in all capitall causes, vindicta is (in truth) publique, and exemplarie, albeit both the Appellour, onely doe prosecute (perhaps after the Queene haue pardoned it) and that he also seeke nothing els, but priuate reuenge for his owne iniurie receiued rather then for an exam­ple to be made of the offender, or for the Common weales satis­faction, and contentment. Of the contrary side, prosecution in these Courtes of an offence criminall (being not capitall) by an Accuser or partie, propoundeth (for the most part) but a Ciuill end, that is, some satisfaction and amends to be made vnto the complainant damaged: as in actions of sundry trespasses, in a­ctions of the case &c. And then doe the Ciuilians terme this Causa criminalis ciuiliter; and the former, Causa criminalis cri­minaliter mota.

Besides such difference in the end, there be also some priuile­ges that are granted to the one course of proceeding, which are denied to the other; whereby those two kindes of prosecution doe differ. As that in proceeding of Office for the Queene (as was touched afore) the defendant may not gage battell against the preferrer, as he may doe against the Appellour: neither hath any defendant in an enditement or information (though he be ac­quited) any costs allowed, when the suite is for the Queene, as he both hath and ought (in iustice) to haue, when the suite a­gainst him, is onely prosecuted by a priuate and wrongfull Ac­cuser; that was not able to iustifie his declaration (as wee may terme it) accusatorie, of such priuate offence or misdemeanour, whereupon he sued him.

Now let vs consider also how those Courtes which haue none vsuall triall by Iuries, doe proceed against offences. First the high Court of Parliament hath no great vse (that I know) of dealing against Offences: but such as happen to be committed either by some member of the house, during the time of Parlia­ment; or against the liberties and orders of that Court. In both which cases they proceed to examination of them, either vpon the Notoriety of the fact happening among them, or vpon cre­dible relation of some; but wholly without any Accuser or par­tie taking vpon him the proofe thereof, with any hazzard, of [Page 11] so much as Charges for wrongfull vexation; if it should so fall out to be accounted. And therefore such proceeding, is also of meere Office.

In the Starre Chamber, onely crimes and misdemeanours bee inquired of; but especially those, which I called afore Extraordi­naria Crimina: viz. such as haue either no certaine name, or at least no set and determinate punishment, by Lawe appointed; and may not be punished there, by losse of life or of limme; but either by Fine, by open shame and infamie, by imprisonment, by nayling or cutting of eares, or deforming the face, by banishing from some certaine place of the Realme, or foorth of all the Queenes dominions, or vnto a certaine place abroad; or by condemnation vnto the Galleis perpetually, or for a time, &c.

The misdemeanours punishable in the Starre Chamber, bee brought thither into question for the Queene onely, either by her Maiesties Atturney generall (and that is by bill of informati­on, or Ore tenus) or els be brought vpon bill preferred by some priuate person, that is grieued. In all which Cases, albeit there be found one which doth prosecute: yet can he not truely be called an Accusour, or a partie; for the reasons before alleaged, viz. of the end propounded, which is publica vindicta; and for other great assistance and priuiledge, which that Court giueth to the prosecutor against the def. in respect that it is for the Queene.

And namelie that he is to answere not onely to the Bill vpon his oath, but also to Interrogatories more particularly criminall then the Bill, and the Interrogatories without counsell: which (in trueth) therefore needeth not, because they are brieflie drawen article-wise, and concerne but matters of fact, within his owne knowledge as is entended. Vpon all which matter it followeth, that the prosecutour there is but as a relatour, partly to stirre vp, and partly to ease the office of that Court, by furnishing it with proofes.

Neuerthelesse I am not ignorant, that sometimes, when it ap­peareth manifestlie to their Lordships: that the plaintife (being some priuate person) hath calumniously, and of malice onely, vexed the def. then such plaintife there, is (and iustly also may be) condemned in costes and damages, for his apparant calumnia­tion and wrongfull molestation of the def. Vnto which courses [Page 12] of the Starre Chamber, I take the Courts of the Queenes Coun­sell established in the Marches of Wales, and in the North partes, to bee also agreeable in their inquiries and examinations of crimes and misdemeanors.

In the Chancerie and Court of Requests, (being both Courtes of equitie) if any misdemeanours or crimes be diduced and laied downe in the Bils (which happeneth very often:) yet are they not Criminallie laid, to haue the def. punished for them: but one­ly Ciuilly, to the intent, that the plaintife may haue an amends and priuate satisfaction, as shall be deemed to bee equitie. And therefore such prosecution, is not by Office of the Court; but one­ly at the parties suite: albeit the Office in the Chancerie doe thus farre assist the plaintife, for sifting out of a trueth; that the def. must answere, euen to the Criminall points of the Bill, vpon his corporall oath: But he may not (in those two Courts) be put to answere the plaintifes interrogatories vpon his oath; except the plaintife will be concluded by the def. answere vnto them, and seeke to make no further proofes.

But of all the Courts temporall aforesaid, aswell those which proceed to the triall of misdemeanours by Iurie, as of others; I thinke this may bee generally affirmed; That when any lewde practice, abuse, or contempt (not capitall, not tending to muti­lation) is supposed to be done against the Court; there (euen of meere Office without any Accusation or prosecution of any par­tie by Bill) the Iudges of such Courts, doe Enquire thereof, by examining and by interrogating euery one that is holden suspe­cted thereof, or to be priuie thereto, vpon their corporall oathes first taken. Let thus much then suffice for the two sortes of prosecution, and bringing Crimes into question, by the course mentioned in Scripture; and by vse and practice in Temporall courts of this Realme.

CHAP. III. Of the sundry kindes of obiecting Crimes by a partie mentioned in the Ciuill lawe: as by reason of a mans publique charge and fun­ction: also by way of Exception, Supplication, Cōplaint, De­lation, and Accusation. The true signification of the worde Ac­cusatio, his diuers acceptions, definition, and exposition thereof, with some reason of the frequencie of Accusatio in Courtes of the Ciuill lawes, in former times is also declared.

THe same, and none other maner is likewise pra­ctised to bring offences into question by the lawes both Ciuill and Ecclesiasticall, in such Courtes, as either of those Lawes haue place and vse: That is to say, either by a partie, or els by the Office of the Iudge.

Crimes in such Courtes may be brought into question be­fore a Iudge, vpon a parties prosecution (whereof we are first to speake) two maner of wayes. The one Commendablie, the o­ther not so commendablie. Commendablie in two sortes, either by reason of some office and charge, or by reason of a mans owne necessary interest. By reason of a mans Office and due­tie, as when Triumuiri regij, Procuratores Fisci, Aduocati regij (as French writers call them) or (as we speake and practise here in England) when the Queenes Atturney generall (who by due­tie is bound thereunto) preferreth inditement or information a­gainst some suspected criminous person, or wrong doer. This hath verie neere affinitie with that Denunciation or Presentment (called Iudiciall) which is to be spoken of hereafter. And albeit there be a kinde of partie; yet it is of the nature of proceeding of Office, which I also touched in the Chapter next precedent.

The Commendable prosecution by a partie against an Offence, in respect of a mans owne priuate interest; is either by way of Exception and chalenge, done in his owne necessarie defence, and to auoide punishment; or per viam querelae, by way of Com­plaint for attayning his right.

Exception is sometimes taken against witnesses that be brought against vs, to this intent onely; that by obiecting and proouing them to be lewde or affectionate persons, there may no credite [Page 14] be giuen to them in their depositiōs; and not to haue them puni­shed. And this obiecting of Crimes by way of Exception, hath not y e force of an Accusation. Or els l. 1. ff. vi. bon. rapt. l. 2. ff. de tab. exhib. it is taken (before issue ioy­ned) against him that would accuse vs, by our obiecting of some crime also vnto him. Now if this be done onely to the end to repel him from accusing; then hath it not the effect of an Accusation, whereby he may be punished (though he be proued guiltie.) But if he that so excepteth, doe set downe the time, place, &c. of such crime obiected against his aduersarie, and doe also instant the Iudge to condemne him: then shall it be proceeded in, as in Accusation, and may be called a Recrimination, or Crosse-accusa­tion, made by the defendant.

The prosecution per Querelam, is also of two sortes: the one extraiudiciall, when l. 1 C. Retum amotatum. a man oppressed, humbly and ciuillie complai­neth and expostulateth of some wrong done vnto him, desiring reme­die, not so much to haue the other punished, as that himselfe may, (by ordinarie course of lawe) haue reason done him. This may properly be called Querimonia, a supplication to the Superior. The other Querela, is Iudiciall, being a kinde of Appellation; l. Arbitrio. vbi gloss. & Bart. ff. qui satisdare co­guntur, and is either done by complaint vnto the soueraigne Prince, of some wrong done by an high Court (such as Praefectus Praetorio kept among the Romanes) from which none Appellation lieth: or els is a Com­plaint vnto a superiour Iudge, of refusall, or delay to do iustice, by his inferiour Iudge; with vs commonly termed a double Querele. Thus much for the most commendable sortes of prosecution of offences, instituted by a partie.

Of those which be not so commendable prosecutions of of­fences by parties, one is called Delatio, being the more odious and base; the other is Accusatio, properly so termed.

Delatio like wise is of two sorts. The one may be described to be a l. 10. §. Qui nomen. ff. de iure patr. secret accusation or imputation of some crime against any, made vnto a Magistrate, by him that is no way particularly in­teressed in the cause. Against such, was that law l. pen. C. de De­latorib. lib. 10. of Constantinus conceiued, whereby it was prouided, that no priuate person should be a delatour, or preferrer vp of crimes; and that none should be put vp, without the Aduocate of the finances, or reuenues of the crowne; whom we call the Atturney generall. And of such Delatours or Tale-carriers was this woorthy saying of an Emperour meant: [Page 15] Princeps, qui delatores non castigat, irritat. Priuy accusers & back­biters take encouragement enough from such a Prince, as will but heare, without giuing them any rebuke. Which saying, Suetonius Sueto. in Domit. attributeth to Domitian; and Plinius Plin. in Panegy. de Traiano. vnto Traian.

There is a second sort of Delatours & preferrers vp of crimes, which deale more openly then the former. And we finde also in law, two kindes of these. The first be a kinde of Calumniatours or Sycophants, l. nostris C. de Calumniator. that preferre publikely (yet vnder other mens names and persons by them suborned and excited) some criminall matter a­gainst any person. The other sort be those, who (for gaine or re­ward) do in their owne names, preferre vp criminall and poenall matter against others. And of these, some doe informe of con­ceiled landes or goods; due and escheated to the common trea­sure of the Crowne; yet supposed to be deteyned wronfully, by any others. And these by the Ciuill lawe l. ex varia C. de Delatorib. lib. x. are said to be odious and hated of other men; because they doe it for no duetie to the Prince or common weale; but vpon a greedie desire, to enioye to them selues, part of the gaine by others losse: being (by that law) some time a third, and sometimes a halfe part of that, which they finde (in trueth) to haue bin deteined by wrong, intruded vpon, or vsur­ped. Others be mentioned there also, who preferre informations against offenders of such lawes, as do inflict mulctes & pecunia­rie penalties for the offence; vpon hope of such gaine, as (by those lawes) is assigned to come vnto their share. This kind of Delators in this Realme, we call Infourmers, or Promoters: though their prosecutiō in this Realme do much participate (as afore is shew­ed) with that, which is called ex Officio promoto, & in that respect, be greatly priuiledged. Among the Romanes such were cal­led Quadruplatores, because commonly the fourth part of the penaltie, was awarded vnto them. So that by like reason our In­fourmers may be called in Latine Triplatores, when they haue a third part; and Duplatores, when they haue the one halfe, as they haue in this Realme (vpon penall statutes) most vsually.

In what detestation and hatred this kinde of men (though not altogether vnnecessarie) were had amongs the old Romanes, this saying of Quintilian doth manifest, Quintil. lib. vlti. cap. 7. Ad deferendos reospraemio duci, proximum est latrocinio. To be induced for reward or gaine, to preferre criminall matter against offenders, is next a kin to robberie. [Page 16] And in deede, Delatours were farre more stomacked, and ma­ligned, then other Accusours, as may bee gathered by these places in the Ciuill lawe. l. 3. C. de Ma­lefic. Wee doe iudge him that ac­cuseth in such a crime, to deserue rather rewarde, then to bee called a Delatour. And againe in another place: l. Nulli. in fine, C. de. Epis. & Cleric. Let not such feare either the name or suspicion of Delatours.

The last of those wayes, by which a partie brings offen­ces into question and discussing before a Iudge, is Accusa­tion. It is called Isidor. vt in c. forus. de verb. signif. Accusatio ab Ad, & Caussa: quia Accusa­tor quasi ad causam vocat. There bee other wordes of neere signification vnto this, yet not the same altogether, as po­stulare, when it is vsed with the ablatiue case, Postulare aliquem crimine, insimulare, incusare, and such like. But there is a diffe­rence noted betwixt this last, and Accusation, which is this: We are saide (saieth Servius in prim. Aeneid. one) properly incusare, such as bee our bet­ters, and to accuse those, that be our equals or inferiours. But this difference is not much obserued. l. Qui accusare, C. de edendo. l. Si maritus. § Si negauer. ff. de adulter. This worde Accusation is sometimes so generally taken, that it signifieth an Action in a Ciuill cause; like as, on the contrary side, Action is taken for Accusation. Tullie, pro Milone nameth it Actionem Perduellionis. But most properly it is called Accusation, when it is intended in causes Criminall.

We reade of inwarde, and of externall, or outwarde Accusa­tions. Internall Accusation is of a mans owne conscience. Such is the Accusation spoken of by Salomon. Prouerb. 18. vers. 17. Hee that is first in his owne cause, is iust: or as the vulgar Latine translation rea­deth it, The iust man, is the first Accuser of himselfe.

Externall, or outward Accusation is either Priuate, or Publike. Priuate is either betwixt enemies, or betwixt friendes. That priuate Accusation and imputation which is among enemies, is of three sortes: either spitefull vpbraiding, called of the Grecians by the generall name Plutarch in vi­ta Publicol. of [...], a worde also fit­ting euery Accusation: or reproche and reuiling called [...]: or els Calumniation; that is, malicious or false wresting of his enemies wordes or actions, to an offensiue purpose.

Priuate Accusation of one friend touching another, is nothing els, but a friendly expostulation with him, that is supposed not to haue dealt singlie or considerately, in the course of good friend­ship, [Page 17] called [...] of the Grecians. That Accusation which is pub­like, is either ciuillie moued, that is, for priuate amends vnto the partie grieued: or criminallie, that is, for some publike punishment; whether it be [...], [...], or [...]. And it is that Accusation, which here we especially treate of.

This publike Accusation, is sometimes done ore tenus; that is by bare wordes without writing, which the Grecians doe expresse also by the aforesaide name of [...]. But most vsually publike Accusation is made by writing. That, which is conceiued in writing, in a more large signification, conteyneth and rea­cheth euen vnto those preferrings of crimes (afore spoken of) that are done by Exception or Chalenge, by Complaint, or by Delation. And vnto this publike Accusation, which is of more generall acception, that definition of Aristotle agreeth: viz. that it is a publike declaration against some, of iniuries or crimes committed. But in the strict and proper signification it is taken for that solemne Accusation termed by the Grecians [...], and also sometimes [...]; when as this latter is not taken gene­rally, but for the most especiall kinde thereof onely.

The effect of this Accusation, when the crime declared is proued to bee true, and by arguments conuicted; is called by the Grecians [...]; that is, l. indicasse. ff. de verb. signific. (as the Latines doe expresse it) arguere.

There is also another different acception from the former, of the worde Accusour, that is not hitherto touched: which is, when that worde is applied [...] vnto any, that testifieth some criminall matter against another. And in this signification, wee doe finde it very Vide infr [...]. cap. 15. vsually taken in holy Scripture, as shall afterwarde more fully appeare. So in sundry statutes of this Realme, as namely in these wordes of a statute; viz. duely ac­cused or detected by two lawfull witnesses: 25. Hen. 8. cap. 14. and in such other statutes; whereby is required, that the Accusours be brought face to face, against the prisoner: meaning thereby such witnesses as are to giue euidence (vpon their oathes) against the partie conuented. Hereof we haue diuers examples, and namely in these wordes of a statute, 1. Ed. 6. ca. 12. in fine. That no person shalbe conuicted &c. or suffer &c. vnlesse the same offendour &c. be accused by two sufficient & lawfull witnesses, as shal willingly without violence cōfesse the same. [Page 18] Where the witnesses sayings are called Accusation, & their De­positions, Confession. Likewise in the same Kings dayes, where it is thus prouided, 5. & 6. Edw. 6. cap. 11. That no person shalbe convicted &c. for any trea­sons &c. that nowe be, or hereafter shalbe &c. vnlesse the same of­fendour be thereof accused by two lawfull accusers: which saide accu­sers at the time of the arraignment of the partie accused (if they be then liuing) shalbe brought in person before the partie so accused, and auowe and mainteyne that, that they haue to say against the partie, to proue him guiltie of the Treasons or Offences, conteyned in the Bill of inditement. So that here, those that giue euidence to prooue the matter of the enditement (which must needes be the witnesses) are called Accusers. which termein these & like statutes, seemeth to haue bin borrowed from the cōmon speach of men (who of­ten vse to say thus; Who is able to accuse me of such or such things? meaning, to testifie against them) rather then that the true pro­prietie of the worde was there followed. For Iustice Brooke in his Abridgement testifieth, Tit. Corone. nu. 220. That the common triall at the Com­mon lawe is by Iurie and witnesses, and not by Accusers. So that al­beit witnesses touching offences (by some statutes and by vsuall speeche of the vulgar sort) be termed Accusers: yet (by his opinion) they doe (in very deede) differ much, in that the one is (as he saith) the triall of the Common lawe, but not the other. The true difference betwixt them he there prooueth also out of the Ciuill lawe; vpon relation made vnto him, by a Doctour in that facultie; and willeth it to be noted as a saying, which hee well alloweth. By the Ciuill lawe (sayeth Brooke. ibid. he) Accusers be as parties, and not as witnesses. For witnesses ought to bee indifferent, and not to come till they be called. But accusers doe offer themselues to accuse. For it is a good chalenge of a witnesse to say; that hee was one of his accusers. Quod nota.

Nowe howe vnreasonable were it, to admitte the testimo­nie of a partie in his owne cause? So that by the Ciuill lawe (by which this prosecution is most properly handled,) Accu­sation (truely so called) is defined to bee, Ius vlciscendi so­lenni & poenali iudicio, poenas ac delicta: A right which the lawe yeeldeth to any of prosecuting crimes and offences for reuenge and pu­nishment, by publique and solemne iudgement.

For the explaning wherof, we haue to note in this behalfe that [Page 19] crimes or offences be of two sorts. Some be priuate, whereby a cōmon person onely, and no publique person, nor the state of the Common wealth (otherwise then by consequence) is offended. And this kinde cannot be prosecuted, but by the very party grie­ued, or by some of his kinne and propinquitie. And it may be vr­ged, either to the end of ciuil reuenge; that is, amends pecuniarie, called actio vel accusatio criminalis ciuiliter: or to the ende of a publique punishment, called accusatio criminalis, criminaliter mo­ta. The crimes that be publique, are those that be heinous, as more deeply touching the state of the whole cōmon wealth and pub­lique peace, then the former; and therefore may be prosecuted by any man, being called populares actiones, quia competunt cuilibet de populo: l. de his. C. qui accusare non possunt. sauing that certaine persons, for especiall causes, are by lawe from accusation to be repelled.

Vnder the word of solemne iudgement, be three things contei­ned, and vnderstood, that such an Accusour must vndergoe. First l. finali. C. de accus. he must present the name of the accused person in publique iudge­ment, as an offender in such a speciall crime: Then must he subscribe his owne name, whereby he is said vinculum inscriptionis accipere: And he must also be committed vnto the like custodie and ward, that the Accused (in regard of the qualitie of the fault, and dignitie of the Accusour) is to susteine, vntill the suite be finished. By this bande of Inscription or Subscription, the l. qui crimen. C. qui accusare non possunt. Accusour bindeth himselfe to pro­secute the sute: and professeth withall, that if he proue not the Crime, which he layeth against the Accused; then he himselfe will and shall endure the same punishment; that such crime (when it is in deede committed) doth deserue.

How vnusuall soeuer this be among vs, or how seuere this course of punishment may seeme vnto some: yet do we find the equitie of it in Scripture, and that it is to be inflicted vpon such, that calumniously impute false crimes vnto others. If vpon dili­gent inquisition (saith Deut. 19. V. 16. & sequent. the Lord) it be found by the Iudges, that the witnesse is false, and hath giuen false witnesse against his brother; then shall ye doe vnto him, as he had thought to doe vnto his brother, &c. Thine eye shall haue no compassion, but life for life, eye for eye, toothe for toothe, hand for hand, foote for foote. How much more then vp­on a wilfull Accuser, which calumniously seeketh for reuenge sake, vpon an vntrue Accusation so knowen vnto himselfe, to [Page 20] bring another man into so deepe danger? An Dan. cap. 13. example hereof we haue, in the stoning of the two Elders, that calumniously ac­cused or witnessed against Susanna. This poenatalionis, or retalia­tion, is also allowed by sundrie ecclesiasticall writers in like case: as by Epist. 2. ad E­piscopos Siciliae. Eutychianus, and Sixtus 3. Epist. 2. ca. 4. ad Episco­pos Orientales. Sixtus, auncient Bishops of Rome. For witnesses be sometimes compelled to beare witnesse, who per­haps may slippe by affection, inconsideration, or want of remem­brance: which is therefore more excusable in them, then in Ac­cusers; insomuch as these Accusers come willingly, without any excitation of others, to doe it. For nemo inuitus agere vel l. 1. C. vt nemo inuitus ag. accu­sare compellitur: No man is compelled to bring an Action or an Ac­cusation, sauing in especial cases, as l. Manichaeos. C. de haeret. in Heresie. Omnes enim haere­ticum prodere atque accusare debent: and in Treason also thus farre, that he which doth not at least reueile it, (though a man be not bound to prosecute therein as an Accuser) is to be pu­nished, as partaker of the Treason. But this Inscription, ad poe­nam Talionis, to endure the penaltie due, if he be not able to prooue his Accusation; is l. Fin. ff. de priu. delict. l. fin. ff. de furtis. not required in Accusations of priuate Crimes, whether they be Ciuillie, or Criminallie mooued and pro­secuted.

Here perhaps some will marueile, how this prosecution of Crimes by way of Accusation, coulde be so vsuall, as it was (in former times) in the common weales of Athens, Rome, and such like, insomuch as it became (there) to be the most ordi­narie meane of all others, to bring Crimes and offences into question: considering the great troubles and dangers, that by Lawe, did accompany the Accusers. Such therefore are to vn­derstand, that fewe or none Accusers would deale so vnconsi­deratly, as to vndertake it, vntill they thought themselues suffi­ciently furnished with witnesses and other proofes, able to con­uince them, whom they accused. Next, they are to remem­ber, the vse of it to haue bene greatest in populare Common weales, where the readiest steppe to attaine vnto most honou­rable offices and dignities (next vnto seruice in warres) was to be able to speake and deliuer their mindes eloquently be­fore the whole people; who were the soueraigne Iudges (in most of those causes) either by way of Accusation, or els in D [...] ­fence of others, being by Accusation called into dangerous que­stion [Page 21] of their liues, limmes, honour, libertie, countrey, or of their goods and landes. Thirdly, that when it was in most fre­quent vse, the people were heathen, and vninstructed in the true knowledge of God: so that they thought, to put vp an iniurie done either to themselues, or to their friendes, to be great pu­sillanimitie, and a token of a base minded man; and to be (in deede) a vice very discommendable, euen as the contrary vice thereunto is; viz. of doing Iniurie. For so Arist. lib. 5. Ethic. Aristotle teacheth in his Morall philosophie. In which respect, all danger to them­selues, was the lesse regarded by them. Lastly, they thought themselues bounde in strict termes of duetie, no lesse to perse­cute and to plague their enemies by all meanes, then they were to doe good, and to shew kindenesse vnto their friendes. There­fore the same Arist. 2. li. Topic. Philosopher makes this to be a good argument and consequence; Wee must doe good to our friendes; therefore we must hurt and annoy our enemies. But Christ refuteth this hea­thenish opinion in the Gospel, Matth. 5. vers. 43. & 44.

Now for proofes of that wee haue saide in this behalfe, we are furnished of them out of the grauest writers among the Greekes and Latines. Plutarch saith thus: Plut. in vita Luculli. Publique Iudge­ments and Accusations haue bene of long time ordeined, to th'en­tent young men might be bredde vp in the studie of Eloquence; and that they might thereby be excited to the valoure of a braue minde: that like as dogs of the best kinde by naturall instinct doe at first sight fiercely assaile wilde beastes: euen so noble youthes should be kindled and inflamed with great courage thus by accusations to set vpon lewde and euill members in a Common weale. To like purpose Quintil. li. 1 [...]. ca. 7. writeth Quintilian; Crediti sunt clari Iuuenes, obsidem dare Reipub. ma­lorum Ciuium accusationem: quia nec odisse improbos, nec simulta­tem prouocare, nisi exfiduciâ bonae mentis videbantur. Tullie assig­neth three seuerall motiues, whereby without any discommen­dation in those times a man might be drawen to become an Ac­cuser of others. A man may be well induced (saith he) Cic. pro [...]. to be an Accuser, either Pietate, in a duetifull care: by necessitie; or els by reason of his yeeres. If hee willingly enter into it, I doe attribute it to his Pietie: If he were commanded, then vnto necessitie: If in hope to attaine glory and renowne, I ascribe it to his youth. But vpon any other occasion to doe it, doth rather deserue resistance, then pardon. [Page 22] He also else-where teacheth, for what ende we may enter into Accusation of others. Of accusing, we are not, (saith he) Cic. li. 2. Offic. to make as it were an vsuall trade or profession; neither are we at any time to doe it, but either in behalfe of the Common weale, as the two Luculli did; or for our nearest friends and allies, being tyrannously, and pite­ously oppressed, whom we haue receiued to our patronizing, as M. Ca­to, Cn. Domitius, and others did: or els but once onely, as happely in our flourishing youth, for attayning honour thereby. But it seemeth, that the chiefest ende among the rest was, for procuring with the people glorie & reputation of eloquence vnto thēselues. For so Apuleius an auncient writer testifieth, where he Apuleius in 2. defens. Mag. saith thus. He doth not accuse me for to procure vnto himselfe glorie, as M. Anto­nius did Cn. Carbo &c. For it was vsuall (saith he) with yong men of greatest ripenesse in learning, for their commendation to vndertake to accuse others, thereby to giue an experiment of themselues in Iudi­ciall Courts, to the entent, that at some notable Iudgement or ar­raignement they might become knowen vnto the multitude of Ci [...]i­zens. Yet this Custome, which in olde time was permitted vnto yong beginners, to set out thereby the forwardnesse and sharpenesse of their wittes, is long agone (saith he) growne into disuse. But what might be the very true causes of the giuing ouer of such Accusations, it will not be amisse here also to examine, as being very requi­site for the perfite vnderstanding of the nature of it, and of some other discourses following.

CHAP. IIII. That the prosecution of crimes by way of Accusation is in most places forbidden or growne into disvse: the reasons hereof be partly the dangers to the Accusers, and partly the Hatefulnesse of that course. Therein is also declared whether all Accusation be vn­lawfull; and certaine points deliuered to be obserued by all them, that will accuse others.

IT is very assured, that how vsual soeuer it was in those populare Common weales; yet of very long time it hath not, nor is now practised in most ciuil Common weales or kingdomes, that I haue read of. But in place thereof, is come either proceeding of meere Office, or [Page 23] els some way mixt, partly of that proceeding, and partly of prosecutiō by a Partie, who is not properly to be termed an Ac­cuser.

First in this kingdom how rarely Appeales be brought and prosecuted against any supposed offenders, sauing murderers, & those scarse two in an age, euery one but of meane experience knoweth. I doe call to mind one Appeale of robberie brought by Benet Smith against Giles Rufford in the beginning of Queene Maries raigne; as appeareth by the preamble of a Statute, 2 & 3. Phil. & Mariae, c. 17. And this kind of prosecution of Crimes, though of all those which we haue, it resemble neerest the Ac­cusation practised amongst the olde Romanes and others: yet in some points it doeth also somewhat differ from it.

In Flanders all Accusation is altogether inhibited. In the king­dome of Naples it is onely permitted Clarus. q. 10. vnto those, which in that sort will prosecute some iniurie or enormitie, done vpon them or theirs. In the Decianus. Venetian common weale, it is wholie forbidden vnto priuate persons to Accuse: so that the care of prosecuting offences, is wholie left to the publike magistrate. In France none but the kings generall Atturneis (whereof there be three) may take vpon him Gul. Bened. in c. Rainutius. V. mortuo. nu. 200. de testam. to be an Accuser: and yet those not properly so to bee called. And this reason is alleaged by a learned writer in Law, of that nation: Least too great opportunitie of calumniation and of op­pressing the meanest by the power of the mightie, should there by be gi­uen; and for retaining of publike tranquillitie in the kingdome. It is testified by a graue & learned Ciuilian writer, Clarus li. 5. §. fin. q. 11. that the solemne maner of Accusation mentioned in the Ciuill law of the Romanes, is almost generally now growen in disuse.

The chiefest causes of such disuse thereof (as I doe conie­cture) hath growen by these two wayes. The first, because it is so full of danger and trouble: The second, because it is and hath bene so odious and abhorred of most men in all ages. The danger and trouble may be considered at the beginning of the fuite: in the course of prosecuting it; and vpon the euent which may ensue of it.

At the entrance of the suite, vpon the Accusers inscription ( l. 16. C. de ac­cus. & inscrip. which contained the hainousnesse of the crime, and the time of com­mitting it) the Accuser was by and by to l. 17. ibidem. endure Custodiae si­militudinem, [Page 24] habitâ tamen dignitatis aestimatione; to bee commit­ted to the like safe custodie that the defendant was; regard alwayes beyng had to his dignitie. l. Qui crimen. C. Qui accus. non possunt. He was also then bound with good Cauti­on of suerties to prosecute the suite. Much like to the first of these was that lawe which was established by Crem Suidas in verbo Bulgar. the lawe-giuer vnto the Bulgarians; who prouided that none accuser should haue audience giuen, vntill being bound and brought to the torture, it were by his owne examination found out, vpon what probable grounds his accusation rested.

In the course of prosecution much trouble may grow vnto Accusers, especially Carrer. de Hae. res. cons. 117. in the crimes of Treason or Heresie. For in both these, not onely the defendant, but the Accuser also is subiect to exa­mination by torture, vbi non subsunt indicia, where no plaine or pro­bable matter appeareth, whether of them saieth truer.

The Inscription also (aforesayd) bindeth the Accuser to endure some punishment, vpon detection of any rashe or vndue practise in the Accusation. This rashnesse l. 1. ad S. C. Turpillianum. or lewd practise consisteth in three seuerall points, and euery of them subiect to their punishments. The first is, when the Accuser doeth praeuaricari, that is, collude with the defendant in dealing against him: Dicis causa, & pro for­ma tantùm, for fashion sake; perhaps to keepe others from it, as by suppressing or concealing the best proofes, and by admitting of false and slender defences brought and alleaged in the defen­dants excuse. The second is, when he doeth Tergiuersari, that is, giue ouer and desist from his prosecution, vpon corruption, &c. The last is, when hee doeth Calumniari, that is, wilfully Gloss. in Clem. 1. de sentent. & re iudicat. impute false crimes vnto the defendant, which hee cannot prooue; or make any vniust petition, or by any other meanes deale deceitfully & ma­liciouslie. This may bee resembled to that which wee call at the Common lawe Conspiracie; sauing that onely damages in mo­ney be giuen thereupon. And this perill doeth fall out chieflie, and is discouered vpon the euent of the suite, when it is brought to an ende. For if the Accuser be pronounced guiltie of such Ca­lumniation; then must hee endure the same punishment, which the accused partie ought to haue suffered, if hee had bene found guiltie; called by Aristotle [...], and by others poena talionis.

This appeareth by the Ciuill lawe, and is allowed also by the Ecclesiasticall. By the Ciuill, as namely by the Constitution of the [Page 25] Emperors Honorius and Theodosius, where it is said to an Accuser; l. 17. C. de ac­cus. & inscrip. Necimpunitam fore nouerit licentiam mentiendi, cum calumnian­tes, ad vindictam poscat similitudo supplicij. Let him not thinke hee hath free libertie giuen falslie to accuse others, & that without punish­ment; seeing the course of Iustice requireth that for due reuenge Ca­lumniators doe suffer the like punishment, which they vniustly would haue brought vpon others.

It is also allowed by the lawe Ecclesiasticall. Damalus ep. 3. ad Steph. Ar­chiepisc. For, Calumni­ator si in accusatione defecerit, talionem recipiat. If an Accuser bee found to calumniate, let him receiue the punishment due to the crime imputed. Had [...]ianus 2. q 3. c. qui non. Qui non probauerit quod obiecit; poenam quam ipse in­tulerit, patiatur. He that prooueth not his accusation, let him suffer the same punishment, into the danger of which hee brought another man. And to the Sixtus c. 4. in 1. volum. concil. verie same effect did Sixtus an ancient bishop of Rome write to the bishops of the East partes. Yea, besides the like penaltie, it was decreed in a Councill, Concil. Brac­car. 2. Can. 8. An. Dom. 610. that the Accuser that fayled in proofe, should bee excommunicate. If the Accuser can not (saieth the Canon of the Councill) prooue by witnesses that which hee obiecteth; then let him endure that excommunication, which the partie accused should haue done, if hee had bene conuicted. Neither can this be thought too grieuous for him, that willing­lie and maliciouslie without iust cause, will conspire against an other: let him impute his punishment to his own follie. Actor de­bet venire paratus. Besides the like punishment; such an Accuser by the old Gelasius ibid. c. si quis. Canons, was also pronounced an infamous person.

But from the grieuousnesse of this poena talionis, or for Calum­niation presumed, all publike Officers (who l. post legatum. §. Aduocatum. ff. de his quibus vt indignis. l. qui cum maior. §. penult. ff. de bo­nis libert. by vertue of their of­fice are bound to Accuse) bee cleerelie freed and exempted. Such are called Aduocati, & Promotores fiscales, & regij, The kings Attorneis or Solliciters generall. The reason hereof was, because they did not of their owne voluntarie will, or for reuenge, as or­dinarie Accusers vndertake such prosecution; but for the be­nefite which redoundeth to the whole common wealth by the punishment of Offenders. Besides, they were not to reape any com­moditie or gratification thereby Bart. & alij in l. Si quis in graui. §. vtrum. ff. ad S. C. Syllanianum. vnto themselues by part of the penal­tie or fine; whereby they might bee corrupted or drawen to doe more thē otherwise were expedient. And therefore in both these respects such are freed from all suspicion of wilfull Calumniation, or re­uengefull [Page 26] bringing of men vnto a dangerous question and triall. Thus much how perilous this Accusation is.

How hatefull it is vnto others, and detested of most men, for one willinglie (as with delite) to become a publike Accu­ser; may appeare first by the restraint thereof. Arist. 6. l. Polit. cap. 5. Aristotle saieth, That in a well ordered common weale, Accusations ought to be most rare. That very lawe (by authoritie whereof it was most vsed) prouideth, That it shall not be lawfull at any time l. Hos accusa. §. l. Iulia. ff. de accus. l. cum ra­tionib. C. qui ac­cus. non possunt. for a man to ac­cuse more then two. And an Accusers voyce is called an abhomina­ble or deadlie voyce, especiailie his that will Accuse the master of that familie where hee is commorant. Let such an Accusers breath (saieth that lawe) l. 20. C. Qui accus. non pos­sunt. in the very beginning, before it be heard, be stopped with a sword. Vocem enim funestam amputari oportet, po­tiùs, quàm audiri.

Furthermore, it is naturallie giuen to vs all, to pitie euen strangers when they bee brought into danger and distresse by others; and in sort to abhorre them that doe wilfullie procure it. They ought (saieth Tullie in this behalfe) Cic. pro Mu­raena. to weie with them­selues that an Accusation is no meane matter, but of great impor­tance. It is much for a man to addresse himselfe vnto that, whereby hee may cast another out of his countrey, or take him out of this life; who both standes defended by himselfe and by his friends, yea and by such, as be meere strangers vnto him. For wee all willinglie runne to helpe to keepe off dangers: and when a man is called into triall for his life, libertie or Countrey (if he bee not a very enemie vnto vs) wee doe tender and yeeld vnto him the good offices, wishes, and ende­uours of most perfect friends; albeit in deed he bee a meere stranger vnto vs.

How hardlie Tullie himselfe (though sometimes he vsed it) thought hereof in the time of his age, this saying of his decla­reth. Cic. li. 2. Offic. It is the part of an hard hearted and cruell man, yea rather of no man, to bring manie into danger Capitis, of their liues, liber­ties or countrey. For besides that it is full of perill, euen to the Ac­cuser himselfe; it is also very infamous for a man to bring vpon himselfe to be termed an Accuser. Neither can it possibly be done without great wickednesse, that a man for filthie lucres sake should turne eloquence (which was deuised for the helpe and preseruation of men) vnto their plague and vtter ouerthrow.

[Page 27] This course was so hatefull, that oftentimes such as pursued it, were vpbraided with it as odious. For Mamercus Scaurus Tacitus. l. 3. Annalium. when he accused Seianus, hauing this cast in his teeth, sought to excuse himselfe by the examples of their forefathers, that had done the like. But Cornelius Tacitus (who reporteth this storie) iud­geth it to be an infamous endeuor, whereby noble families are greatly stained and dishonested. Seneca reporteth Senec. li. 3. de benefic. that vnder Tiberius the Emperour, this rage of publike accusing (for so he termeth it) was very rife: and sayth, that it did waste that Common weale (euen in that time of peace) more then any ciuill and intestine warre, which they had amongst themselues, had done in times by past.

And not onely these Heathen men, but the Fathers of the Church, had it also in like detestation, that a man by Accusati­ons should be so carefull to bring other men into danger; which August. li. 1. confess. cap. 18. S. Augustine therefore among others greatly reprehendeth. And he saith in another place thus: August. in Ser­mone Domini in monte. All matters, wherein we suf­fer any indignitie, are of two sorts: The one is such as cannot be re­stored; the other which may be. Now for that which cannot be resto­red, we seeke some comfort by taking reuenge. But (alas) what doth it auaile thee, if thou being smitten doest smite againe, or that ano­ther doe it, to reuenge thy quarrell? Will that hurt which is in thy bo­dy, be thereby healed? Which seeing it cannot be truely said, it must needes be, that all these reuengements proceed but from an haughtie and a proud heart. In this regard, c. Si quis episc. 2. q. 7. olde Canons do call Accusation, Genus illaudabilis intentionis, a kinde of discommendable endeuour or sute. The reason whereof is, for that it is done (for the most part) vpon a reuengefull and wrathfull minde, whatsoeuer be pretended otherwise. If a man to excuse this, shall thinke that here­in he pleaseth God, Anaclet. ep. 1. de oppres. episco­porum. for that he accuseth offenders; saying, that he doth it for their reformation and amendment; this man (as is testi­fied) laboureth but vainely, and is in deed carried with a sting of ma­lice, rather then heat of charitie. So that besides the danger to himselfe, we see how odious a kinde of prosecution, Accusation hath bene holden: and therefore we are not to maruell, that it is either recalled by contrary lawes (as in most places) or grow­en in a maner to an vniuersall disuse in the world.

Hereupon, and perhaps also vpon occasion of certaine pla­ces of Scripture, some may gather that the course of Accusation [Page 28] is altogether vnlawfull to be vsed by any Christian. In deed, thus it is written in Leuiticus: Leu. cap. 19. V. 16. Thou shalt not stand against the bloud of thy neighbour; I am the Lord. And a little after: Vers. 18. ibid. Thou shalt not auenge, nor be mindefull of wrong against the children of thy people, but shalt loue thy neighbour as thy selfe; I am the Lorde. Likewise Iesus the sonne of Syrach sayth: Ecclesiasticus cap. 10. V. 6. Be not angry for any wrong with thy neighbour, and doe nothing by iniurious practises. In the Gospell wee are thus commanded: Matth. 5. V. 38 & 39. Ye haue heard, that it hath bene sayd; an eye for an eye, and a tooth for a tooth. But I say vnto you, resist not euill; but whosoeuer shall smite thee on thy right cheeke, turne to him the other also. Againe, Vers. 44. ibid. Loue your enemies; blesse them that curse you; doe good to them that hate you, and pray for them which hurt you, and persecute you. Which commande­ments are also repeated by Luke cap. 6. V. 27. &c. S. Luke. And to like purpose 1. Cor. 6. V. 7. sayth S. Paul: There is vtterly a fault among you, because ye goe to law one with another. Why rather suffer ye not wrong? why rather susteine ye not losse?

Truely it may not be denied, but that the pregnancie of these places is such, that all prosecution of priuate iniuries or crimes, done vpon reuenge, malice, enuie, vaine-glorie, gaine, or any such like particular respect alone, is heereby condemned. For in Accusation it is first required, that a reuengefull minde be wanting, which is presumed to be present, when the iniurie pro­secuted is but priuate, and such as is not subiect to restitution, according to the former distinction repeated out of S. Augu­stine. Secondly, it must be done vpon a good zeale; to the en­tent the offender may be amended, and others not hurt, by the euill example. For by those August. in ser. Domini in mōte. wordes of the Gospell, such punishment of sinne, as tendeth to correction, is not forbidden; because that is a part of mercie, sayth S. Augustine. And (sayth hee) August. ibid. holy men haue punished certeine sinnes euen with death, both to strike a profi­table feare into the liuing, and that the death it selfe might not hurt them, who were punished by it, but the sinne diminished, which was like rather to be encreased in them, if they shoulde haue liued longer. Thirdly, Accusation by a Christian ought to be referred onely to the publike benefit of the Common weale. In this behalfe Plato (being but an heathen Philosopher) hath a very seuere saying. Plato in Eu­thyph. It is an holy thing (sayth hee) to draw them into iudgement, that [Page 29] haue committed any murther or sacrilege, whether it be thy father, mother, or any other whosoeuer, that hath so offended: so it be done for this end, to ridde the Common weale of them, as of a contagious plague vnto it. Lastly, Accusation may not be vsed for gaine and lucres sake. For such Accusers especially are odious to all men. Another heathen writer could say thus heereof: Quintil. siue Tacitus de claris Orator. The vse of this gainefull and bloudie eloquence, is sprung vp of late times by corrupt custome; and was deuised (as one Aper was woont to say) but instead of a iaueline or dart to thrust men thorow with: In locum teli repertus.

So that if men could keepe themselues strictly within these former boundes; then prosecution by Accusation would neither be so perilous to the Accuser, nor yet so hurtfull vnto others, but that it might still haue a tollerable and profitable vse in Christian Common weales. And then, that which Tullie wri­teth, might haue place, where hee sayth; that Pro S. Roscio Amer. it is profitable to haue many Accusers in a Common weale; yet so, as that men be not abused by such Accusations. And thus much for prosecution of crimes by a partie.

CHAP. V. Of the seuerall acceptions of this word Officium: the signification of Inquisitio; Quaestio; Crimina ordinaria & extraordinaria; Cognitio ordinaria or perpetua, & extraordinaria: the reason why Enquirie by Office came in place of Accusation: of En­quirie generall and speciall: Enquirie speciall ex officio nobili si­ue mero, mixto, & promoto: and the priuileges of proceeding ex mero officio, aboue the other.

NOw because the aforesaid Cautions be so hard to obserue, and for that Accusation is so odious and of so perillous consequence (albeit these foure points were kept) in case either the Ma­gistrate or people (among whome wee liue) should not so construe our doings, as perhaps we doe sincerely meane them; therefore where there be so ma­ny difficulties incident to Accusation, lest crimes and offences should remaine wholly vndiscouered, and so vnpunished, to the great detriment of the whole body of the Common weale and [Page 30] Church: It was very necessarily prouided in most places of the world, to haue the Iudges office by Enquirie to supply this want and scarsitie of Accusers and parties; which is the other gene­rall meane afore spoken of, whereby offences may be brought into question & examination. The Office or duetie of the Iudge, is the cause efficient of this prosecution: and Enquirie is the pe­culiar effect and act, which in Criminall matters that cause pro­duceth; or the course whereby the Office doth proceed; and is that kinde of prosecution, which is counterdiuided against Ac­cusation, and prosecution by a partie.

The word Officium in the Ciuill law (from whence it is taken) hath diuers acceptions. It signifieth either priuate dueties and thinges of conueniencie to be regarded and practiced, in the common life and societie of man with man; or els some more publike function. And in this latter signification, we reade of it to be taken two wayes. By the first, for a ministeriall function vn­to some Court, hauing iurisdiction. And by the second, for the power, authoritie, or iurisdiction it selfe of the Court. I doe ob­serue three seuerall ministeriall functions termed in the Ciuill lawes by this name Officium. The first are those persons, that were publikely appointed to present crimes vnto the Magi­strates: as in these words: L. ea quidem C. de accus. & inscrip. Quae per officium praesidibus nunciantur. The second denoteth vnto vs an Apparatour, as in these words: L. 1. C. de Ap. parit. Procoss. lib. 12. Officio, quod tuis meritis obsecundat, non Curialem quenquam, nec excaeteris corporibus volumus aggregari &c. The third an Actua­rie that entred the acts of the Court; as in these lawes: L. 11. C. de Nu­merarijs, Actua­rijs. li. 12. Officio tuae magnitudinis, datis precibus postulant &c. And againe, L. 1. C. de offic. Comitis sacri pa­trimonij. Offici­um Hellesponti adijt, & rogauit &c. In both which lawes by the word Officium, an Actuarie is vnderstood.

But Officium signifying the authoritie and iurisdiction of the Iudge, is that power, whereby he may deale of himselfe, without the petition or instance of a partie. And this Office is exercised either in actions Ciuill, or in Criminall. In actions Ciuill L. 56. ff. locati. l. 51. §. fin. ff. de act. empti. some­times the Iudge doth of Office decree a thing which he findeth to be equall besides the action, and besides the bond (whereup­on the action riseth:) and L. Si longiùs. §. 1 ff de iudic. l. cum siliusfam. ff. de reb. credi­tis. l. 7. C. de iudic. & alibi passim. sometimes also (vpon a point in e­quitie) hee relieueth by his Office such, as the strict law giueth none action vnto. Calistratus reduceth all causes Ciuill, wherein [Page 31] a Iudge hath conusance extraordinarie, vnto these two gene­rall heads: Per cognitionem L. 5. ff. de ex­traord. cognit. (viz. extraordinariam, siue officio Iudicis factam) aut de honoribus siue muneribus gerendis agitatur; aut de re pecuniaria disceptatur. A Iudge exerciseth his autho­ritie extraordinarie in causes Ciuill, either when hee taketh knowledge of bearing offices and functions; or of causes pe­cuniarie.

But in causes Criminall hee practiseth this authoritie of Of­fice; aut cum Callistratus ibid. de existimatione alicuius cognoscitur; aut cùm de capitali crimine quaeritur: when hee sitteth to take know­ledge, whether a mans honour or reputation ought to be at­teinted; or when he enquires and makes inquisition of some crime capitall; viz. whereby a mans libertie, countrey, or life may bee endamaged. This Office Ouid touched Ouid. lib. 1. de Tristib. in these wordes:

Iudicis Officium est, vt res, ita tempora rerum
Quaerere.—

The effect of the Iudges Office, and the course which hee thereupon doth followe, is called Enquirie. Inquirere (saith Bar­tolus) est Bartol. in l. transigere. nu. 13. C. de trans­action. quasi intus quaerere, diligentiùs abdita indagare, secreta detegere, & in iudicium deducere. It is to search into a matter deepely and carefully, that is kept close, to bring it to triall of iudgement, which it deserueth.

This Enquirie in the old common wealth of Rome, was more commonly called l. 1. § item illud. ff. de S. C. Syllan. Quaestio. Which word hath two significati­ons in that lawe. The one more generall, signifying any enqui­rie: The other, that enquirie and examination, which was vsed vpon bond slaues, and men of the meaner sort, by torture. Quae­stionem sic accipimus, (sayeth the Ciuill lawe to this purpose) non tormenta tantùm, sed omnem inquisitionem & defensionem (or as another reading hath it) detectionem mortis. Where we see, that the worde Inquisitio is also vsed. Of this worde Quaestio, such as dealt by it, were called Quaesitores: and so doth Virgil. 6. Aeneid. Vir­gil call Minos a Iudge, quaesitorem. Out of which (by abbre­uiation) came the worde quaestor, and quaestura.

It is here to be remembred, that in the common wealth of Rome, before the people had conueied ouer, and graunted away all their power and authoritie vnto the Emperour; they had in [Page 32] themselues soueraigne authoritie aswell of punishing heinous crimes, as al other matters of importance. Crimes which be more heinous, were called publica crimina, crimes against the state: and the other, priuata delicta, priuate offences, being of lesse impor­tance, and done but to priuate persons dammage. The punish­ment for some of the publike crimes, the people reserued to them selues onely: but some other of them were first put ouer vnto certaine Officers purposely thereunto appointed, called Quaesto­res siue Quesitores Parricidij; because they dealt in them (for the most part) of Office by way of Enquirie. Yet their dealing there­in was called Ordinaria cognitio & ordinaria Quaestio: And the crimes which they enquired of, Ordinaria crimina, vpon the same occasion.

In the sixe hundred and fifth yeere from the first foundation of that Citie, it was ordeyned, that out of Tullie in Bruto & pro Cluentio. the sixe Praetours for the time being, foure shoulde continually after bee cho­sen to bee Quaesitores of so many crimes allotted vnto their seuerall hearing and determining: and therevpon those En­quiries were called not onely Ordinariae, but also Quaestiones perpetuae; perpetuall and Ordinarie Enquiries of such crimes, as were so committed ouer by the people. Vnto which num­ber Sylla in his Dictatorshippe added three other kindes of crimes: and so there became (in all) seuen perpetuae & ordina­riae quaestiones; and so many Quaesitores of those seuen crimes one­ly. For the conisance of all other publike crimes, did remaine still in the people, as afore.

But when so euer it happened either afore or after the ap­pointing of such perpetuall and ordinarie Enquiries, that the people (as it seemed good vnto them for the time) did com­mit ouer vnto seuerall Magistrates, Vide totum ti­tulum ff. de ex­traord. crimin. & titulos plurimos sequentes. whether Dictatours, Cousuls, or Praetours, the conisance of any particular pub­lique offence; because this was not ordinarilie so done, but vpon that speciall occasion, and for that one Enquirie, and they no set officers for that purpose: therefore it was saide to be committed extra ordinem, and was therevpon called Quaestio vel cognitio extraordinaria.

After this maner extra ordinem was a commission Liui. lib. 19. of Enqui­rie graunted to Fabius Maximus the Dictatour, against such [Page 33] of the men of Capua, as were chiefe auctors of the conspiracie, and defection from the Romanes. The like to this here in England we vsually call a speciall Commission of Oier, and terminer, for some one matter. All other priuate and lesse crimes, the coni­sance whereof was not reserued to the people, l. 1. ff. de Offic. Praefect. vrbi. were Enquired of and punished Ordinarilie by him that was Praefectus vrbi: And therefore they were also called Ordinaria crimina, and the coni­sance which he vsed therein, Cognitio siue Quaestio ordinaria. And this appellation and distinction of Ordinarie and Extraor­dinarie Crimes and Conisance of them, remayned after the po­pular Common weale was surprised by Emperours; being by this occasion first begunne. So that Extraordinarie is not that (as some doe ignorantly imagine) which is contrary to good order; but any thing swaruing from the vsuall and more ordi­narie course, and may bee both allowable and expedient; notwithstanding it be so called. And in this acception those wordes in these two rules are to be vnderstoode and taken: viz. Ubi subest remedium Ordinarium, ibi cessat Extraordinarium: And, Ubi cessat Ordinarium, ibi Extraordinarium remedium est aduocandum.

If it shall here be asked, why both the course of Accusation (which in olde times was more vsuall) is now lesse frequented; and also why Enquirie, that was counted Extraordinarie, c. Super his. de accusat. is now become an Ordinarie remedie, and Bart. in l. infa­mem. ff. de public. iud. Bald. in l. 4. §. 1. ff. de con­dict. ob turpem causam. succeedes into the place of Accusation: for further satisfaction in this behalfe let such con­sider that which followeth.

First, let that be remembred, which hath bene spoken in the next Chapter afore, touching the Perill and Hatefulnesse of Ac­cusations. Next, Tho. 2. 2. q. 3. 3. art. 6. that things tending to an ende, ought to be directed in such sort, as that ende may best be atteined. And the ende whereunto any Lawe is referred, ought especially to be considered in all both interpretation and practise of Lawes. Whereas then in the times of those frequent Accusations, sun­dry vniust vexations, conspiracies, and calumniations, with other misdemeanours in that behalfe, were very rife and vsuall: Therefore those in auctoritie were forced (to auoyde innocent men from such dangers) besides the former penalties, to make Lawes frō time to time, wholly to repel and keepe backe sundry [Page 34] sorts of persons from Accusing: whereby this kinde of prosecu­tion grew dayly to more and more disuse. So that it was requi­site for restraint of Offenders, to expect at the Iudges handes for his Office sake, this necessarie duetie of prosecuting Crimes; a course more voyde from suspicion of such calumniation: where­by that ende which the Law shot at, viz. to haue Offenders found out and punished, was farre better, and with fewer inconueni­ences effected.

It was further considered by men of wisdome, how the great­nesse of the mutuall perill on both sides, did dayly driue both the Accuser and the Accused, vnto vntollerable extremities. For when the Accuser had once vndertaken the matter to his owne apparant danger, if he coulde not proue it: was it not as likely (as it was easie) that he would rather secretly suborne vn­true witnesses; then that by his enemies safetie, himselfe should be punished? A matter of fearefull inconuenience, considering that l. Absentem. ff. de poenis. it is better, an Offender in deede shoulde escape, then that any man which is innocent, should be punished.

On the contrary side, if the defendant finding himselfe in deede guiltie, should propose his chalenges or exceptions in law against the Accuser (which for his defence with Iustice might not be denied vnto him) can it be doubted, but that he might easily also suborne witnesses, for proofe of all his challenges; and so by auoyding the Plaintife from Accusing, auoyd also the peril he was in, how pregnant matter soeuer did otherwise lie a­gainst him? Whereby it might often happen, that some vpright Accusers, who euer for pure zeale of Iustice did prosecute, should be endamaged both in their substance and good name; sundry Offenders should escape deserued punishment; and so the whole scope of seuere Lawes prouided against Crimes, should be fru­strated and quite ouerthrowen. And therefore in great wisdome was this rigorous point of Iustice and hatefull course, thought good to be mitigated; and therefore by insensible degrees of cu­stome, turned to a more moderate and sase course, not onely for the Prosecuter, but also for the defendant. For mitiùs agitur Abbas in ca. inquis. de accu­sat. cum inquisito conuicto, quàm cum accusato. He that is cōuicted by way of Accusation (especially by the Canon law) is more grieuously punished, then he which is conuicted vpon Enquirie. Which yet [Page 35] is alwayes so tied, that being a prosecution of Office; the Iudge needs not lend his assistance, but where he seeth good and pro­bable inducement to ground it vpon.

All Enquirie is either Generall or Speciall. Bald. in l. ea quidem. C. de accusat. Generall Enquirie is a preparatoriecourse proceeding of meere Office, purposed to en­quire and finde out criminous persons, within some certaine ter­ritorie or compasse. This is of three sortes. The first is generall, in respect of the persons; but speciall in respect of the fault: as when the Coroner inquireth of a murder committed, and no cer­taine person knowen: or an Ordinarie of a forgerie in some cause Ecclesiasticall. And by this l. 1. C. de falsa moneta. l. 1. C. de rapt. Virgin. Enquirie generall, in certaine hainous crimes, euerie priuate person may enquire, to bring the Offenders in by lawe to be iustified. The second is generall in respect of the faultes, but speciall in regard of the persons: as when some Hospitall, College, or Cathedrall Church is visited. The third and last is generall, both in respect of the persons and faults, as a generall visitation of a whole Dioecesse; or an Enqui­rie made by the grand Iurie at an Assise or Sessions of the Peace for the whole Countie.

Summa Anto­nini. part. 3. t. 9. c. 7. Speciall Enquirie is, when some certaine and singular person and crime also, is enquired of, and brought by due course of iudgement vnto triall, to the intent to be punished. This Enqui­rie is done either when there is a kinde of prosecuter besides the Iudge, albeit the proceeding bee of Office: or when there is absolutelie no prosecuter besides the Iudge himselfe, against the partie conuented. There may besides the Iudge be prosecuters of the Office in two seuerall degrees. One that doeth prosecute throughout the whole suite: as when an Information for the Queene alone, or for the Queene and Informer, is put vp at the Common lawe, and is termed by the lawe Ecclesiasticall, Of­ficium promotum. The other, which doeth but prosecute or solli­cite in some part of the suite; as by furnishing the Court with proofes, &c. which is called Officium mixtum, in some temporall courtes, a Relater.

Likewise Abbas in e. cum dilectis. de Purg. canonica. Officium promotum is of two sortes. The first is, when a man voluntarilie offereth himselfe to prosecute, called Promotor voluntarius officij; and he differeth a litle from a Partie. The second is, when the Court assigneth one to sollicite the Of­fice, [Page 36] who is termed Necessarius promotor officij, because hee may not refuse this emploiment. But when no persecuter at all doeth stirre in the matter: then the Court onely doeth it in duetie to the Common wealth, and to see sinne and disorder punished. Then is this Enquirie termed Officium simplie, or Officium me­rum by the Canon lawe, and by the Ciuill lawes Officium Nobi­le, as of more woorth and dignitie, then the other course which is by a Partie, and at his petition and instance. For by a more base appellation (in comparison of the former) that lawe ter­meth this, Officium Mercenarium, ac si merccde aliquâ propo­sitâ alterius petitiont quasi deseruiret: that-is, when the Office of the Iudge is (as it were) hired and employed, but at another mans becke, to serue his turne. For albeit in temporall courtes of other realmes, long custome (which is Crauetta. Con­sil. 238. nu. 7. the Wel-spring of all their iurisdiction) hath Alph. lib. 3. c. 11. established the verie same course of proceeding in causes criminall, euen at the instance of a Partie, with that which may bee done when the Office of the Court a­lone proceedeth: neuerthelesse the lawe it selfe hath giuen greater priuiledges vnto proceeding of Meere Office, then vnto the other: which was some occasion also, why it was the ra­ther called Nobile Officium Iudicis. The first priuiledge is, that whereas by lawe nowe altered by Custome, an Accuser or Par­tie (properlie so called) is in danger of Poenatalionis, if he faile in his proofes, Propter praesumptam Calumniam: yet the pre­sumption and entendment Arg. c. in no­str. de procur. & in c. ad audi­entiam. de prae­scrip. of lawe runneth not so agaynst a Iudge exercising but the publike lawes by his Office, as it doeth against a Partie. And therefore is hee not subiect to that penal­tie as a prosecuteris. l. iniuriarū. §. 1. ff. de iniurijs. Non videtur facere iniuriam, qui iure pub­lico vtitur. The next priuiledge by lawe yeelded vnto, procee­ding of Office in a Criminall cause, which is denied to a prose­cuter, yea though he bee not an Accuser or Partie, properlie so called; is, that the Iudge proceeding Panor. in c. qualiter. el. 2. de accusat. of Office may giue an othe to the defendant, to answere some criminall matter. But it is otherwise, when the suite is at the instance of a partie which prosecuteth, because the defendant ought not to bee driuen to furnish vp his aduersaries intention. Thirdly, an Ordinarie or de­legate Advniuersitatem causarum, that proceedeth of Office, is not bound to make proofes of the Pan. ibid. & alij DD. fame (sauing before his [Page 37] superiour Iudge, if an appellation be brought and doe lie) be­cause it sufficeth, that the fame is apparant and knowen vnto himselfe. But it is otherwise in a delegate of one cause, or vpon the instance of one, that voluntarily prosecuteth. Fourthly, when the sute is at the instance of a partie, contrarie proofes for proofe of the defendants good fame, are admitted. But this need not be granted vpon proceeding of Office; because Arg. c. in nostr. de procur. &c. ad audientiam de praescrip. the law doth not entend and presume against the sinceritie of the Iudge, as against the partie prosecuting. Fiftly, vpon the instance of a voluntarie prosecutour or preferrer vnto the Office, Hostiens. in c. cum clamor. de testibus. fit litis con­testatio (as I may English it) an issue is ioyned betweene the two parties. But if either one be but a soliciter and assistant to the Office; or els a preferrer assigned by the Iudge; or that the pro­ceeding be of meere Office: there is then no contestation in the sute (properly so to be termed) but a kinde of contradiction (in sted thereof) required, betwixt the fame or denunciation &c. on the one side; and the defendants answere by deniall on the o­ther side. Lastly, when the proceeding is of Office, Arg. c. cum cla­mor. de testibus. (euen af­ter publication) moe witnesses may be receiued, because the feare of subornation in this case ceaseth, being the onely rea­son of that rule, viz. that after publication moe witnesses may not be receiued: Insomuch as depositions of witnesses are alwayes published vnto the Iudge: But new witnesses may not be recei­ued, when it is at the prosecution of a voluntarie partie, for feare of suborning them in the pointes, where he findes the former depositions came too short of his purpose. So that in these respects the rather, this proceeding of meere Office might be termed, Nobile Iudicis Offi­cium. Thus farre touching Office and Enquirie by vertue thereof.

CHAP. VI. Of Denunciation, a speciall meanes of stirring vp the Office: the manifolde vse thereof in the olde Common weale and Empire of Rome; and at this present on the other side the Sea: the generall acception of that word: foure kindes of Denunciation: how they differ one from another: what is required in them: and when a Denouncer is to be condemned or excused of expenses. And what course of dealing against crimes and offences is holden both in Courts of the Ecclesiasticall commission, and in ordinary Courts Ecclesiasticall in this Realme.

BVt because it is not possible for a Iudge of all o­ther men by himselfe alone to haue knowledge of most crimes committed, or probably enten­ded to be committed: therefore haue those lawes deuised sundrie meanes to bring and pre­ferre them vnto his knowledge and Office. A­mong which Denunciation is principall, and indeed so gene­rall; that (by sundry writers) it is made a third and seuerall kinde of proceeding against crimes, and by them counterdiuided a­gainst Accusation and Enquirie. In which respect, I thinke it not inconuenient for the present purpose, to haue the nature of it also something opened. Neuerthelesse it is in deed no diffe­rent course from Enquirie, Spec. tit. de de­ [...]unc, nu. 16. but a speciall meanes or instrument eliciendi potentiam in Actum: viz. of drawing the Iudges power and Office into action by Enquirie. Denunciation in a generall signification may be described thus; viz. A relating of some mans crime vnto a Iudge, to the end to haue the Offender reformed or punished; yet without that solemne inscription by the Denouncer, which the law requires in an Accusation.

But I holde it requisite first to note, what vse hereof and assi­stance vnto the Office of Enquiry, the olde Romanes had in their policie by Denunciators; as it is recorded to memorie in the Ci­uill lawes of that people. Which I do the rather in this place, as in the former discourse I haue done, to meet with the childish and sinister conceit of some; who suppose euery thing deuised and brought in by any Canon, how olde or necessarie soeuer it be; to be no better then Popish & Antichristian; and eo ipso (with­out [Page 39] further a doe or iudgement) to bee condemned. For (I hope) they will not iudge the lawes and policie of the Ro­manes to be Popish, Antichristian, or vnreasonable; being (for ciuill prudence) the wisest and mightiest people that euer was, and altogether Heathens, when those lawes were framed and practised.

Of those, whom we now commonly call Denunciators, the law Ciuill hath two sorts. One sort are those, who (being pri­uate men) doe willingly (for gaines sake) denounce others. Of these L. Res quae. § vlt. ft. ad S. C. Turpill. that law thus speaketh: As no man is at first compelled Nunciare, to denounce any crime against another: so cannot such a Delatour desist, when it pleaseth himselfe. So that these be both Nunciatores and Delatores. Of these Delatours (being a kinde of Parties) I haue spoken before.

The other are such, as by reason of some Office or publicke charge, layed vpon them, are to Denounce offenders vnto the Iudge, to be by him proceeded with, vnto punishment. These (in generall) by the Emperour Constantinus haue this title gi­uen vnto them; L. 1. C. de cu­stodia reorum. Publicae solicitudinis cura, the care and regard of publike watchfulnesse. His wordes to that purpose be these: In quacunque causa reo exhibito, siue accusator existat, siue eum publicae solicitudinis cura perduxerit; statim debet Quaestio fieri, vt noxius puniatur, innocens absoluatur. Where (we see) the two kindes of Criminall prosecution are touched, and the proceeding of Office, is there counterdiuided against Accusation.

And these hauing such charge, be also of two seuerall sortes. The first whereof, besides their Denunciation and relating of crimes vnto superiour Magistrates, had authoritie also to enter into some Enquirie and Examination. Of these, certeine were called Curatores Viarum, L. pen. ff. de via publica. Dion Cassius li. 54. who also had a kinde of iurisdiction for meaner faultes committed in the high wayes, and had two Lictores or Sergeants (for that purpose) attending them. They enquired of Office vpon offenders and disturbers of the pub­like peace in high wayes. Others were called Latrunculatores, who sought vp, and made generall Enquirie for offenders, and persons to be suspected; being not altogether vnlike vnto our Prouost Marshalles. I reade L. D. Adrianus. ff de custod. & exhib. reis. also of some called [...], that is, principall conseruatours of common peace and tranquillitie. [Page 40] These also, praeficiebantur disciplinae publicae & corrigendis mori­bus. L. vlt. ff. de mun. & honor. There were also men hauing charge and Office, not vn­like to these Conseruatours called Stationarij: whereof one sort called Milites Stationarij & limitibus Imperij praepositi, did L. 1. §. fin. ff. de offic. prae [...]. vrbi. pro­vide for the common peace, and also for the securitie of way­faring men in the high wayes, especially about the borders of their prouinces; hauing authoritie to enquire and examine any persons, who they were, of what condition and state of life, from whence, and whither they trauelled. And these made re­lation to the Magistrates of such suspected persons, as they found; and of the whole state of things abroad. Another sort L. 1. C. de cu­riosis & Statio­nar. li. 12. called also Stationarij simply (without addition) were onely to make Enquirie generall, and to denounce and present crimes; and after to furnish the Office with proofes of the crimes dete­cted by them. And these were of the second kinde of such pub­like denouncers, hauing none authoritie to make examination, but did onely generally enquire of faultes, and present them vp. Such were called also by this appellatiue name, Officium: L. 7. ea quidem. C. de Accusat. as in that law of Gordianus the Emperour, where it is sayd to the purpose in handling, thus; Ea, quae per Officium Praesidibus de­nunciantur, & citra solemnia Accusationum posse perpendi incogni­tum non est. Verùm si falsis nécne Notorijs insimulatus sit, perpenso iudicio, dispici debet. These were called also Officiales; and L. 1. C de pri­uat. carcer. the chiefe of them that had ouersight of the rest, were named Pri­mates Officiorum. And of them this law L. Qui sepul. chra. C. de sepul. viol. is to be vnderstood, viz. Siue quicunque alius Accusauerit, vel ad Officium nuncia­uerit.

Other parts of Christendome (where the Ciuill lawes haue place) euen to this day doe reteine some the like Offices and of­ficers for the selfe same purpose, though vnder other names. In some countreys men of those functions Bartol. in l. Di­uus. ff. de custo­dia reorum. An­gelus in l. Si Va­cantia. C. de bo­nis vacantib. being in townes, are called Decani; and in cities, Capita Centenariorum; who haue this ministeriall charge layed vpon them, to enquire of misdemeanours done within that quarter or warde, which is committed to their charge; and to denounce or present them vnto the Magistrates. And by the writers in that law, these be­ing dealers in temporall Courts, and matters, are resembled vn­to the like Officiales Iurati, that are there in Courts Ecclesiasti­call. [Page 41] The citie of London hath in euery Ward certeine yerely ap­pointed to a purpose not farre vnlike, who are called the Ward­mote enquest. And for Courts ecclesiasticall the like be here in e­uery parish yerely appointed, called Church-wardens, and Side­men, or Quest-men.

Vnder the generalitie of this word Denunciation, three seue­rall things be conteined. First, when denunciation is made to the Magistrate, by any hauing a particular interest; it is called Que­rela, a Supplication or Complaint. Such is that in S. Luke, Luk 18. V. 3. Re­uenge me of mine aduersarie, sayth the widowe vnto the wicked Iudge.

Secondly, when it is made by such, as haue no particular in­terest; it is called L. delator. ff. de iure fisci. Delatio. But when it is done per Aduocatos fisci, (such as the Atturney generall) or by other officers purpose­ly thereunto appointed, then is it properly called Denunciatio, viz. An Information or Presentment. And thus much touching Denunciation in Temporall courts onely.

Denunciation generally taken, as we gather out of both the lawes Ciuill and Canon, is of foure seuerall kindes. The first is called Euangelicall; the second Iudiciall; the third Canonicall; and the fourth Regular.

Euangelicall is that, which proceedeth by those degrees that our Sauiour Christ prescribeth Matt. 18. V. 15 in the Gospell. There be two ends hereof. Spec. tit. d. The principall end is, to procure repentance & amend­ment in him, which offendeth. The secondarie end Panor. c. no­uit. de iudic. where this cannot be effected; is to restreine others from the like, by his punishment spirituall, onely touching the soule; but not any temporall penaltie, either directly or indirectly. But albeit the purpose of this denunciation be the parties reformation; neuer­thelesse if the crime be such, as hindereth the execution of his ecclesiasticall function; the Iudge of Office, is also to depose him, from his Alph. li. 2. ca. 9. conclus. vlt. pract. Can. Criminalis. Orders.

Concerning Denunciation Euangelicall, question is mooued by the Schoolemen (who in my poore opinion doe handle it for many points, both learnedly and iudiciously) whether in this de­nunciation those degrees of monition first priuately to the partie offending, and afterward before two or three witnesses, bee necessarie, and at all times to be obserued in all crimes and [Page 42] offences indifferently, before the offender may be denounced of them, vnto the Ecclesiasticall Magistrate?

For resolution whereof; wee are to distinguish betweene hidden or secret, and publike or open crimes or offences. If they be wholly hidden and secret; then indistinctly those degrees Ricar. in 4. Sent. dist. 19. of monition there prescribed, are first to be obserued, before it may be denounced to the Iudge; whether the offender by pro­mising amendment and shewe of griefe, doe giue any hope of his repentance and reformation; or doe giue none at all: sa­uing where the crime is of such qualitie, as that Thom. 2. 2. q. 33. art 2. & Ri­car. vbi supra. it tendeth to some great and important dammage bodily or ghostly of the whole bodie of Church or Common weale, or of many parti­cular persons: as, if it be Heresie, Conspiracie, or such like. For insomuch as such one sinneth herein, not only against thee (as the text speaketh) but against others also, albeit they knowe not thereof: therefore thou oughtest forthwith Euangelically to de­nounce and present such an offence vnto the magistrate; to the entent the publike danger may be speedily preuented: conside­ring that Gabr. Biel. the benefite of many is to be preferred before any particular persons fame: and the detriment (whether spirituall or corporall) of the whole Church or Common wealth, is ra­ther to be regarded and auoided, then an euill fame against one offender, which (heereby) may perhappes be raised and bruited abroad.

Concerning crimes or offences, we are to vnderstand, that they may be sayd to be Petrus de Pa­lude. in. 4. Sent. 19. q. 4. publike or open two maner of wayes: either when they are committed openly; or when being secret, yet they be published abroad, and the offender is famed & brui­ted, to haue committed them. Now if by either of these wayes, an offence be made open and publike; then it is to be denounced vnto him that hath authoritie to correct it; yea though neither of the sayd monitions haue bene precedent. For Thom. 2. 2. q. 33. art. 2. we are to pro­uide, not onely that he which hath offended, may be made bet­ter and brought to repentance: but also that others to whose knowledge it is come, be not thereby scandalized & offended; according to that rule of S. Paul: 1. Tim. 5. Rebuke a sinner openly before all men, that the rest may haue feare: Ricar. vbi su­pra. And (as a schooleman sayth) that they which haue taken offence by the fault, may be edified [Page 43] by the punishment. But he goeth in this point further; That if it be but in the way to be published & made knowen abroad, though not as yet bruited; neuerthelesse it is to bee denounced to y e Iudge, that the scandale which might arise thereof, may be (aforehand) preuented. So that if the chiefe end of this Denunciation cannot: yet the secondarie end may hereby be attained.

Neither let any man in regard of this Denunciation feare to be accounted malicious (saieth August. ad Ma­cedonium. S. Augustine:) for you are rather blame woorthie, if by holding your peace, ye shall suffer your brother to pe­rish; whom you might haue saued by denouncing of his fault vnto them in authoritie. And againe, August. ibid. Siue plectendo, siue ignoscendo, hoc benè agitur, vt vita hominum corrigatur. It is very good to bring mē to reforme their liues, whether it be done by punishing them, or by for bearing them.

All Denunciations Euangelicall 10. And. & alij DD. in c. Nouit. de iudicijs. (so they be duelie brought afore him) the ecclesiasticall Iudge is to admit, because they be referred onely to the parties reformation, or restraint of him and of others by spirituall correction. But his proceeding in them, is (for the most part) summarilie and not Iudiciallie: and as a spiri­tuall Father, rather then a Iudge.

The next kinde, termed Denunciation Iudiciall, in respect of the Denouncers and matters denounced, is either publike or priuate. l. Dious. ff. de Cust. & exh. reis. l. ea quidē. C. de accusationib. l. 1. §. sanè ff. de off. Praef. vrbi. c. epis­copus in Synodo. 35. q. 6. Publike, is that relation or solemne presentment of some crime, which is made vnto a competent Iudge, whether Ciuill or Ec­clesiasticall, by publike Officers thereunto appointed: whereup­on the Iudge of his pure and meere Office proceedeth by due Iu­diciall course of special enquirie, to the acquital & clearing of the partie denounced, if he be found innocent; or to the punishing of him by some penaltie bodilie and temporall, which is the peculi­ar end of this Iudiciall denunciation, vnto which also no Monition is required to proceed.

But Iudiciall and priuate denunciation is that, which may bee preferred by a priuate person in respect of a particular interest that hee hath, as being either hurt, or particularlie grieued by some fault or offence committed by another. The ende here of is, not onely the punishment of the offender; but that the denoun­cer grieued, may be restored or preserued harmelesse.

For explanation of the latter of these by examples: first in a [Page 44] Ciuil or temporal court; vel alieni. l. 1. §. Quid autem. ff. de off. praef. vrb. as when he that is oppressed, is a bond­man, §. pen. Inst. de his qui sunt sui or is subiect to another mans power (as an apprentice is:) so that hee hath none ordinarie action against his superiour that doeth wrong him, but by this Iudiciall denunciation; is forced to flie vnto the Iudges office for remedie. In a court ecclesiasticall: Innoc. in c. In­sinuante. Qui cler. vel vov. as when a religious person, who hath no direct action agaynst his Prelate, denounceth some grieuances done vnto him, by his Ab­bot or other superiour: or when as the poore of an Hospitall doe denounce and relate vnto their visitour some offences or grieuan­ces done to them by the master thereof, requiring punishment and remedie therein by his office, in due course of lawe. And these two Iudiciall kindes of Denunciation are most frequent in this Realme, both in Ordinarie courtes, and also in courtes of Com­mission, for causes and misdemeanors ecclesiasticall. But the first of them more vsuall in Ordinarie courts: & the second in courts of Commission.

The third kind of Denunciation is Canonicall, (so called, be­cause it had his originall from that lawe;) and it hath also vnder it two kindes. The one more speciall, to bee preferred and made by him onely, who hath interest of hauing either his Prelate or Pastour good, or els some ecclesiasticall person good, who is vn­der his iurisdiction. And c. 1. de offi. Custod. c. licet Heli. de simon. the end of this Denunciation is, to haue such (being criminous) to be remooued from their administrati­on ecclesiasticall. The other Canonicall denunciation is more ge­nerall, in that it may be preferred by any whomsoeuer; and con­cerneth either the hinderance c. praeterea. de Sponsalib. c. cum inhibitio. de cland. despons. or dissoluing of some mariage contracted or to be contracted, within the degrees forbidden: or els the desisting from some sinne, which is of that qualitie, that it increaseth by multiplicatiō of Acts in the same kind, or by con­tinuance of some one Act, and wherein the Denouncer hath none other particular interest, then as euery Christian hath besides.

The last kind called Regular, is that Denunciation Specul. tit. de Denunt. §. 2. vers. vt. autem. which is published by any person in Chapter, touching some offence of his brother, committed contrarie to the locall and positiue rules or statutes of that place; to the intent he may amend it hereupon, rather then that it should come to a more publike denunciation; and from this, there lieth none Appellation.

The two first kinds of Denunciation, viz. Euangelicall and Iu­diciall, [Page 45] doe differ the one from the other, in sundry points, but e­speciallie in these following. First, Pan. in c. noult. de Iudiciis. addie. Vlt. euery one (though he be in­famous for some crime formerlie committed, so he perseuere not in that crime still) is admitted to denounce another Euangelically: because it is indefinitelie commaunded by Christ, as a necessarie office of Christian duetie, for reclaiming of our brother from of­fending. But none are to bee admitted to the publike Iudiciall denunciation; besides those which be specially thereunto appoin­ted: sauing that the Canons c. Causam. Qui filii sint legitimi. c. Quapropter. 2. q. 7. c. Quisquis. 1. q. 1. c. primo. 5. q. 5. do compell all Clerkes to denounce the crimes of other persons ecclesiasticall: and to the priuate iudi­ciall, none but such as haue some peculiar interest. And in this case it forceth not, though such do euen then perseuere in a crime; be­cause vnder pretence of crime, no mā is to be repelled from pro­secution of his right.

Secondly, Euangelicall denunciation is referred to the amend­ment of the offender; whereas vpon the publike Iudiciall, his pu­nishment is propounded for an end thereof: and the priuate is re­ferred both to such punishment, and that the thing be restored, and the denouncer also preserued harmelesse.

Thirdly, vpon Euangelicall denunciation there is no procee­ding in foro contentioso, or iudiciallie, but onely in Poemtentiali: whereas vpon Iudiciall denunciation, there ensueth a due course of Iudiciall proceeding; and thereof it hath his name.

Fourthlie and lastly, in priuate iudiciall denunciation or witnes­ses (other then such as be lawfull and without iust exception) are admitted; because it lieth for restitution of some thing: But in Euangelicall, for proofe of the first priuate monitiō the denoun­cer alone must (of necessitie) be admitted for the witnesse, if the denounced doe denie the fault: and for proofe of the second mo­nition, any one other (together with the [...]. Mat. 18. V. 16. denouncer) may bee admitted for two witnesses, though both of them happen to bee infamous for some crime in times past by them commit­ted; so that at such time of denouncing, they perseuere not in the crime.

But albeit the lawe be thus, for admitting of some and reie­cting of others from denouncing: yet throughout all Italie, and in other places of Christendom besides; Alphons. Villa. li. 2. de denunc. Cano. concl. 8. Custome in both courts hath thus farre preuailed, as to suffer any mā almost to denounce, whe­ther [Page 46] hee doe it of his owne voluntarie minde, or by occasion of a Charge and duetie in that behalfe laied vpon him. The reason hereofis; for that the Common wealth hath interest to haue offences punished: which could not so readilie bee done, if by this way of denouncing they were not at all brought vnto the Magistrates notice. A matter otherwise likely to happen by rea­son of so many difficulties that accompanie Accusation, and so many exceptions, which may (by lawe) be taken both agaynst Accusers and Denouncers.

Those who haue Salycetus in l. ea quidem. C. de accus. Clarus. li. 5. §. fin. q. 7. a publike charge of Denouncing and Pre­senting, whether they serue in Temporall or in Ecclesiasticall courtes, ought (vpon paines otherwise to be inflicted vpon them) to present such offences as come to their knowledge; yea though otherwise they be not opened or published commonly abroad.

Likewise in courtes Temporall Clarus vbi su­pra. vers. Sed quaero. this kind of publike denuncia­tours ought to present some matters, which the lawes (perhaps) doe not punish at all: as namelie, if any kill an Outlawe or Ban­nito, in places where such lawe is still in force. Also such Officers must present all casuall violent deaths: because albeit perhaps nothing doe presently appeare, but that such death did casuallie happen: yet in processe of time, it may fall out to be discouered, that it was by some malefactour.

Lastly, when such as haue charge to enquire generally, and to present, either doe not know certainlie whether an offence be committed or not, (a thing which may happen in such crimes whereof no traces or footesteps after the fact done can remaine; as in Adulterie, diffamation, and such like:) or where a fact doeth appeare, but the Author thereof is not knowen (as may bee in murder, sacrilege, forgerie, &c.) in both these cases, if the commō voyce and fame doe runne against any person in particular, they are bound to present euen such fame of the offender, as wel as the crimes themselues; together with all the circumstances they can learne thereof, & who be more perfectly instructed touching it, that perhaps can giue particular and more full euidence.

He that is a denouncer by vertue of his Office, is alwayes in his presentments to obserue, that he bee not found to haue preferred matter agaynst anie, by manifest calumniation or wilfull conspi­racie. For Alph vbi supra. if this appeare euidentlie to the Iudge, euen such a [Page 47] publique denounceour is not only to pay charges vnto him, whom he hath maliciously vexed; but is otherwise also vpō the Iudges Office to be punished, for a Calumniatour. But for Calumniation l. 2. C. qui aceu­sare non possunt. onely presumed (which is then entended and presumed, when the defendant is cleared, onely because nothing can be prooued against him:) then he that is a Denounceour by reason of his charge layd vpon him, shall not be preiudiced. Neuerthelesse he that is a voluntarie Denounceour or preferrer, Gloss. final. in c. dilecti. de dolo & contumacia. vide Angel. de malef. & Marian. c. Qualiter. cl. 2. de accusat. if he doe but faile in his proofes, shall be thereupon condemned in expenses, and be otherwise also punished; albeit not so deepely as an Accuser, yet extraordinarily by the Iudges Office; because at his instigati­on and solliciting, the Office doeth almost no lesse, then an Ac­cuser doth. The reason hereof is, because in that he proueth not his Complaint; the Lawe presumeth euen hereupon, that he did but moue it by Calumniation, for vniust vexation. Which thing doth often keepe euen many good men backe from all Denun­ciation of crimes, whereunto they are not specially bound; as S. Augustine August. Hom. 50. de poeniten­tia. testifieth in these words: Good men (for the most part) doe beare with other mens faults, and holde their peace; because they want sufficient euidence in lawe, to approue that to the Iudges, which themselues knowe.

Yet there be certaine cases, whereby euen a priuate Denounce­our and Informer shalbe excused frō any Calumniation presumed only: viz. when he makes not proofe of that which he obiecteth. The first is, when he did preferre it by a kinde of Necessitie: l. cum fratrem. C. de his quib. vt indignis. as when the heire prosecuteth the death of him, to whō he is heire. Secondly, when it proceeded l. Quamuis, C. de adult. vpon an extreme griefe; as when the husband accuseth his wife of adulterie, and yet perhaps fai­leth in proofe. Thirdly, when the Crime l. 1. C. de falsâ Monetâ. is very enormious; as for Coyning, Treason, &c. Fourthly, l. Miles. §. mu­lier. ff. de adulter. when a great euil fame did runne thereupon. Fiftly, c. de Sent. excom. when the Denounceour prooueth, that he heard the infamie spoken of, by men worthy to be credited. Sixtly, Gl. in c. Pau­lum. 2. q. 3. when his witnesses pretending to him they could proue the Crime, doe deceiue him. Lastly, 10. And. in c. cum dilect. de Elect. when he maketh halfe a good proofe, as by one witnes without exception; which the Ci­uilians terme Semiplenam probationem. For in all these Cases, the praesumed and entended Calumniation (grounded vpon this point onely, for that the Denounceour failed in proofe) doeth iustly [Page 48] cease. But otherwise, the aforesaide generall rule of condemna­tion in expenses, &c. is to be obserued. Thus much then of De­nunciation, the most vsuall and generall inducement of a Iudges descending to Enquirie speciall against a particular person, for some supposed Crime.

Nowe it followeth to shewe (so neere as I can) what course of dealing against Crimes and offences is holden both in the Court of Ecclesiasticall commission (which of the two is more egerly impugned) and also in ordinarie Courts Ecclesiasticall, at least so farre as by Lawe is warrantable, if an appellation be brought.

The matters handled in the Commission Ecclesiasticall, are such Crimes Ecclesiasticall as are spoken of in the first treatise: be­ing aggrauated (aboue the ordinarie course of them) by some circumstance of moment. Also these besides, attaching, and conuenting of Iesuites, Seminarie Priestes and recusants of both sorts, execution and punishment of the breache of certaine Statutes, as touching her Maiesties lawfull superioritie Ecclesiasticall, yeel­ded vnto her Highnesse by 7. & 5. Eliz. 1. Eliz. cap. 2. 13. El. cap. 12. Parliament: the Statute for vniformi­tie of Common prayer, and the Statute to reforme certaine disorders in the Ministers of the Church: punishing of Libellers, slaunde­rous reports, and disordered preaching against Persons and matters Ecclesiasticall by lawe established: misdemeanours about Mar­riages: conuenticles, tending to schisme: Abuse and contempt to Ministers: excessiue vsuries, simonies, incests, adulteries and other foule incontinencies, subornations of periuries in matters Eccle­siasticall, and such like: when (either by reason of the power of the delinquents, or through some materiall circumstance) they be not so readily and easily reformable, by ordinarie iuris­diction.

These matters are brought thither, when Ordinaries be noted of negligence in giuing redresse: or when they desire aide, either for the greatnesse of the partie, whom poore men dare not pre­sent or denounce, or for the delinquents often remoouing from one Dioecesse to another, or for the dwelling of the witnesses else where, or for the offenders frequent, friuolous, and chargeable appeales, or for such like considerable occasion: or vpon credible information made by some great personage, or of some that be [Page 49] in that Commission, or being referred from her Maiestie, or from the Lords of the Counsell: or vpon complaint of some partie iustly grieued, otherwise being without remedie: or by complaint of a whole Parish, or of a great part thereof: or vpon frequent relation of sundry credible persons taking offence and griefe thereat (and setting downe particular euidence of the facte) or in aide and as­sistance of ordinarie Iurisdiction: as when the delinquent hath no certaine place of abode: or lastly by some notorietie of the fact, as by the parties knowen hand-writing: or for a matter done in great assembly of people, and such like.

Hereupon Articles be framed, wherein are conteined the place, time, and oftentimes the persons able to testifie & informe further, and all such other circumstances and Indicia, (which I in­terprete as the worde is commonly vsed Euidences,) tending to the plainer manifestation of the Crime. The Articles are perused and allowed to be incident to the conisance of that Court, and conteining sufficient detection to open a way to proceede (by way of further enquirie ex officio, into that crime) by one of those three Commissioners at the least, (whereof one is of the Quorum) that doe subscribe the Processe, for conuenting of the partie.

This Processe is either by way of Citation (commonly there called letters missiue) or by way of attachment, when the partie is fugitiue, or flitting, or the Crimes be grieuous and publikely offen­siue, so that it may probably be feared, he will lurke or steppe out of the way for a time. But in both courses, some one is bound to the Queenes Maiestie to prosecute, & to furnish the Court with witnesses for proofe of the matter, not to compound it priuately, and to pay charges vnto the partie, if it shal appeare he hath bene (without iust cause) troubled. Yet where the Commissioners themselues are sufficiently enformed Indicijs, viz. with euident matter against the partie, and where no such prosecutor or relator doeth offer to follow it, (so that the Court it selfe takes chiefe care of the prosecution) in some like fewe cases, such bonde is omitted.

Nowe when as the partie appeareth (for such iust conside­rations as hereafter are debated and prooued lawfull) he is re­quired on her Maiesties behalfe, to take oathe to answere the Articles or Interrogatories truely, (being matters of his owne [Page 50] facte and knowledge, so farre foorth as by lawe he is bound) be­fore euery particular thereof be made knowen vnto him; least after perusall (afore his oath taken) he be drawen by counsell to answere cautelously, indirectly, or wholly to refuse to make an­swere: perhaps, because he sees they touch him ouer neerely, as coniecturing by whom they may be prooued. But after the oath is taken (in setting downe his answere) he may consider as aduisedly, and deliberate for so long time, as in any reason may be desired.

And thus farre foorth the partie conuented, is (for the most part without any partie at all) proceeded with, but ex officio Iudicum nobili vel mero: to the intent, he may not bee priuile­ged to say, that he is not bounde to answere; being at the suite of the Office, and duetie of the Iudge (for the publique in­terest of the Church and Common-weale) as perhaps by Lawe he might, if it were at first preferred and prosecuted by a partie. But after he hath perfitely answered them (for the most part) a partie is then made; who (if sufficient matter be not confessed thereupon to proceede vnto a iudgement, vpon the Articles and answere) doeth take vpon him to prooue it by witnesses; and then Interrogatories, exceptions against witnesses, and other defenses, (for the conuented partie) are vsed almost wholly, as in Ordinarie Courtes. By which making of a partie, that which was merum officium afore, doeth afterward become officium mix­tum, viz. ex mero & promoto.

When the matter comes to finall iudgement, if the par­tie bee conuicted, hee is punished either by penance, (for his reformation, and for satisfaction of the Church offended) or by imprisonment, fine, or censures of the Church, or by so ma­ny of them, as is thought fittest, or by him or others most fea­red, or to be most conuenient, weighing alwayes the qualitie of the person, and the offence, together with other circumstances thereof.

In ordinarie Iurisdiction, Crimes be vsually proceeded against either ex officio promoto, that is, at the instance and petition of some, that will voluntarily stirre vp and sollicite the Iudge vn­to his duetie: or else ex officio Iudicis mero. In the first of these, albeit the partie conuented is bound to answere matters [Page 51] by oathe (if it bee required) so they bee not of the Crime ob­iected: yet the rule is, that he is not bounde to answere (vpon oathe) touching the very Crime it selfe, notwithstanding a fame doe runne hereupon, vntill he shalbe enioyned his pur­gation.

But when an Ordinarie proceedeth against a crime, without a partie promouent, viz. ex officio mero: then his proceeding must be grounded either vpon a presentment of a fame, or of the crime (made by such as be specially deputed thereunto, as Church­wardens, &c.) or proued by other witnesses, or else vpon notorie­tie of the facte, speeches and information (of credible persons touching such fame or scandale thereupon risen) brought often vnto his eares (which is called clamosa insinuatio) or by some o­ther course allowed by lawe to be sufficient, to open a way vnto such proceeding.

If it be vpon a perfite presentment of the crime or fame there­of, the Iudge may safely without doubt of nullitie or grieuance in that behalfe proceede ex officio: and so may vrge the partie presented to answere vpon his oath, touching the very crime it selfe. But if there be no such presentment, but clamosa insinuatio de­lata ad aures suas, or some equiualent matter, whereby the partie becomes offensiue and scandalous (though no man will prose­cute or present him) yet the Iudge may and ought ex officio of very duetie, to proceede vn [...]o the examination of neighbours there abouts, touching such fame or crime: which fame if it shall be by such enquirie found and prooued, then he may proceede as afore. But if vpon such denunciation and notification had from credible persons, and the crime being not declared to be notorius, nor none infamie or scandall prooued or presented, nor any other sufficient meane to open way to such Enquirie, he shal neuerthe­lesse proceede, and vrge the partie to answere of the very crime vpon his oath: this (of it selfe) shall make none errour or nullitie in the proceeding, albeit not warranted by lawe. For if the par­tie conuented shall make none opposition (as by saying that he is not presented, nor yet defamed of it &c. but be contented to an­swere) then the processe shall stand sound by reason of his sub­mission vnto the proceedings. But if the partie (taking cause of grieuance) shall appeale from such proceeding, then the Ordi­narie [Page 52] must be able before the Iudge of the appeale (out of the Actes) to iustifie either the fame, by some presentment thereof made, or by witnesses, or the notorietie of the fact, or else scandall found by way of enquirie, or by some denunciation, sufficient Indi­cia and euidences (found afore) as the law doth allowe, to open a way vnto him, to proceede by enquirie ex officio. For (otherwise) the Iudge Aquo (being made partie in the second instance) shall be adiudged by his superiour Iudge to haue done him a grie­uance, to haue his proceedings therein reuersed, and to pay charges to the partie appellant.

These be the courses of proceeding (in this behalfe) of both the said ecclesiasticall Courtes within this Realme: which in the Treatise following (for those aforesaid principall points chalen­ged) remaine nowe to be particularly iustified: and shall hereaf­ter (if neede require) be shewed to hold for lawe and equitie a more strict and exact course in many points, then not onely Courtes Ecclesiasticall, but euen Ciuill, (or as we heere speake) Temporall Courtes (on the other side the Sea,) vsually doe ob­serue: or then (by the Canon, or Ciuill lawes in some respects) were needefull, if it were so thought expedient.

CHAP. VII. The Ciuill and Canon lawes allowe sundry meanes to grounde a speciall Enquirie of Office against a crime, besides Accusa­tion and Presentment: an answere to a supposed Rule: how from Generall, they descend to speciall Enquirie: That besides these two, either a fame, or clamosa insinuatio; or priuate Iudiciall Denunciation; or Canonical Denunciation; or Indicia; or ta­king with the maner, or other Notorietie of the fact; or Ap­peachment by some of the Cōplices; or collusion of the Ac­cuser; or the not obiecting in due time, that euery of these do wāt: or when the Enquirie tendeth but to a spiritual punishment; may seuerally any of them serue, to warrant such Enquirie: with some obseruations touching the nature of most of these.

THe publike Iudiciall denunciation which is made and preferred vp by speciall Officers assigned for that purpose, in vsuall speache we terme presentment: and is that presentment, which must needes be meant by the autors of the first opinion that is to be [Page 53] handled in this second part, which is this, viz. that an ecclesiasticall Court may not proceede against any crime, without an Accusation or presentment. And it falleth in now very aptly to be treated of in this place.

But if it should be said, that vnder the worde presentment, any denunciation whatsoeuer were vnderstood by the authors of that opinion: besides that it is neuer so generally taken, the practice of ecclesiastical iurisdiction also, would not then (hereby) be restrai­ned (which that opinion especially shooteth at) but rather much more enlarged, then they would be willing vnto. And yet though it were so generally to be vnderstood; neuerthelesse this opinion could not be truely defended, as shall here be made manifest God willing.

It is shewed before, that Accusation and Presentment be cour­ses of proceeding most properly and peculiarly incident to Courtes, guided either by the Ciuill, or by ecclesiasticall lawes. So that we finde the authors of this opinion herein to deale some­what more liberally, then certaine doe in other points: in that these doe hereby allow vnto an ecclesiasticall Court, some course of proceeding, according to the lawe ecclesiasticall.

I mind first to impugne this opinion, by shewing out of those two lawes, that a Iudge may haue Conisance against crimes, not onely vpon the prosecution of some partie, which is none Accu­ser; but also of Office by way of speciall enquirie; though no such solemne presentment be preferred vp, by Officers purposely there­unto appointed: and therefore, that sundry proceedings are war­ranted against crimes, without Accusation, or presentment.

It hath bin shewed afore, that l. libellorum. ff de accus. l. 5. C. de his qui accu­sare non possunt. vnto euery Accusatiō an Inscriptiō of the Accuser to endure poenam talionis, in case he proue not his intention, is necessarily required. But the proceeding to the coni­sance of a crime by way of Exceptiō repulsiue only, or both Repul­siue & Recriminatiue against the Accuser; is done by a partie, that is not to vse such Inscription: And therfore some proceeding may be against crimes by a partie, that is none Accuser. The like is truely to be said of both the sortes of Iudiciall Querelae or com­plaints, mentioned also in the sixth Chapter of this second part.

Furthermore, at the Ciuill lawe, both Delatours of conceale­ments or intrusions, and Delatours also vpon pecuniarie penall [Page 54] lawes, doe omit such Inscription: and therefore are none Accu­sers. For if we will affirme the proceeding vpon their prosecuti­on, to be at the instance of a partie; then doth it follow hereupon, that some may be a partie in preferring offences & faultes, which is none Accuser. But if we will call it proceeding of Office, yet is it still without any presentment by officers specially thereunto appointed. And therefore it followeth, that the lawe Ciuill ad­mitteth some prosecution of offences, without either Accusati­on or Presentment. The same may be affirmed of Prosecutours or parties at the law ecclesiasticall, prosecuting either exofficio pro­moto vel mixto. For there is neither Inscription to make them Ac­cusers, nor presentment by officers thereunto assigned.

Perhaps here (by praeoccupation) that Rule wilbe obiected by some, whereby is said, that No man is to be condemned without an Accusour. Which doth encounter both that which is to be spo­ken by me against this opinion; and also for, and in behalfe, of all this proceeding of Office: and also doth ouerthrowe the opinion it selfe, that we haue nowe in handling. For presentment, which is one of the courses allowed by this opinion, hath none vse in an Accusation, but onely openeth a way to the Iudges Office for spe­ciall enquirie against him that is presented. So that if by such Rule no prosecution might be against crimes, otherwise then by Ac­cusation: then all presentments, which be preparatories to pro­ceeding of Office, must wholy cease.

For clearing of which doubt, I answere: that if this were a Rule (as is pretended) yet (like as all other Rules) it hath many limi­tations, or excepted Cases. But Duaren. disput. anniuer. li. 1. c. 38. a great learned Ciuilian of late times teacheth vs, that no such Rule can be gathered out of any lawe, and therefore was (through mistaking) framed but by the common sort of Interpretours onely. The wordes of law, whence it is pretended to be gathered, be these: l. Rescrip. § si quis. ff. de mu­nerib. & honor. If a man haue none Ac­cuser, let him not bee debarred from Offices of credite and honour. Nowe it is not hereby forbidden to condemne 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 shalbe 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 [Page 55] (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, 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 Nou [...]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 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 thē 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. L. 4. §. 1. ff. ad L. Iul. Peculatus. Mandatis cauetur de sacrilegijs; vt praesides sacrilegos, latrones, plagiarios conquirant; & (prout quis (que) 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 c. qualiter el. 2. deaccusat. as Inscription goeth before Accusation; so doth Presentment before Enquirie.

[Page 56] Now, vpon detection made vnto them, either vpon generall enquirie, or otherwise (as it is testified by learned 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 re­examined 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, 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; Panor. in c. In­quisitionis. de ac­cusat. then an Ordina­rie Iudge may hereupon proceed to speciall enquirie against the [Page 57] 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 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: 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 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:

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 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 cause.

Fames be of two seuerall degrees. The one rising c. Sanctum. dist. 4. de con secrat. vpon sus­picion onely, and from an vncerteine authour: and this is not of force to make such proofe, that by reason thereof c. Cum in iu­uentute de purg. Can. l. Decurio­nes. C. de poenis. the fault should be straight way beleeued, albeit such fame be coadiuuant, vnto other proofes. And it worketh a presumption onely, against the partie, c. Tua nos. de cohab. cler. & mulier. seruing to put him vnto his purgation.

The second degree in Fame, is when it sprung vp and had his originall from a certeine and likely presumption, and from probable matter. In which case it may of it selfe make proofe, either in a fact done long agone; (as to prooue by Fame, that a man is dead) or of a fact that D D. in l. Si­quidem. C. de adulter. cannot easily (by direct proofs) be conuinced, but presumptiuely; as the very fact of adulterie. For a fame with probable presumption growing vpon some knowen acte comming neere vnto such a crime, doth make proofe of the very fact; so that the ende of the prosecution be not of verie L. vbi adhuc. C. de iure dot. great preiudice: as for example; It may serue for proofe of adulterie, to the effect of debarring a womans [Page 58] cohabitation or maintenance from her husband; but not D D. in c. Ve­niens de testio. that she may be punished by death, where that penaltie is the Ordi­narie punishment of that crime.

A fame may then be sayde to be blowen abroad, not onely c. inquisitionis. in fin de Accus. when the greater part of the whole neighbour-hood or towne doe speake thereof, as occasion is offered: but also (in case the fact be of that nature, that Panor. in c. cū oporteat. de Ac­cus. it is restrained but vnto certeine per­sons, which by likelyhood may know of it) then is it a sufficient fame, though none besides the greater part of such certeine per­sons, doe speake thereof. If it be bruited among some few one­ly, and not by the greater part of such; then is it c. super co. de co qui cognouit consang. vxor. properly to be termed a Rumor and no Fame.

Now whensoeuer a fame touching some offence, runneth a­gainst any person: the Iudge may thereupon ground his Enqui­rie. For it is the common opinion of writers Card. A'exan. in c. de Accus. col. 14. in those lawes, that Fame doth succeed in place of an Accusation. One reason hereof is, because the very people among whom fame flieth, do seeme (in some sort) thereby to preferre matter vp, against a person so infamed: which ought to be as sufficient to excite the Iudge (knowing of it) to doe his Office, as if one certeine person or moe did present it vnto him. For by fame alone Alph. Villag. li. 3. c. 6 conc. 3. an offence is sayd to be made knowen vnto a Iudge, though not thereby to conuince the partie; yet to the entent of Enquirie, and of descen­ding to a triall by that occasion. And (as was afore alleged) Petr. de Palud. in 4. Sent. 19. q 4. a man vpon fame alone, may be said publikly detected of a crime.

Some Diuines (for the times they liued in) most excellently learned, could say Thom. 2. 2. that a publike fame concerning any crime doth stand in stead of an accusation; and thereunto doe applie that of Genesis, where the bloud of Abell is sayd to crie out against Ca­in, when he had secretly murthered him. What hast thou done? sayd God to Cain. Gen. 4. V. 10. The voice of thy brothers bloud cryeth vnto me from the earth: as if that crie of the bloud did occasion the Lord to enter vnto the examination of the impeached person. There­fore doth God (though he knew all things) say vnto Cain; What hast thou done?

If Fame be very brimme and rife, Panor. c. Ter­tio loco. de pro­bat. &c. Tua nos. de appellat. then is it none in iustice for a Iudge (though he be but an Ordinarie, from whom an Ap­pellation doth lie) to omit to make any proofe Iudicially in actes [Page 59] of such fame, before hee proceed. Albeit if an Appellation bee brought, he must then be able to prooue, that there was in trueth such a fame before he proceeded. But if the fame be not so strong and vehement; then it is expedient for such a Iudge to haue the fame (being not presented) to be in Actes, first Iudiciallie proo­ued, by deposition of two witnesses at least. For Clarus vbi su­pra. q. 6. so many will suffice to prooue a fame (though they be none Officers thereun­to assigned:) But two alone (where a greater number is) cannot make a fame.

But when the prince or such magistrates (from whom none Appellation lieth) doe proceed vpon a fame not presented; whe­ther it be verie brimme and vehement, or otherwise: yet in them it is not requisite to be prooued in Acts Panor. in c. cum oporteat, de accusationib. that there was such fame precedent; because it is sufficient to bee so, vpon information made knowen vnto them extraiudiciallie. For the law presumeth more stronglie for their integrities, and freedome from Calumni­ation, Conspiracie, and wilfull vniust vexation; then of euerie in­feriour ordinarie Iudges.

That Rule which is set downe by Interpreters, that A fame ought to appeare or be prooued, before a Iudge doe proceed, when as there is no Presentment; is subiect to diuers exceptions in lawe. For first, it hath Felyn. in c. Qualiter. el. 2. de accusat. Clar. q. 6. no place in the crime of heresie, wherein (by the common opinion of writers) a vehement suspicion (grounded vpon any credible relation) doeth suffice to begin a speciall enqui­rie. Secondly, that Rule faileth Bald. in l. Nul­lus. nu. 1. C. ad l. Iul. Maiest. Innoc. in c. cū oporteat. nu. 5. de accusat. when special enquiries be framed either by commandement, or by knowledge of the prince him­selfe; so such commission be obtained motuproprio, & for the prin­ces own seruice; but not at the instance of any partie particular­lie interessed therein: and such is the Commission ecclesiasticall. Thirdly, it holdeth not Abbas. in c. 1. de offi. Ordinar. when such enquirie is made, not to the end of punishing corporallie; but of reforming the partie spiritu­ally for his soules health. Fourthly, fame is not required, Innoc. in c. Qualiter. el. 2. de accusat. where the enquirie is neither made for any punishment corporall or spiri­tuall; but onely to the end to find out, whether he that is presen­ted or elected to an ecclesiastical function, be worthie thereof or not. For in such case, to the end of keeping backe an vnwoorthie person; the superiour without either fame or other inducement, ought to enquire of meere office, very carefully touching him. But [Page 60] it is otherwise, when enquirie touching a fault is instituted against one that is already admitted into that function, whether the pro­ceeding be then for his remoouing, or for other punishment.

On the contrary side it is receiued by the lawe Canon, that al­beit an euil fame yea Panor. in c. qualiter. el. 2. de accus. though it be not scandalous and offensiue, be sufficient to ground enquirie against a priuate or commō per­son: yet euery fame (except it be also scandalous) will not suffice so to proceed against a Prelate.

The whole course by lawe prescribed touching infamie or e­uill fame going afore a speciall enquirie, in other Clarus. vbi su­pra. q. 6. Alphons. Villag. passim. realmes abroad (euen where the Ciuill and Canon lawes haue place) is long since quite growen in disuse and left vnpractised in both courts, not onely in those excepted, but in all other cases also besides, as by sundry writers of those countries is testified.

Neuerthelesse in the courtes Ciuill and Ecclesiasticall within this Realme, this kind of proceeding vpon an Infamie according to the very prescript forme of those lawes, is still required to be practised and obserued. So that by this discourse (how fame doeth open a way to enquirie) may appeare, the vntrue and iniu­rious Calumniations of those men, who being led by ignorance, or some worse matter; doe buzze abroad, that Ordinaries may make a fame, when and how often themselues list. But if they could; to what purpose should they be so vniustly minded, ha­uing (by lawe) so many sundry other sufficient inducements be­sides fame, to ground their speciall enquiries vpon; as partly haue bene, and partly yet remaine to be here opened?

For another & a second means besides presentmēt, which doeth also opē way vnto speciall enquirie, is Clamosa insinuatio, being not very vnlike to a fame, yet not the same. And it is, c. qualiter. el. 2. de accus. &c. licet Heli. de Simonia. when as a Iudge stirred vp by sundry frequent reports of credible persons (yet with­out their depositions) doeth descend to speciall enquirie, euen with­out any preferrer or prosecuter. And this is to be done by him, whē as without scandale and offence, it cannot be dissembled or win­ked at. For in this case, not only the iudge may, but also he ought to proceed vnto enquirie of his meere office, against him which is so detected and scandalous.

A third means of grounding speciall enquirie besides present­ment, is Cōplaint, made either by priuate Iudiciall, or by Canonicall [Page 61] denunciation. For if such be made (yea though no fame doeth ap­peare) the Iudge is bound Bald. in l. Man­cipia. C. de seru. fugit. nu. 1. to frame enquirie of Office against the partie denounced; or els he is to be punished, no lesse then he is to be, when publike denunciation or presentment is made by officers, Bald. in l. inue­nimus. C. de pro­bat. if he shall not proceed thereupon. But the priuate Iudiciall and generall Canonicall denunciation doe herein differ from publike de­nunciation; because after publike presentment Pract. Conradi. fol. 236. nu. 21. bee made to the Iudge, the Prosecuters are not bound to deale any further there­in, but doe leaue it to the Iudges meere Office: whereas in the o­ther two denunciations last mentioned, the Denouncer doeth pro­secute and sollicite the office.

Clarus. ibid. q. 7. This denunciation commeth in place of a publike fame, and thereby openeth a way to enquirie. And by Custome Alberic. in l. ea quidem. c. de ac­cus. nu. 9. now ge­nerally receiued in other countries, any man is admitted in this sort to denounce an offender, no lesse then those which be officers specially deputed.

The maner of preferring denunciations in the partes on the o­ther side, is in effect thus: Hee that denounceth, Angel. de Ma­leficijs. doeth make knowen to the Iudge in Acts, that at such a time by such a man, this or that misdemeanor was committed; and that N. and A. &c. are more sufficientlic informed in the particulars of that mat­ter. In preferring vp Presentments it is to be obserued, Clarus. ibid. q. 12. that if the crime be done by committing any thing; the place must bee ex­pressed: but if by omitting; then the setting downe of the place, is not required of necessitie.

Here perhaps some will obiect against this, & all other means of opening a way to speciall enquirie, besides fame; sundry spee­ches of writers in both these lawes, whereby they doe seeme to require, that a fame necessarilie goe before euery such enquirie. But we are taught Bossius. tit. de Inquisit. nu. 27. how they ought to be vnderstood; & that in all such places, they do but speake thereof, as of one especial and principall means, not excluding all other: and therefore must be thus takē: that by law a fame is but thē necessarily required; whē there is neither denunciatiō, cōplaint, nor any other means besides, y t be allowed to be sufficiēt, whereupō to groūd a special enquirie.

A fourth means besides Presentment, whereupō a special enqui­rie may be entred vnto, are Indicia, so called ab Indicando, which (according as y e english word w t vs is cōmonly vsed) I do interprete [Page 62] Euidences, or certaine markes and tokens. For when other in­ducements thereunto doe want, these may serue that turne. In which respect it is sayd Bartol. in l. congruit. ff. de offic. praes. that Indicium sufficiens aequiparatur Fa­m [...]: a sufficient euidence or signe is aequiualent vnto a Fame. Like as on the contrarie side, when such euidence cannot bee had, a Fame may serue in stead thereof. Therfore in forreine parts where the course of hauing a Fame to go before Enquirie speciall, is by cu­stome disused: yet neuerthelesse, if no sufficient Indicia or euidē ­ces for the matter doe appeare; Alphon. Villag. lib. 3. c. 15. con­clu. 8. euen in those countries it is still required, that at least a Fame do run thereof. So that these and all the rest of the meanes, that open a way vnto speciall enquiries, are like the Physitians [...]; i. things that may serue to be vsed, one of them instead of another that wanteth.

These Indicia be in lawe taken two seuerall wayes: either in a more large acception: as when they signifie such presumpti­ons which be expreslie set downe in law, to make a full proofe, Arg. l. Indicia. 19. C. de rei vin­dicatione. so that no proofes may be made to the contrary, commonly called praesumptio iuris, & de iure: or els they be of a more strict and pro­per acception; importing some signe of a crime or other matter, l. Solent. ff. de Praescript. which may serue to the finding out of Trueth. And this sorte of Indicia are to be considered in three Clarus. §. fin. q. 20. seuerall degrees.

The first are called Leuia Indicia, light inducements or su­spicions: The second be Probabilia Indicia, more strong & pro­bable: & the third are Indicia violenta, vel indubitata; most preg­nant and forcible euidences.

The first degree of them doeth produce these two effects; First, that the partie detected may thereupon be arrested & atta­ched (by courtes hauing this authoritie) lest he flie: and second­lie, that the Iudge may enter into the taking of further particu­lar informations thereof In processu informatiuo: but they are not sufficient straight way to frame thereupon processum punitiuū. For to take further informations Salycetus in l. ta quidem. c. de Accusat. onely touching a crime, any probable su­spicion suffiseth; by which the Iudge may (with reason) be induced to beleeue, that the crime was cōmitted by such an one. And it is no mar­uel y t such reasonable suspiciō may serue a Iudge so farre, as to take further informatiōs; seeing it excuseth an Accuser frō manifest ca­lumniatiō by Tullies iudgement, as he testifieth in these words. It may happen (saieth he) Cic. pro Rosc. Ametino. that a mā accused is innocent. But notwith­standing [Page 63] he be cleere from the fault; yet is he not without suspicion. In which case (albeit it be lamentable in respect of the accused:) yet the Accuser (in some sort) may for such suspicions sake be pardoned. For seeing he hath something to say criminously grounded vpon good suspi­cion; therefore may be not be taken wilfully to misuse, and manifestly to calumniate or conspire against him, which is guiltlesse.

The second sort of Euidences (properly and most vsually ter­med by the generall name of Indicia) though they be of lesse force, then to make probationem semiplenam: yet arethey Bartol in l. fin. ff. de Quaestion. suffici­ent to ground a speciall Enquirie vpon. Inquisitio potest fieri, quan­do extant indicia propinqua ipsi male ficio; quia tunc surrogantur loco infamiae. And of this sort are those lawes to be vnderstood, [...]nor. c. 3. loco dt [...]oat. which affirme Indicia non sufficere ad conuincendum: such inducements are not strong ynough to condemne a man. Yet Clarus. li. 5. § fin. qu. 63. & ibi remissiuè. if moe of them together doe happen to fall out in one matter, each of them be­ing seuerally (in his owne nature) perfect: then may they all be ioyned together, and may suffice to the condemning of him, vn­to a mulcte pecuniarie or fine; but not to condemne him vnto any corporall punishment; sauing when the Soueraigne Prince, or his chiefe Counsell of State, doe thereupon proceede. And yet euen in this Case, such corporall punishment ought to be extraordinarie onely: that is, some lesse and milder punishment, then the pre­script of lawe prouideth for an offendour in such a crime; if he had bin conuicted either vpon his owne confession, or by witnes­ses; and not alone per Indicia; that is, but by presumtiue proofes, or probable Euidences. For it is to be vnderstood, that in most forreine partes, the maner of al punishments, are arbitrarie to the Iudge, according to circumstances.

The third degree of them are such, and so strong euidences, as that not onely speciall Enquirie for punishment may vpon any of them be framed: but the partie may Practica. Car. fol. 72. thereupon alone, be also condemned; as is commonly holden by writers in lawe; especi­ally in secret treaties, hidden crimes, and al such, as (in their owne nature) be of difficult proofe.

That such indicia indubitata or violent presumptions may serue for full proofe in matters of very difficult proofe, we haue an example in Scripture of Salomon; 1. Reg. c. 3. V 27. c. afferte de praesumpt. whose wisedome is there­fore highly commended, because he grounded his iudgement [Page 64] (whether of the two women that contended, was the true mo­ther) vpon the motherly pitie which he found in her, that would rather forgoe her naturall childe, then to see it dismembred and parted in twaine.

Nowe because of this diuersitie among these Indicia, if any shal require a true note of distinction, how these three sortes may be exactly discerned one from another: it is to be answered, first generally out of the wordes of lawe: Quae l. 3. § 1. ff. de Testib. argumenta, ad quem modum probandae cui (que) rei sufficiant, nullo certo modo satis definiri po­test. And according to this is the Rule; Omnes probationes sunt arbitrariae. But particularly in this point, ye must knowe, that Angel. de ma­lef. ver. fama pub­li. nu. 9. Pract. Ca­soni. fol. 14. nu. 2. the whole matter Indiciorum, of Euidences, must be left to the arbi­trarie iudgement of an vpright and syncere man̄, such as a Iudge is presumed to be: That hee according to the qualitie of the person, crime, and manner of the suspicions and presumptions may iudge, in which of these three degrees euery Indicium, or seuerall Euidence is to be taken.

A fift meanes (besides Presentment) of opening way to spe­ciall Enquirie, in processu punitiuo, is that detection which the Gre­cians call [...]. Ioan. 8. So was the woman taken in the very acte of adulterie in the Gospel. The Latines terme it thus; Deprehen­sio in flagranti crimine. And vpon the borders of England, taking one with the bloodie hand; or (as it is more commonly expressed) taking an offendour with the manner. For of this it is testified, Clar. ibid. qu. 8. that it openeth way to speciall Enquirie. And the like is to be saide, when a Iudge himselfe (sitting publikely) seeth some crime committed. Whereof writers in lawe doe assigne for rea­son (in this behalfe) the Iudges iust griefe, vpon the indignitie of the facte, and vpon the audaceous boldnesse of the offendour.

A sixth meanes producing speciall Enquirie, is Notorietas fa­cti, vel Euidentia sceleris. Cynus in l. ea quidem. C. de ac­cusat. When the matter is so notorious, that by no colour or wrangling it can be concealed, shadowed, or excused; as when the whole people be able to testifie it. For then Aug. super Gen. c. euiden­tia. de accusat. (as saieth Saint Augustine) which saying is also repea­ted in the Canon lawe. Euidentia patrati sceleris non indiget cla­more accusatoris. What shoulde a Iudge require an Accu­sers prosecution, where the crime is notoriously and plainely committed? So it is testified els where, [...]. Tua nos. de cohab. cler. & mulier. Si crimen ita publicum est, [Page 65] vt meritò debeat appellari Notorium; in eo casu nec testis, nec accu­sator est necessarius; cum huiusmodi crimen nulla possit tergiuersa­tione celari. But this worde Notorium, hath three acceptions in Law. The first is Notorietas vel euidentia facti, whereof we here speake. The second is c. Tua. ibid. publicum vel Notorium per famam. The third is that l. Diuus. § Nu [...] ­tiatoris. ff. ad S. C. Turpillian. Notorium, or (as others read it in the feminine gen­der) Notoria, which is a relation or a presentment vnto a Iudge of some crime. And so it is taken in those words of the Ciuil law, l. ea quidem. C. de accusat. Nuntiatores notorijs suis assistere iubentur. Presenters, viz. vo­luntarie relatours and not Officers thereunto specially appointed (except their Calumniation be manifest and apparant, as the best writers doe interpret) must make good and iustifie that which they present. And againe, Vide August. epist. 150. & 160. & Trebel. Pol. in Claudio. Verùm si falsis necne Notorijs insimu­latus sit, perpenso iudicio dispici debet.

Now the second of these two Notoria doeth open sufficient way to special Enquirie: but the first Clarus. ibid. qu. 9. serueth not onely hereun­to, but euen to the conuiction also of such Notorious offender. Yet before the party may vpon such Notorietie be pronoun­ced conuicted; it is required, Pract. Conrad. fol. 240. that this Notorietie be made to ap­peare iudicially in Actes vnto the Iudge (vnto the speeding whereof, the Defendant also must be called) and not onely by extraiudiciall in­formation brought vnto him. Vpon which Iudiciall Ferret. Cons. 31. nu. 5. & 35. proceeding had, the Iudge, (before he proceede to sentence of condemna­tion) must by interlocutorie decree pronounce such a fact to be notorious.

A seuenth meanes seruing to produce first Enquirie in Proces­su informatiuo, and after in punitiuo is that, which is called inci­dens cognitio: when vpon examination of one offendour, it fal­leth out another of his complices to be discouered. For thereup­on (as it is the common opinion Lud. Rom. in l. & si certus. ff. ad S. C. Syllan. of writers) the Iudge may ground his further enquirie and taking of Informations; albeit the supposed offendour Bart. in l. 2. ff. de adult. § si. publico. be not at first cited thereunto. But this appeachment made by him that is partaker in a crime; is not to be holden so good, as the saying of a witnesse, Clarus. ibid. q. 21. but as of a bare Relatour: which yet may giue iust occasion vnto the Iudge to en­ter into further Enquirie thereof, by taking Informations, as the saying of any other meane or bad person also might, in like case.

An eight meanes to open way, and to occasion the Iudges spe­ciall [Page 66] enquirie in processu punitiuo is, Enormitas criminis; the great heinousnesse of some crime. For it is holden, Arg. l. Si quis in hoc. C. de Epis. & Clericis. Bart. in l. 2. ff. ad l. Iul. de adulterijs. that euen in strict termes of law, against such a grieuous crime, a Iudge hath pow­er so to proceede, yea without any fame or Indicia, viz. Euidences iudicially proued and set downe in the Actes of the Court afore.

Ninthly, the Iudge may lawfully descend to speciall enquirie of office, if he shal perceiue the Accuser Alph. Villag li. 3. c. 17. concl. 18. to collude with the accused or to goe about to transact, & by secret cōposition, to shut vp the matter betwixt them. So if he which is supposed to be robbed, Bart. in l. inter omnes. § rectè. ff. de furtis. will collude with the theefe, and say that he was not robbed: yet if there be likelihood to the contrary, he is not to be beleeued; but the Iudge there­vpon is to make speciall enquirie; Quia interest reipub. puniri furtum.

A tenth meanes besides presentment, or any of the former, which may iustifie a Iudges proceeding in this behalfe, is when it is growen so farre (without gl. in c. 1. de elect. c. 2. de ac­cus. in 6. the defendants alledging) that none infamie, or any of the former meanes lieth against him, as that it is come to some act vsually spedde post litis contestationem, that is, after issue ioyned. For then (by the common Aretin. in c. Qualiter. cl. [...]. de accusat. Foller. Pract. cri. fol. 102. opinion of writers in lawe) it shalbe too late for the defendant to obiect the want of fame, and of other Inducements, &c. So that the procee­ding (for want of the defendants reclaiming in time) shall stand sound, and shall not be auoyded hereupon, for nullitie or any errour.

The last occasion of a Iudges iustifiable proceeding by enqui­rie against an offendour without any of the former inducements hitherto spoken of, is: when his proceeding Alph. li. 10. concl. 5. tendeth to a father­ly and spirituall correction for the soules health onely: and not vnto any publike, corporall, and exemplarie punishment. So that vpon all, which hath bin spoken in this behalfe, we may conclude in the very contradictorie of this opinion: That a Courte ecclesiasticall (by the lawes both Ciuill and Canon) may many wayes proceede against an offen­dour, without either Accusa­tion or Presentment.

CHAP. VIII. That to proceede sometimes against an offence, otherwise then vpon an Accusation or Presētment, or then vpon an Appeale or Endite­ment (which two at the common lawe haue respectiue correspon­dence vnto the two former) is no diuerse, much lesse any Contra­rie or repugnant course to the lawes, statutes, and customes of this Realme. This is proued by common lawe, statutes, and practice in proceeding informatiue and punitiue: with answeres to certaine obiections made to the contrary.

SEeing then that not only by Canon, but also by the Ciuill lawes (within the compasse of which two learnings Accusation and Presentment doe properly fall) there be so many other meanes besides either of them, to open way to a Iudges proceeding against a crime: let it now be consi­dered, why an ecclesiastical court may not be allowed an ecclesia­sticall course of proceeding; or whether by the statutes or cōmon law of this Realme, an ecclesiastical Iudge be any way restrained and prohibited to proceede vpō any other groundes besides the one of them two. For if the Common or statute Lawe prohibite this; then are such Canons, &c: thereby in trueth reuersed and voyd, as contrary and repugnant to the Lawes and statutes of this land. But if no such contrarietie, repugnancie, or prohibition shall be found: then will there be no cause, why the proceedings of Iudges ecclesiastical against Crimes, may not (in this behalfe) stil continue, as in all times by-past they haue done.

Notwithstāding there be great diuersities in proceedings eccle­siastical frō proceedings at the Cōmon law; as in the frame of the Libel; in the answering of it; in the ioyning of issue; in the pro­duction, examination, & publication of witnesses; in exceptions or chalenges against them, & Corroboratories of them; in the gi­uing of sentence or Iudgement in writing, and in very many other points besides, too long here to be rehearsed: yet such diuersitie a­lone notwithstāding (so that the Cōmon law, or statute, do neither contrary nor contradict them) those proceedings shalbe neuerthe­lesse iustifiable. For by statute 25. H. 8. c. 19. All such Canons, cōstitutions, ordi­nances, & synodals prouincial, being already made, which be not cōtra­riant nor repugnant to the lawes, statutes, & customes of this Realme, [Page 68] nor to the dammage or hurt of the Kings prerogatiue royall; shall now still bee vsed and executed, as they were afore the making of that Acte, &c. So that no Canons establishing proceedings onely diuerse, but Canons contrariant or repugnant to the Lawes, &c. be thereby repealed. Nowe we are taught by the rules of Reason, that two propositions reteyning otherwise the same termes, the one being vniuersally negatiue, and the other vni­uersally affirmatiue, be contrariant one to another. And though in materia contingenti both such may be false; yet they can ne­uer be both of them true. Therefore if the one be true, the other of them must needes be false. For example of contraries; the Common Lawe holdeth that All aduowsons or right of patronage may lawfully, and without Simonie, be bought and solde. This pro­position then being true; the contrary proposition hereunto, which is established by the Canon Lawe: viz. that no right of pa­tronage may lawfully or without Simonie be bought and solde, must needes be false; and therefore by the Common Lawe, doth stand in this Realme repealed, in respect of this contrarietie.

The word Repugnant in the saide statute (we see) is put after Contrariant, as of a greater force and efficacie: and therefore is to be vnderstoode, according to the common course of our speach, (albeit the Logicians doe not so vse that worde) for the contradictorie opposition; consisting of an vniuersall affirmatiue and a particular negatiue; or of an vniuersall negatiue and particu­lar affirmatiue. And these be so opposite ex diametro, and doe alwayes so directly thwart one another; that in euery subiect matter whatsoeuer, the one of them being true, the other must needs be false: & è conuerso. As for example; The Canon Lawe holdeth, that All fighting in Duello, that is to say, triall by battaile of one single man against another, is vnlawfull. But the Common Lawe (contradicting this) doth holde, that some triall by battaile (as in a writ of right, and in an Appeale of murder or robberie) is not vnlawful. And againe, the Canon Lawe holdeth, that none aduowsons or right of Patronages may be in grosse. But the Common Lawe is in the flat Contradictorie hereof, that some aduowsons be in grosse, as well as others be appurtenant to a manoure. And there­fore in neither of those Cases such Canons haue place in this Realme, in respect of this Contradiction and Repugnancie.

[Page 69] If then it may be shewed, that some proceedings of the Com­mon Lawe against crimes, be also entred into without either Ac­cusation or Presentment going afore: then where the course of both Courts be not so much as diuers; there cannot possibly be found either Contrarietie or Repugnancie: vnlesse we should say, that the Lawes and statutes doe condemne that, as vnequall and vniust in Courts Ecclesiasticall, which they establish and practise in Temporall Courts for good and iust.

As then an Appeale brought at the Common Lawe, doth most neerely resemble an Accusation in the Ciuil and Common Lawes: so hath enditement a correspondence, and doeth answere vnto their Presentments, being also in statute, often called by the name of Presentment. These two kinds of prosecution of Crimes, at the Common Lawe be mentioned in a statute of K. Henry the fift, in these words: 7. H. 5. ca. vnico. Diuers men of malice and enmitie, and for gaine, and vengeance, haue often caused to be indited and appealed diuers of our true liege people, of treasons or felonies in the Countie of Lan­caster; pretending by those Appeales and Inditements, &c. And though these two be the courses of bringing a man in processu punitiuo into trial of matters Capitall: yet for infinite other offen­ces and crimes not Capitall, the Cōmon Law hath vse of Bils in the Starre-Chamber, and of Informations in the other Courts, at West-minster. Neither of which can be truely called either Present­ment or Accusation. Not Presentment, because no such peculiar charge of preferring vpon their oathes is layde vpon them, as is vpon Iurors at Enquests, that finde Inditements; or as is vpon Church-wardens and Side-men, who make Presentments. Not Ac­cusation, because (as is aforeshewed) such Bils and Informations, be both of them put vp, ex officio promoto. Againe, they cannot be called Accusations, because those, who put them vp, are not parties; but the King is the partie. For it is thus said in Statute, 3. H. 5. ca. vnico. He that will sue for the King to attaint them, that pay or receiue such coyne (as is there forbidden) shall haue the one halfe of the for­faiture. And after in the same Kings dayes: 8. H. 5. ca. 3. He that will sue for the King in this behalfe, shall haue the thirde part of that pecuniarie paine. So that whosoeuer doth preferre or follow them; yet the suite is the Kings, and he the partie; whose also the Court is, where the suite is prosecuted.

[Page 70] It may appeare, that at the Common Lawe, other meanes be­sides Appeale and Enditements (which respectiuely doe resemble Accusation and Presentment) be receiued to ground a Iudges Enquirie vpon, in Processu informatiuo; whereupon also follow­eth oftentimes processus punitiuus; that is, the triall of the Offen­der. As first, by the common custome and practise of the land. For doe not some seuerall Iustices of the Peace, vpon their owne suspicion conceiued, or vpon secret relation of others (whome they credite) send for men by warrant to be apprehended and brought afore them? doe they not take informations sometimes against supposed offenders, vpon depositions of witnesses, be­fore the partie be sent for? Doe they not also without any such witnesses, often-times examine the partie himselfe, and (accor­ding to their discretion) binde him to the Peace, or to his good behauiour: or perhaps send him to the common gaole to be im­prisoned? Doe they not receiue and sometimes preferre and procure enditements to be found (as of common Barattarie and such like Crimes) vpon their owne onely suspicions, or by infor­mation of some one other (perhaps an enemie) and vpon other as meane presumptions? Are not sundrie persons trauelling through some towne, or founde in some priuie searche lodging there (with good reason) oftentimes brought to a straite exami­nation and enquirie of matters Criminall; vpon the onely view of their persons and deportment, without all further intelligence or cause of suspicion? Yet be all these without Appeale or endite­ment; and many times vpon as light and perhaps lighter suspici­ons, and informations lesse likely and credible, then any be ad­mitted (in like case) by the Commissioners ecclesiasticall; and much lesse by Ordinaries, who must (in case an Appellation be brought) in a more strict course of Lawe, be able soundly to iustifie the in­ducements, that they had to leade them into those criminall que­stions and enquiries. Yet vpon these grounds alone, not onely 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 [Page 71] 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? 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 [Page 72] 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 [...] [...]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 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 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 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 [Page 73] 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. 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 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 Common Lawe will not giue so large a scope vnto Iudges ecclesiasticall: against such doubters I will ob­iect those wordes of Magna Char­ta. cap. 1. Magna Charta, where it is not a newe graunted, but Confirmed onely, That for euermore the Church of England shalbe free, and shall haue all her whole rights and liberties inuiolable. And this is a confirmation of their rights and liber­ties, before any graunt was made to the rest of the Realme be­sides: being yeelded at such time, when as (through generall ig­norance) it was vntruly holden, that the state Ecclesiasticall (signified there by those wordes, The Church of England) had [Page 74] not their Iurisdictions from the Prince, but from God alone, de­riued downe to them by the meanes of the Pope: and therefore that their Courtes and Lawes, (whereby they proceeded) were not in any respect to be accounted for Courts holden by the Kings auctoritie, or their Lawes the Kings Lawes. Whereupon arose that vntrue and preiudiciall phrase of seuerance of a Court Chri­stian, from the Kings Court. So that if they were confirmed to them, when their Iurisdictions (in facte) were not holden of the King, as now they be, and ought to be by Gods Lawe: is there not then more iust cause so to continue them at this time; seeing they be not so much as a diuerse course from the Customes and Lawes of the Realme in Courts Temporall?

But that this course of proceeding in causes Criminall, some­times without either Accusation or Presentment, is in trueth a right and libertie of the Church of England, may appeare by that, which to this point hath bene afore deliuered; and by the continuall practise also of those Courts, in all ages: as the Acts thereof from time to time doe make very manifest.

Yet, this is more particularly and neerely prooued, in the very point that we handle, by a 1. Eliz. ca. 2. statute made in her Maiesties reigne; where it is prouided, that Ordinaries not only at any other time and place, then at their visitations and Synods may take accusations and informations (a word of farre more large signification, then Pre­sentment:) but may also enquire else-where within their iurisdiction. Which Enquirie is afore shewed to be alwayes ex Officio; and (being absolutely spoken without further addition, and in some sort seuered from all ki [...]de of Informations) must necessarily be without Presentment.

But how farre and in what maner may they so doe? Truely in like fourme as heretofore hath bene vsed in like cases, by the Queenes ecclesiastical Lawes. If then to proceed Criminally with­out either of them two, be warranted & practised by the Queenes ecclesiasticall Lawes (as afore is shewed) assuredly this Statute doth auouche and iustifie them.

To this disputation may be referred that obiection, which the Notegatherer maketh touching a 11. H. 7. ca. 3. statute of K. Henry the seuenth; Note gathe­rer. whereupon (he saith) Empson and Dudley proceeded, that was 1. H. 8. ca. 6. repealed by another in the time of K. Henry the eight; although [Page 75] he putteth it vnder his title of the lawes of England, as by them seeking to impugne al proceeding ex officio; albeit vnder present­ment (which this opinion alloweth) proceeding ex Officio, is necessarily implied, and presupposed.

For answere whereof; it is true, that the saide statute was so repealed: but whether it were the same and the onely statute, whereupon Empson and Dudley proceeded, is left there vncer­taine and vntouched. Howsoeuer it was in this behalfe, seeing it authorised all Iustices of Assise and of the Peace, to proceede thereby; it is most probable, that many besides them two, did also deale by vertue thereof.

The effect of the saide statute was, that vpon information to be made for the King afore Iustices vpō any penal statute not extending to life or member, they might (without enditement) heare and deter­mine all offences against the forme of any statute in force.

The reason of making the said statute, is signified by the pre­amble to haue bin; for that, although at Sessions charge was giuen to enquire of many offences against statutes; and Enquests to that ef­fect were straightly sworne and charged to enquire and to preferre the trueth: yet they were letted to be found by imbracerie, maintenance, corruption, and fauour; by occasion whereof the statutes coulde not be put in due execution. And againe in the same place: The twelue men, for the causes afore rehearsed, will not finde, nor present the trueth. Howesoeuer this were at that time, it may bee feared, that it is in some place too true still, euen vntill this day. So that if this were then a sufficient cause to make such a statute; the cause still continuing, if not encreasing; that statute will seeme to haue beene (in that regarde) lesse vnreasonable.

In the statute of Repeale thereof, for the reason of abrogating 1. Hen. 8. c. 6. it, is onely assigned; That thereby many sinister, craftie, feigned, and forged informations haue beene pursued, to the great damage and wrongfull vexation of the subiectes. But this might aswell happen, euen when men be prosecuted by way of enditement. For is it not vsuall to finde them vpon any one mans euidence and information, the Iurie not regarding (oftentimes) what enimitie rests betwixt them? Therefore it was not the course by information that displeased; but the badnes of the informations [Page 76] that gaue occasion of repeale. For by statute, euen in K. Hen. 8. 31. Hen. 8. c. 14. his dayes, an Information was made equiualent vnto a presentment by verdict of twelue, in matter of heresie, that is far more penal, then the former. Which cruell statute I would not haue alledged, but that the Note-gatherer groundeth himselfe thereupon, for ano­ther purpose.

And we see, that there is no such cause alledged, as the Note­gatherer insinuateth; either as if it were an vniust & vnreasonable course, or in respect that it was ex officio, at the instigation and so­licitation of some one person; or yet, that it was without Appeale or Enditement. For if it had bin simply vniust; then all the treasure which had bin leuied by colour thereof, should haue bin resto­red. And it is euident, that Bils and Informations against offenders, are still in frequent vse, and may be preferred for the Queene by any, and against any, whomseuer. And those which be found of­fenders, may (without either Appeale or Enditement) be condem­ned and punished thereupon in sundry geat penalties and losses both pecuniarie, corporall, and of their good name and credite.

And for further proofe, that it is at this day holden none vn­iustice by the tempor all lawes for to ground an enquirie, yea, and also a Conuiction without either Appeale or enditement, is plainely prooued by a latter statute, which is yet in force. For Iustices of 5. & 6. Edw. 6. cap. 25. Peace at their Sessions haue authoritie to enquire of the offences of them, which be admitted to keepe Ale-houses, not onely by Present­ment, but by Information, or otherwise by their discretion &c. and may heare and determine the same by all such wayes and meanes, as by their discretion shall be thought good. And a litle after it is there enacted; that the Certificate of the Iustices touching euery such Recognisance and offence, shall be a sufficient conuiction in the lawe of such offence. So that for this one kinde of offence, as much is established by this statute, as was for sundry others, by the aforesaid repealed Acte. And therefore it is no course of proceeding condemned as simplie vniust; howsoeuer the fa­mous King Henrie the eight, was willing at the very entrance of his reigne, to gratifie his subiectes by that Repeale.

Another obiection in this behalfe is taken out of the preamble of the repealed statute for heresie, made in the time of the afore­said king Henrie the 8. the wordes are these: viz. It standeth not 25. H. 8. ca. 14. [Page 77] with the right order of Iustice, nor good equitie, that any person should be conuict, and put to the losse of his life, good name, or goods; vnlesse it were by due accusation and witnesse, or by presentment, verdict, confession, or processe of outlawrie. Which wordes (you see) doe speake of conuiction, and of being put to losse of one of those three, and not of the calling into question and maner of pro­ceeding. This doeth appeare, in that to the worde Accusation is ioyned Witnesse, with a copulatiue: whereas the opinion (whereof we treate) implieth, that either vpon any Accusation or yet vpon Presentment (without any more adoe) an Ordinary may grounde his further proceeding. But a man may not be conuicted in a Court Ecclesiasticall, either vpon a bare Accusa­tion or Presentment without witnesses, or his owne confession: to which (I thinke) may well and with good reason be added, wil­full contumacte, and not presumed onely; which contumacie both in Ecclesiasticall Courtes, and some others of this Realme, a­mounteth to as much (in construction of lawe) as a confession: and it hath a correspondence vnto an Outlawrie, that is a kind of conuiction, at the Common lawe, grounded vpon wilfulnesse onely presumed.

Moreouer, this preamble doth not rest in the two wordes of Accusation or Presentment, being the onely things required (by this opinion) to warrant proceeding Ecclesiasticall; but addeth also witnesse, verdict, confession, or processe of outlawrie: and there­fore cannot (by any meanes) be referred vnto enducements, to ground proceedings vpon, but onely vnto meanes of conuiction: and the rather, because in that whole sentence, no verbe passiue is vsed, but conuicting and putting to losse, &c. which maketh me the more to maruell, how the word Presentment, with a disiunctiue, came in amongst the rest: as if by a Presentment alone, a man might be conuicted, or put to losse of any of these three.

Some other wordes following in the same preamble, are also Ibidem. brought for this purpose, viz. wherefore it is not reasonable, that any Ordinarie, by any suspicion conceiued of his owne fant asie with­out due Accusation or Presentment, shoulde put any subiect of this Realme, in the infamie and slaunder of heresie, to the perill of losse of life, losse of name and goods. These wordes are inferred vpon the former, and are directed vnto none other crime but Heresie, [Page 78] where the perill and penaltie is so grieuous, as losse of life, losse of name and goods, ioyntly together; & therefore can by no reason be drawne & stretched vnto euery other crime ecclesiastical, where no such perill of penaltie, or of punishment resteth. For wordes of statutes are of strict interpretation, and are most strict in mat­ters criminall and penall, and therefore may not be extended vn­to other crimes, then are expressely mentioned; yea though there were (in both) a like reason. Whereas (in trueth) betwixt the punishment of Heresie, Atheisme or Apostacie, and other crimes ecclesiastical, there is as great dissimilitude as may be. For death in those three is not inflicted, but when all hope of amendement and reformation of the partie himselfe is past, and he is therefore taken away by death, to the intent others may be terrified by the example, and that he haue none opportunitie to entise any moe to his heresies, or to continue in his blasphemies against God. But in the correcting of all other crimes ecclesiasticall (though secondarily sometimes the terrour of others is sought) yet principally the parties owne reformation, and bringing vnto penitency and amendement, is intended. For hereby he sustai­neth no losse at all, not so much as of his good name, but rather a gaine; because after his reformation and repentance, he ought to be (of al Christians) holden as deare and precious in Gods sight, The Angels re­ioyce at the con­uersion of a sin­ner, and doe not vpbraide. as if by falling into the sinne, his credite had neuer bin impaired. In which respect those Canonicall penances were by the fathers of the Church, and by the olde and pure Canons said to be medicinae animae, rather then poenae: yet not as satisfactorie for the sinne, but as good inducements vnto, and also testimonies of repentance.

And you knowe, how absurd a kind of reasoning it is, either to argue from one thing to another à dissimilibus: or to reason from that which is more likely to be, vnto that which is much lesse likely (viz. à maiori ad minus) affirmatiuely, as must needes be out of this place: for thus their obiection must bee gathered: Without accusation or presentment of heresie; none shalbe put in perill of losse of life, losse of name, and goods: therefore without the one of these two, an Ordinarie may not proceede to the punishment of any other lesse offence ecclesiasticall. Yea though no one of these three, and much lesse all of them be any way thereby hazarded, or brought into perill.

[Page 79] Furthermore in these last recited wordes there lieth a plaine op­position, betwixt any suspicion conceiued of the Ordinaries owne fantasie: and a due accusation or Presentment. Therefore, if sound and credible information, notice, euidence, or other sufficient matter may appeare to be brought vnto him, so that hee cannot be sayd suspiciouslie to conceiue it of his owne fantasie onely, then the true intent hereof is thereby satisfied. But shall the Preamble of this repealed Statute stand for sound authoritie, and shall not the equitie and reason of the very bodie of the Statute it selfe, 11. H. 7. though afterward repealed (much rather then a Preamble) be receiued for a good argument; proouing that it is neither vniust nor vnreasonable, at some times to ground a Iudges proceeding criminall, without either Appeale or Inditement?

Lastlie, here seemeth a due accusation or els a due Present­ment of Heresie, in reason and equitie to bee required: but it is not here, neither (as I take it) else-where by the lawes of the Realme determined, what may bee accounted a due accusa­tion or a due Presentment of a crime in an Ecclesiasticall court. Then (as I construe the lawe) must it bee left vnto the lawe ec­clesiasticall to determine, when these may bee sayd to bee due­lie done, either preciselie, or by that which is aequiualent vnto them.

And so we may conclude, that to proceed in an Ecclesiasti­call Court agaynst a crime, otherwise then either by Accusati­on or such Presentment, is not contrary or repugnant vn­to the lawes of the Realme, but rather the like course often practised by them: and thereby the Iu­stice & equitie of such proceeding more stronglie confirmed and iustified vnto vs, and the contrarie opinion quite ouer­throwen.

CHAP. IX. The second opinion (here to be treated of) is, that No laie person may be cited of Office in any cause, but Testamentarie or Matrimoniall: the drift of that opinion is against proceeding of Office in matters criminall: the necessarie vse and equitie of proceeding criminallie, sometimes by the Iudges office, in courtes both temporall and ecclesiasticall.

THe very drift of the second opinion (that com­meth here to be disputed of) is; that a Iudge ec­clesiasticall may not proceed at all of Office, or make speciall Enquirie, (which is the effect pro­duced by that cause) against any crimes or offen­ces of late persons. For in debarring them frō Ci­ting any such, the very whole proceeding against them (vnto which that is the introduction) is thereby also debarred: and by restraining their citing of Office vnto causes onely Testamentarie or Matrimoniall, all dealing against Crimes (without there be an Accuser) is thereby taken away. Which second opinion therfore quite ouerthroweth the presenting of any laie persons (though cri­minous) allowed by the generalitie of the next precedent opini­on; insomuch as vpon Presentments, followeth proceeding of Of­fice by Enquirie; and yet both these opinions had one Author. So well bee these mens conceits digested. But let vs first examine what may be the colourable occasion of this second opinion, o­uer and aboue the impounding of all ecclesiastical proceeding vn­to those two heads (spoken of in the first part) sauing where the partie conuented himselfe is willing. Which willingnesse in the partie for rights that may be supposed to be by him deteined; but especially for crimes supposed by him to bee committed, can ne­uer with any reason be intended, that it shall bee obtained at his hands (considering there is so small vse of any proceeding by office, but against crimes; and least of all in causes Matrimoniall or Testamentarie.

That no laie persons then should be delt with at all, for such crimes, as I haue before prooued to bee of ecclesiasticall cogni­sance; but be suffred to do them without controlment: I thinke (in charitie) not to be their meaning. It must needs then follow, that it is the proceeding against crimes ex officio Iudicis, viz. with­out [Page 81] an Accuser, which is hereby principallie condemned, as vn­reasonable or vniust.

Therefore to prooue it reasonable; I mind here (somewhat fur­ther) to shew the necessarie vse & equitie thereof, as well in the one court as in the other. And to cleare it from vniustice; I wil de­clare first, that it is both practised by the temporall lawes, & also is by common and statute law, an allowed proceeding vnto courtes ecclesiastical: next, that it is practised not onely by the law Canon (which many would take for a sufficient disallowance of it:) but also by the Ciuill lawes, subiect to no such exception; insomuch as they are vsed by the rest of Christendome for their Common law, by the grounds whereof, all their customarie lawes & ordi­nances be argued & disputed. And lastly, that such course of pro­ceeding was vsed & is allowed by sundry exāples in holy Scrip­ture: together with answeres vnto the obiections made to the contrary, as they fall fittest into each of the seuerall parts of this disputation.

The equitie and necessarie vse of this course to bee holden, may be shewed by the partie, which (by lawe) is supposed to be the exciter & stirrer vp of a Iudge vnto it, whē none other person is found that wil prosecute. This partie I meane, is the Clarus. ibid. q. 7 publike in­terest which the Church or Commō welth hath, to haue crimes punished: Interest Reip. prouinciā purgari malis hominibus: & ne ma­leficia remaneant impunita: poena enim vnius, terror est multorū. Bo­nis nocet, qui malis parcit. Sicut est misericordia puniēs, sic est crudeli­tas parcens: w t sundry other like rules of law & Canon, partly afore touched. Now the publike interest doth not only rest in this, when some benefite is comming towards the common treasure, but is chieflie shewed by procuring common tranquillitie and repose of the subiect; with sinceritie of religion, and integritie of con­uersation. And it was called by the Romanes (especially after the popular state was turned into a monarchie) by the name of Fiscus: and may well and significantly with vs (in respect of the mea­ning) be termed, the interest of the crowne & dignitie royall, which by all offences are sayd to be violated. Therefore doe the Practica Millei fol. 3. nu. 31. Ciui­lians of other nations say, In quocun (que) crimine fiscus est accusator: against euery crime the benefit of the Common-wealth is an accuser. And another Clarus. ibid. q. 10. saieth, that in what crime soeuer a Iudge may proceed [Page 82] of office, there Fiscus, the common benefite stands in stead of a Partie. And it is testified to bee a Decius consi­lio 170. nu. 1. common rule, that euen in an offence but against a priuate person principally, the iudge oftentimes is of of­fice to proceed to the inflicting of some penaltie not expreslie set downe in lawe, against such an offence (for so is poena extraordinaria ment in the Ciuill lawe) by reason of the very interest the Common wealth hath, to haue misdemeanors punished. In which Clarus ibid. q. 12. respect some mā that by law may not vse action, yet is not forbidden implorare officium Iu­dicis, to stirre vp the Iudge (by petition) to proceed for his owne office and duties sake.

If her Maiesties most honourable councell together, and eue­rie one apart; if the Iudges of the land; if carefull and vpright gentlemen of the Commission of Peace in euery countrey; of of­fice, and for their dueties sake (for the most part) without any so much as priuate complaint (much lesse professed Accuser or Par­tie) but perhaps vpon some generall muttering; yea and some­times without so much, for a care and vpon a feare (at large) onely conceiued, what may happen: did not, or should not en­quire, looke into, and take informations of riots, violences, di­sturbances of peace, conspiracies, felonies, murders, and of o­ther misdemeanors and outrages, and so seeke further to disco­uer them, and to punish them, or bring them to Iustice; might it not iustly be feared, that the realme would much more abound, and ouerflow in all kinde of mischiefe? Would the Constables abroad, Headboroughs, Bursholders; and such other inferior of­ficers and ministers of themselues preferre such vp, or being found out and presented by others; would they effectually folow and prosecute them as appertaineth, so that the magistrates need not to take further care? I thinke it will not be so supposed. The like then may be sayd of Ecclesiasticall officers and offences, notwithstanding all generall Enquiries in Senes or Synodes, and in visitations.

But it will perhaps be sayd; in the one Court, they may bee presented by the sworne men, and in the other by enditement of the grand Iurie, at Sessions and Assises, &c. It is true, they may be; but how many, I pray you, are so found out, and endited (from time to time) by the grand Iuries of their own enquiries & know­ledges: if either some partie (grieued in particular) doe not [Page 83] giue euidence; or the Iudges or Iustices of themselues do not in­forme them, and vrge them; notwithstanding the straitnesse of their charge and oath, and that they be taken out of the seuerall parts of euery shire? But be it, that some notorious murtherer or felon, is soby them endited at some times: how many other offenders in penall statutes (being men of any reckoning in the shire) are endited at all, thorowout the Realme, in many yeeres, if none of the bench do take care to vrge the Iuries? as Recusants in comming to diuine seruice, such as haue and keepe Reteiners, and giue liueries contrary to statute, onely to band in quarrels, and to mainteine bad actions; or yet such as goe excessiuely in apparell, or which violate the statutes appointed for not eating flesh, vpon certeine dayes. Nay, it falleth out often times, that the more to giue edge to such Iuries to do their duties, euidence hath bene giuen vnto them in these offences: yea, such and so good, as vpon lesse euidence, they would perhaps haue endited a man of felonie, to the hazzard of his life, especially if he were but some base fellow. Now, when none almost will be found to giue euidence (sauing in such a cause where he findes himselfe or some of his pinched) yea, and not in such neither, if the other partie be a man of any tolerable reckoning or ability; and very few (albeit themselues do perfectly know it, or haue reasonable good euidence giuen, against some man of power) that will finde an enditement against such an one, although both he that giueth the euidence secretly, and all the Iurie may be in some hope, not to be knowen, who it was that did principally stirre in it, because they be sworne to keepe the Queenes counsell, their fellowes, and their owne: can it then with reason be ima­gined, that any man (almost) will be found voluntarily to be­come an Accuser, and to prosecute at his owne costs and char­ges? Experience teacheth that most men will not, few that dare, and those onely such, as take themselues in some particu­lar respect, wronged.

We see in a great multitude of penall statutes at the Common law, how men by third parts and moities of forfeitures (besides great priuileges in proceeding) are as it were allured and enti­sed to informe against offenders: yet very few (notwithstan­ding such great gaine as thereby might be got) are found (be­sides [Page 84] such as make an occupation of it) that will voluntarily pre­ferre informations: albeit there be enow that want the money, and could well be content to finger it, out of what male factours purse soeuer it came.

The reasons of this backwardnesse in informing, I take to be the charge, trouble, common obloquie, and offence taken by them that be prosecuted, and thereby feare and perill to come vn­to some further mischiefe vpon their procurement, or for their fauour. Now, where men that are so well hired, and (by reason the Queene is partie to such informations) so fully in all reason protected, will not, lust not, or dare not preferre matter penall against others: shall wee looke for better courage to be shew­ed by priuate persons, against offenders in Ecclesiasticall crimes; where they can expect no such countenance nor remunerati­on, to lighten the other burthens and dangers? and therefore either of Office to be prosecuted, or must be wholly left vnpu­nished.

In riots committed and done vpon others, we see iust cause of griefe for the iniury receiued: and thereby occasion giuen to seeke lawfull reuenge. There was good remedy also prouided for them at the Common law. Yet in the time of king Henrie the seuenth, for a further remedie and repressing of them by the Lords of the Starre-chamber, the State was driuen, to make a sta­tute. By authority whereof their Lordships proceed in that and others ex officio, albeit (in many causes) they haue some partie grieued, that by way of complaint promoteth and prosecuteth the office. Yet the proceeding is (as was touched afore) by way of enquirie; in that no man (there) sueth for priuate recompense; but the scope of the whole processe is criminall, & ad vindictam publicam, vel corporalem vel pecuniariam, applicand [...]m fisco, non parti. So that where men haue [...]ust cause of griefe, yet was it thought very expedient & requisite, to prouide a sharper course by way of enquirie of office. How much more then is this course needfull to be holden, for punishing Ecclesiasticall crimes, which (by the policy of this Realme) haue no other punishment: and where no man hath (for the most part) any priuate iniury, wher­vpon to complaine himselfe?

Here perhaps it will be said, that he which can giue informa­tion [Page 85] of a crime to a iudge; may accuse, or procure a presentment in an Eccelesiasticall Court (if it be of that iurisdiction) or may informe and procure an enditement, if the cause be Temporall: or els that it were meet his information be not beleeued, but that he should be holden as a slanderer and a malicious person. We are to remember, that if this Dilemma (viz. either thou must accuse and prosecute him, &c. or else thou art but a slande­rer) had not quiddam tertium to minister answere vnto it; many grieuous faults should passe vnpunished, and many poore men should be sore pinched. For experience teacheth, that Clarus ibid. q. 6. often times euen in crimes publikly committed, you shall hardly finde wit­nesses, that will depose their direct knowledge, when it tendeth to the offence of some man of countenance, that may do them a displeasure after. And therefore they will either say, they saw it not, heard it not, marked it not, or at that time remember it not. Yet it is knowen, that a witnesse is vrged by the religion of an oath, and is not entended to thrust himselfe into the matter willingly: which as it ought to serue to take away all offence conceiued by him whom he toucheth; so ought it to wash away all feare and other affection, in the witnesse.

Then how much more probably may it be supposed, that there is many a meane man, (though otherwise able to giue good and true information, perhaps of three or foure witnesses, which doe know the matter more fully, and touching other par­ticularities, sufficient for a Iudge to enquire, and to looke into the partie so denounced) who neuerthelesse in many respectes dare not become an open Accuser, or a preferrer of presentment, of enditement, or of information? because there is more cause to take offence at such, then at one, who is called and vrged to te­stifie. So that if there were no meanes for a Iudge Ecclesiasticall to take knowledge, nor to proceed, but vpon the voluntarie prosecution and accusation of some partie, (which is the course opposite vnto proceeding ex officio) then surely many execrable offences that are most displeasing to Almightie God, offensiue to the godly, dangerous to mens inheritances, and to the offen­ders owne soules health; yea and some that be pernicious banes to all religion, vnto professing of God, and to Christianitie it selfe, were like (through want of discouerie and impunitie) [Page 86] to spread themselues ouer both Church and Common-wealth in very short time, before Accusers would be found: Namely, Atheisme, Apostasie from Christianitie, Heresie, Idolatrie, Schisme, Errour in matter of Religion, Sacrilege, Periurie Ecelesi­asticall, Blasphemie, Subornation of periurie aswell in matters of ma­riage and testament (being of speciall consequence) as in others; Hor­rible swearing, Polygamy or many wiues, Incest, Adulterie, and o­ther vncleannesse, Drunkennesse, excessiue Vsurie, Simonie, Forge­ries of Ecclesiasticall seales for testimonie, Vsurpation of the holy Ministerie, dangerous Conuenticles, vngodly libelling, and such like.

For who are commonly made priuie to such sinnes, but men of like humour and affection? in whom we may not presuppose such sinceritie of conscience, that for reformation of the partie delinquent, they will abandon all friendship, and aduenture any displeasure; euen but to take a triall (with their great charge and trouble) howe they shall be able to make proofe of such matters against them.

Besides these inconueniences, that otherwise would ensue; there be many others, all which (in particularitie) to rehearse, would be ouer tedious. As after an accusation be begun, & that the Iudge seeth violent presumptions against the partie conuen­ted: if the prosecutour for feare, for tediousnesse, for bribes, or by collusion would desist: were it not meet that the Iudge, of of­fice should neuerthelesse proceed by enquirie; that the delin­quent may reape, as he hath deserued? is it not meet that a Iudge should be more carefull of the publike good of the Common-weale, then euery common person? and if he be so in deede, shall he not be allowed as good meanes to doe these good offices to his Prince and Countrey, as any priuate person? And shall he not be as much cherished and allowed vpon his owne care, and for his dueties sake, to procure the suppressing of sinne and re­formation of offenders, as to do it, at the instigation of any pri­uate partie? Nay is there not lesse danger of suborning, corrup­ting, or instructing of witnesses by a Iudge (who hath no pri­uate interest to see a man punished) then there is in the prosecu­tion by a partie; who (for the most part) doth it but of malice, or vpon some other sinister respect? And what if any that is in deed a friend, should be Ioh. Andr. in add. ad Spec. tit. deinquisitionib. purposely framed to be an Accuser; [Page 87] to the intent some delinquent may escape, and not be called a­gaine into perill, vpon the same crime? If it be saide hereunto, that the penaltie of calumniation, viz. poena taltonis which is to be inflicted vpon him that faileth in proofe of his accusation, will take away this suspicion; it may be replied, that in most coun­tries, this poenatalionis is growen in disuse: but chiefely this may be answered (euen where that penaltie still hath place) that the Accuser may make halfe a good proofe (as by one vpright wit­nesse) and c, 1. de elect. in 6. so should both the delinquent escape punishment; and himselfe also (by lawe) be freed from danger of the penaltie of calumniation presumed, and of enduring retaliatio.

Besides, the like equitie may also often happen, when onely two sufficient witnesses can testifie of a crime: for if the one of these should be driuen (of necessitie) to be a partie, then the full proofes (required in such cases) were thereby cleare taken away; and so the offendour should escape punishment. And therefore there is both necessary vse, and good equitie, to warrant procee­ding ex Officio, in matters criminall.

CHAP. X. An answere to some further obiections made against the conue­niencie and reasonablenesse of proceeding against crimes of Office.

TO crosse the necessarie practice of proceeding by Office, In his title of Inconueniences. the Note-gatherer assigneth sundry inconueniences by him surmised to arise thereof. First, (saith he) In treason and felonie chalenge is admitted to the Accuser: here none. For it is in the Ordinarie to admit one to infourme, and to wit­nesse againe in the cause, wherein he was before deposed, to the con­trary. What these last wordes, viz. to the contrarie, doe serue for here; neither I, nor perhaps the Author himselfe of the Notes, can coniecture. If Acouser here be taken for a witnesse (as is afore shewed:) then I must tell him, that challenges and exceptions a­gainst witnesses not onely be allowed vnto the defendant at the lawe Ciuill and Ecclesiasticall; but in a farre more beneficiall man­ner, then is receiued by vse at the Common lawe of this Realme. For it is commonly said (howe truely I am not to discusse) that a [Page 88] witnesse ought not to be receiued nor deposed vpon his oathe for the prisoner, as being against the Queene. And if such be per­mitted to speake at the prisoners request (as some seldome times hath bin) and be not sworne thereunto: what credite will the Iurie giue vnto his bare wordes? nay what credite may they giue to them, and saue their owne oathes; who are sworne to dealc according to their Euidence; which cānot be so termed, except it be vpō oath, vpon matter of record, or vpō the parties cōfession.

But if he take Accuser here, for him that voluntarily prosecu­teth and soliciteth the office; then he may remember, that against such, the very Cōmon lawe giueth no challenge; because any man may preferre Enditements & follow them for the Queene: where­as the Ciuil law hath whole titles of chalenges that may be made against Accusers; which lawes be also retained in those Courtes, against all voluntarie preferrers to the office, who are holden as parties. But if the Iudge alone at the Common law cause an Endite­ment to be put vp; may the prisoner challenge the Iudge, when as he shall not challenge any common person, which doth it?

That is true in part, which he saith, that in Bartol. in 1. Diuus. ff. de cu­stod. reorum. enquirie of office, a Iudge (by the Ciuill lawe) may examine him which denounced the matter, as a witnesse therein. Yet it is not generall in euery denoun­ceour or preferrer vp vnto the office, but onely in such as be officers specially appointed, & sworne for that purpose. Now what wāt of equitie, or what iniustice is herein, seeing perhaps such know­eth the matter best, & was the man that infourmed his fellowes of his particular knowledge therein, which made it to be presē ­ted? May not one single man in a graund Iurie doe the like? And what should hinder such a man afterward to giue also particular euidence therof at time of the triall? For is there any course more vsuall, then for him that preferres vp the enditement, & giues eui­dence to haue it found; to be also a witnesse, & to giue euidence of the very felonie, &c. at the prisoners triall for life and death?

But if it were true, that euery Infourmer & prosecutour might be examined also as a witnesse (which is very vntrue both by lawe and practice) howe could this proue, that which he aduou­cheth; viz. that no challenge against the Accuser is admitted in Courtes Ciuill and Ecclesiasticall, seeing both against prosecutors and witnesses by the Ciuill & Canon lawes, exceptions or challen­ges [Page 89] may be taken? And though it were true, that this were gene­rally allowed, and were also an inconuenience: shall therefore the examining of one for another, when he ought not in equitie to be, ouerturne all proceeding of office as vnreasonable, which is the drift at which he aimeth?

Another of his Inconueniences hereof is; that hereby a Bishop may (vpon his owne suspicion) supplie the place of an Infourmer, a Witnesse, and a Iudge. That his owne suspicion alone, will not serue to open way to such proceeding, is shewed afore in the seuenth Chapter. And howe the Bishop being Iudge, should be vsed as a witnesse in the same cause, wherein he is a Iudge; there is no colour in al the lawe or practice, that I haue knowen, or can ima­gine. Except it be in a matter done in his owne presence, whiles he sits iudicially; and appearing also notoriously vnto others there besides himselfe; or espied onely by himselfe.

Now if the preiudice to the partie be not very great, why the Iudge alone, aswell as any cōmon person there, that might hap­pen to haue heard it or seene it, may not be trusted for a sounde witnesse; I for my part can see no cause. Hath the Note-gatherer neuer heard of a Cut-purse espied by the Iudge himselfe sitting on the bench, by him caused to be staied, and being endited vpon his relation, presently tried and condemned?

For a third inconuenience hereof, hee assigneth: that it is a meanes to drawe causes from the Common lawe, when neither in the Citation nor Bill, men shall knowe the cause, why they be conuented: and so are depriued of the meanes of suing a Prohibition at the Com­mon lawe. This he termeth Addere forum foro.

Yet enquirie by office prescribeth no such generalitie of Cita­tion. And therefore if this were true, it maketh nothing against that proceeding. But that a Libel doth not conteine the cause of the conuenting, is a very strange, and no lesse bold assertion. If his meaning in this obiection be, that a man cannot procure a Prohibition, till he haue the copie of the Libell; thereby to shewe the temporal Iudge, that something is there in demaunde or pro­secution, that is not of ecclesiasticall Conisance: then he might more plainely haue declared it. And for mine owne opinion, hereunto I wil agree, that (in most cases) the law is so; howsoeuer late practice be otherwise.

[Page 90] For when the ecclesiasticall Iudge denieth the copie of the Li­bel where he ought not, to the preiudice of the partie, in this re­spect: then the statute of K. Hen. the 5. and a writ therevpon fra­med, doth relieue him. And denying copies of libels, needed not to 2. Hen. 5. ca. 3. Register. pag. 58. haue bin cōplained of at that time as a grieuāce, if the law had bin, that vpon the parties owne suggestion only, without sight of the Libell, the temporal Court might at pleasure award a Prohibition. So that this not expressing of cause in the Citation, and denying copie of the Libel, is so farre from being a meanes to drawe causes from the Common law vnto those Courts; that it is of it selfe suffi­cient to bring thither by Prohibition causes originally being of ec­clesiasticall Conisance.

But what serueth this not expressing of the cause of conuenting, (if it were so) for condēnation of all proceeding by Office; seeing this might no lesse happen to be omitted, though the prosecution were at the instance of a partie or Accuser? Yet further to satis­fie both him and others herein; Citations in causes Criminall out of ordinarie Courtes, Letters missiue, and Attachements out of Commission Courtes, doe all import, that there be misdemeanors of ecclesiasticall Conisance, to be obiected against the partie con­uented. Albeit to expresse al the particulars, would be both ouer tedious and chargeable to the subiect, and (in many respectes) inconuenient besides. And why should this be accounted any more inconuenient or vnreasonable, then writtes of sub poena out of the Starre-Chamber or Chauncerie are, which conteine not so much particularitie of the matters obiected, as those Citations in ecclesiasticall Courtes?

In the reigne of K. Hen. the 8. there were contrary writings published betwixt S. German a common lawyer, and Sir Thomas More, about proceeding onely against heresie ex officio mero; and without any of those allowed meanes precedent, which (by law) may open a way to such Enquirie. These reasons of Sir Thomas Mores, the Note-gatherer assaieth summarily to answere; and I minde not to defende; further then I finde them coincident with some by me vsed, and not fully answered by him. And the rather, because hauing not Sir Th. Mores bookes in readines with me, I cānot know how truely they be gathered: & for that proceeding of office against other crimes, & vpon allowed groūdes by lawe, [Page 91] may stand sound and good; though all that which Sir Thomas More defendeth in dealing against heresie (without Present­ment, fame, &c: especially where the penaltie is so grieuous) were to be condemned for vniust and vnequall.

Sir Thomas More in iustification of such proceeding against heresie, alledgeth the like course to be holden, in ministring of temporall Iustice, viz. that Iudges vpon secret information, binde a man to his good abearing, and awarde out a Writ to enquire De ge­stu & fama, against any man whome they please: and that the Lorde Chaunceller vpon like secret information, putteth men out of Com­mission. For answere of these, the Note-gatherer saith thus: But they doe not without matter prooued, put a man from his free-holde, or in danger of life, losse of goods, &c: as Ministers be depriued, and put from their freeholde. By which his answere appeareth, that he yeeldeth these obiections (in facte) to be true: and the conse­quence cannot be denied For if the same course be iust and rea­sonable in them; why should it be vnreasonable in others? As for the grieuousnesse of the penaltie surmised to be in the one greater then in y e other; this is not material to make it of iust, vn­iust. For Magis & minus non variant speciem: more or lesse makes not things to be of diuers kindes. And what will he say then, against that Criminall proceeding of Office, where neither life, free-holde, nor goods is called into question? Shall that then (in his iudgement) be reasonable and iust? Furthermore, what doth this particular recrimination hinder the conueniencie of proceeding by office? For doth that course of proceeding teach or require, that men be punished without any matter proued? There­fore if this should happen so to be; yet is it onely the personall fault of the men, and not of Law, which establisheth proceeding ex Officio. For though an Accuser should prosecute; yet the Iudges (if they were so vngodly minded) might (de facto) offer this vniustice. Yet this ought not to be any cause to condemne all proceeding by Accusation, to be vnreasonable or vnequall.

But this is so farre from any tolerable answere vnto those ob­iections: that it is (in trueth) nothing else, then a very vntrue and [...]anderous imputation, that will not, nay cannot be iustified. What? Ministers depriued, yea put in danger of losse of life, or goods, without any matter proued? I cannot cōiecture what further mea­ning [Page 92] herein he may haue, otherwise then to slander: except per­haps he thinke, the Notorious wilfull contumacie of those that re­fused sundry times vpon their oathes to answere Articles obie­cted on her Maiesties behalfe (for matters of their owne facts, or within their knowledges, and not touching either their liues or limmes) so farre as by Lawe they were bound; not to be a matter sufficiently appearing and proued to the Iudges: whereas such their contumacie and contempt, euidently appeared to the honourable persons, Iudges, and other sage, prudent, and learned men, not onely to be most vntolerable; but was iudged by them, to tende also vnto the vtter ouerthrow of the whole fundamentall iustice of this Realme, if it should be suffered.

I do read in deed, Inter epist. Caluini in folio: pag. 421. & 422. that the Ministers of Geneua do in a letter of their owne, written to the Ministers of Berne (against one Cum­perell a Minister also of Geneua) testifie no lesse of the Eldership there, then here is traduced. For because Cumperell Two meanes to occasion En­quirie and exa­mination of Of­fice, euen at Ge­neua. did not an­swere directly (as they thought) before the Consistory or Eldership vnto their Interrogatories by them of meere Office ministred vn­to him (whereof two concerned his thoughts, and the very cogi­tations of his heart) so that they helde him thereupon as conui­cted: and for that there were vehementia indicia, great presumpti­ons, with a common fame, that he being ordeined Minister for a pa­rish in their territorie, called Drallian, had neuerthelesse vnder hand sought to place himselfe in the territorie of Berne (for this was his heinous fault whereof they then enquired:) Therefore the Consistorie pronounced, Quòd erant iustae causae, cur Ministe­rio abdicaretur; that they were iust causes to depose him from his Ministerie. So that albeit we haue no such Lawe or practise in England (thanks be to God, whatsoeuer the Note-gatherer saith) to condemne a man, without any matter proued: yet some other Churches (whom he & his Consorts doe more admire, then their owne) thinke they haue warrant ynough, euen vpon a fame and some tokens, to depose a minister, when they shal find that course meete to be vsed.

Another reason in that behalfe is alledged by Sir Th. More; that the Lords of the Counsel vpon secret information call men of Office, without any prosecutor, vnto examination of matters cri­minall. To which the Notegatherer answereth thus: viz. that this [Page 93] is, in matters concerning the state of the Prince and of the Realme; in matters of allegeance: and that a Iesuite or Seminarie priest may be examined by othe, quia ipso facto a traitour.

First, all the matters that their Lordships doe, or may examine, are not of such hie qualitie. And if they were, it is not the impor­tance or hemousnes of the matter, that can make Iustice of that, which is Iniustice in it selfe; as was touched by me afore. And so be also sundry matters dealt with, in some Courts Ecclesiasticall neerely touching the state of the Prince and Realme. Besides, it is a very strange allegation to say, The Iesuits or Seminarie Priests may be examined by othe, quia ipso facto traitours. As if all, or any traitours, might be examined by othe of their treasons; conside­ring, that to examine the partie by othe, of matters touching losse of his life, or limmes, is flat contrary to the Lawes, policie, and custome of this Realme in both sorts of Courts: yea and perhaps contrarie to diuinitie too, as the Treatisoure his owne Camerade (though fighting in the selfe same quarrell and following the same Coloures) can and doth tell him.

That which hath bene said to these two last obiections, may also serue to retoyne vnto his replie, made against the obiection, that the like course is vsed by Martiall Lawe.

But if this proceeding of office by Speciall enquirie be so reaso­nable and oftentimes necessarie; how commeth it to passe (may some man aske) that the names of Inquisition and Inquisitours be holden so odious? Admit those names be odious vnto many: yet this (without further reason) may not serue to cōdemne y e course it selfe. For many sorts of men be also odious, perhaps without any iust desert or particular abuse in themselues, other then for their office sake, who are not therefore wholly to be reiected: as, Informers of concealments of poenal statutes, Takers, Purueyers, Bai­lifes errand: yea and some administers of Iustice too, if they be any thing exact & seuere therein. Neither is this odiousnes generall against all Inquisition whatsoeuer; but only against one particular course of proceeding thereby in the crime of heresie practised in some Popish dominions: but of al other most rigorously and cru­elly in Spaine; yea (as is supposed) farre beyond their owne Com­mission, that they haue from the Pope: and yet their Commission is also in many points exorbitant from all Lawe and reason.

[Page 94] A writer in the Ciuil Law assigneth a speciall cause of the hate­fulnes vnto the Cōmon people of the Spanish Inquisition for mat­ters of heresie. Albericus de Rosate. in rub. C. de haeret. nu. 6. Inquisitors of heresie (saith he) are hatefull and su­spected of all Lay-men, because of a long time it hath bene beleeued, that they are wont to proceede vpon most light suspicions, especially a­gainst those that be riche. Nay in deede how can it be otherwise, seeing their dealing by that Inquisition is especially against men of greatest wealth; because vpon their condemnation their goods and lands are confiscated to the house of Inquisition: that is, to the Inquisitours themselues?

Now seeing none of these strange courses be vsed in any Cri­minall proceeding in this Realme; there is therefore no iust cause here, to make it hateful vnto any. Yet the Treatiser doth imagine this kind of proceeding to be more frequent in Courts ecclesiasti­cal within this Realme in respect of the Iudges owne fees, there­by arising. For answere whereof: First in Courts of Commission Ecclesiasticall (against which some haue the greatest edge and egernesse) the Commissioners haue no fees at all; no not so much as iiij. s. towards their charges, that Iustices of Peace be allowed by Statute, at such times as they serue at Sessions of the Peace, &c: whereas Commissioners are employed, and serue therein freely at their owne charges, with losse of time and intermitting their owne businesse, only of dutie and conscience to her Maiestie and to the Common weale. So that if it were not in this respect, the Commissioners ecclesiasticall both might and would sit still, with more ease to themselues, and lesse obloquie; howbeit by the worst of euery sort of Subiects.

As for Courts of Ordinaries, I knowe some of the greatest of them in England, that haue not two matters ex Officio mero pro­secuted in them, in three yeeres space. And for such ordinarie Courts as haue some moe causes of that nature: alas, what great fee is it, for the Iudge ecclesiasticall to haue iij. pence for a Citation, or vj. pence for examination of a witnesse, or vpon an acte of Ab­solution, or such like; to make him desirous (in that respect) to entertaine the cause; seeing hee will hardly be excused with xx. pound charges (that euery such seuerall matter may put him vnto) if an Appellation be brought vpon any errour or mista­king, that may happen to be found, in his proceedings of Office? [Page 95] Besides that, the like fees are due to the Iudge, no lesse vpon the prosecution of a partie, then they be vpon proceeding by office: and therefore none inconuenience heereupon more in the one course (which this opinion alloweth) then there is in the other.

Yea, may some say, all prooue not offenders, that be so cal­led, and that are thereby put vnto trouble and charges. It is true; yet meet to be called, if the law be obserued in this point, that there must be (afore) a sufficient ground of inducement thereto. Neither doe all those prooue to be offenders, that are prosecuted by a partie or by an Accuser; and thereby be put to no lesse charges and trouble, euen when (besides the malice of the preferrer) there was no colourable ground of the accusation. The like may be also truely said of many others, who be called euen before temporall Iudges and Iustices of the peace, either by warrant, writte, or otherwise. Yet is this no cause, heereupon wholly to disallow these conuentings. And there is no more reason to finde fault with the fees due vnto the Iudges ecclesia­sticall, in regard that euery one which happeneth to be conuen­ted, prooueth not guiltie of the matter imputed to him: then there ought to be with the fees, that are due to Iudges in tempo­rall Courts for iudiciall or originall writtes &c. because many of such suites be commenced (as often falleth out in the end) with­out good matter on the Plaintifs or Informers behalfe. Thus much in answere to the obiections made against the reasona­blenesse, and conueniencie of proceeding by Office.

CHAP. XI. That the lawes of the Realme do vse Enquiries and proceedings ex officio, and that they allow it in Courts Ecclesiasticall, with an­swere to some obiections that are made to the contrary.

IN the next place I am to shew, that dealing by way of enquirie or enquest, ex officio, without suite of a partie; called by the Common law Office del Court, are both mentioned and pra­ctised by the lawes of the Realme. In Mag. Charta. cap. 26. Magna Charta mention is made of a writ of Inquisition of life and member. In an olde statute of king Edward the first, a [Page 96] seuerance is made betwixt the suite of the King from the suite of a partie: and the King is thereby (as it were) bound to sue, and to lend his office, for prosecution of the misdemeanours. For it is 3. Ed. 1. cap. 13. thus prouided, that if any take away a woman by force &c. the King at his suite that will sue, shall doe common right within fortie dayes: and if none commence his suite within fortie dayes, the King shall sue. Which suite being in his owne Court, and before him­selfe, must needs be of office. For where there is Inquisitio, Enqui­rie, there the King is partie: as by another statute of the same Star. de Inquis. capiend. 33. Ed. 1. Kings dayes appeareth: De Inquisitionibus coram Iusticiarijs qui­buscunque capiendis, & in quibus D. Rex est pars qualitercun (que) con­cordatum est &c. In a statute of 18. Edw. 3. pro Clero. c. 2. king Edward the third, arreign­ment at the suite of the King (which is ex officio) as a distinct mat­ter from that which is at the suite of a partie, is spoken of: and so 42. Ed. 3. c. 4. are also Commissions of inquisition afterward. Furthermore in K. 8. H. 6. c. 16. Henrie the sixt his time, en quest or inquisition of office is mentio­ned: and in sundrie 11 H. 7. c. 25. & 1. H. 8 c. 12. statutes both after and afore, which are needlesse to be repeated. For (as I take the matter) euery en­ditement is an Inquisition: which if it be at the prosecution of a partie, it is, as officium promotum: but if it be by the Iudges, for the Queene (in respect of the interest of the Common-wealth) then is it officium merum or nobile, as afore is declared.

This maner of dealing, in sundrie cases is so vsuall at the Com­mon law; that there be whole titles made in the Abridgements, touching Inquisition and office del Court: viz. of enquiries and matters done by the Iudges vpon their discretions, without the instance of any partie.

In reports at the Common law, we finde it said, M. 20. H. 6. 38. that Iudges ex officio did charge an enquest to make enquirie of their owne collusi­on, supposed to be committed among them. 34. Edw. 3. 3. Further: One of a Iurie, that departed from his fellowes after that he was sworne, was exami­ned at his returne by the Iudges ex officio, whether he had since spo­ken with the defendant or no? Likewise it is said, 11. H. 4. 17. that the Court ex officio ought to award an Assise to enquire (whether the disseisin were with force) by reason of the kings fine. In the booke of Assis. lib. 16. pag. 4. Assises: The Court ex officio sent a man to prison, because they found he had not made fine. And a great number of particular articles are there set down, wherupon Assis. lib. 27. pag. 138. enquest or inquisition ex officio in the Kings bench [Page 97] is to be made. We finde of elder time by Bracton. li. 4. c. 8. fol. 302. Bracton, where the appel­lor that prosecuteth, makes default or dieth, there the king may proceed ex officio. And againe there: Let the king ex officio suo, & for his peace proceed to inquisitiō, for the suspicion that he hath of the appeale.

Moreouer, where a Parson and Vicar were both willing e­nough to sue before the Temporall Iudges: yet M. 22. Ed. 4. 23. the Iudges fin­ding the plea to be of Ecclesiasticall iurisdiction, did ex officio, at no mans instance, dismisse it out of that court, as not perteining to their iurisdiction. And do we not often see the ordinarie course for en­ditements, much assisted and holpen by the Iudges and Iustices search, examinations and dealing therein, (of office and duetie onely) both in treasons & felonies, and in other causes of more priuate interest, that be preferred by others? doe they not also vpon their owne discretion, & for causes knowen to themselues, without prosecution of any partie, (and so ex officio onely) often times commit persons of suspected behauiour to prison; and not dismisse them, till by a writ of enquirie de bono gestu & fama, they be found worthie to be set at libertie? So that by these few, and sundry other that might be brought, it may appeare; that pro­ceeding and enquirie ex officio, is so farre from being, so much as a diuers course from the lawes of the Realme, that it is often pra­ctised thereby, when no partie besides the Iudges themselues, do entermeddle.

But it is not onely by that law practised, but also allowed (by it) for a lawfull course of proceeding in Ecclesiasticall Courts a­gainst crimes and offences. By a statute of 2. H. 5. cap. 1. Henrie the fift, such an Inquisition of Hospitals of the Kings foundation, is appointed vn­to Ordinaries: and in those that be of any other mans foundation, Ordinaries are authorised not onely to enquire of the foundation, e­state, and gouernance of them, and of all other matters necessarie in that behalfe, but also to make thereof correction & reformation, after the lawes of holy Church, as to them belongeth. So that if Ecclesia­sticall lawes doe warrant this enquirie and course of reformation and correction, then this statute will giue force vnto it. By 1. H. 7. cap. 4. an­other statute: If any Clerkes be conuicted of incontinent liuing in their bodies (being but afore perhaps openly noised thereof) before whom conuicted? afore Ordinaries. How? by examination, & o­ther lawfull proofe requisite by the law of the Church, they may by the [Page 98] Ordinarie, at his discretion, be committed to ward. Which toge­ther with the committing, must needs be both done ex officio: for that no partie to prosecute is there mentioned to be required; and because the Ordinarie thereby may proceed, vpon the pub­like infamie noised abroad.

The statute of 23. H. 8. ca. 9. Citations made afterward, mentioneth a case where an inferior Ordinarie may be partie to a suite holden afore him: which may aswell be vnderstood in a cause mooued of Of­fice for an offence, as in any other matter. But more plainely afterward: for there the very word ex Officio is vsed; and it is prouided, that the forfeiture of that statute, for calling a man out of the iurisdiction where he dwelleth, shall runne against him that cited, whether he proceed by vertue of his office, or at the suite of any person. Whereof may be gathered, that the lawes of the Realme take knowledge of that course ex officio to be as warrantable as the o­ther, made at the suite of a partie: so that other requisites be ob­serued. And though the statute against Heresie stand 27. H. 8. ca. 10 now re­pealed, yet it may serue to prooue, that not onely inquirie, but ex­amination also of the partie himselfe, in a visitation by Ordinaries (both which are done ex officio) is holden for a course of the law ecclesiasticall not to be condemned or disallowed by the lawes of the Realme.

In a statute touching 1. Ed. 6. cap. 2. Ordinaries seales now also repealed, certeine ecclesiasticall causes be rehearsed: among which, causes of instance betwixt partie and partie, are plainly seuered & distin­guished from causes of correction: thereby giuing vs to vnder­stand also, how rarely causes of correction be prosecuted by any partie; but by the Iudge ecclesiasticall himselfe alone proceeding of Office. And 1. Eliz. cap. 2. by a statute in the first yeere of her Maiesties reigne, made for vniformitie of Common prayer, Ordinaries are au­thorised to inquire and to punish &c. the violation of that act, as heretofore hath bene vsed in like cases, by the Queenes ecclesiasticall lawes. But that an enquiry is alwayes of office, and what the lawes ecclesiasticall be in this behalfe, and how the continuall vse hath bene, is shewed afore: so that none need remaine doubtfull in these points.

The very Common law not onely taketh knowledge of this course holden in Courts ecclesiasticall: but in some respect doth [Page 99] also priuiledge it, euen aboue the proceeding by a partie. 7. H. 4. 18. For if an Ordinarie doe sequester goods of the dead for any contumacie, or ex Officio; which giueth no possession to him, the court spirituall (in this case) shall haue Iurisdiction. And it seemeth by that case, the lawe to be otherwise, when it is at the suite of a Partie. So in a case M. 20. E. 4. 10. of violent hands laied vpon a Clerke, both Brian and Litle­ton held (no man gaine saying of it) that the spirituall court may pu­nish it ex officio, but not at the suite of the partie: least the beater thereby bee kept from his absolution, till some temporall duetie bee con­tented and paied. And Mordant T. 12. H. 7. sol. 22. was of opinion; that if a man bee sued by a partie pro laesione fidei in not paying a summe of money promised, there shall lie a Prohibition: yet if the iudge ecclesia­sticall shall doe it ex officio, that then no Prohibition shall lie. Neither doeth any gaine say him herein. Vnto which opinion of his, ano­ther iudgement giuen in the Assis. lib. 22. pag. 70. booke of Assises in like case, see­meth to accord. To like effect also Fitzh. nou. nat. breu. tit. Consultation, fol. 50. &c. Fitzherbert reporteth, that an Ordinarie may cite and proceed against a man ex Officio, pro vio­lenta manuum iniectione in Clericum: likewise for tithes detained in the time of vacation of a benefice: so he may cite also such as re­fuse to maintaine a Curate or Chaplaine: and for fornication or like offences.

Fitzherbert Nou. nat. br. pag. 64. E. in another place also thus writeth: If a man (saieth he) be sued in court Christian, or if the bishop sue and cite him ex Officio and excommunicate him, &c. And againe Ibid. litera F. thus: Signi­ficauit lieth not, but where the partie is excommunicate by name, ma­iori excōmunicatione: vpon a spectall suite against him ex Officio, or by a partie: therefore both are alike lawfull, and allowable by the common lawe. And that for wrongfull detaining of tithes in time of vacation of a benefice, the ecclesiasticall Iudge may cite and proceed ex Officio, doeth plainly appeare euen by Liberties of the Clergie, out of the lawes of the realme, by Iohn Gooddall. Printed by Rob. Wier. one of those books which the Note gatherer doth alleage against this course; though (in trueth) it haue no one word tending that way. Belike he thought no man had the booke but himselfe; because (it may be) he casuallie happened vpon it in rifeling amongst other olde bookes cast aside in some Stationers shoppe. To like effect the same booke hath; that Ibid. if a man bequeath a bullocke to a church for reparation of it, or of the churchyard: if he that hath him will not de­liuer him, either the Church-wardens may sue for such detinue in a [Page 100] court ecclesiasticall, or the Ordinarie may ex Officio call him, and vrge him to deliuerie. And the like is there testified (being taken out of the Register) in a more grieuous crime of ecclesiasticall cognisance. For (saieth he) Ibid. ex Re­gist. in br. orig. pag. 45. a. if the Iudge ecclesiasticall cite a man of office for fornication, &c. & a prohibition or appeale being brought, he after renounceth all delayes, and submitteth himselfe: the Iudge shall proceed ad poenam Canonicam imponendam, vpon a consul­tation or writ vnto him to be directed.

Likewise the Register is very plentifull in this behalfe; as first where Berous in rubr. de accusa­tionibus, nu. 10. Enquirie (which is alwayes ex officio) is not onely allow­ed, but commanded to be made by a Iudge ecclesiasticall: Register, pag. 54 b. Uo­bis mandamus, quòd habita super praemissis per Inquisitionem & alios modos informatione pleniori, &c. and for the very word of procee­ding ex officio: as where it was written vnto the Officiall of the court of Canterbury or his Commissarie thus: Register. pag. 57. b. Cum vos nuper ex Officio vestro, fama publica referente, quod T. &c. vestrae iurisdictio­nis C. in amplexibus fornicarijs tenet, ipsam corā vobis in curia chri­stianitatis pro correctione animae suae in hac parte citari feceritis, pro­cedentes contra eum (ibidem) iuxta Canonicas sanctiones, &c. vobis significamus, quòd in causis praedictis, ex officio vestro, quatenus ad correctionem animae, &c. procedere & facere poteritis, quod ad offici­um vestrum speciale de iure noueritis pertinere, &c.

Likewise in another Consultation it is conteined thus: viz. Cum vos Register. pag. 57. a. nuper (vt acce [...]imus) iuxta officij vestri debitum obieceritis Io­anni de E. parochiano de C. quòd ipse, &c. detinet, &c. vobis significa­mus quòd in causa praedicta quatenus adrestitutionem, &c. & ad poe­nam canonicam eidem I. pro detentione eorundem legatorum impo­nendam coram vobis agitur licite procedere &c. poteritis. And a­gaine thus: Cumper Register. pag. 54 b. vos contra H. de Lyndesey Notariū publicum super Vide 3. part. c. fornicationis crimine infra iurisdictionem vestram commisso grauiter infamatum, tum super dicto crimine, quam super eo quòd iu­risdictionem vestram per tumultum & rixas, executionésque vestras in hac parte debitè faciendas nequiter impediuit, ex officio ad animae suae correctionem fuisset processum, &c. vobis significamus, &c. quod procedere poteritis. Mention is also there made in a precedent of a Consultation, of proceeding Register. pag. 51. b. ex officio ad promotionem parochiano­rū, in these words: Cum ex officio ad promotionē dictorum parochia­norum, [Page 101] traxeritis in placitum, &c. vobis significamus, quòd procede­re poteritis, &c. Furthermore, there is mention made of one, who by that course was proceeded lawfullie with, for refusing to pay his vsuall oblations, to be confessed to the Priest, and to receiue the Communion, in these wordes: Register. pag. 50. b. cum ipsum ex Officio vestro coram vobis ex causis praemissis euocari feceritis, ad procedendum contra eum, ad poenam corporalem sibi pro correctione animae suae in hac parte infligendam, &c. vobis significamus, quòd in dicto placito, sic coram vobis ex Officio vestro, moto; procedere & vlterius facere poteritis in curia Christianitatis, quod ad vos, & ad forum ecclesi­asticum noueritis pertinere, prohibitione nostra non obstante. And vpon a prohibition brought by a knight to his Ordinarie, that proceeded ex Officio agaynst him, for certaine his crimes and excesses; a Consultation was Register. pag. 44. b. granted: the wordes of the Regi­ster are these: Cum vos nuper ad corrigendum crimina & excessus subditorum vestrorum iuxta Officij vestri debitum procedentes, R. de C. militi obieceritis, &c.

The like consultation is there founde agaynst a Chaplaine proceeded with ex Officio for fornication; that had also brought a prohibition. The wordes Reg. pag. 45. a. of the Writ vnto the Ordinarie be these, videlicet, Cum vos T. de W. capellano, ex Officij vestri debito obieceritis, quòd ipse carnaliter cognouit, &c. in animae suae periculum & scandalum aliorum, vnde contra eundem ad correcti­onem animae, &c. As in other consultations there, after prohi­bitions (vpon vntrue suggestions) had bene purchased.

An example is also Reg. pag. 51. a. there of allowing (by Consultation) of proceeding ex Officio; to the ende of enioyning corporall pu­nishment; agaynst one that laied violent hands vpon a Clerke; whereby hee incurreth (saieth the Writ) excommunication ip­so facto.

Likewise an Reg. pag. 51. b. & 52. a. Ordinaries proceeding ex. Officio, to the in­terdicting of a Church, and to the inflicting of other Canonicall paines for with-holding and not finding of a Chaplaine or Cu­rate to serue, (according to an ordination or reall composition there­of made) is there approoued lawfull by Consultation gran­ted. And so is the like proceeding of Office allowed for Reg. pag. 51. a. tithes with-holden, falling due to the Bishop and Archdeacon in the time of vacation of the benefice; for by the lawe and custome [Page 102] then, in Changed by the statute, 28. H. 8. most Dioecesses of this realme, tithes of vacant benefices were due to them.

In the writ of Consultation alleaged afore out of the 57. page of the Register for allowing proceeding ex Officio against a fornica­tor: it is Reg. pag. 57. B. also conteined; that the partie before prohibition by him brought, had submitted himselfe: for which cause of the parties violating his owne submission, and for his contempt mandatorum sibi factorum: the Ordinarie is authorized and war­ranted to deale against him, (as afore he had begun) ex officio. By all which may appeare, both the practise of Inquisition, and proceeding ex officio in some cases by the lawes of the Realme, and the allowance also by those lawes, of such course holden in courtes ecclesiasticall both in offences and in other causes also, that be neither testamentarie nor matrimoniall.

But it may perhaps be sayd, that great abuse may hereupon folow, if the Iudge list to vexe a man wrongfully: for he may pre­tend strong Euidence and Information or a common fame to be a­gainst a man, or such like afore shewed, whereof he is crediblie aduertised. Well, if it be but so much, that the ecclesiasticall Iudge (when he is called by his superiour) must be able to make proofe of some such: it is more then a Iudge or Iustice of Peace neede shew, why he calleth any man into question, or bindeth him to the peace, or to the good behauiour. And what lawes can be de­uised, but they may be abused? whatsoeuer hath an vse, hath also an abuse, sauing vertue, saieth Aristot. in Rhetoric. Aristotle. Yet if he be an Ordinarie (as hath bin aforeshewed) such grounds of his proceeding must appeare in Acts Iudiciallie, or be well prooued: or else (vpon an Appellation) his proceeding is to be refourmed.

Besides, is it not more probable that a Partie which will ac­cuse, shall doe it of malice to vexe oftentimes an innocent, and to bring him into perill; then a Iudge who reapeth no commodi­tie thereby, but satisfaction of his duetie? and is not he more like to deale in these causes with sinceritie, then quilibet è vulgo? yet by this opinion, such are permitted to accuse and to preferre mat­ter against any, though no fame nor other matter, no not so much as suspicion doe appeare against them.

Is it not then all one, whether the innocent man be wrong­fully vexed by the Iudge, or by a priuate person, who (in a maner) [Page 103] professeth, that he doeth it of malice? neuerthelesse for all this in­conuenience and abuse that may happen, it will not be thought conuenient (I trust) to damme vp the way from euery man both Iudge & partie, to preferre suites against offenders. For if it should so be, in short time there would bee neither Iudge nor other, but lewd persons onely; and they might liue as they list.

Yea, but it seemeth vnreasonable (will some man say) that a man should be called into question and not to know his Ac­cuser. Surelie if the way of proceeding by Accusation be taken, he is to know him: but when by Enquirie, though for the most part the Denouncer is knowen, yet there be many weightie and very considerable causes, why euen witnesses in cause of heresie: and much lesse those that gaue the information, should not bee knowen; which euerie man of himselfe, without rehearsall, can weie and call to mind.

Besides, this obiection maketh nothing against all proceeding ex officio. For when it is grounded and instituted vpon a Present­ment by officers speciallie appointed, their names are knowen to him whose processe is made. Yet I must tell you, that hereby it commeth oft times to passe, that meane men in parishes abroad, and for very foule crimes, do rather make choise to be bold with their oath and conscience, then with a delinquent, whom they haue some occasion to feare.

But (I pray) what necessitie is there (in Iustice) of knowing the Relatours? may not a Iurie endite a man without any cause openly appearing, as when the matter is either knowen to some of them aforehand, or the Euidence (as some times happeneth) is not giuen openlie? which cases happening; the partie endited shall neuer know who gaue the information, because they are sworne to keepe secret the Queenes, their owne, & their felowes counsell. Which course for the trouble of the partie supposed to be delinquent, doeth amount to as much, as if the Iudge ex officio mero had done it.

When the Lords of the Counsell haue a supposed malefactor in examination, are they bound in Iustice, or were it but good poli­cie to signifie vnto him, who it is that giues the information; and to confront them together at first dash? but howsoeuer these (by circumstances) should be thought fit to be caried, it is neither to [Page 104] nor fro, to the condemnation of all proceeding vpon the office of the Iudges onely, as vniust, whether a man know or be ignorant, who made the Denunciation.

CHAP. XII. A Replie to the Note-gatherers answers, giuen to certaine rea­sons that haue bene made long agone, for to shew the like course to be also practised in temporall courtes: and an answere to his reasons brought to prooue, that in proceeding of Office, there is some contrarietie to the lawes of England.

SIr Thomas More in his aforesayd Treatises (to shew that it is not simply vniust, vpon some oc­casion to conceale the names of those that gaue the information) alleageth, that in like sort at the Common law a man may be endited, & none e­uidence openly giuen at the barre: and that the en­diters be bound to keepe the kings counsaile close. To this the Note­gatherer answereth; first that before the partie answere, or bee ar­raigned, he knoweth the matter wherewith he is charged. So doeth he also in ecclesiasticall courtes, so soone as the matter is obiected vnto him. Secondly, that the inditement goeth to particular matter, & it must be certaine. And so do articles also in a court ecclesiasti­call. Thirdly, that they which indite him, shall not be Iudges of him nor arraigne him. No more shall they who present or denounce a man to an ecclesiasticall Iudge, be Iudges of him: and therefore (whatsoe­uer the Note-gatherer say to the contrarie) it is not aliter ex officio. Fourthly, that Iudges in such a case are to proceed circumspectlie. And so must they doe in other cases as well as this: and so must ecclesiasticall Iudges also. Fiftlie, that two witnesses must be at the arraignment, vnlesse the partie willingly confesse the same. And so it is in courts ecclesiastical. For without the parties confession, or two witnesses; none may be absolutely conuicted. And yet this which he here saieth, is not generall in all arraignments. For the statute 1. Edw. 6. c. 12. made the 1. yeere of K. Edward the 6. (which hereunto he vou­cheth) mentioneth to this purpose onely treason and misprision thereof. The said statute is also repealed since by Q. Mary. The other statute 1 & 2. Ph. & Mar. cap. 10. 1 & 2. of Philip & Mary, that he alleageth, is onely for such triall of treasons, that be made treasons by that Act. For [Page 105] the self same Act doth appoint, all other trials of treason to be made according to the due order & course of the Commō lawes. But though it were so, that at all trials two witnesses should of necessitie be present: & though it were admitted, that his other foure answers were true in fact, & that the courses of proceedings ecclesiastical were to the contrary: yet these do not any way impugne or ouer­throw sir Th. Mores reason, viz. that mē may be endited, & not know who gaue the euidence or preferred it; in like sort as some know not who preferred vp matter of crime against them into courts ecclesiasticall, and therefore this must needs be wholy impertinent, and besides the purpose.

Vnto another reason of sir Th. Mores (grounded also vpon re­semblance of the practise at the Common law, vnto the ecclesiasti­call in this behalfe) viz. that a man may be at that law arrested and imprisoned, onely vpō suspicion: he frameth two answers. The first of them is, that at the common law there must be a fact precedent, where­by a cause of suspicion must be grounded: otherwise, there lieth an actiō of false imprisonmēt. What? If an offence appeare to be done, shal this be sufficient (without all peril) to ground a suspicion against any man whomsoeuer, that it was he which did it, & so to impri­son him? Neither yet is it generall, that a fact must be precedent, before a man be arrested. For if it be a fact of such qualitie & na­ture as leaueth traces & signes after it; as murder, Coining, and such like, which be called by Ciuilians, facta permanentia; in thē it is true that a fact must be precedent. But in such facts, as leaue no such traces behind them, so y t it is not certain whether they be cō ­mitted at all or not, & yet probabilities thereof doe appeare (as of speaches, secret treaties of cōspiracie & treason:) for such facts a suspected partie may be arrested and imprisoned, though it be not assuredly knowen, whether the fact be committed at all, or not. And these are called facta transeuntia. Neuerthelesse, this is not in any sort, an answere vnto sir Th. Mores reason. For admit that a fact must alwayes be precedent: neuer the later this remaineth true, that a Iustices onely suspicion may serue to arrest and imprison a man. And yet the law ecclesiasticall (for which More reasoneth) doth in trueth require strōger grounds for enquitie special, thē the Iudges only suspiciō, as is afore at large in this secōd part declared.

The Note-gatherers later answere vnto that reason of Mores [Page 106] is; that a felonie or murder being done, and a fact manifest, the partie apprehended and suspected, knoweth that he is to answere that facte, and not other by-wayes, as is vsed in the ecclesiasticall proceedings. Trulie, of all that euer I heard, these answeres be by-wayes, and besides all way too, of any reasonable answering obiections. It may be that the partie himselfe (especiallie if he be not guiltie) knoweth not (till hee be asked) the very particular cause of his apprehension.

But it will be sayd, that vpon his examination, hee learneth what it is. Why sir, and so doe all that be conuented in courtes ecclesiasticall know by their examination, the matter obiected. Then where is the difference and the by-way that this man so tal­keth of? But will you see his clerkelie vayne of reasoning here­in? For it is, as if he had gathered it thus: viz. A man arrested, knoweth that he is to answere a fact which is committed: Ergo, Al­beit at the common lawe a man may bee arrested vpon suspicion: yet proceeding ex Officio is vnlawfull, how good grounds soeuer there be for it, farre sounder then suspicion.

For another inconuenience of proceeding by office, importing with all a Contrarietie to the lawes of the Realme, the Note-ga­therer assigneth; that thereby the Accessarie may be punished, and the principall may escape; which is contrarie to the Common law. The consequence hereof he goeth about to prooue thus: For that (as he saieth) the Principall may (in those courtes) be an Informer and a witnesse both against the Accessarie. By which saying, his slender skill or experience in those lawes appeareth. For it is most notori­ous, that there is no better nor more vsuall chalenge & exception against an Informer or witnesse; then to alleage quod est particeps vel socius criminis praetensi. Albeit euen at the Common lawe, we v­sually see partakers and complices in coining, in other kindes of treason, and for sundry hainous crimes (especially which are se­cretly contriued) to be admitted to appeach and to be witnesses, and to giue euidence against others their partners.

He affirmeth also, but maketh no shew of proofe thereof; that hereby the two Iurisdictions be confounded; and that proceeding of of­fice is derogatorie to the lawes, liberties, and customes of England. In which respect, it is sufficient that these be as easilie by vs denied, as they be barelie, boldly, and vntruly by him auouched.

[Page 107] He further allegeth in three places (as if it were a matter very considerable) out of Hall, and the Actes and Monuments of the Church, that by the statute of 25. H. 8. cap. 14. all proceeding of Office is repealed; and calleth the statute against Heresie, 1. H. 4. the statute ex officio, as if it had bene vnknowen before. First, that very statute 1. Eliz. cap. 1. it selfe of H. 8. standeth repealed. Secondly, it is very vntrue, that it did at any time repeale proceeding of Office. For it doth not so much, as once mention it. And there­fore what any writers do name the sayd statute of H. 4. thereby repealed, as I haue not sought, so is it not materiall; seeing they misunderstand it, if they so write. Yea, the Notegatherer himselfe yeeldeth, that the sayd statute of K. H. 8. doth establish procee­ding of Office, if he vnderstand what himselfe writeth. For it doth appoint (and so he allegeth it) that from thenceforth pro­ceedings against Heretikes should be vpon accusation or present­ment. If vpon Presentment, then of consequence by the Iudges Office. For so all lawes testifie; and Presenters be not Accusers or parties. For they are seuered & counter-diuided euen in that very place, one against the other.

The principall drift of that statute of K. H. 8. was to prouide, that an Ordinarie vpon his owne onely suspicion should not call men into the dangerous question of heresie, as (it seemeth) was afore vsed by some of them vpon colour of that statute 1. H. 4. and therefore there repealed.

The next statute, which to the same purpose he quoteth, 31. H. 8. ca. 14. is so farre from impugning proceeding of Office; that for grounding proceeding ecclesiasticall euen in the crime of heresie, it proui­deth besides Accusation and Presentment, not onely information by two witnesses; but also enquirie, and that is alwayes of Office. But do not these men draw neere the lees, when they are driuen thus to allege the statute of Sixe Articles (being also repea­led) against proceeding of Office? I had thought their courage in the pretended cause of sinceritie, had bene so great; that they would rather haue quit the place, with losse of their cause, then once to haue borrowed so much as the shadow of a wea­pon, out of that store house.

Against this course the Note-gatherer also allegeth certeine bookes printed in king Henrie the eights dayes Cum priuilegio. [Page 108] These hee termeth to be the maner of debating that cause in those dayes. The first was made by S. German (as it is thought) and is intituled, The diuision of the Spiritualtie and Temporaltie: with his replie against Sir Thomas Moore, intituled Salem and Bi­zance. The next, concerning the power of the cleargie and lawes of the Realme. The third intituled, Of the liberties of the clergie collected out of the lawes of the Realme by Iohn Goodall, and printed by Robert Wier, but without priuilege. And the last, Marsilij Patauini Defensor Pacis in English, with the Kinges and her Ma­iesties mothers armes; which (belike) hee mentioneth, that they may stand in stead of priuilege. But will you see, what great and strong debating there was of this matter, by the sayd foure bookes? Truely, sauing in the first of them, there is not a word mentioned against proceeding of Office. And in Goodalles booke, by sundrie places thereof (as is else-where in this Apo­logie alleged) this kinde of proceeding is plainely auouched to be a Libertie of the Clergie, giuen vnto them by the lawes of the Realme.

And all that is sayd in that one booke Of diuision be­twixt the tempo­raltie and spiritu­altie. cap. 7. and one onely place thereof, is no more but thus, worde by worde; viz. Ano­ther cause of diuision, for that diuers suites haue bene taken ex offi­cio; so that the parties haue not knowen, who haue accused them: and thereupon they haue bene caused to abiure in cause of heresie, sometime to doe penance, and to pay great summes of money for re­deeming. Which vexation they thought came by the Iudges and the Officers. Therefore the fault that hee then found, was not the very proceeding of Office; but for that it was handled in such sort, that the partie knew not who gaue the information, which he calleth Accusing; and for that it was in cause of heresie: be­ing a crime of farre more important danger to the partie, then any other offence Ecclesiasticall: yet not challenging the very proceeding thereby for vnlawfull, but as being (with such cir­cumstances) some cause of diuision betweene the two states, as he surmised. The soundnesse of which iudgement I minde not here to examine.

The Note-gatherer vrgeth further, that the Popish bishops were depriued in king Edward the sixt his time, by Accusation or Presentment; though (as it seemeth) hee knoweth not by [Page 109] whether of them. But what if they at that time had bene pro­ceeded with otherwise then of Office? Woulde this prooue all proceeding of Office to be contrarie to the lawes of England; which is his drift and purpose? Yet I haue often shewed afore, that Presentment is a preparatorie course peculiar onely to pro­ceeding by speciall enquirie of office. But for plaine proofe in fact, that they were in deed proceeded with ex officio Iudicum; I re­ferre me to the actes iudiciall of their depriuation yet remaning, and to that also which I haue written in a certeine chapter of the third part of this booke.

Heere it will not be vnseasonable to admonish the Reader once for all of a palpable Aduertisement of an errour. mistaking both of the Note-gatherer and Treatisour in a materiall point; who by the whole course of their writings and titles of their bookes, seeme to imagine, proceeding ex Officio to signifie nothing els, then ministring of an oath to the suspected partie in a cause criminall: Whereas (in verie trueth) there may be some proceeding of Office, though that oath be not at all vrged or vsed; yea and where it ought not to be imposed, though it were vrged. Like as on the con­trarie side, there may be proceeding euen by way of Accusa­tion, where the oath may and ought to be exacted for the par­ties purgation: perhappes burthened by great probabilities, yet not being so pregnant, as to conuict him. And therefore with­out all colour of reason, and ignorantlie doe they and some o­thers (as the late Petitioner to her Maiestie) confound pro­ceeding of Office, with ministring of an oath, being but one Act thereof: which is in deed sometimes, but not alwayes, no; nor yet alonely vsed in that course of proceeding. Neuerthelesse, taking it whether way they lust, the sayd Popish bishops were in trueth proceeded with of Office, though denounced by certeine, and (as is expreslie set downe of some of them) were vrged, and did answere the Articles obiected vpon their corporall oathes; which (by lawe) they needed not, and therefore (as it is likely) would not haue done, if the Denunciatours had beene parties.

To prooue this course to be against law, he allegeth also out of a booke made Defence of Priests marria­ges. pag. 175. by D. Parker sometime Archbishop of Canter­bury these words: viz. The very front of her Graces articles (mea­ning [Page 110] Queene Marie) chargeth the ecclesiasticall Ordinaries to put in execution the Canons and Ecclesiasticall lawes, none other but such, as were vsed in the time of king Henrie the eight. And com­mandeth also moreouer, that those should no further be put in exe­cution, but as they may stand with the lawes and statutes of the land. What then? Ergo, all proceeding of Office (though continu­allie practiced in sundrie matters in both their reignes, with­out contradiction) is contrarie to the Lawes of the Realme? Truely, if there be one methode of sound reasoning (as Ramus holdeth concerning teaching of Artes) I would be sorie this kinde of disputing should be it. For I haue not bene taught, nor shall euer learne (I thinke) either to reason thus, or to put such Enthymemata into true Syllogismes; viz. Such Canons onely were then to be put in execution, as might stand with the lawes of the Realme. Ergo, proceeding of Office is contrarie to the lawes of the Realme.

His last allegation (falling into this place to be discussed) that he bringeth in maymed also, to prooue this proceeding to be against the lawes of England, is out of one of her Maiesties Iniunctions, Iniunction. 50. Against slanderous and infamous wordes, which is thus verbatim: viz. Her Maiestie straitly commandeth all ma­ner her subiects, to forbeare all vaine and contentious disputations in matters of religion: and not to vse in despight or rebuke of any person, these conuicious wordes, Papist or Papisticall heretike, Schismatike, or Sacramentarie; or any such like wordes of reproch: But if any maner of person shall deserue the accusation of any such; that first he be charitablie admonished thereof: and if that shall not amend him, then to denounce the offender to the Ordinarie, or to some higher power, hauing authoritie to correct the same. But what (I pray) can be gathered hereof, more then a care to reteine priuate persons in a charitable course, one towardes another, without reprochfull wordes, vpon any differences of opinions? Or doth this reach to the abrogating of any course of proceeding? Nay, rather it doeth establish it, seeing vpon Denunciation (which is heere mentioned) proceeding of Office may be grounded, but not Accusation.

But the Treatiser saith that heereby the same man is Iudge and Accuser: which is contrary to the policy of this Realme, that suffereth [Page 111] not an Accusor to be a witnesse, nor an Enditour to be a Iuror for triall of the fact. I answer, that the first is vntrue. For that which ope­neth way to the Iudges Enquirie is holden (by Lawe) as the Ac­cusour, and not the Iudge. Touching the second, I haue shewed out of statutes, that witnesses be called Accusors: therefore that is not contrary to the policie of the Realme: and yet is it contrary to Ciuill and Canon Lawes. For the thirde; if his reason a simili be good, then is the Iuror as a Iudge, and the Enditour as an Ac­cusour. And in deede what doe their affections differ? and yet what more frequent then for an Enditour to giue in euidence vp­on his othe; or for one Iurour vpon his owne knowledge, to get an Enditement found? Therefore for a witnesse, to be a kinde of Accusour; and an Accusour to be a kinde of Iudge, is not contra­ry to the policie of this Realme.

Hitherto in answere of allegations, and obiections made a­gainst proceeding of Office, and brought for proofe of some con­trarietie, vnto the Lawes of the Realme.

CHAP. XIII. That the Enquirie ex Officio against Crimes, is allowed both in Ciuill or Temporall Courts and in Ecclesiasticall also, by the two Lawes Canon and Ciuill.

TO proue that the Canon and Ciuill lawes both, doe allow of the course, I shall not neede to stand long: because so much hath by the way very often, (though hitherto not of purpose) bene declared. To alledge therefore for the former once for all, it is the Archid. in c. foelicis §. sin. de pactis in 6. & Marianus in c. qualiter & quan­do. de accus. nu. 108. common opinion, that by the Canons, Iudges Ecclesiasticall may indifferently in euery Crime being within their Iurisdiction, proceede ex Officio, for the common benefite. And (as was vpon another occasion alledged afore) Abb. in c. 1. de officio Ordinarii. when the Enquirie is made to the purpose of correcting for the soules health, and not of punishing, the Iudge may proceed ex Officio, though no fame were precedent. And againe; Angel. in §. fin. Auth. quom. oport. epis. when an Enquirie is made of any Crime committed against the Maiestie of God, as he­resie, blasphemie, &c. the enquirie is of validitie, though it be without the solemnities of place, time, &c.

[Page 112] By the Ciuill Lawe it is so allowed of, as it is called a procee­ding per Nobile Iudicis Officium. In the olde Common weale of Rome, what was more vsuall with their great Magistrates then habere quaestionem, to make speciall enquiries and trials of suppo­sed offenders? one Liuius lib. 39. or two in steade of many may suffice. L. Post­humius the Praetour had Tarentum assigned vnto him for his Pro­uince; and there he made seuere Inquisition against such Shepheards that had conspired and lincked themselues together, and made all High wayes and Commons (by their robberies) most dangerous to be passed. Of which sort of persons hee thereupon condemned seuen thousand. Those Magistrates that L. 12. ff. de peric. rei vend. l. 14 ff locati. l. 12. ff. de decu­rion bus. were called Aediles, had au­thoritie by their Office vpon a summary knowledge had of the cause (such as is vsed in Pie-powder Courts here) to breake all vnlawfull measures, to ouerthrowe, destroy, and marre false and corrupted wares, and to punish those that offered them to sale: yea and sometimes al­so to beate with roddes. This proceeding was so well knowen to all in those times, that Tertullian an auncient father of the Church doth put the Emperours to whom he writes, in minde of their owne lawes, whereof he there vrgeth Tertullian. in Apolog. ca. 2. execution. If I be not deceiued (saith he) the Ciuill Lawes doe commaunde, that male­factours be sought vp and found out; and not to be concealed, &c. This is appointed by the decrees of the Senate, by the Ordinances of Em­perours, and by the very Empire it selfe; whose ministers you are. And againe Tertullian. ibid. c. 4. in another place thus: Nulla lex vetat discuti, quod prohibet admitti. Whatsoeuer any Lawe forbids to be done, as­suredly it permits to be sought out, & sifted. Let vs see (saith the L. 3. §. Prae­terea. ff. desuspect. tutoribus. Ciuill Lawe) whether a Gardein of an infant that is suspected, may be remooued from his Gardeinship without any accusation. and it is receiued that he ought to be, if by euident tokens it appeare to the Prae­tour, that such a Tutour is to be suspected.

And albeit the Gloss. in l. 2. §. si publico. ff. de adult. glosse say, that ordinarily (by that Lawe) the Iudge proceedeth not ex Officio: yet by reason of the strait course holden thereby with all Accusours, so that Accusation is now al­most generally through the worlde growen in disuse: it is there­fore by Gandinus de malefic. tit. quo­modo cognos. nu. 6. & passim alii. such generall custome made lawfull in euery cause, for a Iudge to proceede (at the Ciuill Lawe) ex Officio. So that (consi­dering such Bald. in l. 1. §. in initio. ff. de offic. praesidis. custome) it is as ordinarie a remedy now, as Accusation. And some reason hereof is assigned to be this, that the Lawe [Page 113] iudgeth euen an Accusour not to be wanting in such procee­ding, for that Prae. Millei. fol. 3. nu. 31. in euery Crime, Fiscus est Accusator, the common interest is the Accusour: and it is so farre from being a course disallowed by that Lawe, that Angel. de ma­lef. ver. haec est quaedam. & ibi Aug. in addit. a. nu. 12. vsque ad 48. (albeit there were no such cu­stome at all) yet there be very many cases, wherein by the very ex­presse disposition of that lawe, the Iudge may proceede ex Officio. Nay it is thus testified by a great Lawyer, that Io. Andr. in add. Specul. tit. de Inquisitione. §. quando autem. in any case what­soeuer euen by the Ciuill lawe, it is permitted to the Iudge to proceede of Office, and so by way of Enquirie.

And this is receiued, not onely in publicke and popular mis­demeanours, but also in priuate offences. For Decius cons. 170. nu. 1. quòd est communis opinio. in these (without either complaint or Accusation) the Iudge may proceede of Office by way of Enquirie. Albeit the Lawe set not downe for such, any certaine (either corporall or pecuniarie) penaltie; for then such an offendour is punishable, by some extraordinary penaltie. The reason of this proceeding in priuate Crimes is, the very interest, that the Com­mon wealth hath, to haue such offences punished. By reason of which common interest, Bald. in l. 1. C. qui accusare non possunt. euen where there is an Accuser, yet if hee be away, the Iudge ex Officio may proceed and go on in the cause. And so it is obserued by common practise, in Ciuill lawe Courts. The like is to be saide when the partie wil collude with the Bartolus in l. inter omnes §. rectè ff. de furtis. malefactour: for if he that was robbed will collude with the thiefe, and say hee was not robbed: yet if there be likelyhood to the contrary, the partie is not beleeued, but the Iudge proceedeth ex Officio, quia interest Reipub. puniri furtum.

Touching the penaltie due, vpon such proceeding, some wri­ters holde, that D D. in c. qua­liter. el. 2. de accus. the ordinarie paine appointed by Lawe, is not to be inflicted vpon proceeding of Office. But they also make these ex­ceptions: viz. that this doth not holde, Innoc in d. ca. where the Crime is noto­rious: nor Card. Alex­and. in c. de ac­cusat. col. 39. where the defendant vpon the enquirie confesseth the Crime: nor by the Plerique om­nes D D. course of the Ciuill Lawe. For in these cases they affirme that the very ordinarie paine (expressed in the Law) may be imposed. But it is assured, Clarus lib. 5. § fin. qu. 49. that by Custome at both these Lawes not onely a milder paine, but the very set paine of Lawe it selfe may be inflicted, euen when a Iudge hath proceeded of Office.

But here some may obiect, that those Lawes do seeme some­times to require an Accuser. It is true: but neither alwayes, nor of necessitie, as hath bene opened. And it is shewed afore, [Page 114] that publike interest stands in steede of an Accuser. Likewise the c. qualiter & quando cl. 2. de accusat. Lawe accounteth fame precedent to be a kinde of Accuser. And where fame wanteth, other Bartol. in l. congruit. ff. de Off. praesidis. presumptions, and Indicia or euidences are (in this behalfe) equiualent vnto a fame.

It may further perhaps be vrged, that by Ciuill lawe, this En­quirie ex officio, is counted an extraordinarie remedie. If it were so admitted to be, what would this auaile those, that oppugne it simply? for the rule is, Vbi cessat remedium Ordinarium, ibi de­curritur ad extraordinarium. And it is not holden, nor is other­wise likely, if a partie will seriously and with effect prosecute, but that the Ordinarie Iudge will cease further to deale therein, ex officio: yet it is a little afore signified, that by reason of such generall custome, this Enquirie ex officio, is become, euen by the Ciuill Lawe, to be an Ordinarie remedie. And besides that cu­stome, wheresoeuer Specul. Mar­ran. de Inquisit. nu. 39. Enquirie of office is specially permitted either by Lawe (as in many cases) or by statute, there it is as ordinarie a reme­die as Accusation. And by the Ibid. nu. 48. Canon Lawe, it is absolutely an ordinarie remedie.

I haue also heard it to haue bene obiected against this course, that bad and infamous persons suggestions haue bene accepted. If it be so, it is but the fault of persons, not of the Lawe. And if by an Appellation from any ordinarie Court, this point come to ham­mering; it wil not be found absolutely iustifiable. yet experience teacheth, that not onely Relatours (that be infamous and bad per­sons) be in some cases admitted by the Lawes of this Realme, but (which is more) they are permitted also to be witnesses. As both infamous persons, and those that be partakers with the ap­peached in treasons, murders, and felonies: which is permitted in fauour of the Prince and common wealth, in detestation of such grieuous crimes, and for the very nature of the crimes, which are (for the most part) so perfourmed; as none honest persons, but such as themselues, are or can be priuie vnto them.

Vpon the same grounds, the Ciuil Law also admitteth the like witnesses. Therefore is it testified to be Decius con­silio 342. nu. 8. the common opinion of writers in that Law, that for the horriblenes of some crimes, witnesses otherwise disabled in Law, may be receiued, as in here sie and in Trea­son. Also when the trueth of the matter cannot otherwise bee had: therefore the rule is, that when the facte is of such qualitie, that other [Page 115] witnesses cannot by any possibilitie be had, in such case those shalbe ad­mitted, that are in other cases forbidden by lawe. Therefore none of these, nor any such like friuolous obiections, will be able to ouerthrowe this course so manifoldly grounded both vpon those former seuerall lawes, and also vpon reason.

CHAP. XIIII. An answere to such obiections, as vpon the Ciuill or Canon lawes are brought against all proceeding of Office in causes Criminall by the Treatisour and the Note-gatherer.

AGainst all that is or may be brought out of those two lawes for confirmation hereof, the Treati­sour rather exclaimeth, then obiecteth; that they are strange lawes, strange and forreigne pro­ceedings; and I knowe not against what pre­tended strange courses, he bitterly inueieth: as if nothing that is vsed els-where in the world, could sauour of Iu­stice besides our owne; or might be receiued amongst vs, howe apt or beneficiall soeuer it be otherwise. Neuerthelesse, we finde in the bookes of termes and yeeres, many things reported out of the Ciuill and Canon lawes; yea & many rules taken out of them, which are there both alledged and allowed of. That sage and prudent Senate, with the whole people of Rome, when of twelue Tables (which conteined the ground of all their lawes) tenne of them were transcribed & taken out of the lawes of sundry com­mon weales then in Greece: they neither helde it any disparage to their owne Nation; nor in that respect accounted them the lesse to be Romane lawes.

Though it were graunted, that the proceeding of office in Courtes Ciuil and Ecclesiasticall with vs, was drawen at first from those two lawes: yet the same or like proceeding, which is vsed in sundry temporall Courtes here; perhaps will not be iudged to haue bin taken and borrowed from those two lawes; but rather to haue bin the very olde originall custome and Common lawe of the land. Which consideration (if it be true) must needes (in mine opinion) make much for the approuing of the reasonable­nesse and equitie of that proceeding: when as seuerall nations, by [Page 116] one instinct of the light of reason, haue so long iumped & hitte vpō one & the same course; without borrowing it, the one of the other. But frō whencesoeuer any of these courtes in this lād, haue borrowed their proceeding of office; seeing temporall Courts of the Realme haue practice of the like course, & those lawes do al­low it also vnto Courtes ecclesiastical according to the vse euen of so many hundreths of yeeres, as this Nation hath bin Christian: therefore these Vide preamb. stat. 25. H. 8. c. 21. proceedings ought not now at length to be ac­counted either forreine or strange from our policy, but rather as our owne homebred English lawes, and her Maiesties lawes eccle­siastical, as they be often termed in actes of Parliament. It is true which is said out of the Ciuil law, Ea nostra facimus, quibus aucto­ritatem l. 1. C. de Vet. iure emendando. nostram impartimur: Those things we make ours, vpon which we bestowe our authoritie, whether expresly, or by implica­tion, vpon long continuance of practice.

The Note-gatherer to the intent to proue (as may be gathe­red) that the Ciuil lawes doe disallow this proceeding, saith: It is to be proued, that the Pagan Greekes and Romanes, ordinarily vsed In criminibus violatae religionis, no such maner of proceeding, but Per accusationem.

It is warely said by him, that it is to be proued; because as yet it is not done. But if it could be proued, that they vsed none other (the contrary whereof is made apparant) doth it thereupō follow, that we may not; or that al other courses be vniust? or if they vsed not any other, then Accusation ordinarily; that therefore they vsed not proceeding of office at all? or if not in that one crime violatae religionis; that therefore in none other crime whatsoeuer?

Vnto this Chapter are many of those quotations to be refer­red, which the Note-gatherer hath mustered and thronged toge­ther in his first title, which is this, viz. testimonies out of the aunci­ent fathers, that doe mislike the proceeding ex officio, and othe nowe vsed. But like as many of them be altogether mutes, both in the one point and the other: so sundry of them that are compelled to giue euidence and to say somewhat; doe not once mention an othe; yet happely speake somewhat of Inquirie or Accasation. Yea, and his maine conclusion, which he propoundeth vnto him selfe in that title to prooue, reacheth no further, nor is otherwise then thus: Inquisitio ab imperatoribus prohibita. Such of them there­fore belong to this disputatiō. But this conclusion of his might be [Page 117] true; and yet neither the parties oath in a criminall cause any whit impeached; nor all proceeding of office thereby disallowed. Ne­uerthelesse whether all proceding by enquirie be prohibited by the Emperors shal appeare. For I mind here to examine euery of his quotations falling into this place by peece-meale. In that his quotation out of Eusebius 3. booke and 30. Chapter, no matter (sounding to either of these wayes) is conteined: but he writeth there of S. Ignatius. Likewise in his 4. booke. & 13. Chap. nothing is touched, but of Polycarpus. And in the 17. Chapter of the same booke, no more. For he only mentioneth there the writings of Iustinus Martyr. Paul. Diaco [...] lib. 10. in v. ta Traiani. Paulus Diaconus in the place by him quoted, but not alledged (for he alledgeth no place at all in that whole title) saith thus: Traianus the Emperour writ backe to Plinius Secundus, Christianos profide nullatenus inquirendos: that Christiās for that they beleeued, should not at all be enquired after, or sought for. To the like effect Tertullian Tertul Apolog. c. 2. Nicephor. li. 3. ca. 17. saith in the place by him quoted, viz. Traianus rescripsit hoc genus inquirēdos quidem non esse; oblatos verò puniri o­portere; Traian by his rescript decreed, that this kind of men should not be enquired after: but being offered or hit vpon should be punished.

It is manifest therefore hereby, that albeit in some fauour to the Christiās (whō he saw so cōstantly & in such multitudes, litle lesse then to offer thēselues vnto death for professiō of Christ) he cō ­manded, that they should not of purpose be enquired after and sought vp, which is done by general enquirie, & not by special: yet notwithstanding neither the one enquirie, nor the other was by him cōdemned or forbidden. For special enquirie is not spoken of there at al: & general enquirie (as I shewed afore 2. part. c. 7. out of Duarenus) is hereby plainely established; insomuch as this course (being but nowe newly forbidden) doth proue, that it was lawfull and in vse afore: and being but cōcerning Christians only, it argueth that al malefactors besides, were stil (as they had bin before) en­quired after, and d [...]ligently sought vp, the lawe Ciuill being left, as it was afore. But how lawfull & expedient Tertullian thought enquirie to be (if the Christians had bene malefactours in deede, as the Emperor & other heathen then held them) the next words following Tertul. Apolog. cap. 2. 1 conteyning his iudgement touching that decree) doe plainely shew. Oh (saith he) what a decree is this, that necessarily ouerthroweth & confoundeth it self? He denieth that they are to be en­quired, as holding them innocents; & yet appoints thē to be punished as [Page 118] malefactors: he spares them, and is cruell towards them: he winkes at them, and yet doeth punish them. How falles it out (ô Emperour) that thou entanglest thy selfe by thine owne iudgement? Si damnas, cur non & inquiris? If thou condemnest them, why doest thou not also vse en­quirie against them? If thou wilt not vse enquirie towards them, why doest thou not quit them, as guiltlesse? Through all thy Prouinces, for searching vp of Robbers, Militaris statio sortitur, certaine set souldi­ers (called Stationarij) are by lotte assigned: and against traytours and common enemies euery man is as largely authorised, as any such soul­dier. Yea, and Inquisition doth reach also vnto Complices and concea­lers. Then belike of all other, onely a Christian may not be enquired a­gainst, and yet he may be offered vnto punishment.

Hereunto also serueth that, which the same auncient father writeth in that booke afterwardes, and is alledged by Nicepho­rus in one of the places Tertul. Apolo. c. 6. Niceph. li. 4. cap. 12. that are quoted by the Note-gatherer: so farre is it from seruing his turne any way. What vniustice then doe such Iudges to vs (saith Tertullian) which make enquiries alonely against vs, and that wickedly, vniustly, and cruelly? Whom Vespasia­nus albeit a conquerour of the Iewes, commaunded not to be straitlie watched: For whose sake, Traiane in part disanulled the publike lawes, in that he forbade Christians to be enquired after: and whom neither The olde Ciuill lawes appointed enquiries. Hadrian (albeit he was a most curious searcher into all matters) nor he that was named Pius, would allowe to be persecuted.

Yet if this prohibition of Traiane had bin so to be vnderstood, that speciall enquirie should not be vsed against Christians: howe litle neuerthelesse this would make for the absolute condemna­tion of all proceeding in that course, may appeare by the like de­crees, which were also made by Emperours in fauour of Christi­ans, that they should not so much as be accused. For the same fa­ther else-where saith thus: Tertul. Apolog. cap. 5. Tiberius Caesar persisted in his opinion, and threatned great dangers to all Accusers of Christians. Nicepho­rus likewise, in the next aforesaid place, Niceph. li. 4. c. 12. alledged by the Note­gatherer himselfe, thus writeth out of Tertullian: That Marcus Antoninus the Emperour, after that the Christian Legton in great distresse of his whole hoste (being readie to perish for thirst) had by prayer obteyned a shower at Gods hand; did appoint a fearefull kinde of death to all that woulde institute Accusation against any Christians.

[Page 119] To the same purpose both Eusebius, Euseb l. 4. c. 12. and the sayd Niceph. li. 3. c. 28. Nicepho­rus, doe write in two places (quoted also by the Note-gatherer, as if they serued his purpose) out of Antoninus his edict. My father (saith the edict) did decree, that this sort of men should not be troubled, except they commit some crime against the Romane em­pire. And therefore, if any shall hereafter dare to trouble or impute crime vnto any Christian, only for that he is a Christian; let him that is so accused, be acquited; albeit he be found indeed to be a Christian. But let him that accused him be duely punished, as he hath deserued.

Now because in fauor of the Christians, these seuerall Empe­rours did command aswell that they should not be accused, as Traian did that they should not be enquired after & sought vp: shall we therefore hereupon gather, that neither accusation nor inquisition might be vsed by the law of the Romanes against any offenders? or that these ancient fathers (which report thē) mis­liked of both those proceedings, and so (vpon the matter) con­demned all proceeding & punishing of any offenders whatsoe­uer? But if this be most absurdly gathered; then consequently are these his allegations friuolously and absurdly alleged, to proue, either an absolute or simple prohibition, or any mislike at all of proceeding by enquirie and of Office against offenders.

In Dion Cassius (whom to like end he quoteth) the life of the Emperor Nerua is not found. In Dion Nicaeus abridged by Xiphi­linus, Xiph. in Ne [...]ua. these words be read in the life of Nerua, which it may be he meant. [...]. The emperour would not permit the rest, to accuse certeine persons ei­ther of impiety, or of Iewish profession: by which terme the Christian religion is thought to be meant. What? Because he forbad cer­teine to be acused of those crimes, doth it hereupon follow that enquirie of Office (which is a seuerall course from accusation) was wholly mislliked? This might therefore with some more colour (considering that which followeth) haue bene brought against the course of proceeding by accusation, and yet impertinenly e­nough also. For in the same place Ibidem. it is recorded thus: [...]. No small tumult was stirred vp hereupon, for that euery one did accuse whom he listed.

There remaineth yet one quotation to be spoken of, that is to be referred to this place, which he bringeth out of Eusebius Euseb. li. 4. c. 9. Niceph. li. 3. e. 37. and [Page 120] Nicephorus; where Adrian the Emperor thus writeth vnto Mi­nutius Fundanus. If the men of that prouince in iustification of their request can bring and affirme any thing truely and plainly against the Christians, whereby before the tribunall seat by due course of iudge­ment they may be conuicted: then let them onely bend themselues to that purpose. But I can by no meanes endure it, that they should be put to death, onely vpon the petitions and out-cries of the multitude. But this hath no kinde of shew, either against Accusation or Enquirie of Office. For it condemneth only the mercilesse and cruell iniu­stice of some Deputies; who to gratifie the clamorous common people, were contented to execute the poore Christians without any proofs.

To this place perteine also the Note-gatherers allegations c. qualiter & quando. el. 2. de accusat. c. ad abolendam. &c. excommunica­mus. § Qui au­tem. de haereticis. c. cum contuma­cia. de haereticis. in 6. out of the Canon law: yet they are so far from impugning pro­ceeding by way of Enquirie, that they do very especially establish it. Which though he be not ignorant of, and being so plaine, cannot dissemble: neuerthelesse he doth summe them, & with­all affirmeth (though vntruly) that the bishops proceedings are to the contrarie; whereas all ecclesiasticall Iudges will yeeld vnto him, that those Canons both are and ought to be obserued, so far as the statutes of the Realme doth warrant them; sauing in such points as himselfe hath misreported them. For first, where a Bi­shop (as was then for the most part vsed, but now by long pre­scription worne out, which prescription Panor. d. c. Qualiter. is also of validitie and force) did in all weighty matters perscrutari diligentiùs causam coram ecclesiae Senioribus: that is, examined thē before his Chap­ter, or so many of them as would be present; this he peruerteth thus: causa perscrutanda ab ecclesiae Senioribus: as if from the Ca­non law he could hammer vs out the Lay elderships, that be drea­med of; and could make them in euery parish the Iudges of that which was onely done by Bishops, coràm, in the presence of the Praebendaries of the Cathedrall Church, but not by them. Se­condly, whereas only in proceeding against a Prelate it is requi­red, that the excesse be grieuous; this he doth make generall and indifferent to all enquiries against any whomsoeuer. Thirdly, he hath forged of his owne head besides the text there, that to the entent of degradation, a Iudge ecclesiasticall may not proceed by way of Inquisition, but by accusation onely.

[Page 121] And for specification of such contrarieties as he surmiseth to be in bishops proceedings against those alleged Canons, he first sayth; that their oath is not abiurationis or purgationis. It is true, that besides these two, some oathes which they minister, are ve­ritatis dicendae, vpon the crime enquired of. Which oath one of his owne Canons by him quoted, might haue taught him, if he had read it ouer. viz. c. accusatus. §. licet verò. de haeret. in 6. Coram Inquisitoribus iurantes, tam de se, quàm de alijs, super facto haeresis dicere veritatem. If then in heresie, much more in other crimes. And in truth there is not one word in any of those Canons tending to restreine al othes vnto abiuration & purgation alone; as to any that list peruse them, wil be manifest.

The next contrarietie vnto them he assigneth, c. accusatus. de haeret. in 6. Clem. 1. de haereticis. for that Ordi­naries and Commissioners ecclesiasticall deale by way of Enquiry in o­ther matters then heresie. Heerein hee childishly mistaketh his booke; and yet will he be dealing in matters, wherein he see­meth to me, to haue no insight at all, howsoeuer (perhaps) he do flatter himselfe otherwise. For no Canons doe forbid Ordinaries to deale in any matters criminall, being of ecclesiasticall coni­sance; nor any others in causes duely committed vnto them; whether they deale by the one course of proceeding, or by the other. But Inquisitours for heresie, hauing that matter onely dele­gated vnto them by their Commission, are in deed there forbid­den; that by colour thereof, they should not reach out their au­thoritie, vnto matters no way touching the crime of heresie. So that the prohibition there, is for matters that are out of their Com­mission; and not for any maner of proceeding. For they may not deale in matters, that are not committed to them, any more vpon Accusation, then they may do by way of Enquirie.

The third contrariety surmised by him to be in Bishops procee­dings against the Canons c. statuta. de haeret. in 6. is; that they suffer not publication to be made of the witnesses depositions: which is a meere slander, without any colour of truth. Neuerthelesse, when by publication of the witnesses names that haue deposed in matter of heresie, great perill might grow vnto them through the friends of the impeached, or otherwise: in that case only the Canons (with cer­teine moderation and cautions) do permit (vpon the Iudges dis­cretion) the names of the witnesses to be suppressed from the defendant, and to be kept from being published abroad at all.

[Page 122] Thus much concerning obiections made by the Treatiser & Note-gatherer out of the Ciuill and Canon lawes, against all pro­ceeding of Offfce with offenders.

CHAP. XV. Enquiry and proceeding of Office, r [...]thout an accuser, and grounded vpon some other of the meanes (afore) prooued sufficient to enter into such enquiry, is approoued by sundry examples of Scripture.

FOr proceding against crimes by enquirie, and of Office sometimes vpon the denunciation of one, sometimes vpon fame or heare-say, sometimes vpon notoriousnesse of the fact, and sometimes vpon a suspicion onely conceiued: but still without partie to accuse and prosecute; we finde diuers not obscure traces in the Scripture it selfe.

Vnder the law of nature, when Gene. 38. V. 24. & 25. one tolde Iudah prince or head of his familie (and therefore a magistrate) that Thamar his daughter in law in her widowhood was begot with childe, at that mans onely relation without further accusation, and vpon the notorious euidence of the fact, of Office he gaue sentence that she should be burned.

When Ioseph Gen. 44. V. 5, 6, 7, 8, 9, & 10. had caused his siluer cup to be put in Beniamins sacke, & had sent his steward to search them all, who also char­ged them with this theft, and vpon pretended suspicion only, did enter to an enquirie, and to make further search: yet there was none of them that appealed to the law of nations, as if they were vniustly dealt with, hauing none accuser, but ioyned issue with him, and flatly denied the matter.

In the trial of Num. 5. V. 12. & deinceps. ielousy vpon the only suspicion of the husband, (though somthing be extraordinary therein and ceremoniall) yet by that enquiry of the Priests (to the apparant great perill of the woman if she were faultie) we may note this part of iustice in course of that iudgement: viz. that there is none accuser or par­ty, that pretendes he can or will prooue it. For of the husband (who findes himselfe grieued, and therfore onely denounceth her to the Priest) it is said, this enquirie shall be made, because Vers. 14. the spirit of ielousie is vpon him. It is also there said to be done, when Vers. 13. the sinne is secret, and the husband knoweth it not, but only su­specteth [Page 123] it: & when there is no witnes against her, nor she taken in the maner: and therfore such, as it may not be intended the husband becomes the accuser, pretending to make proofe of the very fact: yet neuertheles it is testified there, that for bringing her to so dangerous an enquiry & trial, the Ibid. V. 31. husband shall be free from sinne.

If a man bee entised secretly to Idolatrie, by him or her that is dearest and nearest vnto him; God commandeth thus in this case: Deut. 13. V. 6, 7, 8, 9, 10. Thou shalt not consent vnto him, nor heare him, neither shall thine eye pitie him, nor shew mercy, nor keepe him secret: but thou shalt euen kill him, thine hand shall bee first vpon him to put him to death, and then the hands of all the people, and thou shalt stone him with stones that he die. In that it is here sayd, Thou shalt not keepe him secret, & that the hands of all the people must be vpon him, it ap­peareth y t the iudgement must be publike, & not done by priuate authoritie alone: for Mat. 26. V. 52. euery one that (by vsurpatiō) taketh the sword, shall perish with the sword. Then, if this iudgement must be publike; where is there any Accuser? for he that reueileth and denounceth it, is a witnesse; in that his hand must be vpon him, according to that other part of the law, viz. The Deut. 17. V. 7. hands of the witnesses shalbe first vpō him to kill him and afterwards the hands of all the people. Nay, how can such an entiser possibly be condemned, except it be vpon his owne examination; and so by course of enquirie, seeing Nomb. 35. V. 30. Deut. 17. V. 6. one wit­nesse shall not testifie against a person, to cause him to die? so that here we haue in Gods owne law a iudiciall course, in a capital matter and secret, instituted vpon one priuate mans denunciation: who is so farre from being an Accuser properly taken, that he is a witnes: and the sinne to be found out by course of enquirie vpon the par­ties owne examination; in so much as there can bee (in this case) none other way of conuiction.

Likewise in the same chapter, it is prescribed thus: that Deut. 13. V. 12 13, 14, 15. if thou shalt heare say (concerning any of the cities, which the Lord thy God hath giuen thee to dwel in) wicked men are gone out from among you, and haue drawen away the inhabitants of their citie, saying, Let vs go and serue other gods, which ye haue not knowen: then thou shalt seeke and make search, and enquire diligently: and if it be true & the thing certaine, &c. thou shalt euen slay the inhabitants of that citie with the edge of the sword: destroy it vtterly and all that is therein, & the cat­tell thereof with the edge of the sword: where we plainly find, dili­gent [Page 124] enquirie vpon heare-say and fame commanded, and prosecu­ted of office euen vnto condemnation and execution; without a­ny mention of Accuser or prosecuter of the cause.

In the same booke afterwards, and for the crime of idolatrie likewise, it is thus appointed: Deut. 17. V. 4, 5 If it be told vnto thee, and thou hast heard it, then thou shalt enquire diligently: and if it bee true and the thing certaine, that such abomination is wrought in Israel; then shalt thou bring foorth that man, &c. and shalt stone him with stones till hee die. So that here also we haue a fame, or perhaps but the denuncia­tion of one man, whereupō the magistrates enquirie is grounded; and vpon the enquirie the magistrates sentence (finding the mat­ter true and certaine) & the execution of the iudgement; all with­out Accuser or prosecuter.

For grounding proceeding criminall without accusation, vpon the notoriousnesse of the fact; we haue a course prescribed in these Deut. 22. V. 22. words: If a man be found lying with a woman maried to a mā, then both twaine shall die. And Ibid. V. 28. againe, If a man find a maid that is not betrothed, and take her and lie with her, and they be found, then shall he giue, &c. therefore vpon taking in the maner, proceeding vnto condemnation and execution is warranted, though there bee none Accuser, but onely the witnesses, that depose it.

So the Iosu. 9. V. 22, 23. Gibeonites for their apparant guilefull dealing, falling out by their owne confession vpon examination; were condem­ned by Ioshua vnto perpetuall slauerie, without any Accusa­tion.

When the Iosu. 22. V. 11. &c. children of Israel heard say that Reuben, Gad, and the halfe tribe of Manasseh had built an altar contrarie to Gods word, as they at first conceiued it: they purposed to warre vpon them; yet thought good to delegate tenne princes vnto them first, to take their answere and excuse. So that vpon the fame brought vnto the men of Israel (without any set Accusers) they entred into further Inquisition & examination of this matter. The 2. Reg. 5. prophet Elisha had the sinne of Gehazi his seruant diuinely reueiled vnto him; and was authorized by God to condemne him, & to punish him for it: yet sought he none other to accuse his seruant, & to obiect that crime vnto him, besides himselfe, that was to iudge him. Vpon y e only outcry Act. 22. & 23. of the multitude against Paul, the chiefe captain (not ignorant of the law of the Romanes) [Page 125] brought him before the great Councell of the Iewes, without any particular Accuser or Prosecutour there mentioned: notwithstan­ding that generall Outcrie be Acts. 22. V. 30. & 23. V. 6. termed an Accusing in that place, but not properly.

Furthermore, at the only Deut. c. 22. V. 14. &c. denunciation of an husband, that he found not his wife a Virgin, she is put to her clearing before the Iudges. Wherein if she cleare her selfe, then without her further mediation (the Denouncer) her husband is to be chastised by the Elders, and condemned in a fine to the father of the woman for his calumniation, and vniust bringing her name into question, and life into danger. But if she be not found a mayd, she is to be put to death: so that the one of these sentences, must needes be of the Iudges office alone. For if the husband be the Accuser of the woman, then must the condemnation of him be ex Officio; be­cause his owne complaint reacheth no further, but to his wiues condemnation or clearing. But if the womans father be saide in this processe to hee the Accuser of the husband, then is the wiues condemnation done ex Officio. So wee finde that Da­niel Dan. 13. V. 51. & sic deinceps. proceeded without any other partie against the wicked Elders ex mero Officio. For hee was both Iudge, examiner, and Accuser.

By the Luke 16. V. 2. parable of the wastfull Stewarde we are taught, that vpon credible reports onely, we may enter into examination and enquiry of the misdemeanour of such, as be vnder our authoritie. How is it (saith the rich man there to his Stewarde) that I heare this of thee? giue an account of thy Stewardshippe. And he looked for none other to Accuse, then himselfe that was to iudge.

When by diuine reuelation the hidden and close hypocrisie of Ananias and Saphira Acts. 5. V. 3. &c. was made knowen vnto Saint Peter; and that by speciall oeconomie, he was publikely to proceede to their examination and condemnation vnto death; hee sought none other Accuser, but himselfe obiected, and by his owne Apostolicall authoritie, proceeded also to sentence against them for that sinne.

And if that be truely which is commonly said, humana iusti­tia imitatur diuinam: why should not this course of proceeding be diuine and godly? for God doth as it were make Enquirie vp­on a crie of sinne comming into his eares; and afterward puni­sheth [Page 126] without any accuser. The Lord Gen. 11. V. 5. came downe to see the Citie and tower of Babel, which the sonnes of men builded. And Gen. 18. V. 20. & 21. againe afterward touching Sodome, the Lord sayd, because the crie of So­dome & Gomorrah is great, & because their sinne is exceeding grie­uous, I wil go downe now & see, whether they haue done altogether ac­cording to that cry which is come vnto me, & if not, that I may know.

S. Paul vpon the credible 1. Cor. cap. 5. V. 1. &c. fame and hearesay, touching the incestuous Corinthian, without any accuser or partie to sollicite him thereto, determined and adiudged hee should bee committed to Satan. For it is thus sayd in that place, it is heard certainly that there is fornication among you, &c. It is thus written in the booke of Nombers: Nom. 35. V. 30 Whosoeuer killeth any person, the Iudge shall slay the murderer through witnesses. Where we see this duetie and office required at the Iudges hand (so there bee proofe made of the crime, by two witnesses at least) and that indistinctlie and sim­plie; without any mention of Accusing or prosecuting by any third person.

Nay, to say that which the trueth is; it is so farre off, that (by Scripture) an Accuser should be required in all criminall procee­dings: that as yet (for my part) I haue not found many places, where it is so much as mentioned to haue bene vsed, at least as Accusation is properly taken. One I read of in the lawe of God, viz. Deut. 25. V. 1, 2, 3. Where there shalbe strife betweene men, and they shall come vn­to iudgement, and sentence shalbe giuen vpon them, and the righteous shalbe iustified, and the wicked condemned: then if so be the wicked be woorthy to be beaten, the Iudge shall cause him to lie downe, and to bee beaten before his face, &c.

In the Acts of the Apostles, in the speach of the Recorder or town-clerke of Ephesus, the course of Accusatiō is in these words mentioned. If Act. 19. V. 38. Demetrius (saieth hee) and the crafts-men which are with him, haue a matter against any man, the law is open, & there are deputies, let them accuse one another. And it was practised af­terwards against Paul, as appeareth by the seuerall places of the Acts, handled in the next chapter of this treatise.

But albeit Accusing and Accusers be else-where also sundrie times mentioned, yet vpon particular discussing and view of the places it will appeare; that none other Accuser be there­by meant, but witnesses onely: who in a large signification, [Page 127] sometimes are vnproperly termed Accusers, as I haue afore shewed. When the wicked high Priestes, Scribes, & other Elders of the great Council of that nation, proceeded against our Saui­our Christ, whom they knew and perceiued (by the mouing of all Ierusalem at his triumphant receiuing thither) to be in great repu­tation with most of the people: it is no doubte, but they kept in outward apparence a colour of a due and Iudiciall course of pro­ceeding with him, were it but for feare onely. Let vs see then, whether they retained Accusation as the onely lawfull course.

It is true, Mat. 27. V. 12. Luke 23. V. 2. three of the Euangelists doe report, that the chiefe Priests and Elders accused him before Pilate: and Mark. 15. V. 3. as one of them saith, of many things: & as Luk. 23. V. 10. another of them saith, they accused him before Herod vehemently. Yet whoso will attentiuely way and consider of that historie, shal well perceiue, that our Sauiour was condemned (afore) by the Eldership, and that these imputati­ons of crimes against him before Pilate and Herode (called there Accusing) was nothing else, but to approoue vnto them the iu­stice of the sentence formerly giuen by the Sanedrin or great Councill vpon him: to the intent that they might obteine a de­cree for his executing, at Pilates, or at Herodes handes. For albe­it the Iewes (after they were conquered by Pompeius Magnus) had [...], their owne lawes, ordinances, and ceremonies left vnto them: yet had they not iu [...] gladij, the power of life and death in them: and so they signifie vnto Pilate, when he was willing to haue shaken them off, and to haue had no dealing at all in that action. For when he saide, Ioh. 19. V. 31. take ye him, and iudge him after your owne lawe: then the Iewes saide vnto him, It is not lawfull for vs to put any man to death. And Pilates decree was nothing else; but that it shouldbe Luk. 23. V. 24. as they required. What that was, two other Euangelistes doe expresse, viz. that he might be Mat. 27. V. 23. Iohn 19. V. 16. deliuered vnto them to be crucified. Lo whereunto his decree tended, vnto Christs execution, but not to condemnation; for he had afore washed his handes, and pronounced Iesus innocent.

For proofe that he was first condemned by the Eldership, and then execution only sought for, by Pilates authoritie: it appeareth in the 26. chapter of Vers. 65. 66. S. Matthew thus; behold, nowe ye haue heard his blasphemie: what thinke ye? they answered and said, he is worthie to die. And this Council was holden ouernight, immediatly after [Page 128] his apprehension. This action Saint Marke sheweth plainely to haue bin his condemnation. They Mar. 14. V. 64. all condemned him (saith he) to be worthy of death. Thus hauing condemned him, when Mat. 27. V. 1. 2 the mor­ning was come, they helde a Councill againe, to put him to death; and thereupon ledde him bounde to Pilate the gouernour, to procure a decree for his execution. For in the next verse after, it is directly said Ibid. V. 3. thus: then when Iudas &c. sawe that he was condemned, he repented himselfe &c. which was afore his appearance before Pi­late, and afore he had dealt with him at all.

What then was the course whereby the great Coūcill procee­ded with him? not by Accusation made by any other then them­selues: but vpon witnesses (though false, & by them suborned) and vpon pretence of his owne cōfession. Mat. 26. V. 59, 60. They sought false witnesses &c. at the last came two false witnesses &c. & a litle after, what Ibid. V. 65. haue we more neede of witnesses? behold now ye haue heard his blasphemie. And S. Luke Luk. 22. V. vlt. thus: then said they, what neede we any further wit­nesses? for we haue heard it of his owne mouth. Whereby it is made manifest, that albeit the Priestes and other Elders, sought by all meanes possible (outwardly) to approue their proceeding a­gainst Christ vnto Pilate and the people: yet did they neuer seeke or require any third person, to preferre vp Accusation a­gainst him: and therefore a course of proceeding not of necessity to be obserued by Gods law, as they al then conceiued & vnder­stood it. Likewise when the first martyr S. Steuen was proceeded with by the same Councill & Eldership residing at Ierusalem, none accuser, but Act. 6. V. 11. 13 witnesses only were vsed For though the Libertines & Cyreniās (vpō spite toward Steuē) did suborne the witnesses, yet did they not appeare themselues openly in the action, as Accusers. Neuerthelesse it bare the shew at first of a Ibid. V. 15. due and Iudicial pro­ceeding in Councill, howsoeuer the execution of him after was done without iudgement giuen, and Act. 7. V. 57, 58, 59. by tumult of the people.

Nowe least any man should surmise, that this was but a cor­rupt custome crept into those later times; we will therfore looke something higher, what was done in former ages.

In the proceeding against Naboth, though it was a most wic­ked iudgement, grounded vpon periury and subornation, yet we may 1. Reg. cap. 21. V. 9, 10, 11, 12, 13. see, the plot was so laid, as it might seeme to cary apre­tēce of a due Iudiciall course; whereupon may be truely gathered [Page 129] something touching the maner of proceeding then vsed. For in a solemne fast, when Naboth sate Iudicially with the rest of the Elders, and chiefe of the people; vpon the onely witnessing of two wicked men in his presence (that he blasphemed God and the king) Naboth was condemned to be stoned.

The matter for which I note it, is this: that the processe was without any Accuser or party. For there are named onely the witnesses, the elders, and gouernours, & Naboth the party condemned.

By which, (together with the historie of the adulteresse Ioh. 8. cap. 10. men­tioned in the Gospel, being conferred with Deut. 17. Deuteronomie) I do gather; that ostentimes, in their Iudiciall proceedings, the Iewes had none other persons that any way dealt, but witnesses, Iudges, and the party against whom they proceeded. For in the Gospel, albeit those that told Christ of the womans adultery, are Ioh. 8. V. 10. called Accusers in these wordes, Where be those thine accusers? yet such of Verse 7. them as were without sinne, were willed by him, to cast the first stone at her: Alluding therein to that lawe, Deut. 17. V. 7. that the hands of the witnesses, shalbe first vpon an offendour condemned, to kill him. So that there were none other Accusers, but the witnesses.

This is more plainely proued out of the same booke Deut. ca. 19. V. 15, 16, 17, 18, 19. after­wardes. For where it is saide, that one witnesse shall not rise against a man for any trespasse, or for any sinne, or for any fault that he of­fendeth in, but in the mouth of two or three witnesses shall the matter be established: it is foorthwith added thus: If a false witnesse rise vp against a man to accuse him of trespasse: then both the men which striue together, shall stand before the Lord, euen 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 ye doe vnto him, as he had thought to doe vnto his brother. Whereby may appeare that he that is said to accuse, is termed a witnesse three times, and his falsehood is to be found out by the Iudges inquisition. This also appeareth more plainely by the story Dan. 13. V. 34, 40, & 62. of Susanna, where the Elders were witnesses, and there were none other Accusers.

So in the Deu. cap. 21. V. 18, 19, &c. condemnation of a disobedient sonne, there is none other Accuser, but the very parents that make the complaint, and beare witnesse also.

So that we finde in Scripture, proceedings of office, grounded [Page 130] vpon Denunciation of one person, vpon heare-say, vpon suspi­cion, and vpon Notorietie of the fact, aswell by Iudges Ciuill or Temporall, adiudging vnto a temporall punishment, & by Iudges being both Ciuill and Ecclesiasticall, and by ecclesiasticall alone, inflicting the like penalty: as also by ecclesiasticall Iudges, pro­ceeding to censures ecclesiasticall, without any accusation or par­tie to prosecute, other then the Iudges themselues. And therefore criminal proceeding of office, (& consequently without Accuser) and likewise without any solemne presentment; is by manifolde examples of Scripture, sufficiently approued for lawfull & godly.

CHAP. XVI. An answere to such obiections, as out of Scripture or ecclesiasticall writers, be made against criminall proceeding of Office, by the Note-gatherer and others.

AGainst this, are obiected two places out of the Actes of the Apostles. It is not the Act. 25. V. 16. manner of the Romanes, for fauour to deliuer any man to the death, before that he which is accused, haue the accusers be­fore him, and haue place to defende himselfe, concer­ning the crime. And the Act. 23. V. vlt. other: I will heare thee when thine accu­sers also are come. By which they would gather, that the very Heathens knew it to be contrary to equitie, to proceede against a man, otherwise then by Accusation.

But both receiue one answere. In deede the vsuall and most ordinarie way of proceeding among the Romanes in veteri Re­publica, (before it was reduced to a Monarchie) was at the first in crimes capitall (where the people was Soueraigne Iudge) by way of Accusation, as is more largely touched afore. And (next vnto seruice in warre,) eloquently to accuse a man be­fore the people, was the readiest steppe, that forward wittes sought Cicero 2. offic. Plutar. in Lucul. credite and countenance by; being an especiall meane, to beare offices of honour in that Common-wealth. Vpon which occasion, it was in great credite and vse; till through sundry calumniations (to bring men wrongfully into perill of attainder,) they were forced per S. C. Turpilianum, and o­ther lawes, to lay most grieuous penalties and dangers both [Page 131] vpon those that did not proue that which they obiected, and therefore were presumed calumniari, or who did praeuaricari, i. collude, tergiuersari, wrangle, or desist from prosecuting. So that, being so dangerous to the accusers in many respects; it became afterwards, to be lesse frequented. Yet alwayes both before and after, this they obserued: that when there was any that woulde be Accuser or partie seriously, without collusion: there the Iudge neuer enquired ex Officio: for vbi adest remedium ordinarium, ibi cessat extraordinarium, as that was holden then, sauing in cer­taine cases afore by me touched.

But this Crime here obiected against Paul, was accounted ca­pitall by the Iewes, and he had ynow that were his Accusers, so that there needed to be none Enquirie, ex officio mero, against him. That he had accusers who determined to prosecute him, appeareth by these places: The Acts. 22. V. vlt. Captaine would know the certain­tie, wherefore he was accused of the Iewes. Againe, Acts. 33. V. 29. he was accused of questions of their Lawe: and further Acts. 23. V. 30. Claudius Lysias the Colo­nell, signifieth plainely by letter to Felix the Gouernour, that he had commanded his accusers to speake (before the Gouernour,) the things, that they had against Paul. So that the Gouernour not knowing the cause, and knowing that the Accusers were com­maunded to prosecute before him, had iust occasion to say, that he would then heare him, when his Accusers came. And in the next Chapter, Tertullus an Acts. 24. V. 2. Orator did accordingly come with others of the Iewes, and accused him before Felix. Likewise when he was afterwarde conuented before Porcius Festus, (the Gouernour that succeeded next) the Iewes Acts. 25. V. 7. & 18. that came thither from Ierusalem, layde many and grieuous complaints against him. And af­ter more plainely thus: against whom when the Accusers stood vp, they brought no Crime of such things as I supposed.

But to make it plaine euen out of that place, that the Romanes besides the way of Accusation vsed also (vpon cause) to enquire of Office: Lysias the Colonell (by occasion of the crie and vprore made against Paul) did without any mans Acts. 22. V. 24. instigation, (and therefore of Office) commaund that hee should be scourged and exa­mined; that he might knowe, wherefore they cried so on him. Where (by the way) appeareth, not onely that he was then proceeded with of Office, but also it was meant that hee should be (vpon [Page 132] those onely enducements) examined by torture, of matters that might be Poenall to himselfe. Neither did Paul take exception against this course as vnlawful, nor the Captaine conceiue feare, that he had done more then he could iustifie, in any other respect but this, because Paul was a Citizen of Rome. For they had a law, Duodecim Tab. that a Citizen might not be beaten with roddes, nor tortured any way, but by decree of the people. And yet any other of their subiects might be, and were often so vsed.

It is notorious to them that haue read any thing almost, of the state of that Common-wealth, that the Dictators (who for their halfe yeere had a Soueraigne authoritie) did enquire and pu­nish euen capitally, ex Officio, as they in discretion thought meete.

The Censors of maners had and practised for their fiue yeeres space, the Enquirie and punishment ex Officio, of sundry misde­meanors and dissolute courses of life; not capitally, but either by deposing men from their offices and degrees, by noting them with infamie, by corporal punishments of the lighter sort, or by fine, or by all these.

But the Note-gatherer maketh also moe quotations out of the ancient fathers; which because they mention not an othe at all, I doe therefore referre them to this place; as brought by him to prooue, that no proceeding Criminall, may be vpon the Iudges Office alone.

First, none of the places quoted out of Origen haue any resem­blance of this matter. That which he quoteth out of S. Ambrose Ambr. li. 8. [...]pist. 64. in respect of some difficultie, doth require to be plainly opened. Syagrius bishop of Verona had called afore him one Indicia, san­ctificata benedictione, a professed Virgin (as I take it) vpon questi­on of her incontinencie. There was none Accuser that tooke vp­on him to proue it; neither was any Fame risen thereof; but in­uidia conflata ipsi, she was depraued by light persons, by hereticks, and infamous men, and that by wicked practises, through bri­berie and intemperancie: yea by some such as had bene (afore) put out of her house, for actions farre vnseeming that, which they outwardly professed. But it was alledged in iustification of the saide Bishops proceeding with her, that a rumour had bene spread, that the saide Indicia had borne a childe, which she had made away. And that this rumour was so spread by certaine [Page 133] women (though but base) that ranne vnto the Monasterie, and there first bruited it, from whence it came abroade among the people, and so to the eares of one Maximus. Howbeit, these which were said to be the first authors of that rumour, were con­ueyed out of the way. Now Syagrius the Bishop there, hearing of such a rumour, and thereupon proceeding against the saide Indicia, did decree, that she should be inspected by Midwiues, for the clearing and proofe of her Virginitie. Which (as he al­ledged) he did the rather; because certaine (taking scandal here­at) did affirme; that if she should be tolerated without such in­spection, they would not communicate any more with their Bi­shop. But S. Ambrose there taxeth them thus: Quales illi, qui vo­lunt praescribere Sacerdotibus, quid sequi debeamus? What kinde of persons be these, that will presume to prescribe vnto vs Bishops, what we haue to doe? And albeit the said Maximus was (in very trueth) the Relatour Sermone suo accusationem de­tulit: aures tuas impleuit clamo­re: testes audi­tionis deduxit: cognitionem po­poscit. thereof to the Bishop; yet was there none Accuser in proper termes of Lawe so to be called, nor any that did iudici­ally denounce her thereof, Quam nullus argueret, nullus deferret.

Now because a woman of her qualitie, in so disorderly sort, vpon no better grounds of inducement, was adiudged to so vn­comely a course of clearing her Virginitie; and of so great vn­certaintie, besides the danger, that the Midwiues might be sub­orned: Therefore S. Ambrose (being Archbishop of Millaine, in whose Prouince Verona stoode) did auocate this cause from the Bishop vnto his owne audience. He therefore hearing it Iudi­cially, in the presence of his brethren and fellowe Bishops (to whom he imparted it:) besides the former defects, did finde vp­on examining of the matter, that Renatus and Leontius two wit­nesses produced vpon the Fame, which it was entended they had heard (though they were suborned) yet did they materially va­rie one from the other, in the ground of the cause. It fell out likewise by proofe, that they two had sent out of the way, Mer­curius and Lea; two other supposed witnesses, and but lewde persons. Also that another pretended witnesse, called Theudule was runne away, knowing that it would be obiected in way of exception against her; how she had lien at the saide Renatus his beds feete. Besides, another woman had also confessed, that the said Renatus did commit fornication with her.

[Page 134] Now because hereupon, no sinister or bad fame against Indicia was in Lawe sufficiently proued; but rather to the contrary a good fame was proued by one Paterna, and by the nurse of Indi­cia: therefore S. Ambrose absolued and dismissed her from such inspection, restoring her to her former good name, but cōdemning Maximus, and excommunicating Renatus and Leontius for their indirect, vniust, and calumnious dealings. Yet did he not (as he saith) simply cōdemne that kinde of purgation and proofe of Vir­ginitie, by inspection. For he saith thus: Quid ergo? Negamus in­spiciendas virgines interim, quòd nusquam legerim? Non adstruo, nec verum arbitror.

In which Processe, many pointes may be noted, to auoche the Iurisdiction of Archbishops and Bishops, and sundrie their proceedings Ecclesiasticall at this day: but I finde no footesteps or colour of any mislike. If these wordes of his, be alledged to proue, that no Criminall Processe should be made without an Accuser properly so called: viz. It is requisite, that the witnesses be voyd of partialitie; yet so that there first appeare an Accusour; this very Epistle will shewe, that such Accusour (though then they were more vsuall) is not necessarily alwayes to be required. For he findeth fault, that she was conuented, although there would appeare, neque author criminationis, neque accusator, neque professor delationis; Maximus (in trueth) being vnder-hand both a Re­latour, and a kinde of Prosecutour. So that (no Fame being there­of) if any one would but haue shewed himselfe as a Relatour, or a Denounceour; it might haue sufficed, though he were not a ve­ry Accusour, Qui delationis se nexu obligabat; as S. Ambrose there speaketh of the Inscription required (by Lawe) adpoenam Talionis, for him, which should faile in proofe. And in trueth, if Enquire of office were not lawfull, and none Accusour were to be receiued, but as Lawe and olde Canons appoint; assuredly there would be fewe or no Crimes at all in any Court euer prosecuted. So great is the trouble and danger.

Besides if the want of an Accusour, had bene sufficient to haue reuersed Syagrius his sentence, and to haue quashed the whole Processe: then what needed S. Ambrose so carefully to haue exa­mined her Fame good or bad, by so many witnesses? But that he knew (if an euill Fame had bene proued) the Iudge might by [Page 135] Lawe haue proceeded as he did, without any either Accusour or Denunceour.

So that we see, he thought it meete, and by Lawe required at his handes, for her clearing and absoluing, to make Enquirie of the Fame; albeit eche of those were wanting. And therefore he did of meere Office by way of Enquirie, proceede to the final sen­tencing of that cause. In like sort was that his condemnation of Maximus, Renatus, and Leontius, done of his meere Office, without somuch as prosecution by any other man.

Furthermore to shewe, that hee required not of necessitie an Accusour in euery Criminall cause; he maketh there a plaine se­uerance betweene the Ciuill Lawes (as in that behalfe they were then most practised) from the Lawes Ecclesiasticall, euen at that time. For (saith he) Si leges publicas interrogemus, accusatorem exigunt: Si Ecclesiae, duobus (in quit) aut tribus testibus stat omne verbum. Then where witnesses might bee had to prooue the matter, there was not in an Ecclesiasticall cause (no not in Saint Ambroses time) any Accusour necessarilie required, besides the Iudges Office.

In the 136. Epistle of S. Augustine by him also quoted, there is nothing sounding that way. Hee there onely sheweth, that Bonifacius a Priest, was not detected before him of any Crime, and that he had not commaunded his name to be razed out of the number of Priests.

In the next Epistle is contained, that the saide Bonifacius be­ing of S. Augustines householde, and perceiuing the lewde in­clination of another in that house, would neither agree vnto it, nor yet conceile it. The other being complained of by him to S. Augustine their Bishoppe, did replie; that Bonifacius, seeing hee could not (as he would) abuse his chastitie, did seeke (of spite) in that sort to touche his good name. Touching this reciprocall Crimination of one of them against the other, S. Augustine August. Epist. 137. saith thus: When this matter had long troubled mee (saith he) fin­ding no meane, whereby the one of the two might be conuinced (albeit I beleeued the Priest better) I thought at first to leaue them both to God, vntill some such iust and plaine cause might appeare in th'one of them (whom in deede I greatly held suspected) whereby I might turne him out of mine house. But afterwards calling to minde, that at the [Page 136] Sepulchers of some Martyrs, it pleased God sometimes to worke myra­culously; I willed them both to goe to the place where the Martyr Foe­lix of Nola was buried; because from thence whatsoeuer should happen from God to be reueiled vpon either of them, might most easily and faithfully be signified vnto me by writing. Can any thing hereof be gathered against Criminall Processe made of Office? Why? It mentioneth neither the one course, nor the other.

But perhaps it will be saide, that S. Augustine put neither of them to a Corporallothe. Therein he did most orderly and accor­ding to Lawe. For no Lawe would permit it in this case, the Crime being not manifested abroade by any Fame &c. And the Criminations being mutual, eche of them being Denounced and charged by the other to be Criminous. But for treating of such othes, this is not the peculiar place.

Another of his places quoted out of S. Augustine, I cannot coniecture why hee bringeth; except hee meant to alledge it against Accusation, because speaking to a Donatist of a Dona­tist, August. Ep. 164. he saith thus: Emeritum certè non decet defendere Optatum, sed fortasse nec accusare.

By the quotation out of Greg. Ep. ex Regist. li. 5. ca. 125. Gregorius Magnus, writing to Ma­ximus (that had entred into the Bishopricke of Salona, and was ac­cused of Simony) I thinke he meant these wordes, if any: Seeing (saith he) the charge of making proofes is not layde vpon thee, but vp­on him that accuseth; see thou repaire vnto vs without delay: and then there shall either an Accuser be readie, which shall duely prooue that which is obiected touching Simoniacall heresie and other matters: or else some other wholesome & due course (as the exigence of the cause doth require) shalbe taken, &c. What? Because the Accuser must proue (where that course is pursued) doth it therefore fol­low, that none other maner of proceeding is lawfull? Nay ra­ther this place (though somewhat obscurely) insinuateth that though the Accuser come not at all; yet the fault shall not be wincked at, or left vndealt with. By the way, let me note vnto you out of this place; that Gregorie did in the meane time su­spend the said Bishop from celebration of the Sacrament; till triall of his matter might be had.

In the place which he quoteth out of Theodoret, concerning proceeding of Bishops, no matter sounding any thing that way, [Page 137] can I finde. S. Basil in the place Basil. Ep. 70. by him quoted, complayning of the iniurious persecutions then vsed against Christian Bishops, saith thus: Whereas no wicked man is cōdemned sine certis indicijs, without certaine Euidence: yet Bishops are condemned by meere ca­lumnies. And a litle after he saith thus: Some know not their Ac­cusers, nor haue at any time appeared in the Iudiciall place, nor haue bene complained of at all: and yet being taken away at midnight, haue bene straight-way driuen into banishment. Who denieth, when the proceeding is by Accusation, but that the defendant should know his Accuser, that hee may be allowed his iust exceptions? But what is this to proue, that no course is lawfull, besides Accu­sation? And the fault is not alone assigned hereupon; but also be­cause they were banished, before euer they were either complained of, or were brought vnto any Iudiciall place.

In Concilio Triburiensi by him quoted, and likewise in the ninth Canon of any of the seuen Councils holden at Carthage, there is nothing (lesse or more) touching either Accusation, Othe, or proceeding of Office, to be found. And that which is in Balsa­mon in the ninth Canon of the Carthaginian Councill holden sub Honorio & Theodosio Paruo; is nothing but a Decree, that an ex­communicate person shall not bee receiued to the Communion, by any other Bishoppe or Priest, vpon paine of the like Excommunication to him that receiueth him. And the Tripartite historie in the tenth booke and foureteenth chapter, hath no more, then the said for­mer places haue, that way. In the seuenth Chapter of the same booke quoted also by him, it is said, that the old Accusers of Iohn Chrysostome were againe excited against him.

That which he pointeth at by his quotation of Marcellus Ei­shop of Rome (as I coniecture) is conteined in these wordes. Hee dehorteth Maxentius from persecuting Christian Bishops, and wisheth that they be not called in question, till that which hath bene wrongfully taken away, be restored vnto them. Marcel. ad Maxentium, inter opera Clementis, And then (saith he) let him answere his Accusers; and if it bee needefull, let him haue a competent time of deliberation, to wey those things that bee obiected against him; lest being innocent, hee be ouer-throwen by any fraude or deceite. Because it is not lawfull to iudge or condemne any man, before hee haue lawfull Accusers present, and haue libertie for his defence to auoyde the Crimes imputed to him.

[Page 138] Another B. of Romes authoritie he also voucheth to the same effect. The wordes he meaneth (I take it) are these: Damasus Pa­pa Ep. 3. ad Steph. & Concil. Afric. in 1. vol. Concil. Let not the same men be Accusers & Iudges; but Accusers by themselues, Iudges by themselues, witnesses by themselues, and the accused by themselues, euery one in his due order. For first of all Inscription must alwayes be made, to the ende that he which accuseth (if he doe calumniate) may himselfe receiue the punishment appointed for that Crime. For before this Inscription, no man may be iudged or condemned; seeing euen the Leges seculi. temporall Lawes doe retaine the same course.

Both which places doe shew, what things are required, when the proceeding is by Accusation; but speake nothing to the con­demnation of any other course. But would they, who (to abolish all proceeding of Office) do bring these places; yea, or would any other in these dayes (thinke you) for conscience sake and onely to see reformation, aduenture this Inscription ad poenam talionis, in case the defendant shalbe acquited, & custodiae similitudinem, which these places, and the Lawes doe require: and also endure excōmunication, which the Canons do (in that case) establish to be inflicted? For they may not with reason thinke it ouer hard to be bound by those Lawes and Canons, wherewith they hoped they could haue bound others. Quod quis (que) iuris in alium statuit, eodem ipse vtatur. Hitherto in answere of their obiections pre­tended to be taken from the Scriptures and ancient Fathers.

Now for closing vp of this second part, and for proofe (which with this kinde of men, I trust wilbe impregnable) that an Accu­sation is not of necessity required in proceeding Ecclesiastical cri­minallie; let them heare what is established by the Discipline Discipl. of France. tit. Eccles. Senate or Con­sistorie. Art. 11. being the 6. Ar­ticle in the Sy­node at Lions. of the French Churches, compiled together, when Beza was presi­dent of their Synode. For in this behalfe they determined, no more to be required, for calling a man before the Consistory, but that it be not done without cause, & sufficient reason. Where you see, no men­tion of Accusation to be made, either for the first preferring vp, or for further prosecution of the cause: And therefore their mea­ning was (as the ordinarie practise of all their Presbyterial Elder­ships is) to proceed Criminally against any Denounced vnto them, though it be but by one Elder in his Ward; or by any other per­son (vnto whom they giue credite, neuer knowen vnto the partie conuented) without other Presentment or Prosecution of Accuser [Page 139] or partie: and therefore of their owne meere Office.

That this interpretation is not forced, and that the practice of their Consistorial Elderships is according thereunto; may be made manifest by one Calu. Farello. pa 64. Epistola­rum in folio. of Caluins Epistles vnto Farellus. But you are first to vnderstand, that by their discipline, all dauncing is simply and absolutely forbidden, as a grieuous sinne, matched with whoredome; and is such, as for which a minister must be depo­sed from his function, no lesse for the one, then for the other. Nowe it happened, that sundry in Geneua had daunced toge­ther in the house of one Balthasars widowe, amongst whom one was a Syndicke (which is one of the foure chiefe magistrates ofthat Towne) and another of them was an Elder of the Church, for that yeere. This matter comming (I knowe not howe) vn­to Caluins eare, they were called to the Consistorie, and charged with that offence, without any Accuser or partie (and therefore of meere office) vpon none other ground, but because, Resmihi comperta fuit: saith Caluin, I knewe the matter well ynough. Neuerthelesse, all (almost) that were conuented, denied it at first very constantly. At length Caluin iudged, that they should be driuen to confesse the trueth, vpō their corporal othes. This was done accordingly, & the matter was thereupon confessed: the ra­ther, bcause Corneus (one of the same companie) gaue them war­ning, that he would not suffer any of them to be forsworne. Yet for all this, one Elder Henrich, seeing he was to be deposed from his Eldership for it, he would not so easely giue ouer his hold; but alledged against their course of proceeding with him (as in the very like case Tho. Cartwright did not long since in the Consisto­rie at Paules, before sundry honorable persons in Commission, and Cartwrightes al­legation against the othe ex officia in a criminall cause, by Caluin answered long agoe. others) that place of Saint Paul: viz. Receiue not an Accusation against an Elder, vnder two or three witnesses. But both did it with the like successe. For Caluin put him off (he saith) with a Di­lemma, & made litle lesse then a ieast, at his so impertinent an al­legation. For he saith, it was altercatio non illepida, a pleasant kinde of controuersie. Well, notwithstanding this poore de­fence, Henrich the Elder, being first reviled and rated of all; was deposed from his Eldership, and also shut vp in prison; where he did exasperate against Caluin (the chiefe cause thereof) the ha­tred of so many, as did beare vnto him but sclender good will [Page 140] afore. The Syndick also, was for the same offence put out of his A chiefe Ciuill magistrate, depo­sed by the Elder­ship of Geneua, for dauncing. Magistracie; vntill he should shewe foorth some publike testi­monie of his penitencie.

Diuers others of that merie companie, were likewise for the same crime imprisoned. And Perinus, though for a time he were stept out of the way as farre as to Lions; yet doe what he coulde, Caluin there protesteth, that he should not scape vnpunished. So that we see, it was made no Peccadillo, or trifling sinne, but an heinous criminall matter (worthie of degradation, of publike penance, and also of imprisonment) against which that Consistorie so proceeded without Accusation or Presentment, and of meere of­fice, euen against one of the Elders of their Church, and also a­gainst a principall Magistrate of their Citie; and for which, all that denied it, were compelled to make answere vpon their cor­porall oathes first taken; to answere the whole trueth, which in that behalfe they should be asked, by those of the Consistorie. Which not onely touched euery mans owne acte, but (no doubt) reached vnto all their Complices also, which had troden the same dismall daunce together with them.

Thus much of this second part touching the two sortes of proceeding criminall; viz. by Accusation, and vpon the Iudges Office by way of enquirie; and for the iustification of the latter of them, by reason, by lawes temporall of this Realme, by lawes Ciuill of the Romanes, by Canons, by examples and proofes out of Gods worde, by auncient Fathers and Councils, and by practice of such moderne Churches, as the greatest oppugners of this course doe ac­count to be best reformed: And there­fore is manifoldly warranted, both by humane and diuine approbation.

The ende of the second part.
THE THIRD PART OF AN …

THE THIRD PART OF AN APOLOGIE, FOR SVNDRIE PRO­ceedings by Iurisdiction Ecclesia­sticall; of late times by some cha­lenged, and also diuerslie by them impugned: Treating Of Oaths: but more specially, that oaths may be imposed tending to the discouerie of a mans owne offenses, and of his brethrens.

Vnto the end whereof is adioyned; A Determination in Latine: made (to like effect) by Master D. ANDREVVS, in the Vniuersitie of Cambridge.

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Imprinted at London by the Depu­ties of CHRISTOPHER BAR­KER, Printer to the Queenes most excellent Maiestie.

An Aduertisement vnto the Reader.

I Haue not quoted (gentle Reader) any Pages in the Treatisours or Notega­therers writings, which I haue occasi­on to alleage: because those which I fo­lowed, are but priuate written copies. but when I had almost finished the reuiewing of this Part; I was credibly tolde, that the sayd Treatise was put foorth, and spred abroad in Print: from Scotland, or from Middleburgh. and I haue since seene the same in print: howbeit varying in certaine places from my Copy, namely a­bout the latter ende thereof. For there bee some additions, which (in my iudgement) differ no lesse from the stile of the rest; then they doe from the written copy.

Farewell.

The Contents of the Chapters in this third part.

MAtters in this third part to be handled: Of the lawfulnesse of Oathes: What an Oath is: and the reason or originall Formall cause, of the vse of Oathes. chapter 1

An answere to certaine doubtes made concerning Oathes; as namely why in Scripture, God is said to haue sworne: how (by Oath) he is said to be called to witnesse: an Oath no chapter 2 tempting of God, but a part of his worship: way (neuerthelesse) some are repelled from ta­king Oath: whether Adiuration be lawfull: after whose meaning an Oath is to bee vnder­stoode: whether euery Pr [...]m ssor [...]e Oath, bee simply to be kept: whether an Oath may bee dispensed with, and how farre: and whether a Christian may (by mutuall Oathes) contract with him, that sweareth by false gods.

Diuision of Oathes according to the outward forme of taking them: according to the matter and inward forme of them: with plaine description of euery kind of oathe. chapter 3

That the ceremonies vsed in taking and giuing corporall oathes, with laying hands vpon chapter 4 the Bible or Testament, and swearing by the contents of it, are not vnlawfull.

The true issue of the next opinion in question: two sortes of crimes and offences prohibi­ted: in what cases an oath (here spoken of) may not be: ministred: and the manifolde con­ueniencie chapter 5 and necessitie of an oath (sometimes) to be ministred in a cause criminall and pe­nall vnto the partie: with some fewe obiections, touching inconueniencie thereof, an [...]wered.

That oathes of men touching matters dammageable, criminall and penall to themselues, chapter 6 are vrged and exacted by temporall Courts, and by the lawes of this Realme.

Wherein are conteyned answeres to such obiections and reasons, as be made for proofe of a chapter 7 contrarietie or repugnācie in these oathes, vnto the statutes, lawes, or customes of this Realme; and a Replie to the Treatisors answers, made vnto certaine obiections, supposed likely to be made, in Iustification of this kind of oath, by the temporall lawes.

That ministring of such oathes, is by the Lawes of the Realme allowed vnto Iudges of Ec­clesiasticall chapter 8 courts: and some fewe obiections made to the contrary, are answered.

That such oath touching a mans owne crime is allowed, both by the Canon and Ciuill chapter 9 lawes: how faire, and in what sort: and that the like is established, and thought equall, by the lawes and customes of sundry other nations, a [...]well ancient, as moderne.

An answere to some obiections, pretended to be made against this kind of oath, from the chapter 10 lawes Ciuill or Canon.

That not onely such an oath may be taken, but also being by Magistrates duely commaun­ded, chapter 11 ought not to be refused, is approoued by Scriptures; by practise of the Primitiue Church, and of late times; together with a Replie vnto certaine answeres, made vnto some proofes here vsed.

An answere to such obiections, as be pretended to be gathered from Diuinitie, Diuines, chapter 12 and from the Examples of godly men; against ministring oathes vnto parties, in matters of their owne crimes.

Foure seuerall opinions of the Innouators, against the parties taking of oath in criminall chapter 13 causes, with answeres also vnto their reasons, and obiections.

That a man being charged by authoritie to discouer his knowledge touching some of­fence chapter 14 which his Christian brother is supposed to haue done, is bound to reueale it; though it may breede trouble, and punishment to his brother, and the reasons to the contrary are an­swered, and refuted.

Their arguments are answered, that condemne the ministring and taking of an oath as chapter 15 vnlawfull, because they haue not distinct knowledge giuen vnto them of euery particular be­fore the taking of it; and the like course (by examples) is approoued lawfull, and godly.

That after the partie hath answered vpon his oath, it is neyther vnusuall, vnlawfull, not chapter 16 vngodly; to seeke to conuince him, by witnesses, or other triall; if hee bee supposed, not to haue deliuered a plaine and full trueth: and somewhat also in approbation of Canonicall Purgations, with answere to the Treatisours obiections against them.

The third part of an Apologie for certaine proceedings by Eccle­siasticall iurisdiction, of late times by some chalenged.

CHAP. I. Matters in this third part to be handled: Of the lawfulnesse of Oathes: What an Oath is: and the reason or originall For­mall cause, of the vse of Oathes.

THat which followeth in this third part of Apologie to be handled (according to the order that I haue proposed to my selfe in the Preface before the second) are the chalenges taken either to the oath of the partie, which is sued & con­uented: & they are either against the ce­remony & outward actions vsed in taking it; or els because it is giuen to tie the party to answer in a cause criminall & penall vnto himself: or else they are against examining & vrging men to depose touching actions of their brethren being criminall; or at least such; as albeit the examiners do hold and make to be criminall and misdemeanors; yet the examinates themselues, doe take them for good and godly, not deseruing any pu­nishment, but rather high commendation: Or they doe touch some circumstance, concurring with the tender of the oath: as that the examinates haue not distinct knowledge of euery particular, whereup­on they are to bee examined before they resolue, whether to take the oath, or not: Or lastly, they concerne some euent ensuing the oath and examination: as that the Iudges doe not rest in that which is affirmed or denied vpon the parties oath; but oftentimes proceed to a further examination by witnesses, concerning the same points.

This matter of an oath is a principall chalenge of theirs, which they drawe and spinne out into these particular exceptions and chalenges as yousee. And it is the thing (together with procee­ding against crimes and offences, by way of Enquirie, Ex officio) [Page 2] wherein you most especially desired a full resolution, which would to God, either in the rest or in this, I were as able to doe; as I am readie and willing: and as the matter it selfe and good­nesse of the cause would yeeld and affoord, to a skilful and suffi­cient man. But the rather to performe my promised vtmost en­deuour; I hold it not amisse, for better vnderstanding of the rest, to touch (as brieflie and plainly as I can) the nature of an oath, and some (I trust) not vnnecessarie questions about that matter which I haue collected.

First I will touch (but very briefly, not taking vpon me to doe it, in sort as Diuines could) the lawfulnesse of oaths with answere to some obiections, which is the question An sit? I will stand the lesse herein, least I seeme to seeke, to drawe any of them into ha­tred; as if these innouating disciplinarians did directly condemne oathes before Magistrates; which most solemnly they protest, they doe not. Albeit if all their positions (hereabouts) were scan­ned and compared together (some holden & deliuered by one, and some by others of them) both shrewd and lewde conclusi­ons, pricking fast forwarde to this point; would necessarily there­upon follow.

Next I wil handle what an oath is: which is the question Quid sit? Then the originall Formall cause, and also finall of an oathe; which is the question [...], (that is) why it is? Afterward, cer­taine not vnnecessarie points of doubt; which be made concer­ning oaths, and therefore neerely tending to the better opening of the qualities of them. And lastly how many sortes and seueral kinds of oaths there be; with some description of them: where­by you may the better vnderstand what they are, and how they differ one from another: which two last doe open the question [...], of what sort and qualitie the oath is.

The lawfulnesse of an oath appeareth; in that wee are in the Exo. 20. v. 7. Deut. 5. v. 11. Decalogue forbidden, to take Gods holy name in vayne: And in Exo. 19. v. 12. Exodus it is sayd: Yee shall not sweare by my name falsly: neither shalt thou defile the name of thy God, I am the Lorde: So that to sweare, is not simplie and absolutely forbiden; but swearing in vayne, and for swearing. In Deut. 6. v 13. Deut. 10. v. 20. Ies [...]. 45. v. 23. Deuteronomie there is a flat com­mandement to sweare: and it is there ioyned, with the feare and seruice of God, as being an effect of both: Thou shalt feare the [Page 3] Lord thy God, and serue him; and sweare by his name. And in the prophet Iere. [...]. v. [...]. Ieremie thus, Thou shalt sweare, the Lord liueth, in trueth, in iudgement and in iustice; and the nations shall bee blessed in him, and glory in him. And againe the same Prophet pronounceth a blessing vpon such; as duely, and as they ought, doe sweare by the holy name of God. Iere. 12. v. 16. If (saieth he) they will learne the wayes of my people to sweare by my name, The Lord liueth, as they taught my people to sweare by Baal: then shall they be built in the middes of my people. And the prophet Dauid Psal. 63. v. 11. thus: All that sweare by him shall reioyce in him, for the mouth of them that speake lies, shall bee stopped.

We finde euen in the New Testament, that the Apostle Paul did diuers times sweare: as Rom. 1. v. 9. first, God is my witnesse. And againe; Rom. 9. v. 1. I speake the trueth in Christ, I lie not, my conscience bearing mee witnesse in the holy Ghost. Likewise in 2. Cor. c. 1. v. 23. another place, I call God to witnesse vpon my soule. Whereupon S. August. ad Pub­licol. & Serm. 30. de verbis Apo­stoli. Beda in 1. Cor. ca. 15. Augustine thus collecteth: That ye may know it is no sinne to sweare truely; we find the Apostle Paul to haue sworne.

Therefore where Christ telling what was sayde of olde time, viz. Mat. 5. v. 33. & 34. Thou shalt not forsweare thy selfe, but shalt performe thine oaths to the Lord, doeth after adde this; Sweare not at all: must haue another interpretation, then Anabaptists (that be aduersa­ries to all oaths) doe frame: for the holy Ghost is not contrary to himselfe. There is not one God who is authour of the old Testa­ment, and another of the New (as some blasphemous heretikes hold) and Christ came not to dissolue the Morall lawe of God, but to fulfill it: and the holy men that are reported to haue vsed oaths both in the old and in the new Testament, and haue allow­ed them by their Canonicall writings; were no takers of Gods holy name in vayne, nor mistakers of Christes meaning: for they had the spirit of Christ speaking in them.

In which respect S. August. lib. de mendacio, c. 15. Augustine saieth hereof thus: By that which the Saints and holy men in Scripture did practise, may bee ga­thered (oftentimes) how the commandements comprised in it, are to be vnderstood. How then is that commandement of Christ to be vnderstood? The same Father in the same Ibidem, & lib. 1. de Serm. Domini, c. 30. place doeth teach vs. The Apostle (saieth he) in that he sweareth in his Epistles, doeth thereby shew vnto vs; how that saying is to bee vnderstood: viz. I say [Page 4] vnto you sweare not at all: that is not so to sweare, as to doe it lightlie and easilie, and so (happily) to fall from that vnto a custome of swea­ring, and from customable swearing, vnto playne for swearing. There­fore wee finde not that the Apostle did sweare; but in his writings: where a more warie consideration is a staie vnto the rashnesse of the tongue.

And againe the same S. Ep. 158. ad Publicolam. Augustine to like effect as afore, doeth elsewhere write: It is sayde in the new Testament that wee ought not to sweare at all, which seemeth to me therefore to haue bene sayde, not as if it were sinne to sweare, but because to for sweare is a most hainous sinne: from which he would haue vs to bee farre off, in that he admonisheth vs not to sweare at all. And he Serm. 28. c. 3. de verbls Apo­stoli. briefly thus de­termineth hereof: Ecce verum iura, non peccas. S. Ierome doeth thus expound Hierom. in 5. Matth. that commandement: Christ doeth not here for­bid vs to sweare, but meaneth that we should not sweare by creatures.

It is grauely and truely sayde by a very learned Schooleman Thomas 2, 2. thus: An oath in it selfe is both lawfull and honest: this appeareth by the originall of it: which is because men beleeue that God is trueth that cannot be deceiued, and also hath knowledge of all things. Like­wise by the ende, because an oath serueth oftentimes for cleering of men, and taking vp of controuersies; as is sayde in the sixt chapter to the Hebrewes: but yet an oath may turne to the euill of him, which v­seth it ill: that is, without necessitie, and due caution.

And therefore where it is sayd by Matt. c. 5. v. 37. Christ: Let your communi­cation be yea, yea: nay, nay: for whatsoeuer is more then these com­meth of euill, hath another meaning then it seemeth to carrie at first shew ex cortice verborum: For S. August. lib. 1. de Serm. Dom. in monte. c. 30. Augustine saieth in ano­ther place, thus: If thou be compelled to sweare; know that it neces­sarilie commeth of their weakenesse, whom thou goest about to per­swade; and this infirmitie is a kinde of euill. Therefore he doeth not say, whatsoeuer is more; is euill, but commeth of euill. For thou doest not euill that vsest thy swearing well, to the intent to perswade another man in some matter of moment: but it commeth of a kinde of euill in him, for whose infirmitie thou art compelled to sweare. And in ano­ther place thus: August. in c. 1. ad Galat. Albeit an oath be more then yea, yea, or nay, nay, and therefore commeth of euill: yet commeth it not of euil from thee, but of their infirmitie, or not beleeuing of thee without an oath. But Gratian teacheth [...]. q. 1. c. 16. vs, that by this worde (Euill) in this place wic­kednesse [Page 5] 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 shalbe touched after­wardes: The third word is, Sacramentum, à 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. 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 Cic. 3. Offic. defineth it thus: Iusiurandum, est affirmatio religi­osa. 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 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. Hieron. in 4. Ieremiae. Ierome saith: where we finde in the olde Testament, The Lord liueth, this is an Oath. And an other olde 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, [Page 6] 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, thē 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; 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 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, [Page 7] that albeit his periurie may be hidden from men, yet can it not be con­cealed from God. And another in this sort: Terent, in He­cyra. I know nothing more sacred then an othe, whereby I may approue my faith vnto other men. And 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 L. Antistius. ff. de acquir. ha [...]ed. he which sweareth doth not onely declare, but confirme and establish thereby, his true meaning. And that law calleth it a 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 c. cum contin­gat. &c. li vero, de iureiutando. vinculū animae, a band of the soule; borro­wing that speech frō Diuines. Demost. contra Baeotum. Demosthenes saith; that an oath is the greatest and grauest matter, that is amongs men: and as he else­where doth testifie; 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 Arist. 1. me­taph. cap. 3. thus: [...]. most anci­ent is most honourable: but an othe is a most worthie or honourable thing. And an heathen 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. Aristot. 1. lib. Rhet. ca. 15. in fine. Aristotle could discerne thus much. [...]. hee that standeth not to his othe, or performes not what hee sweareth, turneth all the world vpside downe.

It is written of Plutarch. in apotheg. Aelian. 14. var. lect. c. 2. Agesilaus, when he heard howe Tissaphernes the Generall of the Persians had broken the league, which was mutually agreed vpon, and also confirmed by othe betwixt them; that hee saide he tooke himselfe greatly beholding to Tis­saphernes for it; for he doubted not, but God and men, woulde take vengeance on him that had periured himselfe; and woulde on the other side prosper, and giue good successe vnto himselfe in those warres; who was willing to keepe his othe, but was de­ceiued by the other. And Plato lib. 12. de legibus. Plato accounted periured persons, as so many monsters amongs men; and therefore sayth; they seeme to be of the race of the Tytanes, insomuch as (by their per­iuries) they doe no lesse then those Gyants were fayned to haue done, that is, euen wage battaile with God himselfe. Hitherto concerning some part of the nature of othes.

CHAP. II. An answere to certaine doubtes made concerning Oaths; as namely why in Scripture, God is said to haue sworne: how (by Oath) he is said to be called to witnes: an Oath no tempting of God but a part of his worship: why (neuerthelesse) some are repelled from taking Oath: whether Adiuration be lawfull: after whose meaning an Oath is to be vnderstoode: whethere uery Promissorie Oath, bee simply to be kept: whether an Oath may be dispensed with, and how farre: and whether a Christian may (by mutuall Oaths) con­tract with him, that sweareth by false gods.

SEing then (as the Ad Heb. 6. v. 16 Apostle testifieth) an Oath is made by him that is greater: it may be asked, how (in Scriptures) God is reported, to haue sworne?

The same Scripture doth answere it selfe, in this point: for it is there saide; that men when they sweare, do sweare by a greater, but Ibidem v. 13. God hauing no greater to sweare by, did Genes. 22. v. 16. Isai. 45. Ierem. 49. v. 13. Ierem. 22. v. 5. sweare by himselfe.

Nowe because an Oath is for a confirmation of trueth vnto o­thers, least he be supposed to speake vntruely, as hath bene said: how can this doubt fall in God, who is trueth it selfe? I answeare (as afore) it is Hebr. 6. v. 16. amongs men, that an Oath, is for such confirmati­on. But when in Scripture God is reported to haue sworne; this is not, in respect of any possibilitie, that defect of truth may hap­pen to be in his diuine Maiestie, which had neede so to be con­firmed, or as if it were not needefull for vs wretches, to rest in his sacred single word: but it is done, Ibid. v. 17. 28. more abundantly to shewe vnto the heires of promise, the setled incommutabilitie of his counsell or decree: that by two vnchangeable things, in which it is impossible God should faile, or be deceiued; we might haue strong comforte. So that thereby we are taught to our comfort, that what is so con­firmed by Gods Oathe; doth proceede, from the infallible and vnremoueable determination of Almightie God.

It may be asked, in what respects God is said to be called vn­to witnesse by an Oathe?

I answere with the Schoolemen, for two respects: the first is, [Page 9] because he oftentimes reuealeth and bringeth foorth the verie trueth of a matter (vntruely deliuered by any man) either by in­ward inspiration of some other person, or else by bringing it to the open light and view of the worlde, which (afore) was kept close and secret. The second consideration is for his punishing of all those, that sweare vntruely: and heerein hee is as in this worlde their witnesse; so either heere, or in the world to come; he is their Iudge, and a reuenger. A ciuil Lawyer, though but an heathen, could say, Quipeierat, Deum habet vltorem, God him­selfe will take vengeance, of a periured person.

Neither can an Oathe be saide to be a tempting or a prouo­king of God, so long as it is vsed, but vpon necessity, or good oc­casion.

An oath is said to be a seruice and worship yeelded vnto God himselfe, in a two-fold regarde: the first is, in that we sulfil and performe that, which we sweare: the second, in that by calling of him to witnesse, we do withall acknowledge, that he knoweth all things; and is a swift Iudge and Reuenger of all those that loue or make leasings.

So that albeit an oathe, in respect of the matter concerning which it is made (for the most part) may be termed an humane and ciuill matter: yet in respect of him who is called to witnesse; it is alwayes a diuine, and a religious acte.

But insomuch as an Oath is (vpon diuerse occasions) necessa­rily required of vs, as a peece of Gods seruice & worship: it may be questioned; why some sorte of men are repelled by politike Lawes, from taking any Oath, and from bearing testimonie? I answere, that children, mad men, and such like, are not admitted to take oathes; because they haue no perfite vse of reason: and therefore do want that due and reuerend consideration, and also that Hierem. 4. v. 2. iudgement; which the worde of God requireth, besides trueth and Iustice, to be had and vsed in taking of an Oath. but periured persons, are therefore to be repelled; because by their demeanour fore-past it is made apparant, howe slender account they make of Gods holy name: for their contempt (in this be­halfe) is intended still to rest in them: Semel malus semper praesumi­tur malus; praesertim in eodem genere delicti.

It is made doubtfull (in diuerse respects) whether euery or [Page 10] any adiuration be lawfull to be vsed amongs Christians? the re­solution whereof, will best (I thinke) be made manifest, by the definition thereof, and by distinction.

To adiure (as Thom. 2. 2. q. 90. in Axiom. Aquinas doth define it, though not altogether so generally) is nothing else, but to induce or prouoke one to do or o­mit something, by vsing or interposing of the name of God, or of some other sacred thing. This is vsed either towards our selues, or else towards others. towards our selues, as when by a promissorie Oath or vow, we binde our selues solemnly to God, for performance of something. And this kind of adiuration may be lawful, or vn­lawfull; according to the seuerall qualities and circumstances of the matters; which wee haue so adiured or bound our selues to performe; which is not my purpose (here) at large to prose­cute.

The consideration of adiuring others reacheth either to such, as be no way vnder the Adiurers auctoritie, or to such as bee. Of those which bee not vnder the Adiurers authoritie; the first, is God aboue all. Now, albeit we vse in our prayers vnto his diuine Maiestie, sundrie vehement obtestations, as by his holie name and for his Gospels, and his sonne Christ Iesus his sake, and for the promisses made in him: yet is not this (properly) to be called Adiuration; as though by this earnestnesse we thought men could, or did meane, to mooue or change his will, which is immutable: but that hereby we may the better enkindle, and stirre vp our owne faith: to the ende, we may be more fit to ob­taine that, which in his eternall wisedome he hath decreed, and though fit to bestow vpon vs.

The second member is of such, as be creatures, and these are either vnreasonable: towards whome (as I take the matter) all Adiuration as it is vaine (in that they heare vs not, or vnderstand vs not) so is it also vnlawful: or else they be reasonable creatures. Of reasonable creatures not subiect to the Adiurers authoritie, some be Spirits, and some be men. To adiure Spirits being absent, whether they be good or euill Spirites, seemeth both vaine; and vnlawfull: for that wee haue neither warrant so to doe, nor yet, that they doe or can heare vs. Besides that, their actions are not subiect to our directions, but vnto Gods alone. For (as Aqui­nas there alledgeth out of Saint August. li. 3. c. 4. de Trin. Tom. 3. Augustine) Spiritus descrtor, [Page 11] regitur per spiritum [...]stum. But if they be euill Spirites, though they certainelie might bee knowne to bee present, in respect some that them are thought to be condemned into the aire, some into the waters, and some into the entrailes and caues of the earth, as diuers very learned men doe holde: yet to doe this; with intent to learne or obtaine anie thing of them, it is (without doubt) simply vnlawfull; and they Deut 18 ver. 10, 11 & 12. before God abhominable, that so doe adiure, or contract any familiaritie with them. But the sayde learned Schooleman, by force of that place of Saint Luke 10. ver. 1. 9. Lukes Gospell, viz. Beholde I giue vnto you power to treade on Serpents and Scorpions, and ouer all man­ner power of the enemie, and nothing shall by any meanes hurt you; thinketh it lawfull for vs, in the name of God, to adiure euen e­uill spirites; to the end onely, that they hurt vs not, either spiritu­ally or bodily.

But the Adiuring of such men, as be not vnder the Adiurers power or subiection, is sought to be done, either by way of com­pulsion or seeking to lay vpon them (thereby) such a necessitie, as a man may (by vowe) impose vpon himselfe, (which is vnlaw­full, because it is an vsurpation of a power ouer another, that is not giuen him) or else; it is by way of perswasion, to mooue him, the rather by the respect of the sacredname of God. and this is thought not vnlawfull to bee vsed, in matters lawfull, and of importance.

There resteth onelie nowe to speake, of the vrging (by course of Adiuration) of such other men, as bee vnder our authoritie. This vrging is doone; either in waie of absolute compulsion, or else but causatiuely. Absolute compulsion (in this matter) I call it; when a man seeketh, as deepely and ne­cessarily, by such Adiuration, to tie a mans will and consci­ence: as hee may doe, by the like obtestation of Gods name, binde his owne will and himselfe. And this Adiuration is very vnlawfull: because euery man is lorde and guider of his owne will, & of his owne voluntarie actions, but not so of anie other mans. And according to this acception is that of Origen. hom. vlt. in Matth. Tom. 3. Origen to bee vnderstoode, where hee sayth thus: I thinke, that hee which will liue according to the Gospell, ought not to adiure an­other man: for if by Christes commaundement in the Gospell, it [Page 12] be not lawfull to sweare; it is euident, that a man may not adiure an­other: and therefore it appeareth, that the high Priest did vnlawful­ly adiure Christ, by the liuing God.

But if it be but compelling causatiue, that is in respect of the duetie which euery inferiour (by oathe or otherwise) oweth vnto his superiour, proceeding iustly and according to Lawe: then is this Adiuration lawfull; and requireth necessarilie, the inferiours obedience therein, vpon perill of sinne and pe­naltie of the Lawe. The vse heereof we reade as well in the Olde, as in the Newe Testament. Prou. 29. v. 24. Salomon sayeth, Hee that is partener with a thiefe hateth his owne soule, for heeheareth cur­sing, and declareth it not. I am tolde by those that are very skil­full in that language, that the Hebrewe interpreters doe ex­pound this cursing (which is heere spoken of) to bee an Adiu­ration and cursse, that was vsually made by the Priests against such; as had secretely doone, or knowen of any offence: to in­duce them hereby the rather, to reueale it.

And in the New Testament, the very word of Adiuration is vsed by Saint 1. Thess. 5. v. 27. Paul. [...]. I adiure you by the Lorde to reade this Epistle to all the holie brethren. And it is woorth the consideration, whe­ther that be not also an Adiuration where he Ephes. 4. ver. 17. saieth, [...] &c. This therefore I say and testifie in the Lorde, that yee walke not as other Gentiles walke, in the vanitie of their minde. Thus farre of Adiuration.

Where there may bee some doubt by reason of the variable acception of some wordes of an oath; question is made accor­ding to what sence, such oathe must be vnderstoode, taken, and performed by him that sweareth.

This question doeth Isid li. 2 ca. 31. de summo bono. Isidore thus answere: with what cautell of wordes soeuer a man doeth sweare; yet God, that is witnesse of the conscience, so takes it, as he that giues the oath, doeth vnderstand it. For that man which will take vantage vpon the wordes of it, is guilty two wayes: both because he takes Gods Name in vaine, and also cir­cumuents another by deceite. therefore if hee that sweareth meane simply and not guilefully, then is he bound, according to his owne in­tention. But when the wordes are or may be of another signifi­cation, then either the taker, or the tenderer of the oath doeth [Page 13] meane; In this case, it is thus by Aug. serm 28. cap. 2 de verbis Apostoli. S. Augustine grauely & briefly resolued: ream linguam non facit nisi mens rea: It is not the words, but the guiltie heart that maketh the periurie: which it seeemeth he translated out of Arist. 1. Rhet. cap. 15. Aristotle, [...], for­swearing is of the heart, and not of the mouth alone.

Thomas of Tho. 2. 2. q. 91. ar. 7. Aquine (in this behalfe) thus writeth: when the meaning of him that sweareth, and of him that tendereth the oath, is not the same; if this doe happen, by the fraudulent meaning of the taker of the oath: then ought such oath to be kept, according to the sound intent of him, to whome, or by whome it is tendered: In which respect, the olde verse is to good purpose:

Glo. in Auth. iusiurandum.
Fallit iurantem, iuratio facta per artem.

A cautelous & crafty oath (in trueth) deceiues none so much as him, that taketh it: if by his owne fraude he thinke to escape periurie. therefore wheresoeuer any fraude or cauill is vsed by him that taketh the oath; there periurie in the sight of God, is committed. Martial. li. 6. Epigr. Martiall butan heathen Poet, could discerne thus much:

Iurat capillos esse quos emit, suos,
Fabulla: nunquid ille Paulle peierat?

A man weares haire on his head that he bought, and yet sweares they be his own haires: I pray you sir is he for sworne, or not? Friuolous then and ridiculous is that excuse, whereby Popish writers would ex­cuse their S. Francis of a lye, vnder pretence of his charitie, and good zeale. Angel. in li. 3. § si tibi iudic. ff. de condict. ob turpem causam. For on a time, a manslayer came fleeing away by him; and being pursued with hue and crye; Fryer Francis was asked by one of the pursuants, whether he saw such a man passe that way, or no? whereunto (putting first his hand into his sleeue, or as some write, his finger in his eare) he answered, that he saw no such mā passing that way, meaning through his owne sleeue, or eare. In deede such deceitfull answering or swearing, is so farre from excusing a man from vntrueth & periurie; that Cic. lib. 3. Of­fic. Tully sayth thereof thus: fraus distringit non dissoluit periurium, fraude and cautelous dealing, doeth not excuse or qualifie; but tyeth harder, and enwrappeth a man further into periurie. Hereupon it is also said in lawe, thus: Gl. in. c. quem­admodum. de iu­reiurando. Conditiones tacite subintellectae non fa­ciunt iuramentum conditionale, conditions and priuate protesta­tions, which hee that sweareth frameth in himselfe, or keepeth [Page 14] in his owne minde, doe not make the oath to bee conditionall which is giuen him simply.

It may also be asked, whether euery promissorie oath, is simply and absolutely to be kept, or howe farre?

For answe [...] hereof, I wil note vnto you, what I finde (proba­bly) sayde; and then leaue the exact resolution thereof, vnto graue Diuines.

Euery such oath, is simply to be kept, if it happen not into some of the three cases here touched.

The first of these cases is; when the thing, by oath promised or vowed to be done; was (in very trueth) euen at the first ta­king of it, simply, and in it selfe euill; howbeit perhaps not then discerned so to be, by him who tooke the oath. And in this case, the partie sinnes grieuously in swearing; but more grieuously hee should sinne, if hee kept his oath. For euery oath must be made Ierem. 4. V. 2. in iustitia, in righteousnesse. And 22. q. 4. per totū praesertim c. inter caetera. Augusti Seuero. &c. quā to. de iureiuran­do. iuramentum non est vinculum iniquitatis, vel cuiuscunque criminis, sayeth Saint Au­gustine: an oath tyeth no man to doe that which is wicked. To like effect sayth Isidorus, In Ibidem c. in malis ex l sidoro in synony. lib. 2. malis promissis rescinde fidem; in turpi vo­to muta decretum; quod incautè vouisti, ne facias: impia est enim promissio, quae scelere adimpletur.

The seconde case is, when that which is promised by such oath; is an hinderance and impediment to a greater good, as if a sufficient man for it, should sweare neuer to be a minister of Gods worde and Sacraments; what desire soeuer him selfe should afterward haue thereunto, or what neede soeuer the Church of God should haue of his helpe in the ministerie. In such a case, hee sinnes by his rash swearing; but not in keeping the oath, as the Schoolemen holde, albeit they thinke it better he should breake the like oath; then that he should keepe it.

The thirde case is, when as some vnlooked for accident is discouered, or falleth out afterwarde; that was not thought vp­on before. Nowe, if by such euent ensuing, the oath cannot be perfourmed without crime and impietie; then (without doubt) is such perfourmance of the oathe a sinne, as well as in the first case of the three. Saint Ambrose in this Ambros. de of­fic. lib. 3. c. 12. behalfe sayth thus: It is sometime against Christian duetie to perfourme a vowe promised by oathe: so Herode offended which put Iohn Baptist to [Page 15] death, rather then he would goe backe with his oath and promise. Yea euen where such oath might bee perfourmed without sinne; yet may there be sundry cases, wherein the partie is thought not to be bound, vnto performance. As imagine, that I be­ing to receiue L. finali. C. de non numer. pe­cunia. money which is in telling for mee; doe in the meane time (in assured hope to receiue it) seale an obligation, and withall sweare to pay vnto him so much money at such a day. Neuerthelesse if the intended creditor shall thereupon re­fuse to deliuer me any money; or if any other accident (with­out my default) doe happen, whereby I could not receiue it; in such a case, neither mine oath, nor obligation doeth binde me, to performance and paiment. Therefore these rules ensuing are gathered out of that, and sundry other like lawes, viz. iura­mentum non porrigitur vltra consensum. Arg. l. Quod Seruius ft. decon­dictio causa dati. Censetur clausula apposita in iuramento, quod promissio valebit, rebus in eodem statu remanen­tibus. c. tua nos. de eccles. aedific. Iuramentum non extenditur ad inopinata. Non c. veniens. &c. Quinta vallis. de iureiurando. c. ex multiplici. de de­cimis. Arg. c. audi­ta. de restitut. spo­liatorum. extenditur ad ea de quibus non est cogitatum. And Iuramentum c. ad nostram. el. 2. de iureiu­rando. non extenditur ad incognita. And vpon these grounds it was; that the Empe­rour Vespasian did Sueton. in vi­ta Vespasiani. release, or (as we more vsually nowe speake) dispense with a certaine knight of Rome, for his oath. This knight had solemnly sworne vnto his wife; that he would neuer put her away. Which he might (otherwise) lawfully haue done (by the heathenish custome of that Citie then) either for any iust cause, or for no cause at all. After this oath, the wife was taken in ad­ulterie; therefore the Emperour, dispensing with her husbands oath (because in all likelihoode, the knight in so swearing, ne­uer dreamed of such a trecherie) the knight then without scru­ple; did repudiate, and forsake his adulteresse wife.

For the like L. vlt. ff. ad mu­nicipialem. reason did Antonius and Uerus Emperours, dispense with the oath of one (being chosen Duumvir, a chiese Magi­strate in Municipio, not much vnlike vnto one of the Consuls in Rome) who had afore sworne; that hee would neuer after that time be present in any meetings or assemblies of the Senators, or Decurions there. Out of which place, a Alberic. de Ros. in l. quotiens C. de precibus Imper. offer. writer vpon the Ci­uill lawe doeth gather; that the Emperour may dispense with a mans oath.

Here then another great, and not vnnecessarie doubt ariseth; whether any man may discharge or dispense with another mans [Page 16] oath; and if he may, how farre, and in what cases this may bee done?

In answer whereof; we are first to vnderstand, that according to the distinction of times, into time past, present, or to come, there is also diuersitie of oaths. One kind of oath (in such regard) is ter­med Assertorie; which is an affirmation or deniall with oath, touching some thing that is past or present. Nowe there is no doubt, but that this oath cannot at all be discharged, released, or dispensed with; by any humane authoritie. for the matter of it being either concerning a thing past, which cannot bee altered and reuoked; or present, which is also immutable; insomuch as it is impossible for a thing both to be, & not to be at once: there­fore, the oath it selfe must needs be vndischargeable, and vndi­spensable: for to giue a dispensation herein, were no lesse, then (in effect) to determine; that it is lawfull to haue trueth wanting in some oaths: insomuch as other dispensation then this, the nature of things past or present, cannot admit.

The other kind of oath, is called Promissorie: whereby a pro­mise (confirmed by an oath) is made, that some thing shall bee done or not done, hereafter. And about this kinde of oath, the doubt onely resteth.

This Promissorie oath is made, either touching such matters as doe immediately and apparantly tend to the aduancing of the glory of God, or to the benefite of sundry others, whether such benefit be spirituall or corporall: or concerneth such matter, which euidently derogateth from the glory of God, or from the benefite of others; or it is of a matter tending to the onely profite and be­nefite of some particular man; to and for whose behoofe such promise (with oath) is made: or lastly, it consisteth and is be­stowed vpon such matter, as by reason of some euent happening, or at least discouered afterward; it may bee iustly thereupon doubted, whether the oath it selfe doe binde or not, bee lawfull or vnlawfull, expedient or not expedient, profitable or hurtfull to the partie (all circumstances considered) to bee kept and ob­serued.

In the first case of these foure, no man can discharge from or dispense with such oath; except either the oath were at first but conditionally made, and the condition faileth; or else were made [Page 17] by such one, as is vnder an husbands or fathers subiection. For in the first of these excepted cases (in very trueth) the oath bin­deth not at all. But yet some superiours declaration of so much, is therefore necessarie; because it is most dangerous to permit vnto euery simple and priuate mans owne discretion and iudge­ment; how farre, and where he neede or neede not, to performe his promissorie oaths. And in the later of the cases excepted, an Num. 30. per totuin ferè. husband or father (before he hath giuen any expresse, or impli­ed ratification) may (euen by Gods owne lawe) discharge and disanull his wiues oaths and vowes, or his daughters, being made in her youth, and in his house (that is vnder his power) of what sorte and qualitie soeuer they bee, yea though such promissorie oathes haue bene Ibid. v. 14. made by them, to humble the soule. and then by reason of such disallowance there of by their superiour, it is there sayd: The Lorde will forgiue her, this breach of her oath and vowe made.

Now because in any (sauing in these excepted cases) this kind of oath is simply vndispensable; therefore we doe detest the pre­sumption of the bishop of Rome; who taketh vpon him often­times to commute euen this kinde of oaths and vowes (as hee saieth) into better. and so by this shift of descant, hee preten­deth to discharge men from their formall oaths, by them adui­sedly taken and made, to the glory of God, and for the benefit of others.

The second sort of those foure kindes of promissorie oaths are such; as if a man should performe; hee should doubly sinne. which point I haue somewhat touched in the question next go­ing afore. yet least a man doe erre herein, by mistaking; it is hol­den very requisite, that he consult with wise & learned Diuines; both to resolue him, whether such oath be simply vnlawfull by him to be performed; and also to aduise him, what course hee is to take in respect of his soule and conscience; for his oath so vnlawfully, and vniustly made.

In these vnlawfull oaths, wee thinke that superiours whether Ciuill or Ecclesiasticall, not onely may and ought to discharge the parties thereof, if they be scrupulous and desire it; but also may and ought, to disanull and make them voyde, though the parties themselues bee vnwilling thereunto. And so wee finde, [Page 18] that a 34. Edw. 3. ca. 9. Parliament here in England did enact in these words, viz. That all alliances and couins of Masons and Carpenters, and Con­gregations, Chapters, ordinances, and oathes amongst them made, or to bee made: shall bee from hencefoorth voyde, and wholy adnul­led. The reason of this disanulling of all such oaths was; for that they were apparantly derogatorie, to the publike good of the Common wealth.

With these kindes of oathes, the man of Rome not onely dispenseth when they are alreadie made, which were tolerable a­mongst them of his owne onely proper Iurisdiction; but also (in the pride of his heart, exalting himselfe aboue all that is cal­led God) hee dispenseth with men aforehand, to make such vn­lawfull oathes and vowes: and namelie of marriages, and also to remayne in them, being within the degrees Leuiticall, which by God himselfe are prohibited plainely. yet because (for ve­ry shame) hee seldome doeth dispense with marriages contra­cted, or to bee contracted inter ascendentes & descendentes; as the father to marrie the daughter or his niece, &c. or the sonne to marrie his mother, grandmother, &c. or yet in primo gradu transuersali aequali, as the brother to marrie the sister: therefore the Schoolemen and Canonists his Parasites (but especially since the great case fell out betwixt king H. 8. and Katherine of Castill, his deceased brothers widowe) haue bene contented to turne those their former olde songs; of Papa potest, quicquid Deus ipse potest, and potest tollere ius Naturae; and (instead thereof) to say Couarrauias. now; that in those aforesaid degrees of consanguinitie (because they are of the lawe of nature) the Pope (their vnholy father) can not dispense withall. Neuerthelesse, they do still no lesse resolute­ly, then impudently hold, that the prohibitions in the rest of the Leu. 18. ca. [...]. 20. Leuiticall degrees are not of the lawe of nature; and therefore to be, by the Pope dispensable. But if they be lawes Ceremonial, they are abrogated by Christ, and need no dispensation of any mans. If Iudiciall, then they binde none precisely, but the people and Common weale of the Iewes: but if they be Morall lawes (which onely remaineth, and of which sort in deed they are) then conse­quently are they of the lawe of nature. and, that the said prohibi­tions be in deed Morall lawes, and of the lawe of Nature: appea­reth by the words of God himselfe, generally testifying of them [Page 19] all, that for such abhominable & incestuous matches as be there specified and forbidden; he did cast out the Cananites and other people of the land, before the Israelites. But they, being heathens, had none other lawe but the lawe of nature to take knowledge of, or to binde them; and therefore could not for those polluti­ons haue bene iustly punished; if the prohibitions of them, had not bene by the lawe of Nature, which bindeth all men indif­ferently.

In the third case, videlicet, when a Promissorie oath tendeth onely to the profite and benefite of some particular person, to whom such promise is made (as namely an oath of a Soldiour to his Generall, of a Subiect to his Prince, of a Tenant to his Lord, or of a bondman to his Master) it is generally holden; that hee to whose onely behoofe it was made, may sufficiently agayne dis­charge it. because it is intended, the promise is (in deed) then per­formed vnto the superiour, when it is disposed of according to his pleasure, and as he liketh best of.

The fourth and last aforesayd sorte of oathes Promissorie, is the speciall subiect, wherein (if in any) a dispensation may pro­perly haue place.

To dispense, or to discharge a man from an oath taken; hath two diuers significations and acceptions. for it is taken, either for a release of the very bonde of the oath, so that the partie should no more (before God) bee tied thereunto: or else for a sound interpretation and declaration, that vpon some euent en­suing, or discouered vnto vs afterward, or other considerable circumstance; such oath doeth, not necessarily (before God) re­quire a performance.

A Promissorie oath is made, either for confirmation of some thing, vnto the performance whereof, wee are (otherwise also) bound by Gods lawe, or by the lawe of nature: or of such, as for accomplishing whereof, we are besides our oath, tied by positiue lawe of man: or of such, as otherwise then by oath, we (no way) stood bound to fulfill.

The last of these three is also of two sortes: for it either con­cerneth matter some way tending to the seruice of God, and hum­bling of our selues before him, voluntarily by vs promised; or else matter humane and ciuill onely, by our oath confirmed.

[Page 20] In the first of those three last, wherein besides our oath, wee are bound by Gods lawe, or by the lawe of nature; a dispensation by way of release of the bond of the oath cannot by any humaine au­thoritie be giuen. for else, a man might (hereby) be set at libertie, not onely to breake the law of God and nature, which is eternall and immutable: but to goe against his owne oath also: which, being Praeceptum iuris Diuini, is also (in that sense) vndispensable. Except a man should absurdly imagine, as the heathen Ro­manes did of a water, that was in Via Appia, consecrated vnto Mercurie; for they Alex. ab Alex­and. Genial. dier. were so besotted as to thinke, if a man did besprinkle his head with a Lawrell branch dipped in that wa­ter, therewith calling vpon Mercurie; that by such expiati­on, hee was clearely discharged from any breach of oath, and from periurie. But as dispensation is taken for a sound and true interpretation of those lawes, how farre they reach, and where the generall wordes of them ought to cease; it hath place euen in these; whether they bee precepts Affirmatiue or Negatiue, that rule of the Schoolemen notwithstanding, videlicet; Praecepta diuina negatiua obligant semper & ad semper: Praecepta affirmati­ua licet semper, tamen non ad semper.

For examples sake; first in Precepts Negatiue, conteined in Gods lawe: if a man shall sweare for more precise obseruation of that commaundement, Thou shalt not kill; that he will neuer shed any mans bloud; yet, if in necessarie defence of his l. vt vim. ff. de iust. & iure. & ibi gl. & DD. per­son or Iason in d. l. qui dicit eum esse communem. & Diaz, reg. 597. goods, hee shall afterward kill a thiefe, the Superiour may (in this case) by way of such dispensation lawfully declare; that hee is not (hereby) to bee holden guiltie of the breach of that commaundement, or of his oathe. Likewise if a married man who voweth and sweareth neuer to companie with any woman, but his wife, during their two liues, shall (without a­ny negligence or default of his) bee herein wickedly deceiued by another woman, which is by him taken to be his owne wife: it may (for his satisfaction) by such dispensation bee determined & declared, that hereby he hath neither offended against Gods lawe, nor his oath.

In precepts affirmatiue, conteined in Gods law: Matth. 12. v. 5. 8. Christ himself hath declared, that the Priests imploied on the Saboth, about the sacrifices of the Temple, or those who (on that day) Ioh. 7. vers. 23. circumcised [Page 21] children; and others Matth. 12. vers. 10. 12. Marc. 3. vers 4. Luc. 6. vers. 9. doing on that day, the necessarie workes of charitie; or that, Luc. 13. v. 15. Luc. 14. vers. 5. whereby mans life is necessarily susteined, do not violate the Saboth therein.

If our parents, to whome wee doe owe and (perhappes) haue also sworne honour and obedience; shall command any l. Lucius. ff. de cod. & Demonst. L. nepos. ff. de verbis signific. L. silius. ff. de cond. institut. vnlaw­full or dishonest thing, as to betray our Prince and Country, &c. it is assured, that in not performance hereof, it may and ought to be declared, neither Gods commaundement nor our oathes, to be thereby violated. Though a Iudge should sweare, to ac­cept euermore (in iudgement) of the depositions of two witnes­ses, produced for proofe of any matter, so they be not excepted against iustly by the aduerse partie: according to that saying of our Sauior Christ; In the mouth of two or three witnesses euery word shal be established: Neuerthelesse, if according to direction of mans Iust. de Te­stam. §. 1. c. rela­tum &c. cum es­ses ex. d. tit. positiue lawe in this behalfe; he shall reiect the testimony of children, being but tenne or twelue yeeres of age; it may and ought to be declared, that herein he doth not offend against the oathe by him taken.

The like is true of any oath in generall, because the comman­dement of God, for performance thereof, is not so L. non dubium. C. de legibus. peremptorie, that it doeth binde vs to doe any thing, which is in it selfe wic­ked: for non c. non est. de reg. iuris in 6. est obligatorium contrabonos mores praestitum iura­mentum.

The like may be saide ofsundrie lawes of nature: wherein this kinde of dispensation by interpretation hath place; no lesse then in the former: and are needelesse, to be further here exemplified.

Touching the second member of the matters of Promissorie oathes, viz. whereby an oath is taken for a fuller confirmation of that, whereunto we are also bound by positiue lawe: it is much more assured, that according to the second acception of dispen­sation; such oathe may be interpreted and declared not to binde; where, indeede it ought not, by the true meaning of the Lawe; howsoeuer the generalitie, or pregnancie of the wordes, may strongly (perhappes) seeme to weigh vnto the contrary.

Yea and in the first sense, a dispensation of relaxation by a So­ueraigne Prince or other thereunto aucthorized may be graun­ted; for release of an oathe, made in performance of some posi­tiue lawe. But this is onely by way of abrogating such Lawe or [Page 22] Statute; either altogether, or as towardes that person, or for some particular action and time; and not, by way of releasing the very bond of the oathe, which is not subiect to mans po­wer. For when such Lawe or Statute is disanulled and gone (as locall Statutes of Colledges &c. may bee euen heere in Englande) then the Oathe made vnto them, as vnto Lawes or Statutes; must needes (withall) so farre cease, and be relea­sed.

When the matter is such, as for performance whereof (o­therwise then by our voluntarie oathe taken) we no way stoode bounde, whether it bee in Actions Religious or Ciuill: the bonde of our Oathe (if in verie trueth, wee did at first, in fo­ro poli stande tyed) may not by anie man bee released. Ne­uerthelesse a dispensation of true interpretation, hath place in this very especially, and such interpretation may bee needefull, sometimes in respect of the very matter promised by Oathe to bee perfourmed, being (indeede) no due matter for an oathe. As the oathe for single life, vowed by such, as haue not the spe­ciall gift of Continencie. Sometimes it may bee requisite, in respect of after-euents: as if I sweare and vowe to God, to keepe some certaine spare and so straite a diet; as (through weakenesse and infirmities after happening) I can not pos­siblie obserue, without apparent daunger of the losse of my life.

And sometimes, this kinde of dispensation may haue necessa­rie place; whereas some thing doth after fall out, or (at least) is discouered; which I neuer forethought, or if I had, by all probabilitie, I woulde neuer haue vowed or vndertaken so much. Examples of these you may frame many, out of that, which hath beene answered to that question; whether all pro­missorie oathes, were absolutely to be kept, or no?

Lastly, some doubt may be stirred; whether a Christian may capitulate or contracte, (by mutuall oathes giuen and ta­ken) with a Pagan or heathen Prince, or other priuate person, that taketh his oathe by Idoles or by false gods: seeing in so swearing, hee sinneth greatly, in that hee giueth (thereby) that reuerence vnto them, which is onely due, to the true and euer­liuing God?

[Page 23] This verie question was asked of Saint Aug. ep. 154. ad Publicolam. Augustine by Pub­licola: and hee did thus answere him: hee that vseth (sayeth he) the credite of him that sweareth by false gods, not vnto euill, but vnto good: hee doeth not communicate with that sinne of swea­ring by Diuelles: but is partie onelie to those lawfull couenants, wherein the other perfourmeth, what hee sware. Yet if a Christian shoulde (any way) induce or drawe an other to sweare by them, heerein hee shoulde sinne grieuously. And least any man weigh this learned fathers iudgement heerein ouer light, wee haue al­so an example heereof in Scripture, and vncontrolled: for Genes. 31. vers. 53. Ia­cob tooke an oathe of Laban, swearing by the God of Nachor. Nowe we Iosh. 24. vers. 2. reade in Scripture, that this Nachor was an Idola­ter, and serued strange gods. Hitherto of some doubts that may be mooued touching oathes.

CHAP. III. Diuision of Oaths according to the outward forme of taking them: according to the matter and inward forme of them: with plaine description of euery kinde of oathe.

NExt followeth to bee discussed howe ma­nie sortes, and seuerall kindes of oathes there bee; and howe they differ one from an­other.

An Oathe, as touching the outwarde forme of taking it; is eyther verbally or cor­porally taken. Uerball, when by wordes or speeche onelie, wee conceiue the forme of the Oathe; as, God is my witnesse; The Lorde liueth, &c. Corporall, when by some outward gesture or acte in taking the Oathe; wee testi­fie that wee accept of it, as it is ministred. as, by laying hande on a booke, on our breast, or vnder the thigh of him that mi­nistreth it: as Abrahams seruant did.

Againe, some oathe is solenne iuramentum; and others be not. that oath is called L. 3. & 5. l. in fine & 34. §. qui iusiurandum. ff. de iurciurando. solenne, which hath certain solēnities prescri­bed and endited, either by the parties thēselues, by the Iudge, or [Page 24] by the Lawe, with certaine set-conceiued wordes, from which he that sweareth, may not vary. but if hee doe, his Oath shall not be accepted.

All these may be giuen and taken, in two seuerall sortes. Ei­ther simply; as thus: I speake it before God &c. or with some im­precation to our selues, or others, whome wee holde very deare vnto vs, adioyned thereunto; as thus: So and so 1. Reg. ca. 3. do God vnto me and more. for thereby wee doe expresly as it were deuote, and binde our selues or them, vnto the punishment of God; if that be not true, which wee sweare. Of this kinde I finde examples in Scripture, that 1. Sam. 14. vers. 24. Neh. 5. vers. 12, 13. some were so imposed by Magistrates; and 1. Sam. 14. vers. othersome were voluntarily so taken. The examples of them both, you may see in their seuerall places according to the dire­ctions giuen by quotations in the margent. An example of an oathe taken voluntarily by imprecation, wee also finde in the 4. 1. Sam. 20. vers. 13. 2. Sam. 3. vers. 9. 35. 2. Sa­mu. 19. vers. 13. Neh. 10. vers. 29. 42. Cor. 1. ver. 23 new Testament: for Paul saieth, I call God to witnesse vnto my soule; which is to execrate his owne soule, if he had not sworne truely. So much of the outward forme of an oath.

There are besides that, two principall diuisions of an oath: the one respecting the matter of it, according to the circumstance of time; the other, which considereth the inward forme, with other circumstances. For the first, euery oath, is either concerning a thing past or present: and this is called Assertorium iuramentum: or else touching a thing to come, and it is called Iuramentum promisso­rium. For the second diuision; an oath may be made, either iudi­cially or extraiudicially. And both these (in oathes promissorie) are either Confirmatoria actus futuri; as (in iudgement) that I will vse no vaine cauillations and delayes: or foorth of Iudgement, as an oathe of alleageance: or they are obligationis introductoria, when the very oath worketh the bond in lawe, for something (after­ward) to be done.

But this bonde is only by the Tot. tit. ex. de Iureiurando. Canon, and not by the Ciuill lawes, sauing in one case that I can call to minde: which is the L. vt iurisiurādi. ff. de operis liber­torum. oathe of a man once a bondslaue, and now set free (called liber­tus) that is made vnto his patron, to performe some workes or o­ther thing vnto him. For in this case, the very oathe is obligationis introductorium: and maketh the freed man bound (by that Law) to performe it, in vim turamenti.

[Page 25] Furthermore a promissorie oath (whether taken in iudgement or out of iudgement) is either necessarie; as when it is imposed by the Magistrate vpon his subiect: or it is voluntarie.

An oath assertorie (being of chiefest vse, and therefore most to be stood vpon and explaned) is also either extraiudiciall or iudi­ciall. and both these, be either necessary, or voluntarie.

The iudiciall necessarie oath Assertory is sometimes giuen to the defendant when there is (formally) another partie besides in iudgement; & sometimes, when there is no such partie beside; but the Iudge that proceedeth ex officio. When there is a partie, it is either iuramentum calumniae, veritatis or purgationis: but if there be no such partie beside; it is either purgatorium tantum, or partim purgatorium & partim inquisitorium.

The Iudiciall and voluntarie oath; is either suppletorium, aesti­matortum in litem, or decisorium. Which last, is oftentimes con­founded with iudiciale iuramentum, without further addition: by reason of the more frequent vse of it, in Ciuill lawe courts in elder times; when men durst trust one anothers conscience bet­ter, then nowe (generally) they haue cause to doe.

The decisory oath, is either delatum or relatum by the one of the parties, that are in sute together.

Nowe I minde briefly and plainely (without tying my selfe to any exact definitions) to describe these vnto you; with onely quotations of the Scripture (where examples of them may be found as I conceiue it) for auoyding of tediousnesse, by particu­lar rehearsall.

Gen. 43. v. 3. 1. Sam. 25. v. 26. 1. Sā. 26. v. 10, 16. 1. Sam. 29. v. 6. 2. Sam. 4. v. 9. 2. Sam. 19. v. 7. Assertorie is, when (by oath) any thing past or present, is affirmed or denyed to be.

A Gen. 24. v. 3. & 9. Gen. 47. v. 31. Leuit. 5. v. 4. Num. 30. v. 3. & 14. Iosh. 1. v 6. Iosh. 2. v. 12. Iosh. 2. v. 22. Iosh. 9. v. 15. 18. 19. 20. Iudg 15. v. 12. 1. Sam. 14. v. 45. 1. Sam. 28. v. 10. 2. Sam. 3. v 35. 2. Sam. 19. v. 13. 1. Reg. 1. v. 13. & 17. Promissorie oath is, when any thing is (by oath) promised to be done, or not done.

In a Promissorie oath, there is a double bond before God: the one is, that it is sinne, if trueth be wanting: and the other is, that he is bound to doe: hat, which he promiseth. But in an Asserto­rie oath, there is no bond, but onely this; that the matter be true, which is affirmed thereby, or denyed.

The effect of a Promissorie oath is, that he is bound to make that true, which he hath sworne: but if it were not in his power to doe it; then there wanted in such oath, iudgement and discre­tion; [Page 26] except it were in his power to doe it when he swore, but became impossible by some casuall euent after happening, that could not be before thought on. In which case neuerthelesse, hee is bound to perfourme it, as farre forth as lyeth any way in him, so the oath be such, which did binde, as carying with it none impietie.

But if the promissorie oath be made touching such a thing, as was in his power; yet such as ought not to bee done ei­ther because it was in it selfe euill, or is an hinderance or let of something that is good: then in such an oath, Iustice is wanting.

An Gen. 21. v. 31. Gen. 26. v. 31. Iudg. 21. v. 1. 1. Sam. 19. v. 6. 1. Sā 20. v. 13. 17. 1. Sam. 30. v. 15. 2. Sam. 19. v. 23. 2. Sam. 21. v. 17. 1. Reg. 1. v. 29. 30. 51. 1. Reg. 2. v. 8. 23. 24. 2. Reg. 25. v. 24. 2. Chro. 15. v. 14. Nehe. 7. v. 18. Nehe. 10. v. 29. Ierem. 38. v. 16. Ierem. 40. v. 9. Hebr. 6. v. 16. & 17. oathe promissorie and confirmatorie, is; when it is made for more full assurance, of some act to be done, or not to bee done.

A 1. Sam. 14. v. 24. & 28. 1. Sā. 24. v. 22. 23. 1. Reg. 2. v. 42. 43. Ezra 10. v. 5. Nehe. 5. v. 12. Iosh. 23. v. 7. In these wordes: Nor cause to sweare by them. necessarie oath (generally) whether there be two parties formally; or the Iudge proceedeth ex officio; is that, which a Ma­gistrate causeth those that be vnder his authoritie to take, for some conuenient purpose and ende.

In law it is defined to be Postilla in v. iu­reiur. L. in bonae fidei C. de reb. cred. & iureiur. such, as you neither may referre or put ouer to the other partie, to take his oath to the contrarie: nor yet may be refused by your selfe. For L. 11. § quita­ [...]it. ff. de inter­rog. act. & L. 11. de periurio. ff de in litem iurando. ibi, ex necessitate. if you doe, you shall be holden as con­uicted, and the sute must goe against you.

This necessarie oath, is tendered by the Iudge, whensoeuer hee seeth cause in equitie to mooue him; albeit no partie make petition: and then it is called Nobile vel merum Iudicis offici­um. or els it is tendered and ministered by him, at the petition of a partie: and then it is termed mercenarium Iudicis officium, because thereby hee seemeth, but as it were to serue his turne, that maketh the petition.

The first of this necessarie sort, where there bee (formallie) two parties; is Iuramentum calumniae. which is, when one is vr­ged to sweare, that hee moues a cause, alledgeth or answereth some Iudiciall matter, bona fide, that is truely, directly, and not captiously: and that he beleeues it to be true: and thinkes he can (indeede) make proofe of it: and that hee doeth it not to vexe his aduersary, but to relieue himselfe: and not of any purpose, to delay the sute.

Necessarium iuramentum veritatis is Mascard. de probat. vol. 1. pag. 18. nu. 6. that; which is ministred [Page 27] to witnesses: and that also which is ministred to the partie, who is to answere vnto Positions or Articles: And that also is so called, whereby the Iudge doeth interrogate and examine either of the par­ties or the witnesses; to the intent, to bee more fully instructed in the cause.

1. Reg. 8. v. 31. luramentum purgationis (where there be such parties) is; when in a cause criminally mooued by some accuser or partie: the Iudge (vpon defect of sufficient proofe) doeth tender to the defendant an oath to cleare himselfe. This, though it be establish­ed by the Canon; yet of long time it hath bene in vse aswell in Ciuill or Temporall courts (on the other side of the Sea) as in Ec­clesiasticall: so that if the defendant shall refuse to take it in ei­ther; he is holden pro confesso, & conuicto.

The other oath of purgation or clearing simply, when there is no formall partie in iudgement, besides the defendant; is that, which (by reason of fame, scandall, vehement presumption, or vp­on some other of those meanes that (as I haue shewed afore) doe open a way to Enquirie ex officio) the Iudge doeth giue vn­to the defendant, to his clearing of the very crime obiected: without any meaning then to seeke further proofes of that crime, after the defendant hath taken such oath.

The other oath necessarie, being partly of Leuit. 5. v. 1. Num. 5. v. 12. & sic deinceps. Iosh. 7. v. 19. 1. Sam. 14. v. 43. clearing, and partly of further enquirie is that; which (as is next afore­sayd) is giuen to the defendant vpon criminall matter obiected and vpon the circumstances thereof: yea (oftentimes) with purpose to make further proofe, in case the defendant shall not confesse it, or not so fully in materiall circumstances, as the Iudge hath cause to thinke, may by witnesses or other­wise be prooued. Yet if he shall confesse so farre, as is thought may bee prooued; then (according to the qualitie of such his answere) hee is presently either proceeded with thereup­on vnto a iudgement, or else dismissed as cleared thereof, by his oath.

The examples and other iustification hereof, shall more largely (God willing) be shewed, in their proper place hereaf­ter. For this is the oath, that the Innouators doe so much con­demne, and exclaime against.

But nowe touching voluntarie Iudiciall oathes, whereof [Page 28] Suppletorium is that, which is tendered to the plaintife or defen­dant (according to the qualitie of the cause) in a ciuill matter, for supply of proofe, made semiplenè tantùm: as (happily) by one singular witnes, being without all iu [...]t exce [...]tion.

Iuramentum in litem, or Aestimatorium is then L. 1. cum l. sequ. ff. de in li­tem iurando. giuen by the Iudge; when the defendant doeth not restore the very thing that is in demaund. in which respect he is to be condemned in the value thereof, according to such rate, as the plaintife is en­damaged, taking it vpon his oath: yet so, as the Iudge (by equi­tie) may taxe and moderate the quantitie of the summe, which he may not exceede; and also when the partie hath sworne, the Iudge may defalke thereof, as he seeth cause in equitie.

Decisorium iuramentum delatum is that; which Exod. 22. v. 11. 1. Reg. 8. v. 31. Hebr. 6. v. 16. either the one or the other of the parties, first offereth vnto his aduersarie to take, according to that hee affirmeth or standeth in. perhaps vpon confidence of his good conscience, or for want of better proofe.

So that, if he to whom it is so deferred, shall take such oath: then must the matter be adiudged, according to his oath; as if the parties, had so agreed the cause. But if he shall refuse it, and yet will not referre it, that is, will not put it ouer vnto his oath; that first made the offer: then shall hee be ouerthrowen in the cause. So that to referre an oath, is nothing els; but to offer it backe; to be decided by his oath (according to his owne issue) that first made the offer. L. iusiurandum. 34. § ait Praetor. ff. eodem. & l. ge­neraliter. 12. § se liuramento. C. d. But if vpon such referring it ouer backe againe, he also that made the first offer, will not take the oath: then hee that so referred it ouer againe, shall haue iudgement passe with him, as if he himselfe had sworne, when it was first offered him: for maximae turpitudinis est, nec delatum subire, nec referre iuramentum.

Examples of these decisorie oathes, there be also at the com­mon lawe: for, 19. H. 6. 43. where the defendant desires that the plaintife may be examined or sworne; this is peremptorie to the plaintife in this point: and so is the wager of lawe ex parte defendentis. By the cu­stome of London, if the defendant desire to haue the plaintife sweare to his declaration, and hee doe it, the defendant is thereupon con­demned.

But this oathe decisorie (at the Iul. Clarus. li. 5. § finali. qu. 63. ciuil Law) is neuer vsed in mat­ters [Page 29] criminall, except they be mooued ciuilly (not criminally) that is for the plaintifes priuate amends and satisfaction: or else the cause be but of small value: or the proceeding in such criminall cause cri­minally; be referred and intended, to no corporall, but to a pecuni­arie punishment or fine onely. Thus farre for a generall vnderstan­ding of the nature of euery seuerall kinde of oathe.

CHAP. IIII. That the ceremonies vsed in taking and giuing corporall oathes, with laying handes vpon the Bible or Testament, and swearing by the contents of it, are not vnlawfull.

THe first challenge (nowe comming to be spo­ken of) that is made by some of them against the ceremonie vsed through this Realme in all corporall oathes taken either in Temporall or in Ecclesiasticall Courts; is the laying of our hands vpon a booke, when we take the oathe.

For the better approbation hereof, it is meete to consider the generall ende of it, the particular vse of it, and the generall pra­ctise of that or of the like ceremony, reported both in Scripture, and in other writers to haue bene vsed in such action.

The generall and chiefe ende of this, or of any the like cere­mony vsed in this action, is to signifie thereby, that we do then aduisedly attend, and giue heede to the oath wherewith we are charged, and that we do accept of it, and bind ourselues in sort as it is giuen.

The vse of this in particular; is to strike a more aduised feare & reuerence into vs: when wee consider the reuerence due to an oathe, as it is described in that booke; & the curses there threat­ned against those, that for sweare themselues, or shall take the name of God vainely.

This vse of such corporall ceremonie in taking of an oathe is touched in the L. 3. C. si minor se maiorem dixe­rit. ciuil law, out of which it is gathered; that, by tou­ching and by corporall taking of it, the oath is holden to be more inuio­lable, and the harder (vpon any plea) to be recalled.

The practise of corporall oathes, taken with some like effectuall [Page 30] and significant ceremonie by the godly; is to be found in Scrip­ture. When Gen. 24. v. 3. & 9. Abraham caused his seruant (that was vnder his authoritie) to take a corporall, Promissorie and necessarie oath, for the finding out and fetching of a wife for his sonne Isaac of his owne kindred; hee willed him to lay his hand vnder his thigh. with this ceremonie likewise Gen. 47. v. 29. did Iacob take an oath of his sonne Ioseph; that hee should not burie him in Aegypt; there­by as it were signifying, that simplie they were to take the oathe, euen as they looked for Saluation in the promised Mes­siah, that was to descend of those two Patriarkes, according to the flesh.

So doeth Saint Aug. de ciuit. Dei. lib. 16. ca. 33 Augustine interprete this ceremonie: The hand (saieth he) put vnder the thigh did signifie, that the Lord (ac­cording to the fleshe) was to descend from that person.

Another ceremonie (besides this) we find vsed in holy Scrip­ture, when such corporall and more impressiue oathe was taken: and that is the lifting vp of the hand, towards heauen: a gesture so commonly vsed, that sometimes it is taken for the oathe it selfe. For Abraham Gen. 14. v. 22. 23. sayd to the king of Sodome, I haue lift vp my hand vnto the Lorde, the most high God, possessour of heauen and earth, that I will not, &c. Likewise God saieth in Deut. 32. v. 40. Deuteronomie: I lift vp mine hand to heauen and say, I liue for euer. And likewise where it is Exod. 6. v. 7. sayde: I will bring you into the lande, which I lift vp mine hand (id est, sware) that I would giue to Abraham, Isaac, and Iacob. So the Prophet Ezechiel: I Ezech. 20. v. 15 lift vp mine hand vnto them in the wildernesse; that I would not bring them into the lande, &c. That these were oaths taken with that significant ceremonie, another Dan. 12. v. 7. Prophet declareth. I heard the man clothed in linnen, which was vpon the waters of the Riuer; when hee helde vp his right hand and his left hand vnto heauen, and sware by him that liueth for euer. with the same pertinent gesture doeth the Angell in Apoc. 10. v. 5. the Reuelation sweare by the liuing God, & lifted vp his hands towards heauen; where (by immutable prouidence) that was decreed: & from whence commeth swift iudgement vpon all, that make or loue leasings.

This gesture in taking a corporall oath was so vsuall, that from the people of God, it seemeth to haue bene deriued downe, and taken vp euen with the Gentiles.

[Page 31] —
Virgil. lib 12 Aenead.
sequitur sic deinde Latinus,
Suspiciens caelum, tendit (que) ad syderadextram:

Haec eadem (Aenea) terram, mare, sydera, iuro: as Virgil writeth. And no lesse is by some thought to be meant in the Digests of the ciuil Lawe, by the word L. quidam. ff. de probationibus. emissamanus. Yea, and the practise of that very ceremonie of swearing with laying hand vpon the holie Gospels; was both had, and allowed by the Fa­thers in the Primitiue Church, as appeareth by Saint Aug ad Publi­col. epist. 154. Augustine in his Epistle ad Publicolam.

In the times of the ancient Christian Emperours, it was recei­ued and vsed in Ciuill Courtes. An oathe (saieth Nouell. Iustin. 8. vel 9. Iustinian) is then saide to bee corporally taken; when a man in swearing, doeth touch with his hand, the holy Gospels. And againe: L. generaliter. § in omnibus. C. de rebus cre­dit. & iureiur. Whether the oathe be to be taken in tublike iudgement, or in houses, or in holie Oratories, or with touching the holie Scriptures, &c. And it is proui­ded, not L. rem non no­uam. § patroni. C. de iudicijs. onely that they shall be taken tactis sacrosanctis Euan­gelijs: but that Ibidem ante. the Scriptures shall lie continually before the Iudges sitting in iudgement; that both they and the suters, may bee put in minde; that the iudgement is Gods, and doone in his presence. For touching the holie Gospels at the taking of an oathe: wee haue other testimonies also recorded in L. 2. C. de iura­mento propter calumniam dan­do. & § 1. & § nulli de sanctiss. ep. in Auth. ancient lawes.

So for the laying of holie Scriptures before them, at the time of taking oathe, both Auth. sed iudex. C. de episcopis & clericis. c. fin. de iuram. calumniae. Clem. 1. de ho­micid. Clem. 1. § porrò de haereticis. out of Lawe and Canons.

And by the most generall custome of all Christendome; the same ceremonie in taking a corporall oathe, is vntill this day con­tinued. But it is Panorm. in c. & li Christus. de iureiur. reported, that in Italie, they vse to lay their hand vpon any Booke, Bible, or other. And it seemeth by a Duarenus in tit. ft. de iureiur. ca. 11. French Writer, that they which sweare there, doe vse to holde vp their hand towards heauen: thereby signifying, that they call God to witnesse. In some other places they take a corporall oathe, by laying their hand on their breast.

But where the Treatisor reprehēdeth at taking an oath a vaine ceremonie and sond inuention (as he calleth it) of stretching out three middle fingers vpon the booke, & the thombe and litle finger vnder it; with some mysterie (by him supposed) thereby to be signified, as if here­by this Church of England or present regiment therof (which he oppugneth) were therein to bee touched: Truely hee might with lesse shewe of humour, haue spared that vaine and fond [Page 32] inuention; insomuch as no such matter is either by law comman­ded, by Iudges vrged, or by any others practised.

One other Ceremonie or maner of taking an oath, is by some of them also reprehended: that is, for swearing by the booke, or by the contents of it.

We doe finde in a very old statute of this Realme (termed the awarde of Kenelworth) these 51. Hen. 3. wordes: All that haue to doe in this b [...]halfe, shall s [...]eare vpon the holy Gospels of God, that none shall take reuengement, &c. by occasion of the Commotion: And in the same Statute, not onely vpon, but also by the holy Gospels. For it is there thus Ibidem. conteined, Those that haue bene robbers in warres & roades, and haue nothing; shall come and sweare by the holy Gospels of God (finding sufficient suretie) that from hencefoorth they shall keepe the peace, and suffer satisfaction, and penance, after the iudgement of the Church. where (by the way) may be noted, that it seemeth Ordi­naries then did, and might enioyne penance and satisfaction to parties delinquent; for wrongs done by them, in temporal goods and chattels.

The maner of swearing by the 1. Eliz. ca. 1. contents of the Booke, is pre­scribed to bee vsed in the oath of the Queenes supremacie. But is this the onely cause (thinke yee) that some of that suite, refuse wholy to take it, or come very hardly vnto it? Some of them mince it, and glose vpon it, and I know not 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 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 Esay 65. v. 16. that sweareth in the land, shall sweare by the God of trueth: Ieremie 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 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 Aug ad Pub­licol. epist. 154. thus: The very [Page 33] 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 E [...]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 Hierom. in 5. Matth. Hierome sayeth: He that sweareth, either worshippeth or loueth him, by whome he sweareth. The decrees c. & iurabunt. c. considera c. clericum. c. si quis per. &c. mo­uer te. § ficut etiam. 22. qu. p [...]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 Amos. 8. ver. 7. is said, the Lorde hath sworne by the excel­lencie of Iacob. Ioseph did 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 1. Sam. 20. V. 5. the Lord li­ueth, and as thy soule liueth, there is but a step, betwene me & death. So did Abigail 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 Labā, sware, by the feare of his father Gen 31. vers. 53 Isaac. And Vrias sware thus vnto king Dauid, 2. Sam. 11. vers. 11. as thou liuest, and thy soule liueth. The like oath doeth Elisha 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 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 1. Cor. 15. vers. 31. wri­teth thus: by our reioycing which I haue in Christ Iesus our Lorde, I die daily. This doth S. 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 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 Aug. ad Pub­licol. epist. 154. Augustine saieth, It is a greater matter to sweare by God, then to sweare by the [Page 34] Gospels. which prooueth, that this forme of Oathe was then in vse, and that without reprehension. But Saint 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 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 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) 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 ( 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 is done to them, or [Page 35] vnto the poore, redoundeth vnto God his Creator, and is saide in Scripture to be doone vnto God himselfe: So when we sweare by a creature, with an especiall reference to God the Creator: it is intended (indeede) as doone by him, and in his holy name.

This their distinction seemeth well confirmed by some of the places before alledged. Where God is saide to sweare by the excellencie of Iacob; it cannot bee vnderstoode, that it was by any worldly excellencie, wherein Iacob excelled; but (indeede) was by himselfe, as those wordes to the Heb. 6. ver. 13. Hebrues doe testifie: because God had no greater to sweare by, hee sware by himselfe. Ia­cobs oathe to Laban, was not by any accidentall conceipt or pas­sion of his father Isaacs minde: but by the very obiect of his reli­gious feare, that is by God himselfe.

In like sort, those oaths by the life of the soule of such as they spake vnto, and that which was by Paules retoycing; must needes be vnderstoode. For the oathe which 1. Sam. 20. ver. 3 Dauid sware vnto Io­nathan, as God liueth, and as thy soule liueth; is (after) in the Ibidem. vers. 42. same Chapter saide to bee sworne, in the name of the Lorde.

Therefore where Ioseph sware by the life of Pharaoh, it may not be taken as if hee meant (without any reference to God) to sweare simply by acreature; but it was either by way of de­uoting, and as it were binding of the Princes life vnto God; a thing which (thereby) hee signified to them, that he helde most deere vnto him: or else by way of contesting, and calling to testi­monie the truth of diuine Iustice; for execution whereof, the Prin­ces of the earth are set: as some of the Schoolemen do answere it.

Saint Hom. 44. oper. imperfect. in Mat. Chrysostome doth make the swearing by the Gospels e­quiualent with the oath, that is made by God himselfe; where he confuteth the opinion of such, as thought it to be a greater mat­ter to sweare by the Gospels, then it was to sware by God. In which regarde a Innoc. in c. etsi Chr. de iureiur. Canonist sayeth: paria sunt iurare per Deum, ac. per fidem. Tyndall our countryman (in this behalfe) well Tyndall in 5. Matth. pag. 208. suorum operum. inter­preteth the meaning of an oathe, made by the holy Gospels: when thou swearest (saith he) by the Gospell booke, or Bible, the meaning is, that God, if thou lie, shall not fulfill vnto thee the promises of mercy therein written: but contrariwise to bring vpon thee all the curses, plagues, and vengeance therein threatned, vnto the disobedient and euill doers.

[Page 36] And when the name of a crcature (in which no such mea­sure of diuine maiesty shineth, as doeth in the holie Scriptures) is vsed in an oathe; it is vnderstoode to bee doone with this re­ference vnto Almighty God, whereof wee doe speake by Saint Aug. de verbis Apostoli. Ser. 28. ca. 6. Augustines iudgement. What is it (saieth hee) to s [...]eare by God, but, Ius reddere Deo, to doeright to God? when thou swea­rest by thine owne health or saluation, but to doe right to them? But more fully and plainely afterward: When Ibidem. a man saith thus; by mine health or saluation, hee bindeth and gageth that vnto God: when by his children, hee pledgeth them vnto God; that what hee speaketh may fall vpon their heades: if true, then trueth; if false, then falshoode. Nowe seeing whatsoeuer a man in swearing na­meth, whether his children, his owne head, or his saluation, hee bindeth it thereby vnto God; then howe much more doeth hee it, when hee falsely sweareth by God himselfe? Yea when farre more meane creatures then these be named in an oathe, yet the same reference vnto God, is taken to be reteined. For the same learned Aug. ibidem. ser. 28. ca. 12. sed secundùm alios libros Set [...]. 30. Father saith: Lo I tell you, that he which by a stone sweareth falsely, is periured: whereupon I inferre, that many are deceiued, who thinke in that the thing by which they sweare, is of no value; therefore they are not guiltie of periurie: truely in this case thou art altogether per­iured, in that thou swearest falsely, by that thou takest not to be holy: if thou thinke the thing it selfe not to be holie; yet account him holie, to whome in that sorte thou swearest: for when thou so swearest, thou doest not sweare to thy selfe or vnto a stone, but thou swearest to thy neighbour, thou swearest to a man before a stone; but doest thou not also sweare before God? and albeit the stone doe not heare thy words, yet God will punish thy falsehoode. And Tyndall in the Tynd. in 5. Matth. pag. 208. aforesaide place to like effect: When (saieth hee) thou swearest by any crea­ture, as by bread or salte, the meaning is, that thou desirest; that the Creator thereof, shall auenge it of thee, if thoulie. Ulpianus, though a great Lawyer, yet but an Heathen man coulde see this meaning to bee in such oathes: viz. both that wee ought to sweare by God; and that if our oathe were conceiued by a­nie creature; yet it hath (for the most parte) a respect vnto God, and thereby bindes, as if it were made by God himselfe. L. 33. Qui per salutem. ff. de iu­reiurando. Qui per salutem suam iurat (sayeth he) per Deum iurare videtur; respectu eni [...] Diuini numinis it a iurat. Whereupon a great lear­ned [Page 37] man of Duarenus in tit. de iuteiuran­do. late yeeres gathereth thus: whosoeuer sweareth, al­beit he make no mention of God, yet is he entended to de [...]ote and sub­iect himselfe to the vengeance of God, if willingly he deceiue. And other Heathens (though they named often [...]mes something els which they helde deate vnto them, in taking their oathes) yet, by the light of nature could see thus much; that an oath was an honour proper to the euerliuing God. Therefore Apuleius de Deo Socratis. Apuleius wri­teth thus: vtrum (que) idoneum non est, per quod adiures vtue per ista iurent, cum sit summi Deorum hic honor proprius: which he prooueth out of Ennius (as Lipsius lib. 1. Elector. ca. 18. Lipsius doeth reade it) in these wordes: Nam & Iouis iurandum dicitur, vt ait Ennius. The verse which he meaneth, is alleaged by Tully:

Fides alma, apta pennis, iurandum Iouis.

The same etymologie (of Iusiurandum quasi Iouis iurandum) doeth Lipsius in the same place also prooue, out of this verse of Naeuius;

Ius sacratum, Iouis iurandum sagmine.

So that we may conclude, if the contents of the holy Bible were to be accounted (in eche respect) but a creature; yet with such regarde, and necessarie reference that it hath to God himselfe; it is neither vnusuall, nor vnlawfull. Thus much for the two opi­nions deliuered against the ceremonie in taking, and maner of charging by oathe.

CHAP. V. The true issue of the next opinion in question: two sortes of crimes and offences prohibited: in what cases an oath (here spoken of) may not be ministred: and the manifolde conueniencie and ne­cessitie of an oath (sometimes) to be ministred in a cause crimi­nall and penall vnto the partie: with some fewe obiections, tou­ching inconueniencie thereof, answered.

NOwe followeth the most principall chalenge by this sort of men. and it is that, which they make against such oath, as I termed afore, an oath of purgation and of Enquirie. which is, when a Iudge hauing some one or mo of those grounds treated of, and prooued afore suffici­ent [Page 38] (in equitie and lawe) to ground an Enquirie ex officio against a crime; doeth (accordingly) proceede, and vrgeth the partie conuented, to answere the matter and circumstances (whereon the Enquirie to the ende of Purgation, or els to punishment and reformation is framed) vpon his corporall oath; though the mat­ter be criminall, & thereby may happen to be penall to him selfe, and perhaps vnto others also.

Nowe whether such oath may by a Magistrate lawfully be vrged, and therefore not to be refused by the partie; is the very issue of this question.

Crimes and offenses are of two sortes: they are either prohi­bita quia mala, that is, either mala perse, in their owne nature wicked, & therfore by lawes forbidden: or such as of their owne nature are not simply euill, but therefore made euill, because (for some publike good ende) they are forbidden by positiue lawes. Whether in both these sortes of crimes, those men doe thinke, such oath to bee vnlawfull, or but in the one of them, and in whether of the two; I haue not yet heard any resolution; and therefore will bring my proofes indifferently for either.

But these two cautions you must be forewarned of. First, that it is not holden by any Law in England, nor by practise of any Court here vsed; that a man should be examined vpon his oath, touching a crime, whereby his life or any of his limmes may be endangered. The reason why the lawes thought it vnreasona­ble to stretch it thus farre, was for feare of periurie. because it cannot be entended of most men, but they will rather hazarde an vntrue oath; then either their life, or limmes. Skinne for Iob 2. V. 4. skinne (sayth Satan to God) and all that euer a man hath, will hee giue for his life.

And to this very purpose is the same text (not vnaptly) allea­ged, euē by the Treatisor himself. which maketh me the more to maruell at the Note-gatherer (pretending to be both so great a Diuine & Statesman also) that he could not see, this to be far the sounder opinion by diuinitie; and that he knewe not the policie and custome of this Realme, to concurre also therewith; howso­euer he auouche the contrary, as Part. 2. ca. 10. pag. 93. afore is by me noted.

The next caution is; that if the Iudge haue probable cause to suspect the partie to be such one, as will Iul. Clar. lib. 5. § finali. q. 45. forsweare himselfe, ra­ther [Page 39] then tell a trueth: there he ought also to abstaine from ten­dring oath vnto him, especially touching a crime.

This not onely by lawe is required, but (as ancient Fathers iudge) by diuinitie also: Aug. de decoll, Ioh. Bapt. ser. 11. quare (sayth S. Augustine) prouocasti hominem ad iurationem; quem sciebas falsum esse iuraturum? why didst thou prouoke such one to sweare, as thou knewest would sweare falsely? And Aug. ibidem. againe the same learned Father: he that pro­uoketh a man to sweare whom he knoweth will sweare falsely, is worse then a man killer: for a man slayer killeth but the body, but this man goeth about to kill the soule: yea two soules; that is, his whome he so prouoketh, and his owne soule.

An example hereof may be of him, which knowing the very trueth, yet deferreth an oath decisory. whereas a Iudge, though he know it not, but only haue probable suspition, that the partie is like wilfully to periure; ought not to vrge an Oathe at his hands.

In the handling of this oath ministred to a partie ex officio in a cause criminall, and thereby penall to him; I propound this or­der to my selfe. First to diduce downe more largely that equitie (which is afore in the ninth Chapter of the second part shew­ed, to be in the Enquirie of Office) vnto this chiefe and most vsu­all act in such Enquirie; that is, of examining the partie by his corporall oath, with answere to some fewe obiections made a­gainst the equitie and reasonablenes of it, by the Treatisour. Next I meane to shew it to be so far from being contrary to the lawes of the Realme; that by them it is often vsed and practised; with answer to such reasons, as be made to proue the contrarie. Then that the lawes of the Realme, doe allowe it in Courtes Ecclesiasticall. Fourthly, that it is practised and allowed by Ca­non and Ciuill lawes. And that it is in vse amongst other nations, with answere likewise to obiections made to the contrary. Sixt­ly, that it is practised and allowed in Gods lawe. Lastly I will (God permitting me) answere their obiections, that out of the worde of God and Diuinitie I haue heard made, to the contrary. First therfore touching the equity of such oath. All enquirie of crimes is made in some of these three sortes. First where neither person nor any deede is knowen to the Iudge (in particular) to be cōmitted; And such are enquiries by grand Iuries at the common [Page 40] lawe, and Enquiries by Churchwardens and Sidemen in visitati­ons, at the Ecclesiasticall lawe. This is called Inquisitio generalis, Enquirie, or Enquest generall.

Secondly enquirie is made, when a fact is knowen to bee done, but the delinquent is not knowen. As the Inquisition by a Coroner (vpon some murder committed) at the common lawe: and as the Enquirie vpon forgerie committed in some act of an Ecclesiasticall court; in which kinde of Enquirie, the hidden per­son is enquired after, in respect of the apparant fact.

Lastly, Enquirie is made against a particular person; where there be presumptions and detections, that some certaine crime is by him committed; but whether he haue committed it or not, it is not certainely knowen: and herein the crime being hidden is enquired of, because of the person, apparantly pressed by some probabilities thereof. The second of these is termed also Inqui­sitio generalis, but it is not so generall as the first: and the last, is most properly termed Inquisitio specialis.

In the first and second of these sortes of Enquiring, it wil not (I take it) be denyed by any; but that such should be assumed (by the seuerall Iudges and Officers in that behalfe) as they (in their discretions) thinke most fit, and to be most likely to knowe the offendors, and the offenses with their circumstances; and that they be charged vpon their oathes, touching their vtmost knowledge, concerning such Offendors. And may it not then thereby happen and fall out; that an oath shalbe ministered to one, who himselfe is such an offendor as is enquired of? For the grand Iurie (as I take it) haue their oath giuen to enquire, and pre­sent, their owne, their fellowes, and others faultes, that they shall haue in charge. And yet to auoyde this inconuenience, I trust it will not be thought meete, that al Enquiries by oathes, should be therefore giuen ouer. Then if this be a thing equall and agreeable vnto lawe, to vrge an oath; euen where it may happen the partie that takes it, to be the offendor: why should it not stand with more equitie, to vrge it vpon such an one, as al­beit he be particularly detected by great presumptions and pro­babilities; yet may happen neuerthelesse to be most cleare from the crime, imputed to him?

Againe, if one of the grand Iurie being to be sworne would [Page 41] denie to take the oath, except hee might haue some certaine of­fenses (vsually giuen in charge) left out and foreprised seuerally out of his oath, least otherwise hee should thereby be driuen to accuse himselfe: or if one supposed, most able to giue euidence, and information to the Coroners enquest, vpon a murder commit­ted; should desire to bee spared from telling his vtmost know­ledge thereof, vpon his oath; least thereby hee bee driuen to ac­cuse himselfe: would the Iudges or Officers hereupon, thinke it reasonable to spare these men and let them so goe; and not ra­ther repute them to be (in deed) guiltie of those crimes, for which they refuse to take oath, to tell and discouer their knowledges? In like so [...]t therefore, why should such men, as be probably de­tected of crimes nothing so penall, and who refuse to take oath to answere them, bee iudged by any man to doe it vpon good ground and conscience? and not rather, that they (as those o­thers) refuse it, vpon guiltines of their owne conscien ces?

As the equitie of this oathe is shewed by the former com­parisons; so may it also by consideration of the crimes and the qualitie of them, whereupon it is tendered in courtes Eccle­siasticall.

None of such crimes haue any punishment appointed vnto them by the temporall lawes of the Realme: and by the ecclesia­sticall Iurisdiction (whereby they onely rest punishable) the pe­naltie is farre milder then for those crimes, and the like, was in­flicted by the Iudiciall lawe of God, giuen to his peculiar people: yea not to be accounted (in very trueth, and for the most part) so much a punishment as a medicine, tending to the reformation of the delinquent (principally:) and secondarilie to the terrour or satisfaction of others.

Out of this number of medicinable punishments, I onely do ex­cept incorrigible heresie, Atheisme, and Apostacie from Christia­nitie: which (for the horrour and danger of them vnto others) ense resecantur, ne pars syncera trahatur. Both these three, and the rest are in such abhomination with Almightie God, so mani­foldly dangerous to the offenders soule, so noisome and preiu­diciall to the lawes, and vnto all ciuill societies of men in a com­mon wealth: that no well aduised man will thinke them meete [Page 42] to be suffered to take roote and growe, but rather by all meanes possible to bee discouered, and corrected. But being workes of darknes, & by the very remnants of those sparkes of the know­ledge of honest and vnhonest, iust and vniust (that continue with vs since Adams fall) euen by them that commit them, they are cōdemued to be such, as had need to be shrowded in all secrecie. And therefore they are of that qualitie and nature, as cannot (lightly by any possibilitie) be discouered, but either by the par­ties themselues, or by other partakers with them in the verie crimes; and (thereby) parties also to the same offences. Yet (as Tertullian saieth) a malefactor for the most part leaueth some footesteps and traces behinde him, which may serue to good purpose, for his discouerie. Whereupon it commeth to passe, that presumptions fall out to be knowen abroad, of great likelihood and probabilitie; that such crimes and offences haue bene com­mitted and done by such a person. So that when great bruites and fames hereof doe flie abroad to the offence of the godly, to a scandall and a stumbling blocke vnto the weake Christian, and to the obloquie of our holy faith and profession, with the com­mon aduersarie: wee must either permit such a supposed delin­quent and thus discouered, to bee examined by his oath touching the crime, and materiall circumstances of it: or else must wee suffer sinnes and grieuous enormities (so they bee closelie com­mitted) to growe vp and take strength without controlment; till they haue gathered that head, that they shall bee able euen with their peize and grieuousnesse, to ruinate both Church and Common wealth. which if it bee vnreasonable and vngodly (all things afore weied) then that whereupon it followeth must needs be absurd also.

If in hainous and daungerous crimes to the person of the Prince or state of the kingdome (whereof there be good pro­babilities and presumptions agaynst some person) it bee hol­den necessarie and lawfull Policie; to torture the supposed de­linquents, that they may confesse, albeit it bee capitall to themselues and to others also in the highest degree: is it not of as great equitie in crimes of no lesse secrecie, and some of them in no lesse execration with Almightie God then these, to [Page 43] vse the meanes of the parties oath; where no capitall, nor (often­times) no corporall, yea (for the most part) where no punishment at all (properly) so to be called, but a correcting and reforming of the partie, is intended?

When there be great presumptions of complots laied, that are dangerous to the Prince and whole state: is it holden good policie, to let the parties alone (without either torture or exami­nation) vntill some will voluntarilie offer himselfe to be an Ac­cuser, and to bee able to make proofe of them, though the par­tie bee neuer once examined? I feare mee greatlie, if this were holden for lawe and equitie; such great and secrete offences would neuer come to Iustice, till there were no man to admi­nister it, but the offenders themselues. And may not then the like be conceiued iustlie of crimes subiect to Ecclesiasticall cen­sure and Iurisdiction?

In the diuision of the seuerall kindes of oathes, there are men­tioned certaine, (euen where two parties bee formally in iudge­ment) that be necessarie to bee taken by the other partie, when as the suite is but betwixt two priuate persons, and touching their owne priuate commoditie and interest. They are tendered by the Iudge sometimes at the onely petition of one of the par­ties, and then it is called Mercenarium Iudicis officium, as of more base qualitie, in that he doeth nothing, but that, which he is (in some sort as it were) vrged vnto: and sometimes are offe­red by the Iudge himself ex officio, without petition of either par­tie, as in equitie he seeth cause: and then it is called Nobile Iudi­cis officium (touched also afore) as being of a more high and wor­thie respect, and of greater regard.

Of these sortes are Iuramentum calumniae, veritatis, & Pur­gationis. All these by lawe are necessarie to be taken. for 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 [Page 44] of his heart in that behalfe; viz. 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 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 [Page 45] 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 [Page 46] 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, 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 [Page 47] 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.

[Page 48] 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 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 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 [Page 49] 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 doeth seeme to encline this way: in making an oath to bee ouer feeble a foundation, to ground a sentence vpon. Why? if the partie confesse against himselfe that which is obie­cted; shall he be thought but to dallie, and to haue a longing to be punished, so as the Iudge may not safely take him at his word, and giue sentence against him? If a prisoner arrained pleade guiltie: what needes either euidence, or Iurie to be vsed; Confes­sio est liquidissima probatio, & plusquam probatio. But if he denie it; yet if the proceeding in a court Ecclesiasticall, be to his purgation alone; he is not to be acquited without a competent number of Compurgators: neither yet is he for euer so to be cleared, by the Iudges sentence; but that euen after such purgation; good proofes touching the very fact it selfe (if any can be made) are to be ad­mitted. which case happening, he is punishable both for the fact it selfe, and for his perturie.

But when the proceeding is by way of enquirie, for punishment [Page 50] or for reformation: then albeit the defendant deny it, neuerthe­lesse witnesses or other proofes (if any may be had, either then or afterward) are to be vsed against him. And therefore in such case as lawe alloweth sentence to bee giuen vpon the defen­dants oath; yea or vpon iudiciall confession without oath; it is no feeble, but rather a most strong foundation for the Iudge to build vpon.

The Note-gatherer no lesse missing the cushion and matter in issue, then the Treatisour; reasoneth thus against oaths (which they call generall, vnto all thoughts, wordes and deeds:) Her high­nesse (saieth he) hath oftentimes caused to bee openly notified in the Starre-chamber, that her gracious meaning is not, to search into mens consciences; or to force the same; but onely to extend the lawes vpon crimes committed either in word or deed. Belike if a man keepe not his conscience (as he calleth it) to himselfe, but vseth some ouertword or deede, hee will then (I hope) permit the partie de­fendant to bee interrogated by oath, (as in the Starre-chamber) touching such a crime. which if he will grant, let him, as much as he thinketh to bee for his ease; exclaime still, against all such Ordinaries and Commissioners Ecclesiasticall, as shall happen to giue such oath more generally, or without any ground prece­dent of inducement thereunto, by lawe allowed. for these vn­true imputations, will not touch any person or practise, that I haue heard of to bee vsed, since her Maiesties happy raigne. Thus much for the equitie of the defendants oath in some mat­ters criminall; and in answere of obiections, made agaynst the conueniencie of it.

CHAP. VI. That oaths of men touching matters dammageable, criminall and penall to themselues, are vrged & exacted by temporal Courts, and by the lawes of this Realme.

HEre I am to shewe, that the like oath in matters criminall, and that may be penall to a mans selfe; is practised by the course of the Lawes of this Realme; and therefore this proceeding, is no contrary or repugnant course vnto them.

The Chancerie, is a principal and high Court [Page 51] of this Realme; and a court of conscience and equitie, to mode­rate, [...], viz. the exact rigour of lawe.

In this court, though the procedings (for the most part) be mo­ued Ciuiliter & nō criminaliter; that is, not to any publike punish­ment, but for the priuate interest of the partie: Neuerthelesse, many bils of complaintes bee there put vp against defendants, wherein sundry their lewd practises and misdemeanors criminall bee deduced and set foorth; and yet must the defendant make perfite and particular answer thereto, vpon his oath.

The same course is obserued in other courtes of the nature of Chancerie, as in the Court of Requests. And somtimes further also, euen quando agitur criminaliter adpoenam partis: as is oftentimes obserued in the Court of the Counsell in the Marches and princi­palitie of Wales, and before her Maiesties Counsell, established in the North parts. So that, to the intent of a defendants being vr­ged by oath (sometimes) to discouer himselfe in a matter crimi­nall; it commeth to as much in these courtes, as is chalenged for vnlawful, in Courtes ecclesiasticall. For though in some of those aforesayd Courtstemporall, no punishment can be inflicted there­upon; yet either discouerie of themselues (if they be faultie) with shame and reproch to them; or else periurie is enforced in them all: which is the maine inconuenience, that the Treatisour, and Note-gatherer doe assigne, against such oaths.

There be sundry considerations touching the court of Chan­cerie, which if we do attentiuely confider, will argue vnto vs, the long vse and approbation of vrging defendants answeres to bee made vpon their corporall oaths: yea though some matter of their owne crimes and dishonestie, be therein deduced.

It must needes be, that the Chancerie is the ancientest court of this Realme: because frō thence all originall writs & Commissions do come; wherupon the other courts do ground all their procee­dings. And yet by all probabilitie it is most likely, that as in sun­dry other points of proceeding there, so in this behalf, they drew the exacting of the defendants answere vpon oath, from the Ci­uill lawe. For that Court being here in time and nature the first, could not take light from other Courtes of the Common lawe, but from some other, that was both afore it and them. Secondly, Answeres, Reioinders, &c. in the other Courtes (most vsuallie [Page 52] termed courtes of the Common lawe) are not put in vpon oath. Thirdly, the very worde of Cancellarius and Cancellaria are La­tin wordes, that are found to haue bene first vsed by the Ciuill lawe. and did signifie such an assistant to the Soueraigne prince, or other supreme Iudge, as for his wisedome and skill in lawe, was adioyned vnto him: and was so called, because he did sit intraeosdem Cancellos cum Principe, in the same Tribunall seate or bench with him, and in his absence determined matters for him and in his stead. and yet we read not this word of Cancellari­us in the ancient times of the Ciuil law, that was practised whiles their Commonwealth stood vninuaded, by perpetuall Dictators & Emperors: nor till aboue 300. or 400. yeeres after: about which times, and afore; this realme being wholy vnder the Romanes dominion (as the chiefest part of the then knowen world also was) no doubt their language, but especially their lawes, were here receiued. The sundry Colonies and other townes built and inhabited here by the Romane souldiours, and others; must needs spread that language very farre.

The old Brittish or Welsh language (at this day) after so ma­ny periods of times, vicissitude of Fortune, and mixture of other nations; doeth retaine very many prouinciall Latine wordes. Martiall the Poet, that writ in the times of Uespasian and of Do­mitian Emperours, saieth thus of a Brittish woman.

Claudia caeruleis cum sit Ruffina Britannis:
Cur quaeso Latiae pectora gentis habet?

This woman is thought by many, to be the same, whom S. Paul salutes in the end of the Epistle to the Romanes. And againe the same Poet.

Dicitur & nostros cantare Britannia versus: which argu­eth the vse and knowledge of the Latine tongue, to haue bene (then) rife in this Iland.

That the Ciuill lawe of the Romanes was then vsed here, their histories may testifie. for they gaue their owne lawes to most of the Prouinces which they subdued, and permitted [...], to very few of them. Many of the same lawes were also taken vp and re­teined by the Saxons: euen vntill the Norman conqueror brought hither, & established the customes of Normandie. And namely a­mongst others, they retained til then the law; y t al brethrē should, [Page 53] participate alike, their Fathers inheritance. And we do Cic. samil. [...]. reade, that Trebatius an ancient Ciuill Lawyer, and often alleadged in the Pandects (who liued in Iulius Caesars time, more then fourtie yeeres before Christ) did remaine at Samarobrina in this Iland of Brytaine. Likewise afterward, the Forcatulus. very oracle of that Law Ae­milius Paulus Papinianus did professe the lawe, and kept his Tri­bunall seate of Pretorship, at the citie of Yorke.

Fourthly, that the Chancerie tooke this course & many points besides from the Ciuill law; is apparant, by the whole course of other proceedings there, viz. by the defendāts answer to the bil vpon his oath, and sometimes to interrogatories: by the sundrie issues that there may be tendred: by that terme, and whole ma­ner of publication of witnesses depositions: by examining witnes­ses vpon Interrogatories: by examining witnesses in perpetuam rei memoriam: by the terme and vse of finall decree, and manie other such like points, much varying from the manner of com­mon Lawe, and iumping, almost wholy, with the Ciuill. And to conclude, this consideration is thereby made more probable: for that in elder times, the Chancellors to the Kings (for the most part) were Clergie men, whose studie and profession then, was the Ciuill lawes. Therefore this vrging to put in answere vpon corporall oathes taken (albeit the matter in some degree, hap­pen to bee criminall) being a speciall practise in that chiefest Court of Equitie; can hardly be construed to bee against equitie. and being in the originall temporall Court of the land, cannot bee contrary to the fundamentall lawes of the same. and that Court being of so great antiquitie and continuance; this answere by oath, can not be an abuse or corruption lately crept in; where­with the Treatisour (without any ground) chargeth all those temporall Courts that haue receiued it.

In the Court of Starre-chamber, the proceedings are against crimes criminally mooued by way of Enquirie; though (for the most parte) at the promotion or solicitation of some priuate par­tie grieued. namely against forgeries, periuries, subornations, ryots, rowts, and other sundrie heinous misdemeanours: against which there lieth no capital punishment, nor losse of limme, by the com­mon law. Yet is the defendant there, to answer vpon his corporall oathe, not onely to the bill preferred against him; but to as many [Page 54] other (perhappes sometimes euen crosse) Interrogatories, as the Counsell of the plaintife shall deuise.

But to this (I heare) it is replied by some, that there bee two maine differences betwixt the course there, and the proceedings in a Court Ecclesiasticall. The first, that none there is bound to take his oathe, but onely where there is an accusation preferred against him by an other: so as if he purge himselfe lawfully, hee is to recouer dammages. Touching recouery of dammages (if by dammages be meant costs and charges) these for the most part be (in this case) also giuen euen by the high Commission, that is so much impug­ned. For (except it be immediately for the Queene) there is a partie bound to prosecute and pay charges, if the defendant bee molested without cause. But if such dammages (as they terme them) bee recouerable in the Starrechamber; I thinke they are not very great: and where the matter is preferred once by her Maiesties learned Counsel; I am tolde there be no costs adiudged, though the defendant happen to be cleared. But if (in this be­halfe) there were any difference; yet it makes no difference in the very point in handling: videlicet, that an oathe is there giuen to the partie in a cause criminall and penall to him­selfe.

The other part of the replic (builded vpon an accusation there preferred) is indeede different from the course of Ecclesiasticall proceeding: but yet if there be equitie for it in the Starre-cham­ber, it doeth much more fortifie the giuing of such an Oathe in Courts Ecclesiasticall. For in these Courts, if there be an accuser or any partie that informeth or promoteth; then the defendant is neuer examined by oathe vpon the very crime. For when a par­tie prosecuteth, who (as the law intendeth) doth it for malice, reuenge, or some other particular respect; hee is not so much fauoured nor priuiledged in the proceeding; as when the Iudge ex officio Nobili, euen for his duties sake, and for the pub­like commoditie of the common weale, doeth make the In­quirie.

If then it bee both equall and lawfull in the Starre-chamber, at the prosecution euen of a priuate person (who may be inten­ded for the most part, not to doe it of conscience onely & zeale of Iustice, to haue vice punished) to examine the defendant vp­on [Page 55] his oathe, for discouerie, ofte times, of faults and misdemea­nours euen openly doone and committed, and so the more ea­sie to be prooued by witnesses, and where the punishments are vsually corporall and otherwise farre more grieuous, then bee in­flicted in any Court Ecclesiasticall: then howe can it in an Ec­clesiasticall court be thought vnreasonable; whereas the office, du­tie, and charge laide vpon the Iudge, are (by common entend­ment) the onely exciters and causes of prosecution: and where (if it be an Ordinarie Court) canonicall penance (for the refor­mation of the partie) is inflicted: And (if it be before the Com­missioners Ecclesiasticall) neither their greatest corporall paine is so grieuous, nor their fines so deepe? And yet many of the crimes are as heinous towards God, & as secretly and closely commit­ted and plotted; as any crimes are, that bee punishable before their Lordships, in that most honourable and sincere court of the Starre-chamber.

The second difference by some taken (in this behalf) betwene these proceedings; I heare, is this: that in the Starre-cham­ber a man is not driuen to answere directly to the fact it selfe, but one­ly to the circumstances of the facte, as was in Trussers case, as is saide.

But I am certainely informed (by those that haue better cause to knowe the practise of that Court, then the Authour of these obiections and differences) that the practise of that Court is cleane otherwise.

As for Trussers case, it was the felonie onely (a matter capitall to him) that was ordered not to be enquired of him by Oathe. but touching the lewd confederacie it selfe, and of his other pra­ctises about it, he was ordered (by oath) to answere them. So that the reason of the like equitie in both courts (these notwith­standing) remaineth still vnshaken.

To this reason (as is noted else where) the Treatisour also (for his parte) doeth thus answere, viz. that the Starre-chamber requireth answere to matter in facte, doone eyther to the iniurie of a priuate person, or hurte to the publike State: as if he would insinuate, that Courtes Ecclesiasticall vrged Oathes in farre more vnreasonable cases. Truely, if the iniurie reach onely to a priuate person, without any further offence or scandall: [Page 56] the imposing of anie such oathe by Ciuill or Canon lawe, will not be iustified: and other then for answering matters in fact, do one to the breach of lawes, or to the offense of Almightie God, and consequently to the hurt of the publike State; none oathe is at a­ny time there exacted.

Yea not onely in the Courts aboue named, but in al the other Courts of Record at Westminster; I am credibly informed, that, (time out of minde) it hath beene obserued, for the Iudges by cor­porall oathe to examine any person; whome they had cause (in dis­cretion) to suspect to haue dealt lewdly, about any writ, returne, entrie of rule, pleading, or such like matter (not being capitall) touching their seuerall Courts. as namely Sherifes, & their vnder Officers & Ministers, Protonotaries, Philizars, Chirographers, kee­pers of Records or Rules, Clerkes, and sometimes Councellours and Atturneis, or the very parties, hauing suites.

But because the Commission (as the Note-gatherer collecteth) bindeth them precisely to crimes punishable by the Ecclesiasticall law, and to proceede according to the Ecclesiasticall lawes of the Realme, and not according to the temporall: therefore (saith he) it is a friuo­lous allegation, to say; such a thing is vsed in the Starre-chamber, Chancerie, or the Benches: ergo the Ecclesiasticall Commission may do the like.

First, here hee calleth them Ecclesiasticall lawes of the Realme. how then are they foreine, and strange lawes, and sinewes of the Romish Cerberus, as the Treatisour raueth? Secondly, if Courtes Ecclesiasticall may not deale according to temporall Lawes; why doeth the Treatisour threaten them with praemunire, for that the policie of this Realme knoweth no such oaths, as he argueth? What? may they neither deale according to temporall Lawes, nor yet in a different course from them? Thirdly, the antecedent is vntrue: for by that Commission, the breach of foure Statutes be enqui­rable and punishable: and the punishment also may bee other then Ecclesiasticall, as is prooued in the first parte. Lastly, none that stand in defence of these oathes do drawe their reason onlie from the practise of temporall Courtes in that sorte, as hee sur­miseth; but thus: Whatsoeuer the Ecclesiasticall Laws do allow and require being not contrary nor repugnant to the Queenes prerogatiue royall, nor to the Lawes, Statutes and Customes of this [Page 57] Realme, that may be lawfully practised by Iudges Ecclesiasticall. But this oath is such; by reason that sundry temporall Courts (by lawe) holde the like course, and doe not prohibit it in courts Ec­clesiasticall: so that, not being so much as diuers courses, they can not be contrary or repugnant: therefore these oathes are lawfully practised in Courts Ecclesiasticall. or thus: That which is iustice and equitie in one court, cannot be vniust, vnequall, or cruell, in another court, that is thereunto no lesse authorized, then the first: but such be these oathes, as appeareth by the practise of the aforesayd temporall courts: therefore they are lawfull and equall also in Ecclesiasticall courtes. But for more particular and ful­ler proofe of these two minor propositions, I will speake first of oathes prescribed by statutes: And in these, first of such as be ta­ken in matters, that may onely bring dammage to the takers of such oath: and then of oathes taken in matters both criminall and penall to the partie that takes them.

By the 13. Ed. 1. stat. Winton. statute of Winchester, men within certaine yeeres of age, are to be assessed, and also sworne; to haue all such assessed armour in their houses.

The 17. Ed. 2. Prae­rog. Reg. ca. 4. kings widowes that haue dower of lands holden in chiefe of y e king; must be sworne, not to marry without the kings licence.

By a 25. Ed. 3. de seru. ca. 2. & 7. statute of king Edward the third, a taxe is set, what la­bourers shall take: and they are thereby appointed to be sworne, to doe those labours, and to take no more then is allotted them: And that they shall not in sommer depart, to serue in other pla­ces, then where they serued in winter. This oath is to be taken twise in a yeere: and if any of them refuse to take it, hee is to be sent to the stockes or gaole, till he will reforme himselfe.

Likewise by 27. H. 4. ca. 17. another statute afterwarde, all labourers and seruants are appointed to be sworne both to doe seruice, and to take for the same, according to the statutes: And if they refuse; they shall be set in the stockes (for three dayes) till they will agree to it; and if they doe not, from thence shalbe sent to the common gaole.

The 8. H. 6. ca. 7. sherife hath power (by statute) to examine euery chooser of a Knight for the Parliament, vpon the Euangelists; how much he may dispend by yeere.

Those that shall 27. Ed. 3. stat. stapulae. go about to shippe ouer any woolles, and [Page 58] other merchandises, the Maior of the Staple and Customer shall make them take oath; that they shall not keepe Staple of those merchandises on the other side the Sea.

11. H. 7. ca. 33. Likewise, he that shall shippe an horse (to carry ouer Sea) must sweare; that at the time of shipping him, and at that time he sweareth; he is fully purposed not to sell him, but to haue him for his vse.

By the statute or awarde made at Kenelworth: all that had to doe (in that behalfe) were appointed to 51. H. 3. sweare vpon the holy Gos­pels of God; that they should not take reuengement, &c. by occasion of the commotion.

For the Stat. de stap. 27. Ed. 3. ca. 6. value of merchandise brought in by strangers, if they haue not letters of credence thereof, from their lordes or companies; they are to take an oath.

The master, 23. Eli. ca. 6. owner, or shipper, is to giue true information by his oath, concerning the burden of his shippe; to the intent the mo­ney out of euery tunne allotted to Douer hauen, may be receiued.

All which oathes, though most necessarie and equall; yet you see, howe they may bring great dammage and losse vnto the partie.

Nowe touching oathes appointed by statutes that may tend and reach to make the partie discouer euen matter criminall or penall to himselfe: By the Statut. de Exon. de Inquisitione super Coronato­res. anno 14. Ed. 1. Rastall. tit. Coroners. nu. 3. statute of Inquisition vpon Coroners, the Enquirors shall make all the Bailifes sweare, that they shall well and faithfully doe that which they shall haue in charge by the King and his Counsell, and that they shall conceale nothing of it.

Their charge is not onely of misdemeanors, of Coroners; but also of concealements of murders and felonies, and letting such escape, &c. done (happely) in default of a whole towneship in generall; and perhaps in default of the very Bailifes particu­larly, who be sworne: and therefore criminall or penall to them, yet by vertue of their oathes not to be concealed.

9. Ed. 3 stat. de [...]oneta. ca 9. Maiors and Bailifes in euery port (where merchants and ships be) shall take an oath of merchants and masters of shippes going and returning; that they shall not doe any fraude against that ordinance (touching money) in any point. By which oath, it seemeth they not onely are to promise not to doe it (for they are to take it at their going) but also that they haue not done it being abroad; [Page 59] because they must take that oath also at their returning. And this being concerning fraude not to haue bene committed, tou­cheth matter of discouering a mans owne turpitude & offence; besides the penaltie due to the offender.

If a bill or information bee put vp in any court of Recorde, a­gainst a man, vpon the statute of 8. Ed. 4. ca. 2. Liueries and Reteiners (be­ing very criminall and penall to the offendors) after the Infor­mer hath taken oathe, that his complaint is rightfull (where by the way wee may see some vse in these courtes, of that iura­mentum calumniae, which is required by the Ciuill lawes, if it be demaunded by either of the parties) the defendant shall bee brought in, and put to answere to such bill or billes, by such in­formation. And the same Iudges and euery of them in euery of the sayde Courts shall haue power in their seuerall Iurisdictions, to examine all persons defendants and euery of them, vppon such information; and to iudge him or them conuict or attainted, aswell by such examination, as by triall, as the case requireth after the dis­cretion of the Iudges.

Vpon 11. H. 7. ca. 25. complaint by any touching periurie, and certified by a Iustice of Peace vnto the lorde Chancelour: it was enacted in the time of King Henry the seuenth, that the partie complained of, might bee compelled to come afore the Chancelour and Trea­sourer of England, the chiefe Iustice of either Bench, and Clerke of the Rolles for the time being: and they had full power and au­thoritie, by their discretion to examine him of all things in the bill of complaint; and by their discretion, to punish such, as by ex­amination should bee found offendours, aswell in periurie, as in other offences, viz. in maintenance, imbracerie, or corruption in any Officer, &c.

In the sayde Kings dayes, a statute was afterwarde made, against Reteiners; whereby 19. H. 7. [...]. 14. Iustices at their Sessions of Peace, were authorized to examine all such by their discretion, as they should thinke to bee suspected of any Reteinour: and their Certi­ficate into the Kings Bench, against any examined and found faultie, was against such, as a conuiction; and against others, as an Inditement.

The same Ibidem. statute also giueth authoritie to diuers great per­sons, to examine defendants informed against for certaine offen­ses [Page 60] and breach of Statutes; as well by oath as otherwise, by their discretion, and to adiudge, &c.

Likewise authoritie is giuen by 3. H 7. ca. 1. 21. H. 8. ca. 10. 5. Eliz. ca. 9. two seueral statutes, vnto cer­taine great officers of the kingdome, Lordes &c. to call such grie­uous offenders (as there be named) vpon bill or information: and them, and others (by their discretions, by whom the trueth may be knowen) to examine.

That this examination is by a corporall oath taken, the conti­nuall custome in that honorable court of Starre-chamber obser­ued, doeth shewe; for the breach of the sayd statutes is there to be punished. And if examination were not so to be taken for the parties owne oath; then coulde it not so bee vnderstoode of the witnesses: For the word examine, is indiffererently vsed for them all. And Brooke tit ex­amination. nu. 32. Brooke in his Abridgement doth testifie, that exami­nation spoken of in lawe, is vpon oathe.

If a 24. H. 8. ca. 6. Vintener shall refuse to sell his wine in grosse (without iust cause) vnto such as offereth him the set price thereof in ready money, he shall forfeite as much, as the price of the wine. Such vintener also may (at the discretion of any Officer there named) be put to affirme and depose vpon his bodily oath, what, and howe much quantitie, and sortes of wines hee shall haue; and whether hee keepeth them to sell by retaile or in grosse and if after such affirmance of intent to re­taile them, hee shall sell any of them in grosse; hee forfeites the dou­ble value.

By a statute of 34. H. 8. ca. 4. Bankrupts; the lordes there named, may (vpon relation to them giuen) call any person, suspected to conceale such offenders goods, and may examine them by their oathes, and other­wayes (as in discretion they shall thinke meete) vpon the specialtie, certaintie, true declaration and knowledge of such offenders goods, or debts, owing to him. And if he shewe not the whole trueth to be af­ter prooued by witnesses, &c. then he forfeiteth double the goods con­cealed. The like 13. Eliz. ca. 7. authority is also giuen to certaine Commissioners, to be appointed (by vertue of a later statute) to tender an oath. But in this later, the double penaltie runnes against him; If ei­ther hee doe not vpon his oath disclose the whole trueth, or shall denie to sweare.

The 5. Eliz. ca. 1. oath of Supremacie or obedience is a necessarie oath to be taken by such, as the L. Chancelour shall thinke fit ex officio [Page 61] to haue it tendered vnto. Yet if the party carying a contrary per­swasion shall refuse it, it becomes very criminall, and penall vnto him.

Such 13. Eliz. ca. 3. as be supposed to be parties and priuy to the fraude, col­lusion, and couin vsed in conueyances by fugitiues ouer the sea, which fraude, &c. are there affirmed to be things detested and ab­horred by all good lawes; may be Commissioners appointed, or by the Barons of the Exchequer; be examined vpon their corporall oathes; to open and declare plainely the very trueth, to such Interrogato­ries, as shall bee ministred vnto them touching the premisses, and the circumstances and dependances of the same: vpon paine (if they shall refuse) to loose such a fine and fines for the saide contempt; as shall be assessed by such, before whome such examination shoulde be made. In which (as in the other Statutes mentioned) it is euident; by how many wayes it may happen, that such oathes shall tend to the vrging of them to discouer matters criminall and penall to themselues, that are appointed to take them. And the foure last alledged, concerne oathes giuen; where neither bill, nor yet information is preferred against the parties examined: and there­fore to be tendered, more then ex mero officio.

In matters that may induce dammage to him that sweareth; there be sundrie examples at the Common lawe; one, or two may suffice. If T. 25. Ed. 3. fol. 44. a woman couertbaron (being to acknowledge a fine) it be doubted, whether she be 21. yeeres of age or no, she shall be examined vpon her oathe.

In an P. 3. Hen. 6. 38. action of detinue of goods supposed to be deliuered in Fleet­streete, the Plaintife was examined, where they were deliuered. An H. 3. H. 6. 30. obligation bare date in the Countie of Lincolne, and a Scriueners name was put to it that remained in London; hereupon the Plaintife was examined, where the obligation was made. Besides the dam­mage hereof; the circumstances of this, might be such; as might haue vrged him to discouer (perhaps) a forgerie.

It is a commō practise in this land, straitly to examine persons holden suspected of some crime or offence, and to vrge their an­swers; or else the Magistrate will and must needes holde them, greatly & violently to be suspected, & litle lesse then conuicted. If an vnlikely person (but suspected at large) be found in a priuie search; or stayed, as he passeth, and be brought before a Iustice of [Page 62] peace or higher Officer: is he not straitly thereupon to be exami­ned of his abilitie, course of life, trade, and place of abode &c. which may importe Roguerie, that is both criminall and very pe­nall to him, if he be such an one in deede, and shall choose ra­ther to endure the penaltie of lawe, then to lye before God and his Magistrate? If to this it be answered, that such examinati­on is without oath; I replye, that this is but as it happeneth: but admit it so be, yet the matter is hereby nothing holpen. For as to this purpose, of being vrged to discouer him selfe (which these men call accusing) in a matter criminall & penall, it comes all to one passe: because he must either holde his peace altogether, or confesse the truth plainly: (both which may bring him to pu­nishment) or else he must lie, whereby he grieuously offendeth God, though not in so high degree (indeede) as in periurie, neuer­thelesse this bond of not saying vntruely before a Magistrate must needes be counted, a kinde of causatiue vrging of a man (that hath any conscience) to discouer matter of crime against himselfe, if he be guiltie in deede, of that which is asked of him.

If a Sherife, Stewarde of Liberties, Reeue, Bedell of Strayes and wayues, rentgatherer, sheepe-Reeue, Baylife, Baylife of husbandry, or other accountant to the Prince, or any great Lorde, be vrged by their Auditour to giue vp their account vpon their oathes, as is vsually done: doeth not this (in case they haue done neg­ligently, or deceitfully) tend to bewray, or (if ye wil) accuse them selues, in a matter ignominious to themselues, and in it selfe cri­minall?

The Treatisour himselfe, though he bend most of his ordi­nance against this point; yet when he had more exactly a little waded into, and weyed the matter; seemeth but onely to finde fault with sifting generally (by oath) of all mens thoughts, words and deedes, and especially (sayth he in another place) in matters, of life and death: which his issues if he will not waiue and relinquish; there is none (I thinke) in this Realme, that will impugne that his assertion, either by colour of lawe, or by rigour of practise.

For euen at the common lawe, oathes in matters criminall and penall to the parties, bee oftentimes necessarily to bee taken, when they are enioyned. For if Stanford. Pleas of the Crowne. li. 3. ca. 14. a man sue an appeale of mur­der against another; who will bee tryed by battaile, the defen­der [Page 63] that is appealed; must (before the battaile) holding his ad­uersarie by the hand, solemnely sweare thus: Heare this, you whome I holde by the hand, who call your selfe by such a name; I haue not feloniously murdered your father, &c. so helpe mee God and all Saints.

Of Oathes ministred at the Common lawe, tending to the dis­couerie of matter criminall and penall to the partie himselfe; I finde these examples. One M. 34. Ed. 3. fol. 3. sworne of a Iurie, did after departe from his fellowes. In the meane time an other was sworne in his roome. But when the first returned, hee was by the Iudges ex officio examined, vpon his booke oathe; whether hee had talked with the defendant or beene in his company, since he was sworne. This (if he had confessedit) as it is an offence, so had it beene very penall vn­to him. Neuerthelesse for his apparant fault of departure, hee was committed and fined.

In an action T. 7. H. 4. fol. 19 of Formedon, the tenant of the land was supposed to confesse the action of the demandant by couin, and was thereupon examined by the Iudges; and the couin being thereby founde; it was decreed, there should be no iudgement, and that he should be punished, by their discretion.

A P. 9. H. 5. 1. woman brought an appeale for the death of her husband, but (as it was supposed) by another name then she had in very deede: vp­on which couin, she should haue beene fined, and thereupon she was examined.

A H. 35. H. 6. & Fitzh. Abridgem. tit. examinat. nu. 17. Iurie after they were gone together, were supposed to haue receiued a letter on the behalfe of the defendant: which in law is said to be a grieuous fault, and it is to be grieuously fined: yet all the Iu­rours were thereupon examined vpon their oathes.

A M. 35. H. 6. 11. Sherife returned, that certaine witnesses, who should haue appeared, were dead: whereof it was desired, he might be examined, because the returne was razed, and two of the witnesses were saide to be aliue, whereof one was then in the Hall, and had his remaining in the Countrey. Whereupon the Sherife was examined, which Prisot enformed: and hee deposed, that the returne was made by a Clearke, and neither by him, nor by his Vnder-sherife: and that he knew two of the witnesses were liuing. Now if he could not (with a good con­science) thus haue cleared himselfe vpon his oathe; had not this crime of razure and false returne, beene verie penall [Page 64] and shamefull vnto him, being so directly contrary to honestie and to his oath, taken at the entrance into his office?

H. 10. Ed. 4. 16. And it was (at another time) the opinion of the whole court; if the parties in a cause, had then had a day in courte; that they might haue examined them, touching their couin and lewd practise, tending to de­feate another man, of his lawfull action.

They haue a certaine custome in London, and it is allowed for good by the Common lawe of the Realme: Brooke tit. ley gager. nu. 77. That if the defendant thinke the plaintife haue made a false declaration in an action of debt; he may desire to haue the plaintife sworne to the trueth of his declaration, and shall haue it. If the plaintife sweare, the defendant is condemned: and if the plaintife refuse, he is barred. And may not this delation of such decisorie oath, occasion, and (causatiuely) vrge the plaintife (sometimes) to discouer himselfe to haue demaun­ded a debt not due, which is dishonestie and vniustice: or (per­haps) induce him to periurie, partly for filthie lucres sake, & part­ly that he may not seeme to haue dishonestly demaunded, what was not due vnto him? if then a priuate person, neuerthelesse may so deferre an oath, but in a priuate money matter: how much more may a magistrate in a publike crime, these doubts and perils notwithstanding?

And the like decisorie oathes be not onely receiued in that Ci­tie alone, but also at the common lawe. For 19. H. 6. 43. when the defendant desires, that the plaintife may be examined, or sworne, this is peremp­torie to the plaintife in this point. and so is the wager of lawe, ex par­te defendentis.

In an action of 44. Ed. 3. 41. detinue brought against a Deane, for a chest sealed with certaine golde, siluer, and Charters in it, as being deliuered to his predecessour; the Deane tendered his law (that is his oath) quod non detinet: and the opinion of the court was; that he should haue it. Now who seeth not, howe many wayes, this course may no lesse in­duce men vnto periurie? For doeth not common experience teach vs, howe readily, for a trifling piece of gaine, tradesmen in buying and selling will sweare falsely, or els cautelously, which is all one fault before God: yea when as no such matter is required, or exspected at their hands? therefore howe much more strongly may periurie bee feared, in a matter of good weight; especially when men by the vexation and sute of their [Page 65] aduersaries are whetted on, and where as, they hauing (a good while) stoode in deniall; their credits amongs other men, might otherwise be called in question, and seeme to be impayred? And yet this danger that periurie may perhaps ensue, is no suffi­cient reason to change the common lawe, in this behalfe. Howe then can most of the Treatisours arguments holde; which are chiefly grounded vpon perill of periurie; which (he saith) is likely a man will fall into, rather then haue his good name and honestie brought into question, and hazarded?

I haue also credibly heard, that in the time of that Reuerend Iudge Dyer, the court of Common pleas, examined certaine by their corporall oathes, touching a very lewde plat layde by some of them: and the names of the dealers pro & contra, in that cause, were (as I remember) Greuill, Pyue, and Hockam, which being so found out, was condignely also punished in some of the offendours, both by perpetuall infamie, and with other punishment.

CHAP. VII. Wherein are conteyned answeres to such obiections and reasons, as bee made for proofe of a contrarietie or repugnancie in these oathes, vnto the statutes, lawes, or Customes of this Realme; and a Replie to the Treatisors answeres, made vnto certaine obiections, supposed likely to be made, in Iu­stification of this kinde of oath by the temporall lawes.

IN this Chapter I purpose (God willing) to answere those poynts, which by the Treatisour or Note-gatherer are brought, to perswade; that such oath (as here we handle) is either plaine­ly impugned, or closely contraryed by the lawes temporall of this Realme.

Vnder this consideration doe fall certaine bare affirmations about this matter; their reasons for this assertion, and their an­sweres to such obiections, as are by them supposed may be made, in defense of this kinde of oath.

Among their bare affirmations about this matter, I recken some things, which they imagine to be sayde or practised, by [Page 66] Ecclesiasticall Courtes or persons: and that which they af­firme, the common lawe either holdeth or practiseth on the one side; or els on the other side forbeareth to put in vse, in this behalfe.

To the poynt of practise by persons and Courtes Ecclesiasti­call; are referred those the Treatisours imputations; whereby he surmiseth generall oathes, for all a mans thoughts, wordes, and workes, to bee ministred by them: and that vpon the Ec­clesiasticall Iudges onely iealousie and suspition, without any other lawfull inducement precedent. Likewise that it is tendered in matters tending to losse of life or of limme. All which I haue else-where shewed, to bee very vntrue, and slanderous. Hither also is to be reduced another speech of the Treatisours: for whereas the defenders of this oath doe affirme it, as it is practi­sed (but not in such a catholike or vniuersall maner, as he sporteth himselfe at) to be warranted by the temporall lawes: he saith; that this is a foule sclander both to our lawes, and to the Iustice of our land.

The trueth or falsehoode of which his fowle saying, will appeare; vpon perusall of the next precedent, of this, and of the next Chapters following. And so will also these other his spee­ches to like purpose, viz. where hee calleth it, an alien here­tofore entruded, as a trouble some ghest into the house of our com­mon wealth. And where he saith, that as Sir William Thorpe, by his corrupt dealing, so much as in him lay, had broken the oath which the king is bound to keepe towards his people: so the ecclesiasticall Iudges practising in their Courts and tribunall seates, the selfe same vniust and vnlawfull maner of proceedings, against the kings people; coulde not escape the seuere sentence of lawe, pronouncing them offensiue but­chers, and violatours of the king, and iniurious dealers agaynst his Regalitie, crowne, and kingdome; and so consequently, &c. in a Prae­munire.

But for any testimonie of this corrupt dealing of Sir William Thorpes (which here hee speaketh of) or of his breaking of the kings oath, and so seuere sentence of lawe passed in that respect against his butcherie and violation of the kings Regalitie &c. though I haue sought for it, yet can I not finde; neither doth the [Page 67] Treatisour giue vs any direction for it. His meaning herein (though couered with slye wordes) is easie to bee discerned, through his vizard. For if the oath were made by the king onely, how could it bee broken by Thorpe, and the king bee vn­blameable? for no man is simplie bound (by oath) to performe other mens integrities. and seeing hee chargeth ecclesiasticall Iudges, with the selfe same vniust and vnlawfull maner of procee­ding: though his conclusion (drawen from the likenesse be­twixt these cases) be onely this, videlicet, that they are thereby fallen into Praemunire: yet his very meaning, and what conclusi­on was by him meant to haue followed thereon, by the former part of the comparison, is made apparant, videlicet, a couert, disloyall, and most lewde charge; as if some now had no lesse broken the oath which they haue taken, howbeit procured or induced thereunto, by Iudges and Courtes ecclesiasticall. But if such Ecclesiasticall Iudges haue neither indeuoured any such breach; neither yet their practise of the oathe by him here con­demned, bee impugned by any lawe; then can it not bee auoi­ded, but that the Treatisour (in very deede) had such an vn­duetifull and slaunderous purpose and reach, in his words afore­sayd.

To the second degree of their bare affirmations, such spea­ches of Temporall Courts practise, or forbearing to practise (as these following bee) doe belong, videlicet, that such a generalloathe or such like ex officio, was neuer offered nor taken; for you may per­ceiue, he is not resolued throughly; whether of these two hee had best insist vpon, or take for his issue: And that, the common lawes haue euer reiected and impugned it. Likewise, that it was neuer put in vre by any Ciuill Magistrate of the land, but as it is cor­ruptly crept in amongst other abuses, by the smister practises and pre­tenses of the Romish Prelates and Clergie-men. which asseuerati­on, as it is (in that part) voyd of all likelyhood, where it is surmi­sed that the practises & pretenses of Clergie-men, did first shoulder this oath into Ciuill or Temporall Courts: so is it yet, an implied kind of confession; that it is not such an Alien to the Ciuill pollicie of the Realme, nor by it wholie reiècted & impugned; as in his trea­tise he beareth vs strangelie in hand. Besides that, such implication is flat repugnant & contradictorie, to y e Note-gatherer; who writeth, [Page 68] that it was neuer vsed here to make men accuse themselues: for by this accusing he meaneth giuing of oaths to defendants, touching discouerie of some their owne offences. Lastly, that where losse of life, libertie, or good name may ensue; the Common law hath for­borne oathes. As for losse of life, it is yeelded to be true, which he here saith: but not so, for the other two. for the Starre-cham­ber (being a Temporall or Ciuill Court) imposeth oathes, where both infamie may and doeth follow for punishment; and where libertie is restrained most often by imprisonment, and sometimes also by banishment.

Vnto the other head of their bare affirmations, which is, what the Common lawe holdeth, in this behalfe: such of their speaches as these following, doe appertaine, videlicet, to giue oath (they meane to the defendants) in causes of life and death, is contrarie to the Iustice of the lande. This, albeit, it no way impugne any practise Ecclesiasticall: yet is it flat repugnant to the Note-ga­therers assertion, spoken vnto in the ca. 10. pag. 93. second part. Agayne, that the Common lawes haue not appoynted an oath to bee vsed, but accor­ding to the right institution thereof: and that in causes capitall or cri­minall, these lawes neither vrge by oath, nor force by torment, a thing most cruell and barbarous, and therefore agaynst torturing, he al­leageth master Fortescue in his booke De laudibus legum Angliae. It is wholie besides my purpose either to auow or disauow here, the course of finding out trueth by torture; yet much might on both sides (probablie) bee sayd therein, both by reason, and also by graue authoritie.

That the defendants oath in causes capitall, neither is vsed nor allowed by the lawes of this Realme, I doe yeeld vnto him, as afore I haue sayd; but for torture, let me neuerthelesse put him in minde, that it may perhaps be thought of very hard, to haue it thus affirmed; that the torturing of supposed Capitall offenders, not only vsed in Campes, but also (within the Marches & prin­cipalitie of Wales) euen in time of peace, well warranted by her Maiesties instructions, and by Act of Parliament, & in the Tower of London for matters of treason: should all of them be accounted absolutely contrary to lawe; or (which is more) to bee courses most cruell and barbarous.

The other poynt thereof, which is of not vrging a defendant [Page 69] by oathe in any cause criminall; is the maine point here trauersed betwixt vs; and therefore may not be caried thus away by him, per petitionem principij, without some sound reason.

All these aforesayde speaches I doe muster amongst their bare affirmations; and haue the longer stoode vpon them, be­cause themselues doe not so much as assaie or vndertake to prooue most of thē, by any colourable argument or authoritie: & for that the reasons, which they tacke on, vnto some of them, doe not hang together by any consequence; and for that diuers of them might bee granted, without any detriment to the cause which wee defend. for they be but voluntarie speaches, let slip at randome. this therefore commeth vnder his mistaking of the true issue. yet they be such, as seemed not vnmeete to bee men­tioned; least (if the Author of them doe happilie holde them for sound reasons) hee should complaine to haue a piece of wrong offered vnto him, for that all his booke was not spoken vnto, and answered.

Next doe follow those their reasons to be discussed, which they take from the lawes of this Realme. and first concerning such of them, as be made out of Statutes; and afterward we will come to their booke cases. That which hee speaketh of Mag­na charta, albelt he handle it last, yet for the ancientie, seemeth to deserue the first ranke. he auoucheth no particular part thereof: but taking (as graunted) a contrarietie (belike in his opinion) not trauersable, to be betwixt proceeding by this oath, and the sayd Statute; he onely (in high wordes) telleth vs, of a most iust curse of Anathematizing, laied by the Bishops then, against all wilfull infringers of that Charter. If I should gesse what poynt thereof it is, which hee intendeth to bee so contrary to these oathes; I would take the nineteenth chapter thereof (if any) to bee meant: both because putting to an oathe is there mentioned; and for that I haue heard it (to like purpose) alleaged by some other. How­beit the Treatisour hauing farre better insight (as seemeth) in lawe, then hee that so alleaged it; thought good to skippe it ouer, without all allegation; for feare it would not so wel helpe his turne. The wordes are these, videlicet, No Magna charta. ca. 19. Bailiffe shall from hencefoorth put any man to his open lawe, nor to an oathe, vpon his [Page 70] owne bare saying; without faythfull witnesses, brought in for the same. I must confesse, that these wordes are some thing too obscure and darke for mee to vnderstand, what is positiuely and preciselie meant by them. and so much the rather, because I know not the vsage afore that time; which (thereby) was ment to be remedied: except I should coniecture, that the bare say­ing (there) spoken of; is to bee referred to the man, that taketh the oath, and not to the Bailife: and then would it seeme to e­stablish that practise, which is vsed in waging of lawe with two or more witnesses or handes, concurring with his oath that swea­reth.

Howsoeuer it be (in verie deed) to be vnderstood; it is ea­sie inough to gather, what can not be meant by it. First there­fore, it cannot any way be extended to proceedings and courtes Ecclesiasticall. for whatsoeuer is in that Statute graunted, after confirmation of the Churches liberties (except it bee otherwise plainely expressed) is referred to Courtes and matters Temporall: betweene which and causes ecclesiasticall (as is noted afore) there was made both in those times, and also long after; a plaine seuerance and distinction, in the groundes of their seuerall au­thorities, and iurisdictions. so that the one was called the Kings Court, and the other a Spirituall, or Court Christian. and there­fore as nothing was in that Charter anewe graunted, but confir­med onely, vnto the Church of England: so is it to be iudged on all handes, that the king would not make lawes there, to re­straine the courses of proceeding ecclesiasticall; because it could not be without disanulling and reuoking of that which imme­diately afore (euen by the same Acte) hee had first of all confir­med vnto them.

Secondly, a Bailife onely, is there mentioned, which should put or not put a man to his oath; which cannot well and properlie be vnderstood of any, but of some officer temporall.

Thirdly, these wordes are no way appliable, to the practise of courtes ecclesiasticall: for albeit vnder the name of Bailife an Or­dinarie might be vnderstood (which were very harsh, insomuch as a Bailife is but a Reeue of a Baile or Libertie) yet is it not hol­den by any lawe ecclesiasticall; that vpon an Ordinaries owne bare [Page 71] saying, whether he haue witnesses after to bee produced or not; a man may bee put to an oath. for there must bee some better matter of inducement, to open way to the enquirie, where­upon the oath ensueth.

Lastly, this statute will rather hurt, then helpe forward these mens purposes, if an Ordinarie might here be vnderstood by a Baylife. because (if I conceiue the matter aright) by this is im­plyed; that so an Ordinarie be able to bring in good witnesses; he may then vpon his bare saying put a man to his open lawe, or to an oath. But hereupon would followe, that Criminall prosecution without any accuser or other partie, and so ex officio mero; yea and without any presentment too, may bee lawfully admitted: and (which is most to our present purpose in handling) that an oath (in such case) by him may bee imposed, in any mat­ter aswell Criminall as other. For heere is no distinction made of any one kinde of cause from another, and they which alledge it, doe bring it to impugne proceeding by the defen­dants oath, against crimes.

The allegation of the Treatisour out of the statute of Marlebridge or Marleborough falleth next in time to bee considered: the whole wordes Marlebr. 52. H. 3. cap. 22. whereof are these: none from hencefoorth may distreyne his freeholders; to answere for their free holdes, nor for any thing touching their freeholde, without the kings writ: nor shall cause his freeholders to sweare against their willes, for no man may doe that, without the kings commaundement. But the Treatisour leaueth out the first part which sheweth, howe the second that he alledgeth, is to be vnderstoode. And because (like the lapwing with her diuerting c [...]ies) hee would leade vs further and further from the matter (herein) chiefly to be re­spected: or for that he thought wee would make some aduan­tage hereof; he saith, that the kings commaundement importeth here thus much, viz. according to the law & Iustice of this Realme; and for this quoteth a booke thus: 2. R. 3.

The booke he meaneth (as I gesse) is in Mich. 2. R. 3. sol. 11. these words: where­soeuer a man for offence, misprision or otherwise, is to make fine or re­demption all the Iustices agreed, that those Iustices before whome he was committed, &c. should take suretie and pledges for the fine, &c. and after by their discretion they should assesse the fine, and [Page 72] not the king in his chamber; nor otherwise before him; but by his Iustices. and so is the kings will (in statute) to be taken, viz. by his Iustices and his lawe, which to say, in effect is all one &c. Where you see, that the booke speaking of Iustices (viz. the men be­fore whome the conuiction was made) he referreth this to the Iustice of the land.

But though it be neither off nor on, to our Principall pur­pose; neuerthelesse it seemeth, this booke is not truely applied by him vnto this statute: and that by the kings commaundement in the statute; the kings writ is to be vnderstood, (as in the first part of that statute is plainely expressed) rather then any deter­mination or Act of his Iustices of the Bench.

Touching the statute it selfe; the wordes doe euidently shew, that neither oath in cause criminall, nor any Court Ecclesiasticall is thereby meant. there is onely forbidden, that lords of manors shall not inforce their Freeholders that holde lande of them, whether it be by distresse or oathes, to answere in their Courtes baron, touching the estates they haue in their landes. because neither the lordes owne courts (in such a case) be competent or indifferent, for feare of vnlawfull euiction; nor the goodnesse or weakenesse of the states men holde, are meete to be fished out by their owne oathes in satisfaction of their lordes greedi­nesse, to haue their lands: except the king by his writ shall so e­specially command. And yet hereby wee see, the statute leaueth it at large at the kings pleasure, to warrant euen this course: and therefore this is not simply vniust, but inconuenient onely, for lords so to vrge their tenants.

He alledgeth further (against these oathes) a statute (as hee saith) made 43. Ed. 3. ca. 9. that no man be put to answere without presentment before Iustice, or matter of Record, or by due proces, or by writ originall after the ancient lawes of this land.

But I doe finde no such statute either in that yeere, or in any other like number of Chapter, of that king: and that Parlia­ment which he voucheth, hath not so many Chapters. But ad­mitting it, what is this to proue an vnlawfulnesse of oathes mi­nistred vnto defendants in matters criminall, whereof there is no shadowe of mention? it rather speaketh of matters that ought to goe afore proceedings criminall at the common lawe. [Page 75] and what makes this against Courts Ecclesiasticall? woulde hee haue them to proceede in the selfe same maner, that common lawe courts doe? hee might aswell exact of them, Indictments, and afterward tryals by Iuries of twelue. and yet Ecclesiasticall courts put none to answere, but vpon moe then one of these, or at least that which is equiualent at that lawe, vnto these at the common lawe. For first, courts Ecclesiastical haue great vse of presentments and complaints or denunciations before the partie be called to answere; as is shewed in the second part. Then the de­fendant is not called neither, but by due processe; as by letters missiue, or by attachment in Courtes of Commission; & by Prima­rie citation, in Ordinarie Courtes: which haue a correspondence vnto originall writs at the cōmon law. So that of foure matters, wherof some one or other of them is thereby required; three of them be vsed in Ecclesiasticall proceedings against crymes.

His next proofe (of this kinde) cōming to be discussed, is out of the 25. 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 [Page 76] 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 [Page 77] 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 [Page 78] 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 vpon view of his proofes for them, which shall followe; I would the Reader might be pleased to consider; whether I had not iust cause to put them downe for bare affirmations vnaccom­panied (in trueth) with any reason. Fourthly, those booke cases are brought, to shewe; that the common lawes, yea the common wealth it selfe hath euer reiected, and impugned this maner of swea­ring, whereof wee nowe intreate, as a thing vnlawfull, and iniurious: But this last wee may not so easilie yeeld vnto him, without be­traying the trueth; as we yet (verily) take the matter.

The examples then which hee bringeth in proofe of those conclusions, and withall to shew how oathes bee ministred at the Common lawe, are of witnesses deposing betwixt Prince and sub­iect, or betwixt subiect and subiect: of defendants waging their lawe in personall actions, with two other swearing with them: which wa­ger is neuer admitted, where there is witnesse (though but one) or matter of recorde, or the parties owne hand writing: of a tenant in a reall action waging his lawe of non summons, for safegarde of his lande, as hauing none other way to relieue himselfe agaynst the false returne of the Shiriffe: Of examining the garnishours, re­turned (when the plaintife recouereth in a Scire facias by default) vpon an action of deceipt, brought by the defendant agaynst the Shiriffe: and of a Tenant in a Praecipe of land, casting an Essoigne [Page 79] of the Kings seruice, where the Essoigner shall sweare, that it is no fai­ned excuse.

Out of these being graunted vnto him, I trust neither hee, nor any Logician in the world, shall be able euer to drawe any sound reason so much as agaynst those generall and Catholique oathes; with which (throughout) hee chargeth Ecclesiasticall Courtes, howbeit very vniustly. but much lesse agaynst those speciall oathes of defendants in some criminall cause, whereof wee here intreate. for the reason from these, must thus of necessitie be gathered: these oathes are vsed, and are lawfull, therefore the vse of oaths in any other sort, is vnlawfull.

Therefore to presse vs yet further by some examples out of that lawe, hee saieth: It hath wholy forborne to minister oathes in criminall causes. for that in wisedome it was foreseene (by reason of mans frailetie) what danger of periurie a man was likelie to fall into for safegard of his life, for preseruation of his libertie, credite, and estimation.

The great presumption and danger of periurie, if a man should be sworne in a cause Capitall vnto him, I can easily yeeld vnto. and that the sentence out of Iob (to that ende) is very ap­posite. but for auoyding some restraint of his libertie for a time, or for the onely retaining of his woonted credite and estimati­on, that a man which hath any feare of God at all, or but any slender sparke of godlinesse and true religion; would wilfullie (through periurie) throwe his owne body and soule into hell; neither lawe, nor yet any nation in the world, that I can reade of, did euer presume.

And if great likelyhood and doubt of periurie be so effectu­all a motiue for all wise Magistrates to forbeare giuing of an oath: then must he also condemne oaths, in most of the sayde examples by himselfe afore alleaged and commended. for who is ignorant, but that (in most men) there is more danger of per­iurie by swearing about debt and detinue to saue their goods, then for their goodname, as is somewhat touched Vide 3. par. c [...] afore? Hereupon then all wagers of lawe, should bee vnlawfull, yea not onely for getting, or keeping of goods; but especially for lands, this danger of mens owne periurie is apparantly great; in that it is much more common to suborne others thereunto, for this end; then for [Page 80] preseruation either of libertie, or of good name and honestie, when these happē to be likewise questioned. so that, for danger & pre­sumptiō of periurie; the tenants oath of non summons (who is other­wise to lose his land) should not be admitted by his owne reason.

Againe, if this feare and doubt be so forcible and necessary a ground of forbearing to minister oath: then what wil the Trea­tisour say vnto those wagers of law allowed of, & made (as by the bookes M. 8. H 6. fo. 15 H. 20. H. 6 fo. 16. H. 22. H. 6. fol. 41 of termes & yeres doth appeare) whereas both the plain­tifes were vpon their intention, examined by their owne oaths; & the defendants also were permitted to wage their lawe? doe not these crosse-oaths inferre periculū periurij, either on the one side, or the other (seeing thereupon oath may be against oath, either di­rectly or by implicatiō) much more then any oath doth, whether it be general or special, in criminall causes, that he or others do im­pugne? Furthermore in these wagers of law vpon actions of debt or detinue, or in actions reall; this danger of periurie is inforced, not only by the consideratiō of y e extraordinarie care, which most mē haue, of keeping, or getting goods & riches by hooke or crooke; but somwhat also in regard of their owne worldly credites and honestie; if the retaining of that bee of such moment, to induce periurie, as the Treatisour imagineth. For when one of these de­fendants, hath (a good while) stoutly & publiquely stood in deniall of the matter, for which he is sued: will he not take it to be a re­proch vnto him, to haue it discouered (by his refusal to sweare) that he hath so confidently & so long auowched an vntrueth, e­uen to defeat another man of his due and right? and therefore by all likelyhood, what to auoid losse on the one side, and shame or obloquie on y e other; wil scarcely sticke, to hazard an vntrue oath.

Lastly, it is both lawful & receiued by practise also, when Brooke titulo Iurisdiction. nu. 105. Iu­ries for trials of matters betwixt man and man, or vpon life and death, cannot agree within the time of the abode of the Iustices of Assises in that Countie; that then they shall be caried along with the Iudges in cartes; till they shall all condescend & agree; and in the meane time they are to bee kept from all meate, drinke, and candle light. and may not this course, driue such of them, as cannot satisfie and conforme their owne consciences to the rest of their fellowes; to yeeld (at length) euen vnto dam­nable and wilfull periurie, rather then miserably to famish, and [Page 81] to perish for want of foode?

We may therefore conclude, that euery presumption or pe­rill of periurie ought not to be holden sufficient; to take away the vse of oathes (otherwise being expedient) from amongs the societies of men.

The Treatisour bringeth one other example of oathes, out of the reports of the common lawe: it is the vicar of Saltash his case, 2. H. 4. by which (he saith) the vnlawfull imposing of an oath vpon him appeareth. But it is not any vnlawfulnesse (simply) of imposing an oath that there appeareth, or which was condemned by deniall of a consultation; neither was it imposed, but voluntarily taken: but it was, for that the Popes Collector (who had in England no iurisdiction) did conuent the said vicar afore him ecclesiastically (at the suite of the Deane of Windsor) for breaking his oath taken afore the sayd Collector, to performe the condition of an obligation, that he the said vicar had entred in­to, which is a temporall cause. What then doth this make a­gainst oathes imposed vpon defendants in some criminall causes? For I trust (though the Collector had vnlawfully imposed it) the Treatisour will not thence reason thus mightily against vs, viz. This was an imposed oath in a ciuill cause, but it was vnlawfull, therefore all imposed oathes in any criminall cause are also vnlaw­ful: For this reason is ex meris particularibus, & hath quatuor ter­minos: & besides, is a fallacie of the Accident. Seeing is was not therefore vnlawfull because it was imposed; but vpon the other grounds alone. Hitherto touching examples of oathes, alledged out of the reports of the common lawe.

Now follow these reasons that are vsed, as for a more direct condemnation (by the common lawe) of oathes imposed vpon defendants, in some Criminall cases: in which behalfe, the Note­gatherer saith; that nemo tenetur seipsum prodere, is the common custome of England. I will not greatly sticke with him herein, so it be truely vnderstoode. albeit this maxime being taken notori­ously out of the Interpreters of Ciuill and Canon lawes: I thinke he would haue much a doe to finde it (by any booke of the common lawe) to be the common custome of England.

It is true, that when a mans owne fault is secret, and not any way bruted and published abroad: he himselfe is not bound by [Page 82] lawe to make confession thereof, to any Magistrate or officer Ci­uill or Ecclesiasticall; whether he be vrged to sweare thereupon, or otherwise. for in such case, it is simply secret, and the Magi­strate (except he shoulde minister a generall oath, like vnto the Popish charge at shrift, not warranted by any lawe) cannot pos­sibly in speciall or particular manner interrogate him of that, whereof he neuer heard, nor once dreamed.

But if a man be once discouered thereof by Presentment, de­nunciation, Fame, or such like, according to lawe: then is not the fault simply secret, but reuealed (in some sort) abroade, or to the Magistrate. who for auoyding scandall to Christian religion, and for reformation of the partie, may thus enquire of the offence, to see it redressed, and punished. and therefore to the former maxima must be added thus much; sed proditus per denunciatio­nem, Famam, &c. tenetur seipsum ostendere. Any more exact or further discussing hereof, is not of this place: I doe 2. part. ca. 6. & 7 3. part. ca. 9. therefore referre the reader, to the places of this Apologie here quoted in the margent.

The onely case carying any shewe or colour of condemna­tion of oathes in any cause criminall, at the course of proceeding by common law; is alledged by the Treatisour out of the Li. Assisar. 4. 9. E. 3. Assis. 1. sol. 316. booke of Assises. there, certaine returned of a Iurie, being readie to be empanelled with others, were challenged: some of them, for that it was supposed they had declared the right for the one partie, and not for the other: thereby (as it were) telling their verdict a­forehand: And othersome were challenged to be of Counsel or fee, to the parties. Nowe it is thereupon further reported; that such of them as were (in the first respect) challenged; were sworne to giue euidience to the Iurours: and that it shall bee so in like case, where the challenge sounds not in reproofe or dishonour of them. but for those which were challenged, that they had receiued mo­ney of the partie; this challenge was tryed by the tryours, with­out hauing any euidence by their owne oathes, Causa qua supra. whereby hee woulde gather, that an oathe may not bee giuen in any cause at all, where the parties owne honestie may be touched.

But he might with better reason haue gathered (out of y e former part of this case) the very contradictorie hereof. because it is very [Page 81] small honestie, for any man, (in some sort) to offer himselfe to be sworne as an indifferent Iurour: when he is (indeede) vnindiffe­rent, & his iudgement so forestalled; as that he hath taken vpon him to scan the right for the one partie, before hee be sworne, or haue heard the euidence for the other. yet neuerthelesse these chalenged persons were put to giue euidence (hereof) to the Iu­rours, vpon their corporall oathes.

Cōcerning the other persons (chalenged to haue receiued some money or fee of the one partie) that it was thought good, that they should not be examined by oath hereof; (because it was a matter, that might tend to their reproch and dishonestie) cannot inferre this generall conclusion, viz. that in no cause whatsoeuer, a man may be put to an oath, whereby his owne turpitude and disho­nestie, may be discouered. For this was, but in a particular point of challenge, where the persons challenged were no defendants, but came in to be Iurours, a kinde of tryours and Iudges; and a­gainst whome, there was no lawfull inducement for the Iudges, to impose such oath; other then the challengers owne excepti­on. But that is not sufficient to cast ouer the clearing or proo­uing of the point obiected; vpon him, that is challenged, and so from the challenger; who (by lawe) is to come prepared, and to make proofes of his owne intention, which hee affir­meth: because nemo praesumitur malus, donec contrarium probetur. and therefore the putting of the tryall of the challengers asserti­on here, vnto the tryours: was a fauour done vnto him, by the Iudges: more then the Ciuill lawes (vsed abroad in other nati­ons) would haue admitted. For he that will except, must (at his owne peril) of loosing the aduantage thereof, without any helpe of the Iudges office or of the parties owne oath, be able to prooue his exceptions. And therefore, if this very case had bene in a Ciuill or in an Ecclesiasticall court, that is guided by those two lawes: the parties so challenged, yea, though they had bene Accusers or witnesses, and much more being returned for Iurours, who are a kinde of Recuperatores or Pedanei Iudices; should not, ne are bound to answere such exception touching their crimes, vpon their owne oathes.

For further declaration of which point, that when an answere in a criminall cause ought to be made by vertue of a mans oath, [Page 82] and when it may be refused; I referre you to the ninth Chapter of this third part. So that the Iudges did (herein) very grauely, considerately, and but according to equitie, and to the common lawe of all other ciuill nations.

The Treatisours next obiection to like purpose, is out of Iudge 12. Reg. Eli. fol. 288. titul. Periu­ric. nu. 51. Dyers booke, and it is in the very booke it selfe, thus worde for worde: A bill of periurie was sued in the Chancerie, as for periurie committed contra formam statuti anno 5. Reginae nunc. and it was doubted, if the defendant would pleade not guiltie, whether he should be sworne to his Plea and also to answere to Interrogatories, as is v­sed in the Starre-chamber: And it was resolued by the opinion of Catline, Dyer, Saunders, and Whiddon; that hee should not be exa­mined nor sworne vpon Interrogatories: except the court of Chan­cerie had absolute authoritie, and had vsed to examine periuries in that court, before the Statute: for then this is still reserued by the last Prouiso of the Statute, as it is also for the Starre-chamber: Otherwise if the court of Chancerie will examine periurie, commit­ted there (as it may by Statute) this must be by Latin Bill, and bee pleaded in Latin, and issue must be ioyned there, to be tryed in the Kings Bench, as in like cases is wont. In this whole report, as there is nothing that tendeth to the absolute impugnation of oathes, in some causes criminall: so is there not any point, which we doe not willingly embrace, and like of. For the Chan­cerie being a court (by the institution whereof) to handle by Bill and answere in English, no crimes but ciuilly laide, and not cri­minally mooued, to the intents of any punishment: vnto which Bill, the defendants must answere vpon their oathes: therefore it is no marueile, when (by Statute) any new authoritie is giuen therunto, as in this case; that then the course of the common lawe should be folowed; except such Statute do otherwise determine. But hereupon might well be gathered, that defendants oathes to English Billes (there alwayes vsed) albeit criminall matters touching their shame and dishonestie, be diduced; and in other courts thereunto authorized, the continuall vse of such oathes, euen for crimes criminally mooued: are no way, against the Lawe of the land. For we see, that it is here yeelded to be lawfull, in case the Chancerie had vsed such course afore. Also that it is v­suall and lawfull in the Starre-chamber: and that these Iudges [Page 83] opinions reach no further; but that the partie accused of periu­rie, should not be examined by oath, vpon Interrogatories in the Chancerie, for answering of Interrogatories vpon oath, is not v­sed there; no not when the crime is but ciuilly prosecuted; ex­cept the other partie will be contented, to be wholy concluded by his aduersaries answeres, that shall be so made, to his In­terrogatories.

Another case at the common lawe is alleaged by the Notes. tit. the lawes of Englād. Notega­therer thus: It appeareth (sayth he) by the Lord Dyers booke, that one Hinde being called before the Commissioners Ecclesiasticall, for vsurie; refused to sweare; whereupon he was committed; but vpon an Information in the common Pleas, he had a Corpus cum causa, to re­moue him: so (as it seemeth) that the Iudges were then of opinion that the Commissioners could not then giue them any such oath. hereof he giues vs not any direction to finde out the particular place of this report. All that I can (to any such effect) hit vpon; is onely this marginall note, viz. Simile M. 18. fol. per Hynde qui noluit iurare coram Iusticiarijs ecclesiasticis, super articulos pro v­sura. so that if this be the place; being but a Marginall note, it can not (necessarily) be fathered, as a Report of the Lord Dyers; the rather, because it is not likely that he would terme ecclesiastical Commissioners, by the name of Iusticiarij ecclesiastici. for the per­fitnes thereof it might seeme rather, to bee some note of the Notegatherers owne, then any of Iudge Dyers gathering. Se­condly, here is no mention of Hindes commitment, nor of corpus cum causa, nor that the sayd writ (vpon information) was graun­ted out of that court of common Pleas: so that these bee but the Notegatherers owne surmises and gesses. Thirdly, be­fore it might bee inferred thereof, that the Iustices then were of opinion, that Commissioners Ecclesiasticall might not giue any oathe in a matter of vsurie; and so by like reason (as h [...]e gathereth) in none other criminall cause: this case in the Margent must first bee made like vnto that case, which is in the text it selfe. Nowe that conteineth no more, but that one Skrogges appearing before certaine speciall Commis­sioners by [...] Maiestie appoynted to heare and determine the validitie of two seuerall Patents of an Office; the one graunted [Page 84] to the sayd Skrogges, and the other to Coleshill; and refusing to make any other answere, then a demurre vpon the Bill, and to the Iu­risdiction graunted them, by that Commission; and being committed to the Fleete for such contempt by the sayd Commissioners; was ne­uerthelesse by a Corpus cum causa, out of the common Pleas, remoo­ued from prison, because he was a person belonging to that court, and a necessarie member thereof. But where doeth it appeare, that this Hinde was likewise a member of that court? Or howe can these be like cases; when as in Skrogges cause, none oath was vr­ged, neither was the Plea betwixt him and Coleshill criminall; as this was betwixt the office of the Commissioners, and Hinde? Or where may Hindes case at large be found in Michaelmas Terme 18. Eliz. seeing no such matter is in the L. Dyers reports of that yeere? Or howe can it be made to appeare; that the Commission Ecclesiasticall was then perused; the Statute whereon it is grounded, considered of; the whole matter argued, and deba­ted; any such opinions yeelded; or yet that Hinde was not by the court sent backe againe to prison (though it were admitted he had once such writ) as many other (in like cases) before, and since that time, haue bene? for all the similitude, which that Note mentioneth; might rest in this one onely point, viz. that as the one being committed for contempt, by vertue of the Queenes speciall Commission; had notwithstanding, his writ of Corpus cum causa; so the other had it likewise graunted.

But there might also be (in the eighteenth yeere of her Ma­iestie) other good cause, to deliuer Hinde clearely out of pri­son, being called before the Commissioners into question for vsurie, if it were not aboue tenne in the hundred. and yet oathes in any criminall cause besides, ministred by Commissi­oners Ecclesiasticall; shall be no whit thereby impeached, or preiudiced. because afore that, viz. in the thirteenth yeere of the Reigne of her Maiestie, a [...]. Eliz. ca. 8. Statute was made; forbidding any punishment, then that which is conteined in that Acte, to bee inflicted by lawes Ecclesiasticall vpon vsurers; so their vsurie amount not aboue the rate of ten in the hundred for one yeere. therefore it might well haue bene, that Hinde was so de­liuered from his commitment; not in respect of any vnlawfulnes by the Iudges deemed to be in such oath; but for that y e conysance [Page 85] punishment of his crime (by reason of that Statute) belonged not then, and in that case, to an Ecclesiasticall Court.

This point the Treatisour further enforceth also; by the formes of a peece of a precedent of a prohibition, and another of Attach­ment thereupon, layde downe in the printed Register; especially by these wordes of them; Recognitiones & sacramenta, provo­luntate sua; & ipsis inuitis. For full answere whereof, to auoyde vnnecessarie length and vaine repetition; I must referre the Rea­der ouer vnto the xj. and xij. Chapters, in the first parte of this Apologie.

He affirmeth also: that the practisers of such oathes, are for that cause in a Pramunire; and therefore gathereth, the oathe to be contrary and repugnant to the common lawe. I graunt the conse­quence to be good and sound: but how doth hee prooue them to be thereupon in a Praemunire? For proofe of this, he assumeth; that this manner of oathe is contrary to the Queenes regalitie and crowne. as if his reasons afore brought, had sufficiently euinced so much, which wee doe vtterly and resolutely deny vnto him. And yet, as if he had fully cleared that point; he addresseth him­selfe to prooue that; whereof there was lesse controuersie, viz. that what is done by a Bishop, or by an Ecclesiasticall Court, against the Kings regalitie and crowne, hath beene heretofore adiudged to be within the compasse of this worde Alibi, contained in the Statute of Praemuuire 16. Ric. 2. For this he alledgeth two books of the common law: yet 5. Ed. 4. sol. 6. Praemunire. the first of them, doth but speake of an excommunication by a Bishop, & not of euery dealing whatsoeuer in a matter belonging to the Kings regalitie. And what if it had beene twise so adiudged; both of them in such corrupt times, when as the royall prerogatiue of the Kings of this land, to be Su­preme Gouernours in all Iurisdiction Ecclesiasticall, due to them in right and by Gods Lawe; was not de facto vnited to the crowne. For the Bishops then, did not claime their Iurisdictions Ecclesia­sticall, next, and immediately vnder God, from the Crowne, as now they doe. But seeing this parte of Regall power is nowe no lesse truely and fully vested in the crowne, then is the Temporall; so as the Lawes allowed for the gouernement Ecclesiasticall are termed by sundry Parliaments, The Queenes Ecclesiastical lawes, and, Lawes of the Realme; as well as those which were first and [Page 86] originally made heere. And the Bishops are proued to haue their authoritie, and Iurisdiction Ecclesiasticall, deriued downe vnto them from the Queenes Highnes, vnder the great Seale of Eng­land, as vpon fundrie incident occasions hath beene shewed a­fore: Is it then the like reason still, to comprise their Iurisdictions and Courts, vnder that word of Alibi; as if their Courts and Iu­risdictions were not nowe the Queenes; nor yet belonging vnto her Regalitie? Nay, let such as shall so affirme, beware they in­curre not (hereby) the danger of implied, if not direct denyall; of a part of her Highnesse Royall stile; and the breach also of their oathes taken, for assistance and defence of all Prerogatiues, &c. vnited or belonging to this Imperiall crowne. Yea, and though this might be truely verified of ordinarie Courts Ecclesiasticall, yet is there no colour at all so to affirme; of the Commission Ecclesiasti­call, exercised vnder the great Seale of England, by force of the same Statute, that restores the Supremacie Ecclesiasticall to the Crowne. I omit here, what is touched else where, viz. howe by sundry learned, it hath bene thought; that by Alibi, there was encluded or meant nothing els; but matters of that quality there specified, which were enterprised by, and vnder the Papall autho­ritie; though the Pope (perhaps) resided not then at Rome it selfe.

Therefore (seeing this is not pregnant ynough for him) to driue this matter neerer home to his purpose; hee sayeth it is a­gainst the Kings Regalitie, and so a Praemunire for an Ecclesiasti­call Court to holde plea of a matter appertaining to the Iudgement of a Common Lawe Court, or to deale in any cause not belonging to Ec­clesiasticall Iurisdiction.

The first of these he prooueth; by the pardon sued by Barlow Bishop of Bathe and Welles in king Ed. 6. his time; by reason hee had depriued the Deane there, being a meere donatiue of the Kings. If there were but any probable doubt, whether (thereby) hee were fallen into a Praemunire; it was wisedome for him, to procure a pardon (afore hand) if he could. Alealitis, resin­certissima. yet depriuing of one, placed by the King; is much more then bare holding of some plea, that appertaineth to a temporall Court: besides that there was a further matter in it, then I last here to open.

[Page 87] The other allegation of his to like ende; taken from a 38. Ed. 3. of Prouisours. Sta­tute, doth make no shew of proofe thereof: for it is but thus, viz. the King chiefly desireth to susteine his people in tranquilitie and peace, and to gouerne according to the Lawes, Usages, and Fran­chises of his land, as hee is bound by his oathe, made at his coronation. And are not Ecclesiasticall persons nowe parte of the Queenes people? Are not the Liberties and Franchises, that bee giuen and confirmed vnto them, by the goodnesse of Princes, for hol­ding plea in certaine matters, the vsages of this Realme? Are not the receiued Lawes, which lawfully they may practise, ter­med Ecclesiasticall Lawes of this Realme, no lesse then temporall be? And is not the Prerogatiue royall, in and for causes Ecclesia­sticall as high, and as rightfully setled in the Prince, and incident to her Highnesse Crowne and Regalitie; as the same is, for tem­porall power and authoritie? What cause is there then, seeing seu Alibi in the Statute; signifieth (in true construction) anie place whatsoeuer besides Rome: that euery holding plea by an Ecclesiasticall Court of a matter wherein it ought not to holde; shoulde at this time bee reckoned, a thing contrarie to the Queeenes Regalitie; more then dealing in an Ecclesiasticall cause, shoulde bee in anie temporall Court at Westminster? For no Statute of Prouision or Praemunire, assigneth these for cau­ses; which haue (indeede) but growen since by collections; whiles the Popes vsurpation was continued in this land; against which (oftentimes) the remedie by Prohibition, coulde not serue the turne. I graunt it is a contempt or great misprision in any. but for this, a Prohibition, and attachment thereupon, &c. (as afore those Statutes they did) might sufficiently serue the turne. Neuerthelesse, all these matters are wholly impertinent to his purpose, till he shall haue prooued; the particular issue, viz. that such oathe (as wee treate of) is against the Queenes Regalitie, &c. But if that might be prooued; then vpon so generall inter­pretation of Alibi; these oathes would fall into the case of Prae­munire; by what Court soeuer, whether temporall or Ecclesiasti­call, they should be tendered.

And that which he vowcheth to the same effect, out of Saint Germans booke of Doctor & Student, receiueth the like answere.

In the next place, I set some of the Treatisors reasons, that [Page 88] are made by collection, and discourse of reason. These collections he maketh partly from examples past; and partly at large. there­fore touching the first of these two: he impugneth these oathes, and would prooue the Imposers of them to be in a Praemunire, for incroching vpon the Kings rights and prerogatiues: and for conuen­ting subiects by forrein made Lawes: and for practising Antichristi­an Decrees, and Popish Canons: which (hee sayeth) appeareth, by the Praemunire brought by Hunne, against a person suing the said Hunne for his yoong deceased infants bearing-cloth (by the name of a Mortuarie) in an Ecclesiasticall Court. howe doth this inferre, that it is Praemunire; either to encroch vpon the Kings rights & prerogatiues, (though this peraduenture by some circumstan­ces may amounte sometimes to no lesse) or to conuent subiects by foreine made lawes? It may not be thought, that euery intru­sion, deteiner, or concealement (which is incroching vpon the Kings right) or rauishment of his wardes, which hee ought to haue by his Prerogatiue Royall; is straightway, and necessarilie a Praemunire. neither were the Kings Temporall Courtes (in this case) encroched vpon; because they could not giue remedie for deteining a Mortuary, if this were so (in trueth) to be accoun­ted. neither yet is there so much as any mention made of foreine lawes, which the Ecclesiasticall Court then proceeded by, or pra­ctised.

This course of the Treatisour, is rather to prophesie, then to reason; thus to tell vs afore hand, vpon the very bringing of the action of Praemunire by Hunne: what the iudgement was in that matter yea, and vpon what ground the iudgement was giuen in a cause, which neuer receiued iudgement, for any thing I can learne.

To this point, he also mentioneth the Praemunire wherein blind Nixe sometimes Bishop of Norwich, was condemned, and addeth to the aforesaid two points; that by that also appeareth; Iudges Ecclesiasticall are in Praemunire, whensoeuer they exceede their Iudiciall authority. But if euery exceeding of authoritie were a Praemunire; then what Iudge is there of any court (of either sort) so skilfull, or alwayes so aduised; but might iustly feare that at one time or other he shall not escape this rigorous doom of Prae­munire? In trueth, this example prooueth all his three points, iust [Page 89] alike; that is, none of them at all. I doe verily beleeue, the Trea­tisour neuer sawe that Record. if he haue, either he makes verie bolde with his Reader, or else with the Arte of reasoning, thus to collect.

I haue perused the Record H. 25 H. 8. Rot. 42. Suffolk. it selfe: it containeth a suite of Prae­munire brought against the saide Bishop by the Kings Attourny generall, on the Friday after the P [...]rification, pleading the Statute of 16. Ric. 2; and adding, that al Indictments, Presentments, and Impetitions in any court of the Kings, B. Nixe his con­demnation in a Praemunite. or in any Court of a subiects (which is in any sort deriued or diduced from the Kings crowne) due­ly taken or found, are to be tried & iudged in that Court, where they were found, or in some of the Kings Courts; and not in any Ecclesiasticall Court: and that, whereas there was an old custome in the Towne of Thetford, that whosoeuer should trouble any of the Kings or Duke of Lancasters tenants, commorant in that Towne, and shoulde call them by citation into an Ecclesiasticall Court, out of the Deanery of the saide Towne; shoulde thereby forfeit, and he also that should execute such processe should al­so forfeit 6 shillings 8. pence. which custom, by a Iurie of twelue men, being (accordingly) presented before the Maior, the said B. cited the Maior & two others to appeare personally before him, in his Mannor and Chappell at Hoxne or Hoxstone in Suffolke. The Maior and the one of the other two appearing; and hauing nothing obiected but that presentment made; were by the B. en­ioyned, vpon paine of excommunication, at the next court of the Kings to be holden in Thetford; to call the same Iurours toge­ther, and therepublikely to adnull and reuoke the said present­ment, as being against Gods Lawe. so that (saith the Record) the B. did in an Ecclesiasticall Court, iudge of the presentment, being duely made in the Kings court: and enioyned the reuoking and disanulling of it, against the King, his regalitie, crowne, &c. where­vpon immediately, the Bishop appeared, and desired libertie of imparlance till monday next after; and had it graunted, vpon good mainprise, &c. On the prefixed monday, the B. appeared a­gaine; and said he could not deny, but that he was culpable in all the premisses, & put himselfe thereupon, into the Kings hands, &c. & so had iudgement to be from thenceforth out of the Kings protection, and al his lands and tenements, goods & chattels to be [Page 90] forfeited to the King; and that he should remaine in the custody of the Marshall, quous (que) &c. but presently (vpon special grace of of the Court) he was let to baile, in a far lesse summe then afore, for his appearance in Easter terme next after. At what time hee appeared by his Atturney; and both he and his pledges were dis­charged, by vertue of an Act of Parliament made the same yeere.

Whereby wee may see, that encroching vpon the Kings rights, &c. is not heere specially assigned, for any cause of such iudge­ment; and much lesse, is the practising of any Canons, or forreine made Lawes; for they are not once mentioned: and least of all, that euery exceeding of their authoritie by any Court, shoulde be a Praemunire. For the originall and onely cause hereof was; the B. enioyning of the Maior, and of another townesman of Thetford, vpon paine of censures; to adnull and make voyde a presentment, first duly made, in a temporall Court of the Kings.

It is also to be noted out of the generall Atturneys bill in this Record: where it is saide, that presentments, &c. found or made in the Kings, or in a subiects Court, which is (in any sort) deriued from the Kings crowne, must be tried there, or in some of the Kings Courts, and not in an ecclesiasticall Court: that at this time, Courts eccle­siasticall were not holden to be deriued any way from the Kings Crowne, as no we they are, and so bee acknowledged. and (in­deede) by conferring the times, I finde, that this fault of the Bi­shop was done in Nouember 24. H. 8. hee was attainted in Hila­rie terme 25. H. 8. which is a yeere and more after, and it was in a Parliament time, that was continued till 30. Martij next aster. Now the supremeheadship ouer the English Church, was not yeel­ded vnto the King, vntill the Parliament (by prorogation) hol­den the third of Nouember, then next following, viz. 26. H. 8.

That which the Treatisour collecteth by Cardinall Wolseys Praemunire, and the whole Cleargies also; for assenting to, and assisting the Court Legatiue, which the saide Wolsey had ere­cted; hee himselfe doth sufficiently confute: for albeit hee doe affirme; that Wolsey was in a Praemunire for preiudicing but eccle­siasticall Courtes, and not the Kings; and thence gathereth thus: How much more those, which practise Antichristian Lawes, and Po­pish Canons, repugnant to the royall Matestie, and policie of this laend? yet doeth hee (by implication) contrary his owne saide [Page 91] affirmatiō; in that he confesseth, Wolsey did grant benefices by way of Prouision. for thereby, he was within the very letter of the Sta­tutes of Prouision, and Praemunire; and so consequently, he pre­iudiced also the Kings regalitie and crowne, and not Ecclesiasticall courts alone.

Yea, and what is all this to the imposing of an oathe, that we treate of? seeing (if it were true, that euery practise of Antichri­stian decrees, and Popish Canons, were a Praemunire) yet it may be truely affirmed, that the very temporall Lawes of this Realme, do allow vnto Ecclesiasticall Courts to minister such oathes (as shall be prooued in the next chapter) & therefore not to be said to be practised by vertue of Canons only. And also, for that no Canons, that are agreeing to those conditions, and qualities which are required by the 25. H. 8. 27. H. 8. Statute of Submission of the Cleargie, are Anti­christian, or Popish, or foreine Lawes; but are the Queenes Eccle­siasticall Lawes, and Lawes of this Realme; no lesse then such as were originally made within the land, as is afore (by occasion) Vide 1. part. ca. 14. pag. 102. & 103. shewed and prooued. Insomuch, as the Note-gatherer himselfe calleth them the ecclesiasticall Lawes of England.

Hee also telleth vs, as to this purpose of a complaint by the Commons made 21. H. 8. vnto the said King touching grieuan­ces by the Clergie offered: but telleth not, that it was this mat­ter; nor how iust or vniust the complaint was found to be; nor yet of any remedy therein giuen. He discourseth also of the par­ticulars of an other complaint likewise made 23. H. 8. but hee doth not assigne oathes tendered in some criminall matter, to be any part of that complaint. The Note-gatherer saith, the L. Aud­ley then chosen Speaker, did exhibite it; and that it was for pro­ceeding ex officio: albeit the Treatisour do tell vs, of many points besides; which (belike) if he had pēned that complaint, it should haue conteined: This I haue answered in the second part of this Apologie.

Another reason by way of collection, the Treatisor maketh at large thus, viz. What if a Iustice by colour of his office, should offer this generall othe, to answer to all he will aske, & commit the partie refu­sing; coulde any man iustifie his doing; but rather crie out against him, as a subuerter, &c? Well, howe strange a course soeuer hee maketh this, and therefore so cryeth out; neuerthelesse it may bee, that little better hath beene vsed by some Iustices of Peace. [Page 92] But I neither accuse any thereof, nor wil excuse either them or a­ny others, which shal so deale; either from the Treatisors, or from any other mans outcries: so that (in this point) we both agree.

But in one part of his Treatise; he gathereth also thus, against practising of Canons, in ministring oath: No Canons 25. H. 8. ca. 19. may be pra­ctised but such, as be not contrary nor repugnant to the Prerogatiue royall, nor to the lawes and Customes of this Realme: but this Canon Law, is not any part or portion of such lawes. Whereupon it seemeth he would haue his Reader to conclude; that no Canon at al may be practised. First it is vntrue (if you take the Canon Law inde­finitely for all Canons) absolutely and indistinctly to say; that it is no portion of the Lawes and Customes of this Realme, as hath bin afore shewed. yea, there was here an vse and custome thereof, long afore it was accounted any parte of the Lawe of the Realme. Secondly there be quatuor termini in this reason. Lastly, it con­sisteth all of Negatiues; In both which respects, it is vtterly in­concludent.

So that by all hitherto deliuered wee may perceiue; that albeit there bee some diuersitie in sundrie the courses of pro­ceeding, betwixt the Ecclesiasticall, and the temporall Lawes: yet there is found not so much as any great diuersitie in the ve­ry point; which is of ministring oathes in certaine criminall cau­ses: and much lesse, is there any contrarietie or repugnancie in that behalfe.

Besides, there is not so great diuersitie, betwixt any part of the law Ecclesiasticall (being now of force within this Realme) and the Lawes temporall; as is betwixt sundrie points of the customs of London, the customes of the Stannerie, the customes of Kent, the customes of Halifax, both in trying and executing offen­dors, and by dealing by vertue of the Queenes Instructions at the Counsell of the Marches of Wales, on the one side: and betwixt sundry parts of the Common lawe, on the other side: as might (but for auoiding of tediousnes) by sundry particulars, be exēplified. & yet none of those which practise thē; are by reason of any such notable diuersity only, thus threatned with danger of Praemunire.

In the last ranke of matters brought by him to this purpose; I doe marshall the Treatisours shifting answeres, vnto such obie­ctions; as himselfe imagineth will be, or may be made by those, [Page 93] who defend this kinde of oathe, whereof we are now treating.

First, to the obiection made, of the like oathes ministred to de­fendants in causes criminall, both in the Courts of Starre-chamber and Chancerie: he answereth, that, if it were graunted, that the like oathes be there vsed: yet would it not followe, that the same might be practised in courts Ecclesiasticall. and why would it not followe? vnlesse (sayth he) the like allowance thereto, and consent of the whole Realme, might be prooued. Belike, if it were not most euident; he would also denie the like oaths to be vsed in those two courts. The whole Realme is sayde to allowe, and to consent vnto that, which is enacted by Parliament. Shall the same course then v­sed also in the Chancerie, that hath none Acte of Parliament to establish it, be vnlawfull in his iudgement? for hee cannot say, that the whole Realme, either indeede or representatiuely hath gi­uen consent hereunto; albeit the prescription thereof be most ancient; because al & euery one in particular, haue not had from time to time, iudiciall matters there. But yet, since this prescrip­tion is good; and will serue to mainteine that course there: why shall it not also alike serue for Ecclesiasticall courts, which haue reteined the practise of such oath, beyond all memorie of man, and beyond most Records nowe extant?

Neuerthelesse, there be also Acts of Parliament to warrant the practise of these oathes in courts Ecclesiasticall; vnlesse they could be prooued; to be either contrary or repugnant to the Pre­rogatiue Royall; or else to the Statutes, lawes and customes of this Realme. Neither yet are the examples of Starre-chamber and Chancerie, to any other ende by vs alleaged: but thereby one­ly to shewe; that such defendants oathes, inferring confession of some his owne crimes; is neither to be holden vniust, vnlawfull, vnequall, barbarous, cruell; nor yet Antichristian or Popish, as they be challenged.

For a second answere hereunto, he sayth: that, examples and Precedents be weake, where an expresse lawe, or certaine policie, is to the contrary. as if he should say, though these two high Tempo­rall courts doe practise it: yet is it contrary to an expresse lawe, or certaine policie. for else, he sayth iust nothing to the purpose. and yet he doth no lesse dutifully say it; then he prooues it substanti­ally; euen out of the Ciuill lawe. viz. ius non ex regula sumatur, [Page 94] sed ex iure quod est, regula fiat. I pray yee, who euer heard afore, that regula here signifieth an example, or a Precedent. The true vnderstanding therefore of that part of Ciuill lawe, is this: when many cases runne one way, so that (for roundnes, or bet­ter memories sake) they haue bene (by Iudicious men) contri­ued into a summarie rule: then whatsoeuer might be comprised vnder the generalitie of the words of such rule, was not straight way to be reckoned for lawe. because it is not possible (in this great weaknesse of mans wit) so to comprehend the lawe, be­ing to guide such infinite varietie of mens particular externall actions in a briefe rule; as that it shall not haue sundry excepti­ons and limitations: and therefore rarò est quin regula fallat. And againe in this place, non ex regula ius sumitur, &c. that is, you can not conclude it necessarily to be lawe: because you may apply vnto it, some rule of lawe: but because the lawe runneth ac­cordingly in sundry cases: you may therefore conueniently drawe them into a short rule, which some doe call maximes in lawe, yet abusiuely.

Thirdly he sayth to this obiection: that by better Logicke we might conclude thus, viz. because in these two courts, answeres bee put in vpon oath; therefore the same may be vsed in the Kings Bench, and common Pleas: which neuerthelesse were an absurde conclu­sion. No Sir, it is so farre from better, that it is not any Logicke at all so to conclude; except you adde more vnto it. for if you could truely adde, that the Kings Bench and common Pleas had time out of minde vsed that course for answeres to Billes in crimes not capital, nor tending to mutilation of limme; which may be verified of courts Ecclesiasticall, besides the direction of that lawe, by which they proceede: then, with very good Lo­gicke might you conclude thus: the same course hath time out of minde bene vsed in all those courts, and it is not vniust nor cruell &c. in the one, and therefore not in the other. for the diuersitie of places where they sit, nor diuersitie of persons which doe sit as Iudges, nor any other like circumstance; cannot make a matter iust and equall, if (in his owne nature and simply) it were vniust, cruell, or barbarous, as this is often by him, and others challenged to be.

Fourthly he sayth, that in the Starre-chamber, there is a bill of [Page 95] complaint formerly exhibited: and so be there Articles in an Ec­clesiasticall court.

Fiftly, that, there is also a knowen accuser: Not alwayes an accuser; for the office or common Interest of the Prince (whose the court is) oftentimes is there excited & stirred vp by her Ma­iesties Atturney or Solicitour; without any danger of them, to be punished, or condemned in charges, though the matter should not fall out fully against the defendants: euen as it is in courtes Ecclesiasticall, when they proceede of Office. albeit these more often proceede, hauing a priuate Prosecutour (especially in the court of Commission) then they doe ex mero officio.

Sixtly; that, in the Starre-chamber, they haue a copie of the com­plaint: yet he himselfe doeth limit it thus, viz. so it be not ore te­nus. Well then (vpon some good occasion) it is none vniustice; though the defendant want a copie altogether, of the matter ob­iected, but in all ordinarie courts, and in the Commission Ecclesi­asticall (at the furthest when they haue answered the articles) they haue copies of them.

Seuenthly, in the Starre-chamber, the defendants are allowed counsell in answering the Bill: and yet, when this is ore tenus, he knoweth they cannot haue counsell, neither are they there a­lowed any counsell for answering to Interrogatories; nor yet to haue a copy of them, til they haue fully answered to them. which Interrogatories vpon crimes in that court, haue a correspon­dence vnto articles criminall, preferred in Ecclesiasticall courts.

Lastly, (sayth he) in the Starre-chamber, if the Interrogatories be impertinent; the defendant (without offence) may refuse to an­swere them: and so may he refuse also to answere such articles in an Ecclesiasticall court. But who shall then iudge, whether they be impertinent, or not? shall the partie himselfe? no verily, but, (as it is in the Starre-chamber) the court it selfe: or else some of them that are skilfull in lawe; being thereunto required by the rest.

Whereupon, what great difference there is in any circum­stance, much lesse in matter of substance, betwixt the procee­dings in these courtes, may easily be considered: howsoeuer he doe largely conclude thereupon (after his olde maner) that there be mightie and great dissimilitudes. For in his conclusion hereof, [Page 96] he encludeth also other differences more bitterly, and not spo­ken of at all in any his premisses, whereupon he inferreth it, al­beit that such his additions be also very vntrue: as that, Ecclesi­asticall courts giue oathes without all course of iudgement: that the oathes there, are made suddenly, without all discretion; vpon vncer­taine demaunds: that their oathes doe foolishly wander, at the doubt­full will of a subtil and slye opposer: and that the oathe in Ecclesi­asticall courtes, constraineth the reuealing of wordes, deedes, and thoughts, though neuer offensiue to any. Belike then, where others be offended, he mindes and will not sticke to allowe vnto those courts, the ministring euen of these generall oathes: which he so often (besides the purpose) harpeth vpon.

Let vs then lay aside these imputations (being vtterly vntrue) which hee coucheth together in his conclusion, made of this point, viz. concerning the like course obiected to be vsed in the Starre-chamber. what then doe all, or any the former differen­ces of proceeding by him noted; betwixt the Starre-chamber, and courts Ecclesiasticall make, to prooue the vnlawfulnesse of ministring an oath in a criminall cause, which is the matter one­ly in issue here betwixt vs? yea, though they were admitted to bee (indeede) differences, which is shewed, to bee farre other­wise? For albeit, these courts should differ in many other points, yet such difference cannot prooue an equitie to bee in the very like oath, when it is vsed in the Starre-chamber, and an iniquitie to be in it, when an Ecclesiasticall court doeth (in the like case) minister it. Truely, he might out of those differences as wel con­clude thus: the Starre-chamber is kept, and the oath is ministred at Westminster: and they haue in that court, but three or foure Atturneys: therefore the very like oath ministred in the Consi­storie at Paules, where there be a dozen Procurators sometimes present, is vniust, and vnequall. This therefore falleth into that point, which (in the Epistle to the Reader) I affirmed to be his sophisticall answering of obiections.

He also doubteth, that the Statute authorizing the attaching of heretikes by Ordinaries, made 2. H. 4. ca. 15. which he termeth, the twise damned, and repealed Statute, and a bloody and boyling lawe: will be alleaged, for proofe of these oathes. In trueth wee should be brought to a very straite exigend; if we were forced [Page 97] (as he is) to runne vnto such repealed statutes, for proofe of any principall point in controuersie.

Yet let vs see howe he assayeth to vntye this knot; which he doeth two wayes. First he sayth, it appeareth not; that thereby any authoritie was giuen to impose any such generall oath. if then no such thing appeare, why doth the Notegatherer, so confidently, Repugnancie be­tweene the Trea­tisour and Note­gatherer. and so often affirme; that this oath was then first brought in and established: and therefore hee calleth that, the statute ex officio, though ex officio or oath be not once named there? thereby confounding the very course of proceeding, with that one Act thereof, viz. of ministring an oath.

The Treatisour goeth further, and sayth; it appeareth not, that any authoritie was thereby giuen, to compell by oath, the prisoner to become his owne Accuser: for that (and especially in causes of life and death) had bene against the lawes and iustice of the land. By which restraint in this worde (especially) he seemeth little lesse then to yeelde, that in other cases not capitall; this oath is not a­gainst the lawes, nor iustice of the land. But it is very vntrue to thinke, that whatsoeuer is wholly forborne in Temporal courts, should therfore (straight way) be accounted to be against them. For there is great difference betwixt not vsing, or forbearing, and plaine forbidding of a thing to be done.

Furthermore, we are commanded in 1. Pet. ca. 3. ver. 15. Scripture, to be ready to giue an account to euery one that asketh vs a reason, of the hope that is in vs, with meeknes and feare. If to euery one, much more to a Magistrate. What then if he (hauing also authoritie to impose oathes) will exact it in this case? may he not as lawfully doe it, as without oath, he may aske and interrogate the partie? Nowe it is no more lawfull before God, for vs (being but asked of our fayth, or hope, euen by a priuate man) to dally with him, or to say vntruly, though it might saue our life: then wee may say vntruly, when wee be sworne to tell the trueth thereof vnto a Magistrate. Ecclesiast. 4. ver. 30. doe not gaine say the trueth in any case (saith the wise­man:) and againe, be Ecclesiast. 41. ver. 21. ashamed of vntrueth before a Magistrate; or a man in authoritie. So that hereupon it may seeme, to be a­gainst Gods lawe; to set any man at libertie from answering true­ly, touching his fayth and hope; and so in heresie: when, howe, and by whomsoeuer, he shalbe interrogated; yea though danger of [Page 98] death might ensue thereby vnto him.

His second answere to that statute, is, that, if this oath be im­plyed vnder the worde of Canonicall sanctions, mentioned in that statute, then was it no binding law; nor gaue sufficient authoritie, &c. because all lawes of man, repugnant to the lawe of God, are meerely voyd. Where he assumeth as graunted; that this oath is repugnant to Gods law, which shal (God willing) be prooued far otherwise.

The last point, which to this purpose he supposeth wil be ob­iected, is; that, the kings heretofore haue graunted Commissions to examine by oath. This, he thinketh, cannot be prooued: and though it could; yet (sayth he) such Commissions are against law, and there­fore voyde. Therefore, vntill they be prooued to be herein a­gainst lawe, this answere will fall to nought; and the obiection will remaine till then good and sound. And so I ende this te­dious Chapter, made in answer of all that which I finde brought for proofe; that these oathes (whereof we argue) should be con­trarie or repugnant, vnto the statutes, common lawe, or customes of this Realme.

CHAP. VIII. That ministring of such oathes, is by the Lawes of the Realme, al­lowed vnto Iudges of Ecclesiasticall courts: and some fewe ob­iections made to the contrary, are answered.

THat the lawes of the Realme allowe it vnto courts Ecclesiasticall (which point comes next to be de­clared) these few allegatiōs folowing, may suffice. [...]. H. 5. ca. [...]. Ordinaries are authorized, to enquire of the foun­dation, estate, and gouernance of Hospitals (being not of the Kings foundation) and of all other matters necessarie in that behalfe; and vpon that, to make correction and reformation: howe? after the lawes of holy Church, as to them belongeth.

Now by those lawes, Enquirie, touching crimes not capitall, is made by the defendants oath: as in the next Chapter folowing is declared. So that (if any such faultes be) the persons visited are to discouer them, vpon their oathes: which cannot be entended, but that they may be criminall and penall to them selues: because the statute sayth, that they are to be corrected and reformed.

If [...] Clerkes be conuicted before Ordinaries of incontinency, by ex­amination, and by other lawfull proofe requisite by the lawes of holy [Page 99] Church, they may be committed to ward. But it is shewed afore, that examination (euen at the cōmon law, like as at the Ecclesiasticall) is vpon oath. So that such oath is (by the iudgment of that statute) deemed a lawfull proofe, requisite by the lawes of holy Church.

Executors & 21. H. 8. ca. 5. administrators must giue oath (before Ordinaries) of the trueth of such Inuentaries, as they doe exhibite. Yet this may implye in it, either periurie, or some discouery of a mans owne fault; if he haue dealt therein corruptly and fraudulently.

And another 27. H. 8. ca. 10. statute (though standing repealed) yet giueth good testimonie, that not onely Enquirie at an Ordinaries visita­tion; but also, that the parties owne examination, of whome the enquirie criminall ex officio is made; is holden for a due course of the lawe ecclesiasticall, not disallowed of by the lawes of the Realme. And such examination is done by oath, according both to that lawe, and to the Temporall in like behalfe; as hath bene shewed out of Iustice Brookes abridgement.

Moreouer 1. Eliz. ca. 2. Ordinaries are authorized to enquire & to punish, &c. the violation of the Act made for vniformity of common pray­er: howe? euen, as heretofore hath bene vsed in like cases, by the Queenes ecclesiasticall lawes. But such enquirie generall is prescri­bed, and so was alwayes practised, by the oathes of men: and the enquirie speciall is, and was vsed by the defendants owne oath, in case he should stand in deniall.

The oath of 5. Eliz. ca. 1. Supremacie may be giuen ex officio (by any Ordi­narie) to a Clerke, being within his iurisdiction: yet if such Clerke doe cary a contrary perswasion, it vrgeth him to reueale, and discouer himselfe, and his erroneous opinion, by refusall of the oath, or els to be foresworne. which if he list not to be, but rather re­fuse; then falleth he (thereby) into a Praemunire, which putteth him out of the Queenes protection, forfeiteth all his lands, &c. and condemneth him to perpetuall imprisonment.

In a statute made against 5. Eliz. ca. 9. periurie the same time; this prouiso is cōteined: y t the said Act, nor any thing therein cōteined, shal not ex­tend to any spiritual or ecclesiastical court, or courts within the Realme of England or Wales, or the Marches of the same: but that al & euery such offender and offenders, that shall offend in forme aforesayd; shall, and may be punished, by such vsuall and ordinarie lawes, as heretofore hath bene, and yet is vsed and frequented, in the sayd Ecclesiasticall [Page 100] courts: any thing in this present Acte to the contrary notwithstan­ding. Where (I thinke) it will not be doubted, but that vnder that worde punish, is vnderstood, the whole course also vsed by those lawes, which must neeedes goe afore and doe tend to the conuicting of such faults, as be (thereby) to be punished. It was ne­uer claimed, nor vsed by any Ecclesiasticall courts either afore or after; to punish any periurie or subornation of periurie; but either for breach of oathes voluntarily taken, called laesio fidei (in sort as is shewed in the first part) or else for periurie or subornation there­of committed in an Ecclesiasticall court, & matter. So that it can not be intended; but that this statute, meaning to reserue vnto courts Ecclesiasticall if not more, yet at least the punishment of all false oaths there made, did minde withal, rather to establish then to preiudice oathes there appointed to be taken, by such vsuall and ordinarie lawes Ecclesiasticall. For if oathes (especially in cri­minall causes) were neuer there to be taken: there could then be none at all, or at least there would be much lesse danger, of any periurie and breach of oath.

In the 5. Eliz. ca. 23. statute de excōmunicato capiēdo, sundry grieuous crimes (being of ecclesiasticall conusance) are reckoned vp. thereby it is also prouided, that the significauit frō the Ordinarie, vpon any of them, must cōteine, that the excōmunication proceeded vpon some cause or contempt of some originall matter of some of the said crimes, there mentioned. Now it is sure, that after appearance yeelded; cōtempts most vsually are committed, by not performing some­thing that is cōmanded, according to that law. as by refusing to sweare; or being sworne, to answere directly, as a man ought. So that this statute leaueth the determination of all such contempts to the disposition of that law, by which the proceeding is made.

I haue touched (afore in the second part) certaine cases; where the common law not only alloweth, but also (in some sort aboue the other course) doeth priuilege vnto courts Ecclesiasticall the proceeding ex officio, against crimes punishable by that Iuridicti­on. As namely, that in proceeding against an offence, for laying violent hands vpon a Clerke; Bryan and Littleton helde (no man gainesaying it) that the M. 20. Ed. 4. 10. spirituall court may punish it ex officio, but not at the sute of the partie, least the beater be thereby kept from his absolution, till some temporall duetie, be contented and payde.

[Page 101] And T. 12. H. 7. fol. 22. Mordant was of opinion; that if a man be sued by a party prolaesione fidei, in not paying a summe of money promised; there shall lie a prohibition: yet if the Iudge ecclesiasticall shall doe it ex officio, that then no prohibition shal lie. And a iudgement giuen long afore in the booke of Lib. 22. Assis. fol. 70. Assises, seemeth to accorde herewith, and to strengthen this opinion.

Fitzherbert in his Nouanaturabreuium, reporteth the Lawe to be: that an Nou. nat. breu. tit. consultation. fo 50. & deinceps. Ordinary may cite, & proceede against a man ex offi­cio. pro violenta manuum iniectione in clericum. Likewise for tithes deteined in the time of the vacation of a Benefice: so also hee may cite those, who refuse to mayntaine a Curate or Chapleine, and for fornication and like offences.

But by the law ecclesiasticall, according to which the procee­ding is, the course of proceeding against crimes and offences (for the most part) is by the parties corporall oathe vnto articles or posi­tions of the very crime it selfe, so there be precedent, a donuncia­tion, a fame, notoriousnes of the facte, taking in the maner, or anie o­ther matter, sufficient in law, to open a way to such Enquirie.

That enquirie is allowed by common law vnto Courts ecclesi­asticall (and so consequently these oaths) appeareth also further, by two precedents of consultations, set down in the Register. The Register. tit. Consultat. fol. 48. a. former of them mentioneth & alloweth of an Inquisition made by the Deane of Yorkes Officiall, and of his proceeding there­vpon, for defects in a Chancell, and for want of sundrie ornamēts, and other requisites in a Church.

The Ibid. fol. 54. b. other (beside a consultation) doth conteine also a cōman­dement to the Ordinarie, to take full information, euen by way of Inquisition, and by other meanes, touching the value of tithes, and to certifie into the Chancerie. Now al Enquirie generally (as is shewed afore) is ex officio; and is by oathes of other men in ge­nerall enquirie; and in processu informatiuo: and may be by the oath of the defendant, in processu punitiuo, so the crime be not capitall, or of multilation of limme.

But to speake more particularly for proceeding of Office; we finde there, that an Ibid. fol. 51. b. Ordinarie proceeded ex officio, as for a crime; against a parishioner for tithes deteined by him, whiles a bene­fice was vacant.

That it is Ibid. fol. 49. [...]. allowed vnto them to proceede against crimes, ad [Page 102] correctionem animae, we haue a precedent there, of an Ordinaries proceeding against a lay man for vsurie, euen at the instance of a partie grieued.

That against crimes, defects, and excesses, they may proceede & obiect articles ex ossicio; Ibid. fo. 51. b. appeareth by the precedēt there set downe; where an Ordinarie proceeded ex officio, to the interdict­ing of a church; by reason a part of diuine seruice (as it was then holden) founded to be vsed in that Church, was withdrawen.

Where an Ibid. fo. 43. b. Ordinarie proceeded ex officij sui debito, to the cor­recting of crimes and excesses of those, that were vnder his Iuris­diction: and among others, obiected articles against a Knight, for not sufficient reparations of a Church, tending to the corre­ction of his soule, by reason of his deteining of that which hee ought not: this is there allowed, to belong to the court Ecclesi­asticall, and to the liberties of the Church.

Likewise we find there, an Ibid. fo. 51. a. Ordinaries dealing allowed; who proceeded ex officio against one, that had laied violent hands vpon a Clearke, so farre foorth as he dealt but for correction of the delin­quent, to the excommunication of him, & punishment of his sinne, without adiudging any amends to the partie wronged: for this belongeth to a Temporall Court.

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 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 [Page 103] 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 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 cō ­cubine 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 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 cō ­mon law for crimes of ecclesiasticall conisance (and consequently in matters neither Testamentarie, nor Matrimonial) any persons, [Page 104] 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.

[Page 105] 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 contrary to any the lawes or policie of this land. Let Constit prou­de haereticis. c, nullus. no man (saith that Constitution) presume to dispute &c. against othes which are made either in Ecclesiasticall or temporall Courtes in cases accu­stomed, and in vsuall manner, &c. and from henceforth, let it be com­monly taught and preached; that oathes may lawfully be taken by all (to whom it appertaineth) by touching the holie Gospels, and vpon them; in all cases by law expressed, and which are vsual in both courts. Seeing then it is most apparant, that the oathes (which wee here dispute of) are both expressed and prescribed by lawes Ciuil and Ecclesiasticall; and were also there vsed, both at the very time of such Constitution, and long afore: it wil hereupon follow, that the like oaths were then also vsed in temporall Courts, and were (by that Constitution) aswel alowed vnto Ecclesiasticall courts, as they were in their owne temporall courts. Which thing is so much the more manifest, in that, a little Treatise purposely compiled (I take it) by Saint German in the time of king Hen. 8. euen against sundry such Constitutions, both Legatine and Prouinciall; yet saith thus of this very point, viz. A Treatise con­cerning Constit. Prouinciall and Legatine. ca. 23. printed by Tho. Godfrey. though such a mans saying viz against vsuall othes, in both courts be vntrue; yet it is none heresie. He yeel­deth then, that, in all cases then accustomed in both courts; othes might lawfully, and also ought to be taken.

The practise of this oathe (as in all former times) so was it al­so receiued and vsed, in the time of king Henry the eight, as well after the Papacie was ouerthrowne heere, as afore: and so hath it continued euer since.

And after his time, the Actes and Mon. 2. edit. 2. tom. fol. 1495. Lords of the Counsell, finding Bonner thē B. of London, somthing slack in his duty; did enioine him to cal a­fore him al refusers to come to diuine seruice, & to search out, con­uent, & punish al adulterers, according to the ecclesiasticall lawes.

[Page 106] The Ibid. fol. 1501. kings commissioners visiting the Church of Paules did examine al thē of that church by vertue of their oathe; touching their doctrine and conuersation of life. Wherevpon one Iohn Pain­ter and others, did confesse adulterie euen by themselues to haue bene committed. yet this was a generall enquirie.

The Kings Ibid. fol. 1511. commission to proceed against Bonner, affirmeth; that the commissioner, shal proceed, aswel by meere office: as also by way of denūciation, & by either of thē, or by any other means, by their discre­tions. By vertue Ibid. fol. 1512. whereof, they charged him w t a corporal oath, ex of­ficio, in form of law, to answer the positiōs, that shuld be ministred: which vpon his oath takē, were after ministred vnto him. But Ibid. fol. 1516. for that he would not answer them fully, he was pronounced contu­max & pro confesso, & was remaunded backe to prison as afore.

The Ibid. fol. 1536. proceedings about that time also, against Ste. Gardiner, & the oath ministred to him, was ex officio, in matters criminal & penall: as appeareth by the sentence of depriuation from his Bi­shopricke of Winchester. And yet besides Bishops, there were some of the Kings counsell, some Ciuilians, and also some Iudges of the land, and other common lawyers, who were then commissioners in that cause: and knewe the lawes as sufficiently well; as any doth, which now impugneth this course.

In her Circa 3. aut 4. regni domninae Elizabethae re­ginae. Maiesties time that now is, a special cōmission was dire­cted forth by her highnes vnto certaine great persons both eccle­siastical, & lay; wherof diuers were of the priuy counsel, to proceed, by way of enquiry ex officio, against 2. great & honorable persona­ges, in a cause of correction for incontinency, for so the commission did runne. Whereupon they were accordingly called, and pro­ceeded with; and were put to answer the criminal articles, vpon their corporal oaths.

Not onely at all general visitations holden in the beginning of her Maiesties reigne, by speciall commissions grounded vpon the stat. 1. El. c. 1. but also euer since, by vertue of the commissiōs eccle­siastical, this course of exacting such oaths, hath bin practised and continued. was it then so long together, against papists and other delinquēis, a most iust, & necessary oath, & such as against which, no good subiect (bearing the name of a professor of the gospel) euer did open his mouth in any dislike: and is it now become on a so­dain, a bloudy, cruel, vniust, & more then Spanish Inquisition; bicause [Page 107] a few vaine, & factious Reformatists, are vrged with the selfe same maner of oath? Belike lawes themselues are but partial, which in respect of acception of some mens persons, doe so quickely turne their nature, from sweete to sower, and from iust to vniust?

When D. Grindal late Archb. of Canterb. was B. of London; he cōplained to the Lords & others of her Ma. most honorable pri­uy coūsel; for that by vertue of the cōmission ecclesiastical, he could not so duly & thorowly proceed, to the discouery & punishment of certaine knights, & other great possessioners being Recusants (as he ought) because som Ciuilians & common lawyers (supposed thē by him to be like affected) did sinisterly animate and aduise them not to take oath, to answer vnto any articles obiected ex officio; vnlesse some fame by presentment, or such like, were first found a­gainst thē, which would proue (said the B.) a long, troublesome, and chargeable course, if it should be pursued; seing some of thē dwelt in remote places of the Realme, where as the people also stood like affected; so that they would neuer be induced, to make any such presentment or discouery. and yet that the matter was by denunciations, by vehement presumptions, and by good euidence giuen vnto the commissioners; sufficiently otherwise detected; or was so notorious, as that (by lawe) they might ground an Enquiry of office, against thē; as by others, no lesse sound Lawyers, he was informed. For redresse whereof, and for furtherance of Iustice, it pleased their honorable LL. to cal som both of the Ciuilians, & cō ­mon lawyers afore thē; to the Counsel boord, that had giuen such aduise. & thereupon, three of the doctors, and one counsellor at law, were by thē cōmitted to the Fleet. which (I think) some of their honorable LL. & others yet remaining, can & do wel remember.

By al which here premised it doth appeare, how sufficiently & manifoldly our intention (in this behalf) is grounded: & likewise to how smal purpose the Treatisor resoneth, where he gathereth; that ecclesiast. courts must be restrained by the Q. prerogatiue roial, & common lawes, in that their iurisdiction is from the Crown. Consi­dering, none of the defenders of this oath wil deny, either the an­tecedent, or consequence hereof. But that which couertly he would thēce inferre, viz. that therfore they may not giue oths, but as the cō ­mon law doth; wil not any way follow thereupon: because the Q. prerogatiue royall, and common lawes, are so farre from restraining [Page 108] or forbidding these oathes; that (as it hath beene prooued) they allow them. and the Temporall Courts (in many like cases) vse not so much as a different course from this; which is in speciall controuersie.

Now if it shall be said, which also some very learned men do hold (as the Treatisour confesseth) that the Statute law made the first of her Maiestie, warranteth, and alloweth this manner of oathe: then to shew this to be (as he conceiueth it) absurde; hee telleth vs of some other points also defended (vpon the generall words of that Acte, and of the Commission) by the saide learned men; which seeme vnto him to be also no lesse absurdities, then is the ministring an oath in a cause criminall; & therfore the one no better warranted thereby, then the other, for to what other pur­pose then this, he should bring them, I cānot possibly cōiecture.

The first fault he findeth with such learned mens sayings, is: for that they iudge it to be warranted by the Act, and by the Cōmission to put men to othes; none accusation, sute, or lawful informatiō, present­ment, or indictment, iudicially preceeding, or depending. He may fa­ther vpon such learned men what he please: but is it likely that he himself would thus obiect; as if he required bils of Information & Inditements (as it is at the cōmon law) to be vsed also in courts ec­clesiastical, seing both himselfe, and the Note-gatherer do tie the Commission to causes only ecclesiastical, and they also to be dealt in, only ecclesiastically? Such learned mēs sayings, may wel & tru­ly be defended: as namely, whē either the offence is notorious, or is knowen to the Iudges themselues, to be dangerous & scandalous to be suffered. For these two cases be out of all those that hee na­meth: yea though he should (most vniuersally) take suite for any prosecution by another, and information for any priuate credible suggestion, or denunciation made.

The second errour which he assigneth to be holden by them: is, for that, secret information may be admitted, suppresso nomine no­tificantis: and he calleth such informations, secret accusations, and the men malicious calumniators: adding, that all good lawes, and well gouerned common wealths, haue such hidden backbyters, for ap­parant accusers. But if all good Lawes and well gouerned common-weales do (indeed) hold such men for apparant accusers; then doth it follow; that, when such Information is giuen, there is no want of [Page 109] an apparant accusation. Yet in very deede, euery relation made to a Magistrate by such, as will not prosecute, nor (perhaps) bee seene in the cause, for some good consideration; is not by any law, nor in any common weale that I know of; holden for an accu­sation, for a malitious calumniation, or for any secret backbiting, nor yet deseruedly (by any necessitie) is so to bee accounted. For besides other countreys which I haue read of; such priuate infor­mations haue (oftentimes) their manifolde good vse, euen in this Realme, yea and amongs ech degree of Magistrates. And if they should be Vide 2. part, pag. 85. wholy reiected, or neglected; might (sometime) bring an whole subuersion vnto vs all.

I pray, were those that gaue the first information of Babingtons damnable conspiracie, to be misliked, as secret backbiters? or was the examination of these traitors, and the proceedings vniust; be­cause the names of the intelligence-giuers, were to this day sup­pressed? By this example then you may wey, & consider, of sun­dry the like. Howbeit such informations in ordinarie courtes Ec­clesiasticall, be not holden for sufficient ground of Speciall Enqui­rie; except they be very frequent, and the offence scandalous: and in Commssion courtes, they bee as rarely receiued, as in any courts Temporall of this Realme whatsoeuer, and then but from very great, and credible persons.

The third fault he findeth with such learnedmens opinions, is; that, the Iudge may professe himselfe to be an Accuser: which lawlesse proceeding, the Iustice of this land (he saith) detesteth: for that no man may be accuser, and witnes: or Inditour, and a Iurour: there­fore much lesse may the Iudge be an Accuser. For answere where­of, first the lawes ciuill and ecclesiasticall, holde not the Iudge pro­ceeding of office to be any accuser: but that whereupon the En­quiry is grounded, to represent the accusation, and so there is no need for them to pleade such plea, as he here surmiseth. Second­ly, that, an accuser may (in some case and sort) be a witnes, &c. is Vide 2. part. pag. 110. & 111. elsewhere declared: and so his antecedent false. Thirdly, his rea­son foloweth not: for why might not a Iudge be an accuser: albe­it neither an accuser could be a witnesse, nor the Inditour a Iurour? Fourthly, if it were true, that the Iustice of this land, and the com­mon lawe did not vse something, which an Ecclesiasticall court doeth: may it thereupon bee inferred, that therein is a con­trarietie, [Page 110] and thereby (for such difference onely) a detestation of the other course? This maner of reasoning is more cōmon with him & others, in these causes; then any way sound & substantial. For the one court doeth it, & the other doeth it not, be no contra­ries; nor yet propositions in any other degree of opposition: in that, subiectum propositionis in both, is not the same, and therefore doe import no more, but a diuersity. For is this (which is the very like) any good reason, viz. an Ecclesiasticall court readeth dissinitiue sentences de scripto, but a Temporall court doeth it not, in giuing iudgement, therefore there is contrarietie betwixt these courts? & so the reading de scripto, in a court ecclesiastical vtterly vnlaw­full? Whereof I thought it not amisse, once for all to aduertise the Reader, because this erroneous argument is so vsuall.

Lastly, if all these were to be graunted vnto the Treatisour, euen as he setteth them down; yet what would it auaile his cause? For admit these collections were absurdly gathered, from the genera­lity of the words of the Act & Commission; would it therefore fo­low, that authority, to minister oaths to defendāts in causes crimi­nal, could not thence be argued without absurdities, being whol­ly another point? why? if euery thing cannot well be inferred thereon, may therefore nothing at all be? Yet vpon these & such like speeches, rather thē reasons of his, (elsewhere by sundry occa­sions touched) the Treatisour wisheth; the said learned men wiselier to aduise these Cōmissioners ecclesiastical, to respect the ends expressed in the statute, viz. the pleasure of God, increase of vertue, conseruation of peace and vnitie of this Realme: rather then the ample and large words of the statute, and height of their Iurisdiction, as if these ends, could not possibly concurre, with tender of such oaths. But whē ­soeuer, he, or any other learned or vnlearned, haue sufficiently (indeed) prooued, that these cannot stand together; I doubt not, but that the Cōmissioners, wil take it, as a great benefit, to haue bin instructed by thē in a point touching the pleasure of God, increase of vertue, & conseruation of vnitie; which by most of their large trauels in Diuinitie, by themselues they haue not hitherto foūd. Howbeit, this last part of his saying seemeth vnto me to sound; as if he would not stick any more, to grant vnto vs, that the large words of the Act doe allow of this oath. So that we finde nothing any way materiall by him alleaged, to impeach our former con­clusion, [Page 111] viz. that the common lawes, and statutes of this Realme, al­lowe such oaths to be tendered by Ecclesiastical Iudges. & ther­fore the oath of the partie in some matter of crime, that may be dāmageable & penal vnto him; is both in practise, & is alowed also to be practised (in courts ecclesiastical) by y e lawes of this realme.

CHAP. IX. That such oath touching a mans owne crime is allowed, both by the Canon and Ciuill lawes: howe farre, and in what sort: and that the like is established, and thought equall, by the lawes & customes of sundry other nations, aswell ancient, as moderne.

SEing then the giuing of an oath in a cause cri­minall, & penall to a mans owne selfe; is practi­sed by the lawes of the Realme, and allowed by them, vnto courts Ecclesiasticall: in both which respects, such Canons, as prescribe it, are by sta­tute warranted to be still vsed, as they were be­fore the making of the Act. 25. H. 8. and in trueth haue bene al­wayes since: let vs therefore see, whether this course be iustifi­able also by Canon and Ciuill lawes, and by them allowed and practised.

First, the lawes of the realme, that do allow certaine matters to be of ecclesiasticall conusance, cānot be intended, but to allow an ecclesiastical forme of proceeding, by such lawes receiued. For it were as vnreasonable to barre them from proceeding in a cause ecclesiasticall, according to that lawe: as it would be to require of them to deale, by way of Inditements and Iuries. Those lawes are so plentisull in this point, that it were vaine to set downe but a tenth part of that, which in this behalfe, might be sayd. Therefore I holde it best to shewe vnto you, what is the lawe herein (agreeable also to the practise in ordinarie courts ecclesi­asticall) as I conceiue it; in as great briefnes, as I can. which may bo [...]h declare, that by those lawes it is allowed, how farre, and why it is lawfull: & may also serue to answere (by true distincti­on) vnto all obiections, drawen out of either of those lawes, a­gainst this course.

An oath touching a criminall position, or matter, is either taken [Page 112] by a witnes, or by a partie. A witnes (by the very nature of testi­monie) must depose indifferently, aswell for the partie against whom he is produced, as for him, which produceth him. And therefore is to answere truely, not onely to the positions and arti­cles, giuen in by him, by whom he is produced: but also, vnto the lawfull and pertinent Interrogatories, ministred euen by the aduerse part. In which Interrogatories, two seuerall sortes of mat­ters may be conteined; tending to disable him, from giuing te­stimonie. The first is an Interrogatorie tending to the discouerie of his owne turpitude: and vnto Felinus in ca. cum causam. de testibus. nu. 10. per communem opinionem. this, whether it concerne any crime supposed to be committed by the witnes, or his confession there­of; or the fame and infamie against him of such crime; or a sentence thereof; or an excommunication (thereupon) gone out against him, or any such like matter; he is not bound to answer vpon his oath, though he haue done penance for it, and thereby be presumed, to be re­formed. The reason hereof, is truely alleaged to be this; Io. Andr. in ca. 2. de confessis. nu. 6. per c. ex tu. arum. de purgat. Canon. &c. because; the end of such a criminous Interrogatory, ministred by way of excep­tion or barre to a witnes, or to an accuser; is onely to disable him, from accusing, or witnessing, & not to the acquitall or condemnation of the person so challenged of the crime; as the ende is, where a Purgation of a mans owne selfe, is to be enioyned: & therefore, no reason to aske it of himselfe. For (as one wel saith) by the Alph. Villag. in Pract. Can. li. 3. c. 13. conclus. 3. order of charitie, eche man is bound, to loue his owne body, and fame, one degree sooner and neerer, then his neighbours: insomuch, as the loue towards our selues, is made the rule, howe to loue our neighbours; in which re­spect it is sayd, that, ordinaria charitas incipit a seipsa. and there­fore no man is bound to furnish one that standeth & opposeth himselfe against him; euen against himselfe, in matter of crimes. but (sayth he) it is otherwise, when a man is vrged to the like, by a Magistrate, that is his competent Iudge. Whereby the reason of the Vide 2. Part. pag. 36. priuilege of an oath ministred ex officio; aboue that, which is at the instance of a partie, appeareth.

The second sort of Interrogatories; tending to the disabling of a witnes, is such, as conteine no turpitude in themselues. as Felin. ibid. per Baldum. Interro­gatories, touching his condition, as whether he be bond or free, or of his pouertie, kindred, or aliance, and such like, and to these, he is bound to answere.

When a criminall matter is obiected, as to be answered by [Page 113] him that is partie vnto the suite: it either toucheth the crime of some witnesse by him produced, or else the partie his owne crime: if Specul. de teste. § iam. de inter­rogat. it toucheth a crime of his owne witnesse; he must answere it by the vertue of that part of Iuramentum calumniae, by him taken; which is, that he shal not burthen (more then needs) his aduersary, in making his proofes; but shall himselfe confesse a trueth therein, when he is asked.

But when it toucheth the parties owne crime, it is of two di­uers considerations: for either, the cause is Ciuilly mooued for the priuate interest of the prosecutor: or els criminally, for publike punishment.

If the suite be but ciuilly mooued, the criminous position or in­terrogatorie, may concerne such a crime; as being concealed, brings benefit, & commoditie to him, with another mans losse. And in Bartol. in l. Manellus. §. qui rerum. nu. 30. ff. rerum amotarum. this case (albeit there be no fame, or no detection prece­dent) the partie is bound to answere it vpon his oath.

But if the concealing of it, cannot procure his gaine, with another mans losse; L. qui iurasse. §. qui pater. ff. de iureiur. & ibi glo. l. si a te. ff. de excep. rei. iudic. then is not the partie himselfe (in such case) bound to answere a position criminous so mooued by his oath. yet euen in this Bartol. vbi su­pra 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 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 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; 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, 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.

[Page 114] Therefore in generall Enquiries (as at visitations) the lawe prescribeth this forme of oath to be taken by them, who are to 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 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 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 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 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 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 [Page 115] 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 Arg. 23. q. 5. ca. prodest. & de [...]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 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 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, 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 excōmunicatio hominis, when as the censure is but decreed by the Iudge. which because it may be vniust, and without good cause, (in which case it is called Clauis errans) or voyde and erroneous (as being decreed, after an appellation is made &c.) therefore it doth not (necessarily) binde, and conse­quently ought therfore to be answered by the parties own oath.

[Page 116] Hitherto of offences meerely secrete. But when they are by signes or otherwise (in some lawful sort) manifested abroad, they are then of a farre different consideration. And yet if they be but blowen abroad, by reason of an Accusation cōmenced, or by one, who voluntarily maketh himselfe a partie, and so is presumed to do it of malice, or for some other sinister respect: in this case, the defendant is not to be vrged, vpon his oath to answere the truth of the crime; nor yet any thing, which very neerely & presump­tiuely inferreth it. for no man is bound (simply) to furnish vp his aduersaries intention, who (at his owne pe [...]ill) ought to come (otherwise) sufficiently prepared. Neuertheles, if the Accuser, or partie, do make an halfe proofe, as by one vpright, and vntouched witnesse, or by any thing equiualent thereunto in law: then may the Iudge tender to the defendant an oath (which he cannotre­fuse) de veritate ipsius criminis, in way of his purgation, or more cleare conuiction: by reason of the interest, which the common weale, or Church hath, to haue sinne punished, and all scandall thereupon arising, remoued. To this effect, a Alph. Villag. lib. Pract. Can. 1. cap. 5. conclu. 1. Canonist writeth thus: Seeing God alone doth know, & is Iudge of thoughts meerely secret: and that ech man is bound to preserue his owne good name, ac­cording to that of S. Augustines, viz. that man is cruell, who is care­lesse of his good name: it doth thereupon follow, that if nothing at all be proued by the Accusour; that then a man is not bound to confesse anything against himselfe. And Diaz. cap. 140. another to like purpose, viz. albeit when the Iudge proceedeth of office, and the crime is not fully proued, he may enioyne purgation vnto the defendant: yet is he not bound to do it at the petition of him, who voluntarily offred himselfe to be pro­motor officij: but it is otherwise, when a necessarie promotour, who is assigned by the Iudge, doth make such petition.

But when the proceeding is to be of meere office, & where the crime is manifested, and discouered abroade, by some wayes and meanes (sufficient to ground an Enquirie vpō) yet those meanes not prooued before an Ordinarie Iudge; the Iudge is not there­upon to vrge the parties oath, vpon the very crime it selfe: albeit Spec. ibld. c. qualiter 1. §. fi­nali. c. qualiter 2. V. nos igitur. de accusationib. he may require him to sweare, whether he beleeue such an in­famie doe runne of him; or whether he haue bene adiudged by sentence to bee conuicted of it: whether hee haue at any time confessed it, or whether he beleeue it, to be notorious. If he [Page 117] shall deny to take oath to answere but vnto these, vpon his cre­dulitie: he doeth thereby incurre contumacie, and may bee pro­ceeded against, as conuicted of so much, as he wilfully refuseth to answere. One reason hereof is this: because he offendeth; to charge the office with proofe of a matter of this nature, being of it selfe no crime, and whereof he knoweth the very trueth. Ano­ther reason is, for that hee is not hereby accounted to bewray him­selfe of any hidden fault; because these points import no crimes of themselues, and (by common intendement) may bee other­wise sufficiently knowen.

Now if the Specul. ibidem nu. 41. & 42. partie defendant shall denie vpon his oathe, all these aforesaid matters, whereof he is interrogated; & none other sufficient detectiō besides, being against him, thē cannot the Or­dinarie Iudge proceed; to giue him an oath touching the trueth of the very crime it selfe obiected: vntill hee shall haue made proofe by witnesses, that the partie is (in deede) thereof infamed, hath else-where confessed it, is conuicted thereof, or some such like. For when all of these, or any of them, is either prooued, or by the partie himselfe confessed iudiciallie: then may the Iudge lawfully giue vnto the partie defendant, an oath; touching the trueth of the very crime it selfe: to the Io. Andr. in c. dudum. el. 2. de electione. intent (if the matter fall out true) by due tokens of penitencie to bee enioyned him; hee may be reformed, the scandall, and offence remooued, and others terrified from the like.

The equitie hereof is manifest: for c. omnibus &c. Presbyter. 2. q. 5. de purgat. canon. per to­tum. vpon such infamie, &c. running vpon him, and so prooued, or confessed, he may be put to his oathe, with his Compurgators; which is Arg. c. ex parte. 3. de decimis &c per venerabi­lem. qui filij sunt legitimi. much more and harder for him to doe, then to deliuer the trueth, vpon his owne onely confession.

Neuerthelesse you are not to vnderstand, that this compulsi­on here spoken of, to take such oathes; is an absolute, simple, or pre­cise compulsion, but onely causatiue, as Interpreters doe call it: Arg. l. deaetate. ff. de interrog. §. qui tacuit. c. fin. §. poena. de iura. calumniae. that is to say, if he refuse to answere, or to purge and cleare him­selfe being infamed, &c. and thereby scandalous, for some fault; he is but therefore to be declared for conuicted, to be suspended, or otherwise to bee proceeded against, as the qualitie of the cause and law requireth: and none other corporall violence to wring out his assent vnto such oath, is to be vsed.

[Page 118] Yet to prooue further, that by these lawes, an oath is appoin­ted and may be ministred in some cases touching a cause crimi­nall: I will (for auoiding of tediousnesse) set downe onely the l. 13. § idem Iulianus. ff. de Iureiur. l. 26. & 28. d. l. vlt. ff. de in li­tem iurando. l. 11. §. 1. ff. rerum amotarum. l. qui peritorio. ff. de rei venditione. & passim alibi. l. vlt. C. de fide instrumentorum. Leo. Aug. l. 6. §. vlt. C. de his qui ad ecclesiam confugiunt. Iustinia. A. l. vbi. C. de falsis. l. vlt. §. licentia. C. de iure deliberandi. idem A. l. vlt. C. de iure Dominij impetrando. idem A. Nou. const. 124. & Auth. nouo iure. C. de poena Iud. qui malè iudicauit. Auth vt litigatores iurent. §. si vero. l. cum apud veteres. §. sin autem, in fine. C. de bonis autor. iud. possidendis. l. penult. C. de probationibus. l. in bonae fidei. C. derebus creditis, & iureiurando; & ibi Apostilla. Nou. 8. const. 7. & ibid. glossae & DD. Vide Decianū. to. 1. 125. nu. 9. 11. q. 3. c. quisquis: & ibidem q. vlt. c. 1. 35. q. 6. c. si duo. gl in c. ex poenitentibus. 2. q. 6. in toto. 6. q. 5. c. vlt. Item in princ. cum c. sequ. 15. q 5. &c. si quis de gradu. 4. &c. sequ. ex. de purga. Canoni­ca. &c. 10. ibidem. c praesentium. 2. § praeterea singillatim cum sua gl. de testibus. in 6. c. cum I. & A. de sent. & re iudicata. & est communis opinio. Bartol. in l. inter omnes. §. rectè. in fine. ff. de furtis. Iul. Clar. q. 45. v. sed quaeso. places of lawe by quotations: and first out of the Ciuill (before the Emperours were Christians,) and then after they were Christians, as they be reported in Cod [...]ce Iustiniani; and then out of the Canon lawe, taken especially out of the ancient Fathers and Councels. that by perusall thereof (as your leasure may serue) you may discerne, vnto what member and part of the former distin­ction, each of them may seuerallie be reduced.

This point might be further enlar­ged, both by authorities of lawe, & by argument. If he that hath l. Marcel. §. 1. & fin. cum ll. seq. ff. rerum amota­rum. action for embezelling his goods (which is but a priuate, yet a criminall action at the Ciuill law) will put it to the defendants oath to sweare; that hee hath not embezelled them, the defendant then must either take it, or else be conuicted thereof: Neither may he returne the oath backe vpon the plaintife: the like is obserued in an action of theft: which is no publike criminall action, at the Ciuill lawe. And the defendant may not answere Bartol. ibid. & in l. inter omnes. ff. de furtis. & in l. de aetate. §. nihil. ff. de In­terrog. act. vnto these Interrogatories criminall by the worde credit vel non credit, as he may doe in Ciuill actions: but is to answere them direct­ly, yea, or no.

Though it be but at the suite of a l. de aetate. 12. §. qui. tacuit. ff. de Interr. c. si post. 2. de confes­sis in 6. priuate person; if hee that is iudiciallie interrogated, will not answere at all, or doeth answer obscurely and peruersely; he shall be holden pro confesso, and be condemned; no lesse, then if he had confessed it, because he there­in contemneth the lawes, and the Magistrate. Likewise, at a pri­uate persons suite and petition, the oath of c fin. & ibi DD. de iuram. calum­niae. Iuramentum calum­niae, de veritate dicenda, & purgationis, is giuen by the Iudge, and Abb. in. c. veri­tatis. nu. 27. de dolo & contu. must necessarily, be taken by the partie, albeit the matter be cri­minall; or else he shall be taken, as conuicted thereof.

And when the Accuser in a criminall cause, hath prooued no­thing Gail. de pace publ. ll. 2. c. 7. & est comm. opinio per Socin. senio­rem in l. ait Prae­tor. ff. de iur [...]ur. besides probabilities and presumptions; the Iudge if he will [Page 119] may minister of Office vnto the partie conuented, an oathe, tou­ching the trueth of the crime, called Iuramentum purgationis, ac­cording to a former distinction. And this kind of necessarie oath, and the former, haue place in Clarus. li. 5. §. fin 63. q. per A­naman. & alios. all temporall or Ciuill courts abroad in the world, as well as in courts Ecclesiasticall.

Then, if where but a common person sueth, either, for his own pri­uate interest, or for reuenge, the Iudge (by the Ciuill law) may ex­act such necessarie oaths of the other partie, importing oftentimes discouerie of matter criminall, and penall to the defendant: how much more then may the Iudge, and ought hee to doe it (after good presumptions, and probabilities had) where there is a pub­like interest growen vnto the Church or Common weale, to haue the very trueth knowen, for reformation of the partie and sup­pressing of the sinne or offence? By all which premised, we may see the equitie, necessitie, and true vse of such oaths, by those two lawes Canon and Ciuill.

Besides those lawes, it is also receiued and vsed by the Muni­cipall and Customarie lawes, of many nations of Chrstendome. By the lawe c. Sacramen­tum. §. & cum datur. de consue­tudine rectifeudi. Feudall, or (as we here speake) of Tenures; such oath, hath vse in crimes. For if the obiected crime bee denied by the partie, and cannot sufficiently be prooued; he must then haue twelue compurgators to sweare of their consciences, and creduli­ties for his clearing, after himselfe haue taken the oath, De veri­tate vel falsitate criminis.

By the Ord. Camerae Imper. tit. de Purgatione. ordinances and custo [...]s of the Imperiall chamber (ser­uing for all the Empire) the like oath is vsed; sauing, that a No­bleman is permitted to take it by his Procurator, authorized by him, to sweare in animamsuam.

By the Consuet. Hun­gariae de Iuram. Purgat. customes of Hungarie, there be many, and long consti­tutions made, for the taking of it, and of the maner, of this kinde of oath.

It is testified Marian. in c. qualiter. q. 84. Casonus in Pract. fol. 84. nu. 3. also to bee the vsuall practise of all the seuerall dominions of Italie, that the partie conuented in Temporall courts, whether by way of Accusation, or at the prosecution of another, or by way of Enquirie ex officio Iudicis: must sweare to declare the trueth, in all those things, that shall be asked of him, euen of the crime it selfe.

Which proceeding, is farre more grieuous and strict, then is or [Page 120] may be vsed, in any ecclesiasticall courts, or any other in England. For at the suite of a partie, a man is not in any ecclesiasticall court (here) to be sworne De veritate ipsius criminis, except there bee cause for the Iudge ex officio, to enioine him his purgation. And an other point of greater rigour there is; that they giue such an oath, not only, where some corporall punishment is to be inflicted, as in the Starre-chamber is vsed: but, where it is capitall to the partie, or tendeth to the mutilation of limmes: a course not al­lowed by the lawes and pollicie of this land.

For Ordonnances du France. liu. 2. tom. 2. tilt. 14 du droict, de refue haut passage, &c. pag. 1195. merchandise to bee caried out of the Realme of France, the Merchant must make a declaration vnder his owne hand, of the par­ticulars thereof, and the weight, or measure, in what ship, and whither he will carrie it, and that there is no more, then is there set downe; and that there be no deceitfull nor forbidden merchandise there: and for the trueth of such note, or declaration; he must take an oath, vpon the holy Euangelists.

They haue also another ordonnance in France to like purpose of swearing; reaching to all Plaintifes declarations, &c. and to all [...]fendants answers, &c. without any distinction, whether the same tend to discouer any crime of either of them, or no. For Ordonnance du France pre­mier, an. 1539. art. 38. the parties are bounde by oathe to affirme, touching the factes conteined in their billes and additions: and by their answere vpon oathe vnto Interrogatories, to confesse those; which be within their know­ledge.

In other matters criminall, it is reported to be the Marcus. deci­sione, 674. custome of France, for the partie defendant, onely to make fayth, when they are obiected. and hee is thereupon to answere; whether he haue committed them, or not: but hee is not to take a cor­porall oathe. betwixt which two (before God) there is no dif­ference. But by the Grand Coustu­ [...]er entre les coustumes, de Normandie. customes of Normandie, I finde; that the appealed of murther, or such like, (when it is to bee tried by battaile) must vpon his oathe (holding his aduersarie by the hand) solemnelie sweare, whether hee hath committed such facte or no; in the very selfe same wordes, and maner, as Stanford (afore alleadged) affirmeth to bee the lawe of England, in like case of Appeale.

Generally, y t to giue B [...]tol. in l. in­ter omnes. §. re­ [...]. fl. de furtis. an oath to the partie conuēted in a cause criminall, to tell the trueth; is the present vsuall practise of most [Page 121] nations abroad: and August. ad An­gel. de maleficijs: in ver. comparue­runt. Bertrand. consil. 321. nu. 3. li. 3. in prima par­te. Marsil. in l. quaestio. habēdae. nu. 72. ff. de quae­stionibus. Conra­dus in Practica, fol. 280. & Go. mez. ca. 1. Deli­ctorum. nu. 65. that the common opinion of writers in these two lawes is; that it may bee so giuen, euen by the lawe Ciuill (which is their common lawe) doeth appeare by the places of Au­thors here quoted, in the margent.

Amongst nations of farre elder times (in most flourishing common weales) we finde oathes in all causes, whether Ciuillie or Criminallie mooued; to haue bene taken, both by the plaintifes, and also by the defendants. Amongst the Ex Polluce Si­gonius. li 4. ca. 4. de republica Atheniensi. Suidas in verbo. Athenians, both par­ties tooke oathes; and besides that, did lay downe a certaine summe of money, to be forfeited by him that should bee ouer­throwen. The Plaintifes, or Accusers oath was; that he would obiect nothing but true crimes and matters. This was called: [...]: and the defendant sware, that he would deale, and an­swere plainlie, not fraudulently, and cautelously, and this was called [...].

When Aeschines accused Timarchus of a fowle crime, suppo­sed to be done vpon him by one Aeschines con­tra Timarchum. pag. 7. Graece. Misgolas, he saieth thus: that if Misgolas being called, and vrged to beare witnesse, shall denie it, to the intent to gratifie Timarchus: hee shall thereby doe him no good, because Aeschines can prooue it by witnesses: but shall only for sweare himselfe, and withall shew how cunningly hee can couer such villanies. Whereby appeareth, that (in that common wealth) oaths might bee giuen in matters criminall, tending to the opening of their owne turpitude, as well as of other mens.

Radamanthus for his seuere, and strict course of Iustice holden; was fained by Poets (like as Aeacus and Minos also were) to be a Iudge in another world, ouer ghosts deceassed. Of him Plato lib. 12. de legibus. Pla­to thus writeth to our purpose: I am perswaded (saieth he) that Radamanthus deserued to bee had in great admiration. for he percei­ued, how in those dayes, all men confessed, that there were gods, which had regard ouer humane actions. therefore he thought best, to commit deciding of matters in iudgement, vnto gods, and not vnto men. So that by a very plaine and easie course, hee ended all matters of iudge­ment; for hee exacting an oath in euery cause in controuersie, vsed thereby, no lesse speedily, then safely, to giue his iudgements.

Libr. 3. Polit. c. 10. Aristotle also Plato his scholer testifieth the like; that in olde times, supposed offenders that were called into question, were some of them proceeded with vpō their oaths, & other without. [Page 122] and their oath was performed by holding vp of a scepter.

The historie of Glaucus Herodotus in Etato. lib. 6. an auncient Spartan, doeth giue plaine euidence; that amongst that most iust people of Greece, a man that would denie a thing to haue bene left with him in de­posito, that is, in trust to keepe; was to take his oathe, whether it was so left with him, or not; and consequentlie was to sweare of matter tending either to periurie, or to his dishonestie, and shame, hauing once vniustly denied it afore, to the defeating of his right, who had trusted him. For the said Glaucus his whole house and posteritie was rooted out by Gods vengeance; one­ly for that a while hee denied it, and had once in purpose, to haue forsworne the money, which was (in deede) left with him, vpon trust: and thereupon consulted with the Oracle at Delphos, whether he had best forsweare himselfe, or deliuer the money.

The vse of an oath in matters criminall, amongst the people of Greece, may be prooued to be most ancient, by that purgati­on, which king Agamemnon made to cleare himselfe, that he had not liued incontinently with Hippodamia. this his purgation is recorded to haue bene made in this forme: Dicty [...]. Cre­tensis. lib. 2. belli Troiani. Hee commanded two Sergeants to bring the hoste or sacrifice: which being by two lifted vp from the earth; Agamemnon drewe out his sworde, and there­with diuided it into two partes, and caused it in the presence of all, to be laied downe; then holding in his hand the bloudie sworde, hee went betwixt the two partes of the sacrifice, and when hee was passed through, he then sware, that he had neuer polluted Hippodamia, by in­continencie.

Homer Homer. lib. 19. Iliad. v. 257. mentioneth, that the same king, in another forme cleared himselfe, that he had not violated Briseis. For at that pur­gation, a Boare was offered vp by Talthibius; then Agamemnon cut off some of the Boares bristles, and offered them to Iupiter: swearing withall, that he had not violated Briseis, and the Boare was after, tumbled into the sea.

For clearing men from suspicion of all lewd and sinister dea­ling, not onely those which came to striue Pausanias in Eliacis. at the solemne exer­cises and games of Olympus, but their parents also, and brethren, were sworne ouer the entrailes of a sacrificed hogge; that they had vsed no fraude, or deceit whatsoeuer: nor done otherwise, [Page 123] then the ordinnances for Olympus, did permit. So much then for the vse thereof among the old Graecians.

In the old Romane common Cato de re rust. ca. 144. & 145. wealth, we read, that, euen pri­uate housholders did lawfully impose such an oathe vpon their labourers, that gathered Oliues: videlicet, that, neither themselues nor yet any other by their couin, or fraude, had stollen, or embezelled away either oyle, or oliues: which oathe if they refused, they neither had any wages, nor any oyle or oliues. For as it is by c. fin. §. 1. de iuram. calum. &c. inter solicitu­dines. d. lawe, that when probable tokens or presumptions, &c. doe appeare; hee that refu­seth to take oathe (though the cause bee criminall) is reputed conuicted thereof: So was it holden among the olde Romanes for an assured note of guiltinesse, to refuse to take such oathe. as may bee noted by the historie of Victorinus, when hee was lord Generall of Germanie. for Xiphilinus in Commodo. hauing his Legate or Lieutenant in some suspicion for corruption, he did (priuately) seeke to per­swade with him, to take an oathe; that hee would not suffer himselfe to be bribed. which when he could not obtaine of him, the Generall himselfe came into the Tribunall seate; and there did sweare, that he neither had, nor euer would accept of anie bribes. then he commanded his Legate to take and binde him­selfe with the like oathe; which because hee refused, the Gene­rall commanded, that hee should giue ouer his office and place. And that it might bee better discerned, whether any man vpon guiltinesse of his owne conscience, would at taking his oathe, blanch, & alter the very words of the oath: they somtimes deui­ed to haue a solemne oath, whereby he that gaue the oath, did vt­ter certaine set, and conceiued words, as he thought fittest; which he that sware was preciselie to follow, or else it serued not his turne, as afore hath bene noted. This they called Conceptis ver­bis iurare, and the Graecians termed it, [...], a solemne impo­sed oath. An example hereof in a very fowle cause, we reade in Tacit. lib. [...]. Annalium. Cornelius Tacitus.

The Senate couceiued a forme of oath, and the chiefe of them first beginning to take it, prouoked by their example all the rest of the Ma­gistrates as they were asked their voyces, to call God to witnesse; that by their meanes, nothing had bene done, whereby the safetie of any citizen might bee hurt; nor that they had gotten either reward or [Page 124] honour, through the calamitie of any other Citizens. but it was perceiued, that such as had a guiltie conscience herein, did come but tremblinglie to it, and chaunged the set conceiued wordes of the oathe, like as those are woont to doe, who sweare falsely or caute­louslte.

When the Praetor one of the Lex Seruilia Glauciae, apud Sigonium. li. 2. ca. 6, de iudicijs. chiefe Magistrates of Rome, had made choice of 450. Judges, for deciding of causes; he was (by lawe, for his owne clearing) to sweare; that hee had not wit­tingly chosen any of them dolo malo, viz. by fraud, mal-engine, or for any other sinister respect.

By all which the premisses out of the Canon, Ciuill, and the lawes, and customes, of other nations, may appeare; how lawfull and equall a course it was by them also holden (vpon sundry oc­casions) to vrge oaths; though some matter criminall in the par­tie himselfe, might thereby be disclosed.

CHAP. X. An answere to some obiections, pretended to be made against this kind of oath, from the lawes Ciuil, or Canon.

IN this Chapter, such obiections, as already are, and some which perhaps hereafter may bee made against this kind of oath from the Ciuill, or Canon lawes; come to be answered. Of these, most be made by the Treatisour, &c. and some may hereafter be obiected (perhaps) by others. The Treatisours, be either against some circumstances about it; or else against the oath it selfe. But first, touching his by-matters, or circumstances.

Because the priuate Schedule (concerning these oaths) which was set downe by certaine Doctors, (as is mentioned in the epistle to the Reader) conteineth; that, the defendant in a cause crimi­nall, is to answere other Articles, so they be not tending to the crime it selfe, though it be at the suite of a partie: hee saieth, that the Maxime, of nemo tenetur seipsum prodere, is (thereby) so weake­ned, as it will scarcely nowe serue for a Minime. For reason of this consequence; hee asketh, if this be not to goe like the crabbe, oblique, and to proceed the same way, although not to treade the [Page 125] direct steppes? and asketh also, what should be meant by other articles, but such as concerne circumstances, and inducements to the crimes?

He is therefore to vnderstand, that at the suite of a partie, a man (by those lawes) is neither to answere criminous articles diducing Angelus de maleficijs. the very crime it selfe, nor yet such, as haue any neere coherence thereto, or be propinqui Actus ipsi maleficio. But of other matters hauing none affinitie with the very crime; as whe­ther he be of that Iurisdiction, and such like; the defendant is by vertue of his oath (euen at another mans suite) to answere: and therefore no such crooked measure is offered herein at all. But he seeth no reason (he saith) why there should be any difference betweene the suite, and instance of the partie, and the proceeding ex officio: in that, the reason alledged for to make a difference, is but this: Pe­nancies enioyned by Ordinaries, are not taken in lawe for poenae, but medicina. If he see not this, why there should be any diffe­rence betweene those two proceedings; I maruaile then, what cause he can see, so highly else-where, to magnifie the course of proceeding by an Accusour, as very equall, and iust: but to con­demne (simply) all proceeding of Office, as vniust, forreine, cruell, heathenish, and prophane, and I know not what.

That he may therefore see great cause of difference betwixt these two; let him a litle weigh with himselfe, what the reason (at the common law) should be; why an Appellee is allowed more freedome in sundry respects, then a man endited at the Q. suite ex officio simply? and why, he may then put it to tryall by battaile with the appellor; but cannot haue that tryall, vpon an Indite­ment? And also, why a defendant, against whom an Information is preferred for some criminall matter in the Courtes of the Q. Bench, common pleas, or Exchequer (which neuerthelesse is by a kinde of proceeding mixt of both the kindes) shall not be vrged to answere, the bill, or any interrogatories vpon his oath, as all defendants in Criminall causes, be forced to doe in the Starchamber? He is also to be put in minde, that men vse not in such briefe schedules as that was; to alledge for euery matter, all the reasons they can: yet that one alledged, is of it selfe a reason sufficient, of such diuersitie. for is there as great reason, that I should vpon mine oath discouer my crimes, being no way [Page 126] therof duely infamed, or they otherwise proued, for the satisfacti­on onely of mine aduersaries malicious humor by mine owne more grieuous punishment: as there is (when these or some like be precedent) that I should to mine Ordinary or Spirituall father; who in a farre milder course, for his duties sake, & in charitie, see­keth my good, by reformation of me, & amendment in me; and by remouing the scandal, which els might iustly be taken against me? And (by the Canon lawe) as is else-where touched, mitiùs agitur cum inquisito conuicto, quàm cum accusato conuicto. Seing then vpon conuiction by way of accusation, the very ordinarie pe­naltie by law appointed, is (for the terrour of others) imposed without any mitigation: therfore the oath cannot so reasonably thereupon be exacted, as it may vpō the Iudges proceedings, by his meere office, vnto a farre other more milde end, for y e most part.

But as if those Doctors had absolutely denyed penances, which be enioyned ex officio Iudicis, to be any punishments at al, because they are said to be medicinae: he asketh, whether penance, although it be but standing in a sheete, aswell as the standing on the Pillorie (in respect of publike shame grieuous and odious to all men) shall not bee accounted a punishment?

I answere, that neither the law, nor those Doctors in saying they be medicinae, non poenae, doe thereby deny absolutely (as he reaso­neth) that they be punishments. For this saying of the lawe, is a Negatiue by comparison only; which the Treatisor either would not, or did not vnderstand, to be none absolute denial. and that pe­nancies (in deed) be so, we may learne by S. August. episto­la. 159. ad Mar­cellum. Augustine speaking hereof in this maner: quis non intelligit magis beneficium, quàm supplicium nuncupandum, vbi nec saeuiendi relaxatur audacia, nec poenitendi salutaris medicina subtrahitur? Standing on the Pillorie which (as I take it) by a word borrowed of the Graecians, may be termed catamidtatio; it was euen of ancient times, (aswell as at this day) accounted an infamous punishment vnto the partie, that endured it: and is allowed, for a good proofe of infamie by law. but he that hath done publike penance, is not (in lawe) to be ac­counted therfore infamous: but rather to be a man amended and reformed; and such, as at whose conuersion, the Angels in heauen doe reioyce. and therefore his companie is not afterward to be shunned or auoyded, by any discreete or moderate Christian; as if [Page 127] he were still a man of steined credit, or conuersation. So that the great diuersitie of the endes, whereunto these be referred; doe make a very notable difference in the punishments themselues. For in the one of thē, the delinquent is propounded for a publike spectacle of shame & reproch, to be shunned of all men: the o­ther, by these outward tokens of humilitie & submission, testifieth his inward sorow & griefe for the sinne, and as it were thereby craueth (in pitie and compassion) to be receiued againe, into the Christian fellowship, as a man (by repentance) fully reconciled againe vnto God, and vnto his Church. Hitherto in answere of his obiections made against some by-circumstances of such oath.

Against the oath it selfe, the Treatisour bringeth some reasons, some allegations frō lawyers, & some out of the lawes thēselues. First he saith, there is no Iustice in the proceeding, at giuing such oath: because there be not three in Iudgement, viz. the plaintife, the defendant, and the Iudge; and thereunto alledgeth Bracton.

But what if the maner of proceeding ex officio were vniust, which in y e second part is shewed to be otherwise; can this proue the ministring of an oath to the defendant in a Criminall cause, to be vnlawfull? For first, proceeding ex officio may be, euen where the matter is Ciuill, or criminall, howbeit but Ciuilly moued, and there (for the most part) none oath is vsed. Secondly, it may be, when none oath touching any crime, is to be ministred to the de­fendant at all. Lastly, an oath in a cause criminall may sometimes be tendered, where the proceeding is not of office at all, but ha­uing all these three persons in iudgement, and that not by impli­cation or representatiuely only: but euen formally. and therefore (in all those respects) his argument doth not follow. yet for fur­ther answere, I must also tell him, that in all due proceeding of office, there be three persons in iudgement. For (as hath bene said) that which openeth way to such Enquirie, doth represent, and standeth in stead of a Plaintife, for preferring vp of the matter.

Againe, that an expressed and formall plaintife to preferre vp matter criminall, is not alwayes required; is Cap. 15. & 16. 2. part. manifoldly shewed, by often practises recorded in the word of God it selfe, to the contrary.

He concludeth also against generall oathes, and against extor­ting (by oath) of the ground and foundation of Inquisition from the [Page 128] partie conuented: out of the saide little schedule of the Doctors. From which conclusion albeit not following of those pre­misses; we do not any way debarre him; seeing no such practise is either allowed, or (I thinke) in this Realme heard of. and therefore he wrongeth all Ecclesiasticall courts the more, who so often heapeth vp these vntrue and vnlikely imputations against them. An other of his allegations, is out of Clar. in pract. Crim. q. 3. Iulius Clarus; to prooue (forsooth) by Canons, and Canonists, this kinde of oath to be a prophane, and more then heathenish maner of Inquisition, (for such is the mildenesse of the mans spirit) and contrary (if he be not deceiued) to the rules and Canons of the Antichristian Church of Rome, which be more iust (he saith) or lesse vniust a great deale then such, as haue taken vpon them to iudge, by colour of the same. for pro­cedere (saith Clarus) ex officio mero, est quando Iudex a seipso, & ex officio assumit informationes, contra deliquentem, & contra eum pro­cedit &c. wherupon, he gathereth, that to proceede by Inquisition, is not to make the partie by oath or examination to be his owne accuser; but to receiue information, and witnesses against him. This, which he thence collecteth, of not compelling the partie defendant by oath, to become his owne Accuser is true, if it be as truely vnder­stood, though it be not inferred truely from that allegation. for no man is by oath, so compelled: but rather by discouery of the whole trueth, to cleare himselfe of the crime after he be (as it were) accused, and brought into question by some of those lawfull meanes, which open a way vnto speciall Enquirie. Besides, this allegation maketh nothing for proofe of the vnlawfulnesse of such oath, after sufficient detection. For Clarus in this place, speaketh onely of the processe, or enquirie informatiue, grounded vpon some Clamosa insinuatio, or scandall; and not of any part of processe punitiue, which followeth vpon the former: at what time the oath of the partie, is to be taken. which thing, the same Authour, (thorowout his whole booke) most plainely sheweth: if it had pleased the Treatisour to haue perused but a little more of it. This therfore is a fallacie, of not disputing ad idem: besides, Ignoratio Elenchi. inciuile est, nisitotalege perspecta, iudicare.

The next of his allegations, is out of a meere 10. Petr. Ferrar. forma Inquisit. ver. forma pub­lica. Ciuilian writer and no Canonist, as he supposed: with whom he hath the same, and no better lucke, then he had afore with the other; for want [Page 129] of knowledge to distinguish, betwixt Processe informatiue, and Punitiue: for thereof onely Petr. de Ferrarijs there speaketh, not once mentioning an oath: Albeit the Treatisour doe ga­ther, both that and other things also thereof, which bee not there conteyned; which I will not nowe trauerse with him; be­cause they tende not to our principall purpose.

Out of the lawe it selfe, hee taketh holde of that Rule, which the sayde Doctors did alledge, viz. nemo tenetur seipsum prodere. but that proditus per famam &c. tenetur seipsum osten­dere & purgare, &c. (which they did also adioyne) he cannot in any sorte brooke, or digest, as a glosse, (he sayeth) confoun­ding the text. yet is it not any glosse, but aswell warranted by lawe; as the rule it selfe. neither doth it confound, but shewe, howe that rule is (truely) to bee vnderstoode: so that one part of the lawe (without any antinomie) may stand with another. This himselfe might haue remembred to bee lawe, euen by occasion of his owne allegation else-where, viz. that such as refuse to sweare or answere vnto Articles, are by the Ecclesiasticall lawe, to bee holden pro confessis. If then that lawe doe so deepely punish the contemptuous in that be­halfe; as to conuict them therefore, of the very crime im­puted: may wee not gather, that the lawes Ciuill and Ca­non, require men to answere euen matters Criminall, vpon their oathes?

But if the Canon lawe-shall bee by others alledged, to a­uouch such oath, as we heere treate of: to this allegation in seuerall places the Treatisour maketh these seuerall answeres following. First, hee sayeth, that such oath is against Gods word, and therefore no binding lawe: for which consequence, hee alledgeth Saint Germaine, in his booke of Doctor and Stu­dient. Secondly, that the two statutes of Submission of the Clergie, made in king Henrie the eight his time (still 25. H. 8. 27. H. 8. conti­nuing in force) doe take away the Canon lawe. Thirdly, that this kinde of oath is contrary to the lawes of the Realme. All which asseuerations are nothing else, but begging of that, which is the principall controuersie.

Touching the first of these, it commeth in the next Chapter to bee disoussed; whether, ministring of such oath, [Page 130] be against Gods word, or no. For the second, those two sta­tutes are so farre, from taking the Canon lawe away, that both of them doe (in trueth) establish, all Canons being of that qua­litie, as is there expressed; vnto all which wee auerre, this oath to bee consonant. The Clergie (in deede) doe there promise, not to enact or put in vre, any newe Canons, &c. without the kings expresse assent: of which sorte, this oath is none; for it hath beene prooued by farre elder Canons, then that time. Con­cerning the third, wee haue shewed; that there is not any great diuersitie betwixt those two lawes in this poynt: & there­fore much lesse, can there bee any contrarietie, or repug­nancie.

Lastly, hereto hee answereth; that if any man shall seeke by long practise and continuance, to giue a new probate vnto the Ponti­ficall lawe, after so publike a condemnation, and firing thereof by Doctor Luther: such must vnderstand from him, that this kingdome is not subiect to any forreine made lawes, saue such, as 25. H. 8. ca. 21. agree to the Preamble of the statute, establishing dispensati­ons. A man woulde thinke, if any part of Canon lawe should swarue from those conditions required to make them English lawes: that dispensations, (which of all other are most strict, and neuer afore that time spedde in this Realme) shoulde bee holden for forren lawes, rather then this kinde of oath, so vsuall afore and since in most courtes. yet these dispensations are also there approoued for English lawes. Let him therefore vnder­stand; that, all those things there required (viz. sufferance, consent, and custome:) to make the Canons establishing such oathes to be accounted the customed, and ancient lawes of this Realme, originally established as lawes of the same; doe in these oathes so aptly concurre (as hath beene prooued) that none of his confident denials thereof, can or shall bee able any more, to empeach them from so being: then the burning of the Canon lawe at Wittenberge by Luther (when the Pope had burnt his bookes at Rome) either did, was meant, or yet coulde abrogate the continuall vse of a great part thereof in Germanie, euen vntill this day; or then it coulde, or ought to haue any force to disanull it here in England. for the statute establishing such Canons as there bee mentioned, was made [Page 131] in the selfe same Parliament and Session thereof; that this Pre­amble was before the statute of Dispensations, whereby hee woulde nowe ouerthrowe the Canon lawe wholly. And both of those statutes, at the beginning of her Maiesties reigne, were reuiued againe in one Act. Howe can there then bee any such contrarietie, or abrogation generall of the Canon lawe, as this man dreameth of: except all that were present in those two Parliaments, had bene fast on sleepe, when they twise passed them both together for statutes?

Others perhaps (to as good purpose) will obiect; that an­cient custome of Rome, viz. Gell. lib. 10. cap. 15. Fenest. de Sa­cerd. cap. 6. Virginem Vestalem, & Flaminem Dialem, in me a iurisdictione iurare non cogam. hereof Plutarch. probl. 43. Plutarch doth set downe three reasons: first, that an oath is a kinde of tor­ture to a free man: Secondly, for that it is absurd in smaller causes not to credite their wordes; who for the highest matters touching God, are credited, and put in trust. Thirdly, for that an oath draw­eth after it, an imprecation or curse, in case hee shoulde be for­sworne: which seemeth to be a detestable omination, towards the Priests of God.

First, then wee see hereby, in so much as this was a peculiar priuiledge graunted to these: that therefore all others might (by Magistrates) be put to their oathes. And secondly, that it was from all swearing absolutely; and not in matters criminall onely, which is our present controuersie.

For so Liuie also Liuius lib. 32. testifieth hereof, where hee sayth, that Flamen Dialis amongs the Romanes, might in no case at all sweare, least at any time he shoulde for sweare. which in him was holden, as the most heynous thing, that coulde happen. Thus farre in answere vnto ob­iections, made out of those two lawes.

CHAP. XI. That not onely such an oath may be taken, but also being by Magistrates duely commaunded, ought not to be refused, is approued by Scriptures; by practise of the Primitiue Church; and of late times; together with a Replie vnto certaine an­sweres, made vnto some proofes here vsed.

THe Innouators finding but small reliefe in the lawes (being rightly vnderstoode) doe flee, (as it is meete) vnto the word of God. yet as hoping (fall worst that may) to bee iudges thereof in their owne causes; and so to shrowd their disobedience in refusing to be examined vpon oath; vnder pretence of conscience, and of a religious care not to offend God thereby.

And therefore they holde; that, they are by Gods lawe bound, not to answere (in that sort) vpon their oath: which is more then if they had onely sayd; that they are not bound, and so left at libertie, either to answere, or not, as themselues should thinke good. whereby they would leaue a dangerous impres­sion in the peoples mindes; that such lawes of this land (where­in they are borne subiects, and by which they are to be gouer­ned) may not be obeyed of Gods people, with a safe conscience; as being contrary to the word of God. A matter assuredly of most perillous consequence, to leaue vnto the onely scanning and finall determination of euery priuate subiect; how farre he neede to obey the positiue lawes of his countrey. As it commeth therefore orderly in this place, so is it also a matter most fit to be discussed: whether the oath of a partie in a cause criminall, & pe­nall to himselfe, may be exacted, & vrged by the Magistrate, without breach of Gods law: and consequently not to be refused by the subiect.

It is said in Rom. 13. ver. 1. 2. & 5. Scripture, that euery soule must be subiect vnto the higher powers, for there is no power but of God; & the powers that be, are ordeined of God: and therefore whosoeuer resisteth the power, resisteth the ordinance of God, and that they which resist, shall re­ceiue to themselues iudgement: That we Tit. 3. ver. 1. must be subiect, not because of wrath onely, but also for conscience sake. And 1. Pet. 2. ver. 13. we are comman­ded to be subiect to Principalities and Powers, and to be obedient. [Page 133] And to submit our selues [...], to all manner ordinance of man, viz. publike gouernement, for the Lords sake. By which power, ordinance of man, or publike gouernment, are not one­ly vnderstood all kindes of Magistracie, and superiour authoritie; and that we may not resist, doe violence, or offer contempt to their persons; but much more, that we are to fulfill, and obserue all their politique lawes, without wilfull breach of them, so they be not repugnant vnto Gods word. For if this happen, then that hath Act. Apost. ca. 5. v. 29. place, It is better to obey God then man. And if they com­mand contrary things, we must remember that wee Matt. 6. v. 24. cannot serue two masters.

Yet Godsword doeth not abrogate lawes, common wealthes, nor ciuill policies, but doeth establish them. Therefore, except they which refuse to take such oath, can shew some direct Prohi­bition either expressed, or to be necessarilie, and immediately ga­thered out of Gods worde against it; they must know, that their contempt and disobedience (in this behalfe) reacheth vnto God himselfe; whose ordinance, both the Magistrate, and his lawes be.

S. August. de verb. Domini serm. 57. Augustine hereof writeth thus; contumaciae crimen est, quod iubetur contemnere; quod praecipitur nolle; quod imperatum est, de­clinare. But more particularly to our purpose in handling, it may bee prooued by a generall Councell; that hee which holdeth his peace, when he is asked, or will not directly answere; is wilfully disobedient, and may bee conuicted for such his stubbernnesse. For Synod. Gene­ral. 8. Actione. 5. when as one Photius was demaunded by the Councell, whether he would admit of the ordinances of the holy Fathers, and he answered not any thing thereto; the Presidents of the Synode signified vnto him, that by his silence, he should not escape from being condemned; which (thereby) was made more manifest. And to like purpose, a late Schooleman writeth: Sotus de iust. & iure. lib. 5. q. 6. When any thing is asked of the defendant, but according to order of lawe, he is vponpaine of deadly sinne, bound to reueale the trueth, yea though he be not sworne, but much more vp­on his oath. Therefore is it well gathered, that he, which beyng duely interrogated (though it be touching an offence) and re­fuseth to answere as hee ought: first offendeth against Iustice, and against the Iosu. 7. glorie of God. Secondlie, hee offendeth agaynst the reuerence of the Iudge, whom he is bound to obey, if he bee [Page 134] vnder his iurisdiction. Lastly, against the Common-weale, which hath l. ita vulneratus. §. ad l. Aquil. a great interest to haue crimes discouered, and punished. Concerning the second of these; it is by great, and (some of them) ancient Cyuus & alij in l. 2. §. quod si actor. C. de iu­ram. calum. Ciuill interpreters deliuered: If a man (who hath sworne that he will neuer take oath) yet hauing a suite, shall be com­manded by the Iudge (according to lawe) to take iur amentum calum­niae, and thereupon doeth take it; that he shall not (thereby) be accoun­ted to be periured, because such commaundement of the Iudge, doeth excuse him.

For mine owne part, I haue alwayes taken it to be a T. C. grosse error in Diuinitie to affirme; that a man may not holde any hu­mane matter with a certaine perswasion, nor doe any thing in externall actions, but such onely as we haue a positiue, or affirma­tiue warrant for, in the word of God. For if this were a true posi­tion; then a man might beleeue no historie to be true, which is not in the Bible; no Maximes, or grounds of any sciences, nor common principles, left knowen vnto vs by the light of nature (as that two and two make foure) nor that there is any such coun­trey as America, &c. neither might a man (with safe conscience) doe infinite many things permitted by humane lawes, and sun­dry of them also commaunded to be done: because all these hi­stories and Principles, and the most of these lawes be such; as can neuer (by any sound reason) be positiuely, immediately, and par­ticularly prooued out of Scripture: but onely by this generalitie, that therefore they may be beleeued, or done; because they are not contrary to Scripture, are agreeable to the vncorrupted light of nature, or to sundry credible mens experience, or are by the po­litique lawes of our countrey, receiued.

For who can giue any other sound reason directly drawen from the Scripture; that theft shall be punished with death: that matters of fact shall bee tried by a Iurie of twelue, led sometimes not by witnesses, but by circumstances and probable induce­ments: that the eldest sonne shall haue all his fathers land (by descent) from the rest of his brethren, though they bee neuer so many; who no lesse then the eldest are descending from him: that my kinsman remooued (perhaps fiue or sixe degrees) descending of the whole bloud from my fathers brother, shall, [Page 135] and lawfully may inherite my lande, before mine owne fathers sonne by another wife: that at one and twentie yeeres, a man may effectually sell his lande, but not the day before, albeit hee haue receiued my money: that the wrecke of the sea, albeit the owner of the goods bee certainely knowen, shall bee confisca­ted, and belong to the Prince: that a straie proclaimed (accor­ding to lawe) after a yeere and a day, shall belong to the lord of the Mannour, where it was taken vp: with infinite such like?

Therefore, it is no good, nor safe ground, that the Innoua­tours doe stand vpon: when as (being pressed to take such oath according to the lawes of the Realme) they alleage; that in conscience they may not doe it, because they finde no direct warrant for it by Scripture, whereupon to staie their conscien­ces. For if it were graunted vnto them, that there bee no com­maundements, no examples, no footesteppes or traces thereof in Scriptures: yet if it be not by them prohibited, or condemned, the generall obedience of subiects will tie them thereunto.

But I purpose also (here) to shew, the lawfulnesse of it, e­uen positiuely out of the worde of God. First, declaring that Magistrates may laie oathes vpon their Subiectes, which are necessarilie by them to be taken: Then that they may be tende­red and taken in causes criminall and penall to the parties them­selues: and lastly, I minde in the next chapter (God willing) to answere the obiections, that I finde brought to the con­trarie.

That when an oathe is duely imposed, there is a necessitie enioyned the subiect to take it; doeth appeare by the comman­dement of God himselfe: Thoushalt feare the Lord thy God, and serue him, and shalt sweare by his name. which words being disposi­tiue, not onely to the maner of the oath, viz. by Godsname; but also to the action it selfe offwearing: doth argue euidently, that there be oaths, as well necessarie, as there be voluntarie.

The like commandement is giuen by the Lord in the prophet Iere. 4. v. 2. Ieremie: O Israel, thoushalt sweare, The Lord liueth, in trueth, in iudgement, and in righteousnesse. Wherein, there is both a comman­dement, of that action; and an instruction, in what sorte, an oathe is to be taken, and with what necessarie adiuncts.

[Page 136] In the charge that Iosh. 23. v. 2. Iosua gaue to all the Magistrates of Israel; viz. to their Elders, to their heads, their Iudges, and their Officers, this (amongst other things) is conteined; that, they shall not make mention of Ver. 7. the Gods of other nations, nor shal cause to sweare by them. And therefore Magistrates haue authoritie, to cause (those that be vnder them) to sweare, and to take oaths.

For an example of such charge giuen, wee haue that of king Saul, who not onely 1. Sam. 14. v. 24 & 28. charged the people with an oathe; but made them vowe with a curse, not to eate any food that day till night. There­fore one of them reported thus to Ionathan, Sauls sonne; that his Father had made the people to sweare.

The most wise king Salomon, when he meant (for a punish­ment) to confine and imprison Shimei, within the compasse of Ierusalem, for his reuilings of king Dauid; telleth what hee did 1. Reg. 2. v. 42. & 43. vnto him: Did I not make thee (saieth he) to sweare by the Lord, and protested vnto thee, saying, &c. why then hast thou not kept the oath of the Lord, and the commandement, wherewith I charged thee? And yet this oath and promise was without excepting of any cause (though most important to him, and most necessary,) that might happen, to occasion him to goe out of the Citie: and therefore did bring apparant danger with it, to entangle him as deepe as his life. And albeit the cause which he had of going af­terward out of the Citie, might seeme something reasonable, in that he Ibid. v. 39. & 40. went foorth but to fetch home two of his seruants, that had runne away from him: yet did this breache of his oathe, and of the kings adiuration to him, (wherewith hee had charged him) most iustlie cost Shimei his life. So king Saul 1. Sam. 24. v. 22. 23. vrged Dauid to sweare vnto him; that he would not destroy his posteritie af­ter him.

For a priuate offence and iniurie, only betweene neighbour and neighbour, king Salomon testifieth; that a necessarie oath of purgation, may be required by the 1. Reg. ca. 8. v. 31. & 32. complainant: When a man shall trespasse against his neighbour, and he lay vpon him an oathe to cause him to sweare, and the swearer shall come before thine altar in this house: then heare (O Lorde) in heauen, and do and iudge thy seruants, that thou condemne the wicked, to bring his way vpon his owne head, and iustifie the righteous, according to his righteousnes. Where we see, that a priuate person vpon a supposed offence, [Page 137] and trespasse agaynst him; may vrge his aduersarie vnto a neces­sarie oath, albeit the matter be criminall, and penall to him, if ei­ther he shal refuse it, or be afterwards otherwise conuicted. How much more then may a Magistrate vrge it, for the publike in­terest, especially for an offence supposed to be done, against the Church or Commonwealth?

King Iosias also meaning to reforme religion, and to restore the true worship of God, greatly then decayed; did make a 2. Chro. 34. v. 31. & 32. co­uenant and vowe, and caused all that were found in Ierusalem and Beniamin to stand to it.

So Ezra. ca. 10. v. 5. Ezra the Scribe (being also a Magistrate) caused the chiefe Priestes, the Leuites, and all Israel, to sweare; that they would, doe according to this worde. which oathe, that by vertue of his office, it was imposed necessarilie vpon them; and not onely vo­luntarilie by them taken; wee haue good testimonie, in the wordes Ibid. v. 4. next going before: Rise (saieth Sechaniah vnto Ez-ra) for this matter belongeth to thee, and we will be with thee, or as­sist thee: confirmare, bee thou resolute, and effect it. And likewise out of the booke of 1. Esdr. Apocr. ca. 8. v. 92. 93. Esdras Apocryphall, where that storie is reported, for it is there sayd thus: To thee it doeth appertaine, and we are with thee to make thee strong. whereupon is added: And Ibid. v. 94. 95. hee made them sweare. By which wee may gather; that if any of them would not haue sworne vpon his commaundement; they should haue bene compelled thereunto, by some Ciuill constraint.

When the richer Iewes had receiued the lands of the poo­rer sorte to Morgage, and they were forfeited vnto them; yea and their very sonnes and daughters were drawen into bon­dage, for satisfaction of such things, as they had borowed for their necessarie sustentation: Nehe. 5. v. 11. 12. & 13. Nehemias caused the Priests to sweare, to restore these againe, and to forgiue the hundreth part of the very principall, due vnto them. So by the premisses, we see; that Magistrates may exact oaths of those that be vnder them, which ought not to be refused.

The Treatisour himselfe will 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 [Page 138] 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 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. [Page 139] 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.

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 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 Col. 3. v. 9. speake vntrueth, or to lie one vnto another, euen in priuate affaires amongst our selues: and are 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 Deut. 19. v. 17. 18. & 19. men which striue together, to stand before the Lord, euē before the [Page 140] 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 re­examination 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 Prouerbs of Salomon; for proofe, that an adiuration & curse made but indefinitely, & generally against any whōsoeuer, that had cō ­mitted an offence: did before God, bind y e offender (for auoiding [Page 141] of sinne) to reueale y e matter, though it concerned, euen his owne turpitude. He 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 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 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, [Page 142] or adiure (faith Michah her sonne) I haue them. Furthermore wee are 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 Leuit. 5. ver. 1. an oath; the He­brew word signifying both, and being translated sometimes iu­ramentum, and sometimes adiuratio) in this 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 [Page 143] 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, as it is prooued, it may be lawfully.

And albeit the Treatisour himselfe confesse the effect of that which we haue gathered touching this Historie: yet he saith, the Magistrates charge vnto him; that (remembring the glorie of God) he should confesse the trueth: is none oath. For it were a hard conclusion (saith he) togather, that hee is peri [...]red, who being so [Page 144] charged, confesseth not the trueth. For answere whereof, if being so charged, the partie answere not at all, then incurreth he wilfull disobedience; which is no lesse a crime then Periurie: and is (thereby) also, to be conuicted. But if he answere vn­truely; then falleth he into another grieuous sinne. for (as it resteth hereafter to be shewed) it is no more lawfull or tole­rable, to lie vnto Gods Magistrate; then it is to sweare falsly a­fore him. And if this were an Adiuration (as himselfe seemeth to encline) and were lawfully done of Ioshua: then by the charge of an oath was Achan bound, to discouer the whole trueth, for so wee reade in the place of Ezra afore alledged, according to Iunius and Tremellius translation: hee Ezra 10. V. 5. adiured the chiefe Pr [...]stes, Leuites, and all Israell, that they shoulde doe according to that poynt, and they sware. Whereas Caluin, by the forme of [...]ose conceiued wordes, which were vsed in other oathes, [...]ongs the people of God, gathereth in his Institutions, that Achan there tooke an oath: the Treatisour neuerthelesse, to confute that excellent, and learned light of Gods Church (for so he calleth him) writeth thus, viz. though that forme of wordes, giue glory to God &c. were vsed in oathes: yet it followeth not, that where­soeuer it was vsed, that was an oath. In deede it must be confessed, that it followeth not ex ipsa vi consequentiae: but by reason of the matter, for that these, or such like were the conceiued, or sette wordes of solemne oathes amongs the people of God: And be­cause in this action, being for finding out of a trueth (otherwise kept secret) it was necessary to be done as sincerely, as mought be: therefore the argument of Caluin is very probable; to proue that it was done by his oath. But the Treatisour seemeth also to admit it, and herein to let this holde goe: and withall little lesse; then to yeelde vp the whole cause. For an offence being made knowen, which is dangerous to the state, & the partie being found by due, and lawfull triall: if after (saith he) these rigorous exacters in so milde, & courteous maner, in the name of God shall entreate, or (if they thinke good) depose him to reueale the trueth in particular (he meaneth, giue him an oath to that effect) no man (I suppose) would finde himselfe grieued, with their proceedings. Wherby, sauing, that he here seemeth to suppose the falling of the lot vpon Achan, to be a triall and a full and sufficient conuiction of it selfe: he doth [Page 145] in these wordes, as plainely establish the oathes that we defend, as may be. But when a tryall, and full conuiction is already made; to what purpose, (other then to feede the hearers curi­ositie) were it; to minister an oath to the partie condemned, (especially hauing no complices more then in this case) that he shall vnfolde & recount vp euery particular circumstance, of the crime that was by him committed. But if by those his wordes, of due and lawfull tryall, he meanes nothing els but some lawfull discouerie, opening way, and occasioning the Iudge, to enter into the parties speciall examination by oath: then is hee come home iumpe vnto them, whome hee so vehemently shaked vp afore.

When a man is Deue. 21. v. [...]. vsque ad 9. found secretly murthered in the fielde, and the murtherer is not knowen, nor suspected: God appointed in his Lawe, that all the Elders of the next Citie thereunto, should vse certaine ceremonies before the Priests (by whose Ibid. ver. 5. appoint­ment, eche controuersie of blood, and of wound was determi­ned) and then sweare, according to this conceiued forme of wordes, viz. Ibid. ver. 7. our hands haue not shedde this blood, neither our eyes haue seene him who shed it: that is, none of vs (euery man swearing seuerally for himselfe) haue done it, nor any of vs knowe, who is the murtherer. Where we see, there was none other detection, nor cause of presumption, but the onely vicinage, and neerenes of place. yet euen hereupon, the wisedome of God thought good to presse them of the next Citie, with this necessary oath, partly of purgation, and partly of Enquirie, euen in a crime ca­pitall. For if any of those Elders were the murtherer, or were an accessary thereunto: was hee not thereby driuen, either to damne his soule by periurie: or els to reueale his owne shame, to the losse, not of his honestie onely, but also of his life? If this being Gods owne lawe, be but equall, then howe can the ex­acting, of parties oathes, being vpon farre more probable, and strong presumptions detected, and called in question, and that for crimes not tending to any mutilation of limme, and much lesse capitall: be thus absolutely challenged for tyrannicall, or vnequall; as they be by some, nowe of late times?

But this argument of ours, the Treatisour goeth about to an­swer by a very strange question, viz. where is (sayth he) oath (in [Page 146] this case) giuen to any particular person? as if that oathe, which were lawfull to be imposed vpon many for one matter; were not also lawfull to be giuen vnto one alone, where he onely is suspected thereof? Where there be many seuerall persons, there must needes be some particular persons, I thinke. Wel, he will then (belike) allowe this oathe to be giuen, so there be many defendants in one cause. But (saith he further) where is oathe to answere Interrogatories vpon vnknowen, secrete, or barely suspected matter? for the felonie is apparant, the offendor onely lyeth hidden: whereas the Inquisitors ex officio haue the man afore them, whome they will examine; but the matter (for the most part) is secret, &c. and many times but a fame of a crime neuer committed. As if this difference (though it were, as it is not generall) could make any diuersitie for prouing a lawfulnes in the one, & an vnlawfulnes in the other? This therefore falleth vnder that head of his So­phisticall deuise of such differences, as touch not the very point in controuersie. Besides, there be Enquiries of office (which ab­solutely he impugneth) some, aswell where the offendor vn­knowen, is enquired of in respect of the apparant crime; as for example in Forgerie, Libelling, Murder, &c. as there be, when the Crime (being but presumptiue) is enquired of; and the person suspected, is apparant, as in adulterie. Hath not the treatisour lear­ned to note the differēce which is, betwixt Crimina transeuntia, viz. where no traces of the crime doe remaine after the facte, as of secret conspiracies, seditious wordes, and adulteries, &c? and such crimes, as be Permanentia, viz. where some euidence of the crime committed, doth stil remaine and continue; as in Murder, Forgerie, lybelling, &c? and yet y e inquirie by the parties exami­nation vpon his oathe (so it be neither Capital, nor for Mutilatiō) is no lesse lawful and necessarie in the one, then it is in the other.

In [...] Leuit. 5. v. 1. Leuiticus, a sacrifice is appointed to be made for certaine sinnes, amongst which this is one, according as Arias Monta­nus doeth translate it forth of the Hebrew. And if a soule, or a man shall haue sinned, and haue heard the voyce of an Ad uration or oathe, and he a witnesse either hath seene it, or doeth knowe it: if he doe not reueale it, he shall beare his owne iniquitie. That which is here said; If he haue heard the voyce of an oathe, the Geneua tran­slation vttereth thus in the Margent, (as if it were neerer to the [Page 147] Hebrewe then the other in that text) viz. If the Iudge hath taken an oathe of any other. If this then be the meaning, we are hereby bound to reueale what we haue seene, or knowen touching that; which the Iudge seeketh to finde out, by another mans Oathe: yea, though we be not at all pressed therein; much more ought we then to tel what we knowe or haue seene, touching the matter; when we our selues are particularly so cōmanded by the Iudge.

Saint Ang. in quaest. Leuit. ad ca 5. quaest. 1. Angustine expoundeth it of this case, viz. where a man heareth another sweare, and depose falsely. For (saith he) this, that place seemeth to saye, that a man sinneth, who heareth ano­ther sweare something, that he knowes to be false, if he hold his peace. But he is then said to knowe, either when he is a witnesse of the mat­ter deposed of, or did see it, or was priuie to it, that is, did by any meanes knowe it, as either by seeing it, or by hearing him speake of it, that now sweareth otherwise. So that he leaueth it at large, to ex­tend to Oathes (falsely) taken, either before a Magistrate; or pri­uately, or how else soeuer.

Iunius in his second edition of Annotations vpon this chapter, restraineth it onely vnto such vaine, and rashe oathes, as men sweare extraiudicially: making him that heareth another to sweare (without reprehending him) to be guilrie of sinne him­selfe, as no doubt he is. But surely this interpretation of his, can­not be grounded vpon this place: at least the place cannot (by any meanes) be onely restrained vnto this case. For the matter concerning which a man heareth another sweare, is the thing (here) principally considerable; and not the very Oathe it selfe: because it is not onely said: If a man heare the voyce of an oathe: but it is also added (as most materiall) & ipse testis vidit, & sciuit, which matter he, as a witnesse hath seene, or otherwise, by some meanes hath knowledge of; if he shall not declare it, or reueale it, he shall beare his owne iniquitie and sinne. Therefore it is the matter which the by-stander is able to witnesse of (by reason of his sight, or some other meanes of knowing it) that (for the auoy­ding of sinne) must be declared.

Againe, if it were onely meant of him, that heareth another blaspheme, or vainely, and falsely, sweare, and doeth not repre­hend, and rebuke him for it: then could not the verbe of Decla­ring haue bene vsed, but rather some worde of rebuke, or repre­hension. [Page 148] Thirdly, if it were meant onely of the Act of swearing that is not rebuked; then needed no mention to haue bene made, of any other sense, but of hearing onely. But we see, that there is mentioned seeing; and also (with a disiunctiue) any other meanes of knowing it, besides hearing of the oath: and therefore, that meaning which Iunius giueth thereof, cannot (possibly) be the very true sense of this place. Nay Iunius himselfe in his first Annotations, confesseth the most to holde, that it ought to be vnderstood thus: viz. that he sinneth, who heareth an oath giuen to another man touching any matter, whereof he hath know­ledge; if hee doe not therein disclose what he knoweth. So that whether the other depose vainely, falsely, or not, is not here spo­ken of, or to be attended: but whether a man conceale his know­ledge of a matter in question, that is conuenient to be knowen vnto a Iudge. for it is he, that hath authoritie to vse the voyce of an oath, or of that adiuration or charge vnto another, which is here spoken of.

By this sense hereof, giuen by the most, and flowing easily from the very wordes themselues, may be gathered; that an oath may be giuen to the partie enquired of indefinitely, as the Iudge (according to lawe) shall thinke good to proceede, euen before any witnesses bee produced against the partie: that this voyce of an oath and charge to sweare, may be giuen; before it be knowen whether any, or what witnesses can testifie therein: and that a man knowing the trueth touching a matter whereof another is enquired of by oath, ought (for auoyding of sinne) to testifie, and to declare his knowledge therein.

Yet because in that place, no mention is (expressely) made, of any other person but of him, that heareth such oath, who also hath seene or knowen something, and who is to declare and re­ueale it, or else to beare his owne sinne: therefore it is also (very probably) by some taken to haue place, when a mans owne selfe is adiured or charged by the Magistrate, to take oath. For the person of the Magistrate, or some other must needes be vnderstoode besides, though none be expressed; because it is sayde: If a man haue heard the voyce of an oath, whereby some other person, then the hearer himselfe, is necessarily im­plied. For albeit the Hebrew interpreters do vnderstand it of that [Page 149] adiuration with curse, which was done by the Priest: whereby he (vsually) cursed any whosoeuer had committed some particular apparant crime, though the person were vnknowen & vnsuspe­cted, if they would not reueale it, according to the place afore alledged, out of the 29. Chapter of the Prouerbs: yet the Chal­dee Paraphraste, that writ in, or before Christs time, and of all Interpreters is of highest and most vncontrolled authoritie, vn­derstandeth it of the Iudge, and reades it thus, viz. the voyce of Adiuration or Execration made by the Iudge.

And then out of both these Interpretations doth follow: that (without sinne) a man cannot but testific, both against another enquired of; for it is said, whether he haue seene: & also against him­selfe (if it be required) for it is said, or haue knowen of it. which may as properly be referred to a mans own fact, as to any other mans: & the rather to his owne; because, a man is least ignorant of his owne facts. And vpon this latter acception of the place, it doth follow; that a Iudge, and Magistrate may lawfully tender & vrge such oathe, and a subiect ought not to refuse it: because hee shall beare his owne sinne, for hearing the voice of an oath giuen, and for not reuealing his knowledge in that matter.

When a man doth deliuer money or stuffe, of trust, Exod. 22. V. 7. & 8. to be kept by his neighbour; if it happen to be embezelled away, and there­fore thought to be stollen, if the thiefe be not certainely knowen, or found: he, to whom they were so deliuered in deposito, though he had nothing for his paines, nor there be any presumptions against him, that he hath withdrawen it: yet (by the lawe of God) must take a necessarie oath, of purgation and Enquirie (vpon the other mans onely suspition) before the Iudges; not onely, that it is stol­len (which might iustly perhaps be doubted) but also, whether he himselfe hath put his hand; that is by any direct, or indirect means haue fraudulently dealt, touching his neighbours said goodes, or no?

The same is also a little after established by God, touching a­ny Ibid. V. 10. &. 11. quicke goods, happening to be left in deposito: For if a man deliuer vnto his neighbour to keepe; asse, oxe, sheepe, or any other beast, and it die, or be hurt, or be taken away by enemies, and no man see it: An oathe of the Lord shall be betweene them twaine, that hee hath not put his hand vnto his neighbours goodes, and the owner of it shall take the oathe, and he shall not make it good. where appeareth, [Page 150] that vpon the mutuall suspition onely, of the one against the o­ther, both the parties are to take such oathe, which, though it doe tende to the discouerie of a mans owne shame, dishonestie, fraude and dammage (if hee happen to bee guiltie) yet is hee of necessitie to take it, or else to bee holden pro confesso & conuicto; and is so well allowed also to bee giuen by the Iudges, and to be taken by the parties; that it is there called, an oath of the Lord.

Nowe that hee must necessarily take such oathe, though the cause bee criminall, so that hee must eyther discouer his owne turpitude, bee sinnefully forsworne (if hee bee indeede guiltie thereof) or else bee conuicted as guiltie for his con­tumacie; doeth very plainely Leuit. 6. ver. 2, 3. 4 & 5. appeare by Leuiticus: where a sacrifice of attonement for such a sinne of periurie is prescribed, besides satisfaction vnto the partie wronged. If any doe sinne (saieth the Lorde) and denie vnto his neighbour that which was taken him to keepe, or that which was put to him of trust, or doth by robberie or by violence oppresse his neighbour, or hath founde that which was lost, and denyeth it, and sweareth falsely: for any of these things that a man doeth, wherein hee sinneth: when (I say) hee thus sinneth and trespasseth, hee shall then restore the rob­bery, &c. So that hereby is manifest, that in sundrie criminall matters, euen of a mans owne turpitude such as bee prohibita quia mala, hee may bee vrged to a necessarie oathe, and name­ly touching his deteining (with deniall) of goodes left (vpon trust) with him: also touching robberie, violence, and oppression by him supposed to be committed against his neighbour. But there coulde neuer be any possibilitie in a matter secretly carried, ei­ther of bewraying a mans selfe to his owne shame, losse, or else for swearing himselfe, as is noted by this place; if he might safe­ly, nay if he were bound in conscience to do (as these Innouators now pretend, and practise) viz. to refuse to answere directly, and particularly, to any of these crimes that bee asked of him, with oath, or without his oath, but might lawfully put it ouer to bee prooued onely by witnesses. and then were it wholly in vaine to appoint sacrifice for a sinne: into the danger of which sinne a man coulde not possibly fall, except he would first commit ano­ther sinne.

[Page 151] Seeing then by the equitie of Gods owne Iudiciall Lawe, in a matter criminall, and of a mans owne turpitude, he may be examined, and must necessarily answere by oathe, or else shall be holden conuicted, euen vpon a priuate mans suspition alone, see­king therein but his owne particular interest and satisfaction: how much rather vpon sound, and good detections, and presump­tions, may this be vrged by a Magistrate, and ought not to be de­nyed by the subiect, where a common good to an whole Chri­stian state is sought, and the parties owne reformation, by due correction and punishment, concurring besides, with the lawes of the Lande, that iequireth this parte of obedience in all sub­iects?

This Iudiciall, and decisorie oathe heere spoken of, the Treatisour calleth a publike oathe, in respect (as it seemeth) it is openly, and Iudicially giuen before the Magistrate; and con­fesseth it to bee necessarie: notwithstanding it bee but tou­ching a priuate matter of goodes, betwixt partie and partie. and therefore à minori ad maius: or (as Lawyers speake) à fortiori, it must needes bee more necessarie for a publike crime, then for a priuate trespasse; because the poison and malignity of the publike, may preiudice, and plague the whole common weale: if not alwayes directlie, yet by the lewdnesse of the example, and may giue cause of offence vnto the well dispo­sed.

If a man Num. 5. ver. 14. bemooued with a iealous minde, or (as the Hebrewe vttereth it) if the spirite of Iealousie come vpon him, so that hee is iealous of his wife, that (perhappes) is defiled: or if hee haue a iealous minde, so that hee is iealous ouer his wife which is not defiled, and so the matter doubtfull: Ibid. vers. 13. Ibid. vers. 15. Ibid. vers. 19. 20, 21 & 22. then the Lorde in such case appointeth, that the man shall bring his wife to the Priest, &c. and the Priest shall charge her by an oathe, and say vnto the woman: If no man hath lyen with thee, neyther thou hast turned to vncleane­nesse from thine husbande, be free from this bitter and curssed water. But if thou hast turned from thine husbande, and so thou arte defiled, and some man hath lien with thee besides thine husbande, (then the Priest shall charge the woman with an Oathe of cursing) and hee shall saie vnto her: The Lorde make thee to bee accursed, and detestable for the oathe, among thy people, [Page 152] and the Lorde cause thy thigh to rotte, and thy bellie to swell: and that this c [...]rsed water may goe into thy bowels, to cause thy belly to swell, an [...] thy thigh to rotte: then the woman shall answere, Amen, Amen.

In which course of proceeding, I obserue to the purpose in handling, that this straite Enquirie most dangerous to the bo­die and soule of the woman, if shee sweare falsely: is grounded onely vpon the iealous suspition of her husband: that it is in a crime capitall to her, if she be guiltie, and shall choose to confesse it; rather then to forsweare her selfe (with hazard of soule, and of a most loathsome disease of the bodie) for an adultresse (by the same lawe) was to be stoned to death: and that it is of great tur­pitude vnto her, and is prohibitum quia malum: and lastly, that it is in a hidden, and secret crime euen in thesi, of his owne nature, and in generall. For the slender remnants of honest, and vnho­nest, left euen to the very reprobate, euer since the fall of our first parent, doth remooue this action (euen where it may be lawful­ly committed) from the sight, and knowledge of others, so much as may be.

And in this Ibid. V. 13. place, it is hidden and secret exipsa hypothesi: be­cause the case is put, that there neither bee witnes, nor shee taken with the manner, and yet the husband hath her in iealousie. So that if God (in his diuine wisedome) found it equall and iust, for satisfaction onely of the strange humour of iealousie, not onelie (vpon paine of conuiction) to make her vndertake so perillous a kind of purgation, but also to charge her by an oathe, and a most solemne curse, to declare the trueth in a crime of this quality, and consequence to her life: howe can the wisedome of those, that chalenge oaths of farre more apparant mildenes in diuers points noted, stand so opposite to the wisedome of an whole Realme for many ages together: and being so strongly warranted by the wisedome of God, both in this, and the former Iudicialles, seruing for the gouernance of his owne peculiar people?

In answere of this example out of Gods lawe, the Treatisour saieth, that the woman is not heere called for ex officio: but vpon the complaint of her husband. But if it be conuenient and equall, vpon that most slender ground of iealousie, and vpon the husbandes suspicious denunciation, who perhappes is weary of his wife, and [Page 153] mindeth to put her away, if his iealous humor in that behalfe, be not satisfied: how much more then is it equall and iust vpon the Iudges office to be done, who is no way priuatly interessed, & for the satisfaction or preseruation of the church, or common weale, to remoue a common scandall and offence, by the parties clea­ring, or by his punishment? The consequence of this mine ar­gument to be good, for proofe of a farre greater equitie, in the one then in the other, viz. rather to minister such oathe of office, then vpon an Accusers complaint, the lawes, both Ciuil and Ca­non, and the customes of all nations abroade, doe warrant vnto vs. all which, doe permit an oathe touching a crime, to be mi­nistred vnto the defendant ex officio Iudicis, and yet they all doe denie it vpon an accusation, or vpon a complaint made by a voluntarie and priuate partie. And therefore this difference by him taken is such, as maketh flat against him: without working of anie diuersitie, to inferre an equitie in the one, and an vn­iustice in the other, as is pretended. therefore vntruely, and vainely doeth hee surmise, that out of this example we wil con­clude, that euery Iudge Ecclesiasticall, to satisfie his iealous suspi­tion of any crime, may appose by oathe, and compell men to their pur­gation: a matter repugnant vnto reason, vnto lawe, and vnto all practise. For no mans onlie bare suspition, besides an husbands; can (by any equity) worke an interest to driue an other to purga­tion of such a crime, by his, or her oathe.

The examples also of godly men reported in Scriptures, doe sufficiently condemne the froward disobedience of refusers of such oathes, in these dayes. For they being asked (sometimes) particular questions dangerous to thēselues (if they had not stood cleare) and, sometimes charged (euen but in generalitie) to an­swer what should be demanded of them, they vsed not any such friuolous tergiuersations, and euasions, as this sorte of people, and as Seminarie Priestes doe. that is to say; Let me knowe euery point afore, that you will aske me, and then I will tell you what I will doe: or I will answere so far as I am bound by law, and by a good conscience, whereof (by your leaue) I my selfe will be Iudge. or I will not sweare to accuse my selfe, or my brother, for that is contrarie to cha­ritie: or where be mine accusers, let thē stand forth? or if you haue any thing against me, proue it by witnesses: with such like a number.

[Page 154] For when the Prophet Ieremy Ierem. 38. vers. 14, 15. was charged by the King in a generalitie, to answere that which hee woulde aske him; hee stoode not vpon refusall, till hee might knowe what it was, but made this doubt onely, whether if hee tolde trueth, the King woulde not kill him. which when the King had promi­sed hee woulde not, then Ieremy condescended to answere what hee woulde demaunde of him. signifying thereby to vs, that being asked by a Magistrate, if it were not a matter ca­pitall vnto him, hee ought, and woulde discouer it. If this were done vpon an oathe, then must wee doe the like, in the like case also. If hee did yeelde to answere vnto Interrogato­ries vncertaine, and vnknowen vnto him both in generalitie, and also in particularitie, and yet thought himselfe bounde to saie the trueth without oath: then much the rather would hee haue done it vnto those, whereof the qualitie he should haue knowen afore hand; but especially vpon his oath. And so ought wee, being so deepely charged. Yet these questions so gene­rally to be propounded vnto him, might haue beene of matters, both criminall and very penall vnto himselfe, and vnto others also.

When the same Ierem. 37. vers. 13. & 14. Prophet was charged, with a particular crime, of intended defection and fleeing to the Chaldeans, by Irijah a chiefe officer, sitting Iudicially in the gate of Beniamin: hee did not refuse directly to answere, by putting him off to prooue it by witnesses, or by anie such like dilatorie: but an­swereth roundely, and truely, in the very contradictorie (as it were ioyning issue with him) and sayeth: That is false, I flee not to the Chaldeans. Nowe, if the Prophet had beene guiltie, woulde hee haue falsely denied it, or haue made anie shiftes to auoyde it, thinke yee? or woulde hee say vntruely, being vn­sworne, more then being sworne? I thinke no man will so ima­gine of the holie Prophet. and therefore (by this example) a Ma­gistrate in authoritie or a superiour, must bee directly dealt with, in questions pertinent, that he shall aske; whether vpon oathe, or without oathe; so farre as godlie Lawes doe require, albeit the matter be criminall, (as it was in this case) vnto the partie Interrogated.

When 2. Reg. ca. 5. Elisha the Prophet (vpon none other detection but [Page 155] diuine reuelation) entred to the examination of Gehazi his ser­uant, touching a criminall matter; and that without any accuser formall, or representatiue, besides himselfe: did hee not require an answere of him; and was not the seruant (before God) bound to answere him, and that truely? If heere it bee saide, that he ministred none oathe vnto him, it is true: yet was it no more lawfull for Gehazi being his seruant, and vnder his authoritie, to deny it by falsehoode, (as hee did) or to haue answered not directly, or else nothing at all; then it would haue bene for him, to haue slatly forsworne it. So that euery one in authoritie, that requireth an answere of a guiltie person (being vnder his power) in a matter of crime: must needes either driue him to a lie, which Sapient. 1. slayeth the soule; or else to accuse himselfe of a matter dishonest, as these men speake, and gainesay.

When Peter, and Iohn Act. 4. V. 7. & 8 were examined in the great Coun­cell vpon this Interrogatorie; By what power, or in what name they had doone that miracle? Peter full of the holy Ghost, answered plainely and truely; though (happely) it might haue beene capitall vnto him. Then what are they full of, who being requi­red by authoritie to answer vnto matters of no such danger, vnto them; doe neuerthelesse refuse to answere directly, or who will not answere at all? for vpon a mans owne confession Iudiciall, though he be not sworne, he may aswell be conuicted, as if hee had answered vpon his oathe.

In the proceeding Act. 6. vers. 11. against Saint Stephen, there were (in trueth) none Accusers, but those, who (by subornation) de­nounced him to the Priestes, and who are twise Ibid. V. 13. & ca. 7. vers. 58. called witnesses, because they deposed against him. yet when the high Priest as­ked him Act. ca. 7. vers. 1. &c. thus: Are these things so? Stephen refused not to make answere, and that truly; howbeit, they made his Apologie to be capitall vnto him.

Likewise when the Act. 21. vers. 38. & 39. Captaine asked of Saint Paul, whether hee were not that Aegyptian, which had made a sedition &c. Paul answered directly, and slatly denied it.

Likewise the same Saint Paul Act. c. 24, 25. & 26. in all his other seuerall con­uentings before authoritie, mentioned in the Acts (euen at the suite & accusation of a partie) refused not particularly, & truly to answer to all that was obiected, by confessing some, & denying [Page 156] other some of the crimes, by his aduersaries, and accusers im­puted to him. But if hee had learned the readie way that is nowe deuised, not onely to answere accusers obiections, but the Magistrates owne questions: hee might haue wiped them off quickely (without such long Apologies) and haue wil­led them onely to prooue what they sayde: yet neither (ex­pressely) affirming, nor denying any thing. No doubt, though the Apostle, or any of those other godly men mentioned, had beene guiltie of anie thing: yet being duely asked, they would not haue stood mute, nor haue answered doubtfully, nei­ther would they haue affirmed more without it, then they would haue doone vpon their oaths, if the course of the proceeding had admitted it, and that their oathes had bene required.

It is therefore well Chromatius in 5. Matth. facit. can. 36. concil. Tolet. quart. saide by an ancient, and learned Writer thus: Dominus inter iuramentum, & loquelam nostram, nullam vult esse differentiam: God makes no difference betwixt our speech, whether it be without oath, or vpon our oath. And Thom. 2. secun­dae. qu. 69. art. 1. Aquinas saith; if he which is brought into question, and interrogated by the Iudge without his oathe, shall answere vntruely, that therein he sinneth deadly.

The olde Christians in the Primitiue Church, were as farre off from these shifts of answering vnto most dangerous Interroga­tories demanded of them, euen by heathen Magistrates; as they were from all vntrue answeres thereunto. which point I minde to make apparant out of such of the Ancient Fathers especiallie, as bee auowched by the Note-gatherer, for condemnation of these examinations, and of exacting men to confesse their owne crimes. so that heereby it may bee the better iudged, howe sclenderlie their Writinges by him quoted, doe serue this turne.

Tertullian herein is very plentifull, especially in his Booke called Apologeticon: yet is hee quoted by the Note-gatherer, for a condemner of examining and interrogating men, touching their owne crimes, of which sort y e very profession of Christianitie was then accounted to be. A Christian ( Tertull. in Apo­log. cap: 1. sayth he) if he be endi­ted, or denounced to the Magistrate, he reioyceth in it: if he be accused, he propoundeth no defence, when he is interrogated, he most willingly confesseth: and when he is condemned, he giueth them, or God thanks. [Page 157] By his complaint in the same place, for that Christians were not dealt with as other offenders were, he both sheweth, what then was practised in Criminall proceedings, by the lawes Ciuill: and also, his owne good lyking thereof. At the Chrstians handes ( Tertul. ibidem. saith he) that onely is expected which suffiseth to stirre vp the peo­ples hatred against them; that is, an onely confession of the name of a Christian, not an examination of his crime: whereas if you hold coni­sance against any offendour, as a mansleaer, sacrilegious, incestu­ous person, or publique enemie to the state, (these being vsuall praises giuen vnto vs Christians) you doe not pronounce sentence vpon the bare confession of the name of the crime: but you enquire also of the qualitie of the facte, the number, place, manner, time priuies, and part­ners. But concerning vs, you obserue no such matter, which you ought no lesse to doe, then with those others. And againe: Ibid. Apolog. cap. 7. We are still said to be murderers of infants, and incestuous persons: yet you haue no care to finde that out, which of so long time hath bene said of vs. Therefore either get it out of vs, if ye beleeue it: or else refuse to beleeue it, because you cannot finde it to be so. Then Ibidem. followeth this: You commaund Christians by a farre stranger kinde of tor­ture, viz. not that they should declare, what they doe commit: but that they should deny themselues to be the men, which in deed they are. Which vrging of Christians to declare what they had commit­ted, that Tertullian doeth not disallow, if the Magistrates would haue taken that course with them, appeareth also by Tertull. Apo log. cap. 3. another place. Whatsoeuer we are charged (saith he) to haue committed se­cretly, though by others the same be committed openly: yet we will an­swere it point by point, or euery iote; yea euen that, for which we are reputed as pestilent persons, as vaine, and as men, worthie to be scor­ned and condemned by others.

Saint Augustine also in his verie booke alledged by the Notegatherer, doeth plainely establish and allowe of Othes ta­ken concerning a mans owne offenses, being in deede such also in their owne nature. If perhappes (saith he) August. serm. 28. de verbis A­postol. cap. 6. thine oathe be vr­ged, (meaning a Decisorie oathe be exacted of thee by a priuate person) say not, I will not sweare: for it commeth of euill which thou doest, but yet of his euil, that doeth exact it of thee. Insomuch as thou hast none other meanes but thine oathe, to purge, and cleare thy selfe, of the matter in handling. But it may (perhappes) be said, that the [Page 158] oathe here meant, may be aswel in a cause pecuniary, as criminal: heare therefore his iudgement in that August. ibid. cap. 10. pointalso. When one that is in deede a wicked thiefe (saith he) heareth another, who knoweth not whether he haue committed that theft, saye vnto him; sweare, whether thou hast stollen it or not: if then he shall answere and saye, it is against my conscience, for a Christian may not sweare: then watch me such a fellowe; turne from him but a little; let that matter alone which thou wast then in hand with; talke with him, of other by-matters: and (no doubt) thou shalt take him swearing a thou­sand times: who (vnder colour of godlines) refused afore, but to take one oath. And the same Father againe, touching the selfe same crime of theft: August. ep. 137. We knewe (saith hee) at Millaine in that place where the memorie of Saints is celebrated, and whereas deuils very strangely, and terribly doe confesse and discouer themselues: that a certaine thiefe that came to that place, with purpose euen there to forsweare the theft, and so to deceaue him, that put him to the oathe: yet was compelled to confesse the theft, and to restore againe the things stollen. both which places doe plainely shewe, that euen for mat­ter of theft, (a crime not simplie capital by the Ciuil lawes which there ruled) it was both lawful, and vsual to tender oathes. And the same father speaking of those who denounce other mens crimes to haue them reformed; he noteth vnto vs, the vse of oathes therein at that time: August. in qu. Leuitic. In denouncing others (saith he) this moderation is alwayes to be vsed by vs, that wee relate it vnto such, which may rather helpe then hurt him, (in case the partie shall sweare falsely) either by correcting him, or by deprecation to God for him: so that he will by confessing his fault, apply this remedie vnto him­selfe.

Saint Chrysostome albeit he aduiseth men (as vnto the better) rather to loose a piece of their money, then to tender a Decisorie oathe, or wager of lawe vnto him, whom they see forward ynough to sweare, though perhaps it be falsely: yet doeth he not deny, but they also might lawfully doe it: and withall testifieth, that such necessarie oathe was in those times imposed to exact mens confessions, whether they had stollen some certaine thing or not. It is Ch [...]ysost. Ho­mil. 16. ad pop. Antioch. better (saith he) to loose your money, then to tender that oathe to your neighbors: for to remitte this when you might, is no small honor giuen to God. For when thou shalt say to God, that for his [Page 159] glorie I haue not adiured, or vrged an oathe of him, who had doone naughtily by stealing from me: for such honour, God will giue thee great meed. By the which sayings of the said ancient fathers it is made manifest: that oaths, touching not onely matters supposed to be offences and crimes; were, and might then be imposed vp­on defendants, by Magistrates: but also touching meere crimes in their owne nature, & that vpon the Instance of a plaintife par­ticularly interessed, but in his goods, and chattels. And yet be all these places (almost) quoted by the Note-gatherer, in condem­nation of such oathe: so hard was his hap to heape vp such store of places out of Authors, which make directly against his owne intention.

This sort of oath was not only thus allowed in the old church: but commanded to be put in vre (as lawfull and consonant vnto Gods word) against persons conuented, and had in suspition for some offence, euen by the discipline of one Church; which the most, and hottest oppugners of this oathe, do reckon to be best, yea, and (almost) to be the onely reformation, that may right­ly be so called. For in the discipline of France concluded of in the Nationall Synodes there, holden in the yeeres 1559. 61. 63. and 65. it was Tit. Eccles. Se­nate or Consisto­rie art. 12. thus decreed: the faithfull may be constrained by the consistorie to tell the trueth; so farre foorth as it derogateth nothing, from the authoritie of the Magistrate. They may be constrained, sayeth that discipline: but there is no compulsion but either Ciuill, which they will not arrogate to themselues, as torture, or rack­ing, imprisoning, fining, &c. or else by the parties oathe, which vpon paine of periurie, if he once sweare, or vpon paine of con­uiction, if hee will not; doth, as it were, constraine a man to say trueth.

And that an oathe is meant (indeede) by this Canon, of the French Churches; wee are taught both by the historie of Campe­rell a Minister of Geneua: and also by that, of those who daunced in one widow Balthasars house, there. For by this Cities exam­ple and modell, the French discipline, was (almost wholy) plotted. For as I haue touched (howbeit to other purposes in the second part of this Apologie) the said Camperell was Inter epistola [...] Caluin. in fol. pag. 421. & 422. vide 2. part. pag. 91. appointed by the consistorie of elders there, to be examined vpō his oth, touching 3. [Page 160] Interrogatories; whereof also two concerned what he had in his very purpose, and intention of minde. The dauncers (because at first they denyed it) were Calu. Farello. pag. 64. epistol. in fol. vide 2. part. pag. 139. put to their corporal oathes to declare the whole truthe of that meriment. But that all Dauncing is holden there as an offense, and grieuous Crime; appeareth by the Ordonnances of Geneua; and by the very last frame of Disci­pline concluded 1571. by the French Churches. So that wee may conclude this place, that this oathe in a Criminall matter, tendered by one in authoritie, being warranted by the politicke lawes of the Realme, or the Church: ought not to be refused, ex­cept there were some direct Prohibition thereof, by the lawe of God. But least of all, may it (without the wilfull sinne of Dis­obedience against the Ordinance of God) be refused by any, being so manifoldly thus approued vnto vs euen positiuely; by the holy Scriptures, by the ancient Fathers, and by other Moderne Chur­ches reformed, in euery of the poyntes afore challenged.

CHAP. XII. An answere to such obiections, as be pretended to be gathered from Diuinitie, Diuines, and from the Examples of godly men; against ministring oathes vnto parties, in matters of their owne crimes.

AFter so many, and (to mine vnderstanding) plaine proofes made out of the worde of God, with some testimonies of the practise, and al­lowance of this oathe in the Primitiue Church: it may be maruailed (perhaps) that any thing (as from Diuinitie) should to y e contrary be al­ledged. Neuerthelesse, besides foure discrepant opinions, one of thē varying from another, & holden by the Innouators about this matter, howbeit, eche of them tending either to the abrid­ging, or els to the whole condemnation of this oathe; (which foure come to be discussed in the next Chapter) there be also sundrie other obiections made against it, which are here to bee considered. Whereof some are pretended to be gathered out of the word of God; and some are taken from Diuines. And of these later sort, sundrie are by waye of Allegation out of their [Page 161] writings; and some others are brought from their Examples. Of those reasons that are pretended to be drawen from the word of God, I place that of the Treatisour in the first place, as most ge­neral; wherehe sayeth; that by this oathe Gods sacredinstitution is greatly peruerted, and forced to another ende and purpose, then he in his diuine wisedome hath appointed. And the Note-gatherer sayth, it is contrary to Gods word. But why, and how it should be found contrarie to Gods institution in his worde, otherwise then is in part afore shewed, in mine Epistle to the Reader, and in other pla­ces of this Apologie, as occasion hath bene offered; they bring no proofe at all. And yet without any better vnderpropping, the Treatisour affirmeth this; euen for proofe of another point; viz. that by this oathe, no due honour can be giuen to God, but that he is thereby rather dishonoured. In deede if it were contrarie to Gods institution; then, no doubt, God is thereby dishonoured. For ha­uing laid downe, that the true vse and ende of an oathe is, that due honor may be giuen vnto God, the trueth confirmed, Iustice main­teined, Innocencie protected, and an ende had of strife, and controuer­sie: he thereupon auoucheth his said former assertion.

It seemeth to me, that all these endes cannot concurre, and meete in euery oathe, though otherwise it will be yeelded most lawfull. For in case the partie himselfe, by an Assertorie oathe doe vntruely sweare (being guiltie of some crime or offence) or whether witnesses shall truely sweare touching the said par­ties guiltines: it is most cleare, that (by such oathes) none Inno­cencie is protected, but nocencie either more heaped vp vpon the partie himselfe; or else discouered by the witnesses. Besides, when Abrahams seruant sware to him, that hee would not take a wife for his sonne, from amongst the Infidels of other nations: Or when a man sweareth allegeance, homage, or feal­tie: or faithfull seruice and obedience to his generall, or taketh oathe of her Maiesties supremacie, and such like: what strife and controuersie (I pray) do these make any end of? Yea, or what Inno­cencie is thereby protected? seeing these oathes bee rather for reteyning the partie in his Innocencie, if hee stand (afore) well affected: or else doe serue, for discouerie o his hollow, and trea­cherous heart; in case hee shall make refufall of them. But let vs see how he prooueth; that the oathe which wee treate [Page 162] of, answereth not vnto the other endes, which are by himselfe propounded. The trueth in controuersie (he sayth) is not thereby confirmed, since there is none issue ioyned in this case, betweene par­ties affirming and denying. As if the trueth of no matter neede to be confirmed by oath, sauing where there is first a iudiciall contro­uersie. Yet he himselfe speaking afore of the endes of an oath, made no mention of this trueth in controuersie; vnlesse hee will say, that he confounded the second of these ends with the last. Furthermore, what controuersie was there betwixt Abraham, and his seruant: or betwixt one that tendereth, and a Iustice of peace, or other, that taketh an oath to the Supremacie? Neuer­thelesse, it hath bene often declared, that the very meanes, or in­ducements which open way to Enquirie in proceeding of Office; are as a partie that chargeth the other; and so a iudiciall con­trouersie dependeth. And that there neede not to be any other formall partie alwayes in iudgement, is many wayes shewed in the second part, euen by Vide part. 2. ca. 15. criminall proceedings mentioned in Scripture. yea what Scripture is there to require alwayes a partie promouent, as of necessitie? Thirdly, there is euen here a kinde of cōtestatio litis, or ioyning of issue in y e proceeding of meere Office: viz. betwixt the denunciation, fame, or some other inducement as it were affirming, and charging: and the parties deniall, that is conuented. which point answereth also to that other argu­ment of his, by which hee would prooue; that Iustice there­by is not mainteined, because there be not three persons in iudge­ment. Furthermore, if such Iustice and Iudiciall course by three, were necessary in euery lawfull oath, by the worde of God: then should all Promissorie oathes bee vtterly vnlawfull. In which, there be but the partie promising, and he to whome the promise is made: yet not iudicially, for the most part.

He goeth further, and to prooue that an ende of controuersie cannot ensue vpon such oath; he vseth (in effect) his next prece­dent reason, viz. because no quarell, nor complaint is anyway de­pending. First there is a complaint made, and depending, before such oath be tendered; and I haue shewed howe. Secondly, if there were not, yet an ende of controuersie might thereupon ensue, in that the partie burdened by presumptions; might (perhaps) thereupon be cleared and dismissed; and so the matter in que­stion, [Page 163] ended. Thirdly, doe not the Lordes of the Counsell, and doe not Iudges and Iustices of Peace (oftentimes) lawfully exa­mine sometimes parties onely, and sometimes witnesses; euen where no Iudiciall sute dependeth? Lastly, hee mistaketh the place in the Epistle to the Hebrewes; if hee imagine that vpon any single mans oath taken, euery controuersie, should (thereby) presently be decided and determine, according to that oath: which matter resteth to be shewed Cap. huius part. vltimo. hereafter.

He sayeth also, that it rather maketh more contention, then endeth controuersie. Indeede, hee, or such other mislikers haue thereupon (of very late time) taken occasion to make great stirres and contentions in this Church, and common weale. But assuredly, this oath (otherwise) tendeth to ending of matters doubtfull, and in question; either by the punishment, or else by the clearing of defendants; and not to procure any accusation as he surmiseth, and calleth it: which is knowen and entred into, afore any oath be tendered.

Yet Innocents hereby (sayth he) are not cleared, since there is no complaint or accusation, iudicially exhibited. as though a man priuately charged with some offence towards his neighbor; may not also priuately cleare, and approoue his innocencie, and inte­gritie vnto him, by his oath; except there were first a publike iudi­ciall complaint, or accusation presented vp betwixt them. Be­sides, I haue afore shewed, that many oathes may lawfully be tendered and taken, where none ende of clearing Innocents, but rather of charging nocents, is propounded. Thirdly, it may fall out, that by such oath, Innocents shalbe cleared; in case no preg­nant proofe shall afterward be brought.

But if all these endes must concurre vnto euery lawfull oath; how is the Treatisour constant with himselfe: at least, how doeth his former argument holde, whereby hee would confute these oaths, for that they were neither (saith he) for assurance of duetie, co­uenant, contract, or promise, neither yet for confirmation of trueth in controuersie? for if any one of these last recited wil serue, to main­teine the lawfulnes of an oath; then what need all the other ends 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 [Page 164] 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 cō ­parison. 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 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 [Page 165] 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 shalbe 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 [Page 166] 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 some one, (though otherwise learned, & godly) misliked (happely) vpon some particular occasion, or vpō priuate pique of humor: that thereupon the thing it selfe should be simply condemned. and if the condemnation by one, haue any such great force; I hope the allowance thereof by many, and the manifold reasons which commend the lawfulnesse, and neces­tie of it; will be of much more force, then one mans breath, and bare saying can be.

Now follow the Note-gatherers quotations of diuines against this oath: how beit without any allegation set downe. But first let vs speake of those, which are from the ancient Fathers.

[Page 167] In the treatise of Origen in. 5. Matth. tract. 35. Origen, which he quoteth; I find two sayings touching oaths, the one of which it is likely he meant. Indeed we find (saith Origen) in the law, the vse of Adiuring; as in the booke of Num. 5. V. 19. Numbers, and in the booke 1. Reg. 2. V. 16. of Kings, but I am of opinion, that a man which will liue according to the Gospell, ought not to adiure another. for not to adiure at all, is like to that commandement of the Lord him­selfe in the gospell; thou shalt not sweare at all. And againe, it had not beene seemly, that the Lord, vpon the adiuration of the high priest, should haue answered him, as though he had bene thereunto compelled against his owne will: and therefore he neither denied himselfe to bee the Christ the sonne of God, nor yet plainely confessed it.

But if here by adiuring be meant all vrging of any other to sweare in what cause soeuer, whether it be by a Magistrate, or by a priuate person; for a priuate, or a publike cause; in iudgement, or out of iudgement, as the first of them, by the generalitie of the wordes may import: then doth this saying condemne all oathes simply (other then such as bee voluntarily taken) no lesse then it doth those oaths, that are imposed, touching a mans owne crime, whereof we speake. so that, in such an vnderstanding, the Note­gatherer himselfe (I trust) will not allow it: least both his owne, and the iudgement also that hee imputeth to Origen; be both touched, with a spice of Anabaptisme.

Therfore for clearing of Origen, and also some other of the fa­thers (hereafter by occasion of his quotations to be alledged) frō so foule an error; and from contrariety also vnto themselues in o­ther places: the generalitie of certaine their speeches, as it were in an absolute condemnatiō of oaths, as might seem at first sight; must be all of them restrained, either vnto accustomable vaine swearing, which men vse in common talke; or else to the exacting and driuing of defendants, to sweare, & to wage their lawe by ne­cessary decisory, and iudiciall oaths, for a trifling peece of mony, or goods: notwithstāding, the plaintife perfitly knoweth asorehād, that if the defendant take it, hee is thereby induced into periury: Or lastly vnto rash, & vnaduised oths, or not being in y e takers po­wer to perform. That al their speeches seeming absolutely to cō ­demne al oths, ought none otherwise to be vnderstood; you shall haue cleare testimonies frō themselues, euen in those very places (for y e most part) that be quoted by y e Note-gatherer. So far is it of, [Page 168] that any of them directeth his speeches against this kind of oath that we defend.

Now then for the clearing of the first point; that is to say, that diuers of such their Inuectiues, are directed against vaine, and cu­stomable swearing in common talke. Saint Aug. Ser. de de­coll. S. Ioan. B. p. Ser. 10. Augustine sayeth, it is no sinne to sweare truely: but in that it is agreeuous sinne to sweare that which is false; no doubt hee is farre from the sinne of periurie, who sweareth not at all.

Saint Chrysostome, who in euery of his Homilies (almost) to the people of Antioch, is most earnest against swearing; insomuch as in one place he Chrys. Homil. 15 ad pop. An­tioch. saith, the nature of an oath is to pierce further, and more dangerously, then a sword: yet he she weth how his spee­ches thereof (in part) are to be expounded; and that he doth not condemne all oathes simply. which absurditie, the Note-gatherer must first yeeld vnto; before he can make one droppe of that his own thick myst of quotatiōs, to serue the turn that he entēdeth.

It is no masterie (saith Chrys. Homil. 4. in sine, ad pop. Antioch. Chrysostome) to ouercome the custome of swearing, if we will but affoord a little indeuour to that ende. And a little afore that thus: Cast out of your mouths that wicked custome of swearing. And elsewhere, to like purpose: an oath (sayth he) hath this euill in it, that whether it be broken, or kept, it maketh a man subiect to punishment. But that he heere meaneth only the priuate custome of swearing; appeareth by the reason added; for Idem. hom. 14. the continuall swearer, sometimes willingly, sometimes vnwillingly; some­times when he knoweth it, & sometimes when he knoweth it not; when he speaketh in earnest, and when he speaketh in iest; & ofientimes be­ing carried away by anger, or other perturbation; can not choose but for sweare himselfe withall.

To the second point, viz. that their meaning else-where is of waging lawe, by Iudiciall and decisorie oathes, tendered by priuate men abou [...] debts, and chattels, when by such oathe, the party to sweare is most likely to be forsworne: First Athan de pass. & crace Dom. col. 3. Athanasius saith; Let your yea be yea, and your nay nay: thus farre we that be Christi­ans may confirme our speeches: but let vs not proceede so far as to flie vnto oaths, and to call God vnto witnes, for corruptible moneis sake. And in that sense is it to be taken, which hee saieth a little after: men do Athan. Ibidem. not sweare only for worldly busines sake, [...]ut rather to cōfirme truth; and to shew that which they say to be voyd of falshood. therfore [Page 169] if he that sweareth be true, and to be trusted, what need is there of his oathe: but if he be not to be trusted, why do we commit such wicked­nes, as that for wretched, and mortall mens cause, we should call God, who is aboue all, vnto witnes?

S. Chry. Hom. 15. ad pop. Antioch. Chrysostome also saith thus in this behalfe: Let vs not driue our brethren to an oathe. O man, dost thou know what thou dost here­in? in that thou makest him sweare vpon the holy table, where Christ offered vp, is laide: wilt thou euen there sacrifice thy brother? And a­gaine, it Idem. hom. 16. is better that we lost our mony, then to offer our brother an oathe, that he had it not from vs, or owes it not vnto vs. Likewise, if a man say vnto me (saieth Chrys. hom. 26. ad pop. Antioch. hee) take thine oathe: let him heare, that Christ hath forbidden it; and so I shall not neede to sweare. But how this is meant by him, is declared in the same Homilie: but Ibid. hom. 26. you will say vnto me (saieth he) there be many, which if they be not sworne, will not sticke to defraude me of my money: yet will they not de­ny it vpon their oathes. Man, thou deceiuest thy selfe; for hee that is vsed to steale, and to iniurie his neighbour, will not make doubt (for the most part) to for sweare himselfe. Where, we may note, that albeit Chrysostome disswadeth plainetifes from it; yet oathes in those dayes lawfully were tendred to such, as were sup [...]osed to haue stollen other mens goodes. Which kinde of oathe for stol­len goodes decisorily, or iudicially tendred; that Chrysostome did not simply condemne; may be gathered by his words then next following. But Hom. 26. ad pop. Antioch. what should I speake (saieth he) of such oathes, and omit Iudiciall oathes, that are vsed in courts, for which so much can not be saide: for there, euen for a matter of tenne halfe pence; oathes are taken, and periuries also be committed. And therefore a little after; Lo, I say vnto you and protest, that ye reforme these superflu­ous Iudiciall oaths, and bring rather all such matters vnto me.

Saint Aug. serm. alte­ro viz. 11. de de­collat. sanct. 10. han. Bapt. Augustines allowance (in some sort) of the like oaths, is also manifest. If any (saieth he) shall prouoke thee to sweare, as (happely) supposing he may thereby be satisfied, if thou shalt sweare touching such a matter which hee suspecteth thou hast committed, and (perhaps) thou hast not done it: if in this case (I say) thou shalt sweare, to remoue that false suspition from him, thou dost not sinne, as hee doth who prouoked thee.

But an other more full determination of Saint Augustine, touching that which is meant to be condēned in imposing oaths [Page 170] in priuat causes; seems to me, to be apt, & very sound. In him that exacteth an Aug serm 28. de verbis Domini. oath (saith he) there is great difference, whether he know not, that the other wil sweare false, or indeed knoweth that he wil. For if he know not, and therefore do say, sweare vnto me: it is not sinne then to sweare for his satisfaction, howbeit it is an humane weakenesse in the exacter. But if the case be so, that he which exacteth it, knoweth the o­ther party to haue done it; and yet will compell him to sweare, who is ready thereupon to sweare falsely; then is the exacter a very mur­derer. for though the one do murder his owne soule, by his periury: yet the other that so exacted it, did Manum inter­ficien: is impres­sit, & pressit. thrust forward, and harden the saide murderers hand.

Touching the third, and last point, viz. if their writings by him quoted against oathes, be not directed against them in any of the 2. former respects: then it is, in regard of the vnaduisednes of such oths takē, or for that the matter wherof the party sware, was not in his own power to perform. This may be shewed by a place yet vnexamined, which he quoted out of Chrysostome. For he Chrys. hom. 14. ad pop. Antioch. saith, Not only those who forsweare, but also those, that impose such necessity of periury vpō others, & those who sweare, are guilty of the like crimes, That this is spoken of rash oathes, not lying in their power to per­forme, and imposed also by priuate persons, his wordes following do shew. In shops (saith he) in stage-playes, yeathe Artificer of his apprentice, the Schoolemaster of his scholler, the Mistres of her maid seruāt, do now adays exact oths, for performing of their taske enioyned.

And Saint Ambros. in psal. 118. ser. 14. col. 4. Ambrose in the place quoted, speaketh to none o­ther purpose. for writing vpon these words, I haue sworne, and haue purposed to keepe the iudgements of thy righteousnesse, saith thus: No man sweares well, but he that may know what hee sweares: to sweare then is the iudgement of knowledge, and the witnes of the conscience, &c. haue light, that is the knowledge of the trueth afore thee, when thou disposest thy selfe to take an oathe, so shal not the bond therof hurt thee. The Lord, who came to teach the yong ones, to instruct nouices, and to confirme the persite; saith in the Gospell, sweare not at all: be­cause hee spake to those, that were weake. to bee shorte, hee spake not this to the Apostles apart, but to the multitudes. for he therfore would not haue thee to sweare, lest thou for sweare &c. and a little afterward thus: Follow not therefore any mans example in swearing, if it lie not in thy power to obserue, and fulfill what thou swearest.

[Page 171] But the Note-gatherer willeth vs also (for this purpose) to see an example of Chrysostome, refusing the oath (as he speaketh) and thereto quoteth two Ecclesiasticallhistories. That Sozom. l. 4. c. 17 which is found in Sozomen, is so farre from noting Chrysostoms refusall of an oth, in respect it concerned some crime imputed to himselfe; that there is not so much as mention of an oath, nor of any particular crime. For there is declared only, how the Synod vnder Theophi­ [...]us cited Chrysostome to appeare. and that hee sent vnto them a Bishop signifiyng; that he refused not to be iudged: but that he was readie, (so hee might knowe who accused him, and of what crime) to defend himselfe; yet alwayes prouided, that it should be in a more ample Synode then that was. for he was not (hee said) so foo­lish, to endure them to be his Iudges, who were his manifest ene­mies.

The two Chapters by him also Tripartit. hist. li. 10. c. 14. & 37 quoted out of the Tripar­tite historie, haue no more colour then the other, of Chry­sostomes refusall of an oathe. for none oathe is mentioned at all in either of them, much lesse to haue beene ministred, and ther­fore none coulde bee refused by him. The first of them contei­neth, the returne, and calling home of Chrysostome foorth of banishment, and the particular occasion of the tumulte that thereupon ensued. For his enemies beeing incensed against him, for that hee preached to the people, they sought to de­pose him from his Archbishopricke, vpon colour that hee had ordeined one Heraclides, whome they (though in his absence) accused to haue caused certaine to be whipped, and carried a­bout bound in chaines thorow Ephesus. so that when Chryso­stomes friendes desired to haue a more due course of proceeding vsed in accusing Heraclides; which the faction of Theophilus of Alexandria withstoode; there fell out thereupon, betwixt the two factions great bloodshed, and some murder.

The second of these 2. places sheweth, how whē Chrysostoms accusers were much afraid, lest (to their great peril) he should be acquited: yet his partial Iudges were cōtent to cōdemn him: on­ly vpō pretence; that w tout the decree of a Synode, he had (being indeed disorderly afore suspended) taken vpon him to sit in the Episcopall chaire. These two points (I assure you) are in mine vn­derstāding the nearest in any of those chapters; to y t purpose, for [Page 172] 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 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. q. 4. c. con­suluisti. Gratian; alleadging an epistle of Steuen [Page 173] 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 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 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 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 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.

[Page 174] Oflater Diuines, he also quoteth Tyndall, in seueral places of his works. In y e first of these, I take it these 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 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 happily ought, to take an oath of him. If a man offer himselfe to beare witnesse, the Iudge may, and of some (happily) ought to take an oath: but to compell a man to beare witnesse, he ought not.

I would gladly hereupon aske a question of the Notegatherer (who presseth vs with this mans iudgement) whether hee him­selfe doe (as the words lye) allow absolutely of this, and of other his writings; both concerning oathes and other matters? If hee doe not, but somewhere reiect him; then must hee giue vs leaue also to leaue him; and not to beleeue him; in case he condemne all necessarie oathes imposed by Superiours vpon inferiors, so well warranted vnto vs by Scripture, both in humane, and in diuine matters. But if Tyndall meane but hereby to disalowe, absolute compulsion to take oathes in worldly matters, then may his speech [Page 175] be better accepted. For vpon refusall thereof in these matters, the lawes appoint not the parties to be tortured till hee doe it, which were an absolute compulsion: but either doe punish his contumacie, and disobedience, to the example of others; or els doe pronoūce him pro confesso, which is but a causatiue compulsion. And if Tyndall be thought in his wordes (afore) to condemne also euery causatiue or inducing compulsion: then doeth hee con­trary himselfe. for in his owne example of an oath giuen at ta­king of an office, there is this causatiue compulsion to be found. be­cause there is no man but by his good will, had rather omit such oath, then to take it: & if he take it not, then is he to be put back, from bearing that office; which is at least a causatiue compulsion in case he desire the office. but if he be vnwilling to haue such Of­fice, and yet may haue (as Tyndall sayth) an oath imposed, then some oathes may be exacted, and all be not voluntarie onely.

It is not safe, nor sound, to imbrace without all choise, or dif­ference, whatsoeuer any godly, or learned man hath holden. for being men, sometime they faile, and sometimes (through heate of cōtradiction) they haue their affections like vnto others. And there is no kinde of men (I thinke) now liuing, who with greater facilitie, yea & disdaine too; do shake off all learned writers au­thorities, not only newe, but also of the oldest, (where they fit not their purposes) then such as now be the chiefest, and almost the only oppugners of this kinde of oath; amongs those, who make profession of the Gospell.

If this our plea (neuerthelesse) will not be accepted: I wish the Note-gatherer would tell mee, whether he also will allowe of Tyndals iudgement in the points folowing, viz. though the Obed. of [...], Christian pag. 137. kings (sayth he) by the fal [...]hood of the Bishops and Abbots be sworne to defend the liberties of the Church: yet ought they not to keepe their oathes, but to breake them. then (in his iudgement) not onely they may, but they ought to breake their oathes taken, for obser­uance of Magna Charta, and other matters, at their Coronations.

He elswhere also writeth, Tyndall. pag. ope [...]m. 209. that the lie of Dauid vnto Achish king of Gath, whēhe had killed the people, & sacked the countreis 1. Sā. 27. v. 10. of the Gesharites, Girsites, & Amalekites; was no sinne in him: In that, to perswade a sicke mā, that bitter medicine is sweet, is charitie. & no sinne: And by the like 2. Sam. 17. v [...] 7. &c. example of the dissimulation of Chushai.

[Page 176] Furthermore Tindall thus Tind pag. 207. writeth: If a man go out of the country from his wife, & come not at a certaine day to be prefixed, as within a yere, or so; let his wife be free to marry where she wil. And againe, Tin. pag. 208. If the woman departe causelesse, and will not be reconciled; though shee commit none adulterie; the man ought (of right) to be free to marrie againe.

And towards the ende of his booke of practise of Prelates, as it was first printed in octauo in a Dutch letter; he not only defen­deth it to bee lawfull for a brother to marrie his deceassed bro­thers wife (dying without issue) albeit carnally knowen by him: but vrgeth it vehemently, as a matter of necessitie, and of Gods morall law, at this day to be performed of all Christians. which (no doubt) he writte in hatred of king Henrie the eight, and of his then mariage, with the Q. Maiesties mother. In which re­spect (I thinke) those who after gathered together, & printed his whole workes; did leaue out all that vnsound disputation of his.

But if the Notegatherer, or any other will say, they haue good reason to dissent from him in those pointes: let them then per­mitte it like wise vnto vs (in this behalfe) vpon no lesse reason; especially, if Tindal meant to condemne all oathes simply, which are not meerely voluntarie.

From their allegations out of Canons, and later diuines wri­tings, I come to their examples. some whereof be vrged positiue­ly, and some negatiuely, that is, where this oathe was omitted. Of positiue, that example of Sir Iohn Oldecastell L. Cobham and martyr; mentioned by the Notegatherer, commeth here to bee handled, for his mislike and refusal of this oathe, as is pretended. Yet M. Foxe [...]. Vol. pag. 666. 2. edit. mentioneth no such refusall of an oathe by him, in respect it was criminall; but for that he would not be sworne in all thinges to submit himselfe to the Church, and so take what penance the Archbishop would enioyne him.

The Notegatherer further sayeth, That many examples of like refusing might be shewed out of the bookes of the Dutch, French, and Spanish martyrs, so that it is no new thing. He that voucheth so ma­ny quotations afore, to so small purpose; if he had had such rea­die; it is likely would not haue spared his paines herein, though in trueth, it would haue giuen small furderance, or aduantage to his cause. for vivendum est legibus, non exemplis: Euery re­fusall [Page 177] of a matter by a godly man, cannot bring in an absolute condemnation thereof. But if those examples he coulde haue brought, be like (as he saith) to that of Sir Iohn Old-castles, Phil­pots, Cranmers, or Lamberts: then are they not like to serue his turne; for none of thē refused, in respect they were to be exami­ned of matters criminall, as it commeth to be discussed hereafter.

But hee saieth also, that all the late fierie Placarts in case of heresie, in France, Flanders, Germanie, and Spaine were by in­quisition vpon the parties oath, post accusationem, & denunciatio­nem, so as the partie knewe the matter first. If hee had shewed this which he saith, to be true; and that oathes in case of heresie were not giuen in those countries to the defendants, to the con­trary whereof wee haue direct euidence from writers of those nations: yet serueth it nothing at all to prooue an vnlawful­nesse in this oath, much lesse absolutely: for a non facto ad non ius, will prooue but a sorie argument. 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 [Page 178] 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. & 2. Phil. & Mar. ca [...]. An. 1554. Parliament begun 11. Nouemb. & ended 16. Ianuar. For the sentence against Rogers, who first of all was condemned to be burned; was Fox. pag. 1030. [...]. edit. pro­nounced 19. Ianuarie 1555. viz. the yeere after. Then what mar­uaile is it, when as further then imprisonmēt, 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.

[Page 179] 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. 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 [Page 180] 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 disda [...]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 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 [Page 181] 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 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, [Page 182] 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 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 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 shalbe 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 [Page 183] 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, 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 shalbe his owne Iudge, how fa [...]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 [Page 184] 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 punishmēt 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) [Page 185] 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 [Page 186] 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 gappe. For the proofe of this their assertion; that where winesses may be had, there a man may not be examined vpon his oathe: First they saye, for Iudges finding out by Inquisition what is spoken, or done, they finde two wayes in Scripture. One by witnesse of others, where they may be had; which they goe about to proue by these Deut. 13. v. 12. & 15. Deut. 17 v. 2. & 7. Num. 35. v. 30. Deut. 19. v. 15. Ioan. 18. v. 20. & 21. 1. Tim. 5. v. 19. places quoted in the margent. The other way, by the parties owne testimonie, where witnesse cannot be had, for the thing spo­ken, or done, whereof necessarie inquisition is made, which they would proue, by these other Iosu. 7. v. 19. Exod. 22. v. 7. 8. 10. & 11. Num. 5. v. 13. & 19. places, here also quoted.

But is this a good consequence; these two wayes be mentio­ned in Scripture: Ergo, there be no more but two? or if it were ad­mitted, there bee no moe wayes mentioned for Inquisition of crimes; doeth it followe, that therefore all positiue lawes of Common-weales, & kingdomes, for inquisition, and triall of crimes, in any other sorte are vnlawful, & against Gods worde? what is this else, then plainely to ouerthowe, & condemne (as vngodly) not onely the Inquisition and trial by Iuries and verdicts of twelue men, vsed in this Realme, and not mentioned in Scripture: but also the proceedings Iudicial of all y e world besides, if they do not wholy iumpe in manner & fourme; with y e Inquisitions & trials mentio­ned in scripture? This errone­ous couceit Bar­row held, in his last booke prin­ted at Dordrecht. And so (instead of all our positiue laws) to bring in place, the Iudicials of Moyses (giuen onely to the people of the Iewes) not onely for the equitie of thē, but for the very substance, & fourme of them also? whereby the Priestes shalbe Iudges what is lawe, in euery difficult, & controuersed point; in whose iudge­ments (vpon paine of death) euery man must rest contented.

[Page 187] Neuerthelesse, by this their owne position, I thus proue against themselues; that they doe wickedly in refusing to take their oathes. Wheresoeuer in an Inquisition of a crime, no witnesses can be had, there (by the lawe of God) the parties themselues must take their oathes, and declare the whole trueth. But of their fra­ming of a booke of new Discipline Ecclesiasticall, and Synodical; of their subscribing to it, of putting some of it in practise; of meeting in Classical assemblies, or Conferences; in Synodes, and general as­semblies; of matters there treated of, & concluded against the lawes and gouernement of this Church of England; of secret writing, and dispersing of their slaunderous bookes, and libels, conteining erroneous, and hereticall opinions, and seditious incitements: which last pointes are Prohibita quia mala: And touching the circumstances of these, and euery of them, no witnesses can bee had (as experience it selfe sheweth) for they were kept as close, & secret, as could be; they were done in priuate places, & cham­bers; from whence all other were secluded, sauing the very par­ties themselues (being all principal delinquents) and not called thither, or being there as witnesses. Therefore (by the lawe of God) they ought hereupon to take their oathes, and to de­clare the whole trueth in these matters. For so is their owne position.

Nowe I will examine their seuerall proofes, brought for this opinion. The first is this: Deut. 13. v. 12. 13. 14. 15. &c. If thou shalt heare saye concerning any of the cities which the Lord thy God hath giuen thee to dwel in: wicked men are gone out from among you, and haue drawen away the inha­bitants of their Citie, saying, let vs goe and serue other Gods, which ye haue not knowen: then thou shalt seeke, and make searche, and en­quire diligently: and if it bee true, and the thing certaine, that such abhomination is wrought among you, thou shalt euen slay the inhabi­tants of the Citie with the edge of the sword; destroye it vtterly, and all that is therin, & the cattel thereof, with the edge of the sword. Where you see, the punishmēt is vniuersall (though the first perswasion came happely frō a fewe) and therefore the defection frō God vnto Idolatrie, was there, amongst the men also generall. For the iustice of God is; that Ezech. 18. v. 4. the soule which sinneth, that shall dye. How can this prooue, that no partie to the sinne was examined, but that they were conuinced onely by witnesses? Nay, the contrary [Page 188] rather is manifest. For who is so fit, and so likely to haue know­ledge of things done in a Citie, as those that dwell in it? and therefore the lawe alloweth Citizens, for good witnesses of mat­ters there done, euen when it is for their owne benefit: because (by common entendement) others cannot be had. I will aske then, whether this generall condemnation and execution against a whole citie, might proceede onely vpon hearesay? this were ve­ry vniust and cruel; and it is saide in the text, it must be knowen certeinely. But if vpon certeine, and sure conuiction; then can­not it be otherwise, then by the examination of some persons of that citie, who onely can knowe the certeintie thereof. But these are all parties, Quia quos par culpa, eosdem tenet & par poena, & è conuerso. For God hath appointed this negatiue Iustice in his lawe: that Deut. 24. v. 16. the father shall not be put to death for the children, nor the children put to death for the father: but euery man shall be put to death for his owne sinne. And in the Affirmatiue, it was decreed in a Councell thus: Concil. Tolet. 4. Can. 78. Oportet vt vna poena teneat obnoxios, quos, similis error inuenerit implicatos: such as be guiltie of the same fault, must needes bee subiect to the selfe same punishment. And therefore it followeth, that this Inquisition here spoken of, was founde out by some of the parties owne examinations: rather then by any other witnesses dwelling abroad, and therefore not able to deliuer any certeintie. But in so penall a matter, a man will hardly confesse, without torture or oathe: and Hebr. 6. v. 16. an oathe is for confirmation. And therefore it may happen (by the equitie of Gods lawe) that a man (in a matter criminall, and euen ca­pitall to himselfe) may bee examined by his oathe. Howe much more then, of a crime not so penall?

That other place of the 17. of Deuteronomie, is left at large, without expressing, whether the partie condemned there of Ido­latrie, were to be examined vpon his owne oath, or not. Besides, in matters capitall, and where there is an Accuser (as in some sort is there) no man in this Realme vrgeth an oath. But it is necessa­rilie to be gathered, that at least the partie conuented, did an­swere the Accusation, or Inquisition there, by deniall, before the witnesses were produced: which many of this sorte of men will not doe, either the one way, or the other.

The other two places of the 30. of Numbers, and 19. of Deu­teronomie, [Page 189] doe onely determine; that no man shalbe condem­ned vpon one witnesses deposition onely: and do make nothing to prooue either off, or on; whether a partie may be examined by oath, where witnesses may be had, or not had? except they minde to gather it thus: there be mentioned onely depositions of wit­nesses, to the conuiction of a matter: therefore no course besides, or in any other fourme, may be vsed. But this cannot be; for though the partie denie it, (yea with oath) yet vpon two wit­nesses, shall the matter be established.

And if such collection were consequent vpon these two pla­ces; then albeit a man woulde willingly confesse the matter a­gainst himselfe, he might not be cast and conuicted, till witnesses also should depose no lesse. But this is absurd; in that nullae sunt partes Iudicis in confessum, nisi vt ferat sententiam: and in the Gospell, ex ore tuo teipsum iudico. Besides this, the condemnation by Iuries, were then quite to bee condemned, for vngodly. For they may giue verdict sometimes but vpon one witnesses testimonie, and sometime without any; vpon violent, and strong presumptions onely, which (in hidden crimes) are good proofes. Neither are they of the Iurie to bee accounted as wit­nesses; but are as a kinde of Iudges of the fact. Therefore in Magna Charta, it is called Iudicium per pares, and they much resemble Pedanei Iudices, or Recuperatores in the Ciuill lawe, and pares Curiae in the Feudall lawe, which is practised (chiefly) in Italie, Germanie, and France.

The place in the Iohn 18. ver. 19, 20, 21. Gospel of S. Iohn, where Christ being asked by the high Priest, of his disciples and doctrine; doth answere thus: Why askest thou me, aske them that heard me: for I spake openly in the world: I euer taught in the Synagogues, and in the Temple; whither the Iewes resort continually, and in secret haue I sayd nothing: they doe greatly insist vpon, and vrge; as a commandement to this purpose: viz. that where any witnesses may be had, there a man may not be examined himselfe; but especially touching doctrine publikely deliuered. but they are manifoldly deceiued.

Euery action of Christ is for our instruction saith S. Augustine, but not euery one for our imitation. Therefore of any particular action done or not done, according to seuerall circumstances by our Sauiour Christ (being the wisedome of his Father) we may [Page 190] not gather a generall doctrine of imitation; except wee were sure of all the causes and circumstances then concurring, that so did mooue him, at that time.

When Matth. 26. v. 62, 63, & 64. Iesus was falsly charged by vntrue witnesses, hee answered nothing, though hee were vrged greatly thereun­to by the Priest, but helde his peace. And of holding our peace in like case, Origen Origen. tract. 35 in Matth. thus speaketh: to what purpose is it, to gainesay those, who gainesay and ouerthrowe themselues, by their owne contrarieties: especially seeing it is more worthie, freely and resolutely to bee silent; then to stand in defence to no purpose: for so shall not false, and lewde witnesses insult ouer vs? Yet when the Priest presently thereupon, adiured him by the liuing God, to tell them if he were the Christ, the sonne of God: he made them an answere; albeit in his diuine wisedome he knewe, that they meant to make it capitall vnto him. Nowe, shall wee hereupon gather that whensoeuer our wordes be­fore a Iudge, bee calumniously detorted by false witnesses, to our great danger; and wee vrged: by him to make answere, that wee are therefore bound to hold our peace?

When Saint Iohn Baptist was Ioan. 1. v. 19. & 20. asked by the Priestes and Leuites, a dangerous question, such as if hee had beene (as they seemed to doubt) the Messiah; might haue turned him to great daunger: viz: what hee was: hee confessed, and denied not, but sayde plainely, I am not Christ. So that wee see, such a generall doctrine as they gather, may not be collected out of the former answere of our Sauiour.

Wee are therefore to knowe, that the answere was very apposite and fitte vnto: the question, which was infinite, and generall, touching his doctrine. which no man (otherwise then in generalitie) can answere, and therefore the answere was correspondent to the question. For it was, as if he had sayde thus vnto them: you aske mee of the whole doctrine by mee taught, this is impossible for mee to answere, and to recount vp vnto you. If you thinke any thing therein (par­ticularly) to bee erroneous, or seditious; enfourme your selues by those that haue heard mee, and then what you shall so obiect, I will bee ready to answere. This you may easily doe: for that which I haue taught, I haue done it publikely in the [Page 191] Temple, and in Synagogues, and not in corners. so that you shall not neede to make mee take vpon mee, such an endlesse, and impossible worke, as you might haue iust oc­casion to doe, and to make mee yeelde account, if my teaching had beene in secrete. Whereupon thus I gather against them: if Christ being willed to giue an account of his whole course of doctrine, did therefore refuse, because it was too gene­rall a question to bee answered, and also because it was in publike places onely deliuered by him, (so that they might easily first enfourme themselues what they tooke to be amisse, and worthie to bee obiected against him) in somuch, as hee had sayde nothing in secrete; which if hee had, might haue giuen (in trueth) iust cause vnto them to examine himselfe, what poyntes they were, that hee so carefully did auoyde the light to teach them in: then these men, that bee asked not of their doctrine in generall, but of their particular acti­ons in this and that poynt, in this place, at that time, done not publikely, but (of set purpose) so couertly, as might bee, so that no witnesses (but such as bee also parties) can bee had: haue no iust defence nor colour of it, out of this place. And therefore of such hidden crimes (by their owne position) they ought to answere by their oathes.

Besides, Christ was not detected (afore) of any particular matter, wherewith they might charge him: neither if he had beene, was it his principall purpose (otherwise then that hee would leaue testimonie, that hee died an innocent) to stand to cleare, and excuse himselfe particularly; that the determinate Counsell of God, might take place with him.

By the premisses may appeare, that the three reasons which they bring, to prooue this maner of question, and Inquisition, mooued by the Priest, to bee vnlawfull; are al­together needelesse, seeing no man defendeth the like. But for proofe either of that more generall position, viz. where wit­nesses may bee had, a partie may not be examined: or of the more particular, viz. that a Preacher may not be asked of any poynts of his doctrine, by him publikely deliuered: neither doth this example of Christ, nor the places which they bring, and are here 1. Cor. 14. v. 30. 32. 1. Thess. 5. v. 20. 21. Amos 7. v. 14. Gen. 19. v. 20. & 10. 12. 2. Tim. 2. v. 2. 1. Tim. 5. v. 19. quoted, make any thing at all. I would those that haue leasure, would but [Page 192] turne to them; that they may know, with how litle either iudge­ment, or else sinceritie, these men do handle the word of God.

The place to Timothie, that against an Elder or Priest, an accu­sation shall not be admitted, without two, or three witnesses: maketh neither hote, nor cold to proue, that wheresoeuer witnesses may be had, the partie may not be examined vpon oath. I haue heard it brought, to exempt them from being enquired into at al; except two witnesses did first verifie the accusation, before it be prefer­red. But it serueth both these turnes alike. First, that place is meant, that it shall not bee holden otherwise as sufficient to conuict him: the word is [...], allow it not. If it were meant of the first enterteining of an accusation, then these inconuenien­ces would follow. that the accuser who at his owne perill debet venire paratus, should (by the very receiuing or reiecting of it) knowe afore hand; what his witnesses haue deposed, or can de­pose. Secondly, that witnesses might bee examined to a mans preiudice, parte rea non citata, or els that they must be twise exa­mined; once before the accused doe appeare, and once after­wards. which is a needelesse trouble, where processe informa­tiue is not vsed.

Besides, those men (that clayme it) are proceeded with, not per viam [...]. of accusation, as Saint Paul there speaketh, but by way of Enquirie. And yet there be witnesses (in sorte) of their crimes, before the accusation be receiued. For if vpon the fame they bee called, then a multitude (as it were) testifieth against them. if vpon Iudicia, Euidences, or presumptions, the like is to be said: because these are equiualent vnto a fame, as hath beene touched before. And to satisfie them the more herein, the lawe requireth not vpon an accusation; that the partie should be exa­mined vpon his oath, touching the crime. But they (because they will be wayward, and ouerth wart in all things) pretend it to be lawfull in a court ecclesiasticall, for a man (when there is a prose­cutor, as in the Starchamber) to be put vnto his oath, for the trueth of the very crime: but not when it is ex officio Iudicis. which, if the law ecclesiasticall, would warrant; the Iudges thereof might soone haue the oathes of these men, by their owne position, and graunt. For who knoweth not, how easie it were to enioyne any officer of the Court, or one of the Commissioners friends, or [Page 193] seruants; to preferre the matter, and to stand forth (as they terme it) an accuser?

The two places remaining out of the 22. of Exodus, & the 5. of Numbers, I haue touched in the eleuenth chapter afore. shew­ing there, how they prooue, that a man may be examined vpon his owne oath, in a criminall cause, though there be no witnesse, but a bare suspition of the aduerse partie. But that a man may in no other case besides, be examined, where (perhaps) witnesse may be had (which is their purpose in this place) there is no colour, nor shadowe in either of them: execpt they haue learned to reason out of euery single place of Scripture, both affirmatiuely and ne­gatiuely thus, viz. This may be done in that case: and therefore, no­thing else may be done.

For the proofe of that second position, viz. that if a Magi­strate doe require a Preacher to answere vpon his oath, touching any doctrine by him publikely deliuered, he may without breach of his due­tie, lawfully refuse to sweare: I doe see nothing further by them brought, that is worthie the answering. For whereas Caluin, and other Diuines say, that the vse of oathes is vpon necessitie, and for matters hidden: it is not meant by hidden, that an oath cannot lawfully be giuen, where witnesses may be had: but where the thing is neither notoriously apparant, nor confessed by the partie. For so long is it hidden to the Iudge who must proceede secundum allegata, & probata. otherwise, it would folow hereof, that an oath might not be giuen to a witnesse, because the matter is knowen, and not hidden vnto him. And for the necessarie cause of giuing it; what can be more necessarie, then the discouery & suppressing of sinnes, and offences, both in Church and Common wealth? But these mens griefe is, that themselues are not made the Iudges; whether the things they are to be examined of, be necessarie, and of importance to be declared. All that is spoken of the conuen­tings of S. Paul before seuerall Magistrates, in the Act. capitibus 24, 25, 26. Acts of the Apostles, is spoken vnto afore, and no way fits this purpose. For where there be accusers, there the parties oath, is not required. And yet S. Paul there, doth answer particularly; confessing som­thing, and denying other some, of doctrine, and actions obiected. Neit [...]er is it to be thought, that he would say otherwise being not sworn, then he would haue done though he had bin sworne.

[Page 194] Now whereas they say, that to remooue euill from the land, they will sweare (though the sinne be secret) but restreine it thus: so it be not to drawe matter of accusation and conuiction against them­selues, out of their confession: it is (in effect) as if they had sayd, that in whatsoeuer cause criminall, and penal to themselues, they wil take none oath at all. except they meane that mala quia pro­hibita, be no such euils, as are to be discouered or remooued at all from the land. And according vnto this interpretation; their se­uen reasons (being all that I haue hitherto happened of) doe in­distinctly tend. First, they say, it is an approued maxima of the lawe: Nemo tenetur seipsum accusare vel prodere; siue propriam tur pitudinem reuelare. But I haue Cap. 9. 3. part. shewed afore by true distincti­on (out of the same law, whence this is drawen) that it is to bee vnderstood in crimes simply secret, and which are no way disclo­sed, or come to light. For when those that were secret afore, by some of those wayes (that doe open a way to an enquirie, of a person supposed criminous) are come abroad, and so (in some sorte) are manifested: then those former rules, and that of Chry­sostome, Chrys. hom. 31. ad Hebraeos. Non tibi dico vt te prodas in publicum, neque apud alium accuses, hath no further place. for then the law saith; Sic proditus, tenetur seipsum ostendere, & suam innocentiam purgare. and this is for auoyding of scandall, and that the partie may be reformed.

Therefore doth Aquinas himselfe very grauely resolue thus: Thom. 2. 2. Cum quis (saith he) secundum ordinem iuris, à iudice interrogatur, non ipse se prodit, sed ab alio proditur: 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 [Page 195] 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 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 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 [Page 197] two are matched together by him, as being not much vnlike. A sufficient reason hereof in crimes, may bee taken from those 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. Iacob. ca. 5. v. 20. Iames saith: let him know, that he which cōuerteth a sinner from his erroneous way, viz. being afore seduced from Ibid. v. 19. the trueth; he saues that soule from death, and shall couer a multitude of sinnes. This couering of sinnes is no merit of the conuerters; as if his sinnes were thereby to be wiped a way in the sight of God; as the Pa­pistes haue dreamed: but it is the hiding & couering of the sinnes of him, who is conuerted. That this is the true sense of the place, appeareth by the circumstance of Salomons wordes, from whom y t phrase is borrowed: hatred (saith he) Prou. ca. 10. v. 12. stirreth vp strife, but chari­tie couereth a multitude of sinnes: euen so farre as with a good con­science may be done, as Tremellius noteth. If then vpon a sedu­ced mans cōuersion, a multitude of his sinnes are kept hidden by him, who conuerted him: it wil followe, that if he be not conuer­ted, but still goe on in his error, such his sinnes may; yea, and ought to be manifested abroad, and discouered. Therefore much more, when (in some degree) they are before reuealed vnto the Magistrate, that makes the Inquirie.

Nay, a perswasion vnto Idolatrie (which is a kinde of heresie, & also is a putting of it in practise) we haue an expresse commande­ment of God, voluntarily & of our selues to reueale it, how se­cretly, or by how deare a friend soeuer it be committed, or we [Page 198] by him intised vnto it. If thy Deut. 13. v. 6. 7. 8. brother the sonne of thy mother, do se­cretly entise thee; or if thine owne sonne or thy daughter, or thy wife, that lyeth in thy bosome, or thy friend, which is to thee as thine owne selfe: saying, let vs goe and worship other gods, &c. thou shalt not consent vnto him, nor heare him; neither shall thine eye pitie him, nor shewe him mercie, nor thou shalt not keepe him secret. Where, albeit we be commanded not to consent vnto such seduction: yet is that other parte of the precept of not concealing him, simple, and absolute in it selfe; and without any distinction, whether the partie intised, take holde of the perswasion, or not. For shall not the concealing, be aswel a sinne to him that yeeldeth vnto the seduction, as it is to him who resisteth it?

Saint Augustine sayeth: let Aug. ep. 74. ad Deuterium. vs then, and not before, trust an here­tique, who desireth to be receaued vpon his repentance: when he shall be content to reueale vnto vs, such other; as he knoweth to bee of the same opinion. Therefore to discouer their secret complices, was by him holden to be no sinne, nor yet performance of any bad of­fice. S. Chrysostome to the same effect Chrysost. in psal. 5. saith: This is the office of an especiall wise minde, not to reuenge his owne, but to prosecute migh­tily the iniuries done to God. And else where Chrysost hom. 5. in opere im­perf. more fully: let vs learne (saith he) by Christes example, courageously to beare the iniu­ries that are done to our selues: but not to endure so much as the hea­ring of iniuries done to God. For it is commendable to be patient in our owne iniuries: but to dissemble the iniuries which are done to God, is vngodly and wicked.

Leo the great, an ancient Bishop of Rome, thus exhorteth men to the reuealing of heretiques: Leo magnus ser. 4. de colle­ctis. wheresoeuer the Manichees do hide themselues, shewe it vnto your priestes: for it is a great part of godlines, to bewraye the lurking places of the wicked, and to vanquish the deuill him selfe, in those who serue him. And the same Father Idem. serm 4. de ieiunio decimi mensis. else-where more fully: Dearely beloued, I beseech and warne you; that if any of you doe know where any heretiques doe dwell, where they teache, whose companie they frequent, and in whose societie they are delighted; that you would truely shewe it vnto me, who am most carefull hereof. And further a litle after: Those who thinke such are not to be bewrayed, are to feare; least at the Iudgement daye of Christ, they be holden guil­tie by reason of their silence, yea albeit they be not defiled with assen­ting vnto them.

[Page 199] The same, which he taught by doctrine, he also Prosper. Aqui­tan. in Chronico. put in vre, by his practise: for it is reported of him, that when Paternus, & Maxi­mus were Consuls; by the carefull diligence of the said Leo, it was brought to light; that many Manichees lurked priuily in the Citie: Who bringing them forth of their secrete corners into the publicke sight of all the Church; he made them both reueale all their foule opi­nions, and also to condemne or abiure them: and withall he burned their bookes, whereof great quantities were taken. It seemeth that this care of that holy man, was inspired into him from God; for it did much good, not onely in Rome, but throughout the whole world. Insomuch as by the confessions of such as were apprehended in Rome; it was made manifest, what doctors or teachers, what Bishoppes and what Priestes those of that sect had, and in what prouinces and Cities they were. And many Bishops of the East partes followed this carefull, and good exam­ple of this Apostolique Bishop. For as Thom. Aqui. 2. 2. q. 33. art. 7. Thomas sayeth; By the very lawe of charitie, the good of religion is alwayes to be preferred, aboue the fame, yea, or the verie liues of the wicked.

Plato. li. 10. de legibus. Plato but an heathen Philosopher, thought good to tye, all in his common-wealth vnto this lawe: viz. If any man deale im­piously or vngodly, either by wordes, or deedes; let him that is pre­sent stand in defence of Gods cause, and also relate it vnto the Ma­gistrates.

Saint Hierome Hierom. in 15. cap. Iob. requireth of all humble Christians, this dutie, of reuealing, not onely heresies, and erroneous opinions of other men; but also other offences. those (saith he) are truely wise in Christ, who being conuerted vnto God, doe faithfully confesse, and doe by publique repentance satisfie the Church, whether for their sinnes or their heresies: and who not onely doe this, but also discouer those that are meanes to bring them into those crimes, or erroneous opinions.

I haue not hitherto heard of any, besides certaine here­tiques; who at any time helde the like opinion vnto this of the Innouatours, and factious persons in this Church. Saint Augustine reporteth, that the olde August. in lib. de haeresibus. heretiques called Pris­cillianistae, did te [...]che their schollers, not to reueale the do­ctrine which they learned, yea though they were examined there­of vpon their oathes. affirming withall, that rather then faile, [Page 200] it were better to be for sworne, then to discouer it: And therefore this saying was rife in their mouthes; Iura, periura, secretáque prode­re nolt: Sweare (saye they) yea and for sweare your selues too, ra­ther then reueale these secrets. This heresie was also afterwarde holden, by an Bernard. Serm. 65. & 66. in canti­cum. other sorte of heretiques, in the time of Bernard, that were termed Apostolici. And by certaine other (as it is writ­ten) that were called Flagellantes where (by the way) wee may obserue, that none in those dayes had learned absolutely to re­fuse an oathe in a matter made by the Examiners criminous vn­to the parties examined; or yet to their complices, and brethren. But for not reuealing their owne, or their brethrens secrets, those heretiques of olde time had learned perfitly ynough to conceale the true [...]h; yea, albeit they incurred flatte periurie, by such their concealement or deniall of the trueth.

I wil now assaye, to answere the reasons, which I haue heard brought, for y e establishing of this their conceipt. But first I must put you in minde, how vnreasonable, & incōueniēt it is to be ac­coūted, in al practise of lawes. For whē the defendāt hath deny­ed a crime obiected, or refused to answere yea or nay, if it might be free (for all y t by likelyhood can testifie thereof) to make such pretense, to y e intent to excuse thēselues frō that necessarie dutie vnto y e commō-wealth; what criminous person could, or were like­ly to bee euer directly conuicted? whereas, (by the ciuil [...]. 6. § 4. C. de his qui ad eccles. consugiunt. lawes) sometimes, he that is supposed to haue appointed the delinquent to doe the facte; he that is his suretie; he that is called into question for the same crime; he that is fellowe, or familiar with the suspected person, may be compelled to sweare & depose of a crime. By the cōmon law, if such (as are supposed can giue euidaece for the Queene) should not oftentimes bee compelled thereunto by authoritie; would there not (in many causes) want due proofe, for iusticeing and for execution of offenders? But to this it is said, that men are but bounde in an obligation or recognizance to prosecute the fel­lonie. It is true: what other bond shoulde any man enter for his apparance? But if hee refuse that, may he not be sent to the gaole himselfe? And when hee commeth before the Iudges, hee is bounde also by a necessarie oathe, to giue true euidence (to the vtmost of his knowledge) against the prisoner, or person to be tried. Which, if he shall refuse; he is like to stand in boltes [Page 201] with him, whose fault he mindeth to conceile, as hee well deser­ueth: and happely may be condemned to pay a rounde fine be­sides, for his notorious contempt, and for abbetting of offenders, in their lewdnes.

If it be said (as some haue obiected) that it is not amisse to certifie, so the partie bee willing: but that it is hard to bind him (vpon his oath) to testifie, whatsoeuer he knoweth against the de­fendant, touching that matter: truely I cannot gesse whereunto this speach may tend; except witnesses might say what, and how little they list of the trueth; or els that they would haue mens words to be beleeued against others (to their cōuiction) without any oath. But what matter can be confirmed without oathe in any outward actions of men, not knowen by some sense vnto y e Iudge? it is the law of nature and nations, to beleeue no man against ano­ther, without an oath. For why should not any mans bare denial for his owne clearing; bee as strong as many other mens bare words, for his condemnation? quia proniores esse debemus ad absoluē ­dū quàm ad cōdemnandū. Therefore the holy Ghost noting it to be a law of nations, that no mans word (vnsworne) should be recei­ued, thus testifieth; that an Heb. 6. v. 16. oath for confirmation, is amongs men (in­definitely, & therefore most vniuersally) an end of all strife.

It is Alex. ab Alex. Gen. Dierum. Lib. 5. cap. 10. told as amaruaile of one (only) amongs y e heathē, named Zenocrates, for whose bare word, the Athenians (by alawe) de­creed; that it should be holden of as great force as his oath, in all matters: such was his rare and singular vprightnesse, & integritie.

Touching their reasons, I make this to be the first, as most ge­neral: viz. Because they haue not iustly incurred the Magistrates displeasure by any offence, therfore they cannot hold themselues bound in conscience, to be the Magistrates iustruments against such; as be none offendours. To which may be added, that they are bound to seeke rather the deliuerance of the Innocent, because it is said: Prouerb. 24. ver. 11. De­liuer them that are drawen to death: and wilt thou not preserue them, that are led to be slaine? And it is noted as a sinne in S. Paul him­selfe, that he Actes 22. v. 20. stoode by, consented to Steuens death, and kept the clothes of them that slue him.

As if they should say, We haue gone (in this matter) as farre as our brethren; we know our course to be good, whatsoeuer the lawes or the Magistrates determine or thinke to the contrary; [Page 202] that doe but seeke to punish vs for it. And seeing we are so well perswaded of all our innocencies, we may not be any instruments of our owne or their further detection: for this were to consent, to haue guiltlesse men punished. But is not this to take vpon thē (being but witnesses of the fact) to iudge also, of the lawe, what it ought to be, and to condemne it as it is? and is it not (in effect) asmuch, as to condemne the lawes of vniustice, and the magistrats of tyrannie, persecution, and of seeking the vexation of innocents?

But if the lawes were such, yet (at the commandement of the magistrate) to tell the particulars of these their actions, so iustifia­ble (as they thinke) whereof the Magistrates already knowe the generalitie; is not to consent, vnto the punishment of innocents. Doth euery one that confesseth his owne crime, & pleadeth guil­tie in a cause capitall, consent to his owne death, or is thereby gil­tie of his owne blood? then why is he more consenting or guiltie to their punishing (due by lawe for these actions) who onely de­clareth them truely as they are; more thē he that confesseth (be­ing in deed guiltie) may be said to be guiltie of his owne death? It is a subiects dutie (most especially in causes not capital to him­selfe) if he be required by authoritie; not to dallie, nor to lie vn­to the Magistrate, but to tell the fact truely as it was; whomsoe­uer besides, it may concerne. Now, if thereupon, either the Ma­gistrate punish it where he ought not, or more grieuously then law permitteth; or if the lawe punish that as a crime, which is a vertue the fault and guilt before God is not in them that declare the trueth, but either in the Iudges, or in the lawe.

Nay, to enforce this point a little further; I would aske this que­stion of euery of thē that be of y e side: A man being of necessitie to plead either guiltie, or not guiltie to a crime capital vnto him, or els to be pressed to death; if he be guiltie of the fact, and yet (hap­pely) he knoweth there can be no pregnant (no nor any likely) euidence brought against him: whether in foro conscientiae, with­out any sinne, may such a man pleade not guiltie vnto the mat­ter of inditement? for the time, place, and other wordes of fourme and course, are not trauersable. on the other side, if (in this case) hee pleade guiltie (being so in deede) whether is he (thereby) guiltie of his owne death, or not?

But if for auoyding of sinne before God, such one ought (in conscience) to plead guiltie, rather then lyē; and yet shall not [Page 203] (thereby) be made guiltie of his owne death: why shall y e decla­ring of the trueth, touching other mens actiōs, make him y t reuea­leth it (being charged thereunto) guiltie or cōsenting vnto their punishmēts, how vniust soeuer (otherwise) they might be surmi­sed to be? for if any mans faults may be spared, a man might most lawfully spare himselfe: quia Ordinaria charitas incipit à seipsa.

And to presse this reason (à Paribus at least, if not à fortiori) a little further: If such a man shoulde chuse rather to be pressed to death for standing wilfully mute, and not answering directly vn­to either; should he not de iure poli (euen in true termes of Diuini­tie) be accounted guiltie of his owne death, & to be (in the sight of God) a murderer of himselfe? the very like therefore is to bee iudged of these persons, viz. that their punishment (as cōuicted of the crime) is most iust; that their blood is vpon their owne heads; & that none are causes of y e punishment inflicted vpon them, but themselues; for standing obstinately mute, without direct answe­ring (in fourme of lawe) as they ought: though it were admitted, that such their actions, whereof they bee interrogated, were all good, and they innocents.

And as the reuealing of other mens actions (when we are du­ly charged) maketh vs not guiltie, or consenting to their punish­ment: so our refusing to answere, neither is any meanes (in deed) nor yet is so appointed of God, to serue for their deliuerāce. For God wil not allowe to haue innocents deliuered, by our disobedi­ence to his Lieutenāts on earth; nor by concealemēt of any trueth, expedient to be knowen, & (according to law) commanded to be declared. And therefore y e place of the Prouerbes by thē brought, fitteth not this purpose. For if they for their obedience sake, with a single heart & without intent to hurt the innocent, and being charged; shall deliuer but the very plaine trueth (how vniustly soeuer the magistrate may seeme to deale afterward) yet shal not the discouerer of the trueth, bee a partaker of the magistrates sinne. For it is but he Prouerb. 24. ver. 8. which imagineth to doe euil, whome men shall call an authour of wickednesse, as is recorded in the same Chapter.

The other place out of y e Acts is nothing like to y e matter & case, that we haue in hand. For Paul was not there charged by autori­tie, to bewray any thing he knewe against Steuen, much lesse to deale at all in that action. But hee (willingly) as one forwarde [Page 204] of himselfe and of a malice against the very profession (which he then detested) did thrust himselfe into the cause, and rather then he would not be some stickler in it; he thought good to do some office of kindenes vnto the tormēters & executioners of that holy Martyr, though it were but by keeping their clothes: & thereby he directly, gaue approbation and consent, vnto Steuens death. Yea, this their opinion is without any other like example in a­ny text of Scripture; except perhappes they will gather it from an obseruation and note pretended to be collected from the next Chapter following. For I finde an opinion collected thence, which iumpeth with theirs, in this behalfe. Rhemish Testa­ment, in annotat. cap. 23. Act. A. post. ver. 12. If thou bee put to an oathe (saith that note) to accuse Catholikes for seruing God as they ought to doe; or to vtter any innocent man vnto Gods enemies and his: thou oughtest first to refuse such vnlawfull oathes. But if thou haue not constancie and courage so to doe, yet knowe thou that such oathes binde not at all in conscience, and lawe of God: but may and must be broken, vnder paine of damnation.

They will not confesse, that they haue sucked this opinion from hence: and they may not be endured to flappe vs out with T. C. their olde dogge tricke; and to say they borrowed it not of the Pa­pistes, but obserued so much themselues, by reading of the Bible. For this were both to iustifie their owne; and with-all, this corrupt doctrine of the Iesuites, as if they both (so well agreeing toge­ther) were arightly grounded vpon the worde of God.

But they bring seuerall places and examples, whereby they thinke this is prooued. The officers of the children of Israel, that were appointed by Pharaohs taske-masters, to looke; that the people shoulde make as much Bricke by day (and gather the strawe themselues) as they did when strawe was found to their handes; seeing that the people were not able to perfourme it, and yet were beaten for not doing it; did signifie the impossibi­litie & vnreasonablenes of this, vnto the king. But the king gaue them a resolute answere; that they shoulde doe it; vpbraiding them, that it was but idlenesse, which made them pretend, that they would goe to offer sacrifice vnto their God. Which thing was the ground of Moyses and Aarons suite vnto him, that the people might haue leaue, to goe into the wildernesse. So when these officers comming with this hard answere from the king; did [Page 205] meete with Moyses and Aaron, they expostulated thus with them: Ye Exod. 5. v [...]. 21. haue made our sauour to stinke before Pharaoh and his ser­uants, in that ye haue put a sword in their hands to slay vs: meaning that their sute for going forth to sacrifice, did so discontent y e king; that he would (in that respect) oppresse them, euen vnto death.

But what is this to purpose? doth this phrase of putting a sword into another mans hand so please these men, that they will ima­gine; by what occasion soeuer a wicked man pickes quarell to oppresse Gods children; that such a thing whereupon the oc­casion is taken (of necessitie) is vnlawfull to be done? from the best actions of godly men, tyrants will oftentimes take occasion, to persecute the whole Church. shall therefore all exercises of religion be intermitted?

Euen in this place, the message that Moyses and Aaron brought to Pharaoh (which occasioned such oppression to the children of Israel) was put in their mouthes by the Lord. And therefore they sinned not, albeit this was like to haue turned to be as a sword, to destroy vp all the children of Israel: but rather these officers did offend, that thus did mutine and grudge against those, who fulfilled Gods cōmandement, and did but as they ought to do. Euen so shall they offend likewise, that shall be displeased with such, as doe what they are lawfully commanded; albeit trouble and punishment by that occasion shal happen vnto them, that so take offence. So that this example doth make flat against their owne purpose and intention, and can no way helpe them.

Another example they bring, of 1. Reg. 1 [...]. ver. 4, 13. Obadiah: who hid 100. Pro­phets in two caues secretly, and susteined them with necessaries, when Iesabel slewe the other Prophets, whom she could hit vpon.

But this commeth farre short of the purpose, for which it is brought. For who euer denied it to be lawfull to shewe charitie vnto the Lords Prophets? then, there appeareth no commaunde­ment to the contrary, but that he might receiue them. againe, it doth not appeare, that he was euer (by authoritie) charged to reueile them; or to tel his knowledge what was become of those Prophets: and therefore it is vnlike to the case in handling. fur­thermore, it was (wholly) an vniust, wilfull, and tyrannous per­secution, without warrant of law, or colour of any iudiciall pro­ceeding. besides, if he had bene charged by Iesabel to discouer [Page 206] where they were, or had beene commaunded by her to relieue none such; yet had it bene no disobedience towards the Magi­strate. for it is not noted to be the doings of the king, but that Iesabel slew them. Now, the kings wife is no soueraigne; but a sub­iect her selfe. Moreouer the killing of the Prophets, for no pre­tence or colour of cause at all; is in it selfe so apparant an euill, as no man can haue any shadow, to giue a lawfull consent vnto it. Lastly, a man cannot gather a generall doctrine (in a matter doubt­full, and not plainely deliuered els where in Scripture) out of any particular mans fact: because all the circumstances which then fell out, are not knowen. But most especially, an example can ne­uer serue to the ouerthrow of the generall commandement, of obeying the Magistrate. And, viuendum est legibus, non exemplis.

Out of the first booke of Samuel, they bring three other ex­amples. 1. Sam. 19. ver. 1. 2. The first, that Saul spake to Ionathan his sonne and to all his seruants, that they should kill Dauid: but Ionathan Sauls sonne, had a great fauour vnto Dauid, and bade him take heede &c. The second, when Saul said to Ionathan: Send and fetch Dauid vnto 1. Sam. 20. ver. 31. & 32. me, for he shall surely die: Ionathan answered, Wherefore shall hee die? What hath he done? the third, that when Saul commanded his seruants to fall vpon the Priests of the Lord, & to slay them; they would 1. Sam. 22. ver. 17. not moue their hands, to fall vpon the Priests of the Lord.

To these three, one answere may serue, and therfore they are thus set together. First, these commandements (though of the king) yet they were, when he was enraged and in a furie; after the Lord was departed from him, & an euil spirit was come vp­on him. Againe, it is apparantly vngodly in it self for any to kill an Innocent, vpon the tyrannous and vnaduised commandement of the king; euen without all colour of any lawful Iudiciall course. Lastly, Dauid was knowen vnto them, to be afore appoynted, yea, & their annointed king from the Lord; howsoeuer Saul was tolerated de facto to continue in place: till the measure of his ini­quitie was fulfilled. And therfore (in this respect) was it vnlawful to kil, either him, or those that fauoured him; especially the Lords Priests: whose linnen Ephod should be a protection vnto them, a­gainst Ibid. ver. 18. al such precipitate executions: where neither conisance of their cause, nor any due conuiction and iudgement, was precedent.

Another example they bring, of the mid wiues of the Israelites, [Page 207] to proue their intention. It is thus written, they feared God, and did Exod. 1. ver. 17. not as the king of Egypt commanded them, but preserued (aliue) the men children.

This obiection carrieth his answere with him. For it is said, they feared God, & therefore did not herein, as the king cōmanded: noting vnto vs, that the cōmandement was such, as could no way stand with the feare of God. There is no Prince in the world to bee o­beyed, when he commaundeth any thing directly forbidden by God: for it is better to obey God then man. The Prince is no God, nor yet Gods Lieutenant, but a meere man; in that which he cōmandeth directly contrary to God. That this was of that kinde, it appeareth: for to kil, is (manifestly) by y e moral law of God & na­ture, forbidden. Yet this hath his exception: viz. that it is no mur­der, when we execute the penaltie of lawe, vpon murderers & o­ther wicked persons, duely conuicted & condemned. For he that Gene. 9. ver. 6. sheddeth mans blood, his blood shall be shed by man, saith the Lord. But there could be no colour or apparance of any actual wicked­nesse in children newly borne, why they should be executed: be­ing but by a generall iudgement condemned most wickedly and tyrannously; euen before they were. non censetur existere (saith the law) qui adhuc est in vtero matris.

Now let vs compare these last foure examples, with the scope and purpose, for which they are vsed. The very act of murdering a person notoriously innocent, in that he is neither conuicted, nor condemned, is malumper se: a thing simply and absolutely in his owne nature euill, without any further circumstance. But to de­clare what a man knoweth to be done by another; the very au­thours themselues of this opinion, must needes confesse to bee sometimes lawfull and requisit: and therefore they must at least graunt it to be medius Actus: such as (by circumstance) may be lawfull; howsoeuer by the circumstances of this case (as it is pro­pounded) they will (perhaps) hold it vnlawfull. And therefore there is such dissimilitude and diuersitie betwixt these examples, and that which they holde; as they can neuer serue this purpose.

Therefore to fit their turne, in the very poynt of the issue, they must proue vnto vs: that it is vngodly, for any man (though char­ged by lawfull authoritie) to declare his knowledge of ano­ther mans actions; if hee that is vrged so to make declaration, [Page 208] doe iudge afore-hand; that the Magistrate mindes to punish such action, either where he ought not at all, or in other sort, then Gods law permitteth.

For this purpose, they alledge as strongest, the example Iosh. 2. ver. 3. & 4. of Rahab: who would not tell the king of Iericho, where the two spies of Israel were; though she were by him commanded to bring them foorth; and she is commended for it, by the Heb. 11. ver. 31. holy Ghost.

In answere hereof I say: we reade not, that the king asked her, whether they were there still, or not; albeit shee Iosu. 2. ver. 5. answe­red that they went out: but she was commanded to bring them forth; which is something more, then to tell where they were, if she had beene so asked.

Secondly, by Heb. ibid. & Iosu ibid. V. 10. faith (vpon hearing the miracles that God had done, and wrought for the children of Israel) and by special reue­lation; Rahab knew, that God, 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 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, & 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 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 [Page 209] by spectall oeconomy, which, by vs may not safely be followed. As the lye that shee made, in 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 [Page 210] 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 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 [Page 211] 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 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 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 cōmon translation fortifieth this interpretation, viz. qui ambulat fraudulenter, reuelat arcana, qui autem fidelis est, celat amici commissum. Therefore Aquinas The. Aquin [...] 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 [Page 212] haue refused an oath, about 160 yeres since, vpon this considera­tion amōgs others: doth most aptly (I thinke) take his place here.

For when 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, thē 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.

[Page 213] It may be, that the Note-gatherer also by one of his quotatiōs, meant to enforce Tindal. in re­spons. ad Moru [...] 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 shalbe, 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 punishmēt 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 cōparing 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 nō 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 his father &c. For if the matter do concerne treason against the Prince, or the common wealth; I make no doubt, but that, a man may, & ought [Page 214] to be tortured, euen against his natural father, and others, howe neere soeuer. But if this be lawful for treason against man, much more then, for that which is heresie indeede; being no lesse then treason against the diuine maiestie of God himselfe, who is King of kings, and Lord of all lords. Thus farre touching their rea­sons, and allegations from d [...]uinitie and diuines.

So that al their obiections being refuted, I will nowe presse them in this point, but with one pregnāt place out of Leult. 5. vers. 1. Leuiticus; which is also handled more fully by me in the 11. chapter of this third part, viz. If any haue sinned, that is, if he haue heard the voice of an oth, and he can be a witnes whether he hath seene, or knowen of it. if he do not vtter it, he shal beare his iniquity. But these (of whom we speake) haue heard the voice, and forme of the oath, haue bene adiured in God, and in her Maiesties name; and by authoritie charged and recharged, and they can beare witnesse, for they haue seene, and know the matters (whereof the charge is, as themselues do confesse) and yet they will not vtter them in particular, but obstinatly, without any good ground (as may appeare) do per­sist in refusall: and therefore they do grosly sin, and shall beare their owne iniquity, indistinctly; whether the matters to be vttered be cōmendable in their brethrē, or not; & whether they shal (there­by) be brought into trouble, & vnto punishment, or otherwise.

Much might be alledged out of the common lawe, and statutes to proue thereby, the lawfull exacting of a necessary oath, for dis­couery of our christian neighbors crimes and offences; aswel such of them, as be but mala quia prohibita; as those which in their owne nature be euill, and be therefore forbidden.

As that grand Iuries at Assises, & Sessions are vrged by oath to enquire, & present treasons, murders, & other felonies, breach of the peace, violation of sundry lawes & statutes, common Nusances &c.

That if a 10. H. 6. 7. tythingman, &c. refuse to make presentment, the steward of the Leete may amerce him: And in an action of debt brought he shall not wage his lawe, vpon that amercement.

That by a 19. H. 7. ca. 14. Statute, chiefe constables, and bailifes were to giue e­uidence vpon their oathes, touching vnlawfull retainers within the precinct of their offices: and vpon concealement, were to be punished. with such like a great number.

But because the Innouators, who are nowe the most especiall [Page 215] defenders of this opiniō, both by argument & practise, do make no accoūt at al of any humane lawes: whensoeuer they list to fan­sie vnto themselues a cōdemnation & contrariety of such lawes vnto the word of God, as in this case they doe: therefore I will no further trouble myselfe, or the Reader, in that course.

CHAP. XV. Their arguments are answered, that condemne the ministring & ta­king of an oath as vnlawful, because they haue not distinct know­ledge giuen vnto them of euery particular before the taking of it, & the like course (by examples) is approoued lawfull, and godly.

ANother challēge of theirs, made vnto the maner of proceeding against crimes in Ecclesiasticall courts (& cōcurring with the very tēder of the oth) is: for that they are vrged to take the oth to answer truly, before sight and perusall of the articles & In­terrogatories by thē had; whereby they might haue special, and distinct knowledge, of euery particular, therein conteined.

The cause why this exception is by them taken, is not for that al such refusers do purpose to take the oth, when they shall haue seene the articles; but if they shall finde them to be such as they thinke either cannot be proued (in case they shal deny them) or to be of that sort, as they can easily wade through with thē: then some of thē (heretofore) haue not stuck, nor made any bones to take their oths, whatsoeuer they wil do now. And therfore cer­taine of thē will not so much, as promise by their word to take oth, to answer thē after perusal. So that it may appeare, this is but a quarrell picked by them, (of purpose to aduertise their compli­ces how far they also may be touched) rather then that there is any serious matter of scruple herein, which they stand vpon.

Some of the causes why it is not thought cōuenient (by those that be in authoritie) to let them always know the seueral parti­cularities aforehand, & so to leaue it in their liberty either to re­fuse, or to take oath afterward to answere them; are sufficient, and weighty. One is, because it is sometimes impossible in it selfe; for that one Interrogatorie often riseth of an other, espe­cially where a man answereth affirmatiuely: so that the oathe cannot conueniently be in ech case restrained vnto such of thē, as are set downe afore; seeing necessarie occasion of circūstance [Page 216] ministred, may leade vnto a further examination. Another is, be­cause (as some of them haue done when this fauour hath beene shewed) they vse it but as a meanes, to instruct their confede­rates for concealing, or disguising of the trueth: which may ap­peare, for that after perusall, they themselues remaine as obsti­nate in refusall, as they were before.

And albeit no lawe (that I knowe) doth of necessitie require articles to be shewed to them, at such proceeding, before they resolue, whether they will take the oathe, or not: yet if any will sweare (afore) but thus; that he will peruse them, and after hee hath perused them, he wil then take the oath, directly, and true­ly to answere them, so far as by law he is bound: assuredly then, the sight of them aforehand neither hath bin, nor will (I thinke) at any time hereafter be denied vnto any, in such a case.

Some reasons I haue heard to haue by thē bin vsed, to proue it vngodly. It is thus written in the 1 Prouerbs; He that answereth Prou. 18. ver. 13 a matter before he heare it, it is folly, and shame to him. Much more then (say they) is it folly, to sweare to answere a matter, before a man heare it. In very deed, it is not possible directly to answere any matter, before a man heare it, and know what it is. But the meaning of the holy Ghost there, is to taxe such; as vpon a pre­tence, or for ostentation of pregnancie of wit, and quicknes of conceipt, or vpon some other rashnes; will take vpon them to vnderstand a matter and to answer to it, before halfe the tale, and materiall points of it, be opened vnto them. Whereupon grosse­ly (ofttimes) mistaking the whole matter; such a man is shamed, and folly is also iustly imputed vnto him for it.

Besides; this their collection hereof is out of the rule, that is in controuersie, and practise. For there are neuer any sworn to an­swer a matter before they heare it. But (indeed) they take an oath (aforehand) to answer the matter truely, when they shall come to their examination: and then they do heare al the matters ob­iected, before they neede make answere vnto them.

The grand Enquests do take alike, yet a lawful oth; which is, that they shal diligently enquire, and truly present al offenders against any such point, as shalbe giuen vnto them in charge, which charge is giuen, after their oath is taken.

Their next reason is, that for a man to take an oth; without a sure [Page 217] perswasion that it tendeth to Rom. 14. ver. [...] glorify God, and to further his brethren, is sinne: because whatsoeuer is not of faith, is sinne. And that this oath is such for that a man knoweth not what the matter is, whereof hee taketh his oath.

Herein, the assumption is to be denied, & prosyllogisme or reason, which is brought to prooue it: for it is of, and also according to euery honest mans faith, to beleeue himself bound in conscience, to obey the positiue lawes of his country (which require him to take such othe) so they be not contrary to Gods commandement.

And albeit euery particular neither is vsed to bee, nor yet is meet, nor (indeed oft times) can be aforehand declared, which is requisit to be asked of him, as one questiō wil grow of another: neuertheles, the general heads are signified & opened vnto him. and it is withal declared, that he shal but answere matters of his own fact, or knowledge: that they touch neither his life, nor limme, & that (if he think good) he may challenge any of thē at the time of his examinatiō, as not being bound by law to answer them, & he shal therein (if law do not bind him) be allowed to refuse. For the Iudges of ech court are appointed to yeeld vnto euery man indifferent Iustice, according to law. So that the examinate may haue as sure perswasion hereof by this course: as if euery parti­cular were read vnto them.

Their third reason is: that this kinde of oathe is infinite, and ther­fore a snare to a mans conscience, and not like the oath that Abra­ham Gen. 24. à prin­cip. vsque ad ver­sum 9. gaue to his seruant.

Though it be not like in this point, bicause that was but a pro­mise to do one particular matter, whereas in our case, the oath, albeit at the taking of it, to answer, it be promissorie; yet the per­formance of it is assertory, by telling the trueth of matters, either past, or present: neuertheles such dissimilitude doth not hinder, but that this may be no lesse lawfull, then that promissorie oathe was, which Abraham made Eleazar his seruant to take.

There is none infinitenes in it: for it is not generall, either con­cerning his owne, or other mens thoughts, words, or workes, as very vntruly, & slanderously is (by some) giuen forth: but it hath suffi­cient certainty, vpō the certain reference vnto articles afore ex­hibited; which also are thē declared, to contain particular didu­cing, & laying forth of such, & such especiall misdemeanors, with [Page 218] some of their pertinent circūstances, of time person, place, & maner.

Their fourth & last obiectiō is: that a mā ought to sweare, Ierem. 4. vers. 2. the Lord liueth in righteousues, in iudgemēt, & in truth. This iudgemēt, & discretion (they say) they cannot vse in such swearing, bicause they knowe not euery particular afore-hand, whereunto they must answere. And this obiection is also propounded and enfor­ced by the Treatisour. But (if it be well weighed) it is a childish fallacie, of the ignorance of the Elenche; by want of due distincti­on of times. For by reason the matters are many; and the ar­ticles oftentimes long (besides sundry other inconueniences, & infinitie of trouble, which would els growe vnto the Iudges) it is therefore meet, that the defendant be examined apart, at some leasurable times, and out of the court. In which respect, though the oath be giuen openly in Court, yet the very examination is dispatched afterward, by the examiner: and then it is acknow­ledged before a Iudge, as in diuers Courts temporall is vsuall, in like cases of Articles or Interrogatories.

The Iudgem [...] (spoken of there by the Prophet) that ought to be vsed; is not to be referred only to the very action of the oth, when we take it corporally: but it is specially meant of the aduised matu­rity, & cōsideratiō that we ought to vse; in y e depositions & setting downe of our answers. so that y e not knowing of euery particular, when by oth we only promise to answer truly at y e time of our ex­amination, doth no way impeach or hinder the iudgement, which is meete, and required to be vsed, in our answering: at what time, we may consider fully & deliberately, of euery particular point.

That this is a true & no forced sense of the place, may be also gathered by the last point, required there by the prophet vnto an oth, viz. that we sweare in truth. for in the very action of taking the oath, that truth there meant, cannot be vsed; but must be shewed by the vpright and faithful answering, at the time of the exami­nation; yea though the examinate know them all so well, as that he had them without booke, because, as he that giueth the oth, doth but charge; so by the receiuing of the oath, a man doth but promise to answere truly, afterwards. And a promise doth neither affirme nor deny the trueth of a matter: but is to be made a true vowe and promise, by the due performance of it, according as the promise runneth, and it is truely meant.

[Page 219] It may be, that one of the Note-gatherers quotatiōs out of Tin­dall, was by him set downe to enforce also this point; namely where he thus writeth: If Tindal in resp. ad 3. lib. Mori pag. 309. a Iudge put a man to an oath, that he shall answer to al, that he shalbe demanded of, he ought to refuse. Is it any maruel that he which holdeth a little afore, that no Iudge ought to make a man sweare against his will in any case; shoulde also inferre thereupon, that such a generall oath, as this he speaketh of, which no law or practise (simply) requireth, neede not be taken? But what is this to the refusall of oathe, when it is not generall, but re­strained vnto certaine articles, and points; the heads whereof are also opened afore vnto him, who is to sweare? or what serueth it, to iustifie a refusal; for that the defendant may not first peruse euery Interrogatorie particularly, before he will resolue whether he wil take the oath, or refuse it?

The Treatisor also alledgeth (to this point especially as I ga­ther) a saying of Ioh. Lambert. Martyr in his Fox pag. 565. 1. edit. answer vnto the 41. article ministred vnto him: The fault which (in this behalfe) he findeth, is; for that a man is charged by vertue of the contents of the Euangely, to make true relation of all, that they shal demand 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 hereūto: First there is none that defendeth any such generall exacting of an oth, to answer whatsoeuer shal be demā ­ded. Besids, what is here any way sounding to the condēnation of ministring an oth for answering to particular Interrogatories. tou­ching certain knowē points, opened before vnto y e party? Secōnd­ly, the iudgement of Lābert, that a man is not boūd (in distinctly) to bewray whōsoeuer hee knoweth to haue offended, is also al­lowable. For a man being so generally asked, is not boūd (by any law that I know) to take oth, to bewray whatsoeuer he knowes, [Page 220] 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 iudgemēt 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 [Page 221] 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 Euidēces, 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 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 [Page 222] 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 euid [...]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 In [...]oc. in c. bo­nz. el. [...]. na. 5. de elect. B [...]us in l. edita in repetit. Patau. nu. 30. C. de edendo. & in l. ea quidem. r. u. 42. c. de Ac [...]sat. & al. j pluri [...]ni. that which hath recei­ued interpretation, & approbation of equitie, by continual practise, & long custome; ought not by any singular person, to be chāged.

The reason of this course by them holden is weightie: For Clarus lib. 5. § fin. q. 49. otherwise by the publication and copies of the Processe Infor­matiue giuen vp vnto them; the supposed delinquents (being in­structed thereby, what Euidence is to be vsed and giuen against them) might, and by likelihood, would (for their owne safegard) practise with the witnesses; and either withdrawe them cleane away, or els suborne, and corrupt them.

This Processe informatiue; I meane the particular points of the euidence and presumptions (yea and sometimes also the witnesses names, that can testifie, & may be vsed) in the court of Commissi­on, and in ordinarie courts ecclesiasticall, are inserted into, and con­teined in the Articles obiected. Nowe assoone as the conuented partie hath answered the Articles; in this Realme (of course) he is, if he wil, to haue a copy deliuered; both of them, and of his an­swers made vnto them before any witnesses be called, or vsed: al­beit (indeede) great inconueuience of subornation (for auoyding punishment) might thereby happen, and be occasioned. So litle cause haue these men to complaine, of any rigorous or strict course vsed towards them: as by the example of the generall custome of the world abroad, might be folowed. Neither haue they any cause to complaine hereof, as of a thing vnusuall: for not hauing (other then a generall knowledge) of the matters a­gainst them, before they doe sweare.

If that c. qualiter & quando. [...]l. 2. de accusat. Canon be obiected; viz. exponenda sunt ei illa capitula de quibus fuerit inquirendū, vt facultatem habeat seipsum defendendi: I answer; that in ecelesiastical courts of this realme, this is obserued, euen before the oath is tendered & after the partie hath answe­red, he hath a copy not only of the heads of the matters obiected; but of euery particularalso. Howbeit this Canon distinguisheth not at what time these are to be opened vnto him: otherwise, [Page 223] then when hee is to vse his defence: which (commonly) is after the witnesses be published: when as he chalengeth and excepteth against their sayings or persons.

But if the Ciuill law be also vrged (to this point) which L. vnius. §. co­gniturum. ff. de quastionibus. L. 3. §. si ad diem ff. de [...]e militari. requi­reth copies indiciorum of the inducements, or euidences to be giuē to defendants: I answer, that it is but before he is tortured; that he may haue opportunitie to answere, and to auoyde such pre­sumptions, before he susteine so irreuocable a dammage: which reason hath no place in that matter, which we nowe handle.

Besides, this rule hath many limitations, or excepted cases: For first it Campeg. in ad­dit. ad Zanchinū de haeretic. ca. 9. is otherwise, when the partie enquired of, or accused, was afore that time of euil fame. Secondly, when a copy of them, is not desired by the defendant. Thirdly, when hee purposeth no de­fence, but onely would labour to prooue the Indicia to be false. Fourthly, when the proceeding is by Enquirie, accord [...]ng to the fourme of somestatute. Fifthly, where there may be probable feare, that the witnesses shal thereby be hurt, or preiudiced. Sixt­ly, whē the crime is notorious. Seuenthly, when the proceeding is of meere office. Eightly, when the defendant varieth & faultreth in his answers. Lastly, whē he afore refused to answer to y e Interro­gatories. By all which we see, both y t the said rule is to be vnder­stood of deliuering copies, after publication of witnesses, & not be­fore the defendāts first examination: & also, y t such disobediēt per­sons, as refuse to answer y e Interrogatories as they ought (though they were not proceeded with of Office) yet are by law debarred, from hauing copies of any necessitie, otherwise then of curtesie.

And if the oath to be taken were so generall as they pretend, whereas it is (indeed by way of reference) very particular, & cer­taine: yet they might finde examples for approuing of the equitie of oaths more general then this; both in the lawes of the Realme, & in the word of God: wherof al the particularities neither at the taking of it were, nor could be iudged of, afore the oath taken.

First, at the cōmon law, is not the oath of Iurors in the grand En­quest at al Sessions, & assises; to enquire, & present al within that shire, that be culpable of breach of any the lawes & statutes which they shall haue in charge (afterward to be giuen:) as large, yea and a more generall oath, then to sweare to answer halfe a dozen, or a dozē articles, or interrogatories remaining afore in court, preferred?

[Page 224] By statute it is appointed, that Statut de Exon. de Inquisit. super Coronatores. Enquirors against Coroners, shall make all the Bailifes sweare, that they shal well, and faithfully do that, which they shall haue in charge by the king and his Counsell, and shall conceale nothing of it.

Iustices of Peace (by an old 12. Ric. 2. ca. 7. statute of Richard the second) are to be sworne, duely, and without fauour, to keepe; and put in executi­on, all the statutes and ordinances, touching their Office.

The like oath, and somewhat more generall is appointed vnto them by a later 27. H. 8. ca. 5. statute, to be taken; viz. that they shall keepe all statutes made, and to be made.

The oath established to be taken by great Officers of the State and of Iustice (vpon another occasion afore alleaged) is also of greater generalitie. For it is 15. Ed. 3. ca. 3. enacted, that great Officers about the king, and in his courts of Iustice, shall from time to time forwarde be sworne (when they shalbe put in office) to keepe, and mainteine the pri­uiledges, and franchises of holy Church, and the points of the great Charter, and the Charter of the Forest, and all other statutes, with­out breaking any point.

The oath appointed by the nowe repealed statute against he­resie was very generall: and yet that point, thought agreeable ynough, to equitie. for this was not any ground of the repealing of it. By it was determined that the 2. H. ca. 7. Chancelor, Treasourer, Iusti­ces of the one Bench, and of the other, Iustices of Peace, Maiors, and Bailifes of cities & townes, & al other Officers hauing gouernance of people, should make an oath; to put their whole power, and diligence to destroy all maner of heresies, and errors, &c. and to assist the Ordi­naries, and their Commissaries: and them fauour and mainteine, when they shalbe required.

The circumstance of time (in that the oath is tendered before the defendant hath particularly perused the Articles, or Interro­gatories) is sufficiently iustified by the like general practise in the Starre-chamber, and Chancerie; and in examinations criminall made by other Iudges and Magistrates. In all which, the oath (as I am credibly informed) is taken, before the examinates haue any copy, or may peruse the Interrogatories, where written In­terrogatories be vsed: and where they are not written, there is no possibilitie of knowing all (particularly) that shalbe demaunded; insomuch as one question (necessarily) riseth vpon the answeres, [Page 225] that shall bee made to the former.

I reade a report of the Canon lawe, where in an 15. E. 4. [...]. action of debt brought against the husband, and his wife for the wiues debt be­fore the couerture; the woman without the husband could not be suf­fered to wage her lawe. And is not this oath of the husbands part (though lawfull) as farre from that assured perswasion of the very trueth thereof: and is there not as great want of the hus­bands certaine iudgement herein, as when an oath is taken to answere articles (in themselues finite, and certaine) though par­ticularly not perused by him afore? For nothing to the contrary can be heere (I thinke) alledged; sauing that it may bee, the husband himselfe had, afore the wager of lawe, payde the said debt of his wife.

There is a 2. H. 5. ca. 9. statute (saith the Notegatherer) which requireth a copie of the Libell (put vp in a court Ecclesiasticall) to be deli­uered to the defendant: and thereupon is there a writte framed, and put in the Register, pro copia libelli deliberanda. It is very true which by him is alledged. the reason was, for that the de­fendants coulde not then procure prohibitions from temporall courtes without their viewe of the Libell: which (in that respect) was sometime by Iudges Ecclesiasticall denied; and the lawe (as it seemeth) was at that time so taken. but if the lawe were not onely so taken, but so practised still; for my part, I should hold it more agreeable to reason, and that it would preuent many long delayes, and other great inconueniences. Neuerthelesse, when one thing seemeth (cautelously) to bee in demaund by the Libell, and another thing (in trueth) not incident to an Eccle­siasticall court, is vnder hand shot at: then, and in such case only, vpon apparant probabilities thereof shewed vnto the temporall Iudges; it cannot be thought inconuenient for them to graunt a Prohibition, yea though the Libell be not viewed afore by them, nor cōteine expresly any matter, belonging to a temporal court.

But seeing the statute speaketh but of a Libell; it cannot be extended to all articles or Interrogatories whatsoeuer, ministred in a Criminall cause: especially, where there is no likelyhood, or colour, but that the cause is meerely Ecclesiasticall: or where it is handled by vertue of Commission vnder the great Seale of Eng­land grounded vpon the statute. For if her Maiesties Supreme [Page 226] Royall auctoritie and power Ecclesiasticall granted by cōmission to others, be as highly vested in her crowne as is her Temporall: then will it bee probably gathered, both of them being in their seuerall kindes supreme, and the exercise of them cōmitted ouer to others, vnder the great seale; that the one of them is not to be abridged, restrained, or controlled by the other.

In Gen. 21. V. 23. Scripture, by the oath that Abimelech ministred to Abra­ham, and which he tooke, appeareth; that thereby Abraham, was to deale well with him, (or as the Hebrew word is, not to deale falsly orlye) vnto him, nor vnto his children: and that he should deale well both with him, and the whole Countrey, according to the mercie and kindnesse (there) shewed vnto him. which poynts be of greater largenesse, and generalitie; then that all the particulars (falling vnder that oath) can possibly before-thought or called to mind, at the very taking of it.

By Iacobs Gen. 25. V. 33. requiring an oath of Esau, for confirmation of the sale of his birthright (a thing of greater generalitie, yea & conse­quence also, then Esau could, or did then consider) may be gathe­red; that an oath may be ministred, though euery particular in­cluded therein, be not specially rehearsed: for this oath was ap­proued, and stood ratified.

The like generall league, and couenant, that was betwixt Abimelech and Abraham; was also Gen. 26. v. 29. & 31. made, & sworne, betwixt Isaac, and the said Abimelech.

And albeit, it be not directly set downe, that the king exacted an oath of the Prophet Ieremy; yet we Ierem. 38. ver. 14. & 15. find a promise of the said Prophets then made (after the kings charge was laid vpon him) of answering truely, what he should aske him: yea without expres­sing any particular matters afore-hand, what y e king would aske. Yet may we not therefore charge the Prophet to haue done this without faith, or foolishly; vnaduisedly, or without Iudgement.

And it is sure, that a godly man ought to haue no lesse regard to performe what he promiseth, & to deale truely (when by his Soueraigne Prince he is in like sort charged) then if hee were to answere it, vpon his Corporal oath. So that we may conclude, that it is not vnlawful, or vngodly, to take an oath: that we wil performe some such matter, whereof euery particular is not afore-hand, or at the very time remembred vnto vs; or then can bee called to minde or knowne by vs, in distinct and speciall maner.

CHAP. XVI. That after the partie hath answered vpon his oath, it is neither vnusu­all, vnlawfull, nor vngodly; to seeke to conuince him, by witnesses, or other triall; if he be supposed, not to haue deliuered a plaine & full trueth: and somewhat also in approbation of Canonicall purga­tions, with answere to the Treatisours obiections against them.

THeir next exception (set out afore in this order to be spoken of,) which this sorte of men doe make vnto the maner of proceeding Ecclesiasti­call, (being of a thing ensuing after the oath and examination) is; for that Iudges Ecclesiasti­call doe not alwayes rest in that which is affirmed or denied, vpon the parties oath: but doe oft times proceede to a further enquirie, by examination of witnesses, vpon the poynts denied by the partie.

A man might iustly maruell; what should mooue them thus to require all other men to thinke so well of their single oathes, (and especially in their owne cause) as if they had some indigni­tie offered vnto them, onely because their owne single oathes are not perfitly beleeued; but that proofes (by witnesses) are after made to conuince them, of that, which is denied by them.

But for this they bring also some pretence (as for the rest of their opinions) out of the Scriptures. It is said in the Epistle to Heb. 6. v. 16. the Hebrewes: that an oath for confirmation, is amongst men, an ende of all strife. Whereupon they gather, that whatsoeuer they shall deliuer vpon their oathes, it ought to be finall & perempto­rie, to conclude the cause of necessitie, without any more adoe.

The vse of the oath, which is in that place spoken of, is (especially and most properly) appliable, to two kindes of oathes. The first is an oath Promissorie, when (for more assu­rance of the promise to bee kept) the parties agree, that it shall bee taken. which thing is argued by the circumstance of the place, as being brought to prooue the certaintie of the Pro­missorie oath, which God made vnto Abraham: and also by the word of Confirmation there vsed. Secondly, this place hath vse very properly also, in an oath Decisorie: when Azo. in Sum­ma de rebus cre­ditis. as either the one or the other of the parties is contented, to put the matter that is in variance, vpon his aduersaries owne oath: [Page 228] which if he thereupon shall take, it maketh an end of the whole suite and strife. For in this case, he that so offered it, shall not bee permitted to vse any contrarie proofes afterwards: because hee made choise to haue the whole cause in variance betwixt them, composed in that forte.

It may also truely be answered to that place, that an oath in­definitely taken; is (in deede) a meanes prouided, and tending to make ende of all strifes amongst men: but not that in euery cause and matter whatsoeuer, one mans single oath should ther­fore be sufficient. because many absurdities would follow of such an interpretation. as namely, that a mans oath in his owne cause, should be as good and forcible; as any other two mens oathes touching the same matter. But the law saith: dictum vnius, dictum nullius. One singular deposition, though of a witnesse (who is not interessed in the cause, and therefore the more indifferent) is not to be taken for a full proofe. Then howe much lesse should the parties oath (whom the lawe presumes to be partiall in his owne cause) be admitted for a concludent proofe, especially to his owne clearing or benefite?

Besides, if such their interpretation of that place should be fol­lowed; then were this place cōtrary, to sundry other places in the Scripture; which is blasphemie to imagine. For Num. 35. v. 30. one witnesse shall not testifie against a person to cause him to die, but witnesses, therfore moe then one. And by consequence, a mans owne witnesse (in his owne behalfe) is not sufficient. At the Deut. 17. v. 6. mouth of two or three witnesses, shall he that is worthy of death, die: but at the mouth of one witnesse, he shall not die. Againe: Deut. 19. v. 15. One witnesse shall not rise against a man for any trespasse, or for any sinne, or for any fault that he offendeth in: but at the mouth of two witnesses, or at the mouth of three witnesses, shal euery word be established. Matt. 18. v. 16. Like-wise in the Gospell: by the mouth of two or three witnesses, euery word may be con­firmed. Furthermore, it is Iohn 8. v. 17. written (saith Christ) in your law, that the testimonie of two men is true. 2. Cor. 13. v. 1. Moreouer, S. Paul saith: in the mouth of two or three witnesses, shall euery word stand. And Heb. 10. v. 28. againe: he that despiseth Moyses law, dieth without mercy, vnder two or three witnesses. And to 1. Tim. 5. v. 19. Timothie in like maner: receiue none accusation against an Elder or Minister, but vnder two or three witnesses. Much lesse then (of any necessitie) shall a mans owne testimonie of [Page 229] himselfe, and for his owne benefite or clearing, be receiued for an vndoubted trueth. The blinde Pharisees could see so much; that it was absurd, for any sinfull man to arrogate so much to himselfe, that his owne witnesse touching himselfe, should suf­fice. Therefore they say Ioan. 8. v. 13. to Christ, whom they tooke to be but man onely; thou bearest record of thy selfe, thy record is not true. And Christ himselfe signifieth the like, for he saith: Ioan. 5. v. 31. If I shoulde beare witnesse of my selfe, my witnesse were not true. meaning, that where there is no further testimonie for a man, then his owne: there is nosufficient cause, that other men shoulde holde his speech for true, or rest in it, as certeine.

And therefore we see; that albeit the woman, whom her hus­band hath in Iclousie, is put Num. 5. v. 22. vsque ad 28. vnto a most strict oath (with an im­precation and curse) that she is not defiled: yet is there (by the law of God) appointed a further triall, and she is also to drinke the cur­sed water. which (by Gods secret operation giuing might vnto it) was of force, both to reucale, and to punish her periurie (if she were forsworne) by making her (most lothsomely) to rotte a­boue the ground, being yet aliue.

Of further inquirie and the equitie of it, after the oath taken, and deniall or qualifying of the matter by the partie: we haue also sundry examples in the l. 13. C. dere­bus creditis & iureiur. Ciuill law of the Romanes.

If an oath be taken by any man touching a legacie left vnto him by a Testament, or of the truth of any other instrument; this oath is not so to be rested in: but that all may be againe reuoked vpon proofs, made against that oathe; least the lawes shoulde seeme to permit a man to reape benefite by his owne wicked periurie.

So l. admonendi. 31. ff. de iureiur. if the Iudge (and not the partie) doe tender and defer an oath to the other partie, if by some publike instrument, (viz. matter of re­cord) or any like sufficient matter proofe may afterwards be made, of the falshood of such oath: it shall be reuoked, and all that dependeth vpon it. The reason hereof Duarenus 2. disp. anniuers. cap. 33. is assigned, for that the parties owne othe is but a kinde of doubtfull proofe.

Furthermore, Auth. nouo iure. C. de poena iud. qui malè iudicauit. No­uell. const. 124. if either of the parties suing, doe take oath that he hath neither giuen, nor promised any thing to the Iudge; yet if within ten moneths (after the sentence giuen) it shall be prooued, that herein he hath sworne falsly: both the giuer and the taker, shal haue all their goods and lands confiscated, and shall be banished. So is that Iason in l. sci­mu [...]. §. licentia. C. de iure delibe­randi. num. 1. law [Page 230] also, after an oath is taken of the trueth of an Inuentarie: and (in respect of the proofe) is dayly practised. For any of the Creditors or Legataries, may take vpon them to proue, that something is left out of the Inuentarie. Which if they doe, the heire or execu­tor shall forfeite double as much by that lawe, where (in this be­halfe) it hath his place, and vse.

Yet that which in the two former examples is saide of puni­shing; is Alex. in Apo­stil. ad Bartol. in l. 1. nu. 1. ff. de bonis corum, &c. special vnto those two cases, & to such like; as the law doeth (specially) so determine of. For (ordinarily) the rule is, that if it happen, (and so fall out vpon proofes afterward) that the defendant hath deposed falsly in his personall answeres (the cause being mooued by way of litigious iurisdiction) thereupon he is not to be punished as a person Bossius. tit. de Periuris. nu. 3. periured; but is left vnto the vengeance of God, to fall vpon him for it. And so is it vsually practised in Courtes of that nature.

According vnto which lawes of enquiring by witnesses, after the defendants oathe taken; we also Ord. Cam. Imper. tit. de Pur­gatione. §. vnd so er sollich. finde the customes and ordi­nances of the great Court of the Imperiall Chamber in Germany, to be. For if a man cleare himselfe (there) by his oath, of any crime im­puted vnto him; yet may any man take vpon him to accuse, and to proue it afterwards against him. In which case (by those Ordōnan­ces) if the partie defendant happen to be conuicted, then shall he bee punished, not only for the principal crime; but for his periurie also that he hath committed, in denying it. This their municipall lawe, is a­greeable to the Ciuil and Canon lawes, there practised. For (as hath bin touched asore, by other occasion) a purgation shall not so finally cleare a man; but that if good proofes may bee (after) made of the truth of the very crime it selfe, he shall be punished; both for that facte, & for periurie also: & therefore an oath of the partie, yea, though his cōpurgatours do ioyne with him (vpō their credulities) is not final, nor can debarre further procedings.

I had occasion afore, to alledge out of the Tom. 2. liure 2. des Ordon­nances par Hen­ry 2. pag. 1195. Ordonnances or sta­tutes of France (touching a corporal oath to be taken) concerning the number, weight, measure, and place (intended) for vnlading of marchandises, to be shipped out thence: & that there was no deceitefull or forbidden wares amongst them. Yet (this oathe notwithstanding) it is there further prouided, that if vpon inqui­sition to be made, any thing shal be found contrary to the declaration made by the partie vpon his oathe; he shall lose his marchandise, he is [Page 231] grieuously to be fined, and besides shall be punished as a forger, called Falsarius, in the Ciuill lawes.

By the lawes of this Realme, such further triall is vsually pra­ctised; and proofes are very often made to the contrarie of that, which the defendant hath deliuered in, vpon his oathe. In the Court of Chancerie, if plaintifes should alwayes rest, and might proceede to no further proofes, after the defendant hath answe­red vpon his oathe: they shoulde (for the most parte) haue ve­ry colde suites, and small reliefe or remedie could bee giuen, by that high Court. The like is to be thought of the Courtes before the Queenes Counsels established in Wales, and in the North parts, and of the Court of Requests.

In that most honourable Court of the Starre Chamber, the defendants doe not onely answere the Bils preferred (by vertue of their oathes,) but also vnto sundry Interrogatories, seruing to the like purpose. And yet after all this, it is thought necessarie to vse further proofes also by witnesses; and not to bee conuenient, to rest onely vpon the honestie and conscience, of the supposed delinquent.

Besides this practise and long continued custome (quae est op­timus legum Interpres) there be also statutes in the very point.

By the statute of 34. H. 8. ca. 4. Bankrupts in K. Henry the 8. time, authoritie is giuē to certaine there named, to call and examine such as are su­spected to conceale such offenders goods; and to examine them by their oathes, and by other wayes (as in discretion they shall thinke meete) vpon the specialtie, certeintie, true declaration, & knowledge of such offenders goods or debts owing to him: and if he shewe not the whole trueth (to bee after prooued by witnesses, &c.) then hee forfei­teth double the goods concealed. 13. Eliz. cap. 7. And the very like clause in that matter of Bankrupts, is established by a statute, made in her Ma­iesties time.

At the Common lawe, the Iudges doe not alwayes rest in an oath of a partie; but doe sometimes enquire further of the trueth of it; and doe punish him also for taking a false oath, if he be thereof conuicted. P. 5. H. 6. [...]ol. 25. One was brought into the Court as a pledge, and did sweare he might dispend fortie shillings land by yeere: yet the Court rested not in this oath, but examined the matter more strait­ly; vpon occasion that one then present, & dwelling in the same place, [Page 232] did affirme that the other might dispend nothing, and it being founde, that he could dispend but twentie shillings by yeere, he was committed to the Fleete, till he had paid his fine. So that (both by diuine and humane lawes) we see neither reason, equitie, nor practise; for Iudges (necessarily) to rest in a mans answere made vpon his oath; without proceeding to the taking of any further proofes, where­by, the lawfulnesse of that oath (which I termed partly of Pur­gation and partly of Enquirie) is more particularly also approued.

But the Treatisour condemneth all Canonicall purgations, as contrarie vnto equitie: and therefore termeth them deadly pur­gations, not healthfull but hurtfull, and poysoning purgations, dange­rously giuen for preseruatiues. Which if it were true, would take away not onely our reason taken from proofes which may bee made, euen after the parties Canonical purgation; but also the oath which I termed partly of purgation, and partly of Enquirie.

What his reasons to that purpose be, it will not therefore bee amisse, briefly to cōsider: & to adde also some-what, for clearing of lawes and courtes Ecclesiasticall from vniustice herein; and for the defence of the vse of purgations, by the parties owne othe, &c.

The conclusion which (in this behalfe) he taketh vpon him to proue: is, that proceeding ex officio, to forced purgations is hard, and vniust dealing towards men; and a great abuse of the name and ma­iestie of Almightie God, cloked and shadowed neuerthelesse, vnder glorious and painted glosses, &c.

But he mistaketh the matter greatly, to thinke that those mat­ters which (in the aforesaid doctors schedule) he challengeth for no better then painted glosses, beautifull shewes, and fained preten­ses, were by them set downe, for iustifying of purgations: for they were (in deed) principally by them mentioned, to shewe the ne­cessitie of Enquiring by oath, and of punishing offenders. If I thought, that in his setting forth of the state of this question, he fixed any force in that point for that the proceeding is ex officio: I woulde then remitte the Reader vnto that, which hath bene spoken thereof, in the second parte.

For proofe of Iniustice thereby offered vnto men; hee presseth those Doctors with their owne maxime, viz. Nemo tenetur Vide cap. 9. 3. part. se­ipsum prodere. But why hee that is otherwise very presumptiuely detected; should not be driuen to shewe, and declare his inno­cencie [Page 233] vpon his oath, or else yeelde to the detect (which they also adde for the true vnderstanding thereof) he sheweth no reason: other then that, as a glosse confounding the text, It wholly (he saith) destroyeth that rule and principle. But how can it bee verified, that 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, [Page 234] 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 quàm 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 [Page 235] 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 was there y e lesse coloure, that Ordina­ries should be vpbrayded with it: as if they of their owne heads [Page 236] did vainely arrogate, that title vnto themselues. Secondly, Or­dinaries doe in all causes not confessed; proceede to condemna­tion vpon witnesses, and matter of Recorde: or vnto absolution, vpon fayling in proofe: sauing in crimes, which be of that secre­cie in their owne nature; so as witnesses of the very crime, by no likelyhood can be had: yet alwayes, where such probable induce­ments thereof doe lye; as doe inferre a fame, or giue scandall to the well affected, and are euill examples to the weake, and vn­stayed. Thirdly, if no condemnation of a man be iust in any court; but vpon good proofe of lawfull witnesses, deposing of their owne sightes and knowledges; then doeth he withall impugne, the vsual, and lawful Iustice of this land, by Iuries: who in crimes of very high qualitie, are often, & may be led, sometimes by one witnes: yea, and he, the partie that preferres vp the Inditement: and sometimes though by moe witnesses then one; yet all depo­sing vpon probabilities, presumptions, and other pregnant, or likely inducements, to proue the partie to be guiltie. Like wise he ouer­throwes also hereby, all waging of law by the parties Iudicial othe, taken in courtes of the Common lawe, about chattels, debtes, and landes. For a man hauing but two handes of Compurgators, swearing for the trueth of his oathe, vpon their owne credu­lities: shal be thereby relieued and acquited against his aduersa­rie, without any witnesse at all. For the Treatisour himselfe tel­leth vs; that wager of lawe is not permitted, where any one witnesse, or writing may bee had. and if the partie will not take such oathe, being offered; then is he (without witnesse, writing, or other confession) condemned for the matter, in demaunde. Now, sauing that it is not in a cause cryminal; what doeth this wager of lawe else, differ from a purgation? and what lesse danger of dead­lines, poyson, or periurie, is there herein, especially, if the matter be of any weight and moment; then there is in purgations, at the law Ecclesiastical? and yet neuerthelesse, both of them be good mea­sure, vpright, & sincere dealing, in all course of good Iustice. Lastly, if in crimes of that hidden nature, he would haue all diffamed per­sons without more adoe, discharged and absolued; where two witnesses of the very fact cannot be had: he might then in steede of feare, that periurie (in the other case) would ouerflow the land: stand wel assured in this, that adulterie, and lecherie, might, and would more freely ouerflow it, without all touch or cōtrolment.

[Page 237] Admitting that which the Treatisour further alledgeth, out of the grieuances of Germany to this purpose, to be truely by him set down: yet there is nothing there obiected, which cōdēneth these purgations. For the first fault there found, is only, for that men vpō false reports & sclanders being brought before Ordinaries, & ha­uing purged themselues; do neuertheles pay for their letters of ab­solution, which ought rather to be paid by such, as falsly accused them. Whether any such thing were practised then in Germanie or no, I know not. heate of opposition, & sharpenesse of humour, makes men sometimes, either wilfully, or by mistaking, to misre­port matters hapning euen at their owne doores. But I stand not to defend abuses, by any man offred against law. The law is, that vpon an accusation, a man shall not be put to oath of purgation: except the proofes made (though they do not conuince) yet doe greatly burthen and charge him, by vehement presumptions, or scandall. And if he do then purge, & cleare himselfe, the accuser is to be condemned in charges. And though by Accuser here, any priuate prosecutor were to be vnderstood, yet (vpon the purgation) euen such must likewise, defray the charges; because it is calum­nia praesumpta. But if publike Officers, that are appointed to pre­sent, do make denunciation; then are they to pay no charges: vn­lesse not onely the presumed calumniation, and conspiracie; but also, a true and formall calumniation, be found against them.

The next grieuances there pretended, & by him alledged, are: for that vpon diffaming one of another through anger; both the partie that did diffame, must take oath, that what was spoken by him, was not deliberately, but vpon displeasure vttered: and the partie diffamed, that hee or shee, is not an adulterer, &c. as they were by the other slandered to be. whereby is inferred, as incon­uiences; that both vnlawfull gaine, is thereby sought, and wilful periurie forced.

It is no maruaile in deed, though such, & greater inconuenien­ces also should happē, where due proceeding in law is not obser­ued. for neither of these two last courses, is warranted by any law, nor yet followed by any practise in this Realm, y t I know, or haue heard of: therfore culpateneat autores. So that Purgation in it selfe, is not assigned (we see) for any of those Germaine grieuances.

But because the Treatisour surmised, his reasons could not o­therwise [Page 238] be answered, nor Purgations iustified; vnlesse Compurga­tors (who concurre in that action, & swear vpon their credulities) were thereunto vouched, to help the cause: therfore to meete also with this point; he saith, the matter is therby no whit amēded; but rather made worse, & empayred. because compurgators do (in ef­fect) iustifie him to be honest, whose fame, & the former deponēts haue proued to be dishonest, & very neere (the circumstāces considered) con­uinced of the crime obiected? where may be obserued, howe light account soeuer els-where he doe make of fame without direct proofes; & therfore would haue the partie dismissed, w tout more adoe: that neuerthelesse, he maketh it here, to be very neere a con­uiction. Albeit a fame and those who depose thereof, do burden and charge a mans honestie: yet doe they not conuince him of the fact, and therefore do not proue him to be dishonest. Further­more, the number of Compurgators cannot make worse nor impaire (any way) either the credit of the man, or of the matter: though it were granted, that there oathes (for his reason afore alledged) were rash, and vnconsiderate. wheras, in trueth, the fame or such like inducement, being but a charge, importing some presumption against the partie: is most aptly cleared, and taken away as with a more strong presumption, viz. by the partie himselfe, who taketh oath of his owne innocencie from the very fact: & is besides as­sisted with the oathes of sundry others (who are priuie to his former conuersation, and feare of God) deposing vpon their cre­dulities; that weying the whole matter indifferently, they verily thinke the partie hath taken a true oath. Againe, if by fame, and by the presenters oathes therof; the partie be in deede proued dis­honest: why doth he say, that it is but neere vnto a Conuiction? for if dishonestic were thereby proued by him; why should he not also stand thereupon conuicted? But I would haue thought till now, that none who thinketh reuerently, and but as he ought of the common lawes of this his owne countrey, howsoeuer he do of all other: could thus absolutely, and aduisedly haue condemned all kinde of purgations by oath, for what (I pray) is wager of law, (as I said afore) differing from purgation; but that this concerneth matter of our good name, and credit, and wager of lawe, is tou­ching our lands, or goods?

Neuerthelesse, the common law is not wholly destitute neither, [Page 239] of example of this purgatorie oath, euen in matter of secrete crimes. For the party appelled of murder or robberie, who putteth it to triall by battel (as hath by other occasion bene afore al­ledged) before the combat, must take an oath; that he hath not cōmitted such offence. and heerein the lawe yet resteth not, but requireth also afterward, a further tryall by battaile, betwixt them: whether the appelled partie, will thereby fall out to bee tried cleare, or culpable. And if either the partie appelled refuse the one, or be vanquished in the other: the lawe pronounceth and holdeth him for a man conuicted of the hidden crime it selfe, that was imputed to him. If c. 1. & 2. de purgat. vulgari. 2. q. 4. c. mono­machiam. this oath of purgation, with such further triall; being both of deadly danger, and of great doubt, (when all is done) in a matter capitall; yea and vpon the appeale, or accusation of another; bee but good measure, sincere, and vpright iustice, a trier, and preseruer of inno­cencies, not hurtfull, but healthfull to the common weale, nor no poysoning purgation; whereof (I hope) the Treatisour will make no scruple: then, where the purgation for a secret crime, and vppon no lesse presumptions is imposed, not by an enemie, or accuser, but by the Iudges office; not impor­ting any danger of bodily death, but tending to the good of his soule, and satisfaction of other Christian mens conscien­ces, wounded, and grieued; there must needes bee much lesse cause, of any such challenge.

For furder iustifying of Purgation by the parties oath with Compurgators: I minde not to alledge the autoritie, either of Ca­non, or Ciuill lawes, because they are like with such great facilitie to be reiected by him. For he saith, that it is no matter what their lawes presume or teach; but with what reason they doe it. Well, there bee not a fewe, nor those vnwise nations in the world: where the authoritie of the lawes hee meaneth is such; as that they are euen presumed and entended, to be groun­ded vpon good reason: albeit a reason of euery law, cannot well, and aptly be yeelded, as those lawes doc testific.

The receiued vse of this purgation, amongst most Ciuill nations; doth make it to be little lesse then Ius gentium, and therefore by moderate and graue men, it is not meete, so lightly, and slightly without good grounds, to be condemned.

[Page 240] Besides, purgation Canonical, is so farre from being condemned by good, & godly Bishops in ancient times: that by whole Coun­cels it hath bene prescribed. Let Concil. Tribur. Can. 21. a lay man (saith one Councell) if neede be, purge himselfe by his oath: and let a priest by the Consecra­tion of the holy Sacrament be interrogated. And another Councell thus: Iuo. li. 5. ex Concil Aga­thensi. Let a Priest (if he can) purge himselfe of the crime with seuen of his order: and a Deacon with three. So was it decreed by a third Councell: Iuo. ibidem ex Concil. I [...] ­densi. if a Priest or minister, be infamed amongst his charge, and it cannot be proued before the Bishoppe, by witnesses; let him bee suspended, vntill he performe due satisfaction, least the faithfull peo­ple be scandalized. But (as our Elders haue taught) then is the sa­tisfaction due, and orderly, when according to the Canons, or as the Bishoppes shall iudge fitte, he ioyneth vnto him seuen Compurgators, and sweares by the holy Gospels laid afore him, that he hath not com­mitted the crime laid vnto him, and when he is thus purged, then let him againe freely execute his office. And in another Concil. Wor­m [...]c. Councell, we finde purgation prescribed for theft, and also for adulterie. Be­sides these, sundrie others also might be alledged. and according to the prescription of such Canons; examples haue gone. for sun­drie ancient Bishops in the Church, haue themselues made their owne purgations, for auoiding, or remouing of scandal & offence. 12. q. 4. c. manda­ [...]is. Sixtus, the third, an ancient Bishop of Rome, but vpon the accu­sation of one Bassus, did willingly make his purgation vpon his oath in a Councell; which (in that case) was more then he nee­ded to haue done. And so did Iuo. Car. li. 5. Leo another ancient Bishop of the same See, purge himselfe with twelue Bishops.

Gregorie the great enioyned vnto Greg. ep. 23. ad Iustinum. pres­byt. Leo, Idem. ep. 8. li. 2. Memius, and Idem. ep. 8. li. 7. & ep. 75. li. d. Ma­ximus three Bishops, to cleare & purge themselues of seuerall crimes by their oathes: whereof the last was for Simonie. Inno­centius also caused the Bishop of Trent, to purge himselfe of the like crime of Simonie.

And what be the oathes, touching goods stolne, or embezeled which were left with a man vpon trust; appoynted in Exo. 22. v. 7. 8. 10. 11. Exodus: and those in Salomons prayer, at the 1. Reg. ca. 8. ver. 31. 32. dedication of the Temple: other then oathes of purgation of a crime, imposed by the partie, hauing an interest? Likewise, the oathes mentioned in Leuit. 6. ver. 2, 3, 4, 5. Leuiti­cus concerning goods denied, that are pretended to haue beene left in deposito; or goods gotten by robberie, or by violent oppression; [Page 241] or casually found after they were lost, yet by the finder denyed; are they not for purgation, and clearing of the partie, from the crimes imputed? and (in some respect also) decisorie of the whole controuersie; vnlesse sound proofes touching the true guiltines of the partie, may be afterward found out and vsed?

Againe, the Num. 5. v. 14. &c oath of ielousie taken with a further solemnitie of purgation, and imposed by the Priest a publike Magistrate in that behalfe: is an oath not onely of Enquirie, but of purgation to the woman denounced for suspition of adulterie, by her hus­band. Lastly, the Deu. ca. 21. v. 1. oath imposed by Gods lawe vpon the Elders of the Citie situated next vnto the corps of a man which is found secretly murdered: is a plaine and most direct oath of purgation, euen in a crime (in his owne nature) euill, & capitall to the offen­ders.

To conclude therefore; we doe finde it lawfull, and godly, sometime to make further Enquirie, and tryall, then a defen­dants owne oath, who thereupon denyeth the matter: and that purgations Canonicall bee conuenient, allowable, and manifold­ly lawfull, yea, by the very worde of God it selfe.

The Epilogue vnto him, for whom the first draught of this Apologie, was priuately addressed.

THus haue I as plainely as I could, and as briefly as the mat­ter would suffer (in my rude maner) shewed vnto you, my simple opinion, in the points aforesayd, lately called into con­trouersie: and (by the way) in others also, wherein you haue so earnestly (almost) importuned me to trauell. If it doe (but as it is like) not satisfie you; impute it to the shortnes of time, lacke of good leisure, and chiefly to your owne bad choise of me. If any thing be mistaken by ignorance, or ouerslipt (as I doubt not but very much is, and may be) keepe you promise with me: and let this simple Treatise haue no more, nor other readers of it, then I wish. and so shall I haue lesse cause to doubt, but that the censures of it, will be nothing so sharpe, as (I feare) they may be iust, for want of skill in me, to deale in matters of this qualitie.

FINIS.
QVAESTIONIS:NVNQVID …
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QVAESTIONIS:

NVNQVID PER IVS Diuinum, Magistratuiliceat, a Reo Iusiurandum exigere? & id, Quatenus ac quousque liceat?

Theologica Determinatio:

Habita In publica Schola Theolog. Cantabrigiae, mense Iulio, Anni 1591.

Per LANCELOTVM ANDREVV: S. Theologiae Doctorem.

NVNQVID PER IVS diuinum Magistratuiliceat a Reo Iusiurandum exigere? Et id, quatenus ac quousque liceat?

DE quaestione in reos habenda sub religione iuramenti, déque eius per reos vel susceptio­ne, vel declinatione legitima; nuper quaesi­tum est: Nunquid per ius fásque diuinum, Ma­gistratui liceat à reo iusiurandum exigere; & id quatenus, ac quousque liceat? Eam ego quae­stionem, ne qua memoriae vestrae, ne qua meae confusio fiat; sic pote, quasi quinque in pro­pagines, diductam volo. Neque verò in hoc tam succincto bidui spacio, methodus mihi magis distincta, in mentem venit. 1An exi­gere iuramentum liceat? 2An Magistratui liceat? 3An à parte rea id liceat? 4An omni in causa liceat, an verò non in Capitalibus; sed quae mitiore poena luuntur? 5Quousque hoc liceat, & qua­tenus? Equibus priores illae tres quaestiones, nihil quaestionis habent: si sani sumus in Theologia. Expediam ergo paucis.

Ac primùm, exigi licere iusiurandum ius sacrum est. qua in re, plurimum 1 interesse puto, (quod Christus fecit in causa diuortij) qualis quaeque res ab ini­tio fuerit, id primum inquirere. Aetatis flexu multa mutantur: Principium In­dex certissimus. Quaero igitur, vbi, & quando, prima iuramenti mentio in sacris literis? Reperio Gen. 24. Abrahae scilicet a digentis ad iusiurandum ser­uum suū sub hijs verbis, hácque caeremonia: Pone nunc manum sub femore meo, vt iurciurando te obstringam, accepturū te vxorem filio meo, è cognati­one mea. Ita; quod primum est in sacra pagina iuramentum, expressum est.

Ac vt antiquissima & prima; ita frequentissima & penè so la huiusce men­tio. Hoc ipsum (iurare,) vix reperias vsquam in Testamento veteri, nisi vel sub Hiphil: i. coniugatione praeceptiua, ratione deferentis: vel sub Niphal: i. coniugatione passiua, ratione suscipientis. Eodém (que) iure & Graeci sunt, apud quos [...], Iuramenti nomen est; quod ferè solum in Testamento Nouo Spi­ritus sanctus agnoscit. Est in ea voce coarctans quaedam necessitas, & (vt lo­quuntur) exigentia, non minus quàm in [...]. Ab eadem enim voce, vox v­traque, nempè [...], coarctandi. Móxque prouerbio decantatum est, [...], Bellum & iusiurandum, [...], i. spontanea mala esse: & vt bona sint, [...], esse debere; id est, pressa & expressa (vt scitè Augustinus de iu­ramentis) vel auctoritate deferentis, vel saltem duritie non credentis. Vt nisi aliquo saltem modo, atque aliqua (nec leui) causa, exigatur; peccetur, tum iureiu­rando, tum belligerando. Exigi ergo posse, vel debere potiùs; ipsa naturae, ip­sa vocis vis, euincit.

[Page 244] Sed nunquid à Magistratu? (secunda iam haec propago est.) Certe à ma­gistratu. 2

Sic olim Theologi, Non modò quod (que) corpus, sed animam adeo quam (que), Potestatibus subiectam esse, Rom. 13. 1. Esse igitur Potestati, factam potesta­tem, vt corpus tradat custodiae incarcerando, ne quò aufugiat: Esse itidem, vt animam quoque tradat custodiae suae, iureiurando; ne quò scilicet subterfugi­at. Quo nomine aptissimè Deus ipse dixit, Iusiurandum [...]. i. ani­mae vinculum siue carcerem. Nu. 30. 13. quo quasi constringatur anima: con­stricta appositè & expeditè respondere teneatur. Verùm intro adhuc magis. Si Domino hoc licet in seruum, vt Abrahae, Gen. 24. 3. si patri in filium, vt Iaco­bo in Iosephum, Gen. 47. 29. si fratri in fratrem, vt eidem Iacobo in Esauum, Gen. 25. 33. nempe adigere ad iuramentum: Vtique meliore id iure licebit Magi­stratui in subditum, cuius imperium omni alio imperio excellentius est. Addo etiam, si de ritè collocando in matrimonium filio, id liceat, vt Abrahae seruum: si de commodo sepulturae loco deligendo, vt Iosephum: si de iure primogeni­turae transigendo, vt Esauum; priuatis in causis, addo etiam & minutissimis, si cum publicis conferantur: vti (que) meliore hoc iure licebit magistratui, in com­muni Reipub. causa, cuius interesse, est maius omni alio interesse.

Id (que) cautū est lege diuina, Exo. 22. 8. disertis verbis. In causa depositi, sistant se coram Magistratibus, ait Deus. Quo in loco, Dei ipsius nomine, nominā ­tur Magistratus: Nec quouis nomine, sedillo ipso quod ab [...]-- i. adiurandi vi transumptum est. Quasi dicat, Coram Iuratoribus se sistant, aut ijs, qui (cum Dei vice, ius dicant) in iudicio ipsius, ipsius nomine, iuramentum ipsius exi­gere possunt. Nempe Vicarij Dei, Psal. 82. 6. in iudicio Dei. 2. Chr. 19. 8. iura­mentum Dei. Eccl. 8. 2. Magistratui ergo licet; Magistratui (dico) cùm Ec­clesiastico, tum Ciuili. Coram illo, nempe Ecclesiastico, lege purgare se iura­mento iubetur mulier, in causa suspectae fidei coniugalis. Nu. 5. 19. Coram hoc, Ciuili scilicet, lege purgare se iuramento, iubetur vir in causa suspectae fidei socialis. Exo. 22. 8. Cuius praxim videmus (est autem praxis sanctorum, inter­pres praeceptorum) Ecclesiastici quidem in Esra, qui iuramentum exegit in cau­sa matrimonij, Esr. 10. 5. Ciuilis vero in Nehemia, qui ad iuramentum adegit in causa foenoris, Neh. 5. 12. Neque verò Magistratui solùm pio & religioso, hoc iuris est; verùm & Ethnico; idque in populum Dei. Praestitit Nebucadnez­zaro iuramentum Zedechias de fidelitate praestanda. 2. Chr. 36. 9. adactus prae­stitit; ritè tamen si Ezechieli credimus. idque cum pòst, ausu sacrilego, violare tentaret; non tulit impunè. Ezech. 17. 13. Addo denique; Non hoc tantùm illis licere in populos suos; verùm & in hospites ac peregrinos quoque, intra ditionem suam, siue commercij, siue alia de causa haerentes. Quo ipso nomi­ne, Iosephus AEgypti iam prorex iuramentum defert fratribus suis, etsi legibus & natura Chananaeis, in causa suspectae proditionis. Gen. 43. 3. Ex hoc ergo iam liquet; tum exigere licere; tum licere etiam Magistratui.

Sed vtrúm-ne à reo? (Quod sum pollicitus tertium.) Nec id in dubium 3 vocari potest. Ex. 22. 8. Depositarius pars rea est. Num. 5. 19. Mulier viro zelo­typo suspecta violati thori, pars rea quoque. At vtrique defertur iusiurandum, nec declinare fas fuit. Paucis complectar: siue quis dolo rem proximi inter­uortit, [Page 245] siue mala fide amici rem procurauit, siue rem repertam, repetenti non restituit, Leu. 6. 3. siue (vt mihi quidem videtur) vllo praeterea in crimine (in­definitè enim ponitur, 1. Reg. 8. 31. [...]—i. quicquid pec­cauerit) licuit actori [...], id est, iuramentum reo impingere, vel leuare super eo iuramentum (Hebraica phrasi.) Nec reo detrectare licuit, ab actore quidem ipso, nedum à magistratu delatum. Equidem incide­re non negem tempora, vt vel ipsi actori deferri expediat, non solum reo. vtri­que namque praeuaricari contingit; Actori, calumniando; Reo, tergiuersan­do. sed si ius, è caelo petimus, i. è sacris literis; reo magis. Exempla quidem ab ea parte ferè sunt. vix vnquam reperias in lege, delatum actori iusiurandum; Reo reperias quàm saepissimè. Rationem reddit Moses: Actori (quippe qui plaerunque pars laesa sit) incalescit animus, totus in fermento est, irae, vindictae, maleuolentiae aestro percitus, acceleraret ore suo; quod in iuramento vetat sa­piens. Eccl. 5. 1. Quare inepta planè materia iuramenti. Reus, quem falsi cri­minis reum, lex semper autumat, quoad constet contrarium, multo aptior. Minus in eo praeiudicij, minus affectionum, praeter fortè timoris, qui ipse cos est quasi iuramenti. Quare, à reo exigi, & licet, & verò par est.

Accedo ad quartam: Qua tandem in causa isthuc par sit; quae paulo spis­sior 4 est, & plus quaestionis habet. Ac causarum quidem non aliundè diuisio­nem petam, quàm è iure nostro: id est, Theologorum. Ibi, lege sacra, aliae, [...] id est, Noxae seu praeuaricationes censentur. Ex. 22. 9. aliae [...] id est, causae capitales. Deu. 21. 21. Quarum atroces hae, vita quidem sanciuntur: vita, siue naturali morte moriatur: siue Ciuili, id est, exilio: seu (vt sacrae literae loquuntur) eradicatione. Esr. 7. 26. (Quibus congeneres sunt [...], id est, causae sanguinariae: quales erant, Deu. 25. 12. Membri amputatio; & ibidem versu 2. plagarum inflictio. Illae vero alterae non perinde graues, partim pecuniarum mulcta constabant, [...], partim vinculis [...] Esr. 7. 26.

E [...]quis in ijs quae capitis sanguinisue poena luuntur, iuriiurando locus? Non sanè suadeo. Primùm, scripturae praxis contrà venit. Video enim, cum de A­chanis capite ageretur, Iosuam sic agentem: Narramihi fi [...]imi; non iura mihi. Cum de Ionathanis, Saulem identidem: Dic mihi Ionathan: non deiera mihi. Spontanea, non expressa confessione; interrogatione simplici, non religione iuramenti. Quin (quod caput est in hac quidem causa) video prophetam ip­sum Ieremia [...] ab ipso rege interrogatum, Peto abs te verbum, ne celato me illud; stipulante, (nec id sanè sine spiritu dictante) Tantùm ne capitale mihi sit respon­sum meum. Ac si in ijs quidem causis immunitatem Deus dedisset responden­dendi. Iere. 38. 14. Ac ratio quidem fauet. Sic enim (quoad eius fieri potest) quaestiones à Magistratu habendae sunt; vt manifesta absit iactura anima­rum. Cúmque ex ore maximè mendacis, illa vel maximae veritatis sententia prodierit, (Pellem pro pelle, & quidquid est viro, daturus est pro vita sua. Iob. 2. 4.) verendum, ne illud (Quicquid) tum conscientiam ipsam iuramenti, tum ti­morem [Page 246] numinis, tum quicquid praetereà religionis est (vt homines sunt, vt (que) mentem habent) comprehendat. Quare, etsi nihil definio: tamen (nescio quomodo) in hijs quidem causis, propter periurij periculum praesens, iuri­iurando parcendum censeo; legésque quibus vtimur ( [...] saltem i­dem hoc cēsuerunt. In alijs verò ijs, quae minore noxa cum sint, mitiore poe­na plectuntur; non censeo. Nisi fortè, comicum quoque illud iam in Theo­logia receptum sit: Iuramentum rei seruandae, non perdundae conditum est. Cautum est enim lege generali, Leu. 5. 4. Quod qui iurauerit siue benè se facturum, siue ma­lè id fuerit; teneri debitorem, vt faciat: Id (que) cum de malo culpae intelligi ne queat (vt in scholis loquimur) ne sit enim sacramentum pietatis, vinculum iniquitatis: in malo poenae teneat necesse est. quo in genere nec renuere iuramentum licuit, nec datam in eo fidem pòst rescindere.

Non renuere: Sciens prudens exegit à Schimeio iuramentum Solomon, in 1 damnum libertatis suae; ne quò se scilicet proriperet trans Cedronem; legitimè exegie. cúmque post Schimei (iuratus ne transiret) transijsset tamen: capite luit, & licitè quidé luit, non tam transitu Cedronis, quàm iuramenti sui, 1. Reg. 2. 43. Quid quaeritis? Quanquam prophanus Schimei, iuramentum nullus de­trectauit; etsi in dispendium libertatis suae. Neque verò Micheas, qui iuramē ­ti religione obstrictus à rege; (neque aut semel id, aut tum primùm, sed ali­quoties ante factitatum) quod solutus renuit, adiuratus non renuit, sed re­spondit; etsi certa illi poena ante oculos, etsi amandandus ob id responsum in domum carceris. 1. Reg 22. 16. Quo exemplo, tum id constat, in more in­stitutóque positum fuisse Israeli in responsa iurare: tum id, quanquam pro­phetam Micheam, non ausum tamen (inscitiâ id fortè iuris diuin [...]) quod nos hîc hodie facimus; aut stipulari, ne fraudi sibi sit iuramentum suum, libertati suae; aut si id non detur, tergiuersari.

Non rescindere: Quod ipsum summo scilicet argumento est, legitimè prae­stari: 2 Nam ni ita sit, Rectè Augustinus: Iniusta vincula, rumpat iustitia. Non erit (spero) deteriore iure magistratus, quàm quiuis de plebe. Atqui priuati cu­iusque ea demum virtus non infima; Si iuratus in damnum suum, non mutet tamen, quod vicino pepigit. Psal. 15. 4. &, si non, quod vicino; nec quod Magi­stratui: Meliori quidem iure, pari saltem. Quid quaeritis? quanquam pro­phanus Esau, iuramentum nullus reuocauit, etsi in dispendium haereditatis suae. Verùm enim, vt quo iure sint priuati, hac in re semel sciant; ne (que) regi fas istud. Iurauit in damnum suum Zedechias, idque prima facie; seruitutem scili­cet, tum suam, tum populi sui. Ezech. 17. 13. mutauit; sed & detestante factum Deo, & vindicante. Neque verò reipublicae. Respub. Israëlis, iuramenti in­teruentu, foedus cum Gibeonitis sanciuit. Contrà venit illud, tum commodo suo, tum politico Dei praecepto. Non censuit mutandum, rectè censuit. los. 9. 15. Idémque cum Saulus poste à mutandum censeret, etsi zelo id Israëlis fa­ctum, periculo id primùm regni sui, excidio pòst posteritatis expiauit. 2. Sam. 21. 2. Non regi, non reip. nec priuato igitur. Concludo iam; Absit modò capi­tis periculum: in rebus causisque, quaeve mulcta, quaeve carcere plectuntur; Et subdito praestare iuramentum fas esse; & magistratui postulare.

Verùm in eo haesitationis plurimum; hoc ipsum quousque liceat, & quate­nus. 3 Quod ego dum expedio: actio mihi tota, siue (vt loquuntur) processus iu­dicialis [Page 247] obeundus est; vt, qu [...]tandem prodire tenus, vbi non datur vltrà, cog­nosci possit. Ac illius quidem (quod ad praesens hoc institutum nostrum atti­net) partes tres: quas hijs nominibus in sacris literis designatas video. Prima, Admissio litis, [...] dixere Hebraei: id est, ingressum causae ad iu­dicium; ex Esaiae 1. 23. Diuus Paulus [...]. 1. Tim. 5. 19. Secun­da, Status causae, eiúsque positio [...], id est, basin litis Hebraei nomen fecere, ex Deut. 19. 13. Graeci [...]. D. Paulus (ni fallor) [...]. Heb. 6. 16. Tertia, Probationum inquisitio [...], id est, perue­stigationem litis Iudaei appellant, ex Iob. 29. 16. Graeci [...]: D. Paulus [...]. Heb. 6. 16. (Nam cum quarta, quam [...], id est, sententiam omnes vocant, nihil mihi negotij.) Tria ergo haec insunt in omni iudicio; Le­gitimè quis vocari in ius debet: Pòst status causae fieri: Probationes demùm inquiri.

Ac in prima quidem, haud vllus (quod sciam legerimue) iuramenti vsus. De ea tamen vt inquiram, facit quorundam error, minuendus mihi hodiè (si fieri modò possit) qui non satis sibi accusati, imo qui seipsos accusaturi sibi vi­dentur; nisi prodeat in medium ac conspectum accusator quispiam: quique, quod ab ijs iuramentum requiritur, ad status positionem, id est, partem secun­dam; illud ad primam hanc, id est, litis admissionem requiri, falsò id quidem & temerè arbitrantur; sed tamen arbitrantur.

Propono itaque sic: Omni in lite, vel ita in aperto rem esse; ut constet tum 1 de facto, tum de persona: Siue [...] depraehensa sit pars rea: id est, (vt a loquuntur) infacti flagrantia, vt illa, Ioan. 8. 4. siue ita manu elata, vel ausu b (vt dici solet) notorio, vt coram magistratu coetúque vniuerso tentata fuerit, quale Zamri facinus, Nu. 25. 8. In quibus ita propalam gestis, nihil accusato­re, nihil teste opus est: vel sanè e [...]usmodi, vt aut de facto constet incognita persona, vt in cadauere reperto, cuius percussor ignoratur. Deut. 21. 1. aut de 2 persona quidem, incognito facto, vt in Achanis. Ios. 7. 18. Qua quidem in re sie a controuersa, vocari quispiam in ius poterit, modis quatuor, ex diuinae legis b sententia.

Etenim vel indicijs prodi quis poterit, vt in prima illa iustitia diuina (quam 1 humana omnis imitatur) actum est contra Adamum, sine delatore, solis indi­cijs: quod se scilicet proripuisse [...] in fugam, atque inter densa a [...]borum abdi­disset (conscij nimirum animi indicium.) Gen. 3. 8. In secunda illa, contra Cainum, ex indicijs itidem, (nempè Abele nusquam comparente,) reperta ef­fusione sanguinis, praegressa in Abelem siue ira, siue inuidia Caïni. Gen. 4. 6, 10. Primus hic modus est.

Secundus; vel insimulante altero prodi quis poterit; vt illa ipsa in iustitia 2 prima, solus Adam citatus: sed is in quaestione (vt fit) Euam insimulauit; Eua itidem serpentem. Gen. 3. 12. Atque ita illi quoque rei peracti sunt.

Tertius, vel porrò infamia, (vt plaerunque improbo [...]um facta suspitio con­sequitur, 3 suspitionem sermo, sermonem insinuatio.) Atque ita scilicet, actum contra Sodom [...]tas. Gen. 18. 20. Cl [...]mor Sodomorum cum multus sit; descendam & in­quiram, (inquit Deus.) Eodémque modo, quaestiones habitae, tum in lege: [Page 248] Siperlata ad te fama fuerit, aut si fando fortè inaudie [...]is. Deut. 17. 4. tum in Euan­gelio, vt contra incestum. 1. Cor. 5. 1. [...].

Quartus, vel denique suggestione seu querela, vt in Iobi causa. ca. 1. 11. vbi 4 accusator fratrum nostrorum, (vt eum Diuus Iohannes nuncupat) sanctum illum virum, hypocriseôs, falsi quidem criminis, sed tamen criminis, re­um, fecit. Eáque partim iuridica; quo nomine fuerunt apud Hebraeos, qui [...], id est, magistri litis dicebantur. Esa. 50. 8. vbi poena rei quaeritur, vt laesae parti satisfiat, in causa iniuriae: partim (vt loquuntur) Euan­gelica, qua Ecclesiae denunciatur quispiam. Mat. 18. 17. vbi medicina tantùm rei quaeritur, vt Ecclesiae satisfiat, in causa scandali. In prima, res ipsa loquitur (vt dici solet) reúmque insimulat. In secunda, reus alter alterum. In tertia, populi vox delator est. In quarta, vnus quispiam, proprij verique nominis ac­cusator.

Addo etiam hijs quintum adhuc, verum non (vt haec) ordinarium expe­diendae litis remedium; quin planè extraordinarium; nec adhibendum, nisi in valle Achor, id est, contra perturbatores Israëlis (hoc enim sonat vox Achor:) nempè atroci aliquo in scelere, aut periclitante Ecclesiae regnique statu. In ijs enim decurritur ad extraordinaria, ad sortes scilicet, à Iosua, quod quibusuis in causis, non datum est. Ios. 7. 16. In ijs, sua solùm suspitione fretus Ioseph; Nae vos exploratores estis (inquit) & ad nudas terrae partes detegendas venistis. Gen. 43. 9. Cúmque illi negarent; sine indicio, fama, delatore quoquam; quaestione ha­bita, Simeonem detrudit in carcerem, reliquos adigit ad iuramentum. Nec illi ad ius gentium prouocant tamen, aut contra ius fásque secum agi conqucrun­tur. Vbi enim de reipub. pace agetur, tanti illa est; vt non dubitem, Deum, su­um Magistratui zelotypiae spiritum permissurum esse, de salute Israëlis sui: non minus quàm marito suum permisit, de castitare coniugis suae. Num. 5. 14. Nam & res de qua agitur in summo gradu periculosa est, vt dissimulari non debeat: & personae, quibuscum agitur, nisi conscios suos, testes nullos adhi­bere solent, per quos argui possint. Et scelus-ipsum, quo de agitur, ex eo gene­re scelerum est, quae impressa post se vestigia, aut notas non relinquunt, per quas manu teneri queant. Quare in istis non minus suspitione sola accusare, quàm per Equuleum, Cippum, Scapham, quaestionem habere fas: (cui rei fuerunt illa in diuina repub.) Quorum vtrumuis, in alijs, siue litibus, siue cri­minibus, Iere. 29. 26. nemo permiserit. Rectè (si benè memini) Seneca reirationem red­dit. Vbi scelera per abruptum eunt, iniquum est iustitiam ad gradus teneri. cui non valdè dissimilis est, (eius qui in scelere Achanis abrupto ad sortes decurrit) quaestio planè extraordinaria. Perturbari vult illos Israëlis Deus, qui pertur­bare nituntur Israëlem Dei: eiús (que) rei vallis Achor, perpetuum monumentum.

I am verò quemcunque in ius vocarit magistratus, praeeunte ex quatuor il­lis vno (aut, si de Reipub. Ecclesiaeve pace agatur, quinto etiam) legitimè vo­catus est. Nec est, quod metuat, ne se accuset aut prodat; accusatus i am & proditus legitimè. est quod curet, quo modo se accusatum sic proditúmque, legitimè defendat. Atque hactenus de iure accusatorio.

Assumo i am secundum. Re, sic, sub iudice, in dubium vocata, vel fatetur re­us 2 admissum scelus, quod fecit Achan; ac tum in confessum, nullae sunt Iudi­cis partes, nisi vt feratsententiam: Vel, (quod ferè fit,) negat; quod elegan­ter [Page 249] inprimis expressit Salomon, Pro. 18. 7. Iustus est, qui primus in lite est, donec superueniente proximo, peruestiget eum Iudex. Negante iam reo per depulsionem, actore per intentionem affirmante, oritur Paulina illa [...], de qua ad Heb. 6. 16. Cuius [...], seu contradictionis terminus, illud est, quod in omni iudicio quaeritur, vt ibidem Apostolus animaduertit. Terminus autem nullus reperietur, donec in aequilibrio res; id est, nisi altera causa vberiorem habeat [...], quàm altera. Apostoli ea vox est eodem in loco. Eam ergo, qua parte lareat inquirere, iudicis partes sunt. Tenuis enim labor, tenuis laus, lites dirimere quae in procliui sunt. Illas, quarum obscurū ius est & per­plexum, excutere; id demum Iudice dignum. Causam quam non cognoui, per­uestigaui eam, de se ait Iob cap. 29. 16. id (que) ipsum dextrè commodé (que) prae­stare, honor est magistratus, ait Salomon Prou. 25. 1. Cui ipsi, honori sum mo fuit, sententia, quam tulit in lite omnium difficillima, inter caupon as de in­certa matre pueri superstitis 1. Reg. 3. 27. At enim priusquam adhiberi, aut debeant, aut possint [...] illae, id est, probationum statumina: status ali­quis fiat necesse est, & quasi cardo quispiam sit, in quo causa vertatur, acid, omnium primò constare, quid & quousque affirmet hic, neget ille; in quo pedem ponere vterque ac sese iure manu-consertum, vocare possint. Dicit Iudaeus, omnino prudenter dicit: Ante omnia repone mihi litem supra basin suam, [...]. Quod nifacias, erit (vti aptè quidem lo­quuntur ex Prouerb. 21.) actio tota [...], id est, mera vanitas, in­ter actorem & reum, hinc illinc, vltrò citro (que) agitata. Quod cùm nec in scholis hîc ferri possit: multo minus in iudicio debet, cuius esse debet, sacer ac solennis processus omnis, ipsa (que) iustitia iustitiae, vt est Deut. 16. 20.

[...] iam hoc, siue status (seu quis appellare malit) [...], aut est ex parte rei quaerendus, aut ex actoris. Non ex Actoris: Non potest saepe, quia is saepe nullus; vbi aut Indicijs quis in ius vocatur, aut fam â. Et cum est; transuersus fere rapitur: siue odio, siue cupiditate aliqua obliqua impulsus est, ipse vt sine statusit, vt frustrà ab ipso starum quaeras. Quare reo facta haec gratia, seu potiùs hic honor habitus est (qui & semper persona est certa, quē ­que lex non conuictum habet, pro insonte) vt ipse sibi sua vel affirmatione vel negatione statum figat: imo verò vt illius solo responso totius controuer­siae status fiat: nec status modò controuersiae, sed (nisi falsi conuincatur sub teste duplici, omni exceptione maiori) controuersiae finis quoque. Sed e­nim ne statu sic à se desixo, si solutus & liber eat, statui pòst suo non stet; sed tergiuersetur, ac recedat ab instituto: adhibetur illi vinculum [...] animae vinculum (vt Deus ei nomen fecit) religiosa scilicet iuramenti affirma­tio; qua nempe, illius anima quasi constricta vinculo, veritatem, (non eam quidem absolutè) sed proutipsam sciuerit, credideritue, sanctè & sincerè te­netur eloqui, nec contra mentem ire (quod mentiri dicimus) sed quasi cum Deo agat, ita cum magistratu agere, Dei & locum tenente, & vices gerente, & ius exigente.

Israëlis hoc instituto niti, & populi Dei, (vt nempe iuretur in responsa) e­uincunt & illa Micheae praxis (de qua ante mihi mentio) & verò multo apti­ùs, altera illa in quaestione de Elia 1. Reg. 18. 10. vbi cùm disertè respondis­sent, [Page 250] non est apud nos, non eo contentus rex, adegit eos insuper ad iuramentum, qüod non inuenissent eum: quasi nulla lex cogeret, responso acquiescere ho­minis iniurati. Quare vt aequum omnino est, constringi reum, nè elabi de­nuò & statum mutare pos [...]it; vt subindè alius atque alius, atque ita (reuera) nullus sit consistendi locus: ita constringi non aut nudo responso, aut (vt a­lijs videtur) pecuniae mulcta (animae haec vincula nō sunt; quae sola interpres est veritatis) sed solo, vero, & vnico animae vinculo, id est, iureiurando. Atque ita demum cardine totius causae sic (vt par est) posito; ad illas quas nominat Apostolus [...], progredi fas.

Neque verò (quod quosdam criminari audio) reum sic astrictum esse con­uenit, actorem omni modo liberum. Neque verò hoc iure vtimur. sed, vt iu­reiurare actorem, non sanè tutum, propter, quas bis iam nominaui, causas, (& Deus ipse Satanam, quem [...] id est, calumniatorem esse scit, [...], id est, accusatorem esse permittit.) ita referre tamen in codicem tenetur de­lationem, Apoc. 12. 10. suám (que) insuper syngraphâ fidem obligare, sub certa mulcta pecu­niae, sub certa nota infamiae, sub precio reddendae cessationis (vt loquitur lex) ni quam suggessit, accusationem & prosequatur, & probet. Ita vtrin­que Exod. 21. 19. cautum est; illinc iurisiurandi religione; hinc mulcta duplici, infamia nō simplici; ne aut calumniari actor, aut reus tergiuersari possit.

I am verò iureiurare reum primò, ac dein respondere (quod nōnullos malè habet) ideò ius est; quia si iniuratus id faceret, nugatoriè faceret (nempè solu­tus religione) si qua in codice clausula paulò magis premeret; abnueret re­sponsum, versaret se huc, illuc, ambages, diuerticula, cautelas quaereret; nihil aut explicitè, aut appositè, responderet. Id quod religio erit facere, postquā iu­ramento obstrinxit se, sanctè tum omnia, candidé (que) facturum. Iniuriae sci­licet, quàm periurij reus esse malit: & damno se potiùs subijciet, quàm dam­nationi.

Formulam è lege petimus & sacris literis? Nulla mihi aptior ad institutum hoc videtur Esrae quaestione illa, Capitibus Esrae 9. & 10. in qua rei respondent, sed priùs iurati. Cuius totius iudicij ordo hic. Accedunt viri primarij, at (que) rem referunt ad Es [...]am, de inito per nonnullos (centum put [...] & decem) cum alie­nigenis cōiugio, c. 9. 1. Adigit Esras reos ipsos, etiam pleros (que) ne reos quidē, ad iuramentū c. 10. 5. Adigit autem, in causa, in qua conuinci testibus poterant. Sed tamen primò adigit, Pòst eiusdem cap. V. 16. Esras cum reliquis, quib. de­legata eius rei cura, sedent ad quaestionem habendam, quam tertio demum mense pòst effectam dederunt. Quae forma cum Esrae fuerit scribae prompti & periti in lege Dei sui; respondere poterit votis, non iniqui hominis, ad legis practicam (vt loquuntur) & instituta cognoscenda. Atque hic iurisiurandi v­sus prior; iustus ac legitimus, in basi nempè l [...]tis stabilienda.

Alter est, cum de argumentis agitur ad fidem auspicatae iam liti facien­dam. 3 Argumenta verò, siue [...] illae, quibus Iudici fides fit; partim notae a sunt atque indicia (quae rei natura fert) certa atque indubitata: partim te­stimonia b incorrupta atque integra.

Indicia; qualia proferuntur à parentibus in causa traductae virginis, Deut. 22. 17. Testimonia; quorum sub fide itidem, omnis actio confi [...]matur, Deut. 19. 15. Quorum ego in numero (testimoniorum dico) iusiurandum pono; & ipsum [...], siue (vt loquuntur) litis decisorium, Heb. 6. 16. Iurisiurandi [Page 251] autē ex veteri canone, Hebraei partes duas, seu malit quis, genera duo, fecêre.

Priorem [...], i. solennem contestationem, qua quis alio­rum defectutestiū, siue qui non possint, siue qui nolint, testimoniū ferre; Deū ipsum vbi (que) & in omnib. praesentē, ac ius testis habentē, testem aduocat. Viuit Ieboua coram quo loquor, contestationis formula, Iud. 8. 19. Posteriorem verò [...] id est, dicam execrationem, qua quis contestationi suae fidem facit, oppignorata quasi salute sua, & abdicato, quicquid sibi in Deo aut spei, aut tutelae est; si falsi testē fecerit. Sic faciat mihi Dominus, & sic addat: execration is formula. 1. Sa. 14. 44. Ne (que) verò minus interesse put ârūt Theolo­gi, ne (que) minus teneri reum, siue alterutr â vtatur, siue vtraque. Addo etiam; si­ue contestetur reum magistratus, aut execretur adiurando; siue ipse se, iu­rando. Perinde enim esse, fiat hoc, an illud: leuetur iuramentum supra reum à Iudice; an leuet ipse supra se. Id (que) constare volunt tum ex Prou. 29. 24. ra­tione [...]: tum ex Iud. 17. 2. ratione hypotheseôs. verùm lis ista aliam in litem in currit. Non prosequor: prosequor quod institui, de argumentis.

I am verò Iudici à Deo potestas facta, tum inquirendi criminis argumen­ta, tum citandi testimonia; tum deferendi iuramenta, idque ad causae [...] colligendas. Potestas illa fit, Deut. 13. 14. Inquires (inquit Deus) idque in genere, primò [...] Cuius duas species subiungit. Primam, [...], id est, Inuestigabis, indicia nempè & argumenta. Secundam [...], id est, in­terrogabis, testes nimirum, & qui rerum gestarum conscij fuerant.

Argumenta. Sic Iosepho licuit manticas fratrum perscrutari, vt sublatum furto calicem depraehenderet. Gen 44. 5. Sic Magistratui nostro, aedium pene­tralia 1 & recessus intimos, ad indicia sceleris eruenda.

Testimonia. Sic cautum est lege diuina, Leu. 5. 1. Si vocem quis audierit adiu­rati [...]nis 2 (Paraphrastes autem Chaldaeus legis interpres longè antiquissimus, nec­ubi erretur à nobis, apposuit; nec dubium, quin de sensu veteris Ecclesiae, eti­am quae ante Christum) à Iudice factae veldelatae; & ipse eius rei testis esse pos­sit, vt qui viderit ipse, sciueritque (quo loco sciuerit Septuaginta vertunt [...]) si quis ita conscius ad testimonium euocatus sit: ni indicârit, feret iniquitatem suam. Quaestionem ergo habere licet, vel sub iuramento.

Ac primò quidem, quaestionem habere de reo apud alios quantumuis fra­tres, quantumuis religiosos. sic Obadias Eliae, 1. Reg. 18. 10. Non est prouinciae aut regni locus; quò nō miserit Dominus meus quaesitum te, cúmque responderent, Non est apud nos; etiam adiuramentum adegit prouinciam illam, quòd non inuenissent te. Ac mihi quidem verisimile fit; cùm toti regno commune hoc iusiurandum fuerit; etiam in religiosos illos incidisse, quorum nec genua Baali curuata, nec ora ipsum osculata sunt: nec eos tamen hac in re (etsi in Eliae sui praeiudicium, etsi apud Magistiatum iniquiorem) testimoniū dicere detrectâsse. Ne (que) verò de reo tantùm apud alios habere quaestionem fas: sed & apud ipsum de se. Ex­emplo magni Iudicis in lite omnium primâ. Gen. 3. 9. Quis indicauit tibi, nu­dum esse te? Et, nunquid comedisti de fructis arboris interdictae? Sic Principes Baru­chum interrogant de libro Ieremiae. Indica nobis, quomodo scripseris verba haec. Ier. 36. 17. Sic Esras reos ipsos de facto suo. Esr. 10. 11. sic Pontifices à Paulo [...] [Page 252] custodiam dato, [...], postulabant: Act. 23. 20. Fatiscunt enim saepe accusatores (quod olim Ethnicus animaduertit:) non omnes pos­sunt; nonnulli nolunt accusare. Quid agimus? Quorundam scelera, quia verè opera tenebrarum sunt, nec possunt prodi: Ephe. 5. 11. quia manus in manu est, nec se volunt prodere, Prou. 16. 5. quia durum est Doegi nomen; & hoc ipsum, prodire ad insimulandum quempiam, frigidum at (que) odiosum iam: tes sumptus, periculi, infamiae, Pro. 25. 8. Sinimúsne latere & scatêre scelera, & morâ vires acquirere, donec erumpant tandem ad perniciem Reip? An quia nemo aut potest, aut vult: (perinde enim est nolit quis accusare, an non possit) interrogare datum est? Datum est certè. Atqui absque sacramento interposito iuterrogare, pro nihilo est. Quare & adiurandi ius fecit. Quam vocem Spiritus sanctus in veteri [...]. Reg. 22. 16. testamento, per [...] expri­mit, sicque Micheam rex adiurauit: In Nouo per [...], sicque Pontifex Chri­stum Matt. 26. 63. & vtrique religio fuit, ad quaesita non respondere. Ac de He­braea quidem voce quaestio nulla, quin & vi nominis, & vsu, iuramentum de­ferat. Addo nec de Graecâ. si rectè vertant Beza caeterique interpretes Daemonis postulatum illud, quod est Matt. 5. 7. Adiuro te, ne me torqueas: id est, Confirma mihi iureiurando interposito, fore, vt ne me torqueas: vt illis vi­detur. Sed ego adiurandi vocem mitto. Sumo alteram, leuandi super reum ipsum, iuramenti (si altera modò sit) id est, vel inuitum ad iuramentum adi­gendi, permissam in lege, vel actori. Exod. 22. 8. 1. Reg. 8. 31. Ac proin, plus etiam quàm permissam, Magistratui. Certè enim periniquo loco res foret; si cuiuis de plebe actori, exigendi à reo iuramenti potestas foret; non foret Ma­gistratui. Si in causâ depositi id liceret, in causâ regni non liceret: si adigi quis posset ad iuramentum, non extendisse se manum ad remproximi sui: adigi non posset ad iuramentum, non extendisse se manum ad pacem Reipub.: si potior illius ratio, quoad ius; qui turbas. dederit in Ecclesia Dei, quàm illius qui aliquid interuortit de pecunia amici. Confer mihi haec tantùm inter se. pri­mò Magistratum ipsum, & actorem de vulgo quemlibet. Pòst, causam pecu­niolae cuiusdam, & causam Reipub. Dein, depositum illud alicubi quandoque deprehendi posse; clandestina ista colloquia non posse (nisi sic interrogare detur) abire enim in auras, impressionem post se nullam relinquere. Aut val­dè me fallit animus; aut (siue personas spectes, siue res, & rerum siue momen­ta, siue exitus) maior hîc necessitas, maior aequitas incumbit iuramenti. Qua­re & interrogarireum in causa sua, ius fásque diuinum est; & id interuentu sacramenti fieri, fas quoque. At (que) hic iurisiurandi vsus posterior, iustus ac le­gitimus, non modò vt quaestioni status fiat ex responso rei (quod ante posi­tum est:) sed etiam vt [...] quoque causae, id est, probationum statumina colligantur, quibus ludici fides fiat, ad litem ex altera parte terminandam.

Possent haec iam satis esse huic instituto; nisi quòd restet adhuc vnus (cre­do) aut alter, vix dignus vindice nodus: nisi quòd (vt est hoc seculum no­strum) quorundam hominum quiuis scrupulus, scopulus est. Causantur adi­gi hoc pacto homines ad iusiurandum infinitum; nisi ante, quaestionem ha­bere; pòst, iuramentum deferre liceat. Eiusce rei ratio iam ante à me reddita. Nolo iam hîc recoquere. Tantum id contendo, quòd defertur ijs, de more, iuramentum, infinitatis nomine declinari non posse. Dum enim Ieremiae illi, [Page 253] (qui semper in Theologia habiti sunt iurisiurādi limites & quasi fines) adhi­beantur, Ier. 4. 2. In veritate, iustitia, iudicio, abunde satis circumscriptum est; nec alios scriptura fines aut agnoscit, aut postulat. 1. In veritate, verè scilicet; 1 ne quid contrà quàm sibi conscius est, deierare cogatur. Quomodo Micheae delatum est. 1. Reg. 22. 16. Ne eloquaris mihi nisi veritatem, in nomine Domini: Aut si cui magis Paulina placeat attestatio. Rom. 9. 1. Veritatem dic [...]m, per Chri­stum, non mentiar, attestanie mihi simul conscientia mea per spiritum Sanctum. sat à prima parte finitum est. 2. In iustitia, iustè scilicet, nempe vt, & de possibili 2 iuretur, dequo cauit seruus Abrahae Gen. 24. 5. [...], id est, Fortasse nondabitur. Ethnici quoque ipsi: De quibus sciam potero (que). Et de hone­sto, de quo cauerunt illi, Esrae 10. 3. [...], id est, prout forma iuris exigit. Diuus Paulus quoque Act. 23. 3. secundùm id quod in lege est. Sat à se­cunda parte finitum est. 3. Iniudicio, id est, maturè (sic enim distinguunt in­terpretes) vt ne temerè. De quo Salomon Eccl. 5. 1. Ne proferens quid coram 3 Deo, accelerare orecogatur; sed spatio ad deliberandum interposito, ita demùm respondere. Hij sunt quos iuramenti fines sacrae litterae agnoscunt, nec prae­tereà quicquam postulant, vt definitum sit. Tres isti si adhibeantur: 1. Non loquar nisi veritatem in nomine Domini. 2. De quibus sciam potero (que), & prout à me forma Iuris exigit. 3. Sumpto tantùm ad cogitandum spatio: nullum ab infinitate periculum. Etsi de singulis quaestiunculis non constet (quae saepe è re nascuntur) sat tutus erit intra hos fines; non responsurus quicquam aut falsò aut temerè; nec nisi de ijs, quae & ipse meminerit, & lege teneatur; Nempe, quod citra iuramentum facere tenetur, id faciet. Et qui tutior esse vult, mihi quidem infinitam potiùs licentiam captare velle, quàm infinitum iusiurandum declinare, videri solet: aut (scilicet) sibi malè conscius; aut il­lud, quod dicere nolo.

Iam verò, dum ne peccetur iureiurando, haud quicquam credo interest, 2 anténe promittas te dicturum iuramento promissorio; an pòst deieres, te di­xisse [...]. Eodem redit; priusquam respondeas, profitearis te id sine fraude facturum, praemisso: an postquam respondisti, attesteris, te id sine frau­de fecisse, submisso iuramento. Dixi quidem, & dicam; Feci, & faciam; duo sunt tempora: iuramentum idem est. Quare ad rem quidem, haud quic­quam interesse puto: interesse tamen hoc, quod plurimum conducat hoc li­tibus; tum vt explicitae sint, tum vt expeditae, si omnium primò iuretur. Vt ex­plicitae; ne (si reo praeuaricari libeat, cum nondum sacramento obstrictus sit) fluctuet lis rota, nec basin cardinémque consequatur. Vt expeditae; ne (si nolit reus vbi respondit, in responsa iurare) easdem saepe quaestiones ite­ra [...]e, atque ita actum agere, iudex cogatur. Interesse denique quod in illa iudicij formulâ, diuinae legiinprimis consentanea, & nostrae huic quae in du­bium vocatur, quàm maximè affini: is ordo sit; iuramenti primùm, dein, quae­stionis: Esra. 10. 5. Id (que) ipsorum postulato, de quibus habita est quaestio. Cùm enim de litibus expediēdis accuratissimè diuina lege caueatur; ne (que) prior in scriptu­ra mentio iudicij, vt fiat; quàm vt citò fiat, ne si diu sit in Fieri, acetosum fiat: Exod. 18. 14. rectè postulant illi, Esr. 10. 13. ne sibi necesse sit pro tribunali ad omnia quaesita respondere: longum opus esse, nec vnius diei. Quare post praesti­tum [Page 254] à se loco solenni solenne iuramentum, venturos se pòst per otium, [...], id est, designatis temporibus: vt in singulas facti circumstantias, virtute priùs praestiti iuramenti, inquiratur. Eadem nunc praxis apud nos; idem mos obtiner; & quidem siue consilium spectes, aequis­simus; siue institutum, diuino quàm simillimus. Nam si iuramentum praece­dere debeant quaestiones (cum nisi pro consessu iureiurare quemquam ne­fas:) certè vix vnus dies, vni causae sufficiat, cogatur (que) (quod Iethro factum damnauit) ast [...]re iudicio populus à manè vsque ad vesperam.

Vltimum id est: quod quidam (vitio mentis procul dubio) deferri sibi po­stulant; 3 ne in emissum à se iusiurandum, inquiratur; Idque Paulinae senten­tiae fiducia; Cuiusque contradictionis terminus, iuramentum. Mitto, quòd id ita in­terpretari Heb. 6. 16. liceat, vt [...] illud status potiùs sit, quàm exitus controuersiae. Ve­rùm, ne liceat; sed esto sanè. sit terminus iuramentum; at non qualecun (que) ta­men, aut a quocunque, quomodocunque praestitum (vix hoc sani cerebri po­stulatum:) verùm eiusmodi (spero) vt de eius fide nulla sit contradictio; si modo contradictio per illud terminari debeat. Quare si litem sine contradi­ctione terminare debet; ita liquidum esse debet, vt ei nemo vel citra examen, vel pòst, aut velit, aut possit contradicere. Iusiurandum enim quoduis cuiusuis, omni inquisitione liberare velle; quid aliud est quàm periurij causam agere? quid aliud, quàm quasi signo dato, ita authoramento hoc; profligatae fidei homines, ad scelus hoc sollicitare? Cum enim siue id actor, siue reus, seu testis praestet; eadem iuramenti religio, idem valor sit: actum est, si quis iurare in li­tem velit, statim causam obtineat, pòst autem, recténe iuratum an secus, in­quirere nefas: Quippe i [...]siurandum omnis controuers [...]e terminus. Isthuc quidem si sic detur, periuris benè sit; Cum Deo transigant si possint; certè à lege nihil metuant, nec aure luant, quod ore peccarunt. Quanto id aequius? Imò verò si bonae fidei est iusiurandum; bis, térve, inquiratur; vel septies, si libet. semper quasi de fornace, liquidum magis, purúm (que) exibit: ipsáque semper inquisitio, vberioris fidei acquisitio futura est. Sin non bonae, vel dubiae fidei sit, vel su­spectae; inquiratur, & tum; quò iniusta vincula rumpat iustitia. Ratio quidem haec, ratió-ne sola? Nónne & lex eadem dicit? Siue quis in sua causa pro se, seu in aliena contra alium, sacramento contendat. Pro se: suspectae pudicitiae mulier cum eiurasset adulterium dira execratione sui ipsius: nunquid di­missa statim? (finis námque omnis controuersiae iusiurandum) imo vero recténe iurata an secus, quaestio noua. Cui rei, ebibendas habuit aquas amaras, iura­menti sui, vel veri indices, vel falsi vindices futuras. Num. 5. 24.

Contra alium. Cum enim statam rem fore cauisset lex ex ore duorum tri­úmve testium, qui iurati testimonium dixissent in quempiam, Deut. 19. 16. ne quis humana testimonia quasi diuina oracula haberet; proximo versu edicit, sisti tamen posse denuò testem suspectum; & inquiri adeò, an castè integré (que) versatus fuerit in testimonio ferendo: sin falsi conuictus fuerit, eodem pror­sus supplicio afficiendum fore, quo fuerat is, quem reum peregerat. Sed ego peccem in tempus, etiam in templum quoque (cuius nos iampridem vox a­uocauit) si vlteriùs insecter hasce ineptias, quas quiuis cum volet, obterere po­terit argumentis, ita suâ sponte diffluunt. Reddo igitur vos vobis, & concludo.

Si (vt ait propheta) disponatur iudicium hoc, (quo vtimur) ad lineam; & Es. 28. 17. [Page 255] iustitia haec ad perpendiculum verbi diuini; nusquam in ijs peccari: Exigere posse magistratum, idque à reo, (praesertim dum ne capitalis causa sit, aut san­guinaria) iusiurandum suum: idque eousque posse, siue vt lis basin suam ob­tineat, dum status quaeritur: siue vt probationum veritas elucescat, dum quae­stio habetur. Neque verò iuramenti aut fines, aut ordmem, aut examen pec­care in Theologiam: ac proin detrectari non posse. Qui detrectant; primùm inscitia diui [...] iuris id facere: periculoso dein exemplo, si sic liccat animi gratia, in iudicia publica, sine iudicio inquirere; si caeteras regni res, momen­tá (que) reipub.; denique ius ipsum (si pro nobis non faciat,) in ius vocare. Quod auertat à nobis Deus opt. max. ad quem conuersi precemur, vti det nobis mode­stè sapere, & sentire in omnibus, cernere animis quàm non religiosum sit, quàm non Christianum, inclinare iudicia gentis nostrae: quin ea potiùs quae remp. nósque omnes sustentant, omni conatu nostro, omnibus ingenij neruis ac vi­ribus sustentare. Proximè enim post Deum, Deique cultum; verissimum est Elihu verbum: Duo haec, iustitiam ac iudicium, sustentare omnia. Iob 36. 17.

Atque ita determinata mihi sit lis ista, atque vtinam etiam terminata.

Faults escaped.

In the Epistle to the Reader.

In E. j. in the 9. line, for honour reade hauour. In the next leafe afore D. line 19. for im­ploying: read implying.

In the 1. part.

Pag. 3. quotation 3. for ca. 4. read 8. Pag. 27. lin. 13. betwixt the worde those, and the worde opinions, adde great. Pag. 35. line vlt. in steede of for tithes, read, from paying tithes. Pag. 37. lin. 4 after the worde three: adde these, neede be paide. Pag 41. lin. 21. for it, read in. Pag. 50. lin. 2. for And: reade As. Pag. 53. lin. 23. after his: adde, heires. Pag. 65. lin. 22. betwixt the words otherwise and doth, adde And. Pag. 72. lin. 19. for causes, read cause. Pag. 73. lin. 8. for euiden [...], reade euidence In the twelfth Chapter in most places where it is goods and chattels: reade debts and chattels. Pag. 85. the quotation should be referred to the 28. line. Pag. 88. lin. 29. for therefore, read thereof. Pag. 108. lin. 14. and pag. 109. lin. 15. for 10. Eliz. reade primo. Pag 110. lin. 29. after this worde Lawe, adde these, if this so did, and blot them out of the beginning of the next sentence. Pag. 122. lin. 24. for the, read that. Pag. 126. lin. 31. after this worde king, adde these, is not. Pag. 127. lin. 34. for de drawne, read be drawen.

In the 2. part.

Pag. 2. lin. 11. for these, read those. Pag. 4. lin. 13. for practices, read practice. Pag. 15. lin. 14. for wro [...]sully, read wrongfully. Pag. 34. lin. 27. for euer read euen. Pag. 35. lin. penult. put out the first a. Pag. 36. lin. 2. for pers [...]cuter, read prosecutour. Pag. 43. lin. 31. for proceede, reade praeceede. Pag. 45. lin. 24. for or, reade no. Pag. 87. lin. 11. for retaliatio, read retaliation. pag. 92. lin. 14. and 16. for Cumperell, read Camperell. Pag. 96. lin. 28. for M. in the quotation, reade T. but the whole case it selfe, was mistaken by me. Pag. 100. quotatione 7. make it thus, Vide 3. part. c. 8. Pag. 100. lin. 17. for ipsam, read ipsum. Pag. 107. lin. 4. & 23. for 1. H. 4. reade 2. H. 4. Pag. 110. lin. 9. betwixt be, and one, adde but. Pag. 127. lin. penult. for Accuser, read Ac­cusors. Pag. 134. lin. 30. for Enquire read Enquirie.

In the 3. part.

Pag. 11. lin. 3. for that, reade of. Pag. 65. lin. 14. for Piue, reade Pine. Pag. 75. and so on, is quoted for 73. &c. Pag. 81. lin. penult. put out that. Pag. 109. lin. 14. for these, reade those. Pag. 114. lin. 33. for benfice, read benefice. Pag. 120. lin. 9. for pollicie, read politie. Pag. 123. lin 25. for deuied, read deuised. Pag. 165. lin. 21. for temporall, reade temporall. Pag. 172. lin. 4. for will, reade wel. Pag. 184. lin. 19. these letters T. C. should be in the margent. Pa g. 186. lin. 29. for ouerthowe, read ouerthrowe. Pag. 201. lin. 6. for certifie, reade testifie.

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